Second Circuit Edges Closer to Holding that Sexual Orientation Discrimination is Sex Discrimination Under Title VII

By: Megan J. Muoio, April 3, 2017

On March 27, 2017, a three-judge panel of the United States Court of Appeals for the Second Circuit decided the case of Christiansen v. Omnicom Group, Inc., an appeal from the United States District Court for the Southern District of New York. The Second Circuit reinstated the plaintiff’s claim for gender stereotyping under Title VII of the Civil Rights Act of 1964, but declined to overturn earlier precedent about sexual orientation discrimination under Title VII. A strong concurrence by two of the three judges hints that the Second Circuit may be evolving on this issue and may reconsider its earlier jurisprudence on this issue in an en banc review of this case.

Plaintiff Matthew Christiansen worked as an associate creative director and director at DDB Worldwide Communications Group, an advertising agency that is a subsidiary of Omnicom Group, Inc. Christiansen is an openly gay man who is HIV-positive, although his employer was not aware of his HIV status. Over a period of three years, his supervisor engaged in a pattern of harassment against him, which included sexually suggestive drawings of Christiansen posted in public places in the office and humiliating comments. Many of the drawings and comments concerned Christiansen’s alleged effeminacy or depicted him dressed as a woman.

Christiansen filed a complaint with the Equal Employment Opportunity Commission (EEOC) and commenced an action in the District Court after receiving a Notice of Right to Sue from the EEOC. Christiansen’s complaint alleged that he was discriminated against on the basis of sex under Title VII. The District Court granted Omnicom’s motion to dismiss Christiansen’s complaint and agreed with Omnicom’s argument that Christiansen’s claim was one for sexual orientation discrimination and not sex based discrimination. (Sexual orientation is not a protected class under Title VII.)

The Second Circuit reversed, holding that Christiansen did state a cognizable claim under Title VII by identifying multiple instances of gender stereotyping discrimination, specifically those instances that depicted Christiansen as effeminate or as a woman. The decision acknowledged that the Second Circuit’s earlier decisions in Simonton v. Runyon and Dawson v. Bumble & Bumble prohibited a plaintiff with a sexual orientation claim from using gender stereotyping to “bootstrap” a claim under Title VII. The Court stated that only an en banc panel of the Second Circuit could revisit the Simonton and Dawson decisions.

In a concurring opinion, Chief Judge Robert A. Katzmann and Judge Margo K. Brodie explicitly asked the full Court to reconsider Simonton and Dawson in light of the changing legal landscape since those decisions. In recent years, the EEOC has taken the position that sexual orientation discrimination is discrimination based on sex. The concurring judges urged the Second Circuit to reexamine its jurisprudence in this area based on three arguments.

First, sexual orientation discrimination is sexual discrimination because it treats similarly-situated people differently solely because of their sex. The concurring judges cite the example of an employee who is suspended for displaying a photo of their female spouse on their desk: if the employee is a lesbian, she can claim that she was suspended on the basis of her sex because her employer would not have taken the same action if she was male. The standard is whether an employee would have been treated differently but for the employee’s sex.

The second argument is that sexual orientation discrimination is associational sex discrimination under Title VII. The Second Circuit has held that it is a violation of Title VII for an employer to take action against an employee because of that employee’s association with a person of another race. The concurring judges would apply this “associational theory” to sex discrimination. If an LGBT employee shows that they would not have been discriminated against by their employer but for their association with someone of the same sex, the concurring judges would find a claim for sex discrimination under Title VII.

Finally, the concurring judges would expand the gender stereotyping category to find that discrimination on the basis of sexual orientation is sex discrimination because so much of sexual orientation discrimination is “motivated by a desire to enforce heterosexually defined gender norms…and the proper roles of men and women.” Because the line between gender stereotyping and sexual orientation discrimination is blurry and unworkable, the concurring judges would revisit Simonton and Dawson and hold that all sexual orientation discrimination involves gender stereotyping and therefore would be discrimination on the basis of sex under Title VII.

It remains to be seen whether an en banc panel of the Second Circuit will consider the Christiansen case. If it does, there is a very strong possibility that the Second Circuit will redefine Title VII sex discrimination.