Claim of Sexual Orientation Discrimination May Proceed Under Gender Stereotyping Theory, Declares Second Circuit
The federal Second Circuit Court of Appeals reversed United States District Court for the Southern District of New York Judge Katherine Failla’s March 9, 2017 decision in which she criticized precedent but then reluctantly dismissed a Title VII claim focused on sexual orientation discrimination.
In her decision, Judge Failla dismissed employment discrimination claims brought by Matthew Christiansen, an HIV-positive gay man, under Title VII based on the Second Circuit’s holding in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) that sexual orientation discrimination claims fall outside Title VII. In her decision Judge Failla expressed her discontentment with the prior holding, but felt “constrained to find that Plaintiff has not stated a cognizable claim.”
In reversing Judge Failla’s decision, the Second Circuit did not revisit its prior conclusion that Title VII does not authorize suits based on sexual orientation discrimination, however, they did find an alternate avenue for Plaintiff to assert his claims. The panel found the case could proceed as a plausible gender stereotyping claim under the Supreme Court holding in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, a female senior manager with a masculine appearance was denied a partnership nomination after being told she should dress and act “more feminine” if she wanted to increase her chances of becoming a partner. She sued under Title VII alleging sex discrimination and the Supreme Court held that adverse employment action rooted in “sex stereotyping” or “gender stereotyping” was actionable sex discrimination.
Similar to the plaintiff in Price Waterhouse, Matthew Christiansen alleged he was subjected to various forms of workplace discrimination due to his “failure to conform to gender stereotypes.” Christiansen worked as a creative director at DDB Worldwide Communications Group, Inc., an international advertising agency. In his complaint, he alleged his supervisor engaged in a pattern of humiliating harassment targeting his effeminacy and sexual orientation. The harassment included explicit and demeaning drawings of Christensen drawn on office white boards, humiliating Facebook posts, and comments about his HIV status. On one occasion, in a meeting of about 20 people, his supervisor allegedly told everyone in the room he felt sick and then said to Christiansen, “It feels like I have AIDS. Sorry, you know what that’s like.”
On appeal from Judge Failla’s decision, Christiansen argued the Second Circuit should reconsider its decision in Simonton and hold Title VII prohibits discrimination on the basis of sexual orientation. The panel found it lacked the authority to reconsider Simonton, however it did hold Christiansen’s complaint plausibly alleges a gender stereotyping claim cognizable under Price Waterhouse. While this decision did not reverse precedent as both Plaintiff and the lower court Judge sought, it still found a way for Plaintiff to prevail.
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