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Second Circuit Rules that Employees May Sue for Sexual Orientation Stereotyping under Title VII

On March 27, 2017, the Second Circuit revived the lawsuit of a gay, HIV-positive executive, who alleged that a subsidiary of Omnicom Group Inc. violated Title VII of the Civil Rights Act by permitting harassment and discriminatory conduct directed towards him because he failed to conform to gender stereotypes.  In Christiansen v. Omnicom Group, Inc., No. 16-748, Christiansen claimed that his direct supervisor repeatedly mocked him due to his sexuality and perceived effeminacy.  

Specifically, he claimed that his supervisor drew sexually explicit drawings of him on an office whiteboard, as well as other inflammatory images and also made remarks about the connection between effeminacy, sexual orientation, and HIV status.  

Christiansen filed suit under Title VII and state and local law, alleging discrimination based on HIV-positive status and failure to conform to gender stereotypes.  The Southern District of New York dismissed his federal claims, holding that Title VII does not bar discrimination on the basis of sexual orientation under the Second Circuit precedent established in Simonton v. Runyon and Dawson v. Bumble & Bumble.  The district court further determined that Christiansen’s discrimination claims focused more on his sexuality than his effeminacy, which undercut his sex stereotyping argument.

In reversing the district court’s decision, the Second Circuit found that the district court erred on the sex stereotyping claim.  The panel noted that the Supreme Court determined in Price Waterhouse v. Hopkins that sex discrimination does encompass “sex stereotyping,” the mistreatment of employees because they do not conform to gender norms.  The discrimination faced by Christiansen—ridicule due to being perceived as overly feminine and insufficiently masculine—constituted sex stereotyping under Price Waterhouse, and thus his claim was viable under Title VII.

Other circuit courts may follow suit and hold that Title VII protects against sexual orientation discrimination on the basis of stereotyping.  The Seventh Circuit, for example, reheard the lawsuit of a professor who alleged that she was passed over for a promotion because she is a lesbian.  The court indicated that it may find that Title VII protects against sexual orientation discrimination.

Employer Tip

The Christiansen decision establishes that stereotyping based on sexual orientation or gender norms may be deemed a violation of Title VII.  Employers should analyze their current policies and practices and ensure that they protect against discrimination and harassment based on sexual orientation or sex or gender-based stereotypes and also be aware that many state laws, including those in New York and New Jersey explicitly prohibit this forum of discrimination.  Employers should also be diligent in training their managers to avoid subjective employment decisions on the basis of sexual orientation or stereotypes based on sex.

© Copyright 2020 Sills Cummis & Gross P.C.


About this Author

David I. Rosen, Sills Cummis Gross, Wrongful Dismissal Lawyer, Labor Arbitration Attorney

David I. Rosen has practiced labor and employment law on behalf of management clients since 1977. He handles employment litigation in the federal and state courts, before administrative agencies and through arbitration and mediation, and has broad experience with wrongful dismissal and employment discrimination claims, having successfully defended employers following jury and bench trials. His litigation experience extends to the enforcement and defense of restrictive covenants, NLRB unfair labor practice trials and appellate advocacy. Mr. Rosen also represents employers in labor...

(973) 643-5558
Galit Kierkut, Employment Litigation Attorney, Sills Cummis Gross, Social Media Matters Lawyer

Galit Kierkut concentrates her practice on employment litigation and counseling. She conducts human resources audits, performs management and employee training in all areas, including sexual harassment, social media and electronic communications use, and counsels clients regarding compliance with state and federal employment laws, including discrimination laws, the Fair Labor Standards Act (FLSA), family and medical leave, and the Worker Adjustment and Retraining Notification (WARN) Act. She also reviews and drafts employee handbooks, social media policies and employment contracts, including restrictive covenants and severance agreements. Her employment litigation practice is primarily focused on resolving claims in the areas of discrimination, sexual harassment, restrictive covenants, whistleblowing and employment contract disputes in state and federal courts and before the Department of Labor and the Equal Employment Opportunity Commission (EEOC).

Charles Kaplan, Sills Cummis Gross, Labor Employment Attorney, Affirmative Action Matters Lawyer

Charles H. Kaplan is a Member of the Sills Cummis & Gross Employment and Labor Practice Group and is resident in the Firm’s New York Office.  Mr. Kaplan represents employers in federal and state trial and appellate courts, as well as before enforcement agencies, including the U.S. Equal Employment Opportunity Commission, the National Labor Relations Board, the Office of Federal Contract Compliance Programs of the U.S. Department of Labor, the New York State Division of Human Rights, the New York State Department of Labor and the New York City Commission on Human Rights.