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.
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.