Sexual Orientation discrimination has been a hot topic as of late–in fact, the EEOC filed its first sexual orientation discrimination claims on March 1, 2016. Although multiple states (including Nevada, New Jersey, New York, and Illinois) prohibit discrimination on the basis of sexual orientation, Title VII does not list sexual orientation as a protected class. On March 9, 2016, the Southern District of New York granted an employer’s motion to dismiss an employee’s claim under Title VII alleging that he was discriminated against on the basis of his sexual orientation.
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Plaintiff Matthew Christiansen is an openly gay man. He sued his employer and its parent company, Omnicom Group, Inc. and several individual defendants for “Title VII Stereotypical Animus” discrimination based on his sexual orientation, among a number of other tort and contract based causes of action. Plaintiff’s claims arose out of explicit drawings and comments that Plaintiff’s supervisor directed toward him regarding his sexual orientation and HIV-positive status. Defendants moved to dismiss Plaintiff’s Title VII claim.
The U.S. District Court for the Southern District of New York concluded that the controlling Second Circuit precedent required it to conclude that Plaintiff failed to state a claim. In Simonton v. Runyan (2d. Cir. 2000) 232 F.3d 33, the court held that Title VII does not prohibit discrimination on the basis of sexual orientation because Congress rejected multiple attempts to add sexual orientation as a protected class and because discrimination on the basis of sex only refers to “a class delineated by gender, rather than sexual activity regardless of gender.” The Second Circuit had previously ruled that claims based on “nonconformity with sexual stereotypes” were recognized under Title VII, but that these claims could not be used as a method by which Plaintiffs alleging discrimination on the basis of sexual orientation could bring Title VII claims. The court reluctantly determined that it was bound by Second Circuit precedent, and that Plaintiff had not pleaded a claim based on sexual stereotyping.
The district court’s decision clearly lays the foundation for appeal. The court noted that the “broader legal landscape has undergone significant changes since the Second Circuit’s decision in Simonton.” It pointed out the Supreme Court’s declaration in 2013 that the key provision of the Defense of Marriage Act (DOMA) was unconstitutional, and the Court’s subsequent ruling in 2015 that the 14th Amendment’s Due Process and Equal Protection Clauses provided same-sex couples with the right to marry. Further, the district court mentioned the EEOC’s July 2015 decision that Title VII provides protections against discrimination on the basis of sexual orientation in support of its argument (likely directed at the Second Circuit) that the Simonton decision warrants reconsideration.
Second Circuit Employers: Keep an Eye on This Issue
Christiansen has filed a notice of appeal to the Second Circuit. Employers should be aware that the discussion regarding Title VII’s protections (or lack thereof) against discrimination based on sexual orientation is far from over. Nonetheless, the best course of action for a prudent employer in the Second Circuit (and especially in states where sexual orientation is listed as a protected class under state law) is to prohibit discrimination on the basis of sexual orientation in its policies, communicate those policies to employees, and actively enforce them.