Sexual orientation claim is not permitted under Title VII

This employment discrimination case acquaints us with various ways that a lawsuit can be dismissed. The plaintiff sues for gender discrimination under state and federal law. The Court of Appeals upholds dismissal, and the case is over.

The case is Giudice v. Red Robin International, a summary order decided on February 13. The Court has a hard time figuring out what exactly the claim is. The plaintiff, a male, sues for gender discrimination. "It is difficult to discern from Giudice’s submissions on appeal whether he argues that his protected activity consisted of complaining to Red Robin about discrimination based on his sexual orientation or based on his sex." Yet, plaintiff's affidavit says he was harassed because of his sexual orientation. That knocks out the federal claim. The Court (Raggi, Pooler and Kearse) reminds us that Title VII prohibits sex discrimination, not sexual orientation discrimination.This is a retaliation claim, putting a new wrinkle on the issue. But since sexual orientation discrimination is not protected under Title VII, the plaintiff does not have a good-faith complaint of discrimination that would predicate a retaliation claim. Borrowing from a case where the plaintiff claimed retaliation for complaining about the boss's illicit lover, the Court says,

This Court has not yet ruled on the specific question of whether a plaintiff may, under Title VII, maintain a claim of retaliation based on adverse employment action resulting from his complaints about sexual-orientation discrimination, although in Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10 (2d Cir. 2013), we did hold that a plaintiff could not maintain a Title VII retaliation claim based on a mistaken belief that complaining about “paramour preference” was protected activity under the statute.

Under New York State law, however, sexual orientation discrimination is illegal. But plaintiff still does not have a case. While plaintiff claims retaliation shortly after speaking out against the harassment, the Court says, "[w]here, as here, the only basis for showing causation at the prima facie stage is a temporal nexus, 'and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.' Red Robin began disciplining Giudice years before his formal complaint of harassment on June 14, 2010." In other words, management was disciplining plaintiff long before he engaged in protected activity. That undercuts the connection between his complaints about harassment and the discipline that prompted him to bring this lawsuit.

So, while "the record on summary judgment reveals that some of the treatment that Giudice experienced at work was disturbing and inappropriate," he does not meet the technical requirements needed to win a case like this.