Friday, March 11, 2016

District court compelled to dismiss sexual orientation discrimination claim under Title VII

You may not realize this, but there is a movement afoot to persuade the federal courts that Title VII prohibits discrimination on the basis of sexual orientation. The statute says you can't fire or mistreat people because of their race, color, national origin, religion or sex. The courts have long held that Title VII does not cover sexual orientation. But that may change.

The case is Christiansan v. Omnicom Group, a SDNY ruling dated March 9. Plaintiff raised a series of issues, including sexual orientation discrimination. He claimed co-workers ridiculed him over this, creating a hostile work environment. And, really, the allegations in this regard will further torpedo your declining faith in humanity, if it has not already hit rock-bottom to start with.

Judge Failla notes how deplorable plaintiff's mistreat was at work, but she is powerless to do anything about it under Title VII. This is because the Second Circuit in 2000 ruled that Title VII's prohibition against gender discrimination does not extend to sexual orientation discrimination. This was the prevailing view in 2000, and Congress tried but failed to amend Title VII to close this loophole. But, as the district court notes, the ground is moving on this issue, though as a district court judge she cannot override Second Circuit precedent. Judge Failla does provide a good summary of why the Circuit precedent does not make sense in this area, even if courts have allowed gay plaintiffs to proceed under Title VII if they can shoehorn their claims into the permissible gender stereotyping category..

The judge notes that "In Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), the Second Circuit unequivocally held that “Title VII does not proscribe discrimination because of sexual orientation.” However, she writes, "The broader legal landscape has undergone significant changes since the Second Circuit’s decision in Simonton." In particular, in 2013, the Supreme Court struck down the Defense of Marriage Act, holdin gthat it violated equal protection in “refusing to acknowledge a status the [individual states recognizing same-sex marriage] find[] to be dignified and proper.” Two years later, as we all know, the Court "further advanced protections for individuals in same-sex relationships when it ruled that, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, same-sex couples have the right to marry." The judge adds, "To be sure, neither of these cases impacts the issue of what protections Title VII affords; that said, they reflect a shift in the perception, both of society and of the courts, regarding the protections warranted for same-sex relationships and the men and women who engage in them. It is against this backdrop that in July 2015 the EEOC issued a decision, binding on federal agencies (though not federal courts), finding that claims for sexual orientation discrimination are cognizable under Title VII. See EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015)."
A simple example helps to illustrate the futility of treating sexual orientation discrimination as separate from sex-based considerations: If an employer fires her female employee because the employer believes that women should defer to men, but the employee sometimes challenges her male colleagues, such action would present a cognizable claim under Title VII. If the same employer fires her female employee because the employer believes that women should date men, but the employee only dates women, the prevailing construction of Title VII would find no cognizable claim under that statute. The inevitable result of holding that some sexual stereotypes give rise to cognizable Title VII claims, while others — namely, those involving sexual orientation — do not, has been an invitation to the precise bootstrapping that the Simonton Court intended to avoid. See, e.g., Kristin M. Bovalino, How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation, 53 SYRACUSE L. REV. 1117, 1134 (2003) (counseling “gay plaintiffs bringing claims under Title VII [to] emphasize the gender stereotyping theory and de-emphasize any connection the discrimination has to homosexuality”)

The lesson imparted by the body of Title VII litigation concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be drawn between these two sorts of claims. Yet the prevailing law in this Circuit — and, indeed, every Circuit to consider the question — is that such a line must be drawn. Simonton is still good law, and, as such, this Court is bound by its dictates.
See where this is going? Courts and commentators, along with the EEOC, are providing a basis to expand Title VII. The Court of Appeals will have to untangle this. It could happen in this case, as all claims got dismissed, making this case ripe for appellate review. It could also happen in a case I am handling in the Second Circuit with Greg Antollino, Esq., to be perfected today. 

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