The Court of Appeals has reinstated a Title VII claim alleging that a gay plaintiff was treated differently because he failed to conform to gender stereotypes. Despite growing interest in this issue and a slew of amicus briefs, the Court expressly declines to find whether sexual orientation discrimination equals sex discrimination under Title VII. Instead, it finds for the plaintiff under the more traditional gender-stereotyping theory.
The case is Christianson v. Omnicom Group, decided on March 27. The facts are the sort you would expect from a workplace filled with people who never graduated from the adolescent world of the male locker room. Plaintiff's supervisor drew sexually-explicit pictures on office whiteboards, Facebook and other places, depicting plaintiff in unflattering, effeminate and sexual poses that made fun of his sexual orientation. This is the world we live in folks, as society continues to devolve in ways that should be apparent to anyone who reads a newspaper. The question is whether this behavior violates Title VII.
Title VII says nothing about sexual orientation. But federal courts lately have been determining whether the sex discrimination provision includes sexual orientation discrimination. The EEOC a few years ago answered that question in the affirmative, and district courts around the country have followed suit. The Seventh Circuit is taking up that issue en banc, and at least three cases remain pending in the Second Circuit on this issue.
Some compelling reasons support the finding that Title VII prohibits sexual orientation discrimination. This discrimination punishes people based on their associations, and since associational discrimination (punishing a while male because of his black fiance, for example) can violate Title VII, the theory goes, it is unlawful to discriminate against gay men because they associate with gay men. Sexual orientation discrimination is also regarded as a form of gender stereotyping, as traditional sex roles assume that men are attracted to men and women are attracted to women. But the Court of Appeals does not take that road in this case, noting that it held seventeen years ago in Simonton v. Runyon (and 12 years ago in Dawson v. Bumble & Bumble) that gays and lesbians are not a protected class under Title VII. Since panel decisions of the Second Circuit are normally not vacated unless the Supreme Court weighs in on the issue or the Circuit hears the issue en banc, the Court of Appeals declines to revisit Simonton and instead finds for the plaintiff under the gender stereotyping theory, a claim that the Supreme Court recognized in the Price Waterhouse decision nearly 30 years ago, albeit in the context of a professional woman who was regarded as insufficiently feminine. The Second Circuit says, "gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals. Simonton and Dawson merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim."
On this Rule 12 motion, plaintiff makes out a gender stereotyping claim because "Christiansen alleges that he was perceived by his supervisor as effeminate and submissive and that he was harassed for these reasons. Furthermore, the harassment to which he was subjected, particularly the 'Muscle Beach Party' poster, is alleged to have specifically invoked these “stereotypically feminine” traits." The district court's contrary ruling is therefore reversed, and this case heads to discovery.
What makes this case particularly interesting is that two of the three judges on the case issue a concurring opinion. The panel is Judges Livingston, Katzmann and Brodie [D.J.]. But Katzmann and Brodie alone sign off on the concurrence. Which is strange because two judges constitute a majority. Obviously, Judge Livingston wanted no part of the concurrence, which expresses the hope that "when the appropriate occasion presents itself, it would make sense for the Court to revisit the central legal issue confronted in Simonton and Dawson, especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued." That changed legal landscape now recognizes same-sex marriage rights and privacy rights for same-sex couples, as recognized by the Supreme Court, and the fact that "societal understanding of same-sex relationships has evolved considerably" over the years. The concurrence further adopts the EEOC's view that sexual orientation discrimination does in fact constitute gender discrimination because, in part, that discrimination punishes people because of their intimate associates and reinforces gender stereotypes.
Three other cases are pending in the Second Circuit on the issue of whether sexual orientation discrimination violates Title VII. One case was already argued. One of these days, I am sure, the Court of Appeals is going to squarely take on this issue. It will then almost certainly go to the Supreme Court.