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Though criticizing circuit precedent, S.D.N.Y. still rejects gay employee’s Title VII claim

By Dave Strausfeld, J.D.

While declaring that “no coherent line” can be drawn between sex stereotyping and sexual orientation discrimination, a federal district court in New York nonetheless followed circuit precedent and dismissed a gay creative director’s hostile work environment claim because Title VII does not cover sexual orientation. The drawings his supervisor allegedly posted on a white board to ridicule him for being gay characterized him as overly masculine, with large muscles, so he could not claim he was stereotyped as being effeminate, and thus he could not rely on a sex stereotyping discrimination theory (Christiansen v. Omnicom Group, Inc., March 9, 2016, Failla, K.).

Harassing drawings. Two of the lewd drawings allegedly done by his supervisor featured the employee as shirtless and “muscle bound,” and one of images placed his torso on the body of a four-legged animal “with a tail and penis, urinating and defecating.” A third whiteboard drawing depicted him naked, with an erect penis and exaggerated muscles. Later, the supervisor allegedly circulated an image showing the employee’s face superimposed on the body of a woman, dressed in a bikini and reclining on her back with her legs in the air; the image was allegedly also posted on Facebook and remained there for an extended time despite the employee’s objections.

Second Circuit’s Simonton decision. Under the law “as it currently stands,” the creative director had no cognizable claim under Title VII, the court concluded. In Simonton v. Runyon, the Second Circuit unequivocally held that Title VII does not prohibit discrimination based on sexual orientation. Although the Second Circuit has permitted Title VII claims based on nonconformity with sexual stereotypes, it has emphasized that such a sexual-stereotyping theory should not be used to “bootstrap protection for sexual orientation into Title VII.”

Criticizes Simonton. The legal landscape has changed significantly since Simonton was handed down in 2000, the court noted, and courts around the country have begun to question whether it is truly possible to distinguish between sexual orientation discrimination and sexual stereotyping. Here is a “simple example” that illustrates the “futility” of attempting to draw a line between these two concepts, the court said: “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.”

Follows Simonton. Nonetheless, Simonton is still good law, so the question here was whether the employee pleaded a plausible claim based on sexual stereotyping—a claim that was not simply an attempt to bootstrap sexual orientation discrimination into Title VII. The answer was no. Considering his complaint as a whole, nearly every instance of discrimination he alleged involved a characterization of him not as effeminate but as “overtly (indeed, overly) masculine.” For instance, his supervisor allegedly said to him at a meeting “Your muscles are big” and “Everybody look at Matt’s muscles,” and all three of the supervisor’s whiteboard drawings depicted him as shirtless and “muscle bound.”

Commendable ends but “intellectually dishonest” means. True, one of his supervisor’s drawings portrayed his head attached to a woman’s body, and his complaint did allege he was perceived as effeminate, so the court, if it were so inclined, could “strip these facts of the context provided by the rest of the FAC, and conjure up a claim” for sexual stereotyping. But while “the ends might be commendable,” the means would be “intellectually dishonest.”

“Lest there be any doubt,” the court was advocating that the line separating sexual orientation discrimination from sexual stereotyping should be erased. But until this occurred, the court would not obliterate the line the Second Circuit has drawn, “rightly or wrongly,” between sexual orientation and sex-based claims.

With no federal claims remaining, the court declined to exercise supplemental jurisdiction over the creative director’s sexual orientation discrimination claims under the New York State Human Rights Law and New York City Human Rights Law, and over his other state law causes of action.