Title VII still doesn’t bar sexual orientation discrimination; go with gender stereotyping

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By Joy Waltemath

By Kathleen Kapusta, J.D.

Bound by the decisions of prior panels, the Second Circuit, affirming in part the decision of the court below dismissing an openly gay employee’s claims, refused his invitation to reconsider earlier precedent in light of a changed legal landscape and to hold that Title VII’s prohibition on discrimination “because of . . . sex” encompasses discrimination on the basis of sexual orientation. Reversing in part, however, the appeals court found the employee plausibly alleged a Title VII claim based on gender stereotyping. In a concurring opinion, Judges Katzmann and Brodie wrote that “in the context of an appropriate case, our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII. Other federal courts are grappling with this question, and it well may be that the Supreme Court will ultimately address it” (Christiansen v. Omnicom Group, Inc., March 27, 2017, per curiam).

The HIV-positive employee alleged that his supervisor described him as “effeminate” to others in the office, depicted him in tights and a low-cut shirt “prancing around,” and circulated a poster with his head attached to a female body clad in a bikini lying on the ground with her legs upright in a manner that one coworker thought depicted him as a “submissive sissy.” The supervisor also made comments suggesting the employee had AIDS.

No coherent line. The employee sued, asserting, among other things, a claim under Title VII. While declaring that “no coherent line” could be drawn between sex stereotyping and sexual orientation discrimination, the district court nonetheless followed circuit precedent and dismissed his claim finding Title VII does not cover sexual orientation. The court also found that, as a whole, his complaint did not allege he was discriminated against because he did not conform to gender stereotypes, but because he was gay.

Bound. On appeal, the Second Circuit panel pointed out that it was “bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court.” Thus, it lacked the power to reconsider Simonton v. Runyon and Dawson v. Bumble & Bumble, which held that Title VII does not prohibit discrimination on the basis of sexual orientation.

Confusion. The employee, however, plausibly alleged a Title VII claim based on the gender stereotyping theory of sex discrimination articulated in Price Waterhouse, said the appeals court, noting that his complaint identified multiple instances of this type of discrimination. As to the district court’s determination that his allegations about his effeminacy did not transform his claim into one for sexual stereotyping, the appeals court pointed out that “this draws attention to some confusion in our Circuit about the relationship between gender stereotyping and sexual orientation discrimination claims.”

Noting that some district courts have viewed Simonton and Dawson as making it “especially difficult” for gay plaintiffs to bring gender stereotyping claims, the court explained that these cases “misapprehend” the nature of these rulings and that “gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals.” Rather, said the court, 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.”

Here, the employee alleged he was perceived by his supervisor as effeminate and submissive and that he was harassed for these reasons. Further, the harassment allegedly invoked “stereotypically feminine” traits. Finding it could not at the motion to dismiss stage weigh the evidence and evaluate the likelihood the employee would prevail on his gender stereotyping claim, the appeals court found he stated a plausible claim and reversed for further proceedings.

Concurrence. In a separate opinion, the concurring judges argued 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.”

Further, the concurrence pointed out, “taking a fresh look at existing cases, the EEOC and other advocates have articulated three ways that gay, lesbian, or bisexual plaintiffs” could show discrimination because of sex. First, the judges observed, plaintiffs could demonstrate that if they had engaged in identical conduct but been of the opposite sex, they would not have been discriminated against. Second, they could demonstrate that they were discriminated against due to the sex of their associates. Finally, plaintiffs could demonstrate that they were discriminated against because they do not conform to some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men.

“Neither Simonton nor Dawson had occasion to consider these worthy approaches,” the judges argued, reasoning that the “binary distinction that Simonton and Dawson establish between permissible gender stereotype discrimination claims and impermissible sexual orientation discrimination claims requires the factfinder, when evaluating adverse employment action taken against an effeminate gay man, to decide whether his perceived effeminacy or his sexual orientation was the true cause of his disparate treatment.” This, however, “is likely to be an exceptionally difficult task in light of the degree to which sexual orientation is commingled in the minds of many with particular traits associated with gender.” More fundamentally, the judges argued, “carving out gender stereotypes related to sexual orientation ignores the fact that negative views of sexual orientation are often, if not always, rooted in the idea that men should be exclusively attracted to women and women should be exclusively attracted to men—as clear a gender stereotype as any.”

In the view of the concurring judges, “if gay, lesbian, or bisexual plaintiffs can show that they were discriminated against for failing to comply with some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men, they have made out a cognizable sex discrimination claim. In such a case, the gender stereotype theory of discrimination would encompass discrimination on the basis of sexual orientation. In neither Simonton nor Dawson did we consider this articulation of the gender stereotype at play in sexual orientation discrimination.”

Source:: Title VII still doesn’t bar sexual orientation discrimination; go with gender stereotyping

      

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