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Protections against gender stereotyping apply to heterosexual and lesbian, gay and bisexual employees alike under Title VII of the Civil Rights Act of 1964, according to the 2nd U.S. Circuit Court of Appeals.
In 2011, Matthew Christiansen, a gay man, began working for Omnicom Group. Shortly thereafter, Christiansen claimed in his lawsuit that his supervisor began harassing him. In particular, the supervisor allegedly made several derogatory comments to or in the presence of Christiansen associating his status as a gay man with his having AIDS. Christiansen also alleged that his supervisor drew several sexually explicit pictures of him on an office whiteboard.
In addition to mocking Christiansen's sexual orientation, the supervisor allegedly subjected him to harassment based on his effeminate traits. For instance, one of the whiteboard renderings purported to portray Christiansen "prancing around" while wearing tights and a low-cut shirt. Christiansen also alleged that his supervisor made derogatory comments expressly referencing his effeminate characteristics.
After failing to obtain any meaningful assistance from the company's human resource department, Christiansen exhausted his administrative remedies through the Equal Employment Opportunity Commission and filed suit in the U.S. District Court for the Southern District of New York. In his complaint, Christiansen alleged that he had been subjected to sexual harassment in violation of Title VII. In response, the company moved to dismiss the claim on the grounds that sexual orientation is not a protected status under Title VII.
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In analyzing Christiansen's claim, the trial court noted that although sexual orientation is not a protected status under Title VII, the statute's prohibition on sex discrimination does extend to discrimination based on an employee's nonconformance with gender-based stereotypes. The trial court concluded, however, that it was unable to draw a coherent line between a permissible gender stereotype claim and an impermissible sexual orientation claim based on the allegations of Christiansen's complaint, and it therefore dismissed the claim.
On appeal, the 2nd Circuit reversed and reinstated Christiansen's sex discrimination claim. The court held that in determining whether an employee possesses a viable gender stereotyping claim, his or her sexual orientation is not a relevant consideration. As the court explained, "gay, lesbian, and bisexual individuals do not have less protection [from] gender stereotype discrimination than do heterosexual individuals." Reviewing Christiansen's complaint in this light, the court held that those allegations that described harassment on the basis of his effeminate characteristics and nonconformity with traits associated with the male gender were sufficient to state a claim for sex discrimination under Title VII.
Of note: The chief judge of the 2nd Circuit authored a separate concurring opinion indicating that the court should re-evaluate its position that sexual orientation is not a protected status under Title VII.
Christiansen v. Omnicom Grp. Inc., 2nd Cir., No. 16-748 (March 27, 2017).
Professional Pointer: While the 2nd Circuit's decision represents a logical extension of Supreme Court precedent, the distinction it draws between sexual orientation and nonconformity with gender stereotypes will be difficult for front-line employees to fully grasp. It is therefore recommended that employers expand their anti-discrimination and anti-harassment policies to include sexual orientation.
R. Read Gignilliat is an attorney with Elarbee, Thompson, Sapp & Wilson LLP, the Worklaw® Network member firm in Atlanta.Related SHRM Article:
Appellate Ruling Sharpens Scrutiny of LGBT Employees’ Benefits, SHRM Online Benefits, April 2017
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