Second Circuit Reverses District Court’s Decision on Title VII Gender Stereotyping Discrimination

Lev Craig and Harrison Paige

On March 27, 2017, the United States Circuit Court of Appeals for the Second Circuit reversed and remanded in part and affirmed in part the district court’s decision in Christiansen v. Omnicom Group, Incorporated, et al. Plaintiff Matthew Christiansen brought claims against his former employer under the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging discrimination on the basis of his HIV-positive status and his failure to conform to gender stereotypes. The lower court dismissed Christiansen’s federal claims for failure to state a claim; the Second Circuit upheld the dismissal of the ADA claim, but reversed the dismissal of the Title VII claim, finding that Christiansen had plausibly alleged a Title VII gender stereotyping claim.

Christiansen, an openly gay man who is HIV-positive, was the creative director for DDB Worldwide Communications Group Incorporated (“DDB”), an international advertising agency and Omnicom subsidiary. According to the complaint, Christian’s direct supervisor, Joe Cianciotto, subjected Christiansen to a “pattern of humiliating harassment targeting his effeminacy and sexual orientation.” Cianciotto allegedly drew offensive, obscene caricatures of Christiansen on an office whiteboard, the most explicit of which depicted Christiansen naked with an erection, captioned with a mocking comment about same-sex marriage. On another occasion, according to the complaint, Cianciotto created a “Muscle Beach Party” poster, which he circulated amongst office members and posted on Facebook, displaying DDB employees’ heads photoshopped onto the bodies of people in swimwear; on the poster, Christiansen’s head was pasted onto a photo of a woman in a bikini, lying on the ground with her legs upright in the air “in a manner that one coworker thought depicted Christiansen as ‘a submissive sissy.’”

Christiansen also alleges that Cianciotto referred to him with homophobic slurs and made inappropriate remarks related to Christiansen’s sexuality, stating that Christiansen “obviously slept with everyone” because he is gay and telling other employees that Christiansen “was effeminate and gay so he must have AID[S].” On one occasion, during an employee coughed during a meeting, prompting Cianciotto to remark that he was also feeling ill; Cianciotto then turned to Christiansen and added, “It feels like I have AIDS. Sorry, you know what that’s like.” At the time, Christiansen was not open about his HIV-positive status in the workplace.

In October 2014, Christiansen filed a charge of discrimination with the Equal Employment Opportunity Commission. After receiving a Notice of Right to Sue, Christian filed suit in the United States District Court for the Southern District of New York in May 2015. Defendants moved to dismiss the complaint. U.S. District Judge Katherine Polk Failla granted the motion, affirming Defendants’ argument that Christiansen had pled a sexual orientation discrimination claim, but not a gender stereotyping claim. While the court considered “several references to effeminacy in the complaint,” it ultimately found that “Christiansen’s complaint did not allege that he was discriminated against because he did not conform to gender stereotypes, but because he was gay.” Therefore, the district court held, Christiansen’s Title VII claim was precluded under Second Circuit precedent holding that sexual orientation discrimination is not cognizable under Title VII; while “no coherent line can be drawn between these two sorts of claims […] the prevailing law in this Circuit—and, indeed, every Circuit to consider the question—is that such a line must be drawn.”

Christiansen subsequently appealed to the Second Circuit, which reversed the district court’s ruling and found that Christiansen had “plausibly allege[d] a gender stereotyping claim cognizable under the Supreme Court’s decision in Price Waterhouse v. Hopkins.”  The Second Circuit clarified that “gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals.” While the Second Circuit conceded that discrimination on the basis of LGBT identity does not, in and of itself, give rise to a gender discrimination claim under Title VII, it found that the lower court had erred in holding that, because Christiansen’s complaint contained fewer allegations about sex stereotyping than about sexual orientation, Christiansen had failed to state a gender stereotyping claim under Title VII.

Chief Judge Robert A. Katzmann and Judge Margo K. Brodie wrote a concurring opinion, contending that Title VII’s sex discrimination provision inherently protects against discrimination on the basis of sexual orientation. First, Katzmann and Brodie argued, sexual orientation discrimination can be properly described as traditional “but-for” sex discrimination if “gay, lesbian, or bisexual plaintiffs can show that ‘but for’ their sex, […] they would not have been discriminated against for being attracted to men (or being attracted to women).”

Second, the judges argued that sexual orientation discrimination constitutes sex discrimination under the associational discrimination theory—that is, individuals in gay relationships “are treated less favorably based on the sex of their associates.” Here, Katzmann and Brodie analogized to the associational discrimination theory as it pertains to race: “If it is race discrimination to discriminate against interracial couples, it is sex discrimination to discriminate against same‐sex couples.”

Finally, the judges reasoned that sexual orientation discrimination derives from unlawful sex stereotyping, as “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.” The end of the concurring opinion signaled a potential change in the Second Circuit’s thinking on sexual orientation discrimination under Title VII, as the judges encouraged the court to reconsider the Second Circuit’s current holding on sexual orientation discrimination under Title VII.

Until then, however, LGBT employees in New York are still protected by state and local anti-discrimination laws. If your employer has discriminated against you on the basis of your sexual orientation or gender nonconformity, contact The Harman Firm, LLP.