New York Federal Court Recognizes Sexual Orientation Discrimination Under Title VII

Lev Craig

On May 3, 2017, in Philpott v. State of New York, the U.S. District Court for the Southern District of New York refused to dismiss sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (Title VII). Judge Alvin K. Hellerstein of the Southern District of New York joined a growing number of courts across the country in finding sexual orientation discrimination cognizable under Title VII, stating, “I decline to embrace an illogical and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination.”

Plaintiff Jeffery Philpott was employed at the SUNY College of Optometry as Vice President of Student Affairs, where, according to his complaint, he was subjected to years of discrimination and harassment because he is gay. Philpott alleges that his supervisors and coworkers mockingly called him “sensitive” and “flamboyant,” told him that “separate but equal treatment of gay people might be best,” dismissively referred to his relationship with his long-term domestic partner as “this marriage, or whatever you want to call it,” and refused to let him meet their families because they did not “want our children to be around homosexuality.” In addition, SUNY allegedly excluded him from meetings and projects because of his sexual orientation and implied that he deserved a lower salary because he is gay, telling him that “your team [i.e., gay people] doesn’t have kids. You have more than you need.” Shortly after Philpott complained to SUNY of the ongoing discrimination, Philpott claims, SUNY terminated his employment. Philpott filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), then filed suit in federal court, alleging hostile work environment, wrongful termination, and retaliation claims under Title VII.

Title VII does not explicitly prohibit discrimination on the basis of sexual orientation. Yet the EEOC and a growing number of courts take the position that the statute’s provision against sex discrimination covers sexual orientation discrimination, as well. Most recently, as we reported in April, the Seventh Circuit became the first Court of Appeals to recognize sexual orientation discrimination under Title VII with its groundbreaking decision in Hively v. Ivy Tech Community College. While the Second Circuit (the Court of Appeals with jurisdiction over New York) has previously ruled that Title VII does not prohibit sexual orientation, the court recently addressed the topic in Christiansen v. Omnicom Group, Incorporated, and—as we noted in our post about the decision—seemed reluctant to endorse existing precedent, stating that “no coherent line can be drawn” between gender stereotyping and sexual orientation discrimination claims.

In last week’s opinion, the Southern District of New York considered these recent developments and held that “[i]n light of the evolving state of the law, dismissal of plaintiff’s Title VII claim is improper.” The court cited the concurring opinion in the Second Circuit’s recent Christiansen decision, which had argued that “sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex,” and also pointed to the Seventh Circuit’s recent decision in Hively. In addition to this evidence that “[t]he law with respect to this legal question is clearly in a state of flux,” the Philpott court held that “because plaintiff has stated a claim for sexual orientation discrimination, ‘common sense’ dictates that he has also stated a claim for gender stereotyping discrimination, which is cognizable under Title VII.” Accordingly, the court found Philpott’s sexual orientation discrimination claims cognizable under Title VII and will allow them to move forward.

As Judge Hellerstein notes, “the Second Circuit, or perhaps the Supreme Court, may return to this question soon,” and the Southern District’s stance may be a harbinger of future change in the treatment of sexual orientation discrimination under Title VII. If your employer has discriminated against you on the basis of your sexual orientation, contact The Harman Firm, LLP.