In Dingle v. Bimbo Bakeries USA/Entenmann’s, No. 14-1215-CV, 2015 WL 8952903 (2d Cir. Dec. 16, 2015), the Second Circuit vacated the dismissal, for failure to state a claim under FRCP 12(b)(6), of plaintiff’s employment discrimination complaints.
Plaintiff’s allegations, in a nutshell:
Dingle alleged that a photo of a nude man resembling Dingle was distributed among employees who made degrading comments about his genitals and questioned his sexual orientation. Dingle further alleged that for a period of a month, two employees made lewd, obscene and degrading remarks about him, including that he was homosexual, and that the individuals responsible were never punished for their behavior.
The district court held that plaintiff failed to plead hostile work environment claims under federal, state, or city law “because he did not plausibly allege that the harassment he suffered was on account of his gender” and that he “failed to plead a … retaliation claim because he did not plausibly plead that he possessed a good faith reasonable belief that he had complained about activity that violated the relevant anti-discrimination laws, as there was no evidence the harassment he suffered was related to his gender.”
The Second Circuit disagreed:
Dingle’s allegations could be read to suggest that he was harassed based on his perceived sexual orientation. [B]oth the district court … and the magistrate judge … observed that Dingle’s allegations could be construed as a hostile work environment claim based on his perceived sexual orientation but that such claims were not cognizable under Title VII. However, the district court did not address the viability of any such claim under the NYSHRL or NYCHRL, or of any retaliation claim based on complaints about such a hostile work environment.
It therefore remanded to the district to consider “whether Dingle alleged a plausible perceived sexual orientation hostile work environment claim and retaliation claim under the NYSHRL and NYCHRL.”
It should be noted that both the State and City Human Rights Laws “expressly protect against discrimination based on both perceived as well as actual sexual orientation” such that “Dingle’s actual sexual orientation is not at issue” because “he is protected by these provisions if he suffered abuse because others believed, even incorrectly, that he is gay.”