Court Declines to Extend Title VII to Cover Discrimination Based on Sexual Orientation

In Christiansen v. Omnicom Group Inc., 15-cv-3440 (SDNY March 9, 2016), the court dismissed discrimination claims brought by plaintiff, an HIV-positive openly-gay man.

The court dismissed plaintiff’s disability discrimination and retaliation claims under the Americans with Disabilities Act and the NYS Human Rights Law.

As to plaintiff’s hostile work environment claim, the court explained:

Statements mocking or making light of the notion that an individual may suffer from a life-threatening illness are inappropriate, to say the least. However, because the alleged instances of discriminatory conduct based on Defendants’ perception that Plaintiff had AIDS fail to rise to the level necessary to constitute a hostile work environment claim[.]

The court also dismissed – one could say reluctantly – plaintiff’s claim under Title VII for discrimination based on plaintiff’s sexual orientation:

Plaintiff alleges that [redacted], his supervisor at DDB, was “openly hostile and resentful” toward Plaintiff “because of his sexual orientation.” In support of this contention, Plaintiff provides numerous examples of [plaintiff’s supervisor]’s allegedly anti-gay behavior, including three lewd drawings of Plaintiff on an office whiteboard; a movie poster, circulated to the office and posted on Facebook, depicting Plaintiff’s head on the body of a bikini-clad woman “in the gay sexual receiving position”; a comment made to a co-worker in which [plaintiff’s supervisor] stated that “if he were gay, he’d like to have gay intercourse with [the co-worker]”; and a question posed to another employee during a trivia game asking how it felt to “be beaten out by the gay guy.”

By any metric, the conduct alleged is reprehensible. Defendants move to dismiss Plaintiff’s Title VII claim, however, on the ground that discrimination claims based on sexual orientation are simply not cognizable under Title VII. Plaintiff responds by arguing that Title VII should be expanded to recognize sexual orientation claims; and that in any case, he has asserted a viable claim based not on sexual orientation, but rather on sexual stereotyping. Under the law as it currently stands, the Court is constrained to find that Plaintiff has not stated a cognizable claim for Title VII discrimination.

The court cited Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), as binding precedent that “unequivocally held that Title VII does not proscribe discrimination because of sexual orientation.'”

It also noted, however, that “times have changed” since 2000, and  cited, inter aliaEEOC Appeal No. 0120133080 (which I wrote about here) and cases that “have demonstrated the difficulty of disaggregating acts of discrimination based on sexual orientation from those based on sexual stereotyping.”


The lesson imparted by the body of Title VII litigation concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be drawn between these two sorts of claims. Yet the prevailing law in this Circuit — and, indeed, every Circuit to consider the question — is that such a line must be drawn. Simonton is still good law, and, as such, this Court is bound by its dictates. Consequently, the Court must consider whether the Plaintiff has pleaded a claim based on sexual stereotyping, separate and apart from the stereotyping inherent in his claim for discrimination based on sexual orientation. The Court finds that he has not.

Hopefully, at some point Title VII will be amended to add “sexual orientation” as an explicitly-recognized protected class along with race, color, sex, religion, and national origin.

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