Is there a difference between being discriminated against because of your sexual orientation versus being discriminated against for not conforming to a gender stereotype? In most areas of the country, there most certainly is according to the Second Circuit in Christiansen v. Omnicom Group, Inc., et al. Matthew Christiansen, an openly gay man and creative director at an ad agency, sued his employer alleging that his direct supervisor engaged in a pattern of humiliating harassment “targeting his effeminacy and sexual orientation.” Alleged incidents included sexually suggestive drawings of him during meetings, comments about Christiansen “prancing around,” and display of a Muscle Beach Party poster that had Christiansen’s head attached to a female bikini-clad body. Christiansen claimed this behavior violated Title VII’s prohibition against discrimination based on sex. The lower court noted that it is very difficult to distinguish between discrimination based solely on sexual orientation (which is not illegal in most of the country’s courts) from discrimination based upon someone failing to conform to gender stereotypes (which is illegal per the Supreme Court’s Price-Waterhouse decision). Based upon this difficulty, the lower court punted and decided that it could not draw such a distinction. Therefore, the court granted the defendants’ motion to dismiss, holding that Christiansen’s complaint did not allege that he was discriminated against because he did not conform to gender stereotypes, but instead because he was gay. Christiansen appealed.
Drawing a Line
On appeal, Christiansen argued that the landscape had changed and the Second Circuit should recognize discrimination based solely on sexual orientation as a valid claim under Title VII. The Second Circuit, however, noted that its past decisions disagreed with that theory. However, the Second Circuit majority opinion found that Christiansen had stated a distinct claim for gender stereotyping that was separate, and valid, beyond any discrimination solely based on his sexual orientation. The Court noted that the complaint identified numerous instances of gender stereotyping discrimination: the supervisor describing him as “effeminate;” and the Muscle Beach Party poster depicting him as “a submissive sissy.” The Court ruled that under Price Waterhouse, “stereotypically feminine” gay men and “stereotypically masculine” lesbian women could pursue a gender stereotyping claim under Title VII just the same as straight men or women with similar non-conforming gender behavior at work. The Second Circuit held that the gender-stereotyping claim must be allowed to go forward.
Interestingly, Judges Katzmann and Brodie filed a separate concurring opinion promoting the argument that sexual orientation discrimination should be considered a valid claim under Title VII. Those judges believe that sexual orientation is completely tied to sex, as defined by Title VII. In addition, they argued that all sexual orientation discrimination is fundamentally based on gender stereotypes anyway. Although not precedent, the concurrence is an interesting read on these theories.
Does This Case Change the Landscape?
Probably not. Most Circuits, and certainly the Fifth and the Eleventh (which cover most of the Deep South.), already have adopted the Second Circuit’s thinking about gender stereotyping and how it is different than a claim based solely on someone’s sexual orientation. Many Title VII cases these days will include claims that the employee was discriminated against for not acting sufficiently manly or femininely in the workplace. Those type claims typically survive a motion to dismiss. This distinction is not likely to change unless it comes from the Supreme Court.
The bigger lesson of the Christiansen case is that employers should address potential harassment in the workplace if it implicates sex—including gender stereotyping and sexual orientation. We don’t know the other side of the story in this case (and there are always two sides) because the district court dismissed it based on the complaint. However, the Second Circuit found that the statements allegedly made and the Muscle Beach poster went beyond “good office fun” and now the company has to defend them—and may end up defending them in front of a jury. Employers might want to use this as an example in a discussion of the company harassment policy.
