In Christiansen v Omnicom Grp., Inc. (Docket No. 16-748), Plaintiff alleged that his supervisor drew a picture of him in tights and a low-cut shirt “prancing around,” and made a poster depicting plaintiff’s head attached to a female body clad in a bikini, which resulted in one co-worker referring to plaintiff as a “submissive sissy.” In addition, the supervisor allegedly told other employees that plaintiff “was effeminate and gay so he must have AID[S].”
The question presented was whether the supervisor’s conduct violated Title VII’s prohibition against gender (but not necessarily sexual orientation) discrimination. In reversing the District Court’s ruling, the Second Circuit discussed at length the difference between sexual orientation discrimination (which is not prohibited by Title VII) and gender stereotyping (which is considered gender discrimination and thus banned by Title VII). The Court reasoned that the sexual orientation of the plaintiff was immaterial to the reasons behind the supervisor’s conduct. Most of the behavior, the Court concluded, had more to do with how he perceived that a man is supposed to act; regardless of that person’s sexual preference. The Court relied upon the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins. In that case, a female was denied partnership because she did not act feminine enough (which had nothing to do with her sexual orientation). Thus, the Second Circuit stated, “gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals.” The Court went on to note that prior decisions merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.
As the Court noted, there is a fine line oftentimes between sexual orientation discrimination and gender stereotyping. Employers should strongly consider training for supervisors to understand the nuances involved in this developing area of the law so as to minimize future liability.
