New York District Court Holds Sexual Orientation Not Protected by Title VII

Last week, the Equal Employment Opportunity Commission (“EEOC”) announced filing its first federal lawsuits against private-sector businesses, challenging sexual orientation discrimination as sex discrimination. Coincidentally, a week later, the U.S. District Court for the Southern District of New York held in Christiansen v. Omnicom Group, Inc. that, although sexual orientation discrimination is “reprehensible,” it does not violate Title VII.  These cases demonstrate the legal community’s struggle in defining and interpreting the law as currently written while, at the same time, attempting to ensure equal protections for gay and lesbian individuals.

Matthew Christiansen filed suit alleging, among other things, that his employer was “openly hostile and resentful” towards him because he was gay.  DDB moved to dismiss the claim on the basis that sexual orientation discrimination claims are not cognizable under Title VII.  Christiansen responded that in light of the significant transformations in our society’s ability to define and understand sex and gender, Title VII should be expanded to recognize sexual orientation as a protected status. 

The Christiansen court held that, under the law as it currently stands, and despite the shift in society’s perception regarding the protections warranted for same-sex relationships, Christiansen could not state a claim for Title VII discrimination.  In so holding, the court distinguished between claims based on sexual orientation and those based on nonconformity with sex stereotypes—the latter of which may form the basis for a Title VII action, the former of which may not.  The court clearly struggled with its decision, referring to DDB’s actions as “reprehensible,” and questioned whether it is ever possible to desegregate acts of discrimination based on sexual orientation from those based on sex stereotyping. 

Employers should note that although Title VII does not explicitly include sexual orientation in its list of protected categories, it is clear the EEOC will enforce Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.  In addition, some state and municipal laws specifically prohibit discrimination on the basis of sexual orientation.    

Christiansen has already filed a notice of appeal.  Stay tuned for updates on the appeal, as well as the suits recently filed by the EEOC.