Let’s Talk about Sex(ual Orientation) Lawsuits under Federal Law

The last few weeks have been filled with filings and decisions in federal courts across the country regarding sexual orientation as a basis for a Title VII lawsuit. On March 1, 2016, the United States Equal Employment Opportunity Commission (“EEOC”) filed its first sexual orientation discrimination claims in Pittsburg and Baltimore alleging that two different companies unlawfully discriminated against individuals based on their sexual orientation. The lawsuits are brought under Title VII of the Civil Rights Act which prohibits the discrimination by employers against employees on account of their race, religion, sex or national origin. That’s right, sexual orientation is not listed as a protected class under Title VII.

Despite not being specifically listed in Title VII, many state laws list sexual orientation as a protected class (including California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, Wisconsin), which would provide employees with state (but not federal) law protections.

The two cases filed by the EEOC, EEOC v. Pallet Companies and EEOC v. Scott Medical Health Center, P.C., assert that the harassing conduct (and ultimate discharge) that the former-employees allegedly suffered was motivated by the employees’ sex because: (1) sexual orientation discrimination is based on the underlying basis of treating an individual less favorable because of his or her sex; (2) the former-employees did not conform to sex stereotypes and gender norms (by virtue of his or her sexual orientation) to which the harassers subscribed; and (3) the alleged harassers’ general or specific objections to romantic and sexual associations between individuals of the same sex.

With the background of these two lawsuits currently pending, yesterday, March 9, 2016, the Southern District of New York issued an opinion in Christiansen v. Omnicom Grp., Inc. (No. 15-3440), a case in which a former employee sued his former employer alleging sexual orientation discrimination under Title VII. In granting Omnicom Group Inc.’s motion to dismiss, the court found that Matthew Christiansen failed to state a claim under Title VII because federal law does not reach bias based on sexual orientation. Christiansen yesterday filed a notice of appeal to the Second Circuit.

As these cases proceed, Verrill Dana’s Labor & Employment Practice Group will keep readers up-to-date on the potential evolution of Title VII.