Case Notes

Christiansen, a creative director at DDB Worldwide Communications Group and an openly gay man, claimed that supervisor Joe Cianciotto subjected him to ridicule and abuse by making extreme anti-gay comments, passed around a picture of Christiansen's face pasted over a woman in a bikini in the “gay sexual receiving position” and then posted it online, and drew offensive pictures of Christiansen on an office whiteboard. Included were comments about AIDS addressed to Christiansen, who is HIV-positive.

Last March, U.S. District Judge Katherine Polk Failla of the Southern District of New York, while decrying the treatment as “reprehensible,” dismissed the case, saying she was hamstrung by the circuit's decision in Simonton v. Runyon, 232 F3d 33 (2d Cir. 2000) which said Title VII's bar on discrimination “because of … sex” did not mean sexual orientation.

Judges Robert Katzmann, Debra Ann Livingston and Eastern District Judge Margo Brodie had several questions on whether they could overrule Simonton or whether it would require an en-banc sitting of the court to do so. Christiansen's case may come under Title VII's reach for discrimination based on sexual stereotyping, they noted, but the circuit in Simonton said clearly that a plaintiff may not use “a gender stereotyping claim to bootstrap protection for sexual orientation into Title VII.”

Lask argued that the times have changed, and cited the successful fights at the Supreme Court to ban prohibitions on gay sex and recognize same-sex marriage — and she urged the circuit to adopt a broader definition of “sex” in the law.

The EEOC changed positions in 2015 to state that the statute logically covers sexual orientation, and the agency has succeeded in persuading some district courts that this is the case.

Significantly, the lone appellate court to address the issue is the U.S. Court of Appeals for the Seventh Circuit, where a three-judge panel rejected sexual orientation in Hively v. Ivy Tech Community College, 830 F. 3d 698 (2016), only to have the full court vote in October to vacate the opinion and rehear the case en banc.

Katzmann asked Barbara Sloan of the EEOC on Jan. 20 why the agency changed its position and why it should matter to the circuit.

“We recognize that the legal landscape has changed and the understanding of sex and sexual orientation has evolved over time,” said Sloan.

Jan. 20's appeal in Christiansen v. Omnicom Group 16-748, drew several amici, including 128 members of Congress, who in a brief by Peter Barbur of Cravath, Swaine & Moore, said, “Simonton must be overturned because it relied on incorrect interpretations of congressional actions and outdated law to justify an incoherent interpretation of 'sex' under Title VII.”

— Mark Hamblett, New York Law Journal