Viability of Sexual Orientation Discrimination Claims: Venue Driven?

This is the first post by PLUS Blog contributor Jonathan Evan Goldberg, a litigation and employment law partner at FisherBroyles, LLP. An experienced trial lawyer and frequent public speaker, he has represented corporations, LLCs, partnerships, non-profits, law firms, and boards of directors, as well as officers, executives, attorneys, and others, in all aspects of complex commercial litigation, employment litigation, arbitration, and employment law.

In addition, Mr. Goldberg serves as the President of the non-profit Cherub Improv and regularly teaches lawyers, entrepreneurs, corporate leaders, and members of the professional liability industry the basic principles of improv comedy, including teamwork, embracing creativity, listening, supporting others’ ideas, feeling confident, and thinking quickly on one’s feet.


More often than not, the choice of forum matters.  In a recent decision out of the Fourth Circuit, Hinton v. Virginia Union University, 2016 U.S. Dist. LEXIS 60487 (E.D. Va. May 4, 2016), the United States District Court for the Eastern District of Virginia granted the Defendant University’s motion to dismiss the Plaintiff’s claim for discrimination in large part because, the Court held, “sexual orientation” is not a protected class under Title VII.  Unfortunately for the Plaintiff, Virginia state law also does not prohibit “sexual orientation” discrimination and, thus, he could not plead a state law violation.

A different result would likely have occurred had the Plaintiff worked and/or suffered the alleged discrimination in New York.  Although the Second Circuit also does not recognize “sexual orientation” as a protected class under Title VII, the New York City Human Rights Law (NYCHRL) explicitly prohibits discrimination and retaliation based on sexual orientation.  See NYCHRL, Admin. Code § 8-107.  Indeed, in Roberts v UPS, 115 F. Supp. 3d 344 (E.D.N.Y. 2015), Judge Weinstein of the Eastern District of New York upheld the jury’s determination that UPS was liable under the NYCHRL for creating a hostile work environment and for retaliation based on the lesbian Plaintiff’s sexual orientation.  In so doing, the Court upheld the jury’s award of $100,000 (compensatory and punitive damages combined), 115 F. Supp. 3d at *3, and very recently granted an additional award of $150,000 for attorneys’ fees and costs.  Roberts v. UPS, 2016 U.S. Dist. LEXIS 48040, *1, 2016 WL 1441318 (E.D.N.Y. April 6, 2016).

Faced with the reality that a particular venue will be better for one of the parties in these types of cases, companies should take the time to revisit the dispute resolution, forum selection, and choice of law clauses contained in their employee handbooks and employment and independent contractor agreements.

Even more importantly, companies should consider implementing anti-harassment and anti-retaliation workplace training, a low cost measure designed to nurture a supportive work environment and preempt such claims in the first place.


The PLUS Midwest Chapter is hosting an educational event, Gender Identity Issues – Changing Ideas, Changing the Workplace, on September 14 in Chicago. Don’t miss it!

This entry was posted in EPLI, Guest Blog, PL Insurance and tagged , , , , , , , , , by Jonathan Evan Goldberg. Bookmark the permalink.

About Jonathan Evan Goldberg

Jonathan Evan Goldberg is a litigation and employment law partner at FisherBroyles, LLP. An experienced trial lawyer and frequent public speaker, he has represented corporations, LLCs, partnerships, non-profits, law firms, and boards of directors, as well as officers, executives, attorneys, and others, in all aspects of complex commercial litigation, employment litigation, arbitration, and employment law. Mr. Goldberg, a native New Yorker, began his legal career at the international law firm of Baker & McKenzie, followed by a federal clerkship for The Honorable Harvey E. Schlesinger in the Middle District of Florida. Upon his return north, he joined the New York office of Davis Polk & Wardwell as a lateral, during which he successfully prosecuted and first chaired a federal jury trial involving claims of excessive force under Section 1983 (Ruffin v. Fuller). Seeking more trial experience, he joined Kasowitz Benson Torres & Friedman and subsequently joined the labor and employment department of Greenberg Traurig as Of Counsel. He left GT with a group of lawyers in 2008 and became a partner at Seyfarth Shaw, during which he again first chaired and won his second federal jury trial defending claims of retaliatory and discriminatory termination of employment (Riscilli v. Gibson Guitar). Mr. Goldberg rounded out his big firm experience at Dentons, during which he won his third jury trial, successfully defending claims for, among others, breach of contract, fraud, conspiracy, defamation, and tortious interference with contract and prospective economic advantage (Bogage v. Display Group 21). During his 21-year legal career, Mr. Goldberg has litigated hundreds of cases in federal and state courts throughout the United States involving claims of retaliation, discrimination, wrongful termination, fraud, defamation, breach of fiduciary duty, and breach of contract, as well as commercial contract disputes, civil RICO, ERISA, trade secrets and restrictive covenants, corporate governance disputes, minority shareholder disputes, partnership disputes, Madoff counseling and defense, advancement and indemnification proceedings, whistleblower actions (SOX and CEPA), executive compensation counseling, litigation, and arbitration, international litigation and arbitration, antitrust litigation and arbitration, products liability litigation, environmental and toxic tort litigation, and securities fraud. Jonathan has also defended corporate and individual clients in connection with investigations by the US Department of Labor (DOL) and the US Department of Justice (DOJ), and is experienced in bringing and defending against TROs (temporary restraining orders) and preliminary injunctions in federal and state courts. He has also handled a number of state and federal appeals. Jonathan also concentrates on and advises US and multinational corporations and executives in all aspects of employment law, including drafting and negotiating employment and separation agreements, corporate restructurings and reductions in force, employment advice related to corporate transactions, internal corporate investigations, handbooks and policy manuals, sexual harassment and other sensitivity training, protecting against employee raiding and theft of confidential information, and compliance with all federal, state, and local discrimination laws. Jonathan is also a trained and skilled mediator and always explores ways to resolve disputes early so that his clients can focus on their business and personal matters. Mr. Goldberg lives in New York, New York, and is the co-founder, President, and Chairman of the Board of Cherub Improv (www.cherubimprov.org), a non-profit that “performs community service” by providing free, family-friendly improv comedy shows and workshops to those who need it most, including senior citizens, adults and children living with cancer, veterans, hospital and hospice patients, and many others. Mr. Goldberg himself frequently performs improv for underserved-communities and teaches various groups (including lawyers, entrepreneurs, and corporate leaders) the basic principles of improv: listening, being supportive of others’ ideas, feeling confident, embracing creativity, teamwork, and thinking quickly on one’s feet. He also serves on the board of Citileaf (f/k/a Friends House).

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s