Sex Stereotyping Discrimination Claims in the Second Circuit on Hold

In Lorber v. Lew, 2017 U.S. Dist. LEXIS 21189, *14-15 (S.D.N.Y. Feb. 13, 2017), plaintiff — an openly gay IRS employee — filed suit against the former Secretary of the Treasury alleging discrimination and retaliation in violation of Title VII based on his gender.  Among other things, plaintiff alleged that he had been passed over for promotions, excluded from meetings, and given poor performance reviews for discriminatory and retaliatory reasons.  Although the Court granted the defendants’ motion to dismiss plaintiff’s hostile work environment claim, the court refused to dismiss plaintiff’s claim for discrimination under Title VII for nonconformity with male sex stereotypes.

Significantly, although plaintiff admitted (in response to the defendants’ motion to dismiss) that rulings from the Second Circuit Court of Appeals foreclose Title VII claims based exclusively on sexual orientation discrimination, the court in Lorber noted that “the Second Circuit has recently held oral argument in two cases that present the issue of whether Title VII protects against sexual orientation discrimination. See Zarda v. Altitude Express, No. 15-3775 (2d Cir. argued Jan. 5, 2017); Christiansen v. Omnicom Group, Inc., et al., No. 16-748 (2d Cir. argued Jan. 20, 2017).”  Thus, the court stayed adjudication of the plaintiff’s sex stereotyping claim pending the Second Circuit’s rulings.

While timing may not be “everything,” it certainly can make a huge difference for the parties.  In Lorber, plaintiff’s Title VII claim survived solely on the fact that the determinative legal issues are expected to be resolved shortly by the Second Circuit.

This entry was posted in EPLI, Guest Blog, Uncategorized 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).

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