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.

Price Discrimination? Racial Discrimination?

An interesting question posed by our friends at the Freakonomics blog – is offering discounts by name (in this case names that would likely be more common with Caucasians) represent racial discrimination?

Click the link below for the full post, and don’t miss Freakonomics author (and author of the linked post) Stephen J. Dubner as he speaks at the 2013 PLUS International Conference in November.

Price Discrimination? Racial Discrimination?.

Woman Donates Kidney to Boss, is Fired

Driving in to work the other morning I heard about this story on the radio, and couldn’t help but think of the EPLI nightmare it potentially presents (and its potential as a Fall Through the Cracks Friday post). From the “no good deed goes unpunished” file…

A woman in New York donated her kidney to help save the life of her boss, who was in need of a transplant. While the woman was not a match for her boss, she did go through with donating her kidney to another recipient in need which, in turn, moved her boss up the transplant list. Fantastic gesture to be sure, but here is where the story gets a bit difficult. From the article:

In January 2011, Brucia called Stevens into her office and asked if she was serious about donating her kidney. Brucia’s donor had backed out.

Stevens told ABCNews.com: “I said, ‘Yeah, sure. This isn’t a joking matter.’ I did not do it for job security. I didn’t do it to get a raise. I did it because it’s who I am. I didn’t want her to die.”

After returning to work, Stevens alleges that Brucia began to attack her. A few days after her return, Stevens, still recovering from surgery, was ill and went home. Stevens claims that Brucia called her and antagonized her at home.

She told The New York Post, “She . . . said, ‘What are you doing? Why aren’t you at work?’ I told her I didn’t feel good. She said, ‘You can’t come and go as you please. People are going to think you’re getting special treatment.’

 

When Brucia returned, Stevens claims that she berated her in front of other employees and transferred her to a dealership 50 miles away where she was ultimately pushed out of the company.

A complaint has been filed by Stevens with the New York Human Rights Commission.

Have a great week! Watch for two new sessions from the 2012 PLUS D&O Symposium to be posted to PLUS blog next week.