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!

Is Private/Non-Profit D&O Coverage Under Priced?

From the 2015 PLUS D&O Symposium session “Who Me? I Didn’t Do Anything…Wrong,” moderator Jeff Lattmann (Beecher Carlson) and panelists Liz Olsson, RPLU (Wells Fargo Insurance) and Shelley Norman (AIG) discuss the differences in premium increases between private and non-profit D&O clients.

PLUS members can view this entire Conference session in the PLUS Multimedia Library.

Emerging Challenges for Healtchare Executives

In this clip from the 2012 PLUS Medical PL Symposium session entitled “Emerging Challenges for Healthcare Executives” Kimeberly J. Delaney, RPLU (Allied World Assurance Company) looks at the 4 biggest underwriting considerations in the market presently.

For more Medical PL coverage don’t miss the free webinar on June 5 “HIPAA for Risk Managers: Meet the New HIPAA.”

PLUS members can view this entire educational session by visiting www.plusweb.org/education/multimedia. You must be a member and logged-in to the website to view the multimedia content.

Session panelists not featured in this clip: James Fasone, RPLU (Alliant Healthcare Solutions), Paul Murphy (King & Spalding), and David Watson (National Surgical Hospitals).