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.

Breaking EPL News!

On February 22, 2017, the United States Departments of Education and of Justice jointly issued a guidance letter effectively withdrawing protections under Title IX for transgender students related to school bathroom use.  Notwithstanding the new administration’s “guidance,” on February 27, 2017, in Juliet Evancho, et al. v. Pine Richland School District, et al., the Honorable Mark Hornak of the United States District Court for the Western District of Pennsylvania entered a preliminary injunction enjoining the school district from enforcing any policy, practice, or custom preventing transgender students in that school from using the bathrooms consistent with their gender identities.  Notably, the court did address, in detail, the recently issued guidance letter — and was forced to conclude that the law with respect to Title IX and transgender rights is “so clouded with uncertainty that this Court is not in a position to conclude which party in this case has the likelihood of success on the merits of that statutory claim.”  However, the court was able to conclude that the plaintiffs had established   a likelihood of success on the merits with respect to their claim that the district’s policy “does not afford them equal protection of the law as guaranteed under the Fourteen Amendment” – thus satisfying the requirements for entry of a preliminary injunction.

 

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!