In Koke v. Baumgardner, No. 15-CV-9673 (LAK), 2016 WL 93094 (S.D.N.Y. Jan. 5, 2016), the court considered the applicability of Title VII of the Civil Rights Act of 1964 to claims of discrimination based on sexual orientation.
Plaintiff sued in New York state court for alleged discrimination “because of her gender and her actual or perceived sexual orientation” in alleged violation of Title VII of the Civil Rights Act of 1964 and the New York State and City Human Rights laws. Notably, Title VII does not, by its terms, literally prohibit discrimination based on sexual orientattion.
Defendants “removed” the case to federal court; plaintiff sought to bring the case back (or “remand”) to the state court. The court denied plaintiff’s request.
The court explained:
As an initial matter, the Court is mindful of the fact that the Second Circuit has held that Title VII does not extend to discrimination on the basis of sexual orientation although the Supreme Court has “implied that a suit alleging harassment or disparate treatment based upon nonconformity with sexual stereotypes is cognizable under Title VII.” It remains to be seen, therefore, whether plaintiff has stated, or can prove, a Title VII claim related to her professed sexual orientation, given that she probably cannot state a legally sufficient Title VII claim based on sexual orientation alone absent a change in the law. But even if she has not and cannot plead or make out such a claim, this would be a case over which the federal courts “have original jurisdiction” for two reasons.
First, plaintiff sues under Title VII. The jurisdictional inquiry, which is the critical point with respect to removability, is distinct from whether a complaint states a legally sufficient claim for relief except where the complaint is “wholly insubstantial and frivolous.” In other words, a complaint purporting to allege a federal claim is one over which a district court has subject matter jurisdiction unless “the federal right claimed in a complaint [is] insubstantial, unsubstantiated, or frivolous.” Given the door left ajar by Simonton for claims based on “failure to conform to sex stereotypes,” the EEOC’s recent holding that Title VII prohibits discrimination on the basis of sexual orientation, and the lack of a Supreme Court ruling on whether Title VII applies to such claims, I cannot conclude, at least at this stage, that plaintiff’s Title VII claim is “wholly insubstantial and friviolous.” While it may be that the Title VII claim will not survive the rigors of further testing, even to whatever extent it relates to sexual orientation on a theory of non-conformity to sexual stereotype, it nevertheless arises under the laws of the United States.
Second, and quite apart from the foregoing, the complaint explicitly alleges discrimination on the basis of plaintiff’s gender as well as her actual or perceived sexual orientation. The allegation of gender discrimination unquestionably is within the ambit of Title VII and would have made the action removable even if the claim of sexual orientation discrimination were insubstantial or frivolous. (Emphasis added.)
To be clear, this case does not explicitly hold that Title VII is violated when an employer discriminates on the basis of actual or perceived sexual orientation.