Distinguishing Between “Sexual Orientation Discrimination” and “Gender Stereotyping”, Court Dismisses Gay Man’s Discrimination Claim

In Cargian v. Breitling USA, Inc., No. 15 CIV. 01084 (GBD), 2016 WL 5867445 (S.D.N.Y. Sept. 29, 2016), U.S. District Judge George B. Daniels dismissed the complaint filed by plaintiff, a gay man, alleging claims of gender, sexual orientation, and age discrimination. (You can read about plaintiff’s lawsuit here.)

Gender Discrimination/Stereotyping

As to plaintiff’s Title VII gender discrimination allegations, the court outlined the legal landscape:

The Second Circuit has held that Title VII does not proscribe discrimination because of sexual orientation. …

Courts in th[e Second] Circuit must distinguish between claims based on discrimination targeting sexual orientation, which are not cognizable under Title VII, and cognizable claims based on discrimination targeting nonconformity with gender stereotypes. [] The Circuit has warned that a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII.[] [D]istrict courts in this Circuit have repeatedly rejected attempts by homosexual plaintiffs to assert employment discrimination claims based upon allegations involving sexual orientation by crafting the claim as arising from discrimination based upon gender stereotypes.[] Despite significant changes in the broader legal landscape since the Second Circuit’s decision in Simonton [v. Runyon, 232 F.3d 33 (2d Cir. 2000)], the prevailing law in this and every other Circuit to consider the question is that, in the Title VII context, courts must distinguish between actionable gender-stereotyping claims and non-actionable sexual orientation claims.

Applying the law to the facts, the court explained:

In his opposition brief, Plaintiff argues that he as a gay man was treated less well than straight men because, based on the fact that [sic] as a gay man he was stereotypically viewed as one of the girls by Prissert; and the workplace was permeated with a macho atmosphere that excluded ‘the girls’ from the president’s inner circle.[] Plaintiff’s argument conflates a sexual orientation discrimination claim with a gender-stereotyping claim. Such claims are not actionable under current Second Circuit law. …

Moreover, Plaintiff has failed to show that he suffered an adverse employment action under circumstances giving rise to an inference of intentional discrimination based upon Plaintiff’s membership in a protected class. In support of his argument that he was treated as one of the girls, Plaintiff alleges (1) frequent conversations about sports at the office from which he was excluded, (2) a business trip when he was assigned to share a hotel room with a female colleague, and (3) Breitling’s use of images in its marketing campaigns that Plaintiff alleges are degrading to women and are surely not pin ups that would entice gay men. []

Frequent conversations about sports at an office do not constitute discrimination based upon gender stereotypes. Moreover, Plaintiff had voluntarily shared a hotel room with that same female colleague on multiple occasions on vacation, and Plaintiff had emailed a Breitling employee saying that he and the female colleague had shared rooms multiple times before Prissert started at Breitling. [] Finally, Plaintiff has failed to show how Breitling’s marketing materials are in any way relevant to the employment actions taken against him.

There is no record evidence on which a rational finder of fact could conclude that Defendant discriminated against Plaintiff in the terms and conditions of Plaintiff’s employment on the basis of Plaintiff’s gender. Plaintiff’s first cause of action for gender discrimination in violation of Title VII is therefore DISMISSED.

Age Discrimination

The court also dismissed plaintiff’s federal (Age Discrimination in Employment Act, or ADEA) age discrimination claim, noting that (inter alia) the only allegation in plaintiff’s complaint relating to age discrimination was that a younger man was assigned plaintiff’s sales territory and that six of seven other sales representatives who shared plaintiff’s title and position were over the age of forty (and thus in the ADEA’s protected class) when plaintiff was terminated.

Share This: