In Christensen v. Omnicom Group Inc., No. 16-748, 2017 WL 1130183 (2d Cir. Mar. 27, 2017), the Second Circuit overturned a lower court decision that dismissed (under Federal Rule of Civil Procedure 12(b)(6)) the discrimination claim by plaintiff, an openly gay man, under Title VII of the Civil Rights Act of 1964. In sum, the Second Circuit declined to explicitly hold that “sexual orientation” is included in Title VII’s prohibition on discrimination “because of … sex”. However, it permitted that claim to proceed under a “gender stereotyping” theory.
The facts, as summarized by the court:
Christiansen, an openly gay man who is HIV–positive, worked as an associate creative director and later creative director at DDB Worldwide Communications Group, Inc., an international advertising agency and subsidiary of Omnicom Group, Inc. Christiansen’s complaint alleged that his direct supervisor engaged in a pattern of humiliating harassment targeting his effeminacy and sexual orientation. According to Christiansen, in the spring and summer of 2011, his supervisor drew multiple sexually suggestive and explicit drawings of Christiansen on an office whiteboard. The most graphic of the images depicted a naked, muscular Christiansen with an erect penis, holding a manual air pump and accompanied by a text bubble reading, “I’m so pumped for marriage equality.” J.A. at 16 ¶ 34.C; J.A. at 42. Another depicted Christiansen in tights and a low–cut shirt “prancing around.” J.A. at 16 ¶ 34.A; J.A. at 40. A third depicted Christiansen‘s torso on the body of “a four legged animal with a tail and penis, urinating and defecating.” J.A. at 16 ¶ 34.B; J.A. at 41. Later in 2011, Christiansen’s supervisor circulated at work and posted to Facebook a “Muscle Beach Party” poster that depicted various employees’ heads on the bodies of people in beach attire. J.A. at 13 ¶ 30. Christiansen’s head was attached to a female body clad in a bikini, lying on the ground with her legs upright in the air in a manner that one coworker thought depicted Christiansen as “a submissive sissy.” J.A. at 13 ¶ 30; J.A. at 43. Christiansen’s supervisor also made remarks about the connection between effeminacy, sexual orientation, and HIV status. The supervisor allegedly told other employees that Christiansen “was effeminate and gay so he must have AID [S].” J.A. at 15 ¶ 30. Additionally, in May 2013, in a meeting of about 20 people, the supervisor allegedly told everyone in the room that he felt sick and then said to Christiansen, “It feels like I have AIDS. Sorry, you know what that’s like.” J.A. at 17 ¶ 38. At that time, Christiansen kept private the fact that he was HIV–positive.
The district court held that plaintiff’s claim was a sexual orientation discrimination claim that was not cognizable under Title VII under Second Circuit precedent – namely Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) – and dismissed it under Federal Rule of Civil Procedure 12(b)(6).
The Second Circuit noted that it was “bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court” and therefore that it was powerless to reconsider its Simonton and Dawson decisions.
In reaching its conclusion that plaintiff stated a claim under a “gender stereotyping” theory, the Second Circuit explained:
[W]e disagree with the district court’s conclusion that Christiansen failed to plausibly allege a Title VII claim based on the gender stereotyping theory of sex discrimination articulated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which is also binding on this panel. In Price Waterhouse, the female plaintiff, a senior manager at an accounting firm, was described as “macho” and “masculine” and informed that “to improve her chances for partnership, … [she] should walk more femininely, talk more femininely, dress more femininely, wear make–up, have her hair styled, and wear jewelry.” After her office declined to nominate her for partnership, she sued under Title VII alleging sex discrimination. Six members of the Supreme Court held that adverse employment action rooted in “sex stereotyping” or “gender stereotyping” was actionable sex discrimination.
Here, as noted above, Christiansen’s complaint identifies multiple instances of gender stereotyping discrimination. His complaint alleges that his supervisor described him as “effeminate” to others in the office, J.A. at 15 ¶ 30, and depicted him in tights and a low–cut shirt “prancing around,” The complaint further alleges that the “Muscle Beach Party” party poster, depicting Christiansen’s head attached to a bikini–clad female body lying on the ground with her legs in the air, was seen by at least one coworker as portraying Christiansen “as a submissive sissy.” The district court acknowledged these facts but concluded that because Christiansen’s complaint contained fewer allegations about his effeminacy than about his sexual orientation, the allegations about his effeminacy did not “transform a claim for discrimination that Plaintiff plainly interpreted—and the facts support—as stemming from sexualorientation animus into one for sexual stereotyping.” The district court also opined that permitting Christiansen’s Title VII claim to proceed “would obliterate the line the Second Circuit has drawn, rightly or wrongly, between sexualorientation and sex–based claims.”
The district court’s decision draws attention to some confusion in our Circuit about the relationship between gender stereotyping and sexualorientation discrimination claims. Some district courts in this Circuit have viewed Simonton and Dawson as making it “especially difficult for gay plaintiffs to bring” gender stereotyping claims. … Such cases misapprehend the nature of our rulings in Simonton and Dawson. While Simonton observed that the gender stereotyping theory articulated in Price Waterhouse “would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine,” it acknowledged that, at a minimum, “stereotypically feminine” gay men could pursue a gender stereotyping claim under Title VII (and the same principle would apply to “stereotypically masculine” lesbian women). Simonton and Dawson do not suggest that a “masculine” woman like the plaintiff in Price Waterhouse, has an actionable Title VII claim unless she is a lesbian; to the contrary, the sexual orientation of the plaintiff in Price Waterhouse was of no consequence. In sum, gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals. Simonton and Dawson merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.
The gender stereotyping allegations in Christiansen’s complaint are cognizable under Price Waterhouse and our precedents. Christiansen alleges that he was perceived by his supervisor as effeminate and submissive and that he was harassed for these reasons. Furthermore, the harassment to which he was subjected, particularly the “Muscle Beach Party” poster, is alleged to have specifically invoked these “stereotypically feminine” traits.
The district court commented that much more of the complaint was devoted to sexual orientation discrimination allegations than gender stereotyping discrimination allegations and that it thus might be difficult for Christiansen to withstand summary judgment or prove at trial that he was harassed because of his perceived effeminacy and flouting of gender stereotypes rather than because of his sexual orientation. Even if that were Christiansen’s burden at summary judgment or at trial—and we do not hold here that it is—it is not our task at the motion to dismiss stage to weigh the evidence and evaluate the likelihood that Christiansen would prevail on his Title VII gender stereotyping claim. Instead, we assess whether he has state [d] a claim to relief that is plausible on its face. We hold that he has.