In Garvey v. Childtime Learning Ctr., No. 5:16-CV-1073, 2017 WL 1378179 (N.D.N.Y. Apr. 13, 2017), the Judge McAvoy adopted Magistrate Judge Baxter’s Report and Recommendation that plaintiff’s discrimination claim under Title VII of the Civil Rights Act of 1964 – based on the failure to hire him due to his perceived sexual orientation – be dismissed.
This decision is instructive on the critical distinction between (1) discrimination because of a plaintiff’s sexual orientation (not actionable under Title VII), and (2) so-called “gender stereotyping” (actionable under Title VII).
The court cited and discussed the Second Circuit’s recent decision in Anonymous v. Omnicom Group, Inc., 2017 WL 1130183 (2d Cir. Mar. 27, 2017), which held that although Title VII does not prohibit discrimination based on sexual orientation, the plaintiff in that case (an openly gay man) may proceed under Title VII on a “gender stereotyping” theory.
Judge McAvoy wrote:
Despite the [Second] Circuit’s guidance on the application of Simonton [v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000)] and Dawson [v. Bumble & Bumble, 398 F.3d 211, 217-18 (2d Cir. 2005)] in the context of a gender stereotyping case arising from a plaintiff’s sexual orientation, nothing in the [amended complaint], even giving it the liberal reading accorded pro se complaints, indicates that plaintiff was denied employment because of gender stereotyping. Rather, plaintiff repeatedly alleges that he was denied employment because he was gay. (Emphasis added.)
To support this conclusion, the court cited the following allegations from plaintiff’s amended complaint:
- ¶ 6(F)(“Discrimination based on gay male of 36 years old.”);
- ¶ 15 (“I request $100,000 due to malicious and intentional discrimination based on being a gay male.”);
- ¶ I (“First I am re-amended [sic] my complaint under retaliation and refusal to hire me based on being a homosexual man, and being 36 years old. Childtime adversely [sic] did not hire me based on being a homosexual man.”);
- ¶ IX (“Childtime did not hire me because they assumed obvious or not I was a homosexual male by calling me ‘creepy,’ and equating [sic] gay males are not acceptable for their school environment. As if I would be harmful to the children.”);
- ¶ X (“In ending[,] Childtime has created a divide in hiring me based on me being a homosexual man, after interviewing me and causing multiple distress [sic] including the police [sic], for reason [sic] I still do not know, but also destroying future employment.”).
Judge McAvoy concluded that “the [Second] Circuit’s refinement of the application of Simonton and Dawson in the context of gender-based stereotype claims involving a homosexual plaintiff has no impact on the [amended complaint] because plaintiff did not raise a plausible gender-based stereotype claim in that pleading.”
However, noting that “plaintiff submitted a proposed [second amended complaint] that facially invokes Price Waterhouse [v. Hopkins, 490 U.S. 228, 251-52 (1989)] and appears to present a gender-based stereotype claim arising from his perceived sexual orientation,” the court dismissed plaintiff’s Title VII discrimination claim without prejudice. (A review of the docket reveals that plaintiff did in fact file a second amended complaint.)