Title VII Sexual Orientation Discrimination Claim Survives Motion to Dismiss

In Philpott v. State of New York, No. 16 CIV. 6778 (AKH), 2017 WL 1750398 (S.D.N.Y. May 3, 2017) (J. Hellerstein), the court denied defendant’s motion to dismiss plaintiff’s claims for sexual orientation discrimination, hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964.

From the opinion:

[P]laintiff has adequately alleged that he was discriminated against because of his sexual orientation. Under the analysis set forth in both the Second Circuit’s majority concurrence in Christiansen and the Seventh Circuit’s en banc holding in Hively, because plaintiff has stated a claim for sexual orientation discrimination, “common sense” dictates that he has also stated a claim for gender stereotyping discrimination, which is cognizable under Title VII. The fact that plaintiff has framed his complaint in terms of sexual orientation discrimination and not gender stereotyping discrimination is immaterial. I decline to embrace an “illogical” and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination, and in so doing, I join several other courts throughout the country. See Videckis v. Pepperdine Univ., 150 F.Supp.3d 1151, 1159 (C.D. Cal. 2015) (collecting cases) (“Simply put, the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.”). For these reasons, and in light of the evolving state of the law on this question, I hold that plaintiff’s sexual orientation discrimination claim is cognizable under Title VII. …

Defendant argues that even if plaintiff’s sexual orientation discrimination claim is cognizable under Title VII, plaintiff has failed to plausibly state such a claim here. This argument fails. Plaintiff has adequately alleged claims for sexual orientation discrimination, hostile work environment, and retaliation. Plaintiff alleges that over a period of several years, Dr. David Heath, the President of SUNY Optometry, and Gui Albieri, a co-worker of plaintiff, made a range of discriminatory comments directed at plaintiff, that Dr. Heath excluded plaintiff from meetings and projects because of his sexual orientation, and that when plaintiff finally complained about this discrimination, his employment was terminated shortly thereafter.

For example, plaintiff alleges that beginning in 2011, Dr. Heath began making comments about plaintiff based on his sexual orientation, such as calling him “sensitive,” “flamboyant,” and “frenetic.” Compl. ¶ 10. Plaintiff alleges that comments such as these were ongoing and continuous through his employment. In the spring of 2014, Albieri told plaintiff that “we are only work associates, not friends … you know [my wife] and I do not want our children to be around homosexuality … at least not in their formative years.” Compl. ¶ 13. In September 2014, Dr. Heath told plaintiff that “separate but equal treatment of gay people might be best.” Compl. ¶ 14. When Dr. Heath learned that plaintiff had ended a 17-year relationship with his domestic partner, he told plaintiff that “this marriage, or whatever you want to call it, is a distraction to the College.” Compl. ¶ 15. In January 2015, plaintiff informed Dr. Heath that he had developed a chemical dependency that was caused in part by plaintiff’s reaction to what he perceived as a hostile work environment. Dr. Heath told plaintiff that “AIDS had to be managed, well manage this yourself,” and commented that substance abuse was “common” in the gay community. Compl. ¶ 15. Beginning in the spring of 2015, plaintiff alleges that because of his sexual orientation, Dr. Heath began excluding plaintiff from meetings, ignored plaintiff’s proposal’s, and was dismissive of plaintiff’s contributions. Compl. ¶ 16. In April 2015, Dr. Heath compared homosexuality to an eye condition that Dr. Heath suffered from, and claimed that both were “genetic misfires” and that “the question becomes, and certainly the answer is yes, they are being treated with rigorous therapy.” Compl. ¶ 17. Also in 2015, Albieri told plaintiff that “you make a good salary … but your team [gays] doesn’t have kids. You have more than you need. We should switch salaries.” Compl. ¶ 19. The Complaint states additional allegations of discriminatory conduct along these lines.

On September 2, 2015, plaintiff formally complained to Dr. Heath, and stated that Dr. Heath was discriminating against plaintiff on the basis of his sexual orientation and subjecting him to a hostile work environment. Compl. ¶ 22. Plaintiff also made this complaint to Doug Schading of the College of Optometry. Schading was dismissive of plaintiff’s complaint and told plaintiff to “keep me posted but this is between you and [Dr. Heath].” Compl. ¶ 23. On October 15, 2015, plaintiff requested a leave of absence from his employment, but that request was denied. Plaintiff’s leave was ultimately approved, but a few days later he received an email notifying him that his employment had been terminated. Compl. ¶ 26. On October 22, 2015, Schading reached out to plaintiff to “arrive at a mutually agreeable transition from his employment,” but no separation agreement was reached. Plaintiff’s employment was terminated by letter, effective November 20, 2015.

However, the court dismissed plaintiff’s claim under Title IX of the Education Amendments of 1972, since plaintiff was an employee and not a student, and “his claim is quintessentially one for employment discrimination”. The court joined other courts in “hold[ing] that employment discrimination claims are not actionable under Title IX.”

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