In Sanderson v. Leg Apparel et al, 2020 WL 3100256 (SDNY June 11, 2020), the court, inter alia, held that plaintiff sufficiently alleged discrimination based on perceived sexual orientation under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law. (I addressed the court’s assessment of plaintiff’s race discrimination case here.)
The court summarized the legal framework for and elements of this claim:
The standard for a plaintiff to allege a prima facie case of gender discrimination is the same as for a claim for race discrimination. To reiterate, a plaintiff must allege (1) that she is a member of a protected class, (2) that she was qualified for the position … (3) that she suffered an adverse employment action, and (4) [that she] can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation.
As to the first element, the court concluded that plaintiff adequately alleged that he is a member of a protected class under federal law (in light of the Second Circuit’s en banc decision in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), which held that “sexual orientation discrimination is a form of sex discrimination” under Title VII), as well as under the New York State and City Human Rights Laws (which explicitly prohibit discrimination based on sexual orientation).
The court rejected defendants’ argument that because plaintiff did not allege that he was not heterosexual he could not bring a sex discrimination claim under Title VII. Specifically, the court – after reviewing pertinent case law and noting that the Zarda plurality based its opinion on “the notion that sexual orientation discrimination is a form of sex stereotyping” – saw no reason for distinguishing between “actual” and “perceived” sexual orientation, and concluded that “the mere fact that [plaintiff] has not alleged that he is not heterosexual does not compel dismissal of his claims.”
It also held that plaintiff alleged the other three elements necessary to satisfy his pleading burden:
He has alleged that he was otherwise qualified for his job as a planner. He has also alleged that he suffered an adverse employment action because he was terminated. And Sanderson alleges that he was terminated just days after Romanino made a derisive remark about his sexual orientation.
This, according to the court, “suffices to meet Sanderson’s “minimal burden” to suggest that he was terminated because of Romanino’s perception of his sexual orientation.”