Religious, Sexual Orientation Claims Properly Dismissed Against Vimeo Following Deletion of Account Promoting “Sexual Orientation Change Efforts” Content

In Domen v. Vimeo, Inc., 2021 WL 4352312 (2d Cir. Sept. 24, 2021) (Summary Order), the U.S. Court of Appeals for the Second Circuit, inter alia, affirmed the dismissal of plaintiff’s sexual orientation and religion-based discrimination claims under the New York State Human Rights Law.

Plaintiff, James Domen (the president and founder of the non-profit organization Church United) alleges that he “was a homosexual” for three years but then, “because of his desire to pursue his faith in Christianity, he began to identify as a former homosexual.” Defendant Vimeo – an online video hosting platform – deleted Church United’s account because of Church United’s violation of Vimeo’s published content policy barring the promotion of “sexual orientation change efforts” (a/k/a “SOCE”). Plaintiffs argue that Vimeo discriminated against them based on their religion and sexual orientation – which they term “former” homosexuality – by deleting Church United’s entire account, as opposed to only the videos at issue, and by permitting other videos with titles referring to homosexuality to remain on the website.

The district court held that plaintiffs’ claims were barred by Section 230 of the Communications Decency Act and that, even if that statute did not bar all of their claims, they failed to state a claim. The Second Circuit agreed, and held that plaintiffs’ “conclusory allegations are insufficient to raise a plausible inference of discrimination and they have failed to state a claim under” the New York Sexual Orientation Non-Discrimination Act (or the California Unruh Act), and affirmed the district court’s judgment.

In order to state a discrimination claim under the New York State Human Rights Law, plaintiffs were required to “allege facts sufficient to create an inference of discriminatory intent on account of the plaintiff’s membership in a protected class.” In finding that they did not do so, the court explained:

Appellants have not met that standard. Instead, they simply allege that their content was removed for espousing pro-SOCE views and because of Domen’s sexual orientation and religion. They make only conclusory allegations suggesting that Vimeo removed their content for reasons other than violation of the Terms of Service.

On appeal, Appellants argue that the amended complaint sufficiently alleged discriminatory intent by identifying “similar videos about sexual orientation and religion posted by other users that were not deleted.” They further argue, without pointing to any factual basis, that “[b]y permanently banning Church United and Domen from its platform, as opposed to censoring the five videos, it is evident that Vimeo discriminated not merely against a message, but against Church United and Domen based on sexual orientation and religion.”

An inference of discriminatory intent may be shown through a comparison to similarly situated persons not sharing a plaintiff’s protected characteristic who were treated preferentially. See, e.g., Stucky v. Wal-Mart Stores, Inc., No. 02-CV-6613 CJS(P), 2005 WL 2008493, at *6 (W.D.N.Y. Aug. 22, 2005). However, the allegations about these “similar videos” in the amended complaint are vanishingly thin and lack the substance required to support an inference of discriminatory intent. The amended complaint merely alleges, on information and belief, that other videos containing references to LGBTQ sexual orientations and gender identities were permitted to remain on the site. See App’x at 51. That is not enough. See, e.g., Henry v. NYC Health & Hosp. Corp., 18 F. Supp. 3d 396, 408 (S.D.N.Y. 2014) (aside from allegations that comparators and plaintiff had the same hair color, the complaint “fail[ed] to describe who these people are, what their responsibilities were, how their workplace conduct compared to [plaintiff’s], or how they were treated,” and therefore failed to state a claim for discrimination); Morris v. Yale Univ. Sch. of Med., 477 F. Supp. 2d 450, 460 n.2 (D. Conn. 2007) (“To be ‘similarly situated,’ the individuals with whom plaintiff attempts to compare himself must be similarly situated in all material respects.” (citation and alterations omitted)); Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (“[T]he standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff’s and comparator’s cases….”). Furthermore, we have difficulty understanding what inference in support of their claim can reasonably be drawn from Plaintiffs’ allegation that Vimeo continued to host a video entitled “The Gay Dad,” or “LGBTQ barber in NYC.” They highlight, apparently as evidence of discriminatory intent, that “Vimeo did not provide Plaintiffs with an explanation for the distinction between Plaintiffs’ videos relating to sexual orientation, testimonials, events relating to sexual orientation, and the thousands of similar videos related to LGBTQ and sexual orientation.” But Vimeo cited its terms of service to Plaintiffs when it closed the account; the absence of an additional explanation from the platform provider does not save Plaintiffs’ complaint.

[Citations omitted; cleaned up.]

Accordingly, the court concluded that plaintiff’s “claims must be dismissed because they fail to state a claim for religious or sexual orientation-based discrimination.”

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