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Law 360: Lask's Gay Bias Case Cited In 2nd and 7th Circuits

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11th Circ. Gay Bias Ruling Cited In 2nd, 7th Circ. Cases

March 16, 2017

Author: Vin Gurrieri

Summary
An Illinois college professor alleging anti-gay bias told the Seventh Circuit on Wednesday that her employer misread a recent ruling in the Eleventh Circuit that Title VII doesn’t protect against sexual orientation discrimination, the same day that an ad agency being sued by a gay executive notified the Second Circuit about that same ruling.

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An Illinois college professor alleging anti-gay bias told the Seventh Circuit on Wednesday that her employer misread a recent ruling in the Eleventh Circuit that Title VII doesn’t protect against sexual orientation discrimination, the same day that an ad agency being sued by a gay executive notified the Second Circuit about that same ruling.

At the heart of the various disputes is a ruling issued March 10 by a split Eleventh Circuit panel that discrimination based on homosexuality is not prohibited by Title VII of the Civil Rights Act. That ruling, which may be reviewed en banc, mostly upheld the dismissal of a suit by Jameka Evans, a former Georgia Regional Hospital security guard who claimed she was harassed because she’s a lesbian and didn’t conform to gender norms.

Whether the statute’s general prohibition against sex discrimination covers bias that is based on sexual orientation has developed into a hot-button issue that had led numerous other circuits, including the Second and Seventh, to grapple with revising their own precedents to the one the Eleventh Circuit upheld in Evans’ case.

Employers accused of Title VII violations in the cases currently pending before the Manhattan- and Chicago-based appellate courts took notice of the Eleventh Circuit’s decision.

On Monday, Ivy Tech Community College in South Bend, Indiana, which is embroiled in a dispute with professor Kimberly Hively, notified the Seventh Circuit of the Evans ruling, categorizing it as saying that Title VII does not cover sexual orientation claims, but does cover gender nonconformity claims.

But Hively, who is trying to revive her suit alleging she was repeatedly passed over for promotions because she is gay, took issue with that depiction Wednesday by telling the appellate court that it warrants clarification.

Hively said in her letter that the Eleventh Circuit largely chose to ignore the U.S. Supreme Court’s landmark 1989 ruling in Price Waterhouse v. Hopkins that expanded Title VII’s protections against sex discrimination to include discrimination based on gender stereotypes.

The Eleventh Circuit also didn’t consider the impact of the high court’s 1998 decision in Oncale v. Sundowner Offshore Services Inc., which held that Title VII could be extended to cover same-sex harassment, Hively said.

“What Evans held to be ‘foreclose[d]’ … was not Title VII’s applicability to ‘sexual orientation claims’ (as Ivy Tech’s letter states) but instead its applicability to claims of ‘discrimination because of sexual orientation,’” Hively added. “This distinction was important to [Eleventh Circuit] Judge [William] Pryor, who posited [in a concurring opinion] that discrimination based solely on the target’s ‘homosexuality’ or gay ‘status’ is not actionable, while discrimination based on any gender-nonconforming ‘behavior’ is actionable.”

Judge Pryor’s position, when coupled with a dissenting opinion in the Evans case by Circuit Judge Robin S. Rosenbaum, “means that two of the three Evans judges view Title VII as applicable to all ‘sexual orientation claims’ where the discrimination is not exclusively status-based,” Hively said.

Meanwhile, a similar back-and-forth is developing before the Second Circuit, which is considering whether to reverse a nearly 20-year-old precedent that sexual orientation discrimination isn’t covered under Title VII.

That case involves Matthew Christiansen, an HIV-positive advertising executive who claims his supervisor at DDB Worldwide Communications Group Inc., a subsidiary of Omnicom Group Inc., harassed and discriminated against him by circulating lewd pictures around the office and on Facebook depicting Christiansen performing vulgar acts and started false rumors that Christiansen had AIDS. The Equal Employment Opportunity Commission has sided with Christiansen in the case.

On Wednesday, Omnicom informed the Second Circuit about the Eleventh Circuit’s ruling, saying the Evans ruling relied on that circuit’s precedent to hold that Title VII doesn’t cover sexual orientation discrimination claims.

“This decision supplements the federal circuit court decisions cited in appellees’ brief finding that Title VII does not currently prohibit sexual orientation discrimination,” Omnicom said.

An attorney for Christiansen said she would be sending the Second Circuit a response to Omnicom’s letter promptly.

Hively is represented by Gregory Nevins and Omar Gonzalez-Pagan of Lambda Legal Defense & Education Fund.

Ivy Tech is represented by Adam Lee Bartrom, Jason T. Clagg and John Robert Maley of Barnes & Thornburg LLP.

Christiansen is represented by Susan Chana Lask of the Law Offices of Susan Chana Lask.

Omnicom is represented by Howard J. Rubin, Shira Franco and Judith Kong of Davis & Gilbert LLP. 

The Seventh Circuit case is Kimberly Hively v. Ivy Tech Community College, case number 15-1720, in the U.S. Court of Appeals for the Seventh Circuit.

The Second Circuit case is Christiansen v. Omnicom Group Inc. et al., case number 16-748, in the U.S. Court of Appeals for the Second Circuit.

The Eleventh Circuit case is Jameka Evans v. Georgia Regional Hospital et al., case number 15-15234, in the U.S. Court of Appeals for the Eleventh Circuit.

--Additional reporting by Diana Novak Jones and Adam Lidgett. Editing by Aaron Pelc.

Tags: omnicom, matthew christiansen, LGBT, title VII, sexual orientation