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Law 360: Lask's Wins Gay Bias Suit in 2d Circuit for Christiansen v. Omnicom

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2nd Circ. Revives Gay Ad Exec's Bias Suit Against Omnicom

March 27, 2017

Author: Braden Campbell

Summary
The Second Circuit on Monday revived a gay, HIV-positive advertising executive’s suit alleging that an Omnicom Group Inc. subsidiary violated Title VII of the Civil Rights Act by allowing him to be harassed over his perceived effeminacy, although the panel lamented that its precedent barred a finding that he had a claim for mistreatment over his sexuality.

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The Second Circuit on Monday revived a gay, HIV-positive advertising executive’s suit alleging that an Omnicom Group Inc. subsidiary violated Title VII of the Civil Rights Act by allowing him to be harassed over his perceived effeminacy, although the panel lamented that its precedent barred a finding that he had a claim for mistreatment over his sexuality.

The panel said that Matthew Christiansen stated a plausible gender stereotyping claim under the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins and ordered the Southern District of New York to hear that portion of his suit.

The court said the fact that Christiansen focused more on the alleged harassment over his sexual orientation than his being stereotyped based on his sex did not undermine the latter argument. Further, two judges rebuked past findings by the Second Circuit and other appeals courts saying that sexual orientation discrimination is not covered by Title VII, saying they hope to soon have a chance to set the law straight.

“I respectfully think that in the context of an appropriate case our court should consider re-examining the holding that sexual orientation discrimination claims are not cognizable under Title VII,” Judges Robert Katzmann and Margo K. Brodie wrote in a concurring opinion. “Other federal courts are also grappling with this question, and it may well be that the Supreme Court will ultimately address it.”

Christiansen, who was creative director at Omnicom unit DDB Worldwide Communications Group Inc., is alleging that his direct supervisor repeatedly mocked him because of his sexuality and perceived feminine manner. His allegations include that the supervisor drew an image depicting “a naked, muscular Christiansen with an erect penis, holding a manual air pump and accompanied by a text bubble reading, ‘I’m so pumped for marriage equality,'" according to court documents.

Christiansen alleged that Omnicom and his supervisor violated the Americans with Disabilities Act, Title VII and state and local law by discriminating against him because of his HIV-positive status and failure to conform to gender stereotypes.

However, the Southern District of New York dismissed his federal claims and declined to hear his state claims, finding that the Second Circuit’s rulings in Simonton v. Runyon and Dawson v. Bumble & Bumble do not allow sexual orientation discrimination claims under Title VII. The district court also found that Christiansen’s complaint focused more on his sexuality than his effeminacy, undermining his sex stereotyping argument.

Although the panel noted that it has no power to overrule the Simonton and Dawson decisions, it said that the district court erred on the stereotyping claim. Christiansen might be hard-pressed to fight off summary judgment or prove at trial that he was harassed because of his perceived effeminacy, the court conceded, but that’s not the question presented now.

“Even if that were Christiansen’s burden at summary judgment or at trial — and we do not hold here that it is — it is not our task at the motion to dismiss stage to weigh the evidence and evaluate the likelihood that Christiansen would prevail on his Title VII gender stereotyping claim,” the panel said.

Christiansen’s attorney, Susan Chana Lask, praised the decision on Monday, telling Law360 that justice was served.

“It’s a great decision that the circuit needed,” Lask said. “We have a chief judge [in Katzmann] that went out of his way in his concurring decision to outright say Title VII does include sexual orientation, so now employers need to take this seriously.”

Attorneys for Omnicom declined to comment on Monday.

Judges Katzmann, who was on the Simonton panel, and Brodie further opined that Christiansen and others, including the U.S. Equal Employment Opportunity Commission, made three compelling arguments for sexual orientation discrimination falling under Title VII’s reach, including that harassment against the gay, lesbian and bisexual community would not happen “but for” their sex.

Although other appeals courts around the country are bound by similar precedent to the Second Circuit’s Simonton and Dawson decisions, the Seventh Circuit in November reheard en banc a Chicago college professor’s suit alleging that she was passed over for a promotion because she is a lesbian. The court signaled in oral arguments that it could overturn precedent and find that Title VII covers sexual orientation discrimination.

Judges Katzmann, Brodie and Debra Ann Livingston sat on the panel for the Second Circuit.

Christiansen is represented by Susan Chana Lask.

Omnicom is represented by Howard J. Rubin, Shira Franco and Judith Kong of Davis& Gilbert LLP. Christiansen’s supervisor is represented by Rick Ostrove of Leeds Brown Law PC.

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

--Additional reporting by Diana Novak Jones. Editing by Stephen Berg.

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