Married on Sunday, Fired on Monday.
Congress Supports Our Historical Federal Appeal for LGBT Equality Everywhere
On June 21, 2016, Matthew Christiansen filed his Second Circuit Brief, Christiansen v. Omnicom Group, Inc. et al., #16-748, arguing that Title VII of the Civil Rights Act of 1964 should protect sexual orientation from workplace harassment.
"At the heart of this appeal is whether Title VII protects those males and females whose sexual orientation is not heterosexual," Susan Chana Lask, Christiansen's lawyer, and a U.S. Supreme Court and civil rights litigator, argued in court papers.
In an unprecedented move, amici briefs supporting Christiansen were filed by the government's Equal Employment Opportunity Commission ("EEOC"), 128 Members of Congress, including Nancy Pelosi and Bernie Sanders ("Congress"), the American Civil Liberties Union ("ACLU") and a coalition of civil rights groups and public interest organizations, LAMBDA and the National Center for Lesbian Rights.
Susan Chana Lask and Matthew Christiansen Set to Change LGBT History
This is the first time members of Congress weighed in on this issue in federal court. "To hold that sexual orientation does not fall under 'sex' in Title VII flies in the face of common sense," their brief argues. The signers of the Congress Brief are also cosponsors of the Equality Act, a legislative effort aimed at updating the nation's laws with respect to LGBT Americans.
The EEOC Brief states that Congress created the EEOC to enforce Title VII and that the EEOC recently ruled that Title VII does protect sexual orientation in Baldwin v. Foxx, 2015 EEOPUB LEXIS 1905, 2015 WL 4397641 (July 16, 2015).
Just one month before the EEOC's Baldwin decision, in June, 2015, Christiansen filed a federal complaint in the Southern District of New York, Christiansen v, Omnicom, et. al. #15-3440, against his employer Omnicom Group, Inc. (“Omnicom”), advertising agency, DDB Worldwide Communications Group, Inc.(“DDB”) and Peter Hempel, Chris Brown, Joe Cianciotto.
The complaint alleges that Christiansen's supervisor Cianciotto created a "pervasive hostile workplace atmosphere" in part by drawing sexually explicit pictures of employees fornicating with each other, called them “gay”, “bottom” “poof” and accused them of being murderers of the children they sexually abuse, forced them to discuss their “gay” sex lives on a daily basis and accused gay males of having AIDS.
Like victims of the Stockholm Syndrome, Christiansen says that "I remember at times making an effort to connect with Joe so he would magically maybe see me as normal and not make fun of me anymore."
On March 9, 2016, Southern District Judge Failla found the allegations “reprehensible” by any metric, and asked the Second Circuit to recall its archaic holding in Simonton v. Runyon, 232 F.3d 33 (2d Cir. N.Y. 2000), prohibiting Title VII protection to homosexuals, and which constrained her from ruling in Christiansen's favor. Christiansen v. Omnicom Grp., Inc., 2016 U.S. Dist. LEXIS 29972,*39-46, (S.D.N.Y. Mar. 9, 2016).
On March 9, 2016, within an hour of that decision, Ms. Lask filed a Notice of Appeal to the Second Circuit.
On June 21, 2016, Christiansen's Brief was filed. Ms. Lask argues that equality should be the rule not just in marriage, but in the workplace; otherwise, the Second Circuit's recent decision in Windsor and the Supreme Court's Obergefell are meaningless if same-sex couples are “married on Sunday, fired on Monday.”
In Windsor and Obergefell the courts gave homosexuals the right to marry (on Sunday), but under the Second Circuit's archaic Simonton they can be fired (on Monday) because they have no Title VII protection at work.
"To close that gap, it stands to reason that the equality this Circuit advanced with same-sex marriage in Windsor would extend to employment by including sexual orientation as protected “sex” in Title VII.", Lask argues in Christiansen's brief.
The gap is closing as on October 11, 2016, the Seventh Circuit vacated its recent decision in Hively v. Ivy Tech Comm. College, No. 15-1720, 2016 WL 4039703 (7thCir. July 28, 2016), that denied Tite VII protection to LGBT employess.
The next day, on October 12, 2016, Ms. Lask filed her Reply Brief explaining that Hively was reversed, and urging the appellate court that it too can reverse its own precedent from 2000 in Simonton, and arguing that Omnicom is wrong to claim that only an act of Congress can amend Title VII to cover discrimination based on sexual orientation.
“The truth is that someone has to be the leader in civil rights, and it does not have to be Congress in this case,” Lask argued.
On January 20, 2017, the Second Circuit held oral argument. The Circuit made clear that what happened to Christiansen was wrong, but that his relief would be under their current protection of sexual stereotyping discrimination because it would take a full panel, en banc, to overturn their Simonton precedent.
On March 27, 2017, the Second Circuit granted Christiansen relief under sexual stereotyping with a historic concurring decision by Chief Judge Katzmann and Justice Brodie finding that this Circuit should protect sexual orientation discrimination under Title VII. Since relief was granted to Christiansen, an en banc hearing of a similar case that lost and was denied any relief was heard September 26, 2017.