Ad Exec Signals En Banc Appeal Of 2nd Circ. Gay Bias Loss

April 06, 2017 Author: Braden Campbell

Summary
A gay Omnicom Group Inc. unit ad executive asked the Second Circuit on Wednesday for more time to petition for an en banc rehearing that could overturn precedent putting sexual orientation bias out of federal reach, a day after the Seventh Circuit’s landmark ruling that bias against gays is illegal under Title VII.

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A gay Omnicom Group Inc. unit ad executive asked the Second Circuit on Wednesday for more time to petition for an en banc rehearing that could overturn precedent putting sexual orientation bias out of federal reach, a day after the Seventh Circuit’s landmark ruling that bias against gays is illegal under Title VII.

Attorney Susan Chana Lask told the court that she has been in trial since late March and will need until April 28 to craft a petition for the court to rehear Matthew Christiansen’s suit alleging that he was harassed by his supervisor because of his sexuality.

A Second Circuit panel in March revived Christiansen’s claim that he was harassed for his perceived effeminacy under the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, which said discrimination for failure to comport to gender stereotypes is illegal under Title VII. However, the court declined to revive Christiansen’s allegations that he was harassed for being gay, citing precedent stating that sexual orientation bias is not covered by Title VII. Similar precedent exists in other circuit courts.

In a concurring opinion, Judge Robert Katzmann suggested that the court’s 2000 decision in Simonton v. Runyon and 2005 decision in Dawson v. Bumble & Bumble misunderstood Title VII, detailing three arguments under which sexual orientation discrimination could fall under the statute’s ban on discrimination “based on … sex.” Judge Katzmann, whose opinion was co-signed by Judge Margo K. Brodie, said he hoped for an “appropriate occasion” that would allow the Second Circuit or another court to revisit their precedent.

An en banc rehearing of Christiansen’s suit would provide the court such an opportunity. Should the Second Circuit grant an en banc rehearing, it would be following a lead set last fall by the Seventh Circuit. The Chicago appeals court tossed aside precedent barring teacher Kimberly Hively’s claim that she was denied promotions because she’s a lesbian after a three-judge panel decried a “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday” when it affirmed dismissal of her case in July.

The full Seventh Circuit ruled 8-3 on Tuesday that employers cannot discriminate on the basis of sexual orientation under Title VII, becoming the first appeals court in the country to do so. The majority cited several related U.S. Supreme Court cases and ruled that Hively’s claim — that but for her gender, the South Bend, Indiana-based Ivy Tech Community College would have kept her on staff — is valid under Title VII.

This ruling and Judge Katzmann’s concurrence give Christiansen a “very strong position” for receiving en banc consideration, Lask told Law360 on Thursday.

The Eleventh Circuit may also wade into the growing debate over whether the circuit consensus on sexual orientation discrimination is wrong. Last week, former Georgia Regional Hospital security guard Jameka Evans asked the Eleventh Circuit to rehear her case alleging that she was harassed because she’s a lesbian after the court said its precedent barred her claim. Evans’ counsel, LGBT rights legal group Lambda Legal, also represents Hively.

Attorneys for Omnicom did not immediately respond Thursday to requests for comment.

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 Sara Ziegler.