The Line Blurs: Discrimination and Stereotyping
Employers are best advised to maintain a zero-tolerance policy regarding discrimination based on gender stereotyping or sexual orientation.
In Christiansen v. Omnicom Group Inc., the Court of Appeals for the 2nd Circuit reaffirmed its decisions holding that Title VII’s prohibition on sex discrimination does not reach discrimination or harassment based on sexual orientation.
The 2nd Circuit, however, reversed the decision of the trial court granting the employer’s motion to dismiss with regard to Christiansen’s claim for gender stereotyping. Citing the U.S. Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the court found that Christiansen had stated a claim for sex discrimination based on gender stereotyping. In his complaint, Christiansen had alleged that his supervisor described him as “effeminate,” drew caricatures of him “prancing around,” and otherwise portrayed him negatively. The trial court found that the majority of Christiansen’s allegations, however, related to harassment and discrimination based on Christiansen’s sexual orientation rather than negative gender stereotyping.
The 2nd Circuit disagreed, finding that the comments regarding Christiansen’s presentation as “effeminate” and related conduct sufficed to state a claim for gender stereotyping. The 2nd Circuit acknowledged the difficulty distinguishing between activity based on a person’s sexual orientation and on gender stereotypes. The court found, however, that the distinction it had previously drawn remained viable. Christiansen v. Omnicom Group Inc., 16-748 (2nd Circuit, March 27, 2017)
Impact: Employers are best advised to maintain a zero-tolerance policy regarding discrimination based on gender stereotyping or sexual orientation, even if the law applicable in the region does not make sexual orientation discrimination unlawful.
Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. Comment below, or email firstname.lastname@example.org.