The Second Circuit Takes a Small Step Forward for LGBTQ Workers, But There’s Still Far to Go

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Analysis Law and Policy

The Second Circuit Takes a Small Step Forward for LGBTQ Workers, But There’s Still Far to Go

Imani Gandy

On the federal level, there are no explicit workplace protections for LGBTQ people.

The Second Circuit Court of Appeals issued a key ruling Monday permitting a gay advertising executive to proceed with his lawsuit alleging that his employer discriminated against him on the basis of gender stereotyping—an important step forward in solidifying anti-discrimination laws for LGBTQ people.

Matthew Christiansen, an openly gay HIV-positive man, filed a lawsuit in 2015 against his employer, DDB Worldwide Communications Group, where he works as a creative director. Christiansen alleges that his direct supervisor engaged in a pattern of humiliating harassment targeting his sexual orientation and “effeminacy” in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination on the basis of sex, among a host of other factors.

The facts Christiansen alleges in his complaint are outrageous.

Christiansen alleges that his direct supervisor, Joe Cianciotto, subjected him to ridicule and abuse due to Cianciotto’s animosity towards homosexuals. In May 2011, Christiansen said, Cianciotto ramped up the abuse from verbal taunts: He drew multiple sexually suggestive and explicit drawings of Christiansen on an office whiteboard, the most graphic of which depicted “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.'”

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In addition, Cianciotto circulated at work and posted to Facebook an edited Muscle Beach Party poster which depicted Christiansen’s head attached to a female body clad in a bikini. One coworker thought that the image was meant to depict Christiansen as a “submissive sissy.”

Cianciotto also made disparaging remarks connecting Christiansen’s HIV status to his “effeminacy” and sexual orientation. Christiansen alleges that the supervisor told other employees that Christiansen “was effeminate and gay so he must have AIDS.” And in a May 2013 meeting, he said in a room of 20 employees that he felt sick and then turned to Christiansen and said, “It feels like I have AIDS. Sorry, you know what that’s like.” At the time, Christiansen’s HIV status was private

Despite several references to effeminacy in Christiansen’s complaint, U.S. District Court Judge Katherine Polk Failla ruled in March 2016 that the thrust of his complaint was that Christiansen’s employer discriminated against him because he is gay, and not because he did not conform to gender stereotypes. Judge Failla dismissed Christiansen’s complaint for failure to state a claim under Title VII. 

In dismissing the claims, Judge Failla said that she was bound by Second Circuit precedent: “In Simonton v. Runyon, the Second Circuit unequivocally held that ‘Title VII does not proscribe discrimination because of sexual orientation.'” Five years later, in Dawson v. Bumble and Bumble, the Second Circuit reiterated the rule.

In the Second Circuit—as across the country—Title VII simply does not prohibit discrimination on the basis of sexual orientation.

The law does, however, prohibit discrimination on the basis of gender stereotyping, as stated in the landmark U.S. Supreme Court ruling in Price Waterhouse v. Hopkins. This ultimately saved Christiansen’s lawsuit.

Judge Failla acknowledged that discrimination on the basis of nonconformity to sexual stereotypes was permissible in the Second Circuit. But she also pointed out that the court in Simonton and Dawson said that this “should not be used to bootstrap protection for sexual orientation into Title VII.”

That’s what Judge Failla thought Christiansen was doing: Although Christiansen alleged that he was targeted because of “animus towards a gender stereotype,” and his complaint included several instances of gender stereotyping behavior, the district court still found that he was essentially trying to bootstrap a sexual orientation claim to his claims about gender stereotyping. In other words, she felt Christiansen’s case was really about sexual orientation discrimination, and not gender stereotyping discrimination.

A three-judge panel of the Second Circuit disagreed.

Noting, somewhat regretfully, that it was without power to reconsider Simonton and Dawson—because the court is “bound by decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court”—the panel, citing Price Waterhouse v. Hopkins, found that the district court had erred in dismissing Christiansen’s claims of discrimination on the basis of gender stereotyping.

In Price Waterhouse, plaintiff Ann Hopkins said she had been denied a promotion at work because she was “too macho.” Her employer told her that she should wear makeup, style her hair, and act more feminine. Six members of the Supreme Court agreed that such comments were indicative of gender discrimination. They held that Title VII barred discrimination because of biological sex, but also barred gender stereotyping—discrimination based on someone failing to act and appear according to expectations defined by gender.

The Second Circuit found similar gender discrimination in Christiansen’s allegations:

Christiansen’s complaint identifies multiple instances of gender stereotyping discrimination. His complaint alleges that his supervisor described him as “effeminate” to others in the office, and depicted him in tights and a low-cut shirt “prancing around.” The complaint further alleges that the ‘Muscle Beach Party’ party poster, depicting Christiansen’s head attached to a bikini-clad female body lying on the ground with her legs in the air, was seen by at least one coworker as portraying Christiansen “as a submissive sissy.”

These allegations were enough for Christiansen’s gender stereotyping claim to survive his employer’s motion to dismiss. His claim can now proceed in the district court.

Although the Second Circuit’s ruling is good news for Christiansen—who was targeted not only for his orientation but also for his failure to conform to gender stereotypes—far too many LGBTQ employees who face workplace discrimination find themselves in a legal black hole. Although federal courts across the country have begun to recognize that discrimination against LGBT employees is a form of sex stereotyping without requiring additional evidence of gender stereotyping, the state of the law in this area is undoubtedly murky.

For example, the federal court rulings seem to suggest that men who are “stereotypically feminine” can pursue gender stereotyping claims under Title VII, as could “stereotypically masculine” women

But what about LGBTQ employees who “pass” as cisgender and straight but are nevertheless targeted for workplace discrimination based solely on their sexual orientation?

At this point, federal law doesn’t seem to have a clear remedy for them.

LGBTQ advocates argue that the line between discrimination based on gender stereotyping under Title VII and discrimination based on sexual orientation is a distinction without a difference.

According to an amicus brief filed by a coalition of civil rights groups including the American Civil Liberties Union, the National Women’s Law Center, and the National Partnership for Women and Families, “Discrimination on the basis of sexual orientation is sex discrimination under the plain meaning of the term, because sexual orientation turns on one’s sex in relation to the sex of one’s partner.”

“Consideration of an employee’s sexual orientation therefore necessarily involves consideration of the employee’s sex,” the brief continued.

As amici point out in their brief, since 2011, the Equal Employment Opportunity Commission (EEOC)—which is in charge of enforcing Title VII—has recognized that discrimination against LGBTQ people necessarily involves discrimination on the basis of sex, because such discrimination turns on societal expectations that women should be attracted only to men and that men should be attracted only to women. That year in Veretto v. Donahoe, the EEOC said that Title VII prohibits workplace discrimination “motivated by the sexual stereotype that marrying a woman is an essential part of being a man.”

And certainly, the sea of change regarding LGBTQ rights—from the repeal of Don’t Ask Don’t Tell to the Supreme Court’s ruling in Obergefell v. Hodges that laws banning same-sex marriage are unconstitutional—has shifted the perception regarding protections. Indeed, in 2015, the EEOC issued a decision that was binding on federal agencies (although not on federal courts) stating that claims for sexual orientation discrimination are permissible under Title VII.  

Furthermore, some states do have laws that forbid discrimination on the basis of sexual orientation or gender identity. In fact, New York, where Christiansen lives, is one of them; he sued under it as well as Title VII, but the court dismissed that claim based on lack of jurisdiction following its dismissal of his other claims.

On a federal level, however, there are no explicit workplace protections for LGBTQ people. The Employment Non-Discrimination Act, which would do just that, has stalled in Congress for decades, leaving some LGBTQ plaintiffs in the dust.

And given that the current administration seems amenable to permitting discrimination against them in the name of religion, relief for people who face workplace discrimination because of their sexual orientation may continue to prove elusive.