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Employment Law Blog
James Tarquin, P.A
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Federal Court’s Ruling Shows That All Employees Are Protected From Gender Stereotyping Discrimination

Sign that reads don't sterotype me

Under Title VII of the Civil Rights Act of 1964 (Title VII), employees are protected from discrimination because of sex.  To date, all of the federal courts of appeals, except the U.S. Seventh Circuit Court of Appeals, to squarely address the issue have held that discrimination on the basis of sexual orientation does not violate Title VII prohibition against discrimination because of sex.  However, courts have consistently held that discrimination based on a person’s failure to conform to gender stereotypes is a form of prohibited sex discrimination under Title VII. 

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the U.S. Supreme Court articulated the gender stereotyping theory of sex discrimination under Title VII.  In holding that discrimination against an employee for failure to conform to gender stereotypes is actionable sex discrimination under Title VII, the Price Waterhouse Court explained that Title VII’s sex-based protections were meant “to strike at the heart of disparate treatment of men and women resulting from sex stereotypes.”  Thus, as explained by the U.S. Ninth Circuit Court of Appeals in Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000), “[d]iscrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII.” 

One way in which gay and lesbian employees may demonstrate that discrimination amounted to discrimination because of sex in violation of Title VII is by showing that they were punished for noncompliance with gender stereotypes.  As the U.S. District Court for Oregon in Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212 (D. Or. 2002) observed, “[n]othing in Title VII suggests that Congress intended to confine the benefits of that statute to heterosexual employees only.”  The recent decision by the U.S. Second Circuit Court of Appeals in Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017) is instructive in showing that Title VII claims based on gender stereotyping are not limited to heterosexual employees only. 

Male Employee Harassed For Perceived Feminine Traits

In that case, Michael Christiansen (Christiansen) brought a Title VII lawsuit against his former employer, Omnicom Group, Inc. (Omnicom), claiming that he was subjected to discriminatory sex-based harassment because of his failure to conform to gender stereotypes.  Christiansen, an openly gay man who is HIV-positive, worked as an advertising creative director at Omnicom. 

Christiansen alleged that his supervisor engaged in an egregious pattern of harassing behavior targeting his effeminacy.  The supervisor’s alleged harassment included displaying “sexually suggestive and explicit drawings” of Christiansen on an office whiteboard which mocked Christiansen for his perceived stereotypical feminine traits.  One drawing depicted Christiansen in tights and a low-cut shirt “prancing around.”  Another picture, which the supervisor circulated at work, depicted Christiansen’s head attached to a bikini-clad female body lying on the ground with her legs in the air.  According to one employee, the picture was intended to portray Christiansen “as a submissive sissy.”   

Actionable Gender Stereotyping Harassment

At the outset of the litigation, Omnicom moved to dismiss Christiansen’s discriminatory harassment claim on grounds that his claim was not cognizable under Title VII because it was really a claim for sexual orientation discrimination rather than a claim for discrimination for failure to conform to gender stereotypes.  The trial court ratified Omnicom’s argument and dismissed Christiansen’s Title VII claim.  The trial court reasoned that Christiansen’s Title VII claim, as a whole, “did not allege that he was discriminated against because he did not conform to gender stereotypes, but because he was gay.”  As a result, the trial court concluded that Christiansen’s claim was a sexual orientation discrimination claim that was not actionable under Title VII.

On appeal, the Second Circuit Court of Appeals reversed the trial court’s decision and reinstated Christiansen’s Title VII sex-based discriminatory harassment claim.  The appellate court pointed out that Christiansen alleged “multiple instances” of gender stereotyping harassment, including his supervisor describing him as “effeminate” to others in the office, depicting him in tights and a low-cut shirt “prancing around,” and portraying him as having “stereotypically feminine traits” by depicting his head attached to a bikini-clad female body lying on the ground with her legs in the air.  These allegations, the appellate court reasoned, were sufficient to establish that Christiansen was discriminatorily harassed because of his perceived effeminacy and noncompliance with gender stereotypes.  Because Christiansen’s allegations were sufficient to establish that he was discriminatorily harassed for failure to conform to gender stereotypes, the Second Circuit concluded, Christiansen’s claim was a cognizable gender stereotyping claim under Title VII.

Free Consultation With Ocala Sex Discrimination Attorneys 

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience litigating sex discrimination cases.  If you have been the victim of sex discrimination, or have questions about being discriminated against for failure to conform to gender stereotypes, please contact our office for a free consultation with our Central Florida sex discrimination lawyers.  Our employee rights law firm takes sex discrimination cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover. 

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