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Second Circuit Grapples With Title VII Sexual Orientation Claims

Title VII does not expressly prohibit discrimination based on sexual orientation. However, the EEOC and others have argued that Title VII’s prohibition on sex discrimination necessarily includes sexual orientation discrimination. The U.S. Supreme Court has not ruled directly on this issue but has determined that discrimination based on sexual stereotyping is prohibited.

In Christiansen v. Ominicon Group, Inc., an openly gay man asserted that he had been subjected to harassment because of his sexual orientation and “effeminacy.” The Second Circuit Court of Appeals declined to directly hold that sexual orientation discrimination was prohibited in accordance with its own precedent on this issue. However, the court considered the comments describing the man as “effeminate” and conduct such as circulated doctored pictures showing the employee “in tights and a low-cut shire prancing around” and the employee superimposed on a female bikini clad body to be valid evidence of gender stereotyping under Title VII.

The Second Circuit clarified that its precedent against sexual orientation discrimination was not meant to foreclose gender stereotyping based on sexual orientation. The prior decisions had noted that, “’stereotypically feminine’ gay men could pursue a gender stereotyping claim under Title VII.” Moreover “gay, lesbian, and bisexual individuals do not have less protection under [The Supreme Court case] against traditional gender stereotype discrimination than do heterosexual individuals.” A concurring opinion of the court acknowledged that Title VII’s protection for sexual orientation was not a settled issue and that the legal landscape was changing.