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Sexual-Orientation Harassment Suits Need Supreme Court's Review

Congress has failed to make such conduct actionable.
The justices should step in.

The National Law Journal
May 16, 2016

Judgeudge Katherine Polk Failla of the Southern District of New York on March 9 decided Christiansen v. Omni­com Group, a case involving a complaint by a homosexual man that his supervisor had harassed him incessantly because of his sexual orientation. Among other things, Christiansen's tormentor drew pornographic pictures of him, referred to him as "the gay guy," and alluded to his HIV-positive status. Notwithstanding this extreme conduct, the court reluctantly dismissed his claim made under Title VII of the Civil Rights Act of 1964.

The judge did so on constraint of precedent set by the U.S. Court of Appeals for the Second Circuit that discrimination "because of … sex" does not encompass actions premised on a worker's gay or lesbian status. Acknowledging that Title VII does cover nonconformity to sexual stereotypes, such as the supposedly unfeminine behavior of the female accountant who prevailed in Price Waterhouse v. Hopkins (1989), Failla nonetheless found that Christiansen could not win on this ground since his boss had depicted him as " 'muscle bound' … overtly (indeed, overly) masculine."

She made no bones, however, about the dilemma in which she found herself. On the one hand, she noted her agreement with other courts' comments that it is extremely difficult to "disaggregat[e] acts of discrimination based on sexual orientation from those based on sexual stereotyping." Indeed, the desire to enforce traditional gender norms often, if not always, motivates anti-homosexual bias. On the other hand, the Second Circuit had cautioned against bootstrapping the unprotected class into Title VII via the protected category. The farthest she felt she could go, thus, was to imply that the appellate court should reverse its position. The case is now pending on appeal.

While all federal appellate courts to decide the question have come down on the side of the defendant, the "broader legal landscape" has been, as Christiansen stated, in flux recently. Even as early as 2001, five of 12 judges on the U.S. Court of Appeals for the Ninth Circuit opined that the fact that harassment may be motivated by the victim's sexual proclivities "is irrelevant for purposes of Title VII."

Within the last couple of years, the U.S. Supreme Court rulings rejecting the Defense of Marriage Act and establishing a right of same-sex marriage evinced more broadly how much perceptions of gays and lesbians have changed in this century.

Granted, these decisions were grounded on constitutional rather than statutory law. The Equal Employment Opportunity Commission, though, held in federal-­sector cases in 2012 and 2015 that Title VII does cover both sexual-orientation and gender-identity claims. The agency stated: "[S]exual orientation is inherently a 'sex-based consideration.' "

Hence an allegation of discrimination based on this ground necessarily falls under Title VII. It involves treating an employee less favorably because of his sex; it also entails associational discrimination arising from sex; and, finally, it inescapably implicates stereotyping based on gender, as determined in Baldwin v. Foxx (2015).

The U.S. Department of Labor and the Department of Justice have approved this approach. President Barack Obama, moreover, issued an executive order in 2014 applying the EEOC's ban to federal ­contracts.

Federal Government's Inaction

Notably, at least 22 states have written such protection into their laws, but the federal government has repeatedly declined to enact legislation embodying these safeguards. From this circumstance, as well as the lack of an explicit reference in Title VII to the type of discrimination in question, a number of courts have concluded that the statute must exclude it.

The EEOC rejected these arguments, and rightly so. For one thing, as the court has noted, congressional inaction is by its nature unpersuasive; it may give rise to many, equally valid inferences. Then, too, the court has already broadened its reading of Title VII to include both sexual harassment and sexual stereotyping under the rubric of the less than pellucid term "sex." Indeed, in Oncale v. Sundowner Offshore Services (1998), which upheld a cause of action founded on male-on-male sexual harassment, the late Justice Antonin Scalia — the archetypical textualist — wrote: "[This] was assuredly not the principal evil Congress was concerned with when it enacted Title VII." Yet "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils." Finally, the EEOC recently filed two actions in nonfederal-sector cases advancing its view that the law bars sexual-orientation discrimination.

The Supreme Court may decide to take up the question — not despite but because of Congress' passivity, which at a time of such expansion in the rights of LGBT people has left a void that needs filling. Were it to do so, it might take a cue from Young v. UPS (2015), where the justices interpreted Title VII, as amended by the Pregnancy Discrimination Act, to provide for reasonable accommodations for pregnant women in some situations. In that setting as well as this one, the law's text did not expressly speak to the matter, many courts had rejected that reading, and Congress had not enacted a bill which would have granted the plaintiff relief.

Similarly, the court should step to the plate here and rule in favor of expanded coverage. If the legislators disapproved, they could overturn the decision. The ball would be in their court again, but, significantly, on the opposite side.