Protections against gender stereotypes apply to lesbian, gay and bisexual employees

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Protections against gender stereotypes apply to heterosexual and lesbian, gay and bisexual employees under Title VII of the Civil Rights Act of 1964, according to the 2nd United States Court of Appeals.

In 2011, Matthew Christiansen, a gay man, started working for Omnicom Group. Shortly after, Christiansen claimed in his lawsuit that his supervisor started harassing him. In particular, the supervisor allegedly made several derogatory comments to Christiansen or in his presence, associating his status as a gay man with the fact that he has AIDS. Christiansen also alleged that his supervisor drew several sexually explicit photos of him on an office whiteboard.

In addition to making fun of Christiansen’s sexual orientation, the supervisor allegedly subjected him to harassment due to his effeminate features. For example, one of the renderings on the whiteboard claimed to depict Christiansen “prancing” while wearing tights and a low-cut shirt. Christiansen also alleged that her supervisor made derogatory comments expressly referring to her effeminate features.

After failing to get meaningful help from the company’s human resources department, Christiansen exhausted her administrative remedies with the Equal Employment Opportunity Commission and filed a lawsuit in the U.S. District Court of southern district of New York. In her complaint, Christiansen alleged that she had been the victim of sexual harassment in violation of Title VII. In response, the company decided to deny the request on the grounds that sexual orientation is not a protected status under Title VII.

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Analyzing Christiansen’s claim, the trial court noted that although sexual orientation is not a protected status under Title VII, the sex discrimination law’s prohibition extends to discrimination based on an employee’s non-compliance with gender stereotypes. The trial court, however, found that it was unable to draw a consistent line between a permissible gender stereotyping claim and an unacceptable sexual orientation claim based on the allegations in Christiansen’s complaint, and he therefore rejected the allegation.

On appeal, Circuit 2 overturned and reinstated Christiansen’s sex discrimination claim. The court ruled that in determining whether an employee has a viable gender stereotype claim, their sexual orientation is not a relevant factor. As the court explained, “gay, lesbian and bisexual people have no less protection [from] discrimination based on gender stereotypes as heterosexual individuals. Looking at Christiansen’s complaint from this perspective, the court found that the allegations describing the harassment on the basis of her effeminate characteristics and non-compliance with male gender traits were sufficient to formulate a complaint of founded discrimination. about sex. in Title VII.

Note: The Chief Justice of Circuit 2 wrote a separate concurring opinion stating that the court should reassess its position that sexual orientation is not a protected status under Title VII.

Christiansen v. Omnicom Grp. Inc., 2e Cir., N ° 16-748 (March 27, 2017).

Professional pointer: Although the 2nd Circuit decision represents a logical extension of the Supreme Court precedent, the distinction it draws between sexual orientation and non-compliance with gender stereotypes will be difficult for frontline employees to grasp . It is therefore recommended that employers broaden their anti-discrimination and harassment policies to include sexual orientation.

R. Read Gignilliat is a lawyer with Elarbee, Thompson, Sapp & Wilson LLP, the Worklaw® network member firm in Atlanta.

Article related to the SHRM:

Appeal decision refines the review of LGBT employee benefits, SHRM online Benefits, April 2017

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