Christiansen v. Omnicom Group, Incorporated
OPINION, Concurring, by judge RAK, M. Brodie, FILED. [16-748]
Case 16-748, Document 121, 03/27/2017, 1997711, Page1 of 15
KATZMANN, Chief Judge, and BRODIE, District Judge, concurring:
To ascertain whether Title VII of the Civil Rights Act of 1964 prohibits
sexual orientation discrimination, we begin with the text:
It shall be an unlawful employment practice for an
employer . . . to fail or refuse to hire or to discharge . . .
or otherwise to discriminate against any individual with
respect to his [or her] compensation, terms, conditions,
or privileges of employment, because of such
individual’s . . . sex . . . .
42 U.S.C. § 2000e‐2(a)(1). Christiansen and amici advance three arguments, none
previously addressed by this Court, that sexual orientation discrimination is,
almost by definition, discrimination “because of . . . sex.” They argue first that
sexual orientation discrimination is discrimination “because of . . . sex” because
gay, lesbian, and bisexual individuals are treated in a way that would be
different “but for” their sex. Second, they argue that sexual orientation
discrimination is discrimination “because of . . . sex” because gay, lesbian, and
bisexual individuals are treated less favorably based on the sex of their
associates. Finally, they argue that sexual orientation discrimination is
discrimination “because of . . . sex” because gay, lesbian, and bisexual
individuals are treated less favorably because they do not conform to gender
stereotypes, particularly stereotypes about the proper roles of men and women
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in romantic relationships. I find persuasive these arguments, which reflect the
evolving legal landscape since our Court’s decisions in Simonton v. Runyon, 232
F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir.
2005), holding that sexual orientation discrimination claims are not cognizable
under Title VII. Concluding that it was constrained by the law as it then was, the
Simonton Court expressly decried the “appalling persecution,” 232 F.3d at 35,
that Simonton endured because of his sexual orientation, stating that such
persecution was “morally reprehensible whenever and in whatever context it
occurs.” Id. For the reasons that follow, I write separately to express my view that
when the appropriate occasion presents itself, it would make sense for the Court
to revisit the central legal issue confronted in Simonton and Dawson, especially in
light of the changing legal landscape that has taken shape in the nearly two
decades since Simonton issued.
Sexual Orientation Discrimination As Traditional Sex Discrimination
First, sexual orientation discrimination is sex discrimination for the simple
reason that such discrimination treats otherwise similarly‐situated people
differently solely because of their sex. A person is discriminated against “because
of . . . sex” if that person is “exposed to disadvantageous terms or conditions of
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employment to which members of the other sex are not exposed.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)). As the Supreme Court
has alternatively explained, an action constitutes sex discrimination under Title
VII if “the evidence shows treatment of a person in a manner which but for that
person’s sex would be different.” City of Los Angeles, Depʹt of Water & Power v.
Manhart, 435 U.S. 702, 711 (1978) (emphasis added) (internal quotation marks
omitted). “Whatever evidentiary route the plaintiff chooses to follow, he or she
must always prove that the conduct at issue was not merely tinged with
offensive sexual connotations, but actually constituted ’discrimina[tion] . . .
because of . . . sex,’” Oncale, 523 U.S. at 81 (emphasis omitted), and Title VII’s
prohibition “must extend to [discrimination] of any kind that meets the statutory
requirements,” id. at 80 (emphasis added).
Sexual orientation discrimination meets this test. As the Equal
Employment Opportunity Commission (“EEOC”) has observed, sexual
orientation “cannot be defined or understood without reference to sex,” Baldwin
v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641, at *5 (July 16, 2015),
because sexual orientation is defined by whether a person is attracted to people
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of the same sex or opposite sex (or both, or neither). For this reason, the EEOC
has concluded that “[s]exual orientation discrimination is sex discrimination
because it necessarily entails treating an employee less favorably because of the
employee’s sex.” Id. To illustrate, the EEOC gives an example:
[A]ssume that an employer suspends a lesbian
employee for displaying a photo of her female spouse
on her desk, but does not suspend a male employee for
displaying a photo of his female spouse on his desk.
The lesbian employee in that example can allege that
her employer took an adverse action against her that the
employer would not have taken had she been male.
That is a legitimate claim under Title VII that sex was
unlawfully taken into account in the adverse
employment action. The same result holds true if the
person discriminated against is straight. Assume a
woman is suspended because she has placed a picture
of her husband on her desk but her gay colleague is not
suspended after he places a picture of his husband on
his desk. The straight female employee could bring a
cognizable Title VII claim of disparate treatment
because of sex.
Id. (citation omitted). Under this framework, “but for [the employee’s] sex,” the
employee’s treatment would have been different. Manhart, 435 U.S. at 711.
Because this situation “meets the statutory requirements” of Title VII, the statute
“must extend” to prohibit it. Oncale, 523 U.S. at 80.
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One could argue in response that a man married to a man is not similarly
situated to a man married to a woman, but is instead similarly situated to a
woman married to a woman. In other words, one might contend that, for
comparative purposes, a gay man is not married to a man; he is married to
someone of the same sex, and it is other people married (or otherwise attracted)
to the same sex who are similarly situated for the purpose of Title VII. In my
view, this counterargument, which attempts to define “similarly situated” at a
different level of generality, fails to demonstrate that sexual orientation
discrimination is not “but for” sex discrimination. The Supreme Court rejected
an analogous argument on interracial marriage—“that members of each race
[were] punished to the same degree”—in Loving v. Virginia and held that treating
all members of interracial relationships the same, but less favorably than
members of intraracial relationships, was a race‐based classification violating the
Equal Protection Clause. See 388 U.S. 1, 7–8 (1967). The same logic suggests that it
is sex discrimination to treat all individuals in same‐sex relationships the same,
but less favorably than individuals in opposite‐sex relationships. Similarly,
Manhart tells us that sex discrimination is treating someone “in a manner which
but for that person’s sex would be different,” 435 U.S. at 711 (emphasis added)
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(internal quotation marks omitted), suggesting that when evaluating a
comparator for a gay, lesbian, or bisexual plaintiff, we must hold every fact
except the sex of the plaintiff constant—changing the sex of both the plaintiff and
his or her partner would no longer be a “but‐for‐the‐sex‐of‐the‐plaintiff” test.
Thus in my view, if gay, lesbian, or bisexual plaintiffs can show that “but
for” their sex, Manhart, 435 U.S. at 711, they would not have been discriminated
against for being attracted to men (or being attracted to women), they have made
out a cognizable sex discrimination claim. In such a case, then, traditional sex
discrimination would encompass discrimination on the basis of sexual
orientation. Neither Simonton nor Dawson addressed this argument.
Sexual Orientation Discrimination As Associational Sex Discrimination
Next, sexual orientation discrimination is discrimination “because of . . .
sex” because it treats people differently due to the sex of their associates. The
associational discrimination theory, which we articulated with respect to racial
discrimination eight years after our decision in Simonton, provides that “an
employer may violate Title VII if it takes action against an employee because of
the employee’s association with a person of another race.” Holcomb v. Iona Coll.,
521 F.3d 130, 138 (2d Cir. 2008). As we explained, “[t]he reason [for this holding]
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is simple: where an employee is subjected to adverse action because an employer
disapproves of interracial association, the employee suffers discrimination
because of the employee’s own race” in relation to the race of his or her associate.
Id. at 139 (emphasis in original).
As the Supreme Court has observed, Title VII “on its face treats each of the
enumerated categories exactly the same,”1 and for that reason “the principles . . .
announce[d]” with respect to sex discrimination “apply with equal force to
discrimination based on race, religion, or national origin,” and vice versa. Price
Waterhouse v. Hopkins, 490 U.S. 228, 243 n.9 (1989). Thus, the associational theory
of race discrimination applies also to sex discrimination. Putting aside romantic
associations, this principle is not controversial. If a white employee fired or
subjected to a hostile work environment after friendly association with black
coworkers has a claim under Title VII, see Drake v. Minnesota Min. & Mfg. Co., 134
F.3d 878, 881, 883‐84 (7th Cir. 1998) (finding no categorical bar to the application
of the associational theory of race discrimination to interracial friendships), then
a female employee fired or subjected to a hostile work environment after friendly
The only exception, not relevant here, is for a “bona fide occupational qualification”
(“BFOQ”), which is a justification for some differential treatment based on religion, sex,
or national origin but not based on race. See 42 U.S.C. § 2000e‐2(e); see also Price
Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989).
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association with male coworkers should have a claim under Title VII. Once we
accept this premise, it makes little sense to carve out same‐sex relationships as an
association to which these protections do not apply, particularly where, in the
constitutional context, the Supreme Court has held that same‐sex couples cannot
be “lock[ed] . . . out of a central institution of the Nation’s society.” Obergefell v.
Hodges, 135 S. Ct. 2584, 2602 (2015); see also United States v. Windsor, 133 S. Ct.
2675, 2693‐94 (2013) (explaining that differentiation between opposite‐sex and
same‐sex couples in the Defense of Marriage Act “demeans the couple, whose
moral and sexual choices the Constitution protects, and whose relationship the
State has sought to dignify” (citation omitted)). In sum, if it is race discrimination
to discriminate against interracial couples, it is sex discrimination to discriminate
against same‐sex couples.
Therefore, I conclude that if gay, lesbian, or bisexual plaintiffs can show
that they would not have been discriminated against but for the sex of their
associates, they have made out a cognizable sex discrimination claim. In such a
case, the associational theory of sex discrimination would encompass
discrimination on the basis of sexual orientation. Because Simonton and Dawson
were decided before Holcomb, we have had no opportunity to address the
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associational theory of sex discrimination as applied to sexual orientation
Sexual Orientation Discrimination As Gender Stereotyping
Finally, sexual orientation discrimination is discrimination “because of . . .
sex” because such discrimination is inherently rooted in gender stereotypes. In
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004), we
considered “a crucial question: What constitutes a gender‐based stereotype?” Id.
at 119‐20. While we did not definitively answer that question, we invoked the
Seventh Circuit’s observation that whether there has been improper “reliance
upon stereotypical notions about how men and women should appear and
behave” can sometimes be resolved by “consider[ing] . . . whether [the plaintiff’s]
gender would have been questioned for [engaging in the relevant activity] if he
were a woman rather than a man.” Id. at 120 n.10 (quoting Doe ex rel. Doe v. City
of Belleville, Ill., 119 F.3d 563, 581–82 (7th Cir. 1997), vacated on other grounds by 523
U.S. 1001 (1998) (remanding the case in light of Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75 (1998))).
Relying on common sense and intuition rather than any “special training,”
see Back, 365 F.3d at 120 (quoting Price Waterhouse, 490 U.S. at 256), courts have
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explained that sexual orientation discrimination “is often, if not always,
motivated by a desire to enforce heterosexually defined gender norms. In fact,
stereotypes about homosexuality are directly related to our stereotypes about the
proper roles of men and women. . . . The gender stereotype at work here is that
‘real’ men should date women, and not other men,” Centola v. Potter, 183 F. Supp.
2d 403, 410 (D. Mass. 2002); see also Boutillier v. Hartford Pub. Sch., No. 3:13‐CV‐
01303‐WWE, 2016 WL 6818348 (D. Conn. Nov. 17, 2016) (“[H]omosexuality is the
ultimate gender non‐conformity, the prototypical sex stereotyping animus.”).
Indeed, we recognized as much in Dawson when we observed that
“[s]tereotypical notions about how men and women should behave will often
necessarily blur into ideas about heterosexuality and homosexuality.”398 F.3d at
218 (alteration in original) (internal quotation marks omitted). Having conceded
this, it is logically untenable for us to insist that this particular gender stereotype
is outside of the gender stereotype discrimination prohibition articulated in Price
Numerous district courts throughout the country have also found this
approach to gender stereotype claims unworkable. See, e.g., Videckis v. Pepperdine
Univ., 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015) (collecting cases) (“Simply put,
Case 16-748, Document 121, 03/27/2017, 1997711, Page11 of 15
the line between sex discrimination and sexual orientation discrimination is
‘difficult to draw’ because that line does not exist, save as a lingering and faulty
judicial construct.”). The binary distinction that Simonton and Dawson establish
between permissible gender stereotype discrimination claims and impermissible
sexual orientation discrimination claims requires the factfinder, when evaluating
adverse employment action taken against an effeminate gay man, to decide
whether his perceived effeminacy or his sexual orientation was the true cause of
his disparate treatment. See Fabian v. Hosp. of Cent. Connecticut, 172 F. Supp. 3d
509, 524 n.8 (D. Conn. 2016). This is likely to be an exceptionally difficult task in
light of the degree to which sexual orientation is commingled in the minds of
many with particular traits associated with gender. More fundamentally, carving
out gender stereotypes related to sexual orientation ignores the fact that negative
views of sexual orientation are often, if not always, rooted in the idea that men
should be exclusively attracted to women and women should be exclusively
attracted to men—as clear a gender stereotype as any.
Thus, in my view, if gay, lesbian, or bisexual plaintiffs can show that they
were discriminated against for failing to comply with some gender stereotype,
including the stereotype that men should be exclusively attracted to women and
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women should be exclusively attracted to men, they have made out a cognizable
sex discrimination claim. In such a case, the gender stereotype theory of
discrimination would encompass discrimination on the basis of sexual
orientation. In neither Simonton nor Dawson did we consider this articulation of
the gender stereotype at play in sexual orientation discrimination.
Our decision in Simonton was understandably influenced by “Congress’s
refusal to expand the reach of Title VII” in the wake of “consistent judicial
decisions refusing to interpret ‘sex’ to include sexual orientation,” which we
viewed as “strong evidence of congressional intent.” 232 F.3d at 35. The Supreme
Court has indicated, however, that:
[S]ubsequent legislative history is a hazardous basis for
inferring the intent of an earlier Congress. It is a
particularly dangerous ground on which to rest an
interpretation of a prior statute when it concerns . . . a
proposal that does not become law. Congressional
inaction lacks persuasive significance because several
equally tenable inferences may be drawn from such
inaction, including the inference that the existing
legislation already incorporated the offered change.
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (internal citations
and quotation marks omitted).
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As several amici point out, there are idiosyncratic reasons that many bills
do not become law, and those reasons may be wholly unrelated to the particular
provision of a bill that a court is assessing. In light of the force of the arguments
as to why discrimination “because of . . . sex” encompasses sexual orientation
discrimination and Oncale’s admonition that “it is ultimately the provisions of
our laws . . . by which we are governed,” 523 U.S. at 79, we should not rely on
the “hazardous basis” of subsequent congressional inaction, LTV Corp., 496 U.S.
at 650, to exclude sexual orientation discrimination from Title VII’s coverage.
When Simonton was decided, this Court reached the same conclusion as
every other circuit court that had considered the issue: that discrimination
“because of . . . sex” did not encompass discrimination on the basis of sexual
orientation, a view then shared by the EEOC. But in the years since, the legal
landscape has substantially changed, with the Supreme Court’s decisions in
Lawrence v. Texas, 539 U.S. 558 (2003), and Obergefell v. Hodges, 135 S. Ct. 2584
(2015), affording greater legal protection to gay, lesbian, and bisexual
individuals. During the same period, societal understanding of same‐sex
relationships has evolved considerably.
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There is no doubt that sexual orientation discrimination “was assuredly
not the principal evil Congress was concerned with when it enacted Title VII.”
Oncale, 523 U.S. at 79. However, “statutory prohibitions often go beyond the
principal evil to cover reasonably comparable evils, and it is ultimately the
provisions of our laws . . . by which we are governed.” Id. Title VII prohibits all
“discriminat[ion] . . . because of . . . sex” and its protections “must extend to
[discrimination] of any kind that meets the statutory requirements.” Id. at 80
(emphasis added). Despite recent congressional inaction in the face of judicial
decisions excluding sexual orientation discrimination from Title VII’s coverage,
there is “no justification in the statutory language . . . for a categorical rule
excluding” such claims so long as a plaintiff can demonstrate that he or she was
discriminated against “because of . . . sex.” Id.
Taking a fresh look at existing cases, the EEOC and other advocates have
articulated three ways that gay, lesbian, or bisexual plaintiffs could make this
showing. First, plaintiffs could demonstrate that if they had engaged in identical
conduct but been of the opposite sex, they would not have been discriminated
against. Second, plaintiffs could demonstrate that they were discriminated
against due to the sex of their associates. Finally, plaintiffs could demonstrate
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that they were discriminated against because they do not conform to some
gender stereotype, including the stereotype that men should be exclusively
attracted to women and women should be exclusively attracted to men. Neither
Simonton nor Dawson had occasion to consider these worthy approaches. I
respectfully think that in the context of an appropriate case our Court should
consider reexamining the holding that sexual orientation discrimination claims
are not cognizable under Title VII. Other federal courts are also grappling with
this question, and it well may be that the Supreme Court will ultimately address
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