Christiansen v. Omnicom Group, Incorporated
AMENDED OPINION, by RAK, Ch.J., DAL, C.J., BRODIE, D.J., FILED. [16-748]
Case 16-748, Document 128, 03/27/2017, 1998217, Page1 of 14
Christiansen v. Omnicom Group, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2016
(Argued: January 20, 2017 Decided: March 27, 2017)
Docket No. 16‐748
– v. –
OMNICOM GROUP, INCORPORATED, DDB WORLDWIDE COMMUNICATIONS GROUP
INCORPORATED, JOE CIANCIOTTO, PETER HEMPEL, AND CHRIS BROWN,
B e f o r e:
ROBERT A. KATZMANN, Chief Judge, DEBRA ANN LIVINGSTON, Circuit Judge, and
MARGO K. BRODIE, District Judge.*
Judge Margo K. Brodie, of the United States District Court for the Eastern District of
New York, sitting by designation.
Case 16-748, Document 128, 03/27/2017, 1998217, Page2 of 14
Plaintiff‐appellant Matthew Christiansen brought this action against his
employer under, inter alia, Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq., alleging that he was subjected to various forms of
workplace discrimination due to his failure to conform to gender stereotypes.
The United States District Court for the Southern District of New York (Failla, J.)
construed Christiansen’s Title VII claim as an impermissible sexual orientation
discrimination claim and dismissed it pursuant to Simonton v. Runyon, 232 F.3d
33 (2d Cir. 2000). On appeal, Christiansen argues that we should reconsider our
decision in Simonton and hold that Title VII prohibits discrimination on the basis
of sexual orientation. This panel lacks the authority to reconsider Simonton,
which is binding precedent. However, we hold that Christiansen’s complaint
plausibly alleges a gender stereotyping claim cognizable under the Supreme
Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Therefore, we
REVERSE the district court’s dismissal of Christiansen’s Title VII claim and
REMAND for further proceedings consistent with this opinion. We AFFIRM the
judgment of the district court in all other respects.
KATZMANN, Chief Judge, concurs in a separate opinion, in which BRODIE,
District Judge, joins.
SUSAN CHANA LASK, Law Offices of Susan Chana Lask, New York,
NY, for Plaintiff‐Appellant Matthew Christiansen.
HOWARD J. RUBIN (Shira Franco and Judith Kong, on the brief), Davis
& Gilbert LLP, New York, NY, for Defendants‐Appellees
Omnicom Group Incorporated, DDB Worldwide
Communications Group Incorporated, Peter Hempel, and
RICK OSTROVE, Leeds Brown Law, P.C., Carle Place, NY, for
Defendant‐Appellee Joe Cianciotto.
BARBARA L. SLOAN, Attorney, Equal Employment Opportunity
Commission, Office of General Counsel, Washington, D.C. (P.
David Lopez, General Counsel; Jennifer S. Goldstein,
Case 16-748, Document 128, 03/27/2017, 1998217, Page3 of 14
Associate General Counsel; and Margo Pave, Assistant
General Counsel, Equal Employment Opportunity
Commission, Office of General Counsel, Washington, D.C., on
the brief), for Amicus Curiae Equal Employment Opportunity
Commission, in support of Plaintiff‐Appellant.
Lenora M. Lapidus, Gillian L. Thomas, Ria Tabacco Mar, and Leslie
Cooper, American Civil Liberties Union Foundation, New
York, NY; Erin Beth Harrist, Robert Hodgson and Christopher
Dunn, New York Civil Liberties Union Foundation, New
York, NY, for Amici Curiae American Civil Liberties Union;
New York Civil Liberties Union; 9to5, National Association of
Working Women; A Better Balance; American Association of
University Women; California Women’s Law Center;
Coalition of Labor Union Women; Equal Rights Advocates;
Gender Justice; Legal Momentum; Legal Voice; National
Association of Women Lawyers; National Partnership for
Women and Families; National Women’s Law Center;
Southwest Women’s Law Center; Women Employed;
Women’s Law Center of Maryland; Women’s Law Project, in
support of Plaintiff‐Appellant.
Peter T. Barbur, Cravath, Swaine & Moore LLP, New York, NY, for
Amici Curiae 128 Members of Congress, in support of Plaintiff‐
Shannon P. Minter and Christopher F. Stoll, National Center for
Lesbian Rights, San Francisco, CA, for Amicus Curiae National
Center for Lesbian Rights, in support of Plaintiff‐Appellant.
Michael D.B. Kavey, Brooklyn, NY; Omar Gonzalez‐Pagan, Lambda
Legal Defense and Education Fund, Inc., New York, NY;
Gregory R. Nevins, Lambda Legal Defense and Education
Fund, Inc., Atlanta, GA, for Amicus Curiae Lambda Legal
Defense and Education Fund, Inc., in support of Plaintiff‐
Case 16-748, Document 128, 03/27/2017, 1998217, Page4 of 14
Plaintiff‐appellant Matthew Christiansen sued his employer, supervisor,
and others affiliated with his company (collectively, “defendants”) under the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and state
and local law alleging that he was discriminated against at his workplace due to,
inter alia, his HIV‐positive status and his failure to conform to gender
stereotypes. The United States District Court for the Southern District of New
York (Failla, J.) dismissed Christiansen’s federal claims pursuant to Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim and declined to exercise
supplemental jurisdiction over his state and local claims. See Christiansen v.
Omnicom Grp., Inc., 167 F. Supp. 3d 598, 612, 616–18, 622 (S.D.N.Y. 2016). In its
decision, the district court concluded that Simonton v. Runyon, 232 F.3d 33 (2d
Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), holding
that Title VII does not prohibit discrimination on the basis of sexual orientation,
precluded Christiansen’s Title VII claim. Christiansen, 167 F. Supp. 3d at 618, 622.
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Christiansen primarily appeals this aspect of the district court’s decision. 1
Christiansen, an openly gay man who is HIV‐positive, worked as an
associate creative director and later creative director at DDB Worldwide
Communications Group, Inc., an international advertising agency and subsidiary
of Omnicom Group, Inc. Christiansen’s complaint alleged that his direct
supervisor engaged in a pattern of humiliating harassment targeting his
effeminacy and sexual orientation. According to Christiansen, in the spring and
summer of 2011, his supervisor drew multiple sexually suggestive and explicit
drawings of Christiansen on an office whiteboard. The most graphic of the
images depicted a naked, muscular Christiansen with an erect penis, holding a
manual air pump and accompanied by a text bubble reading, “I’m so pumped
for marriage equality.” J.A. at 16 ¶ 34.C; J.A. at 42. Another depicted Christiansen
in tights and a low‐cut shirt “prancing around.” J.A. at 16 ¶ 34.A; J.A. at 40. A
Christiansen also purports to challenge the district court’s dismissal of his ADA claim
for failure to comply with the statute of limitations. The district court, however, did not
dismiss the ADA claim on this basis and instead concluded that Christiansen did not
allege facts constituting discrimination under the ADA. Christiansen, 167 F. Supp. 3d at
613–17. We thus need not consider Christiansen’s statute of limitations argument, and
we affirm the district court’s dismissal of Christiansen’s ADA claim.
Case 16-748, Document 128, 03/27/2017, 1998217, Page6 of 14
third depicted Christiansen‘s torso on the body of “a four legged animal with a
tail and penis, urinating and defecating.” J.A. at 16 ¶ 34.B; J.A. at 41. Later in
2011, Christiansen’s supervisor circulated at work and posted to Facebook a
“Muscle Beach Party” poster that depicted various employees’ heads on the
bodies of people in beach attire. J.A. at 13 ¶ 30. Christiansen’s head was attached
to a female body clad in a bikini, lying on the ground with her legs upright in the
air in a manner that one coworker thought depicted Christiansen as “a
submissive sissy.” J.A. at 13 ¶ 30; J.A. at 43.
Christiansen’s supervisor also made remarks about the connection
between effeminacy, sexual orientation, and HIV status. The supervisor allegedly
told other employees that Christiansen “was effeminate and gay so he must have
AID[S].” J.A. at 15 ¶ 30. Additionally, in May 2013, in a meeting of about 20
people, the supervisor allegedly told everyone in the room that he felt sick and
then said to Christiansen, “It feels like I have AIDS. Sorry, you know what that’s
like.” J.A. at 17 ¶ 38. At that time, Christiansen kept private the fact that he was
On October 19, 2014, Christiansen submitted a complaint to the Equal
Employment Opportunity Commission (“EEOC”) detailing the harassment
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described above. After receiving a “Notice of Right to Sue” from the EEOC,
Christiansen filed this lawsuit in the United States District Court for the Southern
District of New York on May 4, 2015. Shortly thereafter, defendants moved to
dismiss the complaint. In their motion to dismiss, defendants argued, inter alia,
that Christiansen’s claim under Title VII was a sexual orientation discrimination
claim rather than a gender stereotyping claim and was thus not cognizable under
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble,
398 F.3d 211 (2d Cir. 2005).
The district court agreed. In its decision, the district court described at
length difficulties in distinguishing sexual orientation discrimination claims from
gender stereotyping claims, specifically noting that negative views people hold
of those with certain sexual orientations may be based on stereotypes about
appropriate romantic associations between men and women. See Christiansen, 167
F. Supp. 3d at 619–20. Having reviewed the decisions of other district courts
addressing this issue in the wake of Simonton and Dawson, the district court
concluded that “no coherent line can be drawn between these two sorts of
claims.” Id. at 620. Nevertheless, the district court recognized that “the prevailing
law in this Circuit—and, indeed, every Circuit to consider the question—is that
Case 16-748, Document 128, 03/27/2017, 1998217, Page8 of 14
such a line must be drawn.” Id. Although the district court considered several
references to effeminacy in the complaint, it concluded that, as a whole,
Christiansen’s complaint did not allege that he was discriminated against
because he did not conform to gender stereotypes, but because he was gay. Id. at
620–22. As a result, the district court held that Christiansen’s claim was a sexual
orientation discrimination claim that was not cognizable under Title VII
pursuant to Simonton and Dawson and dismissed the claim under Rule 12(b)(6).
Id. at 622.
“We review a District Court’s grant of a motion to dismiss under Rule
12(b)(6) for failure to state a claim de novo, accepting the complaint’s factual
allegations as true and drawing all reasonable inferences in the plaintiff’s favor.”
Carpenters Pension Tr. Fund of St. Louis v. Barclays PLC, 750 F.3d 227, 232 (2d Cir.
2014) (internal quotation marks omitted). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this
standard, a plaintiff must “plead factual content that allows the court to draw
Case 16-748, Document 128, 03/27/2017, 1998217, Page9 of 14
the reasonable inference that the defendant is liable for the misconduct alleged.”
Title VII makes it “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). On appeal, Christiansen argues, supported by various amici, that
we should reconsider our decisions in Simonton and Dawson in light of a changed
legal landscape and hold that Title VII’s prohibition of discrimination “because
of . . . sex” encompasses discrimination on the basis of sexual orientation.
Because we are “bound by the decisions of prior panels until such time as they
are overruled either by an en banc panel of our Court or by the Supreme Court,”
United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004), “it [is] ordinarily . . .
neither appropriate nor possible for [a panel] to reverse an existing Circuit
precedent,” Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67
(2d Cir. 2009). We thus lack the power to reconsider Simonton and Dawson.
However, we disagree with the district court’s conclusion that
Christiansen failed to plausibly allege a Title VII claim based on the gender
Case 16-748, Document 128, 03/27/2017, 1998217, Page10 of 14
stereotyping theory of sex discrimination articulated in Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989), which is also binding on this panel. In Price
Waterhouse, the female plaintiff, a senior manager at an accounting firm, was
described as “macho” and “masculine” and informed that “to improve her
chances for partnership, . . . [she] should walk more femininely, talk more
femininely, dress more femininely, wear make‐up, have her hair styled, and
wear jewelry.” 490 U.S. at 231–32, 235 (internal quotation marks omitted). After
her office declined to nominate her for partnership, she sued under Title VII
alleging sex discrimination. Id. at 231–33. Six members of the Supreme Court
held that adverse employment action rooted in “sex stereotyping” or “gender
stereotyping” was actionable sex discrimination. Id. at 250–52 (plurality); see also
id. at 258 (White, J., concurring); id. at 272–73 (O’Connor, J., concurring).
Here, as noted above, Christiansen’s complaint identifies multiple
instances of gender stereotyping discrimination. His complaint alleges that his
supervisor described him as “effeminate” to others in the office, J.A. at 15 ¶ 30,
and depicted him in tights and a low‐cut shirt “prancing around,” J.A. at 16
¶ 34.A; J.A. at 40. The complaint further alleges that the “Muscle Beach Party”
party poster, depicting Christiansen’s head attached to a bikini‐clad female body
Case 16-748, Document 128, 03/27/2017, 1998217, Page11 of 14
lying on the ground with her legs in the air, was seen by at least one coworker as
portraying Christiansen “as a submissive sissy.” J.A. 13 ¶ 30. The district court
acknowledged these facts but concluded that because Christiansen’s complaint
contained fewer allegations about his effeminacy than about his sexual
orientation, the allegations about his effeminacy did not “transform a claim for
discrimination that Plaintiff plainly interpreted—and the facts support—as
stemming from sexual orientation animus into one for sexual stereotyping.”
Christiansen, 167 F. Supp. 3d at 621. The district court also opined that permitting
Christiansen’s Title VII claim to proceed “would obliterate the line the Second
Circuit has drawn, rightly or wrongly, between sexual orientation and sex‐based
claims.” Id. at 622.
The district court’s decision draws attention to some confusion in our
Circuit about the relationship between gender stereotyping and sexual
orientation discrimination claims. Some district courts in this Circuit have
viewed Simonton and Dawson as making it “especially difficult for gay plaintiffs
to bring” gender stereotyping claims. Maroney v. Waterbury Hosp., No. 3:10‐CV‐
1415 (JCH), 2011 WL 1085633, at *2 n.2 (D. Conn. Mar. 18, 2011); see also Estate of
D.B. v. Thousand Islands Cent. Sch. Dist., 169 F. Supp. 3d 320, 332–33 (N.D.N.Y.
Case 16-748, Document 128, 03/27/2017, 1998217, Page12 of 14
2016) (“The critical fact under the circumstances is the actual sexual orientation
of the harassed person.”). Such cases misapprehend the nature of our rulings in
Simonton and Dawson. While Simonton observed that the gender stereotyping
theory articulated in Price Waterhouse “would not bootstrap protection for sexual
orientation into Title VII because not all homosexual men are stereotypically
feminine,” 232 F.3d at 38, it acknowledged that, at a minimum, “stereotypically
feminine” gay men could pursue a gender stereotyping claim under Title VII (and
the same principle would apply to “stereotypically masculine” lesbian women).
Simonton and Dawson do not suggest that a “masculine” woman like the plaintiff
in Price Waterhouse, 490 U.S. at 235, has an actionable Title VII claim unless she is
a lesbian; to the contrary, the sexual orientation of the plaintiff in Price Waterhouse
was of no consequence. In sum, gay, lesbian, and bisexual individuals do not
have less protection under Price Waterhouse against traditional gender stereotype
discrimination than do heterosexual individuals. Simonton and Dawson merely
hold that being gay, lesbian, or bisexual, standing alone, does not constitute
nonconformity with a gender stereotype that can give rise to a cognizable gender
Case 16-748, Document 128, 03/27/2017, 1998217, Page13 of 14
The gender stereotyping allegations in Christiansen’s complaint are
cognizable under Price Waterhouse and our precedents. Christiansen alleges that
he was perceived by his supervisor as effeminate and submissive and that he
was harassed for these reasons. Furthermore, the harassment to which he was
subjected, particularly the “Muscle Beach Party” poster, is alleged to have
specifically invoked these “stereotypically feminine” traits. Simonton, 232 F.3d at
38. The district court commented that much more of the complaint was devoted
to sexual orientation discrimination allegations than gender stereotyping
discrimination allegations2 and that it thus might be difficult for Christiansen to
withstand summary judgment or prove at trial that he was harassed because of
his perceived effeminacy and flouting of gender stereotypes rather than because
of his sexual orientation. Even if that were Christiansen’s burden at summary
judgment or at trial—and we do not hold here that it is—it is not our task at the
This highlights an issue that may arise when a plaintiff alleges discrimination under
Title VII as well as under state and local laws that do prohibit sexual orientation
discrimination. See, e.g., N.Y. Exec. Law § 296(1)(a); N.Y.C. Admin. Code § 8‐107(1)(a).
In such a case, one would expect a plaintiff to detail alleged instances of sexual
orientation discrimination in violation of state and local law alongside alleged instances
of gender stereotyping discrimination in violation of federal law. When evaluating such
a complaint, courts should not rely on the mere fact that a complaint alleges sexual
orientation discrimination to find that a plaintiff fails to state a separate claim for
gender stereotyping discrimination, but should instead independently evaluate the
allegations of gender stereotyping.
Case 16-748, Document 128, 03/27/2017, 1998217, Page14 of 14
motion to dismiss stage to weigh the evidence and evaluate the likelihood that
Christiansen would prevail on his Title VII gender stereotyping claim. Instead,
we assess whether he has “state[d] a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). We hold that he has.3
For the foregoing reasons, we REVERSE the district court’s dismissal of
Christiansen’s Title VII claim and REMAND for further proceedings consistent
with this opinion. We AFFIRM the judgment of the district court in all other
Defendants argue on appeal that Christiansen’s Title VII claim is time‐barred.
Christiansen responds that the continuing violation doctrine and equitable estoppel
apply to his claims. Because the district court did not reach the time‐bar issue below, we
will not decide it here in the first instance. Instead, we leave it to the district court to
determine, on remand, whether Christiansen’s claims are time‐barred.
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