American Bar Association
Media Alerts
Media Alerts - Christiansen v. Omnicom Group, Inc. - Second Circuit
Decrease font size
Increase font size
March 28, 2017
  Christiansen v. Omnicom Group, Inc. - Second Circuit
Headline: Openly Gay Employee Has Valid Gender Stereotyping Claim under Title VII Arising from Workplace Discrimination; Concurring Opinion Suggests Second Circuit Reconsider Whether Sexual Orientation Claims Can Serve as a Basis for Claims Under Title VII

Areas of Law: Labor and Employment, Gender Rights

Issue(s) Presented: Whether workplace harassment alleged by opening gay employee sufficiently stated a valid gender stereotyping claim under Title VII

Brief Summary: Matthew Christiansen, an HIV-positive, openly gay man, was an employee of an advertising agency. During his employment, he was subjected to a humiliating pattern of harassment by his supervisor in the form of sexually suggestive images and inappropriate remarks that referred to his effeminacy, sexual orientation, and HIV status. Christiansen sued the agency and its parent corporation for discrimination under the American Disabilities Act, Title VII of the Civil Rights Act, and state and local law. The United States District Court for the Southern District of New York granted the defendant's motion to dismiss Christiansen's claims, holding that his claims alleged sexual orientation discrimination, which the Second Circuit has ruled is not cognizable sex discrimination under Title VII. The U.S. Court of Appeals for the Second Circuit disagreed and reversed, finding that Christiansen's claims adequately alleged discrimination on the basis of gender stereotyping, which is a valid claim under Title VII. In a concurring opinion, Second Circuit Chief Judge Katzmann argued strenuously that the Second Circuit should revisit its precedential decisions that sexual orientation claims are not cognizable sex discrimination cases under Title VII.

To read the full opinion, please visit:

Extended Summary: Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against an individual based upon the individual's sex. A 1989 U.S. Supreme Court case established that this protection covers discrimination based upon gender stereotyping, finding that a woman who was told to act more femininely in order to receive a promotion was discriminated against on the basis of her sex. Subsequently, however, the Second Circuit and other circuit courts have declined to extend this language to include discrimination on the basis of sexual orientation.

Relying on, and indicating they were bound by, Second Circuit precedent, the United States District Court for the Southern District of New York dismissed Christiansen's claims on defendant's motion to dismiss for failure to state a legal claim, holding that they were rooted primarily in sexual orientation discrimination, rather than gender stereotyping, and, therefore, not covered by Title VII. However, the Second Circuit found that Christiansen had identified instances in which his supervisor discriminated against him on the basis of gender stereotyping, such as his description of Christiansen as "effeminate" to others in the office, and making reference to Christiansen's feminine qualities in sexually suggestive drawings. The Second Circuit panel explained that although it did not have authority to overrule circuit precedent stating that discrimination based upon sexual orientation is not covered by Title VII, these decisions do not lessen the protection that gay, lesbian, and bisexual individuals have against gender stereotyping, and that these individuals must be afforded the same level of protection as heterosexual individuals.

In a lengthy concurring opinion joined by District Judge Brodie (sitting by designation), Chief Judge Katzmann argued that "the legal landscape has substantially changed" since the Second Circuit's prior rulings and that this court should, in the context of an appropriate case, revisit the holding that sexual orientation claims are not cognizable under Title VII. He outlined three potential arguments, not previously considered by the Second Circuit, that might support a finding that Title VII prohibits discrimination on the basis of sexual orientation and contended that a "fresh look" was warranted given "societal understanding of same-sex relationships has evolved considerably," the EEOC position on the issue had changed, and more recent Supreme Court decisions have "afford(ed) greater legal protection to gay, lesbian, and bisexual individuals."

To read the full opinion, please visit:

Circuit Judges Katzmann and Livingston; District Judge Brodie, sitting by designation

Argument Date:

Date of Issued Opinion:

Docket Number:

Decided: Reversed and remanded

Case Alert Author: Alexandra Dobles

Counsel: Susan Chana Lask, Law Offices of Susan Chana Lask, for Plaintiff-Appellant Matthew Christiansen; Howard J. Rubin, Davis & Gilbert LLP, for Defendant-Appellees Omnicom Group Inc., DDB Worldwide Communications Group Inc., Peter Hempel, and Chris Brown; Rick Ostrove, Leeds Brown Law, P.C., for Defendant-Appellee Joe Cianciotto

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Professor Elyse Diamond

    Posted By: Elyse Diamond @ 03/28/2017 08:47 AM     2nd Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top