Plaintiff Matthew Christiansen and attorney Susan Chana Lask

The latest test of whether part of the Civil Rights Act can be read to bar workplace discrimination because of sexual orientation proved complicated Jan. 20 at the U.S. Court of Appeals for the Second Circuit.

A three-judge panel wrestled with the impact of a U.S. Equal Employment Opportunity Commission about-face on the issue, and the court's power to overturn its own precedent saying Title VII doesn't cover sexual orientation.

“It's not about sex per se—it doesn't matter who you slept with last night,” attorney Susan Chana Lask said for plaintiff Matthew Christiansen. “It's about skills.”

Christiansen, a creative director at DDB Worldwide Communications Group and an openly gay man, claimed supervisor Joe Cianciotto subjected him to ridicule and abuse by making extreme anti-gay comments, passed around a picture of Christiansen's face pasted over a woman in a bikini in the “gay sexual receiving position” and then posted it online, and drew offensive pictures of Christiansen on an office whiteboard. Included were comments about AIDS addressed to Christiansen, who is HIV-positive.

Last March, U.S. District Judge Katherine Polk Failla of the Southern District of New York, while decrying the treatment as “reprehensible,” dismissed the case, saying she was hamstrung by the circuit's decision in Simonton v. Runyon, 232 F3d 33 (2d Cir. 2000) which said Title VII's bar on discrimination “because of … sex” did not mean sexual orientation.

Jan. 20, Judges Robert Katzmann, Debra Ann Livingston and Eastern District Judge Margo Brodie had several questions on whether they could overrule Simonton or whether it would require an en banc sitting of the court to do so. Christiansen's case may come under Title VII's reach for discrimination based on sexual stereotyping, they noted, but the circuit in Simonton said clearly that a plaintiff may not use “a gender stereotyping claim to bootstrap protection for sexual orientation into Title VII.”

Lask argued the times have changed and cited the successful fights at the Supreme Court to ban prohibitions on gay sex and recognize same-sex marriage—and she urged the circuit to adopt a broader definition of “sex” in the law.

The EEOC changed positions in 2015 to state the statute logically covers sexual orientation, and the agency has succeeded in persuading some district courts that is the case.

Significantly, the lone appellate court to address the issue is the Seventh Circuit, where a three-judge panel rejected sexual orientation in Hively v. Ivy Tech Community College, 830 F. 3d 698 (2016), only to have the full court vote in October to vacate the opinion and rehear the case en banc.

Katzmann asked Barbara Sloan of the EEOC Jan. 20 why the EEOC changed its position and why it should matter to the circuit.

“We recognize that the legal landscape has changed and the understanding of sex and sexual orientation has evolved over time,” said Sloan.

The Seventh Circuit and some districts, she said, have taken note that “it all boils down to the same thing—the employer takes sex into account when it discriminates based on sexual orientation.”

Jan. 20's appeal in Christiansen v. Omnicom Group, 16-748, drew several amici, including 128 members of Congress, who in a brief by Peter Barbur of Cravath, Swaine & Moore, said, “Simonton must be overturned because it relied on incorrect interpretations of congressional actions and outdated law to justify an incoherent interpretation of 'sex' under Title VII.”

Howard Rubin of Davis & Gilbert, for all defendants but Cianciotto, argued Christiansen's claims were not actionable and the statute of limitations had clearly expired. On the latter issue, unaddressed by Failla, Katzmann asked, “Why shouldn't it just go back to the district court?”

The circuit, Rubin answered, can decide it, but he would be “pretty comfortable” about prevailing on remand.

Rick Ostrove of Leeds Brown Law, arguing for Cianciotto, denied the depictions were offensive, and when Brodie disagreed, he insisted, “It's not an attack on sexual orientation merely because it's childish and shouldn't be in the workplace.”

Katzmann quoted the late Justice Antonin Scalia as saying statutory prohibitions often “go beyond the principle evil to encompass reasonably comparable evils.”

“Isn't this a comparable evil?” he asked.

“Quite frankly, I don't think this is the case for it,” Ostrove answered, and, when pressed by the court again, said, “I think that it's an evil and I think it shouldn't exist,” but it was up to Congress to make that call.

Livingston later asked Lask if she was arguing the EEOC shift in position “would give us the authority to reverse Simonton?”

Initially, Lask said yes, but then relied on the changes in the legal landscape on sexual identity, highlighted by the Seventh Circuit's reconsideration in Hively.

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