16

‐ 748

Christiansen v. Omnicom Group, Inc.

UNITED STATES COURT OF APPEALS

F OR THE S ECOND C IRCUIT

_______________

August Term, 2016

(Argued: January 20, 2017 Decided: March 27, 2017)

Docket No. 16

‐ 748

_______________

A NONYMOUS

,

Plaintiff

,

M ATTHEW C HRISTIANSEN

,

Plaintiff

‐ Appellant,

– v.

–

O MNICOM G ROUP

, I NCORPORATED

, DDB W ORLDWIDE C OMMUNICATIONS G ROUP

I NCORPORATED

, J OE C IANCIOTTO

, P ETER H EMPEL

, AND C HRIS B ROWN

,

Defendants

‐ Appellees

.

_______________

B e f o r e:

R OBERT A. K ATZMANN

, Chief Judge

, D EBRA A NN L IVINGSTON

, Circuit Judge, and

M ARGO K. B RODIE

, District Judge

. *

_______________

* Judge Margo K. Brodie, of the United States District Court for the Eastern District of

New York, sitting by designation.2 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.

K ATZMANN

, Chief Judge

, concurs in a separate opinion, in which B RODIE

,

District Judge

, joins.

_______________

S USAN C HANA L ASK

, Law Offices of Susan Chana Lask, New York,

NY, for Plaintiff

‐ Appellant Matthew Christiansen.

H OWARD J. R UBIN (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

Chris Brown.

R ICK O STROVE

, Leeds Brown Law, P.C., Carle Place, NY, for

Defendant

‐ Appellee Joe Cianciotto.

B ARBARA L. S LOAN

, Attorney, Equal Employment Opportunity

Commission, Office of General Counsel, Washington, D.C. (P.

David Lopez, General Counsel; Jennifer S. Goldstein,3 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

‐ Appellant

.

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

‐ Appellant.

_______________4 P ER C URIAM :

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, 622.5 Christiansen primarily appeals this aspect of the district court’s decision. 1

I. B ACKGROUND

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

1 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.6 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

HIV

‐ positive.

On October 19, 2014, Christiansen submitted a complaint to the Equal

Employment Opportunity Commission (“EEOC”) detailing the harassment7 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 that8 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.

II. D ISCUSSION

“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 draw9 the reasonable inference that the defendant is liable for the misconduct alleged.”

Id

.

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 gender10 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 body11 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.12 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

stereotyping claim.13 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 allegations 2 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

2 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.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

III. C ONCLUSION

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

respects.

3 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.1 K ATZMANN

, Chief Judge

, with whom B RODIE

, District Judge

, joins,

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 gender2 stereotypes, particularly stereotypes about the proper roles of men and women

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 a nd Dawson

, especially in

light of the changing legal landscape that has taken shape in the nearly two

decades since Simonton issued.

I. 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 “because3 of

. . . sex” if that person is “exposed to disadvantageous terms or conditions of

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, Dep ʹ t 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),4 because sexual orientation is defined by whether a person is attracted to people

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 80.5 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)6 (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.

II. 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]7 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

1 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).8 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 the9 associational theory of sex discrimination as applied to sexual orientation

discrimination.

III. 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 have10 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

Waterhouse

.

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,11 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 and12 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.

IV. Congressional Inaction

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).13 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.

V. Conclusion

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.14 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 demonstrate15 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

it.