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by Lee Bantle / No comments

The Emerging Field of Equal Rights for Gay and Lesbian Employees

I. Statutes Prohibiting Sexual Orientation Discrimination

A. New York State Human Rights Law

After having been proposed without passage for 31 years, the Sexual Orientation Non-Discrimination Act (S. 720/A. 1971) finally became law in New York State, effective January 16, 2003. The law, known as SONDA, does not create a new statute, but simply amends the New York Human Rights law to insert “sexual orientation” after “national origin” and before “sex” in every place where those terms appear. An effort to amend the legislation prior to passage to explicitly prohibit discrimination based on gender identity was unsuccessful.

Sexual orientation will now be treated as any other protected category in employment litigation under state law. An employee alleging discrimination based on sexual orientation will bear the same burdens and have available the same remedies as an employee alleging discrimination based on any other protected category under the state human rights law.

Prior to the passage of SONDA, the only statewide protection for gay and lesbian employees was found in an executive order issued by Governor Mario Cuomo in 1987 which prohibited such discrimination by state agencies and departments. That executive order was enforced by the State Division of Human Rights. Now all gay and lesbian employees, whether working for public or private employers, will be able to challenge discrimination against them by filing a claim with the State Division of Human Rights or by bringing suit in court.

New York joins twelve other states (California, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, Rhode Island, Vermont, and Wisconsin), the District of Columbia, and numerous municipalities that have adopted such legislation. Federal legislation to prohibit sexual orientation discrimination in employment (“ENDA”) is pending, but is not close to becoming law at present.

SONDA amends the definitions section of the Executive Law (§ 292) to add a new subdivision 27 which reads: “The term ‘sexual orientation’ means heterosexuality, homosexuality, bisexuality, or asexuality, whether actual or perceived. However, nothing contained herein shall be construed to protect conduct otherwise proscribed by law.”

Beyond prohibiting sexual orientation discrimination in employment, SONDA amends New York State law to prohibit sexual orientation discrimination in training programs, public accommodations, housing, credit and education.

One intriguing possibility raised by the adoption of SONDA is assertion of a disparate impact claim seeking employment benefits for an employee’s gay or lesbian life partner and children. In Levin v. Yeshiva University, 96 N.Y.2d 484, 730 N.Y.S.2d 15 (2001), the New York Court of Appeals considered Yeshiva University’s restriction of housing to those with legally recognized family relationships with a student. The restriction, though facially neutral, was found to run afoul of the prohibition against sexual orientation discrimination under the New York City Human Rights law. A similar theory could now be used to seek benefits in the employment context. However, because of ERISA preemption with regard to private employers, such a theory could only be brought against municipal employers.

Though gender identity was not explicitly added to the New York State Human Rights Law at the time SONDA was passed, a number of courts have granted protection to transgender individuals under the prohibitions against sex discrimination and disability. See, e.g., Rentos v. OCE-Office Systems, 72 Fair Emp. Prac. Cas. 1717, 1996 WL 737215 (S.D.N.Y. 1996); Maffei v. Kolaeton Industry, Inc., 164 Misc.2d 547, 626 N.Y.S.2d 391 (Sup Ct. N.Y. Cty. 1995); Enriquez v. West Jersey Health Systems, 342 N.J. Super. 501, 777 A.2d 365 (2001)

B. Municipal Human Rights Laws In New York State

The following cities in New York have sexual orientation non-discrimination laws: Albany, Buffalo, Hampton, Ithaca, New York City, Rochester, and Syracuse. The following counties have such laws: Albany, Nassau, Onondaga, Tompkins and Westchester.

The New York City Law, which has now been on the books for more than ten years, is codified at New York City Administrative Code § 8-101 et. seq. A body of case law has now developed interpreting the statute in the context of cases alleging sexual orientation discrimination in employment. Recently decided employment cases under that statute include: Bell v. Helmsley, 2003 N.Y. Misc. LEXIS 192 (Sup. Ct. N.Y. Cty. 2003) (vacating award of compensatory damages and reducing $10 million award of punitive damages to $500,000); Lane v. Collins & Aikman Floorcoverings, Inc., 87 Fair Empl. Prac. Cas. 449, 2001 WL 1338918 (S.D.N.Y. 2001) (denying defendants’ motion for summary judgment on a sexual orientation discriminatory discharge claim); Lane v. Collins & Aikman Floorcoverings, Inc., 89 Fair Empl Prac. Cas. 1470, 2002 WL 1870283 (S.D.N.Y. 2002) (denying defendants’ post-trial motion for judgment as a matter of law); Morrison v. Command Security Corp., 275 A.D. 2d 221, 711 N.Y.S. 2d 887, 2000 N.Y. Slip Op. 07311 (1st Dep’t , Aug. 3, 2000) (unpub. op.) (affirming refusal to dismiss gay male’s hostile work environment claim).

These local statutes may be more favorable to employees than the New York State law. While the New York Human Rights law does not provide for attorneys’ fees or punitive damages, those remedies are available under the New York City Administrative Code Thus, for employees who work in New York City, asserting claims under both statutes will assure the full panoply of remedies available in employment litigation.

C. Title VII

While Title VII does not prohibit sexual orientation discrimination, and all attempts to interpret the statute broadly to provide such coverage have failed, a line of cases has emerged that may provide protection to gay or lesbian employees who do not conform to sexual stereotypes.

Following the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1988), a plaintiff who has been subjected to a harassment or an adverse job action based on “failure to conform to sex stereotypes” can seek relief under Title VII’s prohibition of discrimination based on sex. Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864, 874 (9th Cir. 2001) (quoting Hopkins). Thus, in Nichols, a waiter who was regularly subjected to verbal harassment, including homophobic slurs, because of his effeminate mannerisms was able to successfully assert a claim under Title VII.

The plaintiff in Centola v. Potter, 183 F.Supp. 403 (D. Mass 2002) also used a sexual stereotyping theory to seek relief under Title VII for discriminatory treatment, including more severe disciplining by supervisors, and anti-gay harassment. Interestingly, the Centola court articulated the possibility of mixed motive approach under Title VII, where the adverse employment action or harassment suffered can be considered motivated both by the plaintiff’s sexual orientation, which is permissible under Title VII, and by the plaintiffs failure to conform to sexual stereotypes, which is not. The Centola court also noted the possibility of an expansive interpretation of sexual stereotyping noting that because “[s]exual orientation harassment is often . . . motivated by a desire to enforce heterosexually defined gender norms, . . . a plaintiff who is perceived by harassers as stetereotypically masculine in every way except for his actual or perceived sexual orientation could maintain a Title VII cause of action alleging sexual harassment because of his sex due to his failure to conform with sexual stereotypes about what ‘real’ men do or don’t do.” Id. at 410.

In Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), the Second Circuit suggested its approval under Title VII for a sexual stereotyping theory on behalf of a gay man harassed on the job. The Court found that such a theory would not “bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine.” Id. at 38.

It is now settled that same-sex sexual harassment is prohibited conduct under Title VII. Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 118 S. Ct. 998 (1998). In Rene v. MGM Grand Hotel, Inc., 2002 U.S. App. LEXIS 20098. (9th Cir. 2002), the Ninth Circuit, sitting en banc, and relying heavily on Oncale, issued a plurality opinion holding that the harassing sexual touching of a gay man by his presumably non-gay male co-workers gave rise to a claim under Title VII for gender discrimination.

II. Non-Statutory Bases to Challenge Sexual Orientation Discrimination

A. Constitutional Claims

The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution is increasingly being used with some success to attack “irrational” discrimination against gays and lesbians by state actors. In Quinn v. Nassau County Police Department, 53 F. Supp. 2d 347 (E.D.N.Y. 1999) the plaintiff, a gay male police officer, brought an Equal Protection claim after experiencing significant workplace harassment on the basis of his sexual orientation. In upholding the claim, the Quinn court based its ruling on the Supreme Court’s decision in Romer v. Evans, 517 U.S. 620 (1996), which “established that government discrimination against homosexuals, in and of itself, violates the Equal Protection Clause.” Quinn, 53 F. Supp. at 357.

The Quinn decision was followed in Lovell v. Comsewogue School District, 214 F.Supp.2d 319 (E.D.N.Y. 2002), where the U.S. District Court for the Eastern District of New York upheld the Equal Protection claim of a lesbian school teacher who was harassed by her students due to her sexual orientation without effective remedial action by the school district. The Lovell court found that the plaintiff’s statement that her complaints to the district were taken less seriously than complaints based on racial harassment sufficiently alleged an Equal Protection violation.

In Miguel v. Guess, 51 P.3d 89 (Wash. App. 2002), the Washington State Court of Appeals upheld under the U.S. Constitution an Equal Protection claim of a lesbian hospital employee who alleged that she had been dismissed on the basis of her sexual orientation. The court followed Romer and Quinn in holding that “a state actor violates a homosexual employee’s right of equal protection when it treats that person differently than its heterosexual employees solely upon the employee’s sexual orientation.”

The pending Supreme Court decision in Lawrence v. Texas, which considers the constitutionality of Texas’s sodomy statute, may have bearing on equal protection analysis for gay and lesbian employees. If the Court finds gays and lesbians to be a suspect class or quasi-suspect class (hope springs eternal), the rights of gay and lesbian public employees to be free of discrimination will be greatly strengthened.

B. Implied Contract Claims

Many employers have adopted policies prohibiting discrimination based on sexual orientation. Depending on the wording of such policy, and limitations which may be contained in the manual where such a policy is contained, a breach of contract claim may be available. The aggrieved employee would have to allege an express limitation on the employer’s right to discharge on grounds of sexual orientation. See, e.g., Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458 (1982); Murphy v. American Home Products, Corp., 58 N.Y.2d 293 (1983); Gorrill v. Icelandaid/Flugleidir, 761 F.2d 847 (2d Cir. 1985).

III. Practical Issues

A. Establishing Knowledge of an Employee’s Sexual Orientation

A suit alleging discrimination based on sexual orientation raises the central problem of proof that any discrimination case raises, namely, establishing at trial that the adverse action was motivated by discriminatory animus. Yet, there is often another hurdle in a sexual orientation case. It must first be established that the decisionmakers (or those who influenced them) had knowledge of the plaintiff’s sexual orientation. Ideally, the plaintiff has brought his or her life partner to the holiday party or has otherwise been open at work. But if not, you must consider whether there is a reasonable possibility of proving knowledge at trial. Discovery, properly conducted, my yield substantial admissible evidence. Has your client’s sexuality been the subject of employee gossip which reached the ears of management? (The hearsay rule should not preclude admission of such evidence because it goes to state of mind, not truth.) Did your client solicit funds for the GMHC AIDS walk? Is your client’s life partner listed as the beneficiary of a life insurance policy? Did your client bristle and walk away when a gay joke was told? Is there a picture of your client’s life partner on his or her desk? All of these types of inquiries, or others which your client may be able to suggest, should be pursued.

B. Establishing Bias

While proving knowledge of your client’s sexual orientation is an extra burden, these types of cases will sometimes yield more comments evidencing bias than Title VII cases. Gay bias is still socially acceptable in some quarters and there is a lack of awareness concerning the employment protections that a limited number of states and municipalities afford gays and lesbians. As such, some people do not shy away from using anti-gay epithets or telling insulting jokes the way they might with respect to gender, race or age. During depositions, you must query every witness on what they have said or heard in this regard. By the time of trial you may have developed quite an arsenal of comments that supports the claim of sexual orientation discrimination.

C. Selecting A Jury

Jury selection is another area where sexual orientation cases must be very carefully handled. In any voir dire panel there are likely to be some people who are not positively inclined toward gays and lesbians, have religious qualms, or are just not comfortable with the issue. This may impede identification with the plaintiff which is key to winning cases. It is imperative to ensure questioning of potential jurors on their possible bias. A few sample questions are: Is there anything about the nature of the case, the parties, or the kinds of issues that my arise that raises a concern in your own mind about whether or not you could be a fair and impartial juror? Does the fact that plaintiff is gay cause you to lean towards the plaintiff, lean toward the defendant, or make no difference? If a good friend told you that he or she was gay, do you think this would affect your friendship in any way? Of course, jurors who harbor a bias may be reluctant to give honest answers to these questions in open court. You might consider making a motion to question the panel by means of a questionnaire or, at least, to have these questions asked out of the presence of other jurors.

The plaintiff’s lawyer in a sexual orientation case faces a particular dilemma in jury selection. While admittedly talking in terms of stereotypes, those generally thought to be good plaintiff’s jurors (i.e., less educated, working class) may be more likely to harbor anti-gay bias than those who are thought to be good defendant’s jurors (i.e., more educated, management level). This reinforces the need to ensure jurors are screened for bias.


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T: 212.228.9666 / F: 212.228.7654 /