On September 16, 2016, in Christiansen v. Omnicom Group Inc. et al., 16-cv-748 (2d Cir 2016), ad agency DDB Worldwide (“DDB”) argued before the Second Circuit that Title VII does not support discrimination claims based on sexual orientation. 
 
The case was appealed by Matthew Christiansen, an HIV-positive gay man, who alleges that a supervisor harassed and discriminated against him with impunity. At the trial level, the Southern District of New York, relying on the Second Circuit’s prior ruling in Simonton v. Runyon, held that Title VII does not protect against sexual orientation discrimination.  Judge Failla, who penned the district court’s ruling, discussed the Simonton v. Runyon case, which “unequivocally” held that Title VII does not provide a basis upon which to bring sexual orientation discrimination claims.  However, Judge Failla was careful to note that the legal environment concerning sexual orientation has changed greatly since Simonton v. Runyon—notably, the Supreme Court’s ruling in United States v. Windsor struck down the Defense of Marriage Act, the ruling in Obergefell v. Hodges, provided same-sex couples the right to be married, and the EEOC decision in July 2015 held that allegations of sexual orientation discrimination are permissible under Title VII.
 
DDB seeks to affirm the lower court’s ruling, while Christiansen seeks to overturn it—and Simonton v. Runyon—with the help of amici briefs from Lambda Legal Defense and Education Fund, the ACLU, the EEOC, and 128 Congressional Democrats.
 
The Second Circuit can potentially avoid upending Simonton v. Runyon based on timeliness grounds.  DDB alternatively argues that Christensen’s claims are time-barred since the alleged harassment occurred more than 300 days prior to the filing of a charge with the EEOC.  Here, Christiansen counters with an equitable tolling argument.
 
Stay tuned to see if the Second Circuit will rule on whether sexual orientation discrimination claims can be brought under Title VII. If they overrule Simonton v. Runyon, employers should expect more sexual orientation discrimination claims to be brought in the Second Circuit.  Currently, the EEOC interprets Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on sexual orientation, but the Seventh Circuit in July held that Title VII does not encompass discrimination on the basis of sexual orientation.  See Hively v. Ivy Tech Comm. College, No. 15-cv-1720, 2016 WL 4039703 (7th Cir. Jul. 28, 2016).  Courts are still waiting to see if either the legislature or the Supreme Court will take up this hot button issue.