Judge Katherine Polk Failla of the Southern District of New York on March 9 decided Christiansen v. Omnicom Group, a case involving a complaint by a homosexual man that his supervisor had harassed him incessantly because of his sexual orientation. Among other things, Christiansen’s tormentor drew pornographic pictures of him, referred to him as “the gay guy,” and alluded to his HIV-positive status. Notwithstanding this extreme conduct, the court reluctantly dismissed his claim made under Title VII of the Civil Rights Act of 1964.
The judge did so on constraint of precedent set by the U.S. Court of Appeals for the Second Circuit that discrimination “because of … sex” does not encompass actions premised on a worker’s gay or lesbian status. Acknowledging that Title VII does cover nonconformity to sexual stereotypes, such as the supposedly unfeminine behavior of the female accountant who prevailed in Price Waterhouse v. Hopkins (1989), Failla nonetheless found that Christiansen could not win on this ground since his boss had depicted him as ” ‘muscle bound’ … overtly (indeed, overly) masculine.”
