A Breitling store in Manhattan. Photo: Shutterstock

Recent substantive changes to sexual orientation discrimination law in the U.S. Court of Appeals for the Second Circuit resulted in a reversal and remand Monday of a 2016 summary judgment dismissing similar Title VII claims.

Frederick Cargian, who is gay, sued Swiss watch manufacturer Breitling for discrimination, after allegedly being fired from his position as sales representative following the hiring of a new president in 2010. Cargian claimed that the new president created a “boy’s club” atmosphere in his inner circle—which meant the exclusion of Cargian.

Over the course of the next two years, Cargian says management continuously changed his sales goals and territory, leading to low results and decreased salary. After hiring a younger, less-experienced representative to handle area he’d previously covered, Cargian says he was fired in 2013.

Cargian filed suit in 2015, alleging, among other things, violation of the Civil Rights Act of 1964 for being discriminated against based on his sexual orientation, among other claims. In September 2016, U.S. District Judge George Daniels of the Southern District of New York granted summary judgment in favor of Brietling. As noted, Title VII was not a recognized protection against private employers discriminating on the basis of sexual orientation in the circuit.

That changed in February, in the circuit’s en banc decision in Zarda v. Altitude Express. The suit, brought by the estate of a former parachute instructor, challenged the ability to bring just such discrimination claims. The court in that case recognized the “changing legal landscape that has taken shape” since it last weighed in on the issue, two decades prior. The appellate court ruled that Title VII does, in fact, prohibit sexual discrimination, finding it fell squarely under the “because of … sex” protections in federal law.

“Because the legal framework for evaluating Title VII claims has evolved substantially in this circuit, we conclude the district court should have the opportunity to consider in the first instance whether Cargian’s claims can survive a motion for summary judgment after Zarda altered that legal landscape,” wrote the panel of Circuit Judges Peter Hall and Raymond Lohier Jr., with Senior Judge Jane Restani of the U.S. Court of International Trade, sitting by designation.

The district court was also free to consider exercising supplemental jurisdiction over Cargian’s other state claims, the panel added.

Cargian’s lawyer, private attorney Janice Goodman, said in a statement that she and her client were very pleased the court recognized Cargian’s claims under Title VII.

“We look forward to vindicating Mr. Cargian’s rights at a trial,” she said.

Breitling’s appellate legal team at Fox Rothschild was led by partner Glenn Grindlinger. In a statement, he said the company does not take a position on the recent changes to circuit law. However, he said, the company does not discriminate based on sexual orientation, noting its own internal policy against such actions.

“We are confident that if the district court gets an opportunity to examine the facts of this case against the new standard articulated by the Second Circuit, the outcome will remain the same—Breitling has not and does not discriminate,” Grindlinger said.


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