Geoffrey A. Mort ()
Editors’ Note: This article is subject to a Correction.
Three decades after advocates first began lobbying for it, New York’s state Legislature passed the Sexual Orientation Non-Discrimination Act, or SONDA, in 2002, which went into effect the following year. SONDA—which amended the New York Executive Law to add a new protected group—prohibits discrimination in employment, as well as housing, education and public services, on the basis of sexual orientation. The law defines sexual orientation as “heterosexuality, homosexuality, bisexuality and asexuality, whether actual or perceived.” Unlike several recent New York City laws that broke new ground in covering hitherto unprotected employees, SONDA made New York the 13th state to prohibit anti-gay bias.
SONDA observes that a primary reason for its necessity was that the “Legislature…recognizes that this prejudice [based on sexual orientation] has fostered a general climate of hostility and distrust, leading in some instances to physical violence against those perceived to be homosexual or bisexual.”1 Twelve years after its implementation, there is now a sufficient body of case law to allow some conclusions to be drawn about the degree to which SONDA has met the expectations of its backers, both in the community and the Legislature,2 by providing gay and lesbian victims of discrimination with the legal tools to combat a form of bias that was legally permissible far longer than was prejudice based on race, gender and other protected characteristics.
The body of cases that have decided SONDA claims reveal that the law has in fact proved to be effective in combatting adverse action against gay and lesbian employees based on their sexual orientation.3 However, SONDA has been more effective in some areas than others in combatting sexual orientation discrimination.
Hostile Work Environment
Certainly one of the first kinds of adverse action against gays and lesbians that comes to mind in considering workplace discrimination is the creation of hostile work environments based on homophobia. Perhaps not surprisingly, this is the area where SONDA appears to have had the greatest impact.
DeVito v. Sears, Roebuck & Co.4 is a good example of the sizable number of hostile work environment cases brought under SONDA where the plaintiff has prevailed. The plaintiff in DeVito was an auto center worker whose supervisor, aware that he was gay, subjected him to a barrage of anti-gay comments such as calling him a “fairy” and “faggot”5 for an entire year. Applying the “severe or pervasive” standard used in Title VII and state human rights law hostile work environment cases, the court seemed to have little difficulty in determining that the plaintiff had raised an issue of material fact and denied Sears’ summary judgment motion.
A similar fact pattern, and similar result, are found in Gallo v. Alitalia-Linee Aeree Italiane,6 where the plaintiff was a consultant to and former executive of Alitalia Airlines. In Gallo, the plaintiff produced evidence that his supervisor “on a daily basis—asked him about his perceived sexual orientation and made crude and discriminatory comments about gays and lesbians.”7 That was sufficient for the court to rule that the plaintiff (whose consultancy agreement was found to make him an employee) had been subjected to a hostile work environment based on his sexual orientation and deny Alitalia’s summary judgment motion.
In DeVito, Gallo and other cases where sexual orientation discrimination based on a hostile work environment has been found, courts have employed the traditional sexual harassment analysis and sought to determine whether the workplace was permeated with intimidation and ridicule to a degree that the conditions of the plaintiff’s employment were altered. So long as the anti-gay conduct of a supervisor is egregious enough to be severe or pervasive, courts have not been reluctant to find a hostile work environment constituting a SONDA violation. See also Sandiford v. City of New York Dept. of Education.8 But see Hwang v. DQ Marketing & Public Relations Group.9
Terms and Conditions
In SONDA cases alleging such conduct as discriminatory terminations, demotions, disciplinary actions and failure to hire, plaintiffs have fared somewhat less well. In Dawson v. Bumble & Bumble,10 the lesbian plaintiff alleged that her sexual orientation motivated her discharge, and asserted that her supervisor had called her a “dyke.” The court ruled for the employer because the plaintiff was unable to show that the supervisor in question had played a role in the termination decision. The same deficiency was the cause of the decision in favor of the employer in Taylor v. NYU Medical Center, 11 where the court concluded that the manager who had allegedly made anti-gay remarks was not involved in the decision to terminate the plaintiff.
As with all anti-discrimination laws, of course, a number of SONDA cases have been dismissed due to a paucity of evidence to support the plaintiff’s claims. The plaintiff in Matz v. Prospect Energy Corp.,12 for example, alleged sexual orientation discrimination in a failure-to-hire case, but did not survive a motion to dismiss due to inability to show that the employer’s decision was motivated by sexual orientation discrimination. But see County of Onondaga v. Mayock.13
How courts perceive the boundaries of SONDA was explored in Asch v. City of New York Dept. of Education.14 In Asch, the plaintiff was a gay school librarian accused of inappropriate touching of students and, as a result, suspended. The court found that touching students on the shoulder and whispering in their ears, as the plaintiff had done, were common conduct also engaged in by heterosexual and female librarians who were not disciplined for it. Because such behavior represented conduct that was an “acceptable practice…to maintain order in the library,”15 the court held that SONDA had been violated and ordered the plaintiff returned to his former employment status. Asch appears to demonstrate that at least some courts will use SONDA to protect gay and lesbian employees who are the victims of sexual orientation stereotypes.
Perceived Sexual Orientation
As noted above, SONDA also applies to individuals who are not gay or lesbian, but are perceived as being so, and the courts have not hesitated to enforce this aspect of SONDA as well. Few more clear-cut cases of perceived sexual orientation discrimination can be found than Padmore v. LC Play (note 3). The plaintiff in Padmore was not gay, but was perceived to be by his supervisor. Prior to his termination, the plaintiff received an email from his supervisor which called him a “fruit cake” and stated that “[t]he reason for your termination was because of the image of company. The models and other people had questions about your sexuality and my company can’t afford to [be] attached to no gay s–t.”16
The Padmore court seemed to have little difficulty in finding for the plaintiff. It emphasized that he was a member of a protected class, was believed to be gay by his supervisor, and that the facts clearly gave rise to an inference of discrimination.
SONDA includes heterosexuality in its definition of sexual orientation, and in Anderson v. Davis Polk & Wardwell,17 a heterosexual plaintiff attempted to use SONDA to challenge his termination. The plaintiff contended that one of his supervisors, whom he did not specifically claim was a lesbian, made sexual advances toward him. He further claimed that the employer did not terminate a gay employee who was investigated for embezzlement, and that his discharge therefore represented disparate treatment.
The court rejected the plaintiff’s allegations as mere speculation and dismissed his SONDA claims. Anderson, to the extent that any conclusions can be drawn from it, suggests that some courts may find SONDA claims by heterosexuals somewhat implausible.
At the time of SONDA’s passage, an unsuccessful attempt was made to amend it by adding protection for “transgenders,” identified as individuals ranging from cross-dressers to people undergoing sex-change procedures. This issue, however, has not gone away.
A bill called the Gender Expression Non-Discrimination Act, or GENDA—which would, among other things, prohibit employment discrimination against transgender people—has been introduced in Albany on a number of occasions and has passed in the Assembly six times, most recently in 2013. In each instance, however, the bill has stalled in the state Senate. Although transgender people are presumably a much smaller portion of the state’s population than gays and lesbians, should GENDA someday be enacted into law, there seems little doubt that it would give rise to more litigation against employers involving issues not commonly seen in SONDA cases.
There is little doubt that SONDA has had a fairly significant impact on the workplace in New York state,18 where the courts have, for the most part, been willing to enforce it. No longer novel, it is today a widely used anti-discrimination law that has provided many with protection against sexual orientation bias and curbed a once common practice of terminating and denying employment or promotions to employees on the basis of who they chose as partners.
Geoffrey A. Mort is of counsel at Kraus & Zuchlewski, where he represents employees in employment law matters.
1. New York Executive Law §296 (1)(a).
2. Many consider the election of Assemblymember Deborah Glick (D-Manhattan), the first openly gay member of the New York State Assembly and an ardent backer of SONDA, as representing the turning point in the long struggle to extend the protections of state anti-discrimination laws to gays and lesbians.
3. Padmore v. LC Play, 679 F.Supp.2d 454, 461 (S.D.N.Y. 2010), quoting New York Executive Law §292 (27).
4. 40 Misc.3d 1206(A).
5. DeVito at *11.
6. 585 F.Supp.2d 520 (S.D.N.Y. 2008).
7. Gallo at 528.
8. 94 A.D.3d 593 (1st Dept. 2012) (derogatory remarks about lesbians held sufficient to constitute hostile work environment).
9. 2009 N.Y. Misc. LEXIS 5581 (Sup. Ct. N.Y. Co.) (behavior alleged by plaintiff, which consisted of supervisors’ actions that he interpreted as sexual advances, failed to demonstrate severe and pervasive conduct sufficient to create an abusive working environment).
10. 398 F.3d 211 (2d Cir. 2005).
11. 21 Misc.3d 23 (1st Dept. 2008).
12. 63 A.D.3d 619 (1st Dept. 2009).
13. 78 A.D.3d 1632 (4th Dept. 2010) (employer’s conduct in constructively terminating gay plaintiff was pretextual and trial court’s determination ordering reinstatement of plaintiff upheld).
14. 32 Misc.3d 886 (Sup. Ct. N.Y. Co. 2011).
15. Asch at 895.
16. Padmore at 458.
17. 850 F.Supp.2d 392 (S.D.N.Y. 2012).
18. In one case, Martinez v. County of Monroe, 50 A.D.3d 189 (4th Dept. 2008), a lesbian plaintiff used SONDA to successfully challenge her government employer’s refusal to recognize her Canadian marriage license.