Trial Court Revives Claim By Enforcing Appellate Decision Holding Sexual Orientation Discrimination Is Unlawful

Having represented employees in employment law cases for almost twenty years, our Alachua County, Florida employment discrimination lawyers have learned that employment law is an area of law that is continuously changing and evolving. One area of employment law that is being rapidly transformed is the protection afforced to gay and lesbian employees. In Hively v. Ivy Tech Community College of Indiana, 853 F.3d 33 (7th Cir. 2017), the U.S. Seventh Circuit Court of Appeals became the first federal appellate court to hold that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). In Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), the U.S. Second Circuit Court of Appeals became the second federal appellate court to hold that sexual orientation discrimination is covered under Title VII’s prohibition against sex discrimination.

Although not binding in Florida state or federal courts, the decisions in Hively and Zarda afford legal remedies to gay and lesbian employees who endure discrimination in the workplace because of their sexual orientation. Prior to Hively and Zarda, every federal appellate court to squarely address the issue held that discrimination on the basis of sexual orientation is not a form of sex discrimination prohibited by Title VII. As a result, gay and lesbian employees who attempted to extend Title VII’s protection against sex discrimination to sexual orientation discrimination had their cases dismissed. The recent decision by the U.S. District Court for the Northern District of New York in Dollinger v. New York State Insurance Fund, No. 14-908 (N.D. N.Y. Oct. 9, 2018) illustrates the immediate impact of the Second Circuit’s decision in Zarda.

Previously Dismissed Claim Is Revived

In that case, Robert Dollinger (Dollinger) sued his employer, the New York State Insurance Fund (NYSIF), pursuant to Title VII and the Americans with Disabilities Act (ADA). Dollinger claimed that he was subjected to hostile work environment harassment because of his sexual orientation in violation of Title VII. Dollinger also claimed that he was discriminated against because of his disability in violation of the ADA. The trial court initially dismissed Dollinger’s hostile work environment harassment claim because existing Second Circuit precedent held that Title VII does not prohibit discrimination on the basis of sexual orientation.

However, while Dollinger’s ADA claim remained pending with the trial court, the Second Circuit handed down the Zarda decision. In its opinion, the Zarda court specifically instructed the Dollinger court to reconsider the dismissal of Dollinger’s hostile work environment harassment claim under Title VII. Consequently, Dollinger filed a motion with the trial court seeking to amend his complaint and reassert his initial claim that he was harassed because of his sexual orientation in violation of Title VII. NYSIF opposed the motion and argued that Dollinger’s allegations did not meet the necessary threshold of hostility to establish a Title VII hostile work environment harassment claim. The trial court granted Dollinger’s motion and ruled that Dollinger could move forward with his claim that he was subjected to hostile work environment harassment because of his sexual orientation in violation of Title VII.

Employee Harassed Because Of His Sexual Orientation

Dollinger claimed that he was subjected to egregious harassment because of his sexual orientation during his employment with NYSIF. Dollinger alleged that he “received emails having to do with his sexual orientation, including unwanted pictures of men as well as derogatory stereotype representations of gay men and sex.” According to Dollinger, one message he received was captioned “NO AIDS” and portrayed a symbolic male figure engaging in unsafe sex with a line drawn through it.” Dollinger also claimed that he was emailed “an image entitled ‘Gay Terrorist’ and it depicted a man dressed like a woman in high heels.” Dollinger further alleged that he received emails featuring “fully or partially nude men.” On one occasion, Dollinger received an email that was supposed to contain work material and when Dollinger opened the email, a “nude male graphic appeared on the screen and a related audio began playing.”

In finding that Dollinger stated a cause of action for hostile work environment harassment based on his sexual orientation in violation of Title VII, the trial court pointed out that “many courts” have refused to dismiss hostile work environment harassment claims when the victim claimed that he or she was “sent graphic sexual imagery” or graphic sexual imagery was “displayed in the workplace.” As in those cases, the trial court observed, Dollinger alleged that “lewd and hostile” pornographic images were frequently “sent directly” to him. Given that he was repeatedly “targeted” for obscene pornographic images “because of his sexual orientation,” the trial court concluded, Dollinger’s allegations met the necessary threshold of hostility to establish a Title VII hostile work environment harassment claim. Consequently, but for the Second Circuit’s landmark decision in Zarda, Dollinger would have been deprived of a legal remedy for the alleged harassment he endured because of his sexual orientation.

Free Consultation With Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience representing victims of employment discrimination. If you have been the victim of workplace discrimination or have questions about your protection from discrimination on the basis of sexual orientation, please contact our office for a free consultation with our Alachua County, Florida employment discrimination attorneys. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.