New York City has some of the strongest employee rights protections in the country. Federal law prohibits workplace discrimination on the basis of five factors: race, sex, religion, color, and national origin. The New York City Human Rights Law (NYCHRL) goes substantially further than this. A recent decision from a New York City court addresses the application of the NYCHRL to claims of sexual orientation discrimination, and it indicates that the statute protects against a wide range of unlawful acts by employers, managers, supervisors, and co-workers. Zimmer v. Warner Brothers Pictures, Inc., 103732/2012, NYLJ 1202777712512, at *1 (N.Y. Sup. Ct., N.Y. Cty., Dec. 23, 2016).
Title VII of the Civil Rights Act of 1964, the main federal statute addressing employment discrimination, does not expressly mention sexual orientation as a protected category. The Equal Employment Opportunity Commission (EEOC), the agency authorized to enforce Title VII, has taken the position that discrimination on the basis of sexual orientation falls under Title VII’s concept of sex discrimination. Baldwin v. Dept. of Transp., App. No. 0120133080, decision (EEOC, Jul 15, 2015). This determination is not binding on any court of law, however. Some federal district courts have ruled in favor of plaintiffs claiming sexual orientation discrimination under Title VII, but at least one appellate court has rejected such a claim. Hively v. Ivy Tech Community College, South Bend, 830 F.3d 698 (7th Cir. 2016).
While the EEOC must read between the lines of Title VII to find any sort of protection against sexual orientation discrimination, the NYCHRL is entirely unambiguous on the matter. Its prohibitions of employment discrimination include “actual or perceived…sexual orientation” as a protected category. N.Y.C. Admin. Code § 8-107(1)(a). It defines “sexual orientation” to include “heterosexuality, homosexuality, or bisexuality.” Id. at § 8-102(20).
The plaintiff in Zimmer, an openly gay man, worked as an “on-set costume designer” for a major network television program. Zimmer at *2. His complaint primarily involves one of the plaintiff’s direct supervisors, a first assistant director (AD). He alleges that, during an overnight outdoor shoot in November 2011, the AD asked for a coat because of the cold. The AD allegedly rejected the coat offered by the plaintiff, however, saying “it’s too gay.” Id. In response to a complaint, the plaintiff claims that the production company offered to move him to a different assignment, which he did not want. He alleges that the company took no apparent disciplinary action against the AD.
The production company and the AD moved for summary judgment on the plaintiff’s lawsuit. The court denied their motion with regard to the sexual orientation discrimination claims. It found that the plaintiff had met the NYCHRL’s pleading requirements, noting that while the AD’s remarks were not “pervasive,…their impact was harsh and hurtful.” Id. at *7. The AD’s use of the word “gay,” the court noted, “unmistakably convey[ed] that ‘gay’ is undesirable or unacceptable.” Id. It therefore allowed that part of the lawsuit to proceed.
The skilled and experienced sexual orientation discrimination attorneys at Phillips & Associates advocate for the rights of New York City job applicants, employees, and former employees. We represent our clients in discrimination claims based on sexual orientation, gender identity or gender expression, and other characteristics under city, state, and federal laws. To schedule a free and confidential consultation to discuss your case, contact us today online or at (212) 248-7431.
More Blog Posts:
Actors Fight Against Sexual Harassment in New York City Theater, New York Employment Attorney Blog, January 29, 2016
New York City Affordable Housing Worker Alleges Sexual Harassment, Other Unlawful Acts by Construction Company, New York Employment Attorney Blog, December 3, 2015
Former Employee of New York Marketing Firm Sues for Harassment, Sexual Orientation Discrimination, New York Employment Attorney Blog, July 29, 2015