Sexual Orientation in New York: Are You Protected?

            The Court of Appeals for the Second Circuit recently heard on a case from a pro se appellant, Robert Dingle, regarding allegations of harassment in the workplace based on his perceived sexual orientation.  See Dingle v. Bimbo Bakeries USA/Entenmann's, No. 14-1215-CV, 2015 WL 8952903 (2d Cir. Dec. 16, 2015).  This former employee of Bimbo Bakeries USA (no, I am not making that name up) otherwise known as Entemann’s, sued his former employer claiming a hostile work environment while employed for the large bakery distributor.  Dingle raised claims under Title VII, the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”).

In his second complaint, he alleged a nude photo of a man that looked similar to him was distributed among employees at Bimbo Bakeries.  Following the picture incident, Dingle said he was subjected to “degrading comments about his genitals,” was questioned about his sexual orientation and faced a month of degrading and obscene remarks about him, e.g. that he is homosexual. Id.  None of Dingle’s co-workers making such comments were disciplined. Here, the Secord Circuit ruled that no Title VII claim existed, but remanded his claims of retaliation and hostile work environment under the NYSHRL and NYCHRL.

This is definitely not the first time New York has dealt with sexual orientation claims.  In fact, perceived sexual orientation is a category that is expressly protected under the NYSHRL and the NYCHRL. But what exactly is sexual orientation? N.Y. Executive Law § 292(27) defines “sexual orientation” to mean “heterosexuality, homosexuality, bisexuality or asexuality, whether actual or perceived” (emphasis added).  Under N.Y. Executive Law § 296(1)(a), it is an unlawful discriminatory practice for an employer, “because of an individual's age, race, creed, color […] sexual orientation…to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”  This law works in congruence with New York’s SONDA Act (the Sexual Orientation Non-discrimination Act) that also protects people in the employment context based on their actual or perceived sexual orientation.  Lastly, the N.Y.C. Administrative Code § 8-107(1)(a) also provides protections in the workplace, stating that it is unlawful for an employer to discriminate based on the “actual or perceived” sexual orientation in hiring and firing decisions, or “to discriminate against such person in compensation, and the terms or privileges of employment.

The use of such laws and acts were demonstrated in the Roberts v. United Parcel Service, Inc. et al, Docket No. 1:13-cv-06161 (E.D.N.Y. Nov 07, 2013). In an Eastern District case, a woman named Tameeka Roberts sued the United Parcel Service, Inc. (“UPS”), after much discrimination regarding her being a lesbian and having a lesbian partner.  Ms. Roberts raised claims under the NYSHRL and NYCHRL regarding her sexual orientation being the focus of her discrimination in the workplace.  Ms. Roberts faced harsh comments such as “being lesbian is wrong” and “being lesbian is a sin because it says so in the Bible” “had demons in her and was going to hell.”  Moreover, even after complaining about these comments to UPS, no corrective actions or measures were taken by UPS and allowed the comments to discrimination to ensue.  Ultimately, on July 27, 2015, Judge Jack B. Weinstein found there was a “sufficient evidentiary basis to support the jury’s verdict that defendant UPS subjected plaintiff to a hostile work environment based on her sexual orientation” and “retaliated against her for complaining” He then ordered over $25,000 for each claim and denied UPS both their motion for judgment as a matter of law and their motion to vacate the punitive damage award.

A case recently filed in Eastern District on Sepember 21, 2015, involves a lesbian woman is claiming her employer made comments stating she should wear her hair down to “look prettier” and a co-worker telling the lesbian woman’s wife on the phone she was unavailable to answer her call because “her wife wanted to be with a real man” Thomson v Odyssey House, 14-CV-3857 MKB, 2015 WL 5561209, at *2 [EDNY Sept. 21, 2015].  Thus, these cases will be continue to be brought and fought, and sexual orientation cases will continue to rise, especially in New York.

            In the ever changing field of employment discrimination and the advancements of protections of sexual orientation and gender-identity, knowing what is actionable under New York law and federal law is vital to protect anyone falling within these classes.  If you believe you have been subjected to discriminatory treatment in the workplace, contact our firm now to determine if you have an actionable claim.


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