A former CNN employee has sued the company and his supervisors alleging, among other things, discrimination on the basis of gender and retaliation under Title VII.  The NY Daily News and FTVlive both have pieces on this new suit.  The Complaint itself, which you can read here, is fascinating, both because it offers a rare behind-the-scenes glimpse and because it gives me an opportunity to discuss “hostile work environment” and protection of gays and lesbians under Title VII of the Civil Rights Act.  The Plaintiff is seeking $5m in compensatory damages, plus punitives.

First, a thumbnail of the Complaint:  William Kane allegedly worked for CNN for ten-plus years before anyone knew he was gay.  During that time, he routinely became known for wearing brightly colored clothing, but was never challenged for it.  Simply put, he claims that once the company found out he was gay, his immediate supervisors began to harass him and that he was ultimately terminated as a result.

Hostile work environment does not mean what you probably think it means.  Ordinarily, it is not a cognizable “cause of action” absent some claim that the “hostile work environment” is a result of some form of unlawful discrimination.  Under federal law, the forms of unlawful discrimination are set forth in Title VII of the Civil Rights Act and are generally limited to race, color, religion, sex, and national origin.  Simply put, sex means gender, it does not ordinarily mean orientation.  Note: The EEOC has held that discrimination against an individual because that person is transgender is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964.  Also, critically, beginning in 2003, New York state law does expressly prohibit workplace discrimination on the basis of sexual orientation.

This blog post is just about the federal law claims.

To make a case of “hostile work environment” under Title VII, you usually have to prove that you have been subjected to severe or pervasive treatment enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive on the basis of race, color, religion, sex, or national origin.

This case alleges, among other claims, that the Plaintiff, William Kane, was subjected to such an environment on the basis of his sex.  More specifically, his complaint alleges that he “was treated differently because he refused to act in conformity with male stereotypes.”  The Second Circuit, comprised in part by New York state, has addressed whether Title VII applies in such situations.

The Second Circuit’s analysis reflects the state of the law across much of the country and illustrates the real challenges this Plaintiff will face in a New York federal court:

Title VII protects a limited class of persons from discrimination. Protection is limited to individuals who are discriminated on the basis of “race, color, religion, sex, or national origin.” Sexual orientation is not included in the statutory protected class. In Simonton v. Runyon, 232 F.3d 33 (2d Cir.2000), this Court upheld a district court’s dismissal of a Title VII claim based on sexual orientation because, “[t]he law is well-settled in this circuit and in all others to have reached the question that [the plaintiff] has no cause of action under Title VII because Title VII does not prohibit harassment or discrimination because of sexual orientation.” The Court noted that the legislative history was scant on whether sexual orientation should be included in the category of “sex,” but the Court concluded, based on numerous bills attempting to extend Title VII protection to sexual orientation, that Congress did not intend to include sexual orientation in Title VII’s current form.

Based on this Court’s interpretation of Title VII in Simonton, Kiley may not bring a claim under Title VII for discrimination based on sexual orientation. See Dawson v. Bumble & Bumble, 398 F.3d 211, 217-18 (2d Cir.2005) (“[T]o the extent that [the plaintiff] is alleging discrimination based upon her lesbianism, [the plaintiff] cannot satisfy the first element of a prima facie case under Title VII because the statute does not recognize homosexuals as a protected class.”).

Kiley v. American Soc. for Prevention of Cruelty to Animals, 296 Fed.Appx. 107, at *1-2 (2nd Cir. 2008)(some internal citation omitted).

That case goes on to read:

Plaintiffs may bring Title VII claims alleging that an adverse employment decision was due in part to sexual stereotyping by the employer. However, a plaintiff may not use a gender stereotyping claim to “bootstrap protection for sexual orientation into Title VII.”

Kiley v. American Soc. for Prevention of Cruelty to Animals, 296 Fed.Appx. 107, at *2 (2nd Cir. 2008)(emphasis added)(internal citation omitted).

More analysis from another Second Circuit case:

When utilized by an avowedly homosexual plaintiff, however, gender stereotyping claims can easily present problems for an adjudicator. This is for the simple reason that “[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.” Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to “bootstrap protection for sexual orientation into Title VII.” See also Lex K. Larson, 10 Employment Discrimination § 168.10[1] (2d ed. 2003) (“It is not uncommon for plaintiffs to fall short in their Title VII pursuits because courts find their arguments to be sexual orientation (or other unprotected) allegations masquerading as gender stereotyping claims.”); Kristin M. Bovalino, How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation, 53 Syracuse L.Rev. 1117, 1134 (2003) (counseling “gay plaintiffs bringing claims under Title VII[to] emphasize the gender stereotyping theory and de-emphasize any connection the discrimination has to homosexuality”).

 

Similarly, district courts in this Circuit have repeatedly rejected attempts by homosexual plaintiffs to assert employment discrimination claims based upon allegations involving sexual orientation by crafting the claim as arising from discrimination based upon gender stereotypes. See Martin v. New York State Dep’t of Corr. Servs., 224 F.Supp.2d 434, 447 (N.D.N.Y.2002) ( “The torment endured by Martin … [t]he name-calling, the lewd conduct and the posting of profane pictures and graffiti are all of a sexual, not gender, nature.”); Samborski v. West Valley Nuclear Servs., Co., 2002 WL 1477610, at *3 n. 11 (W.D.N.Y. June 25, 2002) (stating in dicta that although “being called a ‘lesbian’ [may be] based not on a perception of true sexual orientation, but rather as a means of denigrating a person because of sexual stereotype,” plaintiff’s gender stereotyping claim is “somewhat undermined” to the extent that it rests upon being called a lesbian); Trigg v. New York City Transit Auth., 2001 WL 868336, at *6 (E.D.N.Y. July 26, 2001) (rejecting gender stereotyping claim because plaintiff’s “Amended Complaint is rife with references to sexual orientation, homophobia, and accusations of discrimination based on homosexuality”), aff’d without opinion, 50 Fed.Appx. 458 (2d Cir.2002); cf. Kay v. Independence Blue Cross, 2003 WL 21197289, at *5 (E.D.Pa. May 16, 2003) (holding that gay male plaintiff “has shown that he was subjected to adverse treatment because of his co-workers[‘] perceptions that he was a ‘miss prissy’ or less than [a] ‘real man.’ As such, there is affirmative evidence that the harassment was related to perceptions about Mr. Kay’s masculinity, rendering the conduct gender stereotyping actionable under Title VII.”); Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212, 1224 (D.Or.2002) (lesbian plaintiff stated Title VII claim by alleging discrimination based upon her failure to conform to supervisor’s “stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men.”).

Dawson v. Bumble & Bumble, 398 F.3d 211, at *218-19 (2nd Cir. 2005) (some internal citation omitted).

OK – Now on to the details of this case…

According to the Complaint, William Kane was a contractor for CNN until 2004 and then became a full-time employee, working in the NY Technical Operations Department.  During his entire time there (until 2013), he alleges that he dressed in brightly colored clothing and that CNN had no dress code for employees.  His company ID card photos featured him attired in a long sleeved bright pink shirt.  He claims no one said a word to him about his attire for the majority of his tenure.  He alleges that in 2011 one of his supervisors began to challenge his attire.

56. On or about April 12, 2011, Defendant McLoughlin offered Plaintiff a bribe of $100.00 in cash “to go to TJ Maxx” if Plaintiff would agree to change out of his blue track suit because McLoughlin alleged that journalist Mr. Piers Morgan said that it was a distraction to him.

57. Plaintiff refused the aformentioned $100.00 cash bribe. Instead of accepting such bribe, the Plaintiff went to his locker and placed his black CNN sweatshirt over his blue track suit.

58. Journalist, Piers Morgan denied ever complaining to anyone that Plaintiff’s attire was a distraction. Mr. Morgan invited Plaintiff into his office. While in the office, Plaintiff indicated to Mr. Morgan “Piers, I was told that my track suits were a distraction to you.” Mr. Morgan replied “Who said this?” Plaintiff responded that it was his direct manager, “McLoughlin” and Mr. Morgan stated to Plaintiff “I never said this. I love your track suits.” Mr. Morgan told Plaintiff that he liked his tracksuits because he was a big soccer fan and encouraged Plaintiff to continue to wear them in front of Plaintiff’s colleagues stating exactly inside CNN-NY’s Studio 71, where his studio aired, “I want Billy to wear the brightest colored clothing when working on my show.”

66. On or about October 18, 2012, Plaintiff wore a black Mariachi suit to work and wore it for the duration of his 8 hour shift. He was never asked to change, cover it up or not to wear it in the future. In fact, Plaintiff received many compliments including CNN Journalist, Fareed Zakaria, who wore Plaintiff’s sombrero because he was doing a story that day called “Misconceptions of Mexico” on his “GPS” (“Global Public Square”) show on CNN International. Mr. Zakaria personally asked Plaintiff to meet his executive producer which the Plaintiff was “proudly shown off” and Zakaria stated “Isn’t this suit incredible?”

On October 18, 2012, Plaintiff used a CNN phone to call his fiance in Mexico. When his supervisor asked why he called Mexico, and was told that the call was to a fiance, he allegedly congratulated Plaintiff and said “what’s her name?” Plaintiff explained it was not a “her” it was a “he.” This was the first time he told his direct supervisor he was gay.

Later that day, the supervisor allegedly told him not to wear mariachi suits to work because they were “too flamboyant for a male in our department.” The supervisor also allegedly told him he would be better suited for work in the “Entertainment or Make-Up Department.”

In the Complaint, Plaintiff alleges that his supervisor suggested the transfer because of “the stereotypical belief that there are more homosexuals in the entertainment and/or makeup department at CNN.”

Co-workers became aware of the situation thereafter. He alleges that CNN talent like Erin Burnett and Anderson Cooper, learned of the “treatment” to which he was exposed and offered their support.

Plaintiff apparently filed myriad complaints with CNN’s human resources department during the subsequent months.

After having filed these complaints, but without any action having been taken, Plaintiff allegedly again called his fiance in Mexico using CNN’s phone.  He claims the supervisor called him into a private meeting and allegedly berated him for it:

104. Plaintiff felt trapped in a room with Silva against his will and threatened that he would not let Plaintiff out until Plaintiff stopped crying. Plaintiff told Silva to leave him alone and that he was not doing anything different than anyone in the department and was never treated in this manner prior to telling Silva that he was gay.

105. Plaintiff again requested that Defendant Silva “Open the door.” Defendant Silva stated “Not until you stop crying.” The plaintiff responded “You made me cry. I don’t care if people see me crying. If they ask, they will know why — because of you and your harassment.” Silva eventually did open the door and the Plaintiff left whilst in tears.

109. As a result of Plaintiff’s complaints to Human resources against Defendant Silva, Defendant companies involuntarily removed Plaintiff from his regular position as an “A2” studio operator handling the microphones for the journalist and guest, and was placed in training in a different area utilized for entry level employees known as “MVID”.

110. Control 52 (MVID) is a room where there is no interaction with CNN journalists or guests. Furthermore, Control Room 52 is completely different and not at all similar to the Plaintiff’s prior position and job description in violation of FMLA.

Plaintiff claims that his supervisor continued to challenge his dress for work, at one point telling him his “white suit was ‘too flashy for Erin Burnett.'” He was ordered to change and did so without protest.  The Complaint alleges a series of other disparaging remarks allegedly made by supervisors.

On another occasion, Plaintiff alleges another supervisor wrongfully blamed him for a scheduling error, called him “stupid” and spoke to him in a “hostile and demeaning manner.”

On July 1, 2013, Plaintiff was terminated. On this same date, he alleges the Defendants issued their first employee dress code. He alleges he was replaced by a straight male.

Here is the thrust of the legal action and this is the reason I cited the above authority from the Second Circuit.  The Court in this case will have to look at the following allegations and decide whether this meets their test:

190. Plaintiff was treated differently because he refused to act in conformity with male stereotypes.

191. Commencing upon the first day that Plaintiff informed his supervisor Silva that he was gay, Plaintiff was subjected to inappropriate comments about his sexual orientation and relationship with his husband which affected the terms and conditions of his employment by creating a hostile work environment.

193. Plaintiff was subjected to an impermissible and unrelenting pattern and practice of discrimination, hostile work environment and retaliation by co-workers and Defendants based upon his sexual orientation and in retaliation for Plaintiff’s exercise of his right to complain and whistle blowing.

195. Defendants discriminated against Plaintiff by engaging in severe and pervasive activities constituting gender discrimintation, including, but not limited to, engaging in, condoning and tolerating unfair and sexually motivated actions against homosexual employees within CNN and discrimination against Plaintiff with respect to the terms, conditions and privileges of his employment. The cumulative effect of Defendants’ conduct created an abusive, offensive and contaminated work atmosphere.

When considered against the clear holdings of the Second Circuit, it is arguable whether these allegations meet the standard required there, that “gender stereotyping claim should not be used to ‘bootstrap protection for sexual orientation into Title VII.’”  That said, I offer no opinion on the merits of the other claims in the Complaint which include claims for retaliation, myriad claims of discrimination under state law, and federal claims for violations of FMLA and ADA, which likely have nothing to do with Plaintiff’s sexual orientation.