On May 3, 2017, the Court in Philpott v. State of New York, et al., No. 16-cv-6778, 2017 U.S. Dist. Lexis 617591 (S.D.N.Y. May 3, 2017), denied an employer’s motion to dismiss a former employee’s Title VII sexual orientation discrimination and retaliation claim. The former employee who held the role of VP of Student Affairs at the State University of New York (SUNY) alleges that he was subjected to a hostile work environment on the basis of his sexual orientation for years and, after complaining, was quickly fired. SUNY moved to dismiss the complaint.

The decision to deny SUNY’s motion is surprising given the well-established legal precedent from the Second Circuit to the contrary. See, e.g., Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000)(holding that Title VII does not prohibit discrimination on the basis of sexual orientation); Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) (reaffirming Simonton); Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017) (concluding it lacked power to reconsider Simonton and Dawson but recognizing that an avenue for recovery may lie under a theory of gender stereotyping sex discrimination).

In reaching this decision, the Court reasoned that “[t]he law with respect to this legal question is clearly in a state of flux, and the Second Circuit, or perhaps the Supreme Court, may return to this question soon. In light of the evolving state of the law, dismissal of plaintiff's Title VII claim is improper.” Philpott, 2017 U.S. Dist. LEXIS 67591 at *4. The Court also rejected SUNY’s argument that the Complaint failed to state a plausible claim in light of the allegations, including that plaintiff was “flamboyant,” “sensitive” and that the president of SUNY Optometry did not want his children around homosexuality.

The Bottom Line. Simonton, Dawson and Christiansen are all still good law and, in our opinion, remain controlling. Sexual orientation discrimination is still prohibited under New York and New York City Human Rights Law. We will continue to monitor this case for any new developments.