Second Circuit Rules Claim Based On Perceived Sexual Orientation May Proceed Under NY Law

Under New York’s Humans Rights Laws, it is illegal for an employer to discriminate based upon sexual orientation.  This protection extends to every New Yorker. It protects you if you are straight, gay… and in the wake a recent summary order by the Second Circuit, if you are straight and people simply think you are gay. Dingle, who appeals from the Eastern District of New York  pro se, had brought a hostile work environment claim against his former employer Bimbo Bakeries (whose very name makes a hostile work environment claim seem plausible) alleging that he was subjected to harassment by coworkers who believed him to be gay.

On appeal, the Second Circuit issued a summary order stating that while Title VII does not offer comparable protections, New York’s laws "expressly protect against discrimination based on both perceived as well as actual sexual orientation… [meaning] Dingle's actual sexual orientation is not at issue; he is protected by these provisions if he suffered abuse because others believed, even incorrectly, that he is gay." It then remanded the case back to the District Court with instructions to “consider in the first instance whether Dingle alleged a plausible perceived sexual orientation hostile work environment claim and retaliation claim” under both New York State’s and New York City’s Human Rights Law.

It is worth noting that as a summary order, this decision has limited precedential value and the Second Circuit still has yet to directly rule on this issue. Even so, the prospects seem bright after this order given that it was based on the express language of the statute. And, perhaps more importantly, the order urged the District Court to appoint Dingle an attorney, which certainly cannot hurt his case.

The case is Dingle v. Bimbo Bakeries 2015 WL 8952903 (2d Cir.)

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