Sexual Orientation Protected Through Retaliation In New York

In denying a motion to dismiss, the Eastern District of New York has ruled that, while Title VII does not prohibit harassment or discrimination based upon sexual orientation, it does prohibit retaliation for opposing discrimination based upon sexual orientation. Birkholz v. City of New York, 1:10-cv-04719 (E.D.N.Y. Feb. 22, 2012). In Birkholz v. City of New York, a guidance counselor brought, among other claims, allegations of discrimination and retaliation under Title VII on the basis of his sexual orientation. The court dismissed the plaintiff’s claim for sexual orientation discrimination under Title VII, (which, unlike NY state law, does not prohibit discrimination based on sexual orientation), but did not dismiss his Title VII retaliation claim based upon his complaints of sexual orientation discrimination. According to the court, “the reality that some complaints [like discrimination based on sexual orientation under Title VII] are not legally sustainable does not license employers to retaliate in ways that would undermine the goal of unfettered access.” This ruling is aligned with similar rulings by the Ninth Circuit Court of Appeals and two other district courts in the Second Circuit, but it is contrary to rulings by the Sixth and Seventh Circuit Courts of Appeals.