The State and City law prohibits discrimination on the basis of perceived sexual orientation

The Court of Appeals rules that a plaintiff may have a claim under the New York State and New York City Human Rights Laws that his former employer discriminated against him because of his perceived sexual orientation. Co-workers thought plaintiff was gay, and they ridiculed him over this and subjected him to obscene and lewd remarks.

The case is Dingle v. Bimbo Bakeries, a summary order decided on December 16. Dingle handles this appeal pro se. The Court of Appeals (Pooler, Calabresi and Lynch) notes that while Title VII offers no such protections, the State and City laws "expressly protect against discrimination based on both perceived as well as actual sexual orientation." This means that "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." The Court of Appeals cites a Southern District of New York ruling for this proposition, which means the Second Circuit has yet to squarely address this issue. While it does so here, it's in an summary order with limited precedential value. Still, as the statutes protect plaintiff from this kind of discrimination, we don't need a Court of Appeals ruling to say this; the statutory language is good enough.

For some reason, the Second Circuit does not actually rule in Dingle's favor. After reviewing the allegations in plaintiff's complaint and summarizing the state of the law in this area, the Court sends the case back to the district court "to consider in the first instance whether Dingle alleged a plausible perceived sexual orientation hostile work environment claim and retaliation claim under the NYSHRL and NYCHRL. As part of its consideration of this issue, we urge the district court to appoint counsel for Dingle."

Dingle did a good enough job to win his appeal against a huge management-side law firm, and he will probably receive a lawyer to take on the case from this point forward. And, yes, that is not a typo. The name of the defendant is Bimbo Bakeries USA. They sell Entenmann's food products.