Since June, federal law protects employees from discrimination and harassment based on sexual orientation and gender identity.
This means that an employer, supervisor, or co-worker may not discriminate or harass an employee because he is gay or is gender non-conforming. If an employee appears to be man, but does not identify as one, that’s his business, and the law prohibits harassment on this basis.
One workplace considered that the employee was being “overly sensitive” and “dramatic” about what it called offhand teasing.
The United State District Court for the Eastern District of New York, Judge I. Leo Glasser, disagreed and ruled that Rosalie v. Supreme Glass Co. alleged sufficient facts such that a jury should decide whether a hostile work environment existed.
What Happened In This Case?
The plaintiff, Christopher Rosalie, identifies as gay and gender-nonconforming. Rosalie’s complaint alleged that his supervisor made the following comments:
- Being gay is a “mental disorder”;
- Being gay is a “genetic disorder”; and
- When he told his supervisor that he was neither a man nor a woman, she intentionally misidentified his gender.
Moreover, she consistently demeaned and humiliated him in front of other employees.
And that’s not all. The president of the company made certain “jokes” at the employee’s expense, including (and this is from the president’s deposition) the following:
- “Do you think this customer’s gay? Have you been to his apartment? Do you think you can tell from his voice?”
- When UPS didn’t pick up a package, the prez said, “maybe he didn’t like your package,” while looking at Rosalie’s groin;
- About a gay vendor, “I think he’s one of your people”; and
- made fun of Rosalie’s clothing.
The kicker from the president was this text message sent to Rosalie: “I just passed by your favorite streets—Christopher and Gay Street.”
Really? It was no surprise that the court denied the employer’s motion for summary judgment on the employee’s sexual harassment and wrongful termination claims. Other employees had some comments, too, like calling Rosalie “Woody Woodpecker” because gay men “like to peck wood.”
I couldn’t make up this behavior if I tried.
After he complained a few times, he was told he would be terminated unless his performance improved.
You can read about the case in Judge Glasser’s October 23, 2020 Memorandum and Order here.
This, Friends, Is Headed Right to the Jury.
Let’s remember that on June 15, 2020, the Supreme Court of the United States determined that harassment based on sexual harassment and/or gender identity is actionable as sex discrimination. You can read all about that SCOTUS decision here.
Title VII of the Civil Rights Act of 1964 (Title VII) proscribes harassment of an employee (or job applicant) because of or on the basis of sex. Harassment can include “sexual harassment” i.e., unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. The harassment crosses over into illegal territory when it is so frequent, i.e., “pervasive,” or severe that it creates a hostile or offensive work environment or results in an adverse employment decision.
First, sexually charged comments, sex-based jokes, sexual innuendo, slurs, physical touching, certainly groping, and (so many) other forms of unwelcome, unwanted conduct by an owner, employee, or third party may subject an employer to liability under Title VII if the comments or conduct is because of the victim’s sex.
Second, and as we discussed in “Sexual Harassment Prevention 101,” the comments or conduct must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive.
Finally, the sexually charged comments or conduct, including those based on sexual orientation or gender identity now, must be severe or pervasive to the point that the employee herself or himself considers it to be offensive and abusive.
So, how can an employee demonstrate wrongful termination for these types of derogatory comments based on the employee’s sexual orientation? What kind of proof is needed?
First, a plaintiff must establish a prima facie case of discrimination by demonstrating that (1) he is a member of a protected group, (2) he applied for the position in question, (3) he was qualified for the job, and (4) the defendant acted (here, by terminating the employee) under circumstances giving rise to an inference of unlawful discrimination.
Second, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the decision it made (here, the plaintiff’s termination, which the employer argued was due to performance).
Third, if the defendant provides a legitimate reason for the decision, the burden then shifts back to the plaintiff-employee to raise a genuine dispute as to whether the defendant-employer’s proffered reason is mere pretext for discrimination.
The Court’s Ruling On Supreme Glass’s Motion
Considering this Title VII framework, the court in Rosalie determined that a jury could, indeed, find that the employee suffered severe and pervasive inappropriate comments based on the employee’s sexual orientation and gender identity.
Judge Glasser further noted that New York City’s law required the same result as its standard for a hostile work environment is broader than the federal standard.
[Reminder: a hostile work environment based on sex may be created by treating an employee “less well” in New York, a far lower standard than under federal law.]
The court was having none of the employer’s stated reasons for the termination and identified them as a pretext for discrimination.
Rosalie was told that he “failed to ‘include notes on various orders,” that multiple vendors and customers refused to work with him, and provided a spreadsheet—created intentionally by his supervisor after the lawsuit was filed to protect herself and her job (per deposition testimony)— listing those customers but this was not stated in his termination.
The court deemed all of these factors sufficient to show pretext for discrimination, stating that, in addition, the employer did not uniformly enforce policies (like requiring notes on orders or a progressive system of discipline) which buttressed the inference of pretext.
The takeaways for employers here are many:
- Revise your handbooks and train your supervisors. Harassment based on sexual orientation and gender identity is not just prohibited in New York, but in the country.
- Be specific about intolerable misconduct, and give examples. Don’t assume people just “get it.” You want to actually write and say “no sexual or sexist jokes, sexual puns, sexual innuendo, or questions about your coworkers’ sex lives.” In other words, give your employees clear context;
- Disseminate the unlawful harassment policy to every single employee throughout your company, and ensure your employees understand it;
- Provide a written procedure for reporting and investigating claims of unlawful harassment and uniformly and consistently follow your procedures, documenting the process along the way. The judge called out this employer for failure to follow their policies consistently as evidence of pretext in this case;
- Check your organizational culture. Culture is key! The organizational culture or climate must not tolerate harassment. In this case, not only did the employee’s supervisor and coworkers make noxious comments based on the employee’s sexual orientation, but the president did too. Employers should maintain a “top-down” culture prohibiting unlawful harassment to demonstrate commitment. Leaders must believe authentically that harassment is wrong, not want it in the workplace, must articulate these beliefs, and hold this same expectation of others in the workplace.
- Provide regular, interactive training, including bystander intervention training, tailored to your workplace.
Be smart, employers. Don’t let your employees harass others based on their sex, including their sexual orientation or gender identity. Federal law prohibits it.