A California court of appeal ruled last week that a firefighter could proceed with a claim that his supervisor harassed him because he stood up for his lesbian daughter. The unpublished decision, Derr v. Kern County Fire Dep’t, was reported by Anne Marchessault in BNA’s Employment Discrimination Report (subscription required).
The plaintiff, David Derr, alleged the following facts:
Derr responded to a “condemnation of homosexuals” by his captain (James Rummell), by saying that he had family members who were gay and that he was offended. The captain later told Derr in an e-mail that his “embrace” of homosexuality was a “blatant opposition to the commands of God” and that his support for same-sex marriage was equivalent to standing “with [his] fist in [God’s] face.” Rummell’s wife also sent Derr (and others) homophobic e-mails.
Derr requested and received a transfer, but the captain continued to seek him out and make sarcastic, condescending, and anti-gay comments. Derr says that he was forced to retire because of this behavior and the stress it caused him. Although a lower court dismissed the harassment claims, the appellate court reversed and allowed the claims to proceed.
California’s Fair Employment and Housing Act specifically prohibits harassment and discrimination based on sexual orientation. As previously reported (California Legislature Clarifies What Sex Is), the Act defines “sex” broadly to include gender identity and gender expression. The important takeaway here, though, is that the law prohibits harassment of employees because of their association with someone who is a member of a protected class, even if they aren’t in the protected class themselves.
As current events continuously remind us -- most recently a comments by one of our own San Francisco 49ers -- too many people think that it's acceptable to make anti-gay comments in the workplace. Policies and training need to reinforce that, in California and other jurisdictions that prohibit this behavior, doing so exposes the employer and the person making the comments to liability.