Frequent readers of our blog know the efforts our employment lawyers go to stop all sex harassment in the workplace. (Best Law Read: My Conversation With President Biden About Ending Sexual Harassment). Despite all our work on this front, it never ceases to amaze me that for some reason, stupid homophobic bosses, managers, and supervisors believe that just because they are curious about a gay, lesbian or other LGBTQIA+ employee’s sexual interest, they can openly talk and harass that employee about it. Certainly, asking a heterosexual male subordinate about the intimate details of how he “f’ed” his wife would be viewed as unlawful sexual harassment. Why would asking a woman subordinate the intimate details of how she “f’ed” her wife be treated any differently? Clearly, it should not.
With this in mind, let’s look at the case of Breia Renner, a Gloucester County Detective. Once her superiors learned she was gay and married to another woman, her lawsuit details a long series of harassment that she received, including:
- Keith Palek pulled out his penis and flopped it on to Renner’s desk while calling her a “c*nt” and telling her that she was only with women because she “hadn’t had the right dick.” Certainly, Palek would have been horribly offended if told that he was not gay because he “hadn’t had the right dick.”
- Renner’s complaints to Sgt. Danielle LoRusso and Sgt. Charles Landi about Palek’s conduct were just laughed off and despite complaints to the Prosecutor’s Office, it “took no measures to prevent retaliation and further harassment.”
- After complaining, the County transferred Renner, who is a highly trained narcotics officer and detective, to Grand Jury duty, “a task a rookie officer could easily handle.” To make the retaliation even worse, Palek was transferred to continue working with her.
- When Renner later applied for a transfer to the Crime Scene Investigation Unit (“CSI Unit”), a job she was clearly qualified for, the County instead chose to transfer a less qualified male officer who still needed additional training to qualify for the job, which the County provided.
- At a work golf outing, former Prosecutor Charles A. Fiore openly told Renner and her wife, “both of you are the best-looking lesbians I have ever seen.” Fiore then followed this comment up by asking, “how do you guys have sex?” When neither Renner nor her wife responded, he answered for them –”Scissoring.”
- After continuing to oppose this type of ongoing conduct, the County demoted Renner to Grand Jury duty and assigned her older vehicles while less senior and qualified males were given newer cars.
- When Renner complained to her direct supervisor, Lieutenant Robert Hemphill, about the vehicles, he responded by calling her a “c*nt.” And, after Internal Affairs investigated Hemphill’s conduct, he was promoted to Captain.
With these facts from Renner’s complaint in mind, lets look at the law.
Is it unlawful for my boss to sexually harass me because I’m gay?
Best LGTQIA+ Employment Rights Lawyer Answer: Most certainly, yes. Title VII protects individuals from discrimination and harassment “because of such individual’s race, color, religion, sex, or national origin.” In Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754 (2020), the United States Supreme Court made the landmark holding that an employer violates Title VII when it fires an individual employee based, at least in part, homosexuality or transgender status of the employee because consideration of an employee’s LGBTQ+ status implicitly requires consideration of that employee’s sex. (Best Law Read: What does Bostock v. Clayton County mean to the LGBTQ Community?; Is Same-Sex Sexual Harassment Illegal?of the Civil Rights Act of 1964). To that end, the same standard applies to proving sexual harassment claims for lesbian, gay, bisexual, transgender, queer, intersex, and asexual employees as it does for straight or heterosexual employees. (Best Law Read: What Is A Sexually Hostile Work Environment?; What’s The Difference Between Quid Pro Quo And Hostile Work Environment Sexual Harassment?).
What constitutes a hostile work environment giving rise to a claim for sexual harassment?
Best Workplace Harassment Lawyer Answer: Sexual harassment is a form of gender discrimination, which is prohibited under Title VII. To win on a claim of gender discrimination based on a hostile work environment, an employee must present sufficient evidence to establish (1) unwelcome conduct, (2) based on the employee’s gender, (3) sufficiently pervasive or severe to alter the conditions of employment and to create a hostile work environment, and (4) some basis for imputing liability to the employer, which arises when managers, supervisors, or owners engaged in the conduct or permitted the conduct to continue after being put on notice of the conduct. These are the prima facie elements of a sexual harassment claim. (What does prima facie mean?)
Certainly, Renner’s averments meet these prima facie elements of sexual harassment.
When is a work environment sufficiently hostile to support a claim of sexual harassment?
Best Hostile Work Environment Attorney Answer: Under Title VII, courts evaluate whether a work environment is hostile or abusive enough to be considered a hostile work environment based on totality of the circumstances, including considering all of these factors: the frequency of the discriminatory or harassing conduct; the severity of such discriminatory or harassing conduct; whether such conduct is actually physical, physically threatening, or humiliating; and whether the discriminatory or harassing conduct unreasonably interferes with an employee’s ability to work. Title VII does not require an employee to show that the sexually hostile or abusive work environment seriously affected his or her psychological well-being nor caused an actual injury. The United States Supreme Court has held that the standard for establishing this claim necessitates proof that there is both an objectively hostile or abusive environment and that the employee subjectively believed that the environment is abusive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993). (Best Law Read: Is Sexual Harassment At Work Common?).
Again, I don’t think that there is any doubt that the conduct to which Renner was subjected was both severe and pervasive.
What is the reasonable woman standard for establishing a hostile work environment sexual harassment claim?
Top Employee Lawyer Answer: The Equal Employment Opportunity Commission (“EEOC”) Compliance Manual § 615, ¶ 3112, C at 3242 (1988) provides that courts “should consider the victim’s perspective and not stereotyped notions of acceptable behavior.” In Ellison v. Brady, 924 F.2d 872, 878–79 (9th Cir. 1991), the United States Court of Appeals for the Ninth Circuit explained this standard further:
If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy.
We therefore prefer to analyze harassment from the victim’s perspective. A complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. See, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir.1988) (“A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a ‘great figure’ or ‘nice legs.’ The female subordinate, however, may find such comments offensive”); Yates, 819 F.2d at 637, n. 2 (“men and women are vulnerable in different ways and offended by different behavior”). See also Ehrenreich, Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 Yale L.J. 1177, 1207–1208 (1990) (men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object”); Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 Vand.L.Rev. 1183, 1203 (1989) (the characteristically male view depicts sexual harassment as comparatively harmless amusement).
Particularly following the United States Supreme Court’s decision in Bostock, this same evaluation applies to the LGBTQAI+ community. As I said in the beginning, employers cannot excuse their conduct because such comments would not be offensive to a straight person. However, Renner’s situation is not even close as the conduct in this case, as asserted in the lawsuit, was atrocious.
What should I do if my job retaliated against me for reporting sexual harassment at work?
Top Wrongful Termination Lawyer Answer: Title VII and various state laws have ant-retaliation provisions, which make it illegal for employers to fire or take other adverse actions against employees for opposing, reporting, or participating in an investigation relating to sexual harassment. (Best Law Read: Can My Boss Fire Me For Reporting His Sexual Harassment?; Fired In Retaliation For Reporting Sex Harassment?; How Do I Prove Illegal Retaliation By My Job Under Title VII?). In a Title VII case, an employment action is sufficiently adverse if the employee can “show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. Santa Fe. Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). The determination of material adversity is based on an objective test, i.e., what the reaction would be from a reasonable employee. Therefore, the court consider the context of alleged adverse acts as “some actions may take on more or less significance depending on the context.”
In Burlington, the United States Supreme Court explained:
Context matters. “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale, supra, at 81–82, 118 S.Ct. 998. A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children. Cf., e.g., Washington, supra, at 662 (finding flex-time schedule critical to employee with disabled child). A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination. See 2 EEOC 1998 Manual § 8, p. 8–14. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an “act that would be immaterial in some situations is material in others.”
Examples of materially adverse employment actions include, wrongful termination, a demotion, decreased wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other manifestations unique to the particular employment situation.
In Renner’s case, being demoted to the Grand Jury duty, being denied the promotion to the CSI, being denied the same training, and being given older vehicles could all independently be considered retaliation, but certainly are so when considered together in context. Moreover, being called the c-word in response to reporting sex harassment, discrimination, retaliation certainly “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
What is a sexual harassment case worth?
Best Ohio Employment Lawyer Answer: Every case is different based not only the facts of the case, but where the case is located, the judge involved, opposing counsel and whether the claims are covered by insurance. The best way to find out what your case is worth is to discuss the matter with experienced employment law attorneys.
Renner’s case settled for $165,000.
Do I have a claim for LGBTQ+ discrimination or harassment?
Top Employment Discrimination Law Firm Answer: If you are searching “I need a lawyer because I have was wrongfully fired or terminated today;” or “I have been discriminated against because I am …” gay, a lesbian, bisexual, transgendered, queer; or even think that you might need an employment law lawyer that works with LGBTQIA+ employees, then it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?) Call our Cleveland, Cincinnati, Columbus, Toledo and Akron, Ohio and Detroit, Michigan attorneys now to get help or advice. Your employment rights are constantly changing and the best way to find out if you can sue your boss, manager, supervisor or employer for discrimination, harassment, or wrongful termination is to call Spitz, The Employee’s Law Firm and talk to its attorneys, who are experienced and dedicated to protecting the rights of employees just like you.
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