As an employment discrimination lawyer, particularly one that has been strongly pushing for equality and protection of our LGBTQ+ community in the workplace, I’m always following and blogging about these issues. (Best Law Read: Can Employers Block Transgender Use Of Bathrooms?; Yes, Straight Bosses Are Liable For Sex Harassing Lesbians; Can A Hostile Work Environment Be Based On Transgender Harassment?). I really thought we had taken a huge step forward as a society and rejoiced when the United States Supreme Court held sexual orientation and transgender status are protected under the gender protections Title VII of the Civil Rights Act of 1964, including from discrimination, harassment, and wrongful termination. (Best Law Read: What does Bostock v. Clayton County mean to the LGBTQ Community?).
Yet, instead of moving forward, a large segment of society has pushed back even more vocally against LGBTQ+ community. In Florida, a math teacher can be fired for identifying himself as gay and a lesbian music instructor cannot introduce her wife to her students at school concerts. Respectfully, given that sexual orientation and transgender status are supposed to be equally protected under Title VII, this is absurd. Keep in mind that Title VII protects against associational discrimination – meaning that an employer cannot discriminate, harass, refuse to hire, or fire an employee because of the protected class of that employee’s spouse or significant other. Can you imagine a White teacher being fired for saying that he is married a Black or Hispanic woman? But now if Florida schools, a woman teacher can be fired for saying that she is a lesbian or even just having a family picture on her desk with her wife and children. This is not equality.
I loved the responsive tact that the Senior Class President Zander Moricz of Pine View School in Osprey, Florida when he was told that his commencement speech would be cutoff if he mentioned the word “gay” despite the fact that everyone there knew he was gay and recognized activist for LGBTQ+ rights. Instead of talking about his troubles coming to grips with being gay and accepted, he discussed accepting his unruly curly hair. He told the audience, “I spent morning and night embarrassed of them trying to straighten this part of who I am, but the daily damage of trying to fix myself became too much to endure. So, while having curly hair in Florida is difficult due to the humidity, I decided to be proud of who I was and started coming to school as my authentic self.” Well done.
But as I was reading an opinion issued by the United States District Court for the Southern District of New York, the juxtaposition of these issues struck me hard. In Gamble v. Fieldston Lodge Nursing And Rehabilitation Center, No. 20-CV-10388-LTS, 2022 WL 1778488, at *1 (S.D.N.Y. June 1, 2022). In this case, the employee, Tanya Gamble is a lesbian woman who worked at Fieldston in various roles starting in 2013. For most of her employment, Gamble kept her sexual orientation private from her coworkers. But shortly after a May 18, 2019 video of her engagement was posted to Facebook, her sexual orientation became an issue at work. Several coworkers commented to Gamble about her sexual orientation. Gamble presents evidence that she was “exposed to discriminatory comments and jokes, and awkward silence and looks,” from certain Fieldston employees. There was evidence that one employee Told Gamble, “You don’t look gay.” Employees referred to gay persons as “one of those people.” Employees would mock gay men with lisps and feminine movements.
In late May, Gamble complained to Human Resources (“HR” and administrators about the work environment. Instead of correcting the conduct, an HR representative told her, “Bitch don’t worry about these people talking about you”; an Assistant Director of Nursing replied, “Don’t worry about it”; and an MDS Coordinator told her to “get through it.” None of these persons took any remedial action to address the conduct at issue.
There was evidence that subsequently, a Fieldston administrator, Eli Knolls, “was heard numerous times using the word ‘faggot’ in a derogatory manner when referring to gay men.”
After making the complaints, Gamble asserted that Knolls “stopped talking to Plaintiff almost completely,” and Fieldston retracted a promotion to the position of Staffing Coordinator, without explanation. The employer then fired Gamble on August 13, 2019, which was about three weeks after her complaints of a hostile work environment. (Best Law Read: Why Retaliation Is The Easiest Employment Claim; Can My Boss Fire Me For Reporting His Sexual Harassment?).
The District Court dismissed the claim for hostile work environment as a matter of law – meaning that there is absolutely no question of fact on this issue and that as a matter of law the work environment was not hostile. The District Court held the comments and conduct “are disturbing, but without more and even considered in their totality among the Complaint’s other allegations do not suffice to indicate the existence of a severe or persistent hostile work environment.” Id. at * 3. The District Court further held that “While abhorrent, Mr. Knolls’ alleged use of that epithet outside Plaintiff’s presence … does not support plausibly a hostile work environment claim.” Id.
So, let me get this straight, the fact that a boss’s response to sexual orientation is to rachet up the problems by joining in and using more offensive epithets is legally acceptable and does not create a hostile work environment just because the manager stepped around a corner from the employee when saying it? Respectfully, the District Court missed the point, that the manager’s conduct did not have to be heard by the employee to create a hostile work environment. Rather, his use of the “F-word” was tacit permission for other employees to continue on with their direct harassment.
In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986), the United States Supreme Court held that for an employee to state a claim for a hostile work environment under Title VII, the complaint must assert that there is harassment “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Granted, the Supreme Court later held in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) that under the “severe or pervasive” standard have held that “mere utterance of an … epithet which engenders offensive feelings in an employee” is not enough. In Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), the United States Supreme Court then cracked the window for isolated incidents to create a hostile work environment by holding: “isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” (Best Law Read: What Qualifies A Hostile Work Environment Under Title VII?; What Is A Hostile Work Environment?).
In Gamble, the repeated use by the administrator of the “f-word” should not be taken out of the context of the co-worker’s conduct so that it can be viewed in isolation to determine if each use was sufficiently offensive. I cannot possibly even consider working in an environment where my boss’s response to protected complaints about discriminatory conduct is to use the most offensive epithet possible related to that type of discrimination.
To add further insult, the District Court held that “the Complaint does not plausibly allege that Plaintiff subjectively perceived her work environment as hostile or abusive under the relevant hostile work environment standards.” So, according to the Court, Gamble had no right even subjectively perceive this as a hostile work environment.
So, in the end, the entire state of Florida can be offended by the use of the word “gay,” but an employee cannot subjectively believe that her boss’s responsive use of the “f-word” is hostile and sufficiently offensive. Got it.
Oh, and not only is Knoll still employed but according to his LinkedIn profile, he has been promoted to Executive Administrator.
We have to do better.
Do I have a claim for LGBTQ+ discrimination or harassment?
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