Closet Helps Bias Claim

Buffalo judge rules gay man can sue for sex discrimination

A federal district judge in Buffalo, New York, ruled on September 30 that a closeted gay man could sue his former employer for sex discrimination under Title VII of the 1964 federal Civil Rights Act.

According to Judge William M. Skretny, because plaintiff Michael Sabo was not open about his sexual orientation while employed at Grief Brothers Corporation, the homophobic slurs and other harassment aimed at him by co-workers were not due to his sexual orientation.

Sabo began working at the company’s Tonawanda manufacturing plant as the employee of a temp agency in 1998, and was hired directly by Grief Brothers several months later. He claimed that co-workers began harassing him within his first two weeks on the job, even though, according to his complaint, none of the co-workers knew or thought he was gay. Depositions from co-workers confirmed this, backing up Sabo’s contention that he was harassed because he did not conform to their stereotyped views of masculinity.

Sabo claimed he was harassed in part because he wore an earring in his left ear and refused to participate in sexually explicit discussions with male co-workers about women. The harassment took the form of homophobic slurs—including “faggot,” “queer” and “fudgepacker”—derisive gestures and threats, repeated on a regular basis.

In early 1999, Sabo complained about the harassment to his supervisor, as well as to the plant manager, the union president, and the plant’s union representative in the plant. His supervisor convened a meeting with Sabo’s co-workers to discuss the company’s sexual harassment policy, and the company claimed this ended the problem. But Sabo said his harassers continued. When his supervisor refused to take further action, Sabo quit.

In early 2000, Sabo filed a sex discrimination charge with the federal Equal Employment Opportunity Commission, and, in a rare move, the EEOC decided to file suit on his behalf. Grief Brothers, claiming that Sabo voluntarily quit his job, responded by denying most of his factual allegations and arguing that his complaint was filed too late to cover much of the behavior he claimed. The company moved for summary judgment against Sabo’s claim.

Skretny’s decision denying the employer’s motion stakes out new ground in the ongoing debate within the federal courts to what degree gay employees, not specifically protected by the Civil Rights Act, can nonetheless seek redress.

In 1989, the Supreme Court ruled that a sex discrimination claim could be based on evidence that an employee suffered unfavorable workplace treatment because he or she failed to comply with gender stereotypes. Plaintiffs have been most successful either if they were not openly gay in the workplace, or if they were able to credibly allege that they were “gender non-conforming” in a way that provoked the harassment. This is because the courts are attempting to police the hazy borderline between sexual orientation discrimination, not prohibited by Title VII, and sex discrimination, which is prohibited.

Consequently, a stereotypically “straight-acting” openly gay man could have trouble bringing a Title VII claim after being subjected to homophobic harassment, while straight men or closeted gay men targeted for their harassment because of effeminate mannerisms or dress might have an easier time making a successful discrimination complaint.

The most important aspect of Skretny’s ruling was his handling of the company’s argument that Sabo was really suing about sexual orientation discrimination. Grief Brothers argued that it was clear from the record that any harassment Sabo suffered was due to his actual or perceived sexual orientation, while the EEOC argued that Sabo was a victim of gender stereotyping and thus could sue for sex discrimination.

“Sabo’s harassers did not know that he was a homosexual, nor did they believe that he was,” wrote Skretny, referring to his co-workers’ depositions. “Moreover, Sabo testified that he did not disclose his sexual orientation to his co-workers (including the harassers) when he began working at the plant.”

Skretny rejected the company’s argument that the homophobic nature of the epithets directed at Sabo showed that they were motivated by sexual orientation, saying that such an argument was “dispelled by the fact that none of the harassers knew or thought Sabo was a homosexual… Evidence in the record demonstrates that language and conduct of this nature carried a non-sexual connotation of weakness or disparagement as used by the employees in the plant.”

Refusing to grant summary judgment for the employer, Skretny ordered that the EEOC be allowed to proceed to trial, and strongly indicating that if Sabo’s factual claims stand up, he is likely to win the case.

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