Calling someone gay is no longer, by itself, slander, the New York Supreme Court, Appellate Division, has ruled.
The court’s decision (Yonaty v. Mincolla, No. 512996 (N.Y. App. Div. 2012)) “is a reflection of change—change towards more equality and acceptance, socially and professionally for lesbian, gay, bisexual and transgender (LGBT) citizens,” Mallory Livingston, an attorney with Sassani & Schenck in Liverpool, N.Y., told SHRM Online.
Livingston isn’t a stranger to change. She first tried to transition from a man to a woman in 1991, but “when my employer learned that I was a transsexual in transition in 1992, I was fired. I tried to find a job presenting as female and informing my prospective employers that I was a transsexual in transition. Despite having graduated from Cornell University and Syracuse College of Law and having significant experience in civil litigation involving construction, I was unable to get a job, not even as a paralegal. Facing homelessness, I altered my appearance, ended my transition and looked for a job as a man. I was shortly hired.”
Livingston, who once again is trying to transition, noted that slander is a verbal statement as opposed to libel, which is a written statement.
To prove slander, a plaintiff must show:
--That a defamatory statement—a statement with the tendency to expose the plaintiff to public hatred, contempt, ridicule or disgrace—was made.
--That the defamatory statement clearly refers to the plaintiff.
--That the defendant communicated the statement to another person.
--That the statement had a substantial factor in causing financial loss to the plaintiff.
Livingston pointed out that in the Yonaty case, as with most slander cases, the most difficult element to prove is financial losses, which are called “special damages,” such as lost wages. Slander cases often are dismissed because the plaintiff cannot show special damages, she said.
But the law has an exception for certain kinds of slander that are deemed so horrendous and humiliating that special damages need not be proved. The law instead will assume their existence, allowing the case to go to a jury.
The categories of slander for which special damages need not be proved historically have been:
--Allegations of incompetence or dishonesty in one’s business affairs.
--Allegations that a plaintiff committed a serious crime.
--Allegations that the plaintiff has a sexually transmitted disease.
--Allegations of serious sexual misconduct by the plaintiff.
--Allegations of homosexual conduct.
In Yonaty, the plaintiff did not plead special damages, but instead argued that the slanderous statements fit in the fifth “super slander” category.
The defendants argued that being gay was no longer so offensive, so clearly humiliating and damaging to one’s reputation that a plaintiff should be excused from having to prove special damages. The court agreed.
“Its historic opinion in this case overruled all prior case law that had held that allegations of being gay were so ‘self evidently injurious that the law presumes’ financial losses as a result,” Livingston remarked. But “the Yonaty case does not … give refuge to those who would bully, harass, intimidate and threaten LGBT persons using, in part, insulting language such as ‘faggot.’ ”
In Yonaty, “the court pointed to the enactment of anti-discrimination laws, the recognition of same-sex marriage in some states and similar legal developments,” noted Jonathan Enti, a law professor at Case Western Reserve University in Cleveland. “Moreover, there is wide evidence in public opinion and the general culture that homosexuality is no longer viewed as immoral or degrading.”
Christine Walters, J.D., SPHR, author of From Hello to Goodbye (SHRM 2011) and an HR consultant with FiveL Company in Westminster, Md., said the Yonaty decision signals “the beginning of the end of an era. This court distinguishes its decision from so many others that it cites by affirming that the status of being gay, lesbian or homosexual today does not connote the same premise of shame and disgrace that it may have heralded in the last decade.”
But Yonaty isn’t the only decision to conclude that calling someone gay isn’t slander per se, Livingston noted. Similar rulings have been made in Florida (Boehm v. Bankers Ins. Grp. Inc., 557 So.2d 91 (Fla. Dist. Ct. App. 1990)), Colorado (Hayes v. Smith, 832 P.2d 1022 (Colo. 1991)), North Carolina (Donovan v. Fiumara, 442 S.E.2d 572 (N.C. Ct. App. 1994)) and Massachusetts (Albright v. Morton, 321 F. Supp. 2d 130 (Mass. 2004)).
“The Yonaty decision, though it is a product of past progress, will now, on its own, act as a catalyst for further positive changes,” Livingston predicted. “Discrimination against LGBT citizens is so pervasive that it has infected even the labyrinth of obscurity that is defamation law. The movement to end that discrimination is itself now so pervasive, so strong, that it is reaching every hidden corner where discrimination thrives. Before the Yonaty case, defamation law was one of those hidden corners, but not anymore.”
As for Livingston, she said that during her current attempt at transition, she has had the full support of her firm. “A lot has changed in the last 20 years,” she said.
Allen Smith, J.D., is manager, workplace law content, for SHRM.