Worker Who Claimed He Was Fired for Being ‘Too Gay’ Entitled to Trial Under Calif. Law


By Joanne Deschenaux, J.D. July 6, 2017

​A Toyota employee who alleged that he was fired from his executive management job because of the perception that he was "too gay" is entitled to a trial on his claim, the California Court of Appeal ruled. The state's Fair Employment and Housing Act (FEHA) bans discrimination based on sexual orientation, gender identity and gender expression—and that includes actions based on stereotypical assumptions about how gay or lesbian employees "should" behave, the court said, reversing a trial court's decision that dismissed the claim before trial.

Joseph Husman, who is openly gay, was hired by Toyota in April 1997 and held several management jobs at the company's Torrance, Calif., office. In 2007, he assumed a newly created job as manager for diversity and inclusion. Husman consistently received good or excellent performance reviews and earned significant annual bonuses. In August 2010, he was promoted to an executive position as the manager of corporate social responsibility.

In early 2011, Husman's supervisor began to have concerns about his frequent absences from the office. She counseled him to adjust his schedule to allow more time in the office. Soon thereafter, HR told his supervisor about several complaints from co-workers that Husman had allegedly made inappropriate comments. For example, the court noted in its opinion that: he allegedly told someone who had just returned from maternity leave that she was "on the mommy track"; he told another woman who recently had a baby that her life was now over; and he commented on the physical attributes of other employees, referring to them as "short and stocky" or "too skinny."

In April 2011, Husman received a written warning and was told he would receive a slightly lower bonus. Husman was upset and refused to sign the warning letter. He subsequently became increasingly uncooperative with his supervisor and with upper managers and continued to be frequently absent from the office, the court stated. He was fired in September 2011.

Husman sued Toyota on Oct. 3, 2013, alleging sexual orientation discrimination, and Toyota moved for summary judgment on Jan. 8, 2015, asking that the case be dismissed before trial. The trial court granted the motion and Husman appealed.

'Mixed-Motive' Analysis

FEHA prohibits an employer from firing a worker because of his or her gender, gender identity, gender expression, or sexual orientation.

[SHRM members-only toolkit: Preventing Unlawful Workplace Discrimination in California]

In some cases, there is no single reason for an employer's adverse action and a discriminatory motive may have accompanied otherwise-legitimate reasons for the employment decision. In such a "mixed-motive" case, the employee must show that discrimination was the substantial motivating factor for the employer's decision, even though there were other legitimate, nondiscriminatory reasons.

The court noted that Toyota had legitimate, nondiscriminatory reasons for discharging Husman—his absences from the office and insubordinate behavior. However, there was also evidence that discriminatory motivation—a dislike for Husman's being "too gay"— contributed to his termination, the court said.

Husman presented evidence that an upper-level manager held stereotypical views of gay men and articulated clear opinions as to what he considered appropriate gender identity expression, saying at various times that Husman had made "a very clear statement" about his sexual orientation and should cut his hair, as well as ridiculing him for wearing a scarf as an accessory when it was not cold outside. Husman argued that these remarks, while possibly not offensive to a nongay observer, revealed that the manager viewed him as "too gay" and incompatible with Toyota's corporate culture, and that Toyota would have found a less obviously gay employee acceptable.

The appellate court found that, because of this evidence, the lower court's dismissal of the case before trial was improper. "While this is a close case, especially in light of the evidence of

Toyota's ongoing efforts to promote diversity and inclusion," the court said, Husman was entitled to have a jury decide whether his firing was based in part on the perception that he was "too gay," which would violate California law.

Husman v. Toyota Motor Credit Corp., Calif. Ct. App., No. B268300 (June 21, 2017).

Professional Pointer: The case of a woman fired from her job—not because she was female but because she did not wear makeup and acted in a "masculine" manner—reached the U.S. Supreme Court, which held in May 1989 that firing an employee based on stereotypical assumptions about how a woman should dress and behave was sex discrimination. This case applies the same analysis to a claim of sexual orientation discrimination.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.

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