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Reverse sexual orientation discrimination claims under state law are rare but still possible, a recent California case shows. And the number of such claims may grow if courts interpret federal civil rights laws more broadly to prohibit discrimination based on sexual orientation.
A residential drug treatment facility in Los Angeles is embroiled in a dispute with a heterosexual female employee who claimed in a lawsuit that the director of the facility engaged in reverse sexual orientation discrimination.
The director allegedly treated gay workers more favorably than straight women and discriminated against the plaintiff by changing her work schedule to conflict with her community college classes. She had wanted a schedule adjustment to attend classes to get certified as a substance abuse counselor—certification the worker said she needed to stay employed. The California Court of Appeal ruled on Dec. 15, 2016, that her reverse sexual orientation discrimination claim could go to trial.
"Many believe that potential discrimination against groups in the minority is the area worthy of most attention, but this type of case highlights the need to watch out for reverse discrimination, which is a viable claim under the law and may not be as intuitively 'taboo' for supervisors," said Todd Solomon, an attorney with McDermott Will & Emery in Chicago.
[SHRM members-only toolkit: Managing Equal Employment Opportunity]
"Where state or local law includes a prohibition against sexual orientation discrimination, reverse sexual orientation discrimination claims are certainly possible," said Nathaniel Glasser, an attorney with Epstein Becker Green in Washington, D.C. "And as some courts begin to expand [Title VII of the Civil Rights Act of 1964] protections to sexual orientation … we may see more reverse sexual orientation discrimination claims."
Soon after Sharon Hardy began her employment as a substance abuse counselor at the House of Uhuru in July 2011, she complained to Watts Healthcare Corp.'s vice president of human resources that Wendell Carmichael, the facility's director, treated male and gay employees and clients better than others. Watts operated the facility.
When Hardy sought permission for a spring 2012 work schedule that would allow her to take classes to complete her certification as a counselor, her immediate supervisor approved the schedule. But after Hardy had registered and paid for her classes, Carmichael changed her schedule and told her to drop classes or quit her job. Hardy withdrew from one class and failed the other, she claimed in her lawsuit, because of conflicts with her work schedule.
Nicknames, Followed by Investigations
In April 2012, after Hardy complained to management about Carmichael again, he started requiring her to report to him before she checked on her clients. No other counselors were required to do so, according to the lawsuit. Also, Carmichael often treated Hardy disrespectfully, referring to her as "Boo," "Boo Boo," "Ms. Thang" or "Fish," Hardy claimed.
In May 2012, a House of Uhuru client complained in writing that he'd seen Hardy kissing and giving money to another client. Such conduct would have violated Watts policy and would have contravened the code of conduct of the certifying board for substance abuse counselors. Hardy claimed Carmichael told her that he knew the complaint was false but laughed and said he would investigate it anyway. He also asked for her cellphone number, saying Watts needed it, though HR later said this wasn't so, Hardy asserted.
A few days later, Hardy complained again to HR about Carmichael's management style and how he treated her. Hardy's attorney also sent a letter to HR in August 2012, complaining about Carmichael. Watts investigated his conduct and terminated him in September 2012.
Hardy remained employed with the House of Uhuru, and although she started in an "on call" position, she ultimately obtained a position with benefits and a mutually agreed schedule.
She sued on Feb. 8, 2013, alleging sexual orientation discrimination and gender discrimination in violation of state law. Hardy alleged that Carmichael treated gay men, men in general and lesbians more favorably than heterosexual women, including her.
As one of her allegations of preferential treatment, she said Carmichael allowed at least six gay clients to be readmitted to the substance abuse program immediately following relapses but did not allow women or heterosexual individuals to do the same. Watts had a policy requiring a 30-day waiting period after a relapse.
She also alleged that he treated a lesbian employee more favorably and celebrated her birthday with a cake, something he did not do for any other employee. Hardy also produced evidence that another female counselor was paid less than a male employee who was less qualified.
Summary Judgment Reversed
The Superior Court of Los Angeles County ruled in Watts' favor, but the California Court of Appeal reversed summary judgment for Watts on the discriminatory scheduling claim and sent it to trial. The appellate court noted that Hardy allegedly needed certification to remain employed.
Watts claimed that she failed the class because she "had a habit of failing, dropping and withdrawing from courses."
But the court said a jury should decide whether her failing a course was due to the change in her work schedule.
The court noted that when Hardy protested the scheduling change, Carmichael responded angrily, saying, "I don't care what you do. You will never make it to be a counselor if I have anything to do with it. You should quit." The court also said his nicknames for her were rude.
"Taken together, the preferential treatment of males and homosexual individuals, along with the negative treatment of Hardy, might allow a fact finder to infer that Carmichael was motivated by discriminatory animus based on her sexual orientation or gender," the court stated.
Take Claims Seriously
Complaints brought by employees belonging to what is traditionally the majority group should be taken as seriously as complaints brought by employees belonging to historically disadvantaged groups, noted Elizabeth Marvin, an attorney with Lewis Baach in Washington, D.C.
That said, Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y., noted that reverse sexual orientation discrimination claims are not common. "In 28 years, I have only litigated one such claim and it had no merit," she observed.
"In certain workplaces, as a way to combat bias and stereotypes, there is a tendency for LGBT [lesbian, gay, bisexual and transgender] staff to become more insular and to associate and socialize with like-minded people," Phillips added. "This should not be confused with evidence of bias. For example, attending gay pride events together, networking within the LGBT community or creating LGBT employee resource groups are all really constructive ways for LGBT staff to feel connected, to network and to share their individual experiences."
This decision is Hardy v. Watts Healthcare Corp., Cal. Ct. App., B267161 (Dec. 15, 2016).
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