Let’s play the “law school hypothetical” game for a minute. (I know, not as exciting as a cat being chosen in Monopoly, but bear with me.)
- An gay, male employee starts works as a teacher in an “New Beginnings Alternative” program at a public school.
- During his employment, he is subject to derogatory statements by a fellow teacher, a school police officer and a supervisor.
- Allegedly a supervisor tells a social worker that the employee is “too flaming” or “too flamboyant”. Also, a fellow teacher is alleged to have said to the employee at a department meeting that “You are so overdramatic, you are being a bitch just like a woman.”
- The employee is criticized for not being a “team player” and that his “apparent proneness towards using sarcasm and humor (that is often not understood by others) must change.”
- The employee believes that the supervisor’s comments regarding how he and others cannot understand the employee’s sense of humor “stems from their divergent social views and pervasive stereotypes on gender and sexuality.”
- Ultimately, the employee is informed that his contract may not be renewed which does, in fact, lead to a non-renewal of the contract.
Assuming, as you must for the moment, that the allegations are all true, does the employee have any claims? If so, what are they?
In law school and on bar exams, this type of question is often posed. The idea is to test future attorneys on thinking creatively.
Fortunately here, we have a real life example which demonstrates what types of claims that can be raised. The facts above where taken from the case, Sturman v. Groton Board of Education (download here), which was decided by a Superior Court late last year. The court was asked if the claims could merely proceed and thus, readers are reminded the allegations are presumed to be true for the moment. Whether they are will ultimately be up to a judge or jury.
Because we are in Connecticut, the most obvious claim is a sexual orientation discrimination claim. That is, that the employee was treated differently because of his sexual orientation. This type of claim exists under Connecticut law but not federal law. There’s little doubt that the facts above could give rise to such a claim.
But what about sex discrimination itself? Federal courts have allowed this claims, but what about under Connecticut law?
Yes, says the Superior Court. That claim is allowed to proceed too.
How? Because gender discrimiantion laws also prohibit “sex stereotyping”. What is it? As one court explains, it is when “individual employees who face adverse employment actions as a result of their employer’s animus toward their exhibition of behavior considered to be stereotypically inappropriate for their gender may have a claim under Title VII.” (The Connecticut Appellate Court also addressed this back in September of last year.)
This law does not merely protect heterosexual employees, explained the Supeior Court. Here, the allegations “may be read as referring to the plaintiff’s failure to conform with stereotypically masculine characteristics.” The allegations that he was treated differently because of his “failure to fit into traditionally accepted gender roles” is enough at this point to state a claim.
There’s obviously more to this story (like the employee’s performance) than meets the eye so take the decision with a healthy bit of skepticism at this point too.
What’s the takeaway for employers?
Jokes and derogatory comments about an employee’s sexual orientation or perceived “mannerisms” like being “flamboyant” have no place in today’s workplace. Even if they seem innocuous at the time, the comments — when repeated later in court papers — sting much more.
When training employees on harassment issues, don’t forget that preventing same-sex harassment can be just as important at times. It can be overlooked at times, so make sure your anti-harassment training programs cover that aspect as well.