Is a “gay” Santa hat sex harassment?
The senior-most manager witnessed offensive sex-based conduct directed at the gay worker but did not stop it. The gay employee complained about the conduct to his co-workers, and to managers, but the company did not take prompt corrective action to rectify the hostile work environment, and the gay worker quit.
The gay worker filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging violations of Title VII. The EEOC issued to the company a Letter of Determination finding reasonable cause to believe that the Title VII was violated and inviting the company to remedy the discriminatory practices. When the EEOC was unable to secure from the business a conciliation agreement acceptable to the EEOC, it sued the employer in federal Court. EEOC vs. Rocky Mountain Casing Crews, Case 1:16-cv-00428-DLH-CSM.
A male worker who was gay complained that his male co-workers called him offensive and homophobic slurs; they defaced company vehicles with sex-based remarks about him; they painted a truck he was known to use with pink polka dots, hearts, and rainbows; and they left him pornographic magazines.
Among other things during this period, the gay employee’s direct supervisor directed offensive jokes about gays to or around the gay employee, made the gay worker the butt of derogatory sex-based comments, gave him children's toys and board games, and gave him a hat with a Spanish slang word for homosexual on it.
Recently the EEOC announced that the employer agreed to settle this lawsuit by paying $70,000 and adopting and enforcing a policy against sexual harassment in the future. The company’s management and employees must also undergo training on the prohibitions against harassment in the workplace.
EEOC spokespersons stated, “Sexual harassment is illegal whether it is against women or men,” and “Employers must respond appropriately when they receive complaints of this kind of abuse,” and “Employers have to not only be reactive in responding to complaints of harassment, but they must be proactive too. They should make sure that their workplace is inhospitable to acts of harassment, and that their employees know that such misconduct violates federal law and has no place there.” Also, “Employers must realize that harassing someone because of his or her perceived sexual orientation violates the law just as does other types of harassment based on sex, or harassment based on race, or harassment based on religion,”
Florida employers are reminded that although sexual orientation is not a protected status listed under Title VII, the EEOC has taken the position that it is protected, and some federal courts have agreed. Until Congress clarifies this, it is unknown how any specific judge in Florida will rule on this issue.
If you own a Florida business and you have questions about sex discrimination based on LGBT status or sexual orientation, you may email the Law Office of David Miklas, P.A. for a consultation or you can call David Miklas at 1-772-465-5111 to discuss sexual orientation discrimination in Florida.
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