Employers, allowing employees to make homophobic comments unchecked may just get you sued.

On September 22, 2023, the Equal Employment Opportunity Commission (“EEOC”), the agency that enforces the federal anti-discrimination laws, filed a lawsuit against 4Top Hospitality Group and J.H.S. Holdings, which does business as Amerigo Italian Restaurant, alleging a hostile work environment based on sex and sexual orientation and retaliation on behalf of a former employee.

The Factual Allegations Are Not Pretty.

In the Complaint, the EEOC alleged that a coworker cast the following comments at the employee, an openly gay male server who did not conform to gender stereotypes:

  • “I can’t stand your gay ass”
  • “that is so f*** gay”
  • when asked to help take out the trash, “your gay ass can do it yourself.”

The coworker also called the employee another f-word, which I won’t repeat here (but you can guess), on multiple occasions.

Ostensibly, the comments became an everyday occurrence, and management did nothing to stop them.

When the server complained, the restaurant employer did not investigate and, in fact, tried to talk the employee out of escalating the complaint.

As happens all too often, the employer fired the server who was subjected to the harassment soon after he complained, even though the server was well-liked by customers and had no previous performance issues.

The server filed a Charge of Discrimination, and the EEOC sued the restaurant group employer for sex discrimination and retaliation.

Why Is This A Hostile Work Environment?

Let’s review the law here.

To constitute a hostile work environment under Title VII of the Civil Rights Act of 1964 (“Title VII”), comments or conduct must be based on a protected characteristic, such as gender—the harassment must be because of the employee’s sex (or race, disability, age, etc).

Since June 2020, the Supreme Court of the United States (SCOTUS) has determined that conduct or comments based on a person’s gender identity or sexual orientation is based on “sex.” Federal law equally prohibits sex stereotyping—how a person should look, dress, and act— as a form of sex discrimination.

Photo by Anete Lusina: https://www.pexels.com/photo/positive-young-black-guy-laughing-near-graffiti-wall-with-rainbow-flag-5721335/

Next, the comments must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. Do we have that here?

Maybe. The courts will decide, but the EEOC certainly alleged that comments by the employee’s coworker offended and upset him.

Finally, the sexually charged comments or conduct must be severe or pervasive to the point that the employee (subjectively) considers it to be offensive and abusive.

Retaliation Is Unlawful As Well, And It’s Easier To Prove.

Complaining to HR or a supervisor about unlawful workplace discrimination or harassment is “protected activity” under Title VII. The law prohibits an employer from subjecting an employee to an “adverse action” (such as failure to promote) when that employee has opposed any practice made an unlawful employment practice by Title VII.

The EEOC considers “opposition” to an unlawful employment practice to include complaining to management about unlawful harassment, in reasonable good faith, against oneself OR others. 

So, once an employee complains to management about discrimination, if the employer takes any adverse action against the employee, the employer can be held liable for retaliating against the employee.

What happened here? The server complained, and soon after that, he was fired. (May be) easy peasy.

Employer Takeaways

Employers, take note – LGBTQ+-based discrimination violates Title VII , and the EEOC is watching. Moreover,

  • Ensure handbooks prohibit harassment based on sexual orientation and gender identity;
  • Be specific about intolerable misconduct, and give examples. Don’t assume people just “get it.” Actually say “no sexual or sexist jokes, sexual puns, sexual innuendo, or questions about your coworkers’ sex lives.” In other words, give your employees clear context;
  • Disseminate the unlawful harassment policy to every single employee throughout your company, and ensure your employees understand it;
  • Provide a written procedure for reporting and investigating claims of unlawful harassment and uniformly and consistently follow your procedures, documenting the process along the way. ;
  • Check your organizational culture. The organizational culture or climate must not tolerate harassment. Here, not only did the server’s coworker make homophobic comments based on the employee’s sexual orientation, but management allegedly shrugged it off. Employers should maintain a “top-down” culture prohibiting unlawful harassment to demonstrate commitment.
  • Provide regular, interactive training tailored to the specific workplace.

LGBTQI+ employees should feel safe at work.

AND, ensure management acts promptly to investigate the matter and does not retaliate against the victim (thus re-victimizing the complainant.

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