Court upholds employee firing after complaining about gay slurs. Was that a mistake?

Mr. Gaff worked as a custodian at a University. He claimed that, on several occasions, his subordinate called him a “fa***t.” So, Mr. Gaff complained to his supervisor. Then, Mr. Gaff was later fired.

Retaliation?

Are you going to be at the ABA Annual Labor & Employment Law Conference in Philly this week? Be sure to stop by my Saturday session, where I’ll be talking about ethics and social media. So, basically, you’ll get a CLE ethics credit to hear me talk about how great I am at blogging.

And, on Friday, I plan to hit the Conference Reception at Reading Terminal Market. Well, technically, I don’t have a ticket. So, I’ll likely parachute into the velvet-roped VIP section MacGyver style using only a length of rubber tubing, some ball bearings, and a stick of bubble gum. That, or I’ll have to rely upon my invisibility cloak to sneak past security. But, since it’s invisible, I can’t find my cloak.

Anyway, if you want to meet up. Or, if you have a spare invisibility cloak — or maybe a cool XL Highlander trenchcoat — email me.

Now, back to this case, the one where the plaintiff claims he was unlawfully fired for complaining about gay slurs. Well, in order to have a retaliation claim, a plaintiff first has to show that he engaged in what the law deems a “protected activity.” One way to show a protected activity is to complain about discriminatory behavior.

Does complaining about a gay slur amount to a complaint of discrimination? According to the Indiana Court of Appeals (here), nope:

Gaff’s July 2012 oral reports to his supervisor regarding Itt’s derogatory comments did not involve discrimination against a protected class. That is, Gaff was not complaining about derogatory comments related to his race, color, religion, sex, or national origin; rather, he complained that Itt made derogatory comments about his weight and sexual orientation, neither of which involve protected classes under Title VII.

But, hold up a sec. The U.S. Supreme Court in Oncale v. Sundowner Offshore Services, Inc. concluded that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. So, couldn’t an employee reasonably believe, in good faith, that a series of gay slurs (as opposed to a single incident) directed at him are discriminatory? Or, at the very least, might that be sexual stereotyping, which the Supreme Court has also held to be unlawful.

Hmmm….let’s see what happens if this goes up to the Indiana Supreme Court.