Is it ok to ask a lesbian co-worker to use her ‘gaydar’ to determine whether a new client is also gay?

Short answer: No.

Slightly longer answer: No, you jerk, of course not!

In a few hundred more words, I’ll explain why.

New Jersey: Lovers of pork roll and equal rights; haters of ‘gaydar’ comments from supervisors.

The genesis for this blog post is this press release from the State of New Jersey Department of Law & Public Safety Office of the Attorney General.

Last week, New Jersey’s Division on Civil Rights (think: NJ’s version of the EEOC) concluded that a billing company allegedly created a hostile work environment and fired a lesbian employee who complained after a supervisor commented about her “gaydar” during a meeting.

So, a hostile work environment and retaliation.

Here’s what supposedly happened according to the Division on Civil Rights:

During an all-staff meeting in October 2016, the company’s Director of Business Operations, and also the Complainant’s direct supervisor, said the Complainant could use her “gaydar” to determine whether or not a new client was a lesbian.
This comment upset and embarrassed the Complainant, who immediately objected to the comment both verbally and in a follow-up email to her supervisor.
During a face-to-face meeting that evening, the supervisor – whose sister is employed as Human Resources Coordinator – explained to Complainant that she felt it was acceptable to joke about the Complainant’s “gaydar” at the meeting because she’d overheard the Complainant herself joking about her sexuality, and using the term “gaydar” in the workplace.
At that point in the conversation, the Complainant asked to speak directly with the company’s owner about the incident. The supervisor reacted by immediately firing the Complainant.

In its Finding of Probable Cause, the Division on Civil Rights concluded that there was probable cause that the company violated New Jersey’s Law Against Discrimination by not only creating a hostile work environment based on the Complainant’s sexual orientation but also because it retaliated against her for complaining about the October 2016 incidents:

Said Division on Civil Rights Director Rachel Wainer Apter, “Here, Complainant’s supervisor not only outed Complainant to a new employee during an all-staff meeting and indicated that a client’s sexual orientation would somehow be relevant to her business, she also immediately fired Complainant after she raised concern about the incident.

“And because the Human Resources Coordinator was the supervisor’s sister, Complainant had nowhere else to report the incident,” Director Wainer Apter added. “Employers need to be aware of what constitutes discrimination and retaliation under the LAD, and make sure they have mechanisms in place that ensure that the individual accused of discriminatory conduct is not the person charged with investigating her or his own conduct.”

The Division on Civil Rights also concluded that the supervisor’s single comment “was sufficiently severe that a reasonable employee in Complainant’s position could find her work environment hostile or abusive.”

Actually, outside of NJ, your mileage may vary.

If you conduct business in a state or city in which local law expressly prohibits discrimination based on sexual orientation, then a similar fact pattern may produce the same outcome in your area.

But, in federal court; well, it depends.

Many courts have concluded that Title VII of the Civil Rights Act of 1964 does not cover claims of discrimination based on sexual orientation. However, the Supreme Court in Oncale v. Sundowner Offshore Servs., Inc., concluded that Title VII does create a cause of action for same-sex sexual harassment provided that the plaintiff can produce

credible evidence that the harasser is gay,
evidence that clarifies that the harasser is motivated by general hostility to the presence of the same sex in the workplace, or
comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

If that sounds difficult to prove, that’s because it is.

Plus, the employer could argue that if the employee didn’t have a good faith belief that he/she could satisfy the Oncale test when he/she complained, then the employee would not be able to pursue a retaliation claim if the company fires her for complaining.

So what should your business do?

Well, the easy answer is don’t discriminate.

But, the better answer is to train your employees and managers that comments or jokes about sexual orientation (or other protected classes) made without any intent to harass can still create problems. This is true even if the harasser reasonably believes that the comment won’t offend the victim. Indeed, the standard for a hostile work environment is an objective one, based on what a reasonable employee would find offensive.