California Counselor Allowed to Pursue Sexual Orientation Discrimination Case Even Though She Was Heterosexual

job interviewCalifornia law has significant legal protections to safeguard employees from workplace discrimination. You may wonder, however, what happens if you believe that you’re being targeted because of discrimination, even though you’re not a member of a historically disadvantaged group. For example, what if you believe your employer is discriminating against you because you’re heterosexual? In the case of one Southern California drug counselor, the Second District Court of Appeal concluded that the arguments she made were enough to support an actionable claim that her employer treated heterosexual women more poorly than similarly situated heterosexual men and homosexual employees.

In this case, the employer ran a residential drug treatment facility. The employee who sued was one of the center’s on-call substance abuse counselors. The counselor’s immediate supervisor was a woman, and that supervisor reported to the facility’s director, who was a gay man. The counselor suffered what she believed was several forms of mistreatment that would eventually form the basis of her lawsuit. She claimed that the director left her on staff as a non-permanent employee for a year, even though the employer’s policies called for her to be made a permanent employee after 90 days.

Additionally, she claimed that the director, as part of an investigation into the counselor’s alleged wrongdoing, asked for her cell phone records under the pretense that the employer wanted them, but the head of human resources told her that this was untrue. The director also rudely called her nicknames, like “Boo Boo,” “Ms. Thang,” and “Fish.” These were just some of many instances in which, according to the counselor, the director treated her more poorly than certain other employees. Eventually, the facility terminated the director and made the counselor a permanent employee.

With this evidence, the counselor brought a lawsuit under the FEHA, arguing that she suffered from gender and sexual orientation discrimination. The crux of her lawsuit was a somewhat novel argument, which was that the director treated all male employees and lesbian female employees well but engaged in pervasive discrimination against heterosexual women.

The trial court sided with the facility, issuing a summary judgment in its favor. The counselor, it stated, failed to prove that she suffered any adverse employment action and also didn’t demonstrate a “link between protected activity and any adverse employment action.”

The employee appealed, and her appeal was successful. Contrary to the trial court’s conclusion, the counselor’s claims were enough to meet the legal standards for a prima facie case of discriminatory motive on the employer’s part. She had declarations from other employees stating how the director treated male employees hired around the same time as the plaintiff better than he treated her. She also had evidence that related to instances in which the director treated men better than heterosexual women and other circumstances in which he treated lesbian women better than heterosexual women. When all of this was added up, the counselor had enough to possibly persuade a reasonable jury that the director treated homosexuals and men better than straight women and did so with “discriminatory animus.”

This ruling is noteworthy because this counselor was a member of a historically non-disadvantaged group (heterosexuals), but that status did not mean that she could not pursue a discrimination case based upon a sexual orientation claim. Regardless of your situation, you shouldn’t assume that your discrimination isn’t actionable; always consult experienced California counsel first. The knowledgeable Oakland employment attorneys at the Law Offices of Stephen M. Fuerch have assisted employees for many years as they pursue justice. For more information regarding how this office can help you, contact us through our website or call our office at (925) 463-1073 to schedule your confidential initial consultation today.

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California Appeals Court Upholds $16M Judgment in Age Discrimination Case, Oakland Personal Injury Attorney Blog, June 30, 2016

Timing Proves Critical to Failure of Employer’s Defense in California Woman’s Pregnancy Discrimination Case, Oakland Personal Injury Attorney Blog, Nov. 30, 2015