California Diversity Manager Allowed to Resume Pursuing a Claim That His Employer Fired Him for Being ‘Too Gay’

LGBT flagThere are many types of discrimination in the workplace, and there are many varieties of such discrimination that the Fair Employment and Housing Act prohibits. In some cases, the discrimination may stem from an employee’s sexual orientation. In other cases, though, the discrimination is less about the employee’s orientation and more about his outward appearance relative to gender and sexuality. That type of case was what a Southern California management employee asserted:  that his employer fired him because, based upon his outward presentation, he was “too gay.”

The employee worked at various management-level positions at a major auto manufacturer’s “financial services corporation” (lending entity). From 2007 until 2010, the employee served as the national director for diversity and inclusion. The business’ success in diversity-related areas was substantial under the employee’s management, including recognition as a “Top 50” company for diversity. In 2010, he received a promotion. Despite the successes, the employee’s managers had occasional issues, including complaints regarding comments that were potentially sexist or otherwise inappropriate, as well as his allegedly failing to meet certain performance goals.

In September 2011, the employer fired the employee. The employee was told he was fired for “excluding the majority.” The employee, however, believed that the employer terminated him because of his sexual orientation, and he launched a discrimination action under the FEHA.

The trial court sided with the employer and issued a summary judgment in the employer’s favor on all of the claims. On appeal, though, the appellate court concluded that the employee had presented a viable claim for discrimination and should be allowed to go forward with his lawsuit on that count. The law creates a fairly high burden for cases, like this employee’s, in which the plaintiff relies upon circumstantial evidence to support his discrimination claim. The plaintiff must show that the discrimination was “a substantial motivating factor, rather than simply a motivating factor.”

This employee’s proof that he presented was sufficient to raise a viable argument that the employer was substantially motivated by improper bias, meaning that the employer was not entitled to summary judgment in its favor based upon what the parties submitted to the trial court. The employee’s case asserted that the employer fired him for being “too gay.” Specifically, the employee contended that the employer’s bias against him stemmed from certain higher managers’ discriminatory views and opinions regarding “appropriate gender identity expression.” These included arguably disparaging remarks about the employee’s hairstyle and choice of clothing and accessories.

The mere fact that the employer reassigned the employee’s diversity and inclusion duties to another gay employee was not enough to rule out impermissible discrimination. The employee’s case was not simply that the employer discriminated against him because of his orientation, but that he suffered because of his gender-nonconforming behaviors; in other words, he was too openly and outwardly gay. Simply replacing a fired gay employee with another gay employee would not disprove discrimination if that second employee was someone “who behaves in such a way as to deflect attention” from his sexuality.

If you believe that you’ve been a victim of improper discrimination at work, talk to the experienced Oakland employment attorneys at the Law Offices of Stephen M. Fuerch. Our team has spent many years helping aggrieved employees fight for their rights under the law. 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.

More Blog Posts:

California Supreme Court Rules Employee Allowed to Demand a Jury Trial for Wrongful Termination Claim, Oakland Personal Injury Attorney Blog, April 13, 2017

California Counselor Allowed to Pursue Sexual Orientation Discrimination Case Even Though She Was Heterosexual, Oakland Personal Injury Attorney Blog, Jan. 26, 2017