Tuesday, August 19, 2008
Nan Hunter (Georgetown) on her new Hunter for Justice Blog (good luck with it, Nan!) writes about a New Jersey Appellate Division decision concerning sexually harassing comments involving a gay employee in the workplace:
The New Jersey Appellate Division has ruled that the allegation of a supervisor calling an employee a "stupid fag" is sufficient to support a hostile environment claim. In Kwiatkowski v. Merrill Lynch, the court reversed the summary judgment granted by the trial court to the employer. The defendant disputes whether the epithet was ever used, but the appellate court ruled unanimously that the case should go to a jury.
The opinion relates the saga of a young gay man employed as a call center customer service rep, who initially earned positive evaluations, but whose relationship with one supervisor soured over time. There seems to be little dispute that he was something of a mixed bag as an employee: late at times, but with outstanding ability to interact with customers. Things came to a head in a hallway exchange in which he asserted that his supervisor called him a "stupid fag," which she denied. (She claimed that he called her a "bitch," which he denied.) He was fired for "insubordination." The trial court ruled that this one instance of verbal abuse, assuming it to be true, could not satisfy the totality of circumstances test for a viable hostile environment claim.
The appellate court reversed. A previous NJ case had held that one comment could suffice, if the context was sufficiently abusive. In Taylor v. Metzger, a high-ranking officer had called an African-American sheriff's deputy a "jungle bunny" in front of another deputy. The appellate court found that the slur used against Kwiatkowski was comparable to the "patent offensiveness" found by the NJ Supreme Court in Taylor. Kwiatkowski sought psychiatric help after he was fired, and the court endorsed the psychiatrist's testimony that "the effect of such a comment was to make him question his identity and his decision to identify himself as a gay man in a straight world."
I know that people like Walter Olson may feature a case like this on his Overlawyered blog, but sexual harassment law at its core is contextual. I am not arguing the plaintiff should prevail on his claim, only that this is a question for a jury and one the judge should not decide on his or her own.
As Nan writes, "there is a world of meaning in what might seem to many like a he-said/she-said tale of pettiness in a customer call center in Hopewell, NJ. If one had to summarize the purpose of the first wave of the LGBT rights movement in one phrase, it would be to make it safe to be out. This court got it."