Employee’s Perceived Sexual Orientation Claim Survives

February 16, 2010

An employee living in California was fired by e-mail by his employer from its New York office. The employee, who was apparently fired for being perceived as gay, was permitted to proceed with his case in New York.

What happened. A California-based employee was hired to perform public relations, event planning, and talent selection for ad campaigns for the employer, a New York–based clothing manufacturer. After the employee was terminated, he received an e-mail from the company president stating he’d been fired because the company would not permit a gay person to be its representative.

The employee sued the employer under the nondiscrimination provisions of the New York Human Rights Law (NYHRL) and the New York City Human Rights Law (NYCHRL).

What the court said. The U.S. District Court for the Southern District of New York rejected arguments that the New York state and city laws did not protect against discrimination based on sexual orientation (or perceived orientation); that the employee was actually an independent contractor and thus was not protected by the antidiscrimination statute; and that as a nonresident of the state, he was not protected by the New York law.

In this case, the employee denied that he was gay. However, his alleged termination based on the perception that he was gay is still unlawful under both the NYHRL and the NYCHRL, the court explained.

Regarding the employee’s residency, the court determined that both the decision to terminate and the communication via e-mail originated in New York. Therefore, the court determined that it did have jurisdiction over the case. The fact that the impact of the allegedly discriminatory action was felt out of state had no bearing on the case. Rohn Padmore, Inc. v. LC Play, Inc., NY Civ. 06-0498 (1/11/10).

Point to remember: This case is especially egregious because the discriminatory nature of the termination was documented in an e-mail from the company president to the former employee. Such clear documentation rarely exists, and when it does, it is nearly impossible to defend against. In order to prevent such circumstances, employers are strongly advised to implement a clear nondiscrimination policy and enforce it uniformly, apply disciplinary policies consistently, review policies periodically to ensure that they are unbiased, and train supervisors to raise awareness of sex-based stereotypes and assumptions.

Employers should thoroughly document the events leading up to a decision to terminate at the time the events occur. Depending on the circumstances, it may be a good idea to provide the employee with warning of a contemplated termination, a description of the performance problem, and an opportunity to correct or explain it.

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