Tuesday, October 18, 2005

re-thinking Shari's discrimination suit

Back in April, I heard that a jury awarded a gay employee $122K in his discrimination lawsuit against one of Oregon's largest private employers, Shari's Restaurant. According to an article I read somewhere, the employee, Kevin Turner, was harassed by his co-workers "because he failed to display traditional male behavior". Oregon laws do not specifically prohibit employment discrimination based on sexual orientation or sexual identity. However, the Oregon Court of Appeals' 1998 decision in Tanner v. OHSU included sexual orientation in Oregon's laws against sex discrimination (see: HRC, BRO). So employers probably cannot discriminate against GLBT employees. Interestingly, the lawsuit was not based on state law prohibiting sexual orientation discrimination, but on federal law against gender discrimination. According to a blog entry on the employment law website Employment Law Information Network, Turner's lawsuit was based on "the theory that sexual stereotyping—discrimination because a person’s conduct or appearance does not fit that traditionally expecte for their gender—is a type of sex discrimination under [Title VII of the Civil Rights Act of 1964]". When I first heard about the jury award, not very many details were available. I assumed that the case was based on Shari's management condoning harassment of GLBT employees. This assumption was based, in part, on my bias that suburban and rural employers are more likely to discriminate against GLBTs. I also thought Turner v. Shari's was an opportunity to demonstrate why Oregon needs laws to explicitly prohibit discrimination against GLBT employees. In addition, as a frequent Shari's customer, I felt responsible that I could be supporting an anti-gay business. However, now that more information about Turner v. Shari's is available, I'm re-thinking my assumptions about the case. According to an article on The Advocate's website, Turner's case was not a clear example of gay discrimination. Rather, the case is complicated because Turner's complaint resulted from Shari's investigation regarding a female co-worker's complaint against Turner. A female co-worker claimed that Turner grabbed her breasts. However, Turner says he touched the woman accidentally during a moment of horseplay. The complications of the case may be fancy lawyering of the case by Shari's lawyers, but it seems there may have been other motives to Turner's complaint. Although the jury agreed that he was discriminated against based on gender, the same jury did not agree that Shari's retaliated against him. So there seems to be more going on than a simply case of gay discrimination.

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