Employers Now On The Hook For Workers' Gay Slurs In Landmark Case
For decades, Luis Patino worked for Birken Manufacturing Co. in Connecticut, building aircraft components. Starting in 1991, the taunts became relentless: "faggot," "homo," "faggot go home." They harassed him in Italian and Spanish, too: "pato," "maricon," "pira." His body shook with humiliation, his work suffered, and he struggled to get to sleep at night. Patino complained to management many times over many years, but the insults never stopped.
It wasn't clear, however, that Patino's employer had done anything illegal. No court in the country has ever held a company responsible for the gay harassment suffered by an employee. But this past Friday, the Connecticut Supreme Court did. Patino, who will be 73 next week, was awarded $94,500, reports the Hartford Courant.
Patino started working at Birken in 1977, but the slurs only started 14 years later, the same year Connecticut became one of the first five states to pass a sexual orientation anti-discrimination law. Patino noted the incidents in a diary, but waited five or six years to report them to a supervisor, according to the court brief. The harassment let up for a few weeks, and one of the offenders was transferred, but soon the torment returned in full force.
So Patino hired a lawyer, who sent a complaint to Birken's then-vice president and general counsel, and now president, Gary Greenberg. In a letter, Greenberg recommended that Patino get a psychiatric evaluation, because his emotional state might pose a "safety risk to others when mental facilities were compromised," reports the Hartford Courant.
Patino filed five complaints over the years with the commission on human rights and opportunities, and continued to send letters to Greenberg. But according to the brief, he eventually stopped, writing that more letters would be "an exercise in futility."
In his last complaint, Patino accused Birken of allowing "a hostile work environment" by "failing to take adequate measures to alleviate the harassment or to remedy the hostile work environment."
The phrase "hostile work environment" is often used in cases of sexual harassment. For several decades, sexual harassment -- relentless sexual remarks, touching, and groping -- didn't count as discrimination under the law. But in 1986, the Supreme Court decided that the vice president of a bank, who repeatedly touched and forcibly raped a young, female teller, created a "hostile work environment," which counted as sex discrimination. The bank was therefore liable.
This idea had never been applied to the harassment of gay men and women, however. After all, protections against gay men and women are pretty new, although their harassment is very common. Studies show that 15 to 43 percent of gay, lesbian and bisexual workers have experienced discrimination on the job.
Patino's trial began in 2006. Birken argued that the evidence wasn't sufficient, because many of the alleged slurs were in languages, like French, Portuguese and Laotian, which Patino didn't understand. And even if Patino was harassed, the company argued that it wasn't responsible because allowing a "hostile work environment" for gay workers wasn't part of the anti-discrimination law.
The jury didn't buy it, and ultimately awarded Patino $94,000. Birken appealed the case to the Supreme Court, which on Friday agreed with the jury decision, shutting down the defense's arguments in a tone that was more "strident" than his attorney Jon L. Schoenhorn has seen in three decades in the courts.
Employers could officially be held responsible if their employees harassed a gay co-worker and they didn't do enough to stop it, allowing a "hostile work environment" to persist, the ruling held. And that may apply to other protected groups too, like minorities and disabled Americans.
"It's a sweeping decision," said Schoenhorn; an employer no longer has to actively discriminate to be guilty of discrimination; "callous disregard" is enough.
"This type of discrimination happens to gay people everywhere, every day," Patino said in a statement. "I am aware that some victims have committed suicide because of this hostile treatment."
"I am glad I was able to play a small part in making law that will protect other gay people," he continued. "It means that employers must take seriously these complaints and these situations, or face the consequences."
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Claire Gordon has contributed to Slate's DoubleX, the Huffington Post, and the book Prisons: Current Controversies. While an undergraduate at Yale University and a research fellow at Yale graduate school, she spoke on panels at Yale and Cornell, and reported from Cairo, Tokyo, and Berlin.
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