Straight Worker Loses Job for Complaining About Homophobic Music, Sues for Sex Discrimination

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By Arthur S. Leonard. This article will appear in the August edition of LGBT Bar NY’s LGBT Law Notes, the most comprehensive monthly publication of LGBT legal Developments here and abroad. Subscribe

Does Title VII’s ban on sex discrimination in employment protect a probationary heterosexual employee who was fired after complaining about the broadcast of music in his workplace that could be construed as offense to women and gays?

Granting partial summary judgment to the employer in Sorge v. Yelp Incorporated, Senior U.S. District Judge Stephen M. McNamee in Arizona held that Joseph Sorge’s factual allegations were not sufficient to make out a hostile environment claim under Title VII. “Sorge identifies as a heterosexual man, but he complains of a work environment hostile to women and homosexuals,” wrote Judge McNamee. “Because Sorge is neither a woman nor homosexual, his complaints about the Song [which he alleged was played repeatedly in the workplace, using the terms “bitch” to refer to women and “faggot” to refer to gays] cannot support a claim for hostile work environment as he has not experienced harassment because of his own sex. . . At no point does Sorge allege that the Song was demeaning to heterosexual men. Sorge will not be permitted to amend the theory of liability stated in his Complaint in opposition to summary judgment.”

The court found “irrelevant” to Sorge’s claim the employer’s “No Tolerance” policy, stating that the policy “does not alter the statutory requirements of Title VII, which requires that the discrimination occur because of the plaintiff’s sex. Sorge does not identify any case law stating otherwise.” However, the court refused to grant summary judgment to the employer on the retaliation claim, stating that its “argument misconstrues what constitutes a protected activity for purposes of a retaliation claim. An employee need not prove an ‘unlawful employment practice’ to prevail on a claim of unlawful retaliation; rather, ‘the opposed conduct must fairly fall within the protection of Title VII to sustain a claim of unlawful retaliation.

Furthermore, an employee’s complaints about the treatment of others is considered a protected activity, even if the employee is not a member of the class that he claims suffered from discrimination, and even if the discrimination he complained about was not legally cognizable. Thus, Sorge’s alleged complaint about the Song is not excluded from protection under Title VII’s retaliation provision merely because Sorge is not a woman or a homosexual.

Because Yelp makes no further arguments against Sorge’s prima facie case, the Court assumes, without finding, that Sorge has established his prima facie case.” Although Yelp presented evidence of non-retaliatory reasons for decision to dismiss Sorge, the court held that temporal proximity of the discharge to the employee’s complaint to management in this case precluded granting Yelp summary judgment, writing that “the Court is compelled to conclude that the temporal proximity of 24 hours between Sorge’s alleged complaint and his termination is sufficient to raise a triable issue as to pretext.”

The judge explained that “a reasonable jury could potentially find evidence of retaliatory intent in Susa’s response to Sorge’s complaint and Yelp’s formally stated reason for Sorge’s termination. Sorge alleges that when he complained to Susa about the offensive lyrics, Susa responded by saying ‘it was company culture’ and that Sorge should ‘get over it.’ Then on the formal paperwork documenting Sorge’s termination, Yelp noted that the primary reason for Sorge’s termination was ‘Not a good Cultural Fit.’” Rather clear evidence of retaliatory intent, we would think. Joseph Sorge ir represented by Joshua William Carden of Scottsdale, AZ.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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