Are Workers Protected From Retaliation When Complaining About Discrimination Based On Perceived Sexual Orientation?

Throughout the past twenty years, our employee rights lawyers in Marion County have represented employment discrimination victims. Through their decades of experience handling employment discrimination cases, our employee rights attorneys in Ocala, Florida have learned that one common employment law myth is that employees are not protected from discrimination based on their perceived sexual orientation. Because of this employment law myth, many employers fail to protect employees from discrimination based on their perceived sexual orientation. Rather than protect their employees from unlawful discrimination, employers retaliate against employees who complain about discrimination based on their perceived sexual orientation. In this article, our employee rights lawyers in Marion County explain how the decision in Sanderson v. Leg Apparel, LLC, 2023 WL 2753200 (S.D. N.Y. March 31, 2023) demonstrates that federal employment discrimination law protects employees from retaliation when they complain about discrimination based on their perceived sexual orientation.

LGBTQ Employee Rights

In Bostock v. Clayton County, 140 S.Ct. 1731 (2020), the U.S. Supreme Court overruled decades of federal court precedent and held that discrimination against employees on the basis of sexual orientation or transgender status is a form of unlawful discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 (Title VII). In interpreting the scope of the Bostock Court’s ruling and Title VII’s protection against discrimination on the basis of sexual orientation and transgender status, the U.S. Fourth Circuit Court of Appeals in Roberts v. Glenn Industrial Group, Inc., 998 F.3d 111 (4th Cir. 2021) ruled that discrimination against employees because of their perceived sexual orientation also constitutes unlawful discrimination on the basis of sex in violation of Title VII.

In order to vindicate employee rights, Title VII contains an anti-retaliation provision. Under Title VII, employees are protected from retaliation when they complain about sex discrimination in the workplace. Because discrimination on the basis of sexual orientation or transgender status is a form of unlawful sex discrimination forbidden by Title VII, employees are also protected from retaliation under Title VII when they complain about discrimination on the basis of sexual orientation or transgender status. Because discrimination on the basis of perceived sexual orientation also constitutes unlawful sex discrimination under Title VII, Title VII further protects employees from retaliation when they complain about discrimination on the basis of perceived sexual orientation.

LGBTQ Discrimination Lawsuit

In Sanderson,a man named Sanderson brought a retaliation claim against his former employer, Legg Apparel, LLC (Leg Apparel), pursuant to Title VII. Sanderson claims that he was fired in retaliation for complaining about discrimination based on his perceived sexual orientation.

In January 2015, Sanderson began working for Leg Apparel as a senior merchandise planner. In this position, Sanderson was supervised by a woman named Romanino. In July 2017, Sanderson reported on his call with a client at Walmart to Romanino. At the end of the conversation, Romanino asked Sanderson in front of co-workers if the client was Sanderson’s boyfriend. In September 2017, Sanderson spoke with Romanino about a call with another client at Walmart and reported that the call had gone well. Romanino ended the conversation by asking Sanderson, “Is he your boyfriend?” Other co-workers were present for this comment, and again, they responded with laughter.

Discrimination Complaint

On September 11, 2017, Sanderson complained about Romanino’s “boyfriend” comments in an email he sent to both Romanino and Leg Apparel’s Human Resources Director. In the email, Sanderson described Romanino’s “boyfriend” comments and stated that he found Romanino’s comments to be offensive. Sanderson asked Romanino to refrain from making comments about her perception of Sanderson’s sexual orientation. When interviewed by the Human Resources Director, Romanino admitted that she had made the “boyfriend” comment, but she told the Director of Human Resources that she did not believe her comment was inappropriate.

During Romanino’s conversation with the Human Resources Director, Romanino reported that Sanderson had ongoing behavioral issues, and that Romanino had complained about Sanderson’s unprofessional behavior to the former Human Resources Director. The Human Resources Director launched an investigation into Sanderson’s conduct. Although the Human Resources Director typically interviews the employees who are named in complaints as part of her investigation, she did not interview Sanderson regarding any of the complaints made against him. At the conclusion of the investigation, Leg Apparel terminated Sanderson’s employment on September 13, 2017.

Protection From Retaliation

Leg Apparel filed a motion with the trial court seeking dismissal of Sanderson’s retaliation claim. In moving for dismissal, Leg Apparel argued that Sanderson was not terminated in retaliation for his complaint, but because he was “rude and disrespectful to his co-workers.” The trial court denied Leg Apparel’s motion for dismissal and ruled that Sanderson had presented sufficient evidence that he was fired in retaliation for complaining about discrimination based on his perceived sexual orientation in violation of Title VII to proceed to a jury trial.

At the outset of its opinion, the trial court explained that Sanderson was protected from retaliation by Title VII for complaining about discrimination based on his perceived sexual orientation. Having found that Sanderson was protected from retaliation, the trial court concluded that Sanderson had presented enough evidence to establish that the reason proffered for his termination was not the true reason, but a pretext for retaliation. In support of its conclusion, the trial court focused on two strands of evidence.

First, the trial court found that the “extremely short, two-day timeframe” between Sanderson’s discrimination complaint and his termination was evidence that the proffered reason for his termination was a pretext for retaliation. Second, the trial court observed that Sanderson “has pointed to an important weakness in [Leg Apparel’s] purported non-retaliatory reason for discharge” because it “is undisputed that [the Human Resources Director] deviated from Leg Apparel’s typical practices when conducting the investigation that led to Sanderson’s termination.” “In that investigation,” the trial court noted, “Sanderson was never interviewed about the allegations against him.” “[T]his was a deviation from his employer’s practice when a complaint is made, which is for management to interview employees named in a complaint about that complaint.” Based on this deviation from the employer’s typical practice, the trial court reasoned, a jury could find that Leg Apparel “did not want to provide him with the opportunity to explain himself, because they were intent on his termination.”

Employee Rights Lawyers In Marion County

Based in Ocala, Florida and representing workers throughout Florida, our employee rights attorneys in Marion County, Florida have fought for the rights of employment discrimination victims for more than two decades. If you have experienced workplace discrimination or have questions about your employee rights under federal employment discrimination law, please contact our office for a free consultation with our employee rights lawyers in Marion County, Florida. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.