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Years of repeated derogatory slurs for homosexuals created hostile work environment based on sexual orientation

May 9th, 2012  |  Deborah Hammonds

Evidence that a male employee heard repeated derogatory slurs was sufficient to show he was subjected to a hostile work environment based on his sexual orientation and the Connecticut Supreme Court ruled a trial court did not abuse its discretion in finding his employer liable for allowing it to continue (Patino v Birken Manufacturing Company). Affirming judgment for the employee, the court also ruled that the award of $94,500 in damages was supported by the evidence and was not excessive.

Background. The employee worked as a machinist from 1977 until his termination in 2004. Beginning in 1991, he became the subject of name-calling on the shop floor of his employer’s industrial plant. The name-calling consisted of derogatory slurs for homosexuals in Spanish, and in Italian and English. He claimed to have heard such words ‘‘very often,’’ sometimes even ‘‘two or three times a day.’’ The derogatory words were not spoken to his face, but were made in his presence, such as directly behind his back while he was operating machinery. Despite his complaints to his supervisor, the harassment continued over a period of many years before the employee filed suit under state law. Following a jury trial, the jury returned a verdict in favor of the employee. The employer then filed a motion to set aside the verdict and a motion for remittitur, both of which the trial court denied. The trial court thereafter rendered judgment in accordance with the verdict.

Claim covered by statute. As an initial matter, the court rejected the employer’s argument that Gen Stat Sec. 46a-81c (1) does not provide for hostile work environment claims. Reviewing the text of the statute, the court noted that while the statute does not itself define the phrase “terms, conditions or privileges of employment,” such silence does not necessarily equate to ambiguity. Examining the phrase “hostile work environment,” the court also looked to Connecticut case law analyzing Sec. 46a-60 (a) (1), the state’s broader antidiscrimination statute, which employs the identical phrase ‘‘terms, conditions or privileges of employment’’ as Sec. 46a-81c (1) and also predates that statute. Having concluded in previous cases that the legislature intended to create a cause of action for hostile work environment claims by prohibiting employers from discriminating ‘‘in terms, conditions or privileges of employment’’ under Sec. 46a-60 (a) (1), the court concluded that use of the same phrase in Sec. 46a-81c (1) evinces a similar intent with respect to sexual orientation discrimination. As a term of art with a fixed legal meaning in both federal and Connecticut antidiscrimination law, the phrase ‘‘terms, conditions or privileges of employment’’ appears in Sec. 46a-81c (1) for the specific legislative purpose of permitting hostile work environment claims under that statute.

Evidence supported verdict. The employer’s argument that even if the statute allows such claims, there was insufficient evidence to support the jury’s determination was also rejected. There was evidence that derogatory comments were made multiple times per week, sometimes several times a day, over a prolonged period of time, despite the employee’s repeated complaints to his supervisors. The employee testified that his coworkers constantly yelled slurs in his presence as he worked on the shop floor. He meticulously recorded each incident in his diaries, which were admitted into evidence for the jury to consider in reaching its verdict. Based on this evidence, the court concluded there was no abuse of discretion in the trial court’s conclusion that the jury reasonably could have determined that the employee was subjected to a hostile work environment.

The fact that the derogatory comments complained of in this case were not always directed specifically at the employee and appeared to be the product of a “locker-room office culture,” does not shield the employer from liability “because discriminatory conduct need not be directed at a particular plaintiff in order to support a finding of a hostile work environment.”

Regardless, the court concluded that there was sufficient evidence from which a jury could find that the remarks were, in fact, directed at the employee. He testified that his coworkers uttered derogatory slurs near him in particular. Additionally, his diary entries explain that his coworkers regularly yelled homosexual slurs upon seeing the employee while working on the shop floor and sometimes even made eye contact with him while doing so. The employer’s assertion that such evidence was insufficient to establish a HWE because the slurs were spoken in languages in which the employee was not fluent or because a word may have multiple meanings was also rejected. The court noted that aside from failing to raise the argument before the trial court, the “notion that one must be fluent in a language in order to know that a particular word has a derogatory meaning defies common sense.”

At any rate, most of the slurs were in English or Spanish, which the employee did speak fluently. Finally, the court rejected the employer’s contention that the employee must not have found the environment hostile because he chose to work, rather than take all the paid vacation days available to him. The court noted, again, that this argument was not raised before the trial court, in addition to pointing out that the employer failed to cite to any authority for the proposition that employees must take every opportunity offered to them to avoid their workplace in order to assert a HWE claim. The court strongly disagreed with the suggestion that the employee’s claim was “undercut by his strong work ethic or ability to withstand harassment on the job.” As such, there was no abuse of discretion in finding sufficient evidence existed to support the jury’s verdict for the employee.

Damages award. Giving every reasonable presumption in favor of the verdict’s correctness, the court concluded that there was no abuse of discretion in the trial court’s determination that the employee presented sufficient evidence to support the damages award. The jury reasonably could have credited the employee’s testimony that the harassment he experienced over the period of more than two years at issue devastated and overwhelmed him, making him feel angry, sad, humiliated, and diminished. The employee also testified that he had difficulty sleeping and, in at least one of his letters to the company’s vice president and general counsel, he stated that the stress was so overwhelming that his body would shake and his work product suffered as a result.

Furthermore, given the sustained nature of the discrimination described by the employee, the severity of the hostility he experienced, and the continued failure of his employer to remedy the situation, the trial court did not abuse its discretion when it concluded that the award was not excessive or shocking when compared to verdicts awarded under similar circumstances. Accordingly, the jury’s verdict for the employee was affirmed.