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9th Circuit tackles harassment, retaliation against gay workers

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in Discrimination and Harassment,Employment Law,Firing,HR Management,Human Resources

by Leah Lively, Esq.

A recent 9th Circuit Court of Appeals decision highlights unexpected problems employers can face when gay employees are harassed because of their sexual orientation. The case—Dawson v. Entek International (No. 09-35844, 9th Cir., 2011)—illustrates what can go wrong when harassment occurs, HR is slow to respond and retaliation is alleged.

Although the case originated in Oregon, it’s important for California employers because the 9th Circuit has jurisdiction here.

Slurs from co-workers, boss

In 2007, Entek International hired Shane Dawson as a temporary worker on the production line at the company’s Lebanon, Ore., plant. Dawson worked with 24 other employees, all of whom were men. Two of them knew Dawson and knew he was gay.

Dawson’s trainer on the production line was Troy Guzon. Dawson considered Guzon not only his trainer but his boss, since Guzon was the only supervisor he dealt with every day.

Soon after starting at Entek, Dawson claimed co-workers began making derogatory comments about his sexual orientation. Dawson complained about the behavior to Guzon, who reportedly agreed to speak with the workers. But, Dawson claimed, Guzon himself began calling Dawson “homo.”

Dawson took a day off due to the stress caused by his work environment. He called Entek’s general number and notified the person who answered the phone that he would be absent. The company recorded Dawson’s day off as a “no-show/no-call day.” Entek’s policy requires employees who will be absent to call a supervisor one hour before their scheduled shift begins.

The next day, Dawson told HR he had a harassment problem and wanted to complain about the derogatory name-calling. Two days later, Entek fired Dawson, citing his failure to call in properly before missing work.

Dawson sued, alleging retaliatory discharge and a hostile work environment. When the trial judge dismissed the suit, Dawson appealed to the 9th Circuit.

Retaliation, hostile environment

The 9th Circuit addressed both of Dawson’s claims, tackling retaliation first.

At the heart of Dawson’s lawsuit was a timing issue. He alleged that his discharge so closely followed his harassment complaints to Guzon and HR that it raised “indirect evidence that undermines the credibility of [Entek’s] articulated reasons”—failing to follow the call-in policy.

The appeals court agreed, ruling that a jury should decide if being fired just two days after complaining about harassment constitutes retaliation. The court concluded that “a reasonable trier of fact could find in favor of Dawson on his retaliation claim.”

Was notice given?

Next the court considered Dawson’s hostile work environment claim. It rejected Entek’s assertion that it lacked notice of the alleged harassment. According to the court, the company officially was put on notice of the hostile work environment when Dawson went to HR and asked about filing a complaint.

Likewise, the court found that “there is circumstantial evidence that Entek was put on notice when Dawson talked to Guzon about the treatment, and Guzon not only ignored the complaint but joined in the derogatory name-calling.”

The 9th Circuit said a jury should decide whether Guzon was a supervisor for whom Entek may be held vicariously liable under the standards set in the U.S. Supreme Court’s landmark 1998 decisions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton. Those cases said that if a supervisor is to blame for harassment or discrimination, the employer can defend itself against liability only by proving that:

  • It took reasonable care to prevent and correct sexually harassing behavior.
  • The employee unreasonably failed to take advantage of the corrective or preventive measure provided by the employer.

In Dawson’s case, the key may be whether Guzon was really Dawson’s supervisor.

What employers need to know

Two key principles from this case:

  1. Close timing alone may be enough to show a pretext for retaliation.
  2. A co-worker may be considered a “supervisor” for purposes of imposing vicarious liability on an employer based upon the co-worker’s ability to “demand obedience” from the employee.


Author: Leah Lively is a shareholder in Ogletree Deakins’ Portland office. She is an experienced trial attorney, exclusively defending employers from claims of harassment, discrimination, retaliation, wrongful discharge and wage-and-hour violations. Contact her at leah.lively@ogletreedeakins.com or (503) 552-2140.

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