No ENDA, no place to turn for gay man facing discrimination at work

Posted on 20 Aug 2009 at 5:08pm
By David Taffet Staff Writer

Little says he left job with towing company because of hostile work environment, and that supervisor ignored non-discrimination policy

Keith Little worked as a dispatcher for Pro-Tow Wrecker Services in Carrollton while attending school. But then, he said, his supervisor found out he was gay, and "started harassing me."

Little said he was denied earned vacation time and days off. He said the supervisor made comments to other employees that created a "poisoned atmosphere" that made his continuing to work difficult: "He didn’t like me because of the way I lived, because of my lifestyle," Little said describing his supervisor.

The owner of Pro-Tow did not return multiple calls seeking comment.

He said that another gay employee moved from the Carrollton office to the DFW Airport location to get away from the same supervisor.

Dallas attorney Rob Wiley specializes in employment discrimination cases. He said that despite the hostile work environment, this would be a very difficult case to bring to court.

"You only have a cause of action if it’s because of a protected class," Wiley said.

Simply creating a hostile work environment for a gay or lesbian employee is not against the law. Gender, however, is protected.

So if an employee is called "queer" and comments made about that person’s sexual orientation make life miserable, that would not be covered. However, calling a man "girl" or insinuating he should use the ladies room might be grounds for a lawsuit based on gender protection, Wiley said.

Women who have been shown porn by male co-workers have won lawsuits, Wiley said. He also cites a case of a black salesman at a car dealership where co-workers hung nooses around his office, suggesting a lynching.

Those are illegal actions in the workplace based on racial discrimination.

Until the Employment Non-Discrimination Act, currently working its way through both houses of Congress, passes, similar actions that are based on orientation rather than on gender are not actionable.

Little said he brought the actions of his supervisor to the attention of the owner of the company.

"He disagreed with his actions, but did nothing about it," Little claimed.

After two years with the company, he left his job in July. He said he couldn’t deal with the harassment any longer and that it was affecting his mental health.

Since the company is located in Carrollton, rather than Dallas, no local workplace nondiscrimination ordinances apply. In Dallas, a workplace complaint could be filed with Fair Housing Office.

Pro-Tow does have a non-discrimination policy that includes sexual orientation in its employee handbook. But Wiley said that company policies are good to have, but do not translate into law.

In those cases, he encourages employees to speak to the company’s human resources department. He said he has seen a number of cases where companies "like to trot out that policy, even if it’s written in New York or California," but not apply it locally when needed.

Wiley also recommends keeping a record of incidents as they occur. To bring suit later, he said, major incidents need to have happened.

Examples he gives include being denied a promotion, having AIDS keyed into the side of a car, getting a good review quickly followed by being written up regularly after coming out.

In this economy, Wiley cites companies that have to decide who to lay off. When the decision is made to keep one person because he has a wife and children and fire the lesbian who is not supporting others, that is clearly discriminatory. Decisions should be made based on quality of work or seniority.

But until ENDA passes, those decisions are still legal.

Little said the situation at his office "got to a point where it was affecting my mental health — the anguish and hurt. I’m very angry."

Had the supervisor been terminated, he said he would have stayed at his job. At this point, however, even if offered his job back, he said he would not return.

Little plans to return to school in September and is not pursuing any legal action.

E-mail taffet@dallasvoice.com

This article appeared in the Dallas Voice print edition August 21, 2009.

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