Tuesday, December 27, 2016

Looking at workplace harassment

The courts may be less relevant
than societal principles.

Several lawsuits are moving through the courts. The first of these is EEOC v. Rocky Mountain Casing Co. which was filed on December 22. Michael Allyn, a driver for Rocky Mountain in Williston North Dakota, alleges that he was the recipient of offensive homophobic slurs from his supervisor and coworkers. The EEOC argues on his behalf that discrimination on the basis of sexual orientation is sex discrimination which is impermissible under Title VII of the Civil Rights Act of 1964.

In November a federal district court judge in Pittsburgh ruled that sexual orientation discrimination does constitute discrimination on the basis of sex.

The U.S. Court of Appeals for the Seventh Circuit heard oral arguments on November 30 in the case of a lesbian college instructor’s Title VII claim of sexual orientation bias. Meanwhile, on December 15, the Eleventh Circuit heard oral argument in a the case pf a lesbian hospital employee who is alleging discrimination based on Title VII. On January 20, the Second Circuit will hear oral arguments in the Title VII case of a gay employee at Omnicom Group.

The EEOC has filed briefs in these cases. While the EEOC is a bipartisan commission the general counsel's position is currently vacant and will be a Trump appointee. As commissioners complete their terms they will be replaced by Trump. Chai Felblum, the only gay commissioner, finishes her second term on June 30, 2018.

As for the courts, we could end up with a circuit split which will send the matter to the Supreme Court — lest you have any doubts about the importance of Donald Trump in this matter.

But let us put jurisprudence aside for the moment

Even if the courts rule in our favor, that is not going to stop workplace harassment. It only ends when it becomes socially unacceptable to disparage LGBT people. To some extent that is true in Boston. Not so much in Houston.

The people most likely to denigrate coworkers based on sexual orientation are those who are insecure in their own sexuality. There are lots of those. What we are learning as we gain greater understanding of the continuum of sexual orientation is that most people are, to some extent, bisexual.

Our oppressors — mostly conservative Christians — claim that we are seeking their approval. That is a product of their own sense of self-importance. Our expectation of decency and decent treatment is unrelated to approval. It is what we should be able to expect from a civil society. The same folks do not approve of Jews either. We are all destined for Hell for not accepting Jesus Christ as our lord and savior. While some of the ant-Semites are emboldened by Trump we are generally treated decently in spite of the fact that they disapprove of — and might even detest — the Jews in their midst. Every once in awhile some schmuck like Tony Perkins slips but even he knows that it is not socially acceptable (he will try to obscure his intolerance and stupidity by professing support for Israel).

The objective is to expect decent treatment and then to receive it. Some gay men have suggested that we might want to “tone it down” a tad. That is not a solution. The problem is not the guy in a gay pride parade wearing a jock strap and bondage halter. The problem is that a segment of society is all too willing to advance the idea that the guy wearing a jock strap and bondage halter is somehow representative of the gay community. In fact, why judge that guy at all? I don't and neither should they. If memory serves me correctly being judgmental is proscribed by scripture. We do not judge heterosexual, cisgender people by their conduct at New Orleans' raunchy Mardi Gras.

Overall more time is required. Meanwhile, I will not allow any comment from anyone to go unchecked. I put my usual sarcasm aside and ask as politely as possible what the person means. A properly phrased question preceded by “May I ask you a question?” is relatively non-confrontational. I am far from perfect. A few years ago, as I was getting into a crowded elevator, some J.A.P. was on her phone talking about her decorator. “He is such a fairy” she said. I jammed an umbrella into the door to prevent it from closing, paused and then said (in my best managerial baritone) “I am a fairy too. I will catch the next car.” I exited the elevator. Based upon her facial expression I ruined her day. She will still devalue gay people but she will be less toxic in public in the future.

Those  Christians are never going to approve of us. The Catholic Church is going to profess that we are objectively disordered for a very long time. We need to be confident and we need to demand respect. That might be easier said than done but it is the best hope that we have. What is illegal and what is socially unacceptable are too very different things.

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