A recent case from Eastern Washington grappled with this interesting issue: whether a person can establish a claim of hostile work environment when he is harassed based on the perception that he is something that he is in fact not.
In the case of Davis v. Fred’s Appliance, Inc., Division III of the Washington Court of Appeals considered the case of a former deliveryman who had been fired by his employer. While Mr. Albert Davis had been making deliveries to a store another employee had called him “Big Gay Al,” in reference to the character on the show South Park. Despite Mr. Davis’s repeated requests for him to stop, the other employee continued to refer to him as “Big Gay Al.” Unsurprisingly, the matter escalated and management became involved. Ultimately, management arranged for the employee to apologize to Mr. Davis, but the matter escalated again resulting in the firing of Mr. Davis for his behavior during the apology. Mr. Davis was married and heterosexual.
Mr. Davis sued and alleged that he had been a victim of a hostile work environment and had been fired in violation of Washington’s law against discrimination (WLAD). To prove his claim Mr. Davis needed to prove that he had been harassed because he was “a member of a protected class.” Mr. Davis’s theory was that he had been harassed because the other employee perceived Mr. Davis to be a homosexual.
The Court acknowledged that WLAD prohibits discrimination based on sexual orientation. The Court then examined the statutory definition of “sexual orientation” contained in RCW 49.60.040(26). The Court noted that the definition of “sexual orientation” included the term “gender expression or identity,” which term was further defined as follows:
“having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.”
Based on these two definitions the Court reasoned that if “being perceived” were read into the definition of “sexual orientation,” the “being perceived” portion of the definition of “gender expression or identity” would be rendered meaningless.
It seems to us that under the Davis reasoning, an employee might be able to harass another employee on the basis of something they are not with complete impunity. It seems odd that WLAD’s prohibition against harassment should be so easily defeated by semantics especially because WLAD has a mandate to be liberally construed to prevent discrimination in employment.
