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Sexual orientation: $1,914,104 verdict affirmed
November 30, 2005 by Ross Runkel at LawMemo
Employment discrimination because of sexual orientation is unlawful in California. And expensive.
Bruce Hope, a gay man, won a jury verdict for $914,104 in economic damages plus $1,000,000 in non-economic damages. On November 30 the California Court of Appeal affirmed. Hope v. California Youth Authority (California Ct App 11/30/2005).
Hope worked as a cook in one of California's youth correctional facilities. He claimed that he was harassed - because he was gay - over a period of about five years. The jury agreed. The employer appealed, arguing that the verdict was not supported by the evidence. (On an appeal the court has to assume that the winner's evidence was true, and I'll do the same here.)
The court did a nice job of laying out the facts (way too much detail to repeat here) and explaining the various elements of sexual orientation harassment.
- Severe or pervasive. The harassment has to be because of Hope's sexual orientation, and also has to be severe or pervasive enough to alter the conditions of his employment.
- His immediate supervisor called him a m**f** faggot and "homo." Perhaps 150 times.
- A security officer in the kitchen called him the same names, and more.
- He was promoted and then almost immediately that was revoked.
- The security officer threw trash on the floor after Hope had cleaned it.
- He was denied merit increases.
- The employer knew. In order for the employer to be liable, the employer has to have knowledge or be in a position where it should have known.
- Hope complained often.
- His own supervisor was one of the perpetrators.
- Another supervisor knew but did not report it up the chain of command.
- Sounded to me like just about everybody knew.
- Corrective action by the employer? There wasn't enough.
- Hope complained to six people.
- There was some "Don't do that again" instruction.
- The offensive conduct continued, and got worse.
- Economic damages - $914,104.
- The jury implicitly found that Hope would have worked for the state until retirement age but for the harassment.
- Although Hope was HIV positive, he had no obligation to prove that he had a normal life expectancy. He didn't have AIDS, and was responding well to medication.
- Although the employer argued that Hope did not prove he could never work again, it was the employer's burden to prove what he would have earned. The employer produced no evidence as to the amount Hope would have earned, and no evidence as to the availability of comparable employment.
- Non-economic damages - $1 million. "The award does not shock the conscience."
My view:
- The appeal was based on a claim of insufficient evidence. I thought there was plenty.
- Of the three judges, one concurred in the judgment without joining the opinion. I wonder why.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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