Severely Harassed “Faggot” “Fairy Boy” Not Protected by Federal Employment Law

The Supreme Court will soon decide whether Title VII—a law that prohibits sex discrimination in employment— applies to LGBT employees.

In some states, the answer is yes—but in this case, decided in Pennsylvania on Friday, the answer is no.

David Troutman works in an aluminum manufacturing plant.

He was subjected to unrelenting harassment by co-workers and managers because he is gay (they asked; he said he is gay). The harassment included being called a “faggot,” “fairy boy,” and “pickle splitter”; having penis shaped sex toys placed in his locker; having male employees begin discussing how much they like “pussy” after he walked into the office; being told that his head “looks like a penis”; hearing that new employees were warned to be “cautious” of him because he is a “flamboyant gay guy”; being told that he is “feminine”; seeing sexually explicit drawings in the bathroom stall and his locker naming the plaintiff and his supervisor, with whom the plaintiff allegedly had a relationship; and, seeing “#firetroutman” written in the bathroom.

After Troutman complained to HR, the harassment continued unabated.

The federal district court cited a leading precedent in the U.S. Court of Appeals, Third Circuit (Pennsylvania, Delaware, New Jersey) that refused to interpret “because of sex” to mean anything beyond harassment directed at heterosexual employees. Again: Heterosexuals are protected: LGBT are not protected.

Other circuits differ: They include sexual orientation under Title VII’s protections.
The Seventh (Illinois, Wisconsin, and Indiana) and Second Circuits (New York, Connecticut, and Vermont) are notable.

The Supreme Court will decide whether the phrase “because of sex” applies to sexual orientation.

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Companies that ignore severe harassment often have other legal issues. This employer was fined $49 million last month for defrauding NASA, the Department of Defense, and others to resolve criminal charges and civil claims relating to a 19-year fraud scheme that included falsifying thousands of certifications for aluminum extrusions provided to hundreds of customers.