Protecting Employees When the State Doesn't

A while back an attorney from Columbia, South Carolina, called me about a young man’s experience while working at Foot Locker. Kevin Dunbar had suffered severe antigay name-calling and abuse by his fellow employees at the athletic footwear and apparel chain, and the attorney had secured affidavits from customers who had witnessed the harassment. One customer, shopping with her children, heard a coworker call Kevin a “punk ass” and “faggot.” The customer complained to management and was ignored. A few days later, another customer heard a coworker call Kevin a “faggot” and threaten to “whip” his “punk ass.” She gave Kevin her name and telephone number, because “as a Christian woman, I felt this was wrong and the Lord told me to help and heal because the pain and embarrassment I saw in Mr. Dunbar’s face was intense.”

Kevin complained to his supervisors about the harassment, but instead of remedying the problem, they fired him a few short weeks after the incidents that the customers witnessed. With such a compelling factual case — attested to by independent witnesses — Kevin’s situation demanded that something be done. But Kevin lives in South Carolina, which is one of 33 states that do not have laws covering sexual orientation discrimination in employment. Nor was there a local law offering any such protection. Additionally, there is no federal law explicitly covering sexual orientation discrimination. So what is an attorney practicing in one of those states to do when a client like Kevin walks in with a compelling story of sexual orientation harassment and discrimination?

Faced with this question, I considered the options available for Lambda Legal to help Kevin. South Carolina at that time had very favorable case law providing that employers’ promises to their employees could be the basis of a contractual lawsuit. And Foot Locker did have excellent corporate policies promising workers that they would be free from harassment and discrimination based on sexual orientation:

Verbal or physical conduct by Associates or others which harasses, disrupts, or interferes with work performance or creates an intimidating, offensive or hostile environment will not be tolerated. This includes harassment based on race, color, age, disability, national origin, sex, sexual orientation, or religion.

[Foot Locker’s express policy is] to seek and employ the best qualified people in all of its facilities and all its locations, to provide equal opportunities for the advancement of Associates, including promotion and training, and to administer these activities in a manner which will not discriminate against any person because of . . . sex . . . or sexual orientation.

Lambda Legal filed a lawsuit, alleging breach of contract for Foot Locker’s failure to honor its promises to Kevin. South Carolina courts had repeatedly held that an employee handbook can create an employment contract. Small v. Springs Industries, Inc., 292 S.C. 481, 357 S.E.2d 452 (1987); see also Conner v. City of Forest Acres, 348 S.C. 454, 560 S.E.2d 606 (2002); King v. PYA/Monarch, Inc., 317 S.C. 385, 453 S.E.2d 885, 889 (1995); Leahy v. Starflo Corp., 314 S.C. 546, 548, 431 S.E.2d 567 (S.C. 1993); Shelton v. Oscar Mayer Foods Corp., 319 S.C. 81, 459 S.E.2d 851 (S.C. App. 1995). We knew that a key battleground would be whether Foot Locker adequately disclaimed any contractual obligation. But we believed that we could prevail upon a jury that Foot Locker had made contractual promises to Kevin. South Carolina provides that, unless reasonable minds cannot differ, it is a jury question as to whether the disclaimer is unambiguous and conspicuous enough to be effective. Conner, 348 S.C. at 458-59; Fleming v. Borden, 316 S.C. 452, 450 S.E.2d 589 (1994); Baril v. Aiken Reg'l Med. Ctrs., 352 S.C. 271; 573 S.E.2d 830 (S.C. App. 2002); Williams v. Riedman, 339 S.C. 251, 529 S.E.2d 28, (S.C. App. 2000); Jones v. GE, 331 S.C. 351, 358, 503 S.E.2d 173 (S.C. App. 1998).

With our legal strategy in place, we set our sights on public opinion, to bolster awareness of the case and issues outside of the courtroom. For instance, we staged protests outside of Women’s National Basketball Association (WNBA) games, where Foot Locker was a prominent sponsor. A few months after we filed the lawsuit, Foot Locker entered into settlement negotiations with us, resulting in a cash payment to Kevin and company-wide training focusing on sexual orientation discrimination and harassment.

In the wake of the Foot Locker victory, Lambda Legal continues to look for ways to improve the workplace for all employees, especially those who live in states without employment protections. This can involve representing public employees who can vindicate their constitutional right to be free of sexual orientation discrimination. In private employment, Title VII protects employees against discrimination for failing to conform to gender stereotypes, and Lambda Legal is working to ensure that courts continue to recognize that LGBT people frequently suffer this discrimination and are protected under Title VII.

Lawyers with LGBT clients must consider every avenue of relief. In addition to a possible contract theory as in the Foot Locker case, some discrimination may violate state codes of professional conduct or ethics. Unionized employees may be protected against discrimination by collective bargaining agreements. Certain tort/common law theories may be available, such as infliction of emotional distress, defamation, breach of the covenant of good faith and fair dealing, wrongful termination in violation of public policy and interference with contract or prospective business advantage. See Grimm v. U.S. West Communications, 644 N.W.2d 8 (Iowa 2002) (allowing a lesbian employee to pursue tort claim for intentional interference with employment contract against a supervisor who was alleged to have discharged her maliciously and for improper purpose). An employee suffering harassment on the job may be able to seek redress for emotional injuries through worker’s compensation. Dickert v. Metropolitan Life Ins. Co., 428 S.E.2d 700 (S.C. 1993). And public employees enjoy constitutional protections against irrational discrimination.

It is vital that private attorneys keep the door open to LGBT employees who have suffered discrimination, even in unfriendly jurisdictions. We encourage any lawyer to contact Lambda Legal if he or she is struggling to find a solution to a discrimination case. We also encourage attorneys interested in fighting workplace discrimination to become Lambda Legal cooperating attorneys. There is an acute need in this area, as many supportive attorneys work for firms that will not represent employees in labor disputes. The struggle to achieve full workplace fairness is a difficult one, but we are making tremendous progress. As part of the Foot Locker settlement, the company agreed to train its managers and employees more aggressively about antigay harassment and to inform all employees on a quarterly basis how to report claims of sexual harassment or discrimination based on sexual orientation. Lambda Legal is also employing a similar contract-law strategy in our newest case on behalf of a Kansas man who was sexually harassed by a female coworker at Coldwell Banker Americana before he was fired for being gay. Once again we are arguing that the company has violated its own antidiscrimination and harassment policies. In states without clear protections for LGBT workers, this contract strategy is one way of making sure that antigay discrimination will not be tolerated.

Please note that prior to our filing suit, South Carolina changed its laws, allowing employers prospectively to disclaim contractual obligations if the employer includes specific statutory language in their handbooks.