Are Workers Protected From Retaliation When Complaining About Sexual Orientation Discrimination?

Having fought for the rights of employees for more than two decades, our LGBTQ employee rights lawyers in Citrus County, Florida know that LGBTQ employees may be unaware they are protected from retaliation when they complain about perceived discrimination on the basis of sexual orientation or transgender status. This possible misconception exists because federal courts ruled for decades that federal employment discrimination law does not protect employees from discrimination on the basis of sexual orientation or transgender status. Under these rulings, therefore, employers were lawfully permitted to discriminate against employees on the basis of sexual orientation or transgender status.

This long line of federal court decisions also adversely affected employee rights in the retaliation context. Under theses federal court rulings, employees were not protected from retaliation when they complained about perceived sexual orientation or transgender discrimination because discrimination on the basis of sexual orientation or transgender status was not a form of discrimination prohibited by federal employment discrimination law. In other words, because employers were lawfully permitted to discriminate against employees on the basis of sexual orientation or transgender statues, the holdings in this lone line of federal court decisions meant that employers were lawfully permitted to retaliate against employees who complained about discrimination on the basis of sexual orientation or transgender status.

In this article, our LGBTQ employee rights attorneys in Citrus County, Florida explain how the decision in Stringham v. Carmel Clay Schools,Case No. 22-cv-00817 (S.D. Ind. Jan. 4, 2024) demonstrates that LGBTQ employees are now protected from retaliation when complaining about perceived sexual orientation or transgender discrimination in the workplace.

LGBTQ Employee Rights

In its landmark decision in Bostock v. Clayton County, 140 S.Ct. 1731 (2020), the U.S. Supreme Court addressed the issue of whether an employer can fire an employee simply for being gay or transgender. In resolving that issue, the Supreme Court was required to determine whether discrimination on the basis of sexual orientation or transgender status is a form unlawful discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Under Title VII, employers are prohibited from discriminating against employees on the basis of sex. Sweeping aside decades of federal court rulings that Title VII does not protect employees from sexual orientation or transgender discrimination, the Bostock court held that discrimination against employees on the basis of sexual orientation or transgender status constitutes unlawful discrimination on the basis of sex in violation of Title VII.

In order to protect employee rights, Title VII contains an anti-retaliation provision. Under Title VII, employers are prohibiting from retaliating against employees because they have complained about perceived discrimination on the basis of color, race, national origin, sex, or religion. Because the Supreme Court’s decision in Bostock makes discrimination on the basis of sexual orientation or transgender status an unlawful discriminatory employment practice under Title VII, employees who complain about perceived sexual orientation or transgender discrimination are complaining about a form of discrimination prohibited by Title VII. In complaining about a form of discrimination prohibited by Title VII, employees who complain about perceived sexual orientation or transgender discrimination are protected from retaliation by Title VII’s anti-retaliation provision.

Workplace Retaliation Lawsuit

In Stringham, a woman named Stringham brought a retaliation lawsuit against her former employer, Carmel Clay Schools (“Carmel Clay”), pursuant to Title VII. Stringham, who is married to a woman, claims that Carmel Clay violated Title VII by subjecting her to a performance improvement plan in retaliation for her complaining about perceived sexual orientation discrimination in the workplace.

In July 2014, Stringham began working for Carmel Clay as a student counselor at Carmel High School. Within the first or second week of her employment, a co-worker instructed Stringham to not tell people she was gay because that “could be trouble for [her].” In December 2016, a woman named Cole became the director of counseling and Stringham’s supervisor. In September 2020, Stringham filed a “Report of Discrimination and/or Harassment” on a form provided by Carmel Clay, naming Cole as the person who discriminated against her. Stringham reported that Cole was targeting her “because she was a homosexual Hispanic woman.” In explaining the events that had occurred, Stringham attached an eight-page document that detailed various interactions she had with Cole starting in August 2014.

In July 2021, Stringham was placed on a performance improvement plan established by Cole and an assistant principal, Borto, to address specific performance expectations not being met, including managing procedures, submitting records in a timely fashion, communicating with families, and showing professionalism. During the fall semester 2021, Cole and Borto met with Stringham to provide feedback on the areas mentioned in the performance improvement plan. During a meeting in October 2021, Cole and Borto relayed to Stringham that the performance improvement plan would continue. After that, Stringham took a medical leave of absence.

On January 2, 2022, Stringham filed a second “Report of Discrimination and/or Harassment” on a form provided by Carmel Clay, naming Cole again for an incident spanning from April 2021 until October 2021. Stringham wrote that she was “being targeted, harassed, and micromanaged after being put on an improvement plan” and that “the intolerance and retaliation” was extreme. Carmel High School never issued a decision concerning Stringham’s second complaint of discrimination, despite an investigation of the witnesses, including Cole, who was named in the complaint.

Stringham returned to school from her medical leave on January 11, 2022. Ten days later, on January 21, 2022, the performance improvement plan was extended by evaluators Cole and Borto. On January 23, 2022, Cole sent Stringham thirty artifacts with written comments for each. The “artifacts,” which are documentation evidence of job performance, “go toward a teacher’s evaluation” as evidence of how the staff member was seen to perform in a certain aspect of their job. Each artifact provided a rating of “Improvement Necessary” or “Ineffective.”

Protection From Retaliation

Carmel Clay filed a motion with the trial court seeking dismissal of Stringham’s retaliation claim. In denying Carmel Clay’s motion for dismissal, the trial court found Stringham was protected from retaliation under Title VII “when she complained internally of being targeted by Cole because she was a homosexual Hispanic woman” in her September 2020 complaint and when she accused, Cole, again, “in her second internal complaint of intolerance and retaliation” on January 22, 2022.

In denying Carmel Clay’s motion for dismissal, the trial court further found that the performance improvement plan constituted an adverse employment action for purposes of Title VII. The trial court observed that Title VII’s anti-retaliation provision only protects employees from an adverse employment action. In other words, the trial court noted, Title VII’s anti-retaliation provision does not protect employees from “trivial harms, petty slights, or minor annoyances.” An employment action is an adverse employment action for Title VII purposes, the trial court explained, if the employment action would dissuade a reasonable person in the employee’s position from making or supporting a discrimination complaint. In applying this standard, the trial court found that a reasonable teacher, “when presented after a lengthy medical leave” with a performance improvement plan and “submission of thirty documented concerns of job performance—all initiated by Cole, a supervisor who previously had caused conditions resulting in the medical leave—might be dissuaded from making or supporting a discrimination charge.”

Citrus County LGBTQ Rights Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our LGBTQ employee rights attorneys in Citrus County, Florida have dedicated their practice to fighting for the rights of employment discrimination victims. If you have been discriminated against on the basis of sexual orientation or transgender status, or you have questions about your LGBTQ employee rights, please contact our office for a free consultation with our LGBTQ employee rights lawyers in Citrus County, Florida. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.