I’m naturally skeptical when an employee claims sexual orientation bias against straight people.


So when the plaintiff in this federal court decision I read last night cited as evidence of her employer’s heterosexual animus that her gay coworker received a cake and party by gay supervisors on his 30th work anniversary, whereas she did not receive cake or party for the same occasion, my Spidey senses were really tingling.

Surely, there had to be more to the discrimination lawsuit. And, indeed, there was.

Among other things, the plaintiff applied for a promotion but didn’t receive it. Instead, the defendant promoted a gay woman. Then, the plaintiff was removed from her current position. Her replacement? You guessed it, also gay.

Gay cake party + gay promotion + gay replacement = bias against straight people? The plaintiff’s theory was awfully thin. And federal courts rely on something called “evidence” to decide lawsuits.

The plaintiff argued her adverse employment actions were a “pattern.” But, the court emphasized that “two data points are not enough to establish a pattern.” It even quoted Ian Fleming’s Goldfinger to emphasize this point: “Mr. Bond, they have a saying in Chicago: `Once is happenstance. Twice is coincidence. The third time, it’s enemy action.'”

Here, the plaintiff needed stronger evidence of intentional discrimination, such as statistical analysis of the employer’s unlawful consideration of protected characteristics in past employment decisions. Alternatively, she could present a bunch of company policies reflecting an organizational preference for establishing a diverse group of employees, or introduce evidence that a gay decisionmaker knowingly promoted a gay individual over her.

The plaintiff didn’t do any of that. Rather than present a bunch of policies or an established pattern of discrimination, the plaintiff’s “evidence” was her own (as yet unproven) allegations. And courts generally don’t accept unsupported, self-serving testimony as evidence sufficient to create a jury question.

Plus, the undisputed evidence was that two heterosexual decisionmakers decided not to promote her. Neither of them knew her sexual orientation or the sexual orientation of the person who received the promotion.

So, case dismissed. Unfortunately for the plaintiff, not even the cake and the icing on it could save her claims of heterosexual discrimination.

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