That’s effectively the argument the plaintiff, an openly gay man, made in this case.
The plaintiff worked as a server at a restaurant. Within a few months, his supervisor spoke to him about taking on a leadership position. (Heavens, no!)
But here’s where the plaintiff got rubbed the wrong way. You see, the supervisor told the employee that before she spoke to the owner, the employee would need to change his appearance, remove his Facebook relationship status (which identified him as gay), and look a little more masculine.
The plaintiff complied by changing his hairstyle from spiky to combed over and deleting his Facebook relationship status. However, he kept his public Instagram, which included pics of himself, his two children, and his partner, often with hashtags such as #gayselfie and #gayswithkids. There was no other evidence that the plaintiff may have changed to project a more masculine image.
Shortly after the conversation between the plaintiff and his supervisor, the company promoted him. And then twice more. Indeed, the plaintiff was now in the second-highest position in the restaurant.
Did the plaintiff like his job? Seemingly so. He texted his biased(?) supervisor — in what surely must have been at least “Exhibit C” to the motion for summary judgment — that she was “the best boss ever.” A few months later, he texted her again, thanking her “for all that you do for me as my boss and on a personal level.”
I think we just found Exhibit A.
There is also evidence that the supervisor and owner repeatedly persuaded the plaintiff to remain with the company, even after he threatened to quit, including by offering him a raise.
Later, the plaintiff told the owner about the supervisor’s comments about his masculinity and sexual orientation. This was several months after the fact. The owner was upset and told the plaintiff that he would “make things right” with the supervisor and have the supervisor “make things right” with the plaintiff. He also encouraged the plaintiff to stay at the restaurant.
Meanwhile, the plaintiff’s work performance suffered despite the promotions and support. One time, the supervisor criticized the plaintiff’s communication skills after customers found a blue hair in their food. Another time, the plaintiff did not communicate well about a payment issue. Later, he brought the wrong candidate’s resume to an interview. His supervisor warned him not to interview or hire any back-of-house staff without her. The owner also expressed concern that the plaintiff was not performing his assigned job duties.
The “final straw” was when the plaintiff seemingly blew off a mandatory meeting and work one evening. The next day, the company fired him.
Does any of this sound like discrimination to you? Perhaps initially, but not enough to persuade the court (or a reasonable jury) that the plaintiff’s sexual orientation motivated the company to improperly delay or deny him promotions.
True, [the plaintiff’s] testimony about [his supervisor’s] statements might allow a jury to find that [she] harbored discriminatory animus. But to survive a motion for summary judgment, [the plaintiff] must offer evidence that would permit a rational trier of fact to find that [her] animus caused [him] to suffer an adverse employment action (in this case, the delay or denial of a promotion)…And there is no evidence that [anyone] delayed or denied [the plaintiff] a promotion. Instead, the record indicates that [the defendant] promoted [the plaintiff] shortly after he spoke to [his supervisor] about taking on a leadership position, and he was subsequently promoted two times after that. [The plaintiff’s] subjective belief that [his supervisor] discriminated against him is not enough for a rational trier of fact to find that discrimination occurred.
The supervisor’s comments about the plaintiff’s masculinity were wrong. But, it’s tough to demonstrate bias when your employer promotes you three times in eight months from entry-level to the second-highest position.