Sexual Orientation: Nurse Can Sue For Retaliation Over Complaints Of Harassment.
Legal Eagle Eye Newsletter for the Nursing Profession
October 2014
Title VII of the US Civil Rights Act does not outlaw harassment or discrimination in the workplace based on sexual orientation.
However, an employee who complains to his or her supervisors about harassment or discrimination has the right to be free from employer retaliation for such complaints, even if the particular harassment or discrimination is not outlawed by anti-discrimination laws.
The only question is whether the employee reasonably and in good faith believed that his or her legal rights were being violated by the conduct or conditions he or she was complaining about.
Employer retaliation is not justified because an employee has tried to complain about a violation of a right or rights which do not actually exist under the law, or because such rights do exist but the facts do not support a valid case.
Either way, an employer can be held liable for retaliation just as if the employer were actually guilty of violating the underlying right or rights the employee believes he or she has. UNITED STATES DISTRICT COURT OREGON August 21, 2014
A lesbian surgical circulating nurse became the object of harassment from a coworker with whom she frequently worked in the operating room.
The coworker’s remarks, spelled out explicitly in the court record, were clearly meant to harass the nurse because of her lesbian sexual orientation.
The nurse complained repeatedly to her nursing supervisor about the verbal harassment she was being forced to endure, but nothing was done.
Finally the situation blew up into a heated verbal confrontation in the operating room during a surgical case.
The lesbian nurse, who was a new hire still in her six-month probationary period, was suspended and then fired.
The coworker was suspended but then reinstated with a disciplinary write-up in her file.
The lesbian nurse sued for gender and religious discrimination, harassment and employer retaliation.
The US District Court for the District of Oregon ruled the lesbian nurse would get her day in court to present what proof she might have that retaliation for her complaints was the reason behind her firing.
The Court expressly acknowledged that it was making that ruling even though Title VII of the US Civil Rights Act does not outlaw harassment or discrimination in the workplace based on sexual orientation.
The Court ruled that Title VII protects an employee’s right to complain to the employer over something in the workplace the employee reasonably believes amounts to illegal harassment or discrimination, even if what is being complained about is not actually illegal.
The only relevant question is the victim’s good faith in making his or her complaint, even if the victim is honestly mistaken as to his or her actual legal rights.
Nevertheless, the allegations of religious discrimination based on the co-worker’s remarks that the lesbian nurse was a sinner who needed to find God were dismissed. Bennefield v. Hospital, 2014 WL 4187529 (D. Ore., August 21, 2014).
More references from nursinglaw.com
http://www.nursinglaw.com/samesex.htm