Human Resources News & Insights

Don’t ignore the ‘association factor’ when disciplining staff

Picture this: An employee speaks out against offensive homosexual comments at work and gets made fun of for it repeatedly by his supervisor. Can he successfully sue for harassment — even though he’s not gay?

That’s what happened in this case involving David Derr, who was a firefighter for 29 years with the Kern County Fire Department in California. Near the end of Derr’s tenure, James Rummell became the captain of the department and Derr’s supervisor.

During the first year that Rummell served as Derr’s supervisor, Rummell made some remarks regarding homosexuals, and Derr said he was offended because he had family members who were gay. Soon after, Rummel discovered that Derr’s daughter was homosexual.

With that, Rummel began harassing Derr regarding his stance on his daughter’s homosexuality. That included everything from harsh anti-gay comments to offensive anti-gay emails sent to Derr by Rummel’s wife saying that Derr’s embrace of homosexuality was a “blatant opposition to the commands of God” and amounted to Derr standing “with [his] fist in God’s face.”

Derr was granted a shift change, but Rummel deliberately stayed in the fire station after his shift ended in order to find Derr and harass him more.

Derr then began experiencing physical symptoms of stress, including insomnia, chronic diarrhea and headaches. He saw a therapist, but the department’s Employee Assistance Program cut off the counseling sessions after three appointments.

In the meantime, Rummel told his superiors that Derr had a severe drinking problem, insinuated that Derr was having problems at home and wrote in the department’s log book that Derr had made an obscene gesture toward Rummel while walking through town. All those turned out to be false.

Derr eventually retired, citing Rummel’s abuse and a lack of sick time as the reasons.

Didn’t matter that he wasn’t in a protected class

Derr then sued, claiming harassment. A lower court dismissed the complaint, but an appeals court reversed the ruling and now the case will proceed to court.

Jeff Polsky on the California Employment Law Blog cites the ruling’s biggest takeaway:

“… [T]he law prohibits harassment of employees because of their association with someone who is a member of a protected class, even if they aren’t in the protected class themselves.”

Now, this is a state decision, so the ruling only applies to California-based companies.

That being said, similar associational claims have come up recently, and the ruling should serve as a signal to companies to be careful when dealing with employee complaints about things that don’t necessarily look like classic discrimination or harassment on the surface.

And firms would do well to check their state laws to see what, if any, associational protections exist for employees.

The case is Derr v. Kern County Fire Department.

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