Gay Christian conservative employee sues gay bar for sexual, religious harassment

The case is Parker v. Side by Side, Inc. (N.D. Ill. June 27, 2014). An excerpt:

Plaintiff is a practicing non-denominational Christian. Plaintiff bases his claim for religious harassment on purportedly anti-Christian video clips Sidetrack played during comedy nights, offensive performances ridiculing Christians at special events, and degrading comments Sidetrack employees, particularly Lee Trudell and Defendant Oakes, made to Plaintiff because of his religion and his relationship with [Kevin DuJan, a Christian conservative blogger].

First, Plaintiff contends that video clips Sidetrack played during its weekly “Comedy Nights” contained “anti-Christian and Christian mocking elements.” DuJan testified that the purportedly offensive videos included the following clips:

  • “A clip of Sarah Palin and her family being murdered in [the] woods with automatic rifles;”
  • “Other clips of Sarah Palin interposed among gruesome clips from horror films;”
  • “Clips of a group of men called the ‘Sisters of Perpetual Indulgence,’ who were dressed in nun habits, used garish makeup, showed large pregnant bellies, held bottles of alcohol, and mocked Christians and Catholics in particular;”
  • “Clips of a man in a loin cloth aping being [sic] Jesus … acting like a ‘buffoon,’ acting intoxicated and seeking sexual favors from men;”
  • “Cartoon clips in which actors portraying Jesus and Santa Claus engage in fighting, with the Jesus character being physically beaten;”
  • “Clips of Pope Benedict XVI falling down or acting in a strange manner;”
  • “Clips of a Pope Benedict character with bizarre eyes and rotten teeth attacking individuals;”
  • “Clips of midgets dressed up as priests chasing young boys seeking sex;” and
  • “Clips of gay events with patrons dressed up as religious figures and acting in a drunken manner.”

Plaintiff recalls that the video clips Sidetrack played generally created the impression that Christians and conservatives were “not welcome” at Sidetrack, but he does not recall specific details about the videos. Plaintiff did not complain to anyone at Sidetrack about the videos until May 2011, after DuJan complained to Sidetrack about its employees’ harassment of him and Plaintiff.

Second, Plaintiff asserts, based on DuJan’s testimony, that the master of ceremonies for Sidetrack’s special events, Bradley Balof, would incite hate and ridicule directed toward Christians, which he declared to be enemies of the LGBT community. Plaintiff vaguely recalls Balof making comments about Christian conservatives being racists during his stand-up comedy routine, but he does not recall Balof’s specific comments or how often Balof made those comments. Plaintiff is “pretty sure” he complained to someone that Balof’s routine was offensive to Christians, but he cannot recall when or to whom he made those complaints. Plaintiff claims that Johnston also identified Christians as enemies of the LGBT community and encouraged Sidetrack customers to “get in their faces” at special events held at Sidetrack in 2010 and 2011. Additionally, Plaintiff saw advertisements on the exterior of Sidetrack mocking Jesus and the resurrection and calling gubernatorial candidate Bill Brady a “religious nut” during the 2010 election campaign.

Third, Plaintiff claims that his co-workers at Sidetrack, particularly Trudell and Oakes, made threatening comments to Plaintiff because of his religious beliefs and his relationship with DuJan, a Christian conservative blogger. In November 2010, Oakes referred to DuJan as “that Christian conservative” and told Plaintiff that he needed to end his relationship with DuJan if he wanted to continue working at Sidetrack. According to Plaintiff, Oakes regularly made these types of comments regarding DuJan and Plaintiff’s relationship with him. Plaintiff alleges that Oakes asked Plaintiff if he was a “crazy Christian conservative” like DuJan. After Plaintiff answered that he is both a Christian and a Republican, Oakes threatened that if Plaintiff wanted to continue working at Sidetrack, he needed to stop telling people he is Christian and a Republican. Several other Sidetrack employees also made offensive comments to Plaintiff, degrading Christians as evil and enemies of the gay community, calling Plaintiff a “traitor” because of his Christian beliefs, and insulting Plaintiff’s boyfriend and parents because of their religion.

Plaintiff claims that Sidetrack customers who learned of Oakes’ bullying then began to mock Plaintiff in high voices. One customer told Plaintiff “We are watching you!” in a threatening tone. Another customer made comments to Plaintiff about a doorman at Sidetrack being stabbed, and several other unidentified customers threatened physical harm to Plaintiff. The Court discusses additional facts below where relevant to Plaintiff’s claims….

Viewing the evidence in the light most favorable to the Plaintiff and drawing all reasonable inferences in his favor, as the Court must at the summary judgment stage, a genuine issue exists regarding whether the harassment Plaintiff suffered had a religious character or purpose.

On one hand, many of the statements at issue appear to have had a political animus, rather than a religious one. Oakes and Trudell, for example, largely directed their attacks against “Christian conservatives,” rather than simply Christians. Christian conservatives are well-known for their support of socially conservative policies, including their opposition to same-sex marriage, and Sidetrack and its owners have been at the forefront of Chicago’s LGBT civil rights movement for 35 years. In this context, therefore, Oakes’ and Trudell’s derogatory comments about Christian conservatives likely concerned Plaintiff’s and DuJan’s political ideology rather than their religious beliefs.

On the other hand, though, some of the derogatory comments at issue, viewed in the light most favorable to Plaintiff, suggest that the attacks had both a political and religious character or purpose. Plaintiff claims, for example, that Sidetrack employees called him a “traitor” for being Christian because “Christians hate gays”; told him that Christians, including his parents, were “awful people”; stated that Christians are “evil”; threatened that if he wanted to keep working at Sidetrack, he needed to stop telling people he is “a Christian or a conservative or a Republican, or any of that, because you can’t work [at Sidetrack] and be that”; told him that maybe he would not drop glasses at the bar if he prayed hard enough; and referred to Christians as crazy. Additionally, Plaintiff claims when he told Pena that he is a Christian and goes to “non-gay churches,” Pena responded “Oh Joe, oh Joe,” shaking his head in a disapproving manner.

The line between religious and political beliefs — and, thus, the line between protected and non-protected characteristics under Title VII — is often muddy, especially in the context of social policy issues, and the Court’s role at the summary judgment stage is not to evaluate the weight of the evidence, judge the credibility of witnesses, or determine the ultimate truth of the matter. See Viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor, the Court cannot conclude as a matter of law that the harassment Plaintiff suffered occurred solely because of his political, rather than religious, beliefs….

To prevail on his religious harassment claim, Plaintiff also must present evidence that the alleged harassment was sufficiently severe or pervasive to create an objectively hostile work environment. In determining whether a workplace is objectively hostile, the Court must consider the totality of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” The Court, moreover, must consider the “social context in which [the] particular behavior occurs and is experienced by its target.”

Here, Plaintiff points to numerous instances in which Sidetrack employees made comments to Plaintiff degrading Christians as evil, awful people, or enemies of the gay community; called Plaintiff a “traitor” because of his Christian beliefs; told him to “pick a side;” and insulted Plaintiff’s boyfriend and parents for their Christian beliefs. Plaintiff also has offered evidence that Sidetrack employees repeatedly harassed Plaintiff for dating DuJan because of DuJan’s religious beliefs, in part, and even threatened to have Plaintiff fired unless he ended his relationship with DuJan. Even though courts consider the impact of such “secondhand harassment” to be less severe, it is still relevant to determining whether, as a whole, the evidence establishes a hostile work environment. Furthermore, Plaintiff offers evidence that once Sidetrack employees learned that he shared DuJan’s religious beliefs, they directed their insults at Plaintiff too.

These incidents of harassment may not be sufficiently severe to create a hostile work environment when viewed separately, but the Court must view the pattern of harassment as a whole. Viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor, the Court finds that a genuine issue exists regarding whether the harassment Plaintiff suffered was pervasive enough to establish an objectively hostile work environment.

In making this determination, the Court notes that the allegedly offensive anti-Christian video clips about which Plaintiff has complained do not contribute to the alleged hostility of his work environment. Sidetrack played the video clips during “Comedy Nights,” and it obtained all or at least a vast majority of the clips from mainstream broadcasts. None of the allegedly offensive material was directed at Plaintiff. Sidetrack, moreover, is known for playing comedic and other video clips on screens around the bar.

The Court must evaluate the “totality of the circumstances” in determining whether Plaintiff’s work environment was objectively hostile, but it need not — and must not — abandon common sense and sensitivity to social context in evaluating the alleged hostility. Just as a reasonable professional football player would not consider his working environment to be severely or pervasively hostile “if the coach smacks him on the buttocks as he heads onto the field,” a reasonable person in Plaintiff’s position would not view mainstream video clips played as part of Sidetrack’s Comedy Night events to create or even contribute to an allegedly hostile work environment. The Court, therefore, limits the remainder of its discussion of the complained-of conduct to the comments made by Sidetrack employees, owners, and customers….

As I’ve argued before, I think that imposing liability even in part based on the anti-Christian speech in videos, stand-up routines, signs at the bar and the like would violate the First Amendment. I’m glad, therefore, that the court rejected those claims, though I fear that the court’s rationale is too narrow. Even if such speech wasn’t “mainstream videos,” or consisted of overheard conversations in a company lunchroom or some such, it shouldn’t lead to legal liability. (A private employer would of course be generally free to restrict such speech, unless there are state or local laws limiting such restrictions; but harassment law involves the government pressuring employers, on threat of massive liability, to restrict the speech.) Unfortunately, harassment law has been restricting such speech, including political speech, religious speech, humor, and art.

Speech said to a particular unwilling listener, on the other hand, is a different matter; I’ve argued that such speech is properly restrictable, whether the listener is an employee chosen based on his or her race, sex, religion, or some other reason. So the particular result here seems defensible, though I wish the reasoning had been more broadly speech-protective.

As to sexual harassment, the claims were quite lurid, including claims “that [two employees, including a manager] had allegedly performed oral sex on him without his consent and that [another manager] had grabbed his buttocks and rubbed his genitals, repeatedly suggested that Plaintiff come see his ‘playroom,’ and told Plaintiff that he masturbated to photographs of Plaintiff.” But the court concluded that plaintiff hadn’t adequately informed the employer of the more serious sexual harassment allegations, and the employer was thus not liable for the behavior; and while such notification wouldn’t be required for misconduct by “supervisors,” the court concluded that the managers involved here didn’t qualify as supervisors.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh | July 3