Dive Brief:

• A New Jersey healthcare billing company, Metropolitan Healthcare Billing of Eatontown, likely violated the state's law prohibiting discrimination and retaliation in the workplace when it fired an employee for complaining about a supervisor's "gaydar" comment, according to state's attorney general.
• During an all-staff meeting that included a new employee, a director suggested that Brandy Rodriguez use her "gaydar" to determine whether a new client was a lesbian. The supervisor's comment outed the employee to the new hire and indicated that sexual orientation was somehow relevant to the business, the AG's office said. Rodriguez complained and, after asking to escalate her complaint to the business' owner, was fired.
• The attorney general's office issued a "finding of probable cause," saying that the supervisor's comment was sufficiently severe "that a reasonable employee in Complainant's position could find her work environment hostile or abusive." Moreover, the timing of her firing was sufficient to support a retaliation claim, the office said; "In such a situation, it is appropriate for this matter to proceed to a hearing, where a trier of fact will determine whether and to what extent the employee's [Law Against Discrimination]-protected activity factored into Respondent's decision to terminate Complainant's employment."

Dive Insight:

While retaliation is obviously problematic from a legal standpoint, ill-considered language can also fuel bias allegations, as several recent claims show.

In a recent workers' comp case, for example, a manager's repeated statements indicating doubt about whether the employee was truly injured helped keep the worker's retaliation claim alive. Similarly, a 59-year-old employee who was criticized for his "dinosaur age related theories" survived a motion for summary judgment on his age bias claim.

HR can advise employees and supervisors on appropriate workplace behaviors and language — advice HR itself is well-advised to follow, Marjory Robertson, AVP and senior counsel for Sun Life Financial Services Company Inc., told attendees at last year's Disability Management Employer Coalition Annual Conference. Robertson discussed a case in which HR was snarky and hostile in a discoverable email exchange about an employee's leave request. That case resulted in a $2 million jury verdict.

It's also important to remember that HR and supervisors must remain professional regardless of the language they hear employees using. In the New Jersey case, the supervisor claimed that she thought it was acceptable to joke about the employee's "gaydar" and sexuality because she had heard the employee herself doing so; the state's AG, however, clearly disagreed.