Diversity and inclusion director gets a little inclusion

by Michelle Lee Flores

The California Court of Appeal threw a solitary bone to Toyota’s director of diversity and inclusion when it reversed a trial court’s dismissal of his sexual orientation discrimination claim. The court of appeal held that the former employee had provided sufficient evidence that a senior manager’s perception that he was “too gay” was a substantial motivating factor for his termination. However, his evidence of sex or gender stereotyping didn’t support, and therefore didn’t save, his retaliation and wrongful discharge claims, both of which were dismissed by the trial court without going to the jury.  Justice is served

Diversity and inclusion director feels excluded

Joseph Husman, a 14-year employee of various divisions at Toyota’s Torrance campus in southern California, ran the diversity and inclusion program for Toyota Financial Services, the brand name for Toyota Motor Credit Corporation. Following his termination in 2011, Husman sued Toyota for discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA) as well as wrongful discharge, alleging he was fired from his executive-level management position because of his sexual orientation and his criticism of Toyota’s commitment to diversity.

The trial court dismissed the case without a trial and entered judgment in Toyota’s favor, denying Husman a jury trial on his discrimination, retaliation, and wrongful termination claims. He appealed.

The court of appeal held that Husman presented sufficient evidence that a substantial motivating factor for his termination was invidious sex or gender stereotyping related to his sexual orientation—the perception that he was “too gay.” The court reversed the judgment in favor of Toyota on his discrimination claim, holding that it could go to a jury.

However, the court of appeal found that Husman failed to raise a triable issue of material fact to support his FEHA retaliation and related wrongful termination claims. Accordingly, the trial court was directed to enter an order granting Toyota’s request for dismissal on those two causes of action.

A scarf may have turned the tide

The court of appeal went to great lengths to discuss the various burden-shifting analyses and confirmed that there is no single “true” reason for the employer’s action in mixed-motive cases. With regard to what an employee must establish to be allowed to take a claim to a jury, “there must be a causal link between the employer’s consideration of a protected characteristic and the action taken by the employer,” and the employee must demonstrate that “discrimination was a substantial motivating factor, rather than simply a motivating factor.”

If there are triable issues of material fact about whether discrimination was a substantial motivating reason for an employer’s adverse employment action, even if the employer’s professed legitimate reason hasn’t been disputed, an FEHA claim cannot be decided by the court as a matter of law. The claim must go to a jury because the California Legislature, in enacting FEHA, intended California workplaces to be free from prohibited discrimination even if an employer acted in part with a legitimate purpose when it took an adverse action.

Husman presented evidence that Toyota’s chief administrative officer and senior vice president of sales, marketing, and operations, David Pelliccioni, harbored stereotypical views of gay men and articulated clear opinions about what he considered appropriate gender identity expression. Pelliccioni observed at various times that Husman had made “a very clear statement” about his sexual orientation and should cut his hair. He also ridiculed Husman for wearing a scarf as an accessory when it wasn’t cold outside. Husman argued that those remarks, while they may not be patently offensive to a nongay observer, revealed that Pelliccioni viewed him as “too gay” and incompatible with Toyota’s corporate culture, even if a less obviously gay employee would be acceptable.

Although perhaps less flagrantly offensive than the criticisms offered in other cases of gender stereotyping (e.g., telling a female employee to wear makeup and dress, talk, and walk more femininely), Pelliccioni’s remarks reveal the same kind of stereotypical thinking that has supported other discrimination cases based on gender stereotyping. Further, the evidence indicated that Pelliccioni weighed in on the decision to terminate Husman. Husman v. Toyota Motor Credit Corporation (California Court of Appeal, 2nd Appellate District, 6/21/17).

Bottom line

An employer’s articulation of a legitimate nondiscriminatory reason for terminating someone is not a “Get out of jail free” card. What do we mean? In California, merely pointing to a legitimate nondiscriminatory reason for a termination will not end the inquiry in an FEHA discrimination claim. If an employee presents evidence of discriminatory animus by management employees who weighed in on the termination decision, the case will not be dismissed without going to a jury.

Indeed, this case illustrates that when several individuals participate in the decision to terminate an employee, statements suggesting gender, sex, or sexual orientation stereotyping by one of them, made over a number of years, may Michelle Lee Floress at Cozenallow the former employee to present his case to a jury. And the discrimination need not be limited to stereotyping, but could include comments involving any type of discrimination.

Michelle Lee Flores is an attorney with the Cozen O’Connor, practicing in the firm’s  Los Angeles, California, office. She may be contacted at  mflores@cozen.com.

 

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