As far as hateful speech goes, it wasn’t a reference that jumped out immediately as being anti-gay—not even to members of the Gay, Lesbian, Bisexual and Transgender Practice Section of the Connecticut Bar Association. But allegations that Hartford Police Chief Daryl Roberts called one of his officers “SpongeBob SquarePants” and made other anti-gay remarks were enough to convince a judge that the plaintiff’s case of discrimination based on sexual orientation should go to a jury.
Hartford police Lt. Brian Foley, an 18-year veteran of the force who was a sergeant at the time the state lawsuit was filed in 2010, identifies himself in his complaint as heterosexual. Despite that stated orientation and his testimony that he is “happily married to a woman,” Foley has accused Roberts and Assistant Chief Lester McCloy of making constant harassing remarks, which he characterized as “hostile and homophonic.”
Some lawyers who have followed Foley’s workplace discrimination lawsuit believe it’s the first time such a claim has been pursued in the state based on someone being called by the name of a cartoon character. It also appears to be the first time, employment lawyers said, that a discrimination claim is being brought by someone outside the protected class, in this case homosexuals, in seeking a workplace bias claim. The Connecticut legislature passed the law protecting gays and lesbians in 1991.
“There exists a genuine issue of material fact with respect to the hostile work environment claim on the basis of perceived sexual orientation,” Judge Trial Referee Jerry Wagner wrote in an Oct. 29 order denying a motion for summary judgment that had been argued by lawyers for the City of Hartford.
Of course, the case still must be litigated.
Robert Brody of Westport’s Brody and Associates, a management-side employment law firm, said one key question that remains is what the judge meant by “perceived sexual orientation” when he made his ruling.
“The first thing that comes to my mind is he’s not in the protected class,” Brody said. “I would think someone would have to show they were in a protected class to proceed with a claim like this.”
Several members of the gay and lesbian practice section declined to comment on the matter, citing conflicts of interest over friendships with parties in the case or because they are not familiar enough with employment law to discuss it.
According to Wagner, a supervisor’s and coworker’s use of gay slurs, including the name of a cartoon character “associated with homosexuality,” is enough to allow the worker’s case to survive the city’s bid to have the lawsuit dropped.
In his ruling, Wagner stated that what is required to establish a claim of a hostile workplace is evidence of a “sexually objectionable environment” that must be “both objectively and subjectively offensive” to the point that “a reasonable person would find it hostile or abusive.”
In Wagner’s opinion, the standard to bring a claim on the basis of perceived sexual orientation does not require the plaintiff to be a member of the protected class.
Brody said he and other lawyers who represent employers will be watching to see if the ruling stands. If so, he said, it could open the door for more discrimination claims in Connecticut by workers who aren’t members of a protected class but whose supervisors or coworkers treat them or taunt them as if they are.
The Pullman & Comley lawyers representing Hartford in the matter did not return a phone message seeking comment.
Foley alleges that Roberts plotted with others to prevent him from being promoted to captain.
Roberts has said in previous statements that the lawsuit was filed because Foley was angry that he had been disciplined for something that happened while Foley was off-duty. According to court records, Foley was accused of breaking a table at a bar in Rocky Hill.
“It’s just retaliation, as far as I’m concerned,” Roberts said about the lawsuit.
Foley alleges that Roberts started calling him “Sergeant SpongeBob” beginning in 2002. Foley says the reference was to SpongeBob SquarePants, “a popular cartoon character often associated with homosexuality.”
According to court records, Roberts also made “homophobic jokes on a regular basis” directed at Foley, and said that Foley had “nice hair.” Roberts told Foley that his hairstyle “made me wonder about you,” and said, “It makes you look like a homo,” the complaint states.
When Foley showed Roberts his wedding ring in response, Roberts is accused of saying, “I don’t know if you’re married to a man or a woman.”
Meghan Freed, vice chair of the LGBT section of the CBA, said she was not familiar with the SpongeBob reference until she recently looked it up on Google. According to media accounts, SpongeBob was linked to the gay community in 2005, when he appeared in an educational video with Miss Piggy and Oscar the Grouch singing the 1979 disco classic “We Are Family.” The video was distributed to schools throughout the nation accompanied by a teaching guide to promote tolerance of diversity.
“The opportunity to bring that message to children around the entire country is truly exciting,” said Caryl Stern, senior associate national director of the Anti-Defamation League. “We know at ADL that people are not born as little haters, we learn to hate. And just as we learn to hate, we have to unlearn to hate.”
After the video was released, some conservative politicians began referring to SpongeBob SquarePants as “pro-homosexual.”•