“Big Gay Al” Not Actionable in Washington State Court

An employee who objected to being called "Big Gay Al" by a manager in the workplace suffered summary dismissal of his lawsuit on October 23 in Davis v. Fred's Appliance, Inc., 2012 WL 5208505 (Washington Court of Appeals, Div. 3).  Most significantly, the court found, in line with evolving precedent, that the plaintiff's failure to plead special damages doomed his claim for defamation.

According to the opinion for the court by Judge Sweeney, Albert Davis was employed as a delivery driver by Fred's Appliance in Spokane between June 2009 and May 25, 2010.  Steve Ellis was the sales manager at the Monroe Street store, but he had no supervisory authority over personnel.  Davis delivered appliances to the Spokane store on May 14, 2010.  "Mr. Ellis was there.  As Mr. Davis came into the room, Mr. Ellis said, "Hey, there is Big Gay Al," which prompted laughing from onlookers.  "Mr. Davis said, "Excuse me?" and Mr. Ellis replied, "Hey, Big Gay Al."  The store manager, Rick Hurd, "just stood there and shook his head."  Salesman Brent Steinhauer was present and he was not laughing.  Nearby customers looked uncomfortable.  Mr. Davis did not say anything to Mr. Ellis.  He made his delivery and left the store.  He was "humiliated and embarrassed."  He "just wanted to get out of the situation." 

Mr. Ellis continued to call Mr. Davis "Big Gay Al" during a delivery the following day.  Davis told him to stop, and Mr. Ellis explained, "Well, it's from South Park."  Mr. Davis replied, "I don't like that show.  I don't think it's funny" and said "Don't call me Big Gay Al anymore."  But Ellis just repeated "Hey, Big Gay Al," ultimately provoking Davis to yell and swear at him.  Ellis complained to the company's Operations Manager that Davis had yelled and sworn at him.  This led to a confrontation during which management tried to get Ellis to apologize to Davis.  Davis considered the ensuing apology to be insincere and exploded, leading to his discharge.  Davis sued.

The court found that although Washington law bans sexual orientation discrimination, it would not reach a case brought by an avowedly heterosexual employee for being called "Big Gay Al" by a manager.  Davis had alleged hostile work environment and wrongful discharge in violation of the Washington Law Against Discrimination. 

The court found that "a hostile work environment claim requires that he be discriminated against because of his sexual orientation.  Mr. Davis was not harassed because he is heterosexual.  The question raised by the contentions here is whether the WLAD prohibits discrimination based on perceived sexual orientation."  The court pointed out that "the statute makes no mention of perception in its definition of 'sexual orientation.'  This suggests to us that the legislature intended perception to come into play only in gender identity discrimination, but not in discrimination based upon homosexuality or heterosexuality."  The court rejected an analogy to disability discrimination claims that include the concept of "perceived" disabilities, noting differences in statutory interpretation. 

The court also found that the alleged harassment, a few incidents of Ellis calling Davis "Big Gay Al," were not sufficiently severe or pervasive to constitute hostile environment hararssment.  "We are led to conclude that the utterances were only casual, isolated, and trivial."  The court also found that the company's reaction to Davis's complaints satisfied its obligations, so any hostility expressed by Ellis was not imputed to the employer for purposes of liability.  Having found no direct violation of the statute, the court also concluded that there was no basis for a retaliation claim by Davis.

Moving to the defamation claim, the court said that Ellis's comments "were apparently intended to be comical or pejorative, or both," but that it was unlikely that bystanders would take the comments to indicate that Davis was gay.  "His co-workers were likely familiar enough with Mr. Davis to know that he was not gay," wrote Sweeney.  "Customers could not have known whether Mr. Davis was gay, but would not have gathered that Mr. Davis was gay from Mr. Ellis's comments.  In the first incident, customers looked uncomfortable after Mr. Ellis made his comments.  Mr. Davis presumes that they were uncomfortable because they thought that Mr. Davis was gay.  But in context it is more likely that they looked uncomfortable because they recognized that calling a co-worker 'Big Gay Al' is inappropriate.  In the second incident, Mr. Ellis explained that 'Big Gay Al' is from a television program, South Park.  Overhearing customers would have understood the statement as a joke or popular cultural reference and not necessarily a reflection on Mr. Davis's sexual orientation.  In the third incident, Mr. Ellis against said, "Hey, Big Gay Al,' and Mr. Davis replied, 'Hey, I thought I asked you to stop?'  In that situation, a customer overhearing it would have perceived that Mr. Davis was the object of some teasing and not necessarily gay."  The court found that by-standers were most likely to perceive the statement was just joking or teasing.

In addition, said the court, Davis "failed to make a sufficient showing of damages."  He sought "general damages for 'mental distress, anguish, humiliation, and loss of enjoyment of life," but such damages are not available in the absence of proof of economic injury caused by the defamatory statement, unless the statement itself is treated as defamatory per se.  Although old common law precedents held that false imputation of homosexuality is defamatory per se, the modern trend is the other way.  The court cited Florida and Ohio cases for the proposition that "imputation of homosexuality is not defamatory per se; defamation per se generally requires imputation of a crime or communicable disease."

Judge Siddoway dissented from this part of the holding in a lengthy dissent.  Although he did not differ from the majority in its holding that calling somebody gay is not defamatory per se, he argued that Fred's Appliance had only mentioned the damages issue in passing, and it had not been directly addressed in Davis's response to the summary judgment motion.  If this were to be the basis for dismissing the claim, Siddoway argued, Fred's Appliance had an evidentiary burden that it had not met.  Furthermore, Siddoway departed from the court's conclusion that bystanders would not have concluded that Davis was gay based on Ellis's statements. 

"Even contemporary cases that reject imputations of homosexuality as defamatory per se recognize that the imputation presents enough potential for harm to reputation to be actionable with proof of special damages," Siddoway argued.  "Such claims must be allowed to go to juries, so that redress is available in cases of proven special harm.  As societal norms evolve, false imputations of homosexuality will present a diminishing risk of harm and slander cases arising from them can be expected to produce smaller awards, or perhaps no award, of general damages. . .  It oversteps our role to accept Fred's Appliance's invitation and hold, as a matter of law, that an imputation of homosexuality is no longer defamatory."

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