Lesbians Lose Job Bias Case

Former Columbia University employees claim gay supervisor harrassed them

Two lesbian former Columbia University employees lost a summary judgment motion in federal court on July 20 in a sex discrimination suit against their former supervisor, a gay man, Ethan Hanabury.  United States District Judge Denise Cote found that there was no evidence of sex discrimination because Hanabury’s motivation for allegedly treating them differently from other employees was their sexual orientation, not their gender.

Monisha Harrell and Danielle Pow, who are domestic partners, both worked in the Graduate School of Business’ executive education department, which administers non-degree programs to business executives. Pow, a department employee since 1997, became a supervisor to whom Harrell, hired in 1999, reported. Both women received promotions and salary increases in the time they worked there.

Hanabury is the associate dean for the department, which in early 2002 had 32 non-faculty employees, two-thirds of whom were women.

According to Harrell and Pow’s complaint, Hanabury insisted on talking to them about his social life and sexual exploits, asking them to dinner and gossiping with them about activities and co-workers.  The women claim that Hanabury would frequently remark to them about which men coming into the office were “cute.” It appears that Hanabury thought that the three would be friends and confidants out of a sense of gay solidarity. 

Judge Cote found that neither woman had ever officially complained to Hanabury about this, leading him to believe that they enjoyed a rapport with him.  They claimed that Hanabury took up valuable working time with this sort of thing, preventing them from getting their work done during regular hours and causing them to have to work over time.  (Both women were on executive salaries that did not bring overtime pay for extra hours.)

Among other examples of the hostile environment, according to Pow and Harrell, was that Hanabury enlisted their assistance in scanning pictures of him that he could use online with gay dating Web sites.  Although none of the pictures were nude, in some he was clothed only in underwear or a swimsuit.  He claimed he needed their help because he was not adept at using the scanning equipment.

In one particular incident involving another gay employee, Judge Cote wrote, “It is undisputed that Robert Levy used his office computer to view sexually explicit materials and to participate in sexually explicit dialogue in gay chat rooms,” something that Pow and Harrell learned about “while updating Y2K patches on the Department’s computers.”

According to the judge, Pow and Harrell were able to view remotely from their office the same materials Levy was viewing, unbeknownst to him.

In late April 2000, Harrell walked in on Levy while he was masturbating to pornography on his computer. “Harrell reported this incident to Hanabury, who conducted an investigation, including requesting and receiving documentation from Harrell regarding Levy’s inappropriate computer use earlier that year,” Judge Cote wrote.

On May 4, Levy, after being asked to do so, resigned.

Nevertheless, Pow and Harrell complained that Hanabury delayed taking action until Harrell had walked into Levy’s office and found him masturbating.

After this incident, according to Pow, Hanabury’s attitude towards her was less supportive, as reflected in the last employee evaluation she received from him before she resigned.

The essence of the women’s sex discrimination and harassment complaints was that Hanabury, by his insistent conversation about his social life and romantic interests, created a sexually oppressive environment in the workplace that prevented the women from getting their work done.

Their legal challenge, for purposes of their federal discrimination suit, is that the federal civil rights concept of a sexually hostile environment, as well as other forms of sex discrimination, turns on whether the victims are targeted because of their sex.  Judge Cote found that Hanabury’s conduct was indeed focused on these women, but because they were lesbians, not females. That he had similar conversations and social interactions with a gay man in the office but not with other men supported this conclusion.

“Pow and Harrell claim that they were discriminated against on the basis of their sex in that male employees were not required to spend hours of their working day engaged in personal conversations with Hanabury,” wrote Judge Cote.  “Even if engaging in extended personal conversations during the work day can constitute an adverse employment action, and it is not clear that it can, the plaintiffs have not presented sufficient evidence from which a jury could reasonably infer that Hanabury chose to have these discussions with them because of their gender.

Their own evidence supports the inference that Hanabury chose to talk to them based on his judgment that fellow homosexuals would be receptive to his chatter, or his belief (albeit misguided) that Pow and Harrell were his friends.”

The federal judge dismissed the notion that Pow and Harrell “were targeted for the conversations because of their gender,” adding that because the women have not presented sufficient evidence “from which a jury could conclude that Hanabury spent hours at work discussing personal matters with them because of their gender, their claim of gender discrimination due to disparate treatment fails.”

Ultimately, both women resigned, claiming that Hanabury had created a poor working environment in the department and treated women less well than men.  But Judge Cote found that there was no evidence that Hanabury systematically treated men and women differently, but rather that he was more informal with the lesbian and gay employees than with the straight employees.  While his management style could be criticized, the issue for Judge Cote was not whether Hanabury was a poor manager but rather whether his actions constituted sex discrimination within the meaning of Title VII of the federal Civil Rights Act, a claim she found to be without merit.

The case presents yet another example of the risky decision to file in federal court a complicated sex discrimination claim for which there is little precedent and is therefore difficult to prove. Since the events occurred in New York City, a jurisdiction where sexual orientation discrimination is illegal, the lesbian plaintiffs’ case may well have stood a better chance in state court of surviving pre-trial motions and getting to the stage where settlement or a trial verdict could be rendered.