By Kate Acheson
When a heterosexual delivery truck driver sued for being called “Big Gay Al” at work, the Washington State Court of Appeals found, in Davis v. Fred’s Appliance Inc.,that the perception of homosexuality is not protected by Washington’s law against discrimination (“WLAD”), RCW 49.60.
Albert Davis, a heterosexual, married man, worked for about a year as a delivery truck driver for Fred’s Appliance in Spokane, Washington. During a delivery at the Spokane Valley store on Saturday, May 14, 2010, Steve Ellis, a store worker with some management duties, called Davis “Big Gay Al.” Some onlookers laughed. Davis said, “Excuse me?” and Ellis replied, “Hey, Big Gay Al.” Davis was embarrassed, but did not say anything to Ellis until the next day, when Ellis again called Davis “Big Gay Al.” That day, Davis told Ellis to stop. When Ellis explained, “Well, it’s from South Park” Davis told Ellis it wasn’t funny and said, “Don’t call me Big Gay Al anymore.”
A few days later, Ellis again greeted Davis with, “Hey, Big Gay Al.” Davis became agitated, yelled and cursed, and told Ellis to stop. Ellis complained to the operations manager about Davis’s reaction. The following Monday, May 24 the general manager was informed of the situation and ordered Ellis to apologize. The apology did not go well and Davis ended up walking home. Later that day, the operations manager fired Davis for his reaction to Ellis earlier that day.
Davis sued, alleging that Fred’s Appliance subjected him to a hostile work environment and terminated his employment in violation of WLAD.
The Court found that Davis failed to establish a hostile work environment claim. First, the Court notes that Davis was not harassed because of his sexual orientation as a heterosexual. He was harassed as a perceived homosexual.
Next, the Court noted that WLAD makes no mention of perception in its definition of “sexual orientation,” but specifically does so in its definition of “gender expression or identity.” Thus, the Court reasoned that the legislature intentionally excluded perception in matters of homosexuality or heterosexuality. In short, the Court concluded from plain language of the law that WLAD prohibits only actual sexual orientation discrimination, not perceived sexual orientation.
