- within Compliance topic(s)
Originally appeared in Labor and Employment Newsletter - February 2002
In Brennan v. Metropolitan Opera Association, the New York Appellate Division recently affirmed the dismissal of a sexual-orientation discrimination lawsuit brought by Martha Ellen Brennan, a former assistant stage director at the New York Metropolitan Opera. Brennan failed to prove to the court's satisfaction that her homosexual supervisor’s conduct created a hostile work environment, or that her eventual failure to secure a contract extension was attributable to sexual-orientation discrimination.
Two Incidents
Brennan's position as an assistant stage director at the Met required her to work under a gay man, executive stage director David Kneuss. Brennan pointed to two incidents which she claimed demonstrated both the hostility of her working environment and Kneuss’s discriminatory intent. The first involved the display of photographs of "naked and partially clad men" on an office bulletin board. Brennan testified that these pictures offended her "as a woman, and as a heterosexual." The second incident involved a conversation between Kneuss and another employee whom Brennan identified as a "perceived homosexual." Brennan claimed that she overheard the two men exchanging "crude banter and gestures," and that when she asked them to stop, they responded with an explicit description of sexual behavior. When Brennan’s contract was up for renewal, she was not rehired. Kneuss asserted that the decision not to rehire Brennan resulted from her poor performance and lack of interest in advancement. Brennan suspected she was terminated solely because she was a heterosexual.
No Discriminatory Animus
The appellate division held that Brennan "failed to overcome the strong inference against discriminatory animus to which Kneuss [was] entitled, having made both the decision to hire her and the decision not to rehire her." The court noted that although New York law protects against discrimination on the basis of sexual orientation, Brennan could not point to any evidence that she had been dismissed for any reason other than poor performance, or that she had been replaced by a less-qualified homosexual. Absent that showing, there was no evidence from which a jury reasonably could find the Met liable for sexual-orientation discrimination.
As for the hostile work environment claim, the court held that Brennan failed to show that the alleged harassment was either severe or predicated on her sexual orientation. The court conceded that nude photographs were generally inappropriate for the workplace, but "there [was] nothing in the photographs from which a jury could find that they were offensive to heterosexuals qua heterosexuals." Similarly, the court reasoned that the conversation Brennan overheard "would have had the same effect on her if it had been told by a woman or to a heterosexual man." The court concluded that "the evidence [did] not show that Kneuss’s attitude toward [Brennan], even if properly characterized as hostile, was based on her sexual orientation."
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