Sexual orientation harassment at the porn store

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It can happen anywhere – this time at a pornographic video store.

Wilford Bearden, an openly gay man, was a clerk in a pornographic video store. In graphic detail, the Oregon Court of Appeals described harassment at the hands of other clerks. This included sexually offensive comments written on copies of a magazine (over a period of three months) plus an extraordinarily raunchy cartoon drawn by a clerk. The manager terminated Bearden soon after the cartoon incident.

Bearden won a judgment after a bench trial on his claim of discrimination on the basis of his sex and sexual orientation and his claim of retaliation for complaining about sexual harassment. The trial court denied the employer's motion for a directed verdict. The Oregon Court of Appeals affirmed the verdict, and remanded for reconsideration of the attorney fee award. Bearden v. N. W. E. Inc (Oregon Ct App 08/07/2019) [PDF].

On the retaliation claim, the court found sufficient evidence that Bearden complained to a clerk, who passed that information on to the manager, so the manager knew of Bearden's complaint when she terminated him.

On the discrimination claim, there was evidence that the harassment was because of Bearden's sexual orientation (in spite of the perpetrators' testimony that they did not intend their comments to be sexual) and evidence that the materials were objectively offensive to a gay man.

The court found that the harassment was severe or pervasive enough to alter the conditions of employment and create an abusive working environment; it lasted three months and culminated in the raunchy cartoon. Management was aware of the situation "enough to require an investigation, which would quickly have yielded the information that plaintiff's complaint was legitimate."

The court remanded for a re-determination of attorney fees. The trail court had categorically denied fees incurred during BOLI proceedings, but must now evaluate how much was reasonably incurred to achieve Bearden's success in the litigation. The trial court must also provide a more complete explanation of why it awarded less than the full amount of fees Bearden requested in connection with his motion for summary judgment, which was denied.