On Suing for Being "Outed"
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A few bloggers have picked up on this story from San Francisco: Roberto Hernandez, a gay radio station employee privately confided to a co-worker that he had visited a gay bar. The co-worker then staged a "phone prank" that resulted in the gay employee being "outed" on the radio.
The gay employee sued:
The incident reminds me of this previous post of mine over another "involuntary outing." The tort I described in that post, "Publicity Given to Private Life," again seems applicable even if one disagrees with the "emotional distress" workers comp claim than Hernandez actually received:
But what about the first requirement? This is where reasonable gays seem to disagree. Some gays who are militantly "anti-closet" might suggest that, since being gay is "no big deal," then it must follow that being outed is "no big deal" and that a plainitff like Hernandez should receive no compensation under any circumstances. Others might respond that while staying in the closet might be okay, "out to one" means "out to all" and that Hernandez should have known the risks of telling a co-worker and deserves nothing for his embarrassment. If you're ashamed to be gay, some might say, then too bad so sad -- never tell anyone.
I can't go that far. I'm certainly glad that simply calling someone gay is no longer generally considered defamation. And at the other end of the spectrum I have little problem with outing public figures, and especially politicians, who issue anti-gay rhetoric.
But I also recognize the huge swath between those two endpoints. Private gay people have a right to stay in the closet if they, for whatever reason, think that's best for them. Gays also have the right to selectively out themselves, whether to family, friends or coworkers. And those who do are entitled to expect the persons they tell not to betray that trust. This has nothing to do with being gay and everything to do with being a private person in a civilized society.
Hernandez wasn't hurt because he was outed -- he was hurt because he was humiliated over the (very) public disclosure of something he considered personal and a matter to be shared only with those whom he trusted. That his trust was misplaced is in my opinion irrelevant. That's precisely what tort law is supposed to correct.
Whether it is for "emotional distress" or for "publicity given to private life," Hernandez was the victim of a privacy tort and was entitled to a judgment. (I have no opinion as to the actual dollar amount.)
Other thoughts at Good as You and Daily Dose.
The gay employee sued:
Arbitrator Rebecca Westerfield found on Friday that Hernandez had suffered emotional distress but dismissed claims of sexual harassment. She said that Hernandez had no choice but to quit his job and was owed workers' compensation.The facts are complicated somewhat by the workers compensation nature of the litigation. But the underlying fact pattern has led bloggers to revisit the issue of privacy torts and sexual orientation.
Hernandez was awarded $250,000 and nearly $20,000 in economic damages because of the emotional distress that led to seven months of unemployment after quitting his job.
The incident reminds me of this previous post of mine over another "involuntary outing." The tort I described in that post, "Publicity Given to Private Life," again seems applicable even if one disagrees with the "emotional distress" workers comp claim than Hernandez actually received:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that: (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.Working backwards, it would seem to me that the whole point of "gay rights" is to strive for a world where sexual orientation was "not of legitimate concern to the public."
But what about the first requirement? This is where reasonable gays seem to disagree. Some gays who are militantly "anti-closet" might suggest that, since being gay is "no big deal," then it must follow that being outed is "no big deal" and that a plainitff like Hernandez should receive no compensation under any circumstances. Others might respond that while staying in the closet might be okay, "out to one" means "out to all" and that Hernandez should have known the risks of telling a co-worker and deserves nothing for his embarrassment. If you're ashamed to be gay, some might say, then too bad so sad -- never tell anyone.
I can't go that far. I'm certainly glad that simply calling someone gay is no longer generally considered defamation. And at the other end of the spectrum I have little problem with outing public figures, and especially politicians, who issue anti-gay rhetoric.
But I also recognize the huge swath between those two endpoints. Private gay people have a right to stay in the closet if they, for whatever reason, think that's best for them. Gays also have the right to selectively out themselves, whether to family, friends or coworkers. And those who do are entitled to expect the persons they tell not to betray that trust. This has nothing to do with being gay and everything to do with being a private person in a civilized society.
Hernandez wasn't hurt because he was outed -- he was hurt because he was humiliated over the (very) public disclosure of something he considered personal and a matter to be shared only with those whom he trusted. That his trust was misplaced is in my opinion irrelevant. That's precisely what tort law is supposed to correct.
Whether it is for "emotional distress" or for "publicity given to private life," Hernandez was the victim of a privacy tort and was entitled to a judgment. (I have no opinion as to the actual dollar amount.)
Other thoughts at Good as You and Daily Dose.
Posted by KipEsquire on
15 August 2005
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