What Employers Can Be Required to Disclose in a Lawsuit

By Sharon P. Stiller, Partner
Boylan, Brown, Code, Vigdor & Wilson, LLP

We used to think that no one could force us to disclose our innermost thoughts. That is not true anymore, at least where employment-related lawsuits are concerned.

A New York County Supreme Court Justice took disclosure in litigation to new lengths this summer, when she ordered a CEO to disclose his feelings toward homosexuals. The suit was brought by a former executive vice-president at Riva Jewelry Manufacturing who claimed that he was terminated because he was homosexual.

Since 2003, sexual orientation has been a protected category under New York State law. It is illegal to terminate an employee because the employee is homosexual.

The plaintiff in this case claimed that the CEO often expressed his disgust with homosexuals, stating that he found them to be repulsive. He claimed that although he was an exemplary employee, he was terminated the day after the CEO found a lesbian magazine on his desk and he disclosed it was for his lesbian daughter. He claimed he had also disclosed that day, that he was homosexual.

During the lawsuit, he asked the CEO to respond to three interrogatories, which are written questions submitted to the other party in a lawsuit. They were:

"State whether defendant Doudak believed that ‘homosexuality is a sin against God.’"

"State whether defendant Doudak believes that ‘gays and lesbians are doomed to eternal damnation.’"

"State whether defendant Doudak regards homosexuals as ‘repulsive.’"

The CEO argued that his feelings about homosexuals were irrelevant to the reasons for this employee’s termination. While what the CEO might have said or done at work is discoverable, the defendants argued that what he believed, was not. Free exercise of religion, and his freedom to believe in a particular religion would be compromised, he claimed, if he was required to disclose his beliefs in court.

The employee, on the other hand, argued that the CEO’s beliefs motivated the employment decision and therefore the beliefs were subject to discovery in the litigation.

The Court agreed. While the First Amendment to the United States Constitution protects freedom of religion, the protection should not be used as a justification for discrimination. Where one’s religion is relied upon to form a basis for discrimination against a person who is a member of a protected class, here homosexuals, inquiry into that belief system is permitted. The Court therefore required the CEO to answer the questions.

How far will the courts go, and how should employers act, are the logical questions resulting from the court’s ruling. If this ruling is upheld on appeal, then belief systems will be fair game whenever an employee claims that the discrimination resulted from the employer’s religion or any other area encompassing a belief system.

There are, however, ways to minimize the impact. The court’s ruling should be a warning to employers who mix religion with business. Anyone who proselytizes at work will be subject to questioning about it, by an employee who claims that the employer’s religion was behind discriminatory treatment. The answer is simple – if you want to avoid the type of questioning permitted in this case, don’t mix religion with business.

Sharon Stiller is a Partner at Boylan, Brown, Code, Vigdor & Wilson in Rochester, New York. She represents businesses in all types of litigation in federal and state courts as well as before administrative agencies, including contract disputes, discrimination claims and wage disputes. Ms. Stiller has particular expertise in the area of employment law for businesses, and also practices alternative dispute resolution, including mediation and arbitration. For more information, please email Ms. Stiller at sstiller@boylanbrown.com or visit www.boylanbrown.com.