In the U.S., the legal rights of gays and lesbians have come to the forefront in recent years, particularly due to the increased number of U.S. states that had made same-sex marriage legal, culminating in the U.S. Supreme Court's decision on June 26, 2015, which legalized same-sex marriage for the entire nation. Despite same-sex marriage being legal nationwide, there are no federal statutes that explicitly protect against workplace harassment and discrimination on the basis of sexual orientation. Because there is no federal statute making workplace harassment or employment-related decisions such as hiring or firing on the basis of sexual orientation explicitly illegal (e.g., sexual orientation is not a protected class under Title VII like gender or race is), you must look to state law, local law, and indirect ways that clients might sue their former employers because of workplace decisions the client believes were made on the basis of his or her sexual orientation. For instance, the EEOC has held that workplace discrimination based on sexual orientation is discrimination on the basis of sex/gender (one of the five protected classes under Title VII), and thus violates Title VII (Baldwin v. Dep't of Transportation, EEOC Appeal No. 00120133080).

Your law office has a new client, John Smith, a gay male who believes he was fired because of his sexual orientation. The facts of his case are included in the memo from your supervising attorney.

MEMO:

Our firm has a new client, John Smith. John is a gay male who was hired by ABC Design as a Junior Designer on January 2, 2012. Mr. Smith remained a Junior Designer until January 20, 2014, when he was promoted to a Senior Designer position. He was then fired by ABC Design on July 28, 2015. At that time, ABC had 45 employees. Mr. Smith had received satisfactory or above satisfactory performance reviews for each of the three years he received reviews in January of 2013, 2014, and 2015.

Mr. Smith had not been "out" at work until sometime in March, 2015, after he had wed his long-time partner, James, and had for the first time put a picture of himself and James in his cubicle from their February, 2015 wedding. After this, some of Mr. Smith's co-workers made derogatory comments on three separate occasions, including (1) referring to him as a "fairy" and a "fag" in the breakroom on two separation occasions, and (2) when walking by Mr. Smith's cubicle as he was working there, a co-worker asked another co-worker loudly "wonder who the wife is in that marriage," referring to Mr. Smith's wedding picture. Additionally, sometime after hours on June 23, 2015, someone ripped up Mr. Smith's wedding picture and left it on his desk, which Mr. Smith discovered when he came to work on June 24th. Mr. Smith reported each of these incidents to his supervisor, Jeremy Davis, within hours of their occurrence, but found out later that his supervisor did not report any of them to ABC's Office Manager, Charity Jones, who serves as the human resources professional for the company.

On July 28th, Mr. Smith was called into his supervisor's office and told that his employment was being terminated effective immediately due to a recent decline in the quality of his work and for a missed project deadline from earlier in July. Upon hearing the news, Mr. Smith stated that he believed he had been harassed by co-workers because of his sexual orientation and argued that the firing was unfair because he had not been told any of his work was unsatisfactory, that all his performance reviews to date had been satisfactory or above satisfactory, and he had received the promotion to Sr. Designer in early 2014. Additionally, Mr. Smith argued that the project deadline at issue had actually been changed by the client due to additions the client wanted at the last minute. Mr. Davis (the supervisor), denied that the termination was due to Mr. Smith's sexual orientation and restated that it was due to his work "slipping" and the missed project deadline. Ms. Jones (the Office Manager) was not present for all of this conversation between Mr. Smith and Mr. Davis, but came in at the end of the conversation and stated that Mr. Smith's firing was due to "performance issues" when Mr. Smith argued his points to her.

Mr. Smith is seeking our assistance in determining the strength of a potential lawsuit against ABC Design for claims of hostile work environment, employment discrimination, and wrongful discharge. Please research potential legal claims Mr. Smith might have in our jurisdiction and draft a memo to me outlining your research findings and your conclusions regarding the strength of his case if we were to pursue litigation on Mr. Smith's behalf.

QUESTION:

Using Federal, State (in Tennessee), and public policy, how would an ABSTRACT be created to a paper arguing that the client, John Smith, was fired because of his sexual orientation. What is the strength of his case if we pursued litigation on Mr. Smith's behalf?