"Ms. [Barb] Henry and Mr. [Dennis] Ryerson consistently and repeatedly demonstrated in the workplace a negative hostility towards Christianity and then existing Christian employees of the Star." In support of their claim, Price complains in his lawsuit against the Star that "Ms. Henry and Mr. Ryerson displayed strong disagreement with anyone who had a Biblical view of homosexuality." Through their actions, the paper "implemented a policy and practice of encouraging, favoring and printing news coverage and editorials with a positive slant on homosexuality and of disfavoring editorials with a positive slant on Christianity" . . .
As an example of this practice of favoring homosexuals over Christians, Price cites a dispute Coffey had with her editors over research she had recently done on "the topic of sodomy and specifically the public health and economic consequences of anal intercourse." Coffey, a self-described fundamentalist Christian as is Patterson, apparently worked herself up in a lather over the decision handed down by the U.S. Supreme Court in the Lawrence v. Texas case, a case in which the Court struck down a Texas anti-sodomy law making sex between consenting persons of the same sex illegal. The Court, which described anti-sodomy laws as being "rooted in Judeo-Christian moral and ethical standards," found that they unconstitutionally violated an individuals due process rights. In so doing, the Court said "that liberty gives substantial protection to adult person in deciding how to conduct their private lives in matters pertaining to sex." According to Price's lawsuit, Coffey "was surprised to learn that there were many significant health risks associated with anal intercouse, with potentially enormous public health and economic ramifications" after the Lawrence case was decided. Coffey "feared that [Henry and Ryerson] would reject [her sodomy] series as anti-homosexual, as anal intercouse is commonly associated with homosexual and bi-sexual men" according to Price's lawsuit. Indeed when Ms. Coffey submitted her first test column to Ryerson highlighting the fact that "men who have sex with men" are indeed a high-risk group when it comes to HIV transmission", Mr Ryerson "became enraged and refused to print it" the lawsuit claims. Mr. Ryerson repeatedly told both Coffey and Patterson that they would not be allowed to use the editorial pages to "proselytize" their "Christian religious belief", which Coffey and Patterson claim "demonstrated a deep animosity toward Christianity in general and toward [their] . . . . Christian religious beliefs."
As Mr. Price's lawsuit has moved forward and the plaintiffs have been deposed, it has become quite apparent that Coffey's and Patterson's suit rests heavily on their proving that certain of the Star's employees are homosexual, and this has prompted the Star's attorneys at Barnes & Thornburg to seek a protective order from the federal district court to seal portions of the plaintiffs' deposition which allege that certain members of the Star management/editorial staff are gay, and in the case of one, is allegedly HIV-positive. This evening Taking Down Words has posted briefs attorneys from opposing sides have filed with the court concerning the Star's request for a protective order.
The Star's attorneys describe Price's lawsuit as frivolous. AI agrees. "The centerpiece of their "proof" is THE INDIANAPOLIS STAR’s refusal to print Plaintiff Coffey’s graphic and inappropriate column about anal sex. Exercising such editorial judgment -- a matter within the exclusive discretion of THE STAR’s [identifying information redacted] -- does not constitute unlawful discrimination," the Star's counsel argues in its brief in support of the protective order. As they explain:
Desperate to shift the focus of this case away from THE STAR’s right to exercise editorial judgment (a fact which inevitably dooms their claims), plaintiffs have raised two personal, confidential, inflammatory and completely irrelevant topics during discovery: first, rumors they say they heard about the sexual orientation of [identifying information redacted]; and second, the alleged HIV status of [identifying information redacted]. Plaintiffs’ discovery tactics are designed only to harass, intimidate, embarrass, and annoy individual non-parties. Accordingly, defendants Indiana Newspapers, Inc. and Gannett Co., Inc. (collectively, "THE STAR") seek a Protective Order precluding plaintiffs and their counsel from misusing such irrelevant information during the course of this lawsuit and prohibiting them from improperly questioning witnesses about these topics during depositions. For good cause as shown below, THE STAR’S Motion For Protective Order should be granted.
Coffey explains in her deposition that she believes one Star employee is HIV-positive because "he looked sick." To illustrate just how far Coffey and Patterson are willing to go to smear Star editors/managers/employees over their alleged sexual orientation and/or HIV-positive status, the Star's attorneys write:
Finally, both plaintiffs testified during their depositions regarding various sexual orientation rumors that they have heard, but of which they have no first-hand knowledge. Specifically, both plaintiffs testified to hearing rumors that [identifying information redacted]. [references omitted]. Coffey additionally testified that she has heard rumors that [identifying information redacted] (whom Coffey has never met and who has never been a STAR employee) is homosexual. [reference omitted]. During her deposition, Coffey also revealed for the first time that she suspects [identifying information redacted] has HIV, a disease for which homosexuals are at high-risk, because he "looked sick." [reference omitted]. [identifying information redacted] have not discussed publicly their respective alleged sexual orientations. [references omitted] Affidavit of [identifying information redacted] (filed under seal)]. [Identifying information redacted] has not discussed publicly his medicalThe Star's attorneys urge the court to seal any material pertaining to the alleged sexual orientation or HIV status of Star employees on the grounds that the information is not relevant or is not likely to lead to the discovery of relevant information. They urge that such information is an "invasion of privacy of the highest order" of individuals who are non-parties to the suit. They believe Mr. Price is simply engaged in a fishing expedition--one that they describe as being accomplished by "draining the pond" so he can "collect the fish from the bottom."
history or alleged HIV status.
Not surprisingly, Mr. Price sees it quite differently. He believes the sexual orientation of certain Star employees or the association of certain Star employees with the gay community is not confidential as a trade secret, for example, is. In fact, he complains they've been quite out in the open about their sexual orientation. He explains:
The certain Star employees of an alternative sexual orientation were open about their sexual preferences/orientation in the workplace while the Plaintiffs were still employed at The Star. The certain Star employees associated with the gay community were open about that association in the workplace while the Plaintiffs were still employed at The Star. The Plaintiffs were never required by their employer to, or even asked to, sign a confidentiality agreement regarding any other employees’ sexual orientation and/or association with the gay community. The Plaintiffs did not acquire their personal knowledge of this information in circumstances indicating any expectation of confidentiality, or even discretion. This information was common knowledge in the workplace. All of the certain Star employees of a homosexual sexual orientation or association are and were open about that orientation in their behavior, remarks, etc., in the workplace; these are not individuals who are (or were during the Plaintiffs’ respective employments at The Star) "in the closet."
Price also zings the Star's attorneys for failing to raise the issue previously. He notes that the EEOC complaint is attainable under the Freedom of Information Act, and that the Star's attorneys never sought to protect the original charge from public disclosure while it was pending at the EEOC office in Indianapolis. For good measure, Price throws in a portion of Coffey's charging statement in his brief:
As noted above, the Gannett Corporation had purchased the Pulliams’ newspaper holdings, including The Indianapolis Star, in August of 2000. At the time of this purchase, the Gannett Corporation had promised that the traditionally conservative ******** stance of The Indianapolis Star would be maintained under its ownership. Despite this promise, the Gannett Corporation hired ****************** as The Star’s *************, who is in the gay lifestyle, and in March of 2003, replaced ****************** as The Star’s ************* ******************, whose ********* is gay. ******************’s philosophies became clear at our first ********* meeting with him. At that first meeting, he told us that he hoped that we were in favor of removing sodomy laws from the books because it did not make sense to have such bans in place when it was legal for people to have sex with animals. Our reactions made it clear that most of us did not agree with his logic. Some months later, ****************** then hired ******************, who is gay, as The Star’s *************. Thus, by the fall of 2003, ********************************** ********************************
were occupied by individuals with strongly pro-gay views. As soon as ***************** was hired, the pressure from *********** consistently increased for the ******** Department to write pro-gay ********. Ms. Neal had to fight a daily battle to advocate the views of a conservative ********** Department because she was constantly opposed by ****************** and ******************, contrary to the owner’s promise to continue a conservative ********stance. * * * I knew that ****************** wanted to transfer me because of my religious views, which he also assumed were anti-gay, but I also felt that legally he had no right to do so. … . Thus, despite my belief that federal, state and local laws all forbid an employer from discriminating against an employee because of known religious beliefs, it was clear I was being transferred to the copy desk precisely for those beliefs, despite a critical manpower shortage in Editorial….
As a person who believes that a person's sexual orientation is an immutable characteristic no different than a person's eye or skin color, I don't think the court in this instance should treat a person's sexual orientation as a privacy issue. As I understand it, the Star has a non-discrimination policy covering sexual orientation and the persons in question did not hide their sexual orientation. It appears to me that Coffey's and Patterson's views were in conflict with the company policy of permitting the Star's employees to work in an environment free of harrassment or discrimination based on their sexual orientation.
Under a different set of circumstances than here, I would agree that the person's sexual orientation would be irrelevant and should remain a private matter, particularly if the party had not publicly disclosed their sexual orientation. While I would not necessarily agree with the material concerning their sexual orientation being sealed, it is doubtful to me that the person's sexual orientation should be admissible at trial as relevant evidence in proving whether the plaintiffs were discriminated against because of their religious beliefs. However, clearly the person's HIV status should not be publicly disclosed under any circumstances unless that person has chosen to publicly disclose it. And certainly not under the circumstance here where the only evidence is Coffey's assertion that he "looked sick." How pathetic can she get? Price's efforts to get in this evidence in his lawsuit is clearly done for the purpose of embarrassing, intimidating and harassing this un-named Star employee.
It is my belief, as it has been from the beginning, that what's at the heart of this lawsuit is an effort by the Christian right in Indiana to exert editorial influence over the Star's editorial policy. For decades they got everything they wanted in editorial content from the Pulliam family--and that meant being ANTI-GAY, and they can't stand it now that the Star has drifted towards the mainstream in its editorial policy after Gannett purchased control of the newspaper from the Pulliam family. If that means personally destroying the lives of the Star's editors and managers, then so be it. What we're really arguing about here is the right asserted by these members of the Christian right to spew as much hate-filled bigoted comments towards their gay and lesbian co-workers as they so desire under the guise of expressing their religious freedom. Religious freedom in the workplace doesn't encompass this right, and Mr. Price knows that.
To read the Star's brief, click here. To read Price's brief, click here.