The new recruits step off the bus and, for the first time, come face to face with their drill sergeant, Gunnery Sergeant Hartman (played by R. Lee Ermey). He asks one of the fresh faced recruits where he’s from and the recruit replies: "Texas." Sgt. Hartman, expressing disbelief, says: "Only steers and queers come from Texas."
That homophobic slur didn’t seem terribly out of place in a scene depicting life in a Viet Nam-era marine boot camp from Stanley Kubrick’s Full Metal Jacket . But when a Costco manager made the same comment, it resulted in a recovery of nearly $1 million, which was upheld last month on appeal (Valera v. Costco Wholesale Corp.). By itself, the comment probably wasn’t sufficiently severe or pervasive to support a harassment claim. But after Juan Valera, a gay HIV-positive photo lab manager, asked Costco to protect him from the warehouse supervisor who made the comment, Costco demoted him. Costco said the demotion had nothing to do with the complaint. Valera said it was retaliatory. A jury sided with Valera and awarded him over $422,000 in damages. The court then awarded an additional $471,000 in attorneys’ fees.
On appeal, the issue was not whether the conduct constituted actionable harassment. To support a retaliation claim, Valera would only need to show that he had a good faith belief that the conduct he complained of was unlawful. The appellate court decided that it had no basis to disturb the jury’s credibility determination as to that issue. I have no idea what R. Lee Ermey got paid for saying the line in the movie. But I bet it was nowhere near what Juan Valero got paid to hear it at work.