Red Lobster bites back

The headline says "Loving the Lobster," but maybe it should say "Swallowing the Bait."

Watermark, the Orlando-based gay and lesbian newspaper, last week recounted the battle local and Illinois-based gay rights activists fought against Orlando-based Darden Restaurants Inc., which owns the Red Lobster and Olive Garden chains. A former assistant manager of a Chicago-area Red Lobster claims he was fired because he is gay, and the Cook County Human Rights Commission agrees with him. In response, Darden was preparing to challenge the constitutionality of the county ordinance that forbids a company from firing a worker because he is gay -- potentially undermining the efforts of gay and lesbian folks to obtain equal benefits, according to Watermark.

"What the community was heavily interested in was in not having a big corporation going after a high-profile ordinance in a big municipality," says Watermark'sTodd Martinez-Padilla Simmons.

Activist e-mail and phone protests caused Darden to drop that challenge and issue an apology "to the gay and lesbian community for what we firmly believe is a misunderstanding of our true position and intent," the company's statement said. "Red Lobster absolutely does not tolerate discrimination based on sexual orientation."

Nadine Smith, executive director of Equality Florida, lauded the corporation's about-face. "They responded in a way that one would hope a corporation that has made such a horrible mistake would respond," she told Watermark. "It didn't take a lot of arm-twisting. They did it right away."

Which sounds warm and fuzzy. But the gay assistant manager, Dale Hall, doesn't have his job back.

"They're still fighting us," Paul Vickrey, Hall's lawyer, says. "The hearing officer found that Dale had been discriminated against. And he made some very specific findings about some of the animosity that certain people in the restaurant displayed."

The story begins in 1996, when Hall, a longtime Darden employee who aspired to a general manager's position, told a waiter under his supervision that he couldn't leave when he wanted to. The waiter, who admitted he had called Hall and other gay employees "(expletive) faggots," threw the night's receipts at Hall and walked off the job anyway. Hall fired him for insubordination.

The restaurant's manager then fired Hall and rehired the waiter. Two restaurant staffers later testified in Hall's hearing that the manager would stand behind Hall during meetings doing "the limp-wrist thing."

None of which means Darden allows or condones discrimination, says Andrew Dun, Darden's director of marketing and public relations. "Dale Hall was not fired for discrimination. He was fired for job-performance issues," Dun says. "That's the only reason we fire people."

Hall took a job as a waiter in another restaurant, and a 40 percent pay cut, according to Vickrey. In March he took his claim to the Cook County Human Rights Commission, an 11-member body that conducts quasi-judicial investigations into allegations like Hall's.

The hearing officer, David Lee, found that Hall's allegation had merit. Darden hired attorney Charles Holmes to challenge Lee's initial finding, and Holmes questioned the ordinance's authority under the Illinois constitution. Darden then stepped in and withdrew the constitutional part of its objection before the next step in the process -- before even meeting with Smith and other activists, Dun says.

Smith told Watermark that the legal misstep "sent a message that they cared not at all for gay and lesbian workers in Cook County and that they had indeed violated this guy's rights and were trying to cover it up by stripping away the very law that protected him."

But Vickrey, Hall's lawyer, says the constitutional challenge was a non-starter, and that by giving it up, Darden cleverly defused a political A-bomb in the gay and lesbian community. "I do not view its decision to withdraw that argument as significant," he says. "It's lip service."

Watermark gives Darden credit for being "gay and lesbian friendly," a position Dun says is part of an overall effort at "diversity." The bottom line seems to be that gays and lesbians eat out a lot, and no one wants them mad. "We're in the hospitality business," Dun says. "It's bad business to be exclusive."

But another Red Lobster waiter, this one in Long Island, N.Y., this week lost a court case he brought under the Americans with Disabilities Act claiming he was fired because co-workers thought he was HIV-positive. Co-workers of Jeffrey DeFilippo taunted him for being gay, refused to help him and, finally, goaded him into saying "bitch" within earshot of customers. U.S. District Judge I. Leo Glasser ruled Red Lobster had a legitimate, nondiscriminatory reason for firing DeFilippo -- the derogatory statement he made when a co-worker refused to help him.

DeFilippo brought his case under the ADA because New York has no law similar to the Cook County ordinance.

Hall's case will be decided by the Human Rights Commission in early September, commission Executive Director Jennifer Vidis says.

Darden, of course, can appeal any ruling in court.

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