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Breaking News Today, California Superior Court, LA refuses to hear Lesbian’s Gay-Bias lawsuit against Recruiting Giant, Korn/ Ferry

By Melanie Nathan 3-19-10. Breaking Story – Marti Smye was a partner at Korn/Ferry International, the world’s largest executive recruitment firm, until she was fired; and last year Dr. Smye, courageously filed a lawsuit against the Goliath, Korn /Ferry, for discrimination based on sexual orientation.

“I believe I was fired due to my sexual orientation. During my time at Korn/Ferry, I heard about senior managers cautioning employees from associating with gay workers. I was told of closeted employees allegedly ‘outed’ in the presence of their colleagues. I even learned later that an executive at Telus Corporation, a Canadian telecommunications firm, was told by a Korn/Ferry representative that if he could use the firm’s candidate assessment tool to screen out gay and lesbian job applicants, he would.”

In a 2009 Wall Street Journal report by  BY SARAH E. NEEDLEMAN ; “ A former senior client partner for Korn/Ferry International Inc. is suing the executive-search and consulting firm for allegedly firing her because she is gay.

The lawsuit, filed in March by Marti Smye in Los Angeles County Superior Court, claims that Korn/Ferry breached her employment contract by dismissing her last year and not paying her nearly $4 million she earned in bonuses. The case is set for trial on March 1.

Korn/Ferry’s “workplace was permeated with antigay animus,” the lawsuit says, describing alleged anti-gay comments made by top Korn/Ferry executives.”

The lawsuit claims that Jeff Rosin, president of Korn/Ferry Canada, cautioned employees against associating with gay employees, including Ms. Smye, and that Mr. Rosin fired another Korn/Ferry employee, Denise Tobin-McCarthy, after learning that Tobin-McCarthy and Smye were dating.Today the Superior Court of California, Los Angeles, through a successful summary judgment proceeding, threw out Dr. Smye’s action, before she was even heard on the facts of her case, based on Korn Ferry’s assertion that the California Court does not have jurisdiction to hear the case; that the law of Florida applies, due to a choice of law clause that appears in the employment agreement between Korn/Ferry and Smye.

Gary Gorham, Counsel for Dr. Smye told me in an interview today that “The trial court dismissed Marti’s discrimination claim prior to trial, but its ruling has nothing to do with the veracity of Marti’s allegations of anti-gay discrimination by Korn/Ferry.  The court’s ruling was based on her employment contract, which called for application of Florida law.  Florida does not recognize the right of gays and lesbians to equal treatment in the workplace.”

It is my opinion that ‘winning’ on a summary Judgment motion is not really a win, because the Petitioner, Dr. Marti Smye,  has not had an opportunity to have her case adjudicated.   In fact Dr. Smye has a right to appeal this ruling and if she loses on appeal, then her case will never be heard.

While Korn/ Ferry may tout this case as a win; it is not – a win happens when allegations against the company are proved to be false or wrong. But Korn/Ferry has chosen not to vindicate itself, and have instead relied on a technicality to avoid the evidence being heard.

This case is of critical importance, highlighting the desperate need for legislation, such as ENDA, to protect the rights of LGBT employees.  What we have in this case is a situation where if the Florida law may apply, instead of California law. On the face of it, Smye’s case could feasibly have no merit in Florida because that State has no laws to protect her against discrimination.

However in California Dr. Smye would have an excellent case with much applicable law and probably much needed exposure would befall a business which touts itself as preeminent and the largest in the world in its field, while its practices infringe the rights and disrespect the law where they are headquartered.  This company headquartered in Beverly Hills and refuses to adjudicate a case that would otherwise consider their alleged behavior toward Smye reprehensible.  Now they continue to do business in a State where they act in flagrant disregard of the anti-discrimination laws.

In essence Dr. Smye, unknowingly may have waived her rights to the California laws, by signing on to a contract that gave her residential state jurisdiction (choice of law.)

These types of clauses are usually designed   as a matter of locale convenience and not as an agreement to give up one’s rights.   Did  Korn / Ferry know in advance to what extent it would work to their advantage?  By the same token Dr. Smye had no idea it would result in her losing critical rights; and that she was actually making a contract where she was choosing a State that had no laws to protect her because of her sexual orientation. Make sense she would knowingly sign such? Of course not!

The Judge stated in her ruling,  “While Plaintiff may have felt “pervasive anti-gay animus from upper management in Los Angeles, Chicago, and Toronto, among other places” (Plaintiff’s SSUMF, No. 14), Plaintiff was terminated while in Toronto, Canada based upon events that allegedly occurred in Toronto. As such, even if Florida law was not applicable, Plaintiff has not shown that California law would be the appropriate law.”

In her own words Dr. Smye, “In an effort to get my case dismissed, Korn/Ferry succeeded to exploit a legal loophole that undermines California’s anti-discrimination laws and jeopardize workplace protections for LGBT employees who work remotely for California corporations in 29 U.S. states. If Korn/Ferry succeeds, a legal precedent will be set allowing businesses headquartered in states where sexual orientation protections do exist to require its employees working in states without anti-discrimination laws to sign away those protections through “choice of law” provisions.”

Dr. Smye wants to share her story, an example of how difficult it is to be gay or lesbian (LGBT) in the workplace.  Clearly protections must be extended across the Country so that other Businesses cannot wangle around the laws that do not suite them:

” Today was a loss for me and the GLBT community. On a technical point I will not be allowed to fight discrimination based on sexual orientation because California has refused to hear my case and Florida does not protect my rights.

The management of Korn/Ferry has not only ignored our rights but has promoted a manager to President of NA consulting in-spite of a signed client affidavit that this manager engaged in discriminatory behavior.

This is a firm that makes judgments that affect the careers of many people…….including the professionals of the LGBT community”.

Counsel for Smye, Gorham also stated that “We are absolutely going to appeal this ruling to the Court of Appeals.  There is too much at stake, both for Marti Smye and for the LGBT community, for us to accept this result.

We are surprised and disappointed by the Court’s ruling, and deeply concerned about the impact it may have on LGBT employees who are not residents of California but who work for companies headquartered in this state.  Under California law gays and lesbians have the right to be treated the same as everyone else in the workplace.  If today’s ruling is upheld, California companies will be able to contract around their discriminatory conduct toward out-of-state employees, by requiring employees to sign contracts agreeing to application of the law of some other state.  Because few states recognize claims for discrimination based on sexual orientation, this result disproportionately impacts the LGBT community.

It is shameful that Korn/Ferry, the leading executive recruiting company in the world, would use a contractual loophole to avoid a trial on the merits.  This case is far from over.  Marti has suffered too long, and fought far too hard to give up before she has a chance to be heard.”

© lezgetreal all rights reserved*

Korn Ferry Board of Directors:

George T. Shaheen	Gerhard Schulmeyer	Edward D. Miller
Harry L. You	Gary D. Burnison	Ken Whipple
Debra J. Perry	Baroness Denise Kingsmill

You, dear readers are the Court of Public Opinion and for as long as the case has yet to be adjudicated on the merits let us hear from you!

Stay tuned there will be more…. Please report any incidents of discrimination to us at LGR- Nathan@privatecourts.com

Thank you to our Editor Paula Brooks for her keen eye.

Here is the link to the Complaint by Plaintiff  Marti Smye against   https://docs.google.com/fileview?id=0B8w3tCuj6Z1xMGMxNWYwNjctZWViOS00MmU2LWIxMjgtM2Q5MDZiOWYxZmEz&hl=en

By Melanie Nathan,  nathan@privatecourts.
Human Rights and Equality Activist/Advocate

© lezgetreal This Article is exclusive to Lezgetreal;

it can be republished with the following credit:

Quoted from: Article written by Melanie Nathan, at www.lezgetreal.com

http://lezgetreal.com/?p=28885

Editor Paula Brooks.