A male Slovakian painter who formerly worked at Morton East High School has failed in his bid to make the district and his former supervisors pay for failing to stop what a federal judge described as “appalling” harassment from his coworkers.

In his Aug. 1 decision, U.S. District Judge Milton I. Shadur said a recent U.S. appeals court ruling has reinforced longstanding legal precedent that does not allow sex discrimination lawsuits brought on behalf of those suffering homophobic harassment or discrimination.

However, in this case, the painter's attorney, Nicholas Esposito, of the firm of Esposito & Staubus, of Burr Ridge, said the painter was not and is not gay, nor does the complaint assert he was discriminated against for being gay. Rather, the lawyer said the lawsuit centered on the painter's allegations that his coworkers created a hostile work environment through repeated use of "gay slurs and other sexually suggestive, gross and derogatory comments and communications, improper physical sexual contact, and retaliation against him for complaining about it." 

Supervisors also took no action to prevent it or stop it from continuing, the painter alleged. 

However, while Esposito said the complaint never contained any reference or statement asserting his client was gay, Shadur ruled in favor of near west suburban Morton High School District 201, dismissing the action brought by Lubomir Matavka, a Slovakian native who worked for the district from 2010 to 2012 at the high school in Cicero.

The case centered on Matavka’s complaint of two years of harassment at the hands of his coworkers, who, court documents indicated, would daily harass and mock him, using a range of homophobic taunts, slurs and other actions. According to Matavka’s complaint, filed in 2015, the harassment allegedly included the broadcast of a demeaning ring tone, intended to mock gays, over school-owned walkie talkies each time Matavka would check in on the radios; insults, slurs and demeaning homophobic jokes; and repeated lude gestures and sexually suggestive speech, including from one male coworker, in particular, who allegedly “on a daily basis attempted to rear hump (Matavka) in the cafeteria and/or engage in other sexually suggestive moves until (Matavka) would push him away” and who would regularly tell Matavka to “suck it” or “lick it.”

At other times, Matavka alleged the coworkers would draw penises and other graphic images on his time card, send him lewd, threatening and harassing text messages and emails and once even changed his Facebook profile to indicate “he was interested in ‘boys and men.’”

On other occasions, Matavka alleged his coworkers on the Morton District’s maintenance crew would repeatedly soak him with water guns, shrink-wrapped his car and dropped water on him from buckets as he attempted to work, among other acts.

Matavka said school officials were aware of this behavior, as they either were present when it was happening, overheard it on the school-owned radios or were officially notified, repeatedly, by Matavka of the continuing acts. Yet, Matavka said they took no action to stop it.

Matavka then attempted to sue the district under Title VII of the federal Civil Rights Act of 1964, which bars sex discrimination.

The lawsuit arrived as others were filed in other jurisdictions, asking the courts to reinterpret the statute in light of current popular understanding and opinion concerning sexuality and gender, and overturn decades of precedent which has found the term “sex” in the statute should apply only to a person’s given gender –male or female – and should not extend to include gays, lesbians or transgender, among others.

Recently, the federal Equal Employment Opportunity Commission indicated it would formally choose to interpret the law to extend those protections to those in the LGBTQ communities.

On July 28, however, the U.S. Seventh Circuit Court of Appeals in Chicago ruled, in a case out of Indiana, that such understanding of the law was incorrect. In that case, plaintiff Kimberly Hively, a professor at Ivy Tech Community College in Indiana, had alleged the college had denied her promotions and fired her because she is a lesbian, which she said violated Title VII.

A federal judge in Indiana disagreed, however, and on appeal, the Seventh Circuit also found legal precedent concerning the understanding of sex discrimination under Title VII did not allow it to find for the fired professor.

The majority opinion said the case is just one of several pending in which litigants have attempted to “dress sexual orientation discrimination claims in the garb of gender non-conformity case law” leading to a “confused hodge-podge” of results in court.

Citing the Seventh Circuit’s decision, Shadur said he could not find for Matavka in his case, despite his sympathies for the plaintiff.

Shadur, however, did not stop at dismissing the case with lament, using the opportunity to call on Congress and the U.S. Supreme Court to address the issues raised in Hively and similar cases. He noted courts had previously altered decades of standing legal precedent concerning racial segregation and the rights of individuals to bear firearms.

The EEOC, he said, “is not alone in its desire to conform the law to the changes in public perception that have created judicial turmoil because Congress has been unresponsive to the widespread sense that public opinion no longer subscribes to the constricted mindset reflected” in precedent.

Esposito said his client is "reviewing his court options" in response to Shadur's decision. 

Morton High School District 201 was defended by attorneys with the firm of Clausen Miller P.C., of Chicago.

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