Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

As the U.S. Supreme Court has stated, Title VII is intended to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotyping.” Recently, a federal court in Virginia refused to dismiss the claim of a male employee who said that he was treated differently and subjected to a hostile work environment because he was viewed as effeminate and told that he was not a “real man.” Henderson v. Labor Finders of Virginia, Inc., E.D. Va., No. 3:12cv600 (April 2, 2013).

Raymond Henderson began working for Labor Finders of Virginia, Inc., a staffing company, in April 2010. Although the company had a policy of giving preference to employees who had their own transportation, Henderson (who had transportation) was assigned to projects only when it was difficult to find someone else to fill a work assignment. Henderson filed an EEOC charge and, ultimately, a lawsuit, alleging that he was discriminated against because Labor Finders found him to be effeminate. Henderson alleged that he was routinely subjected to verbal epithets and slights by and in the presence of his supervisors, and was told he “looked just like a woman,” that he was not a “real man,” and that he was “a woman pretending to be something else, because he . . . was definitely not a male or a man.”

Although Henderson alleges that he tried to complain to Labor Finders’ management, he never received a response and, in fact, was ultimately told that he was going to lose his job because he was a “troublemaker” and was creating problems for Labor Finders. He filed his lawsuit against the company and a number of individuals, claiming violation of Title VII and a number of state laws. The individuals were dismissed from the lawsuit, as Henderson had failed to name them in his EEOC charge. Labor Finders then filed a motion to dismiss the state and federal claims against the company.

The U.S. District Court for the Eastern District of Virginia granted Labor Finders’ motion as to the state law claims, but denied it with respect to the federal Title VII issues. Henderson was able to overcome the motion to dismiss the Title VII claim because, according to the court, he presented facts sufficient to “allow the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.”

In its analysis, the court pointed out that Henderson’s claim “presents a tension between two well-settled principles of law.” First, it is undisputed that Title VII does not afford a cause of action for discrimination based on sexual orientation. However, at the same time, employers are not permitted to assume or insist that employees match the stereotype associated with their gender group. Title VII permits recovery, for instance, for a male employee who is treated less favorably because he is viewed as “unmanly.”

In a detailed analysis of Henderson’s claims, the court held that Henderson had set forth sufficient allegations of gender stereotyping to move his claim forward. The court found that Henderson’s perceived failure to conform with accepted gender norms was thought to reflect poorly on Labor Finders, and was viewed as displeasing that company’s clients. Therefore, Henderson’s claim that he was treated differently because of his appearance and behavior was sufficiently set forth in his complaint. The court further held that Henderson sufficiently stated a claim for hostile work environment under the gender stereotyping theory by detailing the statements made by and around supervisors, including the remarks that he was not a “real man” and “looked just like a woman.”

The line between sexual orientation, which is not yet prohibited by federal law (although prohibited under some state statutes), and discrimination “because of sex” can be difficult to draw. However, employers must recognize that an employer who takes an adverse action against an individual because he or she does not fit within sexual stereotypes is engaging in discrimination, because that discrimination would not have occurred but for the individual’s sex. If a company’s disciplinary actions are meant to punish or belittle non-compliance with gender stereotypes, the actions may constitute a violation of Title VII’s “because of sex” provision.
 

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A female plumber on “light duty” in the City of Chicago’s Department of Sewers filed a lawsuit alleging that because she was female, her supervisor assigned menial work to her, prohibited her coworkers from interacting with her, and subjected her to alleged “verbal violence.” While the district court viewed each of those actions individually and found that none constituted hostile work environment under Title VII, the7th U.S. Circuit Court of Appeals reversed the lower court’s summary judgment in favor of the City, and determined that the case should move forward to trial, on the basis that a jury could find that the collective treatment could rise to the level of hostile environment. Anna M. Hall v. City of Chicago, 7th Cir., No. 11-3279, March 29, 2013.

In 1999, Anna Hall, a plumber for the City of Chicago, began a lengthy disability leave due to a work-related injury. Hall returned to work in 2003 with a 25-pound lifting restriction, and was unable to resume working as a plumber. The City then assigned Hall to light duty in the House Drain Inspectors Division of the City’s Department of Sewers, where she was supervised by Gregory Johnson, the Division supervisor. Johnson assigned Hall to alphabetize various files for several weeks and, in fact, gave her the same files over and over again. A few weeks later, Johnson did the same with reviews of drainpipe videos, on which Hall took notes which were never read – as Johnson already had reviewed the videos and taken his own notes prior to having Hall undertake the task. After several weeks, Hall complained to the department’s personnel director about the assignments, who dismissed the complaints and allegedly called Hall a “trouble maker” in the process.

In addition to assigning the menial work, Johnson prohibited the other Division employees from speaking to Hall, ultimately excluding her from meetings, and precluding her from taking on additional responsibilities within the group. Johnson also directed anger towards Hall in other ways, making comments – overheard by Hall – that he “could slap that woman and get a promotion” and that he might “go postal on that woman.” On one occasion early in 2004, Johnson purposely bumped into Hall, after which Hall contacted the police, the union, and her lawyer, and ultimately filed a Violence in the Workplace Report with the City. Eight days after that Report, a written reprimand was issued to Johnson.

Hall continued to do the assignments given to her by Johnson until 2005, when she left the Division and filed a lawsuit, alleging that Johnson discriminated and retaliated against her, and that the City failed to promote her in retaliation for her complaints. The lower court entered summary judgment against Hall, dismissing the complaint. On appeal, Hall pursued only her hostile work environment claim. The Seventh Circuit reversed the lower court’s decision, and remanded the case for further proceedings on that claim.

Title VII makes it unlawful to treat an employee differently because of a protected characteristic, including gender. To survive summary judgment on her Title VII hostile work environment claim, Hall had to provide evidence that the alleged harassment was severe or pervasive, that the hostile conditions were because of her sex, and that the company should be held liable for Johnson’s actions. The Seventh Circuit determined that Hall had done all three.

First, the Court stated that it was improper to “carve up the incidents of harassment and then separately analyze each incident, by itself, to see if each rises to the level of being severe or pervasive.” Instead, the Seventh Circuit looked at the totality of the circumstances and found that a jury could conclude that Johnson’s ongoing conduct was designed to ostracize Hall from the rest of the Division.

Next, while admitting that this was a “close” case, the Court found enough evidence in the record from which a jury could infer that Johnson was motivated by Hall’s gender. That evidence consisted largely of Johnson’s references to “that woman” in his remarks about Hall. It is of note that Hall was not the only woman in the Division - Johnson’s secretary also was female. However, the Court pointed out the fact that Hall was in a “traditionally male role” (that of plumber), while the secretary was not, and referred to research on gender stereotyping.

Third, Hall was able to proffer sufficient evidence on which a jury could base a finding of liability against the City. While the City took prompt action after Hall’s Violence in the Workplace Report, the record also showed that Hall first raise her concerns about her assignments a few weeks into her light duty position, but allegedly was met with the statement that Hall was a “trouble maker.” Further, Hall’s report to the union and to the police of the bumping incident in 2004 provided sufficient notice to the City of the issues related to Johnson’s actions.

It is important to understand that the Seventh Circuit’s holding is not an ultimate determination of Hall’s hostile environment claim. However, it does indicate that courts are likely to: (1) view hostile work environment complaints through a broad lens, looking at the totality of the circumstances to determine whether behavior is “severe or pervasive”; (2) interpret remarks that include references to gender (“that woman”) as an indication that the remark was made because of the sex of the person being mentioned; and (3) assume that a jury may find a company liable if prior complaints have been made without some active response. In addition, the case is a warning to employers regarding the supervision of individuals on “light duty” and a directive to assure that company anti-discrimination policies are enforced for those employees, even though they are in positions other than their own.
 

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The 9th U.S. Circuit Court of Appeals has held that a female co-worker’s “relentless” pursuit of a male employee, including verbal comment and suggestive notes, could form the basis of a sexually hostile environment, even without any physical conduct of a sexual nature. EEOC v. Prospect Airport Services, Inc., 9th Cir., No. 07-17221, Sept. 3, 2010.

Rudolpho Lamas began working for Prospect Airport Services in the Spring of 2002, shortly after the death of his wife in September of 2001. In the Fall of 2002, and without instigation from Lamas, a married female co-worker (Munoz) began to make sexual overtures toward Lamas after she heard that he had stated that he “missed coming home to a family.” In November, Munoz handed a note to Lamas, telling him she was “turned on” and wanted to “go out” with him. Lamas informed their boss (O’Neill) about the note, and was advised to let Munoz know that he wasn’t interested, and to tell Prospect’s managers if Munoz continued her actions. Although Lamas let Munoz know that her interest was not reciprocal, Munoz continued her advances, including additional notes and a photo of herself that Lamas found to be sexually suggestive. At this point, Munoz reported the continued activity to another company supervisor (Thompson), who told Lamas that she would report the incidents to the general manager (Mitchell) and talk to Munoz. She did neither.

At that point, Lamas received a third, and more explicit, note from Munoz; Lamas reported this note directly to Mitchell. At that point, Munoz had also recruited other co-workers to let Lamas know how she felt. In response to Lamas’ report, Mitchell said that he “did not want to get involved in personal matters” but ultimately spoke to Munoz and told her that Lamas wanted the activity to stop.

Unfortunately, the activity did not stop; it escalated into daily comments and suggestive remarks from Munoz. This continued through the Spring of 2003. At one point, Munoz made sexual comments to Lamas in front of airline passengers, embarrassing both Lamas and the passengers. Although Lamas had reported his concerns to four different managers, no remedial action was taken. In fact one of the managers told Lamas that the whole thing was “a joke” and that he should be singing “I’m too sexy for my shirt.” Lamas began to have problems at work, including the fact that his co-workers started rumors that Lamas was gay because he was rebuffing Munoz’ approaches. Lamas’ work performance deteriorated, and he ultimately was fired for poor performance in June 2003.

Lamas took his complaint to the EEOC, which found enough factual basis to support a hostile work environment, and filed suit on his behalf. The district court granted Prospect’s motion for summary judgment, concluding that Munoz’ conduct was not “severe and pervasive” enough to support a claim for hostile work environment. In its opinion, the court stated that Munoz’ conduct was not objectively unwanted for most men, and that “most men in [Lamas’] circumstances would have ‘welcomed’ the behavior he alleged was discriminatory.”

The lower court’s dismissal was reversed on appeal to the Ninth Circuit, which pointed out that under Title VII, “[b]oth sexes are protected from discrimination.” The appellate court pointed out that “it cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome.” This is a stereotype that the court refused to accept, and pointed out that “welcomeness” is an inherently subjective issue. However, it also added that unwelcomeness has to be communicated. Here, Lamas not only expressed his refusal to Munoz, he also continually stated – to his co-workers, his friends, and four different company managers – that his Christian background and the recent death of his wife led him to find Munoz’ actions inappropriate and offensive. The Court also pointed out that while not all propositions for romance are sexual harassment, Munoz’ conduct, including the continued advances after Lamas’ rejection, her involvement of co-workers in her efforts, the suggestive photograph, and her “relentless” sexual remarks created an environment that Lamas reasonably perceived as hostile and abusive.

Notably, the Court also pointed out that the company’s actions were insufficient to establish an affirmative defense to Lamas’ complaints. Prospect’s managers did little or nothing in response to Lamas’ reports, instead telling him he should be singing “I’m too sexy for my shirt.” While that remark is troubling, the fact that the complaints by Lamas were made by a man regarding the actions of a woman may have created a skewed response from the company. Employers must recognize that Title VII protects both genders, and that a male employee’s report of harassment should be investigated and responded to as effectively as one made by a female employee.
 

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Under Title VII, an unlawful employment practice is established when an employee demonstrates that gender is a motivating factor for an adverse employment action. Under that analysis, the 8th U.S. Circuit Court of Appeals has upheld the Title VII claims of a female hotel desk clerk who was fired after a company decision-maker complained that the employee lacked the pretty and “Midwestern girl” look desirable in a front desk employee. Lewis v. Heartland Inns of America, L.L.C., 8th Cir., No. 08-3860, Jan. 21, 2010.

Brenna Lewis began working for Heartland Inns of America in July 2005, starting out as a night auditor. In that job, Lewis worked the front desk from 11 p.m. to 7 a.m., doing it well enough to receive two merit-based pay raises and positive customer feedback.

In December 2006, Lewis’ manager, Lori Stifel, received permission over the telephone from the company’s Director of Operations, Barbara Cullinan, to offer to Lewis a daytime (7 a.m. to 3 p.m.) shift position on the front desk. Lewis accepted, and took over that position at the end of December. Although Cullinan initially had approved Lewis’ move to the day shift, her attitude changed after she met Lewis in person. At that point, Cullinan told Stipel that she wasn’t sure that Lewis was a “good fit” for the position, as Lewis lacked the “Midwestern girl” look that Cullinan felt was necessary at the front desk. By her own admission, Lewis is “slightly more masculine,” avoids makeup, and wears mens’ button down shirts and slacks. She has been mistaken for a male, and has been referred to as “tomboyish.” However, while Cullinan felt that front desk staff should be “pretty,” the front desk job description in Heartland’s personnel manual does not mention appearance.

Cullinan ordered Stifel to return Lewis to the overnight shift. When Stifel refused, Cullinan insisted that Stifel resign. Cullinan then required Lewis to re-interview for the day shift position, even though Lewis had held the position successfully for over a month. Lew protested, but attended the interview. Three days later, Lewis was fired. In its termination letter, Heartland stated that Lewis was “hostile” toward company policies and had attempted the “thwart” the interview process. Lewis then filed a lawsuit, asserting that Heartland fired her for not confirming to sexual stereotypes, and claiming that such conduct violated Title VII. The lower court disagreed and entered summary judgment in favor of the company. On appeal, the 8th Circuit reversed that decision, holding that sexual stereotyping can violate Title VII when it influences employment decisions.

Title VII prohibits discrimination based upon sex. In this case, Lewis provided evidence that Heartland found her unsuited for her front desk job based, not upon her work performance, but upon an appearance that was inconsistent with the company’s preferred feminine stereotype. At the summary judgment phase of a case, the question is whether a plaintiff has offered sufficient evidence from which a reasonable fact finder could find that the individual was discriminated against because of her sex. Here, the 8th Circuit found that Cullinan’s remarks, along with her discharge of Stifel for not taking Lewis off the front desk, and her imposition of a second interview even after Lewis performed successfully in the position, clearly provided such evidence.

The line between sexual orientation – which is not yet prohibited by federal law – and discrimination “because of sex” can be difficult to draw. However, employers must recognize that an employer who takes an adverse action against an individual because he or she does not fit within sexual stereotypes is engaging in sex discrimination because that discrimination would not have occurred but for the individual’s sex. If a company’s disciplinary actions are meant to punish or belittle non-compliance with gender stereotypes, the actions may constitute a violation of Title VII’s “because of sex” provision.
 

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Congress has repeatedly rejected legislation that would extend Title VII protection to claims of sexual orientation discrimination. However, under Title VII, an employee may raise a claim of gender discrimination if that individual can demonstrate that an harasser was acting to punish the employee’s noncompliance with gender stereotypes. The 3d U.S. Circuit Court of Appeals has allowed the claim of a self-described “effeminate man” to move forward to a jury trial, on the basis that the plaintiff presented evidence that his co-workers harassed him because of his non-compliance with male-associated stereotypes. Prowel v. Wise Business Forms, Inc., 3d Cir., No. 07-3997, August 28, 2009.

Brian Prowel was one of 145 employees of Wise Business Forms in Butler, Pennsylvania, and had worked for the company since 1991. Prowel, an openly gay male, felt that his mannerisms caused him not to “fit in” with the other men at Wise. He described his male co-workers as “blue collar,” “very rough around the edges,” and “everything I wasn’t.” In stark contract, Wise had a high-pitched voice, walked and carried himself in an effeminate manner, and filed his fingernails “instead of ripping them off with a utility knife.”

Some of his co-workers reacted negatively to Prowel’s demeanor and appearance, calling him “Princess” and “Rosebud” and making fun of the way he talked, walked, and sat. Prowel complained to his supervisors, but the harassment continued. In April 2004, Prowel became so unhappy with his work environment that he considered suing the company and said so to certain co-workers. Prowel subsequently was asked to meet with his supervisors and was asked about approaching those individuals regarding his proposed lawsuit. In December 2004, Prowel was terminated “for lack of work.”

Prowel then sued Wise in federal court. His claims included gender discrimination and retaliation claims under Title VII. The lower court found that Prowel’s claims were based upon sexual orientation – not a viable claim under Title VII – and dismissed the suit. On appeal, the Third Circuit reversed, finding that Title VII does not bar a homosexual man from bring a gender stereotyping claim under the Act, since such a claim is “because of” the plaintiff’s sex, a type of discrimination barred by law.

The Third Circuit pointed out the U.S. Supreme Court’s opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which a female was denied a promotion because she failed to conform to gender stereotypes. Hopkins used profanity, was not “charming,” and did not walk, talk, or dress in a feminine manner. The Supreme Court found that when an employer acts on a belief that a woman cannot be aggressive, it has discriminated “because of sex” and has violated Title VII.

Similarly, the evidence set forth by Prowel indicates that he was harassed and treated differently because he did not conform to his co-workers’ vision of how a “man” should look, speak, or act. Therefore, Prowel marshaled enough evidence to argue that his harassment was based on gender stereotypes, even if part of the harassment was based on his sexual orientation.

The line between sexual orientation discrimination and discrimination “because of sex” can be difficult to draw. Under Title VII, an unlawful employment practice is established when the plaintiff demonstrates that sex was one of the motivating factors for discrimination, even if other factors - including harassment based on sexual preference - also motivated the same actions.

Employers should be aware of this decision, and should understand that while sexual orientation is not yet included as a protected category under federal law (although it is protected under some state statutes), gender stereotyping is a very closely related cause of action. Therefore, employee complaints of harassment should not be overlooked or downplayed on the basis that they appear to involve an issue of sexual orientation. (Of course, employee complaints should never be “overlooked or downplayed” under any circumstance.) Instead, if any of the complained-of activity includes actions that are meant to punish or belittle non-compliance with gender stereotypes, the actions may constitute a violation of Title VII’s “because of sex” provision.
 

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In 2007, during a nationwide upsurge in pregnancy discrimination claims, the Equal Employment Opportunities Commission (EEOC) released a set of guidelines advising employers on issues related to caregiver bias. On April 22, 2009, the EEOC further supplemented those guidelines with specific recommendations designed, it said, to help employers to “reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity.” The document can be found at www.eeoc.gov/policy/docs/caregiver-best-practices.html.

The caregiving responsibilities addressed in the EEOC’s recent guidance include not only childcare, but care to parents and older family members, as well as to relatives with disabilities. The primary directives issued include: (1) development and dissemination of a “strong EEO policy” that addresses the types of conduct that may constitute discrimination; (2) training managers to recognize legal obligations created by anti-discrimination statutes and ensuring compliance with policies that support those obligations; (3) effective response to complaints of caregiver discrimination; and (4) providing clear assurance to caregiver/employees of protection from retaliation for such complaints.

The document also addresses issues related to recruitment, hiring, and promotion of employees with caregiving responsibilities, and includes specific suggestions in those areas. For example, the EEOC suggests developing specific job-related qualification standards for each position, to reflect the duties, functions, and competencies of the position. Such standards can help to minimize the potential for gender stereotyping which, in turn, will minimize the opportunity for caregiver discrimination.

Another area addressed in the EEOC’s guidance is avoiding discriminatory treatment of caregivers through the “terms, conditions, and privileges of employment.” Specifically, the EEOC suggests monitoring compensation practices for patterns of potential discrimination, and reviewing workplace policies that limit employee flexibility. The “best practices” include a number of flexible and reduced-time options, with examples of each. While not every example will be suitable for every employer, the guidance certainly informs employers of the expectations of the EEOC with respect to caregiver issues. Such information provides a sense of how these cases will be viewed by the Commission during its investigation and attempted resolution of discrimination charges in this area.

Many of the suggestions included in the guidance are similar to or parallel actions that employers currently are reviewing or enforcing to assure compliance with other recent employment law developments, including the Ledbetter Fair Pay Act, the recent FMLA regulations, and the upcoming Paycheck Fairness Act.

While the EEOC’s technical guidelines are designated as “best practices” - meaning that they are proactive measures recommended by the Commission, and are not statutory requirements - knowledgeable employers recognize that courts turn to the EEOC for direction in interpreting both federal and state anti-discrimination laws. Therefore, it is imperative that companies begin to train managers and supervisors on the content of this most recent guidance, to assure complete awareness of all legal obligations that may have an impact on decisions about treatment of employees with caregiver responsibilities.
 

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