July Legal Roundup: Can a Straight Man Be Fired for Being Too 'Sensitive,' 'Feminine'

Here’s the latest on some employment-related legal cases that have gone before the courts:

Sex Discrimination | Disability Discrimination | Coverage Discrimination | National-Original Discrimination | Litigation | Constitutional Rights | National Labor Relations Act | Family and Medical Leave Act | Legislative and Administrative Action

Sex Discrimination

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Heterosexual Gym Employee Can File Sexual Stereotyping Case.

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A heterosexual fitness instructor can maintain a Title VII sex-discrimination case for sexual stereotyping.

His supervisor made ongoing comments that male fitness specialists needed to fit an image of being real men”loose, promiscuous and predatory.” The plaintiff was viewed as a “more sensitive type of man” showing his “feminine side.” The supervisor allegedly expected him to show a more macho image.

The instructor complained and was soon fired. He sued.

The court found that Title VII’s sexual-stereotyping coverage is not confined to gay and lesbian employees who do not fit the “heterosexual norm,” but may also be brought by heterosexuals who do not conform to the stereotypes or biases of what a “real” man or woman should be.

Rachuna v. Best Fitness Corp.(W.D. Pa., 2014)

Suicide Attempt Was Compelling Evidence.

A female packaging technician at a candy company filed a case claiming that she was sexually harassed by three male coworkers.

She alleged ongoing comments and touching for several years. Complaints to management resulted in no corrective action. She eventually took a medical leave and did not return, claiming constructive discharge.

The company defended by claiming the behavior was not severe enough to “alter the conditions of employment,” to meet the constructive-discharge standard.

The court, however, found that the medical leave was due to the employee’s suicide attempt in reaction to the ongoing harassment. This was compelling evidence of the severity of the behaviors.

Standen v. Gertrude Hawk Chocolate, Inc. (M.D. Pa., 2014)

Disability Discrimination

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Children Are Not a Disability.

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A city clerical employee requested, but was denied, a permanent shift change (with another employee who was willing to trade shifts).

She requested the change in order to accommodate difficulties with her pregnancy and the extra daycare expenses the new child would cause if she stayed on her original shift. The city gave Family and Medical Leave Act (FMLA) schedule adjustments during the pregnancy but refused the permanent shift change.

She sued under the Americans With Disabilities Act (ADA) and Pregnancy Discrimination Act. She lost on both counts.

She was accommodated by FMLA leave during the pregnancy. The Pregnancy Discrimination Act does not cover the period after the mother recovers from the physical condition of pregnancy. The ADA requires accommodation of physical and medical issues. It generally does not require accommodation of financial issues. In any event, children are not a medical issue. Children, and financial difficulties caused by children, are not a “disability” that the city is required to accommodate.

McCarty v. City of Eagan (D. Minn., 2014)

Coverage Discrimination

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“Volunteer” Can File Title VII and State Employment Discrimination Laws.

Volunteers are not “employees” and cannot make claims under the standard employment laws (FLSA, ADA, Title VII, ADEA, FMLA, etc. etc.). However, in this case the court allowed a sex-discrimination suit by a person who was denied a position on a volunteer horse-mounted police unit.

The volunteer received no pay but was eligible for a variety of death, disability and other benefits of significant economic value.

There is a “13 factor test” for determining whether a person is a volunteer or is an employee for discrimination purposes (only a six factor test for FLSA wage and hour purposes).Receiving something of significant value is a key factor.

Finkle v. Howard County, Maryland (D. Md., 2014)

National-Origin Discrimination

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University Ignored its Own InvestigationsTwice.

A court had no problem in finding sufficient evidence for a case of harassment.

A Latino mail worker made repeated internal complaints that his supervisor was engaging in ongoing derogatory comments and slurs toward him. The supervisor was counseled but continued the behavior.

Two internal investigations of the complaints concluded that the supervisor had created a hostile environment. Nonetheless, the behavior continued, and the HR manager allegedly pressured the employee to stop his complaints about the continuing behavior.

Asebedo v. Kansas State University (10th Cir., 2014)


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Yes! Customer Is a Pig, But He Doesn’t Mean Anything By It.

This is not the best management response to an employee’s complaint about ongoing sexual and racial harassment.

Over three years, a white male customer made sex and race comments to a female African-American employee, plus engaged in other overtly crude behavior (e.g., grabbing the phone from her hand and passing gas into the mouthpiece). Not only did she complain, but her supervisor also witnessed some of the incidents and merely shook her head or said, “He’s a pig, but he doesn’t mean anything by it.” (The standard “just joking” response.)

The employee finally complained to Human Resources, and the customer was banned from the premises.

In the ensuing harassment case, the court found this action was too late to prevent liability. The supervisor had knowledge of the behaviors and had a duty to act and then to stop the harassment. Given the clear complaints and direct observations, there was no excuse for the supervisor’s inaction. That inaction bound the employer to liability.

Freeman v. Dal-Tile Corporation (4th Cir., 2014)

Supermarket Settles Case of Harassing Customer for $500,000.

A male supermarket customer made lewd sexual remarks and groped seven different female store employees repeatedly over a prolonged period. Store management seemed to discount the complaints made by the women.

The women were told that nothing could be done unless store security actually witnessed the groping or was close enough to hear the comments. The EEOC charged that the employer “failed to respond effectively in a manner likely to end the harassment.”

Dj Vu: In 2008, the same supermarket chain settled a previous harassment case, also for $500,000. That one involved harassment of female staff by two male managers. In the recent settlement, the EEOC stated, “We don’t see the same claims against the same employer in the same area very often.”

The current settlement also requires posting notices in all the chain’s stores, compliance reviews, issuing a new anti-harassment policy, training for all managers, and special training for Human Resources staff about how to properly respond to such situations. [On balance, the larger the employer, the more incidents are likely to occur or recur in the multiple stores or facilities. A smaller company can more easily control a small number of managers and staff. When one has hundreds or more locations, it is impossible to keep a tight control on every single person. There will be “wild cards” and wrong decisions that cannot be predicted or reasonably prevented. So out of hundreds of stores, addressing a problem in one does not guarantee something will not crop up in another.]

EEOC v. Fred Meyer Stores(D. Ore., 2014)

Constitutional Rights

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Captain Could Not Maintain Case for Refusal of Participation at Islamic Society’s Police Appreciation Day.

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The Tulsa Islamic Society held an event to show appreciation for the police department, FBI and other city agencies that protected the mosque and its school after a series of threats.

A police captain was instructed to go and/or assign other officers to go to the event. He refused to go or assign others, stating his own religious objection. He was suspended.

He sued, claiming violation of his religious rights, and that the attendance was an “official endorsement of Islam,” in violation of the First Amendment’s Establishment Clause.

The court ruled against him. First, he was not ordered to attend; he could send others. He could not impose his own religious values on other officers by refusing to even ask them to attend. Second, he had raised no religious objection until after his suspension for refusal. Also, he provided no explanation as to exactly how his religion prevented him from going to a purely secular event at the Islamic Society.

The “endorsement” argument failed because the event was purely secular, with no religious serviceit was a buffet. Police officers attend literally over 100 such events a year, often at churches, church schools or religious colleges. The captain had never asserted an objection to police attendance at those events. (In fact, singling out the Islamic Society for a refusal to attend might be seen as an official disparagement of a particular religion by the police department, which could violate the Establishment Clause.)

Fields v. City of Tulsa (10th Cir., 2014)

National Labor Relations Act

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Arsonist Firefighter Could Be Fired.

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A company fire fighter at a steel mill, and also chief of a local volunteer fire department, was caught setting brush fires in his off-duty time. He would then wait to be called and lead the volunteer fire department response, and look like a hero and a leader. The company fired him.

He grieved the termination, claiming that off-duty conduct could not be considered, and that he had a psychological disorder resulting in poor judgment. The arbitrator rejected both arguments.

A disability creating a direct threat of harm can be grounds for termination, and there was no evidence that the poor judgment would not reoccur. Off-duty conduct directly related to one’s job is also a valid reason for discharge. “The company cannot be expected to retain an arsonist as a fire-protection employee.”

In re U.S. Steel Corp. and United Steelworkers #1938 (2014)

Cultural Confusion Was Not Fraud.

A university fired a Hmong employee after discovering she was not married to the person she listed on her health insurance as her spouse. The health plan required a legal marriage for coverage. The discharge was for health-insurance fraud.

The employee claimed that she had been married in a Hmong wedding ceremony, and she and her husband were fully married in the eyes of their religion and community. An arbitrator reversed the discharge.

Though the employee was clearly not eligible for spousal-insurance coverage (all marriages occurring in Minnesota require a license to be legal), she was not guilty of fraud. She honestly believed the Hmong ceremony was a valid wedding. Also, other university employees had mistakenly continued children, former spouses, etc., on their health insurance after eligibility ceased. None of them were fired.

The employee was reinstated to her job. (The arbitrator left open the issue of repayment of any health benefits provided to the “spouse.”)

In re AFSME Council 5 and University of Minnesota (2014)

Family and Medical Leave Act

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Timing of Fitness for Duty Evaluation is Crucial.

The FMLA allows employers to require a fitness-for-duty medical certification before a person returns from leave. However, that certification is limited to only the specific condition for which the employee took leave, and the employer may not request a second opinion by its own medical professional.

After return to work, though, the rule changes. The FMLA return requirement has been fulfilled; now the ADA comes into play. If there is tangible evidence of inability to perform, the employer can now send the person to its own medical evaluator for a more comprehensive evaluation, and can get the second opinion. The issue is allowing the person to return to duty from FMLA, then starting any ADA fitness-evaluation process.

White v. County of LA et al. (Cal. Ct. App., 2014)

Legislation and Administrative Action

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DOL Proposes FMLA Rule to Cover Same-Gender Marriage.

The Department of Labor has announced a proposed rule to require family-leave coverage for same-gender spouses in all states, as long as the marriage occurred in a state where it was legal.

Currently, the FMLA does not cover that spousal leave in states that do not recognize same-sex marriage. The law depends on the particular state’s definition of marriage.

This has created a hodge-podge of coverage, significant confusion and disparity for corporations operating in multiple states.

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached atrgregg@boardmanclark.com.

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