Issue 41

Zatuchni & Associates Newsletter

RECENT CASES

Male Employee Prevails On Discrimination Claim
For Being Taunted As "Effeminate"

The federal appeals court for the Ninth Circuit held a restaurant chain liable under the Civil Rights Act of 1964, on grounds that the chain's employees subjected a male co-worker to a hostile work environment by insulting him for being what they perceived as "effeminate."

In Nichols v. Azteca Restaurant Enterprises, Inc., 86 FEP Cases 336 (9th Cir. 2001), the plaintiff worked as a host and food server. He claimed that he was the subject of a "relentless" campaign of insults, based upon his co-workers' perception of him as "too feminine." Male co-workers and his supervisor referred to him as "she" and "her," mocked him for walking and moving "like a woman," and taunted him with obscenities in which he was characterized as female. The abuse occurred at least once a week and often several times a day. The plaintiff was eventually fired for leaving work during his shift. Immediately thereafter, he sued the restaurant for sexual harassment. The trial court initially ruled against the plaintiff on the grounds that the abuse by his co-workers was not "because of sex."

The Court of Appeals disagreed, noting that "the systematic abuse directed at reflected a belief that [he] did not act as a man should act." As all the verbal abuse occurred because the plaintiff did not conform to his co-workers' gender-based stereotypes, the court concluded that the conduct amounted to sex discrimination.

What It Means: The United States Supreme Court has already ruled that a woman can bring a sexual harassment claim on the basis that male co-workers discriminated against her because she did not meet stereotyped expectations of femininity. The Nichols court now extends that logic to apply to men claiming discrimination by other male co-workers because of a perceived lack of "masculinity."

Disciplining Employees Based On Religious Views of
Homosexuality May Be Actionable

A recent Eighth Circuit decision indicates that employers that give employees negative reviews for opposing homosexuality on religious grounds may be held liable for discrimination. In Phillips v. Collings, 86 FEP Cases 411 (8th Cir. 2001), a supervisor had previously given the plaintiff social worker adequate or good evaluations. However, after the social worker told her that his religion viewed homosexuality as an "abomination" and that his beliefs prevented him from licensing homosexuals as foster parents, the supervisor drafted a three-page evaluation that recommended the worker's termination - in part because of his religious views.

At the request of her superiors, the supervisor dropped the request for termination from the draft evaluation. In the meantime, the social worker requested and received a transfer, due to his conflict with the supervisor. After he assumed his new position, the worker received his supervisor's final evaluation, which was now 53 pages and critical of every aspect of his job performance. Additionally, the evaluation imposed remedial training and corrective action plans upon the social worker.

The social worker sued the supervisor for adverse employment action under the Civil Rights Act of 1871, and was awarded over $26,000 in damages. On appeal, the supervisor argued that no adverse employment action occurred, as the evaluation was never implemented because of the worker's transfer.

In upholding the verdict, the court noted that a "poor performance evaluation, alone, typically does not constitute an adverse employment action." However, the court rejected the supervisor's claim that no adverse action took place, pointing out that the worker requested a transfer to avoid the supervisor's repeated criticism of his religious views. Moreover, the court took note of the fact that the supervisor's final evaluation was "unprecedented in length and malediction," and unlike any other received by the social worker or his co-workers.

What It Means: The Phillips case illustrates that criticizing employees for refusing to perform jobs that contradict their religious views may expose employers to significant liability. In these cases, employers should look for ways to restructure the employee's duties so that no religious conflict occurs.

The law requires that employers "reasonably accommodate" their employees' religious views unless doing so would cause undue hardship. In the Phillips case, for instance, the court noted that the number of homosexuals applying to be foster parents was "rare." As such, the supervisor should have simply removed all applications by homosexuals from the social worker's caseload, rather than reprimanding him for his beliefs.

Employee With Direct Evidence of Discrimination in Job Training Need Not Show Adverse Employment Action To Bring ADA Claim

So ruled the federal appeals court for the Seventh Circuit in Hoffman v. Caterpillar, Inc., 11 AD Cases 1674 (7th Cir. 2001). The employee in question had no lower left arm; her job duties involved scanning documents. She filed a "disparate treatment" claim under the ADA after her supervisor refused to train her on a high-speed scanner, arguing that the ability to use the scanner improved her chances for promotion, and that every other employee who had requested training on the scanner received it.

The employer countered that the employee's claim was without merit, as the denial of training in no way impacted her compensation, benefits, work hours, job title, or ability to advance. As such, the employer argued that the employee could not show the "adverse employment action" required to support an ADA claim.

The court disagreed, holding that proof of adverse employment action is required only where a plaintiff has indirect or circumstantial evidence of discrimination. In the employee's case, however, there was direct proof of discrimination: she asked her supervisor for training, and he denied it to her specifically because she had only one hand. As such, the need to show adverse employment action was eliminated.

As to whether the denial of training amounted to discrimination, the supervisor argued that he had refused training because two hands were needed to operate the scanner, and because the scanner controls were on the side where the employee had no hand. The court called this assessment into question by noting that the employee was not given the chance to try running the scanner, and remanded the case to the lower court for further fact-finding.

Transfer to Night Shift Did Not Amount to Constructive Discharge
of Female Employee With "Wifely Instincts"

The federal appeals court for the Seventh Circuit upheld an employer's decision to switch a female supervisor to an evening schedule in Grube v. Lau Industries, Inc., 86 FEP Cases 374 (7th Cir. 2001). The supervisor claimed that the transfer was an attack on her "wifely instincts" to stay at home in the evening to tend to her husband and household. As such, the supervisor argued that the transfer was designed to force her to quit her position, in violation of Title VII of the Civil Rights Act of 1964.

The court flatly rejected the supervisor's position, noting that it rested upon a view of women as family caregivers who must remain at home during the evening - the very sort of gender stereotype that Title VII was designed to combat. Additionally, the court noted that accepting the supervisor's logic would open a floodgate of Title VII litigation, as the transfer of any married female employee to the evening shift could serve as the basis of a discrimination claim.

Disclaimer

The information contained in this Newsletter does not constitute legal advice. Zatuchni & Associates, LLC tries to provide quality information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein. As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent counsel.