Sheila Shorn was on the short list of applicants for an office manager position in Acme’s accounts receivable office. When Penny Payup, manager of accounts receivable, brought Sheila in for an interview, she was visibly taken aback upon meeting her. Sheila had very short hair and a small yin/yang tattoo on her neck. She wore a large, boxy suit, Doc Marten boots, and a skull and cross-bone earring in one ear. To Penny, Sheila’s look went beyond “edgy.” She wore no makeup and carried herself in a masculine manner, leaving Penny to think that Sheila was deliberately trying to look like a man. Still, Sheila’s experience and credentials were far superior to the other finalists, so she got the job. Penny sensed that Sheila was tough enough to handle any ribbing from the accounts receivable staff, who liked to tease each other.
The ridicule from coworkers — male and female — began the day Sheila started work. Several employees began to refer to Sheila as “Pat,” referencing a Saturday Night Live character of indiscernible gender. They loudly speculated about which bathroom Sheila would use, and one employee announced that Acme now had another “dyke” for the company softball team. Two other coworkers didn’t engage in the overt ridicule, but they told Penny the new office manager was “weird” and made no effort to welcome her into the fold.
By her third day on the job, Sheila went to Penny to complain that her coworkers were ridiculing and shunning her. Penny acknowledged that she had observed the conduct of her staff, but she told Sheila that employees were always teasing each other. She assured Sheila that, once her coworkers got to know her a bit more, she would be treated as part of the team. “Just give it a few weeks,” Penny advised. But the disparaging comments went on unabated; in fact, coworkers had begun to call Sheila “pre-op Pat,” suggesting that she was in the process of undergoing a sex change. Sheila’s other coworkers continued to give her the cold shoulder, as well. Finally, when a coworker asked if she was a member of the North American Man-Boy Love Association (NAMBLA), Sheila quit on the spot. She then filed an EEOC charge alleging hostile work environment discrimination and constructive discharge.
A labor and employment analyst’s response:
In general, employers can require employees to present a professional appearance and define a dress code that meets that expectation. There are certain exceptions: employers can’t impose dress code requirements that conflict with an employee’s bona fide religious beliefs — a protection that some courts have construed quite generously. And employers can’t impose dress code criteria that disproportionately affect one gender, race, or other protected class. So if Sheila had merely faced ridicule because of her “goth” earring or combat boots, her lawsuit would be toothless.
However, because the ridicule went much further, Acme faces potential liability for gender discrimination under a “sex stereotyping” theory. Under federal law, employers may not discriminate against an employee because he or she fails to conform to traditional gender roles or expectations, and they may be liable for coworker harassment on this basis, as well. As such, the fact that Sheila faced harassing comments by female coworkers doesn’t mean that the harassment was not “on account of” sex.
Also, while Sheila’s sexual orientation isn’t clear, the “dyke” comment and NAMBLA references suggest that she faced harassment based on her perceived homosexuality. While federal law does not protect employees from job bias based on sexual orientation, many state laws and local ordinances do expressly protect gay, lesbian, bisexual and transgender employees from discrimination.
As for whether Sheila was constructively discharged, the legal issue will turn on whether a “reasonable person” in Sheila’s position would feel compelled to quit under these conditions. Given the pervasive nature of the harassment here, and the severity of the harassing comments, Sheila would likely win this point. Incidentally, the “cold shoulder” Sheila endured from her other coworkers would factor into this equation, as well.
Acme has a serious managerial problem on its hands here, as Penny erred at every turn. She engaged in improper stereotyping herself by assuming that Sheila, because of her perceived masculine appearance, was “tough enough” to handle any abuse that the accounts receivable team might direct her way. And, while she did not discriminate against Sheila, it was a profound error in judgment to condition Sheila’s employment on the assumption that she would have “thick skin” in the face of her coworkers’ unlawful behavior.
Worse still, Penny’s failure to rein in her staff and discipline employees for their conduct after Sheila complained is inexcusable. Even if Penny mistakenly thought that the abusive comments did not amount to gender discrimination, there was no legitimate reason for allowing such harassment to continue. The fact that she anticipated that her employees would likely behave as they did suggests that she and Acme are failing miserably in their legal obligations to prevent and remedy discrimination.
Lisa Milam-Perez, J.D., Labor and Employment Analyst
Wolters Kluwer Law and Business, (773) 866-3908, firstname.lastname@example.org