In the Trenches: Too close for comfort

April 10, 2014
In this edition of In the Trenches, Acme wonders what constitutes gender discrimination or a hostile work environment.

Seeking to curb the sales division’s profligate spending, Sales Manager Barry Nobetter informed his sales reps, Mike Sells and Bill Tells, that the trio would be sharing a hotel room during the upcoming week-long sales training in Omaha. Mike and Bill weren’t happy about it but begrudgingly accepted their fate, aware that the boss had to sacrifice, too. On their first night in town, Barry, Mike, and Bill met the new Acme reps, whom the trio would instruct in the finer points of selling trimethyl flubdub, at the hotel bar. After a few hours Mike and Bill returned, exhausted, to their room, leaving Barry at the bar. The boss had abandoned his sales team by this point and was flirting with a local woman at the bar.

About an hour later, Mike and Bill were awoken by the sounds of laughter — male and female laughter. Barry had brought the mystery woman to the hotel room, and the pair, stark naked, was in a passionate embrace in the double bed a mere 8 ft away. Mike rolled his eyes, turned his back away from the lovers, and hit the sack. Bill, horrified, lay awake feigning sleep and waited anxiously for the guest to depart.

In the morning, Bill politely told Barry it wasn’t a good idea to bring guests in the room while three people were sharing the space. But Barry laughed and told him to “man up.” Mike told his colleague in private to let it go, adding, “Dude, that’s just Barry.” When Bill came back the next evening to find the woman entertaining his boss again, Bill stewed silently. The following evening, though, when Barry’s paramour came by yet again, Bill told Barry that he didn’t appreciate his boss having sex every night while he was in the same room. “Stop being a wuss,” Barry responded. Unsatisfied with this response, the next morning Bill called Tom Fullery, Acme’s VP of sales, to complain about the situation and to request permission to bill a separate hotel room. But Tom basically told Bill to “put up and shut up.” There was no money in the budget.

On the fourth night, Bill got up in the middle of the night to use the bathroom but encountered Barry’s girlfriend, unclad, en route. She quickly scrambled to cover herself, grabbing a shirt that had been tossed on the chair. The shirt belonged to Bill, though, and he was none too happy about it. When morning came, he yelled at their guest to keep her hands off his stuff and asked, “Don’t you have someplace else to go, anyhow?” As he watched the spat escalate, Barry got angrier, finally telling his subordinate to “take your crap and go. You’re fired.” Bill filed a lawsuit contending he was subjected to a hostile work environment and was fired in retaliation for complaining about it.

Does Bill have a leg to stand on?

A labor and employment analyst’s response:

This incident likely falls under the category of “unfair, perhaps even unseemly, but not unlawful.” Barry did not engage in this unprofessional conduct because of Bill’s status as a man; he was obviously more driven by his new friend’s status as a woman. And because his actions weren’t motivated by Bill’s gender, Bill won’t be able to bring a successful hostile work environment claim against Barry or the company or a retaliation claim for refusing to respond to his complaints.

The problem isn’t that Bill, like his boss, is a man; the law generally protects males from “hostile work environment” gender discrimination or sexual harassment, even at the hands of another male. Such claims generally arise in two contexts: (1) when a subordinate faces harassment of a sexual nature by a same-sex superior who is gay or (2) when a male faces discrimination or harassment because he doesn’t conform to a stereotypical notion of how a man is supposed to behave.

Presumably Bill thought he had a viable “gender stereotyping” case because of Barry’s comments to “man up” and “stop being a wuss.” But aside from these “stray remarks,” as courts say, there is no other evidence that Barry maligned or hassled Bill for not acting like men are presumably supposed to act. And a plaintiff needs much, much more to go on in order to show that the hostile environment he endured was so “severe or pervasive” as to alter the conditions of his employment, especially if there is no evidence of concrete discrimination against him. It doesn’t appear that Barry fired Bill because he didn’t conform to Barry’s notion of a real man; he fired him because of his tussle with the girlfriend. So Bill didn’t face an adverse employment action based on his perceived refusal to “act like a man.”

Since there was no evidence of gender-based discrimination or harassment, Bill would be unable to bring a claim of retaliation for his complaints of such discrimination. The conduct he complained about wasn’t unlawful. Of course, even if it were, Bill would face an uphill battle trying to establish a causal connection between his complaints and his discharge. Bill’s complaints to Barry didn’t seem to faze him; only the fight did. Based on the timing of events, it would be hard to convince a court or jury that the discharge resulted from the complaints made days earlier. Also, there was no evidence that Barry got wind of Bill’s complaint to Tom. Looks like Acme dodges a bullet here.

Lisa Milam-Perez, J.D., labor and employment analyst
Wolters Kluwer Law and Business, (773) 866-3908

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