The evolving world of sex discrimination law

Recent federal court decision offers employers some relief, but they should still be wary


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When state and federal laws against sex discrimination were first enacted, it was understood to encompass situations in which employees (usually women) were denied employment or workplace opportunities because of their sex. But through court decisions and Equal Employment Opportunity Commission guidelines, the scope of “sex discrimination” has expanded to include claims for sexual harassment.

Some courts have also been receptive to claims based on “sexual stereotyping.” In these cases, employees claim that they were discriminated against because they do not conform to traditional gender roles or stereotypes (for example, he is not “man” enough or she is not “woman” enough). Some courts have also been receptive to what are referred to as “sex plus” claims, in which an employee claims that a subset of females (or males) were treated differently than a subset of males (or females) based on a non-sex related factor.

For example, a “sex plus” claim may be brought when a female with young children is passed over for a promotion while male employees with young children are not.

In a recent case, the U.S. District Court in New Hampshire considered claims that on their face appeared to fit into one of those categories, but the court refused to find the categories applicable.

In Rolfs v. Home Depot U.S.A. Inc., a former employee brought a lawsuit against Home Depot alleging that he had been subjected to a sex-based hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of sex, among other protected classes.

The employee claimed that his supervisor repeatedly and continually made boorish, sexualized comments about a female customer and repeatedly encouraged him to pursue a sexual relationship with her. The employee claimed that when he told the supervisor that he was not interested in pursuing a relationship, the manager accused him of being “a homo.” He claimed that the manager commented negatively to other store employees and others on his lack of interest in pursuing a relationship and engaged in a public rant about Rolfs’ unwillingness to pursue the customer and cheat on his wife.

The employee ultimately told the manager to “come on,” which he intended as a request that he stop his boorish behavior. Shortly thereafter, the employee’s supervisor began writing him up for store-related performance issues.

Ruling effects unclear

In granting Home Depot’s motion for summary judgment, the court held that Rolfs had not articulated an actionable claim for sex discrimination, characterizing his claim as a claim for harassment because he would not cheat on his wife (which is not a protected class) rather than one of sexual stereotyping or gender.

Specifically, the court held that Rolfs had neither shown that his district manager believed all men should cheat on their wives or that a similarly situated woman who refused to cheat on her husband would be treated differently.

The court also found that Rolfs had not proffered evidence to support his claim that his statement to his district manager to “come on” (or subsequent reports to his managers about the conduct) led to his performance write-ups or resulted in retaliation.

While employers may take heart that the court ruled in the company’s favor in this case, whether this means the court will more closely scrutinize these non-traditional types of sex discrimination claims remains unclear. Not only may this case have been decided differently if it had been brought under New Hampshire’s Law Against Discrimination -- RSA 354-A, which prohibits discrimination on the basis of sex and sexual orientation, but it may be appealed.

Employers are encouraged to review their policies and practices to identify overt or unintentional conduct that could lead to claims of sex discrimination, including sex-plus claims or claims of gender stereotyping.

While the Rolfs court ultimately found that the conduct did not create an actionable hostile work environment because the supervisor’s conduct did not implicate a protected class, employers should ensure that supervisors understand that such behavior in the workplace is undesirable, unprofessional, can have a serious impact on morale, and can lead to unnecessary litigation.

Laurel A.V. McClead, a member of Drummond Woodsum’s Labor and Employment Group in Portsmouth, can be reached through dwmlaw.com.

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