by Michelle D. Craig
Partner | Adams and Reese LLP
Question: I have an ex-employee who says she was terminated because she complained that her supervisor was showing favoritism to someone with whom he was allegedly having a relationship. She did, in fact, complain, but she was actually a bad employee and deserved to be terminated. Can I get in trouble because he showed favoritism to the other employee?
In a 2013 case, the second circuit ruled that “preference for a paramour is not discrimination because of sex.” Accordingly, if she is arguing that the only reason she was fired was for complaining that her supervisor was showing favoritism to someone he was involved with, she will likely not be successful in that case. However, if she was fired because she complained that the supervisor was harassing her or another employee, she could have a claim against the company. Going forward, however, you should probably consider how this “paramour preference” is affecting morale. It is normally not good practice for a supervisor to be romantically involved with a subordinate. You should consider whether a policy prohibiting such relationships should be instituted and consider whether some changes should take place in the department in which this is occurring. You should discuss any proposed changes with an attorney to make sure your actions do not appear retaliatory to any of the parties involved.
Question: I have a male employee who dresses in a more feminine fashion than other male employees. As a result, the other employees make fun of his clothing. I don’t think that it rises to the level of bullying, but I am concerned that I should be doing something about their behavior. Should I?
In a recent California case, a male employee sued his employer for sexual harassment and retaliation and alleged that co-employees often called his clothes “girly” because he wore pastels, including pink, lavender and soft blue. The court stated that the comments helped provide a “causal link” needed to establish his prima facie case of a sex stereotyping claim. Further, in a 5th Circuit case against Boh Brothers, a New Orleans-based construction firm, the court made it unquestionably clear that harassment of an employee because of gender stereotypes is breaking the law.
In that case, the employee was harassed by the supervisor and co-workers for being too feminine. Specifically, the superintendent harassed the plaintiff with verbal abuse, taunting gestures of a sexual nature, and exposing himself. The harassment took place on the I-10 Twin Span project over Lake Pontchartrain between Slidell and New Orleans.
Evidence was presented that the superintendent harassed him because he thought he was feminine and did not conform to the supervisor’s gender stereotypes of a typical “rough ironworker.” Although the reasoning in this case is controversial, in the end, the 5th ruled that sex stereotyping will not be tolerated and is a form of sexual harassment. Because Louisiana, Mississippi and Texas sit in the 5th Circuit, the ruling is especially instructive to employers based there.
As an employer, you should do everything you can to address this type of harassment and stop it from occurring. Per this decision and recent other decisions, it is unquestionably a violation of the law.
The information contained in this column does not constitute legal advice or opinion and should not be viewed as a substitute for legal advice. The information provided is based on laws and regulations in effect at the time of creation and is subject to change. The sending of this newsletter is not a privileged communication and does not create a lawyer/client relationship. Michelle D. Craig is a Partner in the Labor and Employment Practice Group at Adams and Reese LLP. She can be reached at firstname.lastname@example.org; 504-585-0441; www.adamsandreese.com. Please send her your questions.