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Corporate Counsel News - Trends and Developments,Harassment Based on Nonconformance with Gender Stereotypes

Kathleen Kapusta, J.D.
POSTED 2014-01-23

We all know the mantra: "It shall be an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Although it does not protect against bias based on sexual orientation, several courts have held that this language prohibits discrimination against an employee because the employee does not conform to traditional gender norms. For example, assertive behavior on the part of a woman might be judged more critically because aggressive conduct is commonly viewed as a masculine characteristic or a female might be penalized for her "unladylike" language.

Two recent court decisions should serve as reminders that while sexual orientation is not a protected class under Title VII, discrimination on the basis of an employee's failure to conform to expected gender stereotypes may land an employer in court.

MANLY-MEN DON'T PLAY GOLF

In the first case, a Ford assembly line employee did not fit in with the stereotypical male worker on a plant assembly line. Unlike other workers, he did not drink, do drugs, or swear around women. In addition to being passionate about golf - a sport one group leader repeatedly called a "sissy's game" - he did not engage in activities traditionally considered to be "manly" like hunting or fishing. And, he wore clothes that looked "like what girls would wear."

HARASSMENT. The employee contended that he faced harassment, discrimination, and ultimately termination because his coworkers perceived that he failed to conform to the male stereotype. They told him that he "did the queerest things" and asked why he couldn't "just work and be like normal people." Beginning in early 2010, the employee alleged that he was the victim of coworker sexual harassment. For instance, his group leader purportedly sent him two text messages. The first stated: "Found the candy you like for Valentines. But can't remember if you like white or dark chocolate." A picture of two chocolate cake pops shaped like penises was attached. The second contained a graphic depicting Elmer Fudd sodomizing Bugs Bunny. Another group leader gave him a five gallon container of Vaseline, telling him "Cappy you need this Vaseline for your ass since you take cock there all the time."

On another occasion, his coworkers allegedly put grease and dirt on his chair; when he sat in the mixture and stained his pants, they kept track of votes on the substance's identity with a whiteboard delineating the options of "dirt, grease or cum." In addition, one of the group leaders would walk past the employee simulating "sucking a cock." On another occasion, when denied an emergency bathroom break, he urinated in his pants. His group leader then told other workers that the employee "was like a little baby" and "pissed [his] pants." Sometime after this incident, he was placed on a "no work available" list. He was ultimately terminated in December 2010 when his supervisor noticed that he had a black bag with a bottle full of urine. The employee had carried it into the plant because he urinated during his commute and did not want it to freeze.

HOSTILE WORK ENVIRONMENT BECAUSE OF SEX. The employee sued Ford and the two group leaders alleging that they harassed and discriminated against him on the basis of sex, retaliated against him by firing him, and caused him emotional distress. Noting that a plaintiff hoping to succeed on a claim of sex stereotyping must show that he fails to act and/or identify with his or her gender, a federal district court in Ohio pointed out that the Sixth Circuit has recognized that this theory of sex stereotyping will succeed "where gender non-conformance is demonstrable through the plaintiff's appearance or behavior."

Here, there was evidence supporting the conclusion that both his appearance and behavior put him outside of a "manly-man stereotype," the norm in the world of Ford's Ohio assembly plant production line. Not only did he wear feminine clothing, while dressed in his work apron, he pretended to be pregnant and to rock a fake baby. He also contended that his past career in management and his practice of keeping detailed notes about his activities at work also comprised behavior that placed him outside of the expected male norm at the Ford plant. He further asserted that the group leaders and other coworkers harassed him repeatedly, called him "queer," and inundated him with sexual comments, gestures, and pranks.

Though Ford argued that the majority of the alleged behavior was "indisputably asexual" and "objectively harmless," the court disagreed. When taken as a whole, the evidence could support a finding that the defendants' actions created a hostile work environment. The vulgar acts mimed toward the employee; threats made while he faced harassment about needing Vaseline for anal sex; crude text messages; catalogues of women's clothing and lingerie left for him; and a sexually-explicit wooden box that could be interpreted to suggest he should give (or gave) fellatio in the area near his workspace all could support the conclusion that the work environment was hostile or abusive.

PRETEXT. Ford claimed that it had a legitimate reason for firing the employee: he brought the bottle of urine into the plant and placed it in a barrel of gloves and he had a company owned keyboard in his locker. The employee, however, claimed that he properly disposed of the urine in the bathroom. Moreover, there was evidence that the gloves, which were supposedly soaked in urine, were never tested. In addition, while there was no evidence as to whether the gloves were intended to be recycled or thrown out, there was other garbage in the barrel, including food. Nor, the court pointed out, was there any rule against bringing a bottle of urine into the workplace or disposing of it in the bathroom. Finally, there was evidence that another employee who had urinated on company property was suspended, not discharged. As to the keyboard, there was no evidence that it was actually company-owned. Observing that the employee presented sufficient evidence of pretext, the court found that the defendants were not entitled to summary judgment as to this claim.

LIABILITY. The court also rejected Ford's assertion that it was not responsible for the coworkers' harassment because it had no notice of their conduct. Here, there was evidence that the employee reported the conduct on more than one occasion. Not only did he tell his supervisor that he was scared of his coworkers' actions, he also told him his coworkers were subjecting him to sexual innuendo, ridicule, and harassment. Thus, the employee was allowed to proceed to trial on his claim that he was discriminated against because he did not conform to (or was perceived as not conforming to) the stereotypical expectations and images of masculinity. Ford was also denied its motion for summary judgment on the employee's retaliation claim related to sex discrimination as well as his intentional infliction of emotional distress claim.

HOW WOMEN SHOULD LOOK AND ACT

Three weeks later, a federal district court in Pennsylvania found that an openly gay female officer, who alleged that her female supervisor harassed her because her outward exhibition of sexual conduct did not conform to how a woman should look in the workplace or act in her private life, stated a plausible claim of a sexually hostile work environment.

HARASSMENT. The officer began working for the Philadelphia Prison System (PPS) in July 2001, eventually rising to the rank of correctional sergeant. She began to receive harassing comments from her female supervisor, allegedly focusing on her perceived lack of femininity, outward signs that she had engaged in sexual conduct, and her sexual orientation. For instance, on one occasion, the supervisor thought the employee had recently had sex due to her disheveled hair and a mark on her neck, which the supervisor believed was a "passion mark." The supervisor then shared her observations with other supervisors and coworkers, pointing out her "passion mark" to a captain and loudly asking if her hair was "messed up" because she "was getting some before she came to work."

Several weeks later, the supervisor began to scream at her in front of coworkers and other supervisors. During the rant, she referenced the officer's sexual preferences in a threatening manner. The supervisor also encouraged coworkers and subordinates to ignore and disobey the employee's orders and gave her a negative performance review. When she complained to a superior, she was told "if you don't like it, you can leave."

Although the employee filed an EEOC charge alleging gender bias and a hostile work environment, PPS investigated and found the employee's allegations against her supervisor to be unfounded. The supervisor then increased her harassment, allegedly telling the employee that she "could be messed with and nothing will happen." The employee was subsequently transferred to a different facility with poorer conditions, fewer responsibilities, and fewer hours.

NON-CONFORMANCE WITH GENDER STEREOTYPE. Denying dismissal of the employee's HWE claim, the court first rejected the employer's contention that she failed to show the alleged harassment was based on sex. Although sexual orientation is not a protected class under Title VII, discrimination on the basis of an employee's failure to conform to expected gender stereotypes is sex discrimination, the court stated. Here, the employee sufficiently alleged that her supervisor discriminated against her on the basis of her failure to conform to expected gender stereotypes.

Specifically, the supervisor's alleged harassment focused on her appearance - the signs of sexual conduct that the supervisor believed she exhibited. Thus, while the supervisor made harassing comments throughout 2011 and 2012 to other supervisors and coworkers, she did not make similar comments about women who conformed to her expectations of a female. Because the employee contended she was harassed due to her outwardly sexual conduct, which did not meet her supervisor's expectation of how a woman should look in the workplace or act in her private life, she sufficiently alleged that she suffered discrimination based on sex. The mere possibility that the harassment was instead motivated by her sexual orientation did not warrant dismissal at this stage of the litigation, the court stated.

PROHIBIT WORKPLACE HARASSMENT

While sexual orientation is not a protected class under Title VII, sexual harassment is not acceptable conduct. Workplace harassment can lead to financial liability for an employer, cause loss of productivity in the workplace, and lead to poor employee morale. Therefore, employers should do everything possible to prevent harassment from occurring.
COMPREHENSIVE POLICY. While having a comprehensive harassment policy and complaint and disciplinary procedures in place to prevent harassment is important, both supervisors and employees must be trained to understand what constitutes sexual harassment and how it can be prevented. Training can help ensure that employees learn to change their attitudes and behavior.
TRAINING. While sexual harassment and/or antidiscrimination training is not mandated by federal law, it may be required by state law. Training can achieve much of what the law requires that employers do to prevent and eliminate harassment, such as:
o ○ document that there is a policy against workplace harassment and that the policy was communicated;
o ○ underscore the employer's commitment;
o ○ make it easy for employees to know how to make complaints; and
o ○ provide proof to any third party that an employee (including a manager or a supervisor) was advised on a specific date, time and place about the organization's position on workplace harassment and about the various types of workplace harassment.
COMMUNICATION. It is essential to communicate and train new hires regarding the company's policy against harassment as early as orientation. Thereafter, retraining of all employees should occur on a regular basis. Stressing the importance of communicating the employer's policy to employees will indicate how serious the company is about providing its employees with a harassment- free workplace.

STATE LAWS. Finally, employers must keep in mind that while sexual orientation may not be a protected class under Title VII, many states have either included a prohibition on employment discrimination because of sexual orientation in their fair employment practices laws or have passed separate laws. Some state laws cover employers with as few as one employee. In addition, state tort actions may also be used to redress adverse action based on sexual orientation.

Spotlight

Noel Elfant
Elfant Uses Skill Sets to "Move from Skepticism to Endorsement"
DeLaval, Inc.
Noel Elfant thrives on professional variety. As vice president and general counsel for DeLaval, Inc., an Illinois-based manufacturer and distributor of equipment to dairy farmers, Elfant says the wide range of legal and business issues he thinks about and addresses keeps him intellectually engaged.
He has also found variety in the different industries in which he has worked. After starting his career at the large, prominent, Chicago-based law firm of McDermott Will & Emery, Elfant entered the in-house world as an associate general counsel for an international consumer products company, and then as associate GC for a midsized industrial engineering company. Before joining DeLaval, he served as the general counsel of Zebra Technologies, a manufacturer of, among other things, bar codes products.
Given this range of experience, you'd expect Elfant to be well-rounded, and he is, and so is his personality. He's polite yet assertive, witty yet serious, strongly opinionated yet genuinely humble. And, he has impressed those with whom he has worked.
"Based on my experience with numerous corporate counsels, Noel stands out as having both strong business acumen and impressive social/political skills," a consultant who worked with Elfant when he was at Zebra writes on the web site Linked-In. "He is shrewd without the parochial rigidity that traps many people in his profession. When dealing with the C-suite, Noel will be seen as a strategic business partner who 'gets it'."
Recently, the Directory of Corporate Counsel talked with Elfant about his career, the synergy between business people and lawyers, what he expects from outside counsel (which includes getting free legal advice), and other topics within the in-house arena. The following is that excerpted interview.
Directory of Corporate Counsel: Noel, why did you decide to go in-house after practicing at McDermott Will ?
Noel Elfant: In about 1988, a client of McDermott Will-Culligan, the water company-was looking for an associate from McDermott to come in-house several days a week to help with the general counsel's day-to-day affairs of the company. I sought after that job and was awarded the opportunity to go there Mondays, Wednesdays and Fridays for several months. That job offered me a look in-house, and what I really enjoyed about it was the incredible variety of legal issues that would come across the desk. And when that opportunity ended, I decided to seriously start looking for an in-house job.
DoCC: In addition to the variety of issues, what else did you like then, and what do you like now about serving as an attorney at a company?
NE: Well, I must say the variety is still what grabs me about being in-house - whether it's international issues, employment issues, sales and distribution, the Internet, intellectual property, dispute resolution, litigation, governance, and other aspects of the job, there's always something new every day.
I also really like, frankly, seeing a business achieve its objectives, and being an integral part of that. Growing up I always wanted to be a lawyer, mostly because I watched "Perry Mason" on TV. I thought litigation was where I wanted to go. But when I got to McDermott in the real estate and corporate securities department, I really started getting a hankering for business. And when you're in-house, you really become an integral part of the business. You must help a business achieve its goals, to help the team find its way from point A to point B, without tripping over the risks that necessarily accompany business decisions. There's always a gray area, always something you have to navigate. I get a kick out of helping the business do that.
I also enjoy the process of building trust within a business. I move from what they might view as a necessary evil to becoming an invited participant. I move from skepticism to endorsement.
DoCC: Conversely, Noel, what frustrates you about your job, or put another way, what do you see as a real challenge?
NE: What I think is frustrating is probably what's frustrating for everybody, and it's really the flip side of what I've said about variety. Every job, including being an in-house counsel, has the mundane, the repetitive. Whether it's preparing the material for the board meeting every quarter or the minutes that you have to write after those meetings or maintaining your files - there are things that you have to do that are boring. You can't escape that.
DoCC: You've been outspoken about the costs of outside counsel as have many other in-house attorneys. Could you talk a little bit about how the recession has changed what you can demand or at least request from the law firms your company retains?
NE: First of all, I've come to demand from outside counsel that I get legal services for free.
DoCC: [laughter]
NE: That sounds funny, but I want to explain what I mean. There are all sorts of things that I view as value-add that a law firm can provide and not charge me. The good firms do it. For example: training. A firm will look at that as an opportunity to come into our offices and train our business people on say customs compliance or international trade issues. And they know by training the business people, they're going to be more attuned to identifying issues that they need help with. Ultimately, it will come back to that law firm in billable hours.
Another example of where I want legal service for free - and this is especially true at DeLaval, where I'm the only lawyer in the department - is what I call water cooler talk. That is, I'd like to be able to have a 10-minute conversation to kick around ideas about a legal or business issue without getting a bill for those 10 minutes. I'm a firm believer in what trips up outside counsel is not the large bills because you budget for those large bills; the business expects the large bills. What trips them up is the nickel-and-diming that they sometimes do. When I get a bill for five or 10 minutes in a line that says "general discussion," it drives me mad. So I'm looking for free legal service in that regard as well.
And a third area that I'd like free legal service is if I come to my outside counsel with a pretty routine question that they've handled 100 times and they have a memo that they've written before on the subject, I expect to be given the redacted version of that memo and not be charged for it. Not all firms will do that. Some say it's their intellectual property and they charge for that. But I've had a lot of good firms say, "We just handled that with another client and were going to give you the benefit of that work product."
DoCC: Do you find that firms have done that more often during the recession?
NE: Oh, absolutely. When I was a general counsel at Zebra Technologies a few years ago and our business was suffering through a recession, we went to our outside counsel and said, "We're suffering and were still committed to you. You have to bear some of the burden. We're looking for 10% across-the-board discounts on your prior year's rate." And we got it with the firms that we have relationships with because they knew it was a two-way street here.
DoCC: Noel, what sort of advice would you give someone who planned to spend a few years as an in-house attorney in one industry and company and then move on to other industries and other companies, as you have done in your career?
NE: What I tell my staff and what I tell myself is first and foremost to be willing to live with a steep learning curve. And, when you're in-house, your goal with each project that you're on should be to broaden what I call the circle of influence within the corporation.
When you start a project your circle is the people with whom you are immediately working, and if you do a good job with them, you're going to get repeat business. And they're going to be talking about what a great job you did to other people, and your circle of influence is going to grow. Over time you want that circle to encompass most of upper management, most of middle management, most of everybody in the company, where everybody looks to you as the can-do person, the person who can help them achieve their objectives. That's what I meant earlier when I was talking about moving someone from skeptic to endorser.
Now, if you do those things, you will find as I did that moving from a large consumer products company to a midsized industrial engineering firm and then to a technology company and then to a company in the dairy industry, you'll find that it's pretty seamless. The legal work requires, in many respects, the same skill sets across industries.
DoCC: Of course you still need to learn about the different industries. How do you do that in the most efficient and comprehensive way?
NE: The very first thing you have to do is not think you know it all. You've got to come in with a great deal of humility. When I was hired at Zebra in 2003, I was the first general counsel the company had ever had. What I had to do coming into that position was work hard to engender the confidence and trust of the business, not only the business at all levels of management, but also all functions in all geographies, because this was an international business. And to do that you have to immediately humble yourself, if you don't know their business. If you want to help them achieve their business objectives, you not only have to understand what their objectives are but realize they have a great deal of knowledge about that business.
They understand the politics of the organization. They understand the industry, and it's quite disarming to them to see a lawyer come in and say, "Tell me what you want to achieve. Tell me how your business operates," and ask to participate in their staff meetings for the purpose of not being a compliance officer, but for the purpose of learning their business in order to help them. That's very disarming to the company and very empowering to the lawyer when you can learn that business.
On top of that, you should travel with the sales force, go out on sales calls. When I came to DeLaval, I spent a week in Wisconsin driving around in a truck with the salesmen going to dairy dealers and dairy men, walking the farms in my boots and jeans, and seeing how our equipment worked out in the field, and seeing what the dairyman liked and didn't like about our products. That's also very empowering; your reputation as someone who's willing to do that, first of all, spreads, and second of all, the actual knowledge that you gain is really quite helpful.
DoCC: I would imagine that it's also very interesting.
NE: Oh, it's very interesting. What I found really interesting about the dairy industry is that it's very high-tech and rather environmentally friendly. And our equipment is designed to help the dairyman practice sustainable farming and reduce energy consumption.
DoCC: What's keeping you busy right now, in addition to learning the business?
NE: Unfortunately, we've got a lot of carryover litigation that I would say is recession-generated. Milk prices were dropping and the farmers couldn't get money that they had been borrowing to pay for their capital investments. The recession pulled the rug out from under them, and they couldn't make their payments. So, many of them resorted to litigation, claiming that the farms suffered as a result of the equipment or that we promised that the equipment could do too much by way of assisting the farm in its profitability, for example. So we've been getting out from under some of this recessionary litigation.
DoCC: Noel, is there anything that you would like to add about being a general counsel?
NE: Well, I guess I'd like to say that I feel it's very important to be open-minded and curious, to ask a lot of questions and understand the context of the ramifications, both positive and negative, of business initiatives. I would advise in-house counsel to always deliver legal advice in that framework. Respect the business enough to manage their expectations, to get them budgets for when they have to go to outside counsel, and to avoid surprising them with legal bills. If you operate with those general guidelines, you're going to succeed. The way you know you're succeeding is if you're getting a lot of work and people are seeking you and your team out. Then you know you're being a positive influence on the business.
- Steven T. Taylor

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