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Avoiding the (Albeit Rare) Claim of Male Sex Discrimination in the Workplace

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By Andrew Pettijohn

Employment Practices Liability Newsletter Winter 2019
February 2019

Although the vast majority of workplace sex discrimination claims in America are still filed by women (83% in 2017), in recent years an increasing number of claims have been brought by male employees as well. Despite the overall number of such claims still being comparatively slight, the Equal Employment Opportunity Commission (EEOC) notably sought to litigate a higher number of sex discrimination claims on behalf of men in 2018 as compared to 2017 (a 50% increase over the previous year).  As such, prudent employers should be aware that workplace sex discrimination claims in general are on the rise for both genders and correspondingly take appropriate measures to ensure their policies and procedures are designed to avoid potential sex discrimination claims from male employees as well. 

Title VII of the Civil Rights Act of 1964 generally prohibits employers from discriminating against employees on the basis of sex, among other things.[1]Most states have likewise adopted similar laws to offer additional protections against employment-related discrimination.[2]While exceptions to these statutes do exist, they are rare and generally require an actual Bona Fide Occupational Qualification (“BFOQ”) for performing the job, which means the otherwise discriminatory requirement is necessary to the normal operation of the employer’s business. Notably, however, this exception has been narrowly construed.[3] 

Customer preferences and stereotypic notions concerning the capabilities of persons of a particular sex, however, do not warrant application of the BFOQ exception. For example, as recent as May 2018, a child-care organization was sued for denying a male applicant consideration for a position in its motherhood maternity program.[4]The position required working with pregnant women and changing their infants’ diapers, among other maternity assistance duties. The employer expressed concern that the ladies in the maternity home may be uncomfortable with males “due to their hormonal changes.” 

The Equal Employment Opportunity Commission filed suit on behalf of the denied male applicant and the prospective employer settled prior to trial, paying both compensatory and punitive damages to the applicant. As part of the settlement, the organization was also required to include a statement regarding equal opportunity in all its job advertisements and applications, report to the EEOC on its hiring practices for two years, deliver an annual message to its workforce regarding the importance of equal opportunity, and provide annual training from an expert on sex discrimination.   

That 2018 federal case should serve as a cautionary tale for all employers concerning the viability of a sex discrimination claim brought by a male employee/applicant.  Accordingly, HR departments should be cognizant of the actions they can take to reduce the likelihood of embarrassing and expensive discrimination claims brought by employees of both genders. As will be evident, the approaches suggested below are virtually identical to those that should already have been implemented by employers to guard against workplace discrimination claims from female employees:

1. Employ Neutral Application Processes 

Male applicants who file suit after not being hired often point to the interview process as evidence of gender discrimination. For instance, male claimants who were asked questions during their interview process about working with “difficult” females and female supervisors have been able to argue that since female applicants were not asked similar questions, such questioning evidenced gender discrimination when they were not hired. If possible, the decision whether or not to hire an applicant should be made by more than one individual and such a panel should be comprised of individuals from both genders. 

2. Avoid Hiring One Gender Disproportionately

A disproportionate number of employees of one gender, no matter the basis, can possibly lead to an inference of gender discrimination. A recent case out of California involved a police communications center that hired approximately two males over a twenty-year period.[5]Dispatch and call centers are fields traditionally dominated by females.[6]This particular center received approximately two times as many female applicants per year than it did male; however, there were hundreds of applicants of both genders every year. Thus, when a male applicant was denied employment, whether accurate or not, the jury in his lawsuit was able to infer gender discrimination based in part on the disproportionate pattern of hiring over two decades. 

3. Document Extensively and Carefully 

More often than not, there is a legitimate non-discriminatory reason for an employer’s decision to terminate an employeeor choose not to hire an applicant. However, a common mistake among employers is failing to produce and/or keep real-time documentation to support those decisions. In the absence of such documentation, an inference of discrimination may arise based off of nothing more than the claimant’s own testimony of the interaction and the surrounding circumstances. 

It is certainly not uncommon to hear that superiors have counseled their subordinate employees about workplace conduct or transgressions but nonetheless failed to document the content of those conversations. Employers should be aware that, in the absence of documentation to show a contemporaneous account of what was discussed with the employee, the reasoning behind the disciplinary action can devolve into a he-said-she-said scenario, left ultimately to the discretion of a jury. 

Likewise, employee evaluations should be honest and include all concerns with performance. Terminated employees frequently refer to the absence of critique or negative feedback on evaluation forms as evidence that their performance was satisfactory and not the real reason behind whatever disciplinary action was taken. For interviews, employers should be cognizant to refrain from using adjectives and descriptions typically characteristic of gender so as to avoid the possibility of creating an inference of discrimination. As unique to men, terms such as “bully,” “rough,” “manly,” and “macho” should be avoided. Also, prospective employers should avoid commenting on physical attributes such as an applicant’s “deep voice,” or “physically imposing” stature. Such descriptions can likewise be used to suggest prejudice. 

Conclusion 

It is axiomatic that sexual discrimination lawsuits can be devastating to any company regardless of the outcome. Whether or not the claim is meritless, not only is its defense expensive and time-consuming, the embarrassment of a public scandal and the hidden cost of lost goodwill with consumers can be potentially crippling. Thus, it is important that companies review every detail of their applicable policies and procedures with a competent attorney experienced in not only formulating compliant procedures, but also actually defending those procedures against employment discrimination claims.

[1]Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et seq (1964).

[2]Although state courts frequently look to federal statutes and case law for interpretation if the state statute is essentially identical to Title VII. 

[3]The employer must prove that only individuals of one sex can perform the duties of the job in a safe and efficient manner, and that the essence of the business would be undermined by not hiring exclusively members of a given class. For examples, the sex BFOQ has been acknowledged for female prison guards, certain acting roles, and models for gender-specific clothing.

[4]See EEOC v. The Children’s Home Inc., 2018 Jury Verdicts Lexis 13497 (U.S. District Court Middle District of Florida, Tampa Division) (May 1, 2018).

[5]See Michael W. Naylor v. City of Burbank and Does 1-100; 2015 Jury Verdicts Lexis 12195 (Superior Court of Lost Angeles County, Los Angeles) (October 23, 2015)

[6]Data from the Department of Labor and 2016 U.S. Census indicate other female-dominated fields include social and community work, elementary teaching, nursing, fabric and apparel, opticians, childcare, public relations, insurance claims and underwriting, and specific service positions such as restaurant hosting and waiting, flight attendants, hairdressers, among others.