- An employee who claimed he was told to act more masculine to get promoted failed to show he was discriminated against based on sex, a federal appeals court held (Boshaw v. Midland Brewing Company, No. 21-1365 (6th Cir. April 26, 2022)).
- The employee worked for a Michigan brewery and pub. His supervisor allegedly said that before she could recommend him for a leadership role, he would have to "kind of just act a little more masculine," remove visible piercings and change his appearance and hairstyle. She also allegedly told him to remove his Facebook status, which indicated he was dating a man. Per her instructions, he changed his hairstyle and temporarily deleted his Facebook status. But he didn't change how he acted or otherwise hide his sexual orientation. He was then promoted three times within eight months, ultimately to front-of-the-house operations manager, the second-highest position in the restaurant. In this last position, he was reprimanded several times and eventually fired after missing a mandatory meeting and missing a shift. He sued the brewery, alleging sex discrimination because it delayed or denied his promotion based on his sexual orientation or sex stereotypes. He also alleged that he was reprimanded and fired in retaliation for complaining to the owner about the supervisor's statements.
- A federal district court ruled in the brewer's favor, and the 6th U.S. Circuit Court of Appeals upheld the ruling. The discrimination claim failed because the employee couldn't show he suffered an adverse action because he is gay or because of sex stereotypes, the 6th Circuit said. Instead, after he was told to act more masculine, he quickly rose to a managerial position. His retaliation claim also failed because there was no evidence he was disciplined and then fired because he complained about his supervisor's statements, the court said.
The U.S. Supreme Court determined in 2020 that Title VII's prohibition against sex discrimination includes prohibiting discrimination on the basis of an employee's sexual orientation or gender identity (Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020)), holding that "an employer who discriminates [against gay or transgender employees] inescapably intends to rely on sex in its decisionmaking," Justice Neil Gorsuch wrote for the court.
Additionally, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the high court indicated that sex discrimination also includes discrimination based on the failure to conform to traditional sex stereotypes.
The brewery employee unsuccessfully argued both theories of sex discrimination, although the court noted that the supervisor's alleged statements about acting more masculine and hiding his sexual orientation on social media could have been evidence of discrimination. But even if they were, the employee "still needed to come forward with evidence that he suffered a material adverse employment action because of the unlawful discrimination," it said. "Because he could not do so, whether [the supervisor's] statements are direct evidence ultimately is not dispositive."
The employee also failed to support his retaliation claim because the employer's later reprimands and criticisms were based on legitimate grounds, the 6th Circuit said. Employers often defeat Title VII discrimination claims by introducing ample evidence to support the reasoning behind an adverse action. In a recent example, a Toledo hospital prevailed on a former employee's race discrimination and retaliation claim by providing evidence that she violated several company policies within a short period.