- The slights suffered by a former HR pro — being excluded from lunches and not greeted in the morning by a company executive — weren't enough to support her claims of sex discrimination and retaliation, the U.S. District Court for the Middle District of Tennessee ruled (Hasting v. First Community Mortgage, No. 17-cv-00989 (M.D. Tenn. July 31, 2019)).
- Marie Hasting, formerly the HR director for First Community Mortgage, sued the lender after her resignation, claiming gender and national origin discrimination and retaliation. She felt that the company's CEO treated her differently than other employees by walking past her without saying "good morning" and attending lunches with male employees but not her. Hasting said the company president told her about the "penis club" – the name allegedly given by a female employee to the male-only manager group that went to lunch together, had meetings, and socialized during work hours. While Hasting alleged at one point that the group made company decisions without women present, she also admitted that the group was not sanctioned by the employer and that she did not know whether company business was discussed when they met.
- The district court ruled for the employer on summary judgment. The court said the actions Hasting complained about did not rise to the level of an adverse employment action necessary to prove sex discrimination. The court also said that Title VII of the Civil Rights Act of 1964 isn't "a civility code" for the workplace and quoted the U.S. Supreme Court's statement that "petty slights, minor annoyances and simple lack of good manners" are not legally actionable.
A supervisor's refusal to invite an employee to lunch is normally a trivial and non-actionable petty slight, the U.S. Equal Employment Opportunity Commission (EEOC) has noted in an enforcement guidance. However, excluding an employee from a weekly training lunch that contributes to professional advancement can be retaliation.
The EEOC provides the example of a federal agency employee alleging that she was denied a promotion by her supervisor because of her sex. One week later, her supervisor invited a few other employees out to lunch. She believed that her supervisor excluded her from lunch because of her complaint. Even if the supervisor chose not to invite the employee because of her complaint, this would not constitute unlawful retaliation because it is not reasonably likely to deter protected activity.
By contrast, if the supervisor invited all employees in the unit to regular weekly lunches, but excluded the employee because she filed the sex discrimination complaint, this might constitute unlawful retaliation since it could reasonably deter her or others from engaging in protected activity.
But this case is a good reminder that even conduct that doesn't officially rise to the level of illegal bias or retaliation can be problematic and damaging to organizational culture. Many employers struggle with inclusion and sensitivity. Experts have previously told HR Dive that businesses must deliberately create an environment where differences, talents and perspectives are maximized in order to create high-performing teams.