Labor & Employment Law Daily Manager calling employee’s hands ‘disgusting’ supports her disability, sex bias claims
Wednesday, July 17, 2019

Manager calling employee’s hands ‘disgusting’ supports her disability, sex bias claims

By Kathleen Kapusta, J.D.

The employee’s Title VII and ADA claims both centered on the allegation she was fired because of the condition and appearance of her hands.

An employee who claimed she was fired because of the appearance of her hands—nerve damage had caused them to atrophy—and because she did not conform to her supervisor’s expectations for how a woman should look can proceed to trial on her ADA and Title VII claims. Denying her employer’s motion for summary judgment, the federal court in Indiana found her supervisor’s alleged reference to her hands as “disgusting” and his purported change in the way he treated her immediately afterward could support an inference that discrimination, not her store’s poor “shrink rate,” was the true cause of her discharge (Friday v. Magnifique Parfumes and Cosmetics, Inc., July 11, 2019, DeGuilio, J.).

Two years after she began working as an assistant manager for Perfumania, a retail store selling perfumes and colognes, the employee was promoted to store manager. As a result of nerve damage she had suffered years earlier in a car accident, she had limited mobility in her wrists and her fingers did not all function correctly, causing her to perform some tasks, such as spraying a perfume bottle, differently.

Shrink rate. In measuring the performance of its stores, Perfumania considered “shrink rate,” which tracks the amount of product lost or stolen from the store. If a store has a shrink rate of 0.10% or less, the store manager receives a bonus. If the rate is over 0.35%, the store can be placed in the “target store program,” during which inventory is counted more frequently and employees are required to improve the shrink rate. Employees’ commissions can also be reduced when the store is on target status. To measure the shrink rate, stores conduct full inventory counts at the beginning of the year.

When the employee took over the store in September 2013, it had been on target status for several years and her predecessor had received a written warning for high shrink rates. At 0.33%, the total shrink rate for 2013 increased slightly over the prior year and the store was placed on target status for monitoring purposes only.

Disgusting. A July 2014 mid-year inventory count revealed a 0.7% rate but a second inventory was conducted in October when it was discovered that some products had been moved off the sales floor, placed in a box in the back room, and omitted from the count. During the year-end inventory count for 2014, the district manager, who came to help, purportedly noticed the employee’s hands for the first time, looked at her “strangely” while she was moving product and asked her what was wrong with her. When she explained about the nerve damage, he allegedly responded that her hands were “disgusting.” From that point forward, the employee claimed, he treated her like she was an inferior person.

Fired. When the shrink rate for 2015 increased substantially—to 0.496%—the employee, after learning which products had been reported missing, emailed the district manager to explain that some of the “missing” products had not scanned properly and other items had been sent back because they were shipped with improper bar codes. In response, the district manager fired the employee for the poor shrink rate.

Disability discrimination. At issue in the employee’s ADA claim was whether a jury could infer she was fired because of her disability. Finding that it could, the court noted her testimony that during the inventory count, the district manager looked at her as if he was looking at something gross, asked her what was wrong with her, and expressed disgust when she told him. “Disgust,” said the court, “is a strong word, and that comment and [his] reaction would permit a jury to find that [he] viewed her condition with disfavor.”

Inferior. She also testified that he stopped communicating with her, even regarding day-to-day issues, failed to come to her store when he was nearby, and stopped hugging her when he did visit. He also purportedly began looking at her and treating her in a way that conveyed she “was just a very inferior person.”

Pretext. The employee argued that the district manager sabotaged the shrink rate count after he noticed her hands. But, the court pointed out, regardless of whether he was responsible for the results, he expressed no interest in their accuracy once she gave him specific reasons to believe the results were flawed, including failing to respond to her emails and phone calls. If the district manager was honestly mistaken in believing the shrink rate was high, that would not support a finding of pretext, observed the court. But his indifference to whether the shrink rate was accurate and his failure to respond to her communications could call into question whether he was actually concerned with whether the shrink rate was high.

That was particularly so, said the court, when compared to how he treated the July 2014 mid-year inventory count, which showed a shrink rate of 0.7%. Although the store was placed on target status, it was for monitoring purposes only and when it was discovered that the results were not accurate, a new count was conducted and the store was moved off target status.

Own comparator. Pointing out that in a sense the employee was her own comparator, the court explained that when the shrink rate came in unusually high before the district manager was aware of her disability, he only placed the store on target status and then held a new inventory to resolve the discrepancy; when the shrink rate came in unusually high afterwards, he ignored her concerns about the inaccuracy of the count and instead fired her. This departure from past practice, the court reasoned, could support an inference that the shrink rate was pretextual, and that the intervening event—his becoming aware of the employee’s disability—was responsible for the difference.

Sex discrimination. For many of the same reasons, a jury could also find the employee was fired because of her sex. Noting again that a jury could find she was fired because of the condition or appearance of her hands, the court observed that the question was whether a jury could infer that her hands’ appearance caused her firing because that meant she did not conform to the stereotypes for her sex. And here, the court pointed to evidence that the district manager often remarked on the applicants’ looks and told the employee he wanted to hire attractive people, especially women, for sales purposes. In addition, he purportedly previously told the employee she was attractive but after noticing her hands and calling them “disgusting”—a direct reference to their appearance—he treated her differently, leading to her firing. A jury could thus find that he fired the employee because he no longer thought she looked like he believed a woman should look.

Preference for attractiveness. And while a jury could agree with Perfumania that this was not a matter of sex discrimination but merely a preference for attractiveness, “the evidence would not compel a jury to slice the issue that thin,” the court wrote, noting that a jury could conclude that the district manager valued attractiveness more in females and that he fired the employee because she no longer fit the stereotypical appearance for her sex.

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