Labor & Employment Law Daily Tennessee employee harassed after he disclosed sexual orientation has Title VII, tort claims tossed (1)
Wednesday, March 6, 2019

Tennessee employee harassed after he disclosed sexual orientation has Title VII, tort claims tossed

By Lorene D. Park, J.D.

Discipline of gay employee, “gifts” of pink nail polish and sunglasses, and notes stating he will go to hell, could not support his harassment claim because Title VII doesn’t prohibit sexual orientation discrimination; nor could the actions support an emotional distress claim.

After he disclosed he is gay, an employee was allegedly issued unwarranted discipline, had post-its left on his desk quoting the Bible and saying he was going to hell, and was given “gifts” of pink nail polish, bath bombs, and pink sunglasses. But none of this supported his sex-based discrimination and harassment claims, held a federal court in Tennessee, because in the Sixth Circuit, sexual orientation discrimination is not prohibited by Title VII. Nor was the alleged harassment outrageous enough for an intentional infliction of emotional distress claim. Summary judgment was also granted against his race-based claims because he lacked comparator or other evidence of disparate treatment and a few racist comments were not enough to create a hostile environment (Kilpatrick v. HCA Human Resources, LLC, March 1, 2019, Campbell, W., Jr.).

Discloses he is gay. The employee, hired to be s a recruitment administrator in November 2014, filed this suit based on events that took place during the three months prior to his termination in March 2016. In December 2015, he was called into a meeting with the VP of Labor Relations, who told him that two sexual harassment complaints had been lodged against him through the company’s anonymous hotline. In defense, he disclosed that he is homosexual, something that no one in the office yet knew and a fact that the VP then shared with others.

Given pink gifts and Bible verses. Thereafter, the employee was treated differently. He was subjected to discipline that was unwarranted because it reflected past problems that had been corrected and had not been written up at the time. He was also subjected to harassing comments, notes, “gifts,” and other negative treatment that he attributes to the disclosure of his sexual orientation. For example, he received a Christmas gift of pink nail polish, a nail file, and bath bombs and, on a separate occasion, a pair of pink sunglasses were left on his desk. He also had at least four post-it notes with Bible verses telling him he was going to hell left on his desk. He was also moved to a location away from his team and near a storage area.

Termination. The employee was fired in March 2016, after the employer concluded he had failed to provide accurate information on his tuition assistance application. He filed an EEOC charge that same month.

No sex discrimination. Granting summary judgment for the employer, the court disposed of the sex discrimination and sex-based hostile work environment claims because the employee claimed that the discriminatory treatment and harassment were based on his sexual orientation. Under Sixth Circuit precedent, sexual orientation does not form a basis for a claim of sex discrimination under Title VII.

The employee did not raise a sex stereotyping claim because he didn’t claim he failed to conform to traditional gender stereotypes in any observable way. To the contrary, no one at work knew he was gay until he disclosed his sexual orientation to defend against sexual harassment claims.

No race discrimination. To support race-based discrimination and hostile environment claims, the employee gave examples of various statements by supervisors, including referring to him as “you people” and one saying to him and his black coworker that “I’m sure you guys know how to fry some chicken.” And an HR rep once commented, “What a fancy car. I need to be doing what you do on the side.” Based on these comments, he claims the way his tuition assistance application was treated was racially motivated and that he was fired because of his race.

Finding he failed to make out a prima facie case of discrimination, the court explained that he provided no evidence he was replaced by someone outside his protected class or was treated worse than similarly situated employees.

Also tossing his hostile work environment claim, the court found that the totality of race-based harassment was not sufficiently severe or pervasive to be actionable under Title VII.

Claims based on firing by subsequent employer. After he filed an EEOC charge against HCA, the employee got a job at Brookdale Senior Living. That ended eight months later, though, when he was fired because of an “anonymous” phone call drawing attention to an alleged discrepancy in his employment application regarding the date he left his prior employment.

Granting summary judgment against his Title VII retaliation claim, the court noted that the employee never learned who made the anonymous phone call, where they worked, or why they made the call. Thus, there was no evidence that the employer originated the anonymous call in retaliation for his EEOC charge ten months earlier. For the same reason, the employee’ tortious interference claim failed as well.

Emotional distress claim fails too. The employee’s intentional infliction of emotional distress claim was based on: (1) the employer trying to discipline him for sexual harassment; (2) someone leaving pink sunglasses, nail polish, and Bible versus on his desk; (3) and someone calling to interfere with his new job. He claimed that, as a result of these actions, he had to see a therapist and takes anti-depressant medication. But in the court’s view, none of the alleged conduct reached the level of outrageousness required to support this state-law tort claim.

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