It has been said that that if you put both feet in your mouth at the same time you wont have a leg to stand on.
Truer words were never spoken for one unhappy employer when a federal appeals court overturned the dismissal of a sex discrimination lawsuit because of some ill-chosen words that allegedly were spoken by a manager.
Snatching Defeat From the Jaws of Victory
When Donna Morrow was fired from her job at Zale Corp., she sued the company for sex discrimination under Title VII of the Federal Civil Rights Act of 1964. When all of the depositions and other pre-trial discovery ended, the company brought a motion for summary judgment (early dismissal), which the trial judge granted.
Morrow appealed to the Eighth Circuit Court of Appeals, arguing that the lower court improperly minimized the degree to which one particular manager, John Dougherty, influenced the decision to terminate her. Morrow pointed to evidence that she claimed showed that Dougherty participated in the investigation leading up to her termination, and also that he actually was the person who informed her of the termination decision.
If Dougherty was involved in the actual decision to terminate her, Morrow claimed that she should have been allowed to present evidence that he was biased against her because of her gender. This would create an inference an illegal motive – sex discrimination – for the company’s decision to let her go. Morrow’s evidence of Dougherty’s gender bias included the following statements that she attributed to him:
– She should step down because she was “a female” and “a single mom”;
– It is a “man’s world”; and
– She needed to “man up.”
Not Just Sticks and Stones
The Eighth Circuit Court of Appeals agreed with Morrow, noting that if Dougherty actually was a decision-maker in the matter, these remarks could be viewed as direct evidence of an illegally discriminatory motive for the termination. Therefore, Morrow should not have been denied the chance to present her evidence of these statements at a trial. The Appeals Court ruled that the matter should be returned to the trial judge so that Morrow could have her day in court.
This decision does not mean that the company discriminated against Morrow or that she is likely to win the case when all is said and done. It simply means that there was enough evidence of a possible wrongful motive that it was premature to dismiss the case at such an early stage.
Even so, this decision sends a powerful message to employers. The company put in a great deal of time and effort investigating the matter and making the termination decision. They incurred significant expense in defending their actions and pursuing dismissal of the claims. All of this was undone, however, simply because one manager who maybe was involved in the termination just maybe made some inappropriate gender-related remarks. This was enough to persuade a federal appeals court that an employee was entitled to her shot at proving that the whole termination process was tainted.
Bottom Line
No matter how much effort is put into managing an employee’s job performance constructively and fairly, that employee is going to pick up on any words that might reflect a bias based on gender, race or any other legally protected classification. Even spoken in jest or taken out of context, such remarks have the potential to be viewed as evidence of a manager’s true feelings about the employee.
Some might say that employees should be less sensitive or that this is political correctness going too far. However, as long as we keep reading decisions like this one, directing managers to refrain from such talk is still good business.