Sexual orientation and reverse discrimination

published in Oklahoma Employment Law Letter | August 1, 2012

By Tony G. Puckett

Not all discrimination claims are created equal. To prove reverse sexual discrimination against a male employee requires greater proof than gender discrimination claims filed by women. The United States Circuit Court of Appeals for the Tenth Circuit reiterated that point in a recent case. The case highlights judicial deference to an employer’s business judgment in reductions in force (RIFs) and how state law can provide broader claims than federal law.

Anonymous letters complain of mistreatment

Geoffrey Larson, a male manager for United Airlines, was furloughed as part of a broad corporate restructuring program in 2008. He sued under Title VII of the Civil Rights Act of 1964 and Colorado state law, alleging the airline furloughed him because of his gender in retaliation for workplace complaints he’d made and his sexual orientation. The sexual orientation claim was filed under Colorado state law. Larson is gay and had identified himself as such during his employment.

Larson believed that two anonymous letters found in the workplace were directed at him. The first letter, which was left in the break room, alleged that many of the supervisors are homosexual and that a female supervisor received preferential treatment because of her relationship to a supervisor. The airline investigated the letter and issued a response to employees stating that the letter was malicious, inappropriate, and unacceptable in light of the airline’s zero-tolerance harassment policy. The author of the letter was never identified.

The second anonymous letter was sent to management a short time later and contended that employees turned against each other. The letter stated that no one should care about an employee’s sexual preference because it has nothing to do with the job. The letter didn’t mention Larson specifically. Nevertheless, he complained to his manager that he felt intimidated and harassed by the letter. Management didn’t investigate the letter because it didn’t believe it was derogatory and Larson’s complaint was judged to be an overreaction.

Between the time that the first and second anonymous letters were received, another letter signed by 65 employees was sent to the managers above Larson. The letter complained about Larson’s management style based on him skipping briefings and observing employees via video from his office instead of working with them directly. Partly because of the letter, Larson was laterally transferred to a different management position.

As part of Larson’s new responsibilities, he undertook the task of conducting a bidding process for union employee shifts. His manager warned him to make the bidding process go smoothly because mistakes had been made in the past. However, Larson used an incorrect seniority list, and United had to redo the process and delay shift bidding.

Airline’s RIF

In the summer of 2008, United and other airlines faced serious financial pressures as a result of rising costs. United responded with a national RIF that resulted in more than 1,000 employees being furloughed.

The employer determined that five of the 18 employees at Larson’s level would be furloughed and identified which employees had the lowest performance rankings. Four employees left voluntarily, which left only one position to be furloughed. United completed performance reviews of each manager, with rankings based on work experience, skills in meeting job requirements, and leading people. Larson agreed with his manager’s review of him, stating that the evaluation was “accurate” and he didn’t disagree with it.

Based on the evaluation, Larson received the lowest score of the managers at his level and was furloughed. He was allowed to take a lower-level position because he was covered by a collective bargaining agreement (CBA), but he was later furloughed from that position because of lack of seniority. Larson sued for discrimination and retaliation.

Making a reverse discrimination claim stick

Larson’s discrimination claim was based on reverse discrimination as a male employee. According to the court, in a reverse discrimination claim, “it is not enough … for [an employee] merely to allege that he was a qualified man who was treated differently than a similarly situated female.” Rather, he must present “evidence sufficient to support a reasonable inference that, but for his status as a man, the challenged decision would not have occurred.”

The “but for” standard is higher than the standard in a typical discrimination case. “But for” means an employee must show that his gender was the reason he was furloughed or discharged. The standard in typical discrimination cases is evidence showing preferential treatment that provides “an inference of discrimination.” Gender can be one of several factors for the adverse employment action.

The court found that Larson failed to meet the “but for” standard. Significant to the court was the fact that of the 13 managers retained, only one is female, and the manager who evaluated Larson is male. Larson admitted that none of the managers who participated in deciding who would be furloughed made any disparaging remarks based on gender. Significantly, Larson was replaced by a male employee. The court stated that “these facts provide no bases that [United] discriminated against [Larson] on the basis of his sex.”

In an attempt to revive his reverse discrimination claim, Larson then argued that two women received preferential treatment because they were promoted and not furloughed. United argued that even if that was differential treatment, it was insufficient to establish a case of reverse discrimination based on gender. The court agreed, stating that Larson never applied for the higher position, so the women weren’t similarly situated for purposes of a comparison that would show differential treatment.

Larson also contended that he had conversations with one of the women about her evaluation score being one point lower than his. However, the actual scores didn’t support his testimony. The evaluation scores provided by United showed that Larson’s score was lower than the score of the woman he referenced. Thus, the court rejected Larson’s evidence as inadmissible hearsay, and he failed to provide any evidence other than his own testimony on the issue.

The court determined Larson’s furlough wasn’t a pretext for reverse discrimination, and Larson’s conjecture about how the evaluations were completed couldn’t overcome the conclusion that United was exercising its proper business judgment. An employer may choose to conduct a RIF “according to its preferred criteria of performance,” and the court will not disturb that exercise of business judgment.

As for Larson’s retaliation claim, Title VII doesn’t protect against sexual orientation discrimination, and opposition to an employer’s conduct is protected under Title VII’s retaliation provision only if the opposition is to an employment practice made unlawful by the Act. Since both anonymous letters referred to sexual orientation and not sex discrimination, neither supported Larson’s retaliation claim.

Incidentally, Larson could state a claim for sexual orientation discrimination and retaliation under Colorado state law. However, the court found that the facts he alleged didn’t amount to discrimination or retaliation. In addition to his other evidence, Larson testified that on four occasions, his manager made crude remarks that referenced the sexual orientation of Larson and a senator. The court found the comments “distasteful” but couldn’t find any link between the remarks and the furlough decision.

Further, Larson didn’t complain about the comments during his employment. That fact precluded the comments from being a basis for his state-law retaliation claim. Finally, Larson admitted he never thought his manager didn’t want him on the team because he is male or because of his sexual orientation. Larson v. United Airlines, 2012 WL 135814 (10th Cir., 2012).

Bottom line

This case provides two useful lessons. First, “reverse” discrimination claims, although recognized under federal employment law, are much tougher to prove. The higher standard for a male gender discrimination claim is based on the fact that historically, men have not been discriminated against in the workplace on the basis of gender—women have been. However, Title VII is written in neutral terms, so reverse discrimination claims can be brought, but they are treated with some skepticism by the courts. Second, while federal law still does not prohibit discrimination on the basis of sexual orientation, state law may, so be aware of the state employment laws that may apply to your operations.