Associational Gender Discrimination, Quirky Question # 118

Quirky Question # 118:

One of our male employees (call him Mr. X) recently complained that a supervisor at our company was sexually harassing Mr. X’s girlfriend, also one of our employees.  We advised him that we would investigate.  Apparently, however, our investigation was not moving sufficiently fast for him.  When Mr. X encountered the supervisor in routine work settings, he was confrontational and unpleasant.  We advised him he needed to tone it down and let our HR Department do its work, but that just seemed to anger him more.  The supervisor who had been accused of harassment informed us that he was getting very nervous about Mr. X’s antagonistic conduct.  Based on this escalating situation, we terminated Mr. X’s employment.He now has filed a charge for “associated discrimination” and retaliation.  Say what?  Can a significant other of our employees claim discrimination because of the way our company allegedly treats their girlfriend?

Dorsey’s Analysis:

Your question implicates a number of interesting issues.  First, are courts recognizing “associational discrimination” claims?  Second, have they done so in the context of gender discrimination claims?  Third, even if an associational discrimination claim were not recognized, would your employee have any other recourse?  Finally, should your company accept otherwise problematic behavior from the employee simply because he has raised discrimination issues with management?  Let’s examine each of these issues sequentially.

As I have discussed in other Blog Postings, courts have recognized associational discrimination claims.  (For other analyses of this subject, use the “View by Topic” bar and scroll down to Associational Discrimination and Inter-racial Marriage.)  Typically, these claims have arisen in the contexts of family relationships (spouses, parents/children, or other familial relationships).  They also have generally been limited to contexts involving inter-racial associations, e.g., inter-racial marriage, or close friendships between members of different races.

The fact pattern you described, where one employee believes that his discharge was caused by his objections to the alleged sexual harassment of his girlfriend, also one of your employees, is unusual.  Recently, however, the United States District Court for the Eastern District of Pennsylvania, examined a similar factual pattern in the case of Stezzi v. Aramark Sports, LLC, No. 07-5121 (July 30, 2009).  In Stezzi, the plaintiff brought claims under both Title VII and the Pennsylvania Human Rights Act, contending that his discharge was caused by his association with his girlfriend/co-worker who allegedly was a victim of sexual harassment.  The plaintiff complained to management about the way in which his girlfriend had been treated.  Thereafter, he claimed that he too was treated unfairly by the same person who had been harassing his girlfriend.

Stezzi brought claims for associational discrimination and retaliation.  These claims were presented to the District Court on summary judgment.  As to the associational discrimination claim, the federal court noted that although courts have recognized Title VII claims for associational discrimination, “such claims are typically predicated upon discrimination against a plaintiff because of race.”  The court further pointed out that “there is currently no precedential support to extend a Title VII claim to [gender-based claims].”  The court observed that the Third Circuit also had rejected an associational discrimination claim based on gender.

While the Stezzi court was unwilling to extend associational discrimination claims to the context of gender based discrimination, the court did not grant the defendant company’s summary judgment motion on the plaintiff’s retaliation claim.  This analysis bears upon the third issue referenced above – would your employee have any claims besides his associational discrimination claim?  As you noted in your fact description, your male employee reported the alleged sexual harassment of his girlfriend.  As you stated, he apparently concluded that the “investigation was not moving sufficiently fast for him.”

(Digressing on that point for a moment, you do need to move expeditiously once you have received a complaint of sexual harassment.  Courts have little tolerance for companies that fail to investigate claims of harassment or that fail to take appropriate remedial action when warranted.  You do not describe in your question how much time your company took with its investigation, whether you determined that your female employee had, in fact, been harassed, or whether disciplinary action was warranted.  But, I emphasize the obvious to state that you do need to be sensitive to the issues surrounding a harassment complaint and the speed with which you initiate and complete your investigation.)

Returning to the issue of retaliation, it is possible that your male employee, while unlikely to persuade a court to recognize an associational discrimination claim based upon his gender, may well have a retaliation claim that could survive a motion for summary judgment.  He formally complained about the way a manager was treating one of your female employees and the company terminated his employment soon thereafter.

This leads to the fourth issue presented by your fact pattern – what conduct did your employee engage in that led to his discharge?  You suggested that your employee was “confrontational” and “unpleasant” and that when you advised him that he needed to modify his behavior, that only “angered him more.”  As you described, the supervisor who allegedly engaged in the initial harassment informed your company that he was becoming nervous about this employee’s behavior.  This fact pattern implicates two important issues.

First, simply because there is temporal proximity between a complaint about discrimination and a subsequent discharge does not mean there is a causal relationship between these two events.  Your company does not have to accept otherwise unacceptable behavior merely because the employee engaging in the unacceptable conduct has made a claim of discrimination.  You will have to demonstrate to the factfinder (whether judge or jury) that your disciplinary actions were based on intervening events, but if you document the problems you are encountering, and counsel the employee regarding the ramifications of continued misconduct, you should not be reticent to discipline your employee (including discharge if necessary), if the problematic behaviors continue.  In your fact pattern, it appears that this was your conclusion.  Now, you will need to explain that decision persuasively to others.

Second, your observation that the alleged harasser was becoming “nervous” about the reactions and behavior of the employee who complained suggests also raises a red flag.  Unfortunately, in contexts like this, there is always an under-current risk of workplace violence.  You do not want to ignore this possibility, even if the likelihood is slim.  Ensure that you explore the relevant issues so you can realistically evaluate this risk.  The bottom line is that absent a judge who is willing to expand the associational discrimination analyses into a new area, you likely need not worry about a claim for gender-based associational discrimination.  But, once a formal report of discrimination, including sexual harassment, has been made, the complainant may be able to assert claims of retaliation if he later suffers adverse job consequences.  Move cautiously once a formal (or informal) complaint has been made, but don’t be reluctant to take appropriate disciplianary action if intervening events warrant it.

Dorsey & Whitney

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