11th Circuit Finds Harassment Claims not Sufficiently Offensive

The panel ruled that the two male plaintiffs do not have a sexual harassment claim against the company despite evidence that a male manager made comments suggesting he was sexually attracted to them and touched them in arguably inappropriate ways, The American Lawyer reports. Judge Charles R. Wilson wrote that a number of the complained-of incidents involved what many would consider innocent behavior that is not offensive to a reasonable person.

Wilson said, for example, that the manager telling one worker that he liked how he dressed, under most circumstances, is not highly objectionable and could best be characterized as a compliment. “That [the appellates] may have subjectively interpreted these comments as sexually offensive does not change the analysis under the objective component,” Wilson wrote, according to The American Lawyer.

Wilson also contended that “[f]lirtation is a part of ordinary socializing in the workplace” and doesn’t constitute discrimination, and the fact that the plaintiffs may be subjectively more uncomfortable because a presumably gay man made the flirtatious comments “does not factor into the objective component of the analysis.”

However, a visiting judge from Florida, in her dissent of the majority opinion, complained that the majority incorrectly viewed in isolation various comments allegedly made by the manager, and that context matters. “The conduct in this case goes well beyond ‘ordinary socializing in the workplace,'” she wrote, according to The American Lawyer. “The Appellants found [the manager’s] conduct offensive, and several of their peers in management testified that they found the conduct to be offensive. While the law utilizes an objective standard to evaluate hostile work environment claims, this standard is justifiable only if it accurately reflects real-life workplace conditions and expectations. When the objective ‘reasonable person’ standard becomes so divorced from reality that a reasonable person can be unreasonably subjected to discriminatory conduct under the case law, the courts cease to give effect to the statutory language and the remedial purpose of Title VII.”

The panel moved forward the plaintiffs’ claims of retaliation to be decided by a jury.

The plaintiffs contend that a regional human resources manager began making inappropriate sexual overtures to them within a month of being transferred to their region in March 2005, including comments he “could not stop thinking about” one of the employees and allegedly asking if he wore “boxers or briefs or nothing” and whether he shaved his body, among other things.

In addition, the plaintiffs contend that during in-person meetings the manager massaged their necks and shoulders, played with their hair, and hugged them in front of other managers.

In December 2005, after they had complained to various managers about the manager’s actions, the two employees were fired from Home Depot. The company claims the harassment stopped as soon as the plaintiffs formally complained and that they were terminated for violating company policy related to discounting.