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U.S. Master™ Wage-Hour Guide, 2009 Edition 
Presents a first approach to the broad and complex controls under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and other statutes regulating employee wages and hours.
A male elections official who alleged that he was constructively discharged after being charged with sexual harassment raised triable issues of sex bias under a sex stereotyping theory, held the Second Circuit Court of Appeals, reviving his Title VII claim. His evidence included: (1) a county election board commissioner’s statement indicating that men had a propensity to commit sexual harassment; and (2) his employer’s failure to properly investigate the charges of sexual harassment lodged against him. (Sassaman v Gamache, 2ndCir, 92 EPD ¶43,566)
The official, who had previously enjoyed a friendly working relationship with a female subordinate, saw things sour when he was demoted to her position and she was promoted into his following an error in printing ballots under his watch, which caused additional expenses for the board. The official first suspected that a romantic relationship between the board commissioner and his former subordinate played a part in their role reversal, but the real turning point in their relationship occurred when, during a telephone conversation, his former subordinate tried to initiate a one-time sexual encounter with him. His former subordinate remembered the conversation differently, believing that the official was upset because she did not want to have sex with him. Events spiraled, when the official breached his former subordinate’s email account after he suspected her of accessing his account. Eventually, his former subordinate accused him of sexual harassment and stalking. Without completing an internal investigation, the commissioner sent the former subordinate’s complaints to the county sheriff’s office. The sheriff’s office concluded that insufficient evidence existed to support any criminal charges. After being told by the commissioner that he would be discharged, unless he chose to resign, the official quit and filed sex bias charges. A district court granted summary judgment to his employer, finding that the official failed to present a prima facie case that identified “evidence sufficient to support an inference of discrimination.”
Reversing the district court, the Second Circuit held that the employee raised triable issues as to whether his employer stereotyped him as a sexual harasser. According to the record, the commissioner said: “‘I really don’t have any choice. [The former subordinate] knows a lot of attorneys; I’m afraid she’ll sue me. And besides you probably did what she said you did because you’re male and nobody would believe you anyway.’” The Second Circuit determined that the commissioner defended his decision to credit the former subordinate’s allegations by saying that men have a propensity to commit sexual harassment. A reasonably jury could construe the statement as an invidious sex stereotype, and not a “stray” remark, held the court. In so holding, the court rejected the employer’s defense that it feared a lawsuit filed by the former subordinate. “To be sure, Title VII requires employers to take claims of sexual harassment seriously…It also requires that, in the course of investigating such claims, employers do not presume male employees to be ‘guilty until proven innocent’ based on invidious sex stereotypes.” An employers may not rely on an alleged fear of a lawsuit as a reason to shortcut its investigation in order to justify a decision adverse to the putative harasser, held the court.
For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.
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