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EMPLOYMENT LAW — 8/2/06

Female supervisor's mild flirtation with male employee not sex bias

A female supervisor's "campaign of exceedingly mild flirtation" towards a male employee did not constitute evidence that he was discharged because of sex bias, ruled the Tenth Circuit Court of Appeals. (Argo v Blue Cross & Blue Shield of Kan, Inc, 10thCir, 88 EPD ¶42,437)

Following nearly a year of declining performance and disciplinary problems, the employee was fired one day after arriving late for work and for failing to complete work assigned to him. He filed suit under Title VII, alleging that his discharge was due to reverse sex bias, citing the flirtatious actions by his female supervisor. A district court granted summary judgment in favor of the employer. Affirming summary judgment, the Tenth Circuit held that the supervisor's actions, which consisted of a handful of flirtatious comments over several years, did not constitute sex bias because the incidents: (1) were ordinary socializing; (2) began long before the employee's performances issues surfaced; and (3) did not lead to his discharge.

The circuit court noted that in reverse discrimination cases, a "stronger showing" is required to establish a prima facie case. Citing its previous rulings, the court explained that a reverse discrimination plaintiff must establish background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority. However, the employee in this case failed to establish any circumstances to support a prima facie case of reverse sex bias. He did not introduce "a whit of statistical or even anecdotal evidence that men suffered adverse treatment as a class in the workplace," nor did he produce evidence showing that, following his discharge, his position remained open or that he was replaced by a woman.

Finally, the employee failed to show that, but for his sex, he would not have been fired. His supervisor's actions – which included two flirtatious comments, a mock-bawdy birthday card and an incident of toe-touching – were "incredibly mild" and simply examples of "ordinary socializing in the workplace and intersexual flirtation about which Title VII is unconcerned" the court wrote.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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