No, my guy, your employer did not unlawfully stereotype your masculinity by firing you for sexual harassment.


I’m going to tell you about what may be the least self-aware employee. At least in recent memory.

But first, we need to talk about sex stereotyping.

Sex stereotyping is a form of discrimination. Indeed, the Supreme Court has acknowledged that Title VII of the Civil Rights Act of 1964 was “intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” For example, a few years ago, the Supreme Court concluded that firing someone because they are gay or transgender is a form of sex stereotyping because “sex plays an unmistakable and impermissible role in the discharge decision.”

But there are reasonable, rational limits to the type of behavior that may constitute “sex stereotyping.”

Like firing a male employee based on accusations of sexual harassment does imply gender stereotyping because the employer views him as an “aggressive male.”

So much for the plaintiff’s theory in this recent Second Circuit decision.

The plaintiff, a 20-year employee, alleged that he sent numerous non-sexual Facebook messages to a female coworker. He construed them as “expressions of affection” in which he “proposed a life together.” Worse yet, the recipient was unaware of these Facebook messages until, that is, she stumbled upon all of them at once. Predictably, she felt uncomfortable and reported the plaintiff to her supervisor.

According to the plaintiff, this was not the first such instance of unrequited affection towards female coworkers. Indeed, the defendant learned that, several years earlier, the plaintiff had pursued another coworker and was told to halt communication with her.

Put it all together, the defendant concluded that the more recent incident was sexual harassment and fired the plaintiff.

Undeterred by the seeming legitimate adverse employment action, the plaintiff and his lawyer theorized that it was a form of unlawful stereotyping. I say “theorized” as both the lower court and the Second Circuit noted that they had no supporting case law or facts.

The Second Circuit took it a step further:

Additionally, [plaintiff’s arguments are] belied by his own complaint, where he concedes he sent messages to [a female coworker] proposing a life together, made her feel uncomfortable, and had previously engaged in similar behavior towards another coworker. This conduct itself provided reasons for [termination], independent of however the [defendant] may have viewed him in relation to his gender.

Put simply, not every slight, inconvenience or adverse action is discrimination.

Especially not the one here.

“Doing What’s Right – Not Just What’s Legal”
Contact Information