On December 2, the Eighth Circuit Court of Appeals affirmed summary judgment on behalf of Swedish Match North America, Inc. in a case in which its former male salesperson, Donald Rickard, claimed he suffered age and sex discrimination from his male supervisor (who was one year younger than Rickard). Rickard had an "antagonistic" relationship with his manager, Mr. Perry Payne. Mr. Rickard alleged that Mr. Payne engaged in several bad behaviors, the most notable of which was grabbing and squeezing Mr. Rickard's nipple and stating, "This is a form of sexual harassment." Mr. Payne also allegedly made several comments about Mr. Rickard's age. Mr. Rickard and other employees complained about Mr. Payne's crude behavior (which Mr. Payne denied but for which he was reprimanded) and Mr. Rickard admitted that after he complained, he "never experienced this crude behavior from Payne again." He never reported the age comments. Following an extended leave of absence, Mr. Rickard ultimately retired, but told fellow employees that he had been forced out of his job. He sued Swedish Match for hostile work environment based on age and sex; constructive discharge; disparate treatment; and retaliation in violation of the ADEA and Title VII. The district court granted summary judgment to Swedish Match, finding that Mr. Rickard had not offered sufficient evidence to support his claims.
The Eighth Circuit affirmed. With regard to the age-based harassment, the Court found that most of Mr. Rickard's complaints were more about Mr. Payne's crude managerial style instead of actual mistreatment due to his age. The Court went on to note that even the comments based on age were not severe enough to be actionable. On the sex-based harassment claims, the Court specifically held that Mr. Payne's nipple-squeezing was "manifestly inappropriate and obnoxious," but that it was not enough to show that Mr. Payne harbored hostility against men in the workplace. It further noted that it would not "take the statement of a layperson—Payne—as definitive proof that his actions qualified as sexual harassment under the law." There was no evidence that Mr. Payne's behavior was motivated by sexual desire.
The Eighth Circuit appears to require a plaintiff to show specific motivation by sexual desire for a physical action that at first blush would appear to create a hostile work environment. It stands to wonder how the Court would have reacted if Mr. Rickard had been female. This case shows the confusion that may still surround sexual harassment claims where the parties are of the same gender and is probably not a safe standard by which to make employment decisions. In 2012, the EEOC settled a matter for $600,000 on behalf of male waiters who claimed that they had been harassed (e.g., groped) by a male manager. The trend among most courts and the EEOC is that same-sex harassment is actionable and should be treated identically to the more traditional cases that cross gender lines.
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