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
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.