Local Federal Court Rules against Gender Discrimination Claim Filed by Male Employee with Childcare Responsibilities
A recent Virginia federal court decision gives employers greater guidance in dealing with employee attendance issues relating to childcare responsibilities. In Nathan v. Takeda Pharmaceuticals America, Inc. (No. 1:11-cv-1360), the Court recently dismissed a male employee’s discrimination and retaliation claims against his employer claiming that it unfairly disciplined him because he had to take his child to school every morning. Among other things, the employee claimed that the employer treated male employees differently than female employees with regard to accommodating childcare responsibilities.
The plaintiff, Noah Nathan (“Nathan”), is a Territory Manager in the Washington, DC area for Takeda Pharmaceuticals (“Takeda”). In his complaint, Nathan alleged that Takeda had discriminated against him, subjected him to a hostile work environment, and retaliated against him for complaining about this alleged mistreatment, all in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). According to Nathan, the alleged discrimination involved his practice of dropping off his child at school several days a week, which caused him to start his workdays at 8:30 AM, rather than the 8:00 AM start time that his district sales manager wanted to enforce. Nathan alleged that Takeda discriminated against him by questioning his childcare responsibilities and suggesting that his wife drive their child to school instead.
As a pharmaceutical sales rep, Nathan did a lot of his work “in the field” – that is, in medical offices within his territory. While Takeda’s standard practice was to allow its sales reps considerable flexibility in determining their daily schedules, Nathan’s supervisor (Michael Fouchie) insisted that members of his sales force start their days at 8:00 AM, so as to accommodate the medical office within their territory “that opens the earliest of that day[.]” Takeda claimed that Fouchie uniformly and consistently enforced this start time; Nathan disputed this, but was not able to cite any facts to support his position.
Beginning in late 2008 and continuing through early 2009, Nathan and Fouchie clashed regarding Nathan’s need to periodically drop his child off at school. Fouchie was adamant that Nathan should be “in the field” earlier, and questioned why Nathan’s wife could not assume responsibility for taking the child to school. In February 2009, Fouchie informed Nathan that he would need to undergo extra training prior to being certified to sell certain Takeda products. Shortly thereafter, Nathan complained to Human Resources that he was being singled out because of his need to drop his child off at school. He repeated his complaints to HR in March 2009, and was granted a transfer to another district.
After receiving two mediocre annual performance evaluations (for 2008 and 2009), Nathan filed this lawsuit against Takeda, claiming that (1) he was discriminated against because of his status as a male caregiver, (2) he was subjected to a hostile work environment, and (3) he was retaliated against after his employer learned of his complaints to HR and, later, to the Equal Employment Opportunity Commission (EEOC).
The Court considered Nathan’s discrimination claim to be one of “sex plus” discrimination, where the alleged discrimination is based on a combination of sex and “a facially neutral factor” – in this case, having childcare responsibilities. The Court determined that Nathan was required to show a comparator in order to establish a prima facie claim of “sex plus” discrimination. For example, he could have pointed to a fellow employee without any childcare responsibilities who was able to ignore Fouchie’s start-time requirements, or a female employee with childcare responsibilities similar to Nathan’s who was treated more favorably than he was. When he failed to do so, the Court was left with nothing but Nathan’s own inferences and subjective interpretations of his supervisor’s comments from which it might conclude that Nathan was discriminated against because of his childcare duties. As this was overly speculative, the Court awarded summary judgment to Takeda.
Similarly, the Court found that Takeda was entitled to judgment as a matter of law with respect to Nathan’s “hostile work environment” claims. Nathan failed to offer evidence sufficient to show that “a reasonable person in the plaintiff’s position” would consider his work environment to be sufficiently abusive; the evidence, even when viewed most favorably to Nathan, could not establish that he had been subjected to conduct that was, in fact, “severe or pervasive enough to create an abusive work environment.” In addition, the Court ruled that Nathan could not establish a causal link between the perceived hostility and his status as a “male caregiver”; at best, he could merely ask a jury to speculate and infer such a connection.
Finally, the Court held that Nathan had not presented evidence sufficient to establish a prima facie claim of retaliation for lodging complaints to HR (beginning in February 2009) and/or the EEOC (in July 2009). As with his other claims, the Court saw no direct evidence of causation. The Court further found that, even if Nathan had been able to establish a prima facie case for retaliation, his employer had offered legitimate, nondiscriminatory reasons for any of the allegedly adverse actions (i.e., Nathan’s inability to comply with the start-time policy, his inability to complete Takeda’s rigorous training requirements regarding its new drugs, etc.) which Nathan could not rebut as being mere “pretext” for discrimination/retaliation.
As this decision shows, employers can generally impose reasonable requirements upon employees that they must comply with regardless of childcare responsibilities. The employer must simply be consistent in enforcing such requirements so that an employee cannot claim that it treats one gender differently than the other in administering its personnel policies.