Sexual Orientation Discrimination Claim Fails

​An employee who alleged that he was terminated because he came out as gay and that he experienced harassment based on his sexual orientation could not proceed to trial on either claim, a federal appeals court recently ruled.

His employer said it terminated the employee for misreporting tuition reimbursement information for his ongoing graduate school program—a valid nondiscriminatory reason for his discharge that was not shown to be pretextual. Furthermore, the workplace incidents the employee cited were not sufficiently severe or pervasive to support a harassment claim based on a hostile work environment. 

The employee worked as a recruitment administrator for the employer from November 2014 to March 2016. He agreed he did not experience discrimination until December 2015. Around that time, he revealed to a high-level official at the company that he is gay.

The employee alleged that after he came out, the employer engaged in closer scrutiny of his requests for reimbursement for graduate classes he was taking, which resulted in his termination.

In February and April 2015, the employee submitted requests for tuition reimbursement, which were approved. But on Dec. 30, 2015, after he came out as gay, he submitted another request for tuition reimbursement, which was denied. HR said that the denial was because the employee did not receive approval before the semester started. The employee asked the company to reconsider, and the resulting review identified discrepancies in reported course start and end dates.

These discrepancies caused the company to question the legitimacy of the employee's educational program. In January and February 2016, the company asked the employee for more documentation related to prior reimbursement requests. One of the documents submitted appeared to be manipulated, depicting a screenshot of an account page for another student with the name removed.

The company also discovered other educational reimbursement documents that appeared to show editing of the account balance. The company said it held an honest belief that the employee submitted false documents.

The employee also claimed that he experienced harassment after disclosing his sexual orientation, including receiving pink nail polish, pink sunglasses and bath bombs, and seeing Bible verses on notes stuck to his desk. And he claimed he was moved to an isolated corner of the office. Together, he said, these events amounted to a hostile work environment.

The trial court dismissed both claims before trial, and the employee appealed to the 6th U.S. Circuit Court of Appeals.

Discrimination Based on Sexual Orientation

The employee claimed sexual orientation bias in violation of the prohibition of workplace sex discrimination imposed by Title VII of the Civil Rights Act of 1964. The U.S. Supreme Court has ruled that this prohibition against sex discrimination extends to discrimination based on sexual orientation.

The 6th Circuit noted that even if the employee did show he was treated differently after he came out as gay, the employer offered a valid nondiscriminatory reason for his termination: altered educational documents. Therefore, the court said, to be able to take his case to trial, the employee must identify evidence from which a reasonable jury could conclude that this reason was actually a pretext for unlawful discrimination.

The employee failed to do so, the court said. He failed to rebut the employer's evidence of altered documents and even admitted to some alterations. His main argument, the court said, was that the investigation and termination occurred after he came out. But given the documents the employer had before it made its decisions, the employee's allegations were insufficient for a factfinder to rule for him on his Title VII claim for discrimination based on sexual orientation, the appeals court concluded, affirming the dismissal of the bias claim.

Hostile Work Environment

To prevail on a hostile work environment claim under Title VII, the claimant must show that the workplace was permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe or pervasive to alter the conditions of employment, the 6th Circuit said.

Isolated incidents—unless extremely serious—will not amount to discriminatory changes in the terms and conditions of employment.

In support of this claim, the employee pointed to the unwanted gifts and Bible verses as well as isolation from his peers at a new desk.

While giving the employee pink nail polish, pink sunglasses and bath bombs, and affixing allegedly hostile Bible verses to his desk could be seen as targeting his sexual orientation, these limited events did not meet the bar of severe or pervasive, the court said.

His relocation to the office corner also did not matter, given that the employee e-mailed a colleague saying he loved the new seat location.

There is a high bar to show a hostile work environment, the appeals court said, noting that this threshold was not cleared by the actions alleged in this case. The court also affirmed the dismissal of the harassment cause of action.

Kilpatrick v. HCA Human Resources LLC, 6th Cir., No. 22-5307 (Feb. 13, 2023).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.