Say hello to the equal opportunity jerk

Did you know that an employer can defend against a sexual harassment case by arguing that the male supervisor is simply a bad person who can't get along with anyone,not just women? Courts call him the equal-opportunity jerk. We got such a guy in this case.

The case is Dotel v. Wal-Mart Stores, a summary order issued on January 14. In order to win a sexual harassment case, the plaintiff has to prove she endured a hostile work environment because of her gender. Same holds true for gender harassment cases, where the plaintiff says she was singled out for mistreatment (bad work assignments, etc.) because of her gender. But if the manager treats everyone that way, it's not sexual/gender harassment but boorish behavior that falls outside the scope of Title VII and other employment laws.

The "equal opportunity jerk" defense can make a difference. For it to work, management and its lawyer might clear it with the offending manager, who probably has no say in the matter because he is not a litigation decisionmaker. The attorney probably tells him, "Look, John, we have a case to defend. We have spoken to your subordinates. They all say you are insufferable. Nobody likes you. That is how we will defend the case. Take one for the team." For this defense to work, it helps if other subordinates submit affidavits that describe Johnny's horrible personality. I have seen this happen.  ("He is a demanding and sometimes difficult supervisor, but he gets the job done").

In this case, plaintiff sued Walmart in Connecticut. She said her manager created a hostile work environment because of gender. But the Court of Appeals (Pooler, Hall and Carney) doesn't see it.

Assuming arguendo that Dotel believes she was the victim of a sex-based hostile work environment, the record lacks objective evidence from which to raise a material question of fact sufficient for her suit to survive summary judgment. Dotel argues that her supervisor engaged in abusive insults and verbal harassment of herself and other women on a daily basis, and while the majority of those insults were gender-neutral on  their face, each could also be read as insulting to women. However, the record does not support such a finding. Dotel’s contemporaneous written complaints make no mention of gender-based comments directed toward her, and there is no evidence in the record to suggest her supervisor treated the female associates in the department differently than the one male associate. Indeed, the strongest inference that can be drawn from the record is that the supervisor was rude to all the department’s associates. 

 In other words, equal opportunity jerk. Plaintiff does have evidence that "her supervisor had stated that 'women [are] good for nothing.'” But "this isolated statement is not 'sufficiently severe or pervasive to alter the conditions of [Dotel’s] employment and create an abusive working environment.'” And with that, the case is over.