In some ways, the 6th Circuit U.S. Court of Appeals' decision in Kalich v. AT&T Mobility, LLC, 2012 Westlaw 1623193 (May 10, 2012), is entirely unexceptionable. In compliance with existing precedents, the court agreed with District Judge David M. Lawson (E.D.Mich.) that Jeffrey Kalich was not entitled to a trial of his hostile environment sexual harassment claim under Title VII because, among other things, sexual orientation discrimination claims are not covered by Title VII. Neither Michigan nor federal law forbids sexual orientation discrimination in the workplace, so if an employee who is perceived to be gay is singled out for continuing verbal harassment by a supervisor because of that perception, there is no legal redress.
In addition, the court found that once Mr. Kalich went over his supervisor's head to complain about the harassment, the company took the complaint seriously, investigated, and permanently transferred the offending supervisor to a different region, after giving him a disciplinary warning and instructing him not to contact Kalich, thus overcoming any argument that the company should be held liable for the supervisor's actions on a theory of respondeat superior. (Had the supervisor taken any tangible action against Kalich, respondeat superior liability would arise, provided, of course, that the adverse action was taken because of Kalich's sex.)
Hostile environment sex discrimination cases are difficult to win in any event, as the Supreme Court has set a high evidentiary bar, and many such claims are lost on summary judgment based on the trial judge's conclusion that a reasonable jury could not conclude that the plaintiff had been subjected to harassment so severe or pervasive as to adversely affect "terms and conditions of employment." Reading the opinion for the court by Circuit Judge Bernice Bouie Donald, it seems clear that Mr. Kalich, a retail store manager for AT&T in Clarkston, Michigan, was subjected to prolonged and repeated verbal harassment by David Rich, the company's area sales manager. Rich visited Kalich's store approximately ten times per month and, according to Kalich's allegations, produced a steady stream of demeaning remarks and comments, frequently in the presence of Kalich's subordinates.
Unlike the sort of crude verbal harassment to which gay employees are sometimes subjected, Rich did not indulge in overtly homophobic epithets or make threatening or intimidating gestures. Instead, he said things like, "Oh, I like your glasses. You should change your name to Virginia or Margaret. No, I like Virginia the best," and would then refer to Rich using female names for the rest of the day in conversation with other staff members. During one visit, he referred to Kalich's dog, stating, "What kind of dog is that? Oh, how cute. It figures. That's the perfect dog for you. What's his name? Fluffy, Oliver? Okay, Tell Oscar – I mean Oliver or Fluffy or whatever, hello." "Thereafter," wrote the court, "Rich regularly referred to Kalich's dog by the names of Fluffy or Princess." Another time, commenting on how thin Kalich was, he said, "What? You do not eat? You are wasting away. Your pants don't even fit you right anymore. You look like a girl." Kalich had a red equality sticker on his car, which prompted Rich to ask whether he had a "Swedish flag" on the car. Further comments along these lines are detailed in the court's opinion.
Although the company took action against Rich, as noted above, after Kalich had filed a complaint, Kalich took a leave of absence about the time that AT&T's EEO department began investigating his complaint. Shortly after he was informed of the disciplinary steps that AT&T had taken against Rich, he submitted his resignation, stating that the "dynamics of the work environment had changes as a result of the EEO investigation, which included interviews with all of the store employees." Kalich also feared that despite the reassignment, he might in future encounter Rich.
In a same-sex hostile environment harassment case under Title VII, the plaintiff's initial burden is to show that he was targeted for harassment because of his sex. The district court found, and the court of appeals agreed, that Kalich had failed to do this. Kalich presented no evidence that Rich was seeking sexual favors from him or had a general hostility to men in the workplace, or that Rich treated men worse than women.
"By all accounts," wrote Judge Donald, "Kalich established that Rich created very unpleasant working conditions for the employees that were in Rich's chain-of-command. While Kalich seemed to be the primary target of Rich's campaign of teasing and name-calling, there is no evidence that Rich singled Kalich out 'because of' his gender. In fact, Kalich acknowledged in his deposition that he believed Rich made the derogatory comments because he knew or suspected that Kalich was gay. Under Michigan law, as under Title VII, sexual orientation is not a protected classification. Thus, harassment or discrimination based upon a person's sexual orientation cannot form the basis of a cognizable claim. Moreover, teasing and name-calling, while inappropriate in a professional environment, are insufficient to state a claim for sexual harassment."
The court also rejected Kalich's argument that the evidence showed he was "subjected to unwelcome sexual conduct or communication," another sign of hostile environment sexual harassment. The court did not see Rich's comments as being sexual in nature. "Kalich contends that comments designed to 'bring him out of the closet' as a homosexual man inherently relate to sex," wrote Judge Donald, but the court rejected the argument that this turned the comments in "sexual conduct or communication." "Viewing the evidence in the light most favoriable to Kalich," wrote the judge, "the vast majority of the comments Kalich cited in his complaint cannot be construed as sexual in nature. Rich's remarks about Kalich's glasses, or referring to Kalich by various female names, or about his 'cute' dog do not inherently pertain to sex, nor do Rich's remarks about the fit of Kalich's clothes, his sewing abilities, or that he was 'wasting away' and 'looked like a girl.'" The court concluded that there was no evidence of any "gender-based animus."
This case, and others like it, stands as a rebuke to those politicians who oppose statutory bans on sexual orientation discrimination by claiming that such discrimination does not take place. Discrimination, especially of the hostile environment variety, can be quite subtle. One can't read the court's summary of Kalich's allegations without seeing that Rich deliberately engaged in conduct intended to make Kalich feel uncomfortable and demeaned in front of his subordinates, placing him in a position that Kalich finally concluded was untenable, even after the company had decided to transfer Rich to a different region. Kalich felt that he couldn't return to manage the store after what had happened. Rich succeeded in driving him from that workplace, and it seems clear — and the court doesn't deny it — that this was due to Kalich's sexual orientation. The lack of statutory protection meant that he could not obtain financial redress in the form of damages under Title VII or the state's sex discrimination law for the loss of his job and status.