'Boorish and offensive' comments don't always amount to discrimination, 5th Cir. reaffirms

Dive Brief:

UPS fired an employee for poor job performance, not because of her age and sex, the 5th U.S. Circuit Court of Appeals held (Wright v. UPS Inc. (Ohio), No. 20-30249 (5th Cir., Jan. 22, 2021)).
The plaintiff worked as an unloader for about a month before she was fired. UPS said she was fired for failing to maintain "satisfactory flow rate," a measurement of the number of packages employees can handle. She sued, alleging that, among other things, her supervisor asked about her age and made discriminatory comments about her makeup.
The district court granted UPS summary judgment, finding the former employee failed to support her bias claim and that UPS had offered a legitimate, non-discriminatory reason for letting her go. Noting that the workplace is not made legally hostile by the uttering of "boorish and offensive" comments, the court said the statements described were isolated and not "sufficiently severe" to prove her claims.

Dive Insight:

Employers can defend bias claims by showing a legitimate, non-discriminatory reason for an adverse employment action. The 5th U.S. Circuit, for example, previously ruled that a Mississippi deputy clerk was fired because of a budget shortfall, not bias. And the U.S. Forest Service prevailed against a similar claim because it showed that a worker's reassignment was the result of budget cuts, not gender and age bias.

The U.S. Equal Employment Opportunity Commission suggested in a guidance that thorough documentation is key to prevailing on discrimination claims. Experts have recommended that HR and managers be trained to document everything.

While the court in this instance noted that the allegedly ageist claims made by the woman’s supervisor were isolated instances and not severe enough to support a hostile work environment claim, statements made by managers and front-line supervisors are a leading cause of bias claims. A woman who was allegedly called a "little old lady" by her manager, along with multiple other offensive comments, was allowed to proceed with her lawsuit. And a 58-year-old employee whose 52-year-old supervisor allegedly made multiple negative comments about her age was also allowed to move forward with her age bias claim.

Experts recommend that supervisors and managers be provided with regular training on the relevant local, state and federal laws and on how to prevent harassment, discrimination and retaliation. HR also can help by developing and implementing policies that support inclusion.