Dive Brief:

• A female FedEx employee who was turned down for a promotion was unable to convince a Tennessee jury she had suffered gender bias (Free v. Federal Express Corporation, No. 15-cv-2404 (W.D. Tenn. Feb. 1, 2019)). The employee, Christi Free, applied several times for a Global Operations Control Manager position when it was posted; FedEx said it turned her down because she did not interview well.
• According to the district court, it allowed Free's case proceeded to a jury trial because: poor interview performance is considered a legitimate, non-discriminatory reason for an adverse employment action; the allegedly discriminatory comments were made a supervisor of one of the interviewers, rather than by one of the interviewers directly; and at least some of the allegedly discriminatory comments were made to and about other female FedEx employees rather than directly to the plaintiff.
• The jury considered evidence that FedEx had scored male and female interviews differently, as well as potentially discriminatory remarks relating to "cute" female employees and an invitation to a female employee to drink bourbon at 5 a.m.

Dive Insight:

Employers usually dislike bringing cases to juries, but FedEx's decision proved correct. Still, the supervisor's alleged pattern of discriminatory comments carries lessons for employers, especially because a judge found sufficient evidence of sex bias to comprise a triable set of facts for a jury.

According to the U.S. Equal Employment Opportunity Commission, "harassment does not have to be of a sexual nature...and can include offensive remarks about a person's sex. For example, it is illegal to harass a woman by making offensive comments about women in general." Additionally, while the harasser can be the victim's supervisor, it can also be "a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer."

Regular training, even when not required by law, is crucial to increasing awareness and decreasing allegations of sex bias and sexual harassment. Training is particularly crucial at the management level; falling short here can actually make the problem worse because it suggests a culture of indifference to (or, worse, overt acceptance of) the problem.