Man wins rare gender discrimination case

About 30 years ago the percentage of working women increased dramatically.

There was the women's liberation movement and campaigns calling for greater recognition of discrimination against women at work. These campaigns succeeded in changing the law in New Zealand. It became illegal to discriminate against a person in the workplace on the basis of gender.

Over the years there have been many cases dealing with gender discrimination claims, ranging from allegations of improper preference in job-hiring to sexual harassment.

In most cases, women are the complainants: it is most often a female employee who alleges she has been disadvantaged.

In comparison, claims by male employees are rare. But a recent American decision provides an example of a situation in which a male employee can succeed on a gender discrimination argument.

The decision is Sassaman v Dutchess County Board of Elections (United States Court of Appeals, May 22, 2009). The claimant, Carl Sassaman, worked for the Board of Elections. In 2004, there was a printing error which resulted in election ballots being reprinted. Sassaman oversaw this, but was then reprimanded for exceeding the county's budget for the work.

Sassaman's boss, Commissioner Gamache (a man), demoted Sassaman. He replaced him with Michelle Brant. Sassaman suspected there had been a romantic relationship between Brant and Gamache, and thought it might have resulted in her promotion into his old role. Brant denied any romance, and Sassaman wrote apologising for his allegation.

With that out of the way, there appeared to be a positive working relationship between Sassaman and Brant. But that relationship soured soon after, when Brant declined Sassaman's offer to take her out for a drink. From that point, the parties' respective account differs.

Sassaman said Brant revealed intimate facts about herself, and tried to ascertain whether he would be interested in a sexual encounter. Sassaman decided he "was not going to remain friends with her any more". Brant said it was the other way around, and that Sassaman wanted to end the friendship because Brant would not have sex with him.

Following other incidents, including Sassaman logging into Brant's computer to look at an email, there was an investigation, and Sassaman got a warning. Within days, Gamache met with Sassaman to inform him that Brant had complained of his "harassing and stalking her". Sassaman was suspended.

Brant then filed a written complaint with the local sheriff, who investigated but found insufficient evidence to support any charge.

Gamache did not refer the matter for an internal investigation. Instead, a week after receiving the sheriff's report, Gamache told Sassaman he would be dismissed unless he chose to resign. Gamache defended this pre-emptive decision, saying Brant knew good lawyers, and he was afraid she would sue her employer. Importantly, he also said: "And besides, you probably did what she said you did because you're male and nobody would believe you anyway".

Sassaman resigned, feeling he had no choice, then sued his employer, alleging he had been dismissed on the basis of gender discrimination.

The Court of Appeals found Gamache had made a decision to terminate Sassaman's employment because he believed that men, as a group, had a propensity to harass women sexually. The court described this as "overt sex stereotyping" and found in favour of Sassaman.

This case provides an example of a situation which could give rise to a positive gender discrimination claim by a male employee. The rarity of such claims suggests either that situations such as this are unusual or, alternatively, that male claimants have been less likely to bring formal claims against their employers than their female counterparts.

It is, on either count, an interesting decision.

* Andrew Scott-Howman is a partner specialising in employment law at Luke Cunningham & Clere. ash@lcc.co.nz

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