Hot Docs: Former employee claims hostile work environment from brief back rub from gay supervisor

November 29, 2012

Shoulder RubYesterday, I wrote about Vance v. Ball State University, a case currently before the Supreme Court which involves the question of whether an employer is liable under Title VII of the 1964 Civil Rights Act for the plaintiff suffering a hostile work environment.

Another case involves that same question, but I somehow don’t believe it will find its way to the Supreme Court.

That case, Mendez-Nouel v. Gucci America, Inc., was started by Adolfo Mendez-Nouel a former Gucci employee.

Mendez-Nouel worked as a sales associate at Gucci’s Fifth Avenue, and during his tenure in that role, he claims that “he was subjected to a hostile work environment on account of his sex and sexual orientation.”

Specifically, Mendez-Nouel, a heterosexual male, asserts that two of his former supervisors, both of whom are homosexual males, were responsible for this environment.

This environment was allegedly created by David Gray, the first supervisor, making “a number of sexually-charged comments on the sales floor,” and by Michael Daly, the other supervisor, “approach[ing] [Mendez-Nouel] from behind, grabb[ing] his shoulders, and g[iving] them a brief massage.”

Some examples of these “sexually-charged comments” include the following: Gray would say that men in the store were “hot” and that he would “do that guy.”

Unfortunately for Mendez-Nouel, case law holds that “[p]ictures, literature and discussions of homosexual conduct do not inherently intimidate, ridicule, or insult men.”

Further, “that an otherwise reasonable man might be highly offended by homosexual depictions is not enough. He must reasonably feel the homosexual depictions strike at his gender or attack him because of his gender.”

Hot Doc: Mendez-Nouel v. Gucci Am. Inc.

Source: Thomson Reuters News & Insight – National Litigation

The court found that the comments and conduct, while inappropriate, “fail as a matter of law, to form the basis of a finding of a hostile work environment for purposes of Title VII.”

However, the question in my mind isn’t whether Mendez-Nouel was actually offended by his supervisors’ actions.

Considering that he was hired to work at as a sales associate at Gucci’s flagship store on New York City’s Fifth Avenue, it seems highly unlikely that Mendez-Nouel would be offended by behavior that, nowadays, would only seem offensive to the more unsophisticated homophobes (especially since the court itself concluded that these actions weren’t sexual advances in any form).

Instead, the basis of this suit probably lies in the manner of how Mendez-Nouel was dismissed from his employment with Gucci.

In addition to several disciplinary reprimands that Mendez-Nouel received throughout his tenure at Gucci, it seems that many of Mendez-Nouel’s coworkers were afraid of the possibility of his coming into work one day and going on a shooting spree.

These beliefs were precipitated by several alleged statements attributed to Mendez-Nouel, such as “people are ungrateful and something big is going to happen and [I know] about it but they don’t.”

Purportedly, Mendez-Nouel also “would make jokes about shooting and would point his finger to himself. He would talk about shooting people and he would read the internet and talk about the world and how it should end and start over. He said somebody should be shot.”

Apparently, Mendel-Nouel was stressed out because “business was slow,” and he felt that “he was ‘next in line’ to be terminated.”

Regardless of his reasons for these statements, the court ruled that Gucci had independent basis for terminating Mendel-Nouel’s employment (concern for workplace safety), and that the company did not do so in retaliation of his reporting the alleged actions of his two supervisors (coincidentally, Mendel-Nouel’s report of this came during the human resources investigation into Mendel-Nouel’s workplace misconduct).

At any rate, I highly doubt that this case will somehow go on to become a landmark ruling.