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Gay employee failed to show adverse action

A gay employee who filed a discrimination lawsuit against his employer won’t be getting his day in court. A federal appellate court upheld a summary judgment, finding there was insufficient evidence of an adverse employment action for the case to proceed.

In the case of Boshaw v. Midland Brewing, the plaintiff alleges he was told to hide his sexual orientation and that he was treated differently, denied a promotion, and ultimately terminated for complaining.

Ryan Boshaw was hired in March 2018 to work as a server. After several months, his supervisor approached him about taking on a leadership role. During that conversation, the supervisor allegedly told him he’d need to wear his hair differently, remove his body piercings, “act a little more masculine,” and remove his Facebook relationship status, which indicated he was dating a man.

The plaintiff changed his appearance and removed his Facebook status. He was promoted multiple times over the next year, ultimately reaching the role of front of house operations manager.

He said. They said.

Boshaw claims that he spoke to the restaurant’s owner and complained about the supervisor’s requests. However, in a sworn affidavit, the plaintiff’s manager denied asking him to change his appearance or his Facebook status. Likewise, the restaurant’s owner also denied receiving such a complaint from the plaintiff.

Midland Brewing also reported that the plaintiff had a series of performance missteps, such as concerns over his communication skills after a hair was found in a customer’s dish and after the restaurant’s point of sale system went down. He was also criticized for stepping outside the bounds of his position.

In May 2019, Boshaw allegedly missed a mandatory meeting and a shift, without notifying management. (He testified he’d been given the okay to skip the meeting for childcare reasons, but his supervisor claimed she had not granted such permission.) He was subsequently terminated.

Suit and dismissal

The plaintiff sued, claiming sex discrimination and retaliation. A lower court dismissed the suit on a summary judgment motion, which was upheld on appeal. The court found that the plaintiff furnished “no explanation” for how a reasonable jury could conclude the restaurant had discriminated against him “by promoting him and increasing his salary.” The court, however, refused to grant the defendant attorney’s fees.

Takeaway for employers

Insensitive and non-inclusive comments can fuel the fire for costly litigation even if they aren’t ultimately tied to an adverse employment action. Inclusive management training can be a risk management tool, helping supervisors understand the bounds of appropriate conversation and mentoring.

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