Is that valid guidance or sex discrimination?

When a new employee seems to be having difficulty adapting to the job, a supervisor might be tempted to make suggestions on ways to improve. That’s fine, but just make sure supervisors realize the legal risk in comparing one employee’s job performance to another. In this case, the female employee sued for sex discrimination when she felt that she was told to do her job more like a man.

Recent case: Colleen took a job as a city attorney. Almost immediately, supervisors complained about her work performance.

Within a few weeks of being hired, Colleen sent a letter to the city council, the city manager (her supervisor) and the city’s HR director, alleging “unlawful harassment based on sex.”

She claimed that the city manager made impossible demands on her, prevented her from performing key duties and required her to act against her better judgment as an attorney. Her letter came two days after she had held a meeting with the city manager, who had raised concerns about Colleen’s interactions with colleagues. The city manager had compared Colleen’s performance to the previous city attorney, a man.

Colleen was fired soon after sending the letter and after the city investigated her complaints—it found them to be without merit.

She sued, alleging sex discrimination. She argued that because she was compared to her predecessor—a man—she was being told to act like a man, which she said was unlawful.

The court dismissed Colleen’s lawsuit. It said the city manager had merely pointed out ways that the previous city attorney had done his job in an effort to help Colleen perform better. The fact that the comparator was male didn’t transform the case into a sex discrimination claim. Had the city manager pointed out specific behaviors that were based on sexist stereotypes, then Colleen may have had a better claim. (Auer v. City of Minot, 8th Cir., 2018)