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June 29, 2015 Practice Points

"Crude Managerial Style" Insufficient to Establish Discrimination

The U.S. Supreme Court ruled that a manager’s crude comments and “contemptible” behavior toward an older employee were insufficient to constitute age or sex discrimination.

By Robin E. Perkins

On June 15, 2015, in Rickard v. Swedish Match North America, Inc., Case No. 14-1264, the U.S. Supreme Court declined to hear the Eighth Circuit’s ruling that a Swedish Match North America, Inc. manager’s crude comments and “contemptible” behavior toward an older employee were insufficient to constitute age or sex discrimination.

After Donald Rickard retired, citing health issues related to the stress of his hostile work environment, he filed suit for hostile work environment, disparate treatment, and retaliation, among other claims. Rickard’s lawsuit asserted that his manager, Donald Payne, referred to Rickard as an “old man” and was overly critical of his work. Rickard alleged that Payne squeezed his nipple while simultaneously stating “this is a form of sexual harassment.” Additionally, Rickard claimed that Payne took Rickard’s towel, rubbed it on his crotch and then returned it to Rickard.

An Arkansas federal judge granted summary judgment in favor of the employer, Swedish Match, which decision was appealed to the Eighth Circuit. The Eighth Circuit held that while Payne’s behavior was contemptible and he used a “crude managerial style,” his conduct did not have a significant impact on Rickard’s employment and was insufficient to establish conduct “motivated by sexual desire.”

Rickard asserted that the Eighth Circuit decision failed to consider several of its prior rulings that recognized similar homosexual actions as sexual harassment. Yet, ultimately, the Supreme Court’s denial of Rickard’s cert petition confirmed the Eighth Circuit’s decision that this and similar conduct does not rise to the level necessary to establish employee discrimination claims.  

Robin E. Perkins, Snell & Wilmer, LLP, Las Vegas, NV

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