ndal.bmpBy Christopher DeGroff and Julie G. Yap

As this blog recently reported, the EEOC has reduced the amount of cases it filed in its last fiscal year, and appears to have decided to more aggressively pursue the cases in its current inventory. In EEOC v. The McPherson Companies, Inc., Case No. 10-CV-2627 (N. D. Ala. Nov. 14, 2012), the U.S. District Court for the Northern District of Alabama joined a number of courts to reject the EEOC’s attempts to bypass the rules as part of its hardball litigation tactics. Specifically, the Court determined that the EEOC’s positions contradicted the charging party’s own testimony and advanced unsupported legal theories. In a pointedly-worded decision, the Court ultimately concluded that the EEOC’s claims of sexual harassment and retaliation could not survive summary judgment and entered judgment in favor of the employer.  

Background Of The Case

In EEOC v. McPherson, the EEOC brought sexual harassment and retaliation claims on behalf of “John Doe,” a McPherson employee from August 16, 2004 until February 8, 2008, when he was discharged during a reduction-in-force (“RIF”). The all-male warehouse where Doe worked had a culture of horseplay and off-color badgering; indeed, the Court noted that “[e]verybody got a dose of ugly talk, delivered casually and without apparent malice.” 

In late 2004 or early 2005, however, Doe claimed that the banter became intolerable. About a year into his employment, Doe reported to his immediate supervisor that the name calling was not appreciated and must stop. In 2006, Doe then complained to his co-workers about the horseplay and comments; they apologized and stopped making off-color remarks in Doe’s presence. Finally, in November 2007, Doe reported the conduct to Human Resources. Human Resources immediately investigated the employees involved and disciplined two of the employees, including two of Doe’s supervisors. Doe heard no more ugly remarks from any McPherson employee during the remainder of his employment.

In late 2007 and early 2008, McPherson was forced to cut jobs to off-set a downturn in business. Overall, 11 McPherson employees were let go as part of the RIF, including Doe. 

The Court’s Ruling

In considering the defense motion for summary judgment, the Court first concluded that Doe was not subjected to an actionable hostile work environment because the EEOC could not establish that Doe was targeted based upon sex or that the comments were of a sexual nature. Interestingly, the EEOC claimed that Doe was being harassed and discriminated against based on an “effeminate” stereotype. The Court noted that in trying to pursue this theory, “the EEOC disagrees with Doe himself, and argues, in contradiction to Doe’s own testimony, that Doe was harassed because he did not conform to the male stereotype.” However, the Court concluded that “Doe’s testimony belies and utterly destroys any such contention” and that, “[i]n its zealous representation of Doe, EEOC is mischaracterizing Doe’s own testimony.” Accordingly, the Court refused to extend the protections of Title VII “to protect the relatively few employees” bothered by the bad language at issue in this case. While the Court agreed with the EEOC that the language crossed the line of social acceptability, the Court was unwilling to assist in the creation of a general rule that would further expose employers to liability for “bad language” and “boorish behavior” that does not implicate harassment on the basis of sex.

The Court also concluded that because Doe  was discharged as a result of a RIF over three months after complaining to HR about the horseplay and foul language, there was no evidence that Doe was terminated in retaliation for engaging in protected conduct. The Court found it “hard to believe” that the EEOC “is seriously arguing that the entire RIF process was a subterfuge and a fraud designed for the sole purpose of providing cover for retaliation against Doe.” The Court further noted that “[i]f that is the EEOC’s contention, it is so beyond belief as to be precluded from jury consideration.” Because the Court found that a RIF was a well-recognized and carried out by a legitimate business judgment caused by economic conditions, and because the EEOC failed to offer any evidence upon a reasonable juror could conclude that a decision to RIF eleven people was a mere pretext to get rid of Doe, the Court granted summary judgment for the employer.


While the Court ultimately ruled in favor of the employer, this case is noteworthy as an illustration of the type of aggressive litigation that employers can expect to see from the EEOC. While the Court in EEOC v. McPherson was unwilling “to take Title VII into a brave new world” of liability, it is unlikely that the EEOC will be willing to abandon its advocacy of the type of expansive Title VII protection and liability it has argued for previously and in this case.    

Readers can also find this post on our EEOC Countdown blog here.