In a published opinion released today, the U.S. Court of Appeals for the Eighth Circuit (Smith, Bye, Colloton, opinion by Smith) reaffirmed its long-held and not controversial view that “being very busy” does not qualify as “excusable neglect” for missing a court deadline and, as a result, the plaintiff in an employment discrimination case lost against defendant’s motion to dismiss, as unopposed. (Plaintiff’s counsel sought an extension of time to respond six days after the deadline.)
No need to feel great pity for a plaintiff whose claim arguably may have failed at least in part due to his attorney’s apparent preoccupation with other matters. The Court of Appeals undertook its own review of plaintiff’s complaint. Plaintiff alleged he “is a Caucasian male who was treated differently from other employees at Defendant” and that he “was subjected to hostility that other male employees and female employees did not receive.” In short, he alleged he endured humiliation and criticism, but he failed to describe how these allegations related to his gender, all but alleging the opposite — a problem when you are alleging discrimination based on gender.
Also decided today at the Eighth Circuit, an employment discrimination plaintifff’s win (Murphy, writing for the Court, joined by Bye, with dissent by Loken, C.J.). Details after the break.
Plaintiff, a woman, described herself as “slightly more masculine,” and her look was characterized as “an Ellen DeGeneres kind of look.” She alleges that her failure to conform with gender stereotypes cost her the preferred front-desk job at defendant Heartland Inns of America. The Court held “Companies may not base employment decisions for jobs such as Lewis’ on sex stereotypes.” Judge Loken, however, lamented, “Apparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male fashion model because he is not handsome enough, unless the employer proves the affirmative defense that physical appearance is a bona fide occupational qualification.”
Judge Loken continued, “In my view, an employer’s decision to hire or fire based on a person’s physical appearance is not discrimination ‘because of . . . sex’ unless it is a pretext for disadvantaging women candidates.”