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Regulatory Update: Watch Your Language

July 1, 2021
Court rules that the word "alpha" is not discriminatory.

Just in case you were wondering, the word “alpha” is not considered to be sex discrimination when it is used by a manager to describe a gay male employee. This Solomonic ruling was handed down by the U.S. Court of Appeals for the Tenth Circuit.

The employee had unsuccessfully applied for an account underwriter position as an internal candidate in the insurance company he worked for. He then requested a meeting with the hiring manager for feedback. In the course of the meeting, the hiring manager told the employee that he had not displayed the necessary leadership skills.

The manager also said that if he were hiring for another position in the future, “I might not need a leader, I might have a bunch of alphas over there.” The employee subsequently sued the employer, arguing among other things, that as a gay male he did not conform to the “alpha” male sex-stereotype.

Keep in mind that sex-stereotyping is a type of sex discrimination claim that can be made under Title VII of the federal Civil Rights law that pre-dates the Supreme Court’s decision in June 2020 that created new employment protections for gay and transgender workers under Title VII.

The Tenth Circuit found the “alpha” statement was not evidence of sex discrimination because it did not explicitly state anything discriminatory about the employee’s failure to conform to male sex stereotypes.

“Moreover, if a statement could plausibly be interpreted in two different ways—one discriminatory and one not—then it does not qualify as direct evidence of discrimination,” says attorney Fiona W. Ong of the Shawe Rosenthal law firm. “In this case, although there may be gender-based connotations for the term, one interpretation is a benign reference to leadership qualities.”

What she doesn’t discuss is how top management at the company felt after having been put in a position where they had to shell out big bucks in legal fees to fight this claim all the way to federal appeals court. In the end perhaps it would be cheaper to train managers in how to avoid loaded terms like “alpha” that can be interpreted in different ways and just stick to plain language.

Employers also should keep in mind that one of the first things the new Biden Administration did was to roll back certain civil rights protections for religious beliefs in regard to gays that had been adopted by the Trump Administration.

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