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Title VII Sex Discrimination Claim v. Performance(2)

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The Court first explained that in making a reverse discrimination claim, an employee must show that the employer is actually discriminating against the majority – a fairly unusual occurrence. The Court concluded that Argo could not establish reverse discrimination in this case. Instead, Blue Cross showed that it hired many men for the same position and that it had employed Argo in the position, until his performance deteriorated so badly that it had not choice but to terminate his employment.

The Court was singularly unimpressed with Argo’s claim that he had been subjected to a hostile work environment. As the Court explained, the supervisor’s actions “two flirtatious comments, a mock-bawdy birthday card, and an incident of toe-touching–were incredibly mild. Even viewed in the light most favorable to Mr. Argo, they represent precisely the kind of “ordinary socializing in the workplace” and “intersexual flirtation” about which Title VII is unconcerned.”

The Court also rejected the retaliation claim, finding that Blue Cross’ reason for termination were based on Argo’s performance problems and failure to respond to discipline.

This case illustrates the importance of the disciplinary process, particularly if the performance of a long term employee starts to slip. Likewise, the case illustrates how an employee can make it or break it, when faced with discipline for performance problems.

If you would like to read this saga for yourself, go to http://www.kscourts.org/ca10/cases/2006/07/05-3114.htm