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Home Depot Must Explain Terminations

Posted: July 20, 2009 Filed under: Uncategorized

By a 2-1 vote, a panel of the U.S. Court of Appeals for the Eleventh Circuit last week concluded that sexually suggestive behavior of a Home Depot regional human resources manager toward two Home Depot store managers did not create a sufficiently pervasive or severe work environment as to be actionable.

The dissenting judge felt that that the sexually-charged behavior and comments should be viewed in context. “Certainly there is a difference between a coworker cheerfully stating, “Hey, I really like your pants,” and a coworker stating, “I really like how you look in those pants….” The dissent also suggested, while avoiding use of the controversial term “activist,” that the majority overstepped its role by deciding fact issues that should be left for the jury.

Notwithstanding its resistance to the store managers’ harassment claims, the court unanimously agreed that the store managers should have their day in court on the question of whether Home Depot terminated them in retaliation for complaining about the harassment. Even though the store managers could not identify the individual who made the ultimate decision to terminate their employment, the court held “evidence that a biased employee with retaliatory motives influenced or participated in the decision to terminate an employee raises a genuine issue of material fact whether there is a causal connection between the employee’s protected conduct and his termination.” The managers were terminated 25 days after formally complaining, and they presented other evidence that Home Depot’s purported reason for the terminations was a sham.

The case is Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir. July 10, 2009), and the opinion is available online HERE.

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