At what point does a company’s application of its anti-fraternization policy become sex discrimination? Last week, a federal court in Alabama found that the answer to this question may be determined by a jury.
The application of anti-fraternization policies on a non-disparate basis has long been difficult for employers, especially when relationships pre-date (no pun intended) company restructuring and policy updates. In Collins v. Koch Foods Inc., No. 2:18-cv-00211-ACA (N.D. Ala. Sept. 23, 2019), U.S. District Judge Annemarie Carney Axon examined such a policy and its subsequent revisions, deciding that a former employee could proceed to trial on her sex discrimination claim after she was not selected for a promotion and was later discharged for violation of the company’s anti-fraternization policy, while her partner, who later became her husband, was not.
Koch Foods operates a chicken processing plant complex in Montgomery, Alabama. The complex consisted of two separate plants until 2017, when the company combined those facilities into a single operation.
Prior to the complex’s restructuring, Shawnetta Collins served as human resources manager for one of the facilities. She reported directly to the complex human resources manager, who in turn reported to the corporate human resources director. When Collins was hired in 2008, there was an anti-fraternization policy that prohibited supervisors and managers from “engag[ing] in intimate relationships with anyone under their direct or indirect supervision.”
In 2014, Collins began dating Johnny Gill, the plant manager at the facility where she worked. At the time, neither Collins nor Gill supervised the other. While their relationship was not a violation of the company’s anti-fraternization policy as it existed at that time, Collins nonetheless disclosed the relationship to her direct supervisor, David Birchfield (who was then the complex human resources manager). It does not appear that Birchfield took any action to counsel or communicate further with Collins regarding her relationship with Gill at that time.
Rather, through the course of seemingly unrelated facts, an internal investigation into another matter revealed that Birchfield had engaged in an intimate relationship with another human resources manager in April and June 2016. Although the decision does not reveal whether the company determined that Birchfield’s actions were in violation of the company’s anti-fraternization policy at that time, the company found that he could no longer serve “as an effective manager,” so he was allowed to resign.
Upon Birchfield’s resignation, Collins applied to fill his former position as complex human resource manager. The complex manager and the corporate human resources director were tasked with filling the position. Upon learning of Collins’s relationship with Gill, they decided to meet with both about the same. After interviewing them regarding their relationship, the company ultimately went with an outside candidate and additionally transferred Collins to a different facility.
In the same month, the company released a revised anti-fraternization policy that provided, in part, that:
“[n]o person in a management or supervisory position shall have a romantic or dating relationship with an employee whom he or she directly supervises or whose terms or conditions of employment he or she may influence.”
The revised policy also specifically prohibited:
“employees who work in the human resources department from dating or having any type of romantic or sexual relationship with any other employee who works at the same facility or complex regardless of whether or not the human resources employee has direct managerial or supervisory authority over the employee.”
While the former language did not appear to have been problematic for Collins, it is apparent that her relationship violated the later language in the revised policy.
The policy also stated that “one of the individuals involved in the relationship may be subject to transfer or termination of employment.”
Upon finalizing the revised anti-fraternization policy, the corporate human resources director asked Collins to sign and distribute the policy to Koch Foods’ employees, but she did not do so.
Eight months later, Collins applied for the complex human resources manager position a second time, when the position became vacant. The company determined that she would not be qualified for the position because of her relationship with Gill.
Meanwhile, Gill, who had become Collins’s fiancé, was promoted to plant manager of both facilities. Twelve days later, they were married. Ten days after their wedding, Collins was called to a meeting regarding the status of her relationship. Upon confirming that she was married to Gill, she was discharged within minutes. A company representative testified that he kept Gill because his “position was a very high level position that we needed” and that Gill was given a raise because he “had more value . . . to our company than Ms. Collins.” Another company representative testified that Collins was held “to a higher standard” because she was a human resources employee and thus was disciplined for violating the company’s anti-fraternization policy.
The Court’s Analysis
In examining Collins’s sex discrimination claim, the court was not persuaded by the company’s proffer of reasons for its failure to promote her (e.g., another candidate was more qualified; Collins’s relationship with Gill created a conflict of interest that barred her from the promotion). Rather, the court found that the company’s decision not to interview Collins and the difference in the way the company treated Collins and Gill based on the same violation of the same policy were reasons that could serve as a pretext for sex discrimination, or at least a motivating factor under a mixed-motive theory.
Similarly, the court found that Collins had presented sufficient evidence that her sex was a motivating factor behind her discharge when considering how her former supervisor, Birchfield, and her husband, Gill, were treated differently based on what the court concluded was “the same conduct” and that her employer allegedly deviated from company policy, which required progressive discipline, by immediately firing her.
Although the company argued that neither Birchfield nor Gill was an appropriate comparator to Collins and further disputed that the company’s progressive discipline policy had been violated, the court denied summary judgment and allowed this claim to proceed to trial.
It is uncertain whether a jury of Collins’s peers will be persuaded by her claims of sex discrimination or whether it will accept the company’s narrative of the non-discriminatory reasons for its actions. What is certain is that employment decisions based on the enforcement of anti-fraternization policies will continue to be problematic. Further, the court was not persuaded by the company’s explanation that one employee, who incidentally is male, has “more value” than another or that a human resources employee, who incidentally is female, should be held “to a higher standard.”
Finally, the company’s defense was probably not helped by the decision-maker’s summary that he revised the anti-fraternization policy because he was
“[v]ery unhappy about all of these issues coming up in human resources, and I was ready to get it stopped. . . . [T]hey had gone on for some time with different people, and I was tired of it.”
It is obvious from the decision-maker’s tone that he was frustrated with past personnel disregarding the company’s anti-fraternization policy. However, revising and broadening the policy to prohibit all human resources personnel from dating or engaging in romantic relationships with anyone employed by the company, appears to have been an action taken with Collins’s and Gill’s relationship in mind. In such cases, it is important to consider potential implications with respect to not only possible discrimination actions, but also potential retaliation and harassment claims.
An Alabama jury will ultimately decide whether the company’s application of its anti-fraternization policy was discriminatory when it decided to keep one partner in a relationship and dismiss the other.
J. Carin Burford is a shareholder in the Birmingham office of Ogletree Deakins.