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With No Adverse Employment Action, Stray Comments Insufficient to Prove Gender Discrimination

Midland Brewing Company hired Ryan Boshaw to work as a server for its restaurant. Boshaw is openly gay. The company fired him just one year after his hire. Boshaw alleges Midland fired him because of his sexual orientation and sued the company for violating his federal and state rights.

A few months into his employment, Boshaw chatted with his supervisor about not wanting to be a server "forever" and expressed his interest in learning more. The supervisor told Boshaw the following day that she presented the idea of him moving into a leadership role with the company’s majority owner. She allegedly told Boshaw that the owner said Boshaw “needed to change [his] appearance and kind of just act a little more masculine.” The supervisor also allegedly told him to style his hair differently, remove his visible body piercings, and change his relationship status on Facebook to remove his boyfriend. Boshaw says he changed his hairstyle and deleted his relationship status. 

When reviewing the case, the Sixth Circuit Court of Appeals did not find any further information suggesting Boshaw made changes to appear “more masculine” or otherwise alter his sexual orientation. His public Instagram included information clearly reflecting his sexual orientation. Boshaw’s supervisor did promote him on three occasions. However, his supervisor did have multiple issues with his performance, particularly his communications with her. When Boshow missed a mandatory meeting and did not show up for work, Midland fired him. Boshow could not demonstrate that his sexual orientation resulted in an adverse employment action, and the appellate court affirmed the dismissal of his claim. He received his second and third promotions while his status was public on Facebook. The court also remarked that changing his hair from “spiky” to “combed over” did not connect to any stereotype of which it was aware.