“Grow a pair” offensive, but not discriminatory

In Macreno v. St. James Capital, an unpublished opinion, the Michigan Court of Appeals affirmed the Oakland Circuit Court decision to dismiss the plaintiff's claims for gender discrimination and retaliation in violation of the Michigan Civil Rights Act for the termination of his employment.

The (female) vice president of the company told the plaintiff that he was a "flaming faggot" who "acted gay" and needed to "grow a set of balls." Plaintiff, an administrative assistant, made a written complaint to his supervisor. The company said that the reason plaintiff was fired was his refusal to submit a leave slip when requested to do so, and the vice president who made the comments was not involved in the decision to discharge him. The supervisor apologized for the vice president's unprofessional behavior and comments.

The trial court said the vice president's comment referred to the plaintiff's sexual orientation, not his gender, so there was no protected activity. Oakland county also said that there was not any evidence to support a gender discrimination claim. The court of appeals agreed that there was no evidence that would support a gender discrimination claim, saying that the plaintiff did not establish a prima facie case because the vice president's comments did not show that the supervisor who fired the plaintiff was predisposed to discriminate against him.

MCOA disagreed that "grow a set of balls" was related to sexual orientation. The court also disagreed with the plaintiff that it was related to gender. The opinion cites Random House Webster's College Dictionary's definition of "ball" as vulgar slang for boldness or courage with no reference to gender or sexual orientation A complaint about the use of the term does not clearly involve a complaint of discrimination because of sex. The complaint here was a complaint about another employee's use of a vulgar expression denoting a lack of courage or boldness, not a gender or sexual orientation discrimination complaint.

It might not be polite, but it's not discriminatory, either.