This page contains entries under the topic: "Discrimination - Sex" | Main
$1.8 million same-sex settlement
October 02, 2007 by Ross Runkel at LawMemo
EEOC has announced that United HealthCare of Florida, Inc. will pay $1.8 million to settle a same-sex harassment and retaliation lawsuit charging that the male former regional vice president of key accounts subjected a male former top senior account executive to repeated verbal sexual harassment in Sunrise, Florida.
EEOC press release - click here.
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Some Reflections on the Ledbetter Decision
May 29, 2007 by Ross Runkel at LawMemo
"Some Reflections on the Ledbetter Decision" is the title of Paul Secunda's post at Workplace Prof Blog. He argues that today's decision in Ledbetter v. Goodyear Tire & Rubber Co (US Supreme Court 05/29/2007) was wrong.
Professor Secunda has an excellent analytical eye, and has a thoughtful and generous nature, so I enjoy jousting with him.
I thought the decision was correct, and was surprised only by the fact that four Justices didn't think so.
Paul is quite correct when he says that the main question is: "Is pay discrimination a discrete act like a termination or failure to promote or is it more like a cumulative series of individual events like hostile work environment sexual harassment?"
I jump off Paul's wagon when he says pay discrimination decisions are more like hostile environment claims than they are like a discrete act such as a termination or demotion. Quoting Paul: "As with hostile work environment sexual harassment claims, individual pay decisions by themselves do not have the obvious discriminatory intent that discrete acts such as terminations or failures to promote do."
Not so. In the Ledbetter case, a pay decision was made once a year, and then implemented via paychecks. One single decision. In a hostile environment case, the claim by its very nature involves a cumulation of several events that have to be added together before the environment is sufficiently hostile for a claim to arise.
It's the difference between "wham" (pay raise) and "drip, drip, drip" (hostile environment).
I think Paul and the Supreme Court dissenters have shifted the focus to the difficulty of discovery. If everyone else's pay rate is a secret, then of course it is difficult to discove a discriminatory pay increase. But the same is true in many discharge and promotion cases. It often is difficult to discover that one gender or race has been treated differently than another, and then difficult to discover the reason for the different treatment. That has never had any effect on the statute of limitations.
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Ledbetter loses pay discrimination case
May 29, 2007 by Ross Runkel at LawMemo
Title VII's statute of limitations begins when a discriminatory pay decision was made and communicated to the employee, and does not start over with each later paycheck.
So says the US Supreme Court in a 5-4 decision announced this morning.
Ledbetter v. Goodyear Tire & Rubber Co (US Supreme Court 05/29/2007)
Lilly Ledbetter claimed her employer paid her a smaller salary than it paid male co-workers because of her sex. Her periodic paychecks were based on annual salary reviews, which she claimed were made with discriminatory intent. A jury awarded damages to Ledbetter based on a series of salary decisions going back 19 years. The 11th Circuit reversed and ordered that Ledbetter's complaint be dismissed. The US Supreme Court affirmed.
The Supreme Court held that Title VII's statute of limitation period (180 or 300 days) begins to run when "each allegedly discriminatory pay decision was made and communicated to her." The Court rejected Ledbetter's argument that each subsequent paycheck was a separate act of discrimination, and her argument that the most recent decision was unlawful because it carried forward intentionally discriminatory disparities from prior years.
My view: This is the correct decision, following the reasoning that I predicted back in November.
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Wal-Mart class action approved
February 06, 2007 by Ross Runkel at LawMemo
The 9th Circuit has approved a 1.5 million member class action in a Title VII case brought by current and former employees. Let the litigation begin.
The case: Dukes v. Wal-Mart (9th Cir 02/06/2007)
The capsule: Dukes and others sued claiming sex discrimination as to pay and managerial promotions in violation of Title VII. The trial court certified a class of all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices. The class concerns approximately 1.5 million women who worked at any of Wal-Mart's 3,400 stores, including part-time, full-time, entry-level, hourly, salaried, managerial. The 9th Circuit affirmed (2-1), using a highly deferential "abuse of discretion" standard of review.
The class was certified under Rule 23(a) and (b)(2).
Rule 23(a): There was no dispute as to the numerosity requirement. As to common questions of fact and law, the court found that there was significant evidence of corporate-wide practices and policies of excessive subjectivity in personnel decision and sexual stereotyping, statistical evidence of gender disparities, and anecdotal evidence of gender bias. The court found the claims to be typical even though the only class representative for managers holds a low level position. The court found adequate representation even though there are in-store managers who are both class members and decision-making agents of the employer.
Rule 23(b)(2): In order to qualify under Rule 23(b)(2), plaintiffs' claims for injunctive and declaratory relief must predominate over their claims for monetary relief. The court rejected the employer's argument that monetary claims predominate, saying that this issue turned on "plaintiffs' intent in bringing the suit."
Individualized hearings: The employer argued that it was entitled to an individualized hearing for each member's claim, based on case law, Title VII, the Civil Rights Act of 1991, 42 USC Section 1991a, and the due process clause. The court rejected these arguments, noting that some of them can be raised at the merits stage.
The DISSENT argued that the class lacks commonality and typicality. In addition, if the named plaintiffs were zealously represented, then their interests would diverge and require separate counsel. Finally, the dissent argued that both the Civil Rights Act of 1991 and the due process clause "require more individual justice than Wal-Mart will receive."
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Paycheck discrimination and the Supreme Court
November 27, 2006 by Ross Runkel at LawMemo
Ledbetter v. Goodyear Tire & Rubber Co is being argued at the US Supreme Court today. [Details, briefs]
Lilly Ledbetter retired after 19 years at the Goodyear company. Then she claimed her employer paid her a smaller salary than it paid male co-workers because of her sex. Her periodic paychecks were based on annual salary reviews.
A jury awarded damages to Ledbetter based on a series of salary decisions going back 19 years.
The 11th Circuit reversed and ordered that Ledbetter's complaint be dismissed.
The problem was with the statute of limitations, which requires an employee to file an EEOC charge within 180 days after an alleged Title VII violation "occurred."
The 11th Circuit held that her claim was time barred because she could not prove intentional discrimination in either (1) the one decision during the limitations period or (2) the last decision preceding the limitation period.
The 11th Circuit said: "We conclude that in the search for an improperly motivated, affirmative decision directly affecting an employee's pay, the employee may reach outside the limitations period created by her EEOC charge no further than the last such decision immediately preceding the start of the limitations period. We do not hold that an employee may reach back even that far; what we hold is that she may reach no further."
My view: It's hard to see how Ledbetter can win this one.
The case really turns on when a violation occurs. Typically this is when the employer has made a decision and then acted on that decision. Once a violation occurs, then the employee has 180 days to file.
I think there are three logical choices for how the Title VII statute of limitations works in the case of paychecks:
- A violation occurs when the employer makes a decision, and if the employee does not file a charge within 180 days of the decision then no future claim can be based on that decision. That's Goodyear's view.
- A violation occurs with each paycheck, and the employee can claim that the amount of each paycheck was based on discriminatory decisions made years ago. That's Ledbetter's view.
- A violation occurs when the employer makes a decision and the decision is communicated to the employee, typically by way of the next paycheck. This is the view advanced by the United States in its amicus brief.
#3 is the way the statute of limitations works in cases involving discharge, failure to hire, failure to promote. I think it works the same way here. Ledbetter says there should be a different approach for paychecks. If so, the statute needs to be reworded.
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Ledbetter v. Goodyear brief for petitioner
September 07, 2006 by Ross Runkel at LawMemo
The petitioner's brief was filed in the US Supreme Court today in Ledbetter v. Goodyear Tire & Rubber.
The issue is "Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period."
Petitioner's Brief
Joint Appendix
Ledbetter claimed her employer paid her a smaller salary than it paid male co-workers because of her sex. Her periodic paychecks were based on annual salary reviews. A jury awarded damages to Ledbetter based on a series of salary decisions going back 19 years. The 11th Circuit reversed and ordered that Ledbetter's complaint be dismissed.
The 11th Circuit held that her claim was time barred because she could not prove intentional discrimination in either (1) the one decision during the limitations period or (2) the last decision preceding the limitation period.
The 11th Circuit said: "We conclude that in the search for an improperly motivated, affirmative decision directly affecting an employee's pay, the employee may reach outside the limitations period created by her EEOC charge no further than the last such decision immediately preceding the start of the limitations period. We do not hold that an employee may reach back even that far; what we hold is that she may reach no further.
The US Supreme Court will review the 11th Circuit decision during its 2006 Term which begins in October.
Thanks to SCOTUSblog for the brief.
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Gender-based salary discrimination claims, and burdens of proof
August 30, 2006 by Ross Runkel at LawMemo
Mickelson v. New York Life Insurance (10th Cir 08/28/2006) gives us a lesson on gender-based salary discrimination claims under Title VII and the Equal Pay Act (EPA).
The lesson: Different burdens of proof.
An employee claiming gender-based salary discrimination has essentially two options.
- First, the employee can proceed under a theory of intentional gender discrimination pursuant to Title VII.
- Alternatively, the employee can proceed under a wage discrimination theory pursuant to the EPA.
There are significant differences between an employee's burden of proof, depending upon which avenue she takes.
Under the Title VII intentional discrimination theory, the employee always bears the burden of proving intent. The EPA, however, has been described as imposing a form of strict liability on employers who pay males more than females for performing the same work. Thus, under the EPA, an employee need not prove discriminatory intent.
Additionally, under Title VII the McDonnell Douglas burden shifting framework is generally applied. EPA cases do not employ McDonnell Douglas, but rather proceed in two steps. First, the employee must establish a prima facie case by demonstrating that employees of the opposite sex were paid differently for performing the same work. Second, if that burden is met, the burden then shifts to the employer to prove that the wage disparity was justified by one of four permissible reasons (set forth 29 USC Section 206(d)(1)). Unlike the second step of the McDonnell Douglas framework (where the employer proffers a "legitimate non-discriminatory reason"), though, the employer's burden at this step in EPA cases is one of persuasion.
The 3rd Circuit has taken the position that, in order to carry its burden under Section 206(d)(1), an employer must "submit evidence from which a reasonable factfinder could conclude not merely that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity." The 10th Circuit adopted that approach, concluding that "where, as here, employers seek summary judgment as to [an] Equal Pay Act claim, they must produce sufficient evidence such that no rational jury could conclude but that the proffered reasons actually motivated the wage disparity of which the plaintiff complains."
The court noted that "[b]ecause of the varying burdens of proof, it is conceivable that in some cases an employer would be entitled to summary judgment on the Title VII claim, but not on the EPA claim." The court concluded ultimately that this was not such a case, however, because (1) Mickelson presented sufficient evidence of pretext in support of her Title VII claim; and (2) the employer failed to carry its burden under Section 206(d)(1).
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California sex harassment training in New York?
July 11, 2006 by Ross Runkel at LawMemo
California's Fair Employment and Housing Commission put out new proposed regs on June 20 dealing with required sex harassment training for supervisors.
One interesting proposal is that when counting employees (the regs apply only to employers with 50 or more employees), you count employees at all locations, including locations outside of California.
Also, the regs cover all supervisors that supervise California employees, whether or not the supervisors work in California.
See The Commission’s Modified, June 20, 2006 Proposed Regulations (pdf)
More details on the FEHC web site.
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Family Responsibility Discrimination (FRD)
July 11, 2006 by Ross Runkel at LawMemo
At Hastings College of The Law there's a program called Center for Worklaw Life. Elsewhere, I mentioned an article they published: Litigating the Maternal Wall.
They've coined a new phrase, so listen up.
Family Responsibility Discrimination (FRD)
What is it?
This quote from the Center's web site:
Pregnant women, mothers and fathers of young children, and employees with aging parents or sick spouses/partners may find themselves discriminated against. They may be rejected for employment, demoted, harassed, passed over for promotion, or terminated – despite good performance evaluations – simply because their employers make personnel decisions based on stereotypical notions of how they will or should act.
Here are some examples of Family Responsibilities Discrimination:
- firing pregnant employees or telling them to get an abortion if they wish to remain employed;
- giving promotions to less qualified fathers or women without children rather than to highly qualified mothers;
- developed hiring profiles that expressly excluded women with young children;
- terminating employees without a valid business reason when they return from maternity or paternity leave;
- giving parents work schedules that they cannot meet for childcare reasons while giving nonparents different schedules; and
- fabricating work infractions or performance deficiencies to justify dismissal of employees with family responsibilities.
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Systemic compensation discrimination - new regs
June 21, 2006 by Ross Runkel at LawMemo
US Department of Labor's Office of Federal Contract Compliance Programs has published formal standards for interpreting the anti-discrimination requirements of Executive Order 11246, with the focus on systemic compensation discrimination.
Key features:
- (1) Adopts the EEOC's method for determination which employees are similarly situated - similarity of work, level of responsibility, skills, and qualifications.
- (2) Relies on multiple regression statistical analysis.
- (3) Considers both statistically significant compensation disparities and anecdotal evidence.
- (4) Describes voluntary guidelines for self-evaluation, and provides incentives for using them.
Full text: Final Interpretive Standards For Systemic Compensation Discrimination Under Executive Order 11246 (06/16/2006)
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$48.9 Million In EEOC-Verizon Pregnancy Bias Settlement
June 07, 2006 by Ross Runkel at LawMemo
12,326 women will share in a $48,900,000 settlement between EEOC and Verizon Communications.
Sounds big. It comes to less than $4,000 per individual.
This followed lawsuits filed by EEOC against two of Verizon's predecessors: NYNEX and Bell Atlantic.
The suits alleged that the companies violated Title VII of the 1964 Civil Rights Act, the Pregnancy Discrimination Act of 1978, the Equal Pay Act of 1963, and the Civil Rights Act of 1991, by denying female employees service credit related to pregnancy and maternity leaves of absence taken between July 2, 1965 and April 28, 1979, and care for newborn children leaves of absence taken between July 2, 1965 and December 31, 1983.
EEOC's press release: Class Of Women To Receive $48.9 Million In EEOC-Verizon Pregnancy Bias Settlement.
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EEOC settles cases
May 22, 2006 by Ross Runkel at LawMemo
EEOC has announced the following settlements:
- $750,000 to settle a claim that a high-level manager of NEA-Alaska (an affiliate of National Education Association) subjected three female employees to abusive treatment on a daily basis. National Education Association and Alaska Affiliate to Pay $750,000 for Harassment of Women
- $1,000,000 plus to settle a claim against the Commonwealth of Massachusetts alleging age discrimination in administering accidental disability retirements under the Massachusetts public retirement systen. EEOC Announces Age Bias Settlement with State of Massachusetts Will Net Millions for Victims
- $600,000 to settle a claim against Nine West and Jones Apparel Group alleging sexual harassment, national origin harassment and retaliation. Nine West, Jones Apparel Group to Pay $600,000 to Settle National Origin and Sex Bias Suit
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Sex harassment meets first amendment - court ducks the issue
April 20, 2006 by Ross Runkel at LawMemo
A comedy writer's assistant claimed that the sexually explicit banter by the writers was sexual harassment. She lost, of course, because she was forewarned that this would happen, and the writers' work was to generate an adult-oriented TV comedy (Friends) that featured sexual themes. Most of the banter was not directed at her or at other women in the workplace.
Lyle v. Warner Bothers Television (California 04/20/2006).
The California Supreme Court had previously announced that it might be addressing the question of whether imposing liability under California's Fair Employment and Housing Act (FEHA) would infringe on the defendants' free speech rights. Alas, because the plaintiff could not make out a prima facie case, the court was able to avoid deciding the first amendment issue.
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Jespersen v. Harrah's Operating Co - a satire
April 18, 2006 by Ross Runkel at LawMemo
The 9th Circuit held that the following work rules were legal under Title VII because they did not create "unequal burdens" for men and women, and because they did not involve sex stereotypes:
- Women must wear makeup, stockings, and colored nail polish.
- Males are prohibited from wearing makeup or colored nail polish.
- Women must wear their hair teased, curled, or styled.
- Men must maintain short haircuts and neatly trimmed fingernails.
I offer the following rules, which will not result in "unequal burdens" and will not be sex stereotypes, according to the 9th Circuit's "reasoning" -
- Female judges must wear pink robes.
- Male judges must wear blue robes.
- Female lawyers must wear pointy-toed shoes.
- Male lawyers must wear square-toed shoes.
- Female lawyers must greet the bench with a curtsey.
- Male lawyers must greet the bench with a bow.
- Female lawyers must wear red jackets.
- Male lawyers must wear black jackets.
Perhaps you can think of a few more.
The case: Jespersen v. Harrah's Operating Co (9th Cir en banc 04/14/2006).
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Gender-based grooming code survives Title VII attack
April 16, 2006 by Ross Runkel at LawMemo
The 9th Circuit - en banc, 7-4 - has upheld an employer's grooming code that expressly contains different standards for women than for men. The decision leaves me wondering whether that court ever reads the statute.
Jespersen v. Harrah's Operating Co (9th Cir en banc 04/14/2006).
| Employment Law Memo notified its readers about this case in the 04/17/2006 issue, emailed on 04/16/2006. |
Basic facts: Female bartenders were required to wear makeup, stockings, and colored nail polish, and to wear their hair teased, curled, or styled. Males were prohibited from wearing makeup or colored nail polish, and were required to maintain short haircuts and neatly trimmed fingernails.
The court held that these rules did not violate Title VII, and analyzed the case along two lines of reasoning.
Unequal burdens test
- The court applied the "unequal burdens" test announced in Franks v. United Airlines, 216 F3d 845 (9th Cir 2000) (en banc). Even though the employer's code expressly differentiated between the sexes, the court said it is not "facially discriminatory." (A facially discriminatory rule can be upheld only if it is a BFOQ, which this employer could not have proved.)
- An employee has to prove that the rule places a greater burden on one gender than the other. Jespersen did not submit any evidence on this point, and the court refused to take judicial notice of the fact that it takes a good deal of time and money to apply daily makeup.
- Three dissenting judges would take judicial notice of the necessary facts.
- My view:
Utter nonsense. Nothing in Title VII (hello; read the statute) says anything about "equal burdens." This is a judge-made add-on. Apparently this is a special rule just for dress codes, appearance rules, and the like. You can bet the 9th Circuit would laugh at any suggestion that an employer could have gender-different rules as to when employees take lunch, where they park, which computers they can use. Can you imagine a court allowing such gender-different rules on the ground that the "burdens are not unequal"? Did I already say this is utter nonsense?
Not one of the 11 judges challenged the legitimacy of the judge-created "equal burdens" test. They all assumed it was correct. I would have thought one of them might have gone back to read the text of Title VII and ask whether this rule can possibly be derived from the statute.
Assuming an "unequal burden" analysis is the way to go, then I agree 100 percent with the majority when they say that Jespersen needed to present proof. I thought the dissent was stretching things by saying they would take judicial notice of how burdensome it is to put on makeup.
Sex stereotyping
- The court applied the sex stereotyping analysis of Price Waterhouse v. Hopkins, 490 US 228 (1989), and found no stereotyping. The majority said the employer's rules "do not require Jespersen to conform to a stereotypical image that would objectively impede her ability to perform her job requirements as a bartender."
- Four dissenting judges argued that the employer's rules contained a message that "women's undoctored faces compare unfavorably to men's ... because of a cultural assumption - and gender-based stereotype - that women's faces are incomplete ... without full makeup."
- My view:
One of the specific facts in Price Waterhouse was that part of the sex stereotyping had to do with the fact that Hopkins didn't wear makeup. Price Waterhouse is not the easiest case in the world to work with. The sex stereotyping was extreme and extensive, and it's not clear how it should be applied to cases such as Jespersen's
The 9th Circuit majority takes the position that sex stereotyping violates Title VII only when it interferes with the employee's ability to do the assigned job. I see no way to reconcile that view with the US Supreme Court decisions dealing with sex harassment, which have not imposed such a requirement. I see no way to reconcile that view with the text of Title VII, which does not impose such a requirement.
Consider a similar grooming code that differentiated between two religions. The court would laugh the employer out of court. Not here, however, for one simple reason. The grooming code fit the court's own sex stereotypes exactly.
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Transsexuals and Title VII
April 03, 2006 by Ross Runkel at LawMemo
Diane (formerly David) Schroer claims the Library of Congress didn't hire her because she is a transsexual. She changed from male to female. Schroer claims the Library violated Title VII by discriminating against her "because of sex."
There are currently three ways to handle such a case:
- The tradition view is that Title VII does not forbid discrimination because of transsexuality because that's not discrimination "because of sex."
- Recently there has been a theory that such discrimination can come under Title VII because it is "sexual stereotyping" as discussed in Price Waterhouse v. Hopkins, 490 US 228 (1989), but that's a pretty shaky theory.
- A federal district judge in Schroer's suit now says it is possible that a transsexual can show discrimination "because of sex" without relying on sexual stereotyping. The judge denied the employer's motion to dismiss for failure to state a claim, saying that there are facts that Schroer could prove that would establish discrimination "because of sex." Schroer v. Billington (D DC 03/31/2006)
My view: I've got a fourth theory. Let's reason this by analogy to religion discrimination. If Schroer had changed from being a Catholic to being a Mormon, and the Library had refused to hire her for that reason, then I think that would be a clear-cut case of discrimination "because of religion." Schoer changed from being a man to being a woman, so discrimination on that basis is discrimination "because of sex."
Read more about Schroer v. Billington:
- Workplace Prof Blog - Transexual Can Sue for Sex Discrimination Under Title VII
- Jottings By An Employer's Lawyer - Transsexuality - A Third Way
- Leonard Link - Trans Paradigm Shift Under Title VII? (Lengthy, thoughtful comments from an expert on sexuality and the law)
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EEOC goes after sexual harassment
March 11, 2006 by Ross Runkel at LawMemo
EEOC seems serious in its quest to rid the workplace of sexual harassment. Two recent cases yielded a verdict for $1.34 million and a settlement for $90,000.
$1.34 million.
EEOC sued Associated Security Enforcement on behalf of four women, charging sexual harassment and retaliation. For the unpleasant details of the sexual harassment, go read the EEOC press release.
A jury awarded $35,000 each to two women and $25,000 each to the other two to compensate them for the emotional pain and suffering. The jury also awarded a total of $17,000 for back pay for two women.
Punitive damages: The jury also assessed punitive damages of $300,000 each for all four women. Total punitive damages: $1,200,000.
$90,000.
EEOC sued Pand Enterprises (doing business as a McDonald's restaurant franchise) on behalf of a class of teenage male employees claiming sexual harassment by a male supervisor.
The case settled for $90,000 plus a consent decree requiring training and other preventive efforts. EEOC press release.
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Parental leave - mothers and fathers are different
December 15, 2005 by Ross Runkel at LawMemo
Biological differences between mothers and fathers provide a different twist in this sex discrimination case:
- David and Jennie, parents-to-be, both worked for the University.
- Jennie was allowed to use accrued sick leave to be paid for absences after the birth.
- David was not.
David sued claiming violation of the equal protection clause and Title VII. The 8th Circuit denied the claim. Johnson v. University of Iowa (8th Cir 12/15/2005).
The court rejected David's claim that it was unlawful to distinguish between biological mothers and biological fathers. Here's why:
- Paid leave is granted to biological mothers "due to the physical trauma they sustain giving birth," so this is really a form of disability leave.
- This allows biological mothers pregnancy-related disability leave on the same basis as employees with other disabilities, as is required by the Pregnancy Discrimination Act of 1978 (part of Title VII).
As for adoptive parents, the University allowed both to use accrued sick leave, so David also argued that denying similar leave to him (a biological father) was sex discrimination that violated the equal protection clause. The court rejected that argument because:
- This classification is not subject to "strict scrutiny." Biological fathers are not a "suspect class," and the right to paid leave is not a "fundamental right."
- The proper constitutional test is whether the University had a "rational basis" for its distinction.
- "Adoptive parents face demands on their time and finances that may be significantly greater than those faced by biological parents."
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Sexual harassment without sexual conduct
September 06, 2005 by Ross Runkel at LawMemo
Most sexual harassment cases involve conduct that is sexual.
Question: What if the conduct on its face is not sex-related or gender-related, with no sexual overtures, and no gender-specific words?
The 9th Circuit has held that conduct can be sexual harassment within the meaning of Title VII even though there is nothing "sexual" about the conduct. Christopher v. National Education Assoc (9th Cir 09/02/2005).
The court put it this way:
While sex- or gender-specific content is one way to establish discriminatory harassment, it is not the only way: “direct comparative evidence about how the alleged harasser treated members of both sexes” is always an available evidentiary route. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998). The ultimate question in either event is whether “ ‘members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Id. at 80 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)).
My view: The decision is correct.
- Title VII does not focus on harassment and does not focus on sexuality. It's focus is on discrimination. Here, specifically discrimination because of sex.
- "Because of sex" means because of gender, usually because of the gender of the person being harassed.
- So the key is whether one gender is being treated differently than the other gender.
- My favorite hypothetical from teaching a law school class on employment discrimination - the stink-bomb:
The supervisor puts a stink-bomb in an employee's desk. (Assume this is sufficiently "severe" (big stink-bomb) and pervasive (happens every day).) The Title VII question is "why?" Was it because of the employee's sex, race, national origin, religion? If so, then it violates Title VII. Racial harassment need not involve the use of racial slurs; religious harassment need not involve the use of religious words; sexual harassment need not involve anything that one would consider "sexual."
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Gender-specific standards go to en banc hearing
May 16, 2005 by Ross Runkel at LawMemo
The 9th Circuit has ordered [here] an en banc rehearing in Jespersen v. Harrah's Operating Co (9th Cir 12/28/2004), where a 3-judge panel allowed an employer to fire a bartender for non-compliance with gender-specific grooming standards.
Darlene Jespersen sued under Title VII claiming that the employer's policy requiring females to wear makeup was discrimination on the basis of sex. The trial court granted summary judgment for the employer; the 9th Circuit (2-1) affirmed.
Jespersen was a bartender for nearly 20 years and was an outstanding employee. The employer implemented an appearance standard for beverage servers, which included gender-specific standards for male and female beverage servers. Females were required to wear makeup, stockings, and colored nail polish, and to wear their hair teased, curled, or styled. Males were prohibited from wearing makeup or colored nail polish, and were required to maintain short haircuts and neatly trimmed fingernails. Jespersen refused to comply with the requirement to wear makeup, and the employer discharged her for that reason.
(1) The 9th Circuit relied primarily on the "unequal burdens" test announced in Franks v. United Airlines, 216 F3d 845 (9th Cir 2000) (en banc). In the Franks case female flight attendants challenged the employer's weight restrictions because women were held to more strict requirements than men. The court in Franks held that a "sex-differentiated appearance standard that imposes unequal burdens on men and women is disparate treatment that must be justified as a BFOQ."
Applying the unequal burdens test to this case required the court to "weigh the cost and time necessary for employees of each sex to comply" with the employer's policy. (a) First, the court decided that the burdens must be evaluated with reference to all of the requirements of the employer's appearance policy, not merely that portion dealing with wearing makeup. (b) Second, the court considered Jespersen's argument that the makeup rule imposes tangible burdens on women that men do not share because makeup can cost hundreds of dollars a year and requires a significant investment of time. The court noted that Jespersen cited academic literature in support of her cost and time argument, but that she did not submit evidence of the cost and time burdens that apply to female bartenders. (c) Third, even if the court took judicial notice of the academic literature, there was no evidence of the actual burdens that apply to male bartenders, so the court would be unable to weigh the difference.
(2) Jespersen also argued that the employer's policy required employees to conform to sexual stereotypes and that this was made impermissible by Price Waterhouse v. Hopkins, 490 US 228 (1989). The 9th Circuit recognized that Price Waterhouse held that Title VII bans discrimination on the basis of an employee's failure to dress and behave according to the stereotype corresponding to her gender. However, that case did not address sex-differentiated appearance and grooming standards. Also, although the 9th Circuit has "applied the reasoning of Price Waterhouse in sexual harassment cases, we have not done so in the context of appearance and grooming standards cases, and we decline to do so here."
DISSENT: The dissent argued that this was a classic Price Waterhouse case, and that there was no grounding in Title VII for holding that harassing an individual for failure to comply with gender stereotypes is illegitimate while discharging them for the same reason is acceptable. As for the unequal burdens test, the dissent argued that the focus should be on the makeup rule rather than the entire appearance policy, and that the court should weigh more than time and money - the court should also weigh the sex-stereotyping inherent in certain appearance standards.
My view: The 9th Circuit blew it in the original panel decision.
(1) An "equal burden" analysis in a case like this is nonsense. You don't need to even get into the murky realm of Price Waterhouse gender stereotypes. The employer had a double-standard for males and females. Unlawful on its face. If there were some biological basis for the distinction (separate rest rooms, for example), I could be swayed. But not for makeup, hair-teasing, and fingernails.
(2) Worse nonsense is the court's notion that it's legal to fire someone for non-compliance with a gender stereotype, although it's illegal to harass her for the same thing.
Michael Fox first blogged about this case at Jottings By An Employer's Lawyer [here]. His most recent comment is [here].
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Sexual harassment and the church
February 21, 2005 by Ross Runkel at LawMemo
It looks like the 9th Circuit is inviting the Supreme Court to review its recent decision on the interplay between Title VII and the 1st amendment religion clauses. An associate pastor sued her church/employer claiming that her supervisor sexually harassed her, and then she suffered retaliation for filing an EEOC charge, and then she got discharged.
The church argued that the 1st amendment protected it against such suits. The 9th Circuit allowed the retaliation and harassment claims to go forward, but ordered dismissal of any claims for discharge. The court denied a rehearing en banc, and ten judges wrote five opinions.
Elvig v. Calvin Presbyterian Church
Original panel decision (9th Cir 07/23/2004) [Full text pdf]
Order denying rehearing (9th Cir 02/11/2005) [Full text pdf]
The heart of the controversy is the court's formula for dealing with church-minister employment sexual harassment. It goes like this:
First, the 1st amendment overrides Title VII when a church engages in sex discrimination when it hires, fires, or assigns duties to its ministers. That's called the ministerial exception.
Second, Title VII controls when a church engages in sexual harassment of, or retaliation against, its ministers. Therefore, if a church harasses and then discharges a minister because she is a woman, the minister can recover damages for the harassment but not for the discharge.
The 9th Circuit's position is troubling.
Here's my view: Although we attach the label "harassment" to certain kinds of discrimination, that label has no legal significance in Title VII analysis or in constitutional analysis. Sexual harassment is no more or less than a subset of on-the-job sexual discrimination. It is sex-differentiated conduct that changes the employee's terms and conditions of employment, and therefore is no different from assignments to different duties or establishing different rates of pay. These are unlawful under Title VII, but churches should be immune from suit when its ministers are plaintiffs.
There is general agreement that the 1st amendment does not allow Title VII to interfere with the church as to its decisions to hire, fire, and assign duties to its ministers. This protects the relationship between the church and its ministers from government regulation. But some 9th Circuit judges say that harassment suits are analogous to suits under state tort law when a parishioner is sexually abused by a minister. What? That's an analogy?
Elvig's case is an especially good one for 1st amendment protection. Elvig's complaint alleged that her supervisor leered at her and made unwelcome remarks. Government regulation of that activity would involve policing the demeanor (leering) of church ministers and the expression of their opinions (unwelcome remarks). As much as I dislike on-the-job sexual harassment, I think the 1st amendment should protect churches from government regulation of the day-to-day demeanor and expression of one minister to another.
Retaliation for filing an EEOC charge (as opposed to retaliation for complaining within the church) could be a different matter. It could be that there is a "compelling governmental interest" in protecting citizens who use the administrative forum (EEOC) established by Congress.
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Romantically motivated favoritism is not sex discrimination
February 10, 2005 by Ross Runkel at LawMemo
Yesterday's decision in Preston v. Wisconsin Health Fund [Full text pdf] (7th Cir 02/09/2005) demonstrates that Title VII wasn't designed to keep supervisors from playing job favoritism with the objects of their romantic interest. It also demonstrates that Judge Posner's decisions continue to be interesting reading.
Jay Preston, a male, claimed he lost his job to a woman who was romantically involved with his supervisor. He claimed that the loss of his job was the result of his supervisor's favoritism toward the replacement, which resulted from the romantic relationship, and that this constituted gender discrimination in violation of Title VII. He also claimed that the two conspired to tortiously interfere with his contractual relationship with his employer. The 7th Circuit affirmed summary judgment for the employer.
1) With respect to the Title VII claim, the court concluded that "[a] male executive's romantically motivated favoritism toward a female subordinate is not sex discrimination even when it disadvantages a male competitor of the woman." The court observed that "[t]he effect on the composition of the workplace is likely to be nil, especially since the disadvantaged competitor is as likely to be another woman as a man .... Neither in purpose nor in consequence can favoritism resulting from a personal relationship be equated to sex discrimination."
2) With respect to the tortious interference claim, the court observed, "to avoid converting employment at will into employment terminable only for cause, the cases require the plaintiff to prove that the defendant had an improper motive." The court continued, "unless courts are to be overwhelmed by suits by disgruntled former employees against corporate officers, more is required than that a discharge be tainted by some private motive, such as greed, personal dislike, or, in this case perhaps, a personal attachment to a competing employee .... The plaintiff must prove both that the employer did not benefit from the defendant's act and that the act was independently tortious, for example as fraud or defamation." The court concluded that Preston failed to satisfy this standard.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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