This page contains entries under the topic: "Discrimination - Sex" | Main
EEOC sex harassment suit
March 07, 2010 by Ross Runkel at LawMemo
EEOC filed a class lawsuit Friday charging that Jay Medicar Transportation tolerated the sexual harassment of a number of female employees by one of its senior managers and retaliated against one employee after she complained about the harassment.
EEOC said that a top manager at the company allegedly frequently made comments of a sexual nature to subordinate female employees and on at least one occasion demanded sexual favors from an employee in exchange for a pay raise.
Press release 03/05/201:
EEOC Sues Medical Transportation Company For Sex Harassment and RetaliationFederal Agency Says Jay Medicar Allowed Harassment of Female Employees
CHICAGO – The U.S. Equal Employment Opportunity Commission (EEOC) filed a class lawsuit here today charging that Jay Medicar Transportation tolerated the sexual harassment of a number of female employees by one of its senior managers and retaliated against one employee after she complained about the harassment. The company provides medical transportation services in the Chicago area.
John Rowe, EEOC district director in Chicago, said that the EEOC’s administrative investigation which he directed revealed that a top manager at the company allegedly frequently made comments of a sexual nature to subordinate female employees and on at least one occasion demanded sexual favors from an employee in exchange for a pay raise.
“Several people complained to the company’s management repeatedly,” Rowe said of the investigation. “These complaints were allegedly ignored, and one female employee who complained appears to have been fired shortly after the company learned that she had filed a charge with the EEOC.”
The EEOC’s lawsuit was brought under Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination (including sexual harassment) as well as retaliation, in employment. The EEOC filed suit after first attempting to reach a voluntary settlement through its statutory conciliation process. The case, EEOC v. Jay Medicar Transportation, LLC, a/k/a Jay Transportation, f/k/a Jay Medi-Car, Inc, Civil Action No. 10 cv 01477, was filed today in U.S. District Court for the Northern District of Illinois, Eastern Division, and has been assigned to U.S. District Judge William J. Hibbler and U.S. Magistrate Judge Geraldine Soat Brown. EEOC Trial Attorney Justin Mulaire and Supervisory Trial Attorney Gregory Gochanour will litigate the case on behalf of the government.
The EEOC regional attorney in Chicago, John Hendrickson, said, “Unfortunately, even in times of economic stress, some employers continue to penalize themselves through harassment and retaliation. Both may well involve exposure to awards of damages, loss of good will, significant attorneys’ fees, and other litigation costs—not to mention major distractions from the conduct of business itself. From our perspective at the EEOC, it would seem that, in a competitive business environment in tough times, compliance with federal law is surely a better investment.”
The EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.
The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.
$33,000 settles sexual harassment case
March 05, 2010 by Ross Runkel at LawMemo
EEOC claimed that a female office clerk at HD Supply, Inc was sexually harassed and ridiculed by a male co-worker.
The suit settled for $33,000 and other relief.
$11.7 million settles Walmart sex discrimination suit
March 05, 2010 by Ross Runkel at LawMemo
Walmart has agreed to pay more than $11.7 million to settle a suit by EEOC.
EEOC claimed that a Walmart distribution center denied jobs to female applicants from 1998 through February 2005, regularly hiring male entry-level applicants for warehouse positions, but excluding female applicants who were equally or better qualified.
EEOC alleged that Walmart regularly used gender stereotypes in filling entry-level order filler positions, and that hiring officials told applicants that order filling positions were not suitable for women, and that they hired mainly 18- to 25-year-old males for order filling positions.
$5 million EEOC consent decree: Employer complies
February 22, 2010 by Ross Runkel at LawMemo
A federal district court has lifted a consent decree, finding that Woodward Governor Co has complied.
The decree resulted in $5 million being distributed to minority and female employees.
The decree also required that Woodward use a psychologist to analyze jobs, develop written job descriptions, a performance appraisal, and compensation review process.
Woodward was required to review the job assignments of its current production employees and adjust them as necessary based on the new job descriptions.
$4,560,285.11 attorney fee against EEOC
February 13, 2010 by Ross Runkel at LawMemo
A federal district court has ordered EEOC to pay $4,560,285.11 in attorney fees and expenses to CRST Van Expedited, Inc.
EEOC sued CRST on behalf of about 270 women, claiming a pattern or practice of sex discrimination.
The court dismissed EEOC's complaint in April 2009, in part because “the EEOC did not conduct any investigation of the specific allegations of the allegedly aggrieved persons for whom it seeks relief at trial before filing the Complaint - let alone issue a reasonable cause determination as to those allegations or conciliate them.”
CRST was represented by Jenner & Block and Simmons Perrine Moyer Bergman PLC.
$500,000 settles national origin and sex discrimination suits
February 07, 2010 by Ross Runkel at LawMemo
EEOC claimed that a hotel refused to hire non-Chinese banquet servers because of their national origin.
EEOC also claimed that the hotel subjected female employees to a sexually hostile work environment.
The two suits have been settled for $500,000 and a three-year consent decree.
EEOC Press release 02/03/2010:
Landwin Management to Pay $500,000 for National Origin Bias and Sexual HarassmentEEOC Said Hotel Refused to Hire Non-Chinese Banquet Servers and Subjected Women to Verbal Abuse
LOS ANGELES – The U.S. Equal Employment Opportunity Commission (EEOC) today announced the settlement of two lawsuits against Landwin Management, Inc., a San Gabriel, Calif.-based hotel operator, for $500,000 and significant remedial relief in cases alleging national origin discrimination and sexual harassment. Both suits were filed in September 2007 under Title VII of the Civil Rights Act of 1964.
In the first lawsuit (Case No. CV 07-06169 SJO), the EEOC charged that non-Chinese banquet servers were rejected for hire based on their national origin when the San Gabriel Hilton severed its contract and hired Landwin Management to operate the establishment in April 2005. The EEOC said that all the non-Chinese banquet servers who previously worked for the hotel at the time, many of whom were Latino, were not hired back during the turnover and instead replaced with less qualified Chinese workers.
In the second suit (Case No. CV 07-05916 PA), the EEOC alleged that the San Gabriel Hilton subjected female employees to a sexually hostile work environment, including verbal sexual harassment by the housekeeping department supervisor, who referred to the women as “whores” and “prostitutes” in addition to other offensive language. The supervisor also allegedly reprimanded the female employees if they even spoke to men, and Landwin failed to respond to the employees’ complaints of harassment.
In addition to the $500,000 in monetary relief, a three-year consent decree settling the two lawsuits will also ensure that (1) Landwin will implement hiring and recruiting goals for Hispanic employees; (2) Landwin will revise its written policies on discrimination, sexual harassment and recruitment and hiring; (3) employees will receive annual training regarding discrimination, including national origin discrimination and sexual harassment; (4) Landwin will retain an EEO monitor / consultant named by the Commission to assist with recruiting, hiring, training, revision of policies and record-keeping procedures; and (5) the company will provide annual reports to the EEOC regarding its employment practices.
“The days when employers make decisions based on stereotypes and assumptions shaped by the race or national origin of their employees should be far behind us,” said Anna Y. Park, the regional attorney for the EEOC’s Los Angeles District Office. “Further, sexual harassment should no longer be tolerated in any workplace, and employers should never condone or overlook the mistreatment of vulnerable victims, such as monolingual Spanish-speaking women.”
EEOC Los Angeles District Director Olophius Perry added, “Employers must take appropriate corrective action when they receive harassment complaints. We hope that other employers take the lead of the San Gabriel Hilton and take proactive action to ensure EEO compliance. Businesses should take advantage of EEOC trainings that are available to encourage compliance and proactive prevention.”
The EEOC Training Institute provides a wide variety of training to assist employers in educating their managers and employees on the laws enforced by EEOC and how to prevent and correct discrimination in the workplace. More information is available at http://www.eeoc.gov/field/washington/training.cfm.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.
Rehire and back pay settles sex discrimination case
February 07, 2010 by Ross Runkel at LawMemo
EEOC claimed that a hotel company fired a banquet manager because of his sex and because he complained that a female co-worker was not disciplined for the same purported infraction.
The company agreed to pay compensation to the employee for losses he sustained, and to rehire him at one of its hotel properties.
EEOC Press release 02/03/2010:
Columbia Sussex Settles EEOC Sex Discrimination and Retaliation SuitBaton Rouge Sheraton Hotel Fired Employee Because of Gender and As Retaliation for Complaining, Federal Agency Said
HOUSTON — Columbia Sussex Corporation, which owns and operates hotel properties across the United States, has agreed to settle a sex discrimination and retaliation suit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The settlement resolves the charge of a former banquet manager, Richard Knight, who claimed that Columbia Sussex fired him from its Sheraton Hotel in Baton Rouge, La., because of his sex, male, and because he complained that a female co-worker was not disciplined for the same purported infraction.
According to the EEOC’s suit, Columbia Sussex terminated Knight because he complained about the general manager’s better treatment of Knight’s female co-worker during a meeting. In that meeting, the general manager ultimately demanded that Knight go into his office without the presence of a human resource representative, but did not force Knight’s female co-worker to proceed without a representative. When Knight asked the general manager whether he was granting privileges to the female manager that he would not grant to Knight, the general manager replied that he could do whatever he wanted and then he immediately terminated Knight. The female manager was not disciplined.
Sex discrimination and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit (No. 07-701 in U.S. District Court for the Middle District of Louisiana) after first attempting to reach a pre-litigation settlement.
In settlement of the case, Columbia Sussex agreed to pay compensation to Knight for losses he sustained, and to rehire him at one of its hotel properties. Columbia Sussex entered into a three-year consent decree, agreeing to annual training of personnel regarding sex discrimination and retaliation. Columbia Sussex also agreed not to rehire the official who had terminated Knight.
Knight commented on the settlement, “I am very grateful that the EEOC brought this case on my behalf. I love the hotel industry. My main goal was always to get my job back. I am excited to get back to work with Columbia Sussex in my chosen field.”
Jim Sacher, the EEOC’s regional attorney for the Houston District, which encompasses EEOC litigation in Louisiana, said, “This is a constructive outcome for the EEOC, Mr. Knight and for current and future employees of Columbia Sussex. The EEOC takes all claims of sex discrimination very seriously, including those where the victim is a man. The Commission also closely scrutinizes retaliation claims, because they fundamentally impact our ability to enforce the law, encourage a fair workplace and seek relief for victims.”
According to company information, Columbia Sussex, a privately held corporation, has approximately 70 hotels across the United States, the Caribbean and Canada, operating under brands such as Marriott, Hilton, Westin and Sheraton.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its web site at www.eeoc.gov .
$380,000 sex discrimination settlement
February 07, 2010 by Ross Runkel at LawMemo
The EEOC brought two suits against The Boeing Company, alleging gender-based harassment and retaliation involving three employees.
The suits were settled for $380,000, an injunction prohibiting future discrimination and retaliation, and other relief.
EEOC Press release 02/01/2010:
Boeing Settles Two EEOC Sex Discrimination and Retaliation Lawsuits for $380,000PHOENIX -- Chicago-based The Boeing Company, an aerospace giant that manufactures military aircraft and commercial jetliners, has agreed to pay $380,000 and administer far-reaching injunctive measures to settle two lawsuits brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
In one case, filed in 2005 (EEOC v. The Boeing Company, 05cv03034 PHX FJM), the EEOC brought sex discrimination and retaliation claims against Boeing on behalf of two female engineers at Boeing’s Mesa, Arizona facility. Antonia Castron complained of gender-based harassment, including sexist remarks, creating a hostile environment and, a few days later, she found herself transferred to a new unit that did not suit her skill set. Less than two months after the transfer, Boeing laid her off, purportedly because she could not perform as well as other engineers in her new unit.
“Instead of stopping the harassment or reprimanding the men who tormented me, they moved me to a unit that designed structures,” said Castron. “I was skilled at electrical engineering. That’s like asking a heart surgeon to do brain surgery. Then they evaluated me for layoff based on my ability to perform structural work. They set me up for layoff.”
The EEOC claimed that Boeing managers harbored discriminatory and retaliatory motives when it transferred and terminated Castron. Manufacturing engineer Renee Wrede twice complained of sex-based harassment, and twice Boeing’s internal investigators substantiated her complaints. Nonetheless, according to the EEOC, the company allowed her harassers to influence her layoff evaluations and reduce her scores. As a result, Wrede also received a layoff notice in October 2002. The EEOC’s investigation showed that Boeing manipulated evaluation scores used in its October 2002 reduction in force to justify the terminations of Wrede and Castron.
“An employer is only setting itself up for more trouble when it punishes a worker for exercising her right to complain about unlawful activity in the workplace,” said EEOC Acting Chairman Stuart J. Ishimaru. “The EEOC is always especially concerned when we uncover this kind of unlawful retaliation. It chills witnesses and victims from reporting illegal discrimination at work, and therefore interferes dangerously with the Commission’s law enforcement efforts.”
In an earlier lawsuit (EEOC v. The Boeing Company, CV-03-1210-PHX-PGR), the EEOC sought relief on behalf of Kelley Miles, a female mechanic at the Mesa facility, who works on the Apache helicopter that Boeing manufactures for the U.S. Army. The EEOC charged that Boeing allowed Miles’ co-workers to harass her on an ongoing basis due to her gender and allowed one or more managers to contribute to that harassment without taking appropriate steps to address the behavior. Much of the harassment directed at Miles was designed to make it more difficult for her to perform her job, the EEOC said. Male co-workers took Miles’ tools and either broke them, hid them, or changed the adjustments before returning them. Other harassment was sexual in nature. Miles reported this conduct to Boeing’s Human Resources Department, but the company did nothing to address it. As a result, the harassment continued.
The suit also charged that Boeing retaliated against Miles for complaining about gender-based harassment. After Miles reported her co-workers’ conduct to Boeing’s Human Resources Department, a manager warned several of Miles’ co-workers to be careful of what they said to her because the manager had them on a list.
Boeing’s alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex (including sexual harassment or pregnancy) or national origin and protects employees who complain about such offenses from retaliation.
The consent decrees reached between the parties provide for $380,000 in monetary relief for Castron, Wrede and Miles and an injunction prohibiting future discrimination and retaliation. Further, the EEOC obtained curative relief, such as training, to prevent Boeing from engaging in any further discrimination and retaliation.
“The right of an employee to oppose discrimination in the workplace is fundamental,” said Mary Jo O’Neill, regional attorney for the EEOC’s Phoenix District Office. “Employees should be able to report discrimination without fearing that their employers will make the situation worse by retaliating against them.”
Rayford Irvin, EEOC acting district director in Phoenix, added, “Covert attempts to mask discriminatory and retaliatory motives, such as Boeing employed, will fool no one.”
The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.
EEOC defends MSJ; employee trying to become pregnant
January 31, 2010 by Ross Runkel at LawMemo
EEOC successfully defended a motion for summary judgment filed by Menards hardware store.
EEOC is claiming that the store discriminated against an employee on the basis of her sex by demoting her because she underwent surgery to prepare her for in-vitro fertilization.
$79,880 settles pregnancy discrimination suit
January 31, 2010 by Ross Runkel at LawMemo
U.S. Security Associates, Inc. will pay $79,880 to settle a pregnancy discrimination suit brought by the EEOC, which charged the company with unlawfully subjecting a security guard to pregnancy discrimination and then firing her in retaliation for complaining about it – in addition to firing her husband, a coworker, for supporting her in the matter.
School not liable when it passed off sexual assaulter to another school where student was assaulted.
January 24, 2010 by Ross Runkel at LawMemo
The sad facts alleged in this case are that officials at School #1 knew one of its teachers had been sexually assaulting grade-schoolers, they did not report this, and instead they allowed the teacher to resign and get a new job at School #2.
Guess what? The teacher assaulted a student at School #2.
The student sued School #1 and its officials and lost. The 7th Circuit held that the student could get no legal help from either title IX or Illinois tort law.
Doe-2 v. McLean Cnty Unit Dist (7th Cir 01/22/2010)
Doe-2, a grade school student at Urbana school district, was sexually assaulted by a teacher. The teacher previously worked at McLean school district, where he had assaulted students. Doe-2 sued the McLean district and its officials, claiming its officials knew of the assaults, did not report them, and then allowed the teacher to resign and get a new job at Urbana. The 7th Circuit held that Doe-2 did not state a claim under Title IX or Illinois tort law.
(1) Doe-2 did not state a claim under Title IX. A student can recover damages from a school district for a teacher's sexual harassment, but only if the district had "substantial control over both the harasser and the context in which the known harassment occurs." Davis ex rel LaShonda D v. Monroe Cnty Bd of Educ, 526 US 629 (1999). Here, even if McLean officials knew of the risk of future assaults, they "lacked the requisite control over such harassment to incur Title IX liability" because they had no supervisory authority over the teacher after he ended his employment there.
(2) Doe-2 did not state a claim under Illinois tort law for willful and wanton misconduct for four reasons: (a) a person ordinarily has no duty to act affirmatively to protect another from criminal attack by a third person; (b) Illinois' child abuse reporting statute does not create any duty to the abused child when a person fails to report abuse; (c) McLean officials had no "special relationship" with Doe-2 that would trigger a legal duty to protect her; and (d) even though McLean officials may have foreseen a risk that the teacher would assault Urbana students, this did not create a duty to protect them, absent a special relationship.
$55,177 awarded to transgender employee
January 15, 2010 by Ross Runkel at LawMemo
An ALJ with the New York Division of Human Rights has awarded $5,177 in back wages plus $50,000 in mental anguish damages to a transgender former employee of the New York State Thruway Authority.
The ALJ's order said that the work atmosphere encouraged other employees to engage in making disparaging remarks about her sex and gender identity disorder.
[Article]
$1,505,000 settles sex and age discrimination suit
January 08, 2010 by Ross Runkel at LawMemo
EEOC and Arapahoe Motors d/b/a Ralph Schomp Automotive have settled a sex and age discrimination suit for $1,505,000.
EEOC claimed that five women were subjected to sex discrimination and a sexually hostile work environment, including offensive verbal comments and physical touching, demotion, refusal to transfer, salary reduction, and failure to promote.
EEOC also claimed that five older male employees were terminated because of their ages and replaced with younger, less experienced workers, and that a manager in his twenties made age-related comments prior to the terminations and younger employees with lower sales numbers were retained.
$110,000 settles sexual harassment suit
January 08, 2010 by Ross Runkel at LawMemo
EEOC claimed that management and coworkers at a car dealership sexually harassed female employees.
The EEOC further charged that some women were repeatedly told that women should not be in the car business, and that when the women tried to complain about the daily verbal harassment, they suffered retaliation in the form of discipline, demotions and/or terminations.
The suit settled for $110,000 which was provided for nine claimants.
EEOC suit claims sex discrimination
January 08, 2010 by Ross Runkel at LawMemo
EEOC sued K-Designers on Tuesday claiming management subjected a sales manager to unlawful sex discrimination and retaliation for complaining about sexual harassment by her branch manager.
The alleged discrimination included denying the sales manager training and staff, attempting to isolate her from other employees, placing her on disability leave when she was able to work, and ultimately terminating her.
$19,000,000 settles sex discrimination suit
December 30, 2009 by Ross Runkel at LawMemo
EEOC and Outback Steakhouse have settled a claim that Outback discriminated against thousands of women at hundreds of its restaurants. Outback will pay $19 million and furnish significant remedial relief.
EEOC claimed that Outback discriminated against females with respect to the terms and conditions of employment and denied them equal opportunities for advancement, and that females hit a glass ceiling and could not get promoted to the higher-level profit-sharing management positions in the restaurants.
Also, EEOC alleged that women were denied favorable job assignments, particularly kitchen management experience, which was required for employees to be considered for the top management job in the restaurants.
$1,073,261 judgment in sex and race discrimination case
December 30, 2009 by Ross Runkel at LawMemo
EEOC sued claiming that Whirlpool Corporation failed to protect a black female employee from persistent harassment by a white male coworker, which ultimately resulted in her being physically assaulted by him.
Following a bench trial, a federal district court awarded the employee $773,261 in back pay and front pay, and $300,000 in compensatory damages.
EEOC settlements
December 04, 2009 by Ross Runkel at LawMemo
$175,000 settles a claim that The Kohler Company discriminated against a pregnant sales executive by firing her due to her gender and her pregnancy, less than one month prior to her delivery date.
[EEOC press release]
$35,000 settles a claim that EaglePicher Technologies fired an employee in retaliation for her complaints of sex discrimination and her participation in a 2003 discrimination lawsuit filed by the EEOC. Because EaglePicher is in bankruptcy, the employee is expected to receive just over $12,000.
[EEOC press release]
Same-sex harassment: Absurd decision by the 5th Circuit
October 22, 2009 by Ross Runkel at LawMemo
Connie Love claimed her employer violated Title VII because a female co-worker subjected her to sexual harassment through inappropriate comments, gestures, and physical contacts. The 5th Circuit, in a "non-precedential" 2-1 decision, upheld summary judgment for the employer, saying that
- Love failed to show that the alleged harasser made "explicit or implicit proposals of sexual activity."
- Love failed to provide "credible evidence that the harasser was homosexual."
Love v. Motiva Enterprises (5th Cir non-precedential 10/16/2009) (2-1).
The majority has totally gone off the deep end, and has engaged in simple judicial fabrication - grafting onto Title VII requirements that are not there.
Title VII prohibits "discrimination" "because of ... sex." Harassment is just one way that discrimination can occur - hiring, firing, promoting, harassing.
Nothing in the statute even suggests that a harasser has to be proposing sexual activity in order to violate Title VII. The statute is not about sexual activity or sexuality.
Nothing in the statute suggests that if one women is harassing another woman, the harasser has to be a homosexual in order to violate Title VII.
Let's see what the judges said.
- The majority said Love failed to prove that her co-worker made either explicit or implicit proposals for sexual activity. The court reasoned that the co-worker's "offensive and inappropriate" comments and physical touchings "do not support an inference of sexual attraction and implicit proposals for sex in light of [the co-worker's] consistent insults toward Love and demonstrated negative feelings about Love and her appearance."
- The dissent said, "Oncale v. Sundowner Offshore Svcs, 523 US 75 (1998) ... made abundantly clear that, for a plaintiff to prove that she was sexually harassed, she need not show that the harasser was 'motivated by sexual desire.'"
- The majority said Love failed to prove that her co-worker was a homosexual. The court reasoned that Love failed to provide credible evidence that the co-worker was a homosexual, saying that her evidence was not "clear and credible proof that [the co-worker] is homosexual sufficient to defeat summary judgment."
- The dissent said "Oncale v. Sundowner Offshore Svcs, 523 US 75 (1998) ... does not require that a plaintiff show that a same-sex harasser was either amorously motivated or homosexually oriented, as the majority opinion seems to suggest: rather, she need merely show that she was harassed 'because of sex.'"
Hats off to the dissent.
National Education Association affiliate to pay for allegedly harassing women again
September 14, 2009 by Ross Runkel at LawMemo
$170,000 plus $750,000 equals $920,000. This was the cost of settling EEOC charges that an executive director delivered a daily barrage of abusive treatment to female employees.
EEOC press release 09/14/2009:
ANCHORAGE, Alaska – The Alaska affiliate of the National Education Association (NEA-AK) has agreed to provide $170,000 and other relief to settle a federal lawsuit charging that its executive director targeted four female employees for severe harassment because of their gender, the U.S. Equal Employment Opportunity Commission (EEOC) announced today. This is EEOC’s second lawsuit against the NEA-AK charging gender-based harassment; the earlier case was settled on behalf of three other women for $750,000 in 2006 (EEOC and Christopher v. NEA-AK and NEA, CV 01-0225 (JKS).According to the EEOC’s most recent lawsuit, then-Executive Director Thomas Harvey delivered a daily barrage of abusive treatment to female employees and treated men less harshly. The women described Harvey’s face turning bright red and his neck veins bulging out as he shook his fists in their faces and yelled and screamed at them, often reducing these employees to the point of tears. The EEOC also alleges that although top management officials at NEA-AK were aware of Harvey’s abusive behavior, either from directly witnessing it or from receiving complaints, they took no action to stop the abusive behavior and in fact promoted Harvey to his executive position during the EEOC’s first lawsuit on similar charges. The agency’s investigation found that Harvey’s conduct continued through that litigation and resulted in this second lawsuit.
Former Associate Staff Ellen Cruse, who worked at the union for over 20 years, stated, "I am glad this is over and I am able to fully close that chapter. One would hope that NEA-Alaska, after having settled claims with seven current or former employees, would take greater care and attention to the treatment of their employees."
Harassment based on gender violates Title VII of the Civil Rights Act of 1964, which also protects employees who report such offenses from retaliation. The EEOC filed the suit (EEOC and Poole v. NEA-AK, NEA and Thomas Harvey, Civil Action No. 07-00197 RRB) in the U.S. District Court for Alaska after a neutral investigation by EEOC investigator Karen McCloskey and first attempting to reach a voluntary settlement through the agency’s conciliation process. One of the female employees, Denise Poole, intervened in the EEOC’s suit and named the National Education Association and Thomas Harvey as additional defendants pursuant to state law claims. Those state claims were also settled for an unspecified amount.
In addition to the monetary relief to be shared by four women, NEA-AK has agreed to review its employment policies to ensure that they protect employees against discrimination; provide effective means to address complaints of discrimination; and educate employees about their rights and responsibilities in the workplace. Also, NEA-AK is required to report to the EEOC for four years on its compliance with the consent decree settling the suit.
“We do see repeat offenders in our line of work, but it is rare to sue the same employer for the same extreme harassment by the same manager, under the same top management,” said EEOC Regional Attorney William Tamayo. “If this is what it takes to send the message though, the EEOC will not hesitate to continue to take action against illegal workplace harassment.”
EEOC San Francisco District Director Michael Baldonado added, “It is unfortunate that a teachers’ union, whose primary purpose is to protect union members from abusive work practices, would allow this type of egregious, unchecked harassment to happen to employees in its own workplace.”
According to www.nea.org, the NEA is the nation's largest professional employee organization, representing 2.7 million elementary and secondary teachers, higher education faculty, education support professionals, school administrators, retired educators and students preparing to become teachers. On its web site www.neaalaska.org, NEA-Alaska claims over 11,000 members in 65 local affiliates throughout the state, and has 26 staff working in offices in Anchorage, Juneau and Fairbanks.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.
Who is "management" in co-worker sexual harassment cases?
June 12, 2009 by Ross Runkel at LawMemo
Priscilla Huston claimed she was sexually harassed by co-employees. A couple of other folks at the company had knowledge of the harassment.
The legal question was whether these other folks were "management." If they were management, then their knowledge would be inputted to the company, so now the company would know. Huston v. Procter & Gamble (3rd Cir 06/08/2009)
Huston lost.
More important, however, is that the 3rd Circuit spelled out the legal basis for holding the employer liable for co-worker harassment.
In order to prevail on a claim for hostile environment sexual harassment under Title VII, an employee must establish a basis for employer liability. In the context of co-worker (rather than supervisor) sexual harassment, employer liability exists “only if the employer failed to provide a reasonable avenue for complaint, or alternatively, if the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.”
The 3rd Circuit concluded that an employee’s knowledge of co-worker sexual harassment may be imputed to the employer in two circumstances:
First, knowledge of sexual harassment will be imputed where the employee is sufficiently senior in the employer’s governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, so that such knowledge is important to his general managerial duties. The court identified departmental or plant managers as examples of such employees.
Second, knowledge of sexual harassment will be imputed to the employer when the employee is specifically employed to deal with sexual harassment. The court stated, “[w]e clarify that mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status [in this context].” The court explained, “to the extent that such a supervisor does not have a mandate generally to regulate the workplace environment, that supervisor does not qualify as management level.”
SCOTUS - Seniority system trumps pre-PDA pregnancy differential
May 18, 2009 by Ross Runkel at LawMemo
Once again, the US Supreme Court has applied Title VII §703(h) to insulate from Title VII liability a current seniority system based in part on old differentials based on pregnancy.
Also, the Court said the Lilly Ledbetter Fair Pay Act of 2009 did not apply to pre-PDA differentials because they were not "discriminatory" at the time.
AT&T Corp v. Hulteen (US Supreme Court 05/18/2009)
Prior to the Pregnancy Discrimination Act (PDA), enacted in 1978, the employer based pension calculations on a seniority system that relied on years of service minus uncredited leave time, giving less retirement credit for pregnancy absences than for medical leave generally.
Upon enactment of the PDA in 1978, the employer replaced its old plan with the Anticipated Disability Plan, which provided the same service credit for pregnancy leave as for other disabilities prospectively, but did not make any retroactive adjustments for the pre-PDA personnel policies. Employee Hulteen therefore received less service credit for her pre-PDA pregnancy leave than she would have for general disability leave, resulting in a reduction in her total employment term and, consequently, a smaller pension.
The lower courts held that this violated Title VII.
The US Supreme Court reversed (7-2), holding that an employer does not necessarily violate the PDA when it pays pension benefits calculated in part under an accrual rule, applied only pre-PDA, that gave less retirement credit for pregnancy than for medical leave generally. Because the employer's pension payments accord with a bona fide seniority system's terms, they are insulated from challenge under Title VII §703(h).
The Lilly Ledbetter Fair Pay Act of 2009 did not apply to this case because the employer's pre-PDA decision not to award Hulteen service credit for pregnancy leave was not discriminatory, with the consequence that Hulteen has not been "affected by application of a discriminatory compensation decision or other practice."
Supreme Court accepts post-argument briefs in AT&T v Hulteen
March 02, 2009 by Ross Runkel at LawMemo
AT&T v. Hulteen [details here] was argued at the US Supreme Court on December 10, 2009. The issue involves the retroactive application of the Pregnancy Discrimination Act.
After arguments, Congress enacted the Lilly Ledbetter Act.
Both parties requested permission to file briefs relating to the impact of the Ledbetter Act, and today the Supreme Court accepted the briefs. [Order] [Links to briefs] Just a formality, of course, but an important one.
Previous post on the arguments made in these briefs is [here].
$161,000 settlement of EEOC sexual harassment suit
February 28, 2009 by Ross Runkel at LawMemo
Big Vanilla Athletic Club to Pay $161,000 to Settle EEOC Lawsuit for Sexual Harassment is the tile of the EEOC's press release:
A Maryland athletic club will pay $161,000 and furnish other substantial relief to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced [February 26, 2009].According to EEOC’s suit, (1:08:00518-CCB, filed in U.S. District Court for the District of Maryland, Northern Division), BVP, LLC and N.F.A.C., Inc., doing business as Big Vanilla Pasadena and Big Vanilla Athletic Club, violated federal law by sexually harassing several female employees at the company’s Pasadena and Arnold, Md., locations. The EEOC said Joella Hopkins, Melissa Mendez, Michelle Cabral and Dawn Wooden were subjected to repeated and unwanted sexually offensive remarks and sexual advances. Further, the EEOC charged that Hopkins, Cabral and Wooden were fired in retaliation for their complaints about the discrimination.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a voluntary settlement.
In addition to the monetary relief to the women, the three-year decree settling the suit enjoins Big Vanilla Pasadena and Big Vanilla Athletic Club from engaging in harassment on the basis of sex and from retaliating against employees who complain about it. The employer agreed to monitoring by the EEOC, to train its current and future managers on anti-discrimination laws, and to post notices stating its commitment to maintaining an environment free of sexual harassment and retaliation.
“Employers have a responsibility to maintain an environment free of sexual harassment and retaliation, which are clearly and simply illegal,” said EEOC Acting Regional Attorney Debra Lawrence. “This settlement achieves the EEOC’s objectives by providing appropriate relief to the victims while implementing measures to prevent this kind of misconduct in the future.”
According to its web site (www.bigvanilla.com), “Big Vanilla Athletic Club is the premier fitness facility in Anne Arundel County, offering you a wide variety of fitness, wellness and recreation opportunities in the future.”
In fiscal year 2007, retaliation charges surged 18% to a record high level of 26,663, making retaliation the second-highest charge category (behind race) for the first time ever. Additionally, sexual harassment filings increased for the first time since fiscal year 2000, numbering 12,510 – a 4 percent increase from the prior fiscal year.
AT&T v Hulteen: One more post-argument brief on Ledbetter Act's effect on Pregnancy Discrimination Act
February 25, 2009 by Ross Runkel at LawMemo
AT&T v. Hulteen was argued at the US Supreme Court on December 10, 2008. [Details]
The issue involves the retroactive application of the Pregnancy Discrimination Act.
What effect will the Lilly Ledbetter Act have on this?
The employees have filed a new brief. [Here]
The employer has filed a new brief. [Here]
The employees' basic arguments:
- The Lilly Ledbetter Act applies here.
- The employees' claims are timely, so retroactive application is unnecessary.
- The Supreme Court should either uphold the employees in light of the Ledbetter Statute, or remand to the 9th Circuit to figure out what to do.
The employer's basic arguments:
- The employer's pre-PDA actions were lawful.
- The Lilly Ledbetter Act applies only to conduct that violated Title VII when that conduct occurred.
- The Lilly Ledbetter Act governs only when a suit may be brought.
- Because The Lilly Ledbetter Act does not apply, the Court should decide the case, and not remand to the 9th Circuit.
My bet continues to be: A remand to the 9th Circuit.
Also see comment by WorkplaceProf Blog.
Gigantic Wal-Mart class action goes to en banc rehearing
February 14, 2009 by Ross Runkel at LawMemo
The 9th Circuit yesterday granted a rehearing en banc in Dukes v. Wal-Mart (02/13/2008).
When this case was decided by a three-judge panel two years ago, this is what we said about it:
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."
Thanks to Shaw Valenza's What's New in Employment Law? for pointing this out.
AT&T v Hulteen post-argument brief on Ledbetter Act's effect on Pregnancy Discrimination Act
February 13, 2009 by Ross Runkel at LawMemo
AT&T v. Hulteen was argued at the US Supreme Court on December 10, 2008. [Details]
The issue involves the retroactive application of the Pregnancy Discrimination Act.
What effect will the Lilly Ledbetter Act have on this?
The employees in the Hulteen case have filed a new brief. [Here]
The basic arguments:
- The Lilly Ledbetter Act applies here.
- The employees' claims are timely, so retroactive application is unnecessary.
- The Supreme Court should either uphold the employees in light of the Ledbetter Statute, or remand to the 9th Circuit to figure out what to do.
My bet: A remand to the 9th Circuit.
Also see comment by WorkplaceProf Blog.
Transgender employee fired for "violating dress code." Not a Title VII violation
January 14, 2009 by Ross Runkel at LawMemo
Chief Judge Robert L. Miller of the U.S. District Court for the Northern District of Indiana ruled on January 5 that an employer who discharged a gender-transitioning (male-to-female) retail sales employee for letting her hair grow longer than the employer deemed appropriate for men and using make-up, had not violated the ban on sex discrimination under Title VII of the Civil Rights Act of 1964 and a similar Indiana state law, because the employer was merely enforcing a non-discriminatory dress code. Creed v. Family Express Corporation, 2009 Westlaw 35237.
So begins a lengthy description of the Creed v. Family Express Corporation case.
For the full explanation, go right now to Retail Employer Can Fire Transgender Employee for Violating "Dress Code" by Professor Arthur S. Leonard at Leonard Link.
Lilly Ledbetter Fair Pay Act Of 2009 and Paycheck Fairness Act approved by the House
January 12, 2009 by Ross Runkel at LawMemo
As many have predicted, the Lilly Ledbetter Fair Pay Act Of 2009 and Paycheck Fairness Act soon will become the law of the land. [Full text]
The US House of Representative passed them both on January 9. The Senate will pass them soon. And the President (that is, President Obama) will sign them.
The Lilly Ledbetter Fair Pay Act Of 2009 is designed to overrule a 2007 decision by the US Supreme Court, Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
The Ledbetter Act changes the rules for calculating the statute of limitations in Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973. The guts of the Act:
For purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this Act, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
The Paycheck Fairness Act will
Increase available remedies in Equal Pay Act cases by adding compensatory damages and punitive damages
Allow class action lawsuits
Require the EEOC and the Office of Federal Contract Compliance Programs to "provide training to [EEOC] employees and affected individuals and entities on matters involving discrimination in the payment of wages."
My view: All of this demonstrates that elections matter.
AT&T Corp v. Hulteen - Pregnancy Discrimination Act
December 09, 2008 by Ross Runkel at LawMemo
A current violation? Improper retroactive application of the Pregnancy Discrimination Act?
That's what the argument is about in AT&T Corp v. Hulteen, being argued at the US Supreme Court on December 10, 2008. [Details, briefs]
The US Supreme Court is reviewing the 9th Circuit's judgment rendered in Hulteen v. AT&T Corp (9th Cir en banc 08/17/2007) (14-1).
For several decades, AT&T has used a Net Credited Service (“NCS”) date to calculate employee benefits, including eligibility for early retirement and pension payment amounts. The NCS date is an employee’s original hire date, adjusted forward in time for periods during which no service credit accrued. An earlier NCS date places an employee in a superior position for service-related determinations such as job bidding, vacation time and retirement benefits. Prior to enactment of the Pregnancy Discrimination Act (“PDA”) in 1978, women taking pregnancy leave were treated less favorably than individuals taking disability leave.
After enactment of the PDA in 1978, AT&T provided service credit for pregnancy leave on the same terms as other temporary disability leave. However, no service credit adjustments or changes to the NCS date were made for female employees who had taken pregnancy leave under the earlier system.
Hulteen’s suit claims that AT&T violated Title VII and the PDA in its calculation of NCS credit. The 9th Circuit, en banc, agreed.
The US Supreme Court is reviewing the 9th Circuit judgment.
PDA extends to abortions
June 01, 2008 by Ross Runkel at LawMemo
The 3rd Circuit holds that the Pregnancy Discrimination Act (PDA), a part of Title VII, prohibits discrimination due to having an abortion.
Doe v. C.A.R.S. Protection (3rd Cir 05/30/2008)
Doe sued the employer for violation of Title VII as amended by the Pregnancy Discrimination Act (PDA) alleging wrongful discharge because of a surgical abortion.
The employer claimed the discharge was because Doe abandoned her job.
The trial court granted the employer’s motion for summary judgment. The 3rd Circuit reversed.
Relying on the legislative history of the PDA, the Equal Employment Opportunity Commission’s guidelines, and the 6th Circuit holding that an employer could not discriminate against a woman employee because she had an abortion (Turic v. Holland Hospitality, Inc., 85 F3d 1211 (1996)), the court held that the term “related medical condition” in the PDA included an abortion.
The court modified the first element of a prima facie case for disparate treatment requiring the employee to establish that she was pregnant and the employer knew it.
The three working days between notifying the employer that she would have to undergo an abortion and the discharge met the prima facie burden as to the causal connection element.
The court stated the record refuted the trial court’s conclusion that Doe presented no evidence from which a reasonable jury could disbelieve the employer’s reason for discharging her for abandoning her job.
$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.
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.
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.
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."
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.
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.
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).
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.
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.
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)
$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.
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
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.
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).
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.
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)
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.
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."
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."
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].
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.
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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