Chapter 10 Sex Discrimination

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Chapter 10 Sex Discrimination

Chapter Checklist

Understand the need for a prohibition against sex discrimination to counteract historical stereotypes.

Learn that men are also protected against sex discrimination.

Appreciate that women are often discriminated against not solely because they are women but also because they have small children or elderly parents—that is, sex plus discrimination.

Be aware of the limited exceptions for bona fide occupational qualifications.

Be apprised of potential violations of the Equal Pay Act.

Be familiar with the impracticability of comparable worth.

Appreciate the wide latitude given to employers in setting dress codes and grooming standards.

Learn that customer preferences are not a valid reason to discriminate on the basis of sex.

In the News

Kyle Hunter, a weatherman for Fox 5 in San Diego, sued CBS when he was passed over for job openings at KCBS in San Francisco and at KCAL in Los Angeles. He claimed that television stations placed more value on feminine attraction than on meteorology competence in the selection of television weather broadcasters.

CBS countered that Hunter’s claims are without merit.

Hunter retorted that his years of broadcasting the weather for several known weather stations as well as his membership in the Royal Meteorological Society render his credentials far superior to those of the two women hired. In fact, Hunter claimed that the two women hired to broadcast the weather had no experience at all.

A spokesman for CBS said that the company was well aware of Hunter’s background and decided to hire other qualified individuals. Is CBS’s preference for young, attractive women to serve as announcers of the weather forecast a form of sexual stereotyping?


Source: “Storm as Experienced TV Weatherman Sues CBS for Sex Discrimination Claiming They Favour ‘Unqualified attractive young women,’” Daily Mail (London), March 18, 2012, http://www.dailymail.co.uk/news/article-2116751/TV-weatherman-Kyle-Hunter-sues-CBS-sex-discrimination.html#ixzz1qWdAJOZM

Introduction

Case 10.1, 10.5

In the past, a person’s sex was considered a bona fide occupational qualification. Stereotypes ruled. Men were physicians, lawyers, construction workers, and police officers. Women were nurses, flight attendants, secretaries, and teachers. This arrangement had the effect of discriminating against men and women in certain job classifications. The effect on women, particularly with regard to higher-paying positions, was noticeable. Women and men must be treated equally in all aspects of employment, hiring, compensation, training, transfer, and promotions. For example, prescribing limits for lifting or carrying weight just for women or for working before or after childbirth are prohibited. Any provisions or benefits must be provided to both sexes. Job requirements must be the same for male and female candidates.

Employment Perspective

Eric Freeman is a vice president at Bulls and Bears, Inc., an investment banking firm. There is an opening for an assistant vice president to work directly underneath Freeman. There are two in-house candidates: Tom Folino, a competent securities trader with 2 years of experience, and Mary Michaels, a senior bond trader with 7 years of experience. Michaels’ experience and competence are clearly superior, but Freeman selects Folino because they have common interests. They go to the hockey games after work and have a few beers together. Freeman and Folino are both single, whereas Michaels is married with children. Freeman and Michaels have nothing in common outside of work. Does this qualify as sexual discrimination? Yes! Freeman’s decision is not based on job performance but rather on personal interests he shares with one candidate.

Men are also protected against sex discrimination, which occurs when individuals of one gender are favored in employment decisions over the other gender, under Title VII. Although men are not victimized as often as women, there are occasions when men have been treated unfavorably because of their gender.

Sex discrimination

 occurs when individuals of one gender are favored in employment decisions over the other gender.

Sex Plus Discrimination

Case 10.2

Discrimination may occur against an individual not solely because of his or her gender, but that fact coupled with another may be its cause. This is sex plus discrimination. Women with small children, women in childbearing years, and women taking care of elderly parents are all examples.

Sex plus discrimination

may occur against an individual not solely because of his or her gender, but that fact coupled with another circumstance, such as women with small children, women in their childbearing years, and women taking care of elderly parents.

As part of their interview process, some employers endeavor to discover if a female applicant has small children. It has been their experience that mothers are preoccupied with worrying about their children. In addition, many employers believe if the child becomes ill or gets hurt, the mother will leave work immediately. This behavior can be disruptive to the workplace. For that reason, the employer may nonchalantly ask the female applicant where her children go to school. The response will indicate whether the woman has children and, if so, what their ages are. The employer can then generally refuse her or deny her for another reason. This is discriminatory behavior.

Bona Fide Occupational Qualification (BFOQ)

Case 10.3, 10.4

The bona fide occupational qualification (“BFOQ”) operates as a defense to a suit for discrimination with regard to religion, national origin, gender, or age. The first three defenses are found in Title VII, while the age BFOQ is found in the Age Discrimination in Employment Act (“ADEA”). The courts have narrowly construed this defense, limiting it to job requirements that are essential to the job or are at the core purpose of the business. Mere job relatedness is not sufficient.

Bona fide occupational qualification (“BFOQ”)

operates as a defense to a suit for discrimination with regard to religion, national origin, gender, or age. The courts have narrowly construed this defense, limiting it to job requirements that are essential to the job or are at the core purpose of the business.

Employment Perspective

Nancy Hartwick attended Podunk University, where she was a star basketball player. She later became a women’s basketball coach at Premier College, where she won the national championship four times. When a vacancy arose for the men’s basketball coach at her alma mater, she applied. Although Podunk’s administration had fond affection for Hartwick, they refused her application after consulting the school’s students, players, and alumni. The students and alumni said that they would boycott the games. The players said they would have no confidence in her ability. Hartwick claimed sex discrimination. Podunk argued that requiring a man to fill the position of men’s basketball coach is a BFOQ. Is it correct? No! The preference of the constituents of Podunk does not qualify as a BFOQ. Nancy Hartwick’s qualification must be judged on its face alone. Gender preference may not play a part.

Employment Perspective

Gail Dudack is a sports reporter for the Minnesota Moon, an evening daily newspaper. Dudack had been covering women’s sporting events, but now with the retirement of Charlie Scofield, she has been elevated to the major team sports. Her first assignment is a pro basketball game. During the game, Shorty Williams scores his 25,000th point. After the contest, all the reporters are rushing into the locker room to interview Williams. Dudack is refused entry because the men are changing and showering and she is a woman. Dudack files a claim with the Equal Employment Occupation Commission (“EEOC”), alleging pro basketball is discriminating against women reporters. The team argues that the closed-door policy toward women is a BFOQ. Is her claim viable? Yes! The locker-room policy makes it impossible for a woman to be a first-rate reporter. The team must either allow unrestricted entry or forbid all reporters from the locker room and conduct all interviews in the pressroom where equal access canbe given.

Employment Perspective

Roger Bishop is a registered nurse at Sumner County Hospital. Bishop is on duty one evening when Mildred Dirkson calls for assistance. When Bishop attempts to assist Dirkson, she admonishes him that she called for a nurse. Bishop explains that he is a nurse, but she wants no part of him. Bishop asks Dirkson about the fact that she would have no problem having him touch her if he were a physician. The next day Dirkson’s family complains to the hospital administration, and Bishop is assigned to an all-male ward. The hospital justifies its action by asserting it is a BFOQ. Bishop claims that this behavior is discriminatory because female nurses are not confined to servicing exclusively female patients. Who is correct? Bishop! The hospital’s action was not justified. BFOQs do not apply to one sex but not the other. Hospitals cannot discriminate in deference to their patients’ preferences. The patients must accept the hospital staff as long as those individuals are qualified. What if Dirkson’s request concerned applying medication to or washing the genital area? Every accommodation should be made in this regard if there are female nurses available. Respecting privacy is important. But patients who are hospitalized are attended by the physicians on duty, and these physicians, who are predominantly male, view a patient’s private parts if the need arises and the patient’s private physician is not available. So too with nurses. Another option is for Dirkson to hire a private-duty female nurse.

Customer Preferences

Although we are in an age in which customer service and satisfaction rule, acceding to customer preferences for service by one gender to the exclusion of the other is contradictory to Title VII’s prohibition against gender discrimination.

Employment Perspective

Tooters, a sports bar and restaurant chain known for its voluptuous female servers, has recently received applications from Ken, Frank, and Nick, who seek employment as servers. Tooters polls its clientele, who resoundingly state that they will no longer frequent the premises if male servers appear. Tooters denies the positions to Ken, Frank, and Nick because of their gender. Ken, Frank, and Nick sue for sex discrimination, arguing that as long as they are otherwise qualified, they cannot be refused employment on the basis of their gender. Is the customer always right, and will Ken, Frank, and Nick be working at Tooters? Tooters would have to prove that its business is primarily entertainment that requires females to dress provocatively. This issue has been left in doubt in light of a settlement in a case involving a similar situation against Hooters Restaurant.

Job selection cannot be based on customer preference for a particular gender; otherwise, it is discriminatory.

Employment Perspective

Thomas Stockwell applies for a position with Workouts for Women Only, a health club exclusively for women. He is denied employment because he is a man. The proprietors are concerned with respecting the privacy rights of women. They argue that requiring only women employees is a BFOQ. Stockwell argues that assisting women with fitness instruction, teaching aerobics, and performing desk duties do not qualify as a BFOQ. Besides, he adds, there are female employees available for locker-room maintenance. Is he correct? Yes! The preference of women customers to refrain from working out in front of men does not qualify as a BFOQ sufficient enough to override perpetuating discrimination against men by requiring their exclusion from employment.

Equal Pay

Case 10.6, 10.7

The Equal Pay Act of 1963 is an amendment to the Fair Labor Standards Act, which regulates child labor, minimum wage, and overtime pay. The Equal Pay Act prohibits the payment of different wages to men and women who are performing the same job. This Act covers all types of job categories from clerical to executive. The jobs must be equal with regard to skill, knowledge, or experience, and the conditions under which the work is performed must be similar. For example, a person working overseas is entitled to a pay differential for the same job performed domestically.

In the News

The Lilly Ledbetter Fair Pay Restoration Act of 2009 (“the Act”) reversed a 2007 U.S. Supreme Court decision bearing Ledbetter’s name that restricted the filing of claims for pay discrimination to 180 days from the day of hiring. Often employees do not learn of the pay disparity until much later. President Barack Obama, who signed the bill, lamented that the U.S. Supreme Court ruling cost Lilly Ledbetter more than $200,000 in wages and benefits. The Act allows employees to file a claim within 180 days of receipt of each paycheck that the employee believes is unjust.

President Obama explained that this bill is designed to bring equality to wages earned by women in the workplace. Women earn only slightly more than three quarters of what men earn. Minority women earn even less. This amounts to tens of thousands of dollars over a woman’s work life.

Both the House (250–177) and the Senate (61–36) passed the Act prior to President Obama’s historic signing. What protection does this Act offer for employees who do not become aware of a pay disparity until many years later?


Source: Christina Bellantoni, “Obama Signs His First Law on Equal Pay in Workplace; Act Amends Window to File Legal Claims,” Washington Times, January 30, 2009, p. A6.

Comparable Worth

Comparable worth is an attempt to assign values to male-dominated and female-dominated jobs based on worth. Where the values are equated, equal pay would be required. The theory behind this doctrine was that most female-dominated jobs pay less than male-dominated jobs. This argument has not found favor with the courts because assigning values is arbitrary and interferes with payments based on supply and demand.

Dress and Grooming Policies

When employers attempt to regulate grooming—that is, length of hair, beards, and mustaches—courts have usually found in favor of the employer. Their reasoning is that grooming codes are more closely related to the manner in which an employer decides to operate its business than to equal opportunity. Good grooming standards have always been required in the business world. Imagine walking into a bank and seeing a long-haired branch manager who has not shaved or showered and is wearing jeans and a wrinkled shirt. This kind of appearance is not allowed because it would not be a good business policy. Customers may lose confidence in the bank and move their accounts elsewhere.

Arguments against grooming codes have come in the form of the First Amendment’s rights of speech through personal expression, the Fourteenth Amendment Equal Protection clause, and Title VII’s provision regarding terms and conditions of employment.

Employment Perspective

Richard Masters is 29 years old, and he is becoming bald. He is very self-conscious, so he has started wearing a hat all the time. Masters works as a bond trader for Bulls and Bears, Inc. Although his manager empathizes with Masters’s dilemma, Masters is told to remove the hat while in the office. Masters objects, claiming that baldness is a disability, and he files a claim with the EEOC. Will he win? Probably not! Masters is not being subjected to discrimination because of his disability. If Masters is harassed by co-workers, he may register a complaint of harassment. That is not the problem here, though. It revolves around Masters’s vanity and his own perception of himself. This reasoning cannot outweigh Bulls and Bears’s maintenance of dress codes as the way it conducts its business.

Employment Perspective

Mary Jo Worthington, a longtime customer at Grasmere Bank, is informed by Felix Farnsworth that he will be leaving the branch for a new position. On Monday, his replacement will begin work. When Worthington enters the bank on Monday, she is horrified to see a man with long hair who has neither showered nor shaved; is wearing jeans, cowboy boots, and a T-shirt; and is sitting behind Farnsworth’s former desk. The scruffy man smiles and then introduces himself as Jesse Mickelson, new branch manager. Worthington dashes out of the bank and calls its customer service department, reporting what she saw. Mickelson is informed of the bank’s grooming policy and is told never to be seen like that again. The next day, Mickelson looks the same and, therefore, is immediately terminated. He files a Title VII claim with the EEOC, asserting that his actions are protected by freedom of speech through personal expression. Mickelson also claims that the grooming policy as a term and condition of employment is discrimination. Is he correct? No! Although there have been conflicting cases, the bank will be able to enforce its grooming policy because it is requiring of Mickelson only what is considered to be the norm in U.S. business. He is not being deprived of an equal opportunity. He is only being asked to conform to the generally accepted standards of society.

Ethical Issue

The Case of Dressing for Success

A man named Lockhart wore facial jewelry to work. His supervisor informed him that this was prohibited, citing a company dress and grooming rule that permitted women facial jewelry but denied it to men. Lockhart was terminated after he refused to comply. Lockhart argued that this policy discriminates against men. Louisiana-Pacific Corp. retorted that treating men and women differently because of characteristics that are unalterable is discriminatory. However, it asserted that length of hair, use of jewelry, and choice of attire do not fit into that narrow exception. Lockhart v. Louisiana-Pacific Corp., 795 P2d 602 (Or. App. 1940).

Questions

Was Lockhart’s conduct ethical?


Should this matter have been considered serious enough to require Lockhart’s discharge?


Is the use of dress codes ethical?


Employment Perspective

Sonja Hendricks was a trader at First Financial in Buffalo. The company dress code requires women to wear skirts, dresses, or suits with skirts. In the winter, the temperature is often below freezing. Hendricks wore pants to keep her legs warm. First Financial dismissed her for being uncooperative. Hendricks claimed that the dress code manifested sex discrimination because it forced women to show their legs and to be subjected to the cold weather. Is she correct? Probably! This restriction places an undue burden on women in that it does not give them the choice to protect themselves from the cold during the winter months. First Financial’s business reasons are not paramount to a woman’s health. However, First Financial may suggest that women wear leg warmers or tights under their skirts or dresses and then remove them upon arriving at work. There is no definitive answer to this scenario.

Brenna Lewis v. Heartland Inns of America, L.L.C.

591 F.3d 1033; 2010 U.S. App. LEXIS 1283 (8th Circuit)

Case 10.1

The issue is whether sexual stereotyping is permissible in the workplace.

Murphy, Circuit Judge.

Alleging that she lost a job she had done well, solely because of unlawful sex stereotyping, Brenna Lewis brought this action for sex discrimination and retaliation against her former employer Heartland Inns of America, its Director of Operations and its Human Resource Director (collectively Heartland) based on Title VII and state law. The district court granted summary judgment to Heartland. We reverse and remand.

A summary judgment must be reviewed de novo, “viewing the evidence in the light most favorable to the nonmoving party and giving that party the benefit of all inferences that may reasonably be drawn.”

Heartland Inns operates a group of hotels, primarily in Iowa. Brenna Lewis began work for Heartland in July 2005 and successfully filled several positions for the chain for a year and a half before the actions at issue here. She started as the night auditor at Heartland’s Waterloo Crossroads location; at that job she worked at the front desk from 11:00 p.m. to 7:00 a.m. There were also two other shifts for “guest service representatives”: the A shift from 7:00 a.m. to 3:00 p.m. and the B shift from 3:00 p.m. to 11:00 p.m. Lewis’ manager at Waterloo Crossroads, Linda Gowdy, testified that Lewis “did her job well” and that she had requested a pay raise for her. Heartland recorded two merit based pay raises for Lewis. The record also indicates that Gowdy received a customer comment praising Lewis.

On or about December 7, 2006, Lewis began working various part time front desk shifts at Heartland Inns located near Des Moines, including at Ankeny and Altoona. At both locations she was valued by her direct supervisors. Her manager at the Altoona hotel, Jennifer Headington, testified that Lewis “made a good impression[.]” She offered her a full time night auditor position after receiving telephone permission from Barbara Cullinan, Heartland’s Director of Operations. Lori Stifel, Lewis’ manager at the Ankeny hotel, testified in her deposition that Lewis did a “great job” in Ankeny, “fit into the [front desk] position really well” and was well liked by customers. Stifel received permission over the phone from Cullinan on December 15 to offer Lewis a full time A shift position. Neither Headington nor Stifel conducted an interview of Lewis before extending their offers, and the record does not reflect that Cullinan ever told them a subsequent interview would be necessary. Lewis accepted the offer for the A shift at Ankeny and began training with her predecessor, Morgan Hammer. At the end of December 2006 Lewis took over the job.

Lewis’ positive experience at Heartland changed only after Barbara Cullinan saw her working at the Ankeny desk. As the Director of Operations, Cullinan had responsibility for personnel decisions and reported directly to the general partner of Heartland. She had approved the hiring of Lewis for the Ankeny A shift after receiving Stifel’s positive recommendation. After seeing Lewis, however, Cullinan told Stifel that she was not sure Lewis was a “good fit” for the front desk. Cullinan called Stifel a few days later and again raised the subject of Lewis’ appearance. Lewis describes her own appearance as “slightly more masculine,” and Stifel has characterized it as “an Ellen DeGeneres kind of look.” Lewis prefers to wear loose fitting clothing, including men’s button down shirts and slacks. She avoids makeup and wore her hair short at the time. Lewis has been mistaken for a male and referred to as “tomboyish.”

Cullinan told Stifel that Heartland “took two steps back” when Lewis replaced Morgan Hammer who has been described as dressing in a more stereotypical feminine manner. As Cullinan expressed it, Lewis lacked the “Midwestern girl look.” Cullinan was heard to boast about the appearance of women staff members and had indicated that Heartland staff should be “pretty,” a quality she considered especially important for women working at the front desk. Cullinan also had advised a hotel manager not to hire a particular applicant because she was not pretty enough. The front desk job description in Heartland’s personnel manual does not mention appearance. It states only that a guest service representative “[c]reates a warm, inviting atmosphere” and performs tasks such as relaying information and receiving reservations.1

In her conversation with Stifel about Brenna Lewis, Cullinan ordered Stifel to move Lewis back to the overnight shift. Stifel refused because Lewis had been doing “a phenomenal job at the front desk[.]” The following week, on January 9, 2007, Cullinan insisted that Lori Stifel resign. Around this time, Heartland informed its general managers that hiring for the front desk position would require a second interview. Video equipment was also purchased to enable Cullinan or Kristi Nosbisch, Heartland’s Human Resource Director, to see an applicant before extending any offer. When Lewis’ former manager at Altoona, Jennifer Headington, raised a question about the new arrangements, Cullinan answered that “[h]otels have to have a certain personification and appearance.”

Cullinan met with Brenna Lewis on January 23, 2007. At this point Lewis had held the front desk job for nearly a month after Cullinan’s initial approval of her hire for the position. The record contains no evidence of any customer dissatisfaction with Lewis or her service. Nevertheless, Cullinan told Lewis at the meeting that she would need a second interview in order to “confirm/endorse” her A shift position. Lewis was aware from Lori Stifel of what had been said about her appearance, and she protested that other staff members had not been required to have second interviews for the job. Lewis told Cullinan that she believed a second interview was being required only because she lacked the “Midwestern girl look.” She questioned whether the interview was lawful, and she cried throughout the meeting.

Cullinan wanted to know who had told Lewis about the comment and asked whether it was Lori Stifel. Thereafter Cullinan talked about the need for new managers when revenue is down like in Ankeny, where Stifel was the manager. Lewis responded that recent policy changes by Heartland, including bans on smoking and on pets, might explain the loss in revenue. Cullinan then encouraged Lewis to share more of her views about the new policies and took notes on what she said. Three days later, Lewis was fired.

Lewis does not challenge Heartland’s official dress code, which imposes comparable standards of professional appearance on male and female staff members, and her termination letter did not cite any violation of its dress code. The theory of her case is that the evidence shows Heartland enforced a de facto requirement that a female employee conform to gender stereotypes in order to work the A shift. There was no such requirement in the company’s written policies.

In its termination letter to Lewis, Heartland asserted that she had “thwart[ed] the proposed interview procedure” and exhibited “host[ility] toward Heartland’s most recent policies[.]” Lewis denies those charges and denies that those were the real reasons for her discharge. There were no customer complaints about Lewis’ performance as a desk clerk. Nor had there been any disciplinary action against her before she was fired. Lewis asserts that Heartland terminated her for not conforming to sex stereotypes and contends that this conduct violated Title VII of the Civil Rights Act of 1964 and the Iowa Civil Rights Act of 1965 (ICRA).

Heartland was not entitled to prevail on summary judgment unless it showed that plaintiff Brenna Lewis had not produced direct or circumstantial evidence which could reasonably support an inference of discrimination.

To make a prima facie case under the McDonnell Douglas framework, Lewis had to show that “(1) she was a member of the protected group; (2) she was qualified to perform the job; (3) she suffered an adverse employment action; and (4) circumstances permit an inference of discrimination.” Such a showing creates a presumption of unlawful discrimination, requiring Heartland to produce a legitimate nondiscriminatory reason for its employment action. The burden then returns to Lewis to prove that Heartland’s proffered reason for firing her is pretextual. The parties agree that Lewis’ ICRA and federal claims are analytically indistinguishable.

The Supreme Court has stated that “[t]he critical issue” in a sex discrimination case 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.”

We recognize that “[r]emarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision.” Lewis met this burden at the summary judgment stage. She provided evidence that the comments she cites were not “stray remarks in the workplace, statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself[.]”

Cullinan was a primary decisionmaker with authority to hire and fire employees. While several individuals also took part in the decision to terminate Lewis, they relied on Cullinan’s description of her January 23, 2007, conversation with Lewis. Cullinan consistently indicated that female front desk workers must be “pretty,” and she criticized Lewis’ lack of the “Midwestern girl look” in the same conversation in which she ordered Stifel to move Lewis back to the night audit. Cullinan authorized Stifel to hire Lewis over the phone, but demanded a “confirm/endorse” interview once she saw Lewis’ “tomboyish” appearance. She demanded Stifel’s resignation after she refused to remove Lewis from her position.

Evidence that Heartland’s reason for the termination were pretextual include the fact that Lewis had a history of good performance at Heartland. She had no prior disciplinary record and had received two merit based pay raises. The two individuals who supervised her during the majority of her employment at Heartland both stated that they had no problem with her appearance, and at least one customer had never seen customer service like that Lewis had provided. On this record, a factfinder could infer a discriminatory motive in Heartland’s actions to remove Lewis.

In addition to establishing a prima facie case of discrimination, Lewis has also shown a genuine factual dispute about whether Heartland’s legitimate nondiscriminatory reason for her termination was pretextual.

On the record here, a reasonable factfinder could disbelieve Heartland’s proffered reason for terminating Lewis. Heartland asserts that it fired Lewis because of the January 23 meeting when Cullinan informed her that she would need to submit to a second interview. Lewis and Cullinan, the only two individuals in the room, portray the encounter in starkly different terms. On summary judgment we must construe the conversation in the light most favorable to Lewis, however. Lewis denies that she expressed hostility to Heartland’s policies or spoke in a disrespectful way or took an argumentative stance or refused to participate in a second interview. It is also relevant that the meeting occurred after Cullinan had given Stifel the understanding that “[Lewis’] appearance . . . was not what [she] wanted on the front desk” and after Stifel had shared that discussion with Lewis.

Shortly after Cullinan’s conversation with Stifel about Lewis’ appearance, Heartland procured video equipment so that Cullinan or Nosbisch could inspect a front desk applicant’s look before any hiring. Heartland’s termination letter to Lewis only relied on the January 23 meeting she had with Cullinan. Only later did Heartland allege poor job performance would justify her termination. Lewis asserts further that Heartland did not follow its own written termination procedure, which includes assessing the employee’s previous disciplinary record (Lewis had none) and conducting an investigation before making the termination decision. Kristi Nosbisch, Heartland’s equal employment officer responsible for directing investigations of employment discrimination, knew that Lewis had complained that Cullinan’s requirements were illegal, but she nonetheless relied on Cullinan’s account of their meeting without asking Lewis for her own.

At this stage of the case, the question is not whether Lewis will prevail on her claim but rather whether she has offered sufficient evidence from which a reasonable factfinder could find that she was discriminated against because of her sex. We conclude that she has, for “an employer who discriminates against women because . . . they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex.” Companies may not base employment decisions for jobs such as Lewis’ on sex stereotypes, just as Southwest Airlines could not lawfully hire as flight attendants only young, attractive, “charming” women “dressed in high boots and hot-pants[.]”

As the Supreme Court stated, “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group[.]”

We turn next to Lewis’ retaliation claim. Title VII prohibits employers from retaliating against employees who oppose discriminatory practices. The burden shifting McDonnell Douglas analytical framework applies to this inquiry as well, beginning with the three elements of a prima facie case of retaliation, whether: (1) the plaintiff engaged in protected conduct, including opposition to an action prohibited by Title VII; (2) she was subjected to an adverse employment action, and (3) there is a “causal nexus between the protected conduct and the adverse action.”

In making out a prima facie retaliation claim, Lewis need not prove the merits of the underlying claim of sex discrimination. She can establish protected conduct “as long as [she] had a reasonable, good faith belief that there were grounds for a claim of discrimination[.]” Lewis went into the January 23 meeting with Cullinan after learning about the “Midwestern girl look” comment. Lewis had already held her job for nearly a month and understood that other transferred employees in her situation had not been required to submit to a second interview. She observed Cullinan grow defensive after she asked her about the “Midwestern girl look” comment.

Heartland argues that its official policy dictated a second interview, but Lewis has raised a genuine fact issue about whether Heartland imposed second interviews in similar circumstances before January 2007 and whether Heartland began doing so in relation to Cullinan’s interaction with Lewis. Heartland suggests that Lewis’ comments during the January 23 meeting did not actually oppose any unlawful practice. Cullinan testified, however, that Lewis had “emphatically stated that she thought it was illegal for us to ask her to interview, and illegal for us to schedule her to another shift” and that Lewis said she thought the interview demand was because of her appearance. These statements cannot reasonably be characterized as anything other than opposition to illegal action.

No one questions that Lewis was subjected to an adverse employment action, and there is ample record evidence to support a causal nexus between that and Lewis’ protests at the January 23 meeting. Lewis received the termination notice a mere three days after the disputed conversation, and Heartland cited her objection to the second interview in her termination notice. The evidence of pretext already discussed applies with equal force in evaluating whether Lewis has made out a prima facie retaliation claim.

In sum, we conclude that Lewis has presented sufficient evidence to make out a prima facie case on her claims for sex discrimination and retaliation and a sufficient showing at this stage that Heartland’s proffered reason for her termination was pretextual. Accordingly, we reverse the judgment of the district court and remand for further proceedings.

Judgment for Lewis.

Case Commentary

The 8th Circuit determined that an employer that uses sexual stereotyping as a reason for discharging an employee is guilty of sex discrimination.

Case Questions

Are you in agreement with the court’s decision?


Is feminine appearance a justifiable criterion in employment selection?


Is there an ethical resolution to this dilemma?


Laurie Chadwick v. WellPoint, Inc.

561 F.3d 38; 2009 U.S. App. LEXIS 6426 (U.S. Court of Appeals First Circuit)

Case 10.2

The issue is whether Laurie Chadwick was overlooked for the promotion because she had small children.

Stahl, Circuit Judge.

Laurie Chadwick brought a claim of sex discrimination under Title VII against WellPoint, Inc. after she was denied a promotion. She alleged that her employer failed to promote her because of a sex-based stereotype that women who are mothers, particularly of young children, neglect their jobs in favor of their presumed childcare responsibilities.

Chadwick was a long-time employee of WellPoint, an insurance company, in its Maine office. She was hired by WellPoint in 1997, and was promoted in 1999 to the position of “Recovery Specialist II,” which involved the pursuit of overpayment claims and claims for reimbursement from third parties. In 2006, encouraged by her supervisor, she applied for a promotion to a management position entitled “Recovery Specialist Lead” or “Team Lead.” In this position, the successful candidate would be responsible for the recovery function for the region encompassing Maine, New Hampshire, and Connecticut. Because Chadwick was already performing several of the responsibilities of the Team Lead position and based on her supervisor’s comments, Chadwick believed she was the frontrunner for the position. In addition, on her most recent performance evaluation in 2005, she had received excellent reviews, scoring a 4.40 out of a possible 5.00 points.

There were two finalists for the Team Lead position, Chadwick and another in-house candidate, Donna Ouelette. While Chadwick had held the Recovery Specialist II position for seven years, Ouelette had only been promoted to that position about a year earlier. In addition, Ouelette had scored lower than Chadwick, though satisfactorily, on her most recent performance review, receiving a 3.84 out of a possible 5.0 points.

Three managers interviewed the two finalists: Linda Brink, who had previously supervised and worked closely with Chadwick; Dawn Leno, the Director of Recovery; and Nanci Miller, Chadwick’s immediate supervisor. Nanci Miller was the ultimate decisionmaker for the promotion but she considered input from Brink and Leno in reaching her decision. Based on her own perceptions and those of Brink and Leno, Miller graded Ouelette’s interview performance higher than Chadwick’s. Miller subsequently offered the promotion to Ouelette over Chadwick.

At the time of the promotion decision, Chadwick was the mother of an eleven-year-old son and six-year-old triplets in kindergarten. There is no allegation, insinuation, or for that matter evidence that Chadwick’s work performance was negatively impacted by any childcare responsibilities she may have had. Indeed, Miller, the decisionmaker, did not know that Chadwick was the mother of young triplets until shortly before the promotion decision was made. Apparently, Chadwick’s husband, the primary caretaker for the children, stayed home with them during the day while Chadwick worked. He also worked off-hour shifts, presumably nights and weekends, when Chadwick was at home with the children. During the same period, Chadwick was also taking one course a semester at the University of Southern Maine.

Chadwick alleges that WellPoint denied her the promotion based on the sex-based stereotype that mothers, particularly those with young children, neglect their work duties in favor of their presumed childcare obligations. To support this claim, Chadwick points to the fact that she was significantly more qualified for the promotion than was Ouelette, and also highlights three statements made by management around the time of the promotion decision.

First, on May 9, 2006, two months before the decision was reached, Miller, the decisionmaker, found out that Chadwick had three six-year-old children (in addition to an eleven-year-old son). Miller sent an email to Chadwick stating, “Oh my—I did not know you had triplets. Bless you!”

Second, during Chadwick’s interview with Brink, her former supervisor, she was asked how she would respond if an associate did not complete a project on time. Unhappy with Chadwick’s answer, Brink replied, “Laurie, you are a mother[.] [W]ould you let your kids off the hook that easy if they made a mess in [their] room[?] [W]ould you clean it or hold them accountable?”

Third, and most important, when Miller informed Chadwick that she did not get the promotion, Miller explained:

It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.

In her deposition, Miller said that she decided not to promote Chadwick because she interviewed poorly, and that she (Miller) only told Chadwick that she had “too much on her plate” in an ill-advised attempt to soften the blow.

Here, Chadwick alleges that the subclass being discriminated against based on sex is women with children, particularly young children. Ultimately, regardless of the label given to the claim, the simple question posed by sex discrimination suits is whether the employer took an adverse employment action at least in part because of an employee’s sex.

In the simplest terms, unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. It is undoubtedly true that if the work performance of a woman (or a man, for that matter) actually suffers due to childcare responsibilities (or due to any other personal obligation or interest), an employer is free to respond accordingly, at least without incurring liability under Title VII. However, an employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.

Particularly telling is Miller’s comment that, “It was nothing you did or didn’t do.” After all, the essence of employment discrimination is penalizing a worker not for something she did but for something she simply is. A reasonable jury could infer from Miller’s explanation that Chadwick wasn’t denied the promotion because of her work performance or her interview performance but because Miller and others assumed that as a woman with four young children, Chadwick would not give her all to her job.

This inference is supported by several facts. First, the decisionmaker learned of Chadwick’s three six-year-olds just two months before she denied Chadwick the promotion. The young age and unusually high number of children would have been more likely to draw the decisionmaker’sattention and strengthen any sex-based concern she had that a woman with young children would be a poor worker.

In sum, we find that Chadwick has put forth sufficient evidence of discrimination that a reasonable jury could conclude that the promotion denial was more probably than not caused by discrimination. We only conclude that Chadwick has presented sufficient evidence of sex-based stereotyping to have her day in court. Given the common stereotype about the job performance of women with children and given the surrounding circumstantial evidence presented by Chadwick, we believe that a reasonable jury could find that WellPoint would not have denied a promotion to the new job, given “the kids” and her schooling.

Case Commentary

The First Circuit ruled that the statements referencing Chadwick’s motherhood were sufficient for a jury to conclude that she was denied a promotion because of her small children.

Case Questions

Are you in accord with the court’s reasoning?


Do you believe Miller was trying to soften the blow when she referenced Chadwick’s children?


If Chadwick received the promotion, would WellPoint have to accommodate her with regard to the needs of her children?


Ersol L. Henry and Terri J. Lewis v. Milwaukee County

539 F.3d 573; 2008 U.S. App. LEXIS 17724 (U.S. Court of Appeals Seventh Circuit)

Case 10.3

The issue is whether a policy requiring officers to be of the same sex as the juveniles they are supervising on the night shift is a BFOQ.

Ripple, Circuit Judge.

In 1997, Milwaukee County’s Juvenile Detention Center (JDC) instituted a policy that required each unit of the facility to be staffed at all times by at least one officer of the same sex as the detainees housed on that unit. Because there were far more male units than female units at the facility, this policy had the effect of reducing the number of shifts available for female officers. Ersol Henry and Terri Lewis, both female officers at the facility, brought this action in the United States District Court for the Eastern District of Wisconsin, alleging sex discrimination and retaliation in violation of Title VII. After a bench trial, the district court concluded that the gender-specific policy was based on a bona fide occupational qualification and that no other discrimination or retaliation had occurred; accordingly, it entered judgment in favor of the County. For the reasons set forth in this opinion, we reverse the judgment of the district court.

The new JDC contains common rooms, classrooms and recreation rooms where the juveniles spend the majority of their daytime hours. At night, however, the juveniles are confined to their living areas, which are assigned based on their sex, age and classification.

The living areas at the new facility are organized into seven single-sex “pods.” Each can accommodate between 11 and 22 juveniles of the same sex. Each pod consists of a number of individual cells, a control center desk from which the staff can monitor the cells and communicate with the pod via intercom, and a common area or “day room” with tables, chairs and a television. The individual cells each contain a bed, a toilet, a desk and a small storage area. The entire cell, including the toilet, is visible from the outside through a window in the cell door.

Prior to the move to the new facility, JCOs (juvenile correction officers) had been assigned to shifts without regard to the sex of the officer. Mr. Wanta’s new policy, however, required that each pod be staffed at all times by at least one JCO of the same sex as the juveniles housed on the pod. During the day shifts, when two JCOs staffed each pod, one of the two JCOs could be of the opposite sex; however, during the night shifts, when only one JCO staffed each pod, the sole JCO on duty had to be of the same sex as the juveniles in the pod. Because the JDC housed far more male juveniles than female juveniles, Mr. Wanta’s same-sex role model/mentoring policy afforded male JCOs more opportunities for work than those available to female JCOs. The night shift was particularly problematic. It was perceived as the easiest shift; those officers assigned to it received premium pay; and it afforded the most opportunities for overtime.

During the time of their employment as JCOs, Ms. Henry and Ms. Lewis primarily worked one of the day shifts. Prior to 1997, however, they each had earned a substantial amount of additional income from voluntary overtime, predominantly by working the night shift. According to a collective bargaining agreement, voluntary overtime at the JDC traditionally had been apportioned according to seniority. Employees with the most seniority could “put in” for overtime, and they would receive the first opportunities to work their preferred shifts. Ms. Lewis and Ms. Henry were relatively senior employees, and they often were able to work overtime at the old JDC.

After Mr. Wanta instituted the same-sex pod policy, however, far fewer women were allowed to work the third shift because there were far fewer female pods than male pods at the facility. As a result of the same-sex role model/mentoring program, most of the available night shifts with premium pay were reserved for male employees. Female officers like Ms. Henry and Ms. Lewis no longer were able to get the same number of overtime hours as they previously had received. Instead, male employees with less seniority were allowed to work these shifts. Consequently, Ms. Henry and Ms. Lewis received significantly less compensation than they had received prior to the institution of the same-sex role model/mentoring program.

Ms. Henry and Ms. Lewis brought this action in the district court. They alleged that, in violation of Title VII, they had been denied overtime assignments on the third shift at the JDC because of their sex.

We agree that the administrators of juvenile detention facilities, like the administrators of female correctional facilities, are entitled to substantial deference when fashioning policies to further the goals of the facility. We do not agree, however, that the discretion accorded to these individuals in either context is effectively unlimited. A defendant ultimately must introduce sufficient evidence to prove that the administrator’s judgment—that a particular sex classification is reasonably necessary to the normal operation of the institution—is “the product of a reasoned decision-making process, based on available information and experience.”

We must conclude that Milwaukee County’s contention that sex-based assignments are reasonably necessary to achieve these goals, at least on the third shift, is not supported by the record before us. The employer, Milwaukee County, has the burden to demonstrate that it could not rearrange job responsibilities to eliminate or minimize the conflict between the inmates’ privacy, security and rehabilitation interests and the employees’ rights under Title VII.

The evidence in the record does not support the conclusion that the juveniles’ safety or security, or the institution’s ability to manage risk effectively, was at all in jeopardy because of the presence of opposite-sex JCOs on the third shift. The record establishes, however, that there has not been a single instance of staff-on-inmate sexual assault at the JDC, on any shift, by either sex; nor has there been a significant problem with false accusations against the staff. Furthermore, other safety precautions, such as door alarms and the presence of supervisors, runners and video cameras, currently are working to prevent actual and alleged security breaches. Although Milwaukee County contends that a staff member may be able to circumvent the alarm system in order to enter a juvenile’s cell at night, the record contains no evidence that this contingency has occurred or was likely to occur at the JDC.

The record affirmatively shows that the JDC allowed JCOs of the opposite sex to monitor the pods during both of the daytime shifts. It is undisputed that the vast majority of the time that the juveniles were unclothed occurred during these daytime shifts. Showering generally took place during the second shift, when members of the opposite sex were permitted to staff the pods. The only showering that occurred on the third shift was monitored by one of the runners who performed the intake procedures. The juveniles were provided with pajamas, which they were required to wear at night. They changed into this attire on the second shift, and they changed out of it on the first shift—again, while JCOs of the opposite sex were permitted to view them. Although Milwaukee County presented testimony that third-shift JCOs occasionally viewed juveniles using the toilet, masturbating or otherwise acting out sexually, it is undisputed that this situation occurred on the first and second shifts as well.

Accordingly, we must conclude that the County failed to meet its burden to prove that the sex-based classification at issue here was reasonably necessary for the rehabilitation, security or privacy functions of the JDC. Therefore, Milwaukee’s BFOQ defense must fail. The JDC’s third shift policy adversely affected the plaintiffs’ employment. It is undisputed that overtime pay had been a significant and expected component of the plaintiffs’ compensation prior to the institution of the sex-based policy. Not only did the majority of overtime work available occur on the third shift, but the third shift also offered a fifty cent per hour pay premium. Accordingly, the dramatic reduction in the opportunity for women to work on the third shift constituted an adverse employment action. Because the JDC’s third-shift policy adversely affected the plaintiffs’ employment opportunities, we must conclude that it is in violation of Title VII.

Case Commentary

The Seventh Circuit ruled that a BFOQ did not exist because there was no evidence of any incidents concerning juveniles and officers of the opposite sex.

Case Questions

Do you agree with the court’s decision?


Why was the warden overruled if he believes this policy will prevent incidents from occurring?


Do you believe that if an incident occurred the warden would be allowed to implement his policy?


Gena Duckworth v. St. Louis Metropolitan Police Department

2007 U.S. App. LEXIS 17137 (8th Cir.)

Case 10.4

The issue in the case that follows is whether assigning female police officers to the nightwatch is a bona fide occupational qualification.

Benton, Circuit Judge.

Three female officers sued their superiors for gender discrimination under Title VII of the Civil Rights Act of 1964 and the Missouri Human Rights Act. The district court denied the defense of qualified immunity to the police superiors. This court reverses and remands.

After a transfer left no female officers on the night watch in District One, Captain Antoinette M. Filla asked if any female officers would work then. None volunteered. Four months later, Captain Filla assigned plaintiff Sandra Delaney to the night watch. Delaney was the least senior of the experienced female officers in the district. After working the night watch for two months, Delaney complained that her husband was called up for military duty and she had difficulty obtaining a babysitter. On February 6, 2003, Captain Filla emailed all personnel: “I believe there is a definite need for female officers on the nightwatch.” On the advice of Major Roy Joachimstaler—her immediate superior—she assigned the three plaintiffs (based on seniority) to work the night watch, initially rotating for 28-day periods.

On February 10, plaintiffs filed a grievance:

We believe it is unfair to order us based upon our gender, to rotate monthly on the night watch. This order is in violation of Rules Manual designated in Section 3.114 where it is mandated that police officers be permanently assigned to a platoon. This order is also in violation of Title VII of the Civil Rights Act of 1964 wherein it is illegal to discriminate against employees in regards to sex, when the policy is applied in terms of condition of employment including placement.

On February 14, Captain Filla explained her position in an intra-department report to the plaintiffs and her superiors:

I believe the assignment of females to all watches is imperative to the operation of any command, not just patrol operations. It is not only important that all watches in every command be as diverse as the population we serve, but also as diverse as the entire population of our police department. . . .

The unique operations of law enforcement, also requires unique responsibilities by female and male officers, responsibilities which no other profession requires. We have to consider the safety of all personnel on the street when assigning our officers to crucial positions; for example, the searching of suspects at incident scenes.

I currently have fifteen (15) female officers (6% of authorized strength) assigned to District One, with none assigned to the nightwatch. We felt it was important to have our females assigned strategically to cover several recreation brackets of all watches.

As authority, Captain Filla cited Special Order 90-S-7, which provides: “District commanders may reassign an officer from his/her assigned work schedule provided the commander has sufficient justification to do so.” Her “resolution to this Grievance is to assign three (3) female officers [plaintiffs] to the nightwatch permanently, with one in each of the three precincts.” Plaintiffs received a 10% pay increase while working the night watch.

On February 25, plaintiffs filed a second grievance claiming the permanent placement on the night watch was retaliation for their original grievance. Captain Filla rejected the grievance: “Your assignment to the nightwatch was based on the District’s needs and operations, not on personal issues.”

Viewing the facts favorably to plaintiffs, there is direct evidence of gender discrimination. Captain Filla emailed all personnel: “I believe there is a definite need for female officers on the nightwatch.” On the advice of Major Joachimstaler, she reassigned only females to work the night watch. Chief Mokwa directly participated in the reassignments by approving them.

“For a gender-based classification to withstand equal protection scrutiny, it must be established at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”

In this case, Captain Filla’s intra-department report identifies two governmental objectives. First, she believed it was “important that all watches in every command be as diverse as the population we serve.” Second, Filla aimed “to consider the safety of all personnel on the street when assigning our officers to crucial positions; for example, the searching of suspects at incident scenes.” The record here does not demonstrate the importance of these objectives.

The next step in the qualified immunity analysis “is to ask whether the right was clearly established . . . in light of the specific context of the case.” Reasonable mistakes “can be made as to the legal constraints on particular police conduct. . . . If the officer’s mistake as to what the law requires is reasonable . . . the officer is entitled to the immunity defense.”

Reasonable police administrators could believe that assigning female officers to the night watch was lawful.

Here, although the plaintiffs were impermissibly reassigned without an exceedingly persuasive justification, the decision—although mistaken—was reasonable. “The issue is not whether the defendant acted wrongly, but whether reasonable persons would know they acted in a manner which deprived another of a known constitutional right.” Based on the defendants’ reasonable judgments, qualified immunity should have been granted.

The judgment of the district court is reversed in part, and the case remanded. Judgment for St. Louis Metropolitan Police Department.

Case Commentary

The 8th Circuit Court reasoned that the decision to assign female police officers to the nightwatch was reasonable; therefore, qualified immunity should be granted to Captain Filla.

Case Questions

Do you agree with the court’s determination?


Is it a BFOQ to have female police officers on the nightwatch?


How could this dilemma be resolved in an ethical manner?


Tracey Lust v. Sealy, Inc.

383 F.3d 580; 2004 U.S. App. LEXIS 18830 (U.S. Court of Appeals Seventh Circuit)

Case 10.5

The issue in this case is whether a supervisor can make stereotypical assumptions in deciding to award a promotion to a man over a woman.

Posner, Circuit Judge.

Tracey Lust sued her employer, Sealy, the mattress manufacturer, for sex discrimination in violation of Title VII. A jury returned a verdict in her favor, awarding her $100,000 in compensatory damages and $1 million in punitive damages. Pursuant to 42 U.S.C. § 1981a(b)(3)(D), which places a ceiling of $300,000 on the total damages that may be awarded in an employment discrimination case against the largest employers, the judge reduced the total damages award to $300,000, to which she added $1,500 in back pay (which is not within the statutory meaning of “damages.”

Lust was a sales representative who has been employed in Sealy’s Madison, Wisconsin office since 1992. Her supervisor, Scott Penters, regarded her highly. In 2000 an opportunity opened up for promotion to “Key Account Manager” in Chicago, the key account being a mattress retailer called Bedding Experts. The appointment would have represented a significant promotion for Lust, who had repeatedly expressed to Penters her avid desire to become a Key Account Manager. Instead the job went to a young man. Two months later, after Lust filed her discrimination claim with the EEOC, Sealy offered her and she accepted a Key Account Manager’s position in the Madison office. It is because of the short delay in her obtaining the promotion that the award of back pay was so small.

The jury’s finding that Lust was passed over because of being a woman cannot be said to be unreasonable. Penters had a history of making sexist remarks to Lust, such as “oh, isn’t that just like a woman to say something like that,” or “you’re being a blonde again today,” or “it’s a blonde thing.” (Lust is blonde; Sealy points out irrelevantly that blondes are not a statutorily protected class, which will disappoint hair colorists.) More important, once when she expressed an interest in a promotion even though she had just gotten married, Penters was surprised and asked her “why Jerry [her husband] wasn’t going to take care of” her.

Most important, Penters admitted that he didn’t consider recommending Lust for the Chicago position because she had children and he didn’t think she’d want to relocate her family, though she hadn’t told him that. On the contrary, she had told him again and again how much she wanted to be promoted, even though there was no indication that a Key Account Manager’s position would open up any time soon in Madison. Realism requires acknowledgment that the average mother is more sensitive than the average father to the possibly disruptive effect on children of moving to another city, but the antidiscrimination laws entitle individuals to be evaluated as individuals rather than as members of groups having certain average characteristics. It would have been easy enough for Penters to ask Lust whether she was willing to move to Chicago rather than assume she was not and by so assuming prevent her from obtaining a promotion that she would have snapped up had it been offered to her.

Penters, it is true, didn’t decide who would be promoted to Key Account Manager; his superior, Al Boulden, did, and Boulden testified that he had passed over Lust for the Chicago position because he thought her deficient in interpersonal skills and unlikely to want to move to Chicago, given the number of “X’s” in her relocation chart.

In any event, the purity of Boulden’s own motives was placed in issue, though perhaps not very convincingly. Since inability to get along with customers couldn’t have been cured immediately, the speed with which Boulden re-classified an account as a key account in order to make Lust a Key Account Manager when she accused the company of sex discrimination and seemed (and in fact was) about to sue might seem powerful evidence that Boulden didn’t really think that Lust lacked good interpersonal skills. It’s actually weak evidence because the promotion may have been motivated by a desire, which would have been consistent with continued doubts about Lust’s suitability for promotion, to head off a lawsuit or mitigate the amount of back pay and damages that might be awarded.

This was not an admission of liability, but an attempt to mitigate damages after the jury had found liability. Lust could and did use the quick promotion to impeach Boulden’s testimony about her inadequate interpersonal skills.

Another boomerang argument by Sealy is that the staff at Bedding Experts—the key account that Lust would have managed had she been given the Chicago position—consisted of foul-mouthed animals. There had been an incident several years earlier, with a different account, at which Lust’s effort to divert a customer from talking about his sexual activities with his ex-wife and about the strip bar that he owned so enraged the customer that he rolled up the agenda of their meeting and threw it at her, whereupon she left and the account was given to another sales rep, a man. One possible inference is that Lust is too prissy for Sealy’s roughest customers. But another is that Sealy merely assumes that women can’t deal with foul-talking men; and that is an impermissible assumption, another example of stereotypical thinking. No doubt more women than men would have trouble bonding with macho mattress dealers, but there are tough women (women now fly combat missions for the Air Force), and maybe Lust, who is at least brave enough to go by her husband’s last name, is one of them, notwithstanding the incident with the strip-bar owner—and his behavior was so egregious that it is merely a conjecture that a male Sealy rep could have pacified him, or that Lust’s male successor on the account did so. Penters or Boulden could have explained to Lust the character of the Bedding Experts staff and probed her ability to handle such people. Instead they merely assumed that she could not. They would not have assumed that about a man, even a man who had walked out of a customer’s office when the customer pelted him.

We are concerned that to uphold the award of the maximum damages allowed by the statute in a case of relatively slight, because quickly rectified, discrimination would impair marginal deterrence. If Sealy must pay the maximum damages for a relatively minor discriminatory act, it has no monetary disincentive (setting aside liability for back pay) to escalate minor into major discrimination. It’s as if the punishment for robbery were death; then a robber would be more inclined to kill his victim in order to eliminate a witness and thus reduce the probability of being caught and punished, because if the murdering robber were caught he wouldn’t be punished any more severely than if he had spared his victim. In light of this consideration and this court’s treatment of punitive-damages awards in similar cases, we believe that the maximum such award that would be reasonable in this case would be $150,000.

To summarize, the judgment is affirmed except with respect to the award of punitive damages, as to which Sealy is entitled to a new trial unless the plaintiff accepts a remittitur of the excess of those damages over $150,000.

Case Commentary

The Seventh Circuit ruled that Sealy’s was guilty of favoring a man over Tracey Lust for a promotion based on assumptions made about her personal life.

Case Questions

Are you in agreement with the decision of the court?


Are there ever any circumstances in which a supervisor is entitled to make a decision to promote based on a subordinate’s personal life?


Because Tracey Lust received a promotion tantamount to what she wanted, should she be entitled to any damages?


Lilly M. Ledbetter v. The Goodyear Tire & Rubber Company, Inc.

550 U.S. 618; 2007 U.S. LEXIS 6295 (U.S. Supreme Court)

Case 10.6

The issue is whether past discrimination for disparity in pay is actionable in the present.

Justice Alito delivered the opinion of the Court.

Petitioner Lilly Ledbetter (Ledbetter) worked for respondent Goodyear Tire and Rubber Company (Goodyear) at its Gadsden, Alabama, plant from 1979 until 1998. During much of this time, salaried employees at the plant were given or denied raises based on their supervisors’ evaluation of their performance. In March 1998, Ledbetter submitted a questionnaire to the EEOC alleging certain acts of sex discrimination, and in July of that year she filed a formal EEOC charge. After taking early retirement in November 1998, Ledbetter commenced this action, in which she asserted, among other claims, a Title VII pay discrimination claim and a claim under the Equal Pay Act of 1963 (EPA).

Ledbetter introduced evidence that during the course of her employment several supervisors had given her poor evaluations because of her sex, that as a result of these evaluations her pay was not increased as much as it would have been if she had been evaluated fairly, and that these past pay decisions continued to affect the amount of her pay throughout her employment. Toward the end of her time with Goodyear, she was being paid significantly less than any of her male colleagues. Goodyear maintained that the evaluations had been nondiscriminatory, but the jury found for Ledbetter and awarded her backpay and damages.

On appeal, Goodyear contended that Ledbetter’s pay discrimination claim was time barred with respect to all pay decisions made prior to September 26, 1997—that is, 180 days before the filing of her EEOC questionnaire. And Goodyear argued that no discriminatory act relating to Ledbetter’s pay occurred after that date.

The Court of Appeals for the Eleventh Circuit reversed, holding that a Title VII pay discrimination claim cannot be based on any pay decision that occurred prior to the last pay decision that affected the employee’s pay during the EEOC charging period. The Court of Appeals then concluded that there was insufficient evidence to prove that Goodyear had acted with discriminatory intent in making the only two pay decisions that occurred within that time span, namely, a decision made in 1997 to deny Ledbetter a raise and a similar decision made in 1998.

Ledbetter filed a petition for a writ of certiorari but did not seek review of the Court of Appeals’ holdings regarding the sufficiency of the evidence in relation to the 1997 and 1998 pay decisions. Rather, she sought review of the following question:

“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.”

Similarly, she maintains that the 1998 decision was unlawful because it “carried forward” the effects of prior, uncharged discrimination decisions. Reply Brief for Petitioner 20. In essence, she suggests that it is sufficient that discriminatory acts that occurred prior to the charging period had continuing effects during that period. Brief for Petitioner 13 (“[E]ach paycheck that offers a woman less pay than a similarly situated man because of her sex is a separate violation of Title VII with its own limitations period, regardless of whether the paycheck simply implements a prior discriminatory decision made outside the limitations period”); see also Reply Brief for Petitioner 20. This argument is squarely foreclosed by our precedents.

Ledbetter’s arguments here—that the paychecks that she received during the charging period and the 1998 raise denial each violated Title VII and triggered a new EEOC charging period—cannot be reconciled with Evans, Ricks, Lorance, and Morgan. Ledbetter, as noted, makes no claim that intentionally discriminatory conduct occurred during the charging period or that discriminatory decisions that occurred prior to that period were not communicated to her. Instead, she argues simply that Goodyear’s conduct during the charging period gave present effect to discriminatory conduct outside of that period. But current effects alone cannot breathe life into prior, uncharged discrimination; such effects in themselves have “no present legal consequences.” Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.

Ledbetter places significant weight on the EPA, which was enacted contemporaneously with Title VII and prohibits paying unequal wages for equal work because of sex. Ledbetter suggests that we should hold that Title VII is violated each time an employee receives a paycheck that reflects past discrimination.

The simple answer to this argument is that the EPA and Title VII are not the same. In particular, the EPA does not require the filing of a charge with the EEOC or proof of intentional discrimination. Ledbetter originally asserted an EPA claim, but that claim was dismissed by the District Court and is not before us. If Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles that she now confronts.

We apply the statute as written, and this means that any unlawful employment practice, including those involving compensation, must be presented to the EEOC within the period prescribed by statute.

For these reasons, the judgment of the Court of Appeals for the Eleventh Circuit is affirmed.

Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

Lilly Ledbetter was a supervisor at Goodyear Tire and Rubber’s plant in Gadsden, Alabama, from 1979 until her retirement in 1998. For most of those years, she worked as an area manager, a position largely occupied by men. Initially, Ledbetter’s salary was in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. By the end of 1997, Ledbetter was the only woman working as an area manager and the pay discrepancy between Ledbetter and her 15 male counterparts was stark: Ledbetter was paid $3,727 per month; the lowest paid male area manager received $4,286 per month, the highest paid, $5,236.

Any annual pay decision not contested immediately (within 180 days), the Court affirms, becomes grandfathered, a fait accompli beyond the province of Title VII ever to repair.

The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.

Pay disparities are thus significantly different from adverse actions “such as termination, failure to promote, . . . or refusal to hire,” all involving fully communicated discrete acts, “easy to identify” as discriminatory.

It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter’s situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.

On questions of time under Title VII, we have identified as the critical inquiries: “What constitutes an ‘unlawful employment practice’ and when has that practice ‘occurred’?” Our precedent suggests, and lower courts have overwhelmingly held, that the unlawful practice is the current payment of salaries infected by gender-based (or race-based) discrimination—a practice that occurs whenever a paycheck delivers less to a woman than to a similarly situated man.

Yet, under the Court’s decision, the discrimination Ledbetter proved is not redressable under Title VII. Each and every pay decision she did not immediately challenge wiped the slate clean. Consideration may not be given to the cumulative effect of a series of decisions that, together, set her pay well below that of every male area manager. Knowingly carrying past pay discrimination forward must be treated as lawful conduct. Ledbetter may not be compensated for the lower pay she was in fact receiving when she complained to the EEOC. Nor, were she still employed by Goodyear, could she gain, on the proof she presented at trial, injunctive relief requiring, prospectively, her receipt of the same compensation men receive for substantially similar work. The Court’s approbation of these consequences is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure.

This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.

For the reasons stated, I would hold that Ledbetter’s claim is not time barred and would reverse the Eleventh Circuit’s judgment.

Case Commentary

The U.S. Supreme Court held that past discrimination based on inequity of pay must be filed with the EEOC within 180 days to be actionable. Four of the nine justices dissented.

Case Questions

Are you in agreement with the decision of the Court?


Do you believe the statute of limitations does not make sense in a pay disparity case that has evolved over many years?


Do you believe Congress should modify the time limit for filing a case with the EEOC regarding pay disparity cases?


Polly Ann Heller v. Elizabeth Forward School District

2006 U.S. App. LEXIS 13547 (U.S. Third Circuit Court of Appeals)

Case 10.7

The issue is whether the school district had a valid explanation for paying younger male teachers higher salaries than it was paying three female teachers who were over 50 years of age.

Nygaard, Circuit Judge.

The School District’s salary scale and the collective bargaining agreement between the School District and the teachers’ union, sets different “steps” in salary depending on a teacher’s experience, education, and teaching certification area. When the School District hired plaintiffs, they were all over the age of fifty years old and they were all hired at step 1 of the District’s salary scale. They alleged that after the School District hired them as teachers, it hired seven other teachers (“comparators”), five of whom were male and all of whom were younger, with substantially the same qualifications as Plaintiffs, at higher salary steps.

When making out a prima facie case, a plaintiff need only show that the jobs being compared are substantially equal, not necessarily that they are identical. The EPA defines what constitutes equal work as jobs that require equal skill, effort, and responsibility. Additionally, when a court assesses the substantial equality between jobs, it should rely on actual job performance and content rather than job descriptions. Moreover, because of the heavily fact-driven character of the inquiry, substantial equality must be determined on a case-by-case basis. Depending on the facts and the evidence presented, the proper comparator might be another teacher within the same certification class. A school district may have a particular need, justifying pay differentials, to hire teachers certified in specific subject areas.

Here, as we noted earlier, the plaintiffs established their prima facie case for both their EPA and ADEA claims. Therefore, any claim by the School District that the plaintiffs had no evidence that any of the comparator teachers were hired at higher than step 1 because of their gender or age is inapt. . . .

(A)t trial Superintendent Mueller was unable to explain what the School District had meant when, in its answer to the PHRC complaint, it proffered three reasons for the hiring discrepancies: he could not explain what “applicable law” could have required the salary differences, he did not know who had suggested “experience” as a possible justification, and he admitted that the reason given for the hiring of Ms. Stock at a higher level was false. He also testified that the “specialized certification” rationale for the hiring of the comparator teachers was new and that it did not apply to Ms. Stock even though in the School District’s answer, he had claimed that it did. He also testified that the School District had changed its reason for the hiring discrepancies. Furthermore, when pressed on his claim that the scarcity of applicants necessitated the higher salaries, he was unable to testify as to how many other teachers had applied for the position or even how many were considered. He also suggested that hiring Ms. Stock at a higher salary step was motivated by loyalty for her short-term substitute teaching. Additionally, three school board members testified that they did not know why many of the teachers were hired at their pay steps.

Because the record clearly suggests that there was no cohesive or consistent answer to the question why the comparator teachers were hired at significantly higher salaries, a jury could have found that the School District’s proffered nondiscriminatory reasons were unbelievable, and, consequently, we will affirm the District Court’s denial of the motion for judgment as a matter of law.

The District Court granted plaintiffs’ request to be placed higher up on the pay scale, in line with their comparators. It is well settled that the District Court has discretion to fashion equitable relief to effectuate the purposes of the Title VII statutory scheme, specifically, in order to award make-whole damages. Moreover, where, as here, the jury makes explicit findings that, had the discrimination not occurred, the plaintiffs would have been at higher salary steps, a District Court may appropriately fashion an award of damages to support this finding. Thus, the District Court’s decision here to place the plaintiffs in the same position as their comparators was not an abuse of discretion.

In summary, and for the reasons set forth above, the judgment of the District Court will be affirmed.

Case Commentary

The Third Circuit decided that the Vernonia school district’s explanation was invalid, which means the district was guilty of violations of the ADEA and the Equal Pay Act.

Case Questions

Do you agree with the reasoning of the court in this case?


If the salary the school district offered was acceptable to the women over 50 years of age but not to the younger male teachers—and the school district needed the male teachers—what would you think?


What would be an appropriate ethical resolution to this case?


Summary

In the past, American society excluded women from many positions in the labor market because it could afford to do so; the United States was the most affluent society in the world. But its economy was flourishing almost exclusively at the hands of men. In today’s global environment, no brain can be left untapped. Women should be encouraged by society to realize their potential in the workplace. Some men fear that employing women in business will reduce the number of positions for them. Their fear is misdirected. “Us against them” should not mean men against women. It should mean keeping jobs in the United States as opposed to outsourcing them overseas. If the power of each U.S. citizen, whether male or female, is not used to its fullest so that people become innovators and entrepreneurs to develop newer, faster, cheaper, and better products, services, and technologies, then the positions that men are trying to safeguard from women will be lost to overseas competitors. The point to realize is that the number and quality of jobs are elastic and can expand or contract depending upon how well we as a country perform.

Human Resource Advice

• Formulate grooming standards and dress codes.

• Treat men and women in a consistent manner.

• Eliminate stereotypes when employing and/or assigning men and women to particular jobs.

• Identify instances of sex plus discrimination.

• Pay women an amount equal to men when the qualifications needed and the work performed are similar.

• Know that BFOQs exist only in a very limited number of instances, such as for bathroom or locker-room attendants.

• Realize that customer preferences cannot dictate hiring selections with regard to sex.

• Learn that comparable worth has never been implemented in employment.

• Encourage women to realize their full potential in the workplace.

• Understand that men may also be victims of sex discrimination.

Human Resource Dilemmas

Bruno Robinson, a recently retired wrestler, applies for a position as a day-care teacher with Jumpin Jamboree. Robinson received an education degree from Waikoloa University. The 12 employees of Jumpin Jamboree are all women. Robinson is summarily dismissed without reason. Does he have a case?

Misty Rogers is employed by Plutonium Resources in a janitorial position. She applies for a transfer to working in proximity to the plutonium itself. This position pays 50% more than her current employment. Plutonium Resources refuses Rogers’ application, reasoning that only men or women no longer in their childbearing years are entitled to work with this dangerous substance because of danger to prospective fetuses. Is this a valid reason?

Lenore Wilkenson is shopping for a new dress at Oak Valley Department Store. When she decides to try a few on to see how they look, Wilkenson is confronted by Derek Sanders, who is safeguarding the changing area. Wilkenson complains to the store manager that she refuses to use the changing area with a male at its entrance. This is the seventh complaint in Sanders’ first month of work. Oak Valley discharges him. Sanders believes this conduct to be unfair. How would you advise him?

Tammy Dale works as an administrative assistant for Southeast Trucking Company. Dale learns from Melissa Simpson in payroll that the male drivers make $15,000 more on average than the predominantly female administrative assistants. Dale wishes to file a complaint alleging violation of the Equal Pay Act and the Comparable Work Doctrine. How would you advise her to proceed?

Amy Goldstein is an assistant vice president at Reliable Insurance. When her superior retires, Goldstein is passed over for a subordinate. Goldstein asks for an explanation. Vice President Bruce Wilson explains that this position involves working long hours, going on extended business trips, and attending numerous weekend corporate functions. Because it is common knowledge that Goldstein’s mother, who lives with her, is bedridden, Goldstein could not possibly fulfill the responsibilities that come with the promotion. What would your advice to Goldstein be?

Employment Scenario

The following employment scenario runs throughout the text. In each chapter numerous employment issues are raised. This is designed to present real-life issues that an employer would face.

Meg Johnson and Stacy Roberts are friends who have children in the Grasmere Elementary School. They would both like to work part-time during school hours. Meg and Stacy apply to The Long and the Short of It (“L&S”), which has advertised part-time sales positions. Tom Long and Mark Short interview Meg and Stacy but decide not to hire them. Mark says to Tom, “We don’t want school moms who are looking to earn extra spending cash. They don’t fit our image.” Subsequently, Tom and Mark hire two men without experience for the positions. Two weeks later, Meg and Stacy tell Laurie, another mother with school-age children, that they were disappointed L&S did not hire them. Laurie seems surprised. She remarks that her brother-in-law, Fred, who has not worked in six months, was hired on the spot. Meg and Stacy inquire as to Fred’s experience in sales, and Laurie replies that he has none. Meg and Stacy visit four of the L&S stores, and to their astonishment they find no women working in sales. Meg and Stacy file a claim for sex discrimination against L&S. Tom Long and Mark Short, co-presidents of L&S, consult with their attorney, Susan North, Esq. They argue that hiring men exclusively to work as salespeople in a men’s clothing store is a BFOQ. Is their argument valid?

Employee Lessons

Know what constitutes sex discrimination.

Learn the requirement for filing a sex discrimination claim.

Ascertain whether as a woman you are being paid a salary comparable to a man with similar experience for the same job.

Do not let stereotypes hinder your realization of your true potential.

Appreciate why the enactment of the Equal Pay Act and the Civil Rights Act of 1964 was needed to protect women’s rights.

Understand that under certain limited circumstances, your sex may disqualify you from being hired because of a BFOQ.

Realize that the doctrine of comparable worth was never implemented because supply and demand renders it impractical.

Demand that you be treated in a manner consistent with the opportunities afforded to employees of the opposite sex.

Be cognizant of situations where you are discriminated against not only based on sex, but also because you have small children, are pregnant, or care for elderly parents (i.e., sex plus discrimination).

Be aware of grooming and dress code requirements, and adhere to them where they are consistent and reasonable.

Review Questions

Define sex discrimination.


What is sex plus discrimination?


Explain the significance of the Equal Pay Act.


Define comparable worth.


Is comparable worth in effect today?


Are grooming standards permissible?


Can a man be discriminated against because of his gender?


Why is a BFOQ a defense to a gender discrimination suit?


From an ethical standpoint, should women tennis players be paid the same as men tennis players in the U.S. Open even though the women play two out of three sets in comparison to the three out of five sets played by the men?


Are employers justified in practicing sex discrimination in hiring because of customer preferences?


Should grooming codes be the same for men as for women?


Is the Equal Pay Act helping women to achieve equality in pay?


Is there any reason why women should not be paid at the same rate as men?


What must a plaintiff prove to establish a prima facie case under the Equal Pay Act?


Case Problems

1. On November 14, 1996, Ryduchowski brought this action against the Port Authority. She alleged that the Port Authority had discriminated against her on the basis of her gender and national origin. She claimed that, while working at the Port Authority, she was subjected to insults, jokes, and harassment related to her gender and national origin. She asserted that as a result of this discrimination, the Port Authority failed to promote her and terminated her employment in violation of Title VII, and paid her less than a similarly situated male colleague in violation of the EPA.
Ryduchowski testified that when she was hired as an engineer in the Engineering Audit Division at the Port Authority, she was the only female of the approximately 20 engineers in the Division.
The issue in the case that follows is whether a female employee was paid less than a similarly situated male colleague. What result?
Danuta Ryduchowski v. The Port Authority of New York and New Jersey, 203 F.3d 135 (2nd Cir. 2000); 2000 U.S. App. LEXIS 1660.

In 1997, Lisa Sivieri (“Sivieri”) began working as a paralegal specialist in the Administrative Disqualification Unit (“ADU”) of Massachusetts’ Department of Transitional Assistance (“DTA”). After working with ADU for a year and a half, Sivieri was asked to train new paralegals and other staff. Sivieri consistently received satisfactory or better assessments when evaluated for her work. Sivieri married within 10 months of her employment at DTA. Throughout her employment at DTA, Sivieri noticed that employees and agents of DTA made negative comments about children and working mothers. Sivieri also noticed that the upper-level management of DTA included a high proportion of women who were either childless or who had no small children. On November 30, 1999, Sivieri’s daughter was born. DTA did not grant Sivieri an extended maternity leave, which she requested, and delayed payment of her paid maternity leave. After the birth of her daughter, Sivieri was not offered any promotions or an advanced paralegal position.
When promotion opportunities arose within the DTA, those opportunities were offered to paralegals who had less time in service than Sivieri. After being rejected for several promotions, Sivieri inquired as to why she was rejected. Following these inquiries, DTA intensified its scrutiny of Sivieri and increased its criticism of her job. Her performance evaluations were downgraded. After these events, Sivieri filed a timely complaint with the Massachusetts Commission Against Discrimination (“MCAD”) alleging that she had been discriminated against on the basis of sex. Sivieri alleges that after the birth of her child, DTA appointed other less experienced employees, who were not mothers of young children, to advanced positions with the organization. She further alleges that she was passed up for these positions because she was the mother of a small child. These actions were closely aligned with negative comments at DTA regarding women with small children and their lack of effectiveness at work. These allegations establish a bias against women with young children predicated on the stereotypical belief that women are incapable of doing an effective job while at the same time caring for their young children.
Additionally, where Sivieri has alleged that she had qualifications equal to or superior than these women who were promoted, that her work was evaluated at a high level, but yet she was repeatedly passed over for promotions, she has put forth sufficient allegations to state a cause of action for discrimination based on sex. DTA contends that Sivieri’s failure to allege hostile work environment sexual harassment and retaliation claims in her complaint with MCAD bars her subsequent claims of hostile work environment and retaliation claims in this action. Sivieri maintains that she alleged sex discrimination in her MCAD complaint, and that hostile work environment sexual harassment is a form of sex discrimination.
The Superior Court of Massachusetts determined that discrimination based on gender was designed to include women with children. The issue is whether sex discrimination encompasses a woman discriminated against because she has a child. What result?

Do you agree with the decision of the court?

Are there instances in which a woman with a child should be passed over for promotion because of the demands the promotion would have on the life of her family?

Can the disruption to the workplace caused by a woman who must consider the needs of her child over her job ever constitute an undue burden to her employer?

Lisa Sivieri v. Commonwealth of Massachusetts, Department of Transitional Assistance, 2003 Mass. Super. LEXIS 201 (Superior Court MA Suffolk Division).

On February 27, 1998, after working for about 10 months at Nissan as a service department manager, Gonsalves was fired.
At trial, Neldine Torres testified that Gonsalves made sexual comments to her (including “I like to look at you,” “You’re my honey,” “I wouldn’t mind getting caught with my pants down depending on who it was with,” and “You smell good, you make me hungry”), blew on her neck, poked her sides near her bra line, and touched her between her knee and thigh. There was testimony that Kevin Kualapai, who replaced Gonsalves as a service manager, made inappropriate comments to Torres, and Torres did not report him for sexual harassment.
Gonsalves testified that, in January 1998, Wayne Suehisa, vice president, administrator, and treasurer of Nissan Motor Corporation in Hawaii, Ltd., informed him of Torres’s sexual harassment allegations against him. Gonsalves denied the complaints. Suehisa admitted telling Gonsalves that he would get a “thorough and fair investigation,” that he did not “need to get a lawyer,” and that “because [Nissan was] planning on continuing to do an investigation at that point in time, Suehisa wasn’t planning on terminating Gonsalves.” Gonsalves testified that Suehisa also apprised him that he “didn’t have to worry about losing his job.”
Suehisa hired Linda Kreis to investigate Torres’s allegations. Kreis testified that she interviewed and prepared statements for 10 employees, including Torres and Gonsalves. She concluded that Gonsalves’s “behavior . . . at the time of writing the report already could be construed as creating a hostile environment” and recommended that Gonsalves “be counseled about his unacceptable behavior and disciplined in a manner to assure there’s no reoccurrence.” Suehisa responded to the report with “major disappointment.”
On February 24, 1998, Suehisa decided to terminate Gonsalves. At the time of Suehisa’s decision, four of the affidavits, including one from Torres, had not yet been signed. One of the later-received signed affidavits was actually supportive of Gonsalves.
The termination letter articulated that “based on Ms. Torres’s allegations and the corroborating statements of the witnesses, [Nissan had] concluded that Gonsalves’s conduct toward Ms. Torres could be construed as sexual harassment and warrants disciplinary action.” The letter further expounded that Gonsalves had retaliated against Torres and other employees, contrary to Nissan’s harassment and discrimination policy.
First, Gonsalves alleges that Nissan discriminated against him on the basis of sex in that a similarly situated female employee, Torres, was not subjected to the same treatment as he was.
Second, Gonsalves contends that Nissan discriminated against him on the basis of sex in that he was “treated differently than others in the work place who engaged in similar conduct.”
The issue is whether an employee who was terminated for sexually harassing comments can claim sex discrimination because he was treated differently from others who acted in a similar manner. What result?

Are you in agreement with the court’s decision?

Should Gonsalves be entitled to damages since the sexual harassment complaint filed against him was not severe and pervasive?

If not, can you imagine a set of circumstances where an individual accused of harassment should be entitled to damages if the requirements of severity and pervasiveness are not met?
Gonsalves v. Nissan Motor Corporation in Hawaii, Ltd., 58 P.3d 1196 (HI 2002).

Elysa Yanowitz joined L’Oreal’s predecessor in 1981. She was promoted from sales representative to regional sales manager for Northern California and the Pacific Northwest in 1986.
Yanowitz filed a discrimination charge with the Department of Fair Employment and Housing (“DFEH”) on June 25, 1999. She alleged that L’Oreal had discriminated against her on the basis of sex, age (Yanowitz was 53), and religion (Yanowitz is Jewish). She also alleged that L’Oreal had retaliated against her for refusing to fire the female employee Wiswall considered unattractive.
In the fall of 1997, Jack Wiswall, Yanowitz’s superior, ordered Yanowitz to have a female sales associate at a Macy’s West store in her region fired. As justification, Wiswall explained that the associate “was not good looking enough.” The associate had dark skin; Wiswall preferred fair-skinned blondes. Wiswall told Yanowitz, “Get me somebody hot,” or words to that effect. Yanowitz did not carry out Wiswall’s order. When Wiswall asked her whether the associate had been dismissed on subsequent occasions, Yanowitz requested adequate justification for firing her. Yanowitz did not complain to Human Resources, nor did she tell Wiswall that his order was discriminatory.
The trial court found that on these facts, Yanowitz had failed to establish she engaged in any protected activity. On appeal, L’Oreal argues that Yanowitz’s actions are not protected because physical appearance is not a protected category under Fair Employment and Housing Act (“FEHA”) and because Yanowitz failed to expressly complain.
The issue is whether the pressure placed on a regional sales manager by her general manager to hire a sales associate who was attractive constitutes sex discrimination.

Are you in agreement with the decision of the court?

Was there any justification for Wiswall’s actions?

Do you believe that Wiswall’s conduct rises to the level of sex discrimination because Yanowitz was not the object of Wiswall’s comments?
Yanowitz v. L’Oreal USA, 2003 Cal. App. LEXIS 342.

From 1991 to the date of her termination in 1998, Mann’s foreman at the Center was John Fox (“Fox”).
In November of 1995, Mann complained to Mass that Fox gave her “all the dirty jobs,” talked down to her, and favored the male electricians.
Shortly thereafter, in March 1996, a lewd photograph was left in the women’s locker room used by Mann. In response to this incident, Mass distributed a memorandum to all employees stating that it would not tolerate such behavior and that anyone involved would be immediately terminated and prosecuted to the full extent allowed by law.
In March or April 1996, Fox and another employee loudly banged on the bathroom door while Mann was in the bathroom. Fearing an emergency, she opened the door while not fully clothed and found the two employees laughing at her. At a meeting held to discuss this incident, the two men denied that it had occurred. Mass accepted their denials without also questioning Mann at the meeting.
In 1997, Mann signed a list indicating her desire to become a weekend supervisor. A male employee with more seniority but in poor physical condition, with less education, and with less relevant experience than the plaintiff, was given the appointment.
In September 1997, Mann was verbally warned that her excessive absences, if continued, would lead to her being fired. On June 9, 1998, Mann called in sick, due to a back sprain she suffered off the job. She sent in a doctor’s note indicating that she had been told to take from one to two weeks of bed rest. On June 12, Waffenschmidt sent Mann a notice that she was fired for excessive absenteeism after the Port Authority concurred in the decision to fire Mann because of her absenteeism.
The issue is whether the plaintiff was terminated because she is a woman.
Mann v. Mass. Correa Electric, 2002 U.S. Dist. LEXIS 949 (Southern District NY 2002).

Do you agree with the court’s reasoning?

Would she have been treated differently if she were a man?

At trial, do you believe the evidence the plaintiff will be able to present will be enough to render a verdict in her favor?

In 1990, prompted by a complaint filed with the attorney general by a female high-school student seeking admission to Virginia Military Institute (“VMI”), the United States sued the Commonwealth of Virginia and VMI, alleging that VMI’s exclusively male admission policy violated the Equal Protection clause of the Fourteenth Amendment. In the 2 years preceding the lawsuit, the district court noted, VMI had received inquiries from 347 women but had responded to none of them. The issue in this case is whether prohibiting women from admission to VMI is sex discrimination. What result?
United States v. Virginia, 518 U.S. 515 (1996).

Ms. Bullington, a female over the age of 40, currently works for United as a ground school academic instructor. Over a 2-year period, Ms. Bullington sought but was denied a position as line pilot with United on three occasions. Ms. Bullington argues United’s interview process caused a significant disparate impact on women. As is typical in disparate impact cases, Ms. Bullington relies on statistical evidence to establish her prima facie case. Her statistics compare the “pass rates” of male and female applicants who interviewed for United flight officer positions. For interviews conducted after 1994, the pass rate for women was 27.9% while the pass rate for men was 46.6%. As such, the women’s pass rate is equal to only 60% of the pass rate for men—a statistically significant disparity under EEOC guidelines (stating that a selection rate for a protected group that is less than 80% or 4/5 of the selection rate for the majority group is generally regarded as evidence of adverse impact). This disparity, Ms. Bullington argues, is significant enough to establish a prima facie case of disparate impact discrimination. What result?
Bullington v. United Air Lines, Inc., 186 F.3d 1301 (10th Cir. 1997).

It is undisputed that from 1985 until the termination of her employment on November 26, 1991, McMillan was paid less than any other director/department head, while her job description was for all practical purposes indistinguishable from that of her male colleagues. The issue is whether the employer discriminated against her in violation of the Equal Pay Act. What result?
McMillan v. Massachusetts Soc. of Cruelty to Animals, 880 F. Supp. 900 (D. Mass. 1995).

The dress code in question requires female sales clerks to wear a “smock,” while male sales clerks only are required to wear business attire consisting of slacks, shirt, and necktie. The smocks are supplied to the female sales clerks at no cost. After complaining that the smock requirement for women is discriminatory, plaintiffs refused to wear the smocks and instead wore regular business attire. Plaintiffs filed sex discrimination charges with the EEOC. What result?
O’Donnell v. Burlington Coat Factory Warehouse, 706 F. Supp. 263 (S.D. Ohio 1987).

Plaintiff alleges that Mr. Angelone is the director of Nevada Department of Prisons (“NDOP”). Plaintiffs are correctional officers (“C/Os” within NDOP). Plaintiffs allege that Mr. Angelone transferred plaintiff male C/Os out of two women’s correctional facilities and transferred plaintiff female C/Os from other correctional facilities to fill the vacancies. Mr. Angelone concedes that he did this and that he did so based on the plaintiff’s gender: that is, Mr. Angelone admits he made the transfers because he wanted female correctional officers at the women’s correctional facilities and therefore transferred the male officers out because they were men and transferred the female officers in because they were women. Mr. Angelone’s belief that his actions were legal and appropriate . . . does not remove discriminatory intent from his actions. This raises the affirmative defense of bona fide occupational qualification (BFOQ) in which a defendant admits the discriminatory intent motivating the actions but claims that such actions were otherwise necessary. What result?
Carl v. Angelone, 883 F. Supp. 1433 (D. Nev. 1995).

Mary Buhrmaster was initially hired in 1984 by Charles Littleton, the manager of Overnite’s Dayton Terminal. For the next 7½ years, she had a relatively successful career there. There was apparently widespread discontent among Overnite’s employees concerning Buhrmaster’s management style. The employees complained to Littleton about these problems several times both individually and en masse, but nothing was done. The employees then complained to the home office in Richmond, Virginia, precipitating a visit from Ray Laughrum, an executive with the company. After meeting with various employees, Laughrum advised Littleton, and, according to Overnite, Littleton decided to fire Buhrmaster. Littleton replaced Buhrmaster with another woman.
Because there was no direct evidence of discrimination, Buhrmaster attempted to prove her case circumstantially by claiming that she had been treated differently from similarly situated men who had engaged in similar conduct. At trial, she produced evidence showing that a number of supervisors had also engaged in some form of misconduct and had not been fired. The issue in this case is whether there should be a presumption against discrimination when the person who is discharging the employee is the same person who hired her. What result?
Buhrmaster v. Overnite Transportation Company, 61 F.3d 461 (6th Cir. 1995).

Becerra alleged that Pallas traded sexual favors with her superiors, especially Muller and Captain Roland Saenz, commander of Task Force 168, to achieve her success. Becerra argues that he was the victim of sexual discrimination and sexual harassment. Becerra claims that there is evidence of a sexually hostile environment wherein Pallas was trading sexual favors for promotional opportunities to Becerra’s career detriment. Becerra relies on 29 C.F.R. § 1604.11(g) to establish this definition of sexual harassment.
Other related practices: Where employment opportunities or benefits are granted because of an individual’s submission to the employer’s sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who are qualified but denied that employment opportunity or benefit. The issue is whether a superior who promotes a female lover has sexually discriminated against male employees who would otherwise have been in line for the promotion. What result?
Becerra v. Dalton, Secretary of the Navy, 94 F.3d 145 (4th Cir. 1996).

At issue in this case are the equitable remedies awarded to the plaintiff, Mary Jane Kerr Selgas (“Kerr Selgas”), in a sex discrimination suit against her employer, American Airlines (“American”). A jury awarded Kerr Selgas a lump sum award that included an unspecified amount for front pay. American maintains in this appeal that front pay and reinstatement are mutually exclusive equitable remedies, and that the court therefore erred in awarding both to Kerr Selgas. The question presented is whether an employee can be entitled to both reinstatement and front pay under Title VII of the Civil Rights Act of 1964. What result?
Kerr Selgas v. American Airlines, 104 F.3d 9 (1st Cir. 1997).

In November 1988, West told her supervisor, James Laufenberg, that she was planning to marry an Atlanta resident in June 1989. West advised that she wanted to remain with Marion but, following the marriage, would need to relocate to Atlanta or to Marion in Kansas City, where her new husband could relocate. West hoped that she would be promoted to regional manager for the Wound Care Division in Kansas City, but Laufenberg was “not particularly positive” that she would attain that position.
On August 29, West met with both Laufenberg and Gianini. Laufenberg advised that there was no opening in the Wound Care Division in Atlanta. Gianini advised that he had looked but was unable to find her an Atlanta position elsewhere in the company. West then wrote a lengthy letter to Laufenberg on September 2, and she filed a charge of retaliation discrimination on September 5. Laufenberg replied on September 11 that, alternatively, Marion’s Prescription Products Division “will provide you with a rover position in Field Sales. . . . This will permit you to move to Atlanta and remain with Marion at no loss in base pay while we wait for a regular opening to develop” in Atlanta.
After receiving Laufenberg’s September 21 letter, West declined all of the positions offered and resigned on September 30. What result?
West v. Marion Merrell Dow, Inc., 34 F.3d 493 (8th Cir. 1995).

Dr. Anderson brought this suit against various state entities and officers, alleging violations of the EPA. She alleges that since 1984, she has been paid less than male faculty of similar rank at SUNY New Paltz, despite her equivalent or superior qualifications, record, and workload. She began complaining to responsible officials at SUNY New Paltz in 1991, and she contends that she was denied a merit increase in salary in January 1993 as a result of such complaints. This case presents the issue of whether the Equal Pay Act infringes upon the states’ rights to sovereign immunity. What result?
Anderson v. SUNY College at New Paltz, 169 F.3d117 (2nd Cir. 1999).




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