Tag Archives: sex discrimination

Irresistible Ladies: Hit the Unemployment Line

Here’s hoping your holidays are happier than Melissa Nelson’s. Nelson was working as a dental assistant when her boss, James Knight, fired her because she posed a threat to his marriage. Knight, whose wife also worked in the dental office, apparently found Nelson so irresistible that he just couldn’t work with her any longer. In other words, she was fired, Knight admitted, for being too darn hot. Nelson, who is married with children, had worked in the office for nine years before being sent packing.

Last week, the Iowa Supreme Court put a lump of coal in Nelson’s stocking when it found that she had no claim against Knight for sex discrimination. The court found that Nelson wasn’t fired because she was a woman, but because Knight found her so attractive. Even though that attraction presumably wouldn’t have existed had Nelson been male, the court found that this decision wasn’t ultimately based on gender, but on personal feelings. The court found it persuasive, for example, that Knight had hired another woman to take Nelson’s place.

Generally speaking, courts in employment cases have found that attraction isn’t about gender per se, but about chemistry. After all, the boss who favors his paramour isn’t treating all women the same; by definition, he is favoring one woman at the expense of others (and men, too). A male boss with an attraction problem discriminates, legally, only when he treats women similarly. In the case of favoritism, a boss who made sex the price of favorable treatment — and made the “product” available to anyone willing to pay — would cross the line. In this case, the court stated that it might have ruled differently if Knight fired a number of women because he was attracted to all of them.

But on reading the court’s opinion, it’s hard to avoid feeling that they have missed much of the point. This case is so chock full of gender stereotyping, it feels like we’ve traveled back in time to the days when women were first entering the workforce. For example:

  • Knight’s argument is that Nelson’s very presence in his office was the problem — not his inability to control himself. Even in his own telling, Knight’s problem was that he feared he would be unable to stop himself from trying to have an affair with Nelson. This hearkens back to . . . well, to the Garden, really. Women are sexual, corrupting, the source of temptation. It’s not what women do or how they act; it’s just what they are. That’s how this case became about the hot employee and not about the boss with the active imagination. (Speaking of the Garden, Nelson had the pleasure of being fired by the tag team of Knight and his pastor, who sat silently while Knight read a prepared statement informing Nelson that their “relationship had become a detriment to Knight’s family.” )
  • Despite Knight’s efforts to paint himself as a family man trying to protect the sanctity of his marriage, the evidence tells a different story. In fact, this could easily have been a sexual harassment case. Knight admitted telling Nelson that if she saw a bulge in his pants, she could conclude that her clothing –scrubs, according to her! — was too tight. He also told her it was a good thing he only found her tops too tight, because if she also wore tight pants, he would “get it coming and going.” Knight said that Nelson told him she and her husband had infrequent sex; his response was that this would be like having a Lamborghini — her — in the garage and never driving it. He also texted her a question about her orgasms. Strangely, few of these facts have made it into news reports about the case, nor did they figure in the court’s analysis. Somehow, this case still seems to be about the old-fashioned family man, possibly misguided but trying to do the right thing. And not about the icky horn-dog boss.
  • Speaking of stereotypes, you have got to feel a bit sorry for Knight’s wife, who not only had to witness all of this at work but whose jealousy was blamed for the firing. In fact, the Iowa Supreme Court framed the central question of the case like this: “Can a male employer terminate a female employee because the employer’s wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee?” Oh the jealous wife, ruining everyone’s workplace fun, frowning on comments about bulging pants and orgasms. What a killjoy.
  • For me, the strangest fact of the case comes with even more stereotypes. After firing Nelson, Knight — again, with his pastor — had a meeting with Nelson’s husband. Knight reassured him that his wife had not done anything wrong or inappropriate, but had to be fired because Knight was afraid he would one day try to have an affair with her. In other words, I just fired your wife because I really want to have sex with her, but I want you to know it’s not her fault. And I’m so glad we could talk out your wife’s firing, man to man.

EEOC: Sex Discrimination Includes Gender Identity and Transgender Status

In a landmark decision, the Equal Employment Opportunity Commission has ruled that Title VII’s prohibition on sex discrimination is broad enough to encompass discrimination based on gender identity and transgender status. The Commission held that Mia Macy, the complainant, was entitled to have her discrimination claims investigated by the federal agency that denied her a job, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (still referred to as the ATF, despite that final E).

According to the EEOC’s decision, Macy was living as a man and working as a police detective in Phoenix, Arizona, when she heard that the ATF has an open position at its crime laboratory in Walnut Creek, California. Macy was planning to move to the San Francisco Bay Area, and contacted the agency about the position in late 2010 or early 2011. Macy was told twice that the job was hers pending completion of a background check. Macy was also told that she would be working as an outside contractor through a company called Aspen of DC. In March of 2011, Macy contacted Aspen and asked them to inform the Walnut Creek lab that she was transitioning from male to female. Five days later, Aspen informed Macy that it had passed the information on. Five days after that, Macy was told that the job was no longer available due to budget cuts.

Finding the timing of the decision questionable, Macy contacted an EEO counselor at the ATF to ask about the situation. (This is how federal agencies handle discrimination issues: The employee or applicant must first complain to the very agency he or she believes committed discrimination. The agency then decides how to handle the charge; typically, the agency investigates and makes a decision, which the employee can appeal to the EEOC.) Macy was then told that the position had actually been filled by someone else who was farther along in the background investigation process. Finding this even more questionable, Macy filed a discrimination complaint with the ATF, stating that she was discriminated against based on sex, sex stereotyping, and gender identity.

The ATF said it would process her claim of sex discrimination, but would defer her claim of gender identity discrimination to a separate procedure, as that claim was not cognizable under Title VII. Macy appealed, claiming that by dividing her complaint up like this, the ATF was effectively denying her basic allegation that she was not hired because she revealed her transgender status. And, the EEOC agreed, finding that claims of discrimination based on gender identity and transgender status are claims of sex discrimination, and fall under Title VII’s prohibitions. The Commission pointed out what previous cases made clear: Discrimination based on sex includes discrimination based on gender — and gender encompasses not just a person’s biological sex at birth, but also “the cultural and social aspects associated with masculinity and femininity.”

The Supreme Court had already held that refusing to promote a woman because she did not act or dress in stereotypically feminine ways was a form of sex discrimination. In Macy’s case, the Commission held that discrimination based on gender identity or gender nonconformity was, inescapably, a form of gender discrimination: The employer is making a decision based on perceptions of how a person who is “male” or “female” should look, dress, and act. In an interesting comparison, the EEOC pointed out that Title VII’s prohibition on religious discrimination would protect an employee whose employer fired her because she converted from one religion to another. Even if the employer claimed to be biased only against “converts,” this would still constitute religious discrimination — and it would not create a “new” protected class. The Commission sent the case back to the ATF for proper processing as a cognizable complaint.

As the Commission’s decision notes, other courts have reached similar conclusions, so in some ways this case is merely the next step in that evolution of the law. At the same time, this is a huge development — and a huge victory for the LGBT community. The EEOC is the enforcer of the nation’s civil rights, and its decisions are tremendously influential. What makes this case even more interesting is that the sex stereotyping claim is potentially quite strong (I say potentially because the only known fact at this point is the timing of the decision which, while suspicious, isn’t dispositive). Macy’s skills and experience were all in traditionally male endeavors. She was a police detective, applied for a job as a ballistics technician, and according to news reports, is also a veteran. As the EEOC pointed out, the gender identity claim may not even be necessary for her to win. If the ATF simply wanted to hire a man for the job, and disqualified her once she transitioned to living as a woman, it’s a plain old sex discrimination case.

Wal-Mart 2.0: California Employees Sue for Sex Discrimination

Remember that gigantic class action the Supreme Court threw out against Wal-Mart? In that case, three named plaintiffs sought to sue the giant retailer for sex discrimination in pay and promotions, on behalf of more than a million female employees nationwide. As I noted in an earlier post, the Supreme Court tossed the case, finding that there was no commonality among the proposed class. The court pointed out that the pay and promotion decisions the women complained of were made by different managers nationwide, among other things. Although the women claimed that they had the common experience of facing discrimination because Wal-Mart gave its managers unfettered discretion to make pay and promotion decisions with a corporate culture that relied heavily on gender-based stereotypes, the Court didn’t buy it.

Yesterday, the employees’ lawyers rebooted, with what they’ve called “Wal-Mart 2.0.” They filed a class action lawsuit on behalf of California employees only — an estimated 90,000 of them — once again alleging sex discrimination in pay and promotions. According to the plaintiffs’ press release, the revised complaint relies on new statistical evidence showing pay disparities between male and female employees in comparable positions, even though the women tend to have more seniority and better performance evaluations. The complaint also alleges biased statements by decision makers and statistical evidence of bias in promotions, among other things. (You can check out the press release and the complaint; the plaintiffs’ website provides lots more information on the case.)

The lawyers for the employees have promised that this is the first in an “armada” of state and regional lawsuits to be filed against Wal-Mart in the coming months, designed specifically to meet the Supreme Court’s objections that the original nationwide class had experiences that were too diverse to join in a single lawsuit.

Wal-Mart Wins Class Action Case in Supreme Court

Yesterday, the Supreme Court gave employers a huge win in the case of Wal-Mart Stores v. Dukes. The case was a class action lawsuit that alleged the giant retailer discriminated against female employees when making decisions on pay and promotions. There were three named plaintiff-employees, who sought to bring the lawsuit on behalf of more than a million female employees nationwide.

The Supreme Court wasn’t asked to rule on whether any employees had been discriminated against. Instead, the Court looked only at the class action issue: whether it was appropriate for the employees to bring these claims as a group. The Court concluded that it was not — and the ruling will likely result in fewer class actions over all kinds of issues, from civil rights cases to product liability claims.

The employees claimed that Wal-Mart engaged in a pattern and practice of discrimination against women by allowing its (mostly male) managers to exercise nearly unfettered discretion in making pay and promotion decisions, within a corporate culture that relied on gender-based stereotypes. The effect of this combination, the plaintiffs claimed, were significant disparities in pay and promotions to management between women and men. The employees presented anecdotal evidence from employees and statistical evidence of the disparities, in their effort to get a class action certified.

In a class action, a representative group brings a lawsuit on behalf of everyone who’s in the same position. The class action framework is intended to promote efficiency and fairness by allowing everyone’s claims to be decided at the same time, according to the same standards, rather than through a number of separate lawsuits that could result in contradictory outcomes. But to bring a class action, the plaintiffs have to meet certain requirements, intended to make sure that it’s fair both to other class members — whose rights will be determined by the lawsuit, even if they don’t participate — and to the defendant, who will have to defend against time-consuming and costly large-scale allegations.

The Supreme Court decided that the case couldn’t proceed as a class action because the plaintiffs hadn’t met one of these threshold requirements: that there be at least one common issue of law or fact among the class members (“commonality”). Because the women worked at stores across the 50 states, reporting to different managers, and bringing their own skills, performance history, and other attributes into play, the Court found that they didn’t have commonality. The Court was especially dismissive of the plaintiffs’ claim that allowing managers to make subjective, discretionary decisions could provide the necessary common ground for the class action.

Four Justices dissented from this part of the ruling. Justice Ginsburg, writing for the minority, identified the key common question for the class as “whether Wal-Mart’s discretionary pay and promotion policies are discriminatory.” In addition to reviewing the plaintiffs’ statistical and anecdotal evidence, she pointed to other facets of Wal-Mart’s nationwide practice, such as requiring that all employees promoted to management be willing to relocate and allowing managers to set pay within a two dollar range, which left room for the operation of gender bias.

The majority’s opinion in the Wal-Mart case is likely to have a significant impact on future class actions because it sets a stricter standard for getting these cases off the ground. As Justice Ginsburg points out, the commonality standard had previously been interpreted more leniently. The key question wasn’t whether there were dissimilarities among the class members, but whether there was at least one crucial similarity, a question that could be answered for the entire group. We’ll have to see what the ultimate effect of this case will be, as lower federal courts apply it going forward. For now, though, advocates for business groups and employees alike agree that it will limit the number and size of class actions in the future.