Articles Posted in Sex Discrimination

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On September 18, 2023, the Maine Human Rights Commission considered a case in which an employee alleged that she was denied reasonable accommodation for a pregnancy-related condition and found in the employee’s favor.

In Rudolph v. Eastern Maine Healthcare System d/b/a Northern Light Health & Northern Light Regional Health Facilities d/b/a Northern Light Maine Coast Hospital, the Complainant, an ICU nurse, provided her employer a note from her doctor that restricted her from lifting more than 30 pounds for the last trimester of her pregnancy.  She alleged that after presenting the restriction to her employer that they denied her request for accommodation and instead put her on an unpaid medical leave which left her with no income leading up to the birth of her child and uncertainty regarding whether she would be able to use leave to spend time with her newborn baby.

The case arose under 5 M.R.S. §4572-A(2-A), which is a section that was added to the MHRA in 2019.  The new provision makes it unlawful employment discrimination when employers fail to provide an employee with a reasonable accommodation for a pregnancy-related condition unless the employer demonstrates that the requested accommodation would impose on undue hardship on the employer.

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The U.S. District Court of Maine has denied a motion filed by national employment defense firm Littler Mendelson in which Littler attempted to persuade the court to make it more difficult for workers to bring discrimination lawsuits.  The case involves allegations that Modula, Inc. discriminated against the Maine Employee Rights Group’s (MERG) client on the basis of her sex and age and also that it retaliated against her for opposing the company’s discrimination.  Littler argued that the Court should dismiss the sex and age discrimination claims because the allegations in the Complaint were not sufficient to state a claim for relief on those claims.

The court rejected Littler’s argument and ruled that the Complaint alleged sufficient facts to state a claim for relief.  The court clarified that when a Complaint alleges facts sufficient to state a “prima facie case” of discrimination, that is enough to state a claim and for the case to move forward.

The court found that the Complaint in this case sufficiently alleged a prima facie case of age discrimination because it included allegations that (1) MERG’s client was 49 years old when she was fired, (2) she was qualified for the position she held, (3) she was fired, and (4) Modula hired a 33-year old person with less experience to replace MERG’s client.  The court found that the Complaint sufficiently alleged a prima facie case of sex discrimination because it included allegations that (1) MERG’s client is a woman, (2) she was qualified for the position she held and was an exemplary employee, (3) she was fired, and (4) Modula hired a man with less experience to perform the job.  The court found that these facts were more than sufficient to state a claim for relief and permit the case to move forward.

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The news organization Reuters recently reported on an Amazon HR project to develop artificial intelligence to screen job applicants’ resumes. Amazon wanted a computer to use an algorithm to select the top five applicants from a pool of hundreds. What it found, however, is that the algorithm disproportionately screened out well-qualified women.

The people who worked on this project for Amazon developed an algorithm that looked for certain words which appeared in the resumes of employees who Amazon had hired and who, presumably, proved to be good employees. The problem is that, historically, Amazon and other tech companies have disproportionately hired men. And, what Amazon learned through this project, is that men and women use different terminology in their resumes. For instance, men were more likely to use terms like “executed” and “captured” in their resumes. Needless to say, whether you use a term like “executed” in your resume is not a good predictor of whether you’re going to be a good employee.

Regardless of Amazon’s failed experiment, many companies are forging ahead with A.I. hiring processes. For example, one firm has developed software that will analyze candidates’ facial expressions and speech during video recorded interviews.

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The Rhode Island ACLU has sued the Newport Grand Casino claiming that the casino paid their client, Paula Borrelli, less because of her gender.  Borrelli claims that she learned during a meeting in December 2016 that her male colleague received higher pay than her.  She says that she immediately asked for the same pay as this male colleague but the casino denied her request in May 2017 without any explanation.

“I just held myself together. I was falling apart inside because I was disgusted,” Borrelli said. “I was thinking they were building me up over these months thinking to myself that they’re working on it and this is it. And the answer was ‘we’re doing nothing.’”

“Ms. Borrelli’s case epitomizes both the deeply-ingrained problem of wage discrimination that too many women routinely face and the need for stronger, not weaker, protections in the law to address this discrimination,” said RI ACLU Executive Director Steven Brown in a statement. “That is why, although we rarely handle employment discrimination cases in the private sector, we felt it important to get involved in the case and help bring attention to this important issue.”

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Starbucks has decided to institute company-wide training on implicit bias. The company’s decision came on the heels of an incident where Starbucks employees called the police to remove some black people from the store for doing something that white people do all the time. These black people were waiting for a friend before they bought their coffee. It is, of course, possible that conscious racism against black people motivated these employees to call the police. However, it is more likely that implicit bias, motives that people don’t think about but that cause them to act in certain ways, caused these Starbucks employees to call the police.

Psychologists have studied the phenomenon of implicit bias for decades. Pretty much everybody has an implicit bias against certain groups of people and in favor of other groups of people. For instance, regardless of how much they abhor racism, almost everyone who is not black has implicit bias against black people which unconsciously drives their actions when they interact with black people.

One of the consultants assisting Starbucks believes that companies need to implement systems where employees work together to combat implicit bias, as opposed to asking individuals to police their own biases. “Any strategy that essentially relies on people to try not to be biased is doomed to fail; that’s the heart of the problem,” said David Rock, director of the NeuroLeadership Institute. “You’ve got to shift the focus from individuals trying not to be biased to teams being able to catch bias,” he said.

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A former cheerleader for the New Orleans Saints, Bailey Davis, is suing the team because of policies it allegedly required her and other cheerleaders to comply with to prevent them from being “preyed upon” by male athletes. For example, according to Davis, the Saints prohibited cheerleaders from being in the same bar or restaurant as male professional athletes who played in the NFL or NBA. So, Davis says, if an NFL football player or NBA basketball player entered a restaurant where she was eating, the Saints’ policy required her to leave the restaurant.

Davis was fired for violating a policy that prohibited cheerleaders from posting pictures of themselves on social media where they are nude, seminude, or in lingerie. Davis posted a picture of herself in a lace bodysuit. Davis argues this policy is unfair because the Saints do not prohibit the players from posing topless. “I’m in a swimsuit or in a body suit, it’s seen as something sexual. But the players can post shirtless in their underwear and it’s just seen as athletic,” said Davis.

The whole notion that women must be protected from male NFL and NBA athletes is offensive on a few levels. First, the policy presumes that men and women have to be separated or else they will act inappropriately with one another. This type of justification for segregation among the sexes, sometimes called “benevolent sexism,” should be a relic of a bygone era. Benevolent sexism has been used for decades as a justification to exclude women from certain professions and places in society.

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Senator Mike Lee (R-UT) and other Republican Senators have reintroduced a bill that would protect people and businesses that discriminate against LGBT people and people who have sex outside of marriage.

The text of the reintroduced bill has not yet been released but the earlier version of the bill would prohibit the “Federal government” from discriminating against individuals because they act “in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” Under this earlier version of the bill, the term “Federal government” would include federal courts as well as all other branches of the federal government.

This bill could, for instance, be construed to prevent the U.S. Equal Employment Opportunity Commission (EEOC) from suing a business that fired a woman because she had sex outside of wedlock or that fired a gay employee because he got married. Senator Lee maintains that this bill would not prohibit these types of discrimination lawsuits. But if the new bill contains language similar to the old bill and it becomes law, some courts could very possibly find that the bill immunizes employers from these type of discrimination lawsuits. Employers would argue that the EEOC sued them because they acted in accordance with their religious beliefs that unmarried people should not have sex or that LGBT people should not marry.  Some courts might accept these arguments based on the broad language of this bill.

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The federal First Circuit Court of Appeals has affirmed a jury verdict against the Providence Fire Department (PFD) in a sexual harassment lawsuit filed by a lesbian who formerly served as a lieutenant in PFD. The plaintiff, Lori Franchina, suffered severe sexual harassment and after she reported the harassment to PFD she experienced severe retaliation. Some of the harassment and retaliation included: a man on the first day he met her telling her that he could impregnate her if she wanted because he knew she was a lesbian; this same man later opened the closed door to Franchina’s bedroom in the firehouse, walked in while she was getting undressed, and refused to leave until the third time she asked him to “get the f—k out”; multiple people used sexist epithets to refer to her; another person tampered with her food and made her sick; and, in one disgusting incident, someone flung blood and brain matter from a suicide victim on her. To remedy the damages that Franchina suffered, Franchina was awarded $806,000.

One of the legal hurdles that Franchina had to overcome to win this case was that she had to argue that she experienced discrimination based on her sex, not just her sexual orientation. This is because the First Circuit previously determined, about 20 years ago in a case called Higgins, that the law Franchina sued PFD under, Title VII, does not prohibit sexual orientation discrimination.

The First Circuit judges in this case distinguished the facts of Higgins from the facts of Franchina’s case because Franchina suffered harassment not just because she was gay but, rather, because she was both a woman and a gay person. Thus, the First Circuit found that this case fit into a category of Title VII cases called “sex-plus” cases. A common type of sex-plus case is where a woman with children gets discriminated against not just because she is a woman but, rather, because she is a woman with children. Similarly, Franchina experienced harassment (a form of discrimination) not just because she was a woman but, rather, because she was a woman who was gay.

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A tech entrepreneur recently took a novel approach to ensure that members of her company’s board of directors cannot engage in sexual harassment and keep their positions. The entrepreneur, Kristina Bergman, is the CEO of Integris Software. Bergman added a clause to stockholders’ voting agreements that requires them to vote out a director if there is a “reasonable probability” that they sexually harassed someone.

Typically, directors are only removable for cause, such as if they embezzle money from the company or engage in fraud. Bergman’s approach is novel but it is smart given how rampant sexual harassment is in the tech industry. Hot startup companies, like Uber, and some of the venture capital firms that fund them, like Binary Capital, have come under fire for sexual harassment. Bergman wanted to try to prevent the problem that has dogged these companies from infecting hers.

Notably, the standard of “reasonable probability” is intended to be lower than the standard of proof required to hold someone responsible for sexual harassment in court. Bergman and the lawyer who helped her draft the stockholder voting agreement wanted to avoid protracted legal fights.

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We previously reported on a bill that the Maine legislature was considering which would help address the gender pay gap.  That bill passed the legislature but Governor LePage has vetoed it.  As our previous post explained, this new law would help prevent victims of pay discrimination from continuing to suffer the effects of that discrimination when they move from one job to another.  It would also help victims of pay discrimination to discover their employers’ discriminatory practices.

“Workers should be paid a market-based salary that reflects their education, experience, qualifications, credentials and work ethic, regardless of whether a previous job underpaid them because of their gender — or any other reason,” Senator Cathy Breen (D-Falmouth) said. “If this bill becomes law, it will be a victory not only for the hundreds of thousands of Maine women who are underpaid, but for all workers that deserve fair compensation.”

Governor LePage’s veto statement focused on the part of the bill that would have prohibited employers from asking prospective employees to disclose their pay history during negotiations over their starting salary.  Governor LePage said, among other things, that “Maine’s employers are often their own HR departments.  Adding another law restricting a legitimate business practice places yet another burden on our employers.  If an employer cannot ask, they may end up making even lower offers than they normally would, resulting in lower wages.”

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