Articles Posted in Sex Discrimination

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Last month, a sex discrimination trial began in which Ellen Pao, a former junior partner at venture capital firm Kleiner, Perkins, Caufield & Byers, has alleged that Kleiner Perkins refused to promote her and forced her out because of her sex.  The trial will include evidence of lurid sexism but, perhaps more interestingly, will also include evidence of subtle forms of sex discrimination.

During the trial, Pao’s lawyers plan to present evidence that male partners of the firm sometimes treated women in overtly sexist ways.  For example, a male partner, Ajit Nazre, once allegedly knocked on the hotel room of a female employee while he was wearing nothing but a bathrobe.  Nazre also allegedly sexually harassed a female employee at a meeting when he rubbed her with his leg under the table.  Another male partner gave Pao a book of erotic poetry and nude sketches.  Still another male partner allegedly told Pao that women “kill the buzz.”

While this is certainly powerful evidence of a sexist firm culture, Pao’s lawyers also plan to introduce more subtle evidence of sex discrimination that is actually more common in the workplace.  For instance, Pao claims that she was criticized for being too passive and not speaking up enough.  But she was also criticized for being pushy and speaking up too much.  These contradictory critiques of Pao’s performance are a commonly cited problem for women who are trying to climb the promotional ladders in workplaces like this.

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This week, the U.S. Sixth Circuit Court of Appeals held that a former employee of InterVarsity Christian Fellowship/USA (“IVCF”) could not sue it for sex discrimination because of the religious natures of IVCF’s business and her job.  The former employee, Alyce Conlon, alleged that IVCF fired her because it did not think she did enough to reconcile her marriage with her husband.  Conlon argued that this was sex discrimination because IVCF treated her differently than male employees who divorced their wives.

IVCF is a “Christian organization, whose purpose is to advance the understanding and practice of Christianity in colleges and universities.”  Conlon worked as a “spiritual director” for IVCF.  Part of Conlon’s job involved assisting people to cultivate an “intimacy with God and growth in Christ-like character through personal and corporate spiritual disciplines.”

The U.S. Supreme Court has held that there is a “ministerial exception” to employment discrimination laws.  This ministerial exception immunizes religious organizations from lawsuits that challenge the organizations’ decisions on who to employ as “ministers.”  This ministerial exception is based on the First Amendment, which restricts government interference with religious institutions.  Given the religious nature of IVCF’s business and Conlon’s job, the Sixth Circuit held that the ministerial exception applied.  In reaching this decision, the Sixth Circuit analyzed various factors, including Conlon’s job title and her job duties.  The court also noted that IVCF qualified for the ministerial exception even though it was a multidenominational organization, instead of a church or an organization affiliated with only one Christian denomination.

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A group of former McDonald’s employees have sued the McDonald’s corporation and the franchises where they worked for race and sex discrimination.  The employees who filed the lawsuit worked for McDonald’s restaurants in Boston and Clarksville, Virginia.  Their allegations of discrimination include claims that the restaurants believed that their employees were too “dark.”  So, the plaintiffs claim, the restaurants fired black and Hispanic employees so that they could replace them with white employees.  The female plaintiffs also claim, among other things, that they experienced sexual harassment, including inappropriate touching and sexual comments.

This lawsuit is particularly noteworthy because of the claims against the McDonald’s corporation.  The McDonald’s business model involves contracting with smaller independent companies, called franchisees, and letting those franchisees run the restaurants.  This business model normally gives the corporation, called the franchisor, the advantage of limiting its liability from lawsuits.  That way, if a customer, for example, gets injured because of a restaurant employee’s negligence, the customer can sue the franchisee but not the franchisor.  In this race and sex discrimination lawsuit, however, these former employees allege that McDonald’s corporation exercises so much control over its franchisees that they are no longer independent.

The plaintiffs in the lawsuit allege, among other things, that McDonald’s corporation controls its franchisees through policies and manuals that govern every aspect of restaurant operations; continual oversight by corporate representatives; control over franchisee employees’ schedules and assignments; comprehensive training of all employees; and hiring decisions.  Given this amount of control, the plaintiffs argue that the franchisor-franchisee relationship is just a legal fiction.  Given the realities of the relationship between McDonald’s corporation and its franchisees, the plaintiffs argue, the McDonald’s corporation should be held responsible for the discriminatory actions of its franchisees.

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A new study from the Economic Policy Institute shows that women who work in the food service industry earn significantly less than men.  The pay disparities are most pronounced in some of the restaurant jobs that pay the most—first line supervisors, bartenders, and managers.  Male managers, for instance, earn a median hourly wage that is almost $3.00 per hour more than female managers.  (See Table 5 of the study).

Given the small amount that food service industry workers earn, compared to other occupations, these pay differences can make a huge difference in the lives of the women that they affect because food service industry workers often need every dollar they earn just to survive.

“This is what we identify as pay discrimination,” said Valerie Wilson, with the Economic Policy Institute.  “The work women are doing is being valued at less than the work men do in the same job.”

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Fifty years ago, in July 1964, President Lyndon Johnson signed the Civil Rights Act of 1964 into law.  Through this landmark piece of legislation, the federal government sought, among other things, to dismantle abhorrent “Jim Crow” laws in the South which rendered African Americans second class citizens.

A strong minority of legislators in Congress fought bitterly to try to defeat the Civil Rights Act.  They argued that the Civil Rights Act would unconstitutionally usurp state rights and impair individual liberty.  Thanks, in part, to the work of civil rights activists like Dr. Martin Luther King and John Lewis, who helped the entire nation and its members of Congress to see the horrors of segregation and Jim Crow, enough members of Congress banded together to pass the law.

Interestingly, before the Civil Rights Act passed, opponents to the law added an amendment to bar sex discrimination in employment.  This tactic backfired.  Title VII of the Civil Rights Act, which prohibits employment discrimination, passed with not only landmark protections against race discrimination, religious discrimination, and national origin discrimination, but also with landmark protections against sex discrimination.

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The U.S. First Circuit Court of Appeals, which has jurisdiction over Maine, other New England states, and Puerto Rico, today reversed the decision of a Puerto Rico court and held that a sex discrimination lawsuit against a Puerto Rico fire department may proceed. Waleska Garayalde-Rijos, the plaintiff in the case, alleged that the municipality of Carolina hired male firefighter applicants ahead of her because of her sex. Garayalde-Rijos contends that she should have been hired ahead of these men because she obtained a higher score than them on the tests that the fire department administered to applicants. In fact, she obtained a higher score than all of the applicants.

After Garayalde-Rijos filed a sex discrimination complaint against Carolina, the fire department decided to hire her. She became the first female firefighter in the history of the Carolina fire department. After her hire, however, she alleges that she experienced further discrimination and retaliation for filing her sex discrimination complaint. For instance, she says that the fire department required her to share gear with a male firefighter and the gear did not fit her properly, which jeopardized her safety.

Unfortunately, stories like this are all too common. In the United States, less than 4% of all firefighters are women. There are countless stories of women who have faced discrimination when they try to become firefighters and, for those who successfully become firefighters, there are numerous stories of how they experience sex discrimination and sexual harassment on the job. If you are a woman who believes a fire department has discriminated against you because of your sex, you should contact an experienced employment lawyer to learn more about your rights.

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Last month, in Shazor v. Professional Transit Management, Ltd., the U.S. Sixth Circuit Court of Appeals, which has jurisdiction over Ohio and other states in the Midwest, held that a jury could reasonably conclude that Professional Transit Management (PTM) illegally fired its former CEO, Marilyn Shazor, because she was an African American woman.

Shazor, like most plaintiffs in employment discrimination cases, relied on circumstantial evidence to prove her case of discrimination. When a plaintiff relies on circumstantial evidence, many courts require her to make out a “prima facie” case of discrimination in order to prevail. According to the Sixth Circuit, Shazor would normally have to show that PTM replaced her with someone outside of her protected classes (race and sex) in order to make out a prima facie case. PTM replaced Shazor with a Hispanic woman and, as such, Shazor could obviously show that PTM replaced her with someone of a different race, but not a different sex. The Sixth Circuit held that even though PTM replaced Shazor with a woman, Shazor could still prevail on her sex discrimination claim on the theory that PTM discriminated against her because she was both an African American and a woman. This theory is sometimes called a “sex plus” theory of discrimination. Under this theory, Shazor could prevail on her sex discrimination claim if she, for example, proved that PTM fired her because of stereotypical notions about women who are also African American, such as that they are “uppity.”

“Sex plus” discrimination may occur in many contexts. For instance, sometimes women with multiple young children face discrimination that women without young children do not because of the stereotype that women with young children are not committed to their jobs. Some employers think that if a woman has young children, she is going to have attendance issues and be unwilling to work late because of child care responsibilities. It is unlawful sex discrimination to discriminate against a woman when you have no reason–other than the fact that she has small children–to believe that she won’t be committed to the job.

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Earlier this month, the Labor and Workforce Development Committee of the Massachusetts House voted in favor of a bill that would prohibit employment discrimination on the basis of height and weight. The bill would add height and weight to the list of characteristics that employers already may not use to discriminate against employees, such as race, sex, and religion.

A doctor who testified in support of the bill said that he had treated countless patients who suffered from discrimination because of their weight. He testified that he thinks discrimination against overweight people has become socially acceptable because of the common misconception that obesity is a character flaw.

Maine and federal law do not ban discrimination on the basis of height and weight. However, if your employer has discriminated against you because you are morbidly obese, you may be able to pursue a claim for disability discrimination. Some courts have found that morbid obesity is a disability. Height and weight requirements can also be used to discriminate against women and people with disabilities which affect their height, such as people with dwarfism. If an employer requires employees to be tall, that requirement could be illegal because of its disparate impact on women (who are, on average, shorter than men) and people with disabilities like dwarfism.

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New Jersey recently enacted a new law which would make it illegal for an employer to retaliate against an employee who asked co-workers about their job titles, occupational categories, and rates of pay for purposes of determining if pay discrimination had occurred. Maine already has a similar law (26 M.R.S.A. § 628) which makes it illegal for an employer to retaliate against an employee because he or she suspects his or her employer is paying him or her less than workers of the opposite sex. Some, but not all, states have similar laws and many worker advocates have urged Congress to pass similar federal legislation as part of the Paycheck Fairness Act.

Employer policies prohibiting employees from discussing their pay rates with one another oftentimes have the effect of keeping pay discrimination hidden. For instance, in Ledbetter v. Goodyear, a famous pay discrimination case that led to the Lilly Ledbetter Fair Pay Act, Ms. Ledbetter found out she was making less than similarly situated men years after the pay inequality began, in part, because of a policy at Goodyear which required employees to keep their rates of pay confidential.

If you suspect that you have experienced pay discrimination on the basis of your sex, you may ask what your co-workers earn to determine if you are correct. However, before you do so, you may want to contact an experienced employment lawyer to determine how best to make those inquiries.

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Last month, a state court in New Jersey ruled that a casino’s policy of requiring waitresses to stay below a certain weight was not sex discrimination. The Borgata Hotel Casino & Spa had a policy which prohibited waitresses, called “Borgata Babes,” from gaining more than 7 percent of the amount they weighed when the casino hired them. To enforce this policy, the casino regularly weighed waitresses. To keep their jobs, some waitresses reportedly resorted to taking laxatives before weigh-ins or stopped taking prescription medication.

The court held that this policy did not constitute sex discrimination because the casino applied the weight limit to both men and women. Also, the court reasoned that the waitresses were made aware of the policy when they were hired and they agreed to abide by it.

While this case may have turned out differently if it were brought under Maine law, instead of New Jersey law, the case illustrates the fact that many policies that employers implement seem like they should be illegal even though they are not. One way for workers to fight back against these policies is to form a union. While one waitress may not be able to persuade her employer to change a weight policy, if all waitresses stand together, in the form of a union, they have more power to persuade their employer to make changes to its employment policies.

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