Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

A female plumber on “light duty” in the City of Chicago’s Department of Sewers filed a lawsuit alleging that because she was female, her supervisor assigned menial work to her, prohibited her coworkers from interacting with her, and subjected her to alleged “verbal violence.” While the district court viewed each of those actions individually and found that none constituted hostile work environment under Title VII, the7th U.S. Circuit Court of Appeals reversed the lower court’s summary judgment in favor of the City, and determined that the case should move forward to trial, on the basis that a jury could find that the collective treatment could rise to the level of hostile environment. Anna M. Hall v. City of Chicago, 7th Cir., No. 11-3279, March 29, 2013.

In 1999, Anna Hall, a plumber for the City of Chicago, began a lengthy disability leave due to a work-related injury. Hall returned to work in 2003 with a 25-pound lifting restriction, and was unable to resume working as a plumber. The City then assigned Hall to light duty in the House Drain Inspectors Division of the City’s Department of Sewers, where she was supervised by Gregory Johnson, the Division supervisor. Johnson assigned Hall to alphabetize various files for several weeks and, in fact, gave her the same files over and over again. A few weeks later, Johnson did the same with reviews of drainpipe videos, on which Hall took notes which were never read – as Johnson already had reviewed the videos and taken his own notes prior to having Hall undertake the task. After several weeks, Hall complained to the department’s personnel director about the assignments, who dismissed the complaints and allegedly called Hall a “trouble maker” in the process.

In addition to assigning the menial work, Johnson prohibited the other Division employees from speaking to Hall, ultimately excluding her from meetings, and precluding her from taking on additional responsibilities within the group. Johnson also directed anger towards Hall in other ways, making comments – overheard by Hall – that he “could slap that woman and get a promotion” and that he might “go postal on that woman.” On one occasion early in 2004, Johnson purposely bumped into Hall, after which Hall contacted the police, the union, and her lawyer, and ultimately filed a Violence in the Workplace Report with the City. Eight days after that Report, a written reprimand was issued to Johnson.

Hall continued to do the assignments given to her by Johnson until 2005, when she left the Division and filed a lawsuit, alleging that Johnson discriminated and retaliated against her, and that the City failed to promote her in retaliation for her complaints. The lower court entered summary judgment against Hall, dismissing the complaint. On appeal, Hall pursued only her hostile work environment claim. The Seventh Circuit reversed the lower court’s decision, and remanded the case for further proceedings on that claim.

Title VII makes it unlawful to treat an employee differently because of a protected characteristic, including gender. To survive summary judgment on her Title VII hostile work environment claim, Hall had to provide evidence that the alleged harassment was severe or pervasive, that the hostile conditions were because of her sex, and that the company should be held liable for Johnson’s actions. The Seventh Circuit determined that Hall had done all three.

First, the Court stated that it was improper to “carve up the incidents of harassment and then separately analyze each incident, by itself, to see if each rises to the level of being severe or pervasive.” Instead, the Seventh Circuit looked at the totality of the circumstances and found that a jury could conclude that Johnson’s ongoing conduct was designed to ostracize Hall from the rest of the Division.

Next, while admitting that this was a “close” case, the Court found enough evidence in the record from which a jury could infer that Johnson was motivated by Hall’s gender. That evidence consisted largely of Johnson’s references to “that woman” in his remarks about Hall. It is of note that Hall was not the only woman in the Division - Johnson’s secretary also was female. However, the Court pointed out the fact that Hall was in a “traditionally male role” (that of plumber), while the secretary was not, and referred to research on gender stereotyping.

Third, Hall was able to proffer sufficient evidence on which a jury could base a finding of liability against the City. While the City took prompt action after Hall’s Violence in the Workplace Report, the record also showed that Hall first raise her concerns about her assignments a few weeks into her light duty position, but allegedly was met with the statement that Hall was a “trouble maker.” Further, Hall’s report to the union and to the police of the bumping incident in 2004 provided sufficient notice to the City of the issues related to Johnson’s actions.

It is important to understand that the Seventh Circuit’s holding is not an ultimate determination of Hall’s hostile environment claim. However, it does indicate that courts are likely to: (1) view hostile work environment complaints through a broad lens, looking at the totality of the circumstances to determine whether behavior is “severe or pervasive”; (2) interpret remarks that include references to gender (“that woman”) as an indication that the remark was made because of the sex of the person being mentioned; and (3) assume that a jury may find a company liable if prior complaints have been made without some active response. In addition, the case is a warning to employers regarding the supervision of individuals on “light duty” and a directive to assure that company anti-discrimination policies are enforced for those employees, even though they are in positions other than their own.
 

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Remarks by a law firm’s human resources director could be “direct evidence” of pregnancy discrimination and violation of the FMLA, according to the 7th U.S. District Court of Appeals. According to the court, such evidence falls outside of the “hearsay” objection that might otherwise keep it from being presented to a jury. Makowski v. SmithAmundsen LLC, 7th Cir., No. 10-3330, November 9, 2011.

Lisa Makowski was employed as Marketing Director for the SmithAmundsen law firm between January 2005 and her termination in February 2008. During her employment, Makowski received annual salary increases and discretionary bonuses based on her performance. In the summer of 2007, Makowski informed the firm’s management that she was pregnant. She requested, and was granted, leave under the Family and Medical Leave Act. Between November 5 and November 25, Makowski worked from home with the firm’s permission, as she had been placed on bed rest by her obstetrician. She began her FMLA leave on November 26, and gave birth on December 2.

In January 2008, the firm’s Executive Committee conducted its firm retreat, at which it annually assessed the overall structure of the firm to determine whether staffing changes were necessary. At that retreat, the Executive Committee decided to terminate Makowski and to move another individual into the leadership position with the Marketing Department. After that meeting, the Committee informed the firm’s Human Resources Director, Molly O’Gara, that Makowski didn’t “fit into our culture,” and asked O’Gara to consult with outside counsel to discuss the implementation of Makowski’s firing.

On February 4, 2008, while Makowski was still on maternity leave, her employment was terminated over the telephone. In that conversation, Makowski was told that her position was being eliminated as part of an organizational restructuring. Later that day, Makowski came into the office to pick up her personal belongings. According to Makowski, as she was leaving the office, she was met by O’Gara, who told her that the actual reason for the termination was because of Makowski’s pregnancy and FMLA leave, and that the same thing had happened to several other women employees in the past. O’Gara allegedly suggested to Makowski that she should speak to a lawyer about a possible class action on the issue.

Makowski filed a lawsuit on December 2, 2008, alleging violations of both the Pregnancy Discrimination Act and the Family and Medical Leave Act, and cited O’Gara’s alleged remarks as direct evidence of discrimination. The firm moved for summary judgment, and the motion was granted, based on the fact that because O’Gara had not been directly involved in the decision to terminate Makowski, her statements concerning the termination were inadmissible hearsay. Without those statements, Makowski lacked evidence of the connection between her termination and any discriminatory acts by the firm.

On appeal, the Seventh Circuit reversed that decision. It found that because O’Gara’s statements concerned a matter within the scope of her duties as HR Director, they fell within an exception to the hearsay rule. Essentially, that exception means that the agent acting within the scope of his or her employment with the company speaks on behalf of the company and that, therefore, his or her statement is actually a party admission that can be used to support a claimant’s case. Here, O’Gara’s alleged comments to Makowski fit within the scope of O’Gara’s duties as an HR Director who was involved in the firm’s hirings and firings. Further, the court pointed out that O’Gara’s discussions with outside counsel at the request of the Executive Committee could actually support an argument that O’Gara was directly involved in the final decision to fire Makowski, since the Committee waited for the counsel’s imprimatur before implementing the termination.

This case sets out an important lesson for employers and underscores the need for training for managers, supervisors, and HR personnel, especially with respect to having the difficult conversations needed for disciplinary and termination meetings. The importance of the use of “talking points” for disciplinary and termination meetings cannot be overstressed. Any remarks outside of pre-established, pre-rehearsed talking points could be used – as in this case – to argue to the jury that the “official” reason given for the adverse action was simply a pretext for discrimination.
 

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The Pregnancy Discrimination Act (PDA) requires employers to treat pregnant employees in the same manner as other employees who are not pregnant, but who are similarly situated in their ability or non-ability to work. That means that under the PDA, a woman who is unable to work because of pregnancy-related illness is entitled to sick leave or benefits only on the same basis as employees who are unable to work for other reasons. Based on that rationale, a part-time salesperson recently was unable to convince the 10th U.S. Circuit Court of Appeals that she was denied leave and later fired on the basis of her pregnancy. Anderson v. The Cato Corporation, 10th Cir., No. 11-3003, October 27, 2011.

Because the Tenth Circuit was reviewing a summary judgment ruling, it was required to view the evidence in the light most favorable to Anderson, assuming her asserted facts to be true. In February 2008, Cynthia Anderson began her employment as a part-time sales associate with The Cato Company. After a few months, the company was considering her for a full-time assistant manager position. On April 9, 2008, Anderson discovered that she was pregnant; she informed the company on the following day. Anderson then asked for "couple of days off" to get some mediation for her nausea. According to Anderson, the store manager seemed "okay" with that request. However, Anderson claimed that she called on April 15 to inform the store manager that she had been admitted to the hospital and would need additional time off, and was told that she had been terminated from her associate position, but that the store manager would attempt to hold open the assistant manager position for her. Later that week, when Anderson called again, she claimed that she was told that the assistant manager position had been awarded to another employee.

According to Cato’s records, Anderson’s personnel records indicate a "voluntary termination" because of "complications with Pregnancy." The Recommended for Rehire box on the form was checked as "Yes." Anderson never sought to be rehired by Cato.

Because she planned to apply for unemployment compensation and public assistance, Anderson requested from Cato a letter setting forth the reasons for her termination. In response, a store manager wrote that Anderson was terminated "due to pregnancy related illnesses." The letter went on to explain that Anderson, who had only worked for the Company for two months, was not eligible for leave under Cato’s policies.

Anderson filed a legal action under the PDA, arguing that the company’s letter was direct evidence of a violation of that Act. However, the lower court granted Cato’s motion for summary judgment, holding that Cato terminated Anderson’s employment because she was unable to work and was not entitled to leave. That decision was upheld by the Tenth Circuit on Appeal.

The Tenth Circuit first determined that Cato’s written statement regarding the reason for Anderson’s termination was not direct evidence of discrimination. It based that determination on the fact that the letter was not an admission of illegal activity, but was an explanation of the fact that Anderson needed leave to which she indisputably was not entitled. It then went on to say that Anderson failed to proffer any evidence that Cato’s policy of terminating employees who needed extended leave to which they were not entitled, then offering to hire them back when they were able to work again, was not evenly applied to all employees regardless of whether the employee was pregnant.

Employers should not view this decision as a "free pass" to end the employment of individuals who ask for additional leave time to which they are not entitled under company policies. Because the case was before the court as a PDA claim - and not a claim under the Americans with Disabilities Act or any associated state-law disability statute – it is unclear whether the same rationale would apply if the case had included a claim under the ADA, since various courts have viewed requests for additional leave time as potential requests for reasonable accommodation that should be honored unless they create an "undue hardship" for the company. Such requests therefore should be reviewed on a case by case basis, with an eye toward the ADAAA regulations that were updated in March of this year.

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In gender discrimination cases under Title VII, a jury can award back pay and front pay, but also can award compensatory damages if it believes that an employee was harmed emotionally or psychologically by the alleged harassment or hostile work environment. The 1st U.S. Circuit Court of Appeals recently affirmed a $1.6 Million damages award against a Massachusetts hospital and a male physician, and in favor of a female neurosurgeon who claimed hostile work environment and retaliation under Title VII. Tuli v. Brigham & Women’s Hospital, 1st Circ., No. 09-1731, August 29, 2011.

Dr. Sagun Tuli, a female neurosurgeon, brought claims against her employer, Brigham & Women’s Hospital and her supervisor, Dr. Arthur Day, after a yearly review of her medical staff credentials resulted in a conditional reappointment. Tuli, who was hired into the hospital’s Department of Neurosurgery in 2002, acted as the department’s professionalism officer and representative to the hospital’s Quality Assurance and Risk Management (QARM) Committee, which required her to investigate and report on other doctors’ case complications. As QUARM representative, Tuli investigated three of Day’s cases, all three of which ultimately were reported to the state’s Board of Registration of Medicine. In addition, Tuli raised concerns to the hospital’s chief medical officer that Day was inappropriate and demeaning to women, including Tuli.

In 2007, Tuli’s medical staff credentials were due for review by the hospital’s credentialing committee. The results of that review would determine whether Tuli would continue to have “privileges” at Brigham & Women’s – that is, whether she would be allowed to practice medicine at the hospital. Day presented Tuli’s case to the committee in unflattering terms, including a suggestion that she would benefit from anger management training. The committee then conditioned Tuli’s reappointment on obtaining an evaluation by an outside agency (“Physician Health Services”) and on agreeing to comply with that agency’s recommendations.

Tuli subsequently filed a lawsuit asking for a preliminary injunction to prevent the loss of her privileges. She also alleged gender discrimination, claiming both disparate treatment and hostile work environment, based upon Day’s behavior toward her. The district court granted the preliminary injunction. Shortly after that, a jury decided Tuli’s claims, awarding $1 Million in compensatory damages against the hospital on Tuli’s hostile environment claim, $600,000 against the hospital in compensatory damages on her retaliation claim, and $20,000 against Day personally for economic harm on a “tortuous interference with business” claim. At that point, the lower court entered a permanent injunction, keeping the hospital from withdrawing Tuli’s privileges at the hospital. The hospital appealed on all counts.

On appeal, the First Circuit upheld the jury’s verdict, as well as the permanent injunction. It found that the evidence showed that Day frequently had questioned Tuli’s authority, calling her a “little girl,” and asking whether she really could do a “big operation.” In addition, the First Circuit upheld the use of evidence at trial that included incidents outside of the applicable 300-day statute of limitations. In other words, it upheld Tuli’s evidence to the jury of Day’s behavior over the course of her employment, and not simply behavior within the 300 days prior to her first formal claim. Under this “continuing violation” theory, if an act contributing to the claim occurs within the filing period, the entire time period of the alleged hostile environment can be considered by the jury for purposes of determining liability.

While this case is a warning to employers on the risks associated with hostile environment and retaliation claims, the warning is especially strong for hospital and health care systems that directly employ physicians. First, the income level of the individual involved typically translates into higher damages awards when juries find in their favor; and second, the risk created by the overlap between the credentialing process and hostile environment cannot be ignored, especially when an alleged harasser is directly involved in the credentialing process.
 

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The 1st U.S. Circuit Court of Appeals reminds us that while Congress’ antidiscrimination laws are designed to protect workers’ rights, they are “not intended to function as a collective panacea for every work-related experience that is in some respect unjust, unfair, or unpleasant.” Consistent with this statement, the court dismissed the claims of four female radiology technicians who complained that their supervisor’s abrasive behavior and its resulting “nerve-wracking” work environment caused each of them to leave her employment at a Department of Veterans Affairs (VA) hospital. Ahern, et al v. Shinseki, 1st Cir., 09-1985, December 13, 2010.

Eileen Ahern, Debra Auger, Maureen Mastalerz, and Lynda Parker were employed as radiology technicians in the diagnostic imaging service (DIS) of a VA Hospital in Providence, Rhode Island. All four reported to a chief technologist (Joan Beaudoin) who, in turn, reported to the administrative officer, Mehrdad Khatib, who was in charge of personnel management. When Khatib first took over, the DIS employed 16 staff technologists, 14 of whom were female. Khatib hired contract technologists, 11 of whom were male and 7 of whom were female.

Beginning in 2003, the plaintiffs and several of their co-workers complained to Beaudoin about Khatib’s management style, claiming that Khatib was creating “stressful working conditions” and a “hostile working environment.” Khatib was advised of the issues, and was asked to work to resolve them.

Early in 2004, Khatib advised Beaudoin that the 4-day workweek schedule by certain of the technologists, including all four plaintiffs, was creating inefficiencies, and asked Beaudoin to change that schedule to a regular 5-day workweek. This change was not implemented, although Beaudoin ultimately instituted a modified version of Khatib’s proposal that included keeping the 4-day workweek intact.

In April 2004, the plaintiffs, along with three female and two male coworkers, submitted a formal complaint about Khatib, suggesting that he had proposed the 5-day workweek in retaliation for the employees’ initial complaints against him, and complaining that he had treated a particular male employee “with more respect” than others, that he was “bullying” the staff, that he harbored “unreasonable and unrealistic expectations,” and that he was setting employees up to “look and feel like failures.” While the complaints were identified as “sex discrimination,” they included a statement that Khatib also treated certain male employees “horribly.”

All four plaintiffs ultimately left the VA Hospital and filed a lawsuit, claiming gender-based discriminatory hiring, retaliation, and constructive discharge. The lower court entered summary judgment for the hospital, which was upheld by the First Circuit on appeal.

The First Circuit found that because none of the plaintiffs actually applied for any of the positions filled by Khatib, there could be no gender-based discrimination against hiring them. In response to the claim of retaliation, the Court held that the plaintiffs were unable to show the required “materially adverse action” that underlay the claim. While the plaintiffs pointed to Khatib’s attempt to change their 4-day workweek, the Court specifically found that “[m]erely proposing a change in an employee’s schedule does not, in and of itself, constitute a materially adverse action.” Because Khatib’s plan was never brought to fruition, no materially adverse action occurred and, therefore, no retaliation could be proven. In response to the plaintiff’s last claim, the Court found that the allegation of constructive discharge was not sufficiently supported, because the plaintiffs failed to show that their working conditions were “so difficult or unpleasant that a reasonable person . . . would have felt compelled to resign. While the Court agreed that plaintiffs’ evidence showed that Khatib’s behavior “created divisiveness and unrest among employees who worked under him,” and that it “may have engendered a “nerve-wracking environment,” that environment was not based on gender. The Court pointed out that “generally disagreeable behavior and discriminatory animus are two different things.”

Working for a difficult or even unreasonable supervisor can be burdensome, but unless evidence exists to show that such behavior by a supervisor is gender based, Title VII is not the appropriate vehicle for recourse. Of course, this case should not be read to justify overlooking or ignoring complaints made by employees. An employer’s obligation to effectively and promptly investigate employee complaints should not be taken lightly. While Title VII and other state and federal antidiscrimination laws are not meant to be viewed as a code of general civility, the parameters set by those statutes should be reviewed, understood, and enforced by employers, in order to avoid the risk of liability that accompanies their violation.
 

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In an unpublished opinion, the 3d U.S. Circuit Court of Appeals has upheld a lower court’s decision to dismiss an employee’s claims of discrimination, hostile work environment, and retaliation, based largely upon the “extraordinary lengths” to which the employer went to investigate the issues complained of by the employee. Wood v. University of Pittsburgh, 3d Cir., No. 09-4469, September 23, 2010.

Deborah Wood was employed as a systems analyst by the University of Pittsburgh. Upon beginning her work on a project in a Biostatistical Center at the University, Wood was provided a retention letter that informed her that the continuation of her position was contingent upon the renewal of non-university grants that funded the project. In 2007, approximately 90% of the project’s funding was provided by grants from the National Institute of Health (NIH). In June of that year, Wood was informed that she was one of 17 individuals selected for discharge during a reduction in force, after the NIH announced that it would reduce funding of the project by over two million dollars. 

On the day of her discharge, Wood served the University with a federal court complaint asserting gender and race discrimination. Her claims were based upon incidents about which she had complained during the years preceding the reduction in force. In 2005, Wood had become convinced that someone was tampering with her office computer, and reported her belief that the computer had been remotely accessed by an unknown user. She also claimed that someone was entering her office when she was not present. Her supervisor responded to these concerns by installing a lock on the office door, by purchasing and installing software to monitor the computer usage, and by asking the University’s computer services department to review activity related to the computer. After months of investigation, including over 150 hours spent by the supervisor himself, no evidence of improper tampering was found. 

Wood was not satisfied, and contacted the University’s HR department to express that dissatisfaction. The HR department then initiated its own investigation through the summer of 2006, providing a new computer to Wood, reformatting her hard drive, and reviewing additional event logs. In November 2006, Wood alleged that someone had broken into her locked office. That report led to an investigation by campus police, along with additional forensic work by the computer department, again without evidence of inappropriate or unlawful activity. Wood considered these efforts to be “inadequate,” and filed a charge of gender discrimination with the EEOC in December 2006.

In 2007, after learning of the NIH decrease in funding and the impending layoffs, the project director offered to Wood an opportunity to interview for a new position in another section of the same project group. Wood declined the offer, and was discharged on July 12, 2007. She served her lawsuit upon the University on that same date.

The lower court dismissed Wood’s race claim prior to discovery because Wood had failed to assert that specific claim in her EEOC charge. After a period of discovery, the court also granted summary judgment in favor of the University on the remaining claims, and Wood appealed that decision. The Third Circuit upheld the dismissal of Wood’s gender discrimination claim, based upon Wood’s failure to demonstrate that the University had retained similarly situated employees who were outside of the protected class (which would have raised an inference of discriminatory animus). Dismissal of her retaliation claim was upheld because the University proffered evidence of a legitimate non-discriminatory reason for Wood’s discharge – undisputed evidence that the project’s budget was reduced when NIH funding was withdrawn, thereby necessitating layoffs. 

Most interesting was the Court’s response to Wood’s hostile environment claim, in which she argued that she suffered persistent harassment which “must have been” the result of gender bias. Upholding dismissal of the claim, the Court pointed out that the University “went to extraordinary lengths” to investigate Wood’s allegations; the Court found no evidence to suggest that any aspect of that investigation was influenced by gender bias. 

The fact that the Court was able to review and remark upon that evidence in such detail indicates that the University thoroughly investigated the incidents reported by Wood and fully documented its efforts. Employer must recognize that such investigation and documentation are the cornerstones of an effective defense against claims of unlawful discrimination and hostile environment.

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An employer’s failure to keep an female employee apprised of its response to her complaints of sexual harassment, and its further failure to follow through on remedial actions could lead a reasonable jury to find that the employer did not take the complaints seriously. Such failures form the basis of a recent decision by the 8th U.S. Circuit Court of Appeals in which the Court denied an employer’s post-trial motion regarding a $100,000 jury verdict. Sheriff v. Midwest Health Partners, P.C., 8th Cir., No. 09-3367, August 30, 2010.

Sheri Sheriff was a licensed physical therapist employed by Midwest Health Partners in Nebraska. Midwest had acquired a chiropractic clinic in 2003 and had asked Sheriff to run the clinic’s physical therapy department. After she began working at the clinic, one of the employed chiropractors (Dr. Meyer) began to act toward Sheriff in a way that made her uncomfortable, including touching her and putting his arm around her. When she informed one of the nurses about Dr. Meyer’s conduct, Sheriff was told to “get used to it,” because “that’s just the way he is.”

Dr. Meyer’s conduct continued, and Sheriff ultimately reported the issue to Midwest’s management. Sheriff also wrote a letter to Meyers, explaining that the advances were “NOT okay!” and that she did not want further physical contact with him. Meyers apologized to Sheriff and said it wouldn’t happen again.

In spite of the fact that Midwest’s president (Dr. Vrbicky) was aware of a prior female patient’s complaint involving Meyer, no one from Midwest discussed Sheriff’s allegations with Meyer until Sheriff learned of that complaint, and of other instances involving another female patient. At that point, Sheriff spoke to Midwest’s Practice Manager about the situation. In addition, Meyer again began to touch, grab, and embrace Sheriff, wrapping his arm around her and touching her breasts. Sheriff then obtained an attorney who wrote to Midwest, advising it “to take aggressive action to protect itself,” and making several recommendations to stop Meyer’s behavior. Seven weeks later, in November 2005, Midwest met with Meyer, asking him to participate in counseling and requesting that he sign an acknowledgement of his inappropriate behavior. He did neither, and his behavior with respect to Sheriff took on a condescending and intimidating tone.

In a January 4, 2006 letter, and at a January 13, 2006 meeting, Midwest again set forth its remedial recommendations, and again, Meyers refused to participate. Finally, on February 23, he agreed to attend sexual harassment training, but only attended one of five sessions. Durin this same period, Sheriff was told that Meyer would be terminated within 45 days. He was not, and Sheriff was given no reason for that turn of events.

On April 11, 2006, Sheriff resigned and brought a legal action against Midwest. At trial, a jury awarded to Sheriff $100,000 on her hostile work environment claim, and Midwest filed a post-trial motion for judgment in its favor. The 8th Circuit denied that motion, finding that the jury had a reasonable basis for its verdict.

The Eighth Circuit’s opinion includes two points of which employers should be aware: first, it rejected Midwest’s argument that Meyer was simply a “touchy person” who patted men on the buttocks and, therefore, his conduct was gender neutral and not sexual harassment. Once again, a federal appellate court has rejected that argument, pointing to the fact that in this case, there was no evidence that Meyer “pulled men into his body” nor was there evidence of any complaints by men or by male patients. Secondly, at least three times in its opinion, the Court mentions the fact that Midwest failed to apprise Sheriff that it was taking action in an attempt to remedy the complained-of situation, or failed to follow up on the termination action that it told her that it was taking. It cites those failures as a possible basis for the jury’s finding that Midwest did not take Sheriff’s complaints seriously. Whether or not that was the reason for Midwest’s failures, it is important to note that this Court believed that open communication with Sheriff regarding Midwest’s remedial efforts was an important element of the employer’s responsive actions to Sheriff’s complaints. While there is no legal obligation to inform a complainant of each and every detailed step in a disciplinary action taken against an alleged harasser, the fact that the complainant is treated with courtesy and respect, and is a full participant in the process, can play a role in the way that a court or a jury views the credibility and effectiveness of the employer’s attempted remedial actions.
 

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The 9th U.S. Circuit Court of Appeals has held that a female co-worker’s “relentless” pursuit of a male employee, including verbal comment and suggestive notes, could form the basis of a sexually hostile environment, even without any physical conduct of a sexual nature. EEOC v. Prospect Airport Services, Inc., 9th Cir., No. 07-17221, Sept. 3, 2010.

Rudolpho Lamas began working for Prospect Airport Services in the Spring of 2002, shortly after the death of his wife in September of 2001. In the Fall of 2002, and without instigation from Lamas, a married female co-worker (Munoz) began to make sexual overtures toward Lamas after she heard that he had stated that he “missed coming home to a family.” In November, Munoz handed a note to Lamas, telling him she was “turned on” and wanted to “go out” with him. Lamas informed their boss (O’Neill) about the note, and was advised to let Munoz know that he wasn’t interested, and to tell Prospect’s managers if Munoz continued her actions. Although Lamas let Munoz know that her interest was not reciprocal, Munoz continued her advances, including additional notes and a photo of herself that Lamas found to be sexually suggestive. At this point, Munoz reported the continued activity to another company supervisor (Thompson), who told Lamas that she would report the incidents to the general manager (Mitchell) and talk to Munoz. She did neither.

At that point, Lamas received a third, and more explicit, note from Munoz; Lamas reported this note directly to Mitchell. At that point, Munoz had also recruited other co-workers to let Lamas know how she felt. In response to Lamas’ report, Mitchell said that he “did not want to get involved in personal matters” but ultimately spoke to Munoz and told her that Lamas wanted the activity to stop.

Unfortunately, the activity did not stop; it escalated into daily comments and suggestive remarks from Munoz. This continued through the Spring of 2003. At one point, Munoz made sexual comments to Lamas in front of airline passengers, embarrassing both Lamas and the passengers. Although Lamas had reported his concerns to four different managers, no remedial action was taken. In fact one of the managers told Lamas that the whole thing was “a joke” and that he should be singing “I’m too sexy for my shirt.” Lamas began to have problems at work, including the fact that his co-workers started rumors that Lamas was gay because he was rebuffing Munoz’ approaches. Lamas’ work performance deteriorated, and he ultimately was fired for poor performance in June 2003.

Lamas took his complaint to the EEOC, which found enough factual basis to support a hostile work environment, and filed suit on his behalf. The district court granted Prospect’s motion for summary judgment, concluding that Munoz’ conduct was not “severe and pervasive” enough to support a claim for hostile work environment. In its opinion, the court stated that Munoz’ conduct was not objectively unwanted for most men, and that “most men in [Lamas’] circumstances would have ‘welcomed’ the behavior he alleged was discriminatory.”

The lower court’s dismissal was reversed on appeal to the Ninth Circuit, which pointed out that under Title VII, “[b]oth sexes are protected from discrimination.” The appellate court pointed out that “it cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome.” This is a stereotype that the court refused to accept, and pointed out that “welcomeness” is an inherently subjective issue. However, it also added that unwelcomeness has to be communicated. Here, Lamas not only expressed his refusal to Munoz, he also continually stated – to his co-workers, his friends, and four different company managers – that his Christian background and the recent death of his wife led him to find Munoz’ actions inappropriate and offensive. The Court also pointed out that while not all propositions for romance are sexual harassment, Munoz’ conduct, including the continued advances after Lamas’ rejection, her involvement of co-workers in her efforts, the suggestive photograph, and her “relentless” sexual remarks created an environment that Lamas reasonably perceived as hostile and abusive.

Notably, the Court also pointed out that the company’s actions were insufficient to establish an affirmative defense to Lamas’ complaints. Prospect’s managers did little or nothing in response to Lamas’ reports, instead telling him he should be singing “I’m too sexy for my shirt.” While that remark is troubling, the fact that the complaints by Lamas were made by a man regarding the actions of a woman may have created a skewed response from the company. Employers must recognize that Title VII protects both genders, and that a male employee’s report of harassment should be investigated and responded to as effectively as one made by a female employee.
 

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The 7th U.S. Circuit Court of Appeals has held that it is up to a jury to determine whether, in fact, a single instance of uninvited intimate physical contact may be sufficient to support a claim of hostile work environment. Berry v. Chicago Transit Authority, 7th Cir., No. 07-2288, August 23, 2010.

Cynthia Berry was hired by the Chicago Transit Authority (CTA) in 2002 as a carpenter. In January 2006, Berry was one of only two female employees among about 50 individuals working in Area 315, and was the only female of the 15 carpenters working there. During breaks, employees in Area 315 often played cards at a picnic-style table in a break area. During a morning break on January 17 or 18, Berry sat down at the table with three male employees. A fourth male employee, Carmichael, sat down straddling the bench, with his back toward Berry. According to Berry, Carmichael began rubbing his back against Berry’s shoulder. She jumped up, told him to stop, and moved to the other end of the table. Although another employee told Berry to get up, Berry remained seated. Berry alleges that Carmichael then lifted her from behind, grabbing her by the breasts, and rubbed her body against his before throwing her to the ground “with force.” She further alleges that Carmichael then pushed her into a fence.

On the following day, Berry reported the incident to one of her supervisors (Gorman), who – according to Berry – told her that she was a “pain in the butt” and that she could lose her job if she filed charges against Carmichael. Berry alleges that Gorman also said that he was “going to do whatever it takes to protect CTA.” However, Gorman reported the incident to a CTA EEO investigator, and collected statements from Berry and the others who witnessed the incident for review by the investigator. In the meantime, Berry called the police, reporting that she had “been attacked” at work. The police spoke to Berry, Carmichael and Gorman, and determined, based on that investigation, that Berry actually had been the aggressor. The CTA investigation ultimately resulted in the same finding. Berry contends that Gorman sabotaged the investigation to prevent the alleged harassers from being punished; she then filed a lawsuit alleging gender discrimination, hostile work environment, and retaliation. The lower court granted summary judgment in CTA’s favor, dismissing all of Berry’s claims. It dismissed the gender discrimination claim based on the absence of an adverse employment action, and the retaliation claim because Berry raised the issue only during the summary judgment process. The lower court also found that the hostile environment claim could not go forward because CTA took prompt and reasonable steps to discover and rectify the actions complained of by Berry.

On appeal, the Seventh Circuit upheld the dismissal of the gender discrimination and retaliation claims, but reversed the dismissal of the hostile environment claim. In order for that claim to survive summary judgment, Berry had to show that she was subjected to unwelcome conduct because of her sex, that the conduct was so severe or pervasive that it created a hostile environment, and that there was a basis for CTA’s liability. Berry argues that she experienced a hostile environment when Carmichael allegedly rubbed his body with hers; she also argues that Gorman’s dismissive comments to her about her complaints form the basis for CTA’s liability. The lower court had discounted Berry’s uncorroborated testimony on those issues when it found in CTA’s favor.

The Seventh Circuit spelled out the principles upon which it based its decision, specifically finding that personal knowledge or first-hand experience of a plaintiff can create a “disputed fact” that can only be resolved by a jury. According to the Seventh Circuit, the lower court improperly discounted Berry’s testimony, which was based on her own personal encounters with both Carmichael and Gorman and therefore, according to the Seventh Circuit, could create issues of material fact sufficient to preclude summary judgment. The Court further held that a single act can create a hostile environment if it is severe enough. Carmichael’s actions, as alleged by Berry, qualify as such an act. Notably, the Seventh Circuit also determined – based solely on Berry’s uncorroborated testimony of Gorman’s remarks – that a “reasonable factfinder” could come to the conclusion that CTA, through its manager, had “maliciously thwarted any legitimate investigation, and that CTA was therefore negligent or worse in responding to [Berry’s] report of harassment.”

The primary method for employers to avoid this situation is to be able to show thorough and detailed investigation training, and to ensure that managers’ responses to complainant/employees are consistent, objective, and by-the-book, in order to establish some defense to the uncorroborated testimony of such employees.
 

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For the second time in as many weeks, a federal appeals court decision rests on the determination that an alleged harasser who makes gender-specific slurs and comments can create a hostile work environment for a female employee, even though the harasser is an “Equal Opportunity Harasser” who makes crass and offensive remarks to “everyone, regardless of gender.” Sharon Kaytor v. Electric Boat Corp., 2d Circ., No. 09-1859-cv, June 29, 2010.

Sharon Kaytor worked for Electric Boat Corporation for nearly 20 years as an administrative assistant, beginning in 1998. During most of that time, Kaytor worked for Daniel McCarthy, one of the managers in the engineering department. Kaytor alleges that in 2004, McCarthy seemed to “undergo a change of character.” Although he didn’t touch Kaytor in a sexual or violent way, McCarthy allegedly began to make inappropriate remarks to Kaytor including references to her body and how she smelled. Further, according to Kaytor, on nearly a dozen occasions, McCarthy threatened to hurt, choke, or kill her. At first, Kaytor ignored the remarks, knowing that McCarthy was going through a divorce. However, in April 2005, Kaytor informed McCarthy that she was going to report certain offensive remarks that he had made regarding Kaytor’s visit to her gynecologist. In response, McCarthy is alleged to have stated “I’ll kill you” if a report was made. Subsequently, for Administrative Assistants’ Day, McCarthy gave to Kaytor a potted plant – a pussy willow – with an arguably sexual message attached to it.

After that incident, Kaytor complained about McCarthy to HR. Immediately following the report, Kaytor was transferred to work for an engineer who reported directly to McCarthy, and who – according to Kaytor – treated her “poorly,” changing her work hours, and screaming at her for the “whole department” to hear.

Although Kaytor continued to work for Electric Boat, she filed administrative charges and, ultimately, in December 2006, a lawsuit alleging retaliation at her job. The lower court granted summary judgment for the company, saying that the incidents complained of by Kaytor were not sufficiently severe and pervasive to constitute a sexually hostile work environment. The court specifically held that “a reasonable jury” could not infer that the multiple threats to kill Kaytor were made “because of Plaintiff’s sex,” and concluded that, absent those threats, the other incidents complained of were not pervasive enough to adversely affect Kaytor’s work environment. The lower court also pointed out that because McCarthy was crass with everyone, regardless of their gender, he was not targeting Kaytor because of her sex.

The Second Circuit disagreed, finding that a rational jury could infer from McCarthy’s sexual comments and inappropriate remarks that the gender neutral threats of violence that he directed toward Kaytor were, in fact, because of her gender. Further, in response to the “Equal Opportunity Harasser” argument, the appellate court pointed out a prior case in which it held that “the inquiry into whether ill treatment was actually sex-based discrimination cannot be short-circuited by the mere fact that both men and women are involved . . . . It would be exceedingly perverse if a male [supervisor] could buy . . . his company immunity from Title VII liability by taking care to harass sexually an occasional male worker, though his preferred targets were female.”

The important issue for employers is that a court’s analysis of whether harassment is “based on sex” will take into account the totality of the circumstances, and will consider both the complainant’s reaction to events and whether a reasonable person would find such events abusive. In addition, evidence that the alleged harasser may have had “designs” on the complainant (as Kaytor alleged that McCarthy had, in this case, based upon his comments about her body and her scent) will add context to other remarks that may not include sexual references or gender-based comment. Importantly, a company must recognize that the fact that an harasser also makes remarks to male employees will not, by itself, serve as a defense to claims for sexual harassment or hostile environment.
 

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The 4th U.S. Circuit Court of Appeals has determined that an alleged harasser who makes gender-specific slurs and comments can create a hostile work environment for a female employee, even though the harasser is an “Equal Opportunity Harasser” who makes sexually offensive remarks to “anybody, any time.” EEOC v. Fairbrook Medical Clinic, P.A., 4th Circ., No. 09-1610, June 18, 2010.

Dr. Deborah Waechter was employed at Fairbrook Medical Clinic, which is owned and run by Dr. John Kessel. During her employment, Waechter was the target of a number of remarks by Kessel having to do with her body, her sexual relationship with her husband, and Kessler’s self-label as a “breast man.” In addition, Kessler made crude jokes to both the men and the women in the office, and reveled in being a “shock jock” who made outrageous remarks to both male and female employees. Waechter ultimately resigned her position and filed a lawsuit against Fairbrook. The lower court granted summary judgment for Fairbrook, dismissing Waechter’s claims with a finding that Kessler’s conduct was not based on Waechter’s gender and was not “severe,” and that it was not uncommon in a medical setting to use off-color jokes to “ease the tension.” The Fourth Circuit disagreed with and reversed that determination.

Title VII of the Civil Rights Act prohibits discrimination “because of sex.” The purpose of this prohibition, according to the U.S. Supreme Court, is to “strike at the entire spectrum of disparate treatment of men and women in employment.” In order to establish a violation of Title VII, an employee must show that the complained-of conduct was unwelcome, was based on her sex, was sufficiently “severe and pervasive” to alter the conditions of her employment and create an “abusive work environment” that was attributable to the employer.

In this case, Fairbrook argued that Kessel did not make the inappropriate remarks to Waechter because of her sex, and argued that Kessel was a generally crude person who made vulgar comments to men and women alike. The Fourth Circuit dismissed that contention, stating that although Kessel made offensive remarks to both men and women, his use of sex-specific and derogatory terms indicated that he intended to demean women. Further, the Court pointed out that Kessel’s proposals of sexual activity were not of the type that would have been made to someone of the same sex, as they involved breast pumping and “wild” sex after pregnancy. Based on these remarks, a jury could reasonably conclude that the purpose of Kessel’s comments was to embarrass and discomfit a woman in his employ.

The Court then addressed the issue of whether Kessler’s comments created an objectively hostile environment. In response to Fairbrook’s argument that employees in a medical clinic deal with human bodies every day and therefore have a more casual response to anatomical references and jokes, the Court responded that Kessel’s remarks went beyond merely crude behavior when they “ventured into highly personal territory,” including Waechter’s pregnancy, her body, and her personal life with her husband. The Court refused to accept the argument that because a medical setting deals with human anatomy on a regular basis, it is somehow “liberated from professional norms.” The Court determined that a jury could find that Kessel’s behavior was sufficiently severe and pervasive to establish an objectively hostile work environment.

While Fairbrook attempted to assert the affirmative defense available to employers since the Supreme Court’s decisions in Faragher and Ellerth in 2008, it was unable to show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” The clinic never conducted an investigation or took any other corrective actions, in spite of the fact that Waechter complained to Kessel – the owner – on several occasions, and to at least one other manager.

This case raises a number of issues of which employers should be aware. First, the “Equal Opportunity Harasser” defense is not applicable if the remarks made by such a person are gender-based and could be interpreted to shock, intimidate, or alienate an individual of that gender. Second, the casual nature of a workplace is not sufficient to support an argument that harassing and humiliating behavior against one gender is okay. Third, with absolutely no attempt to investigate or otherwise exercise reasonable care to stop the harassment, an employer will be unable to provide the affirmative defense available under the prevailing Supreme Court cases. Antidiscrimination training and policies should be developed and implemented to assist employers in dealing with these issues and in avoiding legal liability for claims of hostile work environment.
 

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The EEOC announced on May 5, 2010 that Ohio-based Everdry Marketing and Management, Inc., has paid over $500,000 in damages in interest to satisfy a judgment against that company stemming from a 2006 jury trial. The original claims were filed by 13 women, mostly teenagers at the time of the incidents, who worked at the company’s Rochester, N.Y., location as telemarketers. EEOC v. Everdry Mktg. & Mgmt., Inc., W.D.N.Y., No. 01-cv-6329, judgment satisfied, 5/5/10.

The case originally was filed by the EEOC in 2001 as part of its “Youth@Work” initiative, targeted at training young people about illegal workplace discrimination and harassment. The complaint included claims that male managers and co-workers at the Rochester franchise of Everdry verbally and physically harassed the young women between 1998-2002, making numerous sexual remarks and jokes, and on one occasion, promising a raise in return for sexual acts. Following a multi-week trial in federal court in New York in October of 2006, a jury originally awarded $585,000 in damages to the 13 plaintiffs; that amount ultimately was reduced to $471,096. The jury concluded that the Rochester affiliate at which the incidents occurred was part of an “integrated enterprise,” and that Everydry therefore violated Title VII of the Civil Rights Act by allowing the harassment.

Afterwards, Everdry appealed the verdict on the basis that as a franchise, the Rochester affiliate was not part of the Everdry company. The 2d U.S. Circuit Court of Appeals rejected that argument and affirmed the jury verdict, specifically affirming the award of punitive damages assessed by the jury against the company. Everydry corporate headquarters has paid the judgment - although none of the complained-of incidents occurred at its corporate facilities in Ohio - plus $86,581 in post-judgment interest. The Rochester affiliate is no longer in operation.

This case points out two things: first, that sexual harassment training is extremely important, especially if a company has related or affiliated entities in other geographic locations, and for which it ultimately may be held responsible; and second, that the EEOC is persistent in enforcing federal laws banning workplace discrimination.
 

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The 4th U.S. Circuit Court of Appeals has reversed a lower court’s summary judgment in favor of an employer who required a female employee to take a physical ability test after an on-the-job injury, even though it did not require such a test for similarly situated male employees. Merritt v. Old Dominion Freight Line Inc., 4th Circ., No. 09-1498, April 9, 2010.

Deborah Merritt worked for Old Dominion Freight Lines as a Line Haul driver. While Line Haul drivers spend nights and weekends away from home, driving across state lines, Old Dominion also had Pickup and Delivery drivers who worked locally and rarely had to work nights or weekends. In 2002, after six years as a Line Haul driver, Merritt began to apply for a Pickup and Delivery job, in order to spend more time with her family. She claimed that she applied for several open Pickup and Delivery positions, but that less-experienced male drivers were hired. Merritt alleged that she was told by a terminal manager that the company didn’t want women in the Pickup and Delivery jobs - which required more lifting – because management was afraid that a woman “would get hurt.” Of the company’s 3100 Pickup and Delivery drivers, only six were female.

In March 2004, Merritt was hired as a Pickup and Delivery driver, but not until two male Pickup and Delivery drivers were asked how they would feel about working with a woman. (They responded that they would have no trouble doing so.) Merritt was then put on a 90-day probation period which, she alleged, was not the typical procedure for new Pickup and Delivery drivers. By all reports, Merritt performed her new job successfully, and received no complaints from customers or co-workers. During this initial time frame, however, the terminal operations manager allegedly told a male driver that “this is not a woman’s place.”

In September 2004, Merritt suffered an ankle sprain at work and also was diagnosed with plantar fasciitis. Her doctor prescribed light duty work until a December 27 appointment. At that appointment, the doctor concluded that Merritt’s injury was “not a disabling condition,” and that she could return to work without restrictions. Just prior to that appointment, however, the company’s vice president of safety and personnel decided that Merritt would have to pass a Physical Ability Test (PAT) before she was allowed to return to work. The test was administered on December 28, immediately after Merritt’s full release to return to work, and the company determined that Merritt failed the test. While the test showed no restrictions related to Merritt’s ankle injury, it indicated that the 5 foot, 1 inch Merritt was unable to place a particular box on an overhead shelf, and had difficulty walking backward pulling a cable (Merritt testified that the test occurred in a hallway full of people, and that she bumped into several of them). On the basis of that test, Merritt was fired for “inability to perform job.” She sued under Title VII, claiming gender discrimination.

Although the lower court granted summary judgment to Old Dominion, that decision was reversed by the Fourth Circuit. The appellate court determined that a reasonable jury could find that the evidence presented by Merritt undermined Old Dominion’s assertion that it had a “regular policy” of requiring drivers to pass a PAT before returning from injury-related absences. In fact, the company used the test inconsistently, and injured male drivers often returned to work without taking such a test. Further, the company did not use the PAT – which originally was developed for new applicants - to test Merritt’s return from her ankle injury, but applied the test for strength and coordination. Therefore, the Court found that, given the earlier statements by other managers that the Pickup and Delivery job was not suitable for women, in light of the dearth of females in that position, and considering that the PAT was used only on an intermittent basis and then typically for new hires, a reasonable jury could find that gender discrimination may have been the real reason for Merritt’s termination.

The Court’s opinion and comments create a road map for companies who are serious about instituting a safety-based testing program. According to the Court, a neutral policy which served the company’s legitimate business and safety interests could have withstood legal challenge. However, Old Dominion’s selective use of the PAT, along with the company’s changing rationales for its use, possible sexist remarks, and a statistical lack of females in the subject position all could indicate to a jury that the company was reserving the more desirable “Pickup and Delivery” positions for male drivers.
 

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Under Title VII, an unlawful employment practice is established when an employee demonstrates that gender is a motivating factor for an adverse employment action. Under that analysis, the 8th U.S. Circuit Court of Appeals has upheld the Title VII claims of a female hotel desk clerk who was fired after a company decision-maker complained that the employee lacked the pretty and “Midwestern girl” look desirable in a front desk employee. Lewis v. Heartland Inns of America, L.L.C., 8th Cir., No. 08-3860, Jan. 21, 2010.

Brenna Lewis began working for Heartland Inns of America in July 2005, starting out as a night auditor. In that job, Lewis worked the front desk from 11 p.m. to 7 a.m., doing it well enough to receive two merit-based pay raises and positive customer feedback.

In December 2006, Lewis’ manager, Lori Stifel, received permission over the telephone from the company’s Director of Operations, Barbara Cullinan, to offer to Lewis a daytime (7 a.m. to 3 p.m.) shift position on the front desk. Lewis accepted, and took over that position at the end of December. Although Cullinan initially had approved Lewis’ move to the day shift, her attitude changed after she met Lewis in person. At that point, Cullinan told Stipel that she wasn’t sure that Lewis was a “good fit” for the position, as Lewis lacked the “Midwestern girl” look that Cullinan felt was necessary at the front desk. By her own admission, Lewis is “slightly more masculine,” avoids makeup, and wears mens’ button down shirts and slacks. She has been mistaken for a male, and has been referred to as “tomboyish.” However, while Cullinan felt that front desk staff should be “pretty,” the front desk job description in Heartland’s personnel manual does not mention appearance.

Cullinan ordered Stifel to return Lewis to the overnight shift. When Stifel refused, Cullinan insisted that Stifel resign. Cullinan then required Lewis to re-interview for the day shift position, even though Lewis had held the position successfully for over a month. Lew protested, but attended the interview. Three days later, Lewis was fired. In its termination letter, Heartland stated that Lewis was “hostile” toward company policies and had attempted the “thwart” the interview process. Lewis then filed a lawsuit, asserting that Heartland fired her for not confirming to sexual stereotypes, and claiming that such conduct violated Title VII. The lower court disagreed and entered summary judgment in favor of the company. On appeal, the 8th Circuit reversed that decision, holding that sexual stereotyping can violate Title VII when it influences employment decisions.

Title VII prohibits discrimination based upon sex. In this case, Lewis provided evidence that Heartland found her unsuited for her front desk job based, not upon her work performance, but upon an appearance that was inconsistent with the company’s preferred feminine stereotype. At the summary judgment phase of a case, the question is whether a plaintiff has offered sufficient evidence from which a reasonable fact finder could find that the individual was discriminated against because of her sex. Here, the 8th Circuit found that Cullinan’s remarks, along with her discharge of Stifel for not taking Lewis off the front desk, and her imposition of a second interview even after Lewis performed successfully in the position, clearly provided such evidence.

The line between sexual orientation – which is not yet prohibited by federal law – and discrimination “because of sex” can be difficult to draw. However, employers must recognize that an employer who takes an adverse action against an individual because he or she does not fit within sexual stereotypes is engaging in sex discrimination because that discrimination would not have occurred but for the individual’s sex. If a company’s disciplinary actions are meant to punish or belittle non-compliance with gender stereotypes, the actions may constitute a violation of Title VII’s “because of sex” provision.
 

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Congress has repeatedly rejected legislation that would extend Title VII protection to claims of sexual orientation discrimination. However, under Title VII, an employee may raise a claim of gender discrimination if that individual can demonstrate that an harasser was acting to punish the employee’s noncompliance with gender stereotypes. The 3d U.S. Circuit Court of Appeals has allowed the claim of a self-described “effeminate man” to move forward to a jury trial, on the basis that the plaintiff presented evidence that his co-workers harassed him because of his non-compliance with male-associated stereotypes. Prowel v. Wise Business Forms, Inc., 3d Cir., No. 07-3997, August 28, 2009.

Brian Prowel was one of 145 employees of Wise Business Forms in Butler, Pennsylvania, and had worked for the company since 1991. Prowel, an openly gay male, felt that his mannerisms caused him not to “fit in” with the other men at Wise. He described his male co-workers as “blue collar,” “very rough around the edges,” and “everything I wasn’t.” In stark contract, Wise had a high-pitched voice, walked and carried himself in an effeminate manner, and filed his fingernails “instead of ripping them off with a utility knife.”

Some of his co-workers reacted negatively to Prowel’s demeanor and appearance, calling him “Princess” and “Rosebud” and making fun of the way he talked, walked, and sat. Prowel complained to his supervisors, but the harassment continued. In April 2004, Prowel became so unhappy with his work environment that he considered suing the company and said so to certain co-workers. Prowel subsequently was asked to meet with his supervisors and was asked about approaching those individuals regarding his proposed lawsuit. In December 2004, Prowel was terminated “for lack of work.”

Prowel then sued Wise in federal court. His claims included gender discrimination and retaliation claims under Title VII. The lower court found that Prowel’s claims were based upon sexual orientation – not a viable claim under Title VII – and dismissed the suit. On appeal, the Third Circuit reversed, finding that Title VII does not bar a homosexual man from bring a gender stereotyping claim under the Act, since such a claim is “because of” the plaintiff’s sex, a type of discrimination barred by law.

The Third Circuit pointed out the U.S. Supreme Court’s opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which a female was denied a promotion because she failed to conform to gender stereotypes. Hopkins used profanity, was not “charming,” and did not walk, talk, or dress in a feminine manner. The Supreme Court found that when an employer acts on a belief that a woman cannot be aggressive, it has discriminated “because of sex” and has violated Title VII.

Similarly, the evidence set forth by Prowel indicates that he was harassed and treated differently because he did not conform to his co-workers’ vision of how a “man” should look, speak, or act. Therefore, Prowel marshaled enough evidence to argue that his harassment was based on gender stereotypes, even if part of the harassment was based on his sexual orientation.

The line between sexual orientation discrimination and discrimination “because of sex” can be difficult to draw. Under Title VII, an unlawful employment practice is established when the plaintiff demonstrates that sex was one of the motivating factors for discrimination, even if other factors - including harassment based on sexual preference - also motivated the same actions.

Employers should be aware of this decision, and should understand that while sexual orientation is not yet included as a protected category under federal law (although it is protected under some state statutes), gender stereotyping is a very closely related cause of action. Therefore, employee complaints of harassment should not be overlooked or downplayed on the basis that they appear to involve an issue of sexual orientation. (Of course, employee complaints should never be “overlooked or downplayed” under any circumstance.) Instead, if any of the complained-of activity includes actions that are meant to punish or belittle non-compliance with gender stereotypes, the actions may constitute a violation of Title VII’s “because of sex” provision.
 

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The basis of an employer’s liability for a claim of hostile work environment under Title VII depends upon whether the harasser is the complainant’s supervisor or merely a co-worker. When a hostile work environment is created by a co-worker, the employer is liable only if the employer failed to provide an avenue for reporting the harassment, or if the employer knew or should have known of the harassment but failed to take prompt and appropriate remedial action. Under Title VII, an employer “knew or should have known” about workplace harassment if “management level employees had actual or constructive knowledge about the existence of a sexually hostile environment.” Therefore, once a management level employee has enough information to raise the probability of sexual harassment in the mind of a reasonable employer, the employer is deemed to be on constructive notice of that harassment.

Recently, the 3d U.S. Circuit Court of Appeals affirmed summary judgment in favor of an employer, holding that the individual team leaders who were aware of certain harassing behavior were not the “management level personnel” referred to in Title VII and, therefore, that the employer could not be held liable for the claims of harassment made by the plaintiff. Huston v. Proctor & Gamble Paper Products Corp., 3d Circ., No. 07-2799, June 30, 2009.

Priscilla Huston was employed by Proctor & Gamble’s Mehoopany, Pennsylvania plant for more than 10 years, working as a technician on teams that operated large paper manufacturing machines. In 2004, Huston allegedly heard about a number of instances in which certain of her male team members exposed themselves to other male employees. She reported those specific incidents only to her team’s “process coach” (Romanchick) and a “machine leader” (Traver), but not to senior management. Huston alleges that she subsequently witnessed two similar incidents herself. She reported those two incidents to a senior-level manager and a human resource manager. An investigation was begun on the day that the incidents were reported. Discipline ultimately was imposed to all team members, including Huston, after it was discovered that the entire team used vulgar language at work – a practice that the company had been working to eliminate. Although Huston’s disciplinary history was such that she could have been terminated for this infraction, she was simply asked to be “mindful of her language” at work.

In the fall of 2004, P&G identified a costly problem occurring at the plant, and was able to trace the problem to a lack of care on the part of the technicians, including Huston. At that point, all technicians were informed that they risked termination if caught fabricating data for machine data logs. In spite of this warning, Huston admittedly falsified certain data into the logs, and was terminated from employment. She then filed a complaint asserting a sexually hostile environment, claiming that Romanchick and Travers were “managers” who put the company on notice of the plant’s hostile environment, and that the company should have acted sooner with respect to the hostile environment.

The Third Circuit affirmed a lower court’s dismissal of the case, finding that Romanchick and Travers did not qualify as management-level employees for purposes of Title VII and, therefore, that the company was not on notice of the hostile environment until Huston reported it to senior management. Unlike salaried managers, Romanchick and Travers were paid on an hourly basis, and had no actual authority to hire, fire, or discipline others. Instead, they performed essentially the same functions as the remaining team members, with certain additional oversight functions. According to the Court, an employee’s knowledge of sexual harassment may be imputed to the employer only when (1) that employee is sufficiently senior in the employer’s governing hierarchy so that such knowledge is important to that person’s general managerial duties; or (2) the employee is specifically employed to report or respond to sexual harassment.

This case provides a bright line definition of “managerial employee” with respect to Title VII’s use of that term by requiring knowledge of a hostile environment to reach an employee in the “governing body” of the company, as opposed to a mere “supervisory employee in the labor force.” According to the Court, “[a]lthough an employer has a duty to be reasonably diligent in attempting to discover co-worker harassment, an employer is not expected to know every instance of harassment that may occur between co-workers.” While this should not be read as permission to ignore or minimize instances of harassment that come to light, it allows employers to fully understand their duty under Title VII, and to respond effectively when allegations of sexual harassment are properly raised.
 

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Recently, the 10th U.S. Circuit Court of Appeals reviewed a company’s testing and interview procedure for new hires, and decided that certain subjective hiring criteria did not necessarily create a mechanism for excluding female applicants. That review occurred in the context of a lawsuit brought by a female applicant who alleged gender discrimination when the Public Service Company of Colorado (PSCo) refused to hire her for an entry level position at its power plant. Turner v. Public Service Co. of Colorado, 10th Cir., No. 07-1396, April 28, 2009.

Susan Turner applied for a “Plant Specialist C” position at PSCo’s Comanche Power Plant in 2000, 2004, and 2006. To evaluate applicants for this position, PSCo used a 3-step process. First, it gave a written test related to mechanical aptitude. Applicants who passed that test moved to a second stage, in which candidates’ resumes were reviewed for relevant experience and skills, for which points were awarded. The applicants with the highest number of points advanced to the third stage, which consisted of an interview with a panel of four PSCo employees. The interview consisted of a set of pre-selected questions -- used for each interviewee -- which addressed skills like initiative and risk taking, adaptability, dealing with ambiguity, and team building. Each interviewer assigned a numerical rating to each candidate. After the interviews, the panel decided on consensus scores for each applicant’s competencies.

During the hiring process in 2006, Turner reached the interview stage, but was not hired. She received the second lowest rating of any interviewee, and later testified that she felt that she had “struggled” throught the whole thing. The only other female applicant received the second highest rating, but refused the offer of employment from PSCo. After Turner was unsuccessful in her 2006 attempt for the Plane Specialist position, she brought a lawsuit, alleging that PSCo’s hiring process was discriminatory. The lower court granted summary judgment for PSCo, and Turner appealed.

On review, the Tenth Circuit affirmed that decision, largely on the basis that Turner was unable to show that the company’s hiring criteria were simply a pretext for discrimination. Under the now-familiar McDonnell Douglas mechanism, Turner was required to set forth a prima facie case, including the facts that she is a member of a protected class, she suffered an adverse employment action, she was qualified for the position, and that she was treated less favorably than others outside her protected class. Once that prima facie case is established, PSCo had to articulate some legitimate, non-discriminatory reason for its decision not to hire Turner. In order to successfully substantiate her claim of discrimination, Turner was then required to show that PSCo’s legitimate, non-discriminatory reason for not hiring her was merely a pretext, and that the actual reason was discrimination.

The lower court found that Turner did, in fact, establish a prima facie case, and the Tenth Circuit agreed. Further, PSCo was found to have proffered a legitimate non-discriminatory reason for not hiring Turner: she “performed poorly in her interview.” Although Turner argued that the interview process was a sham meant to hide the company’s discriminatory hiring practices, the court disagreed, stating that although “the presence of subjective decision-making can create a strong inference of discrimination,” the use of subjective criteria is “not unlawful per se.” The court pointed out that each applicant answered the same questions during PSCo’s interviews, and that the criteria used for ranking the candidates was predetermined in a written company document. Further, the company was able to link the substance of the questions to job-related competencies. According to the court, Turner provided no evidence that the interviewers injected their own additional subjective criteria into the process, and therefore, was unable to carry her burden of showing some discriminatory animus.

The key to this decision was the standardization of the company’s interview process. The questions were pre-set, written, job-related, and asked consistently of each applicant, and the interviewers were not given the discretion to determine the scope of the interview. Because the same questions were used for all applicants, and because the evaluations were based upon pre-discussed criteria and not “whims or unguided opinions,” the company prevailed.
 

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In 2007, during a nationwide upsurge in pregnancy discrimination claims, the Equal Employment Opportunities Commission (EEOC) released a set of guidelines advising employers on issues related to caregiver bias. On April 22, 2009, the EEOC further supplemented those guidelines with specific recommendations designed, it said, to help employers to “reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity.” The document can be found at www.eeoc.gov/policy/docs/caregiver-best-practices.html.

The caregiving responsibilities addressed in the EEOC’s recent guidance include not only childcare, but care to parents and older family members, as well as to relatives with disabilities. The primary directives issued include: (1) development and dissemination of a “strong EEO policy” that addresses the types of conduct that may constitute discrimination; (2) training managers to recognize legal obligations created by anti-discrimination statutes and ensuring compliance with policies that support those obligations; (3) effective response to complaints of caregiver discrimination; and (4) providing clear assurance to caregiver/employees of protection from retaliation for such complaints.

The document also addresses issues related to recruitment, hiring, and promotion of employees with caregiving responsibilities, and includes specific suggestions in those areas. For example, the EEOC suggests developing specific job-related qualification standards for each position, to reflect the duties, functions, and competencies of the position. Such standards can help to minimize the potential for gender stereotyping which, in turn, will minimize the opportunity for caregiver discrimination.

Another area addressed in the EEOC’s guidance is avoiding discriminatory treatment of caregivers through the “terms, conditions, and privileges of employment.” Specifically, the EEOC suggests monitoring compensation practices for patterns of potential discrimination, and reviewing workplace policies that limit employee flexibility. The “best practices” include a number of flexible and reduced-time options, with examples of each. While not every example will be suitable for every employer, the guidance certainly informs employers of the expectations of the EEOC with respect to caregiver issues. Such information provides a sense of how these cases will be viewed by the Commission during its investigation and attempted resolution of discrimination charges in this area.

Many of the suggestions included in the guidance are similar to or parallel actions that employers currently are reviewing or enforcing to assure compliance with other recent employment law developments, including the Ledbetter Fair Pay Act, the recent FMLA regulations, and the upcoming Paycheck Fairness Act.

While the EEOC’s technical guidelines are designated as “best practices” - meaning that they are proactive measures recommended by the Commission, and are not statutory requirements - knowledgeable employers recognize that courts turn to the EEOC for direction in interpreting both federal and state anti-discrimination laws. Therefore, it is imperative that companies begin to train managers and supervisors on the content of this most recent guidance, to assure complete awareness of all legal obligations that may have an impact on decisions about treatment of employees with caregiver responsibilities.
 

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Sharon Sybrandt was fired from her position as an Operations Assistant Manager at one of Home Depot’s Nashville stores after she allowed a co-worker to use her password-protected user ID to modify a special order transaction for Sybrandt. In addition, Sybrandt herself subsequently entered computerized “notes” on the transaction, indicating that she wanted to cancel part of the order and receive a refund. Both actions were in violation of the company’s “no-self-serve” policy. After Sybrandt was replaced by a male employee, she sued Home Depot, alleging gender discrimination under both federal and state laws. The lower court granted the company’s motion for summary judgment in April 2008, and the 6th U.S. Circuit Court of Appeal recently upheld that decision. Sybrandt v. Home Depot, USA, Inc., 6th Cir., No. 08-5598, March 26, 2009.

Sybrandt began working at Home Depot in 1991. In 2006, her employment was terminated for an alleged violation of a company policy that prohibits employees from working on their own purchases and transactions. Sybrandt testified that she was aware of the policy, and understood that its purposes were to deter theft and dishonesty, and to avoid even the appearance of impropriety. However, she argued that the decision to fire her was “unfair and extreme,” and asserted that the termination was simply a pretext for discrimination.

Under the now-familiar McDonnell Douglas shifting burden analysis, an individual has the initial burden to come forward with a prima facie case of discrimination; the employer is then obligated to show a legitimate business reason for its actions; the ultimate burden is on the employee to show that the proffered reason is a pretext for discriminatory motive. In this case, the parties agreed, for purposes of summary judgment, that Sybrandt was able to set forth a prima facie case, and that Home Depot had set forth a legitimate business reason for its action. The argument, then, was whether the proffered reason was based in fact, or whether it simply was a pretext to mask discriminatory treatment.

While Sybrandt argued that the company’s reason was overly technical and not based in fact, Home Depot was able to set forth evidence of an internal investigation, taken after it was made aware of Sybrandt’s actions. That evidence showed that the investigator – one of Home Depot’s Employment Practices Managers (EPMs) – believed that Sybrandt had breached the company’s policy, and that he had recommended discharging 18 Home Depot employees for the same reason over a previous three year period. In spite of Sybrandt’s disagreement with Home Depot regarding whether her actions technically violated the policy, it was the company’s thorough investigation that supported Home Depot’s assertion that it had an honest belief in its proffered nondiscriminatory reason for the termination.

An employee cannot establish that the reason for an adverse employment action is discriminatory simply by showing that the action may have been technically incorrect. The key inquiry in assessing whether an employer holds an honest belief that its action was appropriate is whether that employer made a “reasonably informed and considered decision” before taking the complained-of adverse action. In this case, Home Depot’s thorough, complete, and reasonable investigation (in which it interviewed Sybrandt and her co-workers, reviewed security camera footage of the incidents, and obtained written statements from various witnesses) supported its assertion that it took the action necessary to enforce its policy, and helped it to avoid legal liability in the matter. The decision to fire Sybrandt reflected a “considered” judgment, which Sybrandt was unable to contradict with any evidence other than her own testimony.

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