Last September, for the first time ever, the EEOC sued two private employers for discriminating against employees who had transitioned from one gender to another.
I intended to begin the week with a post about a company’s legal obligation to predict — yes, predict — an employee’s mental fitness for duty. Then, I started on a brief tangent on Ellen Pao, the former partner of a Silicon Valley venture capital firm, who just lost a highly-publicized gender discrimination claim against said former employer.
And a few hundred words later, that brief tangent became its own blog post — this one. (If you want a wild lawsuit brought by an airline captain who claimed that his former employer was negligent by failing to predict that he’d have a manic in-flight episode, come back tomorrow). Continue reading
I had every intention of watching the President address the Nation last night. I really did.
But, then I got sucked into the Director’s Cut of The Harlem Globetrotters on Gilligan’s Island, the one where the Washington Generals show up first and replace all the confetti with lice. Then poor Lovie Howell takes some shrapnel and, frankly, I didn’t realize that Thurston could order a hit squad so quickly to a remote Island.
By the time I remembered the SOTU, the Harlem Globetrotters were busting out a ladder — sorry, Krusty — and que sera.
Fortunately for me, and, by extension, you, the White House printed a copy of the SOTU, which I could
cut and paste expertly analyze for you after the jump…
Because all the other blogs will say “paramour” or “lover” in the lede, and I need to remain relevant (or “down,” if you will) with my more trendy readers.
Over the weekend, I read this case in which a male plaintiff alleged discrimination because his supervisor was allegedly schtupping a female subordinate and treating her better.
(The court said “voluntary romantic affiliation,” but why say in three words, what you can say in one).
Specifically, the plaintiff alleged that, in exchange for putting out, his female co-worker received better job assignments, bonuses, and other working conditions.
[Tell that to Lana Del Rey. (Sigh!)]
Well, the fatal flaw in the plaintiff’s argument, as the court pointed out, is that favoring one female subordinate over one man…and the rest of the workforce (both male and female), because the female subordinate is getting jiggy with it, may not be fair, but it’s not discrimination either:
“Mr. Clark presented no evidence that Cache Valley treated women more favorably than men, and no circumstances giving rise to an inference of discrimination. Indeed, as the district court concluded, Mr. Clark merely provided evidence that Mr. Perschon extended preferential treatment to one female employee: Ms. Silver, a co-worker with whom Mr. Perschon allegedly was having an affair or some other form of “improper” relationship. Favoritism of a paramour is not gender discrimination.”
So, while running a workplace where supervisors and direct reports engage in consensual romantic relationships may not be the gold standard (e.g., perception of unfair treatment during the relationship, and the fallout when/if the two break up), “preferential treatment on the basis of a consensual romantic relationship between a supervisor and an employee is not gender-based discrimination.”
Neither is “friendship” or “cronyism.”
In other words, go ahead and treat the jerks like jerks because they are jerks and don’t worry about violating the law.
Terribly sorry about the confusion created by my sloppy use of possessive pronouns in today’s lede. The “his” wife refers to the employee’s wife. Otherwise, this post doesn’t make any sense, does it? (Don’t spend too much time contemplating the question, ok).
Yep, just another Tuesday at The Employer Handbook.
Click through for what should prove to
be a cluster of a gender discrimination claim contain many valuable takeaways for proactive employers.
Sex sells. So, when 22 female cocktail servers at an Atlantic City casino pursued claims of discrimination based on their appearance, it came as little shock to me that the judge wasn’t buying.
Last month, a New Jersey state court dismissed a lawsuit against the Borgata Hotel Casino & Spa, brought by cocktail waitresses known as the “Borgata Babes,” who claimed that they were victims of gender and weight discrimination.
Jennifer Bogdan, writing here for the Press of Atlantic City, notes that, upon hire, Borgata told its servers that they must appear “physically fit” with their weight proportionate to their height and, ultimately, banned the servers from gaining more than 7 percent of their body weight. Supposedly, the women were subject to periodic weight checks and suspension for failing to meet the weight requirements, with exceptions made for medical conditions and pregnancy.
Ms. Bogdan reports that the judge held out little sympathy for the 22 “Borgata Babes,” who knew what they signed up for:
“Johnson focused on the hiring process the women endured, which he said made it clear the positions were meant to be part entertainer and part cocktail server. All of the women involved in the case later signed statements agreeing to the weight policy, which the judge described as lawful and reasonable.”
. . .
“The Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to ‘sex objects’ to the Borgata’s patrons. Nevertheless, for the individual labeled a babe to become a sex object requires that person’s participation. Plaintiffs cannot shed the label babe; they embraced it when they went to work for the Borgata.”
Without having seen a copy of the judge’s 24-page summary judgment opinion, I’m reluctant to offer any sort of in-depth analysis. But I’ll note that while some jurisdiction may recognize weight discrimination as a standalone cause of action, nothing under federal law (or NJ state law) expressly prohibits an employer from discriminating against employees based on weight. So, as noted above, the ultimate result here is no shock to me.
UPDATE: Thank you to my colleague, Jennifer Snyder, who provided me with a copy of the summary judgment opinion. As a “did you know,” Jennifer informs me that Judge Nelson Johnson also wrote Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City.
You’ve probably heard of this It’s Just Lunch, a Hallandale Beach-based company, even though you may not realize it. I’ll give you a hint. Have you flown recently? Yeah, that’s right. It’s Just Lunch is a matchmaking service that advertises around page 55 of the in-flight magazine of just about every domestic airline.
According to the company’s About IJL page, It’s Just Lunch was founded in 1991 by a resourceful, professional woman. Now go to the home page, scroll down the page to the right and look at the pictures of the It’s Just Lunch “Dating Specialists.” Notice anything in common?
Yeah, the EEOC did too. So, it filed this complaint in federal court.
According to this press release, the EEOC agreed to settle a sex discrimination lawsuit it filed against It’s Just Lunch for $900,000. That’s a lot of lunches!
The EEOC charged in its suit (Case No. 0:13-cv-61518-WPD, filed in U.S. District Court for the Southern District of Florida) that It’s Just Lunch (IJL) refused to hire men as dating directors and inside sales representatives. The EEOC also alleged that IJL fired Lynda Twist, its human resources director, in retaliation for her opposition to IJL’s sex-based hiring practices.
The EEOC filed suit after first investigating the case, and then attempting to reach a pre-litigation settlement through its conciliation process.
According to the terms of the consent decree settling the suit, which was approved by the U.S. District Court Friday, IJL will pay approximately $900,000 to settle the lawsuit, including a payment to Twist of $130,369. The remaining settlement funds will be paid into an account that will be distributed to a class of qualified male job applicants who applied for dating director and inside sales representative jobs with IJL from 2007 to the present, but whom IJL did not consider for hire. The agreement also requires IJL to implement a detailed applicant tracking system, provide training to managers, human resources personnel and employees, and provide quarterly hiring reports to EEOC for three years.
You can find a copy of the full, 29-page consent decree here.
Sex stereotypes and barriers to hiring are at the top of the EEOC’s hit list. Please use this settlement as a reminder to your hiring managers that making personnel decisions based on preconceived notions, rather than pure talent, is not only stupid, but a sure-fire way to find yourself in the government’s cross-hairs or otherwise embroiled in a private discrimination lawsuit.
(Betcha didn’t see that lede coming…)
So, let me take you back to late December 2012 — a time when my blog was blowing up. Back then, I wrote this post about Melissa Nelson. Ms. Nelson had worked as an assistant to dentist James Knight. That is, until Dr. Knight fired her in 2010 based on concerns from both he and his wife that if Ms. Nelson continued to work for Dr. Knight, he’d have sex with her and it would ruin their marriage.
So, Ms. Nelson sued for gender discrimination.
[Folks, rather than soundtracking this post with “Dr. Feelgood” or “Simply Irresistible,” I was this close to breaking new, “don’t come back to work on Monday”, ground with a Two Live Crew single. This close. Then again, the whole collecting a paycheck thing…]
Ultimately, the Iowa Supreme Court ruled unanimously in this opinion that Ms. Nelson’s claim should be construed as one of “sexual favoritism,” rather than “gender discrimination.” — “treating an employee unfavorably because of such a relationship does not violate the law.” Indeed, Dr. Knight fired Ms. Nelson, not because she was a woman, but because of her “irresistible attraction.” (Dr. Knight replaced her with a less attractive woman).
Well, Jeff Eckhoff at the Iowa Des Moines Register reports here that the Iowa Supreme Court has withdrawn its unanimous decision in the Nelson case to reconsider it:
On Monday, Chief Justice Mark Cady signed an order resubmitting Nelson’s lawsuit for reconsideration by the court effective 9 a.m. Wednesday. Cady’s order says the case will be reopened for discussion by the court; there will be no further oral arguments or additional input from Knight. Nelson’s appeal will simply be re-evaluated based on previously submitted evidence and legal briefs.
A new decision could come as early Friday, when justices theoretically are scheduled to wrap up all pending cases submitted during the prior term.
An Iowa Supreme Court spokesman said it’s “rare” for justices to grant petitions to rehear a case. Five such requests have been granted over the past decade.
Now, I’m no expert on Iowa civil judicial procedure, but I cannot imagine that this unanimous decision will be overturned. Indeed, I think they got it right on the law. But, the Eckhoff article indicates that one of the Iowa Justices may have changed his mind. (The original decision came from 9 male Justices). Maybe, someone will find that while the termination does not constitute gender discrimination, it still violates public policy.
(h/t my friends at @SJEmpEssentials)
Centucky Kentucky, it’s not retaliation to fire employees who complain about sexual favoritism.
Then again making apple-pie moonshine and using a butcher cleaver to slice off the arm of a Detroit gangster isn’t frowned upon either. At least, that’s what watching Justified teaches me.
But even in Kentucky, they have laws. No, it’s true.
After the jump, you’ll see a KY federal court’s rationale for the latest sexual-favoritism ruling. And I’ll provide some tips for dealing with employees who complain about cushy assignments given to employees who get freaky with management.
Last week, a unanimous Iowa Supreme Court held (here) that it was ok for a male boss to fire a female employee — a model employee — out of concern that he would eventually succumb and do things with her that could jeopardize his marriage.
That has to be gender discrimination!
The boss replaced the fired female employee with another (presumably less tempting) female. This suggests to me — as it did the court — that having the hots for a particular female employee (versus females in general) motivated the firing decision. (Of course, had the actor displayed a pattern of canning female employees because he feared sleeping with them, it may be a different story).
Additionally, although not a focus of the opinion, the same person hired the female employee as fired her. In many courts, the “same-actor” defense can be used to show that if one person does the hiring and the firing — especially over an abbreviated period, it’s unlikely that he is biased against [protected class of hired/fired employee].
Here, the boss — actually, the boss’s wife (she found the text messages) — wanted the employee gone because her “irresistible attraction” threatened the boss’s marriage. Absent sexual harassment, the subsequent adverse employment action is not actionable. Unfair? Yes. But, anti-discrimination laws are not fairness laws. They are only implicated when the employer discriminates based on an employee’s protected status; not when an employer treats a particular female employee different than it would other (less alluring) female employees. Absent sexual harassment, that single termination based on a set of feelings towards that particular employee (albeit motivated by the boss’s penis), even if unjust, by definition, does not violate the law.