Recently in Gender Category

April 1, 2014

When the supervisor offers an employee $$$ to have sex with his wife, that's not gender bias, you guys

cashpile.jpgTerribly 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.

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August 5, 2013

Judge dismisses "Borgata Babes'" claims of weight discrimination

borgata!

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.

July 24, 2013

900,000 reasons not to judge a book by its cover

LunchYou'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.

June 28, 2013

Iowa S. Ct. to reconsider if it's legal to fire an employee for her irresistible attraction

(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)

January 10, 2013

Court countenances canning complainers of consensual canoodling

In 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.

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December 27, 2012

It's legal to fire a female employee because of her "irresistible attraction"

Cue music.

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!

Right?

Well...

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.

November 30, 2012

Boy meets girl, dates girl, breaks up, calls girl "whore," gets fired, sues for discrimination

defleppard.jpgWhen Brian Bond texted his co-worker and former girlfriend, Gina Bullard, that she was a "whore" and later ignored two protective orders that Bullard had taken out against him, I wonder if he was thinking, "Maybe, I'll get fired and parlay that into a winning reverse-gender-discrimination claim."

Indeed, Mr. Bond's actions violated a number of work rules and, ultimately, resulted in his termination. But a winning reverse-gender-discrimination claim? Not so much according to the Third Circuit Court of Appeals (opinion here):

Bond has not demonstrated that the City refused to terminate similarly situated female employees, i.e., female employees that violated the City's violence in the workplace policy, sexual harassment policy, and code of ethics. As evidence of less favorable treatment, Bond submits that the City terminated him, but did not terminate Bullard.

Bullard used a City fax machine to file complaints against Bond and brought a handgun to work for protection -- against Bond. But I digress...

On its face, contends Bond, this disparity in treatment demonstrates that the City has discriminated on the basis of gender. However, Bond was subject to multiple protection from abuse orders, he admitted to sending text messages during work hours that were designed to annoy and alarm Bullard, and was charged with and ultimately pled guilty to harassment. As the District Court acknowledged, the record does not show that Bullard engaged in similar conduct.

Consequently, Bond could not demonstrate reverse-gender discrimination...even in bizarro world.

Usually, I end my blog posts by offering an employer takeaway. This time, I'll toss out an employee takeaway: Don't be like Bond.

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

October 25, 2012

New equal-rights rules for NJ employers take effect next month

thewalkingdead.jpg

I'd better remember to post this now before I get bitten and turn into a zombie and munch on your face..

[Note to self: Less of "The Walking Dead," more sleep].

On November 19, 2012, this new law will take effect in NJ, which will require employers of 50 or more employees (zombies not included) to notify their workforce about "the right to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment under the 'Law Against Discrimination."

In addition to hanging a poster in a conspicuous location, employers must notify their employees in one of three ways:

  1. Via email;
  2. In print (e.g., paycheck insert, handout); or
  3. Through an internet or intranet website

The notification must contain an acknowledgement that the worker received the notification and has read and understood its terms. And, if a language, other than English, is the primary language spoken in your workplace, then the poster and notifications must be in that language.

Want a copy of the poster/handout? Me too. I suspect that you'll eventually find copies here. Fear not, the posting and distribution requirements contained in the law are not triggered until the Commissioner of Labor and Workforce Development issues the form of notification.

September 13, 2012

Is an employee with managerial duties "similarly situated" to a manager?

rubik.jpg

Maybe it's the luck of the draw, but most of the discrimination cases I defend are hostile work environment cases, where an alleged harasser supposedly has made an employee-victim's life miserable with certain comments, jokes, gestures, touchings, you name it.

Far less often do I encounter disparate-treatment claims. A disparate-treatment claim is one where an employee claims that another similarly-situated employee in another class was treated more favorably because of his/her protected class. For example, a female employee claims that similarly-situated male employees are paid more because they are men.

Sounds like the facts of a recent case decided right in my backyard in the Eastern District of Pennsylvania. This case provides a great opportunity to go back to school on what it means to be similarly-situated...after the jump...

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September 7, 2012

"How can I keep the white girl?"

blackjack.jpg[Editor's Note: Because "Playing the Race Card" was already taken]

The title of this post is comprised of the seven poorly-chosen words from a Vice President of Operations at a Detroit casino right before the casino terminated a white employee for allegedly botching supervision of a dealer card shuffle.

What do you think? Do we have a live race-discrimination claim? Oh yeah, we do! Details after the jump, as well as thoughts on employers who strive to maintain racial balance in the workplace...

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Continue reading ""How can I keep the white girl?"" »

August 17, 2012

D-I-S-M-I-S-S-E-D! Court punts Playboy-posing cheerleader's bias claims.

Fans enjoy the cheerleaders

[If you listen carefully, you can actually hear the sound of page-hits and prurient reader interest cascading at The Employer Handbook. It's got a little funky Salt n' Pepa beat to it...]

Last May, I slobbered over blogged here about a former Indianapolis Colts' cheerleader who sued the team claiming that the Colts discriminated against her on the basis of her race (Asian) and national origin (Indonesian).

Earlier this week, the court ruled on the Colts' motion to dispose of the case. While I think we can all agree that this sort of hard-hitting blog fodder is better suited for a Monday post, I'm going to blog the heck out of the Court's decision...after the jump. (It's a long post, but it's soooooo worth it).

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June 13, 2012

4 pending bills that could change the NJ employment landscape

Thumbnail image for nj1.jpg

One of my favorite reads on NJ employment law is Ogletree Deakins's New Jersey eAuthority. The June 2012 issue highlights several pieces of legislation now pending in NJ of which employers should take note. I've summarized four of them after the jump...

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June 6, 2012

Paycheck Fairness Act fails in the Senate, plus other news...

moneyBilled as a way to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, the Paycheck Fairness Act, did not make it out of the Senate yesterday. The Paycheck Fairness Act earned 52 votes in favor of proceeding to final consideration, eight votes shy of the 60 votes necessary for cloture. The vote came down strictly along party lines, with the two independent senators voting with the Democrats and Sen. Mark Kirk (R-Ill.) not voting. Senate Majority Leader Harry Reid (D-Nev.) changed his vote so that he could bring the bill up again.

In other news...

  • The Eleventh Circuit Court of appeals ruled on Monday that Title VII of the Civil Rights Act of 1964 permits claims for retaliatory hostile work environment. The decision brings the Eleventh Circuit in line with everyone else.

  • The EEOC is touting a rare summary judgment victory in a Title VII retaliation case. A federal judge ruled that an employer unlawfully retaliated against an employee for refusing to waive his rights to file a discrimination charge as a part of a "last chance agreement."

  • And here's a weird one, a woman in Florida is suing for unpaid OT. That's not so weird. What is; however, is that, although she appears on the payroll, no one remembers hiring her, and no one remembers her ever working for the business.

May 18, 2012

That's what they said: "Naked ambition" and a "voyeur boss"? (And more...)

theysaid.jpgAs evidenced by the nature of this blog post and the picture on the right, it's best not to leave me in the office alone, unsupervised, with an iPhone, and App Store credits, as I punch this out at 10:52 at night on a Thursday. (And yet, somehow, the Wall Street Journal deems me quotable).

Rest assured, everything I do, I do it for you. And, best of all, it's all employment-law related. Love my job!

(My wife has to be cool with me using our wedding song for this blog post, right? Love ya, baby! "Take me as I am....")

And that's what they said...

Now, you'll have to excuse me as I try to beat the locksmith to my house (kidding...)

May 2, 2012

More office romances; more anti-harassment training

Thumbnail image for broom closet.jpgA recent survey by Workplace Options, shows that most Generation-Y employees believe that an office romance will have a positive influence on performance and overall workplace morale.

Sounds like a Cialis commercial. 

Who says I need to wait for Valentine's Day for this post? Losers, that's who. Lock the broom closets and click through for more on this survey and ways to address the office romance...

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