Is it sex discrimination to assign a woman different tasks than a man in the same job?


A woman received a promotion at a construction company from laborer to helper. Helpers either work on the ground or “at elevation.” The woman had experience working at elevation at another company. She wanted to work at elevation again in her new job to improve her skills because advancements would bring pay raises and advance her craft.

But there was a problem.

When the woman started as a helper in her designated area, the company would not allow her to work at elevation. Specifically, the area’s general foreman, a man, told her in front of others that she had “t*** and an a**” and thus could not work at elevation.

The general foreman denied saying this directly to the woman but acknowledged that he “very easily could have said [that],” in general, “due to t*** and an a**, no female is allowed on the rack.”

I think you can see where this is going. The woman became a plaintiff and sued for sex discrimination.

The district court ruled in favor of the defendant. It specifically held that the defendant’s restricting the plaintiff from working at elevation was not an “ultimate employment decision” that Title VII requires under binding local precedent.

So, the plaintiff appealed to the Fifth Circuit Court of Appeals, arguing that when the defendant prevented her from working at elevation because she was a woman, it effectively demoted her, which amounts to an adverse employment action.

Title VII forbids an employer from taking an adverse employment action against an employee because of her sex. A plaintiff can establish a sex discrimination claim through direct or circumstantial evidence. If a plaintiff has direct evidence of sex discrimination, the burden shifts to the defendant to prove that it would have made the same decision regardless of the discriminatory animus.

In any event, to have a sex discrimination claim, the defendant must have taken adverse employment action against the plaintiff. Adverse employment actions under Title VII include “ultimate employment decisions” such as “hiring, firing, demoting, promoting, granting leave, and compensating.”

The lower court noted that the plaintiff cited “only her own testimony” to show that the defendant effectively demoted her, and she suffered no loss in pay.

The Fifth Circuit, however, viewed the facts through a different lens. In the Fifth Circuit’s opinion, it noted that “a change in or loss of job responsibilities” may still amount to “the equivalent of a demotion” if it is “so significant and material that it rises to the level of an adverse employment action.” To be “equivalent to a demotion,” the action need not “result in a decrease in pay, title, or grade; it can be a demotion if the new position proves objectively worse—such as being less prestigious or less interesting or providing less room for advancement.”

Under the facts here, a reasonable juror could conclude that working at elevation was the most beneficial and important aspect of the helper position. So, limiting the plaintiff to working on the ground effectively demoted her back to the laborer role she previously occupied. Even though her pay was no different while working on the ground, the opportunities the defendant afforded the plaintiff while working on the ground were significantly less than if she were working at elevation.

As for the evidence of sex discrimination, the plaintiff had evidence of a facially discriminatory motive. Specifically, her supervisor stated repeatedly that she could not work at elevation because she had “t*** and an a**,” and that “females stay on the ground.” Thus, she had direct evidence of discrimination that the defendant’s reason for preventing her from working at elevation was motivated primarily by her being a woman.

Of course, two people in the same job can perform different tasks. But, when one protected class consistently gets garbage assignments while the others do the work that can lead to advancement, you’ve got a discrimination problem.

And speaking of discrimination, make sure to click here (–rqjkiH9bfR3tsk6OUWYt6eAga8r2Wto register for the next edition of The Employer Handbook Zoom Office Happy Hour, which is on Friday, January 20, 2023 at Noon ET. My special guest will be EEOC Commissioner Andrea Lucas.

We will discuss the EEOC’s enforcement priorities, expound on some of her passions (including battling religious discrimination), and answer your hypothetical questions for a friend without giving any specific legal advice.

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