Today we’re going back to the basics and learning how a plaintiff must prove a sex discrimination claim based on circumstantial (i.e., the defendant doesn’t concede, “I fired you because you’re a woman.”)
A prima facie claim for sex discrimination.
First, a woman alleging sex discrimination needs to show that her employer treated similarly situated men more favorably. Without that, she’s got no chance.
Take this recent Eleventh Circuit opinion, for example. Three female plaintiffs claimed that their former employer offered seven men severance packages, but not the three women. However, both the lower and appellate courts concluded that the three plaintiffs lacked any evidence that the defendant applied its severance criteria “any differently, inequitably, or discriminately to these male employees.” Each of the women had been offered comparable work first instead of severance. The plaintiffs did not show any male employee who received an equivalent job offer, rejected that offer, and was offered severance.
A “convincing mosaic” of circumstantial evidence.
Even if a plaintiff can establish a prima facie claim of discrimination, s/he still must present circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent. This means presenting “a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.”
In the Eleventh Circuit opinion, the company had the choice to offer employees a severance or a comparable reassignment. While conceding that the company offered them a comparable position to remain with the company, the plaintiffs then nitpicked the certain guarantees that the company could have offered them.
That won’t work, said the Eleventh Circuit:
Each of the three Plaintiffs was offered a position with [the defendant] that was comparable in pay and position, and it allowed each to remain in Huntsville for at least twelve months. The discretion [the defendant] retained to determine whether a relocation would take place after twelve months is something well within the realm of their business judgment. In any event, two of the three Plaintiffs rejected the job offer and one rescinded her acceptance after speculating she would be required to relocate after one year. Not only did [the defendant] offer legitimate, objective criteria to determine who was, and who was not, entitled to severance payment, it proved there was no genuine dispute that Plaintiffs were never even entitled to the severance—they were offered employment with [the defendant] and they voluntarily rejected it.
Courts generally don’t interfere with an employer’s business judgment. One of my favorite lines to quote in a brief is that courts do not sit as “super-personnel departments,” reexamining the wisdom of business decisions.
Your business judgment doesn’t have to be 100% correct. It just needs to be legitimate and non-discriminatory.