Sixth Circuit Rejects Sexual Harassment Claim When Comments About Sex Were Just Unprofessional

Last week, a divided Sixth Circuit affirmed an employer’s summary judgment in a sexual harassment case where much of the conduct underlying the claim may have stated an actionable retaliation claim if the plaintiff had asserted one.  Graves v. Dayton Gastroenterology, Inc. No. 15-4049 (6^th Cir. Sept. 13, 2016).  The plaintiff alleged that a co-worker texted her on vacation encouraging her to have sex with her husband.  He apologized after she complained to the CEO, but she refused to meet with him or have any non-work related conversation with him.  He then became angry, began treating her rudely and, when he became her supervisor, denied her time off during lunch breaks, etc.  She found his treatment unbearable and submitted her resignation less than two months later.  The Court found that his text messages were not gender-based or anti-female and that, even if they arguably were, they were not severe or pervasive enough to constitute harassment.

According to the Court’s opinion, the plaintiff had been the lead nurse, but requested to rescind her management responsibilities.  A few weeks before one of her co-workers took over as the lead nurse in February, she took a vacation in January and texted that same co-worker that she loved being on vacation and had done nothing all week.  He responded that she should enjoy herself and suggested that she have fun and wild sex.  She claimed to have been offended, but said nothing.  The following week he texted her: “You and your husband lay out a wonderful dinner an [sic] have wild sex on the table!!!!! I do think about sex all the time. I [sic] just not getting it.”  After she complained to the CEO, he apologized and sought to discuss it with her.  He became angry when she would not speak with him and began treating her rudely.  Over the next two months, he refused to answer questions, denied her lunch breaks, denied her requested days off, gave her difficult assignments, and threw a chart at her.  He attributed her treatment to her complaint about him and stated that she would be finding out what hell is like. She submitted her two-month notice of resignation at the end of March and later brought suit for sexual hostile work environment, but not for retaliation.

First, the Court found that the text messages were not gender-related:

“To be actionable, the harassment must consist of more than words that simply have sexual content or connotations.” . . . . “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”  . . . This typically includes “explicit or implicit proposals of sexual activity,” id., as well as “non-sexual conduct” that evinces ‘anti-female animus.’”  . . . We have none of that here. There is no suggestion in the record that [he] or any other  . . .  employee expressed an anti-female animus toward [her]. There is no evidence in the record of any other sexual statements, any physical sexual harassment, or any use of derogatory language by [him]. [She] does not allege, for example, that [he] asked her to have sex with him, touched her or threatened to touch her, made any comments about her body, used language derogatory to women, or treated any of the other women in the office inappropriately.   Moreover, [she] expressly denied that [he] “ever request[ed] any sort of sexual favor from [her].”  She even admitted that the text messages were “inappropriate and unprofessional no matter who received [them] . . . , whether it was . . . a man or another woman.”

In addition, she admitted that his rude conduct towards her was not based on her gender, but was based on his anger at her reporting of the text messages to the CEO.  Accordingly, his gender-neutral misconduct could not be attributed to her gender either.

Second, the Court found that his behavior was not severe or pervasive enough to constitute a hostile work environment.  The two text messages were isolated events.  The remaining incidents might have supported a successful retaliation claim, but the Court refused to stretch the law governing sexual discrimination to include gender-neutral acts that are otherwise only actionable as a retaliation claim (which she did not bring despite the opportunity to do so).

The dissent found that there was enough evidence presented both as to whether the conduct was gender related and severe and pervasive.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

OFCCP Revises Sex Discrimination Regulation for Government Contractors for First Time Since 1970

On Wednesday, the OFCCP formally promulgated a final regulation governing government contractor obligations under Executive Order 11246 concerning sex discrimination.  It will become effective on August 15.  It was the first time it had substantively revised the regulation since 1970.  As part of this final rule, OFCCP has also replaced a significant part of the Guidelines at 41 C.F.R. 60-20.  OFCCP has not eliminated that Uniform Guidelines on Employee Selection Procedures, but has added an Appendix of “Best Practices.” 

As the OFCCP explained its objective:

OFCCP replaces in significant part the Guidelines at part 60–20 with new sex discrimination regulations that set forth Federal contractors’ obligations under E.O. 11246, in accordance with existing law and policy. The final rule clarifies OFCCP’s interpretation of the Executive Order as it relates to sex discrimination, consistent with title VII case law and interpretations of title VII by the EEOC. It is intended to state clearly contractor obligations to ensure equal employment opportunity on the basis of sex.

The final rule removes outdated provisions in the current Guidelines. It also adds, restates, reorganizes, and clarifies other provisions to incorporate legal developments that have arisen since 1970 and to address contemporary problems with implementation.

Sex is now defined to include “pregnancy, childbirth, or related medical conditions; gender identity; transgender status; and sex stereotyping.”  Except when “sex is a bona fide occupational qualification reasonably necessary to the normal operation of a contractor’s particular business or enterprise,”  discriminatory practices will include:  

(12) Making any facilities and employment-related activities available only to members of one sex, except that if the contractor provides restrooms, changing rooms, showers, or similar facilities, the contractor must provide same-sex or single-user facilities; 

(13) Denying transgender employees access to the restrooms, changing rooms, showers, or similar facilities designated for use by the gender with which they identify; and

(14) Treating employees or applicants adversely because they have received, are receiving, or are planning to receive transition-related medical services designed to facilitate the adoption of a sex or gender other than the individual’s designated sex at birth.

Disparate impact discrimination by otherwise facially neutral practices or policies is also prohibited and can include use of

recruitment or promotion methods, such as ‘‘word-of mouth’’ recruitment or ‘‘tap-on-the shoulder’’ promotion, that have an adverse impact on women where the contractor cannot establish that they are job-related and consistent with business necessity.

An entire subsection is devoted to discriminatory compensation: 

Contractors may not pay different compensation to similarly situated employees on the basis of sex. For purposes of evaluating compensation differences, the determination of similarly situated employees is case specific. Relevant factors in determining similarity may include tasks performed, skills, effort, levels of responsibility, working conditions, job difficulty, minimum qualifications, and other objective factors. In some cases, employees are similarly situated where they are comparable on some of these factors, even if they are not similar on others.

As for pregnancy discrimination, contractors may not, among other things, “[l]imit[] pregnant employees’ job duties based solely on the fact that they are pregnant, or require[e] a doctor’s note in order for a pregnant employee to continue working.”   Similarly, contractors must accommodate employees “who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions” in most circumstances.

A contractor must provide job-guaranteed medical leave, including paid sick leave, for employees’ pregnancy, childbirth, or related medical conditions on the same terms that medical or sick leave is provided for medical conditions that are similar in their effect on employees’ ability to work.

 A contractor must provide job guaranteed family leave, including any paid leave, for male employees on the same terms that family leave is provided for female employees.

Employers are also required to maintain equality in fringe benefits, including medical insurance programs.  In the lengthy preamble, OFFCP notes, among other things that:

some insurance plans have explicit exclusions of coverage for all health services associated with gender dysphoria or gender  transition. Such categorical exclusions are facially discriminatory because they single out services and treatments for individuals on the basis of their gender identity or transgender status, and would generally violate E.O. 11246’s prohibitions on both sex and gender identity discrimination.

The OFFCP notes, among other things, that:

Implicit in the provisions prohibiting discrimination on the basis of sex is the principle that distinctions for other reasons, such as differences in capabilities, are not prohibited. Distinguishing among employees based on their relevant job skills, for example, does not constitute unlawful discrimination.

The OFCCP recognized that some contractors may qualify for exemptions based on religion or First Amendment grounds and deleted an explicit requirement to provide contraception coverage on this ground:

OFCCP declines to implement a blanket exemption from these provisions because claims under RFRA are inherently individualized and fact specific. There is no formal process for invoking RFRA specifically as a basis for an exemption from E.O. 11246. Insofar as the application of any requirement under this part would violate RFRA, such application shall not be required. 

If a contractor seeks an exemption to E.O. 11246 pursuant to RFRA, OFCCP will consider that request based on the facts of the particular case. OFCCP will do so in consultation with the Solicitor of Labor and the Department of Justice, as necessary. OFCCP will apply all relevant case law to the facts of a given case in considering any invocation of RFRA as a basis for an exemption.

OFCCP also notes that the Supreme Court has recognized that the First Amendment to the Constitution requires a ‘‘ministerial exception’’ from employment discrimination laws, which prohibits the government from interfering with the ability of a religious organization to make employment decisions about its ‘‘ministers,’’ a category that includes, but is not limited to, clergy. OFCCP follows this precedent. 

Finally, OFCCP notes that E.O. 11246 contains an exemption that specifically allows religiously affiliated contractors (religious corporations, associations, educational institutions, or societies) to favor individuals of a particular religion when making employment decisions. The regulation implementing that exemption states that the nondiscrimination obligations of E.O. 11246 ‘‘shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.’’ OFCCP has already published guidance regarding the application of the religious exemption in Executive Order 11246 in connection with the recent Executive Order 13672 rulemaking. If, however, a contractor is unsure about whether its employment practices are shielded by this exemption, it can seek guidance from OFCCP.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

OFCCP & DOJ Join EEOC In Prohibiting Sexual Orientation and Gender Identity Discrimination

Last Thursday, the U.S. Department of Justice announced that it now interprets Title VII’s prohibition against sex discrimination to include discrimination on the basis of sexual orientation and gender identity.   The DOJ’s interpretation will cover anyone in public employment.   The EEOC has already announced that it interprets Title VII to prohibit discrimination by private employers on the basis of transgendered status, and gender identity and covers lesbian, gay, and bisexual individuals.  On December 9, 2014, the OFCCP published the final rule implementing President Obama’s July 21, 2014 Executive Order 13672, which adds “sexual orientation” and “gender identity” to the affirmative action protected categories (which includes race, sex, and national origin).  However, affirmative action employers will not be required to collect data from applicants or employees concerning their gender identity or sexual orientation nor to conduct statistical analyses of employment actions involving these groups.  The OFCCP regulation becomes effective on April 8, 2015 and will only “apply to Federal contractors who hold contracts entered into or modified on or after April 8, 2015.”

As explained in Attorney General Holder’s Memorandum, this rationale is based not just on Price Waterhouse gender stereotyping, but

encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination "because of ... sex" includes discrimination because an employee's gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex. As the Court explained in Price Waterhouse, by using "the simple words 'because of,' ... Congress meant to obligate" a Title VII plaintiff to prove only "that the employer relied upon sex-based considerations in coming to its decision." 490 U.S. at 241-242. It follows that, as a matter of plain meaning, Title VII' s prohibition against discrimination "because of ... sex" encompasses discrimination founded on sex-based considerations, including discrimination based on an employee's transitioning to, or identifying as, a different sex altogether. Although Congress may not have had such claims in mind when it enacted Title VII, the Supreme Court has made clear that Title VII must be interpreted according to its plain text, noting that "statutory prohibitions often go beyond the principal evil to cover reasonably  comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998).

The affirmative action regulations were amended by placing “sexual orientation, gender identity,” between “sex” and “ or national origin” in several places, but most especially in 41 C.F.R.  part 60-1. 

Contractors satisfy this obligation by including the updated Equal Opportunity Clause in new or modified subcontracts and purchase orders, ensuring that applicants and employees are treated without regard to their sexual orientation and gender identity, and by updating the equal opportunity language used in job solicitations and posting updated notices.

The terms were also inserted in the provision prohibiting discrimination or preferences.  The terms were not inserted into other regulations governing the content of affirmative action plans and the requirements to collect and analyze data:

This final rule makes no changes to the provisions governing reporting and information collection set forth at 41 CFR 60–1.7 and 60–1.12(c). The obligations updated by this final rule are separate from the additional affirmative action requirements set forth in 41 CFR parts 60–2 and 60–4 that comprise the contents of contractors’ written affirmative action programs. No changes are being made to the written affirmative action program requirements of 41 CFR part 60–2, or the affirmative action requirements contained in § 60– 4.3(a)(7) of 41 CFR part 60–4, and thus those programs will continue to be limited to gender, race, and ethnicity. While the terms ‘‘sexual orientation’’ and ‘‘gender identity’’ will now appear in two sections within part 60–2 that include the full list of protected bases (in §§ 60–2.16(e)(2) and 60–2.35), the final rule does not require contractors to set placement goals on the bases of sexual orientation or gender identity, nor does it require contractors to collect and analyze any data on these bases. Section 60–2.16(e)(2) simply states that placement goals for women and minorities under the existing regulations may not be used as a basis for discrimination on one of the bases protected by EO 11246, including sexual orientation and gender identity. 

The final rule and the Executive Order do not create exemptions for religious organizations which are also federal contractors, except to permit them to favor members of their own religion.  Because Congress has refused to enact non-discrimination legislation which covers gender identity or sexual orientation, the Executive Branch has elected to prohibit discrimination on these basis without legislative support.

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Atlanta Jury Awards $500K in EEOC Lawsuit Against Westerville Company Alleging Sex Discrimination

 Yesterday, the EEOC announced that a jury had awarded $500K against a Westerville, Ohio based company for failing to promote a female employee to a supervisory position in violation of Title VII of the Civil Rights Act as alleged in a lawsuit filed  by the EEOC against Excel, Inc. in federal court in Georgia (N.D. Ga. Case No. 1:10-CV-03132).  The award consisted of $25K in compensatory damages and $475K in punitive damages and the court will also be awarding back pay to the female employee (on top of the damage award).   According to the EEOC, it presented evidence during the four-day trial that male employees were routinely promoted after expressing only verbal interest in positions, while the female employee was passed over despite recommendations from her supervisor and her superior qualifications.  The EEOC presented testimony that “the general manager informed [the supervisor] that he would never put a woman in that position.”  Moreover, the EEOC claimed that the company attempted to hide its discrimination from the female employee:

[W]hile [the female employee] was told the inventory supervisor position would not be filled, the male selected for the position was told by a management and human resources official that the position would be filled, but that he would be selected only if he kept it a secret. The selectee, Michel Pooler, testified that [the female employee] was later required to train him because he had no inventory experience whatsoever.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Revives 2003 Failure to Hire Claim, but Affirms Dismissal of Similar 2004 Claim and Class Certification Motion

Last week, the Sixth Circuit affirmed the denial of a class certification motion in a sexual discrimination hiring case and the dismissal of one claim of disparate treatment.  Davis v. Cintas Corp., No. 10-1662 (6^th Cir. May 30, 2013).   However, the Court reversed dismissal of one claim of failure to hire on account of sex where the plaintiff was at least as qualified (if not more so) than the three other male candidates who were hired in the same 2003 time period, the defendant company only hired two females in six years, but 78 men in the same time period, and where statistical evidence showed that female applicants constituted 26% of the applicant pool and 35% of the qualified individuals in the surrounding population.

The Court made some interesting observations about Cintas national corporate hiring practices:

Service sales representatives were historically male. From June 1999 to October 2006, more than ninety percent of the managers charged with hiring service sales representatives were male. This overwhelmingly male group overwhelmingly hired males. After Cintas implemented the Meticulous Hiring System in 2003, however, female hiring rose dramatically. Between 1999 and 2002, the percentage of women hired for the service-sales-representative position never rose above seven percent. In 2003, the year corporate-level management instructed other managers to “put the myth that females cannot be SSRs out of [their] mind and hire more women SSRs,” and implemented the Meticulous Hiring System, that number rose to 7.8 percent. In 2004, it rose to 10.9 percent, and in 2005 it rose to 20.8 percent.

According to the Court’s opinion, the class certification motion could not survive the different facts of each potential claim of the class.   The trial court found that there was a conflict between the interests of the named and unnamed class members and the individualized determinations required at the damage phase was inappropriate for class action treatment.  There were many steps in the defendant employer’s hiring practices; some were subjective and some were not.  The female class members dropped out at different stages and for different reasons.   Relying heavily on the Supreme  Court’s decision in Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2562 (2011), the Court affirmed denial of class certification:

“[S]ubjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases.” Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 991 (1988); accord Dukes, 131 S. Ct. at 2554. When plaintiffs challenge employment practices in a large, national corporation, however, “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Dukes, 131 S. Ct. at 2554. Unless a plaintiff can somehow show that the corporation’s managers all used “a common mode of exercising discretion that pervades the entire company,” Dukes explains, “[a] party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” Id. at 2554–55.

The court in Dukes explained that the plaintiffs’ sociological, statistical, and anecdotal evidence—all of which was similar to the evidence offered here—was not sufficient to show a uniform, companywide practice of exercising discretion in a way that favored men over women. Applying the abuse-of-discretion standard, we affirm the district court’s determination that Davis’s statistical evidence, sociological analysis, and anecdotal accounts did not satisfy Rule 23(a)(2). As to each type of evidence, the district court weighed the parties’ competing arguments and found that Davis’s proffered evidence did not support a finding of companywide gender discrimination. We may not overturn this determination unless the district court “relie[d] on erroneous findings of fact, applie[d] the wrong legal standard, misapplie[d] the correct legal standard when reaching a conclusion, or ma[de] a clear error of judgment.” Pipefitters Local 636 Ins.Fund v. Blue Cross Blue Shield of Mich., 654 F.3d 618, 629 (6th Cir. 2011).

After all but one of the class members dropped out when the interlocutory appeal was denied, the remaining plaintiff claimed that she had been discriminated against on account of her sex when her applications for employment were rejected in 2003 and 2004.  The Court found that her poor score on the driving portion of the hiring process was a legitimate reason to deny her application in 2004 and she failed to show that the explanation was pretextual.  However, the Court found that she identified factual disputes in why she was dropped earlier in the hiring process in 2003.

The defendant employer explained that it dropped her early in the process in 2003 because she had mentioned that she disliked up-selling and wanted to keep her current part-time job.  The plaintiff showed that these reasons could be pretext because the employer ultimately moved further into the hiring process three men who were less qualified than her.    

Location 447 hired three men soon after interviewing Davis. At least on paper, their credentials appear equal to, or slightly less impressive than, Davis’s.  . . . . None of the three men had real-world experience in management; none had extensive experience in sales. Davis, by contrast, had worked as a manager for three different companies. She had significantly more customer-service and sales experience than any of the three male candidates, even if she disliked up-selling products and planned to continue working for LensCrafters part-time. She was, in other words, “as qualified or better qualified than [any of] the successful applicant[s].”

Moreover, Plaintiff’s expert explained:

“Between 1999 and 2004, 78 men were hired into SSR positions [at Location 447], but only 2 women were hired into these positions. All of the hires in the period from 1999–2002 were men. During 2003 and 2004, 32 hires occurred; 30 of these hires were men and 2 were women.” This was so, even though women accounted for between 26% and 27% of service-sales-representative applicants and 30% to 38% of the external labor market during that time period. “No women at all were hired into SSR jobs in Cintas location 447 for the four years prior to 2003.” From July 1, 2003 to December 31, 2004, “there were 27 hires into SSR positions. Only one of these hires (3.7% of the hires) was a woman even though more than 25% of these applicants were women.”

Although the employer’s experts claimed that the assumptions of plaintiff’s expert were flawed concerning the labor market, the Court held that this was a matter for the jury to decide.

In short, the statistical evidence and a comparison of the plaintiff’s application with those of the successful male candidates were sufficient to create a factual dispute for a jury to decide whether the failure to hire the plaintiff in 2003 was on account of her gender.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Announces Cleveland Employer to Pay $700K and Hire 40 Women

Yesterday, the EEOC announced an agreement with a Cleveland manufacturer to settle a class action lawsuit which alleged that the employer systematically discriminated against women by failing to hire them, permitted harassment against the women who were hired and failed to comply with federal document retention requirements concerning job applicants and new employees.  As part of the settlement,  Presrite Corporation will pay $700,000, which will be distributed among a class of women who sought and were denied jobs at the company.   In addition, the company is required to hire no fewer than 40 women identified by the EEOC during the claims process.  These women will receive priority consideration and jobs before any current male applicants. The company will also be required to make periodic reports to the EEOC, conduct mandatory training, and improve document retention practices to include electronic data.

According to the EEOC, the company regularly rejected female applicants in favor of less-qualified male applicants at its three Ohio plants.  There were also incidents showing that women who were hired were harassed on the job.  Finally, the company failed to keep copies of applications and other employee data required by federal law.   The EEOC alleged that the company “failed to produce more than a thousand employment applications for persons the company hired and failed to maintain accurate or complete data about applicants. As a result, the EEOC said, it was unable to identify by name all of the female applicants who were unlawfully denied hire.”

EEOC Announces $260K Settlement with Ohio Employer for Wage Discrimination

Yesterday, the EEOC announced that it had settled for $260,000 a wage discrimination lawsuit filed at Case No. 5:09CV01762 in federal court in Akron on behalf of two women under Title VII and the Equal Pay Act with Health Management Group, Inc. The lawsuit alleged that the employer had paid the two women less than a male employee performing substantially similar work in violation of federal law. "In addition to monetary relief, the consent decree settling the suit provides for training for all of HMG's employees, managers, and supervisors on employee rights and employers' obligations under the Equal Pay Act and Title VII and requires HMG to post an anti-discrimination notice to all employees. The decree also requires that HMG revamp its non-discrimination policies; implement discrimination complaint procedures; maintain records regarding complaints of discrimination received by HMG representatives; promote manager and supervisor accountability with regard to HMG's anti-discrimination policies; and provide annual reports to the EEOC during the decree's 30-month term."

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Mansfield Company Pays $188K to Settle EEOC Sex Discrimination Lawsuit

Yesterday, the EEOC announced that it had settled a lawsuit against a Central Ohio company for $188K which involved retaliation and sex and wage discrimination. In the lawsuit, the EEOC alleged that the defendant employer hired an experienced female drafter to prepare drawings and sketches for batteries and engines, but paid a higher salary to a similarly qualified male engineer hired a few months after her to perform the same tasks. When the female engineer learned of the salary disparity, she complained to the human resources manager and was subsequently fired – allegedly in retaliation for complaining about the discrimination. The EEOC ultimately filed suit on her behalf in 2010, alleging violations of Title VII and the Equal Pay Act.

In addition to monetary damages for the female engineer, the EEOC obtained a two-year consent decree which requires training for the defendant employer's human resources personnel and employees at the Hyundai Ideal Electric Company's home office in Mansfield, Ohio and posting of anti-discrimination notices.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Revives Claim of Sex Discrimination in Hiring When HR Director Could Not Get Her Story Straight.

Today, a divided Sixth Circuit Court of Appeals reversed the entry of summary judgment in favor of an employer on a claim that the company had refused to hire a female applicant on account of her sex. Peck v. Elyria Foundry, No. 08-3301 (6th Cir. 9/9/09). In doing so, the Court found that a jury could determine whether the employer’s HR Director was being truthful when she testified in her deposition that she hired less qualified male applicants because she thought the female applicant only wanted certain jobs and/or because the employer did not have adequate “facilities” for female employees and/or because the plaintiff had a poor attendance record and/or because her attorney sent an inflammatory letter and/or because of a physical impairment. The Court concluded that the inconsistencies in the HR Director’s explanation created sufficient pretext to warrant the case being submitted to a jury to determine who was the most credible.

In the decision, the Court relates that the plaintiff and her boyfriend both applied for jobs at the defendant employer. The plaintiff had relevant experience which she listed on her application, but her boyfriend did not. He indicated that he would take any job, but she listed two possible positions – as a tow motor operator and a grinder -- and a “?.” She also put “?” when asked about her desired salary. Her boyfriend was hired but she was not. Her many phone calls inquiring about the status of her application were never returned. When she questioned the HR Director, she was told that her application was still being considered and she would be called in a few days. She was not.

The plaintiff retained an attorney, who wrote the company and alleged sex discrimination. When the company failed to respond, she filed a Charge of Discrimination with the EEOC and then filed suit for sex discrimination.

The district court concluded that the plaintiff could not prove a prima facie case because she only applied for tow operator and grinder positions and there were no tow operators hired and she was physically precluded from grinding However, the Court of Appeals concluded that there was a factual dispute because her application indicated that she would take any job when she put “?” next to those to job titles. Such an application put the employer on reasonable notice that she would take something other than the two listed jobs, particularly when she put the same mark next to desired salary.

The Court also found she was qualified for the jobs because she had five years of relevant prior experience, unlike fourteen of the men hired since the time of her application. In any event, the HR Director conceded that the plaintiff appeared to be qualified from the face of her job application.

The Court also found possible pretext in the HR Director’s explanation for why the plaintiff was not hired. In the affidavit filed with the motion for summary judgment, the HR Director indicated that the job application was limited to the two listed positions. However, in her deposition she testified that the employer’s “facilities” for women needed improvement and she delayed plaintiff’s application while waiting for these improvements. (Surprisingly, the plaintiff did not argue that this was discriminatory under Title VII even though Title VII prohibits discriminatory facilities.) Still later, the HR Director testified that a current employee and former co-worker of the plaintiff had relayed that the plaintiff was an unreliable employee because of unreliable transportation and childcare. Finally, her application was set aside after receiving letter from the plaintiff’s attorney which was full of “insults and lies.” (Again, it was surprising that the plaintiff did not bring a retaliation claim for a refusal to hire her after the employer had been accused of sex discrimination.).

Employers may have more than one reason for passing on a job candidate. And considered individually, any of [the employer’s] reasons for not hiring [the plaintiff] could explain its hiring decision. The problem here, however, is that some of its reasons are inconsistent at best, if not outright contradictory, and are thus “so intertwined” that the credibility of any of them is in doubt. . . . Moreover, “an employer’s changing rationale for making an adverse employment decision can be evidence of pretext." Here, it would be a logical feat for a jury to believe both [the HR Director’s] testimony that she did not hire [the plaintiff] because she thought [the plaintiff] did not apply for more than two positions and that she did consider her more broadly, yet passed because she received damning input from a former coworker, and because the women’s bathrooms were not up to par. A contradiction by the same employee in the same deposition raises serious credibility concerns; either [the HR Director] considered [the plaintiff] for more than two positions or she did not.

The Court majority also found it problematic that the HR Director claimed to keep the plaintiff’s application open – despite receiving negative reports from a former co-worker – until the inflammatory letter received by the plaintiff’s attorney. During the time period between when plaintiff applied and her attorney wrote the company, the employer hired 22 men – many of whom had no relevant prior experience for their new job.

In contrast, the dissent argued that the HR Director’s testimony was not inconsistent. Although the HR Director “honestly believed” that the plaintiff only applied for two positions, she held her application open in case one of those positions ultimately became available. Nonetheless, the majority found this to be irrelevant because the plaintiff presented evidence that the employer sometimes hired men for positions different from the jobs listed on their applications. In other words, the employer was limiting the female applicant to the jobs listed on her application, but was not similarly limiting male applicants.

Our conclusion that these inconsistencies suggest pretext does not mean that a company is precluded from pursuing alternative lines of defense to convince a jury that its decision was not motivated by sex discrimination. But at the summary judgment stage, a plaintiff may meet her burden of demonstrating pretext by showing, in addition to proffered evidence, that an employer’s reasons are so incoherent, weak, inconsistent, or contradictory that a rational jury could conclude the reasons were not believable.

Finally, the Court found no evidence that any of the men hired instead of the plaintiff were more qualified than her or that her medical condition would have disqualified her from non-grinder positions.

Therefore, the case was remanded for the district court to hold a trial on the plaintiff’s sex discrimination claim. (The plaintiff’s request to amend her complaint to add a public policy claim based on the retaliation she suffered from her attorney writing a letter was denied on the grounds that Ohio only recognizes public policy torts in wrongful discharges, not in failure to hire disputes).

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0634n-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Announces Consent Decree Settling Sex Discrimination and Retaliation Suit With Two West Virginia Employers and Obtaining $115K for Three Women.

Yesterday, the EEOC announced that it had reached a $115,000 settlement in a sex discrimination lawsuit it had filed against West Virginia employers, Brooks Run Mining Company and staffing firm Neal & Associations, in federal court (Case No. 5:08-CV-0071). In its lawsuit, the EEOC had alleged that the defendant employers violated Title VII when female “security guards as a class were discriminated against because of their sex. The EEOC asserted that once the women complained about sexual harassment, they were prevented – either by layoffs or transfers – from working at the Brooks Run Cucumber mine site, although security jobs were available to men.”

According to the EEOC, “the three-year consent decree settling the suit provides for a monetary settlement to three women” who were “former security guards at the Cucumber mine site. In addition to monetary relief, the decree provides for significant remedial relief, including promoting supervisor accountability. The settlement also requires yearly training for all management staff on employee rights and employer obligations under federal and state anti-discrimination laws, with an emphasis on sex discrimination.”

Insomniacs can read the full press release at http://www.eeoc.gov/press/6-11-09a.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Trucking Company Pitt-Ohio Agrees To Pay $2.43M To Settle EEOC Sex Discrimination Class Action Lawsuit

On Thursday, the EEOC’s Cleveland office announced that the interstate trucking firm, Pitt-Ohio Express, Inc., “has agreed to pay $2.43 million and provide other remedial relief to a class of women to settle” a sex discrimination class action lawsuit brought by the EEOC. The EEOC had alleged in this lawsuit “that Pitt Ohio Express Inc. denied a class of qualified female applicants employment as truck drivers or dockworkers since 1997, while men were placed in these positions during the same period. The comprehensive relief obtained by the EEOC includes $2.43 million for the class of women denied employment. Non-monetary relief includes offers of employment to women who should have been previously hired as drivers and dock workers and equal employment opportunity training to all supervisors and managers, as well as reporting and monitoring provisions.”

According to the EEOC, “[t]he consent decree settling the suit was approved by the court following a fairness hearing held [Thursday] morning. . . . Pitt-Ohio Express Inc. is a regional carrier specializing in short-haul transporting, providing direct service to over seven states in the northeastern United States. The company is headquartered in Pittsburgh and has terminals in Cleveland, Columbus, Cincinnati and Toledo.”

According to the terms of the consent decree, “neither this Decree nor the fact of a settlement are an admission or concession by Pitt Ohio of any violation of Title VII or of any liability or wrongdoing whatsoever.” Nonetheless, the consent decree contains the following terms:
• Pitt Ohio, its officers, agents, employees and all others in active concert with them are enjoined from discriminating in hiring based on sex in violation of Title VII against female applicants for driver and dockworker positions in its Ohio terminals, and from failing to create and maintain records as required by Title VII or regulations issued pursuant to Title VII.
• Pitt Ohio, it officers, agents, employees and all others in active concert with them shall not retaliate against any female applicants for driver and dockworker positions at its Ohio terminals for participating in this proceeding or otherwise asserting any rights under Title VII in this proceeding.
• The payments to Claimants are for compensatory damages. Based on the lack of any prior employment relationship between Pitt Ohio and the Claimants, the absence of any adjudication of issues raised in the Complaint and Pitt Ohio's payment to the Claim Fund according to the procedures herein as a step in resolving all claims and issues, each Claimant, to whom a payment was made will be provided by the Claim Fund, an IRS Form 1099-MISC for the year in which payment is made, as required by law, directed to the same address to which the check was sent.
• Within 60 days after the entry of this Decree, EEOC shall provide Pitt Ohio the name of each Offer Eligible Claimant who has expressed interest in employment with Pitt Ohio and whom it contends should receive "priority hiring consideration" as defined in paragraph 23, and at the same time it will provide Pitt Ohio the current qualifications information received from each such Offer Eligible Claimant. As used herein, "priority hiring consideration" refers to Pitt Ohio's obligation to make employment offers for driver and dockworker positions to Offer Eligible Claimants who meet the hiring criteria in effect for such positions at the time the offer for such position would be made. . . . Absent disagreement or once any disagreement about whether an Offer Eligible Claimant should receive "priority hiring consideration" has been resolved, such Offer Eligible Claimant entitled to "priority hiring consideration" shall be placed on a "Job Offer List" according to her stated Ohio terminal preference for employment. When a job vacancy for a driver or dockworker position becomes available at an Ohio terminal, Pitt Ohio will consult the Job Offer List for that terminal, invite as many Offer Eligible Claimants to interview as it deems appropriate and make offers of employment to Offer Eligible Claimants on the Job Offer List before considering the application of any other person. . . . Pursuant to these "priority hiring consideration" provisions, Pitt Ohio shall extend at least 40 offers of employment, 26 for driver positions and 14 for dockworker positions. If at least 30 hires do not result from the initial offers, EEOC will provide Pitt Ohio the names of additional Offer Eligible Claimants and Pitt Ohio shall in good faith make additional offers until 30 hires are achieved or until the termination of this Decree, whichever is earlier. Each Offer Eligible Claimant hired pursuant to the "priority hiring consideration" provisions will receive "rightful place instatement." "Rightful place instatement" shall mean that, when an Offer Eligible Claimant is hired into a driver or dockworker position, she shall be hired into the vacant position at the then existing hiring rate for the position with seniority rights and accompanying benefits, based on the position and her earlier date of application. Rightful place instatement shall not extend to bumping Pitt Ohio employees who occupy jobs, displacement of drivers from current route and shift assignments, or vacation preference rights.
• Pitt Ohio will appoint from its human resources department an ombudsperson to resolve informally issues arising from or which result from women entering driver and/or dockworker positions pursuant to the terms of this Decree. To the extent necessary, Pitt Ohio will issue procedures for submission and handling of issues by the ombudsperson. The ombudsperson will not be the person in the human resources department responsible for responding to EEO charges or other EEO compliance.
• Within 30 days after the date of this Decree, Pitt Ohio shall provide a training proposal to EEOC for approval. The proposal shall include: format of the training; name(s) and qualifications of the instructor(s); content and topics to be covered; length of the program; and estimated training dates and locations. The training shall include at least the following topics: Title VII recordkeeping requirements (retention requirements, prohibition against destruction of records, etc.); hiring practices and procedures which comply with Title VII; the interview process and types of questions to be asked of applicants; and personnel policies and procedures which comply with Title VII. Pitt Ohio shall conduct EEO training to be attended by its executives, managers, supervisors, human resources staff and recruiters from its corporate headquarters and Ohio terminals, and any other employees at corporate headquarters and the Ohio terminals coming in direct contact with prospective applicants or involved in the recruitment, selection and hiring process. This training shall be completed within 90 days of the date of this Decree. Pitt Ohio shall train all newly-hired and newly-promoted management or supervisory staff, and other staff involved in the application and hiring process at its corporate headquarters or Ohio terminals on equal employment opportunity law, including the topics listed in paragraphs 34, within 90 days after their hire, promotion or transfer for the duration of this Agreement. To satisfy this requirement, Pitt Ohio may substitute viewing of a video presentation of the original training session, provided a qualified trainer attends to answer questions.
• In addition to the steps of training and appointment of an ombudsperson, identified elsewhere in this Decree, Pitt Ohio will help assure management and supervisory accountability in effecting the terms of this Decree in its Ohio facilities by: (a) directing managers and supervisors to carry out their supervisory responsibilities so as to achieve compliance with Pitt Ohio's policy or policies prohibiting unlawful employment discrimination and/or retaliation; (b) taking corrective action, which may include discipline up to and including discharge of any supervisor or manager who violates Pitt Ohio's policy or policies prohibiting unlawful employment discrimination or retaliation; (c) directing managers and supervisors to report incidents of unlawful discrimination and/or retaliation to Pitt Ohio's human resources group.
• Pitt Ohio will incorporate into the performance evaluations of its supervisors and managers an equal opportunity component.
• Within 14 days after the date of this Decree, Pitt Ohio shall post the Notice attached as Exhibit C at its Ohio terminals and corporate headquarters, and keep it upon those premises in places where bulletins and notices to employees and applicants for employment customarily are posted. Such Notice shall remain for the five-year duration of this Decree. If such Notice becomes defaced, marred or otherwise unreadable, Pitt Ohio will ensure that new readable copies are posted in the same manner as heretofore specified.
• With the first reporting period starting on the first day of the month immediately after the date of this Decree, Pitt Ohio shall submit to the EEOC's Cleveland Field Office a written report for each preceding six-month period for three years and then for each preceding one-year period for the remaining term of the Agreement, regarding recruitment and hiring of women in driver and dockworker positions in Ohio, which shall include: (a) for each Ohio terminal for the reporting period, a list of driver and dockworker hires, including name, sex, date of hire, job title, rate of pay, and status as full-time or part-time employee; (b) for each Ohio terminal for the reporting period, a list of the names of driver and dockworker applicants, their sex, and for each their address, social security number (if available), job applied for, date of application and an indication of the status of the applicant (i.e., hired or disposition code information); and (c) for each Ohio terminal, copies of the applicant logs for the preceding reporting period.

Insomniacs may read the full EEOC press release at http://www.eeoc.gov/press/1-22-09.html and the full terms of the consent decree at

Sixth Circuit Rejects Disparate Impact Sex Discrimination Claims of Employees Laid Off in RIF by Columbus Moving Company.

Today, the Sixth Circuit affirmed the dismissal of sex discrimination claims brought by four terminated female employees who alleged that their employer’s reduction in force disproportionately affected women by focusing the RIF on predominately female departments. Shollenbarger v. Planes Moving & Storage, No. 06-4454 (10/21/08). In particular, the plaintiffs alleged that the RIF resulted in the termination of twelve women and only one man even though 53% of the employer’s total workforce consisted of women. At one point in the Court’s opinion, it noted that “the odds of selecting 12 women from the [employer’s] entire non-management labor pool is 0.1%.” Nonetheless, because the employer articulated a legitimate business justification for focusing its RIF on the predominately female departments, “statistically, 12 is the most likely number of women from this pool, as anything less would diverge from the basic statistical probability. Therefore, this statistical result does not demonstrate disparity, much less a significant disparity that can be connected causally to the challenged employment action.”

According to the Court, “[p]rior to the RIF, [the employer’s] non-management workforce comprised 120 women and 86 men, split into several departments. Management
comprised 18 women and 35 men. So, there were 259 total employees (53% female).” The employer then focused its RIF on certain departments: “Customer Service; Credit & Collections; Operations; and Billing & Rating. Of the 101 total employees in these departments, 90 were women and 11 were men, meaning that the departments were 89% female. Meanwhile, [the employer] excluded from the RIF its other departments: Warehouse; Movers & Packers; and Drivers. These departments consisted of 30 women and 75 men (105 total), meaning that they were only 29% female. [The employer] delegated to the individual department managers the decision of which employee(s) from their departments to lay off, using criteria of conduct, performance, reliability, and seniority. Ultimately, [the employer] laid off 12 women and one man.”

“The plaintiffs first challenged [the employer’s] ‘particular employment practice’ of selecting only certain (predominantly female) departments for the RIF. . . . The plaintiffs contend that the statistics . . . show a disparity and we agree. At this step in the analysis — the prima facie step —[the employer’s] reasons for selecting certain departments is immaterial; the only questions at this point are whether there was an identifiable disparity and, if so, whether the challenged employment practice (i.e., the selection of certain departments) could have caused the disparity. Based on a rudimentary statistical analysis, we answer both in the affirmative. If [the employer] had randomly selected one employee for layoff from its entire non-management labor pool (i.e., all departments), it would have had a 58% chance (120/206) of selecting a woman. By targeting only certain departments, the likelihood of selecting a woman increased to 89% (90/101). More telling is that the odds of selecting 12 women from the affected departments is 23%, whereas the odds of selecting 12 women from the entire non-management labor pool is 0.1%. We find this to be a sufficient disparity to demonstrate a disparate impact from the decision.”

Because the plaintiffs met their prima facie burden, “ the burden shifts and [the court] must consider whether [the employer] set forth a legitimate business justification. [The employer] explained that its declining business necessitated the RIF and that some departments were affected more that others; specifically, those employees who dealt most directly with customers were the most affected. In addition, the predominantly male, unaffected departments were staffed largely with seasonal workers (typically high school and college students) who had already left at the end of the peak summer season. And, there was no decline in the business being done by the warehouse. We conclude that the challenged employment practice of subjecting only certain departments to the RIF had a legitimate business justification.”

“Because [the employer] clearly met its burden of showing a legitimate business justification, the burden shifts back to the plaintiffs to show that “other tests or selection devices, without a similarly undesirable . . . effect, would also serve the employer’s legitimate [business] interest.” The plaintiffs argued that “there wasn’t any exploration of alternatives to these layoffs at all.” But, this is a misunderstanding of the standard and, hence, completely irrelevant. plaintiffs were obligated to prove equally effective alternatives and — although they offer alternatives to a RIF in general — they offer no alternative to subjecting only the particular, selected departments to the RIF. The purpose of this step is not to second guess the employer’s business decisions, it is to show — by pointing to obviously ignored alternatives — that the “particular employment practice” was actually pretext for discrimination.” Once the decision to focus the RIF on certain departments, the statistical anomalies disappear: “The RIF was 92% female (12/13), which is perfectly consistent with a random selection from an 89% pool. Statistically, 12 is the most likely number of women from this pool, as anything less would diverge from the basic statistical probability. Therefore, this statistical result does not demonstrate disparity, much less a significant disparity that can be connected causally to the challenged employment action.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0631n-06.pdf.


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Prima Facie Case Does Not Require Female Plaintiff To Prove that She Was More Qualified Than Male Replacement

On December 19, 2007, the Sixth Circuit reversed summary judgment in favor of an employer where the female plaintiff had been laid off one day after a male employee was hired onto her work crew and she was never rehired even though the employer’s workforce increased overall by twelve laborers in the plaintiff’s division. Vincent v. Brewer Co., No.06-4138 (6th Cir. 12/19/2007). The district court had dismissed the case on grounds that her male replacement was more qualified, and thus implied that she was not sufficiently qualified for her position as required to meet her prima facie case. However, the Sixth Circuit noted that a plaintiff need only prove that she was replaced by someone outside the protected class and need not show that the replacement was less qualified, or even as qualified, as she. She would only need to show that she was similarly qualified to a similarly-situated male if she was claiming different treatment instead of being replaced by a male.

The employer had also argued it had not discriminated against the plaintiff because it had laid off other employees at the same time as her and that she had a history of misconduct. However, the Court noted that there was sufficient potential evidence of pretext in that, among other things, (1) the other employee were laid off were temps, unlike the plaintiff; (2) there was evidence of numerous sexist comments by the decisionmaker and other managers; (3) she had received several favorable performance evaluations and been promoted in the past; (4) her co-workers claimed that she was very productive; and (5) there was little temporal proximity between her layoff and the prior instances of misconduct. Therefore, there was enough of a factual dispute in the evidence for a jury to decide whether the plaintiff had been laid off on account of her sex as she claimed.

Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/064138p.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.