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Understanding Gender-Identity Discrimination

Posted by Molly DiBiancaOn August 26, 2014In: Gender (Title VII)

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This article was written by Lauren Moak Russell. I’m in California for two weeks, taking depositions, and am very thankful for the contribution in my absence.

This has been a month of major changes in the employment law landscape in Delaware. In addition to the Supreme Court’s three major decisions affecting employment law (addressing retaliation and harassment under Title VII, and the constitutionality of the federal Defense of Marriage Act) and the legalization of gay marriage, Delaware also passed a law prohibiting employment and other types of discrimination on the basis of an individual’s gender identity. Here is what Delaware employers need to know about the new statute.

What Is Gender Identity?

Gender identity is a concept that many individuals outside the transgender community struggle to understand. Gender identity is not the same as sexual orientation (being gay or straight) and it is not simply a matter of wearing clothes commonly associated with the opposite sex. Instead, an individual’s gender identity relates to his or her internal sense of self as male or female, as well as an outward presentation and behavior related to that internal sense of self. Developing from that concept, an individual may be described as transgender when his or her gender identity does not match his or her biological sex at birth. Because gender identity is based on what an individual feels inside, when addressing transgender employees, employers should be guided by the employee’s description of his or her gender, not outward appearance.

Protection Against Gender-Identity Discrimination

On June 19, 2013, the Delaware Discrimination in Employment Act (“DDEA”) was amended to prohibit employment discrimination on the basis of gender identity. The statute defines “gender identity” to mean “a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.” The statute further provides that “[g]ender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity; provided, however, that gender identity shall not be asserted for any improper purpose.”

The DDEA provides the same protection from discrimination based on gender identity as it does for all other protected classifications. In other words, it is unlawful for an employer to discriminate against an employee in any term or condition of employment on the basis of the employee’s gender identity. Only employers with four or more employees are subject to the provisions of the DDEA.

How to Prepare for the Change in Law

In light of the amendments to the DDEA, which are currently in effect, employers should begin educating employees about gender identity, and their non-discrimination obligations. While more than fifteen states currently have laws that prohibit gender-identity discrimination, it is still a concept that is frequently misunderstood. Outlining for employees and managers the differences between sex, gender, and sexual orientation will help individuals to better understand their workplace obligations with respect to the new law.

Employers should also be alert to workplace conduct that may implicate this new protected classification. Common issues implicating gender-identity include “joking” about an individual’s external appearance (e.g. dress, facial hair, or physical build; the use of proper gender pronouns to refer to a transgender individual; and the use of communal bathrooms that are designated for use by gender. While there are no hard and fast rules in addressing these issues, employers should be guided by the transgender employee’s personal preferences, whenever possible.

Bottom Line

Delaware law now protects employees from discrimination on the basis of their gender identity. When preparing for this change, employers should make sure that their employees (managers and subordinates, alike) have a basic understanding of the concept of gender identity, and that they following basic workplace standards of respect. If conflicts or misunderstandings arise, employers should take their lead from the transgender employee—wherever reasonable—in how best to treat the employee with respect.

Employees and the Burdens of Being Beautiful

Posted by Molly DiBiancaOn August 2, 2013In: Discrimination, Dress & Attire, Gender (Title VII), Social Media in the Workplace

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Being beautiful ain’t all it’s cracked up to be.  Or so it seems from the legal-news headlines.

First, there are the “Borgata Babes.”  The female cocktail servers at Borgata Hotel and Casino in Atlantic City, known as Borgata Babes, challenged the legality of their employer’s policy prohibiting them from gaining more than 7% of their body weight after they were hired.  The Babes lost the lawsuit, though, when a New Jersey judge granted Borgata’s motion for summary judgment. 

The cocktail servers alleged that the hotel created a culture of humiliation and harassment with its dress Borgata Babes Suit Dismissedcode but the court disagreed, finding that the policy did not constitute unlawful gender-based discrimination.  Particularly noteworthy was the court’s commentary about the potential problems associated with using the term “babe” to describe a workforce:

From the court’s perspective, the term “babe” is at best undignified and at worst degrading. . . . Regardless, there are people in our society who view “babe” as playful flattery . . . To the chagrin of those in our society hoping to leave sexual stereotypes behind, some of those people are female. And some of these people may be among the plaintiffs.

But “undignified” isn’t reserved just for cocktail waitresses.  Bob Ambrogi tweeted earlier this week about the news organization in L.A. that reminded its female employees to dress professionally, particularly when attending a court hearing or other matter at the courthouse.  Ok, well, the memo wasn’t actually addressed to, “All Female Journalists” but only women received it. 

Dress codes are tough stuff.  They make for awkward conversations and lots of grey areas.  And it is entirely appropriate for a news agency to require its reporters to dress with the appropriate level of decorum whenever they are in court.  But was it really only the women who had to be “reminded” of the policy?  Maybe it was but it sure wouldn’t have hurt to send the memo to all hands on deck. 

The subject of appropriate decorum and dress code for the legal profession brings us to our final story of the day.  As reported by Sean O’Sullivan of the News Journal, a recently admitted Delaware lawyer has raised quite a stir about his job-search strategy.  Said strategy involves an email to nearly every lawyer in the State, to which he attached a picture of himself (a “selfie”) wearing a Villanova t-shirt (my alma matter, no less), with the sleeves rolled up, displaying his well-toned arms (i.e., his “guns”). 

The stir over this unsolicited and unconventional email was soon trumped by the half-naked selfie posted on his Facebook page (which, of course, is public), with a  handwritten sign taped to the mirror in which the words “lawyer” and “escort” were used in a single (grammatically incorrect but multi-colored) sentence.  I’m quoted in the article as saying, among other things, that the whole thing is”just wrong on so many levels.” Indeed.

Really. If you don’t believe me, go see for yourself.  And, while you’re there, be sure to check out the video the hopeful job seeker posted in response to the criticism he’s been receiving.  And, yes, the video does include him flexing his guns for the camera. 

BONUS:  I know, I know. I said that was the final story for today.  But here’s a Friday-morning bonus for you.  At Mashable.com, there’s an entertaining comic titled, “The Pros and Cons of Being Tall.”  Happy Friday!

See also

Don’t Hate Me Because I’m Beautiful

I’m Too Sexy for My Job

Exotic Dancer Claims Sex Discrimination

Ex-Banker Says She Was Fired for Being Too Sexy

Employee Fired When Boss Finds Her Sex Blog

Court Orders Gender-Based Sentence to Female Defendant

Posted by Molly DiBiancaOn July 12, 2013In: Discrimination, Gender (Title VII)

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Today’s post is more of a rant than anything close to a legal analysis.  Yesterday, Mark Hansen of the ABA Journal reported about a sentence issued by a judge in Halifax County, N.C. 

The defendant, a 21-year-old female, Tonie Marie King, pleaded guilty to being drunk and disorderly and resisting arrest.  Police were called to the scene in response to a call alleging that King hold stolen beer from a convenience store.  When police arrived, King put up a fight and kicked the arresting officer. image

Judge Brenda Branch sentenced King to 45 days in jail but suspended the sentence in lieu of a one-year supervised probation, during which she may not possess or drink alcohol and-now here’s the kicker—she must write a two-page essay on “How a Lady Should Behave In Public.”

Oh, brother

Let . . . me . . . think.  A “lady,” to me, invokes images of Victorian times, when “ladies” could be seen carrying a parasol and wearing delicate gloves.  The word also makes me think of the Disney movie, "Lady and the Tramp.”  So, basically, an adorable dog with big eyes sharing a piece of spaghetti with her beau.  Here’s what Bryan Garner has to say about it in his book, Garner’s Modern Legal Usage:

This word has become increasingly problematic.  Though hardly anyone would object to it in the phrase ladies and gentlemen, or on a restroom sign, most other uses of the term might invite disapproval . . .

And why is it that the word has been “so beaten down” in modern usage, to quote Edward N. Teall from his 1940 article, Putting Words to Work?  For the same reason that we counsel employers to not ask job applicants about their familial or marital status—because it doesn’t make a hoot of a difference.  Instead, we counsel employers to stick to job-related questions.  If the question does not provide insight into whether or not the applicant can perform the necessary duties, the question should not be asked.

The same maxim applies to the court-ordered essay.  The essay that the court should have ordered is “How a Citizen Should Behave In Public” or “Why It’s A Bad Idea to Be Drunk In Public” or “10 Reasons to Not Assault a Police Officer.”

But “How a Lady Should Behave In Public”—what response is that likely to invoke?  Well, if we look to Old Massachusetts: A Practical Primer for Daily Living, here are some possibilities:

Keep Your Arms from Going Astray.  Preferably with a fan but, when you cannot have one in your hands, it is better to keep the arms pressed lightly against the sides in walking or sitting.

Limit Your Observations.  A woman who is boisterous and loud-talking is almost unendurable.  A lady is, by nature, intended to be the gentler and restraining element.

Be Not Excessively Frank.  Do not take pride in offensively expressing yourself on every occasion under the impression that you will be admired for your frankness. Speaking one’s mind is an extravagance, which has ruined many a person.

Excerpts published at ConcordMa.com.   Folks, can we just take a moment to reflect on that last characteristic of a lady’s “proper demeanor”—“Speaking one’s mind is an extravagance, which has ruined many a person.”

Consider me ruined in that case because I’m about to speak my mind.  The judge’s order, however well intended it may have been, does more harm than good and, quite unfortunately, reflects a bias on the bench.  The judge—a woman, mind you—felt that it was perfectly appropriate to use the defendant’s gender in determining the sentence.  As readers well know, similar conduct by an employer would get the employer sent directly to the EEOC—do not pass Go, do not collect $200.

When imposing a “sentence” in the workplace (i.e., an adverse employment action), assume that gender is irrelevant because it almost always is. And then leave gender out of it.

And, just one more thing for this Friday-morning post, it is my wholly subjective opinion based purely on my own anecdotal experience but this kind of gender-based order would only come from a woman.  We really can be our own worst enemies.

See also:

No, I am not from the Midwest. Sex Discrimination Lives On.

A Turning Point for Women in the Legal Profession? Almost.

Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

Are Women Attorneys Being Stricken by a Pantsuit Pandemic?

The Pantsuit Pandemic Part II

No, I am not from the Midwest. Sex Discrimination Lives On.

Posted by Molly DiBiancaOn April 29, 2013In: Gender (Title VII)

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Gender discrimination happens. Let’s not pretend that it doesn’t. I have not, in my short life as a lawyer, ever felt that I was not getting the same opportunities as my male counterparts. But I don’t pretend that it doesn’t happen. Recently, I had an interaction with a senior lawyer from an out-of-state firm that reminded me how lucky I am.

Let me set the scene. The event was hosted by lawyers and held for lawyers. So, waitstaff aside, everyone present was a practicing lawyer. When I arrived, I saw a female colleague of mine (a lawyer), and went over to say hello.

Standing with her was a junior female associate and a senior male partner, both from the same firm. I reached out to shake the partner’s hand and introduce myself. As I did, he said, “You look like you’re from the Mid-West.”

Sex Discrimination in the Workplace

Uhhh, Come again?

Folks, I’ve been called a lot of things but never have I been presumed to be “from the Mid-West” at first sight. I hadn’t said a word, so he couldn’t have misunderstood my Philly accent for a Minnesota accent (not that the two would be easily confused). My haircut is asymmetrical. I wear a diamond stud nose ring. I was dressed more like an artist than a lawyer.

Totally perplexed, I asked, “Oh, really? Why is that?”

He responded—sincerely, I might add—“Because you’re blonde. Well, at least for today.”

Wow. Indeed I was a blonde that day (and pretty much every day of my life except for a few months in 2004 when I dared to have my hair dyed a chestnut brown, to the utter horror of just about everyone I knew. . . but I digress).

The partner, if you recall, is talking to three female lawyers, all three of whom are full-time practicing litigators. And, to these same three female lawyers, he proceeded to describe how, at a former firm, he had been the partner in charge of recruiting new attorneys. He went on to recount that, in his experience, the female candidates were always the best. They were always the smartest. They were always the most driven.

The “problem” he went on to explain, was that, as we (the three female full-time lawyers standing near enough to knock his block off), “surely knew,” no matter how well intentioned “these” candidates were and no matter how sincerely they may have meant it at the time, although they said that they were going to get married, “have babies,” and return to work, the “reality” was that “we all knew” that they would never come back after having children.

Really? No, really?

This seasoned lawyer did not hesitate for a second before telling us this grossly sexist story reflecting his deep-seeded belief that gender discrimination in the workplace is standard operating, apparently convinced that the three women standing in front of him (again, it bears repeating, within striking distance), were, undoubtedly, going to agree with him about the sheer absurdity of the idea that law firms would even bother to try to hire female lawyers because, as “we all know,” there was absolutely no chance of long-term retention.

So, what are the lessons to be learned from this? I’ll offer you two, though there are surely many more.

First, it’s a good reminder to me, a woman who (very thankfully) has not had to work with someone who, at least not openly, held such biased opinions about inequality among the sexes. It’s a good reminder, specifically, not to assume that all workplaces are like my own—clearly, they are not.

Second, it’s a good reminder for employers to keep their eyes and ears open for this kind of commentary. I cannot imagine that this was a recent epiphany by the senior partner. It’s probably a safe bet that he had made similar pronouncements in the past. So shame on his partners for having failed to put a stop to it.

And a third by way of a bonus tip.  In the even that you, dear reader, are ever inclined to express your opinion that a class of people are generally less worthy than yourself, may I suggest that you do so outside of arm’s reach of members of that class?  It’s a matter of self-preservation more than anything.

Who Says I'm a Girly Man? Doth Sayeth the EEOC

Posted by Molly DiBiancaOn December 27, 2012In: Discrimination, Discrimination & Harassment, EEOC Suits & Settlements, Gender (Title VII), Harassment, Harassment, Other (Title VII), Harassment, Sexual

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The EEOC has enjoyed several victories in recent months. For example, the EEOC was granted summary judgment in a hostile-environment claim filed on behalf of a class of black construction workers. Even more recently, the EEOC was awarded summary judgment in an age-discrimination lawsuit against the City of Baltimore. But things haven't been all peaches and cream for the EEOC.

In EEOC v. McPherson Cos., Inc., a federal district court in Alabama granted summary judgment to the defendant-employer in a sexual-harassment lawsuit brought by the EEOC on behalf of an unnamed male employee. The employee worked in a warehouse with an all-male workforce.

The EEOC alleged that, after being subject to a constant barrage of "ugly talk," the employee complained to his supervisor about the allegedly hostile work environment. About a year later, the employee confronted his co-workers, who apologized and, thereafter, stopped directing rude comments his way. About a year after that, the employee complained to HR, which investigated the complaint, resulting in discipline for several workers and two supervisors. After this last complaint, the comments ceased.

The court held that the EEOC had failed to establish the existence of an unlawful hostile environment because it had not shown that the rude comments and "ugly talk" were of a sexual nature or that they were made "because of" the employee's gender.

The EEOC argued that the harassment was because of his gender and, specifically, because of his effeminate behavior. This can be a valid cause of action--when a male employee is treated badly because he acts "too girly." But, here, despite the EEOC's argument, the testimony of the employee himself contradicted this argument. Thus, the court dismissed the gender-discrimination and sexual-harassment claims.

The court also dismissed the EEOC's retaliation claim. The employee was terminated, along with 11 other employees, as part of a reduction-in-force 3 months after his complaint to HR. The court expressed that it was "hard to believe" that the EEOC "is seriously arguing that the entire RIF process was a subterfuge for fraud designed for the sole purpose of providing cover for retaliation."

EEOC v. McPherson Cos., Inc., No. 10-cv-2627 (N.D. Ala. Nov. 14, 2012).

Not So Simply Irresistible, Says Iowa Supreme Court

Posted by Molly DiBiancaOn December 26, 2012In: Discrimination, Gender (Title VII), Harassment, Sexual

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I've posted more than my share of stories involving allegations by employees that they were terminated because they were "too sexy" for the job. For example, there was the female banker who sued Citigroup, alleging that she was terminated for being "too sexy for her job." Then there was the data-entry employee who was terminated from her job in a lingerie warehouse for, she alleged, wearing what her employer considered to be clothing that was "too sexy."

Usually, this type of allegation involves at least some level of grandiose delusion and almost always involves the employee's belief that everyone hates her for being so darn good looking. But today's post goes much closer to the realm of the legitimate. Because this post involves an actual court decision. On December 21, the Iowa Supreme Court unanimously ruled that there was no unlawful discrimination where a dentist terminated his dental assistant of 10 years after his wife became jealous.

For his part, the dentist admitted that the assistant was a good employee and wasn't fired for poor performance. Instead, he claimed that her tight clothing was too distracting and felt that he wouldn't be able to resist her charms if she remained in his employ any longer, reports CNN.

In other words, the ruling makes clear that "being irresistible" will not serve as the basis for a gender-discrimination or sexual-harassment claim.

Nelson v. James H. Knight DDS, P.C., No. 11-857 (PDF).

Employment Discrimination and Domestic Violence

Posted by Molly DiBiancaOn October 30, 2012In: Disabilities (ADA), Discrimination, Discrimination & Harassment, Gender (Title VII)

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Northern Delaware managed to escape Sandy largely unscathed, I feel very lucky to say. Our thoughts are with those who are still without power and, especially, with those whose homes were damaged by the storm. I am grateful to be able to return to work, though. In the spirit of maintaining normalcy, today's post is not going to focus on hurricanes, floods, or other natural disasters. Just employment law. Stay safe, everyone.

No federal employment law expressly prohibits discrimination against an employee because of the employee's involvement in domestic violence. For many employers, the idea of intentionally discriminating against a victim of domestic violence may be difficult to envision, even. I have seen this issue manifested in a few different contexts.

First, there's the employee who is chronically absent from work as a result of domestic violence at home. In that case, the employer wants to know whether it is lawful to discipline the employee for her absenteeism, or whether it must permit her some type of leeway because the absences are not merely a result of the employee playing "hooky." This question is particularly difficult when the employer's attendance policy distinguishes between "excused" and "unexcused" absences.

Second, there's the employer who wants to terminate an employee who is involved with a violent domestic partner for fear that the partner will carry out a violent act in the workplace. This usually arises when the employer learns that the partner has been stalking the employee, often on or just outside the employer's property. In that case, the employer is concerned about protecting its employees and wants to prevent a workplace shooting or similarly tragic event. This issue is as complicated as the first scenario, above, because it proposes that it is better to save the flock than a single sheep.

But where does Title VII and the ADA come into play in these and other situations involving domestic violence? The EEOC's most recent fact sheet addresses this question and offers some thought-provoking answers. The fact sheet offers some examples of how the federal anti-discrimination laws may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking. Many of the examples are not as much about domestic violence as they are about anti-retaliation and anti-harassment. For instance, the fact sheet explains that an employee who is given less favorable assignments after reporting that she was raped by a manager during a business trip. This example is, in my opinion, a bit obvious and not precisely within the framework of domestic-violence discrimination.

But a more provocative item on the fact sheet is the "Answer" that concludes that an employer who terminates an employee after learning she has been subjected to domestic violence, saying that he fears the potential 'drama battered women bring to the workplace.' On the whole, I would agree that this sort of gender-based stereotype likely violates Title VII. The trouble that I have with it, though, is that it's a bit conclusory on the question of intent.

I can easily imagine a scenario like the one I described above, when an employer decides to terminate a female employee whose husband has appeared at the workplace and threatened the employee or even her coworkers. Worried about the likelihood of future disruptions and potential violence, the employer considers whether it owes a duty to its other employees to prevent such incidents by terminating the victim. Although it would be easy to assume the worst by concluding that the employer just wanted to avoid the "drama" associated with battered women, it may be a more legitimate fear that drives the employer's decision.

Employment decisions are never easy. Employers often have to make tough calls and, rightfully so, worry that their choices will be later challenged as unlawful. The best starting point for these tough choices is to ask, "what's fair?" It's no coincidence that an honest answer to that question also is usually the most legally defensible position.

Taking the Mystery Out of Bad Hiring Practices

Posted by Molly DiBiancaOn June 25, 2012In: Age (ADEA), Gender (Title VII), Harassment, Hiring, Interviewing, Jerks at Work

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Want some free anti-harassment and anti-discrimination training? Well, have I got a deal for you! Mystery Diners is a reality show on the Food Network. The show's concept involves a father-daughter team who pretend to be employees and/or customers at a target restaurant in order to help the owner uncover the "leaks in the dam" so to speak.

An episode that aired last week, called, "Managing Disaster," could be used as a workplace best-practices training video. In short, you could use the video to train employees that any of the conduct by the restaurant's manager should be considered prohibited conduct in your workplace.

Yes, it really was that bad. And I mean bad. Let me take a moment to run through just a few examples of conduct that occurred during the hiring process.

Candidate #1: Sarah the "Old Lady"

Two women are sent into the restaurant to interview for a waitress position. One of the women is Sarah, who is in her mid-30s and has lots of waitressing experience. She interviewed with the bad-guy-manager (we'll call him "Manager," despite he did anything but manage the employees).

During the interview, he asked her how old she was. Yes, you read that correctly. When she answered "I'm 35," Manager nearly fell out of his seat. He quickly sent her on her way and told her he'd be in touch. After she was out the door, he ran over to the bar, where he told the bartender that Sarah "was like, in her 30s--she'd be like a mother in here!!"

Candidate #2: Destiney In a Short Skirt
The second candidate was Destiney, the daughter of the father-daughter team, who I'd guess to be maybe 21 years old. Destiney was young and cute and wore a short skirt to herinterview. As if Manager hadn't already shown his true colors during Sarah's interview, he took it to an entirely new level with Destiney. By the end of the "interview," though, you can be sure that Destiney had been offered the job.

For starters, he made her sit on a couch for the interview, which was not only way too informal but also clearly uncomfortable for Destiney in light of her attire. When Destiney admitted that she had no real experience to speak of, Manager assured her that experience was not important--"as long as you're cute."

Ethical Standards Lower than a Short Skirt

Seeing that he couldn't ask her about anything relevant to the duties of the job, I guess it's natural that Manager turned to other topics. In this case, Manager chose "partying," and began a series of questions about Destiney's after-hour activities, such as whether she liked to "party" and whether she liked to go clubbing, which "they" (presumably, Manager and his creepy friends), "did all of the time."

The low point of the "interview" came when Manager touched Destiney's knee as he sat way too close to her on the low-to-the-ground couch and talked about low-life topics like "partying" and assuring her that his standards for hiring were as low as his morals. What a dirt bag. And you can imagine what the father, who sat in a trailer watching the live video stream with the restaurant's owner, must have thought as he saw Manager Creepy touch Daughter Destiney's bare knee. Nice.

When Busted, Blame Others
Folks, the take-aways from this episode are, admittedly, obvious to most of us. They weren't, apparently, as obvious to Manager Creepy, who was shocked and appalled that the owner had secretly videotaped these antics. And, in a demonstration of some of the best blame-shifting skills I've perhaps ever seen, Manager Creepy, furious about the intrusion, turned the entire situation around and accused the owner of being an unsupportive boss.

Be sure to catch the show for some free anti-harassment-and-discrimination training.

Don't Hate Me Because I'm Beautiful

Posted by Molly DiBiancaOn June 4, 2012In: Discrimination, Fair Labor Standards Act (FLSA), Gender (Title VII), Hiring

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Sex, drugs, and rock 'n roll. Employment law can involve any or all three. Which explains why it takes a certain personality to really love this gig. Lately, though, I've seen a bevy of employment-law stories involving claims based on or involving beautiful people.

Last week, for example, I reported on yet another story involving a woman who claims she was fired from her data-entry job in a lingerie warehouse for being too sexy. [Ed. Note: This story, which involves a woman alleging she was too sexy for her job in a lingerie warehouse owned by Orthodox Jews, should clear up any doubt about why I love my job.] This wasn't the first story of this kind, though. I've reported about at least two similar claims in the past couple of years. And I recently reported about a gender-discrimination claim based on the plaintiff's part-time job as a dancer.

Michael Schmidt of the Social Media Employment Law Blog reports a different type of case involving exotic dancers. [Ed. Note: Michael's post is overflowing with hilarity in the form of well-crafted double entendres. For a great read, be sure to jump over to his original post, Slowly Stripping Away Privacy Rights. Brava, Michael!] In In re Penthouse Executive Club Compensation Litigation, No. 10-cv-1145 (KMV) (S.D.N.Y. May 10, 2012), the employer-defendant sought to compel one of the plaintiffs, an "entertainer in the Penthouse Executive Club," to produce nine pages of Facebook messages that she'd exchanged with other plaintiffs and with non-parties about others joining the FLSA suit.

The judge considered the motion in the same way any similar motion would be considered. She found that the Facebook messages sent to non-parties were "prepared in anticipation of litigation" and, as such, were protected by the work-product doctrine because they were "descriptions of conversations with Plaintiffs' counsel regarding litigation strategy, as well as responses to questions about the lawsuit." On the other hand, Facebook messages sent by non-parties to the plaintiff were not subject to the same protections and had to be produced.

And here's a twist on the theme. Instead of claims brought by beautiful people, here's a story brought against beautiful people. The owner of Marylou's, a coffee shop in Rhode Island known for employing beautiful baristas donned in pink shirt, is speaking out against the EEOC. The coffee shop has been under investigation for more than a year by the federal agency, which claims to be investigating the business' hiring practices. There has not been a complaint of discrimination, though, and many members of the community are outraged at the expenditure of federal funds and the cost imposed on the business in the absence of any actual charge of wrongdoing.

Maybe the EEOC is just trying to balance out all of those don't-hate-me-because-I'm-beautiful claims.

I'm Too Sexy For My Job . . . Part Three

Posted by Molly DiBiancaOn May 23, 2012In: Discrimination, Gender (Title VII)

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Is it unlawful to fire an employee for being too sexy?  Well, it depends.  That's the claim that a New Jersey woman filed with the EEOC, though, so she and her lawyer must think so.  Lauren Odes, 29, worked in her data-entry job for just one week before she was let go.  She claims that there was no dress code in place and that other employees wore very casual "athletic wear," which makes sense given the fact that they were working in a warehouse instead of a traditional office environment.  Odes claims, though, that, in the first few days on the job, her supervisors cautioned her that her outfits were too provocative, "her lips and hair, 'too fresh,'" and her breasts too big. On one occasion, according to the Huffington Post, she was given a bathrobe to wear over her clothes.  Too Hot for Work

Finally, she alleges that she was told that she was just "too hot" for the workplace.  Gloria Allred has taken up the case.  Odes' Charge alleges gender- and religious-discrimination claims.

And where, you might ask, does religion play into this?  The employer is owned by an Orthodox Jewish family and, Odes claims, they were trying to impose their religious beliefs on her with respect to appropriate attire.  As if there weren't enough irony in this story already, the employer is a lingerie company.  It seems to me that the fact that the company sold, in Odes' words, "thongs with hearts placed in the female genital area" would be evidence against Ms. Odes' claim that she was targeted for her religious beliefs. 

For my long-time readers, this story may seem a bit familiar.  If so, it's likely because this is not the first time I've had the occasion to write about employees who claim to have been fired for being too darn hot.  I've written about similar stories on two other occasions--once back in 2008 and then, again, in 2010, when a female employee sued Citigroup, alleging that she was terminated for being "too sexy for her job."

And people wonder why I love my job!

Reporter Plus Side Job as a Stripper Equals Gender Discrimination

Posted by Molly DiBiancaOn May 15, 2012In: Discrimination, Gender (Title VII)

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Reporter Sarah Tressler covered high society and fashion for the Houston Chronicle. She also worked as an exotic dancer on a part-time basis. According to Tressler, she worked as a stripper only "rarely" and did it for the "exercise" since she "didn't have a gym membership." So she must have been surprised when her "workouts" got her fired from her day job.

The Chronicle told her that she was being terminated for failing to disclose her side job on her employment application, according to MSNBC.

But Tressler ain't buying it. She hired celebrity lawyer Gloria Allred, who has filed a charge of discrimination on Tressler's behalf with the EEOC. The charge alleges that the termination constitutes gender discrimination.

stripper boots.jpg

"Most exotic dancers are female, and therefore to terminate an employee because they had previously been an exotic dancer would have an adverse impact on women, since it is a female-dominated occupation," Allred said.

And she may just have a point. If Tressler was fired because she worked part-time as an exotic dancer and she can show that male reporters who failed to disclose their part-time employment on their job applications, it may be a viable claim. On the other hand, journalists usually are subject to strict workplace policies. Newspapers and other traditional media outlets impose high standards on their reporters and, if the paper enforced those rules consistently, it may have a solid defense. Either way, it makes for a good story.

For more employment-law stories involving this profession, check out my prior post, Strip Clubs: One Social Event Not to Include In a Summer-Intern Program. If that doesn't satiate the interest, Dan Schwartz at the Connecticut Employment Law Blog has you covered.

Reasons to Terminate: More Is Not Merrier

Posted by Molly DiBiancaOn October 4, 2011In: Cases of Note, Gender (Title VII), Terminations & Layoffs

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When terminating an employee, employers need only one reason. Of course, there is rarely just a single reason for reaching the decision. But the existence of multiple reasons does not mandate that each reason be shared with the employee.  In other words, when an employer makes the decision to terminate, there should be only one reason upon which the employer relies and which is shared with the employee—the “final straw.” When an employer changes its “final straw,” it raises doubts both with the employee and with the court and changing reasons are evidence of unlawful discrimination. 

In Smizer v. Community Mennonite Early Learning Center, the employer told the employee that he was being fired due to a Facebook posting he’d made. But the employee didn’t buy it.  He claimed that he really was fired because of his “tardiness and lack of cleanliness in his classroom.”  He claimed that similarly situated female employees, who also were tardy and who kept equally messy classrooms, had not been fired.

If this claim were true, and there were late and messy female employees who had not been fired and the plaintiff was really fired for these reasons, it would support the plaintiff’s Title VII claim.  So the plaintiff sought the court to compel his former employer to produce documents he claimed would show these failings of his female counterparts.

The employer responded that evidence relating to tardiness and messiness were not relevant to the suit because, as you may recall, it fired the plaintiff due to a “troubling” comment he’d made about coworkers on his Facebook page. Thus, the employer contended, the evidence that the plaintiff sought was irrelevant to his claim.

The court disagreed.  In its opinion, it stated that the plaintiff had provided “ample documentation” tending to show that the Facebook posting may not have been the real reason for his termination.  Instead, the documentation apparently showed that the employer had claimed at various other times that there were other reasons for terminating Smizer—including his tardiness and lack of cleanliness.  In employment-discrimination claims, “a shifting justification for an employment action can itself be circumstantial evidence of an unlawful motive.”  Because evidence of “shifting justifications” may be admissible at trial, the requested documents were discoverable and ordered the employer to produce them. 

So what’s the big lesson employers can learn from this story?  In short, pick a reason and stick to it.  One reason to terminate an employee is all you need—and all you should have.  Certainly, there may be (and usually is) a long history of performance issues with the employee.  And all of these would be relevant to the employer’s decision to proceed to termination. But the “final straw” is not a “bail of hay.”  Pick a reason, stick with it, and don’t muck it up by giving multiple reasons for the decision at the termination meeting or in a termination letter.  If you’ve done what you’re supposed to do, you’ve addressed the other issues as they came up with the employee and he’s aware of those issues. 

Smizer v. Community Mennonite Early Learning Ctr., No. 10 C 4304, 2011 U.S. Dist. LEXIS 102212 (N.D. Ill. Sept. 7, 2011).

See also:

Bad Reason #29 to Fire an Employee

Don’t Hate Me Because I’m Brilliant: One Employee’s Tale

3d Cir.: No Protection for an Employee Who Lies

What Employers Can Learn from the Novartis Lawsuit

Posted by Adria B. MartinelliOn June 3, 2010In: Cases of Note, Gender (Title VII)

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Pharmaceutical giant Novartis recently defended a class action lawsuit filed by thousands of its female sales representatives alleging discriminatory treatment in pay and promotions. It was the largest gender discrimination case ever to reach a jury verdict.  green chalkboard and stacked books

Novartis might need to stock up on their in-house supply of Diovan – their top-selling drug, which treats hypertension -- as there are surely some Novartis executives with elevated blood pressure following the recent verdict. The jury awarded $250 million in punitive damages, $3.37 million in compensatory damages for the 12 named plaintiffs, with compensatory damages for the remaining members of the class to be determined separately. Experts estimate that Novartis could pay as much as $1 billion when all is said and done, and that doesn’t include legal fees expended to defend the mega-lawsuit.

Given the staggering nature of this award, an increase in employment class action lawsuits is almost certain. Class action suits are far more lucrative for plaintiff’s lawyers to take on, than a single employment discrimination lawsuit where damages rarely exceed a few hundred thousand dollars. In light of this new era which is sure to dawn : it is essential that employers examine their practices and consider their potential exposure in this area now.

Prevention is the Best Medicine

Audit pay classifications and EEO numbers.

Review your pay structure. Particularly in light of the Lily Ledbetter Act, which opens up exposure for employers potentially dating decades back, employers must be confident that their compensation structure does not reflect any trends that could be construed as discriminatory. Also, review your EEO numbers – this is one of the first things defense attorneys will do when their client is hit with a class action. Be aware, though, that if you run the numbers and they don’t look good, you’ve got to be willing to take action. Failing to take corrective action after a self-analysis could make the problem worse.

Outreach/Diversity in minority communities.

Fostering diversity programs within the workplace are good business and help to create a good corporate image while recruiting minority applicants. Because the recruiting/hiring process can be ripe ground for class action lawsuits, outreach is an important preventative step.

Hold managers accountable.

Make sure managers whose statements or actions result in company liability are held accountable. Where managers are appropriately trained, and take inappropriate actions nevertheless, one approach is to have litigation costs taken from the bottom line of the division for which the manager is responsible.

Have an internal EEO reporting procedure and train all employees.

Make sure you have an internal reporting procedure for any employee who has an EEO complaint, and that all employees understand that procedure. Handling any such complaints appropriately and with due diligence often can effectively head off future litigation.

Be Afraid – Be Very Afraid

The proactive steps outlined above will go a long way towards preventing a discrimination lawsuit, whether individual or class action. But sometimes even the most diligent of employers cannot avoid lawsuits. In light of the massive award in Novartis, class actions discrimination suits are sure to become more common. What signs should you look for to indicate you may be headed for a class action?

∙ For-Cause Findings by EEOC

Numerous charges with the same of similar allegations

∙ A pattern of irrelevant questions during management depositions

∙ Large numbers of employees asking for personnel files

∙ A significant increase in the number of internal complaints

If you observe any of these signs in your workplace, inform with your outside counsel immediately and brace for impact!

Bottom Line

No company is immune from a class-action lawsuit, and sometimes they are unavoidable. Nevertheless, taking the preventative steps and being attuned to the warning signs discussed above can significantly reduce a company’s risk of an employment class-action lawsuit.

Talk About Ego: Former Banker Says She Was Fired for Being Too Sexy

Posted by Molly DiBiancaOn June 3, 2010In: Gender (Title VII)

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Debrahlee Lorenzana has sued Citigroup, her former employer, alleging that she was unlawfully terminated because she was "too sexy for her job," to borrow a line from song by Right Said Fred. According to the New York Daily News, Lorenzana claims that she was subject to "improper comments" and reprimanded for dressing in a way that was "too distracting" to her male coworkers. She denies that she ever dressed inappropriately and complains that she's always been burdened with good looks--she draws attention from the opposite gender even when she's at the grocery store in sweatpants.

Oh, brother. Peacock

She is also quoted as saying that she refuses to "eat and gain 50 or 100 pounds because my job wants me to be the same size as everyone else."  Hmm.  I wonder if maybe she was fired for her inability to play well with others.  I mean, she sounds so charming, I can't imagine that all of the women in the office didn't adore her just as much as the men!

So what's the likelihood that her gender-discrimination claim actually has any merit?  Without having seen the complaint, I dare not even speculate.  On one hand, we've written previously about the increase of gender-discrimination suits brought by males and about how the courts seem to be expanding the protections of Title VII to include less traditional bases for such claims.  On the other hand, though, any perceived expansion has been in cases that evoke a great deal more sympathy than Ms. Beautiful's claims would likely evoke. 

It's one thing to have an individual who is tortured by co-workers for being too effeminate.  It seems that it would be altogether different to have an individual who has spent a lifetime fighting the heavy burden of being God's Gift to Men.  Maybe those of us not cursed with such beauty should just take a moment and count our lucky stars.

First Comes Love, Then Comes Marriage, Then Comes Flex-Time and a Baby Carriage

Posted by Adria B. MartinelliOn April 26, 2010In: Flextime, Gender (Title VII)

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The trial in a class-action lawsuit alleging that Novartis Pharmaceuticals practiced sex discrimination against female employees has begun in a federal court in New York. The class of plaintiffs includes more than 5,600 saleswomen, who are seeking $200 million in damages. According to the New York Times, the suit alleges discriminatory pay and promotions targeting women, particularly pregnant ones.

It remains to be seen if the plaintiffs will be able to prove their case, but the allegations include some pretty shocking (and dumb) comments by managers, including my favorite, in which a manager reportedly told a saleswoman that he preferred not to hire young women, saying, “First comes love, then comes marriage, then comes flex time and a baby carriage.”

As we’ve long known, flexible schedules can play an important—often critical—role in work-family balance. Without the option, many women report they would not return to the workplace (at least for some period of time following their maternity leave) after having a new child. But the fact the option exists on the company books does not necessarily mean it’s an appealing one: in many workplaces they are offered, but not widely utilized because of the stigma associated with them. Other employees take advantage of them, but understand they’re a “career killer.” If the reported comment by a Novartis manager is true, it reveals a far more sinister possibility: the mere existence of flexible schedules may result in women being discriminated against from the outset, based on fear that they might actually use them.

As I’ve posted before, making an employment decision because of mere assumptions about a woman’s caregiving responsibilities and how that might affect her performance, is sex discrimination, plain and simple. It’s been labeled as Family Responsibility Discrimination or Caregiver Discrimination, and if it’s not based on actual performance, it’s illegal. So is failure to hire or promote a woman out of fear she might eventually utilize a firm’s flex-time schedule.

If employers are going to offer flex-time schedules, they can’t discriminate against the women who elect to use them. Even worse is treating women differently based on the mere possibility that they might use them.