Lewis v heartland inns of america

Chapter 10 Sex Discrimination

Chapter Checklist

· Understand the need for a prohibition against sex discrimination to counteract historical stereotypes.

· Learn that men are also protected against sex discrimination.

· Appreciate that women are often discriminated against not solely because they are women but also because they have small children or elderly parents—that is, sex plus discrimination.

· Be aware of the limited exceptions for bona fide occupational qualifications.

· Be apprised of potential violations of the Equal Pay Act.

· Be familiar with the impracticability of comparable worth.

· Appreciate the wide latitude given to employers in setting dress codes and grooming standards.

· Learn that customer preferences are not a valid reason to discriminate on the basis of sex.

In the News

Kyle Hunter, a weatherman for Fox 5 in San Diego, sued CBS when he was passed over for job openings at KCBS in San Francisco and at KCAL in Los Angeles. He claimed that television stations placed more value on feminine attraction than on meteorology competence in the selection of television weather broadcasters.

CBS countered that Hunter’s claims are without merit.

Hunter retorted that his years of broadcasting the weather for several known weather stations as well as his membership in the Royal Meteorological Society render his credentials far superior to those of the two women hired. In fact, Hunter claimed that the two women hired to broadcast the weather had no experience at all.

1 A spokesman for CBS said that the company was well aware of Hunter’s background and decided to hire other qualified individuals. Is CBS’s preference for young, attractive women to serve as announcers of the weather forecast a form of sexual stereotyping?


Source: “Storm as Experienced TV Weatherman Sues CBS for Sex Discrimination Claiming They Favour ‘Unqualified attractive young women,’” Daily Mail (London), March 18, 2012, http://www.dailymail.co.uk/news/article-2116751/TV-weatherman-Kyle-Hunter-sues-CBS-sex-discrimination.html#ixzz1qWdAJOZM

Introduction

Case 10.1, 10.5

In the past, a person’s sex was considered a bona fide occupational qualification. Stereotypes ruled. Men were physicians, lawyers, construction workers, and police officers. Women were nurses, flight attendants, secretaries, and teachers. This arrangement had the effect of discriminating against men and women in certain job classifications. The effect on women, particularly with regard to higher-paying positions, was noticeable. Women and men must be treated equally in all aspects of employment, hiring, compensation, training, transfer, and promotions. For example, prescribing limits for lifting or carrying weight just for women or for working before or after childbirth are prohibited. Any provisions or benefits must be provided to both sexes. Job requirements must be the same for male and female candidates.

Employment Perspective

Eric Freeman is a vice president at Bulls and Bears, Inc., an investment banking firm. There is an opening for an assistant vice president to work directly underneath Freeman. There are two in-house candidates: Tom Folino, a competent securities trader with 2 years of experience, and Mary Michaels, a senior bond trader with 7 years of experience. Michaels’ experience and competence are clearly superior, but Freeman selects Folino because they have common interests. They go to the hockey games after work and have a few beers together. Freeman and Folino are both single, whereas Michaels is married with children. Freeman and Michaels have nothing in common outside of work. Does this qualify as sexual discrimination? Yes! Freeman’s decision is not based on job performance but rather on personal interests he shares with one candidate.

Men are also protected against sex discrimination, which occurs when individuals of one gender are favored in employment decisions over the other gender, under Title VII. Although men are not victimized as often as women, there are occasions when men have been treated unfavorably because of their gender.

Sex discrimination

 occurs when individuals of one gender are favored in employment decisions over the other gender.

Sex Plus Discrimination

Case 10.2

Discrimination may occur against an individual not solely because of his or her gender, but that fact coupled with another may be its cause. This is sex plus discrimination. Women with small children, women in childbearing years, and women taking care of elderly parents are all examples.

Sex plus discrimination

may occur against an individual not solely because of his or her gender, but that fact coupled with another circumstance, such as women with small children, women in their childbearing years, and women taking care of elderly parents.

As part of their interview process, some employers endeavor to discover if a female applicant has small children. It has been their experience that mothers are preoccupied with worrying about their children. In addition, many employers believe if the child becomes ill or gets hurt, the mother will leave work immediately. This behavior can be disruptive to the workplace. For that reason, the employer may nonchalantly ask the female applicant where her children go to school. The response will indicate whether the woman has children and, if so, what their ages are. The employer can then generally refuse her or deny her for another reason. This is discriminatory behavior.

Bona Fide Occupational Qualification (BFOQ)

Case 10.3, 10.4

The bona fide occupational qualification (“BFOQ”) operates as a defense to a suit for discrimination with regard to religion, national origin, gender, or age. The first three defenses are found in Title VII, while the age BFOQ is found in the Age Discrimination in Employment Act (“ADEA”). The courts have narrowly construed this defense, limiting it to job requirements that are essential to the job or are at the core purpose of the business. Mere job relatedness is not sufficient.

Bona fide occupational qualification (“BFOQ”)

operates as a defense to a suit for discrimination with regard to religion, national origin, gender, or age. The courts have narrowly construed this defense, limiting it to job requirements that are essential to the job or are at the core purpose of the business.

Employment Perspective

Nancy Hartwick attended Podunk University, where she was a star basketball player. She later became a women’s basketball coach at Premier College, where she won the national championship four times. When a vacancy arose for the men’s basketball coach at her alma mater, she applied. Although Podunk’s administration had fond affection for Hartwick, they refused her application after consulting the school’s students, players, and alumni. The students and alumni said that they would boycott the games. The players said they would have no confidence in her ability. Hartwick claimed sex discrimination. Podunk argued that requiring a man to fill the position of men’s basketball coach is a BFOQ. Is it correct? No! The preference of the constituents of Podunk does not qualify as a BFOQ. Nancy Hartwick’s qualification must be judged on its face alone. Gender preference may not play a part.

Employment Perspective

Gail Dudack is a sports reporter for the Minnesota Moon, an evening daily newspaper. Dudack had been covering women’s sporting events, but now with the retirement of Charlie Scofield, she has been elevated to the major team sports. Her first assignment is a pro basketball game. During the game, Shorty Williams scores his 25,000th point. After the contest, all the reporters are rushing into the locker room to interview Williams. Dudack is refused entry because the men are changing and showering and she is a woman. Dudack files a claim with the Equal Employment Occupation Commission (“EEOC”), alleging pro basketball is discriminating against women reporters. The team argues that the closed-door policy toward women is a BFOQ. Is her claim viable? Yes! The locker-room policy makes it impossible for a woman to be a first-rate reporter. The team must either allow unrestricted entry or forbid all reporters from the locker room and conduct all interviews in the pressroom where equal access canbe given.

Employment Perspective

Roger Bishop is a registered nurse at Sumner County Hospital. Bishop is on duty one evening when Mildred Dirkson calls for assistance. When Bishop attempts to assist Dirkson, she admonishes him that she called for a nurse. Bishop explains that he is a nurse, but she wants no part of him. Bishop asks Dirkson about the fact that she would have no problem having him touch her if he were a physician. The next day Dirkson’s family complains to the hospital administration, and Bishop is assigned to an all-male ward. The hospital justifies its action by asserting it is a BFOQ. Bishop claims that this behavior is discriminatory because female nurses are not confined to servicing exclusively female patients. Who is correct? Bishop! The hospital’s action was not justified. BFOQs do not apply to one sex but not the other. Hospitals cannot discriminate in deference to their patients’ preferences. The patients must accept the hospital staff as long as those individuals are qualified. What if Dirkson’s request concerned applying medication to or washing the genital area? Every accommodation should be made in this regard if there are female nurses available. Respecting privacy is important. But patients who are hospitalized are attended by the physicians on duty, and these physicians, who are predominantly male, view a patient’s private parts if the need arises and the patient’s private physician is not available. So too with nurses. Another option is for Dirkson to hire a private-duty female nurse.

Customer Preferences

Although we are in an age in which customer service and satisfaction rule, acceding to customer preferences for service by one gender to the exclusion of the other is contradictory to Title VII’s prohibition against gender discrimination.

Employment Perspective

Tooters, a sports bar and restaurant chain known for its voluptuous female servers, has recently received applications from Ken, Frank, and Nick, who seek employment as servers. Tooters polls its clientele, who resoundingly state that they will no longer frequent the premises if male servers appear. Tooters denies the positions to Ken, Frank, and Nick because of their gender. Ken, Frank, and Nick sue for sex discrimination, arguing that as long as they are otherwise qualified, they cannot be refused employment on the basis of their gender. Is the customer always right, and will Ken, Frank, and Nick be working at Tooters? Tooters would have to prove that its business is primarily entertainment that requires females to dress provocatively. This issue has been left in doubt in light of a settlement in a case involving a similar situation against Hooters Restaurant.

Job selection cannot be based on customer preference for a particular gender; otherwise, it is discriminatory.

Employment Perspective

Thomas Stockwell applies for a position with Workouts for Women Only, a health club exclusively for women. He is denied employment because he is a man. The proprietors are concerned with respecting the privacy rights of women. They argue that requiring only women employees is a BFOQ. Stockwell argues that assisting women with fitness instruction, teaching aerobics, and performing desk duties do not qualify as a BFOQ. Besides, he adds, there are female employees available for locker-room maintenance. Is he correct? Yes! The preference of women customers to refrain from working out in front of men does not qualify as a BFOQ sufficient enough to override perpetuating discrimination against men by requiring their exclusion from employment.

Equal Pay

Case 10.6, 10.7

The Equal Pay Act of 1963 is an amendment to the Fair Labor Standards Act, which regulates child labor, minimum wage, and overtime pay. The Equal Pay Act prohibits the payment of different wages to men and women who are performing the same job. This Act covers all types of job categories from clerical to executive. The jobs must be equal with regard to skill, knowledge, or experience, and the conditions under which the work is performed must be similar. For example, a person working overseas is entitled to a pay differential for the same job performed domestically.

In the News

The Lilly Ledbetter Fair Pay Restoration Act of 2009 (“the Act”) reversed a 2007 U.S. Supreme Court decision bearing Ledbetter’s name that restricted the filing of claims for pay discrimination to 180 days from the day of hiring. Often employees do not learn of the pay disparity until much later. President Barack Obama, who signed the bill, lamented that the U.S. Supreme Court ruling cost Lilly Ledbetter more than $200,000 in wages and benefits. The Act allows employees to file a claim within 180 days of receipt of each paycheck that the employee believes is unjust.

President Obama explained that this bill is designed to bring equality to wages earned by women in the workplace. Women earn only slightly more than three quarters of what men earn. Minority women earn even less. This amounts to tens of thousands of dollars over a woman’s work life.

1 Both the House (250–177) and the Senate (61–36) passed the Act prior to President Obama’s historic signing. What protection does this Act offer for employees who do not become aware of a pay disparity until many years later?


Source: Christina Bellantoni, “Obama Signs His First Law on Equal Pay in Workplace; Act Amends Window to File Legal Claims,” Washington Times, January 30, 2009, p. A6.

Comparable Worth

Comparable worth is an attempt to assign values to male-dominated and female-dominated jobs based on worth. Where the values are equated, equal pay would be required. The theory behind this doctrine was that most female-dominated jobs pay less than male-dominated jobs. This argument has not found favor with the courts because assigning values is arbitrary and interferes with payments based on supply and demand.

Dress and Grooming Policies

When employers attempt to regulate grooming—that is, length of hair, beards, and mustaches—courts have usually found in favor of the employer. Their reasoning is that grooming codes are more closely related to the manner in which an employer decides to operate its business than to equal opportunity. Good grooming standards have always been required in the business world. Imagine walking into a bank and seeing a long-haired branch manager who has not shaved or showered and is wearing jeans and a wrinkled shirt. This kind of appearance is not allowed because it would not be a good business policy. Customers may lose confidence in the bank and move their accounts elsewhere.

Arguments against grooming codes have come in the form of the First Amendment’s rights of speech through personal expression, the Fourteenth Amendment Equal Protection clause, and Title VII’s provision regarding terms and conditions of employment.

Employment Perspective

Richard Masters is 29 years old, and he is becoming bald. He is very self-conscious, so he has started wearing a hat all the time. Masters works as a bond trader for Bulls and Bears, Inc. Although his manager empathizes with Masters’s dilemma, Masters is told to remove the hat while in the office. Masters objects, claiming that baldness is a disability, and he files a claim with the EEOC. Will he win? Probably not! Masters is not being subjected to discrimination because of his disability. If Masters is harassed by co-workers, he may register a complaint of harassment. That is not the problem here, though. It revolves around Masters’s vanity and his own perception of himself. This reasoning cannot outweigh Bulls and Bears’s maintenance of dress codes as the way it conducts its business.

Employment Perspective

Mary Jo Worthington, a longtime customer at Grasmere Bank, is informed by Felix Farnsworth that he will be leaving the branch for a new position. On Monday, his replacement will begin work. When Worthington enters the bank on Monday, she is horrified to see a man with long hair who has neither showered nor shaved; is wearing jeans, cowboy boots, and a T-shirt; and is sitting behind Farnsworth’s former desk. The scruffy man smiles and then introduces himself as Jesse Mickelson, new branch manager. Worthington dashes out of the bank and calls its customer service department, reporting what she saw. Mickelson is informed of the bank’s grooming policy and is told never to be seen like that again. The next day, Mickelson looks the same and, therefore, is immediately terminated. He files a Title VII claim with the EEOC, asserting that his actions are protected by freedom of speech through personal expression. Mickelson also claims that the grooming policy as a term and condition of employment is discrimination. Is he correct? No! Although there have been conflicting cases, the bank will be able to enforce its grooming policy because it is requiring of Mickelson only what is considered to be the norm in U.S. business. He is not being deprived of an equal opportunity. He is only being asked to conform to the generally accepted standards of society.

Ethical Issue

The Case of Dressing for Success

A man named Lockhart wore facial jewelry to work. His supervisor informed him that this was prohibited, citing a company dress and grooming rule that permitted women facial jewelry but denied it to men. Lockhart was terminated after he refused to comply. Lockhart argued that this policy discriminates against men. Louisiana-Pacific Corp. retorted that treating men and women differently because of characteristics that are unalterable is discriminatory. However, it asserted that length of hair, use of jewelry, and choice of attire do not fit into that narrow exception. Lockhart v. Louisiana-Pacific Corp., 795 P2d 602 (Or. App. 1940).

Questions

1 Was Lockhart’s conduct ethical?


2 Should this matter have been considered serious enough to require Lockhart’s discharge?


3 Is the use of dress codes ethical?


Employment Perspective

Sonja Hendricks was a trader at First Financial in Buffalo. The company dress code requires women to wear skirts, dresses, or suits with skirts. In the winter, the temperature is often below freezing. Hendricks wore pants to keep her legs warm. First Financial dismissed her for being uncooperative. Hendricks claimed that the dress code manifested sex discrimination because it forced women to show their legs and to be subjected to the cold weather. Is she correct? Probably! This restriction places an undue burden on women in that it does not give them the choice to protect themselves from the cold during the winter months. First Financial’s business reasons are not paramount to a woman’s health. However, First Financial may suggest that women wear leg warmers or tights under their skirts or dresses and then remove them upon arriving at work. There is no definitive answer to this scenario.

Brenna Lewis v. Heartland Inns of America, L.L.C.

591 F.3d 1033; 2010 U.S. App. LEXIS 1283 (8th Circuit)

Case 10.1

The issue is whether sexual stereotyping is permissible in the workplace.

Murphy, Circuit Judge.

Alleging that she lost a job she had done well, solely because of unlawful sex stereotyping, Brenna Lewis brought this action for sex discrimination and retaliation against her former employer Heartland Inns of America, its Director of Operations and its Human Resource Director (collectively Heartland) based on Title VII and state law. The district court granted summary judgment to Heartland. We reverse and remand.

A summary judgment must be reviewed de novo, “viewing the evidence in the light most favorable to the nonmoving party and giving that party the benefit of all inferences that may reasonably be drawn.”

Heartland Inns operates a group of hotels, primarily in Iowa. Brenna Lewis began work for Heartland in July 2005 and successfully filled several positions for the chain for a year and a half before the actions at issue here. She started as the night auditor at Heartland’s Waterloo Crossroads location; at that job she worked at the front desk from 11:00 p.m. to 7:00 a.m. There were also two other shifts for “guest service representatives”: the A shift from 7:00 a.m. to 3:00 p.m. and the B shift from 3:00 p.m. to 11:00 p.m. Lewis’ manager at Waterloo Crossroads, Linda Gowdy, testified that Lewis “did her job well” and that she had requested a pay raise for her. Heartland recorded two merit based pay raises for Lewis. The record also indicates that Gowdy received a customer comment praising Lewis.

On or about December 7, 2006, Lewis began working various part time front desk shifts at Heartland Inns located near Des Moines, including at Ankeny and Altoona. At both locations she was valued by her direct supervisors. Her manager at the Altoona hotel, Jennifer Headington, testified that Lewis “made a good impression[.]” She offered her a full time night auditor position after receiving telephone permission from Barbara Cullinan, Heartland’s Director of Operations. Lori Stifel, Lewis’ manager at the Ankeny hotel, testified in her deposition that Lewis did a “great job” in Ankeny, “fit into the [front desk] position really well” and was well liked by customers. Stifel received permission over the phone from Cullinan on December 15 to offer Lewis a full time A shift position. Neither Headington nor Stifel conducted an interview of Lewis before extending their offers, and the record does not reflect that Cullinan ever told them a subsequent interview would be necessary. Lewis accepted the offer for the A shift at Ankeny and began training with her predecessor, Morgan Hammer. At the end of December 2006 Lewis took over the job.

Lewis’ positive experience at Heartland changed only after Barbara Cullinan saw her working at the Ankeny desk. As the Director of Operations, Cullinan had responsibility for personnel decisions and reported directly to the general partner of Heartland. She had approved the hiring of Lewis for the Ankeny A shift after receiving Stifel’s positive recommendation. After seeing Lewis, however, Cullinan told Stifel that she was not sure Lewis was a “good fit” for the front desk. Cullinan called Stifel a few days later and again raised the subject of Lewis’ appearance. Lewis describes her own appearance as “slightly more masculine,” and Stifel has characterized it as “an Ellen DeGeneres kind of look.” Lewis prefers to wear loose fitting clothing, including men’s button down shirts and slacks. She avoids makeup and wore her hair short at the time. Lewis has been mistaken for a male and referred to as “tomboyish.”

Cullinan told Stifel that Heartland “took two steps back” when Lewis replaced Morgan Hammer who has been described as dressing in a more stereotypical feminine manner. As Cullinan expressed it, Lewis lacked the “Midwestern girl look.” Cullinan was heard to boast about the appearance of women staff members and had indicated that Heartland staff should be “pretty,” a quality she considered especially important for women working at the front desk. Cullinan also had advised a hotel manager not to hire a particular applicant because she was not pretty enough. The front desk job description in Heartland’s personnel manual does not mention appearance. It states only that a guest service representative “[c]reates a warm, inviting atmosphere” and performs tasks such as relaying information and receiving reservations.1

In her conversation with Stifel about Brenna Lewis, Cullinan ordered Stifel to move Lewis back to the overnight shift. Stifel refused because Lewis had been doing “a phenomenal job at the front desk[.]” The following week, on January 9, 2007, Cullinan insisted that Lori Stifel resign. Around this time, Heartland informed its general managers that hiring for the front desk position would require a second interview. Video equipment was also purchased to enable Cullinan or Kristi Nosbisch, Heartland’s Human Resource Director, to see an applicant before extending any offer. When Lewis’ former manager at Altoona, Jennifer Headington, raised a question about the new arrangements, Cullinan answered that “[h]otels have to have a certain personification and appearance.”

Cullinan met with Brenna Lewis on January 23, 2007. At this point Lewis had held the front desk job for nearly a month after Cullinan’s initial approval of her hire for the position. The record contains no evidence of any customer dissatisfaction with Lewis or her service. Nevertheless, Cullinan told Lewis at the meeting that she would need a second interview in order to “confirm/endorse” her A shift position. Lewis was aware from Lori Stifel of what had been said about her appearance, and she protested that other staff members had not been required to have second interviews for the job. Lewis told Cullinan that she believed a second interview was being required only because she lacked the “Midwestern girl look.” She questioned whether the interview was lawful, and she cried throughout the meeting.

Cullinan wanted to know who had told Lewis about the comment and asked whether it was Lori Stifel. Thereafter Cullinan talked about the need for new managers when revenue is down like in Ankeny, where Stifel was the manager. Lewis responded that recent policy changes by Heartland, including bans on smoking and on pets, might explain the loss in revenue. Cullinan then encouraged Lewis to share more of her views about the new policies and took notes on what she said. Three days later, Lewis was fired.

Lewis does not challenge Heartland’s official dress code, which imposes comparable standards of professional appearance on male and female staff members, and her termination letter did not cite any violation of its dress code. The theory of her case is that the evidence shows Heartland enforced a de facto requirement that a female employee conform to gender stereotypes in order to work the A shift. There was no such requirement in the company’s written policies.

In its termination letter to Lewis, Heartland asserted that she had “thwart[ed] the proposed interview procedure” and exhibited “host[ility] toward Heartland’s most recent policies[.]” Lewis denies those charges and denies that those were the real reasons for her discharge. There were no customer complaints about Lewis’ performance as a desk clerk. Nor had there been any disciplinary action against her before she was fired. Lewis asserts that Heartland terminated her for not conforming to sex stereotypes and contends that this conduct violated Title VII of the Civil Rights Act of 1964 and the Iowa Civil Rights Act of 1965 (ICRA).

Heartland was not entitled to prevail on summary judgment unless it showed that plaintiff Brenna Lewis had not produced direct or circumstantial evidence which could reasonably support an inference of discrimination.

To make a prima facie case under the McDonnell Douglas framework, Lewis had to show that “(1) she was a member of the protected group; (2) she was qualified to perform the job; (3) she suffered an adverse employment action; and (4) circumstances permit an inference of discrimination.” Such a showing creates a presumption of unlawful discrimination, requiring Heartland to produce a legitimate nondiscriminatory reason for its employment action. The burden then returns to Lewis to prove that Heartland’s proffered reason for firing her is pretextual. The parties agree that Lewis’ ICRA and federal claims are analytically indistinguishable.

The Supreme Court has stated that “[t]he critical issue” in a sex discrimination case 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.”

We recognize that “[r]emarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision.” Lewis met this burden at the summary judgment stage. She provided evidence that the comments she cites were not “stray remarks in the workplace, statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself[.]”

Cullinan was a primary decisionmaker with authority to hire and fire employees. While several individuals also took part in the decision to terminate Lewis, they relied on Cullinan’s description of her January 23, 2007, conversation with Lewis. Cullinan consistently indicated that female front desk workers must be “pretty,” and she criticized Lewis’ lack of the “Midwestern girl look” in the same conversation in which she ordered Stifel to move Lewis back to the night audit. Cullinan authorized Stifel to hire Lewis over the phone, but demanded a “confirm/endorse” interview once she saw Lewis’ “tomboyish” appearance. She demanded Stifel’s resignation after she refused to remove Lewis from her position.

Evidence that Heartland’s reason for the termination were pretextual include the fact that Lewis had a history of good performance at Heartland. She had no prior disciplinary record and had received two merit based pay raises. The two individuals who supervised her during the majority of her employment at Heartland both stated that they had no problem with her appearance, and at least one customer had never seen customer service like that Lewis had provided. On this record, a factfinder could infer a discriminatory motive in Heartland’s actions to remove Lewis.

In addition to establishing a prima facie case of discrimination, Lewis has also shown a genuine factual dispute about whether Heartland’s legitimate nondiscriminatory reason for her termination was pretextual.

On the record here, a reasonable factfinder could disbelieve Heartland’s proffered reason for terminating Lewis. Heartland asserts that it fired Lewis because of the January 23 meeting when Cullinan informed her that she would need to submit to a second interview. Lewis and Cullinan, the only two individuals in the room, portray the encounter in starkly different terms. On summary judgment we must construe the conversation in the light most favorable to Lewis, however. Lewis denies that she expressed hostility to Heartland’s policies or spoke in a disrespectful way or took an argumentative stance or refused to participate in a second interview. It is also relevant that the meeting occurred after Cullinan had given Stifel the understanding that “[Lewis’] appearance . . . was not what [she] wanted on the front desk” and after Stifel had shared that discussion with Lewis.

Shortly after Cullinan’s conversation with Stifel about Lewis’ appearance, Heartland procured video equipment so that Cullinan or Nosbisch could inspect a front desk applicant’s look before any hiring. Heartland’s termination letter to Lewis only relied on the January 23 meeting she had with Cullinan. Only later did Heartland allege poor job performance would justify her termination. Lewis asserts further that Heartland did not follow its own written termination procedure, which includes assessing the employee’s previous disciplinary record (Lewis had none) and conducting an investigation before making the termination decision. Kristi Nosbisch, Heartland’s equal employment officer responsible for directing investigations of employment discrimination, knew that Lewis had complained that Cullinan’s requirements were illegal, but she nonetheless relied on Cullinan’s account of their meeting without asking Lewis for her own.

At this stage of the case, the question is not whether Lewis will prevail on her claim but rather whether she has offered sufficient evidence from which a reasonable factfinder could find that she was discriminated against because of her sex. We conclude that she has, for “an employer who discriminates against women because . . . they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex.” Companies may not base employment decisions for jobs such as Lewis’ on sex stereotypes, just as Southwest Airlines could not lawfully hire as flight attendants only young, attractive, “charming” women “dressed in high boots and hot-pants[.]”

As the Supreme Court stated, “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group[.]”

We turn next to Lewis’ retaliation claim. Title VII prohibits employers from retaliating against employees who oppose discriminatory practices. The burden shifting McDonnell Douglas analytical framework applies to this inquiry as well, beginning with the three elements of a prima facie case of retaliation, whether: (1) the plaintiff engaged in protected conduct, including opposition to an action prohibited by Title VII; (2) she was subjected to an adverse employment action, and (3) there is a “causal nexus between the protected conduct and the adverse action.”

In making out a prima facie retaliation claim, Lewis need not prove the merits of the underlying claim of sex discrimination. She can establish protected conduct “as long as [she] had a reasonable, good faith belief that there were grounds for a claim of discrimination[.]” Lewis went into the January 23 meeting with Cullinan after learning about the “Midwestern girl look” comment. Lewis had already held her job for nearly a month and understood that other transferred employees in her situation had not been required to submit to a second interview. She observed Cullinan grow defensive after she asked her about the “Midwestern girl look” comment.

Heartland argues that its official policy dictated a second interview, but Lewis has raised a genuine fact issue about whether Heartland imposed second interviews in similar circumstances before January 2007 and whether Heartland began doing so in relation to Cullinan’s interaction with Lewis. Heartland suggests that Lewis’ comments during the January 23 meeting did not actually oppose any unlawful practice. Cullinan testified, however, that Lewis had “emphatically stated that she thought it was illegal for us to ask her to interview, and illegal for us to schedule her to another shift” and that Lewis said she thought the interview demand was because of her appearance. These statements cannot reasonably be characterized as anything other than opposition to illegal action.

No one questions that Lewis was subjected to an adverse employment action, and there is ample record evidence to support a causal nexus between that and Lewis’ protests at the January 23 meeting. Lewis received the termination notice a mere three days after the disputed conversation, and Heartland cited her objection to the second interview in her termination notice. The evidence of pretext already discussed applies with equal force in evaluating whether Lewis has made out a prima facie retaliation claim.

In sum, we conclude that Lewis has presented sufficient evidence to make out a prima facie case on her claims for sex discrimination and retaliation and a sufficient showing at this stage that Heartland’s proffered reason for her termination was pretextual. Accordingly, we reverse the judgment of the district court and remand for further proceedings.

Judgment for Lewis.

Case Commentary

The 8th Circuit determined that an employer that uses sexual stereotyping as a reason for discharging an employee is guilty of sex discrimination.

Case Questions

1 Are you in agreement with the court’s decision?


2 Is feminine appearance a justifiable criterion in employment selection?


3 Is there an ethical resolution to this dilemma?


Laurie Chadwick v. WellPoint, Inc.

561 F.3d 38; 2009 U.S. App. LEXIS 6426 (U.S. Court of Appeals First Circuit)

Case 10.2

The issue is whether Laurie Chadwick was overlooked for the promotion because she had small children.

Stahl, Circuit Judge.

Laurie Chadwick brought a claim of sex discrimination under Title VII against WellPoint, Inc. after she was denied a promotion. She alleged that her employer failed to promote her because of a sex-based stereotype that women who are mothers, particularly of young children, neglect their jobs in favor of their presumed childcare responsibilities.

Chadwick was a long-time employee of WellPoint, an insurance company, in its Maine office. She was hired by WellPoint in 1997, and was promoted in 1999 to the position of “Recovery Specialist II,” which involved the pursuit of overpayment claims and claims for reimbursement from third parties. In 2006, encouraged by her supervisor, she applied for a promotion to a management position entitled “Recovery Specialist Lead” or “Team Lead.” In this position, the successful candidate would be responsible for the recovery function for the region encompassing Maine, New Hampshire, and Connecticut. Because Chadwick was already performing several of the responsibilities of the Team Lead position and based on her supervisor’s comments, Chadwick believed she was the frontrunner for the position. In addition, on her most recent performance evaluation in 2005, she had received excellent reviews, scoring a 4.40 out of a possible 5.00 points.

There were two finalists for the Team Lead position, Chadwick and another in-house candidate, Donna Ouelette. While Chadwick had held the Recovery Specialist II position for seven years, Ouelette had only been promoted to that position about a year earlier. In addition, Ouelette had scored lower than Chadwick, though satisfactorily, on her most recent performance review, receiving a 3.84 out of a possible 5.0 points.

Three managers interviewed the two finalists: Linda Brink, who had previously supervised and worked closely with Chadwick; Dawn Leno, the Director of Recovery; and Nanci Miller, Chadwick’s immediate supervisor. Nanci Miller was the ultimate decisionmaker for the promotion but she considered input from Brink and Leno in reaching her decision. Based on her own perceptions and those of Brink and Leno, Miller graded Ouelette’s interview performance higher than Chadwick’s. Miller subsequently offered the promotion to Ouelette over Chadwick.

At the time of the promotion decision, Chadwick was the mother of an eleven-year-old son and six-year-old triplets in kindergarten. There is no allegation, insinuation, or for that matter evidence that Chadwick’s work performance was negatively impacted by any childcare responsibilities she may have had. Indeed, Miller, the decisionmaker, did not know that Chadwick was the mother of young triplets until shortly before the promotion decision was made. Apparently, Chadwick’s husband, the primary caretaker for the children, stayed home with them during the day while Chadwick worked. He also worked off-hour shifts, presumably nights and weekends, when Chadwick was at home with the children. During the same period, Chadwick was also taking one course a semester at the University of Southern Maine.

Chadwick alleges that WellPoint denied her the promotion based on the sex-based stereotype that mothers, particularly those with young children, neglect their work duties in favor of their presumed childcare obligations. To support this claim, Chadwick points to the fact that she was significantly more qualified for the promotion than was Ouelette, and also highlights three statements made by management around the time of the promotion decision.

First, on May 9, 2006, two months before the decision was reached, Miller, the decisionmaker, found out that Chadwick had three six-year-old children (in addition to an eleven-year-old son). Miller sent an email to Chadwick stating, “Oh my—I did not know you had triplets. Bless you!”

Second, during Chadwick’s interview with Brink, her former supervisor, she was asked how she would respond if an associate did not complete a project on time. Unhappy with Chadwick’s answer, Brink replied, “Laurie, you are a mother[.] [W]ould you let your kids off the hook that easy if they made a mess in [their] room[?] [W]ould you clean it or hold them accountable?”

Third, and most important, when Miller informed Chadwick that she did not get the promotion, Miller explained:

It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.

In her deposition, Miller said that she decided not to promote Chadwick because she interviewed poorly, and that she (Miller) only told Chadwick that she had “too much on her plate” in an ill-advised attempt to soften the blow.

Here, Chadwick alleges that the subclass being discriminated against based on sex is women with children, particularly young children. Ultimately, regardless of the label given to the claim, the simple question posed by sex discrimination suits is whether the employer took an adverse employment action at least in part because of an employee’s sex.

In the simplest terms, unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. It is undoubtedly true that if the work performance of a woman (or a man, for that matter) actually suffers due to childcare responsibilities (or due to any other personal obligation or interest), an employer is free to respond accordingly, at least without incurring liability under Title VII. However, an employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.

Particularly telling is Miller’s comment that, “It was nothing you did or didn’t do.” After all, the essence of employment discrimination is penalizing a worker not for something she did but for something she simply is. A reasonable jury could infer from Miller’s explanation that Chadwick wasn’t denied the promotion because of her work performance or her interview performance but because Miller and others assumed that as a woman with four young children, Chadwick would not give her all to her job.

This inference is supported by several facts. First, the decisionmaker learned of Chadwick’s three six-year-olds just two months before she denied Chadwick the promotion. The young age and unusually high number of children would have been more likely to draw the decisionmaker’sattention and strengthen any sex-based concern she had that a woman with young children would be a poor worker.

In sum, we find that Chadwick has put forth sufficient evidence of discrimination that a reasonable jury could conclude that the promotion denial was more probably than not caused by discrimination. We only conclude that Chadwick has presented sufficient evidence of sex-based stereotyping to have her day in court. Given the common stereotype about the job performance of women with children and given the surrounding circumstantial evidence presented by Chadwick, we believe that a reasonable jury could find that WellPoint would not have denied a promotion to the new job, given “the kids” and her schooling.

Case Commentary

The First Circuit ruled that the statements referencing Chadwick’s motherhood were sufficient for a jury to conclude that she was denied a promotion because of her small children.

Case Questions

1 Are you in accord with the court’s reasoning?


2 Do you believe Miller was trying to soften the blow when she referenced Chadwick’s children?


3 If Chadwick received the promotion, would WellPoint have to accommodate her with regard to the needs of her children?


Ersol L. Henry and Terri J. Lewis v. Milwaukee County

539 F.3d 573; 2008 U.S. App. LEXIS 17724 (U.S. Court of Appeals Seventh Circuit)

Case 10.3

The issue is whether a policy requiring officers to be of the same sex as the juveniles they are supervising on the night shift is a BFOQ.

Ripple, Circuit Judge.

In 1997, Milwaukee County’s Juvenile Detention Center (JDC) instituted a policy that required each unit of the facility to be staffed at all times by at least one officer of the same sex as the detainees housed on that unit. Because there were far more male units than female units at the facility, this policy had the effect of reducing the number of shifts available for female officers. Ersol Henry and Terri Lewis, both female officers at the facility, brought this action in the United States District Court for the Eastern District of Wisconsin, alleging sex discrimination and retaliation in violation of Title VII. After a bench trial, the district court concluded that the gender-specific policy was based on a bona fide occupational qualification and that no other discrimination or retaliation had occurred; accordingly, it entered judgment in favor of the County. For the reasons set forth in this opinion, we reverse the judgment of the district court.

The new JDC contains common rooms, classrooms and recreation rooms where the juveniles spend the majority of their daytime hours. At night, however, the juveniles are confined to their living areas, which are assigned based on their sex, age and classification.

The living areas at the new facility are organized into seven single-sex “pods.” Each can accommodate between 11 and 22 juveniles of the same sex. Each pod consists of a number of individual cells, a control center desk from which the staff can monitor the cells and communicate with the pod via intercom, and a common area or “day room” with tables, chairs and a television. The individual cells each contain a bed, a toilet, a desk and a small storage area. The entire cell, including the toilet, is visible from the outside through a window in the cell door.

Prior to the move to the new facility, JCOs (juvenile correction officers) had been assigned to shifts without regard to the sex of the officer. Mr. Wanta’s new policy, however, required that each pod be staffed at all times by at least one JCO of the same sex as the juveniles housed on the pod. During the day shifts, when two JCOs staffed each pod, one of the two JCOs could be of the opposite sex; however, during the night shifts, when only one JCO staffed each pod, the sole JCO on duty had to be of the same sex as the juveniles in the pod. Because the JDC housed far more male juveniles than female juveniles, Mr. Wanta’s same-sex role model/mentoring policy afforded male JCOs more opportunities for work than those available to female JCOs. The night shift was particularly problematic. It was perceived as the easiest shift; those officers assigned to it received premium pay; and it afforded the most opportunities for overtime.

During the time of their employment as JCOs, Ms. Henry and Ms. Lewis primarily worked one of the day shifts. Prior to 1997, however, they each had earned a substantial amount of additional income from voluntary overtime, predominantly by working the night shift. According to a collective bargaining agreement, voluntary overtime at the JDC traditionally had been apportioned according to seniority. Employees with the most seniority could “put in” for overtime, and they would receive the first opportunities to work their preferred shifts. Ms. Lewis and Ms. Henry were relatively senior employees, and they often were able to work overtime at the old JDC.

After Mr. Wanta instituted the same-sex pod policy, however, far fewer women were allowed to work the third shift because there were far fewer female pods than male pods at the facility. As a result of the same-sex role model/mentoring program, most of the available night shifts with premium pay were reserved for male employees. Female officers like Ms. Henry and Ms. Lewis no longer were able to get the same number of overtime hours as they previously had received. Instead, male employees with less seniority were allowed to work these shifts. Consequently, Ms. Henry and Ms. Lewis received significantly less compensation than they had received prior to the institution of the same-sex role model/mentoring program.

Ms. Henry and Ms. Lewis brought this action in the district court. They alleged that, in violation of Title VII, they had been denied overtime assignments on the third shift at the JDC because of their sex.

We agree that the administrators of juvenile detention facilities, like the administrators of female correctional facilities, are entitled to substantial deference when fashioning policies to further the goals of the facility. We do not agree, however, that the discretion accorded to these individuals in either context is effectively unlimited. A defendant ultimately must introduce sufficient evidence to prove that the administrator’s judgment—that a particular sex classification is reasonably necessary to the normal operation of the institution—is “the product of a reasoned decision-making process, based on available information and experience.”

We must conclude that Milwaukee County’s contention that sex-based assignments are reasonably necessary to achieve these goals, at least on the third shift, is not supported by the record before us. The employer, Milwaukee County, has the burden to demonstrate that it could not rearrange job responsibilities to eliminate or minimize the conflict between the inmates’ privacy, security and rehabilitation interests and the employees’ rights under Title VII.

The evidence in the record does not support the conclusion that the juveniles’ safety or security, or the institution’s ability to manage risk effectively, was at all in jeopardy because of the presence of opposite-sex JCOs on the third shift. The record establishes, however, that there has not been a single instance of staff-on-inmate sexual assault at the JDC, on any shift, by either sex; nor has there been a significant problem with false accusations against the staff. Furthermore, other safety precautions, such as door alarms and the presence of supervisors, runners and video cameras, currently are working to prevent actual and alleged security breaches. Although Milwaukee County contends that a staff member may be able to circumvent the alarm system in order to enter a juvenile’s cell at night, the record contains no evidence that this contingency has occurred or was likely to occur at the JDC.

The record affirmatively shows that the JDC allowed JCOs of the opposite sex to monitor the pods during both of the daytime shifts. It is undisputed that the vast majority of the time that the juveniles were unclothed occurred during these daytime shifts. Showering generally took place during the second shift, when members of the opposite sex were permitted to staff the pods. The only showering that occurred on the third shift was monitored by one of the runners who performed the intake procedures. The juveniles were provided with pajamas, which they were required to wear at night. They changed into this attire on the second shift, and they changed out of it on the first shift—again, while JCOs of the opposite sex were permitted to view them. Although Milwaukee County presented testimony that third-shift JCOs occasionally viewed juveniles using the toilet, masturbating or otherwise acting out sexually, it is undisputed that this situation occurred on the first and second shifts as well.

Accordingly, we must conclude that the County failed to meet its burden to prove that the sex-based classification at issue here was reasonably necessary for the rehabilitation, security or privacy functions of the JDC. Therefore, Milwaukee’s BFOQ defense must fail. The JDC’s third shift policy adversely affected the plaintiffs’ employment. It is undisputed that overtime pay had been a significant and expected component of the plaintiffs’ compensation prior to the institution of the sex-based policy. Not only did the majority of overtime work available occur on the third shift, but the third shift also offered a fifty cent per hour pay premium. Accordingly, the dramatic reduction in the opportunity for women to work on the third shift constituted an adverse employment action. Because the JDC’s third-shift policy adversely affected the plaintiffs’ employment opportunities, we must conclude that it is in violation of Title VII.

Case Commentary

The Seventh Circuit ruled that a BFOQ did not exist because there was no evidence of any incidents concerning juveniles and officers of the opposite sex.

Case Questions

1 Do you agree with the court’s decision?


2 Why was the warden overruled if he believes this policy will prevent incidents from occurring?


3 Do you believe that if an incident occurred the warden would be allowed to implement his policy?


Gena Duckworth v. St. Louis Metropolitan Police Department

2007 U.S. App. LEXIS 17137 (8th Cir.)

Case 10.4

The issue in the case that follows is whether assigning female police officers to the nightwatch is a bona fide occupational qualification.

Benton, Circuit Judge.

Three female officers sued their superiors for gender discrimination under Title VII of the Civil Rights Act of 1964 and the Missouri Human Rights Act. The district court denied the defense of qualified immunity to the police superiors. This court reverses and remands.

After a transfer left no female officers on the night watch in District One, Captain Antoinette M. Filla asked if any female officers would work then. None volunteered. Four months later, Captain Filla assigned plaintiff Sandra Delaney to the night watch. Delaney was the least senior of the experienced female officers in the district. After working the night watch for two months, Delaney complained that her husband was called up for military duty and she had difficulty obtaining a babysitter. On February 6, 2003, Captain Filla emailed all personnel: “I believe there is a definite need for female officers on the nightwatch.” On the advice of Major Roy Joachimstaler—her immediate superior—she assigned the three plaintiffs (based on seniority) to work the night watch, initially rotating for 28-day periods.

On February 10, plaintiffs filed a grievance:

We believe it is unfair to order us based upon our gender, to rotate monthly on the night watch. This order is in violation of Rules Manual designated in Section 3.114 where it is mandated that police officers be permanently assigned to a platoon. This order is also in violation of Title VII of the Civil Rights Act of 1964 wherein it is illegal to discriminate against employees in regards to sex, when the policy is applied in terms of condition of employment including placement.

On February 14, Captain Filla explained her position in an intra-department report to the plaintiffs and her superiors:

I believe the assignment of females to all watches is imperative to the operation of any command, not just patrol operations. It is not only important that all watches in every command be as diverse as the population we serve, but also as diverse as the entire population of our police department. . . .

The unique operations of law enforcement, also requires unique responsibilities by female and male officers, responsibilities which no other profession requires. We have to consider the safety of all personnel on the street when assigning our officers to crucial positions; for example, the searching of suspects at incident scenes.

I currently have fifteen (15) female officers (6% of authorized strength) assigned to District One, with none assigned to the nightwatch. We felt it was important to have our females assigned strategically to cover several recreation brackets of all watches.

As authority, Captain Filla cited Special Order 90-S-7, which provides: “District commanders may reassign an officer from his/her assigned work schedule provided the commander has sufficient justification to do so.” Her “resolution to this Grievance is to assign three (3) female officers [plaintiffs] to the nightwatch permanently, with one in each of the three precincts.” Plaintiffs received a 10% pay increase while working the night watch.

On February 25, plaintiffs filed a second grievance claiming the permanent placement on the night watch was retaliation for their original grievance. Captain Filla rejected the grievance: “Your assignment to the nightwatch was based on the District’s needs and operations, not on personal issues.”