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Archive for the ‘sexual discrimination’ Category

Women Haven’t Gained A Larger Share Of Corporate Board Seats In Seven Years

Wednesday, December 12th, 2012

In addition to grappling with a persistent pay gap, working women also have to deal with extreme difficulty ascending to powerful corporate positions, according to a report by the research organization Catalyst. As Bryce Covert explained at The Nation:

Women held just over 14 percent of executive officer positions at Fortune 500 companies this year and 16.6 percent of board seats at the same. Adding insult to injury, an even smaller percent of those female executive officers are counted among the highest earners—less than 8 percent of the top earner positions were held by women. Meanwhile, a full quarter of these companies simply had no women executive officers at all and one-tenth had no women directors on their boards. [...]

Did this year represent a step forward? Not even close. Women’s share of these positions went up by a mere half of a percentage point or less last year. Even worse, 2012 was the seventh consecutive year in which we haven’t seen any growth in board seats and the third year of stagnation in the C-suite.

Overall, more than one-third of companies have no women on their board of directors. But economic evidence shows that keeping women out of the board room is a mistake. According to work by the Credit Suisse Research Institute, “companies with at least one woman on the board would have outperformed in terms of share price performance, those with no women on the board over the course of the past six years.”

This post was originally posted on Think Progress on December 11, 2012. Reprinted with Permission.

About the Author:  Pat Garofalo is the Economic Policy Editor for ThinkProgress.org at the Center for American Progress Action Fund. Pat’s work has also appeared in The Nation, U.S. News & World Report, The Guardian, the Washington Examiner, and In These Times. He has been a guest on MSNBC and Al-Jazeera television, as well as many radio shows. Pat graduated from Brandeis University, where he was the editor-in-chief of The Brandeis Hoot, Brandeis’ community newspaper, and worked for the International Center for Ethics, Justice, and Public Life.

Crossing the Line: The Ninth Circuit’s Guidelines for Flirting at Work

Friday, September 17th, 2010

Patrick KitchinAfter months of complaining that a female co-worker had repeatedly harassed him to have sex with her, Rudolpho Lamas’s boss offered a suggestion.  Maybe, the boss said, Rudolpho should try walking around the office singing, “I’m too sexy for my shirt.”  Everyone at work thought the situation was hilarious:  a widower turning down the explicit sexual advances of an attractive woman.  But Rudolpho Lamas and his lawyers are not laughing.

When does flirting at work cross the line and become sexual harassment under Title VII of the Civil Rights Act, Lamas’s lawyers asked.  And, does Title VII impose different standards on men and women in sexual harassment cases?  Finally, do gender stereotypes have a place in the jurisprudence of Title VII?

Earlier this month the Ninth Circuit Court of Appeals in San Francisco answered Rudolpho’s attorneys’ questions in a case involving a man who alleged he had been sexually harassed by a female co-worker in direct violation of Title VII.  (E.E.O.C. v. Prospect Airport Services (9th Cir. 9/3/2010).) The Court’s decision is interesting, not so much for its ultimate finding—that Title VII indeed provides equal protection to male and female victims of sexual harassment is well established—but for the way the Court considers socio-cultural stereotypes about gender in the context of a Title VII claim.

Before turning to the drama of E.E.O.C. v. Prospect Airport Services, a few words about the stage on which Rudolpho Lamas’s story is now playing out.

It is illegal to discriminate in the terms and conditions of employment based on the gender of a person under Title VII of the Civil Right Act.  Under Title VII, sexual harassment is considered to be a form of sex discrimination.

A Title VII sex harassment claim can be based on two theories of liability:  (1) economic quid pro quo; or (2) hostile environment.

In a typical case of quid pro quo sexual harassment, “a supervisor relies upon his [or her] apparent or actual authority to extort sexual consideration from an employee.”  Hensen v. City of Dundee 682 F.2d 897 (11th Cir. 1982). “Have sex with me,” says the supervisor, “and you’ll get that promotion.”

In a hostile work environment Title VII case, a co-worker or a supervisor’s gender-biased conduct is so severe or pervasive that the employee’s work environment is severely impacted.  “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.”  Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986). And, of course, that is what Title VII’s gender provisions guard against:  discrimination based on sex.

This month’s Ninth Circuit case was based on the second of these two Title VII liability theories.  To maintain a gender-based, hostile environment case, a worker must show that:

(1) he or she was subjected to verbal or physical conduct of a sexual nature

(2) the conduct was unwelcome, and

(3) the conduct was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir.1991)

Element 1:  Conduct of a sexual nature

Lamas presented evidence that a female co-worker repeatedly asked him to go out with her and on several occasions made explicit references to her desire to have sex with him.  She wrote to him, “I’ve been thinking of you a lot lately. I’ve been having crazy dreams about us in the bath tub yeah in the bath tub… Seriously, I do want you sexually and romantically!”

The Court had no trouble finding that the conduct was sexual.  “She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes on.  Her proposition was for sex, not a cup of coffee together.”

Having established the conduct was of a sexual nature, the Court went on to consider whether Lamas might have welcomed the conduct.

Element 2:  Welcomeness

The Court next considered how the welcomeness element of the three-part prima facie case must be proved in a case involving a male victim and female harasser.  What evidence does a male victim of sexual harassment need to present to establish that the sexual advances of a co-worker were unwelcome?  The short answer is, the same evidence a woman needs to present.

Lamas’s employer apparently argued in the lower court that men are more likely than women to welcome the sexual advances of a co-worker.  Even Lamas admitted that “most men in his circumstances” would have welcomed the invitations.  So, what did the Ninth Circuit think about this digression into cultural stereotypes?  Not much.

The Court was quick to point out that suppositions about what most men wanted at work was itself a stereotype and, thus, was not evidence of anything.  “[W]elcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.”

“Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.”  Though the reference to Marilyn Monroe is a bit old school, the message is clear and contemporary.  Men, like woman, have lots of reasons to reject sexual advances by co-workers, including religious beliefs, fear of sexual harassment lawsuits, fear of complications in the workplace, fear of pregnancy or, as the Court explained, fears about facing two decades of child support payments.  Or, the Court explained, “[Lamas] might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.”

While the Court focused on the subjectivities of welcomeness, it observed that welcomeness has an objective component as well.  To hold the employer liable under Title VII, the unwelcomeness must be communicated. The employer must be told about the harassment so it can evaluate and respond to the allegations.  “Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.”

Element 3:  Severe or Pervasive

Title VII is not a “general civility code” either.  It is not meant to protect workers against “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”  Faragher v. Boca Raton, 524 US 775 (1998).

Title VII is designed to provide legal remedies to those employees who have been subjected to significant gender-based harassment and discrimination.  In other words, it protects employees who have been subjected to sexual conduct that is severe or pervasive.

Some conduct, such as a sexual assault of a co-worker, is severe enough to provide an immediate remedy to a worker under Title VII.  A sexual assault immediately creates an abusive working environment.

Less egregious conduct can provide grounds for a Title VII claim, as well, if:  (1) it happens often; and (2) it is of such nature that it is offensive to both the victim and a reasonable person in the victim’s circumstances.

Having a co-worker flash a nude picture of himself (or herself) to you one time at a holiday party might be offensive. The one-time, alcohol-driven transgression of a co-worker would not provide grounds for a Title VII claim, however.  But what if a co-worker (male or female) constantly displayed pornography on his (or her) computer in a cubicle shared with another worker?  What if this conduct was part of an attitude that permeated the workplace with gender bias?  If the cubicle mate’s objections and complaints were ignored by the employer, and the conduct continued, it might become pervasive enough to alter the conditions of the workplace in violation of Title VII.

Most Title VII claims involve a series of such increasingly troublesome events, none of which alone would support a strong Title VII lawsuit.  But taken together, they often do.  So, on a behavioral scale ranging from off-color jokes to things you only see on Mad Men episodes, the case law teaches that the more outrageous the conduct, the fewer times it must occur to be actionable, and vice versa.  The courts treat it as a classic inverse relationship.

Putting It All Together

By looking at the all of the circumstances of the workplace in Prospect Airport Services, the Ninth Circuit found sufficient evidence of unlawful sexual harassment to send the case back to the trial court for further proceedings.   The female employee’s conduct obviously was sexual.  And Lamas made it clear that he wanted the conduct to stop.  The conduct was pervasive and had a serious negative impact on conditions at work.  Lamas’s job performance suffered.  When the harasser told her co-workers about her efforts to seduce the victim, they mocked Lamas and questioned his sexuality.  Lamas complained several times to his supervisors about the harassment, but nothing was done.

If Rudolpho Lamas can convince a jury that all of this is true, then he will have proved all of the elements of a Title VII sex harassment case.

Guidelines for Flirting at Work?

In its decision earlier this month, the Ninth Circuit made it clear it does not consider all romantic overtures, or even all sexual propositions, to constitute unlawful sexual harassment

People spend most of their waking hours with other people at their workplaces, so that is where many meet and begin social relationships, and someone has to make the first overture. Some people have more social finesse than others, and many might suggest coffee or a trip to an art exhibition rather than sex, but mere awkwardness is insufficient to establish the “severe or pervasive” element.

Directly propositioning a co-worker to have sex might be incredibly cheeky and against company policy (it could get a person fired), but it does not violate Title VII.  “Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.”

Does this mean that acting like a normal, socio-sexual human being at work is legal under federal law?  Undoubtedly so; but the definition of normal remains as subject to context, credibility and the uncertainties of the civil litigation system as ever before.

Has the Ninth Circuit now established federal guidelines for flirting at work that are applicable to men and women across the country?  Not really.  But, what the Court has done is to restate well established principles of law: men and women have identical employment rights, as well as identical burdens of proof, in sexual harassment cases brought under the Civil Rights Act.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere. For more information about his practice you can visit his website here.

Employee Rights Short Takes: Hostile Work Environment, GINA, FMLA And More

Thursday, June 3rd, 2010

Here are a few Short Takes worth sharing:

Sex Bias Case Ends With Huge Punitive Damages Award

The drug maker Novartis was hit with $250 million in punitive damages last week because of discrimination against thousands of female sales representatives. Issues involved discrimination in pay, promotion and pregnancy. The punitive damages award represented 2.6 of the company’s 2009 $9.5 billion revenue. Earlier in the week, the jury awarded $3.3 million dollars in compensatory damages to 12 of the women who testified. The case is reported to be the largest discrimination verdict ever.

Genetics Discrimination

Complaints were filed against MX Energy, a Connecticut natural gas retailer, under Title II of  Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment. The new federal law took effect on November 21, 2009.

GINA prohibits discrimination against employees or applicants because of genetic information. GINA also restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The charging party Pamela Fink, claims that her employer fired her, despite years of glowing evaluations, after learning she tested positive for the breast cancer gene. Fink filed complaints against her employer with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission. About 90 GINA-related complaints have been filed nationwide since the law went into effect. This should be an interesting case to follow. For more about genetic discrimination, read here.

Rights Of Undocumented Workers

With all the talk about illegal immigration, one might wonder what the rights are of the over eight million undocumented workers in this country. Carolina Nunez, a law professor at Brigham Young University’s Reuben Clark Law School, wrote an interesting article about the topic which you can read here. The piece appeared in the Spring 2010 issue  of the Clark Memorandum, a publication of BYU’s J. Reuben Clark Law School.

Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? It is no surprise that the answers are less than clear.

Recent Cases Of Interest From The Circuits

Plaintiff Wins FMLA Appeal: In Goelzer v. Sheboygan County, Wisconsin Dorothy Goelzer was fired from her administrative job with the county government after 20 years. Her supervisor told her about the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act.

Goelzer had taken a significant amount of authorized FMLA during the four preceding years to deal with her own health issues as well as those of her husband and mother. The defendants claimed she was fired because they wanted to hire someone with a “greater skill set.” The district court granted judgment against Goelzer.

The Seventh Circuit Court of Appeals reversed this month stating that comments suggesting frustration with her use of leave, Goelzer’s favorable performance reviews, and the timing of her termination could lead a jury to conclude that Goelzer was fired because she exercised her right to take FMLA. This is a very good case for those who are claiming an interference or retaliation claim under the FMLA.

Employers Liable For Third Party Harassment: In Beckford v. Department of Corrections, Melanie Beckford, and thirteen other female employees, claimed that the Florida Department of Corrections failed to remedy the sexually offensive conduct of inmates  — including the frequent use of gender-specific abusive language and pervasive gunning, the notorious practice of inmates openly masturbating toward female staff. The jury found in favor the plaintiffs and awarded each $45,000 in damages.

The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said:

It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.

Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.

images: www.hivplusmag.com charityrisk.squarespace.com

*This post originally appeared in Employee Rights Post on May 24, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Employee Rights Short Takes: Wage Discrimination, Race Discrimination, Sexual Harassment and More

Tuesday, May 18th, 2010

Here are a few Short Takes worth sharing:

Sex Discrimination

Ninth Circuit Certifies Wal-Mart Class Action: In Dukes v. Wal-Mart, a decision from the Ninth Circuit Court of Appeals on April 26th, the Court certified a class in a Title VII lawsuit involving 1.5 million women seeking compensation for back pay. The Court remanded the case to the district court for a determination regarding punitive damages based upon several factors set forth in the decision. The next step is most likely a request for the Supreme Court to hear the case. For more about the case, see the California Punitive Damages Blog. For an interesting story about Betty Dukes, the Wal-Mart greeter and lead plaintiff  see the article here from the Huffington Post. This case is reported to be the largest class action in history.

Sexual Harassment

EEOC Collects $471,000 In Sex Harassment Case: The EEOC reported last week that Everdry Marketing and Management paid $471,096 in damages, plus $86,581 in post-judgment interest to 13 victims of sexual harassment. The payout stems from a four week jury trial in Rochester, New York and a Second Circuit Court of Appeals decision which affirmed the award in favor of the plaintiffs. The case involved a prolonged period of physical and verbal sexual harassment of mostly teenage telemarketers by male managers and co-workers at Everdry’s Rochester, N.Y. location including demands for sex, groping, sexual jokes and constant comments about the bodies of women employees. The story presents another example of the widespread problem of teenage sexual harassment in the U.S

Has The Sixth Circuit Had An Attitude Adjustment?

Two cases last month out of the Sixth Circuit  Court of Appeals made me think that attitudes on employment discrimination cases may be shifting.

Summary Judgment Reversed In Race Discrimination Case: In Thompson v UHHSS Richmond Heights Hospital, Inc, the plaintiff was terminated from her position as a food production supervisor when she was told that her position was eliminated in a restructuring. Thompson believed  that she was selected for termination because of her race and filed a lawsuit. The district court granted summary judgment against her. The Sixth Circuit reversed finding that evidence of Thompson’s superior qualifications in comparison to the employee who assumed most of her job duties showed that she was replaced and also showed pretext. In addition, evidence that a supervisor said to “get rid of” certain black employees whom he called “troublemakers,” which the district court gave “little weight,” corroborated accusations of discriminatory behavior according to the Court.

Sexual Harassment Verdict Affirmed On Appeal: In West v. Tyson Foods,Inc. the Court affirmed a sexual harassment award including $750,000 for past and future mental distress, and $300,000 in punitive damages. In addition to great language on damages, the Court also addressed the sufficiency of reporting sexual harassment to one supervisor as constituting “notice” and a “missing evidence” jury instruction from which the jury is entitled to draw a negative inference. The plaintiff, an assembly line worker, was subjected to a barrage of verbal and physical harassment – 10 to 15 times per shift — during her five weeks of employment at the Tyson Foods plant in Robards, Kentucky. The jury awarded more in damages that West’s lawyer requested which the Sixth Circuit both addressed and confirmed.

images: www.hickmankytourism.com

www.reclaimdemocracy.org

*This post originally appeared in Employee Rights Post on May 12, 2010. Reprinted with permission.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

You’ve Come a Long Way, Baby? Maybe Not.

Tuesday, March 16th, 2010

Is it legal to fire a front desk clerk for not being “pretty enough”? Not in Iowa. Last Monday, the Eighth Circuit Court of Appeals reversed a trial judge’s decision and ordered Lewis v. Heartland Inns of America to trial.

Brenna Lewis was a front desk clerk at Heartland Inns in Ankeny, Iowa. She was promoted to the day shift, sight unseen, after enthusiastic recommendation from previous managers. Once on the job, Lewis’ loose-fitting clothing and unisex appearance caused Director of Operations Barbara Cullinan to express reservations about whether she was a “good fit.”

Lewis wore short hair, no makeup and sported an “Ellen DeGeneres look.” She was “tomboyish,” friendly, and well-liked by customers. Cullinan preferred a pretty “Midwestern girl look” on the day shift. She fired the manager who refused to reassign Lewis and demanded that Lewis undergo a videotaped “second” interview to keep her job. A distraught Lewis objected to the second interview, questioning whether it was lawful to require one just because of her appearance. Three days later she was fired.

When Lewis sued Heartland for sex discrimination, the company countered that Lewis was terminated for “thwarting” the interview procedure and exhibiting “hostility” to Heartland’s policies. The trial judge dismissed the case. Lewis appealed. In January, a three judge panel ruled in Lewis’ favor. On March 8, the full court denied Heartland’s request for rehearing, and ordered the case back to jury trial.

In some ways Lewis’ victory is not surprising. Over twenty years ago, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the United States Supreme Court ruled in favor of Ann Hopkins, a hard-charging and aggressive manager denied partnership despite outperforming all other candidates in her year. Hopkins was told that future success at the firm would depend upon her learning to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

The Court held that unless Price Waterhouse could prove that it would have made the same decision without reference to gender stereotypes, Hopkins was entitled to prevail on her sex discrimination claim because “we are ‘beyond the day’ when an employer could evaluate employees by … insisting that they matched the stereotype associated with their group.”

But are we? Consider this: Had Heartland Inns turned Cullinan’s personal preference for pretty women into a formal job requirement, the case might well have gone the other way.

In 2006, the Ninth Circuit received a great deal of notoriety for its decision in Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006). The famously liberal court ruled not once, but twice in favor of Harrah’s casino, after it terminated bartender Darlene Jespersen for refusal to comply with its “personal best” appearance code. The code, which included both gender-neutral and gender-specific requirements, mandated “big hair” and a daily makeup regime for women.

Jespersen, a highly regarded 20-year employee, felt degraded by makeup. The business of a bartender is to mix drinks, assess sobriety, and maintain order. Jespersen argued that wearing makeup interfered with the deft personal touch and sense of authority she relied upon to perform those functions. Unimpressed, the Court held that her “personal preference” did not trump Harrah’s “personal best” grooming policy.

Employers, particularly in the service industry, adopt gender-specific appearance standards for competitive advantage, and defend them on grounds of customer preference. Fortunately, the law already imposes limits on this “business case” for discrimination. “Customer preference,” once a serious barrier to hiring minorities and women, was struck down long ago. “Competitive advantage,” the rationale for requiring stewardesses to parade around in hot pants, was rejected with the tart observation that the business of airlines is to fly passengers safely, not to sell sex.

Even if the required “look” is not overtly sexy, enforcing an idealized standard of feminine attractiveness increases the salience of gender over competence. This can undermine the authority of women whose jobs involve controlling the activities of others: police officers, construction supervisors and – yes — bartenders and flight attendants. While there may be rare situations in which idealized gender-specific appearance is a “bona fide occupational qualification,” the essence of most jobs is providing a service, not fulfilling a fantasy.

Yes, we have come a long way, but sadly, we are not “beyond the day” when employers can enforce gender stereotypes. It should not matter whether a stereotype-driven termination is the result of an individual supervisor’s preference or a company-wide appearance policy, but it does. This is wrong. Courts should know better than to give the green light to gender stereotypes “dressed up” as formal job requirements. If this trend is not reversed, and soon, the resulting effect on equal employment opportunity will definitely not be pretty.

Image: Pick UPAbout the Author: Charlotte Fishman is a San Francisco attorney, and Executive Director of Pick Up the Pace, a nonprofit organization whose mission is to identify and eliminate barriers to women’s advancement in the workplace.

Outback To Pay 19 Million For Sex Discrimination Case

Tuesday, January 12th, 2010

EEOC Settlement Shatters Glass Ceiling

The Equal Employment Opportunity Commission announced a whopping 19 million dollar settlement of a class action “glass ceiling” lawsuit against Outback Steakhouse last week.

The lawsuit involved a class of female employees who claimed that they were illegally denied:

  • equal opportunity for advancement
  • promotional opportunities to high level profit sharing management positions
  • favorable job assignments, particularly, kitchen management experience, which was required for employees to receive consideration for top restaurant management positions

Stuart J. Ishimaru, EEOC Acting Chairman had this to to say in conjunction with the announcement:

There are still too many glass ceilings left to shatter in the workplaces throughout  corporate America. …

Hopefully this major settlement will remind employers about the perils of perpetuating promotion practices that keep women from advancing at work.

Let’s hope so. It’s been almost 30 years since the Wall Street Journal popularized the term “glass ceiling” in an article describing the invisible barriers that women confront as they approach the top of corporate hierarchy.

The Federal Glass Ceiling Commission was created by the Civil Rights Act of 1991 and issued several reports between 1991 and 1996. The last report noted that among Fortune 500 companies:

  • 95 -97% of senior managers were men
  • 97% of male top executives were white
  • 95% of the three to five percent of the top managers who were women were white

I don’ t know how much better the data would look today but my bet would be that the difference wouldn’t be significant.  No doubt  ladies — after all of these years, we still have a long way to go.

I have talked to hundreds of women through the years who confront these issues at work each day. Many just don’t want to rock the boat to fight for the promotions they deserve — and that’s understandable.

That’s why cases like this one are so important. Three cheers for the courageous women who brought this class action lawsuit and the EEOC’s vigorous pursuit of equal opportunity for women.

image: pulse.ncpolicywatch.org/wp-content/uploads/feminis_difference_lg.jpg

*This article originally appeared in Employee Rights Post on January 9, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

Big Settlements In Two Male Sex Discrimination Cases

Tuesday, November 17th, 2009

Sex Discrimination Against Men Violates Title VII

Sex Discrimination Against Men Violates Title VII

It’s not often that you see cases involving discrimination against men, but in the last few weeks the EEOC has reported two noteworthy settlements.

The Sex Discrimination Case Against Lawry’s

In early November, the EEOC announced a $1,025,000 settlement of a class action lawsuit against Lawry’s Restaurants Inc., which operates steak houses in Las Vegas, Chicago, Dallas, Los Angeles, Beverly Hills and Corona del Mar, California. 

In the lawsuit, the EEOC charged Lawry’s with maintaining a longstanding company wide policy of hiring only women for server positions.

The policy, which has been in place since 1938, is in violation of Title VII of the Civil Rights Act of 1964 which prohibits discrimination because of sex.

Lawry’s claimed that the policy was based on long standing tradition. The EEOC found that the policy adversely affected a class of men on the basis of sex.

The parties reached an agreement to settle the case in early November. Under the consent decree Lawry’s agreed to:

  • change its practice and actively promote the hiring of men into server positions
  • provide monetary relief including a class fund of $500,000
  • pay over $300,000 to initiate an advertising campaign regarding the hiring of food servers
  • pay $225,000 for training its employees on compliance with Title VII and related laws
  • take additional steps to insure compliance with Title VII and the decree

In its announcement of the settlement, Olophious E. Perry, who managed the EEOC investigation said:

The EEOC will never condone discrimination in the name of so-called tradition. Every individual deserves a fair chance to obtain a job based on their talent and qualifications, regardless of gender.

It seems to me that there are lots of restaurants out there that still have male only, or female only servers. This case makes it clear that this is one “tradition” that has seen its day.

Cheesecake Factory Settles Case Of Male On Male Sexual Harassment

The EEOC announced this week that Cheesecake Factory, Inc, a nationwide restaurant chain, will  pay $345,000 to settle a sexual harassment suit involving six male employees who were subjected to repeated sexual harassment at the company’s Chandler Mall location outside of Phoenix.

The complaint charged that the restaurant knew about and tolerated repeated sexual assaults against six male employees by a group of kitchen staffers.

The evidence included abuse involving the harassers:

  • directly touching the victims’ genitals
  • making sexually charged remarks
  • grinding their genitals against them
  • forcing victims into repeated episodes of simulated rape

According to the EEOC, managers witnessed employees dragging their victims kicking and screaming into the refrigerator. Victims’ complaints were made to virtually every manager in the restaurant but the conduct never stopped. Eventually the police were called and an EEOC charge was filed.

Mary Jo O’Neill, Regional Attorney of the EEOC’s Phoenix office had this to say:

The evidence was clear, and everyone knew about it. Behind the lavish décor that the company boasts on its web site was a horribly dysfunctional workplace where male workers lived in fear.

I would like to think that this situation is unusual, but the EEOC’s Phoenix District Office’s press release points out that it’s currently prosecuting a similar case against Fleming’s Prime Steak House.

What’s with these restaurants?

Lessons To Be Learned

When most of us think about sex discrimination, we think about discrimination against women, and that’s certainly what was contemplated when the “because of sex” language was added to Title VII.

(Interestingly, the addition of “sex” by a southern congressman to Title VII in 1964 was seen by most as a cynical attempt to torpedo the bill which was primarily targeted to address race discrimination)

Likewise, when most of us think about sexual harassment, we think of men as the harassers and women as the victims.

(Not so, said the Supreme Court in the landmark case of Oncale v. Sundowner Offshore Services,Inc in 1998; for more on this topic, see my article: What’s Going On With Male On Male Sexual Harassment )

These recent EEOC cases draw attention to the fact that men can be victims of gender discrimination as well as outrageous sexual harassment.  Both forms of discrimination are against the law and can lead to serious consequences for all involved.

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About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

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