Deck 7: Gender Discrimination

Question 1

A female restaurant employee is on the phone in the kitchen talking to her mother. The chef of the restaurant comes up to the employee, throws off his chef's hat, grabs both the employees arms and begins shaking her violently and screaming at her. She reports this to the police. She is later terminated and sues for gender discrimination. Will she win? Why or why not?( Labonia v. Doran Assoc., LLC , 2004 U.S. Dist. LEXIS 17025 (D. Conn. 2004)).

Answer 1

Case summary:
A female employee at the hotel's kitchen was talking to her mother over phone when the chef of the restaurant came threw her chef's hat, took her both the arms and shook them violently screaming at her. She reported this incident to police and was terminated from her job. She filed a case of gender discrimination against the employer.Title VII Civil Rights Act, 1964 prohibits an employer to discriminate among employees on the basis of their race, religion, gender, color, and national origin.Solution:
In the above case, the female employee is not likely to win the case on the basis of gender discrimination. This is because the incident that took place with her at the hotel's kitchen could had been taken place with any of male employees also and as a result that employee could had also been terminated by the employer for making a police complaint. Thus, in this case, the female employee cannot win her allegations against the employer for having gender discrimination but she can very well file a case of having violence and abusive behavior to win the case against the employer.

Question 2

An Employer decides to shut down one of its three plants because the employees at that plant are almost exclusively women. The males who worked at the plant and lost their jobs as a result of the closing wish to sue for gender discrimination under Title VII. If they do, will they be successful? ( Allen v. American Home Foods, Inc., 644 F. Supp. 1553 (N.D. Ind. 1986)).

Answer 2

Case summary:
Employer decided to shut down one of the three company's plants reason that most of the employees in that plant is exclusively women. The male employees working in that plant who lost their job as a result of the closing wish to sue the employer for gender discrimination under Title VII.
Title VII Civil Rights Act, 1964 prohibits an employer to discriminate among employees on the basis of their race, religion, gender, color, and national origin.Solution:
In the above case, if the male employees who lost their job due to plant closing by the employer could get successful because the employer has no legal right to discriminate between male and female employees and the way he has closed the plant that employed exclusively women employees shows gender discrimination between both make and female employees. Thus, on this basis it could be concluded that male employees suing the employer for gender discrimination could win this case.

Question 3

Dothard v. Rawlinson 433 U.S. 321 (1977)
After her application for employment as an Alabama prison guard was rejected because she failed to meet the minimum 120-pound weight, 5-foot-2-inch height requirement of an Alabama statute, the applicant sued, challenging the statutory height and weight requirements as violative of Title VII of the Civil Rights Act of 1964. The Supreme Court found gender discrimination.Stewart, J.
At the time she applied for a position as a correctional counselor trainee, Rawlinson was a 22-year-old college graduate whose major course of study had been correctional psychology. She was refused employment because she failed to meet the minimum 120-pound weight requirement established by an Alabama statute. The statute stated that the applicant shall not be less than five feet two inches nor more than six feet ten inches in height, shall weigh not less than 120 pounds nor more than 300 pounds. Variances could be granted upon a showing of good cause, but none had ever been applied for by the Board and the Board did not apprise applicants of the waiver possibility.In considering the effect of the minimum height and weight standards on this disparity in rate of hiring between genders, the district court found that when the height and weight restrictions are combined, Alabama's statutory standards would exclude 41.13% of the female population while excluding less than 1% of the male population.In enacting Title VII, Congress required "the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification." The District Court found the minimum height and weight requirements constitute the sort of arbitrary barrier to equal employment opportunity that Title VII forbids. This claim does not involve an assertion of purposeful discriminatory motive. It is asserted, rather, that these facially neutral qualification standards work in fact disproportionately to exclude women from eligibility for employment by the Alabama Board of Corrections.We turn to Alabama's argument that they have rebutted the prima facie case of discrimination by showing that the height and weight requirements are job related. These requirements, they say, have a relationship to strength, a sufficient but unspecified amount of which is essential to effective job performance as a correctional counselor. In the district court, however, they failed to offer evidence of any kind in specific justification of the statutory standards.If the job-related quality that the Board identifies is bona fide, their purpose could be achieved by adopting and validating a test for applicants that measures strength directly. But nothing in the present record even approaches such a measurement.The district court was not in error in holding that Title VII of the Civil Rights Act of 1964 prohibits application of the statutory height and weight requirements to Rawlinson and the class she represents. AFFIRMED in part, REVERSED in part, and REMANDED.Case Questions
1. What purpose did the height and weight requirements serve? Do you think they were made to intentionally discriminate against women?
2. How could management have avoided this outcome?
3. Does your view of illegal discrimination change now that you have seen how disparate impact claims work? Would you have been able to foresee this outcome? Explain.

Answer 3

The criterion of height and weight seem to be fixed arbitrarily by the prison authorities, and have been following for long. There is no evidence that the criterion based on height and weight is made to exclude women from the job vacancies. However, the lawsuit by Rawlinson challenged the tradition in two ways. One, about 40 percent of the women cannot qualify for the job if the criterion of height and weight is applied. Second, the prison administration was not able to demonstrate the relation between job performance and height/weight criterion.
The prison management should have reviewed their selection criterion periodically and made amendments to their recruitment and selection policies.
We continue to practice many things until it is challenged by some force. The prison authorities were unaware of the subtle discrimination they have been practicing against women. The lawsuit and judgment was an eye opener to all concerned. It is difficult to foresee the impacts we make due to gender discrimination, because we are practicing what we assume to be right.

Question 4

EEOC v. Audrey Sedita, d/b/a Women's Workout World 755 F. Supp. 808 (N. Dist. Ill. E.D. 1991)
The employer, Women's Workout World (WWW), refused to hire males as managers, assistant managers, or instructors in the employer's exercise studio. Employer argued that being a female was reasonably necessary for the particular business. The court did not agree.Williams, J.
The employer asserts that the jobs at issue require a substantial amount of physical contact with members' bodies and that they are exposed to nudity in the club locker room, shower, and bathroom, during orientation sessions when they show club facilities to new members. They argue that it would be impossible for WWW to reassign job duties in order to avoid intruding on members' privacy interests, since the conduct which infringes on privacy interests amounts to the essence of the jobs in question.EEOC argues that the essence of the jobs in question does not require employees to intimately touch health club members, or force employees to be exposed to nudity of members. They suggested WWW could hire male employees by changing the duties of the jobs in question, such as hiring females to assist clients who objected to being touched by males, posting a schedule to inform clients of when male employees would be on duty, or letting clients take themselves through the locker rooms.The BFOQ exception is meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of gender. Hence, a defendant asserting a BFOQ defense has a heavy burden in terms of justifying his employment practice. An employer asserting a privacy-based BFOQ defense must satisfy a three-part test. First, the employer must assert a factual basis for believing that hiring any members of one gender would undermine the business operation. Second, the employer must prove that the customer's privacy interest is entitled to protection under the law, and third, that no reasonable alternatives exist to protect those interests other than the gender-based hiring policy.WWW contends a factual basis for their hiring policy exists because their clients have consciously chosen to join an all-female health club. They present the owner's testimony that members have, in the past, been disturbed by the presence of males in the club.We find that WWW failed to prove either that a factual basis exists for their discriminatory hiring policies, or that no reasonable alternatives exist to protect their customers' privacy interests other than sex-based hiring.A defendant in a privacy rights case may satisfy its burden of proving a factual basis for sex-based hiring policies by showing that the clients or guests of a business would not consent to service of the opposite gender and would stop patronizing the business if members of the opposite gender were allowed to perform the service. This, WWW has failed to do. Also, WWW has previously hired males as "class givers," suggesting that there is no basis in the law for their present refusal to hire men. The EEOC's evidence of feasibility exists in the nation's other health clubs, which hire both genders, and allow members to be served both by assistants of their own gender and by members of the opposite gender.The purpose of WWW's business operation is to provide individualized fitness and exercise instruction to the club's women members. Hence, WWW must prove that they cannot achieve their business purpose without engaging in single-gender hiring. In response to EEOC's alternatives, WWW produced nothing more than the owner's assertions that the alternatives were not feasible because of the views of her clientele, and the difficulties of accommodating men in the health club. This is not strong enough to prove that no alternatives were feasible. WWW needed to provide evidence to prove their argument such as data on costs, studies on the feasibility of changing their present operation, or projections on the impact of such changes in terms of lost profits.The motion for PARTIAL SUMMARY JUDGMENT for EEOC is GRANTED.Case Questions
1. Do you agree with the court's decision? Why or why not? Do you think the outcome would have been the same if the genders were reversed and females were prevented from working at the club?
2. If you were the employer in this case, what would you do?
3. Do you think Title VII was made to address this type of situation, that is, where a private commercial enterprise wishes to have a particular clientele served a particular way? Explain.

Question 5

A Employee says she was forced to quit her job because of her status as a mother of young children. She claimed that her female supervisor created a hostile work environment that violated Title VII. She was replaced by another mother. Does she win? ( Fuller v. GTE Corp./Contel Cellular, Inc. , 926 F. Supp. 653 (M.D. Tenn. 1996)).

Question 6

During an interview, an employer asks a female applicant questions such as whether she had children, what her child care responsibilities were, and how her family felt about her weekly commute between the business's headquarters in Virginia and the family home in New York. The employer also asked the applicant "how her husband handled the fact that [she] was away from home so much, not caring for the family" and said he had "a very difficult time" understanding why any man would allow his wife to live away from home during the workweek. Is this employer's line of questioning a violation of Title VII? Explain. ( Lettieri v. Equant, Inc., 478 F.3d 640 (4th Cir. 2007)).

Question 7

Phillips v. Martin Marietta Corp. 400 U.S. 542 (1971)
A female applicant was denied employment because of the employer's policy against hiring women with preschool-age children. There was no policy against hiring men with such children. The Supreme Court held the employer's policy violated Title VII.Per Curiam
Martin Marietta informed Ida Phillips that it was not accepting job applications from women with pre-school-age children. As of the time of this action, Martin Marietta employed men with pre-school-age children. At the time Phillips applied, 70-75% of the applicants for the position she sought were women; 75-80% of those hired for the position, assembly trainee, were women, hence no question of bias against women as such was presented.Section 703(a) of the Civil Rights Act of 1964 requires that persons of like qualifications be given employment opportunities irrespective of their gender. The Court of Appeals therefore erred in reading this section as permitting one hiring policy for women and another for men-each having pre-school-age children. The existence of such conflicting family obligations, if demonstrably more relevant to job performance for a woman than a man, could arguably be a basis for distinction under 703(3) [BFOQ] of the Act. But that is a matter of evidence tending to show that the condition in question is a BFOQ reasonably necessary to the normal operation of that particular business or enterprise. The record before us, however, is not adequate for resolution of these important issues. VACATED and REMANDED.Marshall, J., concurring.
While I agree that this case must be remanded for a full development of the facts, I cannot agree with the Court's indication that a BFOQ reasonably necessary to the normal operation of Martin Marietta's business could be established by a showing that some women, even the vast majority, with pre-school-age children have family responsibilities that interfere with job performance and that men do not usually have such responsibilities. Certainly, an employer can require that all of his employees, both men and women, meet minimum performance standards, and he can try to insure compliance by requiring parents, both mothers and fathers, to provide for the care of their children so that job performance is not interfered with.The Court has fallen into the trap of assuming that the Act permits ancient canards about the proper role of women to be the basis for discrimination. Congress, however, sought just the opposite result.Even characterizations of the proper domestic roles of the genders were not to serve as predicates for restricting employment opportunity. The exception for a BFOQ was not intended to swallow that rule.Case Questions
1. Why do you think the employer instituted the rule discussed here? Does it actually address the employer's concern?
2. Can you think of a better way for management to handle its concerns about preschool parents?
3. Does Justice Marshall's position make sense to you? Why or why not?

Question 8

Asmo v. Keane, Inc. 471 F.3d 588 (6th Cir. 2006)
Employee was terminated shortly after she told her supervisor she was pregnant with twins. The court found sufficient evidence that the basis of the termination was because of the employee's pregnancy with twins, in violation of the Pregnancy Discrimination Act.Cudahy, J.
Asmo worked out of a home office in Columbus, Ohio. She reported to Keane's Director of Corporate Recruiting, Scott Santoro, at Keane's corporate headquarters in Boston, Massachusetts. After the terrorist attacks in the United States on September 11, 2001, the IT industry suffered a particularly significant slowdown in the context of a general slowdown of the American economy. Keane was affected by this slowdown, and it experienced a significant downturn in its business after September 11.September 11, 2001 was also the day that Asmo learned she was pregnant with twins. Subsequently, sometime in October 2001, Asmo informed the entire SG A team of her pregnancy during a conference call. Asmo testified that all of the SG A recruiters congratulated her, but Santoro remained silent during the congratulations and then tried to quickly change the conversation back to business matters.In November 2001, Keane's Vice President of Human Resources, Renee Southard, directed Santoro to reduce the number of recruiters on his staff. Santoro decided to consider three main factors in determining which of the five SG A recruiters would be laid off: (1) relative tenure; (2) the number of hires each SG A Recruiter had made in 2001; and (3) the forecasted hiring needs for 2002. According to Keane, Santoro selected Asmo for layoff based on the three factors discussed above. Asmo had the least tenure, the lowest number of 2001 hires and Mr. Gindele predicted little need for new SG A hiring in the Midwest region in 2002.On December 4, 2001, Santoro informed Asmo that she was being laid off.On February 20, 2003, Asmo filed her complaint in the district court, alleging that she had been unlawfully terminated from employment.The district court found that Asmo was unable to prove a prima facie case of discrimination. We disagree. In order to show a prima facie case of pregnancy discrimination under Title VII, a plaintiff must show that "(1) she was pregnant, (2) she was qualified for her job, (3) she was subjected to an adverse employment decision, and (4) there is a nexus between her pregnancy and the adverse employment decision." Here, Keane concedes that Asmo has proven the first three elements. However, Keane argues Asmo was not able to meet the fourth step (a nexus) in establishing a prima facie case.Asmo met the nexus requirement in part by establishing temporal proximity between Keane's learning of her pregnancy and her termination. Temporal proximity can establish a causal connection between the protected activity and the unlawful employment action in the retaliation context.Temporal proximity between the employer's learning of an employee's pregnancy and an adverse employment action taken with respect to that employee likewise may be "indirect evidence" in support of an inference of pregnancy discrimination. In early December 2001, Keane decided to terminate Asmo's employment. This was within two months of October 2001, when Santoro learned that Asmo was pregnant. This temporal proximity is sufficient to establish a link between Asmo's pregnancy and her termination for the purposes of a prima facie case. For these reasons, we find that the district court erred in holding that Asmo needed to present evidence beyond a nexus between her pregnancy and the adverse employment decision and we find that Asmo did establish a prima facie case.The second and more difficult question here is whether Asmo presented sufficient evidence to show that the reasons Keane gave for her termination were pretextual. The district court found that Asmo failed to provide such evidence after Keane gave a legitimate non-discriminatory reason for terminating Asmo's employment. While this issue is not clear-cut, we ultimately disagree with the district court and find that under summary judgment standards, there was sufficient evidence to show pretext.The most significant evidence showing pretext is Santoro's conduct after Asmo announced she was pregnant with twins. In October 2001, Asmo, Santoro and the entire SG A team were participating in a conference call, during which Asmo informed the team that she was pregnant with twins. The news was met with congratulations from all her colleagues except Santoro, who did not comment and then "simply moved on to the next business topic in the conference call." Santoro's initial silence is suspect. Pregnancies are usually met with congratulatory words, even in professional settings. When people work together they develop relationships beyond the realm of employment, and Asmo's pregnancy was particularly noteworthy given that she was pregnant with twins, a fairly unusual (and overwhelming) occurrence.Additionally, though Santoro conducted weekly conference calls with the recruiters, he did not mention Asmo's pregnancy again until December 4, 2001, the day he terminated Asmo. Asmo's job involved considerable travel (forty to sixty percent of her time), something an employer might be concerned about given the announcement that Asmo was going to have twins, which most people know is a tremendous responsibility. Yet Santoro did not talk with Asmo about how she planned to deal with the impending arrival of her twins and/or what the company could do to help accommodate her. Instead, he did not mention her pregnancy at all. He also did not ask any of his colleagues to discuss Asmo's pregnancy with her, or to provide her with information about how the company accommodates parents. Given the combination of Asmo's job being particularly demanding of time due to travel and her announcement of not just a pregnancy, but a pregnancy of twins, Santoro's silence could be interpreted as discriminatory animus.Keane's argument that there are other possible explanations for Santoro's silence is correct and well-taken. However, in the context of summary judgment, where we examine the evidence in the light most favorable to the non-moving party, we believe that Asmo's argument is sufficient to call into question Santoro's motives. Santoro's silence is evidence of pretext because it can be read as speculation regarding the impact of Asmo's pregnancy on her work, and an employer's speculation or assumption about how an employee's pregnancy will interfere with her job can constitute evidence of discriminatory animus.While the temporal proximity between Asmo informing Keane of her pregnancy with twins and Keane's decision to terminate her cannot alone prove pretext temporal proximity can be used as "indirect evidence" to support an employee's claim of pretext. All of this evidence taken together, considered under a summary judgment standard where we evaluate all evidence in the light most favorable to Asmo, indicates that Keane's stated reasons for terminating Asmo were pretext for discrimination. REVERSE the district court's grant of summary judgment for Keane and REMAND.Case Questions
1. Do you agree with the court's assessment of the evidence? Why/why not?
2. If the situation is as the court determined it to be, do you believe that Santoro was justified in his beliefs about Asmo not being able to do her job because she was pregnant with twins? Explain.3. If you were Asmo's supervisor, how would you have handled this situation?

Question 9

An Employer had only one promotion to give, but he was torn between giving it to the single female and the male who had a family, and the employer thought, most needed and could best use the money. He finally decided to give the promotion to the male and told the female he gave it to the male and told the female he gave it to the male because the male was a family man and needed the money. If the female employee sues, will she win? ( Taylor v. Runyon , 175 F.3d 861 (11 th Cir. 1999) ).

Question 10

UAW v. Johnson Controls, Inc. 499 U.S. 187 (1991)
A group of employees challenged the employer's policy barring all women except those whose infertility was medically documented from jobs involving actual or potential lead exposure exceeding Occupational Safety and Health Administration (OSHA) standards. The Court found the policy to be illegal gender discrimination.Blackmun, J.
In this case we are concerned with an employer's gender-based fetal protection policy. May an employer exclude a fertile female employee from certain jobs because of its concern for the health of the fetus the woman might conceive? Our answer is no.Employees involved in the suit include Elsie Nelson, a 50-year-old divorcee, who suffered a loss in compensation when she was transferred out of a job where she was exposed to lead, Mary Craig who chose to be sterilized in order to avoid losing her job, and Donald Penny, who was denied a request for leave of absence for the purpose of lowering his lead level because he intended to become a father.The bias in Johnson Control's policy is obvious. Fertile men, but not fertile women, are given the choice as to whether they wish to risk their reproductive health for a particular job. Johnson Control's fetal protection policy explicitly discriminates against women on the basis of their gender. The policy excludes women with childbearing capacity from lead-exposed jobs and so creates a facial classification based on gender.The policy classifies on the basis of gender and child-bearing capacity, rather than fertility alone. The employer does not seek to protect the unconceived children of all its employees. Despite evidence in the record about the debilitating effect of lead exposure on the male reproductive system, Johnson Controls is concerned only with the harms that may befall the unborn offspring of its female employees. Johnson Controls' policy is facially discriminatory because it requires only a female employee to produce proof that she is not capable of reproducing.Our conclusion is bolstered by the Pregnancy Discrimination Act of 1978 in which Congress explicitly provided that, for purposes of Title VII, discrimination "on the basis of sex" included discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." The PDA has now made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her gender. Johnson Controls has chosen to treat all its female employees as potentially pregnant; that choice evinces discrimination on the basis of gender.An employer may discriminate on the basis of gender in those certain instances where religion, gender or national origin is a BFOQ reasonably necessary to the normal operation of that particular business or enterprise. We conclude that the language of both the BFOQ provision and the PDA, which amended it, as well as the legislative history and case law, prohibit employers from discriminating against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing the duties of her job. We have said before, an employer must direct its concerns about a woman's ability to perform her job safely and efficiently to those aspects of the woman's job-related activities that fall within the "essence" of the particular business.Johnson Controls cannot establish a BFOQ. Fertile women, as far as appears on the record, participate in the manufacture of batteries as efficiently as anyone else. Johnson Controls' professed moral and ethical concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility. Nor can concerns about the welfare of the next generation be considered a part of the "essence" of Johnson Controls' business. It is word play to say that the job at Johnson Controls is to make batteries without risk to fetuses in the same way the job at an airline is to fly planes without crashing. Decisions about the welfare of future children must be left to the parents who conceive, bear, support and raise them rather than to the employers who hire those parents.A word about tort liability and the increased cost of fertile women in the workplace is perhaps necessary. It is correct to say that Title VII does not prevent an employer from having a conscience. The statute, however, does prevent gender-specific fetal protection policies. These two aspects of Title VII do not conflict. More than 40 states currently recognize a right to recover for a prenatal injury based either on negligence or on wrongful death. According to Johnson Controls, however, the company complies with the lead standard developed by OSHA and warns its female employees about the damaging effects of lead. It is worth noting that OSHA gave the problem of lead lengthy consideration and concluded that "there is no basis whatsoever for the claim that women of childbearing age should be excluded from the workplace in order to protect the fetus or the course of the pregnancy." 43 Fed. Reg. 52952, 52996 (1978). Instead, OSHA established a series of mandatory protections, which, taken together, "should effectively minimize any risk to the fetus and newborn child." Without negligence, it would be difficult for a court to find liability on the part of the employer. If, under general tort principles, Title VII bans gender-specific fetal protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best.Our holding today that Title VII, as so amended, forbids gender-specific fetal protection policies is neither remarkable nor unprecedented. Concern for a woman's existing or potential offspring historically has been the excuse for denying women equal employment opportunities. Congress and the PDA prohibited discrimination on the basis of a woman's ability to become pregnant. We do no more than hold that the PDA means what it says.It is no more appropriate for the courts than it is for individual employers to decide whether a woman's reproductive role is more important to herself and her family than her economic role. Congress has left this choice to the woman as hers to make. REVERSED and REMANDED.Case Questions
1. Do you agree with the Court that the welfare of the child should be left to the parents, not the employer?
2. What do you find most troublesome about the decision, if anything? Explain.3. As an employer, what would you do in this situation?

Question 11

Price Waterhouse v. Hopkins 490 U.S. 228 (1989)
Ann Hopkins, a female associate who was refused admission as a partner in an accounting firm, brought a gender discrimination action against the firm. The U.S. Supreme Court held that the evidence was sufficient to show that illegal gender stereotyping played a part in evaluating Hopkins' candidacy.Brennan, J.
In a jointly prepared statement supporting her candidacy, the partners in Hopkins' office showcased her successful 2-year effort to secure a $25 million contract with the Department of State, labeling it "an outstanding performance" and one that Hopkins carried out "virtually at the partner level." None of the other partnership candidates had a comparable record in terms of successfully securing major contracts for the partnership.The partners in Hopkins' office praised her character and her accomplishments, describing her as "an outstanding professional" who had a "deft touch," a "strong character, independence, and integrity." Clients appeared to have agreed with these assessments. Hopkins "had no difficulty dealing with clients and her clients appeared to be very pleased with her work" and she "was generally viewed as a highly competent project leader who worked long hours, pushed vigorously to meet deadlines, and demanded much from the multidisciplinary staffs with which she worked."
Virtually all of the partners' negative comments about Hopkins-even those of partners supporting her-had to do with her "interpersonal skills." Both supporters and opponents of her candidacy indicate she was sometimes "overly aggressive, unduly harsh, difficult to work with, and impatient with staff."
There were clear signs, though, that some of the partners reacted negatively to Hopkins' personality because she was a woman. One partner described her as "macho"; another suggested that she "overcompensated for being a woman"; a third advised her to take "a course at charm school." Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only "because it['s] a lady using foul language." Another supporter explained that Hopkins "ha[d] matured from a tough-talking somewhat masculine hard-nosed manager to an authoritative, formidable, but much more appealing lady partner candidate." But it was the man who bore responsibility for explaining to Hopkins the reasons for the Policy Board's decision to place her candidacy on hold who delivered the coup de grace; in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."
Dr. Susan Fiske, a social psychologist and Associate Professor of Psychology at Carnegie-Mellon University, testified at trial that the partnership selection process at Price Waterhouse was likely influenced by gender stereotyping. Her testimony focused not only on the overtly gender-based comments of partners but also on gender-neutral remarks, made by partners who knew Hopkins only slightly, that were intensely critical of her. One partner, for example, baldly stated that Hopkins was "universally disliked" by staff and another described her as "consistently annoying and irritating"; yet these were people who had had very little contact with Hopkins. According to Fiske, Hopkins's uniqueness (as the only woman in the pool of candidates) and the subjectivity of the evaluations made it likely that sharply critical remarks such as these were the product of gender stereotyping.An employer who acts on the basis of a belief that a woman cannot be aggressive or that she must not be has acted on the basis of gender. Although the parties do not overtly dispute this last proposition, the placement by Price Waterhouse of "sex stereotyping" in quotation marks throughout its brief seems to us an insinuation either that such stereotyping was not present in this case or that it lacks legal relevance. We reject both possibilities. A number of the partners' comments showed gender stereotyping at work. As for the legal relevance of gender stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "[i]n forbidding employers to discriminate against individuals because of their gender, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." An employer who objects to aggressiveness in women but whose positions require this trait places women in the intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they don't. Title VII lifts women out of this bind.Remarks at work that are based on gender 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. In making this showing, stereotyped remarks can certainly be evidence that gender played a part. REVERSED and REMANDED.Case Questions
1. What were Price Waterhouse's fatal flaws?
2. Does Hopkins's treatment here make good business sense? Explain.3. How would you avoid the problems in this case?

Question 12

An accounts receivable supervisor was laid off by her employer after taking an extended disability leave for pregnancy. She claimed that the employer discriminated against her on the basis of sex and ability to bear children, stating that two male employees were retained and her replacement was childless, 40-year-old unmarried female. She files suit, alleging gender discrimination. The employer said it was a legitimate layoff. What should the court consider in determining whether the employer's argument is true? ( Leahy v. Singer Sewing Co., 694 A.2d 609 (N.J. Super. 1996)).

Question 13

Harper v. Blockbuster Entertainment Corporation 139 F.3d 1385 (11th Cir. 1998)
Male employees sued employer under Title VII and Florida Civil Rights Act, alleging that employer's grooming policy, which prohibited men, but not women, from wearing long hair, discriminated against them on the basis of gender. The court held that the grooming policy did not violate Title VII or Florida law.Carnes, J.
In May of 1994, Blockbuster implemented a new grooming policy that prohibited men, but not women, from wearing long hair. The employees, all men with long hair, refused to comply with the policy. They protested the policy as discriminatory and communicated their protest to supervisory officials of Blockbuster. Two of the employees were the subject of media stories concerning their protest of the policy. All of the employees were subsequently terminated by Blockbuster because they had refused to cut their hair and because they had protested the grooming policy.The employees allege that Blockbuster's grooming policy discriminates on the basis of gender in violation of Title VII. In Willingham v. Macon Telegraph Pub. Co., our predecessor court held that differing hair length standards for men and women do not violate Title VII, a holding which squarely forecloses the employees' discrimination claim. [In Willingham, the court stated]:
##Willingham argues that the Telegraph discriminates among employees based upon their gender in that female employees may wear their hair any length deemed acceptable by the Telegraph. He therefore asserts that he was denied employment because of his gender because were he a girl with identical length hair and comparable job qualifications, he (she) would have been employed.##
We conclude that the undisputed discrimination practiced by the Macon Telegraph is not based upon gender, but rather upon grooming standards, and thus not a violation of Title VII. We perceive the intent of Congress to have been the guarantee of equal job opportunity for males and females. Providing such opportunity is where the emphasis rightly lies. This is to say that Title VII should lie to reach any device or policy of any employer which serves to deny acquisition and retention of a job or promotion in a job to an individual because the individual is either male or female. Equal employment opportunity may be secured only when employers are barred from discriminating against employees on the basis of immutable characteristics, such as race and national origin. Similarly, an employer cannot have one hiring policy for men and another for women if the distinction is based on some fundamental right. But a hiring policy that distinguishes on some other ground, such as grooming codes or length of hair, is related more closely to the employer's choice of how to run his business than to equality of employment opportunity. Hair length is not immutable and in the situation of an employer vis-a-vis employee, enjoys no constitutional protection. If the employee objects to the grooming code he has the right to reject it by looking elsewhere for employment or alternatively he may choose to subordinate his preference by accepting the code along with the job.We adopt the view, therefore, that distinctions in employment practices between men and women on the basis of something other than immutable or protected characteristics do not inhibit employment opportunity in violation of Title VII. Congress sought only to give all persons equal access to the job market, not to limit an employer's right to exercise his informed judgment as to how best to run his shop. AFFIRMED.Case Questions
1. Do you agree with the court? Why or why not?
2. In your view, how can the court reach its decision simply by saying Title VII deals only with immutable characteristics? Were the discriminatory factors in Hopkins immutable (wear more jewelry, have hair styled, dress more femininely, etc.)? What is the distinction?
3. If you were an employer, what policy would you adopt? Why?

Question 14

A female police officer becomes pregnant and after a scuffle with an arrestee, is told by her doctor to request a light-duty assignment. The police department says it has no such positions available and that the officer must take leave until she could return to full duty, which ended up being from September to June. The female cites two male officers who were injured and did not stop working. Is this discrimination? ( Tysinger v. Police Department of the City of Zanesville , 463 F.3d 569 (6th Cir. 2006)).

Question 15

Jespersen v. Harrah's Operating Co. 444 F.3d 1104 (9th Cir. 2006) (en banc)
A female bartender challenged the employing casino's dress code policy of requiring females to wear makeup, specified as foundation or powder, blush, lipstick, and mascara as gender discrimination in that it imposed a greater burden on females than males. The court did not agree with her and permitted the employer's makeup policy to stand.Schroeder, J.
In her deposition testimony, Jespersen described the personal indignity she felt as a result of attempting to comply with the makeup policy. Jespersen testified that when she wore the makeup she "felt very degraded and very demeaned." In addition, Jespersen testified that "it prohibited [her] from doing [her] job" because "it affected [her] self-dignity … [and] took away [her] credibility as an individual and as a person."
The record does not contain any affidavit or other evidence to establish that complying with the "Personal Best" standards caused burdens to fall unequally on men or women, and there is no evidence to suggest Harrah's motivation was to stereotype the women bartenders. Jespersen relied solely on evidence that she had been a good bartender, and that she had personal objections to complying with the policy, in order to support her argument that Harrah's "sells" and exploits its women employees."
Jespersen argues that the makeup requirement itself establishes a prima facie case of discriminatory intent and must be justified by Harrah's as a bona fide occupational qualification. Our settled law does not support Jespersen's position that a sex-based difference in appearance standards alone, without any further showing of disparate effects, creates a prima facie case.Here we deal with requirements that, on their face, are not more onerous for one gender than the other. Rather, Harrah's "Personal Best" policy contains sex-differentiated requirements regarding each employee's hair, hands, and face. While those individual requirements differ according to gender, none on its face places a greater burden on one gender than the other. Grooming standards that appropriately differentiate between the genders are not facially discriminatory.We have long recognized that companies may differentiate between men and women in appearance and grooming policies. The material issue under our settled law is not whether the policies are different, but whether the policy imposed on the plaintiff creates an "unequal burden" for the plaintiff's gender. Not every differentiation between the sexes in a grooming and appearance policy creates a "significantly greater burden of compliance[.]" "Where, as here, such [grooming and appearance] policies are reasonable and are imposed in an evenhanded manner on all employees, slight differences in the appearance requirements for males and females have only a negligible effect on employment opportunities." Under established equal burdens analysis, when an employer's grooming and appearance policy does not unreasonably burden one gender more than the other, that policy will not violate Title VII.Jespersen asks us to take judicial notice of the fact that it costs more money and takes more time for a woman to comply with the makeup requirement than it takes for a man to comply with the requirement that he keep his hair short, but these are not matters appropriate for judicial notice. Judicial notice is reserved for matters "generally known within the territorial jurisdiction of the trial court" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." The time and cost of makeup and haircuts is in neither category. The facts that Jespersen would have this court judicially notice are not subject to the requisite "high degree of indisputability" generally required for such judicial notice. Jespersen did not submit any documentation or any evidence of the relative cost and time required to comply with the grooming requirements by men and women. As a result, we would have to speculate about those issues in order to then guess whether the policy creates unequal burdens for women. This would not be appropriate. Having failed to create a record establishing that the "Personal Best" policies are more burdensome for women than for men, the district court correctly granted summary judgment on the record before it with respect to Jespersen's claim that the makeup policy created an unequal burden for women.The stereotyping in Price Waterhouse interfered with Hopkins' ability to perform her work; the advice that she should take "a course at charm school" was intended to discourage her use of the forceful and aggressive techniques that made her successful in the first place. Impermissible sex stereotyping was clear be3cause the very traits that she was asked to hide were the same traits considered praiseworthy in men.Harrah's "Personal Best" policy is very different. The policy does not single out Jespersen. It applies to all of the bartenders, male and female. It requires all of the bartenders to wear exactly the same uniforms while interacting with the public in the context of the entertainment industry. It is for the most part unisex, from the black tie to the non-skid shoes. There is no evidence in this record to indicate that the policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women should wear. The record contains nothing to suggest the grooming standards would objectively inhibit a woman's ability to do the job. The only evidence in the record to support the stereotyping claim is Jespersen's own subjective reaction to the makeup requirement.We respect Jespersen's resolve to be true to herself and to the image that she wishes to project to the world. We cannot agree, however, that her objection to the makeup requirement, without more, can give rise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close to holding that every grooming, apparel, or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self-image, can create a triable issue of sex discrimination.We emphasize that we do not preclude, as a matter of law, a claim of sex-stereotyping on the basis of dress or appearance codes. Others may well be filed, and any bases for such claims refined as law in this area evolves. This record, however, is devoid of any basis for permitting this particular claim to go forward, as it is limited to the subjective reaction of a single employee, and there is no evidence of a stereotypical motivation on the part of the employer. This case is essentially a challenge to one small part of what is an overall apparel, appearance, and grooming policy that applies largely the same requirements to both men and women. The touchstone is reasonableness. A makeup requirement must be seen in the context of the overall standards imposed on employees in a given workplace. Decision for Harrah's AFFIRMED.Kozinski, C. J., with whom Graber, J. and W. Fletcher, J. join, dissenting:
I believe that Jespersen also presented a triable issue of fact on the question of disparate burden. The majority is right that "the [makeup] requirements must be viewed in the context of the overall policy." But I find it perfectly clear that Harrah's overall grooming policy is substantially more burdensome for women than for men. Every requirement that forces men to spend time or money on their appearance has a corresponding requirement that is as, or more, burdensome for women: short hair v. "teased, curled, or styled" hair; clean trimmed nails v. nail length and color requirements; black leather shoes v. black leather shoes. The requirement that women spend time and money applying full facial makeup has no corresponding requirement for men, making the "overall policy" more burdensome for the former than for the latter. The only question is how much.It is true that Jespersen failed to present evidence about what it costs to buy makeup and how long it takes to apply it. But is there any doubt that putting on makeup costs money and takes time? Harrah's policy requires women to apply face powder, blush, mascara and lipstick. You don't need an expert witness to figure out that such items don't grow on trees.Nor is there any rational doubt that application of makeup is an intricate and painstaking process that requires considerable time and care. Even those of us who don't wear makeup know how long it can take from the hundreds of hours we've spent over the years frantically tapping our toes and pointing to our wrists. It's hard to imagine that a woman could "put on her face," as they say, in the time it would take a man to shave-certainly not if she were to do the careful and thorough job Harrah's expects. Makeup, moreover, must be applied and removed every day; the policy burdens men with no such daily ritual. While a man could jog to the casino, slip into his uniform, and get right to work, a woman must travel to work so as to avoid smearing her makeup, or arrive early to put on her makeup there.It might have been tidier if Jespersen had introduced evidence as to the time and cost associated with complying with the makeup requirement, but I can understand her failure to do so, as these hardly seem like questions reasonably subject to dispute. We could-and should-take judicial notice of these incontrovertible facts.Alternatively, Jespersen did introduce evidence that she finds it burdensome to wear makeup because doing so is inconsistent with her self-image and interferes with her job performance. My colleagues dismiss this evidence, apparently on the ground that wearing makeup does not, as a matter of law, constitute a substantial burden. This presupposes that Jespersen is unreasonable or idiosyncratic in her discomfort. Why so? Whether to wear cos-metics-literally, the face one presents to the world-is an intensely personal choice. Makeup, moreover, touches delicate parts of the anatomy-the lips, the eyes, the cheeks-and can cause serious discomfort, sometimes even allergic reactions, for someone unaccustomed to wearing it. If you are used to wearing makeup-as most American women are-this may seem like no big deal. But those of us not used to wearing makeup would find a requirement that we do so highly intrusive. Imagine, for example, a rule that all judges wear face powder, blush, mascara and lipstick while on the bench. Like Jespersen, I would find such a regime burdensome and demeaning; it would interfere with my job performance. I suspect many of my colleagues would feel the same way.Everyone accepts this as a reasonable reaction from a man, but why should it be different for a woman? It is not because of anatomical differences, such as a requirement that women wear bathing suits that cover their breasts. Women's faces, just like those of men, can be perfectly presentable without makeup; it is a cultural artifact that most women raised in the United States learn to put on-and presumably enjoy wearing-cosmetics. But cultural norms change; not so long ago a man wearing an earring was a gypsy, a pirate or an oddity. Today, a man wearing body piercing jewelry is hardly noticed. So, too, a large (and perhaps growing) number of women choose to present themselves to the world without makeup. I see no justification for forcing them to conform to Harrah's quaint notion of what a "real woman" looks like.Nor do I think it appropriate for a court to dismiss a woman's testimony that she finds wearing makeup degrading and intrusive, as Jespersen clearly does. Not only do we have her sworn statement to that effect, but there can be no doubt about her sincerity or the intensity of her feelings: She quit her job-a job she performed well for two decades-rather than put on the makeup. That is a choice her male colleagues were not forced to make. To me, this states a case of disparate burden, and I would let a jury decide whether an employer can force a woman to make this choice.Finally, I note with dismay the employer's decision to let go a valued, experienced employee who had gained accolades from her customers, over what, in the end, is a trivial matter. Quality employees are difficult to find in any industry and I would think an employer would long hesitate before forcing a loyal, long-time employee to quit over an honest and heart-felt difference of opinion about a matter of personal significance to her. Having won the legal battle, I hope that Harrah's will now do the generous and decent thing by offering Jespersen her job back, and letting her give it her personal best-without the makeup.Case Questions
1. What do you understand the difference to be between the majority decision and the dissent?
2. Which decision best represents your approach? Explain.3. Do you think this majority decision would have been different if the court had been composed of all or a majority of women? Discuss. How could this concept of whether the decision would be different based on the gender of the decision maker impact decision making by supervisors in the workplace?

Question 16

A cable company closed its door-to-door sales department and released all employees of that department after settling a discrimination complaint by one of the department employees. The employee's mother, sister, and two close friends had also been employed in the department. Eighteen months later, the company resumed its door-to-door sales, but refused to rehire three of the former employees connected with the employee who had previously sued. The former employees sue, alleging gender discrimination. Will they be successful in their suit? Explain. (Craig v. Suburban Cablevision, Inc., 660 A.2d 505 (N.J. 1995)).

Question 17

Lynch v. Freeman 817 F.2d 380 (6th Cir. 1987)
A female carpenter's apprentice sued her employer for gender discrimination, alleging the failure to furnish adequate sanitary toilet facilities at her worksite. The court found the unsanitary facilities violated Title VII.Lively, J.
The portable toilets were dirty, often had no toilet paper or paper that was soiled, and were not equipped with running water or sanitary napkins. In addition, those designated for women had no locks or bolts on the doors and one of them had a hole punched in the side.To avoid using the toilets, Lynch began holding her urine until she left work. Within three days after starting work she experienced pain and was advised that the practice she had adopted, as well as using contaminated toilet paper, frequently caused bladder infections.The powerhouse, which had large, clean, fully equipped restrooms, was off limits to construction workers. Lynch testified that some of the men she worked with used them regularly and were not disciplined. Knowing the restrooms were off limits, Lynch began using the powerhouse restrooms occasionally, after her doctor diagnosed her condition as cystitis, a type of urinary infection. When the infection returned Lynch began using a restroom in the powerhouse regularly and she had no further urinary tract infections. Lynch was eventually fired for insubordination in using the powerhouse toilet.The lower court found that the toilets were poorly maintained. The cleaning was accomplished by pumping out the sewage. This process often left the toilets messy, with human feces on the floors, walls, and seats. The contractors were to scrub down the toilets afterwards, but it appears they often failed to do so. Paper covers were not provided, and the toilet paper, if any, was sometimes wet and/or soiled with urine. No running water for washing one's hands was available near the toilets, although a chemical hand cleaner could be checked out from the "gang-boxes."
The lower court found it credible that most women were inhibited from using the toilets. Further, the inhibitions described were not personal peculiarities, but that Lynch and others reasonably believed that the toilets could endanger their health. Lynch introduced credible medical expert testimony to demonstrate that women are more vulnerable to urinary tract infections than are men.On the basis of that evidence, the court concluded that all increased danger of urinary tract infections may be linked to the practice of females holding their urine and to the use of toilets under the circumstances where the female's bacteria-contaminated hands came into contact with her external genitalia or where a female's perineal area comes into direct contact with bacteria-contaminated surfaces.Few concerns are more pressing to anyone than those related to personal health. A prima facie case of disparate impact is established when a plaintiff shows that the facially neutral practice has a significantly discriminatory impact. Any employment practice that adversely affects the health of female employees while leaving male employees unaffected has a significantly discriminatory impact. The burden then shifts to the employer to justify the practice which resulted in this discriminatory impact by showing business necessity; that is, that the practice of furnishing unsanitary toilet facilities at the work site substantially promotes the proficient operation of business.Title VII is remedial legislation, which must be construed liberally to achieve its purpose of eliminating discrimination from the workplace. Although Lynch was discharged for violating a rule, she did so in order to avoid the continued risk to her health which would have resulted from obeying the rule. The employer created an unacceptable situation in which Lynch and other female construction workers were required to choose between submitting to a discriminatory health hazard or risking termination for disobeying a company rule. Anatomical differences between men and women are "immutable characteristics," just as race, color, and national origin are immutable characteristics. When it is shown that employment practices place a heavier burden on minority employees than on members of the majority, and this burden relates to characteristics which identify them as members of the protected group, the requirements of a Title VII disparate impact case are satisfied. REVERSED and REMANDED.Case Questions
1. Are you surprised by this outcome? Why or why not?
2. Does the outcome make sense to you? Explain.3. What would you have done if you were the employer in this situation?

Question 18

A power company began employing women as meter readers, and the job classification went from all-male to all-female within a few years. The labor union that represented bargaining unit employees negotiated a new collective bargaining agreement that froze wages in the meter reader classification and lowered the wage for new hires. There was evidence that the company president made comments concerning the desirability of housewives to read meters and that he admitted that the contract was unfavorable to women. A number of women in the meter reader category filed a state court lawsuit against the employer and union for gender discrimination on the basis of state law and wage discrimination under federal law. The employer argued that the federal labor law preempted the state law gender discrimination complaint, therefore the gender complaint should be dismissed. Is this correct? ( Donajkowski v. Alpena Power Co., 556 N.W.2d 876 (Mich. App. 1996)).

Question 19

Pollis v. The New School for Social Research 132 F.3d 115 (2d Cir. 1997)
A professor sued her college for, among other things, willful violation of the Equal Pay Act. The Court of Appeals held that the fact that the professor had complained about discrepancies between her salary and salaries of male professors on many occasions and the college did not rectify the situation was sufficient to show reckless or willful violation of the Equal Pay Act by the college.Leval, J.
Pollis was hired as a professor of political science at the Graduate Faculty of the New School in 1964. She was granted tenure in 1966, and promoted to full professor in 1976. During her employment at the New School, she twice served as chair of the political science department. Her primary areas of specialty were human rights and Greek politics. According to evidence Pollis submitted at trial, during a 19-year period, her salary was lower than the salaries of five male teachers who were comparable to her.The Equal Pay Act is violated when an employer pays lower wages to an employee of one gender than to substantially equivalent employees of the opposite gender in similar circumstances. A plaintiff need not prove that the pay disparity was motivated by an intention to discriminate on the basis of gender. The New School contends that there is insufficient evidence to support the jury's finding that the New School willfully violated the Equal Pay Act.A defendant's violation of the Equal Pay Act is willful or reckless if "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." Pollis testified that on multiple occasions over several years, she complained to New School decision-makers about discrepancies between her salary and the salaries of male professors. Responses she received indicated an awareness on the part of the administration that her salary level was below that of comparable male teachers. Nonetheless, the school continued to pay Pollis less than comparable male teachers.This evidence-that the New School knew that Pollis was paid less than comparable males, but did not rectify the situation-is sufficient to support the jury's finding of reckless or willful violation of the Equal Pay Act. Therefore, compensatory damages for the Equal Pay Act violation should have been calculated by reference to the three-year limitations period for willful violations, and the resulting compensatory award should be doubled pursuant to the Fair Labor Standards Act's liquidated damages provision. AFFIRMED IN PART, VACATED IN PART, and REMANDED.Case Questions
1. What do you think accounted for the difference in Pollis's salary?
2. If you were the department chair responsible for such things, how would you have avoided this situation?
3. Why do you think the school did not rectify the situation even after the salary differences became clear?

Question 20

An Female employee is terminated for slapping a male employee. The male employee is not disciplined. Is this gender discrimination? Do you know all you need to know? [ Gamboa v. American Airlines , 170 Fed. Appx. 610, 2006 U.S. App. LEXIS 3649 (11th Cir. 2006).]

Question 21

Wedow v. City of Kansas City, Missouri 442 F.3d 441 (8th Cir. 2006)
Female firefighters were not given proper firefighting uniforms (while male firefighters were given two uniforms), which put them at risk for years; were not given restroom or shower facilities; and were otherwise not treated comparable to male firefighters. The court found that despite the fire department's arguments to the contrary, this was gender discrimination.Hansen, J.
Firefighters are each issued two sets of personalized protective clothing called bunker gear, consisting of a coat, pants, boots, helmet, gloves, a tool belt, and a self-contained breathing apparatus. Two sets are necessary because if protective gear becomes wet or soiled with chemicals at one fire, there is a danger of injury from steam when the same gear must be worn at another fire that day. The protective clothing must fit properly to ensure that the body is protected from injury due to smoke, water, heat, gasoline, and chemicals and to ensure the mobility needed while fighting a fire. The City issued and required Ms. Wedow and Ms. Kline to wear ill-fitting male firefighting clothing, although female clothing and gear were available and management officials knew of sources from which female gear could be obtained. Because the protective clothing did not fit Ms. Wedow and Ms. Kline properly, they suffered injuries from fire and chemicals when the coats would not close properly, or too large hats and boots would fall off while fighting a fire. Ms. Wedow's and Ms. Kline's movements were cumbersome and restricted by pants that caused them to trip or prevented them from easily climbing ladders. Excess length in the fingers of gloves made it difficult to grip objects such as the fire hose. The City's failure to procure protective clothing tailored for women and its provision of only male-sized protective clothing to Ms. Wedow and Ms. Kline made their jobs more difficult and more hazardous than was necessary.Despite their complaints, no one in the Fire Department made any effort to provide Ms. Kline and Ms. Wedow with adequately fitting protective clothing from 1990 through October 1998. In October 1998, the Fire Department provided Ms. Kline with one set of female-sized protective clothing, although each male firefighter is given two sets of properly fitting clothing. In late 1998, Ms. Wedow received a female-sized pair of bunker pants and a male-sized coat; she never received a complete set of adequately fitting protective clothing during the relevant time period.Ms. Kline and Ms. Wedow also complained of a lack of adequate restrooms, showers, and private changing facilities (referred to collectively as "facilities"). Showering at the station after fighting a fire is necessary to maintain good health when serving in 24-hour shifts. At a number of stations that Ms. Wedow and Ms. Kline visited on a daily basis as battalion chiefs, the restrooms were located in the male locker rooms with the male shower room, doors were not secure, males had the keys, and where female restrooms existed, they were unsanitary and often used as storage rooms. Food and water for the station's pet dog were kept in the women's room in two stations and sexually explicit magazines and a poster were kept in the female restroom in station 23. Most of the female restrooms that existed did not contain shower rooms and in some stations, the women's shower could be accessed only through the male bunkroom.Department officials were aware of complaints about the facilities as early as 1993. From 1994 through 2000, the Fire Department submitted yearly budgets to the City requesting money for female locker room upgrades, and every year the City allocated money for this purpose, but the money was diverted to a whole-station upgrade at station 4, which already had a female restroom.The City argues that it is entitled to judgment as a matter of law on the claim of disparate treatment in protective clothing and facilities because the plaintiffs failed to demonstrate that they suffered an adverse employment action. "An adverse employment action is a tangible change in working conditions that produces a material employment disadvantage." "Mere inconvenience without any decrease in title, salary, or benefits" or that results only in minor changes in working conditions does not meet this standard.We cannot say as a matter of law that being required to work as a firefighter with inadequate protective clothing and inadequate restroom and shower facilities is a mere inconvenience. Title VII makes it unlawful to discriminate on the basis of sex with regard to the "terms, conditions, or privileges of employment" and prohibits an employer from depriving "any individual of employment opportunities or otherwise adversely affecting his status as an employee" on the basis of sex. The record amply demonstrates that the terms and conditions of a female firefighter's employment are affected by a lack of adequate protective clothing and private, sanitary shower and restroom facilities, because these conditions jeopardize her ability to perform the core functions of her job in a safe and efficient manner. The danger inherent in the job of a firefighter compounded by the need to move and work efficiently in those dangerous circumstances, to quickly change in and out of gear, to shower for health reasons following a fire, and the need to serve in 24-hour shifts, combine to make the provision of adequate protective clothing and facilities integral terms and conditions of employment for a firefighter. JUDGMENT FOR PLAINTIFF AFFIRMED.Case Questions
1. Are you surprised that this is a 2006 case? Why/why not?
2. How do you think the fire department should have responded when the women registered complaints about their uniforms? Explain.3. Why do you think the fire department treated the female employees as it did?

Question 22

American Federation of State, County, and Municipal Employees, AFL-CIO (AFSCME) v. State of Washington 770 F.2d 1401 (9th Cir. 1985)
The state of Washington conducted studies of prevailing market rates for jobs and wages in order to determine the wages for various state jobs and found that female-dominated jobs were paid lower wages than male-dominated jobs. The state then compared jobs for comparable worth and after finding that female-dominated job salaries were generally about 20 percent less than wages in male-dominated jobs, legislated that it would begin basing its wages on comparable worth rather than the market rate, over a 10-year period. State employees wanting the scheme to go into effect immediately brought a Title VII suit against the state alleging it was a violation of Title VII for the state to know of the wage differences and not remedy the situation immediately. The court held that since the state was not responsible for the market rates, it did not violate Title VII.Kennedy, J.
It is evident from the legislative history of the Equal Pay Act that Congress, after explicit consideration, rejected proposals that would have prohibited lower wages for comparable work, as contrasted with equal work. In the instant case, the district court found a violation of Title VII, premised upon both the disparate impact and the disparate treatment theories of discrimination.AFSCME's disparate impact argument is based on the contention that the State of Washington's practice of taking prevailing market rates into account in setting wages has an adverse impact on women, who, historically, have received lower wages than men in the labor market. Disparate impact analysis is confined to cases that challenge a specific, clearly delineated employment practice applied at a single point in the job selection process.The instant case does not involve an employment practice that yields to disparate impact analysis. The decision to base compensation on the competitive market, rather than on a theory of comparable worth, involves the assessment of a number of complex factors not easily ascertainable, an assessment too multifaceted to be appropriate for disparate impact analysis. Unlike a specific, clearly delineated employment policy contemplated by precedent such as those requiring a height and weight requirement or a certain score on an exam, the compensation system in question resulted from surveys, agency hearings, administrative recommendations, budget proposals, executive actions, and legislative enactments. A compensation system that is responsive to supply and demand and other market forces is not the type of single practice that suffices to support a claim under disparate impact theory. Such cases are controlled by disparate treatment analysis. Under these principles and precedents, we must reverse the district court's determination of liability under the disparate impact theory of discrimination.Under the disparate treatment theory, our review of the record indicates failure by AFSCME to establish the requisite element of intent by either circumstantial or direct evidence.AFSCME contends discriminatory motive may be inferred from the Willis study, which finds the State's practice of setting salaries in reliance on market rates creates a sex-based wage disparity for jobs deemed of comparable worth. AFSCME argues from the study that the market reflects a historical pattern of lower wages to employees in positions staffed predominantly by women, and it contends the State of Washington perpetuates that disparity, in violation of Title VII, by using market rates in the compensation system. The inference of discriminatory motive which AFSCME seeks to draw from the State's participation in the market system fails, as the State did not create the market disparity and has not been shown to have been motivated by impermissible sex-based considerations in setting salaries.The requirement of intent is linked at least in part to culpability. That concept would be undermined if we were to hold that payment of wages according to prevailing rates in the public and private sectors is an act that, in itself, supports the inference of a purpose to discriminate. Neither law nor logic deems the free market system a suspect enterprise. Economic reality is that the value of a particular job to an employer is but one factor influencing the rate of compensation for that job. Other considerations may include the availability of workers willing to do the job and the effectiveness of collective bargaining in a particular industry. Employers may be constrained by market forces to set salaries under prevailing wage rates for different job classifications. We find nothing in the language of Title VII or its legislative history to indicate Congress intended to abrogate fundamental economic principles such as the laws of supply and demand or to prevent employers from competing in the labor market. While the Washington legislature may have the discretion to enact a comparable worth plan if it chooses to do so, Title VII does not obligate it to eliminate an economic inequality that it did not create. Title VII was enacted to ensure equal opportunity in employment to covered individuals, and the State of Washington is not charged here with barring access to particular job classifications on the basis of sex.We have recognized that in certain cases an inference of intent may be drawn from statistical evidence. We have admonished, however, that statistics must be relied on with caution. Though the comparability of wage rates in dissimilar jobs may be relevant to a determination of discriminatory animus, job evaluation studies and comparable worth statistics alone are insufficient to establish the requisite inference of discriminatory motive critical to the disparate treatment theory. The weight to be accorded such statistics is determined by the existence of independent corroborative evidence of discrimination. We conclude the independent evidence of discrimination presented by AFSCME is insufficient to support an inference of the requisite discriminatory motive under the disparate treatment theory.AFSCME offered proof of isolated incidents of sex segregation as evidence of a history of sex-based wage discrimination. The evidence consists of "help wanted" advertisements restricting various jobs to members of a particular sex. These advertisements were often placed in separate "help wanted-male" and "help wanted-female" columns in state newspapers between 1960 and 1973, though most were discontinued when Title VII became applicable to the states in 1972. At trial, AFSCME called expert witnesses to testify that a causal relationship exists between sex segregation practices and sex-based wage discrimination, and that the effects of sex segregation practices may persist even after the practices are discontinued. However, none of the individually named plaintiffs in the action ever testified regarding specific incidents of discrimination. The isolated incidents alleged by AFSCME are insufficient to corroborate the results of the Willis study and do not justify an inference of discriminatory motive by the State in the setting of salaries for its system as a whole. Given the scope of the alleged intentional act, and given the attempt to show the core principle of the State's market-based compensation system was adopted or maintained with a discriminatory purpose, more is required to support the finding of liability than these isolated acts, which had only an indirect relation to the compensation principle itself.We also reject AFSCME's contention that, having commissioned the Willis study, the State of Washington was committed to implement a new system of compensation based on comparable worth as defined by the study. Whether comparable worth is a feasible approach to employee compensation is a matter of debate. Assuming, however, that like other job evaluation studies it may be useful as a diagnostic tool, we reject a rule that would penalize rather than commend employers for their effort and innovation in undertaking such a study. The results of comparable worth studies will vary depending on the number and types of factors measured and the maximum number of points allotted to each factor. A study that indicates a particular wage structure might be more equitable should not categorically bind the employer who commissioned it. The employer should also be able to take into account market conditions, bargaining demands, and the possibility that another study will yield different results.We hold there was a failure to establish a violation of Title VII under the disparate treatment theory of discrimination, and reverse the district court on this aspect of the case as well. The State of Washington's initial reliance on a free market system in which employees in male-dominated jobs are compensated at a higher rate than employees in dissimilar female-dominated jobs is not in and of itself a violation of Title VII, notwithstanding that the Willis study deemed the positions of comparable worth. Absent a showing of discriminatory motive, which has not been made here, the law does not permit the federal courts to interfere in the market-based system for the compensation of Washington's employees. REVERSED.Case Questions
1. Do you think that using comparable worth is an effective way to determine salaries?
2. Why do you think male-dominated jobs tend to pay less than female-dominated jobs, even if both have virtually the same value to the employer?
3. What would you do to avoid this situation?