On July 2, 2010, the U.S. District Court in the Northern District of Georgia issued a judgment declaring that employees are protected from discrimination for not conforming to gender stereotypes.  Judge Richard Story granted summary judgment in the case of Glenn v. Brumby, stating that transgendered individuals are protected from employment discrimination under Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment.  Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin.  The plaintiff, Glenn, was an employee of the Georgia General Assembly’s Office of Legislative Counsel (OLC) when she informed her boss that she would begin dressing as a woman instead of a man.  Upon learning of her decision, the OLC fired her.

Judge Story stated, “[w]hile transsexuals are not members of a protected class based on sex, those who do not conform to gender stereotypes are members of a protected class based on sex.”  Transsexuals are individuals who identify with the opposite gender, while transgendered individuals are those who do not conform to gender norms or stereotypes.  The Court further elaborated that everyone, including transsexuals, is protected from employment discrimination for not acting or appearing “manly enough” or “feminine enough,” regardless of their sex, sexual orientation, or gender identification.  Click here for the full opinion.

The employment lawyers of The Employment Law Group® law firm have substantial experience litigating LGBT discrimination claims.  For more information about the firm’s Discrimination Law Practice, click here.

On June 18, 2010, the Fourth Circuit reversed summary judgment in a sexual harassment action brought by the EEOC against Fairbrook Medical Clinic, finding that the lower court erred in holding that the EEOC failed to introduce sufficient evidence to prove a hostile work place.  According to the Fourth Circuit, “[w]hat happened here . . . was not merely general crudity but a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment.” 

The case is E.E.O.C. v. Fairbrook Med. Clinic, P.A., and a copy of the opinion is available here.

The employment lawyers at The Employment Law Group® law firm have extensive experience representing employees in Title VII gender discrimination and sexual harassment claims.  To learn more about the firm’s sexual harassment practice, click here.

On May 18, 2010, Law360 reported on the latest news from Kennedy v. Virginia Polytechnic Institute and State University which we previously blogged about here and here.  The plaintiffs, a group of women working in the school’s development office, originally filed suit in November of 2008, claiming that they were paid less than equally qualified men who held the same fundraising jobs.  The plaintiffs have now filed a motion to certify a class action alleging that the school engaged in a pattern and practice of discrimination against female employees in the development office, paying females on average 15.2 percent less their male counterparts.  The motion seeks to certify a class of all female fundraisers hired between 2005 and 2009, approximately 25 individuals. 

The plaintiffs are represented by Mr. Nick Woodfield, a Principal at The Employment Law Group® law firm.  For more information about Mr. Woodfield and the firm’s Discrimination Law Practice, click here.

On March 26, 2010, Law360 reported on U.S. District Court for the Western District of Virginia Judge James C. Turk’s denial of the defendant’s motion to dismiss a putative class action alleging violations of the Equal Pay Act and Title VII.  The lawsuit, Kennedy et al. v. Virginia Polytechnic Institute and State University, claims that the school consistently discriminated against female employees and applicants and paid them less than their male counterparts. 

According to the complaint, Kennedy was offered a position with a salary $20,500 lower than the starting salary of the male she was replacing.  Explaining the difference in pay, the hiring manger told Kennedy, “you are a woman, and you’re not the head of your household.”  Her would-be predecessor “had a family to support and mouths to feed at home – that is why he was paid what he was paid.”  Further justifying her lower pay, Kennedy was told that, “‘hiring a woman can be a liability’ because ‘they could get pregnant’” and need time off.  A copy of the Memorandum Opinion is available here.

The plaintiffs are represented by Mr. Nick Woodfield, a Principal at The Employment Law Group® law firm.  For more information about Mr. Woodfield and the firm’s Discrimination Law Practice, click here.

On March 1, 2010, it was announced that Wal-Mart reached an $11.7 million settlement with the EEOC, ending an almost nine-year-old class action lawsuit.  The action, filed August 24, 2001, accuses Wal-Mart of discriminating against female job candidates for orderfiller positions at its London, Kentucky distribution center. 

Under the settlement, the first 50 openings for orderfiller positions at the London, Kentucky distribution center must be filled by female class members from a list provided by the EEOC.  For the next 50 orderfiller openings, every other position will be filled by a female class member from the EEOC list.  Thereafter, one of every three available orderfiller positions must be filled by an individual from the list.  Individuals offered the job are still subject to the criteria applicable all applicants for that position. 

In addition, Wal-Mart has agreed not to discriminate against females in filling orderfiller positions, to refrain from retaliating against those who oppose unlawful employment practices or participate in investigations or proceedings under Title VII, and to provide ongoing Title VII training to interviewers and managers.  Wal-Mart will also “make an effort to place its advertisements for employment in local publications which are geared toward female readers.”  A copy of the consent decree is available here.

For more information on The Employment Law Group® law firm’s Employment Discrimination Practice, click here.

Earlier this week, Outback Steakhouse agreed to pay $19 million to settle a sex-discrimination class action brought by the Equal Employment Opportunity Commission.  The suit, filed in 2006, alleges that the company discriminated against female employees by not allowing them to advance to management positions.  OSI Restaurant Partners, the parent company of Outback denies the allegations and stated that settling the suit with funds provided by insurance was preferable to continued litigation.  The settlement also requires Outback to hire an outside consultant and implement an online application system to ensure equal opportunities in the future.  In 2001, Outback settled a sex-discrimination brought by a corporate level female employee for $2.2 million.

For information on The Employment Law Group® law firm’s Discrimination Law Practice, click here.

In the first seven days of this month, the United States Court of Appeals for the Fourth Circuit reversed two lower court rulings in favor of employee-plaintiffs.  In Wesley v. Arlington County, the Court held that the district court erred in its application of the McDonnell Douglas burden shifting framework when it granted a motion for summary judgment for the employer. 

Wesley, a firefighter in Arlington County, Virginia, claimed that she was discriminated against and refused a requested promotion due to her race and sex.  For years she met all of the department’s published and formal objective requirements for promotion to Captain but she was continually passed up by the Chief during a final “roundtable,” where unpublished subjective criteria are discussed. 

The McDonnell Douglas framework requires an employee to present a prima facie case of discrimination which the employer may then rebut by showing an alternative cause for the allegedly discriminatory act.  To be victorious, an employee must then prove that the employer’s cause was merely pretextual.  To survive a motion for summary judgment, an employee need only present a prima facie case.  The Court found that the trial judge wrongly applied the second and third prongs of the McDonnell Douglas frame work when it granted a motion for summary judgment for the County. 

In the second case, Harman v. Unisys Corp., the court granted a motion to dismiss an employee’s numerous discrimination and Fair Labor Standards Act allegations.  The Court agreed with the trial judge’s dismissal of several counts and even stated that the complaint was “cumbersome and voluminous and contains numerous irrelevant allegations.”  However, the Court found that the district court should have allowed the employee an opportunity to refine her pleading and cure formal defects, even if the court doubted her ability to do so.

While these decisions are unpublished and therefore non-binding authority, they nonetheless show an increased willingness of the Court of Appeals of the Fourth Circuit to give employee-plaintiffs an opportunity to properly present their case. 

 For information on The Employment Law Group® law firm’s Discrimination Law Practice, click here.

On October 16, 2009, a magistrate judge for the Eastern District of Virginia denied a protective order filed by the defense.  The defendant in this case, Joseph Zengerle, was seeking to protect former employment records which go back over 20 years.

Mr. Zengerle and his employer, George Mason University, are being sued for sexual harassment, retaliation, assault and battery, and pay discrimination based on sex.  The plaintiff, Kyndra Rotunda, contends that Mr. Zengerle was fired by three previous employers, something the defendant denies.  The plaintiff is seeking information regarding the credibility of Mr. Zengerle and to see if he has any past incidences of sexual harassment.  This favorable ruling was covered by The Blog of Legal Times.  You can read their coverage here.

Mrs. Rotunda is represented by solo practitioner Rick Seymour with The Employment Law Group® law firm serving as local counsel.  For information about The Employment Law Group® law firm’s Discrimination Law Practice, click here.

On August 28, 2009, the Third Circuit issued a ruling in Prowel v. Wise Business Forms, Inc., which clearly states that an employee can bring a claim of gender stereotyping sex discrimination under Title VII.  The case was initiated by Brian Prowel who alleged that his employer harassed him and terminated his employment because of his gender.  According to the complaint, Prowel was subjected to multiple instances of harassment, including being called “Princess” and “Rosebud” because he did not fit in with the other men at Wise, i.e., his effeminate mannerisms did not conform to those of the “stereotypical male.” 

Finding that the examples of harassment that Prowel cited in his complaint were all examples of discrimination based on sexual orientation, the district court granted summary judgment for Wise.  The Third Circuit reversed however, concluding that Prowel may have been harassed because of his failure to conform to gender stereotypes and not only because of his sexual orientation.  According to the court, “[t]here is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.” Accordingly, “as long as the employee…marshals sufficient evidence such that a reasonable jury could conclude that harassment or discrimination occurred because of sex, the case is not appropriate for summary judgment.” 

This ruling is a significant victory for gay and lesbian employees because it affirms the notion that all employees, regardless of sexual orientation, can bring a discrimination claim under Title VII based on a theory of gender stereotyping.  For information on The Employment Law Group® Law Firm’s LGBT Discrimination Practice, click here.

The Fourth Circuit has reversed summary judgment in a case brought by the EEOC, thereby allowing an African-American female to pursue her Title VII hostile work environment claim against her former employer, Central Wholesaler’s Inc.  In EEOC v. Central Wholesaler’s Inc., the EEOC alleged that the company subjected LaTonya Medley to a hostile work environment because of her gender and race.  According to the complaint, Medley was subject to multiple instances of harassment, including, among other things:  (1) hearing her co-workers use the word “b***h” on a daily basis when referring to women, (2) being referred to as a “black stupid n****r”; and (3) having to hear sounds of people having sex because her co-worker watched pornography on his work computer. 
 
Central moved for summary judgment on all of the EEOC’s claims and the district granted its motion.  In its decision the district court held that the alleged conduct was not gender-specific, “not sufficiently severe or pervasive to create a sexually hostile working environment,” and that the company conducted a “reasonable investigation under the circumstances,” with regards to Medley’s complaints that co-workers repeatedly called her n****r.  The Fourth Circuit reversed, finding that the evidence, viewed in the light most favorable to the EEOC, could allow a reasonable jury to conclude that the harassment was:  (1) unwelcome; (2) based on Medley’s gender or race; (3) sufficiently severe or pervasive to alter conditions of Medley’s employment and create an abusive environment; and (4) imputable to Central.  Additionally, the Fourth Circuit held that a jury could find that Central’s actions were not “reasonably calculated to end the [alleged] harassment.”  In reaching its decision, the Fourth Circuit relied on the fact that Central failed to take remedial actions that “a rational jury could find would have been reasonably calculated to end the harassment,” i.e., demoting the four primary offenders, suspending them from work, reducing their pay, or issuing them written reprimands.  In sum, the Court concluded that “Central’s response was not sufficient [] to warrant summary judgment,” and thus, remanded the case to the lower court. 
 
This decision is significant because it reminds employers that remedial action and not just words, is necessary to combat harassment.  For information on race and gender-based discrimination, visit The Employment Law Group® Law Firm’s Discrimination Practice at http://employmentlawgroup.net/PracticeAreas/Discrimination-Law.asp.