October Legal Roundup: 'You're Not That Pretty'

Here’s the latest on some employment-related cases that have gone before the courts:


Age Discrimination | Sex Discrimination | Sexual Orientation Discrimination | Racial Discrimination

Age Discrimination

“Not that pretty!”

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A female city attorney sued for age and sex discrimination. She alleged that she was paid less than male and younger staff, and then discharged when she filed a complaint with the state Department of Labor.

The court found evidence of both age and sex discrimination. A male supervisor told her she was “not that pretty.” Another male supervisor told her that previous female attorneys were gorgeous and wore tight sweaters and short skirts.

The attorney had an excellent record of performance evaluations. She was fired without the standard pretermination hearing and was replaced by two men who were substantially under age 40.

The court ruled that she could pursue her claims against the city.

Tober-Purze v. City of Evanston (N.D. Ill., 2013)

“Lookism” is not a protected category, but “old and ugly” are two sides of the same coin for age.

A 53-year-old female property manager was told her position was being eliminated. Then she was promptly replaced by a younger hire.

The court found ample evidence of age discrimination. The company CEO had made comments to others that he wanted someone younger and prettier to meet potential clients and be involved in business social events; he allegedly said that the manager is “old and ugly . . . who would want to lease from her” In its defense, the company claimed that “lookism” is not a legally protected category (“ugly” or “pretty”).

The court found that in this situation, the “old and ugly” comments were simply “two sides of the same coin” referencing age. The EEOC obtained a $140,000 settlement of the case.

EEOC v. Kanbar Property Management (N.D. Okla., 2013)

Associational disability and age cause reversal of hiring decision.

A supervisor recommended hiring a scheduler who was the most qualified applicant and had previously worked for the company. A higher manager reversed the recommendation, stating that the candidate was 56 years old and had a wife with cancertoo old and too many complications.

The supervisor objected and was disciplined for insubordination for having done so. The company then hired a 30-year-old who had previously been rejected as “unqualified.”

The court found clear age and disability discrimination.

EEOC v. DynMcDermott Petroleum Operations Company (5th Cir., 2013)

Sex Discrimination

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Dating service pays $1 million to settle sex discrimination and retaliation claims.

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A nationwide matchmaking service has agreed to settle a case alleging it discriminated against men in hiring for sales reps and dating directors. It also allegedly fired its HR manager when she protested the bias against male applicants.

She will receive $130,659; the remaining funds will go to male applicants who were rejected for jobs.

EEOC v. It’s Just Lunch USA, LLC (S.D. Fla., 2013)

Action after complaint was not enough; company should have used reasonable care earlier.

An insurance company’s branch office had a male supervisor and four female employees. The supervisor engaged in ongoing sexual comments and banter, and used nonverbal hand gestures imitating stroking or groping the employees’ bodies. He claimed it was all in fun, and claimed that the women participated in the banter and enjoyed it. Evidently not.

Two of them filed sexual-harassment complaints. The company then removed the supervisor and fired him. Normally, prompt action will solve the problem and eliminate any liability. In this case, though, the court found enough basis to allow the case to continue.

Over time, other company managers and auditors had visited the branch office and clearly observed the managers’ behaviors. They told central-office management about the “humor” and that at least two of the female employees seemed uncomfortable. There was no follow-up; no action was taken to look into the situation until there was actually a formal complaint.

The company may be liable for the hostile environment during this whole period of inaction.

Pilkington v. Brown & Brown, Inc. (S.D. Ind., 2013)

Sexual Orientation Discrimination

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Lie-detector test asks sexual orientation in hiring process.

A Colorado trooper left the force to be a helicopter pilot. Subsequently, he applied for reinstatement with the State Police. Part of the process was a lie-detector test (police and certain other security positions are exempt from the Federal Polygraph Protection Act).

During the test, he was questioned about his sexual orientation and truthfully answered that he was gay, a fact not previously known to the State Police. He was not rehired, in spite of his prior “stellar” record. He sued under state law.

The Colorado Personnel Board awarded $768,268 for the State Police’s violating the state sexual-orientation discrimination law, which prohibits any inquiry or consideration of sexual orientation in the hiring process. This was the largest award ever made by the Personnel Board.

Williams v. Dept. of Public Safety (Col. Personnel Bd., 2013)

Racial Discrimination

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You have to actually apply for the job before suing over non-hire.

A candidate for a job refused to proceed with the application process unless he was assured that a supervisor he believed to be racially biased would have no involvement. The company and recruitment firm actually wanted him in the position and repeatedly urged him to put in his application. However, it was not going to set a precedent of allowing an applicant to dictate its hiring process or what managers it would or would not use in any process.

The company tried to assure the employee that there would not be bias, but he refused to put in his application without a written guarantee that the manager he did not like would not be involved, claiming that it “would be futile” for him to go to the effort. He then sued under Title VII for racial discrimination when the job went to another applicant.

The case was dismissed. A person may suspect or even have strong evidence of possible bias, but no case can be maintained until that bias has actually occurred. Even if “futile,” one must go through the process in order to have an adverse effect and actual evidence that bias indeed played a role.

Murray v. Beverage Distribution Center (3rd Cir., 2013)

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached atrgregg@boardmanclark.com.

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