You have an “Ellen DeGeneres kind of look.”
A woman hotel desk clerk was fired because she did not meet “the pretty
Midwestern girl look” desired by her manager. During the subsequent lawsuit, Lewis v. Heartland Inns of America, the hotel manager testified that the
clerk had an “Ellen DeGeneres kind of look” and was “tomboyish” because
she wore loosely fitting clothes, short hair and no makeup. Since sex stereotyping is covered as sex discrimination under Title VII, the court found there
was sufficient evidence to believe the clerk was improperly fired for failing to
meet the manager’s stereotype of how a woman should or should not appear
(8th Cir., 2010).
Sex Stereotyping
Protection for those perceived as gay or lesbian.
Sexual stereotyping under Title VII and state laws includes not fitting the
stereotype of being a “proper male.” Under New York state laws, it also
includes being “perceived as gay.” A man was fired from his public-relations
job at a New York men’s clothing manufacturer because the management
perceived him to be homosexual. But in Padmore v. L.C. Play Inc., the evidence showed overt e-mails to the plaintiff from the owner stating that he
was being let go because of “company image … models and other people have
questions about your sexuality and my company can’t afford to be attached to
any gay [expletive]. How does it look for a men’s clothing line to have a fruitcake as the spokesperson, not my company.” The court found clear evidence
that the employee was fired because he was “perceived” as gay and certified
the case to proceed to trial (S.D.N. Y., 2010).
Gender Discrimination
When it’s over, it should be over.
A male restaurant waiter filed a valid claim for sexual harassment, based
on his female manager’s post-breakup continuing romantic advances.
Although the manager was told that the relationship was over and further
attention was unwelcome, she continued advances, including repeated
grabbing and touching. In Turner v. The Saloon Ltd. (7th Cir., 2010), the
court found that while these same attentions may once have been mutually
welcome, once the consensual relationship ends, the unwelcome attention
fits the definition of sexual harassment.
Motherhood does not equate to sex discrimination.
A regional sales manager objected to travel requirements because she was
the mother of two young children, and her company did not decrease her
travel requirements. She subsequently sued for sex discrimination. But in
Feinerman v. T-Mobile USA (S.D.N. Y., 2010), the court dismissed the case
and found no gender discrimination. A mother has no more protection than
a father. As long as a company uniformly imposes travel requirements,
there is no discrimination.
Discrimination
Court rejects “political
correctness” standard.
“[I]t would be unfortunate if
the courts forced the adoption of an employment culture
that required everyone in the
structure to be careful so that
every remark made every day
passes the employment equivalent of being politically correct
lest it be used later against the
employer in litigation.” This was
part of the 3rd Circuit Court’s
ruling in dismissing an age-discrimination case in Hyland v.
American International Group.
A 56-year-old corporate legal
counsel’s job was eliminated,
but a 47-year-old attorney, at a
higher level, was retained. The
plaintiff’s main evidence was
that once, 10 months prior to the
layoff, a manager had called him
“the old man of the operation.”
The court ruled that this stray
remark was too isolated and
unrelated to any tangible decision to constitute valid evidence
for discrimination, finding it
virtually impossible for people
at work not to make occasional reference to age, gender,
physical condition, etc. Indeed,
adopting a “purity” standard
would make every birthday
card, get-well wish or comment a future potential age- or
disability-discrimination issue.
Age
June 2010 177
