Employment Law for Human Resource

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 CHAPTER 7
HIRING AND PROMOTION DECISIONS

Criteria for Hiring and Promotion Decisions

Facially discriminatory policies/practices – BFOQ defense

Grounds for recognizing BFOQ’s

Breiner v. Nevada Department of Corrections

“Sex-plus” cases

Weight and appearance

Sex-stereotyping

Lewis v. Heartland Inns of America

Subjective criteria

The Changing Workplace: Legal implications of changes in jobs and hiring criteria

Interviews

Dunlap v. Tennessee Valley Authority

Offering and Accepting Employment

Obstacles to Advancement on the Job

Promotions

“Glass ceilings”
 CASE QUESTIONS

Breiner v. Nevada Department of Corrections

610 F.3d 1202 (9th Cir. 2010)

In response to a report that a female inmate at the Southern Nevada Women’s

Correctional Facility had been impregnated by male guard, the Inspector General of the
corrections department conducted an investigation. The IG found, among other things,
that SNWCF had become "an uninhibited sexual environment." There were "frequent
instances of inappropriate staff/inmate interaction," "flirtatious activities between staff
and inmates," and "widespread knowledge" of "long-term inmate/inmate sexual
relationships." In exchange for sex, contraband, including alcohol, narcotics, cosmetics,
[and] jewelry," was introduced into the facility. The case garnered intense media
attention and the private corporation that had been operating the facility under contract
determined that it would no longer continue to do so. When the state of Nevada took over
day-to-day responsibility for the SNWCF, the corrections department resolved to avoid
further scandal. The facility was to be re-staffed such that seventy percent of the front
line guards would be women. They also decided to hire only women for the SNWCF's
three correctional lieutenant positions. “Correctional lieutenants are shift supervisors and
are the senior employees on duty seventy-five percent of the time. Correctional
lieutenants report to wardens or deputy wardens and are responsible for supervising the
prison's day-to-day operations, including directing the work of subordinate staff,
inspecting the facility and reporting infractions, and monitoring inmates' activities and
movement through the facility. Although it was specified that "only female applicants
will be accepted for these positions," several males applied for the positions. Only
women were hired for the lieutenant positions.

1. What were the legal issues in this case? What did the court decide?

The issues were whether the department’s policy of hiring only women as lieutenants for
female correctional facilities was lawful because it limited the employment opportunities
of males to only a minor extent and/or because being female was a bona fide
occupational qualification for the job of lieutenant. The district court had granted
summary judgment to the corrections department on both of these grounds. The appeals
court reversed both holdings.

2. Why did the court reject the NDOC’s “de minimis” argument?

The corrections department argued that any adverse effect on males was minimal because
these were the only three lieutenant positions in the state reserved for males and that 29
out of 37 of the lieutenant positions filled within the past four years went to men. The
appeals court makes clear that a sex discrimination claim can be brought based on the
reserving of any positions for persons of one sex, even though numerous other positions
remain open to persons of both sex. Nor does it matter for purposes of a disparate
treatment claim that others within the same protected class group are successful in
obtaining employment opportunities. The issue is whether the individual plaintiff’s
employment opportunities were discriminatorily limited. A case relied upon by the
district court was inapposite because it involved a matter of job assignments. The court in
that case ruled for the employer not because only a small number of positions were
involved, but because the alteration of job assignments, as opposed to the likes of a hiring
or promotion, is not an adverse employment action.

3. What criteria for establishing a BFOQ are discussed in this case?

To establish a BFOQ, an employer bears the burden of proving “1) that the job
qualification justifying the discrimination is reasonably necessary to the essence of its
business; and 2) that [sex] is a legitimate proxy for the qualification because (a) it has a
substantial basis for believing that all or nearly all [men] lack the qualification, or . . . (b)
it is impossible or highly impractical . . . to insure by individual testing that its employees
will have the necessary qualifications for the job.”

4. Why was the NDOC’s BFOQ defense not successful? How is this case different from
other corrections cases in which the BFOQ defense was established?

The corrections department’s rationale for why it wanted only female lieutenants was
diffuse and varied somewhat according to who was telling the story, but boiled down to a
need to "reduce the number of male correctional employees being compromised by
female inmates." They believed that the gender restriction would accomplish this because
(1) male correctional lieutenants are likely to condone sexual abuse by their male
subordinates; (2) male correctional lieutenants are themselves likely to sexually abuse
female inmates; and (3) female correctional lieutenants possess an "instinct" that renders
them less susceptible to manipulation by inmates and therefore better equipped to fill the
correctional lieutenant role. The appeals court said that the employer had not
substantiated that male lieutenants were more likely to permit sexual abuse by male
guards or that there were no more individualized means of assessing the propensity to do
so. There was also a lack of evidence that male lieutenants were more likely to sexually
abuse female inmates, particularly in light of the limited daily contact that lieutenants, as
opposed to guards, had with inmates. The court dismissed the argument about unique
qualities of women as an unsubstantiated stereotype. Cases in which sex-based BFOQs
were recognized in correctional settings included situations where there was an inordinate
level of sexual abuse by staff or the clear potential existed for loss of control over the
facility due to the behavior of inmates. The fact that problems occurred with male
lieutenants at a time when the prison was being poorly run by a contract company did not
provide sufficient grounds for banning males from holding these positions now.
Numerous alternatives were available to the corrections department, including closer
supervision of lieutenants, more training, more careful background checks,
investigations, and disciplinary action against offenders. The department could not shirk
its oversight responsibility by establishing a facially discriminatory policy. Nor was it
clear why the department had focused on the lieutenant position. There was not any
evidence found by the IG of sexual relationships with inmates involving lieutenants
rather than guards. It was a guard who had impregnated the female inmate in the incident
that ignited the scandal. Yet, the department did not seek to establish a BFOQ for the
guard position (although if it was serious about having seventy percent of guard positions
staffed by females, that policy would also be facially discriminatory) and planned to
continue to operate with both male and female guards.

5. Do you agree with the court’s decision? Why or why not?

Lewis v. Heartland Inns of America

591 F.3d 1033 (8th Cir. 2010)

The plaintiff in this case is a female who had worked in various capacities for a hotel
chain, including temporary stints as a front desk “guest service representative.” Her
performance was praised by a number of different supervisors. She was eventually
offered a full-time position as a day-time front desk person. The woman was not
interviewed prior to the offer. However, when the Director of Operations saw her
working at the front desk several weeks later, she told the hotel manager that she was not
sure that the woman was a "good fit" for the front desk job. She said that the plaintiff,
who is somewhat masculine in appearance; prefers to wear loose fitting clothing,
including men's button down shirts and slacks; avoids makeup; and wears her hair short
“lacked the ‘Midwestern girl look.’” The Director of Operations ordered that the women
be returned to a night clerk position, a move that was resisted by the hotel manager.
Around this time, the hotel chain decided that hiring for the front desk position would
require a second interview and it purchased video equipment enabling top managers to
see applicants before extending offers. After she had been on the job for about a month,
the woman was informed that a second interview would be required in order to
"confirm/endorse" her A shift position. The woman was aware of what had been said
about her appearance. She told the Director of Operations that she believed a second
interview was being required only because she lacked the "Midwestern girl look" and she
questioned whether the interview was lawful. The woman was invited to share her views
about new policies at the hotel and she suggested that some of them might have
contributed to a drop in revenue at the hotel. The woman was terminated three days later,
on the grounds that she had "thwarted the proposed interview procedure" and exhibited
"hostility toward … recent policies." [In the course of litigation, “poor job performance”
was cited as an additional basis for termination]

1. What were the legal issues in this case? What did the court decide?

The first issue was whether the district court had properly granted summary judgment to
the employer on the plaintiff’s disparate treatment claim based on sex-stereotyping. The
second issue was whether a grant of summary judgment was proper on her claim that she
was retaliated against for speaking out about what she believed to be discriminatory
appearance requirements. The appeals court reversed and remanded on both claims.

2. What was the evidence of sex-stereotyping in this case?

An employer who denies an employment opportunity based on gender non-conforming
behavior or appearance, is engaging in sex discrimination because the discrimination
would not occur but for the victim's sex. The sex-stereotyping was engaged in by the
Director of Operations, a primary decision maker with authority to hire and fire
employees. She consistently indicated that female front desk workers must be "pretty,"
and she criticized Lewis' lack of the "Midwestern girl look" in the same conversation in
which she ordered the hotel manager to move the plaintiff back to a night audit position.
The Director of Operations had authorized the hiring, but then insisted on a second
interview weeks after the employee was hired once she saw her "tomboyish" appearance.
She demanded the hotel manager’s resignation after she refused to remove Lewis from
her position.
Along with the circumstantial evidence of a discriminatory motive provided by
the statements about appearance, there was also evidence that the reasons advanced for
the termination were pretext. Regarding the allegation of poor job performance, which
surfaced only after-the-fact, there was evidence from numerous quarters that the plaintiff
had been performing her job well since she began with the hotel chain. She had received
merit pay raises and was singled out by a customer for her exemplary customer service.
The purchase of video equipment occurred immediately after the Director of Operations’
first meeting with the plaintiff. The second interview to which the plaintiff was subjected
was, at best, a newly invented policy and one that was not followed with respect to other
employees transferred to the day shift. The hotel chain failed to follow its own written
termination procedure, which included considering the employee’s disciplinary record
(which was clean in this case) and conducting an investigation before making a
termination decision. Despite the plaintiff’s complaints about discrimination to the
company’s EEO officer, that individual accepted the Director of Operations’ account of
the meeting without asking the plaintiff for her own. Insofar as she was terminated just
days after a meeting in which she questioned the legality of the re-interview process,
there was also a prima facie case of retaliation and the same evidence of pretext applied
to the retaliation claim.

3. Is this also a sex-plus case? Why or why not?

No. Proof of facially discriminatory, sex-plus discrimination would require comparative

evidence regarding different and less stringent appearance requirements placed on male
employees. No such evidence was presented. The plaintiff did not challenge the formal
dress code for the hotel chain, which imposed “comparable standards of professional
appearance” on both male and female employees. Instead, she argued that the relevant
decision maker had a de facto requirement that females working the day shift conform to
her sex-stereotypical appearance expectations.

4. In a dissenting opinion, one of the judges who heard this case wrote that
“[a]pparently, the majority would hold that an employer violates Title VII if it declines to
hire a female cheerleader because she is not pretty enough, or a male fashion model
because he is not handsome enough . . . .” Do you agree? Was this case correctly
decided? Why or why not?
Appearance standards are fraught with discriminatory potential. This is not a case where
the employer admitted to applying its appearance standards, however subjective they
might be. The nature of the de facto appearance standard allegedly applied in this case
goes considerably beyond a desire that employees be attractive or handsome. The
Director of Operations refers to the plaintiff as lacking a “Midwestern girl look” and as
being “tomboyish.” These characterizations are much more closely tied to sex-
stereotyping than would be a general desire to hire attractive employees. The boundaries
of the sex-stereotyping theory are difficult to define, but this does seem to be a case
where an employee who was doing her job well lost her job because her employer
thought that she was insufficiently feminine.

5. What, if any, appearance policy would you recommend for a hotel?

General standards of appropriate appearance and attire are called for in a customer
service industry, but these should be fundamentally the same for male and female
employees and should not be left to the whims of individual decision makers.

Dunlap v. Tennessee Valley Authority

519 F.3d 626 (6th Cir. 2008)

The plaintiff was a 52 year-old African-American male. He was a boilermaker for 20

years, with nearly 15 years of experience as a boilermaker foreman. Much of this
supervisory experience was gained at TVA facilities, where he worked in a variety of
temporary and contract positions. He had sought unsuccessfully for many years to obtain
a permanent position with the TVA. In the hiring round in question, 21 candidates
interviewed for 10 available positions. The selection committee was comprised of 5 white
officials and one African-American. The interview process was to count for 70 percent
of a candidate’s total score, with the remainder based on “technical expertise.” After each
interview, scores given by individual members of the selection committee were reviewed
and a “score balancing” process was used to “even out” the scores. The plaintiff was not
hired. He alleged that was more qualified than some of the other candidates. The
plaintiff’s score on technical expertise was equal to that of other candidates selected, but
due to his relatively low interview score, he was not hired. One African-American
candidate, a veteran with 30 years of experience, was hired.

1. What were the legal issues in this case? What did the appeals court decide?
The plaintiff challenged the interview and selection process under both adverse impact
and disparate treatment theories. The appeals court affirmed the lower court’s judgment
for the plaintiff on his disparate treatment claim, but reversed a judgment for the plaintiff
on his adverse impact claim.

2. Why did the plaintiff’s disparate (adverse) impact claim fail?

The claim failed because the plaintiff was unable to point to a specific employment
practice used by the TVA over a period of time that disproportionately limited the
employment opportunities of African-Americans. From the evidence presented, it
appeared that the hiring procedure used for this particular position differed from the
TVA’s general hiring procedures. The plaintiff “did not present evidence that the
practices used in his interview were ever used for other hiring decisions, so no statistical
proof can show that a protected group was adversely impacted.”

3. Why did the plaintiff’s disparate treatment claim succeed? What was the evidence that
the employer’s reliance on interview scores was a pretext for race discrimination?
The plaintiff established a prima facie case of disparate treatment by showing that he is
an African-American who sought employment, that he met the stated qualifications, that
he was denied employment, and that white applicants with less experience were hired
instead. The TVA cited his interview scores as the non-discriminatory reason for why the
plaintiff was not hired. One indication of pretext was the committee’s decision shortly
before the interviews began to render the process more subjective by giving
overwhelming weight to the interview component. This was contrary to the TVA’s policy
for filling vacant positions that calls for “merit and efficiency” to be the basis for
selection. Scores given to candidates varied widely, even when the candidates gave
nearly identical responses and the questions pertained to ostensibly objective criteria
(e.g., attendance, safety record). The “score balancing” process seems to have allowed for
manipulation of scores. There was evidence that some scores had been changed as many
as 70 times. Although being told that it was very important to establish criteria for rating
candidates as “well-qualified” and “qualified” before the interview process began, the
committee failed to do so. Instead, candidates were placed into these categories after the
interviews were completed and candidates had been ranked, ensuring that the number of
candidates labelled well-qualifed would exactly equal the number of job openings.
“Because of these irregularities, the hiring matrix score offered by the TVA as a
legitimate reason for Dunlap’s rejection cannot be relied upon.” The selection process
was used to “mask [TVA’s] preferential hiring” and to “select one black applicant that
would satisfy the TVA central management.”
4. Do you agree with the decision? Why or why not?

5. What should the TVA have done differently with regard to interviewing and selecting
candidates for these jobs?

If the committee genuinely desired not to discriminate, they would have focused on the
TVA’s stated hiring criteria and not given such overwhelming weight to the subjective,
flawed interviews. The interviewers should have been trained in rating the performance
of interviewees. Criteria and standards for assessing interview performance must be
established before interviews are conducted. Scores need to be assigned in as consistent a
fashion as humanly possible. While rational procedures for averaging scores or
eliminating extreme scores can be used, scores should not be altered in an arbitrary
fashion. Interview scores should be explicable with reference to the strength or weakness
of particular responses.
 JUST THE FACTS
A hospital had the following policy: “All pregnant personnel must immediately report
pregnancy status to the director. … The pregnant personnel shall not partake in any
fluoroscopy or portable procedures during her term. This will ensure safety and
protection.” Fluoroscopy involves high-intensity radiation and the procedure is carried
out by a medical team that includes a cardiologist, registered nurse, and radiology or
cardiovascular technologist. The EEOC sued the hospital based on the policy and its
effect on two female employees who were re-assigned to work in other areas of the
hospital during their pregnancies. (EEOC v. Catholic Healthcare West, 530 F. Supp. 2d
1096 (C.D. Cal. 2008))

The main issues in this case were whether the challenged policy was facially
discriminatory, and if so, whether the employer could establish a BFOQ for restricting
these jobs to non-pregnant employees. The court held that the policy was facially
discriminatory toward pregnant employees. This fact was not altered by the employer’s
good intentions in devising the policy or by the fact that the two pregnant employees
requested removal from the fluoroscopy room and re-assignment to monitoring activities.
This “request” was made only because the hospital’s policy forced pregnant employees to
either transfer out of fluoroscopy altogether or arrange an alternative work assignment.
Any requests made by the employees were directly in response to their realization that
they would not be permitted to remain at their normal jobs in the department.
Regarding the BFOQ defense, the hospital failed to show that pregnant employees
are less capable of performing jobs in the fluoroscopy department than are non-pregnant
employees. The hospital relied on the argument that its policy was designed to protect
pregnant women and their fetuses. The court noted that while federal regulations
establish a more stringent radiation limit for “declared pregnant women,” these
regulations, unlike the hospital’s policy, do not require that women report their status to
their employer. Most importantly, the court relied on the Supreme Court’s ruling in
Johnson Controls. There, the court rejected the BFOQ defense for a fetal protection
policy intended to protect pregnant employees from lead exposure. While there is risk in
such exposures and in late-term employment generally, the Court held that such decisions
were better left to women than their employers.

A female bartender had worked at Harrah’s Casino for 20 years. During that time, her
job performance had consistently been rated as excellent. A “Beverage Department
Image Transformation” program was implemented. Under the program, all beverage
servers were to be “well-groomed, appealing to the eye, firm, and body toned.” Female
beverage servers were required to wear stockings, use colored nail polish, and wear their
hair “teased, curled, or styled.” Additionally, women were required to wear makeup.
Male beverage servers were prohibited from wearing makeup or colored nail polish and
required to maintain short haircuts and trimmed fingernails. The bartender specifically
objected to the makeup requirement. She tried wearing makeup on the job once
previously, but found that it made her feel like a sexual object and that it was more
difficult to deal with unruly guests. Based on her refusal to comply with the makeup
requirement, the bartender was terminated. What should the court decide? (Jespersen v.
Harrah’s, 444 F.3d 1104 (9th Cir. 2006)

An appeals court panel affirmed the district court’s grant of summary judgment for the
employer on the grounds that the plaintiff failed to show that the grooming policy placed
a greater burden on men than women and the sex-stereotyping theory only applies to
cases involving harassment of employees who fail to conform to gender stereotypes. The
en banc court affirmed the panel’s decision, but held that grooming policies can be
challenged under the sex-stereotyping theory. The court emphasized that while grooming
and appearance requirements can be the basis for a sex-plus claim, those requirements
must be differentially burdensome on men and women. In the court’s view, most of the
requirements for male and female bartenders in this case – including the basic uniform to
be worn and the desire for a “professional” appearance - were the same. The court
refused to entertain the plaintiff’s general claim that compliance with the make-up
requirement took more time and money for women because she failed to plead any
specific facts in this regard.
While stating that a challenge based on a sex-stereotyping theory could be viable,
the court noted that this was not a case where requirements were put in place to make
female employees sexually provocative or sexual objects. Additionally, the grooming
standards imposed on women did not interfere with their ability to perform the job
requirements of a bartender. The court maintained that the policy had to be analyzed as a
whole, rather than focus only on the stereotypical nature of the make-up requirement.

An African-American woman worked for an employer for 17 years, rising to the position
of Operations Manager. She consistently received satisfactory evaluations and was told
by her supervisor that she had the potential to progress in the company and do well in
upper management. However, she was also placed on a developmental plan to improve
some professional deficiencies, was criticized for weak communication skills, and had
some attendance and punctuality issues. The woman applied for a promotion to Senior
Operations Manager, but was not selected. The next year, another Senior Operations
Manager position became available. Contrary to company policy, the position was not
posted this time. Instead, it was simply announced that a white, female co-worker had
been promoted. The co-worker was highly regarded by her peers, had very good
performance evaluations, and had significant, relevant experience. However, she did not
have a four-year degree, even though the job requisition form stated that a four-year
college degree was required for the position, The African-American woman did have a
four year degree. The supervisor who made the hiring decision relied on a statement in
the job description that substantial experience could substitute for the lack of a degree.
Ultimately, the hiring decision was made by the supervisor based on her firsthand
knowledge of the current operations managers. The supervisor testified that she “did not
consider” the African-American woman to be a candidate for the position. The African-
American employee sued, alleging race discrimination. (Springer v. Convergys Customer
Management), 509 F. 3d 1344 (11th Cir. 2007)
The plaintiff alleged disparate treatment in promotion. The appeals court affirmed the
lower court’s grant of summary judgment to the employer. The existence of a prima facie
case was conceded. The employer offered as its non-discriminatory reason for not
promoting the plaintiff its belief that the person promoted was more qualified. The
plaintiff argued that the fact that the decision maker said she did not consider her as a
candidate precluded the claim that the person promoted was judged to be more qualified.
However, while there is case law to support that general proposition, in this case the
statement was made by a decision maker who possessed first-hand knowledge of the
candidates. It was this knowledge, in addition to awareness of the plaintiff’s performance
deficiencies, that led to the judgment that the plaintiff was not a viable candidate. The
court also relied on the fact that in a promotion case, the plaintiff cannot simply argue
that he or she was somewhat more qualified. Instead, the plaintiff must show that the
disparity in qualifications is great enough that no reasonable person could have regarded
the person selected over the plaintiff as more qualified. That was not the case here. The
plaintiff’s attempt to argue that the successful candidate did not even meet the minimum
educational requirement stated in the job description failed because the description
expressly permitted years of experience to substitute for formal education. The weight
given to experience and other personal qualities, the assessment of which is necessarily
less objective than comparing educational attainment, was nonetheless legitimate
(particularly for a supervisory or managerial position) and not evidence of disparate
treatment. Lastly, the failure to post the position, even though company policy called for
doing so, was not sufficient evidence of pretext. The plaintiff conceded that this policy
was not invariably followed. But the court also said that it would have been superfluous
in this case because the decision maker supervised and had first-hand knowledge of the
candidates.

PRACTICAL CONSIDERATIONS
It is often said that one of the benefits of a diverse workforce is that employees will better
understand and relate to their diverse customers. Does this justify making hiring
decisions on protected class grounds? Assigning work so that the protected class
characteristics of employees and customers match? If not, what should employers do?

If jobs are allocated on the basis of protected class characteristics that is facially
discriminatory. A desire to match the protected class characteristics of customers or
particular market segments does not support the BFOQ defense unless authenticity,
public safety, or privacy interests of customers are clearly implicated. An employer
would be far better off selecting on other grounds that directly get at ability to serve
particular markets (e.g., foreign language proficiency, cultural sensitivity, interpersonal
skills, prior experience). Additionally, locating in a particular area and drawing in a non-
discriminatory fashion from that local labor force will often produce a workforce with the
desired sensitivity to local tastes and customs.
Are workplace appearance and grooming policies necessary? If so, what policy would
you recommend with regard to office workers who have some contact with
clients/customers? To what extent should the policy differentiate between male and
female employees?

Such policies are not necessarily needed for all workplaces, but to the extent that there
are expectations of employees in this regard, and potential consequences for not meeting
those expectations, these should be made explicit. Questions arise as to how general or
specific such policies should be (i.e., is the meaning of “presentable” or “professional”
sufficiently clear?). Should such policies reach the likes of tattoos and jewelry? Hair
length? Facial hair? Weight and body tone? To what extent should they be sex-specific?
Certainly, they cannot impose much greater burdens on one sex than another, reinforce
demeaning sex-stereotypes, or expose employees to harassment, but beyond that, what if
any distinctions should be drawn? How will requests for exceptions to the policy based
on religious practices be dealt with? To the extent that appearance policies prescribe
particular modes of dress, questions may arise as to who pays for those articles of
clothing.

What can an employer do to avoid the situation of making and then withdrawing an offer
of employment?

Some general answers include better planning for staffing needs, using temporary
employees as buffers for employment variability, finding alternative assignments,
agreeing to postpone start dates, or paying the employees to defray the costs incurred.

END OF CHAPTER QUESTIONS

1. Ninety-five percent of the customers of a weight loss center are women. Counselors at
the center sell the weight loss program, interact with customers, provide instruction on
diet programs, counsel customers about their individual weight problems, and monitor
the progress of customers in losing weight. The latter includes taking measurements of
size and body fat using a tape measure and calipers. The measurements involve
considerable physical contact with customers and are sometimes taken on bare skin.
Arguing that many customers would be uncomfortable and embarrassed having men take
their measurements and talk with them about their weight problems, the center hires only
women as counselors. Two previous attempts to utilize male counselors were judged to
have been unsuccessful. A male, denied employment as a counselor at the weight center,
sues. (EEOC v. HI 40 Corp., 953 F.Supp. 301 (W.D. Mo. 1996))

The weight loss center’s policy of hiring only women is facially discriminatory. The
company is liable for sex discrimination against men unless it can show that being female
is a bona fide occupational qualification for the position of weight loss counselor. It was
unable to do so. The court concluded that any intrusion on the privacy interests of female
customers who would prefer female counselors is quite minimal. The court saw the
taking of measurements as the primary threat to privacy. Since measurements were often
taken through clothing, women could refuse and do their own measurements, or
measurements could be foregone entirely, the court characterized privacy concerns as
minimal. Consequently, privacy concerns did not justify a BFOQ based on sex. Nor
could the employer show that the use of males would pose a safety risk or that counseling
on weight loss issues is a talent uniquely possessed by women.

2. After a regional sales director had her first child in 2005, she questioned her boss
about whether it was necessary to attend every out-of-town conference held by the
company. The conferences typically lasted five days. There were originally five
conferences per year and this increased to at least ten. In her view, the conferences
involved mainly social and recreational activities. She was told that attendance was
necessary for team-building and other organizational purposes. When she had a second
child in late 2006, she again pressed the issue of the conferences, telling her supervisor
that she had great difficulty arranging childcare while she was gone. She was given an
ultimatum by her supervisor that she either commit to attending all future conferences or
look for another position in the company that did not require travel. The sales director
did neither and was terminated. She sued, alleging that she, unlike any of the other sales
directors, had been required to commit to attending the conferences because she was a
mother with two young children. What should the court decide? Why? (Feinerman v. T-
Mobile USA, 2010 U.S. Dist. LEXIS 7007 (S.D.N.Y.))

The court granted summary judgment to the employer on the plaintiff’s disparate
treatment sex discrimination claim. The court found that the plaintiff established a prima
facie case by showing that she is a female who was terminated, that she was qualified for
the position she held (even though she failed to carry out all of the responsibilities of the
position), and that there were at least some circumstances supporting an inference of
discrimination. Those circumstances included a joke about men liking to go on business
trips to get away from their families (suggesting that women with children were less
willing or less able to travel than men and therefore less suitable for the Regional
Director position); a notation on a report stating that the plaintiff had two babies
(suggesting that having babies was the woman's most significant accomplishment); and
an e-mail seemingly acknowledging that the work environment may not have been
female-friendly. The employer’s statement that she was terminated for failing to comply
with the expectation that she commit to attending future conferences sufficed as a lawful
motive for termination. The plaintiff was unable to show pretext based on the fact that
she was the only Regional Director required to affirmatively commit to attending the
conferences. Her poor attendance record and repeated requests to miss additional
conferences “belies any assertion that the employer required Feinerman to commit to
attending future conferences based on a discriminatory assumption that Feinerman would
fail to attend conferences because of her child care obligations.”

3.) An applicant who had been in the military for twenty-five years, including in Special
Forces units, received the unanimous recommendation of the selection committee and
was offered a job with the Library of Congress. Over lunch after accepting the position,
“David” informed the hiring manager that she was transgender and that she planned to
start work as “Diane.” She would be transitioning from male to female and would have
sexual reassignment surgery in the future. The hiring manager’s initial reaction was to
say “Why in the world would you want to do that?” She later said “Well, you’ve given me
a lot to think about. I’ll be in touch.” By phone on the next day, the hiring manager
informed “Diane” that “I’ve determined that you are not a good fit, not what we want.”
A male with lower interview scores was hired instead. The library cited concerns about
possible problems obtaining a security clearance (which was needed for this position and
which he had while in the military), possible lack of trustworthiness, the distraction that
transitioning might cause, and possible lack of acceptance by congresspersons and
military sources. Did the employer discriminate in withdrawing the offer? Why or why
not? (Schroer v. Billington, 577 F. Supp.2d 293 (D.D.C. 2008))

The district court ruled in favor of the plaintiff’s sex discrimination claim. In so doing, it
recognized a valid sex-stereotyping claim and more controversially, a claim that
discrimination based on gender identity is inherently sex discrimination. Evidence that
the library’s decision making “was infected by sex stereotypes” included the admission
that when the hiring manager viewed photographs of Schroer in traditionally feminine
attire, with a feminine hairstyle and makeup, she saw a man in women's clothing. The
hiring manager admitted believing that other employees and library patrons would not
take Schroer seriously because they would view her as a man in women's clothing. “What
makes Schroer's sex stereotyping theory difficult is that, when the plaintiff is transsexual,
direct evidence of discrimination based on sex stereotypes may look a great deal like
discrimination based on transsexuality itself, a characteristic that, in and of itself, nearly
all federal courts have said is unprotected by Title VII. … Ultimately, I do not think that
it matters for purposes of Title VII liability whether the Library withdrew its offer of
employment because it perceived Schroer to be an insufficiently masculine man, an
insufficiently feminine woman, or an inherently gender-nonconforming transsexual. …
While I would therefore conclude that Schroer is entitled to judgment based on a …
claim for sex stereotyping, I also conclude that she is entitled to judgment based on the
language of the statute itself.”

“Schroer's second legal theory is that, because gender identity is a component of sex,
discrimination on the basis of gender identity is sex discrimination. * * * The evidence
establishes that the Library was enthusiastic about hiring David Schroer -- until she
disclosed her transsexuality. The Library revoked the offer when it learned that a man
named David intended to become, legally, culturally, and physically, a woman named
Diane. This was discrimination "because of . . . sex." Imagine that an employee is fired
because she converts from Christianity to Judaism. Imagine too that her employer
testifies that he harbors no bias toward either Christians or Jews but only "converts." That
would be a clear case of discrimination "because of religion." No court would take
seriously the notion that "converts" are not covered by the statute. Discrimination
"because of religion" easily encompasses discrimination because of a change of religion.
But in cases where the plaintiff has changed her sex, and faces discrimination because of
the decision to [*307] stop presenting as a man and to start appearing as a woman,
courts have traditionally carved such persons out of the statute by concluding that
"transsexuality" is unprotected by Title VII. In other words, courts have allowed their
focus on the label "transsexual" to blind them to the statutory language itself.
“For Diane Schroer to prevail on the facts of her case, however, it is not necessary to
draw sweeping conclusions about the reach of Title VII. … [T]he Library's refusal to hire
Schroer after being advised that she planned to change her anatomical sex by undergoing
sex reassignment surgery was literally discrimination "because of . . . sex."

4. A company that sold playground equipment established a new, unwritten dress code.
All employees were expected to purchase and wear khaki pants. Male employees were
expected to purchase and wear denim shirts with the company logo. Female employees
were required to purchase and wear a navy blazer over a polo shirt. The policy was
intended to “create a more professional image” of sales employees. However, comments
were also made that the reason for requiring blazers for women was to “cover up their
boobs and [bottoms].” It was also stated by the individual charged with developing the
policy that “women should wear blazers because this is a man’s world and to keep up
with men, women have to be one up on them.” A female employee resisted the new policy
and stated on a number of occasions that she could not afford to purchase the required
blazers. After reporting to work wearing the denim shirt with company logo and khaki
pants, and stating that she did not intend to wear the blazer, the woman was terminated.
After the termination, the dress code policy was put into writing. The terminated
employee sued. What should the court decide? Why? (Rohaly v. Rainbow Playground
Depot, 2006 Wash. App. LEXIS 1917 (App. Ct., Div. One))

The plaintiff claimed that the dress policy discriminated against female employees. Her
Title VII disparate treatment claim was allowed to go to trial. The court rejected the
plaintiff’s argument that the dress policy was facially discriminatory because only
women were required to purchase and wear blue blazers. The court reviewed the case
law on appearance policies and determined that this policy was more like the sex-
differentiated appearance policy in Jespersen v. Harrah’s than those in other cases where
courts concluded that the policies were more burdensome on one sex than the other. The
dress policy applied to all employees. Male employees were required to purchase and
wear polo shirts or denim shirts with a logo. Women had to wear polo shirts and a blue
blazer. The court saw this policy (despite the obvious difference of the blazer for women)
as imposing financial burdens on employees of both sexes and thus as not being facially
discriminatory. However, the court also recounted the numerous sexist remarks made by
company managers and held that such sex-stereotyping could provide evidence of a
discriminatory motive for the plaintiff’s termination.

5. A woman with four children (6-year-old triplets and an 11-year-old) was passed over
for promotion in favor of another woman with two children (a 10-year-old and a 15-year-
old). One of the three supervisors who made the promotion decision stated that “It was
nothing you did or didn’t do. It was just that you’re going to school, you have the kids,
and you just have a lot on your plate right now.” She also said that she and the other
supervisors agreed that they would feel “overwhelmed” in the same circumstances.
When one of the supervisors was first informed that the woman had triplets, she
responded, “Oh my—I did not know that you had triplets … Bless you!” After answering
a question during her interview about how she would handle a subordinate who failed to
finish an assigned task on time, one of the supervisors responded, “You are a mother …
would you let your kids off the hook that easy …?” The woman sued, advancing a sex-
stereotyping theory. What should the court decide? Why? (Chadwick v. Wellpoint, Inc.,
561 F.3d 38 (1st Cir. 2009))

The plaintiff sued under Title VII alleging disparate treatment against a female caregiver
based on sex-stereotyping. The appeals court reversed the lower court’s grant of
summary judgment to the employer. ”Given what we know about societal stereotypes
regarding working women with children, we conclude that a jury could reasonably
determine that a sex-based stereotype was behind Miller's explanation to Chadwick that,
"It was nothing you did or didn't do. It was just that you're going to school, you have the
kids and you just have a lot on your plate right now." Particularly telling is Miller's
comment that, "It was nothing you did or didn't do." After all, the essence of employment
discrimination is penalizing a worker not for something she did but for something she
simply is. A reasonable jury could infer from Miller's explanation that Chadwick wasn't
denied the promotion because of her work performance or her interview performance but
because Miller and others assumed that as a woman with four young children, Chadwick
would not give her all to her job. This view is buttressed by the fact that the denial
occurred just two months after the decision maker learned about the number of young
children the plaintiff had, the decision maker reacted in a way that could be construed as
expressing sympathy for the plaintiff’s perceived child care burden, and the explanation
for the decision to deny promotion shifted over time. The court stressed that it was not
deciding the final outcome of the case, but that the evidence of sex-stereotyping was
sufficiently strong to permit a reasonable jury to decide for the plaintiff.

6.) A 350 pound man interviewed for a job as a Sales Counselor for a weight loss center.
He was told by the interviewer that he was the “most qualified” applicant, but that the
regional manager had concerns about his weight. He was later informed that he would
not be hired now because the company is “image conscious” and his weight would “send
the wrong message.” He was told to re-apply for employment after losing seventy
pounds. The man sued. What should the court decide? Why? (Goodman v. L.A. Weight
Loss Centers, 2005 U.S. Dist. LEXIS 1455))

The candidate challenged the non-hiring under the ADA, claiming that the company
perceived his morbid obesity to be a disability. The district court granted the employer’s
motion to dismiss the case. The court noted that in order to show that he was regarded as
being substantially limited in the major life activity of work, there would have to be
evidence that the employer regarded him as being substantially limited in performing a
wide range of tasks or jobs. This was lacking. At most, the employer made a judgment
regarding his suitability for a single position. The comments about his being the “most
qualified” candidate further show that he was not regarded as being unable to work. The
court flatly states that employers are permitted to make hiring decisions “based on certain
physical characteristics.” The fact that the employer chose not to hire an otherwise
qualified candidate based on his physical appearance and that this was arguably
inconsistent with the values espoused by the company was not sufficient to state a claim
under the ADA.

7. A woman applied for a part-time position in human resources. At the time she applied,
she was working part-time for a benefits consulting company and received the same
benefits as full-time employees. During interviews and negotiations with the prospective
employer, the woman was repeatedly told that she would receive the same benefits as the
company’s full-time employees. The letter of offer listed specific benefits, including life
insurance, disability, and accidental death and dismemberment, to which she would be
entitled after a thirty-day waiting period. The letter also stated she that should “review
the Employee Handbook for further information” and that the company retained the
“right to change benefit programs at any time …” Immediately upon taking the job and
receiving a copy of the employee handbook, the woman was dismayed to find that she
would not be entitled to the full range of benefits received by full-time employees.
Specifically, she would not receive life, AD&D, or long-term disability insurance. The
woman complained to the Director of Human Resources about having been mislead
regarding her benefits, and was terminated three days after starting on the job. The HR
Director claimed that she was being terminated due to a confrontational personality and
lack of a good fit with the culture of the company. She sued. What should the court
decide? Why? (Timpe v. WATG Holdings, 2008 U.S. Dist. LEXIS 45562 (D. Haw.))

The plaintiff raised a variety of claims, but the most relevant ones for purposes of this
chapter were promissory estoppel and fraudulent misrepresentation. Regarding the
promissory estoppel claim, the plaintiff asserted that a “promise” had been made – to
provide certain benefits if she accepted the job – and that it was reasonable for her to rely
on that promise. The employer argued that since it had reserved the right to change
benefit programs at any time, no promise had been made. However, the court
distinguished between a change in benefit plans and the decision to belatedly inform the
plaintiff that she would not be eligible to participate in the existing benefit plans. The
employer’s statement was conditioned on a change in the plan, while it was a decision to
not cover her under the existing plans that affected the plaintiff. The combination of the
letter of offer and the statements of interviewers was sufficient to constitute a promise.
Her reliance was reasonable and it resulted in the plaintiff suffering losses associated
with quitting her previous job.
The plaintiff was also allowed to proceed with a misrepresentation claim. The
court determined that this claim did not merely re-state a breach of contract claim. A
number of things were done with the intent of inducing the plaintiff to quit her job and
these actions – including verbal assurances that she would be covered as a full-time
employee and providing her with a benefits summary sheet that indicated she would be
covered – occurred prior to an employment agreement being reached. Whether the
information was provided with knowledge that the company did not intend to allow her to
participate in the benefit plans is not discussed in this decision, but presumably would
have to be shown in order to establish fraud.
8. An African-American employee sought promotion to a chemist position with
supervisory responsibilities. Promotions were based on the results of “certification”
(based on education and work experience) and an interview. Because of his extensive
experience, the African-American employee received a score of 89 on the certification.
The second-ranked candidate scored 28 points lower. A panel of three (all white persons)
interviewed the five candidates deemed qualified after the certification process.
Interviews were scored and a candidate’s score was the average score given by the three
interviewers. The highest score on the interview was a 52, and the African-American
employee ranked third with a score of 48. The interviewers attributed the lower score to
the employee not clearly explaining how his skills would be used on the job and how he
planned to move the county’s environmental programs forward. The white male who
scored highest on the interview was promoted, despite the fact that he had scored 34
points lower in the certification stage. The company has an informal policy of hiring
from within for promotional positions, although it did not always do so. The African-
American employee sued. What should the court decide? Why? (Obi v. Anne Arundel
County, Maryland, 142 F. Supp. 2d 655 (D. Md. 2001); affirmed, 2002 U.S. App. LEXIS
2716))

The employee alleged disparate treatment based on race and national origin. The court
found for the employer. The employee established a prima facie case for discriminatory
failure to promote. The County attributed its promotion decision to Obi’s poor
performance on the interview. The court stated that it is not enough for plaintiff’s to
allege superior qualifications; they must also show evidence of discriminatory intent. In
this case, the court opined that any differences in the qualifications of the appointed
employee and Obi were not so great as to render clearly pretextual the employer’s claim
that the employee it promoted was more qualified. The court also said that it was
inconsequential that the employer had a stated policy of “promoting from within
whenever possible.” Although Obi was the only internal candidate, he failed to show that
this “somewhat vague aspirational policy” was not adhered to due to his race or national
origin. The claim that the more objective portion of the selection process should have
been given more weight was rejected by the court because all candidates were subjected
to the same criteria and process. The plaintiff’s efforts to attack the subjective nature of
the interview process were equally unavailing. The court noted that the same questions
were asked of all candidates and that interviewers were able to point to specific aspects of
the interviews that resulted in the scores. For example, Obi was criticized for failing to
communicate how he would move the program forward and for being unwilling to
communicate his skills and abilities to the panel. One interviewer testified that he asked
Obi additional questions at the end of the interview in an attempt to give him the
opportunity to improve his interview performance. The court also looked at the
distribution of the interview scores. The court took the fact that there was not a dramatic
difference between the promoted employee’s interview score (155) and Obi’s third place
score (143) (two other candidates had much lower scores). Lastly, the court rejected the
plaintiff’s argument that the composition of the interview panel – all of whom were white
and U.S. born – permitted any inference of discrimination.
 9. A woman with 28 years of experience was “an exemplary employee who had been
nationally recognized for her planning work.” She applied for the promotional position
of Plan Formulation Specialist. The selection panel chose a much younger and less
experienced candidate. The promotion took place at a time that the employer had
expressed concern about its aging workforce. The employer had created an “Emerging
Leaders Program” to identify and develop individuals with “leadership potential.” The
candidate chosen was in this program. Candidates were first scored and ranked
according to their experience and qualifications. The woman was ranked as tied for
second place (out of six candidates), even though she would have been alone in second
place twenty points above the next highest candidate if the employer had simply summed
the scores of the panelists. Instead, the ranking was done by “consensus” of the
panelists. Interviews were then conducted. The selection panel determined that interview
performance would be weighed equally with the pre-interview assessment of
qualifications. Each interviewee was asked the same questions and each interview lasted
from 15-30 minutes. The notes and scores from the interviews were not retained.
However, panelists testified that the women did not perform well on the interview, that
she had been “curt and blunt” during the interview, and that she appeared to not be
making an effort to answer the questions. The woman said that she had given short
answers because she felt that the questions were not germane to the position. When all
was said and done, the woman was ranked fourth among the candidates and did not get
the promotion. She sued for age discrimination. What should the court decide? Why?
(Hollaway v. Secretary of Army, 203 Fed. Appx. 563 (5th Cir. 2006))

The plaintiff alleged disparate treatment based on her age. The appeals court affirmed the
lower court’s grant of summary judgment to the army. The plaintiff was unable to show
that her qualifications were so far superior to the other candidates that the selection of a
younger candidate for the position was clearly pretext. The court deemed it believable
that the decision makers in this case were not aware of and did not base their assessments
of candidates on the Strategic Management Plan that expressed concern over the aging of
the army’s workforce. Nor did some of the other irregularities including the loss of notes
and peculiar scoring method provide evidence of pretext or discriminatory motive.
Instead, the army was able to persuade the court that the reason the woman was not
promoted was because she did not perform well in the interview. “[A]n interview is not
merely a means by which to test verbal and interpersonal skills. Interviews may measure
candidates’ enthusiasm for applying their skills to a particular job, their ability to get
along with the specific group of people with whom they will be working, and their
judgment in the midst of at least one stressful situation (the interview itself).”

10. To what extent are caregivers discriminated against in the workplace? Do existing
laws go far enough to protect caregivers? Why or why not?

The EEOC certainly thinks so, as reflected in their enforcement guidance on

discrimination against employees with caregiving responsibilities. Women assume the
lion’s share of caregiving duties, whether for young children, aging parents, or disabled
family members. Employers make assumptions about both male and female employees
and the extent to which their caregiving responsibilities will limit their availability for
work and flexibility in assignments. Society commends individuals for taking on the role
of caregiver, but such individuals pay a heavy price in their careers.

12. Do you think that the “glass ceiling” phenomenon is primarily a pipeline problem
that will disappear over time as women and persons of color acquire the relevant
experiences or is it rooted more deeply in organizational cultures and practices hostile to
the advancement of women and minorities? Why do you say that?

The glass ceiling phenomenon appears to be more than a pipeline problem, although
getting sufficient numbers of women into organizations and into positions that prepare
them for promotion is a necessary first step. Organizations can and should be made more
hospitable to women and persons of color. Elimination of harassment, reduction in the
use of highly subjective promotion criteria, expanded opportunities for mentoring and
development, and greater care in allocating high profile assignments are among the other
measures that will be needed if there is to be real progress in breaking glass ceilings.

FOR A CHANGE OF PACE

Almost invariably, a discussion of facially discriminatory policies and the BFOQ defense
leads to students bringing up the example of Hooters. While the case is mentioned briefly
in this chapter, students might find it interesting to look further into Hooters history with
this issue.

A few questions worth considering in this context are:

1. How do we determine the essence of a business, particularly one that combines sex-
neutral job tasks (e.g., waiting tables) with elements of sexuality and sex appeal? To what
extent should the employer’s business strategy and marketing be taken into account in
making this determination?

2. Why have the EEOC and courts not produced a more definitive statement regarding
the legality of the practices of firms like Hooters? Are males being disadvantaged by
Hooters’ employment practices or are lawsuits by men denied employment at Hooters
“frivolous”?

3. Would a bar whose clientele is primarily gay men be justified in limiting server and
bar tender jobs to men?

4. What are the effects of Hooters’ employment policies on women? Do they foster an
environment in which harassment is more likely?