A couple of odd fact situations make for interesting results in two gender discrimination cases out of Ohio and Pennsylvania, respectively.
A female crane operator gets a trial on her state and federal sex discrimination claims, in part on a unique disparate impact theory that I simply couldn't pass up noting. Johnson v. AK Steel Corp., No. 07-cv-291 (S.D.Ohio, May 22, 2008).
The policy creating the disparate impact? That crane operators remain on the job for 12 hours at a time, suspended above the work area in their cabs. The crane in question operated in and over something called a slab yard of a steel processing facility, in which hot slabs of steel were unloaded from trains and placed in line to be pushed into the furnaces.
When the female plaintiff was assigned to the job, she was advised of the 12-hour shifts and, apparently quite innocently, asked about bathroom breaks. The Yard Manager allegedly told her that there were no crane operators available to give her a break, and that if she needed to use a bathroom, she would have to urinate off the back of the crane, like the "guys" did.
The woman, quite reasonably in my opinion, thought the manager was joking and went to the other yard foreman, who confirmed that she was supposed to relieve herself above and over the work area.
We'll stop here for a second. One of the reasons the company was on 12-hour shifts at this time was because it was having trouble getting employees to work there during an ongoing labor dispute. Somehow, I don't find it surprising that people might not want to work at a place where a walk through the worksite might result in your being splattered with something even worse than pieces of hot metal. And where was the "just basic common sense" of the management team? Apparently, the human resources policy was that operators took a break when they "had a chance to take a break." In other words, when there was no work to be done, i.e., never. This was a department practice; other managers who testified were unaware that the crane managers instituted this policy.
The plaintiff, not being, shall we say, "equipped" to follow this policy, refused the work and ultimately left the job. The court had little difficulty in finding that the bathroom policies at the yard had a disparate impact on women, even though they were, on their face, gender neutral. I should note that the supervisors denied telling the plaintiff that she had to go "over the side," but at this stage of the proceeding, the court found enough evidence to go forward to trial. Moreover, I'm pretty sure the court was analyzing the plaintiff's claims under the "you just can't make this stuff up" standard -- what she testified to was so weird that it was likely true.
So, for those of you in the crane business, figure out some way to either provide bathroom breaks, or astronaut diapers for your female employees. Actually, make that for all your employees. It will probably improve their morale, as well as the productivity of the people beneath them.
The Pennsylvania case is a little more trivial, but does sketch out some of the boundaries for acceptable office behavior in the context of gender discrimination. A woman was hired as a part-time receptionist and data entry clerk at a sales and supply company. She was the only receptionist and was supervised by men.
One of the receptionist's duties was to prepare and provide coffee to office guests and to her supervisors when requested. Although she agreed to do this for her bosses once or twice, she testified at her deposition that she found the request demeaning and embarrassing and believed that the company was reinforcing gender stereotypes. She also testified that the office was a hostile work environment because a vice president noted in his interview of her (in his notes, no less, not to the plaintiff) that she "looks nice" and "dresses well." She also was dissed by a male coworker inviting her to lunch in an email and saying to her that he felt bad that she had been working at the company for a few weeks and that they had not gotten to know each other yet. The employee testified that she was very offended by the invitation, stating that there was "no reason why a man and a woman should go out to lunch together without any other party around. To me, that's a date." She also was upset when she walked into an office where two men were whispering and laughing over a joke that they would not share with her.
Wow. This place sounds like the kind of male chauvinist hellhole that just cries out for federal intervention.
The plaintiff finally refused to serve coffee to her supervisors by sending an email to one of them saying that she did not expect to "serve and wait" on him by serving coffee and that if she had known that, she would never have taken the job. The company responded by terminating her employment approximately nine minutes later.
A federal judge had no trouble dismissing this case at summary judgment. The main reason was that there was absolutely no evidence that getting coffee was somehow related to the plaintiff's gender. The plaintiff was not asked to perform any other acts conforming to traditional gender-specific stereotypes and that the other things that offended plaintiff were, in fact, innocuous and did not support her claim of harassment.
The plaintiff's lawyers tried to argue that requiring a woman to get coffee for her male supervisors and firing her when she refused, if not exactly a quid pro quo discrimination case, was a "quasi" quid pro quo claim. In my experience, trying to win your point with the judge by saying the conduct is almost discriminatory normally doesn't fly, and it didn't here, either.
(My thanks to Kristin Case of the Case Law Firm in Chicago for pointing out the Pennsylvania case to me).