Don’t Refuse To Hire Someone Because Of Their Sex

Kollman & Saucier
Kollman & Saucier

Better yet, don’t make employment decisions based on protected characteristics.  Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on account of race, color, religion, sex, and national origin, as well as retaliation by an employer against an individual who opposes or participates in a protected activity.  Disabilities are covered by the Americans with Disabilities Act.  Age is covered by the Age Discrimination in Employment Act.  There are other federal statutes and analogous state and local laws too.

Disparate treatment claims are the most common among employment discrimination theories (the others being adverse impact, present effects of past discrimination, reasonable accommodation, and retaliation).  A disparate treatment charge alleges that an individual has been treated less favorably than their peers because of protected status.  A plaintiff in a disparate treatment case must prove intent to discriminate.  Employers who make employment decisions for inappropriate reasons can likely learn something from EEOC v. Green Jobworks, LLC (D. Md. Apr. 25, 2022), a case involving allegations of sex discrimination by a company that provides temporary staffing for jobs involving cleaning, demolition, and asbestos abatement.

The Equal Employment Opportunity Commission (EEOC) brought suit against Green JobWorks alleging sex discrimination in hiring and job assignments.  More specifically, the EEOC alleged that the company did not hire women for certain positions and assigned female employees to less desirable and lower paying roles.

The EEOC alleged that the company assigned female workers to cleaning as compared to demolition and laborer jobs, which resulted in women being paid less.  In addition, company representatives allegedly asked customers if they preferred male or female workers and then made hiring and assignment decisions based on those preferences.  Alleged statements by company representatives included:  “as a woman, she would have to prove herself” and that “although women can use jack hammers, [she should not] be surprised if the men at the job site gave her a broom.”  Another company employee told an applicant that they were “only hiring strong men and not women.”

The underlying charges of discrimination were brought by employees and applicants who were not given opportunities for the higher paying demolition and laborer jobs.  The EEOC found reasonable cause to believe that the company violated Title VII.  Subsequent conciliation efforts were unsuccessful, and the Commission’s lawsuit followed.  The company, per the EEOC, “engaged, and continues to engage, in a pattern or practice of discrimination in hiring, job assignments, and assignment of job duties because of sex (female) in violation of Title VII.” 

The company moved to dismiss the lawsuit, arguing that the allegations amounted to “a few isolated discriminatory acts” and the Commission did not allege facts showing discrimination in the company’s terms and conditions of employment.  The court, as it must on a motion to dismiss, accepted the EEOC’s allegations as true and denied the company’s motion.  Here, according to the court, the EEOC’s allegations were sufficient.  The complaint included alleged “evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.”   The complaint alleged specific statements and comments made to female applicants regarding the company’s hiring practices and preferences.  Such comments “are direct evidence of discrimination—taken as true, they are sufficient to state a plausible claim of a pattern or practice of sex discrimination.”

The company also argued that the complaint warranted dismissal because it did not include examples of discriminatory terms and conditions of employment.  Again, the court was not convinced:  “Here, . . . Plaintiff has plausibly alleged several comments to female applicants as direct evidence of discrimination, suggesting ‘a directive to favor males and to discriminate against females.’ Taking these factual allegations in the Compliant as true, this Court concludes that the EEOC has plausibly pled that GJW engaged in a pattern or practice of sex discrimination.”

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