Thursday, December 20, 2007

Offensive comments are not just for proof of direct evidence

Today, we are going to play a little game. The following is an excerpt from Vincent v. Brewer Company, a sex discrimination case decided by the 6th Circuit. So that you can follow along: Brewer Company, the employer, lays natural gas pipes; Jama Vincent, the plaintiff, was demoted from a crew leader position to a laborer position, and was laid-off (even though replaced by a man) 7 months later for lack of work and failure to follow company rules; Ken Parker was Vincent's immediate supervisor and the decisionmaker who laid her off; Sal Dilillo is another supervisor and a peer of Ken Parker; Jay Fetters and Kevin Parker are crew leaders who reported to Ken Parker. After reading the following excerpt, decide whether the employee or the employer won the case:

Vincent and other former Brewer employees testified that members of Brewer’s management team frequently made degrading comments regarding the capabilities of female employees, and expressed a desire to rid the Utility Division of their presence. Among the remarks alleged to have been made by Brewer management are the following:

(1) Ken Parker stated that he believed that women do not belong at Brewer and that he would not hire them.

(2) Kevin Parker told a crew leader, Ronald Ayres, that he did not permit his female laborers to do any work aside from directing traffic and that Ken Parker would fire Ayres if he discovered Ayres allowing female laborers to perform any other task.

(3) Ken Parker told a female employee, Tina Updike, that the only jobs available to women at Brewer were those involving traffic direction.

(4) Kevin Parker told Vincent and another female employee, Tammy Ayres, that Ken Parker instructed him to only permit female laborers to direct traffic.

(5) Kevin Parker told Tammy Ayres that she could not be in charge of a project because women are "not leaders" at Brewer.

(6) Ken Parker told Tammy Ayres that "the problem with you is you're a f***ing woman."

(7) Kevin Parker stated that Dilillo disliked women even more than Ken Parker, and that Dilillo wanted to remove all of the Utility Division’s female employees because they made it look bad.

(8) Fetters frequently referred to Tammy Ayres using nicknames such as "sweetheart" and "cupcake," and often asked female employees graphic sexual questions.

(9) Ken Parker told Updike that if she wanted to earn a man's pay then she would have to work like a man or she would be replaced by a man.

Okay, that wasn't meant to be a trick question, and hopefully its obvious from that litany of offensive comments that Vincent won her appeal. What interesting about this case, though, is that despite all of those offensive comments, many attributable to the decisionmaker, and all attributable to high-level officials with managerial authority over the decision, this case was not treated as a direct evidence case, but decided under the McDonnell Douglas burden shifting analysis. In fact, the actual legal holding of the case is: "To establish a prima facie case of gender discrimination, ... a plaintiff who can prove that she was replaced by a member of the opposite sex need not show that she possesses qualifications similar to those of her replacement." The district court erred by requiring Vincent to show that her replacement was outside of the protected class and similarly qualified as her. The latter is simply not part of the prima facie case.

Many of the offensive comments could be subject to exclusion in a direct evidence case because they may not have a sufficient nexus to the at-issue termination decision. However, in this case they were used as part of the pretext analysis, to show that Brewer's legitimate non-discriminatory reason did not actually motivate the discharge. The lesson to take away from this case is that courts will hold you to your legitimate non-discriminatory explanations, and evidence that might otherwise be excluded as unrelated to the challenged decision will become relevant to show pretext and rebut that explanation.