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How to get sued for sex discrimination

August 26th, 2014  |  Lorene Park

By Lorene D. Park, J.D.

Perhaps I’m just jaded by the number of discrimination and harassment cases I read but I’m a bit underwhelmed these days by cases with bosses who proposition subordinates for sex or pat an underling’s derriere. As bad as those cases are, it takes really egregious facts to raise my eyebrows. However, a fairly ordinary sex-based discrimination suit gave me pause this week because it was a veritable “how-to” on getting sued by your female employees. The employer, a multi-national pharmaceutical company, is facing individual and potential class claims of disparate treatment and impact as well as a pattern-or-practice claim because it allegedly:

  • Paid the plaintiffs’ male colleagues, who had the same qualifications and same position, a higher base salary. Since the company awards raises as a percentage of salary, the disparity was exacerbated with each raise. (This could be an argument for employers to think twice before simply awarding percentage “merit” increases without looking at where employees stand with respect to each other in performance and in salary.)
  • Only allowed job-sharing for the lowest sales position, causing some female employees to give up higher level positions so they could job-share. (Is it only me or does everyone think it should have been obvious to the employer that women would be more strongly impacted by this practice?)
  • Failed to pay bonuses to female employees who earned them due to a policy prohibiting sales reps “who are on leave for a period of more than six weeks” from receiving bonuses distributed during the leave period. The employer argued that males taking medical leave were also subject to the policy, but the court found the disparate impact claim plausible because the policy “disproportionately disqualifies women from receiving bonuses earned prior to their maternity leave.” (Gee, ya think?!)
  • Treated female employees with family caregiving responsibilities worse after they inquired about job-sharing.
  • Gave substantial weight to manager-supplied assessments (which impacted bonuses and raises) in an environment where managers allegedly lowered performance reviews of women who inquired about job-sharing, who got pregnant, and who took maternity leave.

Adding insult to injury, the employer also allegedly ignored several of the plaintiffs’ repeated sexual harassment complaints made to human resources and to its employee hotline. It likely comes as no surprise that the court largely denied the employer’s motion to dismiss the class and individual claims of the female sales reps. However, it did narrow the putative class by dates of employment (Barrett v Forest Laboratories, Inc).

In light of the roadmap provided by the foregoing case, I’m awfully tempted to set out the usual short checklist of considerations that attorney/editors like me provide. However, this time I think I will simply suggest that employers and supervisors (HR professionals in particular) review their policies on wages and benefits and ask themselves if the policies are less favorable to a particular group of individuals (especially those who fall within a category protected by Title VII or other employment laws). Common sense is key to this inquiry, people! Remember that merely having a facially neutral policy may not be good enough if you do not have a legitimate business reason for the policy.

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