Monday, March 11, 2013

Foolish comment goes to waste

Employment discrimination cases usually depend on circumstantial evidence: the plaintiff suffers an adverse action under suspicious circumstances and management offers a false reason for it. Direct evidence therefore can really give the plaintiff something to work with. But not always.

The case is Bir v. Pfizer, Inc., a summary order decided on January 31. Plaintiff worked under a guy named Welch, who made an obnoxious statement about women. Welch said, “when women get married and have children, their priorities change and they don’t work as hard.” That's direct evidence, for sure, but plaintiff's promotion denials are not discriminatory because Welch did not participate in the adverse actions. Welch's sexist comment goes to waste.

Plaintiff also sues over an hostile work environment. Again, she points the finger at Welch, who treated her like garbage. The Court of Appeals summarizes the evidence:

Welch falsely accused her of antagonizing her customers and lying about her schedule; interfered with the distribution of product samples to her; reduced her budget for educational programs; assigned her a less-desirable sales territory than similarly-situated male sales representatives; screamed at her; and subjected her to more frequent field-visit supervisions, for which he provided less warning than he did similarly-situated male sales representatives. Plaintiff also avers that Welch often socialized with male representatives, but that he never did the same with female representatives. Furthermore, plaintiff asserts that in the months leading up to her wedding in 2005, Welch made the comment described above about married women. Plaintiff also testified that Welch “threatened [her] never to go to” Pfizer’s human resources department to complain about his conduct.
This all has the makings of a decent hostile work environment case, but the Court of Appeals sustains summary judgment. Most of the harassment was gender-neutral. That kind of harassment can support a Title VII claim if the totality of the circumstances suggests the harasser was motivated by gender. The Court does not see that in this case, notwithstanding Welch's statement about married women. In addition, Welch was what we call an equal-opportunity harasser. He treated everyone like garbage.

Plaintiff offers the testimony of a female co-worker, Donovan, who says that Welch did treat women worse than men and that he threatened her just as he threatened plaintiff. The Court of Appeals rejects this testimony. Welch treated Donovan this way through 1997, however, and after that, he treated her favorably. And, while Donovan left Pfizer in 1997, Welch treated plaintiff poorly in 2005. That gap in time undercuts the hostile work environment claim.

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