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Paul Zimmerman

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Dmytro Zinkevych ©

Idioms and Employment Law

No doubt we’ve all been admonished at some point in our lives to “never judge a book by its cover.” This idiom provides good counsel in the employment arena.

Exhibit A, if you will, is the recent case of Ellis v Century 21 Dept. Stores, 975 F Supp 2d 244, 273 [EDNY 2013], where Plaintiff claimed she was discriminated against on the basis of her sex when she was passed over for a promotion. The Court refused to dismiss the case and instead ordered a jury trial, based in part on the following statement made to the plaintiff by a superior at the time the decision was being made: “[Y]ou are young, you have young children. It’s a lot of hours. You don’t want the position. You are the mom.” According to the Court, this statement was evidence of an impermissible, sex-based motive for passing over Ellis.

To be sure, the words allegedly used in the Ellis case were misguided, patronizing, and inappropriate, but the law does not require discrimination to be intentional for it to be actionable. Consider these scenarios:

    • When arranging a golf outing for clients and prospects, are women offered the opportunity to participate?
    • Are client or prospect entertainment choices male-centric, like cigar bars or steak dinners?
    • When tickets for a sporting event are available, are women included or excluded?

I heard from several women last February that they felt excluded when the Super Bowl was at Met Life Stadium in the New York metropolitan area; they were not asked to the game, or offered the opportunity to use tickets for client relations purposes.

To be sure, these examples are somewhat more subtle forms of discrimination than appears to be at work in Ellis, but the stereotyping that appears to be at play can certainly lead to liability. Hence, employers are well-advised to implement protocols to limit the existence of stereotyping, as well as the potential liability that may arise. Some steps that can be taken include:

    • Training:  Make sure the annual or periodic EEO training you are doing is not superficial, and instead digs beneath the surface. Don’t be afraid to confront the tougher issues like subtle forms of discrimination, particularly when training managers and supervisors.
    • Policies:  Address the issue more directly in the company’s EEO and Harassment policies. Use examples.
    • Budgets:  Monitor entertainment budgets closely to make sure the distribution is equitable among peers.
    • Events:  If tickets to sporting events, seats at a cigar bar or a steak night dinner are involved, monitor distribution closely as well, to insure equitable treatment among peers.
    • Client Development:  In the realm of client development, do not focus exclusively on sporting events or steak dinners. Wine tastings, restaurant nights, and Broadway shows are some examples of events that are more gender-neutral while still having a wide appeal.

Avoiding the trap that snared Century 21 is a difficult proposition. Employers cannot monitor every communication made by a manager or supervisor on a daily basis. What employers can do is educate their staff on a regular basis, publish meaningful policies and guidelines, and address situations quickly as they arise, in order to minimize the risk that can be created when a book is judged by its cover.

What steps are you taking to insure that gender stereotyping is not happening in your company?

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.