There’s cases of sex discrimination and then there’s cases that sound like they’re straight out of the show Mad Men. Earlier this month, the Federal District Court ruled in a summary judgment in favor of a lawsuit alleging, among other things, hostile work environment and retaliation. The lawsuit was brought by Ms. Vicki Conforti, the lone female manager of a company called On Site Energy and Sunbelt Rentals—On Site had been bought out by Sunbelt shortly before she was fired. The facts of the case show a particularly grotesque work environment and Ms. Conforti alleges that she was fired for not playing along with this boys' club.
Ms. Conforti’s complaint describes a work environment which included pornography being played in the office, frequent propositioning of female employees by her fellow managers (although she herself was not propositioned), and at least one incident of bringing in a stripper to perform during the work day. She alleges that, despite complaints about being propositioned, On Site failed to implement any policies or procedures to deter sexual harassment and discrimination. Female employees at the company were allegedly, to a woman, paid less than their male counterparts, received less benefits than their male counterparts, not invited to corporate outings, and not reimbursed for business expenses.
Given the rest of her story, this is not surprising. On Site was acquired by Sunbelt. in 2014, and Ms. Conforti’s title was changed from Controller for the entire company to assistant manager. Even while she was Controller for the whole dang company, no men were required to report to her. After her demotion, Ms. Conforti was denied access to codes required for her work, excluded from training sessions, and not invited to management meetings, including meetings about her own department. She was also belittled in front of other staff members, with her decisions overridden and, at least once, work she had done publicly destroyed. Her complaints fell on deaf ears.
In a meeting with two of the company VPs, Ms. Conforti was told—in front of her attorney—that her title had too much responsibility for a woman. They suggested that she take a less important position. When she complained, Ms. Conforti was informed that she was “being too aggressive and overreacting” and it was suggested that she “should assume the submissive role expected of females and play nicely within the boys’ club.” After more complaints, Ms. Conforti was stripped of all authority, moved away from the rest of the employees, and constantly taunted by management.
Quotes from management during Ms. Conforti’s time with the company also paint a pretty damning picture. Comments from male management include saying that they don’t want too many women on the job as they are “excessively emotional and moody” and a women’s proper position being “behind that of men.”
After all this, and quite a bit more that there simply wasn’t space for, Ms. Conforti was fired—along with four other female employees. No men were fired during this period; all the positions were filled by men.
Sex Discrimination Explained
You probably look at all this and think, “what a slam dunk for gender discrimination.” However, the complexity of the situation may surprise you. The court agreed to dismiss all of Ms. Conforti’s state law claims and made a fairly close call on several of her Title VII claims. To understand why, let’s look at the elements of discrimination, retaliation, and hostile work environment claims.
In order to pass muster on a motion to dismiss, a plaintiff has to show that a reasonable jury could plausibly find enough evidence for all elements of their claim. The elements of a Tile VII discrimination claim are: (1) the employer took adverse action against them, and (2) their race, color, religion, sex, or national origin was a motivating factor in the employment decision.” An adverse employment action is, somewhat prosaically, an action that a reasonable employee would significantly harm them. The Supreme Court has specifically said that it can include termination and demotion. However, reassignment or changes of job duties generally is not sufficient. There must be evidence that the job duties an employee is switched to are somehow worse or more onerous. Case law says that being denied codes, access to meetings, and similar things are not enough.
Site and Sunbelt argued that the only adverse action taken against Ms. Conforti was her firing—her demotion, taunting, and change of responsibility didn’t count and couldn’t be considered. What’s more, they said that the fact that her firing was two months after any of her complaints countered any evidence she might have that the motive behind firing her was discriminatory.
In this case, while being fired was obviously an adverse employment action, moving Ms. Conforti and reducing her responsibilities was not enough to fit the bill in a discrimination claim. However, as we will see later, it likely would be enough for a retaliation claim as the standard for adverse action in retaliation claims is lower.
The next element that be shown is a discriminatory motive. This doesn’t necessarily require direct evidence of discrimination—such as an employer telling you you’re being fired for being a woman. It can also be established through circumstances which give rise to an inference of discrimination such as degrading speech about a protected group in the workplace, preferential treatment to employees not in the protected group, the events leading up to the employee being fired, showing a mishmash of many different instances of discrimination and more.
The judge in this case felt that, despite the time gap, the “mosaic of fact” showed a clearly discriminatory environment which, by itself, was enough to show a probability of a discriminatory motive in Ms. Conforti’s firing. What’s more, in the 2nd Circuit, the very fact that somebody was replaced by somebody not of a protected class—a man in this case—is enough to show at least a probability of discrimination. This probability is enough to let the case reach a jury.
Title VII Retaliation and Hostile Work Environment Claims
Retaliation claims require a showing that an employee was engaged in a complaint against their employer under Title VII and their employer took adverse action against them because of this complaint.
The executives of On Site left the door wide open to a retaliation claim by their own actions at a meeting with Ms. Conforti’s attorney. At this meeting, they directly said that Ms. Conforti was incapable of her job because she was a woman. Immediately after that meeting is when they moved her desk, took away her responsibilities, and began to mercilessly taunt her at work. A two-month gap in time between her complaints and her firing was not enough because, unlike discrimination, all the taunting and ridicule count as retaliatory action.
A Title VII hostile work environment claim requires a showing that the conduct of the accused party: 1) creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment ‘that the plaintiff personally finds hostile or abusive’; and (3) ‘creates such an environment because of a protected aspect of the plaintiff—such as their sex.. To show that conduct was objectively severe or pervasive, a plaintiff ‘“must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were ‘sufficiently continuous and concerted’ to have altered the conditions of her working environment.”’
Ms. Conforti’s allegations made this claim a slam dunk to reach a jury. The mere presence of pornography in the work place has been ruled to be enough to find a hostile work environment for women—never mind bringing in strippers.
The Case Moving Forward
Ms. Conforti will be able to take her allegations to a jury. However, this case is far from over. While the defendants are accused of a pretty grotesque attitude towards women, connecting the dots between this attitude—as well as anger over the claims brought against them—and Ms. Conforti’s firing will be more of an art than a science. The circumstances, taken together, can be strong evidence. However, without a smoking gun, it will be up to a jury to decide if they’re convinced that Ms. Conforti was a victim of a boy’s club mentality.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
Comments