In the Trenches: Gender discrimination at Acme?

March 29, 2007
A female Acme maintenance technician has no choice but to dress in the men's locker room and then is passed over for a promtion despite her seniority. She quits and files a discrimination suit. Read the details in our monthly In the Trenches (remember, only the names are changed to protect the innocent).

The tax incentives and other factors had been sufficient to induce Acme to open its new plant in Salvador County, an area suffering from unemployment rates twice the state’s average and displaying the complete absence of any business enterprise having more than six employees. Back then, it was a win-win situation, and it remained so today. After all, Salvador County needed jobs and the rest of the country needed the military materiel and other similar specialty items that Acme would be producing there. In fact, the local hunters and outdoor enthusiasts would love to get their hands on some of the raw materials and finished goods that Acme keeps well secured.

The machinery used on the manufacturing lines might have started out as off-the-shelf hardware, but most of it had been customized to meet the arcane DoD product specifications while still keeping plant output high. But the extra machinery complexity that was needed to serve this niche market presented Acme with some difficulties.

To make the deal work, Acme needed a lean maintenance team. Acme recognized that achieving this economy required that maintenance technicians be cross-trained so they could work in any part of the plant. But, it found that the standard union-sponsored apprentice programs weren’t able to provide the specialized maintenance training Acme operations, some highly secret, demanded.

So, Acme started its own customized six-week training program. For anyone applying to be an Acme maintenance technician, completing the course with a passing grade was a condition of employment. The curriculum was intense, and the flunk out/dropout rate was high, especially during the first two weeks.

Acme assigned its maintenance technicians either to cover specific plant areas or to be responsible for specific maintenance functions throughout the plant. Technicians worked a 10-hour schedule four consecutive days each week. To keep a sharp edge on the cross-training, Acme shifted the maintenance assignments every six months, or so. That such flexibility was enshrined in the agreement between Acme and the technician’s union attested to the bargaining power Acme wielded when the plant opened. Acme had free rein to direct the work force, determine the work schedules and specify the nature of the work as it saw fit.

Acme hired Anne Appoulous out of the first graduating class to work as a Grade I Technician. She had a talent for the job and she took her turn at each assignment without complaint and without incident. To foster a degree of diversity, Acme tapped her to become a member of the plant’s emergency response team after she had been on the job for only a few months. This elite group of maintenance technicians responded to serious process upsets and mechanical breakdowns that had the potential to harm line workers or the residents of the neighborhoods surrounding the plant. Being on this team involved additional training and a higher pay scale.

Members of the emergency response team had to react quickly when, on those rare occasions, something went awry. Acme kept the emergency response gear and protective clothing in a centralized staging area, which was in the large locker room connected to the men’s bathroom. When an emergency arose, the team grabbed the heavy, bulky gear from the lockers and donned it while being briefed about the task at hand before heading out to address the problem. Although there was a much smaller woman’s locker room down the hall, Anne found it difficult to fetch her gear, navigate through a room full of jostling men getting suited up and tote everything down the hall. By the time she got back, she’d have missed the briefing and would be the only clueless team member. In effect, Anne had little choice but to suit up in the men’s locker room. Fortunately, there weren’t many emergencies.

Years later, after she was convinced she had proven her worth as a Technician I, Anne put in for a promotion to fill an open Technician II slot, a position that paid enough to make the effort worthwhile. Almost as soon as she put her hard hat in the ring, Acme, in the name of additional diversity, filled the position by promoting another technician, a minority male, who had less seniority than Anne. Foiled in this attempt to better herself, Anne worked the bureaucracy and managed to get permission to schedule her 40 hours during three consecutive days, which would allow her to accept a part-time job she found.

A few months later, she was removed from the emergency response team, the stated reason being that Acme needed to have a full complement of responders on-site at all times. Anne no longer received the premium pay associated with being on the team.
Not wishing to face being foiled twice, Anne quit her Acme job in favor of working her second job full time and, in the process, making more money than she did as a maintenance technician. Like so many Acme employees before her, Anne filed suit against the venerable company, alleging gender discrimination, hostile work environment and intentional infliction of emotional distress.

How could this situation have been prevented? Does employer flexibility in assigning jobs always lead to abuse of power? Should hourly employees be permitted to have flex-time schedules? Would a stronger union bargaining agreement have helped with Anne’s woes? What mistakes did Acme make? What mistakes did Anne make? Does Anne have a case?

An academician says:

Acme’s human resources policy reminds me of the old days, when there weren’t many rules for promotion and assignment. The best way to get good work assignments was to kiss up to your supervisor or marry his daughter. The company held all the cards, which consequently opened the door for what we now call abuse. But then, it was considered just the way one did business.

Developing some (performance-based) criteria for job assignments and promotion is far superior to what we had in the old days. Objective criteria can lead to a more effective company, one that’s fair to each employee. However, having said that, I’d add that a company needs some flexibility in making decisions. For example, in choosing people for promotion, particularly at the higher levels, one could look only at the person’s technical skills or work record. However, much of management involves difficult-to-measure abilities such as leadership, decision-making, effectiveness as a team player, and the like. And sometimes you need a hard-nosed person to shake things up. Sometimes you need the opposite —— a person who can settle things down.

Looking at Anne’s case, Acme seems to have treated Anne quite well in the beginning. She had a good job, plus extra pay from her involvement on the emergency response team. The fact that she didn’t have a separate locker room isn’t necessarily problematic. I assume she put her special gear over her normal work clothes, rather than having to undress in front of her male colleagues. This is standard procedure in many jobs, such as in mixed-gender firehouses.

Acme also adjusted her schedule to allow her to work another job, which was beyond the call of duty. And the fact that a person of less seniority was promoted to Tech II isn’t an issue in my mind. I don’t think seniority (solely) is a good basis for promotion – better to promote on performance or skill.

I don’t think Anne has much of a case against Acme, but I defer to the lawyer among us to make that decision. However, my advice to Acme is to develop some performance-based or skill-based criteria for job selection, job assignments and promotion. That would not only ensure fairness regarding their job decisions, but also would increase the effectiveness of their operation.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
[email protected]

An attorney says:

It’s difficult to have much sympathy for Anne in this situation. She requested permission to schedule her 40 hours during three consecutive work days and received permission to do so. Now she complains because the consequence of her receiving permission to deviate from normal hours is loss of premium pay due to her limited availability on the emergency response team.

I can envision only one scenario in which Anne might prevail in her gender discrimination suit. If she could prove that male employees who worked 40 hours during three consecutive work days were allowed to remain on the emergency response team, she could show discrimination on the basis of sex. To prevail in a discrimination claim, the complaining employee typically must show that a similarly situated employee outside of her protected group received preferential treatment. There is no evidence that is the case here.

Anne’s suit on the basis of a hostile work environment and intentional infliction of emotional distress surely will fail. She has no evidence to establish that the work environment was riddled with hostility toward women to the extent that it altered the terms and conditions of employment, essentially what she would have to prove to show a hostile work environment.
Similarly, she has no evidence to establish a claim of intentional infliction of emotional distress. Generally, that type of claim requires evidence that an individual was subjected to conduct beyond the bounds of all human decency that no reasonable person could be expected to endure. Withdrawing premium pay hardly constitutes conduct that no reasonable person could be expected to endure.

Acme, for once, appears without fault in this scenario with the possible exception of allowing an employee what she wished, all of which proves the old adage, “Be careful what you wish for.”

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
[email protected]

A corporate consultant says:

Those who choose not to act have lost their right to complain. Anne took no action about the suiting-up process. Claiming she had "no choice in the matter" can't be validated, because she never pursued the issue. She can't claim knowledge of what Acme's response would have been when she never asked them for consideration. Additionally, it isn't even clear that removing work clothing was required before putting on the protective clothing.

Next, she never took action regarding the promotion of a less qualified individual to a slot for which she had applied.

Third, she took no action about her summary removal from the emergency response team. She certainly could have asked to be allowed to choose between being on that team and keeping her part-time job.

Finally, her silence over the years implies consent. Having lodged no complaints against Acme while employed there, imputing ill intent after the fact seems opportunistic. Filing suit without first notifying Acme of the perceived inequity removes any chance Acme may have taken to remediate problem.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
[email protected]

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