SCHOOL FORCED TO SETTLE LAWSUIT BASED ON SCHOOL’S PREFERENCE FOR FEMALE LEADERSHIP
April 9, 2019
A federal court in Maryland recently issued a reminder to schools and school districts across the country: federal discrimination laws protect employees from discrimination based on gender no matter what an employee’s gender may be. Contemporary legal developments indicate that this was not an isolated case, but reflects more general enforcement practices of the Equal Employment Opportunities Commission (“EEOC”).
EEOC v. Park School of Baltimore
In EEOC v. Park School of Baltimore, Case 1:18-cv-02319-RDB (February 8, 2019), a male employee claimed that his contract was nonrenewed because he was male. The employee, Richard Schneider, worked as a softball coach for the Park School of Baltimore. Schneider was first hired as head softball coach in 2014, and had satisfactory performance reviews for three consecutive years in the position. However, in 2016 the school found a female head coach for the softball team. As a result, in early 2017, the school informed Schneider that it would not renew its contract, because of its preference for female leadership.
The EEOC filed suit on Schneider’s behalf, contending that the school’s decision violated Title VII because the school’s hiring and nonrenewal decisions were specifically based on gender.
The EEOC claimed that the school had stated that its decision was based on its preference for female leadership. As a result, the EEOC contended that the school’s practices “deprive(d) Schneider of equal employment opportunities and otherwise adversely affect(ed) his status as an employee because he is male.”
The EEOC also claimed that special circumstances presented in the case warranted more serious sanctions. In this regard, the EEOC claimed that the employment practices of the school “were intentional” and “were done with malice or with reckless indifference to the federally protected rights of Schneider.” As a result, the EEOC urged that any award should not be limited to back pay with prejudgment interest; in addition, damages for past and future non-pecuniary losses, such as “pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, embarrassment, frustration and humiliation” should be available. For the same reasons, the EEOC contended that punitive damages should be awarded “for (the school’s) callous indifference to his federally protected right to be free from discrimination based on gender.”
Before the case could go to trial, the parties entered into a consent decree (essentially a settlement agreement) before the court. Although the consent decree did not “constitute an adjudication or finding on the merits of the case”, the school agreed to pay $41,000.00 to Schneider. In addition, the school agreed to a series of other requirements, including agreeing to an injunction, modifications to its discrimination policies and procedures, and anti-discrimination training for its personnel. Finally, the parties agreed that the injunction against the school was “intended to survive the life of the Consent Decree.”
The consent decree issued by the federal court in Maryland is not an isolated development in enforcement of federal discrimination laws.
Writing for “Education Dive”, Lisa Burden reports that the EEOC also reached an agreement with Children’s Home, Inc., last year to pay a male employee $18,000 to settle claims that he was discriminated against based on sex, because the Tampa non-profit “questioned the male employee’s ability to change diapers and work with pregnant women.” She also notes that an Arkansas Buffalo Wild Wings franchise was forced to settle claims brought by male employees for $30,000.00 because the restaurant refused to hire men to be bartenders. Finally, Burden points out that Estee Lauder paid more than 1 million dollars to settle claims that it was offering unequal parental leave for men and women.
Import to Wisconsin School Districts
The message from the EEOC is absolutely clear: the agency will enforce federal sex discrimination laws on behalf of both men and women.
These cases and the EEOC’s enforcement practices suggest the following friendly reminders for Wisconsin school districts:
• An individual does not have to be a member of a recognized “protected classification” to be protected by federal discrimination laws. While membership in a protected classification can influence the procedures that are used by our courts to evaluate claims, in the end an employer cannot use gender—male or female—as the basis for its employment decisions.
• An employer can lawfully consider gender in cases where the employee’s sex is a bona fide occupational qualification (“BFOQ”). In schools, this may apply in cases where, for example, a teacher is required to supervise students in changing areas and showers.
However, schools also should understand that the EEOC—with court approval—contends that the BFOQ exception can be invoked only in the most narrow of circumstances. As a result, this exception must be used with great care, because men and women may both be able to do any number of jobs, even though gender may traditionally have been thought to be a valid factor in hiring for a particular job or set of jobs.
Critically, schools should also remember that they are going “all in”, and do so at their peril if they rely on a BFOQ defense. As an initial matter, if postings for a job do not identify gender as a requirement, invoking the BFOQ defense later is likely to be viewed with suspicion. In any event, relying on the BFOQ exception requires the school district employer to first admit that it used gender as a factor in its decision-making. Once this concession is made, the school district’s case depends on proving that the BFOQ exception applies because, if the school district employer can’t meet this burden, the school district is left with having admitted to discrimination on the basis of sex.
• The EEOC will sue on behalf of the complaining party if the agency believes the case merits agency intervention. Wisconsin school districts often view state and federal agencies as neutral parties and, for most purposes, they are. However, school districts need to remember that the EEOC is also charged with enforcing federal discrimination laws and, to do so, the agency does bring lawsuits against employers.
Consequently, while the agency does perform neutral investigative and dispute resolution functions, it does pick up the sword against school district employers on occasion. When it does, the economics of discrimination cases is radically altered, because the school district winds up facing the federal government and all its resources, rather than an individual employee who, generally, has less economic wherewithal to take a complaint through trial.
Wisconsin school districts should review their employment practices and policies to ensure compliance with federal law. Gender and gender identity issues of today can make forging appropriate, defensible policies and practices an uncertain enterprise. Further, the rate of change in cultural norms and perspectives on gender all but ensures that policy makers will have to capture moving legal targets in their legislation, and must be ever-ready to scuttle existing policy and institute additional reforms to keep pace with our changing culture.
All that being said, the more difficult obstacles cannot be scaled without getting the basic foundation right. Federal employment laws concerning sex discrimination don’t simply protect one sex. School districts cannot favor one gender over another in employment decisions. For at least some, the first step to compliance is to get over the incorrect and dangerous assumption that only one gender actually has legal protection under federal employment laws.
For questions regarding this article, please contact the author, Attorney Kirk D. Strang (email: email@example.com; telephone: 844.626.0906), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.
 L. Burden, “Education Dive”, March 4, 2019 (“School pays $41K to settle suit alleging a preference for female leadership.”)
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