Diversity Insight

On the Basis of Sex: Getting a ‘Statute’ is Even Better Than Getting a Golden ‘Statue’

For movie lovers, February is known for the Academy Awards, the star-studded event where Oscars are handed out and the speeches drag on and on. This year, a documentary on Supreme Court Justice Ruth Bader Ginsburg’s work confronting sex discrimination, titled RBG, is up for Best Documentary. Whether the film wins or loses the Oscar, however, RBG’s legacy will live on through Title VII of the Civil Rights Act of 1964. Thanks in part to her work, the statute makes it unlawful for an employer to discriminate against an employee “on the basis of sex.” A recent case from the U.S. 7th Circuit Court of Appeals outlines the basics of such a claim.

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To the Principal’s Office

Gloria D. Terry worked as a teacher and administrator for the Gary Community School Corporation in Indiana. At the end of the 2013-2014 school year, the school district closed the elementary school where she served as principal because the enrollment had dropped. Terry was reassigned to serve as the assistant principal at another elementary school. She believed the reassignment was a demotion even though the district didn’t change her salary or benefits.

During the same time period, Terry interviewed for a principal position at Marquette Elementary and earned the highest ranking from the interview committee. However, the school’s superintendent, Dr. Cheryl Pruitt, recommended Sheldon Cain, a male, for the position even though he had not interviewed (or even applied) for the position. Pruitt said she recommended Cain because he had served as interim principal during the 2013-2014 school year, while the principal was on medical leave, and was familiar with the school’s operations.

Terry filed a sex discrimination claim under Title VII in federal court and asserted other state and federal claims. The district court entered judgment in favor of the school district, and the former principal appealed to the 7th Circuit.

Sex-Based Education

Title VII makes it unlawful for an employer to discriminate against any employee on the basis of sex. To determine whether to uphold the lower court’s summary judgment ruling (dismissing the case without a trial) against Terry, the 7th Circuit needed to determine whether she presented enough evidence to permit a reasonable fact finder to conclude the school district took a materially (or significantly) adverse employment action against her because of her sex.

Terry claimed the school district engaged in two acts of sex discrimination:

  • It demoted her from principal to assistant principal.
  • It promoted Cain (instead of her) to serve as principal of Marquette Elementary.

Closing Argument

Terry argued the demotion from principal to assistant principal was an adverse action because it resulted in a less prestigious title and fewer responsibilities. The school district said the reassignment was not an adverse action because she kept the same pay and benefits. An employer’s action is materially adverse if it is more disruptive than a mere inconvenience or an alteration of job responsibilities. The 7th Circuit provided examples of materially adverse actions:

  • Reducing compensation, fringe benefits, or other financial terms of employment, including termination;
  • Preventing an employee from using the skills she has developed and is trained to perform; and
  • Changing an employee’s working conditions in a way that subjects her to a humiliating, degrading, unsafe, or significantly negative workplace environment.

Ultimately, the 7th District said it did not need to decide whether the reassignment constituted an adverse action, however, because Terry had not shown that the school district had a discriminatory reason for the move. Rather, the court said the district reassigned her because Brunswick Elementary closed, and she had offered no proof that the reason was a pretext (or cover-up) for sex discrimination.

Raising Cain

The 7th Circuit also rejected Terry’s claim that the school district discriminated against her by promoting Cain to principal of Marquette Elementary. An employer’s decision not to promote an employee is discriminatory when the individual establishes (1) she was a member of a protected group, (2) she was qualified for the position, (3) the employer rejected her application, and (4) it promoted someone from outside the protected class who was not more qualified.

The school district claimed the decision to promote Cain had nothing to do with his (or Terry’s) sex and had everything to do with his experience working at Marquette Elementary. Terry claimed the chronology of events showed the district was lying about the reason it picked Cain.

The chronology of events alone, however, did not establish that the school district lied when it said it picked Cain because of his experience, according to the 7th Circuit. Rather, the court said Terry didn’t put forth enough information for it to conclude his experience wasn’t important to the school district. Terry v. Gary Community School Corporation, No. 18-1270 (7th Cir., Dec. 14, 2018).

Lasting Impact

To avoid sex discrimination claims, you should:

  • Ensure your antidiscrimination policies are robust and tailored to your workforce;
  • Provide regular and focused antidiscrimination training for all employees;
  • Train supervisors on how to avoid and properly investigate any discrimination complaints; and
  • Make sure review processes are in place to assess all hiring, promotion, and firing decisions for bias.

 

Kelly Smith-Haley is an Attorney with Fox, Swibel, Levin & Carroll, LLP, and an editor of the Illinois Employment Law Letter. She can be reached at ksmithhaley@fslc.com.