How do you prove sex discrimination?


sex discrimination gender discrimination pregnancy discrimination

Employment law issues occur in every possible employment scenario... even amongst employment lawyers. The latest case from the Supreme Judicial Court, Verdrager v Mintz, Levin, involves an employment lawyer who alleged she was demoted, and later terminated, from her law firm employer due to illegal sex discrimination (a/k/a gender discrimination, and including pregnancy discrimination) and retaliation.

First: the facts. What happened?

Attorney Verdrager began working for Mintz Levin in June 2004, and initially received highly positive feedback for her work. That summer, however, she alleged one of the firm's partners (called "members") with whom she had began working -- and who initially had praised her work -- made sexually charged comments to her.

Late in the summer, she complained about these remarks to human resources. In response, Mintz Levin conducted an internal investigation, concluded the remarks were more "management style complaints" than "complaints related to gender differences," and hired an executive coach to work with the law firm partner in question.

Verdrager as well as the partner in question continued working together. Several months later, in October 2004, Verdrager heard through the grapevine that the partner was saying negative things about her.

Around this same time also, upon receiving a complaint from a client about Verdrager, the partner requested that the client submit a written complaint to the firm about her. The client did, and the partner forwarded it to HR.

Also around this time, the partner evaluated Verdrager's performance. He rated it, in marked contrast to his prior comments before she filed her complaint, as "usually below expectations."

By March 2005, the firm received complaints from six additional women that the same partner had also made "inappropriate" comments to them. The firm investigated and concluded that gender-based discrimination, again, was not at issue.

That July, a consulting group -- hired after the firm lost a different sex discrimination and retaliation case relating to the firm's Virginia office -- issued its report. It concluded there was a "tolerance for poor behavior" at the firm, and further, that "many female attorneys, both members and associates, 'believe it is more difficult for women than men at [the firm].'"

Mintz Levin reviewed Verdrager's performance again in March 2006 and approximately February 2007. She also had her first child over this same period and took family leave. Over time, the reviews were getting more and more negative.

As of February 23, 2007, human resources informed the plaintiff that she would be demoted.

Next: the legal questions

Because this is a case involving several legal issues, for purposes of this post, I'm only going to focus on her February 2007 demotion. (Another alleged discriminatory act was her later termination.)

In response to Verdrager's allegations that her February 2007 demotion was discriminatory, Mintz Levin argued that it had legitimate, non-discriminatory reasons for demoting her.

First, they argued, she had received mixed performance evaluations. Second, they said that there were certain partners would would not work with her. And, third, they suggested she had a low utilization yet high billing rate.

One big question, ultimately, for the courts to decide is: but were those the real reasons for demoting her?

Or were they just "pretext" for Verdrager having complained about the partner's inappropriate sexual comments back when she started?

Or, instead, were they "pretext" for discrimination because she had a baby and took maternity leave, and they didn't like it?

Or, yet another alternative, was Mintz Levin stereotyping Verdrager on the basis of her sex when it continued to downgrade her performance as she resisted in engaging in sexual innuendo and also took maternity leave?

The Evidence of Discrimination

The Court reviewed certain types of evidence to determine if a reasonable jury ultimately could infer that 1) Verdrager's demotion was a result of unlawful sex discrimination and 2) Mintz Levin's stated reasons were actually pretext for discrimination.

I set them out here as a way of suggesting the kinds of things employees and employers can keep an eye out for if discrimination seems to be at issue in your workplace.

-- Similarly Situated Employees

The Court looked at the evidence of how similarly situated employees were treated. Because this is a sex discrimination case, the Court looked particularly at how Mintz Levin treated similarly situated male employees as compared with Verdrager:

For instance, defendant Schroeder's May, 2006, evaluations criticized [Verdrager] for not being available for certain emergency assignments, and his March, 2006, electronic mail message noted that "[t]his is not a job where you can come and go as you please." Yet, [Verdrager] maintains in an affidavit there were "many occasions when [she] would be looking for Mr. Schroeder during business hours and would learn that he and [a particular junior male associate] were at the gym."

Similarly, when [Verdrager] was nursing her first child, Schroeder evaluated her negatively for "leaving [the office] no later than 5[:]30," even as Schroeder "was sending [the aforementioned male associate] home" earlier than [Verdrager] because he had "a wife and kid at home."

-- Shifting Stories

Next, the Court looked at how relevant individuals, and particularly the partner in question, assessed Verdrager's work before and after her internal sexual harassment complaint.

While Cohen initially complimented [Verdrager]'s work, [] this changed following her August, 2004, complaints [of sexual harassment against him], when she was told by various individuals that Cohen was "bad-mouthing" her.

In October, 2004, Cohen asked a client to submit a written complaint against [Verdrager], which he then forwarded to [the] section manager, and Starr, the human resources director. Cohen stated in his deposition that he had never previously solicited a written complaint against an associate.

-- Stereotyping

Third, the Court determined that "a reasonable jury could interpret a number of the [criticisms made by Verdrager]'s evaluators and supervisors as reflecting '[s]tereotypical thinking . . . categorizing people on the basis of broad generalizations.'"

For example, the evidence showed that a manager made a comment that Verdrager did not have a high "level of commitment to her professional development and interest in advancement and was more concerned about somehow . . . potentially pursuing a [discrimination] claim."

Further, when she was pregnant for the first time, a manager questioned "her commitment to her work, noting that she was 'out a lot [which she] says [is] attributable to her medical condition tho[ugh] I just got an e-mail re[garding] her taking about [four] days off . . . which I assume is vacation.'"

Another manager wrote:

he was "getting frustrated" because he "cannot give work to someone ... when I don't know if they are going to here on any given day."

The Court noted that while "[t]hese kinds of comments can, of course, admit of different interpretations by a jury, they could be understood to reflect a stereotypical view of women as not committed to their work because of family responsibilities. See Massachusetts Elec. Co. v. Massachusetts Comm'n Against Discrimination, 375 Mass. 160, 168 (1978) (noting "stereotype that women belong at home raising a family rather than at a job as permanent members of the work force") (internal citation omitted).

-- Employer's General Practices or Policies

And, lastly, the Court looked at the evidence that women at Mintz Levin more broadly, and Verdrager's department more specifically, were subject to discriminatory treatment.

As to the firm, the contemporaneous study from the consulting group indicated:

[m]any female [attorneys] . . . believe it is more difficult for women than men at Mintz. In particular, they indicated that they are not given the same assignments or opportunities for exposure that men receive, there are fewer women in management for them to look up to or receive support from, and male partners make assumptions about the ability and willingness of women to do certain work.... The report also indicated that "[m]any female and of color respondents believe that white men in the firm have a support network amongst themselves and that it is more comfortable and familiar within the firm for them.

As to Verdrager's own department, the Court noted that internal firm "feedback" relating to the partner in question as well as another managers with whom she worked included comments that "[h]e has engaged in harassing and inappropriate behavior toward many women" and that "[h]e indicates a clear bias against women in the workplace.

And yet another manager to whom Verdrager initially brought her concerns received internal "feedback" that he "has different standards for men and women" and that he "judges women's work more harshly, and is less appreciative of women's work."

Lastly, the Court looked at the composition of Verdrager's department by sex.

When [Verdrager] joined the firm, there were five female associates and four male associates in the Boston ELB section senior to her in terms of the year they had graduated from law school. Of those, all of the men were promoted to member, while none of the women were... [T]o the extent [these numbers] suggest that the highest ranks of [the] employer's organization are closed to [women], they may support an inference that the particular decision[s]" in question here were "tainted by an unlawful bias." Lipchitz, supra at 508-509 ("evidence indicat[ing]" dearth of "women in the corporate ranks of the company" is "relevant, and may be properly introduced in a disparate treatment case").

On the basis of all of this evidence, the Court concluded that Verdrager had presented evidence from which a reasonable jury could infer that her demotion was the result of unlawful discrimination. Thus, the case deserved to go to trial instead of what Mintz Levin wanted, to be thrown out.

The doorways

As I like to do occasionally in blog posts, for educational purposes, I point out the doorways -- the points in the case in which actions had consequences.

Here, it seems that as soon as Verdrager starter this job, she had the misfortune of being assigned to work closely with someone who would, within a year's time, be the subject of "inappropriate" conduct complaints by at least seven women in total.

This is a tricky situation to navigate as an employee, particularly when you're interested in making a career with your new employer. Verdrager chose to go to human resources, and according to her, it started the chain of consequences that led to her negative reviews and ultimate demotion. That move to go to HR was certainly a doorway. It needs to be approached and moved through with care.

On the employer side, there were doorways as well. Upon receiving Verdrager's -- as well as six other -- complaints that the partner in question was sexually inappropriate, it conducted investigations, hired an executive coach, and seemingly, according to the evidence available, did little else. There were certainly other -- and better -- ways of proceeding through those doorways.

Instead, Verdrager and Mintz Levin ended up in litigation for which only one part has now concluded nine years after her demotion. (The case still has to go to trial; it could also settle.) For all parties involved, that's eight years presumably of legal bills and headaches, and it's still not over.

Employees and employers alike, if you find yourself in or approaching a doorway at work, contact me to discuss navigating it with care.

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