Work Matters: Unlawful Discrimination Cases Demonstrate Why Merit Alone Can't Serve as Our North Star
Michael P. Maslanka, assistant professor of law, UNT Dallas College of Law.
As I write this, the college admissions scandal is breaking fast: famous actresses arrested, CEO’s handcuffed, a co-managing Big Law partner indicted. Why, though, is this big news? Because the purported misdeeds undermine a foundational American trait: that merit should principally drive decisions—not lucre or petty bribery or influence peddling. Lose this North Star and we lose our way. Decisions made in the workplace likewise, but sadly not always so especially with women. Our decisions with women collide with other traits in the American character, one not as admirable or as noble.
Ignoble Trait No. 1: “Leave it to the market, the ultimate fair play maker.”
It’s 1963. Congress, a year before enactment of Title VII, enacts the Equal Pay Act. Its term are Zen-like: men and women performing work involving equal skill, effort and responsibility must be paid the same level of compensation. If not, the employer is automatically liable. And the Code of Federal regulations impart pre-employee meanings to skill effort and responsibility. That’s right, the nirvana of strict liability. But the employer can beat the rap if it proves an affirmative defense. There are four, the first three narrow as the eye of a needle, but the fourth, the size of a yawning Grand Canyon. Namely, that an employer can justify a pay differential “based on any factor other than sex.” As episode after episode of “Strong Rule Meets Pliable Exception” shows, the exception often beats the rule to a pulp. Here is an employer’s favorite: ”We paid the women less than the guy because her compensation was based on her prior, market driven salary which is a factor other than sex.”
Courts routinely bought off on this until the Ninth Circuit, in an en banc decision in Rizo v. Yovino in 2018 said “enough.” (The Fifth Circuit panel decision in Siler-Khodr in 2001 is to the same import.) The reasoning is simple: we lived and still do in a world practicing sex discrimination; the prior salary could be a function of such discrimination; to allow prior salary therefore to be a factor other than sex would serve only to perpetuate discrimination, not to cure it. Yes, the law can be perverse, but not that perverse. (By the way, Rizo was vacated by SCOTUS on a procedural point but not a substantive one.) So, the market will not set you free, at least in this instance.
Ignoble Trait No. 2: “A woman uses her wiles to achieve her ends.”
This trait just will not die. It keeps popping up from what you think is a sealed coffin. The Fourth Circuit had to hammer the lid shut once again this past February in Parker v. Reema Consulting Services. Evangeline Parker worked her way through six promotions in a year and a half to become an assistant operations manager at a warehouse facility. No sooner had she achieved this position than rumors spread in the workplace that she was having a sexual relationship with an upper level manager (Demarcus Pickett) who was rewarding her with the rapid fire promotions. Managers, including Parker’s immediate boss, helped fuel the rumor. In fact, he allegedly asked Pickett, “Hey, you sure your wife ain’t divorcing you because your’re f—king (Parker)?”
Parker complains to HR, things go from bad to worse, and Parker gets blamed for causing a commutation at work and gets fired. The trial court veers off course, grants a Rule 12 (b) (6), and reasons that she was fired because of her alleged conduct not because of her sex. The appeals court impaled that sophistry with the following: “(T)he rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception—one that unfortunately still persists—that generally women, not men, use sex to achieve success.” Which leads us to the next Ignoble Trait, perhaps the demoing and pervasive one of all.
Ignoble Trait No. 3: “Father Knows Best”
This trait is the most dangerous because it fails to see sex discrimination as a multidimensional construct. Rather, it insists that the well-meaning, kindhearted and genuinely compassionate do not violate the law as do the sexist, the misogynistic, and the oafish. Not true. Example A: EEOC v. Bob Evans Farms, 275 F. Supp. 635 (W.D. Penn. 2017)
In July 2014, a waitress was pregnant with her second child with a due date in September 2014. She intended to give birth in September 2014 and to work right up to the delivery date. Her manager knew of her intentions because she informed him about them when he asked when she was going to take a leave of absence. The manager did not care for the answer telling her that he didn’t “want to get screwed over if (she had) the baby.” The manager took her off the schedule. She had the baby. The EEOC sued and won on summary judgment because, well, the employer confessed that its actions were taken because of her pregnancy and it had no medical reasons for her to be taken off the schedule. The trial court rejected the argument that the EEOC must prove anti-female animus. Even a good reason or a kindhearted one is no defense.
I have a wish. Here it is: that if we were all able to believe in the transcendent power of merit, and merit alone, we would be rid of pernicious and evil discrimination. But no matter how hard I close my eyes, it won’t happen. Why? Because all types of unlawful discrimination, as we see in this short article, carry their own baggage that must be dealt with. But it’s a start, after all, and with a start comes the possibility of an end.
