Sex discrimination in the workplace may take the form of written policies that disparately impact male and female employees. For example, a policy that is seemingly neutral on its face but imposes a greater burden on women than men may be considered illegal discrimination, particularly if the employer punishes a female employee for failure to comply. Along similar lines, a policy that has the effect of penalizing or stigmatizing an employee who fails to conform to “gender stereotypes” may also violate federal and New York State civil rights laws.
Federal Judge Allows Ithaca Police Officer's Civil Rights Lawsuit to Proceed
Here is a practical example: Recently, a federal judge in upstate New York refused to dismiss a sex discrimination lawsuit brought by a police officer against the City of Ithaca and its police chief. The plaintiff, who is openly gay, alleges that she has been targeted by the department due to her “gender non-conformity.”
Specifically, the plaintiff challenges a department policy that requires “officers of the same gender” to search and transport prisoners. The plaintiff said this disparately impacted her duty assignments, as she “was required to transport, supervise, and monitor female prisoners more frequently than male officers.” This disparity was further aggravated by the fact the department handles a higher-than-average number of female prisoners, yet most of the available police officers are male.
Due to the plaintiff's sexual orientation and appearance, she said forcing her to physically handle a higher number of female prisoners subjected her to a hostile work environment. She pointed to a number of incidents where female prisoners “threatened to fabricate sexual harassment allegations” against her. Yet when the plaintiff complained to her supervisors and asked to change the search-and-transport policies, she was reprimanded and docked vacation time.
In rejecting the City's motion to dismiss, the judge presiding over the case said the plaintiff presented a viable employment discrimination claim. The judge noted that taking away vacation time as punishment for complaining about an allegedly illegal employment policy “is sufficient to establish an adverse employment action.” While the City may be able to prove at trial that the transport-and-search policy is justified as “reasonably necessary” to the police department's operations, there were still questions regarding “what, if any, alternatives existed” to the rule prohibiting male officers from handling female prisoners.
The judge also rejected the City's efforts to dismiss the plaintiff's allegations regarding discrimination on the basis of her sexual orientation. As we recently discussed, the U.S. Second Circuit Court of Appeals recently overturned its longstanding precedent and held that federal laws banning sex discrimination also cover sexual orientation. In the present case, the judge cited the Second Circuit's opinion as binding on her court.
Are You a Victim of On-the-Job Discrimination?
Private and public employers alike must be careful when crafting job assignment policies that are likely to produce disparate impacts on female and male employees. If you are an employee unfairly affected by such policies, it is important to speak with a qualified New York employment law attorney who can review your case and advise you of the appropriate steps to handle the situation. Contact the Law Offices of White, Nisar & Hilferty, LLP. at (646) 760-6493, to schedule a consultation with a member of our team today.