Women’s Sports Foundation Plumbs Outer Boundary Of Rank Hypocrisy

One of the great ironies with respect to Pres. Joe Biden’s executive order allowing biological males to compete in girl’s sports is the fact that it is supported by the Women’s Sports Foundation (WSF).

The founder of the WSF is Billie Jean King, a former professional tennis player who came to national attention in 1973 when at the age of 29 she won the televised “Battle of the Sexes” tennis match against Bobby Riggs, 55, a professional tennis player, hustler and loud mouth male chauvinist.

Some 50 million looked on while King beat Riggs at the Houston Astrodome, 6-4, 6-3, 6-3.

The Battle of the Sexes put King, now 76, and women’s tennis on the map. It was an important milestone in women’s athletics. But King and the WSF seem to have forgotten that Riggs was 55 years old on that fateful day. There’s no way King would have won had they been the same age.

So how can King and the WSF justify telling female athletes today that biological male transgender athletes who identify as female should be permitted to compete in women’s sports?

Weakening Of Good Ole’ Boy’ Network?

Prior to the #MeToo movement, which raised consciousness about the problem of sexual harassment by powerful men, this case might have ended differently.

A three-judge panel of the U.S. Court of Appeals for the Third Circuit in Philadelphia recently upheld a lower court’s refusal to dismiss sexual harassment lawsuit filed by Probation Officer Crystal Starnes against Butler County Court of Common Pleas and two individually named defendants, Thomas Doerr, the presiding judge of the court, and Thomas Holman, the Deputy Court Administrator.

Perhaps most significantly, the panel rejected Doerr’s claim of qualified immunity to the sexual harassment charge, meaning he can be held personally liable for what Starnes alleged were years of severe and pervasive sexual harassment.

Doerr argued he was immune because the 3rd Circuit had not previously recognized hostile work environment claims under Section 1983 of the Civil Rights Act, which permits state employees to bring civil rights complaints under the Equal Protection Clause of the U.S. Constitution. The panel disagreed, pointing to a “robust consensus of persuasive authority” that such claims are actionable under the section.

The panel refused to dismiss Starnes’ lawsuit, finding she alleged sufficient facts to support a “plausible” claim of “severe and pervasive” sexual harassment.

High Court OKs Sex Discrimination

“Ain’t I a Woman?”

An all-male majority on the U.S. Supreme Court has sanctioned insidious sex discrimination in the Hobby Lobby case.

In its decision, the majority states that a privately-held for-profit corporation does not have to follow federal regulations requiring employers to provide workers with an insurance plan that includes, among other things, no-cost contraceptives. The majority upheld Hobby Lobby‘s religious objection to paying for contraceptives. lodged under the Religious Freedom Restoration Act. So Hobby Lobby does not have to provide no-cost contraceptives under its insurance plan.

Only women use the contraceptives at issue in the Hobby Lobby case.

Justice Samuel Alito, who wrote the majority opinion, refers to the issue of discrimination in the context of fears that an employer might lodge a religious objections involving race discrimination. For example, suppose a restaurant owner doesn’t want to serve blacks for religious reasons. Justice Alito writes:

“The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

Okay, so the Court makes it clear it will not countenance religious objections that are based on race discrimination. But why then has the Court approved religious objections that are based on sex discrimination?

Continue reading “High Court OKs Sex Discrimination”

Company Liable for Lovestruck HR Director

A federal appeals court in Puerto Rico has rejected the narrow limitations imposed by the U.S. Supreme Court on who is considered to be a “supervisor” in employment discrimination cases.

The U.S. Court of Appeals for the First Circuit held that Developers Diversified Realty Corp (DDR) can be held liable for sexual harassment by Rosa Martinez, an HR officer for the company, who engineered the ouster of Antonio Velázquez-Pérez, a company regional general manager, after he rebuffed her advances.

Both Martinez and Velázquez worked in the Puerto Rico offices of DDR, a shopping center management company based in Ohio.

In its ruling , the appeals court acknowledged that the U.S. Supreme Court last year limited employer liability under Title VII of the Civil Rights Act in cases where a non-supervisor causes a discriminatory action. Martinez was not Velázquez’ supervisor. However, the 1st Circuit court said, DDR should have known that Martinez’s recommendation that Velázquez be fired was the product of discriminatory animus and therefore can be held liable under Title VII for negligently allowing Martinez to cause Velázquez’s termination.

Noting the case presented issues that it had not addressed previously. the appeals court concluded that an employer can be held liable if the co-worker acted for discriminatory reasons with the intent to cause the plaintiff’s firing; the co-worker’s actions were in fact the proximate cause of the termination; and the employer allowed the co-worker’s acts to achieve their desired effect though it knew (or reasonably should have known) of the discriminatory motivation.

The Court reversed the district court’s grant of summary judgment on Velázquez’s claim of sexual discrimination in violation of Title VII.

According the opinion, Velázquez and Martinez had mutually flirted with each other when they both went to a company meeting in April 2008 and stayed at the same hotel. That night, Velázquez was walking with two female employees of the company when Martinez appeared in their path and asked where they were going. Martinez followed Velázquez to his room, tried to force her way in and refused to leave until Velázquez threatened to call security. She then telephoned hm several times and sent a jealous email to one of the women that he had been walking with. Shortly thereafter, Martinez threatened to have Velázquez fired, stating, “I don’t have to take revenge on anyone; if somebody knows your professional weaknesses, that person is me.”

Velázquez complained about Martinez’s behavior to his supervisor, who advised him to send her a “conciliatory” email because “[s]he’s going to get you terminated.” He and another male employee then jokingly suggested that Velázquez have sex with Martinez.

Martinez began a campaign of harsh criticism of Velázquez’s work, culminating with a recommendation that he be terminated. The top company official in Puerto Rico suggested that instead of termination Velázquez be issued a formal warning and placed on a Performance Improvement Plan. Martinez went over his head and complained to two senior officials at the company’s headquarters in Ohio.

Meanwhile, Velázquez and Martinez went to another business meeting and stayed at the same hotel. This time Martinez followed Velázquez into an elevator and said she loved him and “wanted to have a romantic relationship with him.” Velázquez refused. That night, Martinez sent an email to the Ohio officials recommending that Velázquez be terminated immediately “because his behavior has been against the company code of conduct and has already impacted the trust form other team members.”

Four days later, on August 25, 2008, Velázquez was terminated for “[a]bsenteeism,” “[f]ailure to report,” and “[u]nsatisfactory performance.”

Appeals Ct Sides with EEOC in Conciliation Dispute

A federal appeals court in Chicago has departed from several other federal circuits by ruling that judicial review is not appropriate over efforts by the U.S. Equal Employment Opportunity Commission to settle employment discrimination complaints.

Title VII of the Civil Rights Act directs the EEOC to try to negotiate an end to an employer’s unlawful employment practices before it seeks a judicial remedy but it does not require the EEOC to actually reach a settlement.

Nevertheless, several federal appeals courts have allowed employers to raise an affirmative defense in employment discrimination cases that the EEOC failed to engage in good faith settlement negotiations prior to filing a lawsuit. This is referred to as a “failure-to-conciliate” defense.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in Chicago ruled last week that an implied failure-to-conciliate defense would add an “unwarranted mechanism” in Title VII by which employers could avoid liability for unlawful discrimination. “They can do so through protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle,” said the panel.

In addition, the panel said, the implied failure-to-conciliate defense runs “flatly contrary to the broad statutory prohibition on using what was said and done during the conciliation process ‘as evidence in a subsequent proceeding.’”

Six other federal circuits – the Second, Fourth, Fifth, Sixth, Tenth and Eleventh Circuits – allow some form of judicial review over the sufficiency or good faith of the EEOC’s conciliation efforts.

The 7th Circuit ruling came in a 2008 sex discrimination case filed against Mach Mining, which allegedly refused to hire female applicants for coal mining jobs. After investigating, the EEOC found there was reasonable cause to believe Mach had discriminated against a class of female job applicants at its Johnston City site. The EEOC engaged in informal conciliation with Mach but in 2011 the EEOC concluded the parties could not agree and filed a lawsuit.

Mach argued the suit should be dismissed because the EEOC failed to conciliate in good faith. The EEOC did not contend that its efforts were either sincere or reasonable, only that they were not reviewable as a defense to unlawful discrimination.

The 7^th Circuit panel said the U.S. Congress gave the EEOC broad discretion to negotiate as it sees fit, including the power to accept or reject any offer or proposed settlement for any reason. “Nor can Mach Mining explain just how many offers, counteroffers, conferences, or phone calls should be necessary to satisfy judicial review, despite repeated invitations to provide the court with a workable standard,” it added.

The U.S. Chamber of Commerce filed a brief in the case arguing that it was necessary to keep the EEOC on a tight leash to avoid “agency shenanigans” but the 7th Circuit panel noted the EEOC filed only 122 merit lawsuits in 2012. “That so few unsuccessful efforts at conciliation end up in court shows how constrained the agency is by practical limits of budget and personnel,” said the appeals court.

The panel remanded the case, EEOC v. Mach Mining, No. 13-2456, to the lower court for further proceedings.

In brutally harsh decision last fall in EEOC v. CRST Van Expedited, Inc., Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled that the EEOC must pay CRST, one of the nation’s leading transport companies, a judgment of $4,694,422.14 stemming from a lawsuit filed by the EEOC alleging sex discrimination. Judge Reade dismissed at least 67 class members from that case because the EEOC’s allegedly failed to conciliate with CRST with respect to each individual class member.