An Upstate New York Case Puts a Spotlight on Discrimination Via Selective (and Gender-Based) Enforcement of Employer Rules

If you believe that your employer has used its rules to discriminate against you because of your gender, you should get in touch with a knowledgeable New York City gender discrimination lawyer to discuss your options. The law has multiple different ways to prove gender discrimination, which means that there are multiple different avenues available.

There are two primary ways that an employer’s policies can be the basis of gender discrimination. One is if the policies specifically target and harm a protected group of which you are a member. “Women need not apply,” for example, is an example of gender discrimination on its face.

Other times, gender discrimination involves a facially neutral policy and more subtle discrimination. The discrimination is in, not the rule itself, but the way your employer goes about enforcing that facially neutral policy.

K.O., an upstate school employee, had a viable case that fell into the latter category. She worked as a maintenance mechanic at a Rochester public school. She was the only female maintenance mechanic among a group of 12-14. Indeed, she was the only woman in her department, which comprised 70 employees.

In 2014, K.O. got a new supervisor. Coworkers would later testify that the new supervisor had “animosity” toward K.O. and seemed to want to “get rid of her.” The mechanic made multiple complaints objecting to the way that the supervisor was “applying a different and more onerous set of expectations to her work than he applied to her coworkers.”

In early 2016, the supervisor began investigating K.O.’s lunch breaks. He assembled various forms of “proof, including video surveillance recordings, GPS records, and time logs.” K.O. admitted that her lunch breaks often lasted longer than the required limit of 30 minutes, but pointed out that her male colleagues engaged in identical behavior, yet none of them had been disciplined and none were under investigation. K.O. was ultimately demoted.

K.O. sued for gender discrimination and retaliation. In a case like this, the initial burden of proof is on the worker, who must demonstrate that she has a prima facie case of sex discrimination. K.O. was a woman who suffered a demotion, and she had all the necessary allegations to meet this burden.

Next, the burden shifts to the employer, who must present a legitimate reason for its action. The school had ample proof to clear this hurdle. It had a rule that set the lunch period for workers like K.O. at 30 minutes, K.O. routinely took lunches lasting longer than the allotted 30 minutes and, therefore, had engaged in “theft of time,” which permitted employment discipline.

The (Unofficial) Creation of Two Sets of Rules

Once your employer does this, your case is not over… far from it. The burden merely shifts back to you to show that the legitimate reason the employer stated was merely a pretext for discrimination. One way you can do that is by showing that, regardless of what the black-and-white rules say, the enforcement of those rules demonstrates two different standards — one for you and people of your gender, and one for those who aren’t.

This mechanic had ample evidence to support her argument that the “theft of time” asserted reason was pretextual. She submitted “GPS records, investigative records, and affidavits” to back up her claim of discriminatory enforcement. Even during the three-day “spot check” the employer did on K.O., it found at least one male mechanic who took an over-long lunch break, yet there was no record of that man ever being reprimanded or disciplined in any way.

Over a three-month period, GPS tracking indicated numerous workers in the department who engaged in extended lunch breaks, none of whom were disciplined. Affidavits from colleagues identified seven men in the department who took over-long lunch breaks “routinely,” yet none were disciplined or reprimanded. Those colleagues also testified that “despite extended lunch breaks being commonplace, they were unaware of any employee in the department other than plaintiff ever having been disciplined for taking long lunch breaks, either before or after her tenure.”

In other words, she had proof that the department applied a different set of standards to her than they did to its male mechanics. That was sufficient to defeat the employer’s motion for summary judgment.

If your workplace is a setting where officially there’s one set of rules but, in reality, there are two sets of rules and the dividing line between the two groups is race, gender, nationality, or some other protected characteristic, then that potentially amounts to illegal discrimination. Reach out to the knowledgeable New York gender discrimination attorneys at Phillips & Associates to discuss your circumstances. Our team of experienced attorneys is dedicated to delivering positive outcomes for each of our clients. To find out more, contact us online or at (212) 248-7431 to set up a free and confidential consultation today.

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