Best Ohio Gender Discrimination Lawyer Answer: Can I sue when my employer fired me for a similar offense as my male co-workers who kept their jobs? What if my employer did not make direct comments to me about my gender? How can I prove my termination was due to my sex?
At The Spitz Law Firm, our hard working and dedicated employment attorneys understand that sex or gender-based discrimination can come in many forms. While your boss may not make remarks to you directly related to your sex, you may experience treatment that differs from co-workers of the opposite gender. Eventually, this treatment may lead to unfair discipline or even termination from your job.
This type of treatment based on sex is explicitly prohibited by Title VII of the Civil Rights Act of 1964 and Ohio’s own Civil Rights Act, which is found at Ohio R.C. 4112.02. Under these anti-discrimination laws, your boss, manager or supervisor cannot use a sex-based reason to fire employees, refuse to hire, or otherwise discriminate against persons with respect to any terms, conditions, or other matters related to their employment. (See I Was Denied A Job Because I Am A Woman!; Can I Sue If I Was Turned Down For A Job Because Of Discrimination?; Can An Employer Refuse To Hire Me Because I’m Transgendered?; Should I Sue For Gender Discrimination?; and Sex Discrimination Includes Pregnancy Discrimination.)).
But, sometimes this gender-based discrimination is not easily apparent. Take, for example, the recent case out of the United States Court of Appeals for the Sixth Circuit, Jackson v. VHS Detroit Receiving Hospital, Inc. The employee, Karon Jackson, worked as a mental health technician for her hospital employer. When Jackson failed to check the ID bracelet of a patient being discharged – on the same day as a staff meeting about the importance of checking a patient’s ID bracelet – she was fired by the hospital.
On its face, Jackson’s termination may seem reasonable. The trial court agreed and tossed out the wrongful termination claim, holding that Jackson had failed to show that the reason she was fired was due to sex-based discrimination.
The Sixth Circuit Court of Appeals, which covers Ohio, reviewed the ruling of the trial court, and looked deeper into the facts of Jackson’s case and found possible evidence of discriminatory practice violating Title VII. For one, Jackson was the only woman working as a mental health technician in the hospital. Her performance reviews were extremely positive and had a spotless disciplinary record. She admitted to her mistake without trying to cover it up. Yet her employer decided that this one offense was worth firing Jackson.
Meanwhile, Jackson’s male co-workers had also violated this rule and not been fired. One such male co-worker was even on his “last chance” program when he violated the ID badge rule and was not terminated. Another male employee had been given a final warning based on prior infractions, yet was not terminated when he failed to search a patient who had brought dangerous knives into the hospital.
In making its determination, the Sixth Circuit compared the conduct of the male co-workers and focused “on the severity of the differently treated employees’ actions.” Finding that one male co-worker with worse performance and disciplinary issues violated the same rule and had not been fired, while another male co-worker also with worse performance and disciplinary issues had committed a mistake possibly worse than the ID badge rule had also not been fired, the Sixth Circuit held that Jackson’s claims deserved to be heard by a jury.
Specifically, the Sixth Circuit held:
To establish a prima facie case of sex discrimination, a plaintiff must demonstrate that: “(1) she is a member of a protected group; (2) she was subjected to an adverse employment decision; (3) she was qualified for the position; and (4) . . . similarly situated non-protected employees were treated more favorably.” Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004). In this case, DRH does not dispute that Jackson meets the first three elements of the prima facie case. We therefore focus on the final element: whether Jackson has established that similarly situated, non-protected employees were treated more favorably.
In Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir. 1992), we noted three factors relevant to determining whether employees are “similarly situated” in the context of cases alleging differential disciplinary action:
to be deemed “similarly-situated”, the individuals with whom the plaintiff seeks to compare his/her treatment must have  dealt with the same supervisor,  have been subject to the same standards and  have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.
Id. at 583; see also Johnson v. Kroger Co., 319 F.3d 858, 867 (6th Cir. 2003) (“the weight to be given to each [Mitchell] factor can vary depending upon the particular case”); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (observing that the Mitchell factors “generally are all relevant considerations in cases alleging differential disciplinary action”). As we later explained in Ercegovich, the Mitchell factors do not require a plaintiff to “demonstrate an exact correlation with the employee receiving more favorable treatment in order for the two to be considered `similarly-situated;’ rather, . . . the plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must be similar in `all of the relevant aspects.’“ 154 F.3d at 352 (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994)).
Jackson and DRH largely focus on Mitchell’s third factor: whether Jackson’s conduct was sufficiently similar to her comparators’ such that DRH’s differential discipline creates an inference of discriminatory motive. In evaluating this factor, we look to whether the comparators’ actions “were of `comparable seriousness’ to the conduct for which Plaintiff was discharged.” Mitchell, 964 F.2d at 583 (quoting Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir. 1988)). A plaintiff “is not required to show that his proposed comparator’s actions were identical to his own.” Colvin v. Veterans Admin. Med. Ctr., 390 F. App’x 454, 459 (6th Cir. 2010); see also Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 751-52 (6th Cir. 2012). Even so, a plaintiff cannot establish a reasonable inference of discriminatory motive based on her “employer’s more severe treatment of more egregious circumstances.” Clayton v. Meijer, Inc., 281 F.3d 605, 612 (6th Cir. 2002); see also Colvin, 390 F. App’x at 458-59 (holding plaintiff and coworkers’ conduct not sufficiently similar to create an inference of discrimination based on differential discipline); Simpson v. Vanderbilt Univ., 359 F. App’x 562, 569 (6th Cir. 2009) (holding same); Ruth v. Children’s Med. Ctr., 940 F.2d 662, at *7 (6th Cir. 1991) (table) (holding same).
We conclude that Jackson sufficiently demonstrated that Duncan’s and Little’s actions were of “comparable seriousness” to the conduct for which Jackson was discharged to establish a prima facie case.
While this means Jackson has not yet won her case and proven discrimination against the hospital, her case is a good reminder that sometimes discrimination is not obvious. Discrimination can be open – like when your employer makes disparaging remarks related to your sex – and it can be more subtle, like in Jackson’s case where the employer disciplined a female employee more harshly than her male counterparts.
If you feel that you are being discriminated based on your gender or sex, then call the right attorney. It is never appropriate to discriminate against female employees. Discrimination against women includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied a promotion, and denied wages or not receiving equal pay. When you call the right attorney to schedule a free and confidential consultation at (216) 291-4744, you will meet with an attorney from The Spitz Law Firm to discuss wrongful discrimination claims and help you determine the best way to pursue your gender/sex discrimination claims.
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