For there to be a claim for gender discrimination, the conduct and harassment by the employer must be based on the employee’s gender. Harassment and discrimination that is not based on the employee’s sex is not gender discrimination.
In Bell v. Baptist Health, No. 22-2057, 2023 WL 2253146, at *1 (8th Cir. Feb. 28, 2023), Courtnay Bell, a staff radiologic technologist, did not like her bosses. And her bosses did not like Bell. In her lawsuit for gender discrimination, Bell pointed to six incidents between her and one doctor:
- Kapil Yadav acted “angry” with Bell after x-ray tube froze.
- Yadav ignored Bell when she informed him that a patient’s family was not present.
- Yadav instructed Bell to not make fun of him after she made a comment to him.
- Yadav used an accusatory tone when questioning whether Bell answered his phone during a procedure.
- Yadav became frustrated when Bell took too long to prepare a patient and derogatorily criticized her prepping of that patient.
- Yadav tossed a used syringe past her onto a patient’s groin and then yelled that he was going to report her conduct.
Bell admitted that none of these comments were gender no sexual based. Nonetheless, Bell reported this conduct to HR and filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). The employer then investigated the complaints and created a safety plan that created a procedure for Bell to immediately report any situation where she felt unsafe.
Shortly after, Bell reported that Dr. Thomas Conley was intoxicated during a procedure, which a breathalyzer proved to be false. Give the false accusation against a doctor, Bell was placed on paid administrative leave.
The employer then offered Bell the opportunity to return to work in the same position with the same rate of pay; and gave her the choice of staying at the same location or moving to a different facility. Bell rejected the offer and quit, stating that she refused to work with Dr. Yadav again. There was no evidence regarding if Dr. Yadav ever, or if so, how much he, worked at the proposed new facility.
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How do you prove constructive discharge?
Under Title VII of the Civil Rights Act of 1964, constructive discharge is considered a form of unlawful discrimination, which occurs when an employer creates working conditions that are so intolerable that a reasonable person in the employee’s position would be forced to resign.
If an employer’s actions create a hostile work environment based on one of its protected characteristics, such as gender in this case, and the working conditions are so intolerable that a reasonable person would feel compelled to resign, the employee may have a claim for constructive discharge under Title VII.
Constructive discharge occurs when an employer creates a work environment that is so intolerable that a reasonable employee would feel forced to resign. To prove constructive discharge, an employee must demonstrate that:
- The employer made working conditions intolerable: The employee must show that the employer created a hostile work environment through harassment, discrimination, or other unlawful behavior.
- The employee resigned because of the intolerable working conditions: The employee must show that they resigned because of the intolerable working conditions and not for some other reason.
- The employer intended to force the employee to resign: The employee must show that the employer knew or should have known that their actions would force the employee to resign.
- The employee acted reasonably: The employee must show that they acted reasonably by trying to resolve the problem before resigning. To that end, “an employee must, however, grant her employer a reasonable opportunity to correct the intolerable condition before she terminates her employment.” Rester v. Stephens Media, LLC, 739 F.3d 1127, 1132 (8th Cir. 2014).
To prove constructive discharge, the employee should document the intolerable working conditions, including any harassment, discrimination, or other unlawful behavior, and any attempts to address the issue with their employer. The employee should also seek the advice of an experienced employment attorney who can advise them on the best course of action and help them navigate the legal process.
In Bell, the United States Court of Appeals for the Eighth Circuit had little trouble holding that Bell failed to meet this burden as a matter of law: “Here, Bell presented no evidence that Baptist Health intended to force her to quit. Rather, the record indicates that Baptist Health tried to retain Bell by giving her paid administrative leave, offering to relocate her to a different location, and offering to transfer her to a new department. Thus, the district court did not err in granting summary judgment to Baptist Health on this claim.” Id. at *2.
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How do you prove a gender based hostile work environment?
To establish a prima facie case of gender-based hostile work environment, an employee must show that:
- They are a member of a protected class: In this case, the employee must be able to show that they are female, and therefore a member of a protected class under Title VII.
- They were subjected to unwelcome harassment: The employee must be able to demonstrate that they were subjected to unwelcome conduct based on their gender, such as offensive or sexually explicit comments or physical touching.
- The harassment was severe or pervasive: The employee must be able to demonstrate that the harassment was so severe or pervasive that it created a hostile or abusive work environment. This means that the harassment was more than an isolated incident and had a lasting impact on the employee’s ability to perform their job.
- The employer knew or should have known about the harassment: The employee must be able to demonstrate that the employer knew or should have known about the harassment and failed to take prompt and appropriate action to address it. Obviously, this element is satisfied if the conduct is perpetrated by a manager, supervisor, or owner of the company.
If an employee can establish a prima facie case of gender-based hostile work environment, the burden then shifts to the employer to demonstrate that they took reasonable steps to prevent and address harassment in the workplace. If the employer is unable to meet this burden, the employee may be entitled to damages, including lost wages and emotional distress, because of the hostile work environment.
The United States Court of Appeals for the Eighth Circuit rejected this claim as well:
The district court did not err in granting summary judgment to Baptist Health on this claim because there is no evidence that the alleged discrimination by Dr. Yadav was based on sex. … Here, Bell alleges six incidents with Dr. Yadav between March and November 2019, and she admits that Dr. Yadav made no sexual remarks. Nonetheless, Bell alleges that Dr. Yadav’s comments were motivated by sex because he treated women worse than men. But Bell provides no evidence besides her own allegations that Dr. Yadav treated women worse than men. For example, she did not provide testimony or formal complaints from female coworkers alleging that they were similarly treated badly by Dr. Yadav. Though she claims that a male coworker once commented on how Dr. Yadav treats women worse than men, her allegation is inadmissible hearsay that we cannot consider at summary judgment, and her male coworker did not substantiate her claim in his deposition. Thus, no reasonable jury could conclude that Dr. Yadav’s actions towards Bell were based on her sex.
Id. at *3 (citations omitted).
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How do I sue for gender discrimination in the workplace?
The first thing you must do is consult experienced employee’s rights lawyers to determine if you have a claim for wrongful termination, sexual harassment, or gender discrimination. Never guess about what your legal rights are – especially when you can call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now.
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