LATEST ISSUES IN GENDER DISCRIMINATION AND HARASSMENT
March 21—23, 2007
Mary Ann Connell
Mayo Mallette, PLLC
Oxford, Mississippi
I.
Introduction
The Equal Protection Clause of the United States Constitution confers a federal
constitutional right to be free from sex discrimination.1 Title VII of the Civil Rights Act of 1964
prohibits public and private employers employing more than fifteen persons from discriminating
against employees on the basis of, among other protected categories, sex.2 Title IX of the
Education Amendments of 1972 prohibits sex discrimination by public and private educational
institutions receiving federal funds.3 The Equal Pay Act,4 Executive Order 11246 and state civil
rights laws also prohibit discrimination based on sex.5
This presentation is designed to give a brief overview of the law pertaining to sex
discrimination and then to focus on some current, and sometimes surprising, issues in this area.
II.
Overview of a Title VII Sex Discrimination Claim
To defeat a motion for summary judgment on a Title VII sex discrimination claim, a
plaintiff must first establish a prima facie case of discrimination, which she may do through
direct or circumstantial evidence.6 Most plaintiffs rely upon circumstantial evidence to attempt to
demonstrate that sex discrimination motivated a negative employment action toward them.
Courts evaluate claims based on circumstantial evidence under the burden-shifting
framework set forth in McDonnell Douglas Corporation v. Green.7 Under this three-part
analysis, a plaintiff must first establish a prima facie case of sex discrimination by showing that
she: (i) belongs to a protected group; (ii) was qualified for the position she sought; (iii) suffered
an adverse employment action; and (iv) was replaced by someone outside of her protected class,
or that other similarly situated persons were treated more favorably.8
If a court finds that a plaintiff establishes a prima facie case, a presumption of
discrimination arises. The burden then shifts to the defendant to produce a legitimate,
nondiscriminatory justification for its actions.9 If the defendant satisfies this burden of
Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273 (1979).
See 42 U.S.C. § 2000e.
3
20 U.S.C. §§ 1681, et seq.
4
29 U.S.C. § 206(d).
5
For an excellent discussion of nondiscrimination in employment in the college and university context, see William
A. Kaplin & Barbara A. Lee, THE LAW OF HIGHER EDUCATION (4th ed.), Chapters 5 & 6 (2006).
6
See Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 587 (5th Cir. 1998).
7
411 U.S. 792, 802-805 (1973).
8
See Septimus v. University of Houston, 399 F. 3d 601, 609 (5th Cir. 2005) (citing Okoye v. The Univ. of Texas
Houston Health Science Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001)).
9
See McDonnell Douglas, 411 U.S. at 802. Note that this burden-shifting approach does not require the employer to
1
2
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production, the presumption raised by the plaintiff’s prima facie case disappears.10 The burden
shifts back to the plaintiff to show that the defendant’s proffered reason is not true, but instead is
a pretext for intentional discrimination.11 If the plaintiff can show the defendant’s asserted
justification is false, this showing, coupled with a prima facie case, may permit the trier of fact to
conclude that the defendant discriminated against the plaintiff without additional evidence. 12 In
this third step at summary judgment, the plaintiff must substantiate her claim of pretext through
evidence demonstrating that discrimination lay at the heart of the defendant’s decision.13
III.
Current Issues of Interest
A.
The Prima Facie case
The prima facie burden is low and usually met with minimal effort.14 However, what happens
when a plaintiff shows that she is in a protected class, is qualified for a position which she does
not receive, but is replaced by another woman? Is this always fatal to her claim?
Surprisingly, some courts have said No. The Fifth Circuit addressed this issue in Williams
v. Trader Publishing Company,15 a Title VII case in which the plaintiff alleged that she was
discharged due to sex discrimination. The employer argued that the plaintiff failed to establish a
prima facie case of sex discrimination under Title VII because she could not prove that she was
replaced by a member of a non-protected class. Disagreeing, the court said: “[I]t is well settled
that, although replacement with a non-member of the protected class is evidence of
discriminatory intent, it is not essential to the establishment of a prima facie case under Title
VII.”16 The majority of the circuit courts of appeal have also concluded that it is not essential to
the establishment of a prima facie Title VII discrimination case that the plaintiff show she was
replaced by a person outside the protected class.17 In contrast to the majority holdings, however,
prove that it did not discriminate. See Kaplin and Lee, supra, n. 5 at 376.
10
See, e.g, Price v. Federal Express Corp., 283 F.3d 715, 720 (5th Cir. 2002).
11
Id. at 720 (citing Hicks v. St. Mary’s Honor Ctr., 509 U.S. 502 (1993)).
12
See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
13
See Price, 283 F.3d at 720.
14
See Scheidmantle v. Slippery Rock Univ. State Sys.of Higher Educ., 470 F.3d 535, 539 (3rd Cir. 2006).
15
218 F.3d 481 (5th Cir. 2000).
16
Id. at 485.
17
See, e.g., Amro v. Boeing Co., 232 F.3d 790, 796 (10th Cir. 2000) (declining to require plaintiff to meet fourth test
of prima facie case by proving that someone outside plaintiff’s protected class was selected to fill position);
Pivirotto v. Innovative Sys., 191 F.3d 344, 354 & n.6 (3rd Cir. 1999) (“An employee alleging gender discrimination
need not demonstrate that the employer hired someone from a non-protected class in her place in order to make out a
discrimination claim); Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996) (holding that while the fact
that one’s replacement is of another national origin “may help to raise an inference of discrimination, it is neither a
sufficient nor a necessary condition”); Walker v. St. Anthony’s Med. Ctr., 881 F.2d 554, 558 (8th Cir. 1989) (“[T]he
sex of [plaintiff’s] replacement, although a relevant consideration, is not necessarily a determinative factor in answer
to either the initial inquiry of whether she established a prima facie case or the ultimate inquiry of whether she was
the victim of discrimination.”); Hornsby v. Conoco, Inc., 777 F.2d 243, 246-47 (5th Cir. 1985) (holding that “the
single fact that a plaintiff is replaced by someone within the protected class does not negate the possibility that the
discharge was motivated for discriminatory reasons”); Meiri v. Dacon, 759 F.2d 989, 995-96 (2nd Cir. 1985)
(“[Requiring] an employee, in making out a prima facie case, to demonstrate that she was replaced by a person
outside the protected class . . . is inappropriate and at odds with the policies underlying Title VII.”); Howard v.
Roadway Express, Inc., 726 F.2d 1529, 1534 (11th Cir. 1984) (holding that district court misstated the law when it
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the Fourth Circuit affirmed a district court’s dismissal of a sex discrimination claim by a man
because the plaintiff was replaced by another man.18
B.
Standard for assessing qualifications
The Supreme Court recently addressed in Ash v. Tyson Foods19 the standard used for
determining whether the asserted nondiscriminatory reasons for an employer’s hiring decisions
were pretextual. Petitioners had introduced evidence that their qualifications were superior to
those of the two successful applicants. The Eleventh Circuit, in finding petitioners’ evidence
insufficient, stated: “‘Pretext can be established through comparing qualifications only when “the
disparity in qualifications is so apparent as virtually to jump off the page and slap you in the
face.’”20
Although acknowledging that qualifications evidence could suffice in some
circumstances to show pretext, the Court rejected the standard articulated by the Eleventh Circuit
in Ash: “The visual image of words jumping off the page to slap you (presumably a court) in the
face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from
superior qualifications.”21 Declining to define more precisely what standard should govern
pretext claims based on superior qualifications, the Court did, however, note with approval
various standards appropriate to be used when addressing qualifications, such as “disparities in
qualifications must be of such weight and significance that no reasonable person, in the exercise
of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in
question.”22
Since Ash, some plaintiffs have argued that the Court adopted a lower standard that
allows a plaintiff to show pretext by proof that he or she is simply “better qualified” than the
person actually hired. This argument has not succeeded, however. It seems apparent that the
intent of the Ash Court was to encourage use of clearer, less colloquial language to describe the
standard for qualifications evidence, not to mandate a new, lesser standard.23
C.
Paramour favoritism
If you ask a layperson if it is against the law for an employer to select his or her paramour
concluded that “there can be no racial discrimination against a black person who is not selected for a job when the
person who is selected for the job is black”).
18
See Brown v. McLean, 159 F.3d 898, 905 (4th Cir. 1998) (“In order to make out a prima facie case of
discriminatory termination, a plaintiff must ordinarily show that the position ultimately was filled by someone not a
member of the protected class.”).
19
126 S. Ct. 1195 (2006).
20
Id. at 1197 (quoting Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004)).
21
Ash, 126 S. Ct. at 1197.
22
Id. (quoting Cooper, 390 F.3d at 732). For other examples of language the Court approved, see Road v. Fairbanks
North Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003) (holding that qualifications evidence standing
alone may establish pretext where the plaintiff’s qualifications are “clearly superior” to those of the selected job
applicant); and, Aka v. Washington Hospital Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (en banc) (concluding the
factfinder may infer pretext if “a reasonable employer would have found the plaintiff significantly better qualified
for the job”).
23
See Drakeford v. Alabama Cooperative Extension Sys., 425 F. Supp. 2d 1274, 1277 (M.D. Ala. 2006).
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for a position or a promotion, the man or woman on the street would likely ask immediately,
“What is a paramour?” After explaining that a paramour is one’s lover,24 the layperson would
probably respond, “Of course it is illegal and unfair!” While this is a widely-held, and not
illogical, point of view, it is not one shared by the great majority of the courts.25
The first appeals court to address “paramour favoritism” was the Second Circuit in
DeCintio v. Westchester County Medical Center.26 Seven male respiratory therapists sued the
Medical Center claiming sex discrimination when promotion requirements were created to
disqualify them for the position of Assistant Chief Respiratory Therapist. The plaintiffs alleged
that their supervisor, in order to ensure that the woman with whom he was romantically involved
was given the promotion, only considered those applicants who were certified by a specific
professional organization. Since the favored woman was the only applicant who had the
certification, the plaintiffs alleged the requirement was pretextual.
At trial, the district court found that the Medical Center had violated both the Equal Pay
Act and Title VII. On appeal, the Second Circuit reversed both claims, holding that: “The
defendant’s conduct, although unfair, simply did not violate Title VII . . . .The plaintiffs were not
prejudiced because of their status as males; rather, they were discriminated against because Ryan
preferred his paramour. Appellees faced exactly the same predicament as that faced by any
woman applicant for the promotion.”27
In 1990, the Equal Employment Opportunity Commission (“the EEOC”), under the
direction of then-Chair Clarence Thomas, changed its position on sexual favoritism and adopted
the view set forth in DeCintio that not all types of sexual favoritism violate Title VII. The
Agency issued a policy guidance stating that paramour favoritism, in the absence of other factors
establishing the existence of sexual harassment, did not violate Title VII. 28 The EEOC reasoned
that neither a male nor a female employee could show that he or she had been treated less
favorably than another employee of the opposite sex based solely on the fact that a supervisor
treated a paramour more favorably. The EEOC acknowledged that situations involving sexual
relationships between employees and supervisors could give rise to Title VII liability if the
sexual relationship were coerced or necessary for a member of a particular sex to obtain an
employment benefit. The EEOC further stated that widespread favoritism based on granting of
sexual favors also might be tantamount to a hostile work environment.29
Since 1990, most, but not all, lower courts considering the issue have followed DeCintio
and the 1990 Policy Guidance.30 The most common argument against recognizing paramour
“Paramour” is defined in RANDOM HOUSE WEBSTER’S DICTINARY (1993) as “an illicit lover” or “any lover.”
See Michael J. Phillips, The Dubious Title VII Cause of Action for Sexual Favoritism, 51 WASH. & LEE L. REV.
547, 559 (1994) (“[A]lmost all courts considering the sexual favoritism issue have ... reject[ed] the idea that Title
VII forbids sexual favoritism as such.”).
26
807 F.2d 304, 308 (2d Cir. 1986), cert. denied, 484 U.S. 825 (1987).
27
Id.
28
EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism, No. 915.048, 1990 WL
1104702 (January 12, 1990) [hereafter Policy Guidance]. Although the Guidance does not bind the courts, it
provides a useful framework for describing Title VII sexual harassment law.
29
Id. at *3 (“In these circumstances, a message is implicitly conveyed that managers view women as ‘sexual
playthings,’ thereby creating an atmosphere that is demeaning to women.”).
30
See, e.g., Tenge v. Phillips Modern Ag Co., 446 F.3d 903,909 (8th Cir. 2006) (holding that Title VII not implicated
when employee engages in consensual sexual conduct with a supervisor and an employment decision is based on
this conduct because any benefits of the relationship are due to the sexual conduct, rather than the gender, of the
24
25
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favoritism is the one adopted by the Second Circuit in DeCintio that because an employee of the
opposite sex could have suffered the same fate, the plaintiff was not disadvantaged because of
his or her gender. Other arguments include the belief that recognizing sexual favoritism as a
valid cause of action under Title VII would be like “launching a missile to kill a mouse” and
would provide a slippery slope for other supposedly less egregious forms of discrimination to
enter the courtroom.31
Even though most courts that have addressed sexual favoritism or paramour claims have
concluded that Title VII’s prohibition against sex discrimination in employment does not include
sexual favoritism as such, some courts have held that it might or does. For example, the
California Supreme Court, in a unanimous 2005 decision, overturned two lower court decisions
in favor of the employer and ruled instead in Miller v. Department of Corrections32 that a triable
issue of fact existed as to whether a prison warden’s favoritism to the employees with whom he
had sexual affairs constituted sexual harassment. The facts in this case were particularly
egregious. Plaintiffs Edna Miller and Frances Mackey were employees of the California
Department of Corrections. Lewis Kuykendall served in management positions and then as
warden at two of the California correctional institutions. He engaged concurrently in sexual
affairs with subordinate employees Bibb, Patrick, and Brown. When he transferred from one
prison to another, he arranged to have his sexual partners transferred with him. He also promised
and granted unwarranted and unfair employment benefits to the three women. He even granted
Brown the power to abuse other employees who complained concerning the affairs.
There was also evidence that advancement for women at one of the prisons was based
upon sexual favors, not merit. Kuykendall pressured the personnel committee to transfer Bibb to
another prison with him and promote her, despite the conclusion that she was not eligible or
qualified. On two occasions Kuykendall promoted Brown in preference to Miller, although
Miller was more qualified. Even Brown acknowledged that affairs between supervisors and
subordinates were common in the Department and were widely viewed as a method of
advancement.
Miller and Mackey sued the Department, alleging that Kuykendall’s conduct constituted
sexual harassment in violation of the California Fair Employment and Housing Act (FEHA). The
employee); Wilson v. Delta State Univ., 143 Fed. Appx. 611, 614 (5th Cir. 2005) (“‘[w]hen an employer
discriminates in favor of a paramour, such an action is not sex-based discrimination, as the favoritism, while unfair,
disadvantages both sexes alike for reasons other then gender.’”) (quoting Ackel v. Nat’l Communications, Inc., 339
F.3d 376, 382 (5th Cir. 2003)); Schobert v. Illinois Dept. of Transp., 304 F.3d 725 (7th Cir. 2002) (“Whether the
employer grants employment perks to an employee because she is a protege, an old friend, a close relative or a love
interest, that special relationship is permissible [under Title VII] as long as it is not based on an impermissible
classification.”); Womack v. Runyon, 147 F.3d 1298, 1300 (11th Cir. 1998) (“Title VII does not encompass a claim
based on favoritism shown to a supervisor’s paramour.”); Taken v. Oklahoma Corp. Comm’n, 125 F.3d 1366, 136970 (10th Cir. 1997) (holding that sexual favoritism although “unfair” and “unwise” does not violate Title VII);
Becerra v. Dalton, 94 F.3d 145, 150 (4th Cir. 1996) (holding that sexual favoritism is not actionable under Title VII);
Candelore v. Clark County Sanitation Dist., 975 F.2d 588 (9th Cir. 1992) (holding that female employee failed to
state actionable claim based on allegations that co-worker had romantic affair with one or more of employee’s
supervisors).
31
For a presentation of arguments for and against recognizing paramour favoritism as a form of sex discrimination,
see See Mitchell Poole, Paramours, Promotions, and Sexual Favoritism: Unfair, But Is There Liability? 25 PEPP. L.
REV. 819, 846-59 (1998).
32
36 Cal. 4th 446 (Calif. 2005). For in-depth analysis of this “groundbreaking development,” see Meghan E. Bass,
Dangerous Liaisons: Paramour No More, VAL. U. L. REV. 303, 328 (2006).
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trial court granted summary judgment to the Department, concluding that the conduct did not
support a claim of sexual harassment. The court of appeals affirmed.
In overturning the lower courts’ decisions, the California Supreme Court relied heavily
on the EEOC Policy Guidance observing that, although isolated instances of sexual favoritism in
the workplace do not violate Title VII, widespread sexual favoritism may create a hostile work
environment in violation of Title VII by sending the message that managers view female
employees as “sexual playthings” or that “the way for women to get ahead in the workplace is by
engaging in sexual conduct.”33 The court concluded that “an employee may establish an
actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual
favoritism was severe or pervasive enough to alter his or her working conditions and create a
hostile work environment.”34
To date, the Supreme Court has not addressed the sexual favoritism or paramour issue. In
1987, the Court denied certiorari in DeCintio, which left standing in the Second Circuit the
holding that sexual favoritism is not actionable under Title VII.35 In 1997, the Court again
refused to grant certiorari in another case that raised the issue of sexual favoritism, Becerra v.
Dalton,36 thus leaving intact the Fourth Circuit’s opinion that “a voluntary ongoing friendship or
relationship was not the basis for a valid Title VII suit.”37
Congress amended Title VII in 1991 by adding § 703(m) to the Civil Rights Act of 1991.
The amendment stated that “[e]xcept as other wise provided” in Title VII, unlawful sex
discrimination is established once the plaintiff demonstrates that sex “was a motivating factor for
any employment practice, even though other factors also motivated the practice.” 38 Some
commentators argue that this new “motivating factor” test has the potential to fully legitimize a
cause of action for sexual favoritism if the courts are willing to accept the fact that gender plays a
key role in sexual favoritism cases.39 While scholarship in this area is sparse, there is division
among those who have addressed the subject.40
D.
Speaking out in opposition to paramour favoritism
Although largely unsuccessful, retaliation claims have arisen when employees who have
not received favorable employment treatment claim that the adverse action taken against them
arose from their speaking out in opposition to alleged paramour favoritism. For example, this
past year, a Georgia district court found that an employer was not liable for retaliation under
33
Id. at 464 (quoting EEOC Policy Guidance (Jan. 12, 1990)).
Id. at 464.
35
See DeCintio, 807 F.2d at 308, cert. denied, 484 U.S. 825 (1987).
36
94 F.3d 145 (4th Cir. 1996), cert. denied, 117 S. Ct. 1087 (1987).
37
Id. at 150.
38
42 U.S.C. 2000e-2(m) (1994).
39
See Poole, supra, n. 31.
40
Compare Michael J. Levy, Sex, Promotions, and Title VII: Why Sexual Favoritism Is Not Sexual Discrimination,
45 HASTINGS L.J. 667, 696 (1994) (“While the practice of a supervisor promoting an employee with whom he is
romantically involved is unfair to those employees not chosen for the promotion, this practice is nonetheless outside
the purview of Title VII since it does not involve discrimination on the basis of sex.”) with Joan E. Van Tol, Eros
Gone Awry: Liability Under Title VII for Workplace Sexual Favoritism, 13 INDUS. REL. L.J. 153, 177 (1991)
(criticizing EEOC and the DeCintio and Miller decisions for not recognizing sexual favoritism as a distinct cause of
action under Title VII).
34
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Title VII for any actions it took against a female employee for complaining that her male
supervisor gave preferential treatment to a female co-worker with whom the supervisor had a
romantic relationship. The court reasoned that: (i) the female employee did not have an
objectively reasonable belief that the employer violated the law, given the unanimity with which
courts have declared favoritism of a paramour to be gender-neutral; (ii) a reasonable person
would have concluded that any hostile environment grew out of the employee’s personal
conflicts with the supervisor and co-worker; and (iii) the employee did not allege that she was
evaluated or judged on the basis of her sexuality.41
The Fifth Circuit rejected a similar claim in Wilson v. Delta State University,42 where a
male sued contending that the University declined to renew his contract in retaliation for his
complaints to the president that an unqualified female received an appointment to a high level
position because she was having an affair with a vice-president. The plaintiff argued that he
reasonably believed the female got the job because of the affair and that this favoritism
amounted to discrimination in violation of Title VII. Affirming the district court’s judgment as a
matter of law in favor of the University, the court said: “Because it is settled law in this Circuit
that such paramour favoritism does not run afoul of Title VII, [plaintiff’s] alleged belief to the
contrary could not have been reasonable.”43
Earlier, the Fifth Circuit in Ellert v. University of Tex. at Dallas44 had found no violation
of Title VII when a Dean of Graduate Studies terminated his secretary after she learned of an
affair he was having with an assistant. The court said: “Even if her knowledge of the affair was
the true animus behind the discharge decision, it was a motivation that did not rely upon her
gender and, as such, it was not within the ambit of Title VII’s protections.”45
E.
Constitutional claims
(i) Traditional equal protection claim
A plaintiff bringing a sex discrimination claim under the Equal Protection Clause must
establish two essential elements: (1.) the plaintiff was treated differently than others
similarly situated, and (2.) the differential treatment was motivated by an intent to
discriminate on the basis of her sex.46
(ii)“Class of one” claim
Plaintiffs have raised “class of one” equal protection claims as alternative theories of
recovery in some sex discrimination cases.47 Under the standard set forth in Village of
Willowbrook v. Olech,48 to prove a “class of one” equal protection claim, a plaintiff must
show that he or she was “intentionally treated differently from others similarly situated
41
See Sherk v. Adesa Atlanta, LLC, 432 F. Supp.2d 1358, 1373 (N. D. Ga. 2006).
143 Fed. Appx. 611 (5th Cir. 2005).
43
Id. at 614. For a case reaching the same conclusion, see Robben v. Runyon, 2005 WL 123421 at *4 (10th Cir. 2005)
(holding that “a party cannot maintain a Title VII claim when the alleged conduct that is the subject of the
complaint, even if true, is not actionable under Title VII”).
44
52 F.3d 543, 546 (5th Cir. 1995).
45
Id. at 546.
46
See, e.g., Priester v. Lowndes County, 354 F.3d 414, 424 (5th Cir. 2004).
47
See, e.g., Whiting v. University of So. Miss., 451 F.3d 339 (5th Cir. 2006), cert. denied, 2007 WL 36072 (Jan. 8,
2007).
48
528 U.S. 562, 564 (2000).
42
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and that there is no rational basis for the difference in treatment.”49 This burden of proof
has been set exceptionally high in order to prevent “turning even quotidian exercises of
government discretion into constitutional causes.”50
In a “class of one” equal protection claim, “the level of similarity between plaintiffs and
the persons with whom they compare themselves must be extremely high.”51 A “class of one”
plaintiff must show that “no rational person could regard the circumstances of the plaintiff to
differ from those of a comparator to a degree that would justify the differential treatment on the
basis of a legitimate government policy . . . .”52
The Court of Appeals for the Fifth Circuit recently granted summary judgment to the
University of Southern Mississippi on a professor’s “class of one” equal protection claim in
Whiting v. University of Southern Mississippi.53 The plaintiff, Dr. Melissa Whiting, argued that
she was denied tenure because different standards were applied to evaluate her because of the
bias against her by the University’s president as a result of the ill will his daughter, plaintiff’s
department chair, held toward her.54 In ruling for the University, the Court found that Dr.
Whiting did not establish genuine questions of material fact as to whether she was intentionally
treated differently from others similarly situated, and that “in each case the university proffered a
debatably rational justification.”55
In the context of an insubordinate employee, the Eleventh Circuit has held that the
“quantity and quality of the comparator’s misconduct [must] be nearly identical to prevent courts
from second-guessing employers’ reasonable decisions and confusing apples with oranges.”56
The Seventh Circuit requires a plaintiff to show that “he is being treated arbitrarily worse than
some one or ones identically situated to him” and has further opined that when “the unequal
treatment arises out of the employment relation, the case for federal judicial intervention in the
name of equal protection is especially thin.”57
IV.
Conclusion
“The largest number of discrimination lawsuits filed by faculty against colleges and
universities have involved allegations of sex discrimination.”58 While women who have
challenged alleged discriminatory decisions have been largely unsuccessful, the cost in time,
emotional turmoil, and dollars is high. It is the hope of this presenter that some of the
information contained in these materials will help you and your college or university better
understand some of the issues in the area of sex discrimination law.
49
Id. at 564.
Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1209 (10th Cir. 2006).
51
Neilson v. D’Angelis, 409 F. 3d 100, 104 (2nd Cir. 2005) (citing Purze v. Village of Winthrop Harbor, 286 F.3d
452, 455 (7th Cir. 2002)).
52
Neilson, 409 F.3d at 105.
53
451 F.3d 339 (5th Cir. 2006).
54
Id. at 350.
55
Id. (citing Levi v. Univ. of Tex. at San Antonio, 840 F.2d 277, 281 (5th Cir. 1988)).
56
Eggleston v. Bieluch, No. 05-16256, 2006 U.S. App. LEXIS 24799, at *17 (11th Cir. Oct. 3, 2006) (quoting
Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999)).
57
Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir. 2005).
58
Kaplin & Lee, supra, n. 5.
50
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