Women and Justice: Keywords

Domestic Case Law

Mackay v. Acorn Custom Cabinetry Washington Supreme Court (1995)

Employment discrimination, Gender discrimination

Plaintiff-ex-employee challenged the jury instruction given by the Superior Court, which directed the jury to find in plaintiff’s favor in a discrimination case brought pursuant to Wash. Rev. Code § 49.60.180(2), only if it concluded, inter alia, that gender was the determining factor in the decision by defendant ex-employer to discharge plaintiff. RCW 49.60.180(2) provides that “[i]t is an unfair practice for any employer . . . (2) [t]o discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained guide dog or service dog by a disabled person.” The Supreme Court of Washington declined to read the “because of” language of the statute, as requiring proof that one of the attributes enumerated in RCW 49.60.180(2) was a “determining factor” in the employer’s adverse employment decision. Rather, the Supreme Court reversed the lower court’s decision, holding that in order to prevail on a discrimination claim brought pursuant to RCW 49.60.180(2), plaintiff only needed to prove that her gender was a “substantial factor” in defendant’s decision to terminate her employment.



Richardson's Market v. Covais Delaware Superior Court (1995)

Sexual harassment

Here, the defendant employer appealed the Board’s decision that the plaintiff had good cause to walk away from her employment as she was sexually harassed and her employer failed to rectify the situation. The son of the defendant-business owner and the defendant’s manager sexually harassed the plaintiff in a verbal and physical nature. The plaintiff tried to discuss the situation with the business owner but the harassment continued. Further, she was advised by the owner that all managerial responsibilities were given to his son and that the plaintiff would have to work it out with the son. The plaintiff attempted to discuss the situation again with the owner but after waiting for fifteen or twenty minutes, she left and quit without being able to speak to him. The plaintiff sued for hostile work environment, and the court found the defendant was liable. The employer appealed, arguing that the plaintiff did not make a reasonable effort to inform it about the hostile working environment and remedy the situation. The court disagreed and affirmed the Board’s decision.



Gallucio’s v. Kane Delaware Superior Court (1995)

Gender discrimination

Here, the defendant-employer appealed the decision of the Equal Employment Review Board that it had discriminated against the plaintiff because of her sex, in violation of 19 Del. C. § 711.  The plaintiff was a waitress for almost four years when she requested maternity leave to the restaurant’s owner and general manager.  She was granted maternity leave and told she could return to work to her previous schedule when physically able.  Id. at *1.  When the plaintiff attempted to return to work three months later, she was told there were no positions available, but at that time, six part-time waitresses were hired.  Id.  When the plaintiff applied for unemployment compensation, she was offered a position but with a reduced schedule, and which gave her less time serving on the patio, where greater tips could be yielded than inside.   The plaintiff was never replaced by a male employee but did lose income as a result of her reduced schedule.  Id.  The Equal Employment Review Board found the defendant discriminated against the plaintiff.  On appeal, the court noted that to prove a prima facie case of gender discrimination, a plaintiff must satisfy a four-prong test as articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Id.  Under the test, the plaintiff was required to show that she “(1) was within the protected group; (2) that [she] was qualified for the position in question; (3) that despite [her] qualifications, [she] was rejected or discharged; and (4) that after [her] rejection, the employer continued to seek applicants from persons with the same qualifications, or that [she] was replaced by a person outside of the protected group.”  Id.   However, if at that point, the employer could show a reason for its actions that were non-discriminatory, a plaintiff may not necessarily prevail on a gender discrimination claim.  The court found that the Board did not consider the employer’s rebuttal of the plaintiff’s showing of gender discrimination—testimony from five witnesses that the defendant often switched waitresses from the patio to the inside of the restaurant, and that other employees who returned after a leave of absence returned on a reduced pay arrangement.  Id.  Thus, the court remanded the case to the Board to more carefully review the defendant’s rebuttal.



Badih v. Myers California Court of Appeal (1995)

Gender discrimination

In 1987, Fatmeh Badih (“Badih”), a recent immigrant from Sierra Leone, was hired by the medical offices of Dr. Leonard Myers (“Myers”) as a medical assistant. Almost three years later, Badih told Myers she was pregnant. He immediately fired her. According to Badih, when she told Myers the news he replied, “If you told me you were going to get married and have babies, I wouldn’t have hired you in the first place. I need an office girl when I need her, not a person that has responsibilities the way you do now. . . . You’re going to have to go.” Badih filed a compliant against Myers and alleged pregnancy discrimination, among other claims. Myers denied that he fired Badih because she was pregnant. The jury found that Myers had terminated Badih because of her pregnancy, awarded her $20,226 in damages, and granted Badih’s motion for attorney fees. Myers appealed the judgment and attorney fees order. He argued that because he employed less than five people he was not subject to the pregnancy discrimination provisions of California’s Fair Employment and Housing Act (“FEHA”). He also argued that no other constitutional or statutory provisions prohibited pregnancy discrimination. The Court of Appeal affirmed the trial court’s judgment and attorney fees order. It held that pregnancy discrimination in employment was a form of sex discrimination. Because article I, section 8 of the California Constitution prohibits sex discrimination in employment regardless of the employer’s size, those who work for employers not covered by FEHA can maintain pregnancy discrimination claims under the California Constitution.



Page v. Superior Court California Court of Appeal (1995)

Sexual harassment

Plaintiff worked as a research specialist under her supervisor, Dennis Montgomery (“Montgomery”). On several occasions during her employment Montgomery asked Plaintiff to perform oral sex on him. He also repeatedly told Plaintiff he was going to arrive at one of Plaintiff’s many jobsites to engage in sexual activity with her. Twice Montgomery masturbated in front of Plaintiff during work hours. During one of those times, Plaintiff ran from the office to her car and Montgomery followed her, grabbed her arm, tried to grab her breasts, and tried to stop her from entering her car. Plaintiff repeatedly complained to the corporation’s president and chief executive officer and others about Montgomery’s conduct. No one took action to prevent the harassment. Plaintiff took a one-month leave of absence because she suffered from severe emotional distress as a result of these incidents. Her supervisors promised her a new position when she returned. But in retaliation against Plaintiff for reporting Montgomery’s 13, they gave the position to someone else. They ultimately fired Plaintiff under the pretext that she was no longer needed. Among other claims, Plaintiff sued the corporation, the corporation’s president and chief executive officer, and Montgomery for 13, retaliation, and the creation of a sexually hostile environment that violated California’s Fair Employment and Housing Act (the “FEHA”). Montgomery demurred to these claims and argued that a supervisor cannot be held personally liable for 13 or retaliation under the FEHA. The trial court sustained the demurrer. The Court of Appeal overruled the demurrer and held that the FEHA’s clear language supports imposing personal liability to supervisors for their own acts of harassment or retaliation in employment. The Court noted that this holding worked toward the deterrence and elimination of harassment and retaliation in employment.



Trayling v. Board of Fire and Police Commissioners Court of Appeals Second District (1995)

Sexual harassment

Karen McGloon was employed by the village fire department as a secretary. Guy Trayling was a lieutenant with the fire department and worked in the same office as McGloon. On one occasion Trayling kissed McGloon on the cheek and on another he put his han