Tag Archives: Sex Discrimination

I never knew there was such a thing as a Class A Air Conditioning and Refrigeration Contractor License. Did you?

You learn a lot of things when you read court cases.  For example, I just learned that there is such a thing as a Class A Air Conditioning and Refrigeration Contractor License, and that it’s pretty valuable.  Mr. Proffitt, the HVAC Foreman in Alief ISD had this license. And on top of his salary, the district paid him $800/month for the right to use his license.

When Mr. Proffitt retired, the district turned to Rosemary Tooker. She had the same license, and agreed to let the district use it. But they paid her only $400/month.

This sounds like a very simple case of sex discrimination, and it would be if those were the only facts. However, it turned out that Mr. Proffitt had three licenses, not one.  He was paid $400 for the AC and Refrigeration license, and $200 each for the other two, for a total package of $800.   Ms. Tooker had one license, and she was paid the same amount for that license as Mr. Proffitt. Case dismissed.

This case involved multiple other issues. We’re going to highlight one of those on Wednesday. So keep coming back.

The case is Tooker v. Alief ISD, decided by the 14th Court of Appeals on January 4, 2017.


 File this one under: SEX DISCRIMINATION

In honor of Mother’s Day, let’s talk about discrimination based on pregnancy!

Happy Mother’s Day to all you mothers out there in Dawgbone Land!  We hope that your loved ones celebrate and honor you all weekend.  As for the legal issues, it just so happens that the U.S. Supreme Court recently weighed in on a case interpreting the Pregnancy Discrimination Act.  What better topic for Mother’s Day!

Peggy Young, UPS driver, filed the suit.  When she got pregnant in 2006 after several miscarriages, her doctor put her under some pretty tight restrictions.  She was told not to lift anything over 20 pounds for her first 20 weeks, and nothing over ten thereafter.

If you’ve ever watched those athletic looking dudes and dudettes popping out of the brown vans, loaded down with packages, you know that this restriction would be a problem.  Sure enough, UPS requires its drivers to lift 70 pounds alone, and 150 with assistance.

Of course there were other UPS drivers that were restricted in lifting, or were otherwise limited in ability to perform, and UPS accommodated many of them.  For example, if you got hurt on the job, UPS would accommodate you.  If you had a condition that qualified as a disability under the ADA, “Brown” would take care of you.  If you were a driver who lost your Department of Transportation certification due to a failed medical exam, they would give you an inside job.

But if you were pregnant and could not lift when your job requires lifting, you were out of luck.  This hit Ms. Young pretty hard.  She ended up staying home without pay, and lost her medical insurance coverage.  With a baby on the way.  Ouch.

So she sued, alleging that UPS discriminated against her based on pregnancy, which is automatically a form of sex discrimination.  UPS responded with the argument that what they did to her had nothing to do with pregnancy. Pregnant women, UPS said, were treated just like everyone else. They would be accommodated if they 1) got hurt on the job; 2) had a condition that qualified for ADA protection; or 3) needed an inside job due to loss of DOT certification as a driver.  UPS said that non-pregnant workers who got injured off the job, like a guy who hurt his back playing pickup basketball on the weekend, would be treated just like Ms. Young. So it didn’t have anything to do with her pregnancy.

UPS won at the district court level and the 4th Circuit. But the U.S. Supreme Court vacated that judgment, holding that the lower courts applied the wrong analysis.  The key language in the law is that pregnant workers must be treated the same “for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.”  The Court’s majority held that this language allows Peggy Young to proceed with her lawsuit.  UPS will have the opportunity to defeat her lawsuit by showing that its refusal to accommodate her delicate condition was a “legitimate, non-discriminatory” reason.  But if Ms. Young can show, for example, that UPS “accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers” she likely has a good case.

Chief Justice Roberts joined the four liberals on this one, and Justice Alito agreed with the judgment, while writing his own concurring opinion. So it is reported as a 6-3 decision in favor of Ms. Young.  Interesting to note that the men on the Court split 3-3.  Ms. Young won because she got the support of all three of the justices who are capable of experiencing pregnancy.

So take that as a Happy Mother’s Day card from the U.S. Supreme Court.  The case is Young v. United Parcel Service, Inc. 135 S.Ct. 1338, decided on March 25, 2015.





Dear Dawg:  Life is not simple anymore, is it, Dawg?  Of all the ridiculous complaints I have ever had to deal with, I think this one tops them all.  We have a professional busybody in our district who now insists that we are out of compliance with federal law because we separate the boys and the girls in the cafeteria.  You know, we just think it works better this way, and we’ve been doing it for close to a million years.  We don’t know of anyone who has had to undergo extensive therapy later in life because of the trauma.  We are all aware of Title IX and I can assure you that we have a world class softball facility.  But carrying this political correctness into the school cafeteria is a bit much. Will you tell me what law I can cite to tell Ms. Busybody to bother someone else?  MIFFED.

DEAR MIFFED:  Nope. Can’t do it.  Ms. Busybody has a point.  See the Guidance issued by the Department of Agriculture:


The Guidance, issued very recently (March 20, 2015) tells us that “school food authorities” that participate in the Child Nutrition Programs “are not permitted to separate children on any protected basis during the service of Program meals or snacks.”  The Guidance does not tell us what “separate” means. Obviously, if you were to allow one gender to have lunch in a nice air conditioned cafeteria while the other gender suffered in an overheated gymnasium that would be a kind of “separation” that would not be OK. If they are all in the same cafeteria, but in separate Boys and Girls tables, we are not sure if that would be OK.  But probably the humorless bureaucrats at the Department of Agriculture would find fault with that arrangement. After all, the key here is “protected” categories—race, religion, sex.  So the Department would probably look at it this way: If it would not be OK to separate kids by race, then it is not OK to classify and separate them by gender.

We cannot imagine the Lunchroom Nazi instructing the Hispanic kids to sit on one side of the cafeteria while the others sit elsewhere.  We instinctively know that that would be wrong.  Or how about this:  “All you straight kids sit over here; the gays are on that side of the cafeteria.”  No—for many reasons, we know we would not want someone to do it that way. How about: “Christians over here; Jews, Muslims, Buddhists, Hindus, atheists of all stripes, Wiccans and members of the Church of the Flying Spaghetti Monster over here.”  Nope. That would not be a good idea either.

Classifying and separating kids by gender offends most people less than any of these examples, and probably offends many people not in the least.  But in the cold hearted eyes of the Department of Agriculture, it’s all the same thing.

We once bumped into a short book offering 50 ways to divide kids into two groups without ever using the words “boys and girls.”  So if you want to divide the kids into two groups, put your creativity to work.