Employment Law Daily Downward trend in female directors supports sex bias claim against Tyson
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Wednesday, February 10, 2016

Downward trend in female directors supports sex bias claim against Tyson

By Kathleen Kapusta, J.D. A Tyson employee who was one of three females in her group of 23 at the time she was fired, and the only female director out of a group of five, established fact issues as to whether the company’s stated reason for her termination—a reduction in force resulting from the decision to sell its operations in Mexico and Brazil—was pretextual. Denying summary judgment on her sex discrimination claim, a federal district court in Arkansas found the company failed to adequately explain the link between those sales and her termination. Summary judgment was also denied on her Equal Pay Act claim (Hesterberg v. Tyson Foods, Inc., February 5, 2016, Holmes, P.K., III). Hired in 2007, the employee was terminated seven years later when her position was eliminated purportedly due to the sale of Tyson’s operations in Mexico and Brazil. At the time of her discharge, she was told her performance “was not a part of the decision.” She subsequently sued, asserting claims of sex and age discrimination. Downward trend. Tyson argued that at the time the employee was discharged, a total of 11 positions were eliminated: two of those did not have incumbents, two were held by females, and seven were held by males. It also claimed that the employee was the only person to have held her position because no one was hired to replace her and that the raw poultry director, in addition to his existing duties, assumed what remained of her duties without increasing his staff. For her part, the employee argued that she was one of only three females out of 23 in her group at the time she was fired, some of her job functions were assumed by males, and she was the only director from the male dominated group fired at that time, “continu[ing] the downward trend in the number of female directors” in the group that began in 2011. The court found that fact issues existed as to whether conditions at Tyson made it more likely than not that the employee’s termination was unlawfully based on sex. Those issues included who, if anyone, assumed all duties previously performed by the employee. While Tyson asserted that some of the employee’s duties were assumed by the raw poultry director, it was unclear who—if anyone—took on her other duties or if a similar position was later created that had a different title but similar duties, and if so, whether that position was filled by a male. Reduction in force? The court also found a fact dispute as to whether her termination should appropriately be viewed as a part of a “reduction in force” or whether it was a more targeted termination. While the company consistently pointed to the sale of the Mexico and Brazil operations as the reason for the elimination of the employee’s position, it did not adequately explain the link between those sales and the termination. Further, not only did the employee question whether her supervisor and his boss even knew about the sale before submitting her name for termination, the sale did not actually occur until around a year after the announcement was made. This inadequate explanation combined with the fact that she was the only female director on her supervisor’s team and one of only three in the overall group at the time of her termination created fact issues as to whether Tyson’s articulated reason for her termination was pretext for unlawful discrimination and whether the fact that she was female was a motivating factor in her discharge, said the court. Equal Pay Act claim. As to the employee’s Equal Pay Act claim, Tyson argued that she was paid more in total compensation than the majority of the male directors in her group and that any difference in pay was based on factors other than sex. The court, however, found fact issues precluding summary judgment, including: whether the employee and any proposed male comparators performed their jobs under similar working conditions; whether the merit system that Tyson had in place for allocating bonuses and raises was known to employees, and was organized, structured, and resulted in employees being evaluated systematically according to predetermined criteria; and assuming Tyson did have an appropriate merit-evaluation system in place, whether the decision-makers in the employee’s termination followed that system appropriately and in a nondiscriminatory fashion in making the decision to terminate her position. The court, however, reserved the legal question as to whether a plaintiff may properly have a claim under the EPA for components of compensation as opposed to total compensation. It noted that the letter and spirit of the Act would tend to support a finding that it could allow for claims of differences in bonuses or percentage pay raises based on sex. “Otherwise, employers could easily circumvent the Equal Pay Act by relying substantially on bonuses to compensate employees,” it reasoned.

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