Employment Law Daily Supervisor’s remark about female worker’s casual dress bolsters failure-to-promote claim
Friday, February 2, 2018

Supervisor’s remark about female worker’s casual dress bolsters failure-to-promote claim

By Marjorie Johnson, J.D.

A store manager’s comment that he would not promote a woman who worked in the backroom because he didn’t like the way she dressed (she wore jeans and a t-shirt), along with evidence that male peers with similar experience were treated more favorably, bolstered her claim that she was denied selection for Walmart’s management training program because of her gender. Denying in part the retail giant’s motion for summary judgment on her Title VII claims of gender bias and unequal pay, a federal court in Illinois also found that she presented sufficient evidence suggesting she was paid less than some—but not all—of the men she claimed were similarly situated (Lishamer v. Wal-Mart Stores, Inc., January 30, 2018, Alonso, J.).

The employee was hired as a cashier at a Walmart store in DeKalb, Illinois, in 2001. After a few months, she moved to a backroom position on the inventory control team, where she unloaded semi-trailers and distributed merchandise to staff who stocked the shelves. A male coworker who also started out as a cashier and moved to the backroom became a department manager in October 2001, and after six months was selected to participate in the management training (MIT) program, the starting point to becoming an assistant manager.

Told her attire prevented promotion. In June 2002, the store manager announced that anyone interested in becoming an assistant manager should speak to him. However, when the employee expressed her interest, he told her that he would never promote her since he did not like the way she dressed (she wore jeans and a T-shirt). She replied, “I unload semis all day long, and I am not going to wear my dress clothes to go back and unload a semi.” Later that day she learned that a male coworker had been promoted to the MIT program.

Stuck in department manager position. She spoke to the regional manager, who told her that if she wanted to be recommended for the MIT program, she should apply for a department manager position at the St. Charles store. She did so and was hired for the job. After a successful first six months, including winning an excellence award, she again asked the regional manager about the MIT program, but he said he could not promote her because she was too valuable in her current role. A male peer was subsequently promoted to the program and she began to unsuccessfully apply for several other manager positions.

“Attire” remarks could suggest bias. The court squarely rejected Walmart’s assertion that the store manager’s comments about her attire were facially sex-neutral. Since there appeared to be nothing unusual or inappropriate about her attire for an inventory control specialist performing warehouse work, and the manager admitted that this was normal attire for employees in her position, a reasonable jury could interpret his comment as an admission that he refused to promote her based on her failure to dress or behave in a traditionally feminine manner, and therefore discriminated against her because she was a woman.

Similarly situated males promoted. But even if the comment didn’t by itself demonstrate intentional bias, comparator evidence supplied the “missing connection” sufficient to defeat summary judgment. Specifically, she pointed to two men who worked alongside her in inventory control and had similar qualifications, but received promotions ahead of her. Though Walmart highlighted the comparators’ “small differences,” they did not demonstrate that the men were plainly more qualified. Rather, they had “similar” qualifications as they had similar levels of experience in terms of their similar tenure and job duties as inventory control specialists.

And while one of the men had held a department manager position before advancing to the MIT program, he first worked alongside the employee for several months in the backroom. Indeed, he followed the same career track (inventory control, department manager, MIT program) that the regional manager had recommended for her—but the store manager was purportedly not open to providing her with a similar opportunity for advancement.

Evidence “as a whole.” Finally, even if there were some potentially significant differences between the employee and her comparators, focusing too narrowly on them would ignore the Seventh Circuit’s instruction to consider the evidence “as a whole.” Doing so, a jury could reasonably find the employee was treated differently because she was a woman, if it believed that the store manager told her he would not promote her because he did not like the way she dressed even though it was common for those in her job to dress just as she did, and that males who performed the same job with a similar level of experience were promoted.

Was longevity a factor? The court also rejected Walmart’s assertion that she could not prove that its refusal to promote her from the St. Charles store was discriminatory since the male whom it did promote had significantly more experience. The company claimed that he had worked at Walmart for 20 years and as a department manager for eight, while she had only a three-year tenure, and worked as a department manager for only two years. However, she presented evidence suggesting that “longevity” was not a criterion for promotion to the MIT program. Additionally, the “more experienced” male had a history of disciplinary infractions and critical performance evaluations while the employee had an exemplary record as department manager.

Unequal pay. The employee had mixed success on her pay discrimination claim alleging that several male peers received higher rates of pay and more frequent raises. In support of her position, she relied upon an “employment history” spreadsheet obtained from Walmart which contained salary, raise, and tenure information. After careful consideration, the court found that she defeated summary judgment with regard to several (but not all) male comparators while she was working as a department manager at the St. Charles store. However, her claims with regard to positions at the DeKalb store were tossed.

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