Gender discrimination allegations must meet strict criteria




Melody King worked at Allen Memorial Hospital in Iowa as a certified nursing assistant since 2004. Her first CNA position was in the facility’s skilled nursing department. She later became the unit coordinator. In 2005, she transferred to the facility’s ED as an acute care coordinator and also assumed a CNA role, performing patient care duties as a critical care tech.

In 2009, the hospital determined a reduction in force and restructuring was necessary. The ED director determined that all RNs needed to be retained to meet patient needs. The hospital would reduce acute care coordinator numbers from 10 to 7, based on seniority, because they needed to reduce the number of full-time equivalent employees from 50 to 43.

The critical care tech position was eliminated and replaced with a new position, “critical care safety tech,” with two additional qualifications: these techs must have basic emergency medical technician certification and pass a physical agility test specifically developed for the position. The latter was due to increasing incidents of violence in the ED.

The director had made a comment that he was looking for the “bouncer type” in the position and told the female critical care techs, “I’m sorry.” (King v. Allen Memorial Hospital Corporation, C11-2058, United States District Court For The Northern District Of Iowa Eastern Division, December 26, 2012, 1-22.)

Despite these comments, all individuals holding critical care tech positions were told they could apply for the position if the met the new qualifications. The ED director was given full authority to hire the former workers for the new position. Six individuals were hired, including two women.

King did not apply for the new position because she was not a certified EMT. She resigned from her position at the hospital and her employment (she was an at-will employee) was terminated on Dec. 24, 2009.

King then filed charges of sex discrimination in employment against the hospital and its affiliates with the Iowa Civil Rights Commission and the Equal Employment Opportunity Commission. Both gave her a Notice of Right to Sue.

The case gets reviewed

Her complaint was filed in federal court and alleged the new policy caused her to be treated differently (“disparate treatment”) and affected her differently (“disparate impact”) due to her gender under Title VII of the Civil Rights Act of 1964 and the Iowa Statute, both of which prohibit discrimination in employment on the basis of sex. (Title VII often is used to challenge employment decisions when, as examples, a pregnant female is treated differently from male employees or sexual harassment takes place in the workplace. This case had a different fact pattern than pregnancy and harassment and therefore evaluated how, if at all, the new policy affected this female worker.)

The court carefully reviewed these filed documents and the applicable law. It held that the defendants did not discriminate against women in this case. Despite King’s assertions that the new policy favored EMTs who were predominately male, the court pointed out that recent statistics show that 29% to 38% of EMTs in the U.S. are women.

In addition, the court pointed out that King did not have the required EMT certification, a certification seen as essential for patient care in the ED. Moreover, the court wrote, the fact two new female EMTs were hired (not former employees there) did not support discrimination against women.

The court also opined the portion of the new policy requiring the passing of a physical agility test was not a pretext for discrimination against females. Rather, its requirement was seen as essential for patient and staff safety in the ED according to the evidence presented.

Summary judgment was granted the defendants on both the disparate treatment and disparate impact claims, King’s complaint was dismissed, pre-trial and trial dates were canceled, and the case was closed.

This case has tangible parameters for you as an employee if you think you may be discriminated against on the basis of your sex/gender and regardless of your role as an RN, LPN or CNA. They include:
1. Immediately consult with and retain a nurse attorney or attorney who concentrates his or her practice in employment discrimination cases;
2. In order to prevail in such a case, you must meet all essential elements of the case;
3. Employers have the right to make employment decisions and a court will not second guess such decisions unless they involve intentional discrimination;
4. The more facts you and your attorney have surrounding your claim, the better your chances of winning;
5. If you do not possess the essential requirements of a position or promotion, your attempt to raise discrimination based on your sex most probably will not be successful; and
6. Not applying for a position or promotion and then alleging discrimination is a no-win proposition.

 


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About the author
Nancy J. Brent, MS, JD, RN

Nancy J. Brent, MS, JD, RN 

Nancy J. Brent, MS, JD, RN, Nurse.com's legal information columnist, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. To ask Nancy a question, email BrentsLaw@nurse.com.

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