Battle of the Sexes: Title Vii's Failure to Protect Women from Discrimination Against Sex-linked Conditions

• Jurisdiction: United States,Federal
• Citation: Vol. 53 No. 3
• Publication year: 2019

Battle of the Sexes: Title VII's Failure to Protect Women from Discrimination Against Sex-Linked Conditions

Brooks Land
University of Georgia Law School

BATTLE OF THE SEXES: TITLE VII'S FAILURE TO PROTECT WOMEN FROM DISCRIMINATION AGAINST SEX-LINKED CONDITIONS

Brooks Land^*

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Table of Contents

I. Introduction..................................................................1186

II. Coleman v. Bobby Dodd Institute, Inc.......................1187

III. Background....................................................................1191

A. TITLE VII SEX DISCRIMINATION PRIOR TO THE PDA........1191
B. THE ENACTMENT OF THE PDA......................................1197
C. TOYING WITH THE PDA.................................................1199

IV. Analysis..........................................................................1201

A. RIGHTS PROTECTED UNDER THE PDA............................1202

1. Sex-Linked Conditions..........................................1202
2. Menopause: The Final Taboo in the Workplace?..1205

B. THE MALE COMPARATOR—IS A UNIQUE CONDITION ENOUGH?.....................................................................1209

1. Menopause: Lacking a Comparison......................1210
2. Elimination of The "Male Comparator"...............1211

V. Conclusion.....................................................................1213

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I. Introduction

"We're running out of time. I don't have time to play nice."¹ Actress Rose McGowan knew it was time to take a stand, and so did thousands of others.² In 2017, victims of sex discrimination and harassment in the workplace exorcised their feelings of helplessness by speaking out against the power of patriarchy.³ The Silence Breakers, as they came to be known, started a global movement and were collectively selected as the TIME Person of the Year.⁴

From pop artist Taylor Swift to journalist Megyn Kelly to university professor celeste Kidd, numerous victims broke the silence by telling their own stories of sexual harassment and discrimination, simultaneously validating the stories of women internationally.⁵ Their stories sparked a revolution that empowered the victims and shamed the perpetrators.⁶ The 2017 Golden Globe Awards saw the culmination of this international movement where the accessory of the evening was a black Time's Up pin that represented an initiative to fight sexual misconduct across the country.⁷

Far from the swanky Beverly Hills hotel where the award ceremony was held, Alisha coleman, a middle-aged woman from columbus, Georgia, decided to speak up about her own story of sex discrimination by confronting Congress's approach to providing victims relief.⁸ Coleman's complaint, filed in the Middle District of Georgia, ignited a firestorm of controversy regarding the statutory

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interpretations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978 (PDA).⁹ Coleman asserted the rights she thought Title VII afforded her and zealously advocated for its protection.¹⁰ Although the parties settled in lieu of receiving an answer from the Eleventh Circuit, the unusual case raises an unprecedented sex-discrimination issue and presents a timely platform to reevaluate the PDA.¹¹

II. Coleman v. Bobby Dodd Institute, Inc.

On April 26, 2016, Alisha Coleman was fired from her job as an E-911 Call Taker by Bobby Dodd Institute Inc. (BDI), a job training and employment agency located at Fort Benning, Georgia, that serves people with disabilities.¹² Coleman was experiencing irregular and unpredictable menstrual periods because she was pre-menopausal.¹³

Two main incidents led to BDI firing Coleman. In August 2015, Coleman unexpectedly experienced her menstrual period which leaked fluid onto her office chair.¹⁴ Following the incident, Coleman received a disciplinary write-up from the Site Manager and Human Resources Director who warned her "that she would be fired if she ever soiled another chair from sudden onset menstrual flow."¹⁵ Almost a year later, on April 22, 2016, Coleman was walking to the bathroom at the workplace and "menstrual fluid unexpectedly

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leaked onto the carpet."¹⁶ Four days later, BDI fired her for failure to "practice high standards of personal hygiene and maintain a clean, neat appearance while on duty."¹⁷

On January 31, 2017, Coleman filed suit in the Middle District of Georgia, Columbus Division, alleging violations of Title VII, 42 U.S.C. § 2000e.¹⁸ The District Court ultimately granted BDI's motion to dismiss on June 8, 2017, holding that terminating a female employee for soiling company property on two occasions due to menopause, a uniquely feminine condition, does not constitute sex discrimination under the PDA.¹⁹

Title VII makes it unlawful for an employer "to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, privileges of employment, because of such individual's . . . sex."²⁰ Title VII protects all discrimination "because of sex," which the PDA defines as follows: "[t]he terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions . . . ."²¹ Title VII is silent as to whether other uniquely female conditions are included under the phrase "because of sex" or "on the basis of sex."

A sex-discrimination claim under Title VII can be supported by direct or circumstantial evidence. The court characterized Coleman's complaint as alleging a claim based upon direct evidence of sex discrimination.²² Her employer terminated her because of a uniquely female condition. To allege a claim based on direct evidence, a plaintiff must present "evidence which reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee and that, if believed, proves the existence of a fact without inference or

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presumption."²³ Coleman alleged that firing her because of a uniquely female condition amounted to firing her "because of" or "on the basis of" sex; she further argued that menopause fell within the "related medical conditions" protected by the PDA.²⁴

The court held that the PDA does not cover uniquely female conditions unrelated to pregnancy, and to prevail the plaintiff must allege and prove that her condition was treated less favorably than a comparable male related medical condition.²⁵ Following this rationale, the court reasoned that Coleman's excessive menstruation was related to menopause, not pregnancy or childbirth, and therefore, was not protected under the Act.²⁶

The court also observed that Coleman did not attempt to proceed under the traditional McDonnell Douglas analytical framework, which is typically reserved for claims based on circumstantial evidence.²⁷ Under this framework, Coleman might have created a prima facie case of discrimination by alleging that (1) she is in a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) her employer treated similarly situated employees who are not members of the protected class more favorably (the "comparator" requirement).²⁸ Her employer would then have the right to establish a non-discriminatory reason for its action, and Coleman would have to show its reason is pretextual to maintain her claim.²⁹

However, Coleman would have only satisfied the first three prongs of McDonnell Douglas. Coleman, a female, was a member of a protected class; she suffered from the adverse employment event of discharge; and she was qualified for and was capable of service in

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her job. But Coleman did not attempt to show that her employer treated similarly situated males more favorably.³⁰ She pointed to no alleged male comparator.³¹ To satisfy this fourth prong, the Court suggested that Coleman, therefore, could have alleged that male employees who soiled themselves and company property due to a medical condition such as incontinence would have been treated more favorably.³² It is likely Coleman did not pursue this traditional path because no such comparator evidence existed. She instead had to rely upon the theory that uniquely female medical conditions should be treated for Title VII purposes the same as pregnancy-related medical conditions.

In light of the Coleman decision, legal commentators are questioning the judicial interpretation of the PDA with regard to the feminine medical conditions it encompasses.³³ The Act's ambiguous statutory construction combined with the minimal federal jurisprudence addressing it often leave women on shaky ground when determining their rights in the work place. For women to understand and avail themselves of the protections to which they are entitled, a consensus must be reached as to which sex-linked conditions are covered under the PDA and Title VII.

By evaluating the legislative intent and the judicial interpretations of the PDA, this Note analyzes whether sex-linked conditions, such as menopause, should be protected under the Act and Title VII. This Note also addresses the elements required for a plaintiff alleging a prima facie circumstantial case of sex discrimination based on a sex-linked condition under Title VII and specifically focuses on inherent difficulties of imposing the traditional comparator requirement on such claims.

Section III looks at three relevant episodes in the PDA's history: (1) sex-discrimination cases prior to the enactment of the PDA; (2) the enactment of the PDA and its legislative purpose; and (3) the relevant jurisprudence after the enactment of the PDA. Section IV examines various circuit court interpretations of the PDA to determine which rights are protected against discrimination under

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the PDA. In particular, Section IV analyzes how the circuits interpret the PDA to protect—or not...