Jottings By An Employer's Lawyer

Wednesday, December 15, 2004

"Exceptionally Endowed Young Woman" Is Both Direct Evidence and Court Speak For ....

"a young chippie with big tits", at least it was in Glanzman v. Metropolitan Management Corp. (3rd Cir. 12/14/04) [pdf]. The more descriptive words were part of a statement made by the plaintiff's boss to her co-workers that he would like to replace the her with just such a person. Although not the most colorful parts of the statement, it was the "young" that caused the problem, as the Court held this statement enough was sufficient to constitute direct evidence of discrimination, thus sending the case into the mixed motive world first announced in Price Waterhouse.

As a result, what the Court described as "the heavy burden" to show that it would have terminated Glanzman in any event, passed to the employer. Fortunately for the employer, Glanzman, an apartment manager, had done enough wrong, that the employer was able to meet this high standard even on summary judgment. Among her problems, multiple occasions where she both misused funds and lied about it, a number of times where she was not where she was supposed to be during working hours, she misused company employees to work on her own property and finally was caught in a scheme to steal a dishwasher. As the Court noted, it was not even necessary that all of these bad acts were true, just that the employer reasonably believed them to be. Finding that to be the case, the Court found there were a "surfeit of legitimate reasons to fire her." So, even though employers are justifiably concerned at being forced into the mixed motive arena, it is clear in the right case, that all is not lost.

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