A recent opinion in the Eastern District of PA granted summary judgment in a sex discrimination (and harassment) case for an employer who fired a female receptionist who refused to get her two male supervisors coffee every day at 3pm.
The plaintiff was fired 9 minutes after sending an email telling her boss that while she would get coffee for guests of the company, she did not expect that her job as receptionist and data entry clerk involved serving beverages to her male colleagues every day. Nine minutes! Talk about a short fuse. Apparently those guys really needed their coffee (and really didn’t want to get it themselves)!
While I appreciate that one incident does not a sexual harassment case make, the reasoning of this case strikes me as troubling. In terms of the harassment claim, the judge dismisses the plaintiff’s sexual harassment claim by noting that serving coffee is not, by itself, a gender specific act. Huh? While it is undeniably true that getting coffee, unlike breast-feeding and menstruating, is not a gender specific act, since when does Title VII require an act to be gender specific by itself in order to sustain a claim? If the supervisors had asked the plaintiff to wear only short skirts, or kitten heels, or low cut or tight blouses, wouldn’t that trouble us? So, why not getting coffee?
Title VII is supposed to strike at the heart of discrimination, which (cf. Price Waterhouse) means that employers are not free to impose demeaning gender stereotypes on their workers. Getting coffee, much like sexualizing women by making them wear short skirts or heels, is undeniably a way that men in male dominated workspaces have demeaned women, putting them in their place as servants or housewives (or sex objects) as opposed to professionals. The opinion does not acknowledge this troubling history of women in the American workplace, and instead treats getting coffee as if it is some neutral act, and not an act smacking of a long history of women’s work.
The opinion shows that the most troubling and ingrained sexual stereotypes are the hardest to break. The judge never asks why it is acceptable for a receptionist/data entry clerk to be asked to get coffee. Women do that job (mostly), and women get coffee. End of (tautological) story.
The reasoning of the judge on the straight disparate treatment claim is also troubling and highlights a key problem with discrimination jurisprudence. The judge dismisses the plaintiff’s claim, saying that she can’t prove disparate treatment because none of the receptionists before, during or after plaintiff were men, so plaintiff couldn’t show that men were treated differently! Based on this reasoning, a woman could never show disparate treatment in what are arguably some of the worst circumstances of discrimination at jobs that are gender segregated. When only women will do the work, and there is no man by which to measure fairness, apparently no unfairness exists as a matter of law. Talk about your Catch-22.
In my view, Title VII deserves better, deeper reasoning than this.