Dive Brief:
- A supervisor’s repeated comments that a female employee was a “trailing spouse” and that it was expected that she was going to “have children and be happy” weren't direct evidence of gender discrimination, the 5th U.S. Circuit Court of Appeals held in Herster v. Board of Supervisors of Louisiana State University, No. 16-31242 (April 4, 2018).
- During the interview process for a law professor profession, Scott Sullivan asked about the possibility of his wife, Margaret Herster, also obtaining a faculty position there. The School of Art agreed to employ Herster, and the law center initially provided some of the funding for her position. Herster began working as a part-time instructor and eventually complained that she was doing more work and receiving less pay than others in her job. According to court documents, the school's art director responded by saying, “I thought you were a trailing spouse. I thought you were going to have children and be happy," and added that Herster was acting like “an eight-year-old” and a “princess.” She eventually was given full-time work with a pay increase, but she maintained that she was still being paid less than her male colleagues with similar duties. LSU didn't renew her contract and eventually terminated her.
- Herster sued, alleging that the director's comments were direct evidence gender discrimination and retaliation — a difficult standard to prove. A district court dismissed her claims and the 5th Circuit agreed, concluding that the statements, at most, imply that gender may have been a factor in setting Herster’s compensation. But they were not direct evidence because, among other things, a "trailing spouse" is not necessarily a woman, the court said.
Dive Insight:
LSU successfully defended this case, but as equal pay claims and lawsuits continue to dominate headlines, employers may need to focus more on manager training.
Training, especially for front-line managers, has long been considered an important aspect of preventing discrimination and retaliation. Experts regularly cite front-line managers as a major cause of federal nondiscrimination law violations, and training can help ensure that stray comments don't give rise to such claims.
Experts predict these claims will only increase in the wake of #MeToo, so employers also may want to consider training for managers to ensure that gender doesn't factor into employment decisions. Some have undertaken equal pay audits, too, while others have chosen to standardize compensation practices.