Hiring only “the all-American girl” is probably discrimination.
Firing someone because she believes that policy is discriminatory is almost certainly illegal retaliation.
That‘s what legal experts said Friday after a lawsuit against a Trafford-based chocolatier was resolved in federal court. Just as the cover-up is often more damaging than the crime, retaliation against an employee who complains of discrimination can get a company in hot water even if the alleged practice is tough to prove.
The resolution came in a lawsuit filed in January by Denise Beloncis, 44, of Crafton Heights, against Edward Marc Chocolatier.
Ms. Beloncis worked for three months in 2012 as general manager at the South Side location of the company's retail outlet, called The Milk Shake Factory. In her lawsuit she alleged that she was instructed to hire "the all American girl,'' and especially young women who were "blonde, blue-eyed and college educated, preferably a Duquesne University student."
After she complained that the policy was discriminatory and refused to follow it, she was fired, according to her attorney, Sam Cordes. He wrote in the complaint that the firing constituted illegal retaliation for opposition to discrimination.
The company filed an answer in April, saying that it was Ms. Beloncis who “made a racially insensitive comment ... about an African-American applicant’s hair.” The company also accused her of making misrepresentations on her employment application, forcing underlings to take unpaid breaks and work off the clock, and altering records.
Attorneys filed a stipulation of dismissal Friday, which almost always means that the case was settled, typically under confidential terms. Edward Marc Chocolatier’s attorneys and spokeswoman could not be reached for comment, and Mr. Cordes declined to disclose settlement terms.
A likely key to the resolution: Rather than alleging discrimination, Ms. Beloncis claimed retaliation.
“Under the law of retaliation, the underlying complaint of discrimination doesn’t have to be winnable,” said Deborah Brake, a law professor with the University of Pittsburgh. “As long as the employee had a reasonable belief that the practice was discriminatory” and their resulting complaint spurred some employer act that would “chill the reasonable employee from complaining,” the claim may prevail.
Ms. Brake said that while the U.S. Supreme Court has been tough on discrimination claims in recent years, it has by and large protected employees from retaliatory acts. That, she said, has enabled a surge in retaliation claims, so that they now constitute more than 40 percent of complaints received by the Equal Employment Opportunity Commission.
Companies can’t discriminate in their hiring against applicants based on race, sex, national origin, religion, color, age or disability, noted Ben Bratman, an associate professor at the Pitt’s law school. So hiring only “the all American girl” is problematic on several levels.
“It certainly implies probably a racial component,” Mr. Bratman said. “Am I going to find a blonde-haired, blue-eyed, non-white person?”
What if putting the “all American girl” at the sales counter will boost sales? “The law does not look kindly on customer preference as an excuse for discrimination,” Mr. Bratman said. “The chocolatier would not get anywhere by saying that, ‘Our business picks up considerably when we have the cute, young all American blonde girl there.’”
Ms. Brake added that hiring only women is discriminatory against men. Hiring only “the all American girl” may even be discriminatory against many women.
“Appearance stereotyping for feminine qualities can be discriminatory,” she said. “You can’t impose traditional stereotypes on women.”
How about preferring Duquesne graduates?
“That’s not illegal. That’s a good idea,” joked Bruce Ledewitz, a professor at Duquesne University’s law school. He added, though, that employers have to be very careful about hiring based on any litmus test.
For instance, companies can hire people based in part on “good looks,” Mr. Ledewitz said. But hiring only svelte candidates can land a company in court based on the argument that “being overweight is a disability.”
Mr. Cordes in 2011 and 2012 filed two lawsuits against Panera Bread franchisee Covelli Enterprises, alleging that it had a policy of keeping "fat, black or ugly" people off of the cash registers and out of management positions. One of those lawsuits was resolved for undisclosed terms. Covelli settled the other under terms that paid 200 to 300 African-Americans who worked for Covelli stores 70 cents per hour they worked after their first year, or roughly what they would have gotten if promoted.
The bottom line, Mr. Bratman said, is that anyone setting hiring policy “has to be very, very careful with their words. It’s so easy to accidentally slip into a position as an employer where you’re conveying a discriminatory message when you’re not even aware that you’re doing it.”
Rich Lord: email@example.com or 412-263-1542. Twitter: @richelord. First Published July 11, 2014 12:00 AM