You’re “Not That Pretty”, Part 1‎

| William A. Schreiner, Jr.

The toughest part of this post, for me, is how to categorize this one: does this go in my file of “Things Not To Do At Work?”  Or is this one another example of “Lawyers Behaving Badly?” Or maybe “Generally Unacceptable Management Styles?” 

Well, I’ll let you decide.  But here is the takeaway: however you categorize it, it’s likely a bad idea to tell a woman that works for you that she’s “not that pretty,” that prior female employees were “smart…good-looking…just gorgeous” and used to wear tight sweaters, and that “it’s all been downhill since women got the vote.” 

Statements like that can give rise to allegations of gender discrimination in violation of Title VII of the Civil Rights Act that can survive a motion to dismiss.  That’s what the City of Evanston, Illinois learned last week, in Elke Tober-Purze v. Evanston, pending in federal court for the Northern District of Illinois.  

Starting with the background: according to her complaint (and the court had to accept her allegations as true for purposes of Evanston’s motion to dismiss), Tober-Purze started working as a lawyer for the City of Evanston in 2003.  Over the years she received excellent performance reviews and was promoted twice, ultimately becoming Interim First Assistant Corporation Counsel in 2008, even though she was paid less than her male colleagues.  She also alleges that over the years, her supervisors told her she was “not that pretty,” that other female lawyers were, on the other hand, “just gorgeous,” and that one superior asked her to throw away magazines about women in the law.

Things got worse in 2009, when Evanston passed Tober-Purze over for promotion to City Attorney, and hired a man for the job.  At that point, Tober-Purze alleges, the new City Attorney began firing older female attorneys and replacing them with younger women.  By the middle of 2010, Tober-Purze had had enough: she asked to be paid for over 450 hours of vacation time, something Evanston’s policies allowed – but was told instead she was going to lose 135 hours of this time, and “warned by her supervisor not to get anyone involved” in the issue.  When she complained to the Illinois Department of Labor, she was promptly terminated – and then told she wouldn’t get over two months of sick leave pay, because she hadn’t given Evanston proper notice she was leaving (even though Evanston terminated her).  She also alleged that she was not given the pre-termination hearing that Evanston’s employment policies provide for. 

Needless to say, Tober-Purze filed suit against Evanston, alleging its conduct violated Title VII, the federal Age Discrimination in Employment Act, and Illinois retaliation and wage laws.  

The city moved to dismiss Tober-Purze’s federal court suit, and in a lengthy opinion, the court denied its motion to dismiss the Title VII and age discrimination claims.

In what will surely become an awkward moment for Evanston’s lawyers, the court began its analysis of the city’s argument by noting the city’s lawyers had argued the wrong standard: its argument was based on the standard used for a summary judgment motion, not the one used for a motion to dismiss (two recent U.S. Supreme Court rulings have arguably moved the standard for the two motions closer together, but they’re still two different forms of procedure, and in our business we’re supposed to know the difference). But the court continued on, explaining that Tober-Purze’s complaint “need only aver that the employer instituted a specified adverse employment action against the plaintiff on the basis of her sex.” 

The facts Tober-Purze alleged – and it bears repeating that on a motion to dismiss, the court has to accept those allegations as true – easily met this standard.  As a woman, she is in the class of people protected by Title VII; she had always fulfilled the city’s work expectations of her; and she was never disciplined.  But the city treated her unequally: it paid her male colleagues, she alleged, more than she made for the same work; she was told she wasn’t pretty and shouldn’t have been given the right to vote; and, finally, she was not given a pre-termination hearing and was denied the vacation and sick pay she was due because of her gender.  All of these allegations – assuming they can ultimately be proven – are “adverse employment actions sufficient to support a claim of sex discrimination.” 

Next, we’ll look at the court’s analysis of Evanston’s motion to dismiss Tober-Purze’s age discrimination claim.