Only the qualified need apply

June 1, 2003 By    

Picture this imaginary job listing in your company’s newsletter:

“Hard-nosed supervisor wanted; must have strong leadership and confrontational skills to keep aggressive subordinates in place. Known criers and the timid need not apply!”

While this tactic is not likely to win an employer (outside of the U.S. Marine Corps) an award for sensitivity, the Eighth Circuit Court of Appeals in a quirky case ruled that such cruel-to-be-kind job criteria was not sex discrimination when a male supervisor refused to promote a female employee on those very grounds.

In Crone v. United Parcel Service, Sarah Crone alleged that she was unfairly passed over for a promotion as a UPS dispatcher supervisor. Crone, who was then a dispatcher with UPS, alleged sex discrimination when her department manager refused to recommend her for a dispatcher-supervisor position because she had a history of being close to tears when confronted by the company’s truck drivers in her charge. UPS eventually hired a man for the job.

There was no dispute between the parties that Crone was a good dispatcher. But UPS argued that this particular woman lacked “initiative” and had difficulties with “people skills,” and that she was simply not tough enough for the supervisor job.

The record did not show how other women fared in promotions at the company.

When Crone asked her department manager to recommend her for the job, he declined. According to her testimony, the department manager told her that “he was scared I might cry if I got into a confrontation or situation with a driver” or “if I ever got a good ass chewing.”

Indelicacies aside, even Crone agreed that the ability to flex an aggressive personality was important because the feeder-truck drivers liked to bark, and they “are a unionized work force that tends to be ‘exceptionally confrontational.’”

While this hardly fits the clean-cut image of the UPS frontman – the friendly, nimble and ever-timely delivery guy who is neatly packaged in brown and serves the world with a smile – it was the company’s legitimate non-discriminatory reason for denying Crone a promotion.

Somewhat surprisingly, Crone did not argue before the Arkansas district court that the colorful comments relating to pokes at her posterior were direct evidence of sex discrimination. The lower court denied her sex-discrimination claims on summary judgment for a lack of evidence of discriminatory intent.

On appeal, the Eighth Circuit Court of Appeals applied the McDonnell Douglas Corp. v. Green burden-shifting framework and stated that UPS’s explanation for its refusal to promote Crone “easily satisfied [its] burden to articulate a non-discriminatory reason for its actions.”

The court noted that it has “no prerogative to sit in judgment of employers’ management decisions,” where there is no evidence that they are not legitimate or pretextual. This reasoning, coupled with plaintiff’s admitted reluctance to bark back when confronted, led the court to deliver a favorable ruling to the package delivery company.

The decision demonstrates again that the Eighth Circuit continues to be a good forum for employers to defend their promotion and hiring policies.

Ultimately, however, this is more a cautionary tale than a template for the “can-you-handle-the-truth” style of management. It’s not recommended. Warm fuzzies are not required, but this case is a reminder that the manner in which employees are both trained and counseled can help avoid potential litigation.

As always, you should consult your legal counsel for advice on the law in your jurisdiction.

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