The testimony was clear in this case that the employer, Eazor Express, in the usual employment situation, hired on the basis of competency and seniority, and it is undeniable that this is the usual rule throughout industry where the seniority system prevails whether by collective bargaining or otherwise.
Here the claimant-female, Jackson, had more seniority than the male Rogers, and she was admittedly competent to do the work.
In the usual industrial work force, where an employee seniority system is in place, a less senior (in terms of length of time in service with the company) but more competent and/or experienced employee is never given precedence in a call-back from furlough status over a fellow competent employee with more service seniority but with less experience. To do otherwise in the name of preferring the "more experienced" employee over the less experienced employee (even though the less experienced employee might be the most competent) would undermine the whole concept of employee "seniority rights".
If, as is contended for by the Defendant Eazor, a furloughed competent female employee with more seniority than a male applicant, can legally be displaced by the male as an employee, merely because the male has more experience, and/or more competence, then Title VII will be in effect rendered nugatory and will fail completely in one of its avowed purposes, i. e., to prohibit discrimination with respect to employment opportunities because of sex.
This Court rejects the Ross rationale as applied to this case, and further, this Court seriously questions the applicability of the Ross rationale in any case for the reason that it aids and abets an employer who is bent on carrying out a sexually-biased employment practice in the course of his business under the guise of hiring the more experienced male worker in preference to a female worker, who, although she may be less experienced, is nevertheless competent to do the job; or as competent as the competing male for the job; or even more competent than the competing male for job.
This Court, for the above reason, among others, as heretofore set forth in the Findings of Fact and Conclusions of Law, finds in favor of the Plaintiff.
AND NOW, this 24th day of OCTOBER, 1980, upon consideration of the foregoing Findings of Fact and Conclusions of Law, IT IS ORDERED, ADJUDGED AND DECREED THAT:
1. Judgment is hereby entered for the Plaintiff finding that Defendant violated the civil rights of Dixie Lee Jackson as protected by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; in the areas of layoff, recall, assignment and classification of jobs and training.
2. Defendant, its agents, managers, successors and assigns are permanently enjoined from discriminating against current and future female employees because of their sex at the Defendant's West Middlesex terminal.
3. Defendant shall take the following actions to swiftly and effectively correct the discriminatory conditions at the West Middlesex terminal:
a. Defendant shall develop a program of affirmative action to increase the number and percentage of qualified females working at the West Middlesex terminal in all job classifications;
b. Defendant shall recruit, hire and train females;
c. Defendant shall inform all recruitment sources of its interest in recruiting, hiring and training females;
d. Defendant shall advise its female employees of all available positions and training opportunities;
e. Defendant shall provide to female applicants for employment a list of all job openings; and
f. Defendant shall request all female applicants to complete a written job application. These applications shall be maintained for at least one year. Defendant shall make a good faith effort to hire from the applications retained.
4. Defendant shall offer Dixie Lee Jackson, by registered mail, the next available position at the West Middlesex terminal in any of the following or similar job categories: General Clerk; Overages, Shortages & Damages Clerk; Accounts Receivable Clerk; Tracing Clerk; Billing Clerk; Manifesting Clerk and Statistical Secretary. The offer shall be at a salary no less than the rate she would be earning had she been recalled in June 1976. Dixie Lee Jackson shall have twenty (20) days from the date of her receipt of the offer in which to accept or reject the offer. If Dixie Lee Jackson accepts the offer, she shall be given her original hire date for the purpose of all benefits and compensation. Dixie Lee Jackson shall be given a minimum of sixty (60) days training on any job she accepts.
5. Within ten (10) days after receipt of this Order, Defendant shall:
a) Deliver to the Regional Attorney, Equal Employment Opportunity Commission, Philadelphia District Office, 127 N. Fourth Street, Suite 200, Philadelphia, Pennsylvania 19106, a check in the amount of Thirteen Thousand Three Hundred Nineteen ($ 13,319.12) and 12/100 Dollars, made payable to Dixie Lee Jackson;
b) Expunge from Dixie Lee Jackson's personnel records any unfavorable or adverse personnel comments. Defendant shall not disseminate, directly or indirectly, to any employer or any potential employer of Dixie Lee Jackson any facts, comments or circumstances which might be interpreted as unfavorable or adverse to her.
6. Plaintiff is awarded costs.
© 1992-2004 VersusLaw Inc.