By: Thomas Eden
Tina
Varlesi was a graduate student in the School of Social Work at Wayne State
University (WSU). After receiving a failing grade and being denied a degree
from the social work program, she brought suit in federal court, against WSU,
her faculty advisor, the WSU Director of Field Education, and the Dean of the
WSU School of Social Work, claiming pregnancy discrimination in violation of
Title IX and Michigan’s Civil Rights Act, and
retaliation for her
complaining about that
discrimination. A jury found the
defendants liable, and awarded Varlesi $848,690 in damages which was appealed
to the federal 6th Circuit Court of Appeals.
In the Spring
of 2008, Varlesi was placed at the Salvation Army Adult Rehabilitation Center
(an all-male rehabilitation center for ex-convicts, drug addicts, etc.) by her
WSU faculty advisor. At the Salvation Army placement her obvious pregnancy
became a hot topic of conversation where her new field instructor 1) ordered
her not to drive after dark or in bad weather, 2) questioning her marital
status and living arrangements, 3) announcing that though she had “had
relations” with someone, and 4) the men at the rehab “can look but they cannot
touch.” Other students were present for
this uncomfortable conversation.
Within
days, her new field instructor was complaining about Varlesi’s alleged
underperformance, poor attendance, and bad attitude. Two week later in a student meeting Varlesi
directly accused the Salvation Army field instructor of pregnancy
discrimination, which he denied any discrimination but said she had told
Varlesi repeatedly to stop “rubbing her belly” and to wear looser clothing, and
said that the men at the facility were being “turned on by her pregnancy.” Neither her facility advisor nor field
instructor considered any of that discriminatory. They considered it reasonable under the
circumstances and told Varlesi to wear looser clothes.
On April
15, 2008, the Salvation Army field instructor gave Varlesi a failing
evaluation, which WSU admitted was the worst evaluation any WSU social worker
student had ever received. This resulted
in Varlesi receiving a failing grade, thus preventing her obtaining the degree
from the social work program. She then made a series of oral and written
point-by-point complaints of discrimination to WSU that went unheeded and
uninvestigated, according to the Opinion.
Last week, the Court of Appeals affirmed the $848,690 verdict.
Common
Sense Counsel: The conduct described in this case was deplorable and started as
a series of crude and inopportune comments. These are “hair on fire” managers because
everyone around them sees how outrageous their conduct is, but no one speaks
up. How to prevent the fire from burning up your business or university: 1)
adopt a legally compliant non-discrimination policy and train every employee –
even faculty advisors and field instructors; 2) speak up in your workplace or
school setting when you witness discrimination; 3) remember that it is your
duty to protect from third party harassment; and 4) seek wise counsel and know
when to settle rather than face the costly pen of a Federal Court of Appeals.
Tommy
Eden is a partner working out of the Constangy, Brooks, Smith & Prophete,
LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section
of Labor and Employment Law and serves on the Board of Directors for the East
Alabama SHRM Chapter. He can be contacted at teden@constangy.com or
334-246-2901.
