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Friday, March 11, 2016

Pregnant Belly Rubbing Grad Student Wins Jury Award

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.