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Workplace Issues: Female employee subject to disparate treatment

Lindy Korn

As 2011 comes to a close, I have decided to write about a decision rendered by the Maryland Court of Appeals on Dec. 6, (Taylor v. Giant of Maryland, LLC, 2011 WL 6032713), on the issue of discrimination based on disparate treatment and employment requirements for gender specific ailments.

The context of similarly situated males with significant health problems — none of whom were required to undergo an independent medical examination, raises an inference that women are unsuited for some of the more remunerative forms of manual labor and, once injured, provide a greater safety risk.

The gender lens of discrimination is quite shocking to this writer, when based on disparate treatment of safety issues that apply to only gender-specific conditions.

The plaintiff, Ms. Taylor, an African-American female, worked as a tractor-trailer driver for Giant grocery stores, making local deliveries of merchandise and groceries from 1988 to 2003. At some point in 1995, Ms. Taylor was diagnosed with menorrhagia, or heavy prolonged menstrual bleeding and fibroid tumors, by her gynecologist.

Ms. Taylor testified that she told her direct supervisor at the time, Pamela Sanford, of the diagnosis, and Ms. Taylor occasionally requested time off from work to facilitate her treatment.

At trial, it was established that Giant required its drivers to call in at least 1.5 hours ahead of a scheduled shift if they were going to be tardy or absent. If a driver failed to abide by the call-in requirement twice within a one-month period, he/she could be subject to discipline.

Ms. Taylor testified that “on some days, if the bleeding was too heavy,” she would not have the ability to provide the required 1.5 hours advance notice of her absence or lateness.

Ms. Taylor began requesting FMLA leave time in order to compensate for her gynecological-related lateness and absence, which Giant approved.

However, Giant did issue Ms. Taylor various disciplinary notices because of the call in policy. In response to disciplinary notices, Ms. Taylor provided excuse slips penned by her gynecologist and previously indicated on her FMLA forms that Ms. Taylor’s symptoms can occur quite suddenly, with no warning and when she hemorrhages she is required to get off her feet and rest to decrease the bleeding.

It was then that Ms. Taylor was required to undergo an independent medical examination with the employer’s doctor, and the issue of safety was raised.

Ultimately, Ms. Taylor filed a charge of discrimination based upon the Nov. 8, 2002, management decision that the FMLA medical documentation was not adequate and that she had undergo further testing with the employer’s doctors. Other employees (male, white) are not similarly treated. Ms. Taylor also filed a charge of retaliation when she was terminated for not having another physical, when she had just had one, and because she was taken off the road because she was a safety risk.

In proving her case of disparate treatment, Ms. Taylor utilized evidence regarding four male truck drivers who were afflicted with serious health problems, including diabetes, Parkinson’s disease and severe dizziness, but none were required to undergo an independent medical examination, while Ms. Taylor was for a gynecological problem.

Giant claims that Ms. Taylor’s similarly situated comparators were not similarly situated because of having different supervisors, and that the male drivers did not ask to be exempted from Giant’s on-call policy and because some male drivers were permitted to return to work after obtaining a certification from their private doctor.

But, the court held, “to embrace Giant’s reasoning, however, would encourage courts to parse out every individual aspect and employment factor, rather than consider the single most relevant fact, that each of the male drivers used as comparators had significant health conditions but were not required to submit to an independent medical examination.” 

The court here, using the contextual approach to support the comparator evidence, and to find that gender had been the basis of the discriminatory treatment, that Ms. Taylor suffered.

This decision is important because it allows women an equal footing in non-traditional workplaces, and allows them to be sick and seek treatment without arbitrary disciplinary measures.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at or (716) 856-KORN (5676).