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EMPLOYMENT LAW — 10/17/06

Policy not discriminatory, applied equally to all sales representatives

While an employer's new policy requiring all sales representatives to visit their accounts twice a month allegedly caused a female sales representative over the age of 40 to perform extra work (her hours jumped from 50-55 to 70-90 hours a week), the Seventh Circuit Court of Appeals held that the policy was not discriminatory because it was applied equally to all representatives regardless of their sex or age. (Minor v Centocor, Inc, 7thCir, 88 EPD ¶42,517)

Despite affirming a district court's grant of summary judgment in favor of the employer, the Seventh Circuit disagreed with the district court's conclusion that the sales representative failed to show that an "adverse employment action" was taken against her simply because she was not fired or demoted. Elaborating on the definition of an "adverse employment action" in a Title VII/ADEA discrimination case, the circuit court explained that the phrase should not be allowed to displace the statute itself or the US Supreme Court's approach, which inquires as to whether an employee endured a "materially" adverse change in the terms and conditions of employment. Confirming that extra work can be a "materially" adverse change, the Seventh Circuit found that in the representative's case, the extra work she performed was a "material change by any standard" because it was "functionally the same as a 20% reduction in [her] hourly pay."

Notwithstanding the Seventh Circuit's finding that she suffered a "material" adverse employment action, the court held that the representative failed to establish that she was treated differently than other representatives because of her sex or age – the policy required "all" sales representatives, regardless of their sex or age, to visit their customers twice a month and nothing in the record so much as hinted that the employer was biased against women or older representatives. While the representative contended that the policy affected her disproportionately because her territory was larger than other sales representatives, nothing in the record suggested that her employer assigned accounts based on sex or age. In addition, the circuit court confirmed that some of the increases to the representative's work hours were attributed to her personal choice to drive using "out-and-back routes" rather than traveling by air to visit her clients.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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