Gender-Based Transfer To Night Shift Can Be Basis For Discrimination Lawsuit

Antoinette Filla is a captain with the Saint Louis, Missouri Police Department. On February 6, 2006, Filla sent an e-mail to all personnel of the First District, which she commanded. The e-mail stated: “I believe there is a definite need for female officers on the night watch; however, there seems to be a problem in the area. Therefore, the following schedule will begin on Monday, 2/10/03, with the rotation of female officers in the District.” Filla’s memorandum assigned six female officers to the night shift.

Five of the six officers responded by filing a grievance with the Department challenging Filla’s decision to assign them on a rotating basis to the night watch. In responding to the grievance, Filla stated that though she found the grievance without merit, she was rescinding her previous rotating assignments to the night watch. Filla stated in conclusion, “my resolution to this grievance is to assign three (3) female officers to the night watch permanently, with one in each of the three precincts and separate recreation brackets.”

The three officers who were permanently assigned to the night watch brought a lawsuit against the Department for sexual discrimination and retaliation. The City moved to dismiss the lawsuit, alleging that the officers had not produced sufficient evidence to show a discriminatory attitude, and because placement on the night watch was not the sort of “adverse employment action” that a retaliation lawsuit demands.

A federal court rejected both of the City’s arguments and allowed the case to proceed. On the discrimination claim, the Court observed that “the Department relies on Filla’s testimony that she believes it is important for female police officers to search female suspects and interview female victims. Even if Filla’s decision was motivated by beneficence, the Department must still defend its action as a bona fide occupational qualification. The Department has failed to introduce a sufficient factual basis to show that it is entitled to summary judgment on a defense that gender is a bona fide occupational qualification reasonably necessary for the normal operation of the night watch.”

The Court just as quickly rejected the City’s argument that permanent assignment to the night shift was not an “adverse action” that violated the law prohibiting retaliation. The Court used a traditional definition of an adverse action as action that is “materially adverse, which might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

The Court held that “in this case, there is no question that Filla permanently assigned the officers to the night watch as a result of their grievance. She stated so in her response to the grievance. I find that there is a question of material fact as to whether a reasonable employee would view Filla’s decision to place the officers on the night watch permanently to the materially adverse action such that it might dissuade a reasonable worker from making or supporting a charge of discrimination. As a result, the City is not entitled to summary judgment on this ground.”

Duckworth v. St. Louis Metropolitan Police Department, 2006 WL 2475027 (E.D.Mo. 2006).

This article appears in the October 2006 issue