Fifth Circuit Holds That A Supervisor’s Gender Related Comments Are Not “Direct Evidence” Of Gender Discrimination In Pay

In Herster v. Board of Supervisors of Louisiana State Univ., 887 F.3d 177 (5th Cir. 2018), opinion here, the plaintiff, Herster was a female part-time instructor at LSU. LSU had hired her husband at its law school, and then found her a job as a part time instructor in its art school. Herster later complained that she was paid less than male instructors because of her gender. She complained to her supervisor, who allegedly said, “I thought you were a trailing spouse. I thought you were going to have children and be happy, like Jackie Parker.” The supervisor also allegedly called Herster a “princes,” and repeatedly told he she should just have babies and be happy.

Herster sued, claiming that her supervisor’s alleged comments constituted “direct evidence” of gender discrimination in her pay. The trial court threw that claim out on summary judgment. Herster filed an appeal, and the U.S. Court of Appeals for the Fifth Circuit in New Orleans, Louisiana affirmed the trial court’s ruling. The Fifth Circuit recited the rule that direct evidence is evidence that proves discrimination on its face. The court found that the supervisor’s alleged comments did not meet this requirement, because they required an “inferential leap . . . to prove that Herster was paid less because of her gender.” As such, the alleged comments did not constitute “direct evidence” of gender discrimination. The court also found that Herster’s proof did not circumstantially show gender discrimination in her pay. Thus, the court affirmed the district court’s decision to throw out Herster’s pay discrimination claim on summary judgment.

This case demonstrates that it often takes far more to win a discrimination case than a handful of inappropriate comments by a supervisor.

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