U.S. Court of Appeals for the Eighth Circuit

Crone v. UPS

Response to Crone v. United Parcel Service

Because DWI has enough employees to make the terms of the Civil Rights Act of 1964 and other anti-discrimination legislation apply to it, DWI's human resources department must remain aware of proscriptions against discrimination. The issue in Crone v. United Parcel Service (UPS) dealt with whether it was gender discrimination for UPS to refuse to promote Crone, one of its employees, to a supervisory position based on UPS's concerns that Crone was overly emotional and could not handle confrontations, due to her propensity to cry. Before looking at the decision the court reached in Crone, it is important to look at how the Equal Employment Opportunity Commission (EEOC) defines sex-based discrimination and sexual harassment. According to the EEOC:

It is unlawful to discriminate against any employee or applicant for employment because of his/her sex in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of sex. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude individuals on the basis of sex and that are not job related (Sex-based discrimination, 2009).

Protection against sexual harassment is an important element of preventing sex-based discrimination, and sexual harassment includes "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment" (Sexual harassment, 2009). While the EEOC provides general information about both sex-discrimination and sexual-harassment, the blanket definitions do little to explain whether or not a particular behavior would constitute sexual harassment. Therefore, DWI's human resources must look at the situation in Crone, which, at least facially, appears to discriminate against an employee because of her propensity for showing emotion, which seems to be a sex-based characteristic.

Plaintiff-employee Crone sought a dispatcher supervisor position. She asked her immediate supervisor for a recommendation for that position, but her supervisor did not feel that she would be suited to the change and did not make a favorable recommendation. Crone's supervisor was not the ultimate decision maker; however, the ultimate decision-maker followed the supervisor's recommendations and promoted a male to the position. This decision was largely based on Crone's supervisor's statement that he feared that Crone was not suited for a supervisory position, due to the fact that he believed that Crone would cry if confronted by hostile drivers. Crone filed an action alleging sex discrimination, based on two laws: Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. 2000(e)-5, and the Arkansas Civil Rights Act, Ark. Code Ann. 16-123-107(a). Crone's lawsuit did not maintain that her supervisor's comment was direct evidence of sex discrimination, but that it was a pretextual reason given to support UPS's gender discrimination. UPS filed a motion for summary judgment, which the trial court, and the appellate court affirmed the trial court's decision. Both the trial court and appellate court determined that Crone's proffered evidence did not create a genuine issue of material fact as to discriminatory intent. Both courts found that way because the fact that UPS believed that Crone lacked the necessary confrontational skills for the position in question was a non-discriminatory, non-pretextual reason to refuse to promote her.

In fact, Crone's own testimony supported the idea that UPS's reason was non-pretextual, since she testified that she did not believe the ultimate decision-maker had engaged in sex-based discrimination, that she had problems in confrontational situations, and that she was aware that confrontation skills were necessary for the supervisory position.

Some critics would suggest that this decision opened the door to sex-based and other types of discrimination. However, these critics base their criticism on gender stereotyping that suggests that women are generally not well-suited for dealing with confrontation. While there may be legitimate sex-based differences in approaches to confrontation, the fact that women may be more open to negotiation and less likely to escalate a confrontational situation may actually make them better at dealing with conflict than men are. Furthermore, Crone's behavior of crying at work was outside of the norm for behavior for men or women. One of the expectations in the modern workplace is that employees, whether men or women, will not cry in business situations. Therefore, UPS's concern that Crone would not be able to deal with confrontation without crying, and would, therefore, lose the respect of her subordinates, was a well-founded position. Moreover, for Crone's claims to be successful, she would have had to establish that UPS would have promoted an equally-qualified man to the position. UPS did not promote a man who cried during confrontations to the position, and Crone was unable to provide evidence that any other highly-emotional men filled the same type of position.