Spotting Employment Discrimination


By Jason Pill, Attorney with Phelps Dunbar, LLP

Although most climbing gyms are considered very progressive — whether it be their business models, sensibilities, or political leanings — they are still susceptible to the longstanding discrimination issues that can permeate any work place. Most climbing gyms have not been hit with employment discrimination litigation and incorrectly assume they are immune to such issues based on their size, employee base, or merely some bad advice that they received. This assumption, however, is simply incorrect. Employment discrimination litigation is increasing nationally and can result in staggering legal costs, reduced employee morale, loss of business reputation, and a host of other significant consequences for private employers.

Despite these issues, most instances of discrimination can be eliminated with proper training and policies and, most importantly, a fundamental understanding of the anti-discrimination laws in place. For climbing gyms hoping to grow and expand, they must ensure they have proper employment policies and practices in place to avoid costly setbacks and maintain a strong workforce. As explained by Hilary Harris, founder and CEO of Evo Rock + Fitness, employees are the heart and soul of any climbing gym and vital to the gym’s success. When employees are treated well, they are less likely to file lawsuits against their employers and help create a better gym atmosphere.

Letter of the Law

Much like a climber would not climb a route without mapping it out first and taking the proper protection, a climbing gym can only prevent employment discrimination if it knows what constitutes employment discrimination and the attendant legal obligations placed upon the gym. The mosaic of anti-discrimination laws that apply to climbing gyms include federal, state, county, and local statutes that prohibit discrimination based on various distinctions or conditions (e.g., Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, the Uniformed Services Employment and Reemployment Rights Act, etc.).

When distilled, these various laws prohibit an employer from treating an employee (or employees) differently than the employee’s peers based on race, gender, religion, national origin, pregnancy, genetic information, veteran status, physical or mental disability, age, sexual orientation, or sexual identity. These categories are commonly referred to as “protected classes,” because the anti-discrimination laws protect these classes of individuals from unfair treatment based on these distinctions. Stated simply, a climbing gym, as a private employer, cannot treat an employee differently because they fall into any of these protected classes.

But what does it mean to treat an employee differently? As famously explained by the United States Supreme Court, Title VII (the primary anti-discrimination statute applicable to employers and the statute upon which most anti-discrimination statutes are patterned) is not a “general civility code.” That means that Title VII does not require employers to treat their employees from protected classes better than other employees, just no worse. In fact, an employer can treat all of its employees like dirt—so long as that treatment is equal.

Issues arise, however, when employees are treated differently in the terms or conditions of their employment. Although direct examples of discrimination are easy to identify and condemn (e.g., a climbing gym has a policy to not hire African-American employees), many climbing gyms can fall victim to unintended discrimination based on stereotypes or misconceptions (e.g., a climbing gym assumes that a female employee who just gave birth will want to spend more time taking care of her child than getting hours at the gym). Discrimination is not always evident or immediately noticeable, and gym owners must be diligent in establishing anti-discrimination policies, enforcing those policies, and spotting discrimination so that it can be eradicated. A blind eye is no legal defense, and businesses that do not take active measures to prevent discrimination expose themselves to significant legal risks. As part of these active measures, climbing gym owners must understand what discrimination is prohibited and, if a lawsuit is filed, what evidence would help a gym defend itself in court.

The Two Types of Discrimination

There are two general theories for establishing workplace discrimination: tangible employment actions and hostile work environments. Both theories are actionable and an aggrieved employee can simultaneously pursue both theories against an employer. Notably, an employer’s defense will vary depending on the theory asserted by the aggrieved employee.

Tangible Employment Action
A “tangible employment action” is generally defined as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a disciplinary decision. By their nature, these actions are imposed upon an employee by a supervisor or someone with supervisory authority. Moreover, these actions are typically easier to identify than a hostile work environment and, with proper systems and training, easier to prevent.

In the context of a climbing gym, a tangible employment action could be as commonplace as a gym manager terminating an employee, a head route setter taking shifts away from setters, or an owner deciding to only give pay raises to certain employees, but not others. Of course, most of these personnel and operational decisions are made as part of the daily routine of running a climbing gym, and only rise to the level of actionable discrimination when the actions are taken on account of an employee’s protected status (e.g., because she’s a women, of Hispanic descent, a military veteran, homosexual, etc.). If discrimination is alleged, it becomes incumbent upon the climbing gym to demonstrate that its actions were not based on the employee’s protected status (any those categories identified above) or that the action did not materially change the employee’s status.

An example better demonstrates these issues. Let’s assume the head route setter assigns herself the hardest routes and also reserves all the best holds for her routes. This, in turn, prevents her male subordinates from using the meatiest slopers and pinches when setting their routes. Has the female supervisor discriminated against her male subordinates who are now relegated to only using the worn down jugs and junk holds to mechanically churn out their V0s and 5.7s? Under these circumstances, although we have a female supervisor taking an action against her male subordinates that impacts their employment and understandably upsets them, it’s far from discrimination.

In our example, there is no evidence that the head route setter is keeping these holds away from the male route setters on account of their gender, and it would be tenuous to assert that not being able to use certain holds materially changed the route setters’ employment status (yes, the male route setters may not be as thrilled with their hold selection or setting easier routes, but there are still enough holds for them to set routes and they are still gainfully employed). As the head route setter, she is likely the most experienced setter and, consequently, sets the more difficult routes that often require certain holds which are not appropriate for easier routes. This legitimate explanation for the head route setter’s actions is not based on discriminatory motives and demonstrates why she would have made the same decision if, in this scenario, all of her subordinate employees were women, instead of men. So, there’s no indicia of discrimination for the climbing gym to worry about.

Now let’s assume that same head routesetter hires two new routesetters for the gym: an aspiring male setter with little prior experience and an experienced female setter who has set for multiple competitions, worked for more than 10 years as a setter in some of the best gyms in the country, and has a sparkling letter of recommendation from a USA Climbing National Chief Routesetter. Both setters are hired for the same position and start on the same date. The male setter, however, receives a higher starting salary than the female setter. Here, we have a much more concerning employment action that smacks of discrimination, as there is seemingly no legitimate reason to give the inexperienced setter a higher salary than the experienced setter, other than his gender.

Although these are overly simplistic examples, they underscore the fact-specific analysis required to spot discrimination. Ultimately, when a tangible employment action is alleged against a climbing gym, the determination of liability will require an analysis of the purported motives of the action and its impact on the aggrieved employee. In response, the climbing gym will try to demonstrate that the employment action at issue was taken for legitimate business reasons, often showing that the decision would have been the same for someone outside of the protected class, thus negating the relevance of an employee’s protected status.

Hostile Work Environment
The alternative theory for pursuing a discrimination claim is a hostile work environment, which can be more difficult for employers to identify. In a hostile work environment, there is not a tangible employment action against an employee. Rather, the employee attempts to demonstrate that a collection of comments or incidents from the workplace (which, under certain circumstances, can include customers) were sufficiently severe or pervasive to materially impact the employee’s working conditions. The difficulty here lies in identifying a hostile work environment, as it is often between coworkers at the same level and may not involve supervisors or owners, and frequently occurs outside of their presence.

Unlike a tangible employment action that focuses on, as its name suggests, one action, a hostile work environment is typically a patchwork of incidents that collectively become “severe or pervasive” enough to impact the terms or conditions of the employee’s employment. What exactly constitutes “severe or pervasive” conduct is the source of great debate by attorneys and judges, but essentially turns on whether the incidents at issue (e.g., offensive nicknames, sexually harassing comments, lewd images, etc.) were severe or frequent enough to alter the employee’s working conditions. It’s an inexact science. Rarely will a stray remark be sufficient to create a hostile work environment, but seemingly small incidents or comments can be aggregated together to determine their collective impact on the employee.

The key to preventing (and defending against) a hostile work environment is creating, maintaining, and following policies that prohibit workplace harassment and establish a reporting channel that employees can use when they believe they have been harassed. For some climbing gyms, this may seem like an overreaction or undue burden because the staff largely knows each other and climbs together, or in Harris’s words, is “very tribal.” While this sense of community can create a better work environment and stave off disgruntled employees, it can also give the false sense of security or misconception that employees would never harass one another. Despite the appearance of a close-knit workforce, if an employer does not have certain anti-harassment policies and reporting channels in place, it will lose the ability to assert a key defense during litigation and risks exposing itself to potential liabilities that may otherwise be mitigated (and don’t worry—even though Harris values the “tribal” feel of her staff’s relationship, Evo Rock + Fitness gyms still maintain and implement proper anti-harassment and anti-discrimination policies to avoid costly issues).

Do These Laws Apply Even to My Gym?

More than likely, yes. A common misconception for many climbing gyms is that they are too small in either staff or revenue to worry about employment discrimination. In other words, they assume — or hope — that they are small enough to fly under the radar. The reality is that anti-discrimination laws reach almost every employer, in some form or fashion. Although Title VII and many federal laws require an employer to employ more than 15 employees to be covered, many state and local laws require an employer to have as few as 5 or 10 employees to be covered by anti-discrimination statutes. It’s generally safe to assume some collection of anti-discrimination statutes apply to most climbing gyms, and owners should consult with employment attorneys for more specific guidance on the laws and regulations governing their gym.

From there, climbing gyms can work with counsel to audit existing policies (if there are any) and develop new policies and procedures to eliminate discrimination and provide a defensible position if the gym is later sued by an employee. The cost to take these preventive measures is much less than the costs of litigation, which can easily include more than $100,000 in legal fees to take a matter to trial (assuming, of course, that the gym prevails entirely and does not owe any money to the aggrieved employee). Savvy climbing gyms should proactively address these problems to minimize both costs and risks, and not wait until a lawsuit has been filed. By then, it’s too late.

In climbing, we anticipate the worst and then work backwards from there to check all of our systems and gear; we use extra protection, double back our harnesses, use redundant knots, and so forth. In running its business, a climbing gym must likewise anticipate the worst and implement the proper systems to avoid liability or, in the event allegations are raised, be in the best posture to defend against any legal actions. As such, this article is intended to be a primer on employment discrimination concerns and the preventive measures that can be taken.

Following on this theme, subsequent articles will provide greater depth on specific discrimination issues facing climbing gyms, such as disability discrimination under the Americans with Disabilities Act and religious accommodations under Title VII of the Civil Rights Act. If you have other employment law topics you would like covered, let us know.

jason-pillIn addition to climbing for the past 15 years and previously managing a climbing gym, Jason Pill is an attorney with Phelps Dunbar, LLP in Tampa, Florida. Jason practices in the area of labor and employment and assists clients in handling unique issues that arise at the intersection of law and technology. He represents employers regarding claims involving employment discrimination laws, wage and hour laws, family and medical leave laws, whistleblower laws, union-management relations, employee benefits, enforcement of non-competition agreements, customer complaints based on denial of service or alleged discrimination, privacy-based claims, and various employment-related torts. He prepares employment contracts, non-competition agreements, personnel policy manuals, employee handbooks and assists clients in implementing and managing technology in the workplace. If you have questions for Jason contact him here.

The content of this article is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. The reading of or reliance on this article or the Climbing Business Journal’s web site does not create an attorney-client relationship between the author or the Climbing Business Journal and the user or reader.

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Jason Pill is a longtime climber and an attorney with Phelps Dunbar, LLP in Tampa, Florida. He practices in the area of labor and employment and assists clients in handling unique issues that arise at the intersection of law and technology. Additionally, Jason managed a climbing gym before embarking on a legal career, and he currently serves on USA Climbing's Board of Directors and as the Chairperson of USA Climbing’s Risk Management Committee.