AMICUS BRIEFS

ERA participates in the preparation and submission of amicus (friend of the court) briefs across the country. For a copy of the full brief, call us at (415) 621-0672 with your request.

Amicus Briefs:

• LYLE v. WARNER BROTHERS TELEVSION PRODUCTIONS, ET AL. California Supreme Court, (No. S125171)
  The Amicus Letter
  ERA Statement
  Daily Journal 2004 article
  San Francisco Chronicle April 2006 article
  
  
• JACKSON v. BIRMINGHAM (full text)
  
  
• ELYSA J. YANOWITZ v. L’OREAL USA, INC., formerly known as COSMAIR, INC.

• STEVE SCHIFANDO v. CITY OF LOS ANGELES (full text)
• Punitive Damages in Title VII Actions
• Defense to Liability under ADA
• Eleventh Amendment as Bar to Actions Under FMLA
• Standard for Class Certification Under Rule 23(b)(2)
• Applicability of Continuing Violation Theory Under Title VII
• Notice Requirements Under FMLA
• Admissibility of Evidence in Sexual Harassment Cases
• Right to Discovery of Immigration Status of Plaintiffs
• Applicability of FEHA to Client/Customer Sexual Harassment
• Calculation of Attorneys’ Fees
• Exhaustion of Administrative Remedies Under FEHA
• Proposition 209 (e) and Federally Mandated Affirmative Action Programs
• Denial of Tenure in Higher Education

ERA’s Case Docket

ELYSA J. YANOWITZ v. L’OREAL USA, INC., formerly known as COSMAIR, INC.

In Yanowitz v. L’Oreal, the issue agued before the California Supreme Court was whether harassing actions taken against a manager who refused to fire an employee for reasons that she perceived to be discrimination on the basis of gender, were sufficient to constitute retaliation under the California Fair Employment and Housing Act (FEHA).

In their opinion issued on August 11, 2005, the Court concluded that:
“...an employee’s refusal to follow a supervisor’s order that she reasonably believes to be discriminatory constitutes protected activity under the FEHA and that an employer may not retaliate against an employee on the basis of such conduct when the employer, in light of all the circumstances, knows that the employee believes the order to be discriminatory, even when the employee does not explicitly state to her supervisor or employer that she believes the order to be discriminatory...Accordingly, we shall affirm the judgment of the Court of Appeal, which reversed the summary judgment entered in favor of defendant”

ERA’s statement on the decision

Article in the San Francisco Chronicle

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Punitive Damages in Title VII Actions
Beck v. Boeing U.S. Court of Appeals, Ninth Circuit (02-35140)

In June 2002, ERA joined an amicus brief prepared by the Impact Fund on behalf of a broad coalition of national civil rights groups in a Title VII class action raising the question of whether plaintiffs’ claim for punitive damages were properly certified under Rule 23(b)(2).

Plaintiff and a class of women sued Boeing alleging gender discrimination under Title VII. Plaintiffs claim that women experience discrimination in compensation, promotions and overtime pay. Plaintiffs sought injunctive relief, back pay and punitive damages. The District Court granted the class certification under Rule 23(b)(2) as to non-executive salaried female employees and hourly female employees covered by collective bargaining agreements. The Court ordered the trial be bifurcated and that the first phase address Boeing’s liability as well as declaratory and injunctive relief. The second phase would address the issue of punitive damages once liability was established.

Amici argued that Title VII permits class actions that include relief for back pay and punitive damages, and that the 1991 amendments to Title VII did not intend nor do they have the effect of undermining the legality of Title VII class actions.

On February 25, 2003, the Ninth Circuit affirmed class certification for purposes of liability, but held that the District court abused its discretion in certifying a class to determine the plaintiffs’ punitive damage claims. The Court noted “a finding that the employer engaged in a pattern or practice of discrimination does not automatically entitle every class member to damages. To receive punitive damages in a Title VII case, a plaintiff must have suffered some harm as a result of a defendant’s illegal behavior. Hence membership in the Phase II class (punitive damages) must be restricted to those who allege they were harmed by the employer’s proven pattern or practice of discrimination.

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Defense to Liability under ADA
Chevron USA, Inc. V. Echazabal U.S. Supreme Court (on appeal from Ninth Circuit) (98-55551)

In February 2002, ERA joined an amicus brief drafted by American Civil Liberties Union in an ADA case that raises the key question of whether an employer has the right to deny employment to a qualified applicant based on the employer’s assessment of the applicant’s health risks. Plaintiff Mario Echazabal had worked at the Chevron refinery for many years as a subcontractor in the coker unit. Echazabal applied twice for a position in the coker unit in Chevron refinery in El Segundo, California, and both times Echazabal was found to be qualified and hired for the position (as compared to the subcontract position he held). However, when he took a required physical examination after each offer, he was denied the position because the examination revealed a compromised liver function.

Echabazal filed his case in the United States District Court for the Central District of California relying on the Americans with Disabilities Act. The district court granted Chevron’s Motion for Summary Judgment and Echabazal appealed. The Ninth Circuit Court of Appeals reversed holding that even if working in the coker unit posed a threat to Echazabal’s health, such a threat to his own health, with no threat to anyone else in the workplace, did not constitute a defense to liability under the ADA. The U.S. Supreme Court granted Chevron writ of certiorari.

Amici argued that Chevron violated the ADA and that allowing employees to decide what physical risks to undertake is a core civil rights principle. Amici further argued that Chevron’s policy is contrary to the U.S. Supreme Court’s previous rejection of employers’ paternalistic claims that employers may make employment decisions based on prejudices and stereotypes because they are in the best interest of women and other protected groups. In June 2002, the United States Supreme Court reversed the Ninth Circuit’s decision and held that under the ADA an employer may defend a suit on the basis that an applicant’s condition posed a direct threat to his own health. Thus it was lawful for Chevron to deny Echabazal the job.

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Eleventh Amendment as Bar to Actions Under FMLA
Nevada Department of Human Resources et al. v. Hibbs U.S. Supreme Court (on appeal from Ninth Circuit) (01-1368)

In October 2002, ERA joined an amicus brief prepared by the National Women’s Law Center in a FMLA case that raised the critical Eleventh Amendment immunity issue regarding whether a state can be sued in federal court. In 1997, Plaintiff Hibbs, a state agency employee, sought and obtained a 12-week leave under the federal FMLA to be taken on an intermittent basis over the course of several months to care for his ailing wife. In June and September 1997 he was granted a benefit under a special catastrophic leave program where fellow employees donated accumulated sick leave for the benefit of a co-worker. In October 1997, Hibbs was informed that he had exhausted his FMLA leave and was ordered back to work. His request for an additional 200 hours of catastrophic leave was denied. Hibbs was unable to return to work and he was terminated. Hibbs’ subsequent suit against the State of Nevada was dismissed on the basis that the Eleventh Amendment barred the federal suit against the state.

Amici argue that FMLA was a valid exercise of Congress’s enforcement powers under the Equal Protection Clause of the 14th Amendment and validly abrogated state sovereign immunity from private lawsuit. The FMLA is a “congruent and proportional” remedy for sex discrimination. Because of the Supreme Court’s heightened scrutiny for sex discrimination, Congress had more room to act with a lesser burden of proving the record on which it acted. The case was argued in the Supreme Court in January 2003. On May 27, 2003, the Supreme Court ruled 6-3 that state government workers can sue for denial of unpaid family leave.

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Standard for Class Certification Under Rule 23(b)(2)
Molski and DeGroote v. Gleich and BP America U.S. Court of Appeal, Ninth Circuit (on rehearing) (01-55068)

In 2002, ERA joined an amicus brief sponsored by the Impact Fund on behalf of a coalition of civil rights and public interest organizations in an ADA case that raised a critical issue regarding the applicable standard for certifying a class action under Rule 23(b)(2). In May 1998, Plaintiffs

originally filed a complaint against Defendants for denial of access to service stations in violation of the ADA and California’s Unruh Civil Rights Act. The parties negotiated a class-wide settlement and proposed a consent decree, which was approved by the District Court in December 2000. The Ninth Circuit reversed the District Court, holding that the decree was unfair by its terms because it released statutory, treble and actual damages, including emotional distress and property damages, on a class-wide basis.

The Court of Appeals was troubled that the mandatory settlement class had been certified under Rule 23(b)(2) which does not provide class members the right to opt-out of the settlement to pursue their individual claims if they are dissatisfied with relief they would obtain under the settlement. The Ninth Court had previously held that, to comport with due process, Rule 23(b)(2) claims must include only “incidental” damage claims. As part of its analysis regarding whether the District Court had properly certified the class under Rule 23(b)(2), the Ninth Circuit adopted a standard developed by the Fifth Circuit in Allison v. Citgo Petroleum to determine whether the damages sought by the class were “incidental” or “substantial.” The Allison standard is very narrow and requires that only non-incidental damages be included in a Rule 23(b)(2) mandatory settlement class. Applying this narrow formulation, the Ninth Circuit panel concluded that actual damages as well as statutory and treble damages are not incidental.

Amici argued that the Ninth Circuit’s adoption of the narrow incidental damages standard in Allison ignores 30 years of Title VII jurisprudence in which class cases have been certified under Rule 23(b)(2) despite the fact that back pay damages, which often involve complex calculations, have always been included in the claims. Amici urged the Ninth Circuit to hold a re-hearing for the case and to follow the Second Circuit’s standard adopted in Robinson v. Metro-North Railroad, which is a more liberal standard, rather than a bright line rule, to distinguish incidental and non-incidental damages for purposes of determining predominance under Rule 23(b)(2).

The Ninth Circuit withdrew its initial opinion and filed a replacement opinion on February 6, 2003. In the revised decision, the Court again reversed the District Court, however, it did so under the Second Circuit’s Robinson standard, rather than the Fifth Circuit’s Allison standard. The Court found that the Allison standard held, “troubling implications for the viability of future civil rights actions, particularly those under the Civil Rights Act of 1991.” The Court refused to recognize a distinction between incidental and non-incidental damages in determining predominance for Rule 23(b)(2) certification, and instead followed Robinson’s fact specific, case-by-case analysis, focusing on the language of Rule 23(b)(2) and the plaintiff’s intent in bringing the suit. Finally, the Court held that the District Court did not abuse its discretion in certifying the class under Rule 23(b)(2), as the plaintiff’s main goal of litigation was injunctive relief. However, the Court also held that because the decree released all claims of statutory and actual damages, the District Court abused its discretion by failing to provide notice and the right to opt out of the class. Because of this, the Court maintained its initial holding from the withdrawn opinion and reversed the certification of the class.

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Applicability of Continuing Violation Theory Under Title VII
National Railroad Passenger Corporation v. Abner Morgan, Jr. cited as Amtrak v. Morgan U.S. Supreme Court (on appeal from the Ninth Circuit) (00-1614)

In November 2001, ERA joined an amicus brief filed in the United States Supreme Court sponsored by the Impact Fund and numerous other non-profit and public interest law firms in a Title VII race discrimination case in which the applicability and scope of the “continuing violation” doctrine has been challenged. Plaintiff, Abner Morgan, who is African American, alleged that he was subjected to race discrimination while he worked first as an electrician’s helper and an electrician for Amtrak. Throughout his employment, Morgan complained about discriminatory treatment he experienced such as physical assault by his supervisor. Evidence at trial showed that managers of Amtrak used racial epithets, made racially derogatory remarks directed at African American employees. Morgan filed a charge of discrimination and retaliation against Amtrak on February 27, 1995. Morgan filed his lawsuit on October 2, 1996 and sought to include all discriminatory acts that occurred throughout his employment with Amtrak.

The District Court held that “because Morgan believed that he was being discriminated against at the time that all of these acts occurred, it would not be unreasonable to expect that Morgan should have filed an EEOC charge on these acts before the limitations period on these claims ran.” Morgan appealed. The Ninth Circuit reversed, relying on its previous articulation of the continuing violation doctrine, which “allows courts to consider conduct that would ordinarily be time barred ‘as long as the untimely incidents represent an ongoing unlawful employment practice.’” It held that Morgan could prove his case relying on continuing violation theory in light of evidence that the events prior to may 1994 were part of a series or pattern of discrimination, retaliation and hostile environment that existed almost from the beginning of his employment and continued throughout his tenure with Amtrak. In the Ninth Circuit’s view, a plaintiff can establish a continuing violation that allows recovery for claims filed outside of the statutory period in one of two ways. First, a plaintiff may show “a series of related acts one or more of which are within the limitations period.” Such a “serial violation is established if the evidence indicates that the alleged acts of discrimination occurring prior to the limitations period are sufficiently related to those occurring within the limitations period.” The alleged incidents, however, “cannot be isolated, sporadic, or discrete.” Second, a plaintiff may establish a continuing violation if he shows “a systematic policy or practice of discrimination that operated, in part, within the limitations period—a systemic violation.”

This case came before the US Supreme Court on the question of whether the Ninth Circuit correctly held that the continuing violation theory applied. Amici argued that the Ninth Circuit’s definition of the scope and applicability of the continuing violation theory to Plaintiff Morgan’s race discrimination claims was correct.

The Supreme Court affirmed in part and reversed in part. It affirmed the Ninth Circuit judgment that the “continuing violation” doctrine can be applied to claims such as harassment, where liability is by definition based upon a series of events, many of which occurred outside the 300-day filing period. The judgment was reversed as to Plaintiff’s other Title VII claims, thereby rejecting the Ninth Circuit’s more expansive determination that so long as one discriminatory act fell within the period, any other discriminatory and retaliatory act that was plausibly or sufficiently related to the timely act could also be considered for liability. This latter holding will significantly impact the scope of Title VII pattern and practice cases.

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Notice Requirements Under FMLA
Ragsdale v. Wolverine Worldwide, Inc. U.S. Supreme Court (on appeal from Eighth Circuit) (99-3319)

In September 2001, ERA joined an amicus brief filed in the U.S. Supreme Court authored by the National Employment Lawyers Association in an FMLA case interpreting key notice requirements under the Act’s regulations. Plaintiff Tracy Ragsdale was an employee of Wolverine Worldwide, a shoe factory in Arkansas, when she was diagnosed with cancer. After her diagnosis, Ragsdale requested and obtained seven months of medical leave without any notification that she had the right to FMLA leave or that the leave she took was FMLA leave. Wolverine terminated Ragsdale after she completed seven months of leave when she was unable to return to work. Ragsdale requested FMLA leave after her termination but was informed that she had exhausted all available leave.

The trial court granted summary judgment against Ragsdale’s claim that Wolverine violated FMLA pursuant to a U.S. Department of Labor regulation interpreting the statute outlining notice requirements that employers must fulfill to comply with FMLA which Wolverine failed to meet. The Eighth Circuit Court of Appeals affirmed the holding that the Department of Labor regulations were invalid as an impermissibly broad interpretation of FMLA protections. Ragsdale filed a petition for writ of certiorari to the U.S. Supreme Court and the Court granted it.

Amici argued that DOL’s notification requirements fill gaps left in the statute and that under Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) the Eight Circuit erroneously concluded that Congress unambiguously expressed its intent in the statute. Amici further argued that the notice requirements reflect a reasonable accommodation of conflicting policies that reflect the needs of employers and the need to balance the demands of work and family and should be upheld. In March 2002, the U.S. Supreme Court affirmed the Eighth Circuit Court of Appeals decision and struck down the Department of Labor regulation 29 CFR sect 825.700(a), which provided that, if an employer fails to designate leave an employee takes as FMLA leave, leave taken by that employee does not count against the employee’s 12 weeks of leave entitled by the FMLA. The Court held that where an employee was granted 30 weeks of leave by her employer, the remedy provided by the regulation—entitling the employee to an additional 12 weeks of FMLA leave—was contrary to the intent of the FMLA and beyond the Secretary of Labor’s authority. The Court did not address the notice or designation requirements of the FMLA or whether another remedy might be appropriate, but limited its holding to striking down the remedy provided by this regulation.

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Admissibility of Evidence in Sexual Harassment Cases
Rieger v. Arnold, et al. California Court of Appeal, Third District (C034625, C035383)

In September 2000, ERA submitted an amicus brief to the California Court of Appeals in a Title VII sexual harassment case on the critical evidence question of whether the plaintiff’s past sexual history is admissible. Plaintiff was an employee of a law firm and alleged that she was sexually harassed and abused by her employer. At trial the defendants introduced evidence of Plaintiff’s past sexual history over Evidence Code Section 1106 objections. Amici addressed whether the exclusionary rule of Evidence Code Section 1106 bars a defendant in a sexual harassment trial from introducing evidence of a plaintiff’s past sexual history with co-workers who were not the “perpetrator.” In its attempts to interpret Evidence Code Section 1106(b), the lower court construed the “perpetrator” in a hostile environment claim to be the “environment” not the defendant. Therefore, the court prejudicially allowed in any and all evidence of Plaintiff’s conduct in the workplace with co-workers. The court also prejudicially admitted evidence of Plaintiff’s sexual conduct with persons not connected to the workplace.

Amici argued that Evidence Code Section 1106 should bar the discovery and introduction of evidence at trial of a plaintiff’s past sexual history. Amici further argued that the defendants failed to show good cause prior to admitting evidence of Plaintiff’s past sexual history at trial. Section 1106 should serve as a bar to the defense of welcomeness in a hostile environment claim. The discovery and introduction of evidence at trial of Plaintiff’s past sexual history was more prejudicial than probative. Finally, Amici argued that women will be deterred from seeking redress for harassing conduct if Section 1106 does not prohibit the discovery of their past sexual history.

For these reasons, Amici urged reversal of the lower Court’s order granting defendants’ judgment notwithstanding the verdict. By order dated December 17, 2002, the Court of Appeals held that while the evidence of Plaintiff’s sexual conduct with persons other than the Defendant was inadmissible the error was not prejudicial and affirmed the trial court’s judgment NOV (notwithstanding the verdict) against the Plaintiff.

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Right to Discovery of Immigration Status of Plaintiffs
Rivera, et al., v. Nibco, et al. U.S. Court of Appeal, Ninth Circuit (on interlocutory appeal from Eastern District of California) In April 2003, ERA joined an amicus brief authored by the National Employment Law Project (NELP) and submitted to the Ninth Circuit in a Title VII case that questions the discoverability of an employee’s immigration status.Immigrant plaintiffs sought and obtained a protective order, in a Title VII employment discrimination suit, to prohibit the defendant from using the discovery process to inquire into their immigration status. Following issuance of the protective order, the United States’ Supreme Court decided Hoffman Plastic Compound v. NLRB, 535 U.S. 137 (2002) where it held that undocumented immigrant workers are not entitled to back wages as a remedy in lawsuits under the FLSA for time they had not already worked. Following the Hoffman decision, defendants in Rivera v. Nibco sought discovery of plaintiffs’ immigration status. argue that allowing defendants to discover immigrant plaintiffs’ immigration status will have grave consequences for immigrant plaintiffs, a chilling effect on all workers’ exercise of their rights, and undermine the protections of anti-discrimination laws. Highlighting the facts of numerous cases involving immigrant workers, the brief explains that many employers hire and profit from the labor of undocumented immigrant workers and use immigration status to prevent workers from exercising their legal rights. Courts have generally recognized this and protected immigrant workers; Amici argue the Ninth Circuit should continue to do so. Additionally, courts have many other tools available to ensure that immigrant plaintiffs do not receive remedies to which they are not entitled. The case is pending.

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Applicability of FEHA to Client/Customer Sexual Harassment
Salazar v. Diversified Paratransit, et al. California Court of Appeal, Second Appellate District (B142840)

In December 2002, ERA and the Legal Aid Society-Employment Law Center filed a request with the California Supreme Court in support of granting a petition for review on a case of great significance in the area of sexual harassment law. Plaintiff Salazar worked as a busdriver for a company that transported disabled adults from their homes to day care centers and schools. The bus company had received complaints that acustomer of that route (a disabled adult male) had previously exposed himself to three female drivers. Shortly after she began her job, the passenger harassed plaintiff Salazar. She complained and asked for a route change but her request was denied. After two sexual assaults by the passenger, Salazar resigned and filed a claim against the employer for sexual harassment under FEHA. The Court of Appeal held that FEHA does not cover client/customer sexual harassment of employees.

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Calculation of Attorneys’ Fees
San Francisco Baykeeper, et al. v. Cargill Salt Division, et al., U.S. Court of Appeals, Ninth Circuit (00-15617, 00-15738)

In September 2000, ERA joined an amicus brief filed in the Ninth Circuit and authored by The Impact Fund in an environmental justice case that addresses the proper criteria for awarding attorneys fees under the Clear Water Act. Plaintiff environmental protection organization sued Cargill Salt for illegal waste dumping in the Don Edwards San Francisco Bay National Wildlife Refuge. After 3 years of litigation, Plaintiffs prevailed on the merits and filed their motion for attorneys’ fees. Plaintiffs’ motion properly documented counsel’s hours, proposed reasonable hourly rates, and otherwise complied with applicable attorneys’ fees law. Although the district court granted the motion, it slashed plaintiffs’ fee request in half based on the Judge’s personal view that the site at issue did not have much environmental value. Defendant appealed the liability finding and Plaintiffs appealed the attorneys’ fees issue.

Amici argue that the lower court impermissibly substituted its assessment of the value of the land in evaluating the “results obtained” rather than following the language and intent of the Clean Water Act, which provides for attorneys’ fees to prevailing parties. The brief further argues that because the court relied on impermissible factors, its determination of the attorneys’ fees must be reversed. By Order dated August 30, 2001, the Ninth Circuit remanded the case for reconsideration of jurisdiction issues and vacated the fee award for redetermination consistent with a ruling on the underlying issues.

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Exhaustion of Administrative Remedies Under FEHA
Schifando v. City of Los Angeles California Court of Appeal, Second Appellate District (S106660)

After ERA’s brief was filed, the University of California Regents filed a brief supporting the City of Los Angeles, but also claiming that whatever the outcome with respect to other public employees, the internal procedures of a Constitutional agency such as the University of California were entitled to special deference. In the interim, the Court has taken another case raising the exhaustion of administrative remedies issue in a different employment context. It appears that the California Supreme Court is contemplating a major decision that will have a profound effect on victims of employment discrimination.

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Proposition 209 (e) and Federally Mandated Affirmative Action Programs

United Utilities Inc., et al v. Sacramento Municipal Utilities District et al. California Court of Appeals, Third District (00AS03306)

In December 2002, ERA joined an amicus brief written by the Lawyer’s Committee for Civil Rights and the ACLU of Northern and Southern California and filed in the Third District of the California Court of Appeal in a case of first impression regarding exemption from Proposition 209 by state contractors that receive federal funds. The Sacramento Municipal Utilities District (SMUD) has a race and gender-based affirmative action program to address discrimination in its contracting. SMUD receives contracts from the federal government via the Departments of Energy, Transportation and Defense that require compliance with Title VI of the Civil Rights Act of 1964, which prohibits discrimination by entities receiving government funding. Plaintiffs sought to invalidate SMUD’s affirmative action program arguing that California’s Proposition 209 bars it. Although Prop 209 subsection (e) specifically excludes the application of Prop 209 to federally funded programs where affirmative action is required, plaintiffs take the position that 209(e) may only be invoked by a state contractor after loss of funding by order of the federal contractor. The Sacramento Superior Court granted a permanent injunction prohibiting SMUD from operating an affirmative action program. Based on the Court’s ruling, SMUD would have to lose its federal funding before it can establish it is entitled to the federal funding exception of Prop. 209.

Amici argued that Prop 209 (e), the federal funding exception, allows SMUD to voluntarily establish a race-conscious remedial program as required by federal law. It may take action to expand the contracting programs to ensure there is no disparate impact on racial minorities, prior to a finding of unlawful racial discrimination and loss of federal funding. The case is pending before the Court of Appeal.

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Denial of Tenure in Higher Education
Weinstock v. Columbia University U.S. Court of Appeal, Second Circuit (99-7979)

In December 1999, ERA submitted an amicus brief to the Second Circuit in this tenure case on behalf of the American Association of University Women, Association for Women in Science, and the National Employment Lawyers Association. Dr. Weinstock, a professor of biochemistry at Barnard College, had been denied tenure by Columbia after Barnard, at every level, had approved her and a joint Barnard-Columbia committee had voted in her favor as well. Suing under Title VII and Title IX, she contended that the decision to deny her tenure was based on her sex. After the district court granted Columbia’s motion for summary judgment, Dr. Weinstock appealed to the Second Circuit.

ERA’s amicus brief argued that Dr. Weinstock’s tenure battle cannot be viewed outside of its context: a woman science professor in a male-dominated field whose superiors at Columbia evaluated her through a gender-tainted lens. In particular, it pointed out that only 15% of Columbia’s Natural Sciences faculty is female although 52% of Columbia’s undergraduates, and 45% of nationwide doctorates, are awarded to women. Moreover, the record was replete with evidence that easily identifiable sex stereotyping pervaded Columbia’s decision-making process. Both of these factors—a gross statistical disparity and gender stereotyping—are powerful indicators of discrimination.