Employers, “When you assume, you make an ass out of u and me.” – Oscar Wilde (or not?*)

By Fiona Ong - Shawe Rosental LLP

January 25, 2024

And employers should take heed, because making assumptions about employees when making employment decisions can certainly make you look like an ass (and by that, I do mean the donkey-like animal and not the body part. Honestly, keep your mind out of the gutter!). That was the lesson learned by Walmart, according to a recent EEOC press release.

The EEOC had sued Walmart for sex discrimination, claiming that Walmart refused to promote a female employee based on sex stereotypes about women with small children. Apparently, when asked why the employee was not promoted, “a store official noted that she had young children at home and that store management assumed she was not interested in advancing her career at Walmart long-term.” (Yikes – really? In this day and age?). And they promoted a woman without children instead (!!).

And to drive the point further home, the press release references the federal trial court’s quote of a U.S. Supreme Court case that the “‘pervasive presumption that women are mothers first, and workers second’ is among the sex stereotypes Congress has explicitly identified as impermissible.”  Unsurprisingly, the federal court summarily rejected Walmart’s (really rather cheeky) efforts to have the case dismissed before trial. Perhaps finally realizing just how bad the manager’s statement was, Walmart agreed to settle the case for $60,000, as well as provide training to management employees and report additional sex discrimination complaints to the EEOC.

This case emphasizes the importance for employers NOT to rely on stereotypes – whether it’s mothers with small children, women performing traditionally male roles (see our prior blog post on refusing to hire women for demolition and laborer positions), parents of disabled children (see our September 2019 E-Update, where the employee received less favorable assignments after disclosing that his daughter had severe medical issues), or older employees (see our February 2023 E-Update, where the employer assumed an older worker would have a shorter “anticipated length of service”). Or any other stereotypes. It is critically important to focus on the employee’s skills and abilities, rather than assumptions about how their personal circumstances may impact their work or interests. If those personal circumstances actually do impact the employee’s work in practice, then the employer may be able to reasonably consider them in the context of employment decisions – but it may be wise to consult with an employment attorney to ensure that the consideration is legitimate and legal.

There is a bonus lesson here – I’m not sure if the manager was prepped by counsel before meeting with the EEOC and making that wildly inappropriate statement. As I noted in that blog post referenced above, when facing a governmental investigation, call your attorney BEFORE your managers are interviewed by the governmental agency. Don’t ass-u-me you can handle it yourself!

*This quote is widely attributed to Oscar Wilde. But being the responsible, fact-based attorney that I am, I wanted to make no assumptions and to verify that dear Oscar actually said that. I found many commentators who blithely assumed that he said it – but none of them identified the actual source of the quote. The most responsible research I found on this burning question came from QuoteInvestigator.com, which debunked the Oscar Wilde theory. QI noted that this belief seemed to derive from a 2011 book, “Affiliate Program Management: An Hour a Day,” (yikes) which “implausibly assigned the quip” to dear Oscar. In fact, according to QI, the earliest printed reference appears in a 1957 advertisement, although the joke was likely already in circulation. QI believes the attribution should be anonymous.

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