The opinion of the court was delivered by: WARD
In this action plaintiffs Equal Employment Opportunity Commission ("EEOC") and Margaret Hasselman allege that defendants Sage Realty Corporation ("Sage"), Monahan Commercial Cleaners, Inc. ("Monahan Cleaners"), and Monahan Building Maintenance, Inc. ("Monahan Building"), unlawfully discriminated against Hasselman on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 ("the Act"), as amended, 42 U.S.C. §§ 2000e-2000e-17.
After considering the evidence adduced at trial, the Court finds that plaintiffs have established unlawful discrimination by a preponderance of the credible evidence.
Plaintiff Hasselman left the employment of Monahan Cleaners on June 4, 1976. On August 11, 1976, she filed a charge with the EEOC alleging sex discrimination by defendants Sage and Monahan Cleaners, among others.
Notice of the charge issued on August 17, 1976. The EEOC investigated the charge and on August 22, 1977, issued a decision finding reasonable cause to believe that Sage and Monahan Cleaners had discriminated against Hasselman with respect to the terms and conditions of her employment and had discharged her because of her sex.
Pursuant to section 706(b) of the Act, 42 U.S.C. § 2000e-5(b), the EEOC, by notice dated August 22, 1977, invited Sage and Monahan Cleaners to participate in settlement discussions in an effort to resolve informally the dispute brought about by Hasselman's sex discrimination charge. Although Sage and Monahan Cleaners both accepted the EEOC's invitation, the settlement negotiations between them and Hasselman did not come to fruition, and by letters dated September 26, 1977, the EEOC notified Sage and Monahan Cleaners that it had determined its effort to conciliate the case had been unsuccessful.
On October 16, 1978, the EEOC issued to plaintiff Hasselman notices affording her the right to sue Sage and Monahan Cleaners. Shortly thereafter, on October 30, 1978, Hasselman exercised her statutory right under section 706(f)(1) and moved to intervene as a plaintiff in this action, which had already been commenced by the EEOC on September 29, 1978. The Court finds that all of the conditions precedent to the institution of this action required by section 706 have been fulfilled.
Plaintiff Hasselman was employed as a lobby attendant in an office building located at 711 Third Avenue in New York City's Borough of Manhattan from February 1973 until June 4, 1976.
At all times relevant to this action Sage managed the building at 711 Third Avenue. Monahan Building, under contract to Sage, currently provides cleaning services at 711 Third Avenue and at other Sage-managed buildings. As part of these services, Monahan Building retains on its payroll the attendants designated by Sage to serve in the lobby of 711 Third Avenue. Hasselman was on the payroll of Monahan Cleaners in 1976 when the acts of sex discrimination at issue here occurred. At that time Monahan Cleaners performed essentially the same services for Sage as Monahan Building performs now. In August 1977 Monahan Building replaced Monahan Cleaners as cleaning contractor for 711 Third Avenue.
Although it continues to exist on paper as a New York corporation, apparently Monahan Cleaners no longer has any assets and is not actively engaged in business. Because Monahan Cleaners did not appear at trial to answer the allegations made against it, at the commencement of trial the Court noted the default of Monahan Cleaners and with respect to this defendant conducted the trial as an inquest.
Accordingly, the Court's decision with respect to defendants Sage and Monahan Building also applies to Monahan Cleaners.
In February 1973 Hasselman answered an advertisement in The New York Times. She met with Sage's building manager for 711 Third Avenue, Thomas Baxter, who described the duties of the lobby attendant position. Later, on the same day she met Baxter, Hasselman was interviewed by Melvyn Kaufman, the president of Sage, at his office at 437 Madison Avenue. After discussing with Hasselman her prospective duties as a lobby attendant, Kaufman approved her employment. She was requested to report the following week to 711 Third Avenue to begin work.
When she reported to 711 Third Avenue the next week, Hasselman was directed by Baxter to proceed to the offices of National Cleaning Contractors ("National"), on whose payroll she was placed,
where she completed certain personnel forms. She then returned to 711 Third Avenue and at that time received instructions on her duties from Baxter and her two new coworkers (one male, one female). Though Hasselman was carried on the payroll of National (and later Monahan Cleaners), Sage, acting in most cases through Baxter, trained Hasselman, established her job duties, and supervised her day-to-day work from the time she commenced her employment in February 1973 until her discharge on June 4, 1976. On at least two occasions during Hasselman's employment, in January 1974 and in March 1975, Sage distributed a document entitled "Instructions for Ground Floor Personnel."
Plaintiff Hasselman's job as a lobby attendant included security, safety, maintenance and information functions. For instance, as a lobby attendant Hasselman kept an eye on the elevators to make sure they were in working order and reported any elevator problems to maintenance personnel. She offered assistance and information to people entering the building and kept those who did not belong in the building from loitering. Hasselman's duties required her to replace defective light bulbs and to report any conditions in the lobby requiring the attention of cleaning personnel.
Sage furnished uniforms to all lobby attendants working in the buildings it managed. The uniforms were selected and paid for by Sage and after use remained Sage's property. During the period of Hasselman's employment, new uniforms were issued approximately every six months, each spring and fall.
The "Instructions for Ground Floor Personnel" (Mar. 31, 1975), referenced above, provided in no uncertain terms that the lobby attendants were to wear the Sage-issued uniforms at all times and that "NO EXCUSES FOR BEING OUT OF UNIFORM (WOULD) BE ACCEPTED." (Plaintiffs' exhibit 14, at seventh of 15 unnumbered pages; emphasis in original)
Effective October 31, 1975, the contract between Sage and National, under which National performed cleaning services for Sage, was terminated. On October 15, 1975, Sage entered into a contract with Monahan Cleaners, effective November 1, 1975, by which Monahan Cleaners was to perform cleaning services similar to those previously provided by National. The agreement preserved Sage's right to approve the employment of all lobby attendants, denominated in the October 15th contract as "lobby receptionists."
In February or March 1976 Sage commissioned a graphic design firm, Pamela Waters Studio Inc., to develop a design concept for the uniforms to be worn by Sage's lobby attendants during the following spring and summer seasons. The Waters Studio presented Kaufman, Sage's president, with several designs. Kaufman approved a uniform known as the Bicentennial uniform, apparently developed to celebrate the nation's bicentennial year. The outfit resembled an American flag. It consisted of broad stripes of red, white and blue material sewn together. Each stripe was approximately 13 inches wide, and the uniform bore three stars across the front.
The Bicentennial uniform was constructed in the shape of a red-white-and-blue octagon with an opening in the center for the lobby attendant's head. This spring 1976 outfit was to be worn as a poncho, or cape, draped over the shoulders, with snaps at each wrist and stitching in the form of tacks, one tack at each side. The uniform was otherwise open at the sides. Underneath the poncho the lobby attendants wore blue dancer pants and sheer stockings. The Bicentennial uniform was to be worn with white, low-heeled shoes. The lobby attendants were not permitted to wear a shirt or blouse, a Danskin, pants or a skirt under the outfit.
The Pamela Waters Studio retained a seamstress to manufacture the uniforms. Although Sage's female lobby attendants were of different sizes, the uniforms were supposed to be made in one size only.
Moreover, the outfits were poorly made, had uneven hems, and contained little additional fabric that could be used to enlarge the garments to fit different individuals.
The first Bicentennial uniforms were delivered to the lobby attendants on or about May 12, 1976. When Hasselman tried on her uniform, she found it short and revealing on both sides. Her thighs and portions of her buttocks were exposed, and understandably she was concerned about wearing the outfit in the 711 Third Avenue lobby.
Hasselman had been told by Sage that if she had any problems with her uniform she was to call the Pamela Waters Studio. She did so, complaining that her uniform did not fit properly. Shortly thereafter, Joan Petruska, an employee of the Waters Studio, came to 711 Third Avenue to inspect the fit of Hasselman's garment.
Petruska observed that the uniform was open above the thighs and that the blue dancer pants, worn underneath the outfit, were revealed when Hasselman assumed certain positions (positions she would likely be required to assume on the job). In addition, Petruska discovered, when Hasselman raised either of her arms the side of her body above the ...