When is Sex Stereotyping Workplace Discrimination?
The simple answer to the question proposed by the title of this article is, of course, “whenever the employee is treated poorly or denied opportunities at work because of sex stereotyping.” While this answer is true, it doesn’t tell us a lot about what sex stereotyping is, and what kind of behavior employers must avoid to stay out of legal hot water.
A recent federal case and two law review articles provide guidance to apply broad anti-stereotyping principles to particular circumstances in your workplace. Although the opinions contained in these sources differ on many points, they agree that taking an adverse employment action against a worker because of sex stereotyping is sex discrimination in violation of Title VII.
Sex and Gender
Although much could be said about the definitional similarities and differences between the terms “sex” and “gender,” this article will use the two terms interchangeably to keep this discussion focussed on issues related to stereotyping. Generally, the same principles that apply to sex stereotyping would also apply to gender stereotyping.
Federal Court Expands Sex Stereotyping Prohibition
This month, a federal court in Pennsylvania made the remarkable finding that “discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.” This finding is remarkable because the Equal Employment Opportunity Commission (EEOC), which litigated this case, has vigorously argued that Title VII’s prohibition against discrimination because of sex covers sexual orientation discrimination claims that “necessarily involve sex stereotyping, gender-based associational discrimination, and consideration of an individual’s sex [e.g., that the person would have been treated differently if they had been a different gender].” Here, the court rolled stereotyping, associational bias, and gender bias into sex stereotyping, and said that sexual orientation discrimination is nothing other than illegal sex stereotyping.
According to the facts alleged in the court’s decision, Dale Baxley, a gay man who worked as a telemarketer for Scott Medical Health Center, was routinely subjected to a barrage of insults such as “f**king faggot can’t do your job” and, in reference to Dale’s relations with his partner, “Who’s the butch and who is the bitch?” Baxley eventually resigned, claiming he was forced to do so rather than endure a hostile work environment.
The EEOC sued Scott Medical on Baxley’s behalf for sexual orientation discrimination in violation of Title VII. Scott Medical argued that the court should dismiss the case because “Title VII does not prohibit discrimination based on sexual orientation.” The court disagreed.
First, the court briefly reviewed Supreme Court precedent that has incrementally broadened Title VII’s protections and withstood three decades of workplace litigation. Ultimately, the court relied on Price Waterhouse v. Hopkins, a 1989 case in which the Supreme Court ruled that requiring a female accountant to “”walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” in order to become a partner in the firm was impermissible sex stereotyping.
Applying Price Waterhouse to Baxley’s case, the court wrote that “there is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. . . . Forcing an employee to fit into a gendered expectation – whether that expectation involves physical traits, clothing, mannerisms or sexual attraction – constitutes sex stereotyping.”
Because Title VII covers sexual orientation discrimination as “a subset of sex stereotyping,” the court refused to dismiss the case, concluding:
That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.
US EEOC v. Scott Medical Health Center [(USDC WDPA 2016) no. 2:16-cv-00225-CB]
Is All Sex Discrimination Sex Stereotyping?
The court in the above case did not say that all sex bias falls under the legal prohibitions against sex stereotyping, but it did say that sexual orientation discrimination is a form of sex stereotyping. Although there is no indication that the court’s opinion was influenced by any particular law review article, the court’s general principle favoring folding at least some workplace bias into sex stereotyping was foreshadowed by Stephanie Bornstein’s Unifying Antidiscrimination Law Through Stereotype Theory.
In that article, Bornstein argues that lawsuits alleging workplace discrimination based on sex stereotyping against family caregivers and transgender employees “have pushed federal appellate and district courts toward a contemporary understanding of the operation of bias,” and she calls on attorneys and courts to adopt the idea of sex stereotyping as a “unified approach to Title VII litigation” applicable to all protected categories. However, sex stereotyping cases based on caregiver or transgender status “remain on the margins, siloed in their own category of litigation,” according to the author. Examples of this category include terminating a pregnant woman because the employer thinks she should stay home with her child or failing to hire a transgender woman who is biologically male for not acting or dressing in a traditionally masculine way.
Impermissible & Permissible Sex Stereotyping
The Two Laws of Sex Stereotyping, by Noa Ben-Asher, is another informative read, this one focusing on impermissible and permissible sex stereotyping. This article starts by noting several inconsistencies in the law of sex stereotyping:
- Gender-specific dress and grooming codes are legal for students, employees, and prisoners, but employers may not require a female employee to walk, talk, dress, and groom herself “more femininely”
- It’s legal to post a “men only” sign on a restroom but not on a courthouse door
- An employer may legally refuse to hire a female guard at an all-male prison but may not refuse to hire a woman as a researcher at a physics lab
- Employers may not refuse to hire a transgender applicant, but may (in some jurisdictions) deny a transgender woman access to a woman’s restroom
Ben-Asher advances the view that sex stereotyping is prohibited when it is based on traditions that impose a strict division of labor between the sexes (e.g., that women are homemakers and men are breadwinners), and permitted when based on cultural or community norms as applied to real or perceived biological differences.
When it comes to permitted sex stereotyping, Ben-Asher notes that while courts have upheld differing dress and grooming codes for men and women so long as the codes do not burden one sex more than the other, a similar “separate-but-equal” justification did not carry the day in racial discrimination cases, such as the landmark Brown v. Board of Education case. State laws with different child-custody standards for unwed fathers and mothers are legally permissible based on a biological differences justification. Restroom segregation has been upheld under the rationales of privacy and sexual assault prevention. However, the law in this area is evolving, as Ben-Asher acknowledges, for transgender employees.
Because many (if not all) forms of sex stereotyping arguably harm the liberty interests of the excluded gender, Ben-Asher concludes that the law of sex stereotyping should be re-examined and changed when such harm occurs: “When individuals are classified as male or female for the purpose of exclusion from job opportunities or public spaces, they suffer a harm to their liberty.”
What’s the Answer?
This article opened with this proposed answer to the question posed by its title: “whenever the employee is treated poorly or denied opportunities at work because of sex stereotyping.” But there was much more to say (and this article barely scratches the surface) because it’s important to understand the particular application of this general principle.
Scott Medical Health Center found out the hard way that constant insults targeting a gay man based on his sexual orientation are a form of sex stereotyping in violation of Title VII. That case in turn relied on the reasoning of Price Waterhouse, which teaches us that a company may not condition employment opportunities on whether a woman acts “feminine” (or whether a man acts “masculine”).
It’s also true that there are limits to when sex stereotyping violates Title VII. For example, sex stereotyping is generally illegal when it negatively impacts employment based on caregiver or transgender status, or when employment opportunities are foreclosed to someone who does not meet gender-based behavioral expectations. But courts have allowed sex stereotyping in some instances, such as sex-specific dress codes that do not burden one sex more than the other (or that are required by the employer’s religion, as one outlier case held).
These examples give some specific guidelines to navigate the outer edges of the impermissible and the permissible. However, the legal interpretation of Title VII has undergone many changes since its 1964 inception and will continue to do so. The current line between impermissible and permissible sex stereotyping will no doubt continue to be redefined by courts and legislatures, along with social mores. If your employees fail to keep up with these changes, your company may wind up on the wrong side of the line — and saddled with a bill for costly damages. Better to teach them in advance where the line is, and how to avoid crossing it.
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