By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.
Title VII of the Civil Rights Act of 1964 (“Title VII”) expressly prohibits discrimination in employment “because of sex.” In 1989, the U.S. Supreme Court in Price Waterhouse v. Hopkins held that Title VII bars not just discrimination because of biological sex, but also gender stereotyping – failing to act and appear according to expectations defined by gender. The Court specifically opined: “In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”
In recent years, Title VII’s bar against gender stereotyping has taken on new significance. On November 4, 2016, a Pennsylvania federal court in EEOC v. Scott Medical Health Center, Inc. found: “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.” In 2011, the Eleventh Circuit in Glenn v. Brumby observed: “…discrimination against a transgender individual because of her gender-nonconformity is sex discrimination…” Discrimination in employment on the basis of sexual orientation and gender identity have thus been found by some courts to be forms of gender stereotyping outlawed by Title VII.
These developments beg the question: How far does Title VII’s bar against gender stereotyping potentially reach? The answer should be sobering to employers.
What are Some Common Gender Stereotypes?
Examples of improper gender stereotypes include the following:
Personality Traits: Women are expected to be passive and emotional and talk in a feminine manner; men are expected to be self-confident, unemotional and aggressive.
Physical Appearance: Women are expected to dress in a feminine manner, and wear make-up or jewelry; men are expected to dress in a masculine manner, have short hair and not wear make-up or jewelry.
Social Dynamics: Women are expected to be disinterested in discussions regarding masculine topics, such as sports and action films; men are expected to be knowledgeable regarding masculine topics, such as sports and action films.
Domestic Behaviors: Women employees are expected to be able to make coffee or pot luck dishes; men are not expected to do so.
Occupations: Women are expected to be primarily interested in clerical, teaching and nursing occupations; men are expected to be primarily interested in manual and management occupations.
Relationship Norms: Women are expected to be primarily interested in men; men are expected to be primarily interested in women.
What Gender Stereotypes Have Been Found to Support a Bias Claim Under Title VII?
Examples of cases in which cognizable claims under Title VII were stated based upon gender stereotypes include the following:
Doe v. City of Belleville: The Seventh Circuit held that a young man who was taunted by co-workers for wearing an earring and who was repeatedly asked whether he was “a boy or a girl” clearly stated a Title VII sexual harassment claim by alleging that “the way in which he projected the sexual aspect of his personality … did not conform to his co-workers’ view of appropriate masculine behavior.”
Nichols v. Azteca Restaurant Enterprises: The Ninth Circuit held that a waiter who was harassed by his co-workers for carrying a serving tray “like a woman” stated a claim for sexual harassment under Title VII because his antagonists were motivated by his gender-nonconforming behavior.
EEOC v. Boh Bros. Construction Co.: The Fifth Circuit held that the evidence supported the EEOC’s asserted sex stereotyping theory of same-sex harassment. This evidence showed that the harassment originated from an employee’s use of Wet Ones rather than toilet paper at work, which the employee’s supervisor viewed as “kind of gay” and “feminine.”
Gonzales v. Marriott Intl., Inc.: A California federal court refused to dismiss a Title VII claim by a female employee against Marriott alleging sex stereotyping because it made reasonable accommodations for other recently-pregnant employees, but not for her because she was a gestational surrogate.
What are the Takeaways for Employers?
Forcing an employee to fit a gender expectation – whether that expectation involves personality traits, physical appearance, social dynamics, domestic behaviors, occupations or relationship norms – constitutes gender stereotyping and violates Title VII. The reach of Title VII thus extends beyond gender animus or bias and can include subjective preconceptions regarding a particular gender borne merely from personal experience, ignorance or mass media portrayals.
As part of an employer’s overall strategy for preventing discrimination in the workplace, therefore, employee handbooks, supervisory training and harassment training must thus necessarily address gender stereotyping. The consequences of not adequately combating gender stereotyping include low employee morale and productivity, employee turnover and costly litigation.