In many situations, it is relatively easy to understand what constitutes discrimination on the basis of sex. For instance, you cannot refuse to hire an applicant because she is a woman or treat a female employee differently from a male employee because of her sex. The legal requirements become more uncertain, however, when an employee claims you engaged in unlawful sex stereotyping, as one Virginia employer recently learned.
What is sex stereotyping?
The sex-stereotyping theory of discrimination is derived from the U.S. Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins. In that case, the Court recognized a sex discrimination claim in which an employee is harassed or discriminated against for failing to conform to traditional gender stereotypes. In the Price Waterhouse case, a female accountant claimed she had been denied partnership in her accounting firm because some of the partners felt that she was “macho,” needed “a course at charm school,” and should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Court found that the firm discriminated on the basis of gender by acting on the belief that women should behave a certain way.
Since the Price Waterhouse case, the sex-stereotyping theory has been extended to cases in which an employee has been treated differently because of his actual or perceived sexual orientation, even though sexual orientation, in and of itself, is not entitled to legal protection. The U.S. 4th Circuit Court of Appeals has yet to adopt the sex-stereotyping theory of liability. However, the claim has been recognized by most other federal appeals courts, and it is likely that the 4th Circuit will adopt the theory should the issue be presented to it.
Employee alleges sex stereotyping
How sex stereotyping applies in situations involving an employee’s sexual orientation was recently addressed by a Virginia federal district court. In the case, a male employee, Raymond Henderson, filed suit in Richmond federal court, claiming that his employer, Labor Finders, subjected him to discrimination based on sexual stereotyping. The crux of Henderson’s allegations was that Labor Finders refused to assign him to prestigious projects and was reluctant to assign him to any projects at all because management felt that his failure to conform to accepted gender norms reflected poorly on Labor Finders and would displease its clients.
Henderson’s lawsuit included a number of specific instances in which Labor Finders reluctantly selected him for assignments when no one else was available. He asserted that Labor Finders’ reluctance was inconsistent with the assignment system applied to all other employees. He pointed to several instances in which his decision-making supervisors commented that he was a “faggot,” a “woman,” and “not a man.” He claimed those comments indicated unlawful bias on the basis of sex. Henderson also alleged numerous instances in which his supervisors took adverse actions against him because he didn’t conform to their opinions as to how men should act.
Court’s analysis
Labor Finders asked the court to dismiss Henderson’s lawsuit. In addressing Labor Finders’ arguments, Senior Judge Robert E. Payne explained that it is difficult to distinguish between discrimination on the basis of gender stereotyping (which is unlawful) and discrimination on the basis of sexual orientation (which is not illegal under either federal or state law). Judge Payne stated that as a result of the well- documented relationship between perceptions of sexual orientation and gender norms, gender-loaded language can easily refer to perceived sexual orientation and vice versa, which further complicates the analysis. Moreover, Judge Payne emphasized that the law doesn’t prohibit all forms of sexually based teasing, and a male employee cannot recover damages in cases in which the conduct is “gross, vulgar, male horseplay in a male workplace.”
The court concluded that Henderson had established a viable sex discrimination claim, even though Judge Payne acknowledged that the evidence might eventually demonstrate that the complained-of conduct was due to Henderson’s perceived sexual orientation or simple animosity―neither of which is unlawful.
Hostile work environment claim
In allowing Henderson’s suit to go forward, Judge Payne pointed to his allegations that in April and May 2011, he was subjected to a pattern of hostile behavior that included offensive language on a nearly daily basis and ultimately threats of violence. Additionally, Judge Payne noted that Henderson claimed he had made numerous efforts to report the objectionable behavior to senior management at Labor Finders, but rather than addressing the problem, his supervisors began spreading the word that he was a “troublemaker” who was not long for his job. Judge Payne found that the alleged behavior rose to the level of being objectively hostile to Henderson.
The court also found that Labor Finders could be liable for its employees’ actions because Henderson alleged that (1) he had made numerous attempts to notify management of the hostile treatment and (2) his supervisors had knowledge of the harassment and actually participated in the behavior. Henderson v. Labor Finders of Virginia Inc.
Takeaways
Be aware that sex stereotyping can result in a successful discrimination claim against your organization. To avoid this, you should have an employment attorney carefully review your policies to ensure you have appropriate safeguards in place to deal with gender and sexual orientation issues in your workplace. The last thing you need is a lawsuit alerting you that unlawful sex stereotyping is occurring in your organization.
Taylor S. Chapman is an associate with DiMuroGinsberg, a boutique litigation firm located in Alexandria, Virginia. She may be contacted at tchapman@dimuro.com.
‘Moreover, Judge Payne emphasized that the law doesn’t prohibit all forms of sexually based teasing, and a male employee cannot recover damages in cases in which the conduct is “gross, vulgar, male horseplay in a male workplace.”’
As a Human Resources Manager with many years experience in male dominated manufacturing and as a human being, I have a real problem with this interpretation of the law. No one should ever have to work in a hostile environment of any kind. Not even as a male in an all male workplace.
I find it sad that the courts have not consistently applied the same the same common sense to discrimination as they have to harassment. At least in harassment cases, the person who finds certain behavior offensive is expected to tell the offending party to stop. If it continues, then a case for a hostile enviornment can be made. It appears that Judge Payne used this model in coming to a decision.
As a Human Resources Director with 20 years of experience in a female dominated not for profit, social services industry, I have experienced biases and other other boarish behavior. Certainly it takes time and effort for individuals to reflect on their own perceptions and behavior and change. Taking an I’m right and you are wrong and a combative stance tends to cause individuals to get defensive and blaming rather than reflective, problem solving, and motivated. Unfortunately there are many that are in a position of authority that view responding to worker’s concerns as demeaning to their position and feel it is not their job to do so. These individuals tend to respond only to investigations and lawsuits and even then, they will believe they were right and the court was biased if it finds against them.