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Gender stereotypes are not a thing of the past, and will be reflected in the future of employment law litigation.
As we all know, Title VII of the Civil Rights Act of 1964 prohibits discrimination on account of sex, race, color, religion and national origin. Too often, though, managers fail to grasp that Title VII’s mandate bars employers from acting on gender stereotypes. In 1989, the U.S. Supreme Court held that an employer may be guilty of engaging in unlawful sex discrimination, even if the employer does not directly consider gender but rather relies on gender stereotypes about the individual. At the time, the decision was heralded as groundbreaking. Today, it is hard to imagine any other outcome. While the impropriety of gender stereotyping is clear, the legal consequences are sometimes broader than many HR professionals realize. Plus, in some cases, laudable messages in the context of diversity programs may be seen as impermissible stereotyping.
In Price Waterhouse v. Hopkins (490 U.S. 228 (1989)), the key issue was whether Ann Hopkins was denied partnership because of her sex. From the record, it appears that there was no question that she was intellectually capable and very successful in terms of client relations and business generation. To quote the district court judge, she “was generally viewed as a highly competent project leader who worked long hours, pushed vigorously to meet deadlines and demanded much from the multidisciplinary staffs.” However, Hopkins’ pushing hard may have been too much of a good thing. According to the district court, both “supporters and opponents of her candidacy indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with and impatient with staff.” These were undeniably legitimate concerns. However, there also were indications that some of the negative reaction to Hopkins’ behavior may have been attributable to her gender. One partner described her as macho. Another suggested that she overcompensated for being a woman. A third recommended that she take a course at charm school. And one of the key decision-makers told her that, to improve her chances for partnership, Hopkins should “walk more femininely, wear make-up, have her hair styled and wear jewelry.” The Supreme Court agreed with the district court that Price Waterhouse had legitimate reasons to deny Hopkins partnership in light of some of the problems with her interpersonal style. But the Supreme Court also agreed with the district court that some of the comments made about Hopkins were based on a stereotypic view of what is acceptable behavior for a woman. As for the legal significance of gender stereotyping, the Supreme Court stated “we are beyond the day when an employer can evaluate employees by assuming or insisting that they match the stereotypes associated with their group. ... An employer who objects to aggressiveness in women but whose positions require this trait place women in an intolerable Catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.”
The ‘Scarlet B’
In light of increased sensitivity to gender stereotyping and management training, it is not likely that knuckle-dragging comments of the kind made in Hopkins would be repeated today in most responsible companies. However, that does not mean that gender stereotypes are a thing of the past. The Catch-22 aptly described in Hopkins remains a real obstacle for women in leadership positions. If a woman is direct and assertive, she may get branded with a scarlet “B.” If she is more indirect and collaborative, she may be dismissed as nice but ineffective. This very real Catch-22 contributes to the glass ceiling that still exists in many organizations. To borrow from pop culture, Donald Trump is often praised as being “in control,” while Martha Stewart is blasted as being “controlling.” Of course, it is not just a legal but also a business issue. In this regard, there are a number of studies that show a clear link between gender inclusion and a stronger bottom line. In 2004, Catalyst released a study concluding that companies with the highest percentage of women among their top officers had a return on equity 35.1 percent higher than those with the fewest women. The cost of stereotyping is enormous! However, in the absence of “smoking gun” evidence of the kind set forth in Hopkins, how can employers eliminate stereotypic assumptions that create legal risks and business costs? Training on the issue is a good start. Some stereotyping can be avoided if decision-makers are made aware of its existence. While training is necessary, it is not sufficient. HR professionals can and should play a key role in scrutinizing the reasons given for critical employment decisions to see if the reasons may reflect gender stereotyping. If something sounds and quacks like a duck, then it’s probably a duck. Except when it’s not. For instance, in Kahn v. Fairfield University (No. CIV.A. 302CV1576JCH (D. Conn. 2005)), the plaintiff was denied promotion to dean. It was pretty clear that her objective credentials were stellar. As in Hopkins, the problems with her performance were more subjective in terms of her interpersonal style. Individuals felt that she was condescending. Others complained that she lacked basic courtesy in not listening to them. And, still others complained that she was “arrogant” at meetings, going through her own agenda regardless of whether she had faculty or departmental support. The court did not reflexively conclude that these criticisms automatically equated to gender stereotypes. The court acknowledged that they could be consistent with a nondiscriminatory reason for denying the employee the desired promotion.
Get Concrete Examples
The problem in the case was that the individuals who expressed these concerns were, but for a few examples, unable to provide specific behaviors to support them. In the absence of a clear factual predicate for the unflattering criticisms that sounded potentially stereotypic, the court denied the employer’s motion for summary judgment. When a contemplated adverse action is based on a label that may sound stereotypic, at a very minimum, HR should press the decision-maker to determine what specific behaviors support the less-than-laudable conclusion. The decision-maker should be asked for concrete examples of what the employee did or did not do. But that’s only the beginning. Even when concrete examples are given, HR should look to see whether the decision-maker has applied the same kinds of criticisms to men who have engaged in the same or similar behaviors. For example, Martha Stewart often has been criticized for being cold and calculating. But is it fair to expect all executives to be as warm and nurturing as the late Ken Lay? HR also may want to look at the optics in terms of other decisions made by the same decision-maker. What kind of picture will they paint for the jury? If the decision-maker has promoted a number of women into power positions, that helps. On the other hand, if he just cannot find the “right” woman no matter how hard he tries, perhaps the problem is with his unreasonable expectations and not the talent he is evaluating.
Gender stereotyping is not limited to evaluating assertiveness or aggressiveness. It also may apply to a subgroup of women—working women with children. The Equal Employment Opportunity Commission (EEOC) highlighted its concern for gender stereotyping against caregivers, including women with children, in a highly publicized guidance issued on May 23. By way of background, the Supreme Court has long recognized a form of discrimination known as “sex-plus” discrimination. That occurs where a person is subject to disparate treatment based not solely on her or his sex, but rather her or his sex in relation to another characteristic, such as marital status or parental status. In Phillips v. Martin Marietta Corp. (400 U.S. 542 (1971)), the employer refused to hire women with preschool-aged children while the employer would hire men with preschool-aged children. In holding that the employee stated a viable cause of action for sex discrimination, the Supreme Court dismissed the argument that there could be no Title VII violation simply because not all women were affected by the policy. Instead, the court held that Title VII prohibited the use of “one hiring policy for women and another for men.” Of course, today, responsible employers don’t have separate policies for women and men with young children. But just as conscious and unconscious stereotypes about the roles of women may affect how women are evaluated in terms of their leadership style, so may conscious or unconscious stereotypes about the impact of children on a woman’s ability to perform at work affect the woman’s opportunities. A case out of the 2nd Circuit is instructive. In Back v. Hastings on Hudson Union Free School District (365 F.3d 107 (2004)), a school psychologist was denied tenure. The school claimed that she was terminated because she lacked the requisite organizational tools and interpersonal skills. In contrast, she claimed that these reasons were a pretext and that the real reason was because the employer assumed that she could not maintain the necessary devotion to her job and be a good mother at the same time. There were some smoking gun allegations. For example, the employee alleged that the employer not only asked her to plan on spacing her offspring but also expressed concern that a mother with tenure and young children might not show the necessary level of commitment and devotion to her job. The court correctly stated that “just as it takes no special training to discern sex stereotyping in a description of an aggressive female as requiring a course at charm school … so it takes no special training to discern stereotyping in the view that a woman cannot be a ‘good mother’ and have a job that requires long hours.” Significantly, the employee in Back offered no evidence of how men with children were treated. While the court suggested such evidence could have made the employee’s case even stronger, its absence was not fatal. In other words, there can be discrimination based on sex (or sex-plus) even without showing a comparator who was treated more favorably.
The kinds of comments at issue in Back are patently offensive. Yet the “thinking” that underlies them may surface in other ways in workplaces but without the corresponding spoken words. Women and men alike value and may need flexibility in their work arrangements to balance work and life. While work/life balance is gender neutral in theory, as long as women have greater responsibilities in terms of child care, it is connected to gender in fact. According to a 2003 report by Catalyst, 15 percent of women with a master’s of business administration (MBA) work part time—contrasted with only 1 percent of men with an MBA. A formal or de facto full-time-only rule may be gender neutral on its face but will have a disparate impact on women. To prevent a maternal wall from supporting the glass ceiling, organizations need to reassess their policies and practices with regard to flexibility. This includes, for example, part-time as well as flexible schedules. This is not simply to avoid legal problems. We need part-time work because there are not enough stellar full-time workers to meet our needs. More specifically, to prohibit or devalue part-time work is to exclude a disproportionate number of highly qualified women and to narrow the pool of top-notch talent. When an employer excludes a significant portion of the best and the brightest, the employer’s only option, in a highly competitive employment market, is to lower its standards.
Who Gets Plum Assignments?
It is not enough to develop progressive policies. Progressive policies with decision-makers who do not buy into them raise expectations and risks without delivering rewards. Decision-makers need to receive training on the importance and value of part-time work. In particular, employers should debunk directly the malignant myth that mothers with small children are not as committed to work or as capable of meeting expectations for necessary deliverables. This message needs to come from the top. Senior management should make clear that the organization will not tolerate words or actions that devalue the contribution of employees with children, whether full time or part time. This includes instructing managers not to make paternalistic choices for women with children in assignments. For example, don’t assume women with children don’t want the plum assignments simply because those assignments involve substantial travel. To minimize the risk that stereotyping may affect the assignment process, there should be not only training of managers on assignments but also a process to monitor how assignments are meted out. An ad hoc assignment process may result in de facto discrimination in the process. A critical part of breaking down the maternal wall is to recognize that some decision-makers still focus too much on face time and not enough on the bottom line. Some managers still believe “If I cannot see what you are doing, then I won’t know that you are working.” There may have been a time where face time was defensible. But with technology that allows all of us to be connected anywhere all of the time, the need for face time becomes more difficult to justify in many circumstances. A rigid stance on face time pushes away talent and may create evidentiary support of a corporate culture that is hostile to women with children. We need to help our leaders control their need for control. SuperwomanTo counter these negative stereotypes, sometimes we sell positive stereotypes. For example, in the context of gender, the “benign” stereotype we are most likely to hear is that women actually may be stronger than men in terms of interpersonal skills. Even if well intended, such benign stereotypes are problematic. As an initial matter, saying that women are interpersonally stronger than men may serve as the factual predicate for a gender bias claim by a man in a position requiring strong interpersonal skills. One area in which men may suffer from gender-biased stereotypes is in their ability to be nurturing and form strong relationships. Second, to the extent we generalize that women have a certain skill set, there may be a negative implication that they do not have another critical skill set. Another way of saying someone is interpersonally stronger is to say that they are more sensitive. It is not a difficult leap to go from “more sensitive” to “too sensitive” for line positions. Finally, saying that women are stronger than men interpersonally means that women who are equal to men on this criterion may actually seem weaker than men. It’s good to sell the values of diversity as a legal and business matter. However, in the process of selling diversity, we need to be careful that we do not stereotype in the name of sensitizing and create higher standards for those we are purporting to help.
Undoubtedly, in some cases, gender stereotyping reflects hostility. To deny misogyny is to deny reality. In other cases, it is more a product of ignorance and surprise. Some react differently to women in power, not because they dislike the idea of women having power, but because seeing women in power is relatively new to them. In many respects, breaking stereotypes is about eliminating assumptions. It means taking a fresh look at how we view the world. That’s why, whenever we talk about the man in the moon, she smiles.
Editors Note: This article should not be construed as legal advice or as pertaining to specific factual situations.Jonathan A. Segal, Esq., is vice chair of WolfBlocks Employment Services Group, a member of the firms executive committee and the managing principal of the WolfInstitute, the training and educational arm of the Employment Services Group. His practice concentrates on preventive planning, counseling and training to maximize an employers legal compliance and to minimize an employers exposure to litigation and other adversarial challenges.
Editors Note: This article should not be construed as legal advice or as pertaining to specific factual situations.
Jonathan A. Segal, Esq., is vice chair of WolfBlocks Employment Services Group, a member of the firms executive committee and the managing principal of the WolfInstitute, the training and educational arm of the Employment Services Group. His practice concentrates on preventive planning, counseling and training to maximize an employers legal compliance and to minimize an employers exposure to litigation and other adversarial challenges.
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