Title VII of the Civil Rights Act of 1964 bars discrimination based on sex, which effectively means gender. Those who assume that this prohibition protects only women are sorely mistaken: It applies to men as well.
That’s not to say that women don’t bear the brunt of gender discrimination. Fifty years after the enactment of Title VII, they are still unacceptably underrepresented in corporate senior leadership positions and on boards, and it is beyond argument that there are clear business benefits to attaining gender diversity at all levels. But discriminating against men is not the way to get there.
Assume an employer has seven members on its senior leadership team—all men. When one retires, you see a great opportunity to increase gender diversity by hiring a woman. Is that an acceptable strategy?
No, it’s not. While that impulse might come from a good place, you cannot reserve a position; doing so would be per se gender discrimination.
What about favoring a woman in the hiring decision? That is giving her a “plus.” Generally speaking, the federal courts have said “no” except under extremely narrow circumstances.
Many articles have tried to make the business case for greater equality by proliferating positive stereotypes. See, for example, the following titles:
Here’s the problem: Reverse the genders, and we would all be screaming “gender bias!” Remember that Title VII’s prohibition knows no gender. In a workplace, saying women are better leaders than men invites discrimination claims. Be careful in training, decision-making or other communications not to create direct evidence of gender bias against men.
Consider the following: Women are often thought to be more collaborative and men more authoritarian, and cooperative leaders are generally considered more effective than strict ones. Does that mean we can conclude that women are better leaders?
No, we can’t. What you should focus on instead is “competency,” not gender. There are, after all, collaborative men and authoritarian women. If we emphasize gender, we may be making the wrong business decision and creating legal risk.
Such positive stereotyping can also hurt women. How? Well, as the standard for female leaders becomes inflated, women may find that being just as good as men is no longer good enough.
Suppose, for example, that when you rate job candidates, you consider the average leadership score for a man to be a 5 out of 10, while that for a woman is a 7. You interview two applicants of opposite genders and rate the woman a 6 and the man a 5. Even though the woman is a stronger candidate, the man looks better relative to your self-imposed standards—and thus may be more likely to snag the position.
Some women have been denied operations positions based on stereotypical notions that they aren’t tough enough to lead. But what if a job requires a nurturing touch? Don’t men run the same risk of being discriminated against if they are judged as insufficiently tender?
In the HR profession, for example, such stereotypes may hurt men searching for positions that require attributes such as being emotionally supportive.
An attendee at an HR conference once told me that he was denied a promotion into a senior-level HR position because the decision-makers thought he would not be perceived as “warm” enough. Was “warm” a code word for female? Possibly. The fact that the person he sought to replace was purportedly called the “workplace mom” would certainly add fuel to his litigation fire.
On a related note, a man who actively cares for his family and tends to other work at home may have to contend with the converse question: Why isn’t he more ambitious? Why is he leaving early again for his daughter’s soccer game? Some company cultures frown upon men who seek work/life balance in a way that they encourage for women.
Managers need training on helping employees achieve work/life balance so that men are given the same flexibility as women—but training alone is not enough. Periodically, we need to drill down and self-assess (ideally under attorney-client privilege) whether conscious or unconscious bias has played a role in our decision-making.
The Right Path to Diversity
There are many things HR professionals can lawfully do to boost diversity, such as:
- Determining if the number of years of required experience included in a job posting is unnecessarily high and has an adverse impact on women, who are still more likely than men to take time off to raise a family.
- Circulating resumes without names so unconscious bias does not affect who is considered for an interview.
- Having mixed-gender teams interview candidates to reduce the likelihood that any one “like-me” bias—a predisposition toward those who are similar to the interviewer—will predominate.
- Creating opportunities for women to shine—however, don’t accomplish that by reserving positions or conferring automatic advantages based on gender. Doing so could mean the difference between “laudable” and “unlawful.”
The seminal case on gender stereotyping took place more than 25 years ago, in 1989—Price Waterhouse v. Hopkins. Frankly, it’s hard to believe it took the Supreme Court to resolve the dispute about whether gender stereotyping is a form of sex discrimination. Clearly, it is.
In Hopkins, the female plaintiff did not conform to the gender-based stereotype of femininity. It’s now obvious that the same type of claim can be made by men based on a different set of biased notions.
At the end of the day, typecasting either gender can hurt both of them—and your business. The truth is that there’s no such thing as a positive stereotype.
Jonathan A. Segal is a partner at Jonathan A. Segal is a partner at Duane Morris in Philadelphia and New York City. Follow him on Twitter @Jonathan_HR_Law.
Web ExtrasHR Magazine article: 10 Tips to Fight Gender Discrimination
SHRM article: EEOC Claim of Discrimination Against Men Resolved
SHRM article: 9th Cir.: State Didn’t Violate Title VII by Barring Men from Female-Prison Jobs
Article: Women in Leadership (Pew Research Center)
Article: Women on Boards: Another Year, Another Disappointment (Harvard Business Review)
Article: Gender Diversity in the Workplace (Business Women Rising)
SHRM webpage: SHRM Online Legal Issues home page