Sexual - PowerPoint Presentation

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Sexual Stereotyping &Gender Identity In The WorkplacePresented by:Susan Fahey Desmond| Jackson Lewis LLP Slide2

SEXUAL STEREOTYPING QUIZ1. Would you rather bake or grill?2. Did you play with dolls or cars growing up?3. Where do you spend your spare time? A. Clothing Stores B. Home Improvement Stores C. Bookstores D. Sporting Goods Stores E. At HomeSlide3

SEXUAL STEREOTYPING QUIZ4. How concerned are you about your appearance? A. Not very B. Somewhat C. Very5. How much money do you spend per month on your hair? A. Less than $50 B. Less than $100 C. More than $2006. Do you regularly receive manicures/ pedicures?Slide4

SEXUAL STEREOTYPING QUIZ7. How many pairs of shoes do you own? a. Do you own clogs? b. Do you own cowboy boots? c. Do you own golf shoes? d. Do you own hiking boots?8. In which subject did you excel at school? A. Math B. Theater C. English D. Physical Education Slide5

SEXUAL STEREOTYPING QUIZ9. What is your favorite form of entertainment? A. Boxing B. Cher concerts C. WNBA games D. Book club meetings E. Watching drag shows F. TV sports10. Who pays the bills in your household?Slide6

SEXUAL STEREOTYPING QUIZ11. What did you dream of becoming when you grew up? A. Firefighter B. Rock star C. Athlete D. Parent E. LibrarianSlide7

SEXUAL STEREOTYPING QUIZ12. What type of magazine do you read most often? A. Fashion/Entertainment B. Automotive C. Sports D. Home Decor/Remodeling E. Chess13. What type of car do you drive? A. Subaru B. Porsche C. Mustang D. Mini Slide8

SEXUAL STEREOTYPING QUIZ14. What best describes your job title? A. CEO/Executive B. Administrative/Support C. Human Resources D. Finance/Accounting E. ManagementWho cleans your home/apartment?Who takes out the garbage?Slide9

SEXUAL STEREOTYPING QUIZ17. Who makes the home furnishing decisions? A. You B. Your partner C. Your decorator D. VALASSIS18. Do you leave the toilet seat up or down?19. As a child, did you imagine what your wedding would be like?Slide10

Have you ever…..?Received flowers at work?Spent a weekend fishing? (If so, did you bait your own hook?)Ever been afraid to walk outside at night?Ever worn high heels?Worried about the thread count of your sheets?Slide11

Gender Identity and How it Differs from Gender ExpressionGender identity is a person’s innate sense of his or her gender.Gender expression is the way in which a person presents his or her gender to the outside world.Slide12

What is sex stereotyping?Whether individuals identify as male or female, gay, lesbian, bisexual, heterosexual or transgender, many people transgress traditional gender roles:a female with short hair is called "sir" in public; a boyish-looking lesbian receives curious glances or angry stares in the ladies room; a gay teenager is reprimanded for "not acting like a man." All of these individuals face bias based on preconceived notions of gender – what it means to look and act like a man or a woman.Slide13

Has Sex Stereotyping Become Mainstream?During a Republican National Convention, Arnold Schwarzenegger declared: "And to those critics who are so pessimistic about our economy, I say: Don't be economic girlie men." Schwarzenegger first used the "girlie men" term to attack his political opponents. Then, he used it to characterize the California legislators with whom he disagreed regarding the state's budget. Slide14

Has Sex Stereotyping Become Mainstream?Some individuals offended by Schwarzenegger’s comments asked for an apology. Instead of apologizing, a spokesperson for Schwarzenegger described the comment as an “an effective way to convey wimpiness.” Later, Schwarzenegger complained that people should lighten up and that the term was meant as “a joke.” Slide15

What Other Expressions Denote Sex Stereotypes?She was told she should “show her softer side” more often.At the meeting, she “took it like a man.”He needed to “be his own man.”He’s just being a “sissy.”“Man up.”He/She throws like a girl.Comparisons:Strong men vs. domineering womenAssertive men vs. aggressive womenSlide16

Overview of Federal Gender Discrimination LawsThere is no federal law that protects against discrimination based on gender identity or expression. As currently drafted, the Employment Non-Discrimination Act (“ENDA”) prohibits sexual orientation discrimination but does not include gender identity. Slide17

Overview of Federal Gender Discrimination LawsTitle VII of the Civil Rights Act of 1964 prohibits discrimination “because of . . . sex.”What does the term mean “because of … sex”?Slide18

Overview of Federal Gender Discrimination Laws Initial view from federal courts was that discrimination against transgender plaintiffs is not prohibited discrimination “because of . . . sex.”See, e.g., Ulane v. Eastern Airlines, Inc., (7th Cir. 1984) (holding MTF transsexual pilot not protected from discrimination under Title VII).Slide19

Overview of Federal Gender Discrimination LawsThese courts viewed the term “sex” in Title VII as narrowly confined to discrimination “against women because they are women and against men because they are men.” In Ulane v. Eastern Airlines, the court held discrimination against Ulane was not based on her sex (as male or female), but on her decision to change sex.But underlying this claim is the fact the airline discriminated because its belief someone born with male anatomy should not identify, act, dress or change sex designation to female.Slide20

Price Waterhouse v. Hopkins (1989)U.S. Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) called these rulings into question.Held that a woman who failed to conform to her employer’s gender stereotypes regarding how women should look and act was protected from discrimination by Title VII. Slide21

Price Waterhouse v. Hopkins (1989)Hopkins, a female accountant, was advised by certain partners in the firm that she could improve her partnership chances if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”Various partners described Hopkins as “macho,” in need of “a course in charm school,” “a lady using a foul language,” and somebody who was a “tough-talking, somewhat masculine, hard-nosed manager.”Slide22

Price Waterhouse v. Hopkins (1989)Hopkins sued under Title VII for sex discrimination after she resigned following the firm’s denial of partnership. Justice Brennan, writing for the plurality, held that “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.”Slide23

Price Waterhouse v. Hopkins (1989)The Price Waterhouse decision stands for the proposition that Title VII’s prohibition of discrimination “because of sex” encompasses discrimination based upon an individual’s failure to conform to gender-specific stereotypes.Courts have applied this rationale to cases involving male and female stereotypes.Slide24

Supreme Court Rules on Same Sex Harassment: Oncale v. Sundowner Offshore Services, Inc. (1998)Plaintiff worked on an offshore oil rig in an all-male working environment. He was subjected to numerous incidents of harassment including:A co-worker with some supervisory authority over him exposed himself.A co-worker/supervisor threatened to rape him.Slide25

Supreme Court Rules on Same Sex Harassment: Oncale v. Sundowner Offshore Services, Inc. (1998)Plaintiff complained about the conduct to another manager who called Plaintiff a faggot and told Plaintiff that is how these co-workers have acted in the past. Plaintiff then quit, claiming he was sexually harassed. Neither Plaintiff nor his co-workers was an admitted or “apparent” homosexual.Slide26

Supreme Court Rules on Same Sex Harassment: Oncale v. Sundowner Offshore Services, Inc. (1998)By a 9-0 decision, the Supreme Court held same-sex harassment is actionable under Title VII if it is engaged in “because of … sex.” “We hold today that nothing in Title VII necessarily bars a claim of discrimination ‘because of … sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.”Slide27

Supreme Court Rules on Same Sex Harassment: Oncale v. Sundowner Offshore Services, Inc. (1998)Argument against allowing same-sex harassment claims: The workplace will now require “asexuality or androgyny.”Justice Scalia’s Response: No! Following the statute will ensure that courts and juries do not mistake ordinary socializing in the workplace, such as male-on-male horseplay or intersexual flirtation for discriminatory “conditions of employment.” Title VII requires “careful consideration of the social context in which particular behavior occurs and is experienced by its target.”Slide28

Supreme Court Rules on Same Sex Harassment: Oncale v. Sundowner Offshore Services, Inc. (1998)Justice Scalia’s Response (cont): For example, a football coach slapping the buttocks of a player as he heads onto the field is not the same as a coach slapping the buttocks of his (male or female) secretary back in the office. Trust in judges and juries to distinguish roughhousing among members of the same sex and severely hostile or abusive conduct.Slide29

Supreme Court Rules on Same Sex Harassment: Oncale v. Sundowner Offshore Services, Inc. (1998)Guidance from the Court on the evidence available to prove same-sex harassment:Proof the harasser was motivated by sexual desire (i.e. the “homosexual harasser”);Proof the victim was harassed in such “sex-specific and derogatory terms” by another of the same gender as to make it clear that the harasser was motivated by general hostility to the presence of members of his/her own gender in the workplace (the “enmity harasser”); orProof of discrimination “because of … sex” by offering direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace (the “discriminatory harasser”).Slide30

Post-Oncale Decisions on Same-Sex Harassment Law: Schmedding v. Tnemec Co. (8th Cir. 1999)Schmedding’s co-workers patted his buttocks, asked him to perform sexual acts, called him a "homo" and a "jerk off,” and simulated a sexual act using the doorframe to his office.Plaintiff alleged that he was discriminated against on the basis of his “perceived sexual preference,” but stated this was because of his gender in that by falsely labeling the plaintiff as a homosexual, his male co-workers were debasing his masculinity, something they would not do to female co-workers.Slide31

Post-Oncale Decisions on Same-Sex Harassment Law: Schmedding v. Tnemec Co. (8th Cir. 1999)The court found sufficient allegations of harassment because the plaintiff was willing to amend his complaint to delete the term “perceived sexual preference.”Slide32

Post-Oncale Decisions on Same-Sex Harassment Law: Llampallas v. Mini-Circuits Lab (11th Cir. 1998)Elba Llampallas had a consensual sexual relationship with a woman who, after their relationship began, became her supervisor at work.When the relationship ended, the supervisor threatened to have Llampallas fired if she did not resume their relationship. As part of a scheme to manipulate the company into firing Llampallas, the supervisor told the president of the company that she was resigning because she could no longer work with Llampallas.After acting as though he would transfer Llampallas to another facility, the president terminated her employment.Slide33

Post-Oncale Decisions on Same-Sex Harassment Law: Llampallas v. Mini-Circuits Lab (11th Cir. 1998)The Eleventh Circuit found for the employer, holding that Llampallas failed to establish a causal link between her termination and the supervisor’s discriminatory animus towards her. The court explained the president “broke the chain” of causation between the supervisor’s harassment and the decision to terminate Ms. Llampallas because:the president behaved reasonably in response to the supervisor’s threat to quit; and Llampallas failed to avoid the consequences of the supervisor’s threat by not informing the president of her relationship and the supervisor’s previous threat to have her fired.Slide34

Post-Oncale Gender Stereotyping & “Feminine Men”: Nichols v. Azteca Restaurant Enterprises (9th Cir. 2001)Antonio Sanchez, a male restaurant employee, was subjected to a relentless campaign of insults, name-calling, and vulgarities, such as being referred to as “she” and “her”; being mocked for walking and carrying his serving tray “like a woman”; and being taunted as a “f___king female whore.”Slide35

Post-Oncale Gender Stereotyping & “Feminine Men”: Nichols v. Azteca Restaurant Enterprises (9th Cir. 2001)The Ninth Circuit held, “the systematic abuse directed at Sanchez reflected a belief that Sanchez did not act as a man should act … We conclude that this verbal abuse was closely linked to gender.”“Price Waterhouse applies with equal force to a man who is discriminated against for acting too feminine.”Slide36

Sex Stereotyping to Prove Same-Sex Harassment: Heller v. Columbia Edgewater Country Club (D. Or. 2002)The plaintiff, an openly lesbian woman, sued her former employer under Title VII for discriminating against her because she was too masculine. The plaintiff presented evidence that her female supervisor made disparaging and harassing comments based on gender stereotypes, including: “Oh, I thought you were a man.”“I thought you wore the pants.”Slide37

Sex Stereotyping to Prove Same-Sex Harassment: Heller v. Columbia Edgewater Country Club (D. Or. 2002)In denying the defendant’s motion for summary judgment, the court explained that Title VII prohibits harassment based on a perception that the person “did not conform to [the defendant’s] stereotype of how a woman ought to behave.”In this case, the defendant perceived the plaintiff to be gender non-conforming because she “is attracted to and dates other women, whereas [the defendant] believes that a woman should be attracted to and date only men.”Slide38

Pregnancy Based Stereotypes: Back v. Hastings on Hudson Union Free School District (2d Cir. 2004)Elena Back was a psychologist at an elementary school. She was placed on a three-year tenure-track when she was hired.During her first two years of employment, she received excellent performance reviews from her two female supervisors and was repeatedly told she would receive tenure.As Back’s tenure drew closer, however, she took a three-month maternity leave. Slide39

Pregnancy Based Stereotypes: Back v. Hastings on Hudson Union Free School District (2d Cir. 2004)After her return from maternity leave, Back’s supervisors began criticizing her performance and making comments about her devotion to the job:She was asked how she was “planning on spacing her offspring.”She was told she would not “show the same level of commitment [she] had shown because [she] had little ones at home” and that the job was “not for a mother.”Slide40

Pregnancy Based Stereotypes: Back v. Hastings on Hudson Union Free School District (2d Cir. 2004)Back sued after she was denied tenure and her employment was subsequently terminated.Citing Price Waterhouse v. Hopkins, the court held that employment decisions based on gender stereotypes constitute gender discrimination:“notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible, are properly considered to be themselves, gender-based.”Slide41

Lesbian Based Stereotypes: Dawson v. Bumble & Bumble (2d Cir. 2005)Dawson, a lesbian, alleged she was denied a promotion and eventually terminated for her non-conformity to gender stereotypes.Dawson believed her employer wanted to fire her because of her “dyke” attitude and alleged that, when she was terminated, her employer stated that she could not be sent to a salon outside of New York City because, “People won’t understand you . . . you’ll frighten them.”Slide42

Lesbian Based Stereotypes: Dawson v. Bumble & Bumble (2d Cir. 2005)Although acknowledging that one can fail to conform to gender stereotypes through behavior or appearance, the court rejected Dawson’s Title VII claim of impermissible gender stereotyping.The evidence indicated that the salon regularly employed sexually non-stereotypical individuals, including a female-to-male transsexual and both bi-sexual and gay employees, some with very androgynous appearances.Unlike the plaintiff in Price Waterhouse, Dawson was never told by her employer that she needed to act or speak in a more “feminine” manner.Slide43

The Reasonable Woman Standard: EEOC v. National Education Association (9th Cir. 2005)On September 2, 2005, the Ninth Circuit Court of Appeals ruled a “reasonable women” standard applies to workplace abusive conduct, even if there is no sexual content to the behavior.Slide44

The Reasonable Woman Standard: EEOC v. National Education Association (9th Cir. 2005)Three female employees filed EEOC charges against National Education Association-Alaska (NEA) alleging the organization created a sex-based hostile work environment and constructively discharged one of them.Female employees alleged a male supervisor with little or no provocation, shouted and screamed at them, used foul language, invaded their personal space and used threatening physical gestures. Slide45

The Reasonable Woman Standard: EEOC v. National Education Association (9th Cir. 2005)The Ninth Circuit Court of Appeals held that a reasonable juror could conclude that the supervisor’s conduct, which was directed primarily at women, was “because of sex”, within the meaning of the statute. The real question is whether the behavior “affected women more adversely than it affected men”. The questions can be analyzed in two ways: i) is the effect of the behavior qualitatively different; and ii) is the amount of the behavior quantitatively different.Slide46

The Reasonable Woman Standard: EEOC v. National Education Association (9th Cir. 2005)Under the reasonable woman standard devised in an earlier case, Ellison v. Brady, 924 f. 2d 872 (9th Cir. 1991), women found the behavior is more intimidating then men did and therefore, the conduct affects women differently. The Director’s intent is irrelevant- what matters is the effect of the behavior, both subjectively and objectively. Slide47

The Reasonable Woman Standard: EEOC v. National Education Association (9th Cir. 2005)According to the Court, the quantitative difference turns on whether women were more frequently exposed to the abusive behavior then men. Note: Although the NEA pointed out that as a teacher’s union, most of its employees were women and women had more contact with the particular director, this argument did not prevail. Other courts have ruled that an unbalanced distributing of the sexes and the fact that some men were harassed can defeat a showing of differential treatment.Slide48

The Reasonable Woman Standard: EEOC v. National Education Association (9th Cir. 2005)If the abusive behavior will be actually and reasonably perceived as disadvantageous by women, the behavior may be discrimination.Slide49

Transgender v. Sexual OrientationTransgender employees are often discriminated against or harassed because the discriminating agent or harasser mistakenly perceives them to be gay or lesbian.Slide50

Discrimination and Harassment of Transgender EmployeesExamples of Discriminatory and Harassing Conduct Regarding Transgender EmployeesRefusal to hire in a position requiring customer interaction;Preventing appropriate restroom usage;Repeated failure to address an employee by his/her proper name and pronoun (Mr./Ms., his/her);Invasive inquiries about medical history or genitalia;Allowing teasing or intimidating behavior.Slide51

Transgender v. Sexual Orientation: Enriquez v. West Jersey Health Systems (N.J. 2001)Enriquez, a MTF transsexual pediatric physician, sued for wrongful termination of her employment as a medical director of a learning behavioral center. She alleged disability and sexual orientation discrimination.Slide52

Transgender v. Sexual Orientation: Enriquez v. West Jersey Health Systems (N.J. 2001)After working for the facility for less than one year, Enriquez began her external transformation from male to female. Enriquez shaved her beard, sculpted and waxed her eyebrows, pierced her ears, and began growing breasts. A few months later, Enriquez began manicuring and polishing her nails, growing long hair and wearing a ponytail.Later that year, Enriquez was diagnosed with gender dysphoria, a gender identity disorder listed in the DSM-IV published by the American Psychiatric Association.Slide53

Transgender v. Sexual Orientation: Enriquez v. West Jersey Health Systems (N.J. 2001)One year later, Enriquez underwent surgery. Three executives confronted her about their discomfort over her transformation. One told her to “stop all this and go back to your previous appearance!” The executives terminated her contract with the facility and refused to enter into a new contract with her, stating “No one is going to sign this contract unless you stop this business that you’re doing.”Slide54

Transgender v. Sexual Orientation: Enriquez v. West Jersey Health Systems (N.J. 2001)Sexual Orientation Discrimination?The court concluded Enriquez failed to establish a case of sexual orientation discrimination. There was no evidence of mistreatment by the employer because of Enriquez’ “affectional, emotional or physical attraction” to others.Slide55

Transgender v. Sexual Orientation: Enriquez v. West Jersey Health Systems (N.J. 2001)Gender Discrimination?Yes, even though the statute does not define gender specifically to include gender identity. The Court was influenced in its decision by the development of the concept of sex stereotyping as actionable gender discrimination.Slide56

Sexual Reassignment Surgery: Goins v. West Group (Minn. 2000)Must one undergo sexual reassignment surgery to be protected under the law?Goins, a transgender employee, claims West Group discriminated against her and harassed her on the basis of her sexual orientation by designating restrooms on the basis of biological gender. Slide57

Sexual Reassignment Surgery: Goins v. West Group (Minn. 2000)Goins was born biologically male. Since 1994, Goins has taken female hormones and presented herself to the public as a female since 1995. In October 1995, Goins legally changed her name. Goins referred to herself as transgender or trans-identified. Slide58

Sexual Reassignment Surgery: Goins v. West Group (Minn. 2000)In 1997, Goins used an employee restroom designated for women. Two biological females complained to a supervisor. The HR Director deemed the two female employees’ complaint to be a complaint of a “hostile work environment” and decided to enforce the policy of restroom usage according to biological gender. Slide59

Sexual Reassignment Surgery: Goins v. West Group (Minn. 2000)The HR Director also decided to allow Goins the use of a single-occupancy restroom on a different floor or one in another building. Goins objected, proposing instead the complaining employees be educated regarding transgender individuals. Goins continued to use the restroom. In 1998, Goins resigned, claiming undue stress and hostility. Slide60

Sexual Reassignment Surgery: Goins v. West Group (Minn. 2000)West’s designation of employee restroom usage based on biological gender is not sexual orientation discrimination. Restriction on employee’s usage and the fact co-workers stared at her with hostility and gossiped about her was not evidence of sexual orientation harassment.Slide61

Sexual Reassignment Surgery: Goins v. West Group (Minn. 2000)The court held that an employee born male who changed her legal name to that of a female and took female hormones to identify herself as a female, even though she elected not to undergo sexual reassignment surgery, was protected under that state’s anti-discrimination law protecting persons whose self-image or identity is not traditionally associated with his/her biological sex.Slide62

Jespersen v. Harrah’s Operating Co. (9th Cir. 2004) Harrah’s implemented grooming requirements that, in addition to gender neutral standards, required female serversto wear makeup and nail polish;to tease, curl or style their hair;to wear pantyhose.In contrast, male beverage servers were prohibited from wearing makeup or colored nail polish, and were required to maintain short hair and neat, trim fingernails.Slide63

Jespersen v. Harrah’s Operating Co. (9th Cir. 2004) Jespersen, a bartender at Harrah’s for almost twenty years, refused to comply with the new makeup requirement, explaining that makeup made her feel “sick, degraded, exposed, and violated.”When she was unable to locate another position in the company that did not require wearing makeup, she was terminated. Jespersen alleged that her termination constituted illegal sex discrimination under Title VII.Slide64

Jespersen v. Harrah’s Operating Co. (9th Cir. 2004) The court found that the different grooming standards for men and women did not constitute an “unequal burden” on females:“Even if … the application of makeup requires some expenditure of time and money, Jespersen would still have the burden of producing some evidence that the burdens associated with the makeup requirement are greater than the burdens the ... policy imposes on male bartenders, and exceeds whatever ‘burden’ is associated with ordinary, good-grooming standards.”Slide65

Jespersen v. Harrah’s Operating Co. (9th Cir. 2004) Finding that Jespersen failed to meet this burden, the court granted summary judgment for the Employer.Notably, the court declined to apply the Price Waterhouse sex stereotyping analysis to appearance and grooming standards cases. Slide66

Questions?Susan Fahey DesmondSusan.desmond@jacksonlewis.com