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

1. Sexual Stereotyping & Gender Identity In The Workplace Presented by: Susan Fahey Desmond| Jackson Lewis LLP

2. SEXUAL STEREOTYPING QUIZ 1. 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 Home

3. SEXUAL STEREOTYPING QUIZ 4. How concerned are you about your appearance? A. Not very B. Somewhat C. Very 5. How much money do you spend per month on your hair? A. Less than $50 B. Less than $100 C. More than $200 6. Do you regularly receive manicures/ pedicures?

4. SEXUAL STEREOTYPING QUIZ 7. 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

5. SEXUAL STEREOTYPING QUIZ 9. 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 sports 10. Who pays the bills in your household?

6. SEXUAL STEREOTYPING QUIZ 11. What did you dream of becoming when you grew up? A. Firefighter B. Rock star C. Athlete D. Parent E. Librarian

7. SEXUAL STEREOTYPING QUIZ 12. What type of magazine do you read most often? A. Fashion/Entertainment B. Automotive C. Sports D. Home Decor/Remodeling E. Chess 13. What type of car do you drive? A. Subaru B. Porsche C. Mustang D. Mini

8. SEXUAL STEREOTYPING QUIZ 14. What best describes your job title? A. CEO/Executive B. Administrative/Support C. Human Resources D. Finance/Accounting E. Management • Who cleans your home/apartment? • Who takes out the garbage?

9. SEXUAL STEREOTYPING QUIZ 17. Who makes the home furnishing decisions? A. You B. Your partner C. Your decorator D. VALASSIS 18. Do you leave the toilet seat up or down? 19. As a child, did you imagine what your wedding would be like?

10. 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?

11. Gender Identity and How it Differs from Gender Expression • Gender 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.

12. 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.

13. 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.

14. 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.”

15. 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 women • Assertive men vs. aggressive women

16. Overview of Federal Gender Discrimination Laws • There 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.

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

18. 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).

19. Overview of Federal Gender Discrimination Laws • These 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.

20. 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.

21. 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.”

22. 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.”

23. 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.

24. 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.

25. 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.

26. 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.”

27. 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.”

28. 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.

29. 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”); or • Proof 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”).

30. 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.

31. 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.”

32. 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.

33. 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.

34. 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.”

35. 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.”

36. 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.”

37. 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.”

38. 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.

39. 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.”

40. 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.”

41. 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.”

42. 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.

43. 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.

44. 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.

45. 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 qualitativelydifferent; and ii) is the amount of the behavior quantitatively different.

46. 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.

47. 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.

48. 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.

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

50. Discrimination and Harassment of Transgender Employees • Examples of Discriminatory and Harassing Conduct Regarding Transgender Employees • Refusal 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.