Employment Discrimination on the Basis of Sex Stereotyping
Sex or gender stereotyping can be less obvious than other types of sex discrimination. It occurs when an employer or its agent discriminates against an employee because he or she doesn’t conform to gender stereotypes. It can involve members of the same sex.
Title VII of the Civil Rights Act of 1964 and other federal and state statutes prohibit sex discrimination in the workplace. Most people understand that sex discrimination occurs when an employer treats an employee adversely on the basis of sex. Prohibited employment discrimination can cover the full range of employment actions, including hiring, firing, providing compensation, or providing fringe benefits because somebody is male or female.
Your employer cannot institute a policy of only hiring males for a particular position, absent a bona fide occupational qualification (BFOQ). Under Title VII, a BFOQ provides that using religion, sex, or national origin as a criterion is not prohibited if it is reasonably necessary to the normal operation of a particular business. Since sex stereotyping is a type of discrimination, an employer can raise a BFOQ defense in connection with sex stereotyping as well as other types of sex discrimination.
For example, it would not be unlawful for a casting director of a tampon commercial to specify that the script calls for a female that looks “feminine” to play the lead part. Similarly, it would not be unlawful for a commercial casting director trying to hire a lead for a Miller Light commercial that will play during the Super Bowl to issue a casting call for a rugged “masculine” actor with pronounced muscles to play the lead.
Is Harassment Based on Sex Stereotyping Discrimination Prohibited?
It is unlawful for an employer to promote or tolerate harassment that is so severe or pervasive that it would cause a reasonable person to believe that a hostile work environment has been created. Harassment is prohibited without regard to whether an employee does or does not actually conform to the sex stereotype. In other words, courts usually don’t examine whether a harassment victim does or does not fit a traditional gender stereotype.
For example, a company employed an iron worker whose supervisor harassed him with derogatory insults, locker room talk, and simulated sex acts because the iron worker did not act in the way the supervisor believed a man should act. When the iron worker complained and eventually was laid off because of a lack of work, the jury found in favor of the iron worker on a harassment claim. The jury found this was sex stereotyping discrimination, prohibited under Title VII, and awarded the man compensatory and punitive damages.
The Fifth Circuit overturned the jury’s verdict, but the Equal Employment Opportunity Commission (EEOC) filed a motion for rehearing, resulting in the Fifth Circuit ruling in the EEOC’s (and the iron worker’s) favor. In issuing its final ruling, the Fifth Circuit didn’t look at whether the iron worker was “manly” or not. The key issue was whether the harasser believed the man was unmanly and harassed him on that basis.
Although courts have taken a narrower view of Title VII in the past, the EEOC’s official position and the federal judicial trend supports a prohibition against sex stereotyping discrimination. Prudent employers will update their policies and training materials accordingly. If you are a victim of sex stereotyping discrimination, you should complain to your employer and allow it to have the opportunity to correct the situation before filing a claim with the EEOC.