Sexual Orientation Discrimination and Gender Stereotyping

by on January 7, 2009 · 0 Comment POSTED IN: HR Info Center

Was extra scrutiny discrimination?

HR Director Ann Sullivan sat down with General Manager Frank Abrams in a conference room.

“Frank, I just got off the phone with one of the managers. He’s called a lawyer and is suing us for sexual orientation discrimination, specifically ‘gender stereotyping,'” said Ann.

“Let me guess, it’s Mike, er, Michele Mittler,” said Frank. “What’s his, um, her beef?”

“Michele says that we discriminated against her by denying her a promotion,” said Ann. “She says we made our judgments based on stereotypes.”

“Look, to do that job, Michele needs to earn the respect of the front-line workers. She needs to have some ‘presence,’ some ability to command their respect,” said Frank.

“But she doesn’t. We tried her at supervisor – on probation. She doesn’t project her voice. She doesn’t seem confident. And sure enough the guys don’t respect her.”

Documented thoroughly

“Do you think the fact that she’s a pre-operative transsexual influenced your decision?” asked Ann.

“Absolutely not, ” said Frank. “The last time we failed to promote someone, it was a young man who didn’t project the right attitude. He needed time to grow up.”

“Yeah, but did you videotape him on the job, record his conversations, and subject him to the same level of scrutiny as Michele?” asked Ann.

“We wanted to document this case thoroughly,” said Frank. “So we went the extra mile.”

“If I were to guess, that’s not how a jury will see it,” said Ann. “I think they’ll say you singled Michele out.”

Michele sued the company for sexual orientation discrimination.

Did the company win?

The decision

No, the company lost. A jury awarded $300,000 in damages and $500,000 in attorney fees.

An appeals court upheld the verdict, saying that gender stereotyping is a valid cause of action under sexual orientation discrimination laws.

The company lost mostly for two reasons:

    No other supervisor on probation was videotaped on the job or forced to wear a microphone
    Issues like “presence” and “command” are vague and can easily be seen as involving stereotypes.

Special treatment

The company made a laudable effort to document its findings during Michele’s probation, but it forgot that special treatment in one case can also look like discrimination.

All that scrutiny looked like the firm was intimidating the worker.

That’s why it’s important to have a clear policy with clear definitions of sexual orientation discrimination.

If the company could show exactly what it meant by “presence,” and exactly what criteria it would use to determine it, the company may have fared better in court.

Cite: Barnes v. City of Cincinnati, No. 03-4110, 7th Cir., 3/22/05. Fictionalized for dramatic effect.

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