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Although Title VII of the Civil Rights Act of 1964 does not prohibit discrimination on the basis of sexual orientation, courts have begun to carve out protections for certain employees where their employers or co-workers engage in harassment or discrimination based on sexual stereotypes. Whereas sexism is defined as discrimination based on gender, sexual stereotyping refers to the practice of assigning roles, activities or character traits to individuals because of their sex. As presented in recent court decisions, behavior that involves treating an individual differently because that individual does not conform to sexual stereotypes is a form of discrimination or harassment that is legally cognizable under the law.
Title VII as the Source of Protection
The seminal case on the issue of sexual stereotyping is Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by statute on other grounds, as stated in Stender v. Lucky Stores, Inc., 780 F.Supp. 1302 (N.D. Cal. 1992). In Price Waterhouse, plaintiff Ann Hopkins was a female senior manager who was up for partnership. Instead of a making a decision, the partners held her candidacy over until the next year. However, when the next year arrived, the partners refused to re-nominate her for partnership. Hopkins sued under Title VII. The evidence revealed that, while the partners praised Hopkins' intelligence, business development, and client-relations skills, they also criticized her as "masculine"; and "macho."; One partner went so far as to state that Hopkins would improve her chances for partnership if she walked and talked more femininely, wore make-up, had her hair styled, and wore jewelry! The Supreme Court affirmed the District Court's holding that Price Waterhouse impermissibly acted on the basis of gender because the partners' sexual stereotypes played a motivating part in their decision to deny Hopkins partnership.
In Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001), the Ninth Circuit considered plaintiff Antonio Sanchez's claim that he was subjected to verbal abuse based upon the perception that he was effeminate and failed to conform to a male stereotype. Sanchez contended that he was entitled to Title VII protection because his co-workers verbally abused him for "carrying his tray like a woman,"; having feminine mannerisms, and failing to have sexual intercourse with a female waitress who was his friend. Sanchez further alleged that his co-workers and supervisors repeatedly reminded him that he did not conform to their gender-based stereotypes, referring to him as "she"; and "her,"; and engaging in vulgar name-calling cast in female terms. The Court held that Sanchez's verbal abuse was because of his sex, and therefore held that he was entitled to Title VII protection pursuant to Price Waterhouse.
However, the limits of protection under Title VII's sexual stereotyping analysis were recently defined in Vickers v. Fairfield Medical Center, 43 F.3d 757 (6th Cir. 2006). Plaintiff Christopher Vickers was employed as a private police officer by Fairfield Medical Center. Vickers alleged that he was subjected to verbal and physical harassment at work because of his known friendship with a doctor who was homosexual that included frequent derogatory comments regarding his sexual preferences and activities, vulgar gestures, co-workers repeatedly touching his crotch with a tape measure and co-workers grabbing his chest while making derogatory comments. The Sixth Circuit refused to extend Title VII protection to Vickers, holding that doing so would, in essence, allow for a gender-stereotyping claim to "bootstrap"; protection for sexual orientation into Title VII. The Court explained that Vickers failed to allege that he did not conform to traditional gender stereotypes in any observable way at work, and that Vickers' harassment was more properly viewed as unprotected harassment based on homosexuality rather than protected harassment based on gender nonconformity.
The case law thus suggests that employees are protected from harassment or discrimination based on sexual stereotyping, but that courts are far less likely to extend protection to employees who are treated differently because of their sexual orientation.
Alternative Sources of Protection
State and Local Laws
Although Title VII's protection apparently extends to harassment based on sexual stereotypes but not to harassment based on sexual orientation, state and local law may offer an additional source of protection. In Oregon, for instance, various municipal codes, including those in Portland and Eugene, prohibit sexual orientation discrimination and authorize causes of action and remedies. In addition, it is likely to see state laws, which prohibit discrimination based on sex interpreted in conformity with Price Waterhouse, thereby extending protection to individuals who were subject to harassment or discrimination because of sexual stereotypes.
Equal Pay Act
The Equal Pay Act prohibits employers from compensating employees at lesser rates because of their sex where they perform work substantially equivalent to that performed by members of the opposite sex. Although the issue of sexual stereotyping has not been fleshed-out in the context of the Equal Pay Act, it appears that the Act does afford protection for individuals who are compensated less simply because the position that they occupy is viewed as a position that a woman would typically hold.
The Glass Ceiling Theory
The "glass ceiling"; posits that, despite the progress that has been made since Title VII was adopted in 1964, women and minorities have not reached the upper levels of management in numbers even close to proportionate to their participation in the work force. The Civil Rights Act of 1991, which amended Title VII, authorized the Department of Labor to establish a Glass Ceiling Commission. The Commission was charged with initiating an Advancement Study that would review the opportunities for, and artificial barriers to, the advancement of women and minorities to management and decision-making positions in business.
The glass ceiling is, in essence, an issue of disparate impact in which practices that appear facially neutral have a harsher impact on women or minorities in practice. Among the factors that have hindered women and minorities in reaching upper management are:
How Employers Should Proceed
It is obviously difficult, if not impossible, to divine how courts will define the issue of sexual stereotyping in the future. However, it is clear that protection for individuals who have been subject to sexual stereotyping is now embedded in the body of employment law. Therefore, employers should take precautions to ensure that their workplace is free from sexual stereotyping. They should: (1) revise their harassment policy so that it specifically addresses and prohibits sexual stereotyping; (2) educate supervisors about this form of discrimination and harassment, and teach them to enforce a zero-tolerance approach to such behavior; and (3) include a discussion regarding sexual stereotyping in the training of rank and file employees.
About the Author
Andrew M. Schpak is an associate with Barran Liebman LLP in Portland, Oregon, where he practices labor and employment law. Mr. Schpak is admitted to practice in Oregon. He is an active member of the American Bar Association, currently serving as a Vice-Chair of the Young Lawyers Division's Labor and Employment Committee. Mr. Schpak is also on the Board of Directors of the Multnomah Bar Association's Young Lawyer Division.
The author would like to thank Paula Barran, a founding partner of Barran Liebman LLP, for her help with the "glass ceiling"; portion of this article.