30 Years Ago, the U.S. Supreme Court Told Us That Gender Stereotyping is a Form of Sex Discrimination. So It’s Not a Good Idea to Conduct Employee Training That Reinforces Gender Stereotypes.

 

By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, the Huffington Post ran a story about a 2018 leadership training program for female executives at Ernst & Young, one of the largest accounting firms in the world. Apparently, whoever designed this training is completely unaware of U.S. Supreme Court precedent dating back to 1989, namely, the landmark case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, Ms. Hopkins was denied a partnership in the accounting firm despite her professional accomplishments. She was told that in order to improve her chances for partnership, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” (490 U.S. 228, 235). In other words, act more like a stereotypical woman.

The Supreme Court, in a plurality opinion, held that sex stereotyping is a form of discrimination on the basis of sex under Title VII. To that end, Justice Brennan stated that:

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'” (emphasis added)(citations omitted).

Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S. Ct. 1775, 1791, 104 L. Ed. 2d 268, 288 (1989). [Note that this decision is a foundation of the argument that Title VII covers discrimination against gay and transgender employees.]

Yet, here we are 30 years later, and here are examples of the “advice” given to the Ernst & Young female executives:

  • Be “polished,” have a “good haircut, manicured nails, well-cut attire that complements your body type”. But then, a warning: “Don’t flaunt your body ― sexuality scrambles the mind (for men and women).”
  • In the list of “Invisible Rules” for men and women: women often “speak briefly” and “often ramble and miss the point” in meetings. By comparison, a man will “speak at length ― because he really believes in his idea.” Women don’t interrupt effectively like men. Women “wait their turn (that never comes) and raise their hands.”
  • Women were advised not to directly confront men in meetings, because men perceive this as threatening. (Women do not.) Meet before (or after) the meeting instead.
  • If a woman is having a conversation with a man, she should cross her legs and sit at an angle to him. She should not talk to a man face-to-face. Men see that as threatening.
  • Women should not be too aggressive or outspoken.
  • And my personal favorite: Women were also told that their brains are smaller than men’s brains, and that women’s brains absorb information like pancakes soak up syrup so it’s hard for them to focus. Men’s brains are more like waffles. They’re better able to focus because the information collects in each little waffle square.

And if it wasn’t clear enough that women needed to conform to certain gender stereotypes, before the workshop, women were also given a “Masculine/Feminine Score Sheet,” which had them rate their adherence to stereotypical masculine and feminine characteristics both on the job and outside the office. The so-called masculine traits included “Acts as a Leader,” “Aggressive,” “Ambitious,” “Analytical,” “Has Leadership Abilities,” “Strong Personality” and “Willing to Take a Stand.” The so-called feminine traits included “Affectionate,” “Cheerful,” “Childlike,” “Compassionate,” “Gullible,” “Loves Children” and “Yielding.” None of the feminine traits involved leadership ― ostensibly a focus of the training.

Needless to say, these kinds of messages are exactly what the Supreme Court characterized as discrimination on the basis of sex. In 1989.

Pro Tip: if a company wants to provide advice and training to employees on how to climb the corporate ladder, the better approach is focus on the types of skills and abilities that will lead to success, without attributing them to a particular gender. The same approach should be used in hiring, evaluations, and promotions. And most important–have a competent employment lawyer review your materials. Otherwise, it is probable that your training materials are going to be Exhibit 1 at the trial of a discrimination case.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

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