Employment Discrimination Stories
Author:
Friedman, Joel W.
Edition:
1st
Copyright Date:
2006
6 chapters
have results for gender
Chapter 4: The Story of Jesperson v. Harrah’s: Makeup and Women at Work 65 results (showing 5 best matches)
- This dynamic applies, albeit in a different manner, to gender as well—call it gender exceptionalism. Below we more specifically define gender exceptionalism and link it to both sex stereotyping and gender non-conformity. Our aim is to explain why neither sex stereotyping nor gender non-conformity had traction in Ninth Circuit’s opinion, both of which theories the court could have employed to produce an outcome favorable to Jespersen.
- In short, makeup and women’s entrance into the modern workplace have gone hand-in-hand. Employers have used makeup to both screen women into the workplace and to screen them out. Through makeup, women could signify not only femininity but also gender difference. Makeup was a means by which women could transform themselves into gender-role types expected in particular jobs, such as saleswoman, secretary, or waitress. More generally, the presence of makeup on the faces of women inscribed their bodies to convey something like the following assurance to employers: “The fact that we are in the same workplace as men, and doing the same work as men, does not mean that we are in fact the same as men.” Through makeup, women could perform gender palatability and gender comfort. Makeup signified that gender integration would not mean the disruption of gender hierarchy. Indeed, precisely because of the social continuities of makeup—namely, that women wore makeup across the public/private...
- III. Gender Exceptionalism, Gender Non-conformity and Gender Stereotyping
- Broadly speaking, there are two categories of gender exceptionalism: gender exceptionalism where women who are the exceptions are included in the workplace and gender exceptionalism where women who are the exceptions are excluded. Consider first gender exceptionalism that includes women in the workplace. Assume that a manager perceives that timidity and meekness are gender correlated and that, vis-à-vis his workplace, these qualities are unproductive. This manager would not screen out all women from the workplace. He would screen women to identify those with the negative identity characteristics: timidity and meekness. Performing this screening, the manager would exclude women he perceives to be timid and meek and include those he perceives to be exceptions to the rule.
- The question then becomes: Why didn’t the Ninth Circuit conceptualize Jespersen’s case as fundamentally about gender normativity—that is to say, gender exceptionalism? The court could have employed was fundamentally about gender non-conformity and sex stereotyping. Under this view, the partners at were uncomfortable with how Hopkins negotiated her gender identity. Specifically, her identity performances were not within the boundaries of what Price Waterhouse perceived to be gender-appropriate performances. In theory, Hopkins could have altered her behavior to be more feminine. Indeed, it is precisely because the partners at Price Waterhouse recognized the potentiality for gender-normative representations of Hopkins’s gender that they made specific suggestions to her about what identity performances she should engage in to improve her chances for making partner the following year. ...employee to change her gender identity, or punishing her for refusing to do so, violates Title VII’s...
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Chapter 8: The Story of Mandatory Retirement, Massachusetts Board of Retirement v. Murgia and Ageism 15 results (showing 5 best matches)
- I do not want to get into an extended discussion of the malleability of gender. It is probably true that between 100 percent maleness, on one end of the gender spectrum, and 100 percent femaleness at the other end, there are intermediate gradations. Nonetheless, at least in this author’s view, one cannot change one’s gender (as determined by one’s DNA), even though one can change one’s appearance and even undergo surgery to change one’s external anatomy.
- : a concern about the implications of elevating the status of age classifications to that accorded gender-based classifications. How so? In 1973 four Justices took the bold step in of arguing that gender-based classifications, which had hitherto been subjected to minimum rationality scrutiny (with the arguable exception of he authored the majority opinion in which the Court announced a new heightened standard of scrutiny for gender classifications, albeit an intermediate level rather than the strict scrutiny accorded to suspect classifications.
- While he did not so state, the reason for Justice Brennan’s reliance on this distinction must have been that he was seeking to stave off a slippery slope argument: i.e., if the suspectness door were opened for gender classifications, other classifications would soon follow. The price he was willing to pay for securing—if not in 1973, then some day—a fifth vote (and maybe even the price he had to pay to obtain one or more of the three votes he was able to attract to his plurality opinion) was an analysis that denigrated the physically disabled and the intellectually challenged. They were people, he assured his colleagues, who did not warrant special judicial protection because, unlike people defined in terms of gender, they were not as valuable to our society. They did not have the ability to perform or contribute. Thus, there was no risk that if gender-defined people were welcomed into the suspectness club, people defined in terms of physical or mental ability also would gain access...
- It is reasonable to assume that Justice Brennan was already thinking in 1973 about how he could capture the fifth vote necessary for lifting gender classifications out of minimum rationality analysis. Indeed, in his plurality opinion we can see him almost certainly reaching out for that vote when he distinguished between gender and intelligence and physical disability. “And what differentiates sex from such non-suspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.”
- there surely had to be the same worry about the slippery slope. If age classifications were to be elevated to a status evoking anything more than mere rationality, the members of other groups would in short order be clamoring for like treatment. And so there likely was real concern on the part of those Justices who would shortly join in a majority in some gender case (as it turned out, ) about quelling the argument that opening the door to quasi-suspect or suspect status for the too-old eventually would lead to the undesirable expansion of enhanced judicial protection for a variety of other groups. Rejecting Officer Murgia’s claim was necessary to reassure those who accorded credence to the slippery slope argument. For if their concerns were not alleviated, the possibility of securing enhanced judicial scrutiny of gender classifications might founder once again.
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- By concentrating on the absence of a total exclusion of women from the workplace, and thereby failing to perceive the distinction between gender essentialism and gender exceptionalism, according to Professors Carbado, Gulati, and Ramachandran, a majority of the Ninth Circuit panel could not and did not conceptualize the exclusionary impact produced by the casino’s reliance on gendered notions of proper behavior and attire. They also posit that the court’s refusal to extend the teachings of ...Title VII challenges to dress and appearance codes. And although, the authors concede, imposing formally identical grooming requirements on men and women may operate to disadvantage women who, under such a regime, may, unlike men, not be able to maximize their attractiveness in a world that prizes and allocates benefits on the basis of perceived beauty, they ultimately conclude that “in the end, what may be best for women, and men, is freedom to make up their identities unencumbered by gender...
- Here, Professors Carbado, Gulati, and Ramachandran focus on the constitutive role that cosmetics has played in women’s lives. More importantly than layering women’s faces, they assert, makeup has “layered the social meaning of women’s identity.” Through an absorbing narrative of the gendered history of cosmetics, the authors trace the evolution of cosmetics from its earliest functions into a social technology for gender conformity. Using makeup as a tool for both screening women into the workplace and screening them out, Carbado, Gulati & Ramachandran maintain, employers not only restrict women to a particular place in the job hierarchy but actually shape the content of female identity.
- Court’s treatment of sex-stereotyped behavior expectations in other contexts in which these presumed behavioral norms are imposed to the detriment of, for example, gay or transgendered individuals and other gender non-conformists. As she reports, the story presently is a mixed bag; with some circuits fully prepared to extend this concept to other contexts while others are reluctant, if not unwilling, to proceed further down the stereotype analysis path. Professor Estlund persuasively argues that a broad transplantation
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Chapter 3: The Story of Price Waterhouse v. Hopkins 30 results (showing 5 best matches)
- The only other aspect of the case that arguably points toward the narrower double-bind theory is the dramatic demographics–the virtual absence of women in Price Waterhouse’s leadership cadre. That piece of evidence arguably framed Hopkins’ whole narrative, transforming it from a story of gender nonconformity to a story of group disadvantage: Hopkins, given her own personality, had collided with one half of the double-bind, and had brought into sharp relief Price Waterhouse’s demands for gender-conformity; common sense pointed to the tacit demands for masculinity that doomed many other women’s prospects. The severe underrepresentation of women makes it plausible that not only gender nonconformists like Hopkins but also gender
- by the demands on individuals to conform to stereotypes. In particular, that broader reading has been a linchpin of a generation-long effort to find in Title VII’s ban on sex discrimination some basis for the protection of gender nonconformists–gay men and lesbians, “effeminate” men and “masculine” women, transsexuals, and others whose sexual preferences and outward behavior defy conventional gender stereotypes.
- There are presumably even “egalitarian” workplaces for manly men and womanly women, in which both men and women are subject to comparably constricting gender-appropriate demands. Plenty of men and women manage to meet those demands, and both men and women might be well-represented. But both men and women who defy gender stereotypes–either in their outward appearance, their behavior, or their private sexual lives–may be rejected, held back, harassed, or fired. Is that sex discrimination under
- The gender non-conformists in these cases do not face the classic double-bind, but it is a bind nevertheless. They are subject to discrimination based upon their failure–their unwillingness or inability–to conform to gender stereotypes. For those whose gender-nonconformity extends to their sexual orientation,
- –in which gender stereotyping against gender nonconformists was actionable as sex discrimination only when it formed part of an attitudinal scheme that disadvantaged members of the plaintiff’s sex generally–would seem more consistent with a “group rights” conception than with the individualistic conception of the right to be free from discrimination. It would not defy logic, strictly speaking, to hold that group disadvantage was , though not sufficient, to show disparate treatment; indeed, the quintessential case of sex discrimination involves prejudice or hostility to the group that is manifested in the adverse treatment of an individual. But it would defy the logic of the Supreme Court’s Title VII jurisprudence to require the plaintiff to show prejudice or hostility to the group as a whole even when she can independently prove that gender-specific standards of judgment were applied to her.
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- The “disability” standing requirement is a substantial departure from Title VII’s framework. Title VII does not impose any class membership standing requirement. Title VII bans discrimination “because of” an individual’s race or gender, but does not require that a person be of any particular race or gender in order to be protected.
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- Publication Date: December 19th, 2005
- ISBN: 9781587788888
- Subject: Employment Discrimination
- Series: Law Stories
- Type: Overviews
- Description: Like all the volumes in the Stories collection, this book provides students with a three-dimensional picture of the most important cases that are addressed in nearly every employment discrimination casebook and course. These stories give the students and faculty members a deeper understanding of the historical and cultural background of the cases and insight into their long-term impact on the development of employment discrimination law.
