Mobile Edition
Print
Get the Mag
Weekly UpdatesA firefighter for the City of Salem, Ohio, sued the fire department and the city for discrimination. The case was based on discrimination related to Smith's (the firefighter's) status as a transsexual. The U.S. Court of Appeals (Sixth Circuit) ruled that the Civil Rights Act of 1964 includes sex discrimination based on sex stereotyping. The Smith case calls attention to the ever-changing face of sex discrimination in the workplace. This article suggests reasons for organizational difficulties in interpreting the Civil Rights Act of 1964. It also discusses issues related to sex stereotyping, and it identifies possible proactive organizational responses.
Keywords: equal opportunity; gender issues; sex discrimination; stereotypes
**********
More than 40 years after the Civil Rights Act of 1964, sex discrimination in the workplace remains a problem. Sex discrimination may persist for a variety of reasons: failure to implement appropriate human resources management practices to ensure compliance with fair employment practices laws; sex stereotypes that affect organizational decisions about recruitment, selection, and performance appraisal; or shifting judicial interpretations of what constitutes sex discrimination. Recently, the case of Smith v. City of Salem (2004) broadened discrimination in the workplace from discrimination based on group membership to discrimination based on nonstereotypical behavior. Although many organizations have put into place fair employment policies and practices to prevent discrimination based on sex, the Smith case shows that these policies and practices need to be broadened to prevent discrimination based on sex stereotypes.
The purpose of this article is to examine sex discrimination in light of recent cases that expand the range of sex discrimination claims from membership in a minority group to behaviors that violate sex stereotypes. It also provides a forum to discuss organizational practices designed to prevent sex discrimination resulting from sex stereotyping. This article initially discusses an example related to a special case of sex stereotyping. This example is then used to build a generalized framework of sex stereotyping in organizations in general. Although extensive research has been done on sex discrimination and sex stereotypes, questions remain about the impact of organizational culture and leadership on the likelihood of sex stereotypes affecting employment decisions.
The Case of Smith v. City of Salem
In 2001, the City of Salem, Ohio, suspended a transsexual firefighter for a minor infraction. The firefighter sued the fire department and the city for sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The trial court dismissed the suit on the grounds that Title VII protection is unavailable to transsexuals. On August 5, 2004, the U.S. Court of Appeals (Sixth Circuit) reversed the trial court's decision. Relying primarily on the Supreme Court case of Price Waterhouse v. Hopkins (1989), the court said,
Smith had been diagnosed with Gender Identity Disorder and began to dress and act in a feminine manner. Smith's coworkers began to question his appearance. He informed his immediate supervisor about the Gender Identity Disorder diagnosis and the recommended treatment: complete surgical transformation from male to female. City officials tried to force him to resign by directing him to undergo three separate psychological evaluations. The circuit court held that in accordance with Hopkins, Smith was discriminated against because of his failure to conform to sex norms--that is, because he was perceived by coworkers as insufficiently masculine (Bible, 2005). Although the Smith case was newsworthy because it was unusual, it calls attention to an important management issue, namely, the ever-changing face of sex discrimination in the workplace, 40 years after passage of the Civil Rights Act of 1964.
In another case relying upon the Hopkins rationale, Barnes v. City of Cincinnati (2005), a preoperative male-to-female transsexual sued the City of Cincinnati, Ohio, when he failed the probationary period required to become a police sergeant in the Cincinnati Police Department. Barnes claimed that he failed probation owing to illegal sex discrimination based on his failure to conform to sex stereotypes; one of Barnes's supervisors told him he was not sufficiently masculine.
The sex discrimination in Hopkins resulted from sex stereotyping of a female employee who did not act in a stereotypically female manner. The partners of Price Waterhouse voted against her promotion to partner for two consecutive years. Hopkins claimed sex discrimination based on sex stereotyping because supporters and detractors made comments implying that she had been acting in too masculine a manner. The Supreme Court ruled that "an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender" (p. 15). The Hopkins case has been cited as precedent in other district and appellate court cases (e.g., Cota v. Tucson Police Department, 1992; Jackson v. Harvard University, 1989; Starceski v. Westinghouse Electric Corporation, 1995; Williams v. United Dairy Farmers, 1998). A Shepard's citation search (as of January 12, 2007) showed 341 positive citing decisions for Hopkins at the district and appellate court levels, with 110 citations of Headnote 10 and 443 citations of Headnote 11 relating to sex stereotyping. A Shepard's citation search for Smith showed 29 positive citations.
The sex stereotyping in Smith and Barnes involved a transsexual male employee who did not act in a stereotypically male manner (see also, Mitchell v. Axcan Scandipharm, 2006; Schroer v. Billington, 2006; Kastl v. Maricopa, 2006). A number of district and appellate courts have expanded the range of cases in which plaintiffs might make a claim for sex discrimination based on sex stereotypes (Katz & LaVan, 2004), including cases where gay employees act contrary to stereotyped behaviors for males or females. In Nichols v. Azteca Restaurant (2001), an employee claimed sex discrimination on the basis that he was verbally harassed by coworkers and a supervisor because he was effeminate and thus did not meet their stereotyped views of male behavior. The district court ruled that it constituted actionable harassment under Title VII. In Jespersen v. Harrah's (2006), the appellate court held that appearance standards, including makeup requirements, may well be the subject of a Title VII claim for sex stereotyping. And in Back v. Hastings (2005), a school psychologist was denied tenure on the basis of a supervisor's sex stereotype that she could not be employed and be a good mother. Therefore, the implications of the sex stereotyping in the Smith case go beyond transsexuals to a larger population, whenever sex stereotyping affects employment decisions about employees in the workplace.
Sex stereotyping might affect not just women whose behaviors are not stereotypically female; it might also affect men in traditionally female jobs or men who choose to take parental leave to care for newborns or relatives suffering from illnesses. Sex stereotyping might also affect an employee's behavior when interacting with customers rather than coworkers. In Rosa v. Park West Bank (2000), a biological male dressed in traditionally female attire was told by a bank employee that he would not be given a loan application until he went home and changed clothes. The appellate court held that sex-stereotyped remarks can be evidence that gender played a part in the employee's actions. Although the Smith holding, on its face, involves a small subset of potential plaintiffs, the extension of discrimination claims from membership in a protected class to include behaviors that violate sex stereotypes has broad implications likely to affect many employers.
The Case of Smith v. City of Salem and the Americans With Disabilities Act
The Smith opinion explains that the plaintiff suffers from Gender Identity Disorder, a psychological disorder recognized by the American Psychiatric Association (2000). Why, then, did Smith not file the case as disability discrimination under the Americans With Disabilities Act of 1990 (ADA)? The ADA specifically excludes transsexualism and Gender Identity Disorder from the definition of disabilities (see 42 USC [section]12211.b. 1). Congress excluded transsexualism from ADA coverage in 1990, the year after the Hopkins decision. The ADA might thus be described as being underinclusive: It specifically excludes certain psychological disorders from the definition of disability and thereby deprives the sufferers of civil rights protection. The court of appeals ruling in Smith, however, might be described as being overinclusive: By its reasoning, any violation of gender norms is entitled to protection on the basis of sex discrimination, even if an underlying psychological disorder is present that is not entitled to protection on the basis of disability discrimination under the ADA.
Sexual Orientation and Gender Identity Discrimination
Although Smith relied on sex stereotyping as the basis for sex discrimination against a transsexual, a number of states prohibit discrimination based on sexual orientation and gender identity. According to the Human Rights Campaign Foundation (2004), the District of Columbia, California, Minnesota, New Mexico, Rhode Island, Illinois, Washington, and Maine prohibit discrimination based on sexual orientation and gender identity. Indiana and Pennsylvania have executive orders prohibiting discrimination against transgender state employees. Employers located within these jurisdictions are already confronted with compliance issues, and organizations in other states may be confronted with them in the near future. Seven states (Connecticut, Florida, Illinois, Hawaii, Massachusetts, New Jersey, and New York) have had existing laws interpreted in court and employment commission rulings to provide some level of protection for transgendered workers. By the end of 2005, 82 cities and counties prohibited workplace discrimination on the basis of gender identity or expression, and 82 Fortune 500 companies and 20 Fortune 50 companies (Human Rights Campaign Foundation, 2006) had developed written nondiscrimination policies that include gender identity or expression.
FEED