The last 50 years have seen profound changes in social roles in the United States. As women have entered the workforce in greater numbers, men have taken on more responsibilities around the house. A variety of lifestyles have gained increasing acceptance, making behaviors once seen as fringe, like changing genders, socially acceptable and legally protected.
Despite these changes, it is indisputable that gender stereotypes still exist. Many people still expect men to act, dress, and behave in a masculine way, and for women to behave in a feminine way. And, as a number of cases have shown, these stereotypes are often brought into the workplace.
This is something employers should be careful about. “Gender stereotyping,” as that term has been defined by the courts, is illegal. Courts have held that it violates Title VII of the Civil Rights Act of 1964, which prohibits, among other things, discrimination based on gender. Gender stereotyping may also violate state laws that prohibit discrimination on the basis of gender, sexual orientation, or gender identity.
The Supreme Court has defined gender stereotyping as having a belief that a person should act a certain way based on his or her gender. It has held that it is illegal to discriminate against an employee for acting in a way that does not conform to a gender stereotype. For example, the Court held that it was illegal for a company to refuse to promote a woman because she did not dress femininely, wear makeup, swore, and was told that she needed “a course at charm school.”
Gender stereotyping can occur in more subtle ways as well. For example, men are often expected to not let domestic obligations interfere with their work. Allowing women to work flexible schedules to tend to children and family obligations, but not allowing men to do so, is an example of gender stereotyping that a court has found to be illegal.
The line between gender stereotyping, which is a violation of Title VII, and discrimination based on sexual orientation or transgenderism, which are not violations of Title VII (but are violations of many state anti-discrimination laws) is not always clear. For example, one court has held that discriminating against an employee for speaking in an effeminate voice would constitute discrimination based on gender stereotyping, and therefore be illegal under Title VII. However, that same court has held that making fun of an individual because he is homosexual, which included making fun of the way the employee spoke, was not a violation of Title VII.
Because gender stereotyping might be a violation of Title VII, employers should attempt to root it out of the workplace. This can be difficult to do, as employees often engage in gender stereotyping inadvertently. Employers should discourage statements to male employees chiding them for “not acting like a man.” They should also discourage comments regarding the dress or appearance of female employees. Employers should consider adding statements to employee handbooks making it clear that gender stereotyping is not permitted in the workplace. Consult an attorney for more information about doing so.