Sexual Stereotyping Creates Liability
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State and federal laws prohibit discrimination based on sex. Under the federal law, Title VII of the Civil Rights Act of 1964, an unlawful employment practice is established when an employee can prove that sex or gender was a motivating factor for an adverse employment action. In a recent decision entitled, Lewis v. Heartland Inns of America, L.L.C., 8th Cir., No. 08-3860, Jan. 21, 2010, the Eighth Circuit Court of Appeals which governs federal courts in Iowa, Minnesota, Missouri, North and South Dakota, Missouri, Arkansas and Nebraska, found that sexual stereotypes can form the basis of a discrimination claim.
In Lewis,, a female hotel desk clerk was terminated after a member of management complained that she lacked the pretty and “Midwestern girl” look that was desirable for a front desk position.
In this case, the employee worked as a night auditor and was offered a front desk shift position. She accepted the position and began to work in it until the Director of Operations who had approved the promotion, changed her mind when she met Lewis in person. Once she saw Lewis, the Director stated that she wasn’t a “good fit” for the position as she lacked the “Midwestern girl” look necessary at the front desk. Lewis was tomboyish, was mistaken for a male, didn’t wear make-up and often wore more masculine clothing than other employees.
The Director then ordered Lewis’ immediate supervisor to return Lewis to her original position. The supervisor refused and was told by the Director that she should resign. Lewis was then re-interviewed for the position she had held for a month and, three days later, was terminated for “thwarting the interview process.” Lewis sued alleging sex discrimination and argued that she was terminated for not confirming to sexual stereotypes in violation of Title VII. While the lower court found in favor of the employee, the court of appeals reversed, finding that sexual stereotyping can violate Title VII when it impacts employment decisions as it did in this case.
This case is instructive even though it does not govern the federal courts in California in that it serves as a reminder that attention to sexual stereotyping, even if inadvertent can expose employers to significant liability.
In general, any employer who takes action against an individual because that individual doesn’t fit within sexual stereotypes is engaging in sex discrimination because the action would not have occurred but for the sex of the individual.
While many employers are well aware that state and federal law protects employees against employment discrimination on the bases of race, sex, national origin, religion, sexual orientation and disability, few are aware that these laws also protect against associational discrimination. Title VII of the Civil Rights Act of 1964, the
