Sex Stereotyping Lawyers

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Although there are currently no Federal Laws preventing employment discrimination on the basis of sexual orientation per se, the U.S. Supreme Court's landmark ruling in Price Waterhouse v. Hopkins  does protect employees from being discriminated against on the basis of sexual stereotypes.  So what does this mean?

What is Sex Stereotype Discrimination?

Sex stereotype discrimination is where an employer takes an "employment action" against someone based on that person's non-conformance with a gender stereotype.  

For example:  A woman working for an accounting firm is told that she dresses in too masculine a manner, and that she should wear more make-up and not be so aggressive.  When she fails to do these things, she is refused a promotion to partner within the firm.  She can then sue under Title VII of the Civil Rights Act of 1964 for illegal sex discrimination.

Sex stereotyping applies equally to both men and women.  So if an employer thinks men should dress "manly," or speak with a low voice, or behave in a certain "stereotypically male" way, and refuses to hire or promote a male employee because he does not do these things, this is prohibited discrimination under Title VII.  

What Qualifies as an "Employment Action?"

An employer's employment action can be any number of things to an employee, including:

Basically, any undesirable action that an employer takes based on the failure of an employee to meet a gender stereotype can qualify as a negative employment action.  

Sexual Orientation vs. Sexual Stereotypes

Courts have found that employment discrimination based solely on sexual orientation is only improper (but often not illegal), while sex stereotyping is actually prohibited, creating a very fine line between the two.  Although for the purposes of the sex stereotyping doctrine, someone's sexual orientation is technically irrelevant, often discrimination against both goes hand in hand.  This means that the "sex stereotyping" claim becomes is a very useful tool for members of the LGBT community who feel they have been unfairly treated in the workplace because of the way they act or dress.  

For example, if a gay person is fired for being gay, he/she will generally not have any protection under federal law.  But if that person can prove that they were fired for "acting gay" (as opposed to actually being gay), then they probably are protected.  

Clearly, the subtle differences between these two types of discrimination are fairly complex, and the state laws dealing with the subject even more so.

How Can an Attorney Help Me?

An experienced employment discrimination lawyer will be very familiar with the state and federal laws concerning both sexual orientation and sexual stereotype discrimination, and can tell you the avenue most likely to win.  In many states, the slightest difference in legal approach can be the difference between winning and losing.  Because of the very gray boundaries in these fields, as well as the strict deadlines involved, a lawyer well versed in these topics is essential to these types of cases.

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Last Modified: 11-02-2015 10:03 AM PST

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