By: Lisanne L. Mikula, Esquire
[email protected]
A lawyer in California made embarrassing headlines recently when he was sanctioned by a judge for sexist comments he had made to opposing counsel during a deposition. In a diatribe sounding as though it had been lifted from the pages of a Mad Men script, when opposing counsel – a woman – asked this lawyer not to interrupt her, this lawyer shot back, “Don’t raise your voice at me. It’s not becoming of a woman.”
In mandating that this lawyer make a contribution to a women’s law foundation as part of its sanctions order, the judge astutely observed:
“There are several obvious problems with his statement, but, most saliently, [this lawyer] endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys…
A sexist remark is not just a professional discourtesy–although that in itself is regrettable and all too common. The bigger issue is that comments like [this lawyer]’s reflect and reinforce the male-dominated attitude of our profession. A recent ABA [American Bar Association] report found that ‘inappropriate or stereotypical comments’ towards women attorneys are among the more overt signifiers of the discrimination, both stated and implicit, that contributes to their underrepresentation in the legal field.”
This incident is a sobering reminder that even though gender stereotyping has long been recognized as a hallmark of sex discrimination, it remains pervasive. It has been nearly thirty years since the United States Supreme Court, in Price Waterhouse v. Hopkins, condemned as discrimination on the basis of sex the advice given by an accounting firm to a female employee that her chances of partnership would be improved in the future if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Yet, gender stereotyping remains sufficiently ingrained in our culture that the American Bar Association is currently considering amending the model code of professional conduct governing attorneys to specifically prohibit harassment and discrimination, including the illegal gender stereotyping condemned by the Price Waterhouse decades ago.
The impact of illegal gender stereotyping, however, is not exclusively felt by women-men also suffer adversely when they are perceived to act contrary to the behavior “expected” of a man. For example, while the Family and Medical Leave Act provides that male-as well as female-employees may take up to twelve weeks of unpaid leave after the birth or adoption of a child, a recent U.S. Department of Labor Policy Brief noted that while nine out of ten fathers in the United States take some leave after the birth or adoption of a child, 70% of those fathers took only ten days or less of leave. A contributing factor to the shortness of leave times for fathers was found to be the stigma which attaches to a man who takes lengthy paternity leave-behavior which is antithetical to a workplace culture where the male breadwinner is considered the norm and opting to take extended time to nurture a child is not considered “masculine.”
Further, the LGBT community is especially vulnerable to illegal gender stereotyping. While a few courts have permitted claims asserting workplace discrimination on the basis of sexual orientation or gender identification to proceed, the lack of specific language in federal and state anti-discrimination statutes barring such discrimination has been a roadblock for many LGBT claimants. In a groundbreaking decision a few months ago, however, the Equal Employment Opportunity Commission (“EEOC”) ruled unanimously that discrimination on the basis of sexual orientation or gender identification is discrimination on the basis of sex-there is no need for specific language in the anti-discrimination laws prohibiting discrimination on the basis of sexual orientation or gender identity. A determinative factor cited by the EEOC is the pervasive gender stereotyping encountered by LGBT employees, which deprives those individuals of fair working conditions simply because they do not fit someone’s perception of “expected” male or female conduct or appearance.
If you’ve been a victim of gender stereotyping or if you are an employer who wants to learn how to help prevent it, the attorneys at DiOrio & Sereni, LLP can help you. Contact Lisanne L. Mikula, Esquire at 610-565-5700, or send her an e-mail at [email protected].
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