Sex stereotyping discrimination occurs in the workplace if an employer discriminates against an employee because he or she does not conform to gender or sex stereotypes. Sex stereotyping discrimination is prohibited under Title VII of the Civil Rights Act of 1964. An employer is not allowed to base its hiring, firing, promotion, demotion, or other important workplace decisions on whether you conform to a sex stereotype.
In the 1989 Supreme Court case of Price Waterhouse v. Hopkins, the Court stated that workplace remarks based on sex stereotypes do not necessarily establish that gender entered into a certain employment decision under Title VII. Instead, as a plaintiff, you would need to show that the employer relied on your gender in making its decision. Remarks evincing stereotypes can be evidence that gender did play a role in the employer’s decision. In that case, some of the comments about a woman at the firm stemmed from sex stereotypes.
However, employers can institute a policy that discriminates based on sex stereotyping when that is a bona fide occupational qualification (BFOQ). Your employer cannot institute a policy of only hiring males for a particular position, absent a bona fide occupational qualification (BFOQ). A BFOQ defense argues that the discrimination is reasonably necessary to the normal operation of a specific business. For example, if a television script calls for a feminine actress to play a submissive role, this may be a BFOQ, even though it also constitutes a sex stereotype. For another example, if a movie casting call asks for a muscular, masculine actor to play the hero in an action movie, this would also be a BFOQ, even though it also constitutes a sex stereotype.
Sex stereotyping discrimination can include harassment. Hostile work environment harassment is illegal if it is so severe or pervasive that it would cause a reasonable person to think that a hostile work environment had been generated by the conduct of the harassers. You can be a victim of sex stereotyping harassment regardless of whether you do or do not conform to a sex stereotype.
In one Title VII case, a supervisor harassed an ironworker because the ironworker did not act in the way that the supervisor thought that a man should act. In other words, he did not conform to sex stereotypes. The key issue was not whether the man did or did not conform to sex stereotypes, but whether that had motivated the harassment. The jury determined that this was sex stereotyping harassment, which is prohibited under Title VII. This verdict was overturned at the appellate level, but the Equal Employment Opportunity Commission (EEOC), which enforces Title VII, asked for a rehearing, and this resulted in a ruling in favor of the ironworker.
State laws often mirror Title VII. In some cases, however, LGBTQ workers may find explicit protection under state laws, whereas their Title VII case may rely on using sex stereotyping arguments to obtain remedies for sexual orientation discrimination or gender identity discrimination. For example, California’s Fair Employment and Housing Act explicitly prohibits gender identity and sexual orientation discrimination (including harassment), so there is no need to couch arguments in the rationale that sex stereotyping is prohibited.
Some city laws offer even more protection against gender identity discrimination and sexual orientation discrimination, as well as sex stereotyping discrimination. For example, the New York City Human Rights Law is widely recognized as one of the strongest and most expansive anti-discrimination laws in the country because it expressly prohibits gender identity and sexual orientation discrimination. Unlike Title VII, it has no caps on either compensatory or punitive damages, and small employers are covered.
