Tag: sex stereotyping

The DOJ argued in its brief that “sex stereotyping is actionable only to the extent it provides evidence of favoritism of one sex over the other,” and that it “does not excuse the plaintiff from the fundamental requirement of proving that the defendant treated members of one sex less favorably than similarly situated members of the opposite sex.” Otherwise, says the DOJ, “countless sex-specific policies would be per se unlawful as based on sex stereotypes, “ such as a “dress code that required men to wear neckties.”

But isn’t that the very point of prohibiting sex-based stereotypes at work. The stereotype itself is the “evidence of favoritism of one sex over the other.” It is the proof that the employer “treated members of one sex less favorably than similarly situated members of the opposite sex.”

Also read: #MeToo Hasn’t Killed the Office Romance, Just the Inappropriate Ones

An employer that prohibits women, but not men, from wearing neckties is acting on a sex-based stereotype that a necktie is men’s attire, and not women’s attire. Similarly, an employer who requires women to shave their legs, while letting men grow it au naturel, acts on a sex-based grooming stereotype for no reason other than gender. The application and enforcement of a sex-based stereotype to the detriment of one sex over another is the “evidence of favoritism of one sex over the other.” No other proof should be necessary.

I am hopeful that the Supreme Court does right by LGBTQ employees and holds that Title VII’s prohibition against sex discrimination implicitly covers LGBTQ discrimination. If, however, these cases go the other way, I pray that the Court does not take the DOJ’s bait and rewind women’s rights by five or six decades.