The impact of the changes in some laws and EEOC guidelines relating to sexual minorities is increasingly significant. Employers should be alert to these trends because they likely will need to do more than update existing EEO policies to list “sexual orientation” and “gender identity” among the protected categories.
Among the anticipated challenges will be mitigating gender normative discrimination such as preferring masculine men and feminine women in employment decisions. As the EEOC wrote in a recent decision, Title VII prohibits discrimination based on biological sex as well as “the cultural and social aspects associated with masculinity and femininity.” The problem is this is easy to do inadvertently. Unintentional or not, this kind of discrimination can lead to the same liability as outright sex-based discrimination.
Consider these examples:
• Nancy is a sales manager at a large company. She is very glamorous: she keeps her hair long and curled, wears makeup and prefers skirt suits to pantsuits and heels to flats. Shirley, another sales manager, keeps her hair short and unstyled, does not wear makeup and always wears pantsuits with flats. Both are heterosexual women and both have regular client contact and have several direct reports.
• A nonprofit gay rights organization is hiring a new public relations officer who will serve as the primary face of the organization in the media, including on television. Two candidates are in the final running: Mark and Steve, both of whom are openly gay. The most apparent difference in these candidates is that Mark carries himself in an assertive, “butch” way, whereas Steve is smaller, more effeminate and often wears pink or purple ties to work.
When Nancy and Shirley go through their annual performance reviews, Nancy is praised for her “extreme personability and excellent social skills,” whereas Shirley is told she needs to improve her “interpersonal relationship with clients and subordinates.” Based on these reviews, Nancy is promoted over Shirley. Now, let’s say the nonprofit selects Mark because it believes he will present a more professional — and less stereotypical — image of gay people and the organization.
Nancy’s stereotypical femininity might have enhanced her supervisors’ opinion of her personability and social skills, and it is likewise possible that Mark’s traditional masculinity could have informed the nonprofit’s hiring decision. It is exactly this kind of preference that is prohibited or questioned under some trends in the law and could expose both employers to liability.
Employers should be careful when documenting non-objective performance and hiring criteria, which is typically where gender normative preferences creep up. Though things such as personability, charisma and relatability are laudable, employers would be wise to explain, in gender-neutral language, how an employee exhibits, or should exhibit, these qualities. Telling an employee to be a “good listener” or “clear communicator,” for example, is preferable to saying she should be “approachable” or “likable.” Similarly, commending an employee for being “responsive to client concerns” is better than saying “clients love him.”
Given the recent and continuing developments in this area, employers should reach out to in-house or outside counsel to review existing policies for compliance in light of developing laws, scrutinize any non-objective criteria referenced in current job descriptions and job performance forms/guidelines and institute training for HR managers and supervisors to educate them on the law and on effective ways of avoiding discrimination and harassment.
Alastair Gamble is an employment litigator with Lewis and Roca LLP. He can be reached at firstname.lastname@example.org.