Stereotyped Statements As Discrimination Evidence
Employment decisions based on stereotyping can be illegal. For example, comments suggesting that "women should be home with children instead of working", or that "Hispanics are lazy", or that "older workers can't adapt to change" -- can be used as proof in discrimination lawsuits and sometimes are.
I wrote recently about the case of Chadwick v. Wellpoint. In that case Laurie Chadwick, the mother of four --including a set of triplets -- was denied a promotion because she had "too much on her plate." It's an example of a fairly typical case in which we see gender stereotyping at play.
There was no evidence that Ms. Chadwick's family obligations were actually interfering with her work. Rather, her superiors simply assumed this would occur. The court in Chadwick v. Wellpoint stated: "the assumption that a woman will perform her job less well due to her presumed family obligations is a form of sex-stereotyping and ... adverse job actions on that basis constitute sex discrimination."
What we haven't seen much of -- in fact, haven't seen any of -- are cases in which evidence of gender stereotyping has been used to prove discrimination against a man -- certainly not a man who has been accused of sexual harassment. That's why the new case of Sassaman v. Gamache from the Second Circuit Court of Appeals is so interesting and important.
Facts of the Case
The Workplace Relationship Leading to He-Said, She-Said Harassment Complaint.
Carl Sassaman worked for the Board of Elections for Dutchess County, New York. He worked with a woman named Michelle Brant. According to the evidence, Brant and Sassaman spent time together. They ate lunch together, smoked cigarettes together, and considered themselves to be friends.
At some point, Brant became Sassaman's boss and their relationship soured. According to the testimony, Sassaman asked Brant out for a drink. She said no, so he suggested they meet for coffee. She declined that offer too, but according to Sassaman, she began to reveal intimate aspects of her personal life to him.
During that same conversation, as the story goes, she asked Sassaman whether he wanted to have a one-time sexual encounter with her. His reaction to the overture was that it was not a good idea to be friends with her anymore.
Brant had a different recollection of the conversation. She testified that in response to Sassaman's changed demeanor towards her, she asked Sassaman whether "he was going to let their friendship go down the tubes because she did not want to have sex with him."
A couple of months and a few incidents later, Sassaman learned from David Gamache -- the Board Commissioner -- of Brant's complaint that he was harassing and stalking her. Gamache told Sassaman to stay out of the office.
The Employer's Inadequate Response to the Harassment Complaint.
Brant filed a written complaint against Sassaman, which Gamache referred to the Dutchess County Sheriff's Department for investigation. The sheriff's investigation found insufficient evidence to support any type of criminal charge.
Gamache did not refer the matter for an internal investigation. Instead, a week after the sheriff's report, Gamache called Sassaman and told him that he would be terminated unless he chose to resign.
The "Smoking Gun" Comments
According to the testimony, Gamache defended his decision with this explanation:
- "I really don't have any choice. Michelle knows a lot of attorneys; I'm afraid she'll sue me."
- "And besides you probably did what she said you did because you're a male and nobody would believe you anyway."
Sassaman resigned, feeling that he had no other choice, and then filed a lawsuit alleging that he was terminated on the basis of sex stereotyping in violation of Title VII of the Civil Rights Act of 1964. The District Court judge threw out the case on the grounds that Sassaman failed to provide any evidence of sex discrimination.
The Second Circuit reversed. It found that the evidence of stereotyping -- Gamache's statement that because Sassaman was a man he probably did sexually harass Brant as she claimed -- was sufficient to support Sassaman's sex discrimination claim. The court's decision was soundly based on precedent concerning sex stereotyping -- developed in cases brought by women.
Legal Background on Sex Stereotyping
Back in 1989, the Supreme Court of the United States decided the landmark case of Price Waterhouse v. Hopkins. In that case, Ann Hopkins, a senior manager at the accounting firm of Price Waterhouse, was considered for, but denied partnership.
Statements in the review process leading to that decision described Hopkins as "an outstanding professional" who had a "deft touch," a "strong character, independence and integrity." Clients described her as "extremely competent, intelligent," "strong and forthright, very productive, energetic and creative." Others had a different view -- and a sexist one at that:
- One partner described her as "macho."
- Another suggested that she "overcompensated for being a woman"
- A third advised her to take "a course at charm school."
- Several partners criticized her use of profanity; in response, one suggested that they objected to this only "because it's a lady using foul language."
Hopkins sued for sex discrimination under Title VII. The Supreme Court, for the first time, addressed the legal significance of sex stereotyping in the context of Title VII case:
As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group ... "In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes."
As applied to Ms. Hopkins, the Court went on to say:
It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring "a course at charm school."
Nor. . . does it require expertise in psychology to know that, if an employee's flawed "interpersonal skills" can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex, and not her interpersonal skills, that has drawn the criticism.
While the Price Waterhousecase was hugely important at the time for victims of this type of discrimination, its main significance has had to do with technical issues regarding burdens of proof -- and little with to do with blazing a trail for litigation based on sex stereotyping evidence. So it came as a big surprise when the Second Circuit relied on the Price Waterhouse language above and reversed the district court in the Sassaman case.
Sex Stereotyping Sassaman As Likely To Harass female Employees
Holding no punches, the court in Sassaman stated that Gamache's decision to terminate Sassaman because men, as a group, have a propensity to sexually harass women, was "overt sex stereotyping." According to the Court:
Gamache appears to have defended his decision to credit Brant's allegations of sexual harassment by pointing to the propensity of men, as a a group, to sexually harass women. . .
A jury could reasonably construe Gamach's statement as persuasive evidence that he pressured Sassaman to resign because of his discriminatory assumptions about the propensity of men to sexually harass their female co-workers.
Failure to Investigate the Harassment Complaint
Compounding the problem for this employer was that it failed to investigate Brant's complaint. That too, according to the Court, constitutes evidence in support of Sassaman's claim. As the Court pointed out, when faced with a sexual harassment complaint:
The failure of an employer to conduct an adequate investigation or to undertake an appropriate response can constitute evidence in support of a Title VII plaintiff's allegations.
What's more, fear of a lawsuit , another defense raised by this employer, was also deemed to be a lousy excuse to terminate Sassaman. According to the Second Circuit:
An employer many not rely on an alleged fear of a lawsuit as a reason to shortcut its investigation of harassment and to justify an employment decision adverse to the putative harasser that itself violates Title VII.
This part of the decision is particularly interesting in light of the City Of New Haven's position in the Ricci case currently pending in the Supreme Court -- see Workplace Prof. Blog, suggesting that the employer in Sassaman may have felt in something of a bind, liable to the coworker if the allegations of harassment weren't taken seriously"; the Ricci decision is also at the center of the controversy surrounding the Sotomayer nomination.
In sum, Sassaman prevailed for two related reasons:
- He presented evidence which constituted male sex stereotyping.
- Because of such stereotyping, his employer credited the woman's version of the sexual harassment events and failed to properly investigate the charges she lodged against him.
While the law prohibiting sex stereotyping as the basis for an adverse employment decision has been around for a long time, there are a paucity of decisions that rely on it to substantiate favorable outcomes for the plaintiff.
There has never been a case that I know of where a sex stereotyping argument has been used in favor of a man who claims to have been improperly accused of sexual harassment. What this means is that men who have been victimized by false accusations of sexual harassment now have a powerful case to rely on that did not previously exist. Those deemed guilty of sexual harassment based on a "boys will be boys" knee-jerk reaction will finally have some relief.
Also, the defense of "we might get sued" may not carry the day to justify an unsubstantiated termination decision in such a situation. (We'll have to wait and see if the Supremes address this aspect of Ricci, in which the alleged discrimination may likewise have been motivated by fear of a lawsuit.) Employers, it seems to me, have a whole new can of worms to worry about.
This post originally appeared in George's Employment Blawg.