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Stereotypes and the Law

Our work normally focuses on the impact of stereotypes on people and how to speak up in the face of stereotypes. We have not yet addressed the legal ramifications of stereotyping in the workplace. In this issue of The Ouch! Files we will look at the legal consequences. It may seem a little technical, but it’s very real and very important.

Let’s start with two basic definitions:

Stereotypes: Simplified fixed beliefs about a group of people.

Protected Characteristics (Protected Class or Protected Basis): Employment laws prohibit discrimination and harassment against employees and job applicants because of certain factors; e.g., religion, gender, race, ethnicity, color, age, national origin, disability – to name a few.

Before you read further, watch this scenario from Ouch! That Stereotype Hurts. It demonstrates how easily stereotypes can enter into decision-making, plus several techniques for moving past stereotypes.

Consider these questions: How do stereotypes surface in your work area? Have you considered the legal implications?

So, what does U.S. law say about stereotypes in the workplace? A stereotype is a thought. What a person thinks is not against the law. But, making employment decisions – or harassing a person – based on stereotypes about protected characteristics can be.

In a 1989 precedent-setting sex discrimination case, the Supreme Court explained: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group.”1

In May 2007, the Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. It references the 1989 Supreme Court’s findings and further states:2

“Employment decisions based on such stereotypes violate the federal antidiscrimination statutes even when an employer acts upon such stereotypes unconsciously or reflexively… Thus, for example, employment decisions based on stereotypes about working mothers are unlawful because ‘the antidiscrimination laws entitle individuals to be evaluated as individuals rather than as members of groups having certain average characteristics’.”3

The EEOC Guidance gives ten examples of relevant evidence in charges alleging disparate treatment of female caregivers. (Note: these examples apply to all job classifications.) Here are several:

  • “Whether the respondent asked female applicants, but not male applicants, whether they were married or had young children, or about their childcare and other caregiving responsibilities;

  • “Whether decision makers or other officials made stereotypical or derogatory comments about pregnant workers or about working mothers or other female caregivers;4

  • “Whether, despite the absence of a decline in work performance, the respondent (the employee’s employer) began subjecting the charging party or other women to less favorable treatment after they assumed caregiving responsibilities.”

Another situation described by Barbara Sloan and Dori Bernstein of the EEOC’s Office of General Counsel:

“The anti-discrimination laws prohibit employment decisions based on ageist stereotypes rather than on the actual abilities, experience and job-related skills of individual applicants and employees. Age-based stereotypes are frequently implicated in discrimination claims and can provide strong evidence of unlawful conduct.5

Stephen Anderson, harassment and sex discrimination prevention training expert and author of award-winning Workplace Harassment: Prevention and the Law online courses, explains the connection between stereotypes and employment law this way:

"Stereotypes are a way of processing information that is colored/simplified by a person's assumptions about a group of people's protected class (national origin, color, gender, age, etc.). Employment law doesn't pertain to our thoughts - it evaluates our behaviors. If we act out stereotypical beliefs - express them in words, behaviors, or employment decisions - we often exclude people in the workplace, treat employees differently, and/or create a hostile work environment because of their protected class."

So, if there is evidence in a lawsuit that actions based on stereotypical beliefs contributed to:

  • unwanted, offensive behavior (protected characteristics harassment); or

  • an environment that negatively affected a person's ability to do his or her job (hostile work environment); and/or

  • employment decisions that negatively affected an employee or group (illegal discrimination);

then, stereotypical comments and behaviors are also used by the judge or jury to determine if protected characteristics harassment or illegal discrimination occurred.

According to Stephen, “The vast majority of hostile work environment lawsuits contain sexual or ethnic/race based comments, jokes and putdowns. These comments and jokes often escalate in seriousness, i.e., more sexual, derogatory and abusive, and involve more employees behaving the same way.”

In addition, Stephen notes there is a trend in hostile work environment court cases: “Courts are increasingly taking the position that the situation doesn’t have to be as negative, as pervasive, or as harmful to an employee – compared to five years ago – before they create a legally actionable hostile work environment.”

My conclusion: If you do not respond to stereotypes in the workplace, there are potential legal implications. Even when stereotypical behaviors do not cross the line into illegal territory, they can still be unfair, disrespectful, and unproductive. So, whether the concern is legal liability or how to create an inclusive workplace – or both – it’s worth being vigilant against comments, actions and decisions based on stereotypes – our own and those of others.

1
Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989)
2
http://www.eeoc.gov/policy/docs/caregiving.pdf (2007)
3
Lust v. Sealy, Inc. 383 F.3d 580, 583 (7th Cir. 2004)
4
Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000)
5
Sensation Challenges Age and Appearance Stereotypes by Rebecca Hastings, Society for Human Resources Management, viewed online 4/27/2009

Quote

“No one should make the claim of being educated
until he or she has learned to live in harmony
with people who are different."

A. H. Wilson

Your Story

Submitted by Barbara Ceconi

Dressed for work, I am rapidly walking down the street with my guide dog on my way to facilitate a workshop at the museum. I worry, as always, that the mass transit will be late.

I run into a convenience store to buy some mints. The clerk rings up a few orders and I hear no one else in line. “Could you get me some wintergreen Tic Tacs, please?” I query. “On the left,” he responds, apparently not looking up. The boxes are recognizable by shape, but not the flavors. I ask him again, explaining that I am blind. With a surprised, “Oh,” he leans over the counter and grabs a pack for me.

I continue walking at a fast pace, deep in thought on the subject matter of the day’s session. Suddenly a man stops me. “Do you know where you are?” he asks. I jerk myself from my thoughts, momentarily confused by the interruption. “Yes, I know where I am and where I am going.” I walk on, annoyed by the interruption.

I am nearly at the subway station. Without a word, someone grabs my arm and drags me across the street. I struggle to pull my arm away from this stranger. “What are you doing?” I sputter. “I was just trying to help. Sorry.” The person walks away. Since the experience was disorienting on several levels, I now have no idea what corner I have been deposited on. I ask passersby where I am. “On the corner of Harvard and Beacon,” answers someone. It’s a four-way intersection, so that doesn’t situate me. I wait for someone else to pass. “Excuse me, what store am I in front of?” No response. Wait for the next person. “Can you tell me where the bank is?" hoping for information so that I can puzzle out my position. I feel frustrated and angry that others think they know what I need better than I.

After I receive the direction, I walk, reoriented, towards the subway stop. Once aboard, a pleasant woman offers me her seat. I respond with a curt, “No.”

My response was sharp and out of line. After the string of incidents, I am in no mood to be gracious. This well-intentioned woman must have been shocked by my hostile tone, and justifiably so. Others near her could have been as well. Interactions like these can cause people to jump to the conclusion that people who are disabled are angry. Normally, I would have thanked the woman and smiled. I snapped at her because of the accumulated frustration I experienced during my brief walk. And those emotions landed on her.

This is known as "cumulative effect." It’s the recurring small — and not so small — things that build up when people are discounted over and over again.

Why do I tell you this story? Because most helpful people don’t realize that good intent does not always equate with good impact. When unsure how to assist, ask the person what might be helpful or even if they need help. This gives the person their dignity – something we ALL need.

Submit Your Story

If you have a story or other information you would like to share, submit it here.

InSight

The Ouch Files Funnies | FOR BETTER OR FOR WORSE

FOR BETTER OR FOR WORSE © 2011 Lynn Johnston Productions. www.fbofw.com. Reprinted with permission. All rights reserved.