Monday, December 5, 2011

"Too Feminine Looking" Discrimination?

Discrimination claims based on appearance usually involve an allegation that a plaintiff is not dressing or acting appropriately for his or her gender role. Classic Supreme Court Law in this area notes at least one case in which a plaintiff was not selected for promotion to accounting firm partner because she did not comport herself in a feminine enough manner. Cases on the flip side of the equation typically contain allegations that the plaintiff is harassed because his appearance wasn't "manly" enough.
So it was a surprise when I came across this case recently coming out of New York. A female junior high school custodian (now there is a job fraught with challenges) was not selected for a promotion. She alleged the novel argument that she was not selected because she appeared to be too feminine, i.e. she wore makeup, and dressed in clothes that, to use the words of the opinion, "accentuated her femininity." The factual basis of the claim was that one of her managers said at one point that the woman did not appear as an authoritative figure, which the plaintiff claimed was an allusion to her highly feminine appearance (totally irrelevant aside--somehow I missed out on highly feminine janitors working at my junior high school).
These so-called "gender plus" cases frequently turn on phrases that are found to be code words for some type of gender bias. The New York federal judge, however, found that "unauthoritative" does not equal "feminine" and noted that there was no other evidence to support the plaintiff's claim that the more "matronly" (is this a polite word for "manish"?) woman that was selected for the promotion was chosen based on her less polished appearance.
The employer's basis for the promotion choice? The allegedly more feminine applicant appeared hesitant and lacked confidence during her interview. The Court found that this was a proper and legitimate explanation for the employer's choice.
Gender plus cases don't apply only to appearance situations, of course. As male and female work and domestic rules continue to evolve, I expect we will see variations of this case continue. At some point, however, the so-called traditional male or female stereotypes may just disappear. Perhaps that day is not too far off.

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