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149 7 Establishing Disparate Treatment through Masculinities Masculinities theory can explain why sex stereotyping against women and men at work constitutes disparate treatment. In some stereotyping cases, the defendant will have conscious awareness of his stereotypes and that he is acting upon them (causation-­ plus model of intent). In others, the defendant will act upon unconscious stereotypes (causation model of intent). In either situation, it is consistent with the purposes of Title VII to recognize these behaviors as illegal discrimination because the victim suffers because of his membership in a protected class, and there is evidence that employers can train managers to eliminate decision making based on implicit bias.1 Sex Stereotyping as Disparate Treatment As noted in chapter 2, the Supreme Court first articulated the stereotyping doctrine in Price Waterhouse v. Hopkins and concluded that evidence of sex stereotyping was sufficient to prove that sex was a motivating factor in the refusal to promote Ann Hopkins. Justice O’Connor concurred, decrying the use of stereotyping in employment and treating it as if it were direct evidence of conscious discriminatory intent: It is as if Ann Hopkins were sitting in the hall outside the room where partnership decisions were being made. As the partners filed in to consider her candidacy, she heard several of them make sexist remarks in discussing her suitability for partnership. As the decision makers exited the room, she was told by one of those privy to the decision making process that her gender was a major reason for the rejection of her partnership bid. (Price Waterhouse v. Hopkins 1989, 272) Masculinities research demonstrates that workplaces are structured around gender and saturated with practices that are based on stereo- 150 | Establishing Disparate Treatment through Masculinities types of the proper roles of men and women. To the extent that these practices and structures limit a plaintiff’s career prospects within the firm or in other ways alter the terms and conditions of a plaintiff’s employment and cannot be justified by the BFOQ defense,2 these structures and practices should be actionable under Title VII. Limiting a woman’s or a man’s career possibilities, and structuring work assignments and expectations on stereotypes of whether the job is “female” or “male” are invidious practices that can be invisible but nonetheless very harmful to women and some men. Masculinities Theory: Stereotypes and Disparate Treatment Masculine Woman as “Aggressive Bitch” Many studies note the presence of the “double bind” for women who are attempting to operate in traditional male jobs. Particularly, studies show that women are judged differentially when they hold leadership positions (Valian 1998; Foschi, Lai, and Sigerson 1994; Butler and Geis 1990; Heilman et al. 1989). Very assertive women are viewed especially negatively for the same behavior that, if seen in men, is considered positive (Fletcher 2001; Lorber 1994; Eagly, Makhijani, and Klonsky 1992). Joyce Fletcher studied female engineers who were expected to act relationally —­ to be feminine and good listeners. Ironically, the same men who expected women to act relationally devalued women for acting in a relational style (Fletcher 2001). Cecilia Ridgeway attributes this reaction to female leaders to “status beliefs.” Status beliefs are shared cultural beliefs concerning the competence of one group vis-­ à-­ vis another. Assumptions about the ranking of one group over another are legitimated by presumptions of differences in competencies among people in different groups. Ridgeway notes, When gender status beliefs are effectively salient in a situation, as they are in mixed-­ sex and gender-­ relevant contexts, they create implicit performance expectations for women compared to similar men that shape men’s and women’s willingness to speak up and assert themselves, the attention and evaluation their performances receive, the ability attributed to them on the basis of their performance, the influence they achieve, and consequently, the likelihood that they emerge as leaders. When women Establishing Disparate Treatment through Masculinities | 151 do assert themselves to exercise authority outside traditionally female domains, as they must do to be high-­ status leaders in our society, gender status beliefs create legitimacy reactions that impose negative sanctions on them for violating the expected status order and reduce their ability to gain compliance with their objectives. (Ridgeway 2001, 637–­ 38) In Price Waterhouse, the partners considered Ann Hopkins too aggressive , lacking in interpersonal skills, and abrasive. The Court noted that some of the partners reacted negatively to Hopkins’s personality because she was a woman (Price Waterhouse v. Hopkins 1989). For example , one partner described her as “macho” while...


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