While the federal Civil Rights Act contains no outright prohibition against discrimination based on sexual orientation, that doesn’t mean employers can get away with discriminating against employees who don’t fit society’s stereotypes about how men and women should look.
Sex stereotyping may well be sex discrimination because it is based on notions of what is “feminine” and “masculine.”
Consider this recent 8th Circuit Court of Appeals decision ordering a sex discrimination trial.
Recent case: Brenna Lewis began working for Heartland Inns of America on the night shift. She got excellent reviews, regular pay raises and promotions. Customers liked her. Then she applied for a promotion to the daytime shift at the front desk.
Lewis got the promotion without an interview with upper-level managers. She began the job and got positive feedback from her supervisor and a customer who claimed she had never experienced such great service before.
Then a manager responsible for HR functions came to the hotel and saw Lewis for the first time. Lewis dressed in loose clothing, preferring button-down shirts and slacks. She has short hair. Her supervisor described Lewis as having “an Ellen DeGeneres kind of look.” That look apparently conflicted with the manager’s perception that desk clerks should have a “Midwestern girl look.”
She ordered Lewis back to the night shift and called her in for an interview. Then she was fired, allegedly for opposing some recent policy changes.
Lewis sued, alleging sex discrimination based on stereotypes of how women should look.
The 8th Circuit Court of Appeals said such stereotyping can be sex discrimination. It ordered a jury trial to uncover whether Lewis’ firing violated the law. (Lewis v. Heartland Inns, No. 08-3860, 8th Cir., 2010)
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- Same manager who hired should do the firing
- Establish clear performance expectations so courts can judge if employee was meeting them
- Look for firing trends that could signal bias
- Remind supervisors to err on the side of caution when employee claims medical emergency
- Retain right to nix discipline that might be retaliation