NH Gender Stereotyping – Tennis star Serena Williams has gotten a lot of attention of late, for her argument that a male U.S. Open referee punished her more severely for her outbursts on the court than he would have punished a male player. If the referee was Ms. Williams’ supervisor (in the employment context), and if Ms. Williams had some evidence that her male peers were, in fact, shown greater leniency for their outbursts, Ms. Williams would have the makings of a gender discrimination claim on the basis of gender stereotyping.
Price Waterhouse v. Hopkins
In 1989, in a decision called Price Waterhouse v. Hopkins, the United States Supreme Court wrote, “an employer who acts [against a female employee] on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” The Court explained that “an employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.” The Court, therefore, ruled that it violated federal anti-discrimination law for an employer to demote or fire, for example, a woman due to her aggressiveness, while not taking such action against male employees, due to an expectation that women should not be aggressive.
Assuming Ms. Williams could show she engaged in “aggressive” conduct, that her male peers did too, and that she was punished more severely than her peers, how would she successfully prove the last piece, that the referee (her “supervisor’) had a bias that women should be meek (or at least meeker than men)? The First Circuit Court has said, importantly, that the employee does not need to prove that her supervisor had a conscious gender bias nor that his discrimination was intentional. Rather, the Court has said, “where the disparity in treatment is striking enough, a jury may infer that [gender] was the cause.”