Stereotyping is always dangerous, and if employers limit their understanding of sexual discrimination to the stereotype of a more powerful male demanding sexual favors from a female subordinate, they could be caught unawares in a court of law.
Certainly those behaviors are illegal — but what about harassment of a biological male who dresses as a female? Or male-to-male or female-to-female harassment? Or even a subordinate’s harassment of a superior?
To protect themselves legally, employers must not only be knowledgeable about what types of discrimination there are, but must also educate their employees about what behaviors are and are not acceptable.
Assessing what behavior is and is not protected by law, however, can be complicated, and answers are different depending on whether the alleged discrimination is tried under federal or state law. Many states, for example, protect disability in state versions of the equal employment opportunity laws but use the same definition as federal law, which involves a physical or mental impairment that substantially limits a major life activity. But for a few states, including New Jersey, California, and Connecticut, the definition of what constitutes disability is broader under state law.
Barbara Lee, a professor in the School of Management and Labor Relations at Rutgers in New Brunswick, will teach “Equal Opportunity Law and Lawful Employment Programs” on Wednesday, September 3, from 9 a.m. to 4 p.m. at the Janice H. Levin Building, on the Livingston Campus in Piscataway. Cost: $450. For more information, call 732-445-5590.
Many types of protection from discrimination exist under New Jersey law — more than under United States law. Some that have had top billing recently include:
Sexual-orientation discrimination. If an employer is sued or has a discrimination complaint filed in this area, it will be under the New Jersey Law Against Discrimination.
Sexual-orientation discrimination means discrimination based on a person’s gender identity or expression of that identity. The courts have looked, for example, at discrimination against transsexuals — people who are uncomfortable with their physical gender and may be preparing for gender-reassignment surgery.
A biological male dressing as a female and wanting to be called by a woman’s name is protected, whether the person has physically changed his gender. In the forefront of changing attitudes toward transsexuals, some colleges today have gender-neutral housing and would allow a female to have a roommate who identifies as female but is physically male.
Although many people have never considered this issue, says Lee, at a recent conference she heard that there are 5 million transsexuals in the United States.
In the workplace difficult issues can arise regarding transsexuals. Which restroom, for example, does a presurgical transsexual use? “Often employers are not understanding or coworkers object,” says Lee, “But the law is clear that people can’t discriminate. If you are living as a woman and dress as a woman, biology is not at issue for employment law.” A simpler resolution for the bathroom issue, of course, might be to have a unisex bathroom.
These issues are most successfully resolved in organizations that train their employees about these issues and plan for them. Classes should explain what gender dysphoria (literally, unhappiness with one’s gender) is and how it can be diagnosed; in fact, the American Psychiatric Association lists it as a gender identity disorder in its “Diagnostic and Statistical Manual of Mental Disorders.”
A court case involving a transsexual resulted from a work situation that was not handled well by the employer: Carla Enriquez versus West Jersey Center for Behavior Learning and Attention and West Jersey Physicians Association. The man involved, a specialist in adolescent psychiatry, was preparing to undergo sex-change surgery by dressing and living as a female. “He did that and was fired because he refused to dress as his biological sex,” says Lee, “but he was successful in claiming sex discrimination.”
Religious discrimination. Most recently many issues have come up regarding Muslim practice. Employers have refused to allow women to wear head scarves, which constitutes religious discrimination.
Lee cites an Arizona case involving a Muslim woman who worked at a rental car company. During Ramadan, when Muslims are required to fast from sunup to sundown, she wanted to wear her head scarf at work. Her employer told her she could wear it in the back office but would have to take it off when working the counter; when she insisted on wearing it, he fired her. Although the case closely followed September 11, 2001, and the employer’s concern was customer dislike, she won her case.
Another issue that comes up is the need to pray at certain times during the day. Questions arise about whether that need can be accommodated, how much time an employee must be given, and whether a quiet room can be reserved.
Sexual harassment. A more recent development is male-on-male and female-on-female harassment. The cases in this area are usually categorized as the result of desire or hatred. Under the desire category, the harasser is probably gay but not necessarily the target, and the interaction involves sexual or romantic desire. Under the hatred category the harasser usually is not gay but sometimes the target is. The straight person may dislike gays or be uncomfortable when a man appears feminine or a woman masculine and, because of these feelings, will harass the person sexually.
The law is the same as that for more standard male-to-female sexual harassment. But, says Lee, “this is more difficult to deal with from an employer’s perspective. Often the targets are not gay, but people are reluctant to report the harassers because they are afraid they will be perceived as homosexuals when they are not.”
In fact, in any case when bullying, punishing, or mistreating behaviors result from sexual stereotyping — where the target doesn’t fit stereotypes of what a man or a woman should look like or talk like — the target is often reluctant to report or complain.
“Training on sexual harassment needs to take sexual-stereotyping harassment very explicitly into consideration and be frank about it in training,” says Lee. But the overall message must be that sexual harassment — which results from all kinds of rationales and reasons and involves a variety of combinations of people — is wrong.
Psychiatric disabilities. Psychiatric disabilities are entitled to accommodations, but only if the employer is aware of them. Yet these disabilities often remain hidden, says Lee. “Many times an employee does not disclose that he has a psychiatric disorder, because there is a real stigma attached,” she observes.
Although a person whose bipolar disorder is controlled with medications may never need to tell the employer, she says, the disability may come to fore and cause problems with coworkers if medication needs adjusting or a virus interferes with the medications. Then the individual has to decide whether to disclose the condition.
Lee grew up in Newton, where her father was a small-town lawyer and her mother a secretary. Her plan was to be a high school teacher, and she graduated with a degree in English from the University of Vermont in 1971. A professor and mentor encouraged her to go to graduate school and she enrolled at Ohio State University.
But with the Vietnam War as a backdrop, graduate school in English quickly lost its zing. “I was sitting in a seminar, talking about Keats and Milton, people dead for a long time, and I felt increasingly disconnected from that sort of world,” Lee recalls.
She left Ohio State with a master’s degree and went to work as a travel agent. “I felt it would be interesting and it wasn’t,” she says, so after sticking it out for a few years, she got her Ph.D. in 1977 from Ohio State University.
Having developed a strong interest in labor law, Lee went to Georgetown in the evenings after moving to Washington, DC. She worked as an administrative assistant for the comptroller for a year, at the higher education policy office of the federal Department of Education for two years, and at the Carnegie Foundation for Advancement of Teaching for two years. In law school she expanded her interest to employment law, in particular discrimination law.
Since 1982 Lee has been at Rutgers, where she teaches both employment and higher-education law. She also trains employers and union leaders about equal employment opportunity issues, and she has written the leading treatise on higher education law.
— Michele Alperin