What’s Really at Stake When the Supreme Court Decides LGBTQ Rights Under Title VII

Sometime next Spring the Supreme Court will announce its decision on whether Title VII’s prohibition against sex discrimination implicitly includes LGBTQ employees. It’s poised to be the biggest employment law case of the past three decades. And not just because LGBTQ discrimination is such a hot-button, high-profile issue.

One of the issues the Department of Justice has asked SCOTUS to revisit is whether Title VII’s prohibition against sex discrimination encompasses sex-based stereotypes.

That “sex stereotyping” is no different than “sex discrimination” has been the law of the land since the Supreme Court decided Price Waterhouse v. Hopkins 30 years ago.

What might the American workplace look like if SCOTUS actually reverses Price Waterhouse?
Take a look at workplace training Ernst & Young just required of its female executives (per HuffPost).

When women speak, they shouldn’t be shrill. Clothing must flatter, but short skirts are a no-no. After all, “sexuality scrambles the mind.” Women should look healthy and fit, with a “good haircut” and “manicured nails.” …

The 55-page presentation, used during the day-and-a-half seminar on leadership and empowerment, was given to HuffPost by an attendee who was appalled by its contents. Full of out-of-touch advice, the presentation focused on how women need to fix themselves to fit into a male-dominated workplace.

According to women who attended the “self-improvement” training—billed as “as advice on how to be successful at EY”—attendees were schooled on their appearance, telling women to “be ‘polished,’ have a ‘good haircut, manicured nails, well-cut attire that complements your body type’”; not to “flaunt their bodies” or “show skin,” as it causes men to focus on “sex”; that women should learn to speak more loudly and at greater length, like men; and how to interact with men in meetings (cross your legs and don’t be too aggressive)

Women were also given a “Masculine/Feminine Score Sheet,” on which they rated their “adherence to stereotypical masculine and feminine characteristics both on the job and outside the office.” “Masculine” traits included acting like a leader, aggressiveness, and ambitiousness, while “female” traits included cheerfulness, compassion, and loving children.

Women were wen told that their brain are 6% to 11% smaller than men’s.
God good, this is highly offensive. I cannot imagine my reaction if I found out a client had given this training to its employees (other than, “What the hell is wrong with you!?”). This type of thinking is so outdated, and so stereotypical, that I can’t fathom how I’d defend its use if forced to defend it in a lawsuit. It just cannot understand how anyone could think this training is acceptable in 2019.
Also, this is highly illegal. Price Waterhouse outlawed sex-based stereotypes at work. And, yet, this training teaches and reinforces those very stereotypes that are supposed to be illegal. And, my opinion on the illegality of this training isn’t dependent on the fact that E&Y only provided it to women. It’s the message being communicated, and not necessarily the group to whom it’s being communicated, that’s so offensive and illegal.

According to one attendee, the training made her “feel like a piece of meat.” And while I hope that wasn’t E&Y’s intent, it nevertheless is emblematic of a failure of culture at that employer that caused such training to be provided at all. And, yes, in case I didn’t make the point clearly enough, it’s also illegal (at least for now).

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