In Lewis v. Heartland Inns, an Iowa hotel chain allegedly fired a front desk employee because the company's director of operations thought she didn't have a "Midwestern girl look" and that the employee appeared too masculine for the job. Recently the 8th Circuit ruled the employee had a viable Title VII claim for gender stereotype discrimination.
Dennis Brown, managing shareholder of Littler Mendelson's San Jose, Calif., office, and Marcia McCormick, associate professor at St. Louis University School of Law and co-editor of the Workplace Prof Law Blog, have some advice to help in-house counsel avoid this sort of debacle.
Brown mentions that if there's any business issue separate from the gender stereotype issue, an employer could have grounds to discipline an employee. And the business reason might even relate to the gender issue.
"Imagine that aside from looking too masculine, she was wearing motorcycle attire--a leather Harley Davidson and visible tattoos," he says. "They legitimately could have disciplined her for [that], if she was not wearing appropriate attire that at least was gender neutral."
McCormick emphasizes the importance of having the whole company on the same page, so a manager doesn't make a mistake that could end in a lawsuit.
"Have clear policies and make sure your managers understand them," she says. "It's hard to overstate the usefulness to in-house counsel of making sure the whole culture understands the same thing about the policy. It is about institutional culture to a great degree."