Is ‘Ellen DeGeneres’ Comment Sexual Stereotyping?

 

You have an “Ellen DeGeneres kind of look.” A woman hotel desk clerk was fired because she did not meet “the pretty Midwestern girl look” desired by her manager. During the subsequent lawsuit, Lewis v. Heartland Inns of America, the hotel manager testified that the clerk had an “Ellen DeGeneres kind of look” and was “tomboyish” because she wore loosely fitting clothes, short hair and no makeup. Since sex stereotyping is covered as sex discrimination under Title VII, the court found there was sufficient evidence to believe the clerk was improperly fired for failing to meet the manager’s stereotype of how a woman should or should not appear (8th Cir., 2010). 

Protection for those perceived as gay. Sexual stereotyping under Title VII and state laws includes not fitting the stereotype of being a “proper male.” Under New York state laws, it also includes being “perceived as gay.” A man was fired from his public-relations job at a New York men’s clothing manufacturer because the management perceived him to be homosexual. But in Padmore v. L.C. Play Inc., the evidence showed overt e-mails to the plaintiff from the owner stating that he was being let go because of “company image … models and other people have questions about your sexuality and my company can’t afford to be attached to any gay [expletive]. How does it look for a men’s clothing line to have a fruitcake as the spokesperson, not my company.” The court found clear evidence that the employee was fired because he was “perceived” as gay and certified the case to proceed to trial (S.D. New York, 2010). 


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Court rejects “political correctness” standard. “[I]t would be unfortunate if the courts forced the adoption of an employment culture that required everyone in the structure to be careful so that every remark made every day passes the employment equivalent of being politically correct lest it be used later against the employer in litigation.” This was part of the 3rd Circuit Court’s ruling in dismissing an age-discrimination case in Hyland v. American International Group. A 56-year-old corporate legal counsel’s job was eliminated, but a 47-year-old attorney, at a higher level, was retained. The plaintiff’s main evidence was that once, 10 months prior to the layoff, a manager had called him “the old man of the operation.” The court ruled that this stray remark was too isolated and unrelated to any tangible decision to constitute valid evidence for discrimination, finding it virtually impossible for people at work not to make occasional reference to age, gender, physical condition, etc. Indeed, adopting a “purity” standard would make every birthday card, get-well wish or comment a future potential age- or disability-discrimination issue. 

Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

14 Comments

  • This stuff is a can of worms all around. The “old man”‘s case is thrown out because it was deemed an isolated incident. However, if a male called a woman a “b—h” at work, that would be the end of his career. In the case of the gay man above, well, that seems like clear-cut discrimination. The owner has a personal prejudice against gay people. His loss. Gay people rock.

    In the first example, I believe that the case is a bit of a stretch given that the woman works in the hospitality industry. The owner is not telling her how “a woman should look”, as in generalizing for all women. He is saying that in his hotels, he is looking for a certain look to draw in guests. Actors and casino employees and other performers enjoy the same occupational dynamics: your “look” is a major part of your livelihood. If you do not have “a look” or one that is not aligned with your workplace, then too bad.

    Thank God the court rejected the Political Correctness standard. As it is, I truly believe that the vast majority of Americans of all colors and genders and sexualities just wish these silly rules that are not even fit to govern children at school would just go away. Given youtube, the Internet, and other forms of free self-expression, I am willing to bet that within 10 years, people will be like: “PC? What the f**k does that mean?”

    I work in a privately funded company that is not part of “corporate america” and it’s great. Imagine a place where you get to say whatever you want! We are diverse. There are Americans and Europeans and Russians, and we are looking to hire an Asian woman and hopefully some black people. We will be like the ethnic power rangers: one of every color of the rainbow.

    What keeps our company functioning and succeeding is precisely the fact that we do not have to deal with any of this nonsense. Our rule is simple: If you do not like working where you work, then quit.

  • Anonymous

    I wish the headline of this article were written differently (perhaps with Ellen DeGeneres in quotation marks). As it is, it could be read to mean that the comment came from Ellen herself.

    As to the issues in the article, I agree with all of the decisions the courts came to. I agree with the previous commenter that the age-related issue is a matter of degree, but I believe the court took the context into consideration (e.g., based on its description of the incident as “isolated”). There is clearly a difference between calling someone “the old man of the operation” (especially in the context of a group of people and discussing the subject’s length of employment or industry experience) and calling a woman a “b***h” (which can have no neutral interpretation).

  • Anonymous

    “…we are looking to hire an Asian woman and hopefully some black people.” Sounds like a quota system, a form of discrimination. “Americans and Europeans and Russians” indicates diverstiy based on nationality (or national orginin). I hope that’s not the only diversity in the organization. “…ethnic power rangers: one of every color of the rainbow” – ethnicity is not color. I hope that’s not how you define diversity.

  • Anonymous

    These organizations need some intense diversity training! In fact they need some training on pure common decency. If the hotel needs a “look” to represent their brand, may I suggest uniforms–that’s a no brainer that will keep them out of trouble. Not to perpetuate a stereotype, but the fact is, Gays have and continue to be some of the finest designers when it comes to both male and female couture. While, we can’t speak for the individual’s sense of style in this case, his sexual orientation should never have been an issue. As for the Hyland case, what goes around comes around. He or she will be 56 soon enough. Companies have a habit of removing people just before they are eligible for retirement to avoid paying them for years of hard work. So good luck to the youngster!

  • Anonymous

    The comment above about hiring “an Asian woman and hopefully some black people” is very scary. Aside from being the right thing to do, there is a true business reason for hiring a diverse workforce. If these comments reflect the attitude of the company leadership; then I’m afraid they don’t understand what diversity and inclusion really are.

  • Anonymous

    Got to love stupid managers who flap their jaws without thinking. A home store manager in our area mentioned at a store meeting with all employees that were over 60 were no good and he wouldn’t have them on his schedule. There was a nice young man of 64 sitting there. Good bye to store manager.
    We are however too politically correct and/or too sensitive to POSSIBLE troubles. Basically, think before you speak. If we say he/she is white,black, hispanic, a man, a woman, a blonde or a redhead, what is left?
    Well yesterday I interviewed 2 humans and both were qualified. One had 2 years more experiance so I hired that human.

  • Anonymous

    If you really want to see a diverse workforce, come and see us in the ME. We have close to 29 different nationalities and even though our business laguais English, you will likely find amongst our people that we speak almost every language. No colors, no borders, no boundaries… True diversity with true respect for our differences.

  • Anonymous

    When I check into a hotel or call for the reservation, I am visually and audibly seeking professionalism. I expect the person at the counter to be well-groomed and the people who answers must sound clear, patient and use proper grammar too. I expect to see and hear smile too. :)

  • Anonymous

    I just want to comment on the first Guest Post on this blog. I get the impression that you think you’ve spoken wisely when, in fact, you have not. Your comments point to the very reason why there are discrimination laws in the first place. How wonderful for you and your company to “hopefully hire some black people”. Are you expecting applause? This is 2010 and you clearly think a comment like that should be viewed positively. My advice to you is to get a rea life and stay of YouTube.

  • Anonymous

    “If you don’t like working where you work, then quit.” That sounds very egalitarian, except when you’ve invested in your career, perhaps uprooted your family to take a position, and find that the only issue preventing you from doing the job you LOVE and were hired to do, is that someone has determined that your “look” is wrong. Being able to say “whatever you want” implies the mentality and awareness of 4 year-olds. And that’s what “PC”-ness is all about. Privilege. When one is cut off from the privilege of saying whatever they want without forethought, it is labeled PC. What we see is that the many and the more powerful may rule in these instances, even when the are abjectly wrong. The ability to thrive in a diverse environment requires a higher level of leadership skills. Quite frankly, it requires a lot of courage and confidence that most of us don’t have without working at it. And therein lies the rub, it so much easier to “just do what you want”, if you can, than it is to inspire others to accomplish the goals at hand while supporting each and every one to feel like a million bucks while doing it (versus having people pretend that they don’t mind what you say and do in order to keep a job).

  • Anonymous

    Where I work the most sensitive, easily offended person sets the bar for what can and cannot be said. I’m the first to agree that EVERYONE needs to be treated with dignity and respect at all times, but like anything else, political correctness has to go too far before it can find the right balance. Today, people are afraid to be themselves for fear that some overly-sensitive person may be offended and report them. It’s sapped the character out of us. The really sad part is that it’s all about money. Companies aren’t so concerned about whether or not people are treated respoectfully, they’re just afraid of being sued. Makes you wonder who’s really behind it.

  • Anonymous

    Any one that truly respects his coworkers and subordinates does not have to be careful about what they say. Such foul references are not in them.

  • Anonymous

    To the person who posted: “Today, people are afraid to be themselves for fear that some overly-sensitive person may be offended and report them. It’s sapped the character out of us.” I suggest, as an test, you write down your next ten comments that you think would offend an “overly-sensitive person.” When reading them back, go ahead an categorize the stereotypical groups to which those people would belong. You now have a list of the groups you are biased against. You are biased, we all are, and to pretend otherwise is the ultimate hypocrisy.

    MANY Thanks to the person who wrote this most truthful statement: “Any one that truly respects his coworkers and subordinates does not have to be careful about what they say. Such foul references are not in them.”

  • I recently had my supervisor use the phrase if “you were man enough” in response to a lengthy email conversation. Would anyone consider this discrimination? I think I know the answer but I’m looking for feedback.

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