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).

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

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