New media rating seeks to bring common sense to gender stereotyping

July 10, 2017 0 COMMENTS

When my son was five and constantly arguing and negotiating for extra dessert or whatever it was that he wanted at any given time, people would often say, “You should be a lawyer!” His response was always: “I don’t want to be a lawyer because that’s a girl’s job.” While slightly humorous because lawyers are not stereotypically female, I would always respond that there was no such thing as girls’ jobs or boys’ jobs. Because I was a lawyer, he saw the world through that prism. Despite what kids see in real life–that the world is filled with men and women who do not conform to stereotypes in their careers and in division of labor at home–according to studies by Common Sense Media, movies and television have not kept up with the times; and undoubtedly, media play a huge role in how we all view the world–not just how kids do.  Gender Equality

Common Sense Media is a nonprofit organization that runs a website providing parents and teachers with advice on media and technology for kids. It publishes independent ratings and reviews for nearly everything kids want to watch, read, play, and learn. Common Sense Media is based on the premise that images kids see early in life can have a significant long-term effect on their perception of the world. While much attention has historically been focused on the impact of violent movies, video games, and other media, one of the less discussed areas is on-screen depiction of gender.

In late June, Common Sense Media expanded its rating to include how well TV shows and movies combat traditional stereotypes. It developed the ratings based on research into gender portrayal in the media. The research found that media images have tended to suggest masculine traits are favored over female ones and that girls should focus on their looks. This, in turn, can lead to tolerance of sexual harassment and the reinforced beliefs about what men and women can do, and thus what careers they feel they should choose. A rating of “positive gender representations” will appear with a movie or TV show, which means that the reviewers judged it to prompt boys and girls to think beyond traditional gender roles.

A slew of online comments posted in response to a New York Times article about this new rating system suggest that this rating has been met with some controversy from those parents who have chosen traditional roles, anticipating that it might ultimately alienate parents as seeming judgmental.

Regardless of this controversy over whether movies that depict stereotypical roles or traits for men and women should be devalued by this new rating system, at work, basing employment decisions upon gender stereotypes is illegal. In 1989, the Supreme Court first ruled that gender-based stereotyping violates Title VII. In Price Waterhouse v. Hopkins, the plaintiff claimed that she was denied partnership at her accounting firm based on her lack of conformity to stereotypes about how women should act and what they should look like. Her male co-workers described her as aggressive, foul-mouthed, demanding, and impatient with other staff members. The Supreme Court recognized that making employment decisions based on gender stereotypes is a violation of Title VII of the Civil Rights Act of 1964.

Additionally, although sexual orientation or gender identity are not a listed as protected categories within Title VII’s list, recently, a growing number of federal circuit courts have expanded Title VII’s protections to include sexual orientation and gender identity as protected classes under this sexual stereotyping theory. Because of this, uniform policies have been under strict scrutiny to the extent employer standards reinforce stereotypical gender roles. Historically, under federal law, differing standards based on sex or gender were permitted so long as they did not impose an undue burden, but we are beginning to see a shift in what will be permissible under Title VII as this area of the law develops.

New York City Commission on Human Rights has recently weighed in and issued broad policy guidance on impermissible uniform or grooming standards. Some examples of prohibited rules are as follows: requiring different uniforms for men and women; requiring women to wear makeup; only permitting employees who identify as women to wear jewelry; only permitting employees who identify as male to have short hair or requiring employees to always have long hair pulled back unequally based upon gender.

It remains to be seen how much this new rating will affect sales, which may, in turn, affect future media writing. My personal view as a mother and as an employment lawyer–why not praise media that fight stereotyping and force us all to see the world through the legally required prism!  Isn’t this the first step toward inclusion?

 

Wonder Woman and the fight against unconscious bias

June 13, 2017 0 COMMENTS

Not only has the recently released Wonder Woman movie garnered mainly favorable reviews, but it has been highly successful at the box office, having made more than $200 million domestically in its first two weeks of release alone. From a purely movie industry insider perspective, the success of Wonder Woman is incredibly important to Warner Brothers and the DC Comics line of movies. After subpar reviews for Man of Steel and Batman v. Superman, Wonder Woman is key to helping the aforementioned keep pace with the juggernaut that is the Marvel Cinematic Universe, which seemingly churns out title after title on an almost quarterly basis.  Wonder Woman Action Figure

More important, Wonder Woman demonstrates that a female-driven superhero movie can be not only be good but also financially successful and appeal to a mass audience both domestically and globally. In addition, the fact that the movie’s director, Patty Jenkins, is also female helps further advance the notion that female directors are just as equipped to handle big-budget, superhero-type movies. The hope of course is that this will lead to more female centric movies as well as female director roles in a genre that typically has been dominated by male figures.

Of course, no success story would be complete without its own set of controversies, warranted or not. Some stem from the fact that Wonder Woman is played by Gal Gadot, who is Israeli and served a mandatory two-year stint in the Israeli Defense Forces as required of most Israeli citizens. Abroad, this has caused certain countries to ban, or consider banning, the showing of Wonder Woman due to Gadot’s past military service. Domestically, media pundits have lamented the fact that Wonder Woman is not “American” or “patriotic” enough, despite the fact that Wonder Woman is a fictional Amazonian warrior princess in the comics. In addition, the Washington Post had a lengthy article discussing and debating, in the context of Gadot’s nationality and religion, the interplay between Jewish identity and race.

Yet, race and ethnicity are not the only issues being discussed. Although Wonder Woman has made positive strides toward female representation in films, gender equality also has become an issue. Specifically, certain theaters across the country held limited female-only screenings of the movie to embrace “girl power” and female empowerment, advertising it as “No Guys Allowed” for that special screening. However, these screenings were met with by complaints from men, as well as legal scholars, who claimed that banning any particular group from public accommodation, such as movie theaters, was discriminatory and violative of applicable law, as well as serves to create a divide amongst gender groups when the movie is meant to celebrate gender equality.

While one can certainly understand that point of view, others also understandably argued that these limited screenings were a fun, celebratory way to watch the movie and that men could watch any of the multitude of other offered screenings on a daily basis. Regardless of where one stands on the multitude of issues involving gender, race, religion, and nationality, the reality is that Wonder Woman has created discussions involving these controversial and sensitive topics.

This includes unconscious bias. While the concept of unconscious bias has been in the lexicon for many years, it is interesting when considered in the context of Wonder Woman. Unconscious bias refers to bias that we may be unaware of and that is triggered by our brain making snap assessments based upon our background, cultural environment, and personal experiences. Essentially, it’s your analytical process taking shortcuts and using past knowledge to make assumptions.

Unconscious bias could manifest itself through the belief by industry executives that since Catwoman and Elektra were unsuccessful female-driven superhero movies, this meant audiences weren’t receptive to a female comic book hero movie. Rather than analyzing the fact that these prior endeavors were simply terrible movies that no one would want to see and that if you deliver a good movie, individuals of all sexes would be interested in watching it. One need look no further than the fact that the holy triumvirate of DC Comics involves Superman, Batman, and Wonder Woman (all created in the late 1930s and early 1940s), yet it took until 2017 for Wonder Woman to get her own movie, while Superman and Batman have had multiple iterations over the years.

Unconscious bias could also manifest itself in the belief that Wonder Woman of course must be portrayed by an American, simply because she has always been portrayed in other media as American, her “costume” is red, white, and blue, and because she has historically fought for American causes. Yet, this is an assumption that doesn’t take into account her actual origin history from the comics, nor recognizes that it is possible for someone to not be “born” American, yet can still fight for America and its values. The Washington Post article referenced above, discussing Jewish identity and race, also touches upon the assumptions held by many, likely created through unconscious bias.

Just like in the context of Wonder Woman, it is important to understand the role that unconscious bias plays in the workplace. Implicit associations and assumptions often can lead to actions that result in claims of discrimination, or even harassment and retaliation. Many major companies have been, and are, addressing unconscious bias in the workplace through a variety of initiatives and training, and employers should at least be aware of these efforts and determine whether it may make sense for their businesses. That includes placing a primary emphasis on employee skills when dealing with hiring and promotion, reviewing internal data to determine whether it shows that minorities and females are not well represented in upper-level positions and asking why, as well as promoting group discussions toward employment decisions to ensure unconscious bias isn’t a primary factor as well as to help individuals recognize any unconscious biases he or she may harbor. While the concept of unconscious bias may seem abstract or conceptual, it is real and something employers must be aware of in today’s social climate if they want to stay ahead of the curve.

10-step plan for fair and balanced approach to preventing workplace harassment

May 17, 2017 0 COMMENTS

In less than a year, Fox News has lost its founder and one of its most well-known anchors due to widespread sexual harassment allegations. Fox News recently reported that 20th Century Fox paid $10 million in sexual harassment settlements in the first quarter of 2017 alone. How can Fox News be proactive in avoiding harassment claims in the future? Prevention is the best tool to avoiding claims. Here are some essential steps to prevent and correct unlawful harassment.  Stop Sexual Harassment red stop sign held by a female

1. Disseminate a workplace harassment policy that complies with state and federal anti-discrimination laws. The policy should encompass all forms of unlawful harassment based upon all protected classes, not just sexual harassment; although sexual harassment should be separately discussed within the policy.

2. The policy must be communicated to all employees at the time of their hire and should also be posted in the workplace. Employees should be given an acknowledgement to sign so that they acknowledge that they have read and that they understand the policy.

3. The policy must contain an effective complaint procedure that affords the employee bringing the complaint the opportunity to bypass the alleged harasser; however, the complaint procedure should not be too broad so as to encompass everyone at the organization.

4. The policy must contain an anti-retaliation provision, ensuring that the employees are aware that they will not be retaliated against for complaining internally, filing lawsuits/charges, or participating in an investigation.

5. The policy must not guarantee confidentiality; rather, it should state that, to the extent possible, complaints will be kept confidential. Obviously, an employer can’t keep a complaint confidential to the extent it must share the allegations during the course of an investigation. An employer, however, can guarantee that it won’t share the allegations with those who don’t have a reason to know them.

6. Employees (both managers and employers) should be trained on preventing sexual harassment and other forms of harassment at the time of hire and every two years.

7. Don’t require employees to put their harassment complaints in writing.

8. Respond to complaints immediately by conducting thorough and unbiased investigations.

9. Take appropriate remedial action following substantiated complaints of unlawful harassment by issuing disciplinary action commensurate with the substantiated conduct and continuing to monitor the relationship and the alleged harasser’s conduct toward others.

10. Keep your eyes and ears open and mandate that your supervisors do the same–if they see something, they must say something. Moreover, rumored allegations also should be explored.

What’s in a name? Bias in the workplace

March 13, 2017 1 COMMENTS

As Shakespeare wrote, “that which we call a rose by any other name would smell as sweet.” But there is in fact much to a namea name can convey a sense of identity, culture, and family history. Recently, a series of viral tweets illustrated how much something as simple as a name could affect an individual’s employment.  Business woman versus man corporate ladder career concept vector illustration

A man and his female coworker conducted an experiment whereby they switched their e-mail signatures for two weeks. The series of tweets describes the man’s struggle to gain clients’ respect when using his female coworker’s name.

The experiment started when, because of a shared inbox, the man accidentally e-mailed a client with his female coworker’s signature line. He received a lot of pushback and attitude from the client. Upon realizing the mix-up with the e-mail signature , he switched back to his name and continued communicating in the same way with the client. He said he noticed an immediate improvement and positive reception from the client when he reverted to his real name. The man claimed his advice to the client never changed, only the fact that he was signing the e-mails with a man’s name instead of a woman’s name.

So the coworkers decided to switch names for two weeks. The man described his negative experience using his female coworker’s name, tweeting that everything he asked or suggested was questioned and that one client even asked if he was single. Meanwhile, he reported his female coworker had the most productive weeks of her career. The man stated he learned his female coworker had to convince clients to respect her, whereas he had an “invisible advantage” as a man. The woman also wrote her own account of the experiment and described sexism that many women face in the workplace.

While this is only one account, and by no means a scientific study, it is an interesting reminder to be conscious of gender bias and other biases in the workplace. Other Twitter users chimed in agreeing with this experience, and adding their own experiences where they had been concerned about how others would perceive them because of their name. For example, some Twitter users described concerns with how employers would perceive their names on their resumes. Some wondered if they should change their names to have a greater likelihood of success in obtaining employment because of unconscious biases.

Unconscious bias is a huge issue in the workplace and can affect who is hired, promoted, and valued at work. Discussing issues like biases can help bring the issue to light and create a company culture that acknowledges the problem and improves decision-making.

Mila Kunis’ open letter on gender bias at work

November 29, 2016 0 COMMENTS

Many people know actor Mila Kunis for her role in the TV series “That ’70s Show” and her film roles in Forgetting Sarah Marshall and the drama Black Swan. Kunis has recently been in the headlines for her open letter on sexism in Hollywood and the workplace entitled, “You’ll Never Work in This Town Again…” originally posted here.Accusation. Sad woman looking down fingers pointing at her

In the letter, Kunis discusses some of her personal experiences, including being told by a producer that she would never work in Hollywood again after she refused to pose semi-naked on the cover of a men’s magazine to promote a film. Kunis explained that she felt objectified and that the threat that her career would suffer because of her refusal embodied the fear that many women face with gender bias in the workplace. She explained her view about how many women feel–that if they speak up against gender bias, their livelihoods will be threatened. Because of her career success and financial ability, Kunis explained she is fortunate to be in a position where she can stand up against gender bias and bring it to light when she experiences it, but recognized that many women may not be able to do so.

The letter also discusses the fact that a pay gap still exists between women and men. In Kunis’ view, this is one of the ways women’s contributions are undervalued in the workplace. She also highlighted that subtle gender bias can be imperceptible or undetectable to those who share the bias and that women may face “microaggressions” that devalue their contributions at work. For example, Kunis cited a time when a big producer referred to her as “[o]ne of the biggest actors in Hollywood and soon to be Ashton’s wife and baby momma!!!” Kunis wrote that describing her in relationship to a successful man and her ability to bear children reduced her value and ignored her contributions.

It’s important to recognize blind biases that may occur in the workplace, just as employers also must recognize overt sexual harassment or sexism. As Kunis highlights in her letter, however, many people may be unaware of their blind biases and it’s important to address them and educate people on their biases. If employers don’t adapt and address sexist microaggressions, they risk losing talented women in the workplace. As Kunis concludes her letter, “I will work in this town again, but I will not work with you.”

U.S. Women’s National Soccer Team alleges gender wage discrimination

April 01, 2016 0 COMMENTS

Five star players of the U.S. Women’s National Soccer Team (Carli Lloyd, Alex Morgan, Megan Rapinoe, Becky Sauerbrunn and Hope Solo) made headlines this week by filing a charge of discrimination with the Equal Employment Opportunity Commission alleging gender wage discrimination against the U.S. Soccer Federation.  In their charge, the players allege that they should be paid at least as much as (if not more than) the players for the Men’s National Team.  The players filed the charge amid contentious negotiations over a new collective bargaining agreement, which have already resulted in a separate lawsuit and serious questions about whether the team will be participating in the Summer Olympic Games in Brazil. Soccer Stars

In their charge, the players allege that they are paid as little as 38 percent of what the Men’s National Team Players earn.  More specifically, the charge alleges that top-tier Women’s National Team Players earn $72,000 per year to play a minimum of 20 exhibition games (“Friendlies,” with no additional pay for games beyond the 20unlike the men’s team which is paid for each game played) and that they earn $99,000 if they win all 20 Friendlies.  Meanwhile, the men earn $100,000 if they lose all their Friendlies and can earn up to approximately $260,000 if they win.  As for the World Cup, the women’s team earned a total of $2 million last year for their championship performance in Canada while the men’s team was paid a total $9 million despite their failure to advance past the top 16 in the 2014 World Cup in Brazil.

If the matter proceeds, the women’s team players will have the burden of proving that: (1) higher wages were paid to a male employee, (2) for equal work requiring substantially similar skill, effort, and responsibilities, and (3) the work was performed under similar working conditions.  Assuming they are able to meet this burden, the federation may offer a variety of affirmative defenses, such as the pay differential being based on any factor other than sex (e.g., economic benefit to the employer).

Anticipating that the U.S. Soccer Federation will respond by offering a nondiscriminatory business reason for the pay disparity (such as women’s professional sports being less popular and less lucrative), the players allege in the charge that the women’s World Cup win and victory tour dramatically increased U.S. Soccer’s bottom line from a projected $430,000 deficit for 2016 to a $17.7 million profit.  Indeed, the numbers released by Fox indicate that last year’s telecast of the women’s World Cup Final against Japan was the most watched broadcast in the U.S. of a soccer game (men’s or women’s) ever.

The President of the U.S. Soccer Federation, Sunil Gulati, responded on Thursday stating, “We think very highly of the women’s national team and we want to compensate them fairly, and we’ll sit down and work through that with them when all this settles down.”  A federation spokesman, Neil Buethe, has also called some of the revenue figures in the charge “inaccurate, misleading, or both.”  The federation has argued that the players’ pay was collectively bargained and that the women’s team players opted for the economic security of a salary-based system (plus provisions for severance/injury pay, health benefits, maternity leave, and other benefits not available to the men’s team) as opposed to the bonus-centric plan under which the men work.  In addition, as U.S. Soccer noted, the World Cup prize money is determined by FIFA rather than by the federation.

By contrast, Solo stated in an interview, “In this day and age, it’s about equality. It’s about equal rights.  It’s about equal pay.  We’re pushing for that.”  She also stated, “We are the best in the world, have three World Cup championships, four Olympic championships, and the [men] get paid more to just show up than we get paid to win major championships.”  Players for the men’s team, such as Tim Howard and retired player Landon Donovan, have offered their public support for the women’s team.  Hilary Clinton has also voiced her support.

This isn’t the first time the women’s team has raised issues of gender equality.  Abby Wambach led a group of players in filing a complaint in Canada about the artificial turf playing surface and pointing out that the men’s World Cup is played on natural grass.  The issue came up again during the team’s victory tour when a game in Hawaii was cancelled due to the artificial turf being deemed unsafe by the players.

As for the currently pending charge, U.S. Soccer will likely have the choice of participating in mediation in an effort to resolve the charge or proceeding with the investigation and submitting a statement responding to the allegations and outlining U.S. Soccer’s position.  In the meantime, submit your comments below and let us know whether you would like to face these women on the field or in the courtroom.