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Illegal stereotyping and discrimination can occur even when the supervisor and the employee belong to the same protected group

Occasionally, an employer will insist that a manager did not discriminate simply because the manager belongs to the same protected group as the employee. For example, an employer might argue that a 50 year old supervisor would not discriminate against another middle aged employee. Or, the employer will say that a woman would not discriminate against another woman. This simplistic argument is wrong as a matter of law.

The United States Supreme Court recognized several years ago that stereotyping and discrimination occurs across the spectrum, “Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1977). Such a defense by an employer embraces the kind of stereotyping that anti-discrimination laws seek to eliminate in the workplace.

In Johnson v. Zema Systems Corp., 170 F.3d 734 (7th Cir. 1999), the Court criticized the use of broad generalizations about who is and is not likely to discriminate. That case involved a claim for race discrimination, “To do so would be absurd, because all people fit in at least one racial category and all races are protected from discrimination under the Constitution and federal employment discrimination law. We doubt even more that a member of a certain race might be less inclined to discriminate against a member of his own race. Persons of a certain race might well harbor stereotypical views of their own race and those stereotypical views might motivate decisions to discriminate.”

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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