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Gender stereotypes, sex discrimination, and second generation employment discrimination

Legal scholars talk about “first generation” discrimination which involved the deliberate exclusion of women from the workplace and job advancement.   “Second generation” discrimination is the term applied to work practices that appear to be neutral, but actually show how entrenched negative gender stereotypes and sex discrimination are.  Look at how leadership is assessed.  When women act confident, strong and assertive, they are often labeled as aggressive and having poor “soft skills.” The latter euphemism is one I see frequently in gender discrimination cases.

The opposite is true too. When a woman’s performance is rated as personable, she can be seen as less competent because she is not forceful enough. It is a Catch 22.

Subjective opinions can lead to impermissible biases that poison the neutrality of the decision making process.  Consider the example of a manager who uses an informal process to identify top choices for a job.  This example deviates from the company’s standard practice of posting job openings.   The manager hires a male employee and does not bother to interview a qualified female candidate.  As a result, employees question the legitimacy of the supposed merit based system.   The system is not transparent.  The status quo remains intact.

The nature of the company’s response to a complaint about gender bias can be telling.  I find that employers can have a tendency toward confirmation bias.  Instead of looking at the facts independently, the company will steer toward facts that support its decision.  The result is structural bias that stems from the initial, subjective decision-making based on gender stereotypes.

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


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