As noted by Bridget, in delivering the luncheon address at the MSU Symposium on “Gender and the Legal Profession,” the Honorable Nancy Gertner said that “[t]he reason that people are losing discrimination cases is not because it didn’t happen. It’s because the law is inadequate to the task.” As exhibit 1 of such inadequacy, I present to you the recent opinion of the United States District Court for the District of Oregon in Arjangrad v. JPMorgan Chase Bank, N.A., 2012 WL 1189750 (D.Or. 2012). While I will go into the details of Arjangrad in more detail in this post, here’s the gist: Arjangrad claimed that Chase discriminated against her because her manager saw her as inter alia, emotional, gossipy, and flirtatious. The court’s response to the plaintiff? (1) Being emotional, gossipy, and flirtatious are not commonly accepted female stereotypes, and (2) In any event, you are an emotional, gossipy, flirt.
In Arjangrad, Gettee Arjangrad brought an employment discrimination action arising from her termination as a banker for defendant JP Morgan Chase Bank, N.A. In her complaint, Arjangrad alleged claims for national origin, race, and sex discrimination under Title VII, 42 U.S.C. § 2000e, and Or.Rev.Stat. § 659A.030(1), national origin and race discrimination under 42 U.S.C. § 1981, and retaliation under Title VII. In turn, Chase moved for summary judgment dismissing the complaint.
Here was the evidence that Arjangrad’s manager, Russell Weldon, discriminated against her based upon seeing her as an emotional female:
[Regional manager Jeffrey] Kunkel suggested Weldon take Arjangrad to a public place for their discussion of her performance review “to keep emotions in check.”…Kunkel later explained that he was concerned that Arjangrad, who had gotten emotional and tearful at other meetings with Weldon, would be embarrassed having to leave Weldon’s office in sight of her colleagues….When Weldon and Arjangrad met at Marco’s Restaurant, Weldon called Arjangrad “emotional” a number of times, mocked her, and interrupted her when she attempted to speak….He also told her: “Why don’t you just quit?”
Here was the evidence that Arjangrad’s manager discriminated against her based upon seeing her as a gossipy female:
Weldon explained that Arjangard’s needs improvement rating in partnering was because she was a “gossip” and too “backward looking.”…Weldon admitted, however, that Klein [a female coworker] also gossiped. Yet Weldon did not mark her down in partnering because of that behavior.
Here was the evidence that Arjangrad’s manager discriminated against her based upon seeing her as a flirtatious female:
A Chase client complained about Arjangrad’s “improper relationship” with the former president of a client (DP) and forwarded a series of e-mails to Weldon.
The emails reveal fairly overt flirting by the former president and responses from Arjangrad that are informal, friendly in tone, but do not match the president’s clearly romantic/sexual insinuations.
The Court’s Conclusions
According to the court,
Arjangrad’s sex stereotype claim is ill-focused. I address the final three stereotypes first. Even assuming that being flirtatious, emotional, and gossipy are commonly accepted female stereotypes, the record indicates (and Arjangrad does not dispute) that she acted somewhat in conformity with those stereotypes. She admitted engaging in informal email conversations with the DP client to ensure rapport was maintained, she became tearful on several occasions, and she talked to Weldon and others about former colleagues. Perhaps Arjangrad means to assert sex stereotypes based on the converse that women are expected to be prudish, unemotional, and formal and that she did not conform to those expectations. Either way, Arjangrad fails to present any authority recognizing these as commonly accepted female norms. Unlike in Price Waterhouse, where the Supreme Court recognized “stereotypical notions about women’s proper deportment” to include a polished physical appearance and pleasant demeanor,…I cannot so easily find Arjangrad’s final three proposed gender stereotypes to be commonly accepted.
Here are a few of the many problems that I have with the court’s conclusions.
Conforming OR Failing to Conform to a Stereotype
First, the court’s opinion assumes that a plaintiff can only win on a gender-stereotyping claim if her employer thinks that she fails to conform to a gender stereotype. According to the court, even if women are stereotyped as emotional, gossipy, and flirty, Arjangrad could not succeed on her claim because she WAS emotional, gossipy, and flirty. This reading of the court’s opinion is corroborated by the fact that the court later implied that Arjangrad could only win if she could prove “that women are expected to be prudish, unemotional, and formal and that she did not conform to those expectations.”
Simply put, this is a disastrous misreading of gender-stereotyping law. You see, “[a] gender-stereotyping claim arises when an individual suffers an adverse employment action because she either conforms or fails toconform to some stereotype or stereotypes attributable to her gender.” Morales-Cruz v. University of Puerto Rico, 2012 WL 1172064 (1st Cir 2012). Or, as the Third Circuit artfully put it in Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 355 (3rd Cir. 1999), “an employer may act on gender-based stereotypes, firing women it perceives as not feminine enough (or as too feminine)….”
The Arjangrad court’s attempt at applying gender-stereotyping law to Arjangrad’s claim is akin to the attempt to locate the Ark of the Covenant with only one side of the headpiece in Raiders of the Lost Ark. The District of Oregon only had half of the picture and was ignorant to the fact that Arjangrad had a potentially viable claim that she was fired because her manger thought that she was too emotional, too gossipy, too flirty.
Acted Somewhat in Confromity With These Stereotypes
This feeds into my second criticism, which is the court’s contention that “[e]ven assuming that being flirtatious, emotional, and gossipy are commonly accepted female stereotypes, the record indicates (and Arjangrad does not dispute) that she acted somewhat in conformity with those stereotypes.” The implication here seems to be that Arjangrad couldn’t have a viable claim because her manager simply called a spade a spade. Now, the District of Oregon didn’t do a great job of explaining Arjangrad’s allegations, but I assume that she was claiming in part that the manager might not have reached the same conclusions about a male colleague.
If a male coworker talked about former colleagues, would he be considered a gossip? If a male coworker responded to an e-mail containing romantic/sexual innuendos with an informal, friendly e-mail, would he be considered a flirt? And if a male coworker shed some tears after harsh (to put it lightly) comments by a boss, would he be considered emotional?
It seems to me that Arjangrad was claiming that her manager pigeonholed her as emotional, gossipy, and flirty because of her gender. The court’s response? To dismiss her allegations after pigeonholing her as an emotional, gossipy, and flirtatious woman.
Commonly Accepted Female Stereotypes
Based upon this dismissal, I’m not surprised that the court was unaware that women are often stereotyped as emotional, gossipy, and flirtatious. Well, okay, actually I am. I almost feel like I don’t need to cite to any sources to prove this assertion, but here goes.
From Leah J. Donaldson, Female Legislators in the United States and Rhode Island, 16 Roger Williams U. L. Rev. 278, 285 (2011):
Unfortunately, the same studies find that more often stereotypes about women are unfavorable. Negativestereotypes about women include the perception that women lack quantitative skills, are too emotional, too passive, and unable to make decisions. (emphasis added).
From Justin D. Levinson & Danielle Young, Implicit Gender Bias in the Legal Profession: An Empirical Study, 18 Duke J. Gender L. & Pol’y 1, 11 (2010):
Finally, from Andrea Kupfer Schneider, et al., Likeability v. Competence: The Impossible Choice Faced by Female Politicians, Attenuated by Lawyers, 17 Duke J. Gender L. & Pol’y 363, 383 (2010):
It thus seems clear to me that all three stereotypes claimed by Arjangrad are sufficiently entrenched and certainly entrenched enough to survive a motion for summary judgment. But even if they aren’t, who cares? Almost exactly a year ago, I posted an entry about the terrific article Clarifying Stereotype by Professor Kerri L. Stone. In the article, Professor Stone argues that
the question of how entrenched the stereotype is should not be relevant, so long as it inheres in the decision-maker’s mind. Stereotypes are nefarious because of the mindset they evince; that mindset is subjective and should not need societal reinforcement to be valid evidence of animus, prejudice, or misperception that may have precipitated class-based disparate treatment.
I firmly agree and think that this argument applies perfectly in Arjangrad. Who cares whether the stereotype that woman are “emotional” is firmly entrenched? As noted above, Arjangrad’s manager called her
“emotional” a number of times, mocked her, and interrupted her when she attempted to speak….He also told her: “Why don’t you just quit?”
Who cares whether other people have an issue with “emotional” women? Arjangrad’s manager clearly had a problem with her being an “emotional” woman, and him asking her to quit certainly supports the conclusion that he fired her for that reason.
It certainly supports the conclusion at least enough to survive a motion for summary judgment, right? Well, not according to the District of Oregon. Thankfully, Arjangrad also claimed that she was fired “for failing to assume the typically submissive female role….” The court found that this “failing to conform to gender norms” argument did survive the motion for summary judgment, but, of course, did not make the court view her other allegations on a different light.