All Work Cultures Discriminate
57 Pages Posted: 2 Aug 2011 Last revised: 15 May 2014
Date Written: September 14, 2012
Traditionalists often explain the glass ceiling by arguing that women lack the competitive drive to succeed in high level environments. Current research, I argue, suggests that women may be just as motivated to succeed as men but that the average woman and the average man function best in very different environments. The average man’s performance deteriorates without the spur of competition, while women avoid competition yet appear to be more self-disciplined and more motivated than men by the intrinsic value of a task.
In this paper I attempt to examine the complex implications of statistical sex differences in personality for the law of employment discrimination. When defendants invoke lack of interest as a defense, plaintiff should abandon their current strategy of denying the existence of sex differences and instead question whether sex differences take the particular form asserted by defendants.
A more difficult question is whether the law should allow plaintiffs to raise the question of sex-biased work culture as an element of their claim. Such claims, I argue, should be considered only as applied to extreme behavior whose regulation can be justified on more general grounds. Such claims would be better regarded as a form of disparate impact than as a form of disparate treatment.
Finally and most importantly, the law must not interfere with voluntary employer efforts to devise work cultures that are congenial to women. Such experiments have been made more difficult by the Supreme Court’s 2009 decision in Ricci v. de Stefano and I address how a modified affirmative action defense might permit desirable innovation in work cultures.
Keywords: glass ceiling, sex differences, employment discrimination, neutrality, lack of interest, disparate impact, affirmative action
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