Gender Sidelining and the Problem of Unactionable Discrimination

42 Pages Posted: 1 Aug 2017

See all articles by Jessica Fink

Jessica Fink

California Western School of Law

Date Written: July 28, 2017


Gender dynamics suffuse virtually every workplace. Indeed, the way that employees interact with one another turns not only on their individual backgrounds, skills and personalities, but also frequently on their gender. While many employees embrace gender diversity at work and appreciate the benefits of incorporating both male and female perspectives into workplace programs and projects, this ideal does not translate into every work environment. In many workplaces, female workers continue to experience unfair (and often unlawful) treatment based upon their gender. The law has done much to outlaw overt gender discrimination at work, providing a legal framework within which female employees can vindicate concerns regarding gender-based decisions about hiring, promotion, discipline or pay. Similarly, a robust body of sexual harassment jurisprudence has given women a vehicle for protesting workplace actions that create a sexually hostile working environment.

Despite all of these strides, however, there remains a subtle but significant undercurrent of less obvious gender bias in the workplace today. In a variety of settings – from conventional boardrooms and factory floors to less conventional workplaces like the art studio, the athletic field or the political stage – women experience a broad range of adverse treatment at work that the law does not address: Male workers may garner more of the limelight than their female coworkers, attracting more attention and recognition. Women may lack access to important opportunities or feel subjected to greater scrutiny than their male peers. The media may portray female workers in a demeaning or condescending manner, belittling or diminishing their contributions. None of these slights, in isolation, likely would give rise to a viable antidiscrimination claim. Yet collectively, these incidents – which constitute what this article refers to as “gender sidelining” – accumulate to create very real obstacles and barriers to advancement for women at work.

This article explores the various ways in which women across a wide range of employment settings may find themselves sidelined, upstaged or otherwise marginalized in ways not reached by traditional antidiscrimination laws. It both defines the scope of gender sidelining and illustrates the significant impact that this phenomenon has on the workplace for men and women alike. While the law frequently does not (and arguably should not) reach these subtle harms, gender sidelining nonetheless warrants significant attention for its potential to silence creativity, stymie innovation, and negatively impact the productivity and advancement of women at work.

Keywords: Gender, Sex, Workplace, Discrimination, Bias, Employment, Labor, Women, Female

Suggested Citation

Fink, Jessica, Gender Sidelining and the Problem of Unactionable Discrimination (July 28, 2017). California Western School of Law Research Paper No. 17-14, Available at SSRN: or

Jessica Fink (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States
619-525-1452 (Phone)

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