Third Generation Discrimination: The Ripple Effects of Gender Bias in the Workplace
44 Pages Posted: 16 Aug 2017
Date Written: August 15, 2017
What is implicit bias? What does it look like? How can we define and address it in personal and legal contexts, working towards the end goal of making the workplace more amenable to successful career paths for all engaged? These questions constitute the modern taxonomy of questions in the area of gender discrimination. Thanks to plaintiffs of the past fifty years and their arduous battles under Title VII with quid pro quo sexual harassment, hostile environment sexual harassment, pregnancy discrimination, gender discrimination in benefits and work assignments, and many other indignities, we have passed through the era of blatant, un-actionable gender-based discrimination. Of course, certain work environments continue to pose threats to female workers. In those environments, employers and supervisors prey on women who are ill-positioned to access legal and other support services, thus continue to operate workplace environments that openly discriminate based on gender and openly threaten female employees. But the risks to female workers are not only present in those extreme environments. Women in safe, corporate jobs and women in professional jobs, those white collar bastions of Mad Men fame, still battle an evolved species of gender discrimination which flows from implicit bias against women generally and specifically against women attempting to compete in male-driven industries and professions.
Betty Dukes was a Wal-Mart employee who could not get promoted into an entry level management position despite her employer’s sophisticated employment policies which included the legally appropriate policies designed to protect women at Wal-Mart from gender-based discrimination. At Wal-Mart, the decision to elevate employees into entry-level management positions was delegated to department and store managers. Those managers, who were predominantly male at the time of Betty Dukes’s employment, used their discretion in determining which employees should be elevated to the more lucrative manager positions. Despite a strong work record, Betty Dukes was overlooked time and time again. She ultimately filed suit against Wal-Mart under Title VII for gender-based discrimination arguing that it was the discretion vested in the junior managers that caused the gender-based discrimination. Male managers tended to promote male employees onto the management track, defaulting at times to stereotypes about women managers and perceptions of which employees needed the better positions to advance in the company or to support families at home. The culture at Wal-Mart allowed stereotypes about women’s ability to function as managers to block gateway promotions of female retail workers to managers. In this way, the covert message mimicked an overt message that women were less amenable to work and should not take jobs away from men. Betty Dukes argued that the male managers who held the promotion power employed an implicit bias against women that constituted Title VII gender-based discrimination.
Ellen Pao worked in a very different professional context. Ellen Pao was an Ivy-League educated management analyst and lawyer who had enjoyed success in the field of banking and finance. She was praised for her intellect and talents and rose in her profession to a position within the Silicon Valley venture capital firm Kleiner Perkins Caufield & Byers. She joined the firm as a junior partner performing various functions within the firm including managing projects and new initiatives, identifying potential investments, and supporting the firm’s managing partner, John Doerr. Her goal was to be promoted to a full partner at the firm, which specialized in venture capital financing for Silicon Valley start-up tech companies. In this environment, she was a woman among men at every turn, dealing both with the male-dominated atmosphere of banking and finance as well as the male-dominated atmosphere of Silicon Valley tech. By her own assessment, she struggled at times to find her footing in this mixed environment. She also felt pressure to form good working relationships with her male colleagues and please her male superiors. The firm’s “family” culture required close contact and Ellen Pao ultimately became romantically involved with Ajit Nazre, a same-level colleague, after rebuffing his advances and reporting Nazre’s behavior to superiors in the firm. After complaining of harassment by Nazre and other partners, Ellen Pao continued her work at Kleiner, working towards her goal of partnership. However, she was never considered for partner, being excluded from opportunities, meetings and events, which were essential to advancement in the firm. The firm relied on her personnel reviews in evaluating her for partnership, which included evaluative comments that ran the gamut from her having “sharp elbows” and complaining too much or being too sensitive. Ellen Pao was forced to walk the impossible tightrope between femininity and perceptions of job-related masculine superiority. When she was brusque with colleagues and junior employees, she was criticized for mannerisms routinely employed by men in both the finance and tech industries. When she did not assert herself, she was labeled as weak. When she complained about harassment, she was criticized for making trouble. This storm of critique led her to leave Kleiner and file a claim for Title VII gender-based discrimination premised on the theory that Pao’s employer, despite written policies and procedures which protected against discrimination, used stereotypes and the male manager’s implicit biases against women colleagues to position Ellen Pao for her eventual failure.
Betty Dukes and Ellen Pao may appear to have little in common but they are both pioneers in developing a conversation about the role of implicit bias against women in the workplace. This article will discuss their cases in greater detail as a means to focus on a larger question regarding gender-based discrimination and implicit bias. Courts and scholars have recognized the existence of structural or Second Generation discrimination, which describes aspects of an organization’s structure that facilitate or enable implicit gender bias. Betty Dukes’s case was an unsuccessful attempt to litigate a claim for Second Generation discrimination under Title VII, ultimately failing at the United States Supreme Court. Ellen Pao was also unsuccessful in her effort to persuade a San Francisco jury that she was a victim of Second Generation discrimination. In both cases, men and women of various backgrounds determined the ultimate fate of the claims. This article asks if Title VII claims based on Second Generation discrimination are further inhibited by the implicit biases of judges and juries. How can a female plaintiff convince a fact-finder, or a reviewing judge, that she has been discriminated against through the use of stereotypes and bias if those hearing the case share the same implicit gender bias?
This article will begin by examining the Pao and Dukes cases, focusing on the role of the decision-makers in the ultimate outcomes of those cases. The article will then consider implicit bias as a concept, noting the interplay between implicit bias and gender-based stereotypes. Building on that understanding, the article will explore generally the evolution of Second Generation discrimination as a legal theory, connecting that analysis back to Dukes’s and Pao’s cases. The article will then explore the role of implicit bias in the court system, reviewing social science literature regarding the role of gender-based bias in the courtroom as it relates to female attorneys, female litigants, and the effect of certain “feminine traits” in the courtroom. The article will argue that gender-based implicit bias against women litigants plays out in the form of a Third Generation Discrimination, a term developed here, by layering on the biases of judges and juries. Third Generation Discrimination further undermines efforts by women seeking relief under Title VII for workplace discrimination based on claims that her employer allowed bias against her to curb her opportunities for advancement. Women will only succeed in implicit bias cases, such as those brought by Dukes and Pao, if the facts of the case are evaluated by those who can assess the case without regard to their own preconceptions about the role of women in the workplace and in society.
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