Labor / Employment, On The Job

Short Skirts At Work: A Form Of Sexual Discrimination?

Does this somehow exclude males in the workplace, at least to the extent that the woman is favored?

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Last week, we addressed the pressing issue of whether “bro hugs” at work could be considered sexual discrimination, an issue which originated with a reader of the The New York Times “workologist” who said that she felt excluded when the bros at work hugged each other.

She admitted to feeling “almost left out” when the males at her job “constantly hug and grab and bump each other in a friendly way.” Even though she said that she did not want to be bro hugged, she asked the “workologist”: “Should I let this ‘bro contact’ bother me?”

The “workologist” felt (as did I, and my partner, Amy Epstein Gluck — the “Notorious AEG”) that “it doesn’t seem as if your colleagues are trying to exclude you,” but conceded that such conduct can become a “coded way of excluding people. We don’t want people like you because you don’t fit our culture,’ can turn out to mean, ‘You’re not our race, or our gender.’”

The “workologist” emailed us after ATL posted the piece that “that’s my favorite question in quite a while.”

In any event, the question sure seemed a little odd and out there.   But it got me thinking — how far can this issue (or non-issue) be extended? That is, how far from what we clearly understand as sexism can the issue be pushed? If last week’s question was somewhat silly, how far can silly be pushed?

We may be getting far afield here, but I pose the following question as a thought experiment — and that’s what thought experiments do — push the boundaries of an issue. And I guess that’s what lawyers do — take a fact pattern or issue and explore its outer bounds and its implications.

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So here goes: Can wearing short skirts at work somehow be deemed sexual discrimination?

I know, I know … sounds absurd, but hear me out.

If a bro hug could be felt to be exclusionary if it excludes women, then what could be the reverse of this?   What if a woman wears a short skirt for the very purpose of getting the boss to look at her, to notice her — to favor her in the terms and conditions of employment? The sexist past almost dictated that for a woman. But what about now? Does this somehow exclude males in the workplace, at least to the extent that the woman is favored?

We know that there are cases where employees claim discrimination when the boss is romantically involved with another employee — on the ground of favoritism based upon gender. Anyway, that being so, would wearing a short skirt somehow be akin (albeit distantly) to being romantically involved with the boss — perforce an exclusion of males who generally do not wear short skirts at work?

Of course, to ground my answer to this admittedly out-there question, and to see if there was even a flicker of appeal to the proposition, I made inquiry of my partner Amy, the Oracle of FisherBroyles. Would she entertain the question? In the heat of the summer? Would it be a silly question which was beneath her dignity?

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I worried about these things but asked anyway.

Well, the Notorious AEG, never one to disappoint, ignored the dog-days-of-summer heat and humidity, took a break from her sun bathing, gave me a squinty look, and got down to researching the relevant original scriptures (the “Dialogues” that she and I had and which was published by ATL here, here and here). She read and pondered. She pondered and read.

And she eventually came down from Olympus to render her opinion.

“My brother,” she said, as I bowed my head in reverence, “you have asked a lot. Some may consider this a silly question, even a question designed to provoke the gods — to get me involved in a silly issue and discredit me.” I blanched visibly. Nonetheless she said slowly, “Relax, dude. I know that you ask in good faith, so I will respond.”

First hurdle cleared.

She continued:

I don’t think the two scenarios [bro hugs and short skirts] are even remotely comparable. Women who wear shorter skirts in the workplace do so for various reasons (confidence building, preference, etc.) — not just to ‘curry favor’ from a boss or any other man. What if she just likes wearing short skirts? Think Ally McBeal. [Here, the Oracle referenced an old, fictional TV series based, I think, upon a play by Euripedes, or Aeschylus, or someone like that.]

Her tiny skirts were just her preference, not to curry favor with a boss. And how do you determine intent? Saying that this is the reason any woman wears such a skirt sounds like sexual stereotyping a la Price Waterhouse v. Hopkins.

Her point was well taken. Intent is usually pretty important in these things. And the question was a little silly.

The Oracle had taken me down a peg — frankly, made me feel a little foolish.

Takeaway

As I have learned over time, and especially from Amy, when it comes to knowing and feeling what another person feels and experiences, even years of studying and the best of intentions cannot substitute for “walking in someone’s shoes.”

richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.

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