Ch07 Gender Discrimination.docx

Gender Discrimination Chapter Objectives: The objectives of this chapter are to explain to students Title VII's prohibition against gender discrimination, including its many different and diverse manifestations in the workplace, to put the issue of women and work in historical context so that students can understand the initial need for the Title VII provision. In addition, the students will explore how the need has changed, yet is still present. When finished with the chapter, the student should be much more aware of how to avoid liability in this area by having become acutely aware of the many different ways in which gender discrimination can occur and how to avoid it. Scenarios - Points for Discussion Scenario 1: The police department has a height and weight requirement of 5'4, 140 pounds for job applicants. An applicant comes in who is 5'2 and weighs 120 pounds. The police department personnel officer tells the applicant of the requirement and declines to provide her with an application. The applicant storms off, saying she will sue for gender discrimination. Will she win? Why/why not? She will likely win unless the height and weight can be shown to be job related. This is a classic case of disparate impact gender discrimination in which a policy which is neutral on its face disparately impacts a group based on prohibited characteristics. Here, since most women would not be able to meet the requirement because they are shorter and lighter than the department's requirement, there is an adverse impact which must be justified in order to stand. Dothard v. Rawlinson, 433 U.S. 321 (1977). Discussion might also include real versus perceived gender differences. Are women actually as strong as men? Must they be in order to perform some of the traditionally male-dominated jobs? The height and weight requirement has also been deemed to adversely impact those of Asian and Hispanic descent, who tend to be shorter and slighter than other Americans (Officers for Justice v.Civil Serv. Comm'n., 395 F. Supp. 378 (N.D. Cal. 1975);, Lum v. New York City Civil Serv. Comm'm., 10 FEP 365 (S.D.N.Y. 1975). Scenario 1: A discount department store has a policy requiring that all male clerks be attired in coats and ties and all female clerks wear over their clothing a smock provided by the store, with the store’s logo on the front. A female clerk complains to her supervisor that making her wear a smock is illegal gender discrimination, is it? The practice has been held to be illegal. While employers are generally given fairly broad leeway by the courts to impose reasonable dress codes, the codes may not illegally discriminate on the basis of gender. The court has found that the wearing of a smock by women, and business attire by men similarly situated, has the impact of making the women appear to be of less stature than the women. O'Donnell v. Burlington Coat Factory, 656 F. Supp. 263 (S.D. Ohio 1987). You may wish to discuss the role which expectations play in gender. Is there actually a need for the women to wear smocks? For the men to wear suits? What is the possible basis for such a distinction by an employer? What might it reflect about the employer's attitudes regarding certain genders? Scenario 2: A male applies for a position as a server for a restaurant. The restaurant is part of a well-known regional chain named for an animal whose name is a colloquial term for a part of the female anatomy. Despite several years of experience as a server the male is turned down for the position, which remains vacant. The applicant is instead offered a position as a kitchen helper. The applicant notices that all servers are female. All servers are required to wear very tight and very short shorts, with tee shirts with the restaurant logo on the front, tied in a knot below their, usually ample, breasts. All kitchen help and cooks are male. The applicant feels he has been unlawfully discriminated against because he is a male. Do you agree? Why or why not? The male applicant has been discriminated against even though he is a male. This scenario is included to demonstrate to students that the law protects males as well as females from gender discrimination. If the purpose of the business is to serve food and the male applicant is qualified to do so, then he must be allowed the opportunity to do the job. You may wish to contrast this with the Playboy Bunny clubs which at one time were in operation around the country. Only female Bunnies acted as servers. This practice was upheld because Playboy successfully argued that the purpose of the clubs was not actually to serve drinks or food, but rather as entertainment as a live adjunct to its famous magazine. Playboy eventually permitted male servers, but went out of business shortly thereafter (the two events were not necessarily related). You may also want to mention that this scenario is, of course, based on the Hooters restaurant chain, famous for its Buffalo chicken wings and "Hooters Girls" (see April 1994 issue of Playboy magazine). The cases presently pending against Hooters involve sexual harassment rather than general gender discrimination, but it would seem only a matter of time before such a case is brought. You may also wish to discuss the intersection of business and its contribution to certain stereotypes of women and the competing interests of "giving the public what it wants," on the one hand, and not contributing further to the oppression of women, on the other. It makes for a very interesting discussion. When we discussed this in class, the students became quite interested in this scenario. We actually had a male class member go to the local Hooters and apply for a job. He was an experienced server and was turned down for the position. He spoke with management as well as one of the servers. After talking to the manager, the student eventually told the manager about the class. The student came back and shared the experience with the class. It was clear that not only did the student learn a valuable lesson, but the lesson was learned by everyone else in the class. It gave an incredible depth and reality to class discussion about gender roles, experience, expectations and the workplace. Scenario 3: An applicant for a position of secretary informs the employer that she is pregnant. The employer accepts her application but never seriously considers her for the position because she is pregnant. Is this employment discrimination? Yes. It is illegal discrimination for the employer not to fully consider the application of a pregnant employee if there is no other reason for the nonconsideration. Pregnant applicants must be treated as any others as long as they qualify for the job and can perform. LECTURE NOTES * Remind students that not discriminating on the basis of gender is not simply a case of "do the right thing," but, rather, a bottom line business issue. To the extent they can become sensitive to the various manifestations of gender biases we all possess, they will be less likely to make decisions which will cost the employer money for liability, loss of good will and public relations, and the loss of productivity and morale of employees. Also, remind them that the bird cage analogy will be important in analyzing this subject matter. Does it Really Exist? 1. From the outset it should be noted for students that while Title VII protects everyone from discrimination on the basis of gender, because of the history of women in employment and the factors set forth in the introduction, it was primarily to women that the Title VII proscription was addressed. Since most students will have been born after the passage of the Civil Rights Act of 1964, they will have always lived in a time in which it was illegal to discriminate in employment on the basis of gender. They may therefore find it difficult to understand that there is really a need for such a law. They see women achieving in their classes and in the media and it can be difficult for them to comprehend. They may think the law is permitting unfair advantages for women. Discussion of the introductory part of the chapter will help them to understand, as will browsing some of the related Web sites. It also is fruitful to have them take a "macro" approach to the issue, rather than a "micro" approach. It is not the "micro" things which must be looked at, such as that women are now airline pilots, high government officials, etc., but rather, the macro picture of how few women still are able to reach their full potential in the workplace due, in part, to long-held beliefs about their "roles" and "capabilities." See Exhibit 7-3's letter to "Dear Abby" regarding the female medical student usually taken to be a nurse. Since these beliefs are often held by managers and supervisors who are the "gatekeepers," the students should understand how important it is for them to know that we all have such beliefs which we bring into the workplace with us, and that we should become aware of keeping them in check when making workplace decisions. 2. In explaining this issue and providing a foundation for the chapter, we found that students were quickly able to grasp the parameters of the problem by reading the piece included at the end of this chapter (Doc.7A). Students are absolutely shocked at the information in the article. They have rarely thought of gender in the curriculum and generally cannot imagine a need for it. After reading the article, they are convinced at how important the issue is. Feel free to copy it and pass it out, but please include the appropriate copyright credit. 3. Bring the students' attention to Exhibit 7-6, the pre-1964 Civil Rights Act want ads. Have them note how ads specifically requested women for certain jobs. Have them look at what types of jobs they were. Discuss the fact that they tended to be menial, clerical and otherwise "typical female jobs." Ask how it differs from want ads of today. Does the change in the ads make any difference? Why or why not? 4. See if the students can add any myths of their own to the gender myths of Exhibit 7-4. Discuss the effects the myths may have on employment of each gender. Bring their attention to Exhibit 7-2 on the Esquire magazine poll asking men about sexist thoughts. 5. New claims for issues like contraceptive equity; female military rules in non-U. S, countries, and even male coaches suing for gender discrimination are increasing. Gender Discrimination in General 1. The law prohibits gender discrimination in all of its manifestations: advertising, recruitment, interviewing, hiring, compensation, training, promotion, discipline, termination, and any other terms or conditions of employment. 2. Many of the ways in which an employer discriminates may not, in and of themselves be illegal or may not be intended for illegal purposes, but may appear to be so. The better avenue is to simply not provide the employee or applicant with ammunition for a later law suit. For instance, asking only females whether they have children may be for the purpose of finding out if there are factors the employer needs to consider in determining whether there are factors which may interfere with applicant's ability to be consistently present at the workplace. Aside from the fact that this question is a poor indicator of what the employer wants to know because of the erroneous assumptions inherent in the inquiry, it may also provide a basis for suit. If the applicant does not get the job for reasons unrelated to her response regarding children, and later sues for gender discrimination, she will be able to use as evidence of discrimination the fact that she was asked such questions (not asked of male applicant), ostensibly in order to provide information which was to be a part of the consideration of her application. 3. For Exhibit 7-5, "Jury Tells NBA to Pay Female Referee $7.85 Million," possible discussion questions include ? Why do students feel the female referee was discriminated against? ? Does the public play any role in situations such as this where the employee's job has at least a quasi-entertainment aspect to it? That is, if the crowd is there to be entertained by an event and does not like the umpire for gender reasons, does it matter to the employment relationship between the employer and employee? Should it? ? What are the pros and cons of having a female ref? Male "Hooters Boys?" Recognizing Gender Discrimination 1. Employers should learn when it is they are making discriminatory statements or taking discriminatory actions. Being sensitive to gender will take time and patience since the rules are changing and so much of what has been taken for granted until now is no longer acceptable. Case Example: Milligan-Jensen v. Michigan Technological University, 767 F. Supp. 140 (WD Mich., N. Div. 1991) Issue: Whether the gender-related statements made by the employer could be taken as direct evidence of gender discrimination? Facts: Employer made several statements to the applicant, later employee, indicating that gender was being considered in evaluation of her application and later, performance. Applicant was initially told when she applied for the job that "their woman" had just quit and "they had to hire a female." This was repeated in an application update two months later. After hire, the employee was assigned a badge number all previous females had and it was deemed the "female" number; employee was criticized for matters over which she had no control and treated differently than males engaging in the same activity. When employee asked for a shift change, her supervisor, Fredianelli, became angry and she was told she had the "lady's job" and this was so noted in her file by the supervisor. Decision: The court said that though direct evidence of discrimination usually entailed a general comment about a minority group from which a court could infer discriminatory animus toward the particular plaintiff in the particular job, here no such inference was necessary. The statements made by employee's supervisor evidenced a discriminatory state of mind which, upon analysis, terminally infected employee's employment. Case Questions 1. Would you have said some of the things that Fredianelli said to Milligan-Jensen? Which things and why or why not? No-nos probably will include that they "had to hire a female;" that the employee had the "lady's job" and the "lady's badge number." Each of these specifically pointed out her gender as if it was a factor forming part of the decision it was related to. That made it apparent that gender was being used as a basis for making workplace decisions, and that can be used, as it was here, as direct evidence of discriminatory intent. 2. Do you think the police department intended to discriminate? Explain. Probably. It may well have been that it was not a malicious intent, but rather an intent premised upon ignorance and not thinking of things past the status quo (the "it has always been thus" approach). Nonetheless, specifically pointing out gender on several occasions indicates intent, whether to simply distinguish or to actually discriminate. The outcome is the same either way. 3. How would you have avoided this situation? This situation could have been avoided by Fredianelli not making the types of statements which employee was able to point to as evidence of discrimination. Of course, it would have been helpful if he had not held such obviously negative ideas about female security officers, in which case his behavior would likely not have been violative of Title VII. LECTURE NOTES 1. Exhibit 7-7 about different types of discrimination we may not be aware of and that may not be covered by Title VII , and 7-9 about whether hiring one’s girlfriend is illegal or just unfair are good examples of how something can seem illegal, but it may not be. It may only be unfair if it is an isolated incident. 2. Exhibit 7-1 regarding gender-neutral language is a good example of the seemingly small ways in which gender matters are changing. For those who protest and say that the attorney calling all of the justices, including Sandra Day O'Connor "gentlemen" is no big deal, reverse it and ask if it would be a big deal if the attorney had instead said "I would like to remind you ladies" of a legal point. The point is that the language used in either case would not reflect the reality of the situation and those not included would feel left out. 3. Gender discrimination can also occur when the employer has a policy which, unlike the language used by the employer above, is neutral on its face, but has a disparate impact. Since these situations appear neutral, care must be taken to look for hidden disparate impacts which may be lurking. Case Example: Dothard v. Rawlinson, 433 US 321 (1977) Issue: Whether the employer's requirement that prison guards be 5'4 in height and weigh at least 120 pounds discriminates against women in violation of Title VII. Facts: After her application for employment as an Alabama prison guard was rejected because the applicant, Rawlinson, failed to meet the minimum 120-pound weight, 5'4 height requirement of an Alabama statute, Rawlinson sued. She challenged the statutory height and weight requirements and a regulation establishing gender criteria for assigning prison guards to "contact" positions (those requiring close physical proximity to inmates) as violative of Title VII of the Civil Rights Act of 1964. The Supreme Court found gender discrimination. Decision: The Court held that Alabama's argument that the requirements have a relationship to strength, a sufficient but unspecified amount of which is essential to effective job performance as a correctional counselor failed because they failed to offer any evidence in justification of the statutory standards. The court said that Alabama could have used a validated test to measure strength directly, but it did not do so. Case Questions 1. What purpose did the height and weight requirement serve? Do you think it was made to intentionally discriminate against women? The height and weight requirement probably at one time served as an unsophisticated, though probably fairly accurate gauge of whether an applicant would be able to handle the physical aspects of the job. This was probably instituted at a time when it was not even thought that women would be holding the job of prison guard. Alternatively, it could have been enacted after passage of Title VII as a way of avoiding direct discrimination by setting requirements which were neutral on their face, and seemed plausible, but in reality, discriminated against women. 2. How could management have avoided this outcome? The outcome could have been avoided by management simply having validated tests for the factors it wished to consider. If strength or endurance or quickness or alertness or any other factor deemed important to the job was tested by validated means, it would have been defensible. 3. In your view, should women's access to male prisoners be limited as described here? Why or why not? This question can be used to explore valid restrictions on employment based on gender, and those which may be linked instead to stereotypes and preconceived notions of traditional female roles. Courts have noted reasonable concerns of inter-gender prison guards such as the fear for safety of female guards when placed with male prisoners deprived of sex for extended periods, or violent prisoners who might harm the women. However, stereotypical notions of the inappropriateness of female guards based upon thinking they cannot protect themselves against unarmed prisoners though the guards possess guns and other safety equipment, may be unfounded and based on the thought of heavy physical activity being "out of character" for females. Regarding the difference in physical strength, of course, many martial arts experts can attest to the fact that height and weight can have little or nothing to do with ability to defend against attack. Gender-Plus Discrimination 1. Employers may hire women in general, but not hire certain kinds of women, or women with certain other factors present, such as they hire women, but not those with preschool-aged children, or not married women. This too is discrimination, since similarly situated men are not so limited by the employer. Case Example: Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) Issue: Whether it was a violation of Title VII for an employer who hires females not to hire those with preschool-aged children when there was no similar rule for men with preschool-aged children? Facts: A female applicant was denied employment because of the employer's policy against hiring women with preschool-aged children. There was no policy against hiring men with such children. Decision: In a per curiam decision, the Supreme Court held the employer's policy violated Title VII because Title VII requires that persons of like qualifications be given employment opportunities irrespective of their gender. The Court said that there could arguably be a basis for distinction between males and females if there were conflicting family obligations demonstrably more relevant to job performance for a female than a male, but it saw no basis for such a BFOQ here. In a strong dissent, Justice Marshall argued that the Court should not have included the latter point, as it relegated women to the ancient ideas about the proper role of women and allowed the possibility of them being a basis for legitimate discrimination against them. Case Questions 1. Why do you think the employer instituted the rule discussed here? Does it actually address the employer's concern? It was probably instituted in order to address the employer's preconceived notion that women with preschool-aged children either should be at home with them, or are more likely to be absent from the job a great deal because of them. If the employer's concern is for whether an employee will miss a great deal of work time, the employer should simply ask that, rather than assume those with certain obligations will fit a certain pattern. This assumption would totally miss women with older children who may miss work because of illness, or males who may miss work because of parental obligations. Thus, the employer's prohibition does not actually completely accomplish what it intended. 2. Can you think of a better way for management to handle its concerns with preschool parents? Again, be sure the concern is well-founded rather than based upon assumptions which may have little or nothing to do with the applicant's reality. If there is a concern, all employees should be questioned, rather than only females. 3. Does Justice Marshall's position make sense to you? Why or why not? Justice Marshall's position makes sense because it is accurate in its assessment that the possible BFOQ would only assign to women the same roles relegated to them before Title VII, and as such, is in conflict with it. It would also likely not permit men to take part in the parenting obligations which they may wish to be involved in. As here relevant, Title VII's purpose was to prohibit illegal job discrimination based on gender. Continuing ingrained notions about the roles of women and men can do exactly that and should be avoided as violative of that law. Gender Issues In addition to the types of discrimination we have already seen, both obvious and subtle, both disparate treatment and disparate impact, there are other ways in which gender consideration arise in employment. A. Gender Stereotyping 1. Exhibit 7-11 demonstrates the importance of private, individual action to Title VII. The law only goes so far. While there is no law saying people cannot tell jokes which stereotype members of certain groups, engaging in such behavior makes it more difficult to accomplish the goals of Title VII. The study referred to in the box teaches us that we actually do take in the jokes and other off-hand information we hear about groups and use it when evaluating those groups. To the extent we discourage such behavior in others and refrain from it ourselves, we are less likely to continue to perpetuate the stereotypes which are so omnipresent, yet harmful. 2. Since we all have nearly the same messages about certain groups received through the auspices of the mass media, we all experience similar stereotyping of certain groups in our acculturation. Employers are not immune to stereotypes. However, when they base their workplace decisions on them, they can run into trouble with Title VII. Case Example: Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) Issue: Whether an accounting firm's decision to deny partnership to a female candidate who did not meet their expectations of what a female partner should be violates Title VII? Facts: Ann Hopkins, a female associate who was refused admission as a partner in an accounting firm brought a gender discrimination action against the firm. She was told that despite her outstanding performance and competence, she was "macho," should "take a course at charm school," and that she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry." Decision: The U.S. Supreme Court held that the evidence was sufficient to show that illegal gender stereotyping played a part in evaluating Hopkins' candidacy, which violated Title VII. Case Questions 1. What was Price Waterhouse's fatal flaw? Make sure that the student answers include Price Waterhouse employees holding such negative gender stereotypes about women to exist, and allowing an atmosphere in which partners felt so comfortable holding such ideas. This comfort level was, most certainly, a contributing factor for the partners being so open about their feelings and even deigning to write them down and cause them to be part of a formal record. 2. Does Hopkins' treatment here make good business sense? Explain. No. She was one of the most productive employees the firm had, and had outperformed virtually all other candidates and was well liked by clients. 3. How would you avoid the problem in this case? By: ? not allowing the workplace to have an atmosphere which supports, advances or encourages such stereotypical ideas about certain groups ? Discouraging stereotyping activity in a strong way ? Allowing employees to be judged on performance rather than extraneous, irrelevant factors. Additional exercise: See if the students can add any stereotypes to the list provided at the end of Price Waterhouse and discuss the impact of stereotyping on those stereotyped and those who stereotype. B. Grooming Codes 1. Workplace grooming codes are often closely connected with gender stereotyping since many of the matters covered in such codes reflect certain notions about how different genders should dress or wear their hair. 2.Courts give employers a great deal of leeway to determine appropriate workplace dress code matters, but there can still be illegal discrimination. However, not every difference in treatment based upon gender is illegal gender discrimination when it comes to dress codes. Case Example: Harper v. Blockbuster Entertainment Corporation, 139 F.3d 1385 (11th Cir. 1998) Issue: Whether it is illegal gender discrimination for an employer to prohibit males from wearing long hair, but to permit long hair on females? Facts: Four males protested Blockbuster’s new grooming policy permitting long hair on females nut not permitting long hair on males. Terminated when they refused to cut their hair, they brought suit alleging that Blockbuster’s illegally discriminated against them on the basis of gender. The district court granted Blockbuster’s motion to dismiss and the court of appeals affirmed. Decision: Reaffirming its decision in Willingham v. Macon Telegraph Pub. Co, 507 F.2d 1084 (5th Cir. 1975), the court held that the policy was not a violation of Title VII in that it was not based on gender, but rather upon grooming standards. Congress's guarantee through Title VII of equal employment opportunity for males and females was not violated because males could still work for the employer if they cut their hair. Hair length is related more to how an employer runs his business rather than to equality of employment opportunity. Case Questions 1. Do you agree with the court? Why or why not? Student response. Considerations include that they may agree with the decision because hair length is not an immutable characteristic such as race or gender (or historically constitutionally protected like religion), but rather a choice; the business consideration of the newspapers and its advertisers is a legitimate business concern; the tradition of permitting long hair on females but not males, and the employer's generally expansive rights to regulate workplace appearance. Those not in agreement may include: employer's policy continues longstanding stereotypes of "appropriate" male and female looks. 2. In your view, how can the court reach its decision simply by saying Title VII only deals with immutable characteristics? Were the discriminatory factors in Hopkins immutable (i.e., wear more jewelry, have hair styled, dress more femininely, etc.)? What is the distinction? Except for religion, which has traditionally enjoyed strong constitutional protection, all the other categories included in Title VII are immutable. People cannot choose their race, gender, national origin or color. In that sense, the court is correct, that Title VII only deals with immutable characteristics. However, in Hopkins, the items the employer suggested were all traceable to Hopkins’ gender as a female, and those thing that were stereotyped as typically female attributes. These suggestions were not immutable characteristics, but they stemmed from the immutable characteristic of gender, which the court recognized as having been historically linked to the stereotypes. 3. If you were the employer, what policy would you adopt? Why? Student response LECTURE NOTES Customer or Employee Preferences 1. Generally Title VII does not permit the employer to consider customer or employee preferences when determining matters related to prohibited categories of protection. For instance, an employer could not refuse to hire qualified female construction workers simply because the male workers did not want to work with females. The same holds true of the preferences of clients. An employer would not be protected in not assigning blacks or Asians to handle certain clients who do not want blacks or Asians to work with them, if to do so discriminates against those employees. 2. The Civil Rights Act of 1991 extended Title VII to US citizens employed by American-owned or controlled companies doing business outside the United States. This means that employers may run into problems being required to comply with Title VII, yet the mores of the country in which the business is located are contrary to the dictates of Title VII, i.e., the country may frown upon women conducting business. The employer must not discriminate unless it must do so in order to prevent violation of the laws of the country in which the business is located. That is, it could not refuse to hire women unless the country's laws prohibit the hiring of women. Logistical Considerations 1. Generally, workplace logistics are unable to be used as an excuse for employers to violate Title VII. For instance, an employer cannot refuse to hire women into traditionally all male workplaces by simply saying there are no restroom facilities for them. 2. The January 1, 1994 USA Today newspaper carried a story at page 3A of the Pro-Line Cap Co. dismissing nearly 30 female employees when it was told by federal workplace inspectors that it had to have more women's restrooms. Pro-line's position is that it did not discriminate, but could not afford to build more facilities. EEOC has filed suit. Likely this will be found to be discrimination. Case Example: Lynch v. Freeman, 817 F.2d 380 (6th Cir. 1987) Issue: Whether it was gender discrimination for an employer to maintain restroom facilities in a condition which made it so that females were unable to use the facilities without suffering adverse health consequences. Facts: The female employee was fired for using off-limit clean toilet facilities that were cleaner than those provided by the employer. The employer at a construction site maintained portable restroom facilities for its employees. However, the toilets were often unsanitary, with feces and urine on the toilet seat, holes punched in the side of the restroom, and toilet paper which was often soaked with urine. While the facilities apparently presented no problem for male employees, the female employee contracted a urinary tract infection which was likely to arise from using the facilities. As a result, she held her urine and also experienced medical problems as a result of doing so. Employee reported this repeatedly to management and got little relief. Decision: The fact that the restroom facilities permitted males, but not females to use them was disparate impact gender discrimination. While unsanitary restroom facilities had no adverse effect on males, who did not need to sit or use toilet paper in order to use the facilities, since women are made differently, this presented a problem for them which caused a different impact. Anatomical differences between men and women are immutable characteristics and the unsanitary facilities placed a heavier burden on females than on males. Case Questions 1. Are you surprised by this outcome? Why or why not? Yes: ? Didn't think something a small as a toilet could cause discrimination. ? Seemed like such a small thing, like the women were overreacting. ? It just shows how employers have to look at the impact of all of its policies for gender discrimination. No: ? It makes sense when you look at the facts. ? The employer should have realized it was discrimination since females couldn't use the restroom. 2. Does the outcome make sense to you? Student response. Yes, given the factors the court discussed. On the face of it seems like it would be ridiculous to sue over not having sanitary toilet facilities, but when you look at the facts, it makes perfect sense. No, the employer should not have to be responsible for every little thing in the workplace, or else nothing can ever get done. 3. What would you have done if you were the employer in this situation? When the employee complained, have the toilets cleaned more carefully, especially since someone was being paid to clean them. The matter simply may not have been thought about before since females were not traditionally in this job. Once they were, the employer should have been willing to listen to their concerns and take them seriously. Simply doing that would have saved them a great deal of trouble and money expended in litigating this issue. LECTURE NOTES Equal Pay and Comparable Worth 1. On average women earn 70 cents for every dollar earned by men. See Exhibit 7-12 on gender-based wage disparities. 2. In 1963, the year before Title VII was enacted, the Equal Pay Act was passed to amend the Fair Labor Standards Act to prohibit gender-based wage discrimination. 3. Employers may not use gender as a basis for paying lower wages to an employee for equal work "on jobs, the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions." 4. Differences in wages may be based on merit systems, systems that measure earnings by quantity or quality of production, or on a differential based on any other factor than gender. 5. Since Title VII prohibits discrimination in pay, and the EPA would permit it under certain circumstances, the Bennett amendment to Title VII permits the exceptions recognized by the EPA to be recognized by Title VII. 6. To alleviate a wage differential based on gender, the employer must raise the lower wages rather than lower the higher wages. Case Example: Pollis v. The New School for Social Research, 132 F.3d 115 (2d Cir. 1997). Issue: Whether evidence that a female professor complained several times about discrepancies between her salary and that of male professors and the college did not rectify the situation is sufficient to show reckless and willful violation of the Equal Pay Act. Facts: Female faculty member was hired in 1964, granted tenure in 1966, and promoted to full professor in 1976, twice serving as department chair. She proved that during a 19-year period, her salary was lower than that of five comparable male colleagues. The court said a violation is willful or reckless if “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” A showing if intent or bad faith is not necessary. Here, Pollis testified that on multiple occasions over several years, she complained to decision makers about her salary discrepancies and responses indicated an awareness that the administration knew of the discrepancy and continued to pay her less. Decision: Yes, the evidence that the school had been made aware of the salary discrepancy several time and did nothing about it was sufficient to show reckless or willful violation of the Equal Pay Act. Case Questions 1. What do you think accounted for the difference in Pollis’ salary? Student response. 2. If you were the department chair responsible for such things, how would you have avoided this situation? Student response. 3. Why do you think the school did not rectify the situation even after the salary difference became clear? Student response. You may want to discuss the difference between knowing the law and acting in accordance with it. 7. The content of the job is what is analyzed to determine similarity, not the title of the job. Employers cannot pay different wages simply by naming similar jobs by different names for those that are predominantly male, and those that are predominantly female. 8. Comparable worth deals with comparing jobs that are of comparable worth to the employer and adjusting wages based on that factor. It is a means of attempting to make more comparable the wages of predominantly female jobs and predominantly male jobs. Those that are predominantly female are generally paid lower wages, yet because the jobs are not the same, the EPA does not apply. 9. County of Washington v. Gunther, 452 U.S. 161 (1981) held that the Bennett Amendment incorporates only the four EPA exceptions into Title VII, not the "substantially equal" requirement, therefore the jobs compared in a Title VII action need not be substantially equal. Case Example: American Federation of State, County, and Municipal Employees, AFL-CIO (AFSCME) v. State of Washington, 770 F.2d 1401 (9th Cir. 1985). Issue: Whether the state’s decision to base compensation on the competitive market rather than on a theory of comparable worth established liability under the disparate impact theory of Title VII and whether the state’s participation in a market system allowed an inference of discriminatory motive to establish liability on a disparate treatment theory if the state did not create the market disparity and was not shown to have been motivated by illegal gender-based considerations in setting its salaries. Facts: Washington state conducted studies of prevailing market rates for jobs and wages to determine wages for various state jobs. It found that female-dominated jobs were paid less than male-dominated jobs. The state compared jobs with comparable worth to the employer and found that female-dominated salaries were about 20% less than those of male-dominated jobs. The state legislated that it would begin basing its wages on comparable worth rather than the market rate, but would do so over a 10-year period. State employees wanted to begin the law immediately. A class of employees brought suit under Title VII alleging it was a violation of Title VII for the state to know of the wage difference and not remedy it immediately. Decision: No, the state’s decision to base liability on the competitive market rate rather than on comparable worth does not establish liability under the disparate impact theory of Title VII. Disparate treatment was not established by the state participating in a market system when it was not shown that the state created the market disparity or was motivated by illegal gender-based considerations in setting the salaries. Case Questions 1. Do you think that using comparable worth is an effective way to determine salaries? Student response. 2. Why do you think male-dominated jobs tend to pay less than female-dominated jobs, if both have virtually the same value to the employer? Student response. 3. What would you do to avoid this situation? Student response. Gender as a BFOQ 1. Gender may be used as a bona fide occupational qualification under certain limited circumstances such as when there is a legitimate need for authenticity as in a theater production or modeling. 2. Most often employers attempt to use gender as a BFOQ unsuccessfully, and not based upon genuine defensible factors. Case Example: EEOC v. Audrey Sedita, d/b/a Women's Workout World, 755 F. Supp. 808 (N.Dist. Ill. E.D. 1991) Issue: Whether being female is a BFOQ for working as a manager, assistant manager or instructor at a female exercise studio. Facts: Employer refused to hire males for her female exercise studio, citing substantial physical contact with members' bodies, nudity in the locker room, shower and bathroom when showing club facilities to new members, and members' conscious choice to join an all-female health club. Decision: Court held that the employer failed to prove either that a factual basis exists for the discriminatory hiring policy, or that no reasonable alternative exists to protect member privacy. The former would involve evidence that members would not consent to service by males, and the latter alternatives such as permitting new members to view the locker rooms on their own, posting times at which males were working and permitting members who preferred females to have only females work with them. The BFOQ exception is extremely narrow and the heavy burden placed on the employer to show a basis for a BFOQ was not met here. Case Questions 1. Do you agree with the court's decision? Why or why not? Possible issues: Yes - if employers were allowed to discriminate as was done here, there would be little effectiveness in having Title VII because they could always argue that their clients want certain kinds of people and it would continue the status quo. If the employees can perform the job, they should be allowed to, though there may be a genuine need to protect privacy, which can be done without having a policy of absolute refusal to hire males altogether. No - employers should be able to hire who they want, especially if they have a clientele to consider. Employers are in the business to make money, and if they will not be able to do so because the clients will not want to patronize them if they hire certain people, they should be permitted to hire them. Government should stop trying to make everything equal, because it takes away the rights of others to have what they want. 2. If you were the employer in this case, what would you do? Take the court's advice and go back to the membership and find out what they are willing to live with. The court's suggestions regarding posting times males will be on duty, allowing members to choose who they want to work with them and allowing new members to view the locker room facilities on their own seem quite reasonable and should address the employer's concerns. 3. Do you think Title VII was made to address these types of situations; that is, where a private commercial enterprise wishes to have a particular clientele served a particular way? Explain. Yes - see question #1-yes answer; if discrimination is going to be stamped out, all employers, both public and private, need to be included. No - see question #1 answer; the government should allow leeway for people who want to choose who they are served by or who they must be with. Compare the situation of Title VII not pertaining to private club memberships. The difference is that Title VII protects the employment relationship, not the social relationship, which most clubs are organized to address. LECTURE NOTES Pregnancy Discrimination 1. The area of pregnancy discrimination has been a troubled one under Title VII. This is despite the fact that even as far back as 1983, statistics showed that women comprised approximately 30 percent of the American workforce (it is now closer to 50 percent) and of this number 33 million women were of childbearing age (16-44) and at least 75% of these 33 million women would at some time in their career become pregnant. 2. Many employers have maternity leave policies to address this more than likely event, but many others, particularly smaller employers, do not. 3. The difference in the treatment of pregnant employees is due in part to the fact that until recently pregnant women were treated differently by society as a whole. 4. In the not-too-distant past, teachers were required to take maternity leave at a certain point in their pregnancy, at times foregoing salary, whether or not they felt the physical need to do so, or whether or not their pregnancy was becoming physically obvious to their students. It was thought to be inappropriate and confusing for a teacher to be pregnant in front of students. The word "pregnant" could not be used on television or in films. Pregnant women were routinely thought of as unable to work up to their usual capacity, even though that may not have been the case. Pregnant women were thought to be "too delicate" to continue to be productive employees. 5. Much of this theoretical underpinning was based upon the ideas which even the law held about the place of women in the total scheme of things. 6. The effect was to discriminate against females and preclude or limit their economic opportunities and employment potential. 7. Congress passed the Pregnancy Discrimination Act in 1978 (PDA). 8. The Act amended the "Definitions" section of Title VII to add a new subsection (k) which defined gender to include pregnancy and related conditions. 9. The PDA prohibits an employer from using pregnancy, childbirth, or related medical conditions as the basis for treating an employee differently if that employee can perform the job. 10. This difference in treatment can be manifested in many ways. For instance, the employer can: ? refuse to hire pregnant applicants ? terminate an employee upon discovering the employee's pregnancy (See Exhibit 7-13) ? not provide benefits to pregnant employees on an equal basis with short-term disabilities of other employees ? refuse to allow a pregnant employee to continue to work even though the employee wishes to do so and is physically able to do so ? not provide the employee with lighter duty if needed, when such accommodations are made for employees with other short-term disabilities ? eliminate the pregnant employee by moving her to a new job title with the same pay, then eliminate the position in a job restructuring or reduction-in-force ? evaluate the employee as not having performed as well or as much as other employees when the basis for the evaluation is the employer's own refusal or hesitation to assign equal work to the employee because the employee is pregnant and the employer feels the need to "lighten" the employee's load, though the employee has not requested such ? not permit the pregnant employee to be a part of the normal circle of office culture so that she becomes less aware of matters of importance to the office or current projects, resulting in more likelihood that the employee will not be able effectively to compete with those still within the circle. Case Example: Zaken v. Borer, 964 F.2d 1319 (2d Cir. 1992) Issue: Whether it will be pregnancy discrimination in violation of Title VII for an employer to terminate an employee who was doing fine until such time as the employer discovered the employee was pregnant and terminated her from her job? Facts: Employee's performance was above average until employer found out employee was pregnant, at which time she was terminated. Employer tried to argue that employee was not doing well in the job, but this went against the experience reflected in the employee's record and the experience of the employer's reaction to other employees who had become pregnant and been terminated. Decision: Court held for employee. Plaintiff need not show pregnancy was the primary reason for defendant's decision to discharge plaintiff and deny her a bonus, but only that it was a factor relied upon by defendant. The jury should have been instructed that if it found Zaken had demonstrated by a preponderance of the evidence that her pregnancy played a part in Boerer's decision, then it should find for Zaken unless Boerer demonstrated by a preponderance of the evidence that the same decision would have been made even if pregnancy would not have been one of the factors contributing to it. Case Questions 1. Point out some of the things that you think Boerer and the supervisor should not have done in this case. How would you have handled it differently? ? Supervisor made it clear to employee that she should not tell anyone at the company that she was pregnant. ? Supervisor suggested it would be best if he "broke the news" to the owner at a later time. ? Upon finding out employee was pregnant, owner did not give employee her anticipated bonus. ? When employee asked why she did not receive a bonus, she was told by her supervisor that she was "not qualified" for her sales position, though she had been performing admirably. ? Employee was terminated and was again told by her supervisor that she was not qualified. ? Supervisor told employee he had fought to convince the owner not to terminate employee. ? After terminating her for not being qualified, the supervisor issued a letter of recommendation characterizing employee's skills as outstanding. How handled differently: Student response. 2. Can you think of reasons why Boerer may have terminated pregnant employees if she did as Zaken alleged? She may have felt that they were incompatible with the "glamorous" world of fashion; that the employee would not be present at work as needed, first because of pregnancy, then because of parental responsibilities; perhaps she was totally detached from pregnancy and parenthood and did not understand it. 3. Do you think that the type of business had an impact here? That is, the fashion industry rather than some other workplace? Should it? It may have, but since employee was an administrative employee rather than, say, a model, it should not have mattered. LECTURE NOTES Parental Leave Policies: The Family and Medical Leave Act 1. On February 5, 1993, President Clinton signed into law the first piece of legislation of his new administration: The Family and Medical Leave Act (FMLA). About twenty-five states already had some form of family leave legislation (most similar to the FMLA), and Congress had twice passed a federal law, but it was vetoed by President George Bush. 3. The Act guarantees employees who have been on the job at least a year, up to twelve weeks of unpaid leave per year for a birth, adoption, or care of sick children, spouses or parents, and the same or an equivalent job upon their return. 4. The Act took effect six months from enactment and applies to employers with fifty or more employees within a seventy-five mile radius. 5. Employees must have worked for their employer for at least one year and for at least 1,250 hours during the twelve months preceding the time off and must give the employer at least thirty days notice when practical (such as for a birth). 6. Employers may require employees to first use vacation or other leave before applying for the unpaid leave, but the employee must be compensated for the vacation days as they normally would. 7. Where both members of the couple work for the same employer, the employer can restrict the couple to a total of twelve weeks leave per year. 8. Employers must continue to provide the employee with health insurance during their leave and may exclude the highest-paid ten percent of their employees. Employers can also require medical confirmation of an illness, which the U.S. Department of Labor, which has issued regulations on the Act, defines as requiring at least one night in the hospital. 10. Complaints may be filed with the Wage and Hour Division of the Labor Department, or the employee can file a lawsuit if he or she feels the employer violated the Act. 11. The FMLA affects about five percent of U.S. employers and about forty percent of U.S. employees. The number of employees who will be able to take twelve weeks without pay will be significantly less than those who will be covered by the law. 12. A 1992 study found that only about nine percent of companies in four states with family leave legislation had trouble implementing the laws. 13. In 1992 an estimated 150,000 people lost jobs because they were not covered by such policies. 14. Smaller employers will be hardest hit, and there will inevitably be employers who limit their workforce to less than fifty employees in order to avoid the requirements of the law. 15. Bring students’ attention to Exhibit 7-14 regarding male employees’ hesitance to take FMLA leave. 16. There have been many questions about FMLA since its inception, especially the implementing regulations from the Department of Labor. Questions about how serious an illness must be to qualify for FMLA leave, reinstatement after taking leave, intermittent leave, appropriate notification to the employer, and other issues. 17. The U.S. Supreme Court decided its first FMLA case with Ragsdale v. Wolverine Worldwide, Inc. 122 S. Ct. 1155 (2002). The court determined that despite the Department of Labor regulations requiring that an employer notify the employee that FMLA leave is being taken, it is not always fatal for an employer not to notify an employee that the employee is using FMLA leave. 18. The FMLA regulations remain an important part of the FMLA law. Fetal Protection Policies 1. These are policies an employer has which prohibit usually female employees from holding certain jobs, or working in certain areas of the workplace, in order to prevent harm to the reproductive system of the parent (usually mother), or, if pregnant, the fetus. 2. Until 1991, courts were split on the issue of whether such policies were permitted. Some opined that they were acceptable because they protected the employer from suit if anything happened to the fetus, and that because the fetus was a part of the mother/employee, the employer had a duty to protect it. Others determined that it was gender discrimination and that Title VII was to protect the employee, not the employee's offspring. 3. In 1991, the US Supreme Court held that fetal protection policies which prohibited women, but not men, from holding certain positions, discriminate on the basis of gender in violation of Title VII. Case Example: UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) Issue: Whether the employer's fetal protection policy prohibiting women of childbearing age from holding certain jobs unless they had a doctor's statement showing they were infertile discriminated on the basis of gender. Facts: The employer's policy barring all women except those whose fertility was medically documented, prevented female employees from taking jobs which generally paid more, though they involved actual or potential exposure to lead. The policy also did not allow males who worked in the lead-exposed jobs to take time away from the position in order to prepare their bodies for procreating. Decision: The Court held that the policy was facially discriminatory based on gender. Fertile men, but not fertile women were given a choice as to whether they wish to risk their reproductive health for a particular job. The employer does not seek to protect the children of all its employees, despite the evidence in the record about the debilitating effect of lead exposure on the male reproductive system. The decision is bolstered by the Pregnancy Discrimination Act explicitly prohibiting discrimination based on pregnancy, childbirth or related medical conditions. Case Questions 1. Do you agree with the Court that the welfare of the child should be left to the parents, not the employer? Yes - Title VII is made to address employee discrimination, not other matters such as the health of the fetus. If there is a need for laws to protect the fetus, Congress should pass such laws, not the Court, by interpreting Title VII to stretch that far. No - Title VII is a law addressed to employees and the fetus is a part of the employee. The employer cannot not consider an entire person when making policy. 2. What do you find most troublesome about the decision, if anything? Explain. According to press accounts of "conservatives" and anti-abortion activists at the time, and the complaints of some students (particularly one in my class whose mother worked in a job exposing her to lead while she was pregnant with the student, and he evidently suffered some effects from this) the decision appears to disregard the life of the fetus altogether. In fact, what it does is to leave that decision to the one most likely to have that interest at heart: the parent. 3. As an employer, what would you do in this situation? Leave the decision up to each employee, male and female, but make sure that they knew of the risks presented. Case Example: Spangler v. Federal Home Loan Bank of Des Moines, 278 F, 3d 847 (8th Cir. 2002) Issue: Whether the employee’s phone message that she would not be in because of “depression again” was sufficient to put the employer on notice that the employee was invoking the FMLA when the employee had a long history with the employer of depression and absences related to depression. Facts: The employee had worked for the employer since 1982 and had been diagnosed with a form of depression in 1993. From 1993 to 1998 employee took several leaves to deal with her illness. Despite the employer asking employee not to call in the morning and leave phone messages that she was not going to come in that day, but rather, to speak to a supervisor, she did so. Much evidence was presented that the employer was well aware of the employee’s illness, so that when she called in and said it was “depression again,” employer should have been aware that the FMLA was being invoked. Decision: The court held that the FMLA need not be invoked by name in order for the employer to be put on notice of the employee taking FMLA leave. Under the circumstances, where the employer had a long history with the employee surrounding the employee’s depression issues, it should have been sufficient notice of FMLA leave for the employer to know the FMLA was being invoked by employee’s message. While an employer may require an employee to comply with customary notification requirements, failure to do so will not prevent the employee from being able to invoke the FMLA. Case Questions 1. Put yourself in the position of a manager. What would you do to cope with Spangler? Student response. 2. Do you understand the court’s decision about Spangler’s last phone message? Explain. Do you agree? Why or why not? Student response. 3. Do you understand why employers have so much trouble with the FMLA regulations and find them so bothersome? Explain. Student response. Chapter-End Questions 1. A food service manager of a facility in serious disrepair was consistently rated as a favorable employee and received salary increases. However, when the company lost the facility account, she lost her job, even though male employees in equivalent positions with lower performance ratings received new assignments. The former employee filed suit against the company for gender discrimination. Will she win? Suggs v. ServiceMaster Educ. Food Management, 72 F.3d 1228 (6th Cir. 1996). 2. Employee says she was forced to quit her job because of her status as a mother of young children. She claimed that her female supervisor created a hostile work environment that violated Title VII. She was replaced by another mother. Does she win? Fuller v. GTE Corp./Contel Cellular, Inc., 926 F. Supp. 653 (M.D. Tenn. 1996). 3. Employer faced a terrible dilemma. He had only one promotion to give, but he was torn between giving it to the single female and the male who had a family, and the employer thought, most needed and could best use the money. He finally decided to give the promotion to the male and told the female he gave it to the male and told the female he gave it to the male because the male was a family man and needed the money. If the female employee sues, will she win? Taylor v. Runyon, 175 F.3d 861 (11th Cir. 1999). 4. An accounts receivable supervisor was laid off by her employer after taking an extended disability leave for pregnancy. She claimed that the employer discriminated against her on the basis of sex and ability to bear children, stating that two male employees were retained and her replacement was childless, 40-year-old unmarried female. She files suit, alleging gender discrimination. The employer said it was a legitimate layoff. What should the court consider in determining whether the employer’s argument is true? Leahy v. Singer Sewing Co., 694 A.2d 609 (N.J. Super. 1996). 5. Employee is dismissed when she becomes pregnant while she is having an affair with a married co-worker. The employer said that employee violated its norms of conduct by committing the crime of adultery. The father of the child is dismissed also. Is employee's dismissal a violation of the PDA? Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148 (1st Cir. 1990). Yes. The court said that the affair was longstanding, the pregnant employee was never charged or convicted of adultery, and nothing had changed between the date of her last promotion and her discharge except that the employer learned of her pregnancy. 6. A cable company closed its door-to-door sales department and released all employees of that department after settling a discrimination complaint by one of the department employees. The employee’s mother, sister, and two close friends had also been employed in the department. Eighteen months later, the company resumed its door-to-door sales, but refused to rehire three of the former employees connected with the employee who had previously sued. The former employees sue, alleging gender discrimination. Will they be successful in their suit? Explain. Craig v. Suburban Cablevision, Inc., 660 A.2d 505 (N.J. 1995). 7. A power company began employing women as meter readers, and the job classification went from all-male to all-female within a few years. The labor union which represented bargaining unit employees negotiated a new collective bargaining agreement that froze wages in the meter reader classification and lowered the wage for new hires. There was evidence that the company president made comments concerning the desirability of housewives to read meters and that he admitted that the contract was unfavorable to women. A number of women in the meter reader category filed a state court lawsuit against the employer and union for gender discrimination on the basis of state law and wage discrimination under federal law. The employer argued that the federal labor law preempted the state law gender discrimination complaint, therefore the gender complaint should be dismissed. Is this correct? Donajkowski v. Alpena Power Co., 556 N.W.2d 876 (Mich. App. 1996). 8. On employee’s first day on the job, employer withdraws an offer of employment as a medical claims examiner after learning that applicant is four months pregnant. Is this a violation of the PDA? Does it matter if the point at which applicant would be taking leave would likely have been the beginning of her paying small claims without close supervision? Ahmad v. Loyal American Life Ins. Co., 767 F. Supp. 1114 (S.D. Ala. S. Div. 1991). It is prima facie discrimination for the employer to withdraw the offer for a pregnant employee if it is not done for non-pregnant employees. However, it would be permissible as a legitimate business necessity if the employee would not have gained the experience necessary to leave the job and return to it without the prospect of a substantial loss of skills in order to be able to pay small claims without supervision, the court said. Here, the employer said the position required about 4-5 months training and about 18 months on the job to reach peak efficiency. Due to the timing of her absence, employee would not have been able to leave and come back without retraining. 9. Employer decides to shut down one of its three plants because the employees at that plant are almost exclusively women. The males who worked at the plant and lost their jobs as a result of the closing wish to sue for gender discrimination under Title VII. If they do, will they be successful? Allen v. American Home Foods, Inc., 644 F. Supp. 1553 (N.D. Ind. 1986). Yes. The court said that Title VII's "person aggrieved" language confers standing on all persons injured by an unlawful employment practice. These males allege such an injury, and thus have standing. They suffered the same injury as did the females who lost their jobs. The injuries for the males and females were occasioned by the same corporate decision and if, as the plaintiff's allege, considerations of gender motivated the corporate decision to close the plant, the corporate decision that injured the male plaintiffs constituted an unlawful employment practice under Title VII. 10. Employer terminates female employee because employer's daughter-in-law feels the female employee is having an affair with her husband, the employer's son, who is also employed by employer. Female employee sues for gender discrimination. Does she win? Platner v. Cash & Thomas Contractors, Inc., 53 FEPC 940 (11th Cir. 8/9/90). Fr. 59 USLW 2167. No. The court found the termination was based not on gender in violation of Title VII, but rather on favoritism for a close relative. The latter is not protected under Title VII. THE ROLE OF GENDER CONSIDERATIONS IN THE BUSINESS CURRICULUM: IS THERE ONE? by Dawn D. Bennett-Alexander, Esq.* * - Associate Professor of Employment Law & Legal Studies, University of Georgia's Terry College of Business 81993, Dawn D. Bennett-Alexander THE ROLE OF GENDER CONSIDERATIONS IN THE BUSINESS CURRICULUM: IS THERE ONE? INTRODUCTION Cages. Consider a birdcage. If you look very closely at just one wire in the cage, you cannot see the other wires. If your conception of what is before you is determined by this myopic focus, you could look at that one wire, up and down the length of it, and be unable to see why a bird would not just fly around the wire any time it wanted to go somewhere. Furthermore, even if, one day at a time, you myopically inspected each wire, you still could not see why a bird would have trouble going past the wires to get anywhere. There is no physical property of any one wire, nothing that the closest scrutiny could discover, that will reveal how a bird could be inhibited or harmed by it except in the most accidental way. It is only when you step back, stop looking at the wires one by one, microscopically, and take a macroscopic view of the whole cage, that you can see why the bird does not go anywhere; and then you will see it in a moment. It will require no great subtlety of mental powers. It is perfectly obvious that the bird is surrounded by a network of systematically related barriers, no one of which would be the least hindrance to its flight, but which, by their relations to each other, are as confining as the solid walls of a dungeon. Women account for nearly fifty percent of the workforce, but eighty percent of working women hold "pink collar", "traditionally female" jobs such as clericals, secretaries, administrative assistants, etc. Women account for as many as half of the professional employees of the largest industrial and service companies, yet they hold fewer than five percent of the senior management positions, and most of the senior jobs they hold are in areas such as human resources, finance or public relations, which are not positions in which they will receive critical experience expected if they are to advance to senior levels. According to a Labor Department study of nine Fortune 1000 companies, women represent 37.2 percent of all employees and 16.9 percent of managers, but only 6.6 percent of executive-level managers are women. Less than eight percent of all federal and state judges are women, less than six percent of all law partners, and less than half of one percent of top corporate managers are women. Women make up fifty-one percent of college instructors, but only thirteen percent of full professors, according to a recent Carnegie Foundation report, up from only ten percent in 1974. Women-owned companies constitute a third of the country's businesses, but account for only 13.9% of gross receipts and are awarded only one percent of federal government contracts. They often have great difficulty receiving funding from banks or other loan sources which perceive them as less capable, particularly if they are going into areas traditionally dealt with by men. Eighty-two percent of 201 big-business chief executives asked by Fortune magazine when they would be succeeded by a female chief executive officer, said it would be unlikely in the next ten years. They said that discrimination was the barrier, because they tend to want to pass their jobs along to someone who is the image and likeness of themselves. Nearly sixty percent of the gender claims filed with EEOC are about advancement. Only 8.6 percent address hiring. A study by Catalyst, a nonprofit research organization, based on interviews with senior managers and focus groups with middle managers from large corporations, indicates that women tend to be placed in staff or support positions in areas such as public relations and human resources, and are often steered away from jobs in core areas such as marketing, production and sales, because of unintentional stereotyping that labels them as people who can provide support ("Glass Walls"), yet support functions such as human resources, law or finance, typically do not offer the critical experience expected of those advancing to the senior level. In a 1990 poll of chief executives of Fortune 1000 companies, more than eighty percent acknowledged that discrimination impeded women's progress in their companies. Less than one percent of the companies considered remedying this discrimination a goal for their personnel departments to pursue. In a recent survey of 400 female executives at corporations with $100 million or more in annual revenue, 56% said their companies never seem to promote females past a certain point (the "Glass Ceiling"), 70% said the male-dominated corporate culture is a problem, 52% said the rate of progress in hiring and promoting female executives is slowing, and 53% said women do not have the same chance for promotion as equally qualified men. Women will need another 1000 years to match the political and economic clout of men, according to a United Nations report by the International Labor Organization. At the current rate of progress, women will hold equal managerial posts with men in 500 years, and reach political and economic status 450 years after that. Separate International Labor Organization and Worldwatch reports concluded recently that women, not men, are the family breadwinners in most of the world, where gender discrimination against women is a major cause of poverty, and women worldwide still earn less. On average, women make about seventy-one cents for every dollar a man makes, up from 59.7 cents per dollar a decade before. Seventy-five percent of full-time working women make $20,000 or less per year, nearly half what men make on the average. The median annual salary of women ages 40 to 44 is $22,000 for full-time work, about the same salary a 25 to 29 year old man earns as he is just starting out in his career. The average female college graduate makes the same, or less than a male with a high school diploma. In 1992, for the first time in several years, the number of pregnancy discrimination complaints at the EEOC rose slightly to 3,186. Fifty-eight percent of women 16 or older--57 million--are in the work force. About four-fifths of employed pregnant women have full-time jobs and eighty-five percent of working women are likely to become pregnant during their careers. Yet the perception remains that women who are pregnant or who have recently given birth are not reliable. A study by the Families and Work Institute found that 84% of women expecting children work into the final month of pregnancy and two-thirds return to work within six months of the birth of their child, roughly a third are back within eight weeks and half within three months. Yet once they return, they often find they must prove themselves all over again. "Streaking, Mooning, Ballwalking, Leg Shaving, Belly/Navel Shots, Chicken Fights, Butt Biting". Titles of the chapters of the Pentagon report on the Navy's 1991 Tailhook convention incident of sexual harassment. It was reported recently that a Wall Street investment firm heralded the arrival of new female employees with nude pin-ups. A high school student reported that when her class was divided by gender and assigned to decide what traits their ideal member of the opposite gender possessed, girls reported their ideal as an understanding, sensitive male. Boys wanted "a woman with a 'tight pussy', 'big tits', one who cooked, cleaned and never complained." A study conducted by Louis Harris, Scholastic, Inc., for the American Association of University Women on 1632 eighth through eleventh graders found that eighty-one percent of them had experienced sexual harassment at some point. In 1992 the Equal Employment Opportunity Commission reported a total of 10,532 sexual harassment complaints, up from 6,883 in 1991. Ninety percent of the charges were made by women. Women account for fifty percent of all direct car-buying decisions and nearly eighty percent of new car purchases, either directly or indirectly. Research indicates that over the past twenty years they have emerged as the most potent, demographically solid buying force in the American auto industry and when they come into the dealer they know what they want and dependability is their number one priority. Yet many car ads still depict a woman in an evening gown draped over the car, and women coming into car dealers are treated with less respect than men. Chrysler is presently involved in a $38 million dollar campaign, "Customer One" in which a large part is addressing the sexist attitudes of its sales force. Research shows that one in nine women will die of breast cancer, yet relatively little research has been done in the area. Much of the medical research conducted is done on men, with little attention paid to whether the results would be different if the research subjects were women. A woman is battered by her husband or boyfriend every fifteen seconds. A woman is raped every six minutes. Only sixteen percent of the rapes are reported. Sixty-two percent of the reported rapes lead to arrest, and half the rapists convicted serve less than a year behind bars. Only two percent of rape victims ever see their attacker caught, tried or jailed, and more than half of rape prosecutions result in dismissal or acquittal. A rape case is forty times more likely to be dismissed than a robbery case. In thirty states it is still generally legal for husbands to rape their wives and only ten states have laws mandating arrest for domestic violence--even though battering was the leading cause of injury for women in the late 1980's. In the 80's, almost half of all homeless women (the fastest growing segment of the homeless) were refugees of domestic violence. Seventy-five percent of men surveyed by Advertising Women of New York said that women have equal opportunity on the job. Sixty-five percent of the women said the old boy network and sexism still blocks their progress. White males make up 39.2 percent of the population, and account for 82.5% of the Forbes 400 (people worth at least $265 million), 77% of Congress, 92% of state governors, 70% of tenured college faculty, almost 90% of daily newspaper editors, and 77% of TV news directors. Enough wires yet? Believe it or not, there is much more that could be added. These diverse bullets of information, taken virtually at random from recent stories reported in various media sources, all have one thing in common: they all reflect in some way or another, that women have a long way to go before reaching full parity in our society. As the opening piece by Frye's pointed out, each, in and of itself may mean little, but taken together, each as a wire, they form a cage of "systematically related barriers" which oppresses women and holds them close captives in our society. What, if any, role should a business school curriculum play in addressing these matters? Is the business school curriculum partly to blame for them? Obviously, many of the pieces of information above are law or business-related, either directly or indirectly. While statistics about the workplace, women's wages and their progression in the workplace are directly related to business, matters such as medical research or the decision to sell cars by portraying a beautiful woman draped over a car, may not seem to be. But they are, at bottom, business decisions. Other issues such as violence against women, may be impacted by business decisions or policies we can carry out in business to affect these statistics. The marketing director who decides to go with the auto advertising campaign involving the woman, regardless of the fact that it does not appeal to, or address the concerns of the group that makes nearly eighty percent of the purchasing decisions about the autos to be sold, is a business decision. The decision of a pharmaceutical company or research and development company to put their money into research which ignores repercussions of issues on women and instead concentrates on men, or which chooses to back primarily men's health issues such as heart attack or prostate cancer, over breast or ovarian cancer affecting women, are at some level, business decisions. If we chose to link violence against women to workplace policies, as has been done with other unwanted behavior, people would think twice before engaging in such behavior. For example, if we treated an employee's violence against a spouse or beloved as an undesirable trait and a problem to be addressed such as alcoholism or drug addiction which required treatment as a prerequisite for continued employment, it would likely greatly impact whether employees would continue such behavior. Who makes the decision that one matter, e.g., alcoholism, is treated one way, and another matter, e.g., spouse battering, another as a matter of workplace policy? What role does gender play in how those decisions are made? Is that decision-making process for workplace policies impacted by anything that we address in our business curriculum? Should it be? There has been a move over the past several years for the business school curriculum to become more responsive to the needs of the business community. This move has been met with mixed results. Some schools understand the need to include such courses, others do not, and resist the efforts as less than academically sound, an attack on the hallowed gates of the academic bastion, and an attempt to weaken the curriculum for the short-term benefit of "glitzy" offerings. In principal, I disagree. We cannot deal with academic issues in the business curriculum in a vacuum. Unless we teach our students to be aware of the gender repercussions that their business decisions have, we contribute to the lamentable statistics above remaining the status quo. Whether the business school curriculum chooses to address gender issues is a bottom-line business issue. If we are to teach our students how to run businesses efficiently, while maximizing production and minimizing liability, gender is an indispensable issue we cannot afford to ignore. When women are paid less than men for the same work, it not only means that those women earn less, it also means that they have less buying power for goods and services. Less buying power means that the producers of goods will not be able to produce as many goods, since they will not be able to sell as many because the underpaid worker has less money with which to buy goods. If manufacturers cannot produce as many goods, then they cannot hire as many people to produce those goods as they otherwise would in the absence of the disparity. This, of course, means that there are fewer employees to pay taxes, more of a burden on those who do, and less money changing hands for the good of us all. Engaging in policies which in any way discriminate on the basis of gender is simply not good business for any of us. There is also the matter of whether continuing to exclude consideration of these issues from the business school curriculum contributes to the oppression of women. If consideration is not given to these issues because it is not in keeping with the conceptual framework of what a business curriculum should be, then is that framework to be considered an oppressive one which by its very nature, contributes wires to Frye's cage of oppression? A conceptual framework is a set of basic beliefs, values, attitudes, and assumptions that constitute the 'lens' through which we see ourselves and our world (Warren 1986). An oppressive conceptual framework is one in which the basic beliefs, values, attitudes, and assumptions are used to justify and maintain the subordination of one group by another. An oppressive conceptual framework typically is characterized by 'up-down' thinking, whereby what is 'up' is assumed to be superior to what is 'down' by virtue of some characteristic it has that what is 'down' lacks, and by virtue of a 'logic of domination', a moral premise that assumes that superiority justifies subordination. In an oppressive conceptual framework, simply having an 'up' characteristic justifies the dominance of what is 'up' and the subordination of what is 'down'. It is the mission of any college or school of business to teach students how to become profitable and productive. I contend that unless the business curriculum includes, where appropriate, gender issues, it is an oppressive conceptual framework and thereby contributes to the oppression of women and engages in educating contrary to its mission. Further, I contend that any matter that has an impact upon that goal or is an impediment to that objective should be addressed in the curriculum. This would, of course, include matters of gender. About the "F" Word... It would be difficult to discuss any of these issues without touching on the matter of feminism. A feminist is generally someone who believes women should not be treated as "less than" simply because they are women. Feminism is not a dirty word. It has been portrayed as such by many who, for some reason, feel threatened by issues it addresses. There should be no such word as "feminism". There is no logical reason for anyone to believe that someone should be paid less, not be able to work at a job they are qualified for, receive less justice at the bar, less effective medical treatment, or otherwise be treated as "less than", simply because they happen to be female. This is, bare-bones, what feminism is about. Virtually all other issues in feminism arise because of this and in some way, reflect back to it. The fact that we even have a word to describe someone who feels this way is a sad commentary. It is an even sadder one to think that this word has become a derogatory term. As Frye's quote points out, issues generally seen as feminist issues are part of a systematic network of oppression. The issue of nude photos in the workplace as a sexual harassment concern is not simply about women not wanting to see the pictures. It is, rather, about a deeply-rooted system which indicates that if these elements are present in a workplace, then there will likely be impediments to women being full participants there. In Robinson v. Jacksonville Shipyards, Inc., the court credited expert testimony which indicated that when nude pictures, off-color jokes, cursing or rough language, or other similar things are in the workplace, there is less likelihood that women will be treated comparably to men when it comes to the issues of evaluations, raises, promotions, etc. It is not simply a matter of pictures up on a wall. It goes much farther, and greatly impacts a woman's ability to be treated comparably. The term "feminism" should be recognized for what it is: an attempt to devalue, defuse, belittle, and otherwise discredit the legitimate concerns of those who believe that people should be judged on the basis of ability, not gender. Most reasonable people believe that someone should not be paid a premium for being a male or earn less simply because one is female. Most reasonable people are, in reality, feminist. They embrace the concept, though they eschew the term. There is a role for everyone in feminism. It is not just a matter for women. Those, particularly women, who believe in the concept of equality regardless of gender should not be branded as "militants", "feminazis" "radicals", or lesbians, simply because they believe in equality. Each of these terms has been used to discourage people from embracing the concept of equality captured in the term "feminism", and the ploy has worked well. Males and females, alike, have been hesitant to join the fight for equality, and to identify themselves as feminists, for fear of being thought of as "radical". However, we should not be detracted from the reality of the information shared above. There are serious issues to be addressed, and we, as Business Law, and Legal Environment professors have a role to play. Not only with our own classes, but also in providing input into other classes through committees we sit on, policies we vote on, and discussions we have with our colleagues. We are far too intelligent to be sidetracked from the proper course by being adversely affected by name-calling or labeling. The better thing to do is to use such attempts to discredit the area as "teachable moments". When the occasion arises and someone questions the credibility of a suggestion made which addresses this area in a positive way, simply respond that if believing that equality based upon gender is to be taken as a negative, well, that is a sad state of affairs. If, seeing the negative impact which a sexist policy can have, it is not derided by us, then how honest can we be about anything we teach? If being a feminist is what believing in equality is called, then tell them that they may certainly call you a feminist. But tell them further, that you will not be hoodwinked by sophomoric tactics into treating the issue with any less of the seriousness, dignity and respect which consideration of any issue of discrimination which lessens workplace productivity deserves. It may sound pompous to take this approach, but change will come only when people who sit on these committees with us, who make these decisions with us, who discuss these issues over lunch with us, begin to see that this is a serious issue which needs to be addressed, and cannot simply be reduced to a label and dismissed. Further, it is an issue which each of us, independently of what any government agency does, or any law does, can greatly impact, simply by making the personal commitment to not allow sexism in any of its incarnations, to passively go by us unnoticed, unchallenged, and, by our silence, acquiesced in. Once people get past the labels and look at the issues, most of us are not at all far apart. The secret is to leave the rhetoric and visceral reaction aside when responding to attacks, (which can be extremely difficult to do), and simply deal with the issues. Since much of the resistance comes from males, I will take it upon myself to say that it has been my experience that it makes virtually everyone uncomfortable to think that their wife, daughter, mother, or some other female they care about could be judged solely on the basis of gender. If the issue is not that women make less money because they are women, but instead, that your wife makes less money because she is a woman, it has more immediacy and is more easily understood. If someone attacks the concept you espouse, as being feminist garbage, assume the negative reaction is to the label rather than the substance, and address it accordingly. Anyone who is teaching in a college of business and is not a feminist, in that they believe anyone should be able to receive equal pay for equal work, and all its ramifications, does not need to be there. All of us are feminists, regardless of our gender. We should wear the badge with pride, not shrink away from it and thereby give efficacy to its derogatory usage. How the Curriculum Can Be Affected By Gender Gender can be included in the business curriculum in many ways. We can try infusing it into each of our courses where it logically comes up. We can also propose courses which address the issue in some way. How we address it will depend, in part, upon what we are trying to do. The basic objective is to make students aware of how business decisions and policies can have gender ramifications which we have never considered; to consider them, then to move toward lessening the negative ramifications. By not considering them, we encourage students to continue the workplace practices of making decisions and policies which result in the types of negative gender ramifications provided above. For most students, simply becoming aware of how business decisions and policies can impact women negatively will be the largest part of what must be done. Simply making them aware will be an eye-opener for most. Further, the student can discuss or investigate the reasons for the policies and propose alternatives which do not have the negative impact, or which lessen it. Hopefully, by learning this as part of the student's business curriculum, it will lead to good business practices when the student goes out into the workplace. Gender as a Part of Existing Courses Though a business school can take any number of approaches to dealing with the issue of gender in the curriculum, a well-rounded, course-by-course approach would be ideal. Students' would have constant reinforcement of the idea that gender plays a role in decisions in business, and care should be taken to not discriminate, even unwittingly. Taking this approach also sends students the message that this is a serious and valid area of concern to be addressed, rather than a fad which happens to be in vogue at the moment. When students see the issue addressed in context, and reinforced in class after class as it relates to the subject matter, they are less likely to not take the subject matter seriously. Their misconceptions and resistance can be handled appropriately in the academic setting by providing facts and information, rather than rhetoric. There are many, many ways in which the issues arise and can be addressed in the context of existing classes. For instance, in a Banking or Finance class, when discussing how to determine to whom loans should be given, students can look at financing patterns for women in business, or even single women buying homes. They can discuss why the loan application rejection rate for women is so high, why the amounts loaned are so low, how risk is determined for loans to men vs. women, what part of that process is judgment call which can be manipulated, what factors in making the loan decision are real, what may be accounted for as unwarranted perceptions about women, and how to address the low percentage of loans given to women in a way which will address the valid concerns of each party. As a part of workplace productivity and management systems, Human Resources and Management classes could discuss innovative new workplace approaches to issues affecting gender. Increased worker productivity through the use of flex-time or four-day work weeks, on-site day care centers for both children and older adults, "cafeteria" approaches to employee benefits, management and evaluation styles which are less male-oriented, etc. Even something as simple as breast feeding policies have a significant workplace (and other) impact. Breast feeding provides children with natural antibodies against infection and diseases, including lower incidence of cancer, food allergies, bacterial infection, asthma, sudden infant death syndrome, dermatitis, diarrhea, diabetes, obesity, liver and ear diseases. Women who breast-feed decrease their risk of breast and ovarian cancer. Yet, amazingly, breast-feeding has been thought of as inappropriate and sexual by most employers, and the practice discouraged. "Conventional wisdom has it that any woman who is serious about her career will bottle-feed her children." That is, if she decides to have them despite the statistics we saw above about pregnant employees. On the other hand, "some employers, like Amoco Oil in Chicago and the Los Angeles Department of Water and Power, are leading a revolution. They're providing breast pumps, "pump rooms" and lactation consultants for their employees who are nursing mothers. The result has been healthier babies and more satisfied employees, both translating into higher productivity. It is an important addition to a Human Resources or Management course to discuss issues such as this. Again, it is not just a "fringe" issue. Since eighty-five percent of the 57 million working women are likely to become pregnant, it is a serious matter of workplace productivity. Just as important as any mechanical innovation that an employer seeks out in order to be more productive and competitive, are innovations on the human resources side. Women remain the primary caretakers for families, regardless of marital or work status. Because there are thus so many issues that adversely affect women and their productivity, this area would be incomplete without a discussion of such matters. In a discussion of labor unions, the class could discuss the relatively low percentage of women in leadership positions in labor, and try to account for it. They can also discuss the role labor unions have had in the fight for workplace gender equality, and how that role is played out in labor unions themselves. Further, there could be discussion of issues which unions have traditionally avoided because of gender implications and what impact that position has on how those issues have been addressed by employers. Who decides what a union will fight for? For instance, would we have more on-site day care facilities if labor unions considered it a priority? Would women have equal wages? Would there be better leave policies to address the reality of women's lives, including having and caring for children and other family members? Marketing is an area in which women have complained for years that their pleas have not been heard by business. The Chrysler Corporation's need for its $38 million "Customer One" program is a prime example. The move of Ms. magazine to a no-advertising format is another. At the end of the 1980s Ms. magazine became fed up with a mixture of (1) the refusal of many lucrative companies to advertise in Ms. despite research showing that lucrative markets were reached through the magazine, (2) the sexist ads Ms. was required to accept in order to support itself, which, ironically, was exactly the sort of thing the magazine railed against, and (3) the restrictions which were put on the ads which Ms. placed in its pages, greatly limiting the kinds of information it could provide to its readership. Various companies had contractual restrictions on matters such as what kinds of articles could be placed in the magazine, how many pages there could be between certain types of articles and ads for its product, and what certain kinds of articles, if they were allowed to run, could and could not say. For instance, a large consumer cleaning products company did not want its ads run within a certain number of pages of articles on spouse battering because it felt the readers would be less likely to feel like cleaning after reading such an article. Considering the statistics given in the introduction about violence against women, a magazine targeting women could hardly ignore this issue, or be less than forthcoming about it. Yet to do so threatened Ms.'s advertising revenue. It finally had to make hard choices. It told the readership what was going on and asked the readership if they would support a more expensive magazine if Ms. chose to go to a no-ad format. The readership answered "yes", and Ms. has been ad-free since 1990. The Marketing class can discuss the role of marketing and gender; whether this role changes in different settings; the impact marketing has on the availability of important information targeted to communities that may not have other widely-circulated outlets. For instance, how will women receive more than simply cursory information on the issues of how smoking or drinking may affect the health of a pregnant woman if the cigarette or liquor manufacturer will not advertise in a widely circulated women's magazine in which such a story is published? What about information on lesbians as a part of the women's community, if advertisers will not allow their ads to run in a magazine in which the issue is discussed (another of the problems MS. had)? And women and breast cancer if there is resistance from the undergarment advertisers or pharmaceutical companies? What about the role of advertising in promoting stereotypes of violence against women, women as sex objects, women as beautiful first and brainy second (if ever)? The role of marketing and advertising in the image of women; that is, do women need to spend money on things like feminine sprays, high heels, teeth whiteners, hair permanents, etc., in order to be acceptable to society? What does the role of advertisers depicting women as dependent upon men for approval have on the perception of women in the workplace? How does the business of marketing fit into this equation? That is, how does one balance what a marketer does, and the profit motive, against all of these other concerns? Discussion of the court system can include why the statistics given above about rape are as they are. How state bar associations are conducting studies of gender bias in their systems and developing policies which address the gender bias found. Gender bias which is reflected in everything from how judges conduct themselves toward female attorneys practicing before them, to the low number of conviction rates for crimes committed against women. How our justice system is supposedly blind, yet looking at the statistics for women coming into the system do not bear this out. Employment law, of course, is a natural area for discussion of gender, because so many of the issues where gender inequalities show up are related to the workplace, as demonstrated above. It is important that students understand why there are laws such as the Family and Medical Leave Act which went into effect on August 5 of this year, or the 1991 Civil Rights Act, or the 1964 Civil Rights Act, and affirmative action under Executive Order 11246. My experience has been that students come to class laden with misinformation about these laws, which cause them to resent them and be less likely to embrace them as managers and supervisors, or to do other than the bare minimum with them. Gender-Specific Courses In addition to gender being taught as part of established business courses, courses may also be developed to address gender issues. Courses may range from a general course in Employment Law, to a specific course in Women, Law and Work, Women in Advertising, Women and Labor, and other such courses. While the courses may be able to cover gender issues in more detail than as part of an established course, there is a drawback. The course is likely to be perceived as a "fringe" course, and the very ones who need to be made aware of its contents, avoid taking it. It also gives the impression that these matters are, in some way, in addition to, or peripheral to the study of their other substantive courses, when the truth is, they are very much a part of the other courses students take. If specific courses are developed, care should be taken that the business school administration not now think that the "problem" of addressing gender in the curriculum is now solved by the course being offered. It will not be. Gender-based courses should be in addition to gender being addressed in other courses, not as a substitute for it. It will not do the students a service to take the isolated approach, as this is not the way in which the issues will arise in the workplace. It will, instead, arise as it does in their discussions in the other courses, that is, in banking and finance, a woman will come seeking a loan for a construction company, and the decision must be made whether to extend the loan. The other issue that must be mentioned with specialized courses, is getting approval of such courses from the administration and college curriculum committees. It may present a problem for "political" reasons, perceived pedagogical reasons, as well as for financial or other reasons. In my own case, a course on "Women, Law and Work" which started out as a part of the Arts and Sciences' interdisciplinary Women's Studies Program offerings, to be developed and taught by me in the College of Business, ended up as a course in Employment Law. My college did not feel that it could justify such a "narrowly focused" course as "Women, Law and Work", at a time when it was scaling back its offerings otherwise, for financial reasons. On the other hand, they also wanted curriculum coverage of the new American with Disabilities Act of 1990. I was therefore asked to change the course to a broader offering. Since we had no other course that addressed these issues at all, even a course in Employment Law was a great improvement. It also had the possibility of attracting more students. Males, who may avoid a course in "Women, Law and Work", may well see the virtue of a course in Employment Law. A copy of the course proposal for the Employment Law course is attached as an appendix. As to the politics, it is worth noting that when my course proposal first came before the graduate council, it was rejected. I had not appeared before the committee to explain the course, and there was concern that it was utterly unnecessary. When I appeared before the committee at the next meeting and explained the reason for offering the course, the question for the committee became, instead, "Wow, with such a big need, why in the world don't we have such a course already? What have we been waiting for?!". After seeing the importance of the issues to be addressed in the course, the committee was behind it 100 percent, and passed the proposal unanimously. In fact, after my presentation to the committee, setting forth the reasons for the course, its virtues were so clear that there were virtually no substantive questions. They went from thinking there was not enough subject matter to warrant a course, to wondering if I could cover it all in one quarter. Again, we all are "feminists", it's just that most of us don't see ourselves as fitting into the label. On the substantive issues, the committee and I were on one accord. Whatever form the coverage takes, students need to learn that to become effective managers and supervisors, they need to not only know and understand these laws well, but also understand why the policies are necessary, and how they can help employers to maximize production and efficiency and minimize liability. They must embrace them in order to fill in the gaps which will inevitably occur, which will give rise to the policies they may be required to develop as a result. The Matter of Gender in Relating to Students Aside from the issue of actually including gender considerations in the curriculum, is the related matter of making certain that our actions as professors are consistent with our lectures on equality. Recent research indicates that even though girls and boys enter school roughly equal in measured ability, girls emerge twelve years later behind their male classmates in areas such as higher-level math and measures of self esteem. According to the report commissioned by the American Association of University Women Educational Foundation, the self esteem of girls dropped nearly forty percent between elementary and high school, compared with a twenty percent decrease for boys. Something we do as educators contributes to those sad numbers. Research indicates that we may consider ourselves as treating students equally, but, in fact, that may not be the case. A frequent attitude check may be in order to constantly monitor our behavior as professors (and thus, as role models) for unwanted behaviors. Do we allow males to do most of the talking in class? Do we interrupt females more when they are speaking? Do we allow females to "get by" by being passive listeners? Do we use females in our examples? Do we insure that our discussion of females do not always feed into the stereotypes of them? Do we think of the women who are frequent contributors as "aggressive", "pushy" or "overbearing"? Do we use gender-neutral language? Do we include females on our exam questions? Do we refrain from sexist language or jokes, at the expense of females? Do we conduct class in a way that makes women feel a part of the class or as outsiders? Do we demand of our students that everyone be treated fairly (and back this up by example), or do we allow jokes at the expense of certain groups? Do we equally encourage females in more involved pursuits such as graduate school, as we do males? Do we treat faculty women as colleagues? "If faculty do not treat women as colleagues, students will not treat women as faculty members." And, of course, if this occurs, there is little chance of female students being treated as equals by their peers. As educators who influence a great many people, we have a responsibility to insure that that influence is positive, and consistent with what it is we convey by our words. Students watch what we do, how we interact with them and other students, and they view it as being appropriate. They will follow our positive example. If we do not provide it, then what we have accomplished in the curriculum will mean little. These lessons are not only important for classrooms, but for later when students will have females as colleagues, clients, supervised or supervisory employees, etc. Learning the important lessons they learn from us as professors and from the courses, will greatly aid them in handling these relationships appropriately. Doing that, of course, will enhance the workplace, maximize production, and minimize the employer's potential liability--all of which is part of what business students are to be taught in their curriculum. CONCLUSION At first glance, gender in the business school curriculum may seem to be a "fringe" issue of importance or concern only to a "raging feminist" who wants to infuse gender into everything and make it an issue of greater importance than it is. This paper demonstrates that this is not true. Gender is in the curriculum whether we choose to address it or not. The best thing we can do to prepare our students for the business world is to sensitize ourselves to the issue's presence, address the issue as it arises in our classes, make students aware of its impact upon good business practices, provide guidance for them to determine how to handle gender-related issues in the workplace, and carry through on what we teach by our classroom demeanor. Gender should be addressed in the business curriculum. If we do not address it, we cannot complain of the kinds of gender inequalities we see which are reflective of less than stellar business practices. To not address the issue of gender in the curriculum makes us part of the problem; part of those who create the wires resulting in the "systematically related barriers" forming the cage which imprisons women in oppression. It is merely good business school policy to not continue to create those wires of awful statistics that result in the cage. Not only do we imprison a significant portion of the population, but we also do a disservice to those who pay us to teach them what they need to know in order to be effective employees, managers, supervisors, business owners and employers in the workplace.