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Masculinity at Work

Masculinity at Work: Employment Discrimination through a Different Lens

Ann C. McGinley
Copyright Date: 2016
Published by: NYU Press
Pages: 272
Stable URL: http://www.jstor.org/stable/j.ctt1804003
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    Masculinity at Work
    Book Description:

    In late October 2013, the Miami Dolphins' player Jonathan Martin walked out on his team and checked into a mental health institution. The original story implied that Martin could not take the professional pressure. Within days, the story changed. News sources reported that Martin's teammates had repeatedly bullied him and as a result, the twenty-four year-old African American player suffered serious depression. The response was skeptical, and many opined the harassment involved was simply locker room banter that all players endure; essentially, that boys will be boys.

    Masculinity at Workuses the Jonathan Martin case and others to analyze Title VII of the Civil Rights Act of 1964 through the lens of masculinities theory. Illustrating how harassment and discrimination can occur because of sex even if the gendered nature of the behavior remains unseen to onlookers, this book educates readers about the invisibility of masculine structures and practices, how society constructs concepts of masculinity, and how men (and sometimes women) perform masculinity in different ways depending on their identities and situational contexts. Using a sophisticated mix of legal, gender, and social science analysis, the author demonstrates how masculinities theory can also offer significant insights into the behaviors and motivations of employers, as well as workplace structures that disadvantage both men and women who do not conform to gender stereotypes. Both a theoretical disposition and a practical guide for legal counsel and judges on the interpretation of sex and race discrimination cases,Masculinity at Workexplains how this theory can be used to interpret Title VII in new, liberating ways.

    eISBN: 978-0-8147-6432-9
    Subjects: Law
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Table of Contents

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  1. Front Matter (pp. i-vi)
  2. Table of Contents (pp. vii-viii)
  3. PREFACE (pp. ix-xiv)
  4. ACKNOWLEDGMENTS (pp. xv-xvi)
  5. Introduction: Bullying Masculinities (pp. 1-13)

    In late October 2013, the news broke that National Football League (NFL) Miami Dolphins’ right tackle, Jonathan Martin, walked out on the team and checked himself into a mental health institution in Miami. The original story stated that Martin had gone “AWOL” and insinuated that Martin could not take the pressure in professional football (Smith 2013). Within days, the story changed. News sources reported that Martin’s teammates had repeatedly bullied him under the leadership of Richie Incognito, an experienced thirty-year-old Caucasian guard. Martin, a twenty-four-year-old African American player who was in the beginning of his second professional season, suffered serious...

  6. PART I. MASCULINITIES THEORY AND TITLE VII
    • 1 Masculinities’ Relationship to Title VII (pp. 15-34)

      Society views masculinity as a natural result of male biology. Masculinities research comprises an interdisciplinary field of research and theory that challenges this view. It posits that rather than being a natural biological characteristic, masculinity is constructed from social pressures and individual experiences. Menarenot masculine; theyperformtheir masculinity.¹ For example, from childhood on, social forces pressure boys and men to act like a “man,” hide their emotions, refrain from crying, and demonstrate their emotional and physical strength to others. As boys and men internalize these admonitions, the resulting behaviors are not biologically driven but socially constructed.

      Most...

  7. PART II. FOCUSING ON GENDER- AND SEX-BASED HARASSMENT
    • [PART II. Introduction] (pp. 35-36)

      If the Wells Report findings are accurate, it appears that Jonathan Martin suffered a hostile working environment at the Miami Dolphins because of his race and sex. Assuming that Martin could meet the threshold requirement of proving that he had an employment relationship with the Dolphins or the NFL or both, Martin would file a charge with the Equal Employment Opportunity Commission (EEOC) and, ultimately, sue in federal court under Title VII. Martin could not sue his teammates individually under Title VII, but he could potentially sue them alleging violations of common law tort or state statutes prohibiting harassing behaviors....

    • 2 Background to Gender- and Sex-Based Harassment Law (pp. 37-43)

      In 1986, the United States Supreme Court decidedMeritor Savings Bank v. Vinson, which held that Title VII of the Civil Rights Act of 1964 forbids sexual harassment that creates a hostile working environment (Meritor Saving Bank v. Vinson1986).Meritorreflected the changes in attitudes toward women that resulted from the feminist movement in the 1960s and ‘70s, and made it possible for women to hold jobs that men had previously held exclusively.

      The express language of Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment because of an individual’s race, national origin, color, religion,...

    • 3 Evaluating Harassment Occurring “Because of Sex” (pp. 44-82)

      As noted in chapter 2, Title VII does not explicitly make harassment illegal, but the courts have interpreted Title VII’s broad prohibition against sex discrimination in employment to ban sex- and gender-based harassment that creates a hostile working environment. The development of the law is the result of judicial interpretation over more than a thirty-year period, reflecting input from litigators, the EEOC, legal scholars, lower courts, and the U.S. Supreme Court.

      To demonstrate an illegal sex- or gender-based hostile work environment under Title VII, the plaintiff must show that the harassing behavior was unwelcome, that it was sufficiently severe or...

    • 4 A Question of Standards: Reasonable Men? (pp. 83-106)

      Even if the court agrees that the behavior directed at Jonathan Martin occurred because of sex, Martin must still convince the court that the harassment was sufficiently severe or pervasive to alter the terms or conditions of his employment. This is both a subjective and an objective test. The behavior must have subjectively polluted Jonathan Martin’s work environment. And, it must be sufficiently severe or pervasive to create a hostile working environment for a reasonable person under the circumstances at the Miami Dolphins (Harris v. Forklift Systems, Inc. 1993).

      The courts do not require significant proof to satisfy the subjective...

  8. PART III. SHARPENING DISPARATE TREATMENT AND DISPARATE IMPACT CLAIMS
    • 5 The Law of Disparate Treatment and Impact (pp. 109-130)

      Title VII of the 1964 Civil Rights Act makes it illegal for an employer to discriminate against an applicant or an employee “because of” the individual’s race, color, religion, sex, or national origin. There is no mention of intent in the liability section of the statute, but the original remedies section states that a judge may grant relief to a complainant “if the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint” (42 U.S.C. § 2000e-5(g)(1)). While it is not clear from these provisions that the statute...

    • 6 Intent in Disparate Treatment Litigation (pp. 131-148)

      Masculinities theory observes that because masculinity and femininity are considered the norm, masculine structures, performances, and practices are so common that they are actually invisible to most observers. Concepts of masculinity are intertwined with the definition of work. In fact, men who engage in masculine practices and performances often define their behaviors as doing work (Martin 2001). In her study of gender practices in for-profit corporations, sociologist Patricia Yancey Martin dealt with only the behaviors of men who did not consciously harm their female colleagues. Nonetheless, the women who worked with the male colleagues suffered harm as a result of...

    • 7 Establishing Disparate Treatment through Masculinities (pp. 149-171)

      Masculinities theory can explain why sex stereotyping against women and men at work constitutes disparate treatment. In some stereotyping cases, the defendant will have conscious awareness of his stereotypes and that he is acting upon them (causation-plus model of intent). In others, the defendant will act upon unconscious stereotypes (causation model of intent). In either situation, it is consistent with the purposes of Title VII to recognize these behaviors as illegal discrimination because the victim suffers because of his membership in a protected class, and there is evidence that employers can train managers to eliminate decision making based on implicit...

    • 8 Proving Disparate Impact through Masculinities (pp. 172-196)

      This chapter examines the use of masculinities theory to prove a disparate impact cause of action under Title VII of the 1964 Civil Rights Act.¹ Disparate impact creates a potential remedy for the negative effects produced by masculine promotion policies, standards, and practices in workplaces (Title VII). As explained in chapter 5, unlike disparate treatment causes of action, disparate impact claims do not require proof of the employer’s intent to discriminate (Ricci v. DeStefano2009). Rather, disparate impact law requires the plaintiff to prove that a facially neutral employment practice, which is also neutral as to its intent, causes an...

  9. PART IV. PRACTICAL CONSIDERATIONS:: EXPERTS AND EVIDENTIARY CONSTRUCTS
    • 9 Educating Judges and Juries about Masculinities (pp. 199-214)

      All lawyers know that expert testimony is necessary to help fact finders and judges understand the science in a patent case, or whether a surgeon followed a procedure that is acceptable to the surgical community in a medical malpractice case. But many lawyers and judges assume that fact finders and judges can deploy their own common sense, without aid from expert testimony, when deciding cases brought under the antidiscrimination laws. The claim is that because all members of society make judgments in their daily work lives about the behaviors and motivations of others, fact finders and judges should also employ...

  10. Conclusion: The Future of Masculinities (pp. 215-220)

    This book explains masculinities research, its application to discrimination in workplaces, and the way understanding this body of work can aid lawyers, judges, and juries in making just and accurate decisions in employment discrimination claims brought under Title VII of the Civil Rights Act of 1964. It explains theory using real-life examples, applies theory to create new interpretations of Title VII antidiscrimination law, and makes practical suggestions for how legal actors can use masculinities research to enhance their understanding of the phenomena surrounding discrimination in the workplace and to communicate it in litigation.

    Thetheoryin this book relies largely...

  11. NOTES (pp. 221-224)
  12. REFERENCES (pp. 225-242)
  13. INDEX (pp. 243-255)
  14. ABOUT THE AUTHOR (pp. 256-256)