We (Dia and Brian) wrote this together.

“Sex-stereotyping against her gender nonconformity” was the reason given by the plaintiff, Ann Hopkins, for her firm’s failure to promote her. “Often co-workers described her as aggressive, foul-mouthed, demanding, and impatient with other staff members.” Most incendiary to our sexism-sensitive society, a coworker suggested she “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” in order to increase her chances for promotion.

The quotes are from Wikipedia’s article on an important Supreme Court case, Price Waterhouse (named after the allegedly discriminatory firm).  The district court found, and the Supreme Court agreed, that the firm was put off by Ann Hopkins’ behavior in part because of its inherent nature and in part because it was perceived as unfeminine. She won the case, and helped to make important law in the process: if the offended party (plaintiff) can show that gender stereotyping (or other stereotyping of a protected class) played a sufficiently important role in an adverse employment decision, then the burden of proof shifts to the defendant (the company) to show that the same decision would have been made even without the stereotyping. This Supreme Court ruling made it easier for plaintiffs to prevail if they could show that stereotyping played a role than if they could merely show that unreasoned hatred of their protected class played a role. In the latter case, the ultimate burden of proof would remain with the person bringing suit—the plaintiff—who must show that the adverse employment outcome was caused by the hatred; but in a stereotyping case, the defendant must meet the ultimate burden of showing that stereotyping did not change the outcome of the employment decision.

There are very few jobs for which gender itself is considered a valid consideration under the law. Outside of dressing rooms (or other situations that are similarly sensitive) and the theater, there are almost none. Instead, if strength is a requirement, the law requires an individualized assessment to be gone through. Women may not be excluded as a class from employment as furniture movers or fire-persons. Instead, the employer may require that each employee be able to lift 150 lbs—but beware! If the heaviest object that the work actually requires an employee to lift is 130 lbs—or if a clever lawyer can come up with any argument that the necessity of lifting 150 lbs could have been avoided—then the employer may be liable in a gender discrimination suit to any females who were improperly excluded.

Is there something wrong with this picture?

Let’s ignore, for the moment, the evidentiary issues with Price Waterhouse. And the fact that boorishness in men is no more desirable than in women, and probably constitutes a sufficient reason not to promote a person of either gender. And the potential liability of fire departments and furniture moving companies.

Let’s just consider the foundational assumption about gender stereotyping: namely, that virtually any perceived difference between men and women is an unacceptable basis for different treatment.

Brian has argued here and here that the whole idea of equality is mainly just a poor substitute for the idea of justice. (We recently happened across another article reporting that multiple other philosophers agree with him.) He borrowed from Aristotle and many other subsequent thinkers in defining justice as treating like things alike and different things differently. There are broader definitions that mean something more like “general righteousness,” but we shall adopt this narrow sense of the term for current purposes. Let’s take a moment to develop the meaning of “justice” in this sense before applying it to disparate treatment of different genders.

It is unjust to pay a black man less than a white man if he does equivalent work and does it equally well. But it is not unjust to cast a black man differently in a play that deals with the Civil Rights Movement, or even to reject a black man for the role of Captain Von Trapp merely because of his coloring. Skin color is not a relevant difference in the first context: for relevant purposes, the white and the black man are “alike” and must be treated “alike.” In the second context, though, skin color is a relevant difference, and so justice countenances disparate treatment.

These are easy cases. There are many harder cases. It takes great wisdom and discrimination to discern whether certain differences are relevant in certain contexts. How should a rowdy seven-year-old boy be handled in a classroom as compared with a well-behaved boy? How should one treat one’s mother-in-law as compared with one’s mother?

We are concerned here with a hard case. Should men and women be treated differently—and in what contexts and to what extent? Neither this essay nor subsequent essays will be able to address the issue adequately, but we will attempt to lay the groundwork here and develop it further in subsequent essays.

If we take Aristotle’s idea of justice as true (as I think we must, as far as it goes), can it be reconciled with the views of those who, like the law of the land in the employment context, consider disparate treatment of the genders unacceptable as such? By saying that they consider disparate treatment of the genders unacceptable as such, I mean that they don’t only consider this or that particular instance of treating the genders differently unacceptable, but almost any possible instance. Such a view may be reconciled with Aristotelian justice in only three ways. We’ll take them in turn.

First, those who object to disparate treatment of the genders may believe that there simply are no differences between men and women (or exceedingly few).

Almost anyone, however convinced of the positives of gender neutrality, should be able to concede that there are some differences between men and women—those “purely” sociological and those “purely” biological, and those in the huge grey area of socio-biological messiness in between. Of course, there are dangers even in this simple assertion of differences—individual men and women differ hugely in their personal biological and hormonal makeup (even across a woman’s lifespan, her year-to-year and even week-to-week hormonal experience can influence her personality and “feminine-ness” dramatically) and in their personal sociological realities; stark gender categorization can alienate sensitive, sweet little boys or brash, rowdy little girls to the point of damage.  Gender essentialism is dangerous and hugely problematic—but we also must guard against swinging the pendulum to the other and equally absurd extreme by asserting there are no differences at all.

Second, those who object to disparate treatment of the genders may believe that while there are differences between men and women, they are not of the sorts that are relevant in determining the roles to be accorded to the respective genders.

Louanne Brizendine, researcher and author of The Female Brain, concedes, “Of course men and women are more similar than [different]… they are, after all, the same species.” However, perhaps the main assertion of her controversial and influential book is that hormones so deeply influence our life experience that they “create realit[ies]” for the different genders (and for the different stages of life, especially in women). For example, Brizendine argues that the huge communication difference in small girls versus small boys stems largely from a testosterone surge that male fetuses experience in utero, which literally shrinks the communication center in the brain. She doesn’t rule out socialization as a factor in gender identification (it’s a reciprocal relationship—as boys speak less they are then spoken to less, inhibiting the communication center growth even more and leading to a bigger gap in vocabulary and number of words spoken), but she insists that biology must take at least half the credit. More vitally for our discussion here, if it is a fact that “the female brain is so deeply affected by hormones that their influence can be said to create a woman’s reality,” then that difference may indeed be relevant to gender roles. Later we’ll look at whether the hormonal differences creating more or less sexual responsiveness, aggression, tendency toward cooperation and conciliation, and awareness of and nurturing tendencies toward the weak or defenseless should affect gender roles.

Finally, those who object to disparate treatment of the genders may believe that, while there are differences and while they are of the sort that could be relevant in the sorts of decisions with which we are concerned, there are other reasons that men and women should not be treated differently.

In this case, even though it would not offend justice in the narrow sense that we have used here to treat men and women differently, it would still be wrong. This is entirely possible, but we will not examine the myriad reasons why something other than justice may demand similar treatment despite relevant differences. We will only reiterate that, in our view, mere equality on its own is not a valid reason. Let the partisans of equal treatment show cause why gender roles are inherently unacceptable.

Conclusion (for now…)

We have introduced the propositions (to be further developed in subsequent posts) that 1) there are differences between men and women that are grounded in biology, and not exclusively in culture; and 2) these differences are sometimes relevant to society’s allocation of gender roles. As Brian has emphasized in past posts (here and here), all the world really is a stage. If gender-based discrimination is sometimes legitimate in theatrical role-selection for individual men and women, it is sometimes equally legitimate in the role selections that society makes for the genders generally.

There is a legitimate objection, though, that the celebration of gender differences may alienate those whose are outliers in the gender bell curves. A girl is stigmatized as a tom-boy even though she is simply doing what comes naturally to her. A woman (Ann Hopkins) is arguably denied promotion in part because she exemplifies certain bad qualities that are more characteristic of men than of women.

We can sympathize with the plight of those who, for whatever reason, find it difficult or undesirable to conform to gender expectations. But we cannot agree that those expectations as such are morally objectionable. Exactly how they should and should not be expressed is an important and difficult inquiry. But they will be expressed, and that’s OK. We do not argue that these expectations should be institutionalized or reinforced by the government. We only argue that they are inevitable and natural and not morally wrong. Boorishness in women makes itself felt more than boorishness in men. We may as well penalize customers who find themselves more attracted by a diamond when it is set against a background of black felt as to penalize those managers who find themselves more repelled by boorishness in women because of the contrast with natural gender expectations. But that is not to say that customers and managers alike should not attempt to correct for the biases of human perception. A diamond is not really any brighter because of the black felt, and a boorish woman is no less capable than a boorish man except insofar as the biases of human perception work against her.

What we object to in the Supreme Court’s jurisprudence in Price Waterhouse, then, is first and foremost the dismissive characterization of these gendered expectations as a “stereotype,” as if it were something irrational and wrong, on par with the notion that black people are inherently less intelligent than white people. We also object to the lumping together of all gendered expectations as equally wrong and illegal in the context of employment decisions. Some are surely wrong, but others are surely legitimate. Do we really want employers at moving companies to have to sweat and stress over the company’s potential liability for the 150 lbs. rule? Finally, we object to the fact that when her co-workers and managers were self-aware enough to recognize the gendered nature of their perceptions, and mentioned to her that her lack of charm and her unfeminine demeanor were professional liabilities, their friendly advice resulted in their being convicted, as it were, of the high crime of “sexism.”

What do you hope we consider in further posts on this subject? What do you think about gender roles? Comment below.