Ann C. McGinley, Masculinity at Work: Employment Discrimination through a Different Lens

I wrote this book to explain how masculinity defeats equal rights for both men and women in the workplace, and to encourage the public, lawyers, and the courts to do something about it. Although Title VII of the Civil Rights Act of 1964 protects both men and women from sex discrimination at work, the courts do not always know illegal discrimination when they see it. In fact, because it is considered normal, masculinity is often invisible to the naked eye.mascatwork

Research on masculinity explains that boys and men are raised in this culture to adopt a particular form of masculinity. They need to differentiate themselves from women, girls, and gay men (don’t be a “pussy”), and to prove that they are masculine to other men.

Work is a competitive environment where men earn their identities; through work they prove their masculinity to themselves and other men by aggregating power, making good salaries, and, for blue-collar workers, engaging in tough physical work. But when women and non-masculine men take jobs historically occupied exclusively by men, their presence threatens the male workers’ sense of masculine identity. Sometimes male workers react to the invasion of their workspaces by engaging in harassing behaviors against the outsiders.

When faced with gender harassment cases, the courts don’t always get it right. When women suffer the group’s harassing behavior, some courts impose a higher standard to prove sexual harassment of women occurring in predominately-male, blue-collar workplaces. When men endure very similar behaviors, most courts excuse the behavior as “horseplay” or “hazing.” These catchall words mean that the court finds that the behavior either did not occur because of the male victim’s sex or that the behavior was not sufficiently serious to punish. In other words, there was no proof of a Title VII violation.

Let’s be clear. Much of this behavior is egregious, and much is related to the victim’s gender. When courts do recognize the seriousness of the behavior, they state frequently that they are not “super personnel departments” and that incivility is not illegal. In other words, they often don’t recognize the gendered nature of the treatment, especially when men are its victims. An understanding of masculinity theory can help courts, lawyers, academics, and the public bridge this understanding gap.

The book explains how masculine practices harm both men and women in workplaces, and how masculinities theory can illuminate interpretations of Title VII law that protect both men and women from sex discrimination at work.

The book begins with the example of Jonathan Martin, the Miami Dolphins’ football player who was harassed mercilessly by his teammates. As a result, Martin checked himself into a mental institution. Even though the public and the media were aware that severe harassment had occurred in the Dolphins’ workplace, no one noticed the gendered nature of the behavior. Martin’s teammates harassed him, in large part, to “toughen him up,” because he did not present himself as sufficiently masculine. And, he was certainly not masculine enough for a black male football player.

But the book goes beyond egregious forms of verbal and physical harassment to more subtle forms of discrimination that masculinities theory can explain – behaviors demonstrating the presence of implicit bias and entrenched stereotypes. It also evaluates these forms of discrimination in white-collar and blue-collar contexts, and explains the importance of multiple identities, such as race, national origin, and sexual orientation in interpreting behaviors at work.

I wrote this book to introduce lawyers and judges, academics, and the public to theories of masculinity that explain behaviors in the workplace. My analysis of these theories demonstrates how lawyers representing clients who bring Title VII sex discrimination claims can argue for new, better interpretations of the law. It demonstrates to courts how adopting masculinities theory to interpret Title VII would result in specific and concrete changes in the ways they decide Title VII sex discrimination cases. And it provides to academics the basis for a new theory of sex discrimination law. Most important, I wrote this book hoping that through understanding of masculinities theory by the public, academics, lawyers, clients and judges, the law will better promote gender equality in the workplace.

Ann McGinley

Ann C. McGinley is the William S. Boyd Professor of Law at the Boyd School of Law of the University of Nevada, Las Vegas, where she has taught since 1999. A cum laude graduate of the University of Pennsylvania Law School and an editor of the University of Pennsylvania Law Review, Professor McGinley clerked for the Honorable Joseph S. Lord, III of the Eastern District of Pennsylvania and practiced commercial, employment, and civil rights litigation. From 1989-95, Professor McGinley taught civil procedure and legal research, writing, and analysis at Brooklyn Law School. She joined the Florida State University College of Law in 1995 where she served as associate professor of law and director of skills training. Professor McGinley is an internationally recognized scholar in the area of employment law, employment discrimination and disability law and a leader in Multidimensional Masculinities Theory, an emerging discipline that applies masculinities theory from social sciences to legal interpretation.