Final week, we addressed the urgent difficulty of whether or not “bro hugs” at work may very well be thought-about sexual discrimination, a problem which originated with a reader of the The New York Times “workologist” who stated that she felt excluded when the bros at work hugged one another.

She admitted to feeling “virtually unnoticed” when the males at her job “continuously hug and seize and bump one another in a pleasant method.” Regardless that she stated that she did not need to be bro hugged, she requested the “workologist”: “Ought to I let this ‘bro contact’ hassle me?”

The “workologist” felt (as did I, and my accomplice, Amy Epstein Gluck — the “Infamous AEG”) that “it doesn’t appear as in case your colleagues are attempting to exclude you,” however conceded that such conduct can develop into a “coded method of excluding individuals. We don’t need individuals such as you since you don’t match our tradition,’ can end up to imply, ‘You’re not our race, or our gender.’”

The “workologist” emailed us after ATL posted the piece that “that’s my favourite query in fairly some time.”

In any occasion, the query certain appeared a bit odd and on the market.   But it surely acquired me pondering — how far can this difficulty (or non-issue) be prolonged? That’s, how removed from what we clearly perceive as sexism can the problem be pushed? If final week’s query was considerably foolish, how far can foolish be pushed?

We could also be getting far afield right here, however I pose the next query as a thought experiment — and that’s what thought experiments do — push the boundaries of a problem. And I assume that’s what attorneys do — take a truth sample or difficulty and discover its outer bounds and its implications.

So right here goes: Can carrying brief skirts at work in some way be deemed sexual discrimination?

I do know, I do know … sounds absurd, however hear me out.

If a bro hug may very well be felt to be exclusionary if it excludes girls, then what may very well be the reverse of this?   What if a girl wears a brief skirt for the very objective of getting the boss to take a look at her, to note her — to favor her within the phrases and circumstances of employment? The sexist previous virtually dictated that for a lady. However what about now? Does this in some way exclude males within the office, at the very least to the extent that the girl is favored?

We all know that there are circumstances the place staff declare discrimination when the boss is romantically concerned with one other worker — on the bottom of favoritism primarily based upon gender. Anyway, that being so, would carrying a brief skirt in some way be akin (albeit distantly) to being romantically concerned with the boss — perforce an exclusion of males who typically don’t put on brief skirts at work?

After all, to floor my reply to this admittedly out-there query, and to see if there was even a flicker of enchantment to the proposition, I made inquiry of my accomplice Amy, the Oracle of FisherBroyles. Would she entertain the query? Within the warmth of the summer season? Wouldn’t it be a foolish query which was beneath her dignity?

I fearful about this stuff however requested anyway.

Effectively, the Infamous AEG, by no means one to disappoint, ignored the dog-days-of-summer warmth and humidity, took a break from her solar bathing, gave me a squinty look, and acquired all the way down to researching the related authentic scriptures (the “Dialogues” that she and I had and which was printed by ATL here, here and here). She learn and contemplated. She contemplated and skim.

And she or he finally got here down from Olympus to render her opinion.

“My brother,” she stated, as I bowed my head in reverence, “you’ve requested rather a lot. Some could contemplate this a foolish query, even a query designed to impress the gods — to get me concerned in a foolish difficulty and discredit me.” I blanched visibly. Nonetheless she stated slowly, “Loosen up, dude. I do know that you simply ask in good religion, so I’ll reply.”

First hurdle cleared.

She continued:

I don’t suppose the 2 eventualities [bro hugs and short skirts] are even remotely comparable. Girls who put on shorter skirts within the office accomplish that for numerous causes (confidence constructing, desire, and so on.) — not simply to ‘curry favor’ from a boss or every other man. What if she simply likes carrying brief skirts? Assume Ally McBeal. [Here, the Oracle referenced an old, fictional TV series based, I think, upon a play by Euripedes, or Aeschylus, or someone like that.]

Her tiny skirts had been simply her desire, to not curry favor with a boss. And the way do you establish intent? Saying that that is the explanation any girl wears such a skirt feels like sexual stereotyping a la Value Waterhouse v. Hopkins.

Her level was nicely taken. Intent is often fairly vital in this stuff. And the query was a bit foolish.

The Oracle had taken me down a peg — frankly, made me really feel a bit silly.

Takeaway

As I’ve discovered over time, and particularly from Amy, in the case of understanding and feeling what one other particular person feels and experiences, even years of finding out and the most effective of intentions can not substitute for “strolling in somebody’s footwear.”


richard-b-cohenRichard B. Cohen has litigated and arbitrated complicated enterprise and employment disputes for nearly 40 years, and is a accomplice within the NYC workplace of the nationwide “cloud” legislation agency FisherBroyles. He’s the creator and writer of his agency’s Employment Discrimination blog, and acquired an award from the American Bar Affiliation for his weblog posts. You possibly can attain him at [email protected] and comply with him on Twitter at @richard09535496.

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