AuthorFink, Jessica

INTRODUCTION 58 I. The Limits of Title VII 61 II. Gender Sidelining Across Workplaces 65 A. On the Field (or Court, or Pool): Sidelined Athletes 66 B. On the Stage, Screen or Canvas: Sidelined Artists 70 C. In the Laboratory: Sidelined Scientists 73 D. On the Political Stage: Sidelined Politicians 76 E. In the Boardroom: Sidelined Corporate Executives and Employees 79 1. Gender Sidelining Manifests In Female Corporate Employees' Access To Leaders And Opportunities For Growth 80 2. Gender Sidelining Manifests In Female Corporate Employees Being Held To A Higher Standard Than Their Male Peers 81 3. Gender Sidelining Manifests In Female Corporate Employees' Ideas Being Overlooked, Ignored And Usurped 83 III. Why Gender Sidelining Matters 86 A. Gender Sidelining Silences Female Voices 86 B. Gender Sidelining Robs the Workplace of Female Input and Perspectives 89 C. Gender Sidelining Undermines Employee Morale and Productivity 91 D. Gender Sidelining Fuels Existing Biases that Hinder Women's Advancement at Work 93 E. Gender Sidelining Encourages Women to Opt Out of Professional Opportunities 95 IV. Tools Beyond Title Vii For Addressing Gender Sidelining 97 A. Get Women Into Positions of Authority in the Workplace 100 B. Encourage and Foster Strong Relationship Between Men and Women at Work 103 C. Stop Hiding From the Problem 105 Conclusion 106 INTRODUCTION

On a summer night during the 2016 Summer Olympics in Rio de Janeiro, thousands watched as Team USA swimmer Katie Ledecky smashed her own world record in the 800-meter freestyle, beating her previous record time by an astonishing two seconds. (1) Finishing more than eleven seconds ahead of the closest runner up, Ledecky not only captured the gold medal with her incredible performance, but also became the first woman in almost fifty years to win a gold medal in the 200-, 400-, and 800-meter freestyle races, (2) as well as one of only two swimmers in the history of the games to win a gold medal in consecutive Olympics as a teenager. (3) That same night, celebrated American swimmer Michael Phelps failed to capture a gold medal in what promised to be his last individual Olympic race, the 100-meter butterfly, ultimately becoming part of a three-way tie for second place. (4)

While most media outlets across the nation praised Ms. Ledecky's stunning achievement, (5) one previously obscure newspaper, the Bryan-College Station Eagle, attracted significant attention for its coverage of these two races. Reporting on the outcome of the day's swim meets, the Eagle ran a headline in large, bold font that said, "Phelps ties for silver in 100 fly." (6) Beneath the headline, in smaller and less prominent print, the paper wrote, "Ledecky sets world record in women's 800 freestyle." (7) Almost immediately, a backlash ensued, with members of the public condemning the Eagle for its biased coverage that seemed to downplay Ledecky's achievement. (8) University of Denver Law Professor Nancy Leong referred to the headline as "a metaphor for basically the entire world," with 34,000 people re-tweeting her comment, (9) and another commentator observed that the paper's framing of these events "made it seem like even the most historic achievements of a woman are less important than a pretty good performance from a man." (10)

One readily might attribute this incident to a simple case of sloppy editing by a small newspaper with minimal distribution or impact. (11) Yet while this newspaper's coverage diverged from the norm in this particular situation, this type of incident is far from isolated; Ms. Ledecky is not alone in having her momentous achievement brushed aside when compared with the accomplishments of a male peer. To the contrary, in a wide variety of workplaces both nontraditional (i.e., an Olympic swimming pool) and more generic, women continue to face an uphill battle in their quest for recognition, respect and reward. Female employees from the athletic field to the boardroom to the science lab often find that their male counterparts garner more of the limelight, attracting more attention and recognition. (12) Likewise, female workers frequently confront media portrayals and/or public perceptions that belittle or minimize their contributions. (13) Women often find their workplace accomplishments described using a different vocabulary than that applied to their male peers--one that fails accurately to portray their achievements. (14) Female workers lack access to important opportunities, encounter barriers to mentorship, or feel subjected to greater scrutiny than their male peers. (15)

None of these slights, in isolation, likely would give rise to a viable gender discrimination claim. (16) Indeed, whatever the workplace--the athletic field, the stage, or the corporate boardroom--these types of obstacles often blend into the background of the broader employment setting, seen as annoying and persistent but not particularly surprising--no more significant than the copying machine that habitually jams or the staff meeting that inevitably runs too long. Yet collectively, these incidents--which constitute what this article refers to as "gender sidelining"--accumulate to create very real obstacles for women at work. (17)

This article examines the many ways in which women across a wide range of employment settings face obstacles that inhibit their advancement at work through policies and practices not reached by traditional antidiscrimination laws. The article highlights the scope of gender sidelining and describes the significant impact that this phenomenon has on the workplace for all employees, male and female. The article argues that, despite generally falling outside of the reach of the courts, these harms warrant significant attention for their potential to silence creativity, stymie innovation, and negatively impact the productivity and advancement of women. Part I of this article discusses the relevant legal backdrop, focusing on Title VII of the Civil Rights Act of 1964 ("Title VII") (18) and setting forth the limits that courts have imposed upon the scope of this statute. Part II delves more deeply into the definition of gender sidelining and describes how this phenomenon unfolds across a variety of work venues--from the movie set, to the political stage, to the science lab, to the boardroom. Part III focuses on the impact of gender sidelining, not only examining how this experience silences female voices in the workplace but also explaining why this silencing may have broader ramifications, both for those in the workplace and for the public at large. Part IV, finally, describes other mechanisms besides Title VII through which the impact of gender sidelining may be ameliorated or minimized. (19)


    Despite the existence of comprehensive federal, state and local legislation designed to redress gender discrimination in the workplace, these laws generally will fail to provide relief for most examples of gender sidelining. For most female workers, the ability to sue an employer for gender discrimination begins and ends with Title VII, or with a comparable state law antidiscrimination provision. (20) In proving their case under such a law, most employees--absent any direct evidence of discrimination--rely upon circumstantial evidence, using the well-established framework set forth by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green. (21) Under this framework, a plaintiff must establish, inter alia, that she suffered an adverse employment action, (22) and must show that this adverse action was because of her gender, and not because of any legitimate reason that might be set forth by the employer. (23)

    Courts have adopted a fairly narrow view in interpreting what constitutes an "adverse action" for purposes of Title VII. Specifically, courts have held that "[a]n adverse employment action in the context of a Title VII discrimination claim is a 'materially adverse change in the terms and conditions of employment because of the employer's actions.'" (24) Accordingly, adverse actions generally have been deemed to include harms related to hiring, firing, failures to promote, reassignments with significantly different responsibilities, or decisions that cause a significant change in benefits. (25) Courts have made clear in this context that "a bruised ego is not enough." (26) Thus, calling an African-American plaintiff ignorant and berating him in front of his coworkers has been held not to rise to the level of an adverse action for purposes of a Title VII race discrimination claim. (27) A confrontation between an African-American employee and her supervisor in which the supervisor "rudely interrupted" a meeting that the employee was attending and then made inquiries of the employee "in a very aggressive tone" likewise was deemed not to satisfy this requirement in the context of a race discrimination suit. (28) Even examples of a supervisor's animus-laden language (telling an African-American employee that "he was lazy like the rest of his people and that is why they are all in prison") or placing a black employee under constant observation when white employees were not monitored in the same way was deemed not to result in a "materially adverse" change in the employee's employment status or in the terms and conditions of his employment. (29)

    Further examples of this limited view of adverse action abound: In one case, a court declined to find a "hostile work environment" under Title VII, despite recognizing that the plaintiff's work atmosphere resembled a "men's locker room environment." (30) In another case, a court held that a superior's refusal to greet or speak to the plaintiff were "trivial matters that do not rise to the level of actionable retaliation," (31) observing, "not everything that makes an employee unhappy is an actionable adverse action." (32) Yet another plaintiff's claims that a supervisor "gave her the 'cold shoulder,' sat far...

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