Wednesday, August 3, 2011
Current research supports the view that the average man and the average woman differ somewhat in their personality and suggests that these statistical sex differences have some heritable component. As a result, the average man and the average woman will flourish in different types of workplaces and an employer’s method of motivating and evaluating employees may be fair, on average, to one sex and unfair, on average, to the other. Accommodating both sexes may be easy, hard, or impossible.
In this paper I attempt to examine the complex implications of statistical sex differences in personality for the law of employment discrimination. Research does not support some traditional assertions about sex differences. When defendants invoke lack of interest as a defense, plaintiff should abandon their current strategy of denying the existence of sex differences and instead plaintiffs question whether sex differences take the particular form asserted by defendants.
A more difficult question is whether the law should allow plaintiffs to raise the question of sex-biased work culture as an element of their claim. Such claims, I argue, should be considered only as applied to extreme behavior whose regulation can be justified on more general grounds. Such claims would be better regarded as a form of disparate impact than as a form of disparate treatment.
Finally and most importantly, the law must not interfere with voluntary employer efforts to devise work cultures that are congenial to women. Such experiments have been made more difficult by the Supreme Court’s recent decision in Ricci v. de Stefano and I address how a modified affirmative action defense might permit desirable innovation in work cultures.