Tuesday, September 15, 2009

Colin Miller on Sex Plus Theory at Feminist Law Profs

MillerColin Miller (John Marshall--Chicago) has a great post at Feminist Law Professors on a recent Seventh Circuit opinion, Coffman v. Indianapolis Fire Dep't. The plaintiff in that case was a fairly short woman (5 feet tall with her shoes on, in her words) who alleged that she was subjected to disparate treatment because of her sex and size.

Coffman had been employed at the department for a couple of years when a couple of coworkers expressed concern over her ability to drive the equipment. She was required to perform some safety tests, which she passed just fine, but some coworkers continued to doubt, and a downward spiral of resentment, performance questions, and testing ensued. Coffman alleged that short men were not subject to the same doubts and battery of tests.

The Seventh Circuit labeled her claim a "sex-plus" claim, since she was not arguing that all women were treated poorly--it was the combination of her sex and stature that drew the negative treatment. It then affirmed the grant of summary judgment, holding that she had failed to develop the theory.

Miller takes issue with the decision (and I agree with him), noting that the label of "sex-plus" is simply a heuristic, a judicial convenience in the words of the Second Circuit.

This being the case, how could the Seventh Circuit fail to address Coffman’s “gender plus” argument on the ground that she failed to develop it if it is simply a heuristic and judicial convenience? Under this reasoning shouldn’t the court have found that Coffman’s “gender plus” discrimination claim was really just a gender discrimination claim and addressed it on the merits?

Miller notes that it also appears that Coffman did not provide sufficient evidence--I assume to back up her claim that short men were not treated the same way--and so had no need to even discuss "sex plus." It's a good post and worth a read.

I think the decision is interesting for a couple of other reasons. First, it was written by Judge Rovner, who is, in my opinion, a very sophisticated thinker when it comes to discrimination. Judges Posner and Easterbrook were also on the panel, and they, too, are sophisticated thinkers, but have significantly different views from each other and from Judge Rovner. That could be one of the reasons for the discussion. Second, Coffman's story seems a classic example of the way that someone subject to discrimination can end up being viewed as at fault for her treatment. Each request and suspicion communicated to her in the facts seems to have made her more angry and resentful. Legitimate reactions, it seems to me, particularly if she is in a traditionally macho line of work and she's working hard not to be viewed as a china doll. Yet those legitimate reactions are viewed as idiosyncratic, unreasonable, and unrelated to any discrimination she might be experiencing. They legitimize the different treatment. And the judicial reaction to that is fully explained in analyzing her harassment claim--her subjective experience of harassment is not reasonable. She can't win for losing.

Hat tips: PS and Hank Leland for fixing my link



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