Clarifying Judicial Understanding of “Stereotyping”

Kerri Lynn Stone recently posted her article, “Clarifying Stereotyping”  (59 Kansas Law Review 2011) on SSRN. Here’s the abstract.

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People make comments all the time that include or invoke stereotypes. Sometimes those comments are indicative of their belief systems or values. Sometimes they are feeble – or genuine – attempts at humor or wit. Sometimes people speak rashly and in anger. Many times, people are misunderstood, and their true feelings are belied by a clumsy choice of words. Much of the law of employment discrimination necessarily implicates a searching probe into the often undisclosed – sometimes even to oneself – motivations, beliefs, and intentions that underlie an impel acts alleged to have been discriminatorily premised on someone’s race, gender, or protected class status. Rarely in this day and age does one who suspects that discrimination has befallen him have a “smoking gun” or an admission to that effect. Generally, the undisclosed mindset of a discriminatory decision-maker, far from a simple hidden secret, is actually a complex tapestry of unvoiced beliefs, assumptions, and associations. This tapestry, a victim of discrimination soon realizes, is typically too tightly woven to easily extricate the needed, discrete strand of thought that shows a predisposition to see or judge certain groups differently.

This Article addresses the largely undefined, misunderstood-yet-often-resorted-to concept of “stereotyping” as a basis for, or sufficient evidence of, liability for employment discrimination. Since, the concept’s genesis in Supreme Court jurisprudence in 1989, Price Waterhouse v. Hopkins, plaintiffs have proffered remarks alleged to be tinged with, or indicating the presence of, impermissible stereotypes as evidence of discrimination based on protected-class status – be that sex, race, color, religion, or national origin – in contravention of Title VII of the Civil Rights Act of 1964. The Article examines the language in Hopkins and its precise mandates and guidance for lower courts. It then explains the widespread extrapolation of Hopkins by lower courts and the framework in which the case now operates.

This Article posits that Hopkins furnished guidance that is less than clear as to when so-called “stereotyping” is evidence that warrants evaluation by a trier of fact and when a comment is harmless or too attenuated from an adverse action to permit an allegation of discrimination to survive. The Article also identifies the various smaller, often unarticulated questions bound up in the larger issues of when impermissible stereotyping has occurred and how various courts’ failures to specify these questions and their answers may have led to the confused state of stereotyping jurisprudence. The Article aims to dispel the myth, propagated in part by courts’ misreading of Hopkins, that there is such a discrete cause of action as “stereotyping.” At the same time, it reviews the myriad of cases that have tried to decide, as a matter of law, when a stereotyped comment sufficed to create an issue of fact as to intentional discrimination and breaks down this complex question. Courts appear to have no real uniform standards for evaluating when a statement alleged to have stereotyped a plaintiff is probative and when it can only reasonably be seen as a misspeak, a mistake, or otherwise too “stray” to suffice as evidence that impermissible discrimination took place.

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Download the article for free here.

Related Situationist posts:

• Susan Fiske on “Inclusive Leadership, Stereotyping and the Brain”
• Sexual Harassment at Wal-Mart?
• The Situation of Sexual Harassment
• Susan Fiske’s New Book
• Susan Fiske Discusses her Work on Different Types of Prejudices
• “The Situation of Objectification,”
• “Women’s Situational Bind,” and
• “You Shouldn’t Stereotype Stereotypes.”

Susan Fiske on “Inclusive Leadership, Stereotyping and the Brain”

From ColumbiaBusiness:

[Situationist Contributor] Susan Fiske of Princeton University discusses the psychology of stereotyping in her keynote address to Columbia Business School’s research symposium, “Inclusive Leadership, Stereotyping and the Brain,” co-sponsored by the Program on Social Intelligence and the Sanford C. Bernstein & Co. Center for Leadership and Ethics. Professor Fiske is introduced by Professors Malia Mason and Bruce Kogut of Columbia Business School.

To learn more about this symposium, click here.

Related Situationist posts:

• Susan Fiske’s New Book
  
• Susan Fiske Discusses her Work on Different Types of Prejudices
• “The Situation of Objectification,”
• “Women’s Situational Bind,”
• “You Shouldn’t Stereotype Stereotypes,”
• Perceptions of Income Distribution and Preferences for Redistribution,
• Psychology of Inequality
• The Inherited Situation of Racial Inequality
• “Even monkeys know when they’re being treated unfairly,”
• “A Discussion about (In)Equality,”
• “The Interior Situational Reaction to Inequality,”

The Gendered Situation of Recommendation Letters

From Rice University:

A recommendation letter could be the chute in a woman’s career ladder, according to ongoing research at Rice University. The comprehensive study shows that qualities mentioned in recommendation letters for women differ sharply from those for men, and those differences may be costing women jobs and promotions in academia and medicine.

Funded by the National Science Foundation, Rice University professors Michelle Hebl and Randi Martin and graduate student Juan Madera, now an assistant professor at the University of Houston, reviewed 624 letters of recommendation for 194 applicants for eight junior faculty positions at a U.S. university. They found that letter writers conformed to traditional gender schemas when describing candidates. Female candidates were described in more communal (social or emotive) terms and male candidates in more agentic (active or assertive) terms.

A further aspect of the study involved rating the strength of the letters, or the likelihood the candidate would be hired based on the letter. The research team removed names and personal pronouns from the letters and asked faculty members to evaluate them. The researchers controlled for such variables as the number of years candidates were in graduate school, the number of papers they had published, the number of publications on which they were the lead author, the number of honors they received, the number of years of postdoctoral education, the position applied for and the number of courses taught.

“We found that being communal is not valued in academia,” said Martin, the Elma Schneider Professor of Psychology at Rice. “The more communal characteristics mentioned, the lower the evaluation of the candidate.”

A follow-up study funded by the National Institutes of Health is under way and includes applicants for faculty and research positions at medical schools. In the new study, enough applicants and positions will be included so that the researchers can use the actual decisions of search committees to determine the influence of letters’ communal and agentic terms in the hiring decisions.

Words in the communal category included adjectives such as affectionate, helpful, kind, sympathetic, nurturing, tactful and agreeable, and behaviors such as helping others, taking direction well and maintaining relationships. Agentic adjectives included words such as confident, aggressive, ambitious, dominant, forceful, independent, daring, outspoken and intellectual, and behaviors such as speaking assertively, influencing others and initiating tasks.

“Communal characteristics mediate the relationship between gender and hiring decisions in academia, which suggests that gender norm stereotypes can influence hireability ratings of applicants,” Martin said.
The “pipeline shortage of women” in academia is a well-known and researched phenomenon, but this study is the first of its kind to examine the recommendation letter’s role in contributing to the disparity and evaluate it using inferential statistics and objective measures. It’s also the first study to show that gender differences in letters actually affect judgments of hireability.

“This research not only has important implications for women in academia but also for women in management and leadership roles,” said Hebl, professor of psychology and management at Rice. “A large body of research suggests that communality is not perceived to be congruent with leadership and managerial jobs.”

The research team also noted that letter writers included more doubt raisers when recommending women, using phrases such as “She might make an excellent leader” versus what they used for male candidates, “He is already an established leader.”

“Subtle gender discrimination continues to be rampant,” Hebl said. “And it’s important to acknowledge this because you cannot remediate discrimination until you are first aware of it. Our and other research shows that even small differences — and in our study, the seemingly innocuous choice of words — can act to create disparity over time and experiences.”

Martin, Hebl and Madera’s study, “Gender and Letters of Recommendation for Academia: Agentic and Communal Differences,” was published last year in the American Psychological Association’s Journal of Applied Psychology. They are currently beginning data collection on their next study on recommendation letters for medical faculty positions.

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For a sample of related Situationist posts, see

• “Examining the Gendered Situation of Harvard Business School,”
• “A Rose by any other Name Might Become a Judge,”
• “You Shouldn’t Stereotype Stereotypes,”
• “Not Just Whistling Vivaldi,”
• “The Nerdy, Gendered Situation of Computer Science,”
• “The Situation of Gender-Science Stereotypes,”
• “Women’s Situational Bind,”
• “The Situation of Gender and Science,”
• “Stereotype Threat and Performance,”
• “The Gendered Situation of Science & Math,”
• “Gender-Imbalanced Situation of Math, Science, and Engineering,”
• “Sex Differences in Math and Science,”
• “You Shouldn’t Stereotype Stereotypes,”
• “The Situation of Standardized Test Scores,”
• “Women’s Situation in Economics,” and
• “Your Group is Bad at Math.”

Sarah Jones on Stereotypes and Stereotyping

We highly recommend a 13-minute podcast in which Sarah Jones (a Tony Award winning playwright and performer) reflects on morals, racial stereotyping, and the perils of West Coast jaywalking.  You can listen to the podcast (recorded  live at The Moth Main Stage) here.

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For a sample of related Situationist posts, see “Why Race May Influence Us Even When We “Know” It Doesn’t,” “Hoyas, Hos, & Gangstas,” “The ‘Turban Effect’,” “Journalists as Social Psychologists & Social Psychologists as Entertainers,” “The Situation of Racial Profiling,” “The Situation of Prejudice: Us vs. Them? or Them Is Us?,” “Do We Miss Racial Stereotypes Today that Will Be Evident Tomorrow?,” “Perceptions of Racial Divide,” and “The Psychology of Barack Obama as the Antichrist.”

Stereotyping Political Ideology

Susan Perry has a terrific article in yesterday’s Minneapolis Post, titled “How we use stereotypes to identify people’s political affiliations.”   Here are some excerpts.

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. . . . According to a study published this month in the open-access journal PLoS ONE, people can identify with remarkable accuracy (more than by chance guessing) whether another person is a Republican or a Democrat by simply looking at that person’s headshot.

How do we do it? By relying on stereotypes, the study found. Republicans, apparently, look “powerful” in our minds, and Democrats appear “warm.”

Of course, these kinds of stereotypes can lead to perceptual errors. “Not all Democrats appear warm and not all Republicans appear powerful,” wrote the study’s authors. “However, the linearity of these effects is noteworthy: appearing warmer led to a greater chance that a target would be perceived as a Democrat and appearing more powerful led to a greater chance that a target would be perceived as a Republican.”

Experiment #1
The study, which was conducted by Nalini Ambady, Ph.D., a social psychologist at Tufts University in Medford, Mass., and Tufts doctoral candidate Nicholas Rule, involved three separate experiments.

In the first experiment, 29 undergraduates were asked to categorize the faces of 118 unnamed professional politicians (2004 and 2006 U.S. Senate candidates).The photos (cropped to be of identical size and converted to grayscale) included women candidates, but minority candidates were excluded to avoid race-based stereotypes.

After the data was analyzed, the study found that participants had categorized the photos correctly at a rate that was significantly better than chance guessing. Those results held even when the responses of 10 participants who said they recognized at least one of the candidates were excluded from the calculations.

Experiment #2
To see if the results of the first experiment could be extended to other groups of people, the researchers conducted a second experiment. . . . [involving] the political affiliation of photos take from the senior yearbooks of a private U.S. university. . . .

Again, the participants’ categorization of the political affiliations of the students in the photos was significantly greater than chance guessing.

Experiment #3
Intrigued by these findings, the researchers decided to determine what, exactly, people were using to determine if someone were a Democrat or a Republican. . . .

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Faces perceived to be that of Republican scored higher on the “Power” scale and those perceived to be that of a Democrat scored high on the “Warmth” scale.

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Other research has pointed out that we’re quick to make snap judgments about the people we meet based on their appearance — and often, of course, unfairly. “People are known to form impression of others from their faces instantaneously and automatically,” write Rule and Ambady. “Moreover, these perceptions can have highly consequential outcomes, such as affecting the jobs that individuals are offered, their outcomes in court, and their financial success.”

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To read the entire article, including the conclusion, which summarizes “some truly provocative research about how election results can be predicted by the candidates’ facial traits,” click here.

To read a sample of related Situationist posts, see “Social Tuning and Ideology – Part 1 and Part 2,” “The Situation of Ideology – Part I,” “The Situation of Ideology – Part II,” “Ideology is Back!,” “A System-Justification Primer,” “Barbara Ehrenreich on the Sources of and Problems with Dispositionism,” ““Yuck!” “EWW!” and Other Conservative Expressions,” “Unclean Hands” and “The Situation of Political Disposition,” “Ideology is Back!,” “The Situation of Confabulation,”

Stereotyping Stories

Our favorite radio program, This American Life, broadcast an especially situationist episode in July, which you can listen to here.   The program’s description is as follows.

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Prologue.

Amy Roberts thought it was obvious that she was an adult, not a kid, and she assumed the friendly man working at the children’s museum knew it too. Unfortunately, the man had Amy pegged all wrong. And by the time she figured it out, it was too late for either of them to save face. Host Ira Glass talks to Amy about the embarrassing ordeal that taught her never to assume she knows what someone else is thinking. (8 1/2 minutes)

Act One. The Fat Blue Line.

While riding in a patrol car to research a novel, crime writer Richard Price witnessed a misunderstanding that for many people is pretty much accepted as an upsetting fact of life. Richard Price told this story—which he describes as a tale taken from real life and dramatized—onstage at the Moth in New York. Price’s most recent novel is Lush Life, which he’s adapting for film. (12 minutes)

Act Two. Stereotypes Uber Alles.

When writer Chuck Klosterman got back from a trip to Germany, friends asked him what Germans were like. Did nine days as an American tourist make him qualified to answer? In this excerpt of an essay he wrote for Esquire magazine, Chuck explains why not. (6 minutes)

Act Three. Yes, No or Baby.

There are some situations where making judgments about people based on limited amounts of information is not only accepted, but required. One of those situations is open adoption, where birth mothers actually choose the adoptive parents for their child. TAL producer Nancy Updike talks to a pregnant woman named Kim going through the first stage of open adoption: reading dozens of letters from prospect parents, all of whom seem utterly capable and appealing. With so many likeable candidates to choose from, Kim ends up focusing on tiny details of people’s lives. (6 minutes)

Act Four. Paradise Lost.

Shalom Auslander tells the story of the time he went on vacation, pegged the guest in the room next door as an imposter and devoted his holiday to trying to prove it. Shalom Auslander is the author, most recently, of the memoir Foreskin’s Lament.

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For a sample of related Situationist posts, see “Alcohol, Hotdogs, Sexism, and Racism,” “TAL Animation on the Situation of Memory,” “A Rose by any other Name Might Become a Judge,” “You Shouldn’t Stereotype Stereotypes,” and “The Situation of Gender-Science Stereotypes.”