Legal Eagle Eye Newsletter for the Nursing Profession (7)8 Aug 99

Quick Summary: It is only a stereotype that caring or generally "warm and fuzzy" attitudes toward others are predominately female characteristics.

   It is completely appropriate for a caregiving professional to have and to display a caring attitude and to have a genuine interest in helping others.

   Employers who hire, supervise and evaluate caregiving professionals are fully within their rights to expect caring attitudes and behaviors in employees. Those are not predominately female characteristics and it is not gender discrimination to expect to see them in male members of the profession.

   It is not gender discrimination to expect a hospital social worker to care about others, any more than it would be discriminatory to expect a trial lawyer or a professional athlete to have an aggressive disposition, even though those two fields have been male dominated.  UNITED STATES COURT OF APPEALS, SEVENTH CIRCUIT, 1999.

   A recent case from the U.S. Circuit Court of Appeals for the Seventh Circuit involved allegations of gender discrimination in employment leveled against a hospital by a hospital social worker who lost his job in a reduction in force. Basically, the available positions were reduced from nine to six, with only the top six candidates selected from the re-interview and re-evaluation process keeping their jobs, with their jobs to involve more responsibility and require a higher level of ability.

   The case did not involve nurses. However, the court’s ruling has very broad implications for the issue of gender discrimination against male members of traditionally female professions.

   The social worker claimed the interview and evaluation process was biased in favor of persons who displayed "warm and fuzzy" attitudes toward others. That was an underlying fundamental bias in favor of women, as care and concern for others and a belief in helping and a willingness to help others are essentially female rather than male attributes, or so he claimed in his lawsuit.

   The court roundly disagreed. First, the court said, seeing care and concern for others as female rather than male traits is out of step with contemporary social values. Second, whatever one thinks about the gender-stereotyping issue, the law makes it entirely appropriate for caregiving professionals to be evaluated and employment decisions to be made about them based on their having or lacking caring and concerned attitudes.

   Caregiving employers can screen their employees for empathy, just like lawfirms can screen for combativeness, without risking gender discrimination lawsuits, the court ruled. Scott v. Parkview Memorial Hospital, 175 F. 3d 523 (7th Cir., 1999).