Updated April 7, 2016
By Jerry A. Boggs
Did the Ninth Circuit Court, viewed by some as liberal and hence pro-female on gender issues, rely on female employees’ subjective feelings to “prove” a preconceived notion that women are victims?
“The weakness of men is the facade of strength. The strength of women is the facade of weakness.” -Warren Farrell, The Myth of Male Power
From early childhood on, females have been socialized more than males to suppress their sexual feelings. (Males also are socialized to suppress sexual feelings — for example, on a first date.) Males, on the other hand, have been socialized more than females to suppress their personal feelings. (Females, too, are socialized to suppress personal feelings — for example, on a first date.)
In Real Boys (p. 13, paperback), renowned psychologist William Pollack writes, “Often, the result of this conflation of signals is that boys decide to be silent. They learn to suffer quietly, in retreat behind the mask of masculinity. They cannot speak, and we cannot hear. It’s this silence that is often confusing to those of us concerned about the well-being of boys because it fools us into thinking that all is well, when much may be awry….” [Italics Male Matters USA.]
Boys continue, of course, to suppress personal feelings as they move into adulthood. “I have caught myself,” admits Pollack, “behaving in accordance with [what he calls the Boy Code for suppressing feelings], despite my awareness of its falseness – denying sometimes that I’m emotionally in pain when in fact I am, insisting that everything is all right, when it is not.” [Emphasis by Male Matters] Says Norah Vincent, who in her book Self-Made Man tells of her experience of going undercover as a man: “As a guy, you get about a three-note emotional range. Women get octaves, chromatic scales of tears and joys and anxieties.”
If there is one place where men feel the greatest pressure to deny emotional pain, such as hurt, shame, and fear, it is the workplace. There, according to gender expert Warren Farrell, author of Why Men Are the Way They Are, “The process of raising money and climbing leadership’s ladders…requires a man to repress his fears, not express his fears.” Repressing his fears and other emotions on the job is how a man helps secure the economic success and income stability that even today far more men than women seek as a way to attract the opposite sex and support a spouse. This generally greater need for income stability tends to prohibit men (who as a group, Farrell asserts, are 50 times more likely than women to be the primary or sole breadwinner for their families) from abruptly quitting a stressful job as easily as women, who more often have a higher-earning spouse to support them if they leave the work force.
“In the journal article, Don Kurtz [an assistant professor of social work at Kansas State Univ.] suggests that in some ways [female cops] have a better chance to deal with violent cases because it’s more acceptable for women to be upset or vulnerable. ‘For male officers to show emotion, it was career suicide,’ he said.”
–Science Daily (Male Matters believes this double standard, which punishes men in general by making them feel unsupported — often scorned — if they express emotion, contributes greatly to the male’s shorter life span.)
If on the job there is one emotional behavior men feel the greatest pressure to suppress, it is crying. In my nearly 45 years of working, I saw lots of women of all ages cry because of pressure, back-biting, competitiveness, and other factors. But I never once saw a man cry no matter how austere the conditions. If a man sat at his desk crying even after being severely scolded and humiliated by the boss, he knows that he, unlike a crying woman, who often elicits sympathy and offers of help, would be given at best a wide berth by co-workers and, if not fired on the spot for being “weak and effeminate,” perhaps forever denied a promotion, especially into supervision. (See my related essays “We Often Have Different Responses to the Sexes” and “An Open Letter to Dr. Phil.”)
But men aren’t punished just for expressing their personal feelings, especially for expressing fear or crying “like a woman.” They are also punished for not expressing them, for not crying, and for generally not showing vulnerability. (Many women face a comparable “damned if I do, damned if I don’t” predicament regarding their sexual feelings.) They are often denounced in feminist literature as unfeeling robots, as the sex without emotion. They are scorned or abandoned by wives or girlfriends who tire of their “emotional constipation.” They may not only be barred from jobs in the childcare business, but in a divorce may also be denied custody of their own children because, as some judges have suggested, “the unfeeling male sex is incapable of nurturing and caring for children ‘like women.'”
“By adolescence, boys are about 40 percent less likely to cry than girls.” -Deborah Cameron, professor of Language and Communication, Oxford Univ., on CBC TV’s “Doc Zone,” June 13, 2013
It now appears that at work men will be punished even more for wearing an emotional straight-jacket. This workplace punishment comes in the form of a ruling by the Ninth Circuit Court of Appeals.
The court’s ruling is summarized by attorney Margaret Hart Edwards in “Men’s Temper Tantrums That Bother Women May Be Sex Discrimination”: “Screaming and yelling by men at work may now be sex-based discrimination if women at work find the behavior more intimidating than men do. [Italics Male Matters] On September 2, 2005…the Ninth Circuit Court of Appeals ruled that the ‘reasonable woman’ standard applies to workplace abusive conduct, even if there is no sexual content to the behavior.”
The court’s reasoning, I believe, stems from the fact that, as stated, men tend more than women to rein in their emotions at work and, perhaps most importantly, don’t cry.
“Research shows that most males struggle not only to express, but to identify their emotions. The formal term for this difficulty is alexithymia and psychologist Ron Levant, Ed.D., M.B.A., estimates that as many as 80 percent of men in our society have a mild to severe form of it. If you ask most men what they are feeling, you are likely to hear what they are thinking instead. Men (and their sons) often find it difficult to tell the difference.” –Family Education
But “just because men aren’t adept at expressing their feelings, don’t for a minute think they don’t feel, and feel deeply. Many times, men express their feelings using a secret code—a code that even they can’t decipher.” -From an excellent report in Psychology Today
Because men at work don’t cry and don’t emote the way many of the women do (and don’t quit jobs as quickly when under duress), the Ninth Circuit, totally tuned out to men, apparently believes men actually don’t feel the same pain and stress women do when on the receiving end of a male boss’s vituperations. (Similarly, many men, because women are socialized to restrain their sexual feelings, think women don’t feel the same sexually as men do.) Thus, the Ninth Circuit, in EEOC v. National Education Association (No. 04-35029), has in effect determined that only female employees may be allowed to sue for discrimination if they show, under the “reasonable woman” standard, that they are more affected than men by a male boss’s abusive behavior. [Italics mine.] Never mind if, say, two men and no women were visibly upset at the boss’s tirade, the men cannot sue.
The Background of E.E.O.C. v. National Education Association
According to Margaret Hart Edwards, “Three women working for a labor union, the National Education Association, sued for gender discrimination claiming that the NEA created a sex-based hostile work environment for them through the conduct of an interim assistant executive director who frequently ‘screamed’ at female employees in a loud and profane manner, with little or no provocation, shook his fists at them, stood behind an employee as she worked, and lunged across the table at another. The conduct was not sexual, nor was it marked by sexual language, gender-specific words, sexual stereotypes, or sexual overtures. While there was evidence that the same director raised his voice with men on occasion, and once frightened a male subordinate [the director was yelling and spitting on a man], male employees seemed to deal with that abuse with banter, and did not express the same fear of the director, did not cry, become panicked or feel physically threatened, avoid contact with the director, call the police, or ultimately resign, as did one woman.” [Key words in italics by Male Matters.]
Some people think women as the “physically weaker sex” have good reason to feel more physically threatened than men by a male boss’s outbursts, but the fact is that most workplace occurs to men.
According to another document, “The Court pointed out that at least one male employee testified that Harvey treated him fairly well and that no evidence suggested that the male employees reacted as severely as the female employees when confronted by Harvey. Indeed, unlike the male employees, the female employees testified that they cried, felt panicked and threatened, avoided contact with Harvey, called the police, and ultimately resigned their employment because of the alleged conduct. The Court determined that this difference in effect was entirely relevant to determining whether the plaintiffs had proven a violation of Title VII.” [Key words in italics.]
The above document’s statement “…the female employees…called the police…” gives the impression that all the women, or perhaps most of them, called the police. That’s refuted in the Court’s only reference to anyone calling the police: “She went so far as to call the police and file a report on one occasion, on her therapist’s advice that she document physical threats.” This reference suggests that the woman did not call the police on her own initiative out of fear. It suggests her therapist wanted her to create a paper trail to build her case — common advice for work-place complaints of any nature. And it raises questions: Was the woman seeing a therapist prior to her boss’s abusive behavior, and was she, to begin with, a highly emotional person who is not a “reasonable woman”?
When a court allows discrimination claims based on different reactions to the same behavior, it disturbs such people as Gilmore Diekmann Jr., a partner at Seyfarth Shaw, which defends employers in harassment suits. According to Law.com, Diekmann said the ruling “is unclear on the most alarming point it raises: that subjective effects of an employer’s behavior may be used to determine whether there was discrimination. ‘It’s unique and probably wrong’ if the court meant that people’s different reactions to the same behavior could form the basis for a discrimination claim, [Diekmann] said. ‘It seems to be some effort by a panel to possibly inject a new type of liability…’” [See “We often have different responses to the sexes for the same behavior.“]
To the Ninth Circuit, there apparently was no value in considering:
Whether the women possessed more societal freedom to admit feeling intimidated and, most importantly, to break down and cry.
Whether the men experienced the Boy-Code pressure to rein in their emotions when abused by the director and again when questioned by the EEOC interviewers. As William Pollack might say, “In both instances, the NEA men, afraid of being marked as wimps and losers, hid behind the mask of masculinity and fooled everyone into thinking all was well with them when in fact it wasn’t.”
The Ninth Circuit appears to have based its ruling also on the fact that more women were abused than men. I could not find in the ruling the female-male ratio of NEA-Alaska union employees, only indications that the women outnumbered the men, as in: “Indeed, this case illustrates an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace….” (For possible insight into why the NEA boss was a bully, see “Depression’s Machismo Mask.”) To me, where there are more female employees, it stands to reason that the truly equal-opportunity boss will subject more women to abuse than men. But the Court, instead of considering this and looking, as it should have, at the percentages of the sexes abused, concerned itself only with the number of women abused, possibly because it felt constrained by the “reasonable woman” standard. Obviously, a higher percentage of the male employees can be abused even if a higher number of the females is – in which case, the men would have actionable cause under a law based on the reasonable person standard.
Furthermore, the Ninth Circuit apparently also based its ruling on the fact that the female complainants were abused more frequently than the abused men. But did the boss as a necessity of his duties have to interact with the complainants more often than with the men? If each day he spent, say, three hours working directly with the women and only one hour with the men, wouldn’t he naturally subject more women to incidents of abuse?
Obviously to the Ninth Circuit, such questions mattered not. The court’s seeming overarching concern was to ordain the women as victims and reward them for expressing more emotion than the men. Or, put another way, the court punished the men with unequal protection because they expressed less emotion than the women.
“One major difference between the sexes that really impacts managers is that women are (in general) more likely to speak up if they’re unhappy about their immediate circumstances and environment, while men tend to suffer in silence. (Helgesen’s term for it is ‘men will suck it up and tolerate a lot more for a lot longer’.)” -Wayne Turmel, BNET
This outcome, I suppose, was to be expected. The Ninth Circuit, according to Eugene Volokh, a constitutional law professor at UCLA, is considered the most liberal in the country. “Most liberal” could be construed as most pro-female, as the court exemplified in 1991 when it expressed the view that even well-intentioned compliments can form the basis for sexual harassment claims.
The Court was recently accused by radio talk show host Laura Ingraham, in another case, of applying double standards, of eschewing fairness and objectivity. The Ninth Circuit has done it again in this case. Clearly, when addressing women-vs-men issues, the court is less an advocate for justice than an advocate for women.
As you may have noticed, there are no references to “female boss” in the Ninth Circuit’s ruling. Says Margaret Edwards at Littler.com, “Finally, the court’s logic raises the question of whether the case would have come out the same way if the director engaging in the abusive behavior was a woman. Given one of the Ninth Circuit’s remarks, perhaps not. The court said, ‘this case illustrates an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men.’”
I italicized “theory” because I strongly suspect it is a feminist theory the court is referring to. My own theory – based on my real-life experiences – is that male bosses are more comfortable when bullying men. Men are, as this commentary stresses, far less likely to over-react emotionally to bullying. Men don’t cry and make bosses feel guilty. And they are less likely to sue. The Ninth Circuit’s new ruling would seem to make bosses even more comfortable bullying men.
It’s always difficult to predict the unintended consequences of such rulings, but some of my more cynical predictions and thoughts are:
Because this ruling significantly expands sexual harassment law, some employers, already considering women a greater liability because of the law, may become even more reluctant to hire women. (See “The Sexual Harassment Quagmire: Digging Out With True Equality” and “Taking Apart The Sex-Bias Class-Action Lawsuit Against Wal-Mart.”)
Since the definition of what constitutes sexual harassment keeps expanding – as many legal experts forewarned would happen and as this case now illustrates – a future court may allow a female employee to sue for gender discrimination because a boss’s frustrated expressions, such as shaking his head or throwing up his arms – not at her but at, say, a report he is reading at his desk – made her as “a reasonable woman feel threatened” by his “violent gestures.” (The courts are teaching women that they can exert enormous power over a male boss – who might have every right himself to feel intimidated by female employees – and that great financial reward may be had for feeling offended, intimidated, or threatened by men at work.)
Some employers may prohibit men from supervising women, resulting in antimale discrimination.
Women are already known to be physically weaker than men. Now the Ninth Court has legally classified them as emotionally weaker as well. They have been deemed incapable of independently negotiating and working things out with others at work, as men feel they are expected to do.
It is tempting to say the ruling infantilizes working women. It may do just that, but it also gives them power – the power of emotion – which it denies to male workers. It tells women that, unlike men, they need not prove their mettle and follow the working man’s dictate, “The tough get going when the going gets tough.” It tells them, “Show your fears and cry. You can intimate your male boss into walking on eggs around you and expecting little of you.”
Some female employees may avoid jobs with a female supervisor, fearing she can abuse with impunity and with the awareness that her male employees will “take it like a man.”
It may become more difficult to get frivolous claims dismissed.
The ruling illustrates why many men are cynical about feminism. Although they realize there are many egalitarian feminists out there, they see that radical feminists always seem to prevail by getting their unfair and sexist ideas implemented into law and policy. Egalitarian feminists, more than anyone else, ought to be up in arms over this ruling. How can men be expected to want to place a woman into a position such as CEO or general or combat soldier, now that women must be considered both physically and emotionally weaker than men? How can men not be expected to worry about being sued if they treat a woman as equal to men?
More men will now think feminists want women to have their cake and eat it, too.
Luckily, bosses as abusive as the director in this case seem to be few and far between. In my entire time in the workforce, I saw only one such boss, about 35 years ago. He was not my boss but the boss at a real estate company that was a competitor of the company I worked for. He was known for his yelling and screaming at employees. One day I had to go to his office on a business matter. As I was getting out of my car in the parking lot, I could see and hear him yelling at his maintenance man just inside the glass door. As I recall, he screamed and frothed only at his male employees.
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