By Tom Christopher

The Randy Newman song “Short People” has found an echo in a new gender discrimination theory that has come into vogue in certain articles and in academic circles. Although the Newman song was considered to be satire, these theories are quite serious in claiming that gender discrimination can result from the physical work environment, frequently in the form of work environments designed for taller, and thus more-likely-male employees.

An article soon to be published in the University of Colorado Law Review by Jessica Roberts describes this theory that “the built environment can become a source of discrimination against women.” Ms. Roberts argues for applying the analysis from disability law to deal with it.

Ms. Roberts claims that the “built environment” can be an “instrument of exclusion” and a “discriminatory force” that keeps “female bodies” out of certain jobs. The workplace, she asserts, is full of “traditionally male spaces” that keep women out because of the “veritable femaleness of the bodies themselves.” It is claimed that the workplace is designed for the average male, not for the average employee.

The Roberts article provides only a couple of examples. It discusses worktables and machinery that may be built for males of average height, and thus not tailored to shorter individuals who are statistically more likely to be female. It also discusses a 1977 Eighth Circuit case where a five foot three inch female challenged height requirements for pilot applicants, where the requirements were based on the need to see the instruments and operate pedals on the floor.

Of course, height and weight requirements have been attacked in a number of cases where they had adverse impact. Where there was insufficient business justification, some have been invalidated.

The emerging theories of the sort that Ms. Roberts put forward appear to go a step further. Under these emerging theories, employers would not be permitted to rely on the physical demands of their equipment or environment ‑‑ the “male spaces” ‑‑ as a reason to exclude females. The proposed solution is to apply a disparate impact analysis. If the physical demands are shown to have a disparate impact, the employer, rather than being able to argue that business necessity justified hiring those physically suited for the “male-designed environment,” would be required to reasonably accommodate those excluded by the physical design or requirements of these “male spaces.” Indeed, it has been argued by some that failure to do so is really prohibited by current law.

It is debatable whether courts or legislative bodies will have any taste for restructuring the work environment to deal with this perceived problem. In particular, the idea of deciding such issues in the courtroom, rather than on the engineering planning table ‑‑ presumably set at the correct height ‑‑ may give considerable pause.

First, concern about height and the physical attributes of the potential employee is of arguably declining relevance in the 21^st Century workforce, although we are not on the verge of eliminating all physical jobs. However, even where there are physical jobs involved, it is unclear how many jobs are unavailable to significant numbers of women because of the physical environment.

In fact, Ms. Roberts’ first example of the “built environment” as an “instrument of exclusion” for shorter women presents a substantial legal argument, but its practical significance is unclear. Where an employee is too short to reach a switch or machine, most employers would provide her with something to stand on. Certainly, it would be a bold employment lawyer who would advise a client to hire a male rather than a female for such a job rather than providing a simple and inexpensive solution, as there would be a real danger that the employer’s explanation would be found to be a pretext. This is probably the type of situation where the argument is strongest that current law provides a remedy to the female adversely affected.

At the other extreme, these theories may go too far. It is questionable whether there would be much enthusiasm for requiring airlines to select planes to purchase or lease based on whether they had cockpits that could be used by pilots under five feet five. Indeed, an appellate court has rejected just such a claim. Certainly, there does not appear to be significant legal authority for imposing the same type of major reasonable accommodation requirements to gender claims as are required by disability discrimination laws. To this point, gender discrimination laws have been interpreted to require equal treatment, not to mandate significant restructuring of the way work is done in order to make it more available to women.

The reasonable accommodation obligation under the Americans with Disabilities Act and similar statutes does place greater requirements on employers. However, these involve a deliberate choice by Congress and certain legislatures adopting these laws to impose significant obligations on employers in order to help bring some of the over 40 million disabled Americans into the economic mainstream. It remains to be seen whether the advocates of adopting the same type of approach to gender discrimination claims can generate significant support in the courts or legislatures.

ADDITIONAL READING:

• Roberts, Jessica L., "Accommodating the Female Body" (September 2007). Available at SSRN: http://ssrn.com/abstract=1013556