No Girls Allowed. Last week I wrote about a boys night out with my colleagues at the Centre for Human Resources. This boys’ night out was arranged by one professor who invited male colleagues out for beer, wings and bonding. Several of our female colleagues teasingly suggested that they would crash the get together. At our institution it is unlikely that any of the female faculty would think that this night out was a gathering of the power elite from which they were excluded. Our department has a male chair now for the first time in 10 or 15 years that I can recall. Nevertheless, the issue of women being excluded from the social aspect of the corporate world and therefore denied access to some of the very real opportunities for advancement is still present.
One of the big legal stories in Toronto in the last few years in this area is that of Diane LaCalamita, an intellectual property lawyer, who is suing her former firm, McCarthy’s for $12 million for discrimination. The statement of Claim filed by LaCalamita does not refer to the boys club, speaking more specifically about a culture of discrimination and denials of partnership opportunities. LaCalamita’s picture was on the cover of several magazines and her notoriety has become such that she has apparently decided to write the British Bar exams because she says she will never work in this town again. Is the “deadly war between the sexes” (as Nietzsche called it) still waging?
McCarthy’s own report on equality “found that while many lawyers believed the firm environment was characterized by great people and great work, a majority of women felt marginalized by subtle stereotypes, that they perceived “male” and “female” types of work, and that they felt excluded by “boys’ clubs.”
In the lawyer centered, Precedent magazine, there was a discussion of women leaving the profession. Although the law schools now graduate more women than men, women leave the profession at twice the rate of men. One of the reasons cited is that it is still viewed as an old boys’ world. Men at the top control the best work and make access to women very difficult.
Keeping women out of the boys’ club was front and centre back in 2002 when the men’s only rules of the Augusta National Golf club was challenged by Martha Burk, chair of the National Council of Women’s Associations. According to Burk, "The most powerful men in the United States are (at the club), doing business, finalizing contracts. Women are completely excluded from these transactions."
Augusta hasn’t changed and even last year, its “boys’ club” rule was in the media after a reporter was barred from the locker room. “Tara Sullivan, a reporter for The Bergen Record in New Jersey, was unable to join her fellow writers in the locker room for interviews after the final round of the 2011 Masters had concluded, all because of her gender.” Similarly, in September 2010, the New York Jets, although allowing reporter Inez Sainz into the dressing room to interview quarterback Mark Sanchez, had to apologize for the many sexist comments made by Jets’ personnel to Sainz. The Human Rights argument is that Sainz is unable to do her job as a reporter because she is being discriminated against and being sexually harassed in the workplace.
There are, of course, public policy reasons for keeping men and women separated in washrooms and locker rooms. The Ontario Human Rights Code provides in section 20
(1) The right under section 1 to equal treatment with respect to services and facilities without discrimination because of sex is not infringed where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency
Though not specifically argued, the public decency defence is at the heart of a recent Human Rights Tribunal decision involving girls playing hockey. In Demars v Brampton Junior Hockey, Shaunna and Robyn Demars were barred, by rule from changing with the boys on the team once they hit the age of 12. The Association has a rule that requires that girls be given at least 10 minutes pre and post game time to be with the team. The rule takes into account that at an age where the players will be more aware of sexuality, precautions must be taken. There must be adult supervision; boys are required to wear boxer shorts and t-shirts and there must be separate time for changing and then team time. The girls often did not get this team time and when they were there were often subjected to derogatory comments. The girls often weren’t told where they could change and would have to lug their hockey bags around looking for the arena manager. And then they often had to change in substandard rooms, offices, janitors rooms etc. The tribunal found that discrimination occurred and awarded a total of $20,000 in damages.
The public decency argument was made in the employment context in Sequin v. Blue Heron. The casino which operated 24 hours a day had a policy that only male housekeeping staff could clean the mens’ washrooms and only female staff could clean the female washrooms. Two part time washroom attendants were hired, one male, one female. When a full time position became available, it was given to the male without competition because one of the duties of the full time attendant was to clean the men’s washroom. In fact, the Casino had housekeeping teams made up of two men and two women. It was a male that left one of the teams and the Casino sought to replace that position. The Casino did make the public policy argument as well as the BFOR argument. The Tribunal held that the BFOR argument failed on the Meiorin test because it would have been possible to accommodate Ms. Sequin. The Casino could have shifted men around from the other team to assist with the washroom cleaning duties, it could have hired another part time male attendant. Because step 3 of the Meiorin test (see last week’s column) failed, the standard was struck down and Ms. Sequin was awarded damages – which eventually after appeal and a new hearing on damages amounted to $6426 plus interest.
Whether it’s public decency, bona fide occupational requirements or just a group of guys getting together for beer and wings, the exclusion of women will almost always raise questions and create tension. There is a long history of women dressing as men to get to do the things men are doing. Looking at this in an interesting context, Willow Dawson and Susan Hughes have launched a graphic novel in which they spin historical yarns about women that dressed as men for fortune, fame and love. The title: No Girls Allowed!
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