Judge Sotomayor and gender stereotyping: a case you may have overlooked

By Bergstein & Ullrich, LLP
Jun 4, 2009

Judge Sonia Sotomayor's nomination to the Supreme Court has acquainted the rest of the world with the Second Circuit. A recent online piece about Judge Sotomayor's jurisprudence has acquainted me with a 2006 court ruling that many of us overlooked.

That article by Emily Bazelon is here. The case is Miller v. City of New York, 177 Fed. Appx. 195 (2d Cir. April 26, 2006). This decision reversed summary judgment in a gender discrimination claim. The reason many of us overlooked this decision was because it was an "unpublished" summary order. Most summary orders simply affirm the district court's ruling. This one reversed summary judgment, and it did so on an interesting legal issue that deserves more attention.

Miller sued under Title VII and Section 1983 after he was forced to resign because of a hostile work environment. He claimed the HWE was based on his gender because a supervisor "made his life at work miserable by claiming that Miller was not a 'real man' or a 'manly man' and by devising work assignments designed 'to toughen [Miller] up." In addition, plaintiff argued that his supervisor "made him perform 'active duty' work because he deviated from 'normal gender stereotypes' according to which men are expected to be muscular and macho."

In allowing this case to go to trial, the Court of Appeals (Sotomayor, Cabranes and Raggi) noted that gender stereotyping violates the civil rights laws under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Under that standard, Miller was the victim of stereotyping because management intended to "make a man" out of him and treated him differently because did not confirm to the macho stereotype. The Court of Appeals notes that Miller is "a small, non-muscular man with a disability." On the basis of this stereotype, Miller's supervisor gave him burdensome work assignments which seriously injured his health and forced him to resign. The hostile work environment claim goes to the trial, and summary judgment is reversed.

The Court of Appeals has discretion whether to publish its decisions or not. Published decisions go into the books that line the walls of law offices from coast to coast. Unpublished decisions are available on-line through Westlaw and Lexis. Since unpublished decisions are usually shorter than published decisions, they are also made available in print, though I doubt many lawyers are thumbing through unpublished rulings as they probably assume (correctly in most instances) that they simply resolve conventional legal issues without breaking ground and therefore deserve "summary" treatment. While unpublished decisons can be cited in legal briefs in limited instances, I think it's frowned upon to do so, and as the late Judge Broderick once wrote, "Use of such a citation may be as much a confession of weakness as a sign of strength," Chambers v. TRM Copy Centers Corp., 844 F.Supp. 183, 186 (S.D.N.Y. 1994), rev'd, 43 F.3d 29 (2d Cir. 1994).