Apr 23 2014, 10:57am CDT | by Forbes
In a recent Slate article, my daughter describes how in 2009 she and I unsuccessfully sued McDonald’s before the Connecticut Human Rights Commission for discriminating on the basis of sex in its sale of Happy Meal toys. When 11-year-old Antonia bought a Happy Meal at the counter, she wasn’t asked a question but was just given the “girl’s toy.” When I ordered a Happy Meal at the drive-thru, an employee would ask me “Is it for a boy or girl?” and gave me a different toy depending on how I answered the question. We alleged that both these behaviors violated Connecticut’s civil right statute, because the Happy Meal toy that McDonald’s provided was contingent on the customer’s sex.
The Commission’s response to our allegations was dismissive in more than just the legal sense:
It is not the business of the Commission to engage its resources for the purposes of titilation [sic] or sociological experiment. Complainants’ assertion that respondent violated complainants’ civil rights or denied complainants public accommodation or services on the basis of sex is absurd.
Putting aside the Commission’s misspelled suggestion that the civil rights allegations of an 11-year-old girl were made for the purposes of stimulating interest “especially in a sexual way,” the Commission’s dismissal raises important questions about the limits of civil rights law. Neither statute nor the case law give defendants a discrimination defense for only causing de minimus harm. But should merely default discrimination should be actionable? Giving Antonia a girl’s toy without asking her preference might not be a concern as long as Antonia can easily get the so-called boy’s toy just by asking. Indeed, the Commission’s opinion went on to emphasize that:
Respondent did not require complainant to accept the Happy Meal it offered complainant. All complainants had to do was exchange the Happy Meal toy that respondent gave to Anna Ayres-Brown for the one Anna wanted.
But the ability of companies to adopt gendered frames depends on context. Back in 2008 Antonia, in a letter to McDonald’s CEO, questioned whether it would be legal for an employer “to ask at a job interview whether someone wanted a man’s job or a woman’s job?”
The Connecticut Supreme Court in 1975 found that “sex-classification” in help-wanted advertising constitutes a per se violation of Connecticut law. The same Human Rights Commission that dismissed our claims concerning “boy’s toy’s and girl’s toy” had, over thirty years earlier, found that segregating help-wanted advertisements categories (Help Wanted Male, Help Wanted Female, and Help Wanted Male/Female) was discriminatory even though job-seekers remained free to apply to jobs listed in any category. In upholding the Commission’s order, the Connecticut Supreme Court reasoned:
It is part of a policy to eliminate sex-discrimination in its subtle as well as overt forms. The very act of classifying individuals by means of criteria irrelevant to the ultimate end sought to be accomplished operates in a discriminatory manner. . . . Symbolic discrimination as in the instant case is every bit as restrictive as naked exclusions. The distinction between ‘help wanted men’ and ‘help wanted men only, no women’ is nugatory. . . . The [Connecticut Fair Employment Practices Act] operates to eliminate not only the unjustified exclusion of people from occupations, but also the practices leading to and facilitating such discrimination.
Thus, notwithstanding the freedom of jobseekers to apply for either type of job, and the independent duty of employers to consider all jobseekers on a non-discriminatory basis, the mere framing of some jobs as “male” or “female” was held to be a restriction that offended the notion of fair employment. Default discrimination in employment is almost certainly illegal.
In other contexts, however, gendered-descriptions of products is ubiquitous and, as a matter of positive law, almost certainly legal. The Position Statement that McDonald’s submitted to the Human Rights Commission pointed out that that department stores, cosmetic companies and clothing retailers frequently segregate their offerings into “men’s” and “women’s” categories. Antonia and I take it as beyond argument that many of these practices fall outside the prohibition of public accommodation law.
But what principles should distinguish between contexts where sex-segregated marketing is illegal (e.g., employment advertisements) and contexts where sex-segregated marketing is legal (e.g., adult clothing advertisements). In a law review article, that Antonia and I have written (and is forthcoming at the William & Mary Journal of Women and the Law), we propose three context-distinguishing factors concerning:
(a) the strength and legitimacy of customer preferences for sex-segregated categories;
(b) the existence of less restrictive alternatives; and,
(c) the likelihood of cognizable harms.
We argue that these preference, alternative, and harm factors militate toward finding that sex-segregated Happy Meal marketing to be actionable discrimination. But we also acknowledge that reasonable people can differ, inter alia, about the degree to which gendered framing of toy choice produces a cognizable harm.
Thwarting Customer Choice
In a series of 30 visits, we sent boys and girls, ages 7-11, into 15 McDonald’s stores to independently order a Happy Meal at the counter. We found that 92.9 percent of the time, the store, without asking, simply gave each child the toy that McDonald’s had designated for that child’s gender—a Justice fashion toy for girls and a Power Rangers toy for boys. What’s worse was the trouble the children encountered when they immediately returned to the counter and asked to exchange their unopened toy: 42.8 percent of stores refused to exchange for an opposite-sex toy.
In the most egregious instance, a McDonald’s employee asked a girl, “Would you like the girl’s toy?” The girl responded, “No, could I have the boy’s toy?” When the girl opened the container a moment later, she learned that notwithstanding her explicit request, a McDonald’s employee had given her the girl’s toy. This girl went back to the counter with the unopened toy and requested, “May I have a boy’s toy, please?” The same McDonald’s employee replied, “There are only girl’s toys.” We then sent an adult male into the store who immediately was given a boy’s toy.
It’s probable that this employee lied to the girl because of her sex. To my mind, this is pretty clearly an example of actionable discrimination. The heartening news is that McDonald’s has taken our empiricism very seriously and in December sent Antonia a letter committing to real change.
Stepping back, I can still empathize with those who react to our efforts as trying to make a mountain at of a molehill. It might seem unlikely that a small-scale study of toy choice could illuminate an important civil rights issue. Then again, at least in one instance a small-scale social science study about toy choice did just that. In Brown vs. Board of Education, the Supreme Court cited to a doll study conducted by Kenneth and Mamie Clark which found that many black children preferred playing with white dolls to black dolls. While the focus of our toy study is markedly different, the Clark study reminds us that children’s choices of playthings can reflect and reproduce the residue of discrimination in society more generally.
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