The Limits of Sex-Segregated Marketing

Apr 23 2014, 10:57am CDT | by

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 follow-up testing conducted this past summer, we learned that at many stores employees’ behavior went far beyond gendered questions and default discrimination.  As Antonia described on Slate:

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 storewithout 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.

 
 

Don't miss ...

 

<a href="/latest_stories/all/all/30" rel="author">Forbes</a>
Forbes is among the most trusted resources for the world's business and investment leaders, providing them the uncompromising commentary, concise analysis, relevant tools and real-time reporting they need to succeed at work, profit from investing and have fun with the rewards of winning.

 

blog comments powered by Disqus

Latest stories

Miami to have 1,000 feet observation tower
Miami, Aug 28 (IANS/EFE) The voters of Miami in the US have approved a proposal by a real estate promoter to build a 1,000 feet high observation tower here.
 
 
Ebola epidemic to get worse: health official
London, Aug 28 (IANS) The Ebola outbreak in West Africa will get worse before it gets better, said a top public health official, the BBC reported Thursday.
 
 
12 Indian firms among Forbes Asia's Fabulous 50
Washington, Aug 28 (IANS) A dozen Indian firms figure in this year's Forbes Asia's Fabulous 50 list of the region's best big publicly traded companies with HDFC Bank making the list more times than any other company.
 
 
US reporter requests privacy after release
Washington, Aug 28 (IANS/EFE) The US journalist, who was freed this week by the miltants in Syria after two years in captivity, Wednesday thanked everyone for their efforts to secure his release and asked for privacy to be with his family.
 
 
 

Latest from the Network

Miami to have 1,000 feet observation tower
Miami, Aug 28 (IANS/EFE) The voters of Miami in the US have approved a proposal by a real estate promoter to build a 1,000 feet high observation tower here. Sixty-nine percent of the voters approved the plans of...
Read more on Business Balla
 
Ebola epidemic to get worse: health official
London, Aug 28 (IANS) The Ebola outbreak in West Africa will get worse before it gets better, said a top public health official, the BBC reported Thursday. Tom Frieden, director of the US-based Centres for Disease...
Read more on Business Balla
 
12 Indian firms among Forbes Asia's Fabulous 50
Washington, Aug 28 (IANS) A dozen Indian firms figure in this year's Forbes Asia's Fabulous 50 list of the region's best big publicly traded companies with HDFC Bank making the list more times than any other company....
Read more on Business Balla
 
First gay sailor of Chilean navy
London, Aug 28 (IANS) A sailor in Chile has become the first serving member of the Chilean armed forces to announce he is gay, the BBC reported Thursday. Mauricio Ruiz, 24, said his decision had "not been easy", but...
Read more on Politics Balla
 
Pakistani cleric ends talks with government
Islamabad, Aug 28 (IANS) Pakistan Awami Tehreek leader Tahir-ul-Qadri Thursday announced he was ending dialogue with the government as his demands were not accepted. Qadri, whose supporters have staged an anti-...
Read more on Politics Balla
 
Verona sign Brazilian midfielder Campanharo
Rio de Janeiro, Aug 28 (IANS) Hellas Verona have signed midfielder Gustavo Campanharo on a season-long loan from Brazilian club Bragantino. In a statement on their official website, the Italian Serie A outfit said the...
Read more on Sport Balla
 
Huntington-Whiteley loves making creative decision
London, Aug 28 (IANS) Supermodel Rosie Huntington-Whiteley has enjoyed indulging her creative tendencies since leaving Victoria's Secret. Huntington-Whiteley has revealed that working with British high street store...
Read more on Celebrity Balla
 
Holmes offers $1,000 reward for return of Suri's pet
Los Angeles, Aug 28 (IANS) Actress Katie Holmes has reportedly offered a $1000 reward for the safe return of her daughter's pet dog following its disappearance. Suri's new new Chihuahua, Honey, went missing Sunday....
Read more on Celebrity Balla
 
Shooting instructor killed as girl accidentally shot in US
Washington, Aug 28 (IANS) A shooting instructor was killed after a nine-year-old girld accidentally shot in the head at a gun range in the US, media reported Thursday. The deadly incident occurred Monday morning at a...
Read more on Politics Balla
 
Bella Thorne splits from Tristan Klier
Bella Thorne has split up with her boyfriend of more than two years, Tristan Klier. The 16-year-old actress confirmed that they recently decided to part ways after being asked about their relationship status on Twitter...
Read more on Celebrity Balla