Gender discrimination may have existed 50 years ago, but it's unlikely anybody paid much attention to it. After all, 50 years ago people believed that boys were supposed to look and act like boys and girls were supposed to look and act like girls. That's not necessarily so today, and denying someone a job, promotion, raise or other employment benefit because they don't fit the stereotype is gender discrimination. And it's illegal.

Even as long ago as 1989, when Ann Hopkins was denied partnership at Price Waterhouse for not walking, talking and dressing in a feminine way, the courts recognized that this was discrimination and the case became one of the early well-documented cases of sex discrimination based on gender stereotyping. Her superiors at Price Waterhouse told Hopkins that she should style her hair and wear makeup. Luckily, the courts disagreed.

Sex Discrimination

It’s an area than can easily overlap with other types of discrimination, explains Philip Miles, an attorney with Pennsylvania law firm McQuaide Blasko. In cases of discrimination based on appearance, it can sometimes be argued that the appearance characteristics in question constitute a gender stereotype.

The court, in the Hopkins case, held that Title VII forbids employers from discriminating against employees who don't match the stereotypes defined by their gender. It considered the case to be sex discrimination.

Hiring for Hooters

You'd wonder, then, about companies like Hooters, which have been reported to refuse to hire some candidates because they don’t match the company's “look” policies, which often are defined by their gender. Depending on the circumstances, these policies are not always seen to be discriminatory, however, employers tread carefully when making employment decisions based on these types of criteria.

Yes, Hooters can refuse to hire flat-chested women, but employers who use such criteria in hiring may still find themselves in hot water.  “You can make the argument that you’re applying a stereotype that women should be large-chested, they should have a certain amount of curves, weigh a certain amount, and that by applying this stereotype you’re discriminating on the bases of sex,” says Miles. “But generally speaking, can Hooters discriminate based on appearance? Yes, in most jurisdictions they can.”

Document Decisions

Your best bet for avoiding claims of discrimination is to think carefully about the reasoning behind any employment decisions. Ensure you have legitimate criteria that you're basing your hiring, promotion and pay decisions on. Most importantly, document the rationale for your decision and keep in on file in case you ever need to to justify a decision.

It's Not Mad Men

Train managers on what gender stereotyping is and encourage them to challenge their own thinking to avoid making this mistake. This isn't the 1950's, and the courts don't look kindly on those who have forgotten how far we've come since the days of Mad Men.