Last week, the co-founder of a Minnesota based organization called “Gender Justice” accused the Iowa football team of “pink shaming” its opponents and engaging in what she calls “cognitive bias.” Jill Gaulder, who also happens to be a former UI professor, claims the infamous pink visitor’s locker room at Kinnick Stadium is “sexist”, “homophobic”, and may subject the University to legal liability under Title IX of the federal Civil Rights laws.
The pink locker room was the brainchild of legendary former coach Hayden Fry. When he took over the perennially losing program in 1979, Fry was looking for every edge available. He had once read that pink had a calming effect on people, and thought the pink locker room would calm the Hawkeye’s opponents. But, Gaulder claims Coach Fry also believed many people associate pink with girls’ bedrooms, and consider pink to be a “sissy” color. Gaulder contends the pink walls send the message that it’s “bad to be a girl”, because femininity is supposedly associated with weakness.
It’s easy to laugh off Ms. Gaulder’s claims as a publicity stunt. Most people understand the pink locker room is a joke designed to get attention and distract the opposing team. The anti-discrimination laws don’t protect people from being offended by a subliminal message associated with certain colors (assuming there was such a message here, which is debatable). The law provides a remedy only when a person is subject to some concrete adverse action, or is denied a right or benefit because of gender (or other protected characteristic). Who are the victims here? The Michigan football team? Ohio State? Perhaps Minnesota, which has won only 3 games out of 16 played in Iowa City during the pink locker room era.
But, Ms. Gaulder cannot be so easily dismissed to the extent she is trying to advance the proposition that employment decisions should not be based upon stereotypes, whether gender or otherwise. Many courts, including our own Eighth Circuit, have recognized that an employer is liable under Title VII not just for employment decisions based upon gender, but also based upon stereotypes about how an employee of a particular gender should act. To the extent that a person’s language, dress, or color choices impact employment decisions, employers are well advised to proceed with caution so as to avoid decision making based upon sterotypes.