Can the Black Widow sue Disney for creating a hostile work environment? And no – I’m not asking because of the movie itself (or the offensive remarks made her co-stars), but the apparently deliberate decision to exclude the Black Widow from the merchandising.

It’s an issue that’s all over Twitter right now (check out #wheresnatasha and #wheresblackwidow): Black Widow is conspicuously missing from the Avengers toys, tee shirts, and other goodies.  If you search for Avengers on, for example, you wouldn’t even know that Black Widow was in the movie (which has caused me to rethink my devotion to all things Target).  The Hulk himself even spoke up about this problem on Twitter:


And she isn’t being excluded because she’s not one of the leads.  Both the plot and the promotions show that she is on equal footing with the guys (although, as we learned in the Sony hack, her salary may be lower because of her sex).  So any argument that the Black Widow isn’t central to the plot of the Avengers movies is both incorrect and just plain offensive. And yet, somehow, she’s excluded from the toy team. And what’s the only difference? She’s not a guy.

And now we learn that it’s not just exclusion but actual outright replacement. The powers that be at Disney and the toy makers have decided to replace Black Widow on her own helicopter with two of the male characters instead.  This goes beyond offensive to outrageous. To actually have your history wiped out and replaced is something that has happened to women for centuries but I thought wouldn’t happen in 2015.

But this is why we have labor laws: to prevent these kinds of problems in the real world, because as the outrage on Twitter shows, exclusion hurts.  So women (and other protected classes) can bring hostile work environment claims if they haven been excluded, ostracized, or isolated based on their sex (or other protected status, such as race or age).  See, e.g., Waldo v. Consumers Energy Co., 726 F.3d 802, 818 (6th Cir. 2013) (recognizing that ignoring and ostracizing a coworker, if based on “gender-based animus,” can give rise to a hostile work environment claim).

Why is it happening right now? The conventional wisdom is that Disney doesn’t think they need to sell to girls because girls buy their princess stuff. And, presumably, because they think girls aren’t into “geek” culture. That second point is demonstrably wrong. And the first point is short-sighted. My daughter, for example, loved Disney princesses when she was younger but lost complete interest in them by the age of five. Now, at eight, she loves the Black Widow and was so happy to see the Scarlet Witch (spoiler!) join the Avengers. She even said, right in the middle of the movie, “now there are two Avengers like me!” As soon as the movie was over she asked for Black Widow and Scarlet Witch action figures to fight with and would gladly wear a tee shirt with either woman on it. My eleven year old son, on the other hand, enjoyed the movie but had no interest in getting any Avengers-branded merchandise.

So Disney’s sexism is not only hurting women of all ages (especially little girls like my daughter), but they’re also losing out on potential customers.  The lack of women in action roles on screen, and in toys offscreen, is something I’ve noticed for many years now.  Unfortunately, my daughter has now noticed it as well.  Fortunately, others have seen this problem too and are speaking up.  Hopefully, Disney and Marvel will catch on soon and stop with this (mindless? blatent?) sexism.  Otherwise, I’d love to give the Black Widow her day in court against her employer!

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Jessica has been litigating business and IP disputes for the past decade. During that time, she’s dealt with clients, lawyers, and judges who have varying degrees of appreciation for the challenges of managing discovery in an electronic age. Until the fall of 2011, she was an attorney at a large, Texas-based law firm, where she represented clients in state and federal court nationwide. That fall, she made a long-desired move back to the Midwest and is now a partner at Hansen Reynolds Dickinson Crueger LLC, a litigation boutique based in Milwaukee, Wisconsin, where she continues to litigate while also consulting with business and law firms on e-discovery issues (before, during, and after litigation arises).