U.S. Supreme Court Rules Gender-Role Stereotyping Is Discriminatory

The U.S. Supreme Court affirmed that the prohibition in Title VII of the Civil Rights Act of 1964 against discrimination “because of” sex, or gender, extended to discrimination based on gender-role stereotypes. The decision has been interpreted by scholars and others as extendable to the rights of lesbians and gays as well because sexuality and sexual expression are kinds of gender-role stereotypes.

Date May 1, 1989

Also known as:Price Waterhouse v. Hopkins

Locale Washington, D.C.

Key Figures

• Ann B. Hopkins (b. 1943), original plaintiff in the case

Summary of Event

Ann B. Hopkins joined the accounting firm of Price Waterhouse in 1978. After a successful tenure as senior manager in its office of government services, Hopkins was nominated for partnership in 1982. Her nomination was placed on hold in 1983, however, and she was later informed that her candidacy would not be renewed in the next cycle. She resigned from the firm on January 17, 1984, and subsequently filed suit for discrimination.

The legal fight, known as Price Waterhouse v. Hopkins (1989), began with the first trial in federal district court in 1985 and was not concluded until a second appeal to the Circuit Court of Appeals in Washington, D.C., in 1990. All courts hearing this case, including the U.S. Supreme Court, agreed that Hopkins had been the victim of gender Stereotyping. Accounts described her as a brusque, aggressive woman, given at times to coarse language. The primary legal issue focused on whether these characteristics, which would have been tolerated or applauded in a man, were viewed negatively because Hopkins is a woman. The firm objected to the foul language not because it was foul but “because it’s a lady using foul language.” Hopkins was advised “to take ’a course at charm school’” and to “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry.”

Because Price Waterhouse’s rejection of Hopkins “stemmed from an impermissibly cabined view of proper behavior of women,” it had violated the prohibition in Title VII of the Civil Rights Act of 1964 against discrimination because of sex (or gender). The legal challenges to this finding related not to the extension of gender discrimination to include gender-role stereotypes but to more arcane legal details, such as the proper burdens of proof. If Price Waterhouse could show by a preponderance of the evidence that it would have made the same partnership decisions about Hopkins even absent the biased evaluations, she would not have been entitled to relief.

Finding that Price Waterhouse failed to make this showing, the federal courts ultimately ordered the firm to make Hopkins a partner, with retroactive benefits to the date of July 1, 1983, the date she would have become a partner had she not been discriminated against. In addition, she received $371,175 in back pay and interest, as well as attorney fees. This loophole for employers who discriminated was closed in 1991 by a congressional amendment to the act. Under the new law, a violation occurs whenever a prohibited consideration motivates an employment decision, regardless of the presence of permissible considerations.

Significance

The Price Waterhouse case is best known for its extension of “sex” (gender) in Title VII employment cases to include gender-role stereotypes. This outcome was surprisingly uncontroversial in the opinions. As the Supreme Court said, “in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

This holding has, however, been invoked in ways that Congress surely did not intend. On one hand, Title VII has repeatedly been held not to extend employment protections to gays and lesbians. It is for this reason that the Employment Non-Discrimination Act (ENDA) is considered to be a high priority by advocacy groups such as the Human Rights Campaign (HRC). On the other hand, requiring males to be sexually attracted to females, and vice versa, arguably represents another sex/gender stereotype, or assumption. Under that argument, gays and lesbians are already protected under Title VII through the cumulative holdings of Price Waterhouse and other Supreme Court opinions, such as Oncale v. Sundowner (1998). Decisions suggesting this possibility include the following:

Heller v. Columbia Edgewater Country Club (2002), which denied summary judgment where a lesbian employee had sued her employer. The employer had allegedly discharged the woman because she did not conform to her supervisor’s notions of how a woman ought to behave.

Nicolas v. Azteca Restaurant Enterprises, Inc. (2001), involving abuse of a male restaurant employee by his male workmates, including references to him as “she” and “her” and insults because he did not have sexual intercourse with a female friend. These actions were, for purposes of Title VII, “because of sex” because the abuse reflected a belief that the employee did not act as a man was supposed to act.

Rene v. MGM Grand Hotel, Inc. (2002), which held that whether a harasser was motivated by hostility toward an employee’s sexual orientation is irrelevant for purposes of a Title VII claim.

This split in approaches toward the advancements of civil rights for gays and lesbians is captured by the debate between Andrew Koppelman and Edward Stein. These legal scholars differ as to whether discrimination against gays and lesbians can be reduced to gender discrimination. Stein asserts that gay and lesbian rights are sui generis and that any attempt to equate antigay discrimination with a special case of gender discrimination will lose some of the unique harms gays and lesbians experience. Koppelman argues that gender discrimination arguments for gay and lesbian rights require the least legal innovation to achieve the ultimate goal of full equality for all citizens, and is thus the one most likely to persuade courts.

Bibliography

Hopkins, Ann Branigar. So Ordered: Making Partner the Hard Way. Amherst: University of Massachusetts Press, 1996.

Koppelman, Andrew. “Defending the Sex Discrimination Argument for Lesbian and Gay Rights: A Reply to Edward Stein.” UCLA Law Review 49 (2001): 519-538.

‗‗‗‗‗‗‗. “Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination.” New York University Law Review 69 (1994): 197-287.

MacKinnon, Catharine A., and Reva B. Siegal, eds. Directions in Sexual Harassment Law. New Haven, Conn.: Yale University Press, 2004.

Stein, Edward. “Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights.” UCLA Law Review 49 (2001): 471-518.