"All people are not heterosexual. Heterosexuality is not superior and is not the norm by which all other sexual orientation and gender identities are measured." --Burnaby, B.C. Schools Draft Policy #5.45

Sunday, May 29, 2011

Price Waterhouse v. Hopkins

Perhaps the most famous case in American transgender law--the US Supreme Court's sex stereotyping decision, Price Waterhouse v. Hopkins (in which, ironically, there are no transgender characters).

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Quotes from Ann Hopkins:

"Discrimination cases tend to get very personal, very fast."

"I offer advice reluctantly. That said, I suggested to most of the potential [discrimination case] litigants that they ask themselves: If I win, will the prize be worth the price? At what cost is litigation worth it? Is one more grade or step in the civil service hierarchy worth a year of life struggling through internal administrative processes and the EEOC? What’s the human cost in time lost to self, family, and career? Considered in the greater context of life, is this the hill to die on?"

(This quote neatly sums up the heavy personal cost of fighting discrimination in the courts and administrative tribunals.  For transgender people, however, I think the answer would be "yes", because our battle isn't for one higher civil service grade.  It's to be able to have a career at all--and a family, and a self.)

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Price Waterhouse v. Hopkins, 490 US 228 (1989).


Hopkins was female.  Hopkins was a very successful manager at a large Accounting Firm.  For example, Hopkins got the State Department as a client for  the Accounting Firm--a $25 million dollar contract.  Clients, including people from the State Department, praised Hopkins' work, professionalism, and intellectual ability.  However, Hopkins could also be "hard to work with", "brusque", and "abrasive", in particular to staff.  The firm partners had told Hopkins that she needed to improve her interpersonal skills.  

Every year, managers in the firm from around the country would be nominated and evaluated for partnership.  One year, Hopkins was nominated, along with 88 other people from other offices.  None had a record of securing big contracts like Hopkins did. 

There was a process to follow: Partners in a local office would nominate a candidate.  All partners in Accounting Firm could then submit comments on the candidate.  If they knew the candidate well, they could submit their comments on a "long form".  If not, they could submit a "short form".  An "Admissions Committee" would evaluate the comments and then make a recommendation to a "Policy Board".  The Policy Board would then accept, deny, or put the candidacy on hold.

There was a lot of evidence that many partners weren't so much bothered by Hopkins' aggressive personality as by the fact that she was both aggressive and female.  Partners said she was "macho", that she "overcompensated for being a woman", and that she "needed to take a course at charm school".  One partner disliked that Hopkins swore, "because it's a lady using foul language".  Another partner said that Hopkins had "matured from a tough-talking somewhat masculine hard-nosed manager to an authoritative, formidable, but much more appealing lady partner candidate".  Another told Hopkins directly that if she wanted to make partner, she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry".

Hopkins' candidacy was "placed on hold".  The following year, her candidacy was not re-submitted.  Hopkins brought a lawsuit against Accounting Firm under Title VII of the Civil Rights Act of 1964, claiming discrimination on the basis of sex.  The District Court ruled in favor of Hopkins, holding that if Accounting Firm showed by "clear and convincing" evidence that it would have made the same decision regarding Hopkins' candidacy, in the absence of discriminatory motives, Hopkins would not be entitled to relief.  Appeals Court affirmed, upholding the clear and convincing standard.  The Supreme Court granted cert.    

Plurality Opinion: Affirmed in part; reversed in part.  Reversed on standard of proof required for employers to show they would have made the same employment decision in the absence of discriminatory motives.

Title VII of the Civil Rights Act of 1964 bars employment decisions (hiring, firing, compensation, etc.) made because of sex, race, religion, and national origin.

Accounting Firm says that in a sex discrimination case under Title VII, the plaintiff has to show that there was discrimination, and has to show that the employer would have made a different decision if the discrimination had not been present.  Hopkins argues that an employer violates Title VII whenever discrimination is present in the employment decision, even if it doesn't play a decisive role.

Accounting Firm's argument is that the statute requires plaintiff to show "but for" causation--but for the discrimination, the employment decision would have been different. That's not correct.  Title VII was meant to eliminate discrimination both when discrimination was the decisive cause and when it was part of a mix of legitimate and illegitimate causes.  Gender may not be taken into account at all when making employment decisions (except where it's a "bona fide occupational requirement").

In order to preserve employers' freedom to evaluate employees, however, the employer has an affirmative defense.  If the employer can show that it would still have made the same decision for other reasons, regardless of having also inappropriately taken gender into account, then the employer will not be liable.

Other cases are in line with this decision.  For example, in Dothard v. Rawlinson, 433 US 321 (1977), the Court "assumed" that it was the employer that must show why gender was a bona fide occupational requirement.  In a decision interpreting the Equal Pay Act (which allows different wages for employees when the pay difference is not based on sex) the Court held that it was the employer who had to show that the wage difference was not connected to their gender.

In a parallel interpretation of the National Labor Relations Act (NLRB v. Transportation Management Corp., 462 U.S. 393, 400 (1983)), the Court said: "The employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute.  It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing."

Sex discrimination under Title VII isn't the mere fact of being male or female.  It also includes stereotypes about one's sex:                                                                          

"We are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group, for 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.  An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.  Title VII lifts women out of this bind."

Comments at work that show sex stereotyping aren't sufficient for relief.  Plaintiff has to show that the stereotyping was part of the decision-making by the employer.  Here, Hopkins did so--Accounting Firm asked partners to submit comments on forms as part of its process for accepting new partners, and some of the comments were based on sex stereotypes.

The standard of proof for the employer's defense, that it would have made the same decision anyway, should not be "clear and convincing".  It should be "preponderance of the evidence" (greater than fifty percent).  Usually in civil litigation, like in Title VII cases, where money damages or other conventional relief is sought, standard of proof is preponderance of the evidence.  Clear and convincing standard is more appropriate for circumstances in which "coercive action" is sought, such as termination of parental rights, involuntary commitment, deportation or denaturalization.

This case can be found on Google here.

Ann Hopkins' very well-written & fascinating personal account, here.

And a nice summary of the case, from Time magazine, here.

[I will include the concurring opinions soon.] 

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