Amicus Curiae Brief — Gerald Lynn Bostock, Petitioner v. Clayton County, Georgia
Supreme Court briefJul 3, 2019
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Nos. 17-1618, 17-1623, 18-107
================================================================
In The
Supreme Court of the United States
-----------------------------------------------------------------GERALD LYNN BOSTOCK, Petitioner,
v.
CLAYTON COUNTY, GEORGIA, Respondent.
-----------------------------------------------------------------ALTITUDE EXPRESS, INC., et al., Petitioners,
v.
MELISSA ZARDA, et al., Respondents.
-----------------------------------------------------------------R.G. & G.R. HARRIS FUNERAL HOMES, INC., Petitioner,
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.,
Respondents.
-----------------------------------------------------------------On Writs of Certiorari to the
United States Courts of Appeals for the
Eleventh, Second, and Sixth Circuits
-----------------------------------------------------------------BRIEF OF WOMEN CEOS AND OTHER
C-SUITE EXECUTIVES AS AMICAE CURIAE
IN SUPPORT OF PETITIONER BOSTOCK AND
RESPONDENTS ZARDA, MOORE, AND STEPHENS
-----------------------------------------------------------------RICHARD M. SEGAL
PILLSBURY WINTHROP
SHAW PITTMAN LLP
501 West Broadway, Suite 1100
San Diego, CA 92101
CYNTHIA COOK ROBERTSON
ROBERT C. K. BOYD
PILLSBURY WINTHROP
SHAW PITTMAN LLP
1200 Seventeenth Street NW
Washington, DC 20036
SUZANNE B. GOLDBERG
Counsel of Record
SEXUALITY AND
GENDER LAW CLINIC
COLUMBIA LAW SCHOOL
435 West 116th Street
New York, NY 10027
(212) 854-0411
sgoldberg@columbia.edu
Counsel for Amicae Curiae
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ........................................
i
TABLE OF AUTHORITIES ...................................
iii
INTEREST OF AMICAE CURIAE ........................
1
SUMMARY OF ARGUMENT ................................
6
ARGUMENT ...........................................................
9
I.
Courts Have Repeatedly Identified—and
Rejected—Sex Stereotypes that Impede
Women’s Opportunities in the Workforce ....
9
A. Employers’ Use of Stereotypes About
Women’s “Looks,” Personal Style, and
Family Life Have Been Repeatedly
Found to be Discriminatory Under Price
Waterhouse ............................................. 10
1. “Looks” ..............................................
11
2. Aggressiveness and Leadership.......
13
3. Stereotypes About Sexual Interactions and Merit ................................. 17
4. Family Priorities and Dependency ....
19
B. Constitutional Jurisprudence Has Also
Long Rejected Reliance on Sex Stereotypes by Government Actors ................. 23
II. Sex Stereotypes Continue to Limit Women’s
Workplace Opportunities, as Extensive Research Demonstrates ................................... 27
A. Expectations About Who Women and
Men Are—and Who They Should Be—
Contribute to These Disparities ............ 28
ii
TABLE OF CONTENTS—Continued
Page
B. Stark Differences Continue in Earnings
and Leadership Roles for Women and
Men ........................................................ 33
CONCLUSION .......................................................
36
APPENDIX
Amicae Curiae—Additional Background and
Experience ........................................................ App. 1
iii
TABLE OF AUTHORITIES
Page
CASES
Back v. Hastings on Hudson Union Free Sch.
Dist., 365 F.3d 107 (2d Cir. 2004)...................... 20, 21
Burns v. Johnson, 829 F.3d 1 (1st Cir. 2016) ........ 15, 16
Chadwick v. WellPoint, 561 F.3d 38 (1st Cir.
2009) ............................................................ 19, 20, 21
Cleveland v. LaFleur, 414 U.S. 632 (1974) ........... 24, 25
Craig v. Boren, 429 U.S. 190 (1976) ............................25
Ellingsworth v. Hartford Fire Ins. Co., 247
F. Supp. 3d 546 (E.D. Pa. 2017)......................... 12, 13
Frontiero v. Richardson, 411 U.S. 677 (1973) .............26
Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976),
superseded on other grounds by statute in
Shaw v. Delta Air Lines, Inc., 463 U.S. 85
(1983) .......................................................................23
Greenbaum v. Handelsbanken, 67 F. Supp. 2d
228 (S.D.N.Y. 1999) ........................................... 14, 15
Hussain v. Fed. Express Corp., 657 F. App’x 591
(7th Cir. 2016)..........................................................13
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127
(1994) ................................................................. 25, 26
Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d
1033 (8th Cir. 2010) ........................................... 11, 12
Margolis v. Tektronix, Inc., 44 F. App’x 138 (9th
Cir. 2002) .................................................................14
iv
TABLE OF AUTHORITIES – Continued
Page
Miss. Univ. for Women v. Hogan, 458 U.S. 718
(1982) ................................................................. 25, 26
Nevada Dep’t of Human Res. v. Hibbs, 538 U.S.
721 (2003) ................................................................23
Parker v. Reema Consulting Servs., Inc., 915 F.3d
297 (4th Cir. 2019) ............................................. 17, 18
Phillips v. Martin Marietta Corp., 400 U.S. 542
(1971) ................................................................. 22, 23
Pivirotto v. Innovative Sys., Inc., 191 F.3d 344
(3d Cir. 1999) ...........................................................15
Price Waterhouse v. Hopkins, 490 U.S. 228
(1989) ............................................................... passim
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d
Cir. 2009) .................................................................13
Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227
(11th Cir. 2016)........................................................17
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)...............26
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46 (1st Cir. 2000) ......................................21
Sassaman v. Gamache, 566 F.3d 307 (2d Cir.
2009) ........................................................................18
Schlesinger v. Ballard, 419 U.S. 498 (1975) ...............26
Sessions v. Morales-Santana, 137 S. Ct. 1678
(2017) .......................................................................26
Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir.
1999) ........................................................................22
v
TABLE OF AUTHORITIES – Continued
Page
United States v. Virginia, 518 U.S. 515 (1996) ...........24
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ..... 25, 26
STATUTE
Title VII, 42 U.S.C. § 2000(e)(2) .......................... passim
REGULATIONS
U.S. Equal Emp. Opportunity Comm’n, Guidelines on Discrimination Because of Sex, 29
C.F.R. § 1604.1(a)(i)(ii) ................................................ 22
OTHER AUTHORITIES
Alice Eagly & Linda L. Carli, Women and the
Labyrinth of Leadership, Harv. Bus. Rev.
(Sept. 2007)........................................................ 29, 35
Amy J.C. Cuddy et al., When Professionals Become Mothers, Warmth Doesn’t Cut the Ice, 60
J. Soc. Issues 701 (2004)..........................................31
Annie Pancak, Glass Ceiling Slow to Break for
Female Attorneys in 2018, LAW360 (May 27,
2019).........................................................................35
Drew Desilver, Women Scarce at Top of U.S. Business—And in the Jobs That Lead There, PEW
RES. CTR. (Apr. 30, 2018) ........................................35
vi
TABLE OF AUTHORITIES – Continued
Page
Elizabeth H. Gorman & Julie A. Kmec, Hierarchical Rank and Women’s Organizational Mobility: Glass Ceilings in Corporate Law Firms,
114 Am. J. of Soc. 1428 (2009) ................................29
Hannah Riley Bowles, Linda Babcock, & Lei Lai,
Social Incentives for Gender Differences in the
Propensity to Initiate Negotiations: Sometimes
it Does Hurt to Ask, Org. Behav. & Hum. Decision Processes 84 (2007) .........................................30
INSTITUTE FOR WOMEN’S POL’Y RES., Pay Equity
and Discrimination (2019)......................................33
Joan C. Williams, Beyond the Glass Ceiling: The
Maternal Wall as a Barrier to Gender Equality, 26 T. Jefferson L. Rev. 1 (2003) .........................30
Joanna Barsh & Lereina Yee, MCKINSEY & CO.,
WOMEN IN THE WORKPLACE 5 (2018) ........................34
Madeline E. Heilman & Tyler G. Okimoto, Why
are Women Penalized for Success at Male
Tasks?: The Implied Communality Deficit, 92
J. of Applied Psychol. 81 (2007) ..............................31
Madeline E. Heilman, Description and Prescription: How Gender Stereotypes Prevent Women’s
Ascent Up the Organizational Ladder, 57 J.
Soc. Issues 657 (2001) .............................................28
Marie A. Chisholm-Burns et al., Women in Leadership and the Bewildering Glass Ceiling, 74
Am. J. of Health-Sys. Pharmacy 312 (2017) ..... 28, 29
vii
TABLE OF AUTHORITIES – Continued
Page
Merida L. Johns, Breaking the Glass Ceiling: Structural, Cultural, and Organizational Barriers
Preventing Women from Achieving Senior and
Executive Positions, 10 Persp. in Health Info.
Mgmt. 6 (Winter 2013) ............................................32
Quick Take: Women in Management, Catalyst
(Jul. 30, 2018) .................................................... 28, 35
Rhea E. Steinpreis, Katie A. Anders, & Dawn
Ritzke, The Impact of Gender on the Review of
Curricula Vitae of Job Applicants and Tenure
Candidates: A National Empirical Study, 41
Sex Roles 509 (1999) ...............................................32
Stephanie Bornstein, Unifying Antidiscrimination Law Through Stereotype Theory, 20 Lewis
& Clark L. Rev. 919 (2016) ......................................30
Stephen Benard et al., Cognitive Bias and the
Motherhood Penalty, 59 Hastings L.J. 1359
(2008) .......................................................................30
U.S. BUREAU OF LAB. AND STAT., Highlights of
Women’s Earnings in 2017 (Aug. 2018) ..................33
U.S. DEP’T OF LAB. WOMEN’S BUREAU, Data and
Statistics–Earnings .................................................34
U.S. Glass Ceiling Commission, A Solid Investment: Making Full Use of the Nation’s Human
Capital (Full Report of the Commission, 1995).........7
WORLD ECONOMIC FORUM, THE GLOBAL GENDER
GAP REPORT 9 (2018) ...............................................36
1
INTEREST OF AMICAE CURIAE1
The thirty women who join this brief are current and former chief executive officers and senior executives of companies and organizations across the
United States. They lead and have led Fortune 500
companies, mid-size businesses, small firms, and national and regional not-for-profit organizations, and
serve on Boards of Directors of public and private companies and charitable organizations.
Each of the amicae curiae has an extensive record
of accomplishments and contributions in business, notfor-profit arenas, or both. And each recognizes that
when employers make decisions based on sex stereotypes—that is, on expectations about how women, or
men, should look and act—they impermissibly limit
opportunities for all women, and all people, to advance
in the workplace, including for employees who are lesbian, gay, bisexual and transgender.
The women joining this brief are listed below, and
again with additional biographical information in the
attached Appendix. All corporate and other institutional affiliations are provided for identification purposes only.
1
No counsel for a party authored this brief in whole or in
part. No person other than amicae curiae or their counsel made a
monetary contribution intended to fund the preparation or submission of this brief. All parties have consented in writing to the
filing of this brief.
2
○
Jehan Agrama is the Chief Executive Officer
and President of Harmony Gold, a television
and film production and distribution company.
○
Amelia Alverson is the Executive Vice President for University Development and Alumni
Relations at Columbia University.
○
Bela Bajaria is the Vice President for International Originals at Netflix, the world’s leading subscription-based internet video streaming
service.
○
Lynda Clarizio is the former President of
US Media for Nielsen and the former President of AOL’s consolidated advertising businesses.
○
Susan Danziger is the founder and Chief
Executive Officer of Ziggeo, an award-winning
cloud-based video technology company.
○
Nancy Dubuc is the Chief Executive Officer
of Vice Media, a global digital media and
broadcasting company.
○
Samantha Ettus is the founder and Chief
Executive Officer of Park Place Payments, a
women-owned payment processing company.
○
Aria Finger is the Chief Executive Officer of
DoSomething.org, a global non-profit organization that motivates young people to make
positive change both online and offline through
campaigns that make an impact.
3
○
Vanessa Flaherty is the Executive Vice President of Management and a partner at Digital
Brand Architects, a management company
that represents social media-oriented personalities, creators, and publishers.
○
Ann Fudge is the former chairman and Chief
Executive Officer of Young & Rubicam Brands,
a global network of marketing communications companies.
○
Patricia Giggans is the Chief Executive Officer and Executive Director of Peace Over Violence, a non-profit organization dedicated to
building healthy relationships, families, and
communities.
○
Annie Goto is the President of AKGC General Construction Company and Vice President of KPL Select Property Management.
○
Loretta M. Hennessey founded and manages two private companies: S2S+ Advisors
LLC, providing financial advisory services to
early stage growth companies, and L Hennessey
Associates LLC, providing risk management
advisory services to financial institutions.
○
Lorri L. Jean is the Chief Executive Officer
of the Los Angeles LGBT Center, the world’s
largest LGBT organization of any kind.
○
Reesa Lake is the Executive Vice President
of Brand Partnerships and a Partner at Digital Brand Architects, a management company
that represents social media-oriented personalities, creators, and publishers.
4
○
Hannah Linkenhoker is the Senior Political Strategist at ICM Partners, one of the
world’s leading talent and literary agencies,
where she is also founder of ICM Politics.
○
Patricia Loret de Mola is the founder, Chairman, and Chief Executive Officer of HashLynx
Inc., a blockchain technology provider specializing in syndicated bank loans and other
credit products.
○
Nancy Lublin is the Chief Executive Officer
of Crisis Text Line, a nationwide texting service available to individuals experiencing a
personal crisis.
○
Tela Gallagher Mathias is the Chief Operations Officer at Phoenix Team, a consulting
firm specializing in mortgage technology and
process, and daughter of Ann Hopkins, the
plaintiff in Price Waterhouse v. Hopkins.
○
Judy McGrath is the former Chairman and
Chief Executive Officer of MTV Networks.
○
Susan McPherson is the founder and Chief
Executive Officer of McPherson Strategies,
a communications consultancy firm focused
on improving the social impact of companies
while strengthening their brand.
○
Michele Coleman Mayes is the Vice President, General Counsel and Secretary for the
New York Public Library.
5
○
Janet Carol Norton is a Board Member,
Partner, and Co-head of the Television Production Department at ICM Partners, a leading talent and literary agency.
○
Ramona M. Ortega is the founder and Chief
Executive Officer of My Money My Future
Inc., a financial-tech company that offers
plans and tools to help multicultural millennials to manage their money.
○
Raina Penchansky is the Chief Executive
Officer of Digital Brand Architects, a management company that represents social mediaoriented personalities, creators, and publishers.
○
Jeanne Pinder is the founder and Chief Executive Officer of ClearHealthCosts, a journalism
company dedicated to revealing healthcare
costs to consumers.
○
Shonda Rhimes is the founder of Shondaland, the pioneering storytelling company
that has produced numerous award-winning
television series and now produces content exclusively for Netflix.
○
Hilary Rosen is the former Chairman and
Chief Executive Officer of the Recording Industry Association of America and is currently a
partner at and owner of SKDKnickerbocker, a
public affairs and political consulting firm.
○
Sheryl K. Sandberg is the Chief Operating
Officer of Facebook.
6
○
Ty Stiklorius is the founder and Chief Executive Officer of Friends at Work, a music management company dedicated to supporting the
social justice initiatives advanced by individual artists.
------------------------------------------------------------------
SUMMARY OF ARGUMENT
Traditional ideas and expectations about how
women are expected to look and act may seem like a
thing of the past—and, in some workplaces, they are.
Yet, as the cases and research presented here show,
nearly two decades into the twenty-first century these
ideas and expectations remain powerful and continue
to operate as barriers to women’s workplace advancement and success, including women of all sexual orientations and those who are transgender. Among these
are that women:
○
will have a feminine “look” and style
○
will not be aggressive or tough
○
will not have strong leadership skills
○
might use sexual relationships to advance at
work
○
will be financially dependent on a spouse and
take care of the home, and
○
will have primary responsibility for childcare
in ways that preclude advancement at work.
7
Each of these views, and others like them, has the potential to limit women’s opportunities at work—sometimes at the hiring stage and, often, at the point of
promotion to leadership positions.
Put another way, these views contribute to what
is often called the “glass ceiling,” which the United
States Federal Glass Ceiling Commission defined as
“the unseen, yet unbreachable barrier that keeps minorities and women from rising to the upper rungs of
the corporate ladder, regardless of their qualifications or achievements.” U.S. Glass Ceiling Commission, A Solid Investment: Making Full Use of the
Nation’s Human Capital 4 (Full Report of the Commission, 1995). More than two decades later, the phrase
“glass ceiling” remains in use and, as data and case law
show, the barrier it identifies continues to limit
women’s achievements both in and outside of corporate
settings.
This Court’s ruling in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), recognized that employers’
reliance on sex stereotypes limits workplace opportunities for individuals who conform to traditional expectations about men and women—and for those who
do not. Further, it affirmed that Title VII’s prohibition
on sex discrimination reaches these situations. As the
Court explained, “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.” Id. at 251.
8
In the three decades since Price Waterhouse was
decided, numerous lower courts have applied its sexstereotyping analysis. These rulings, many of which
are discussed below, repeatedly identify the ways that
women, as well as some men, are denied promotions or
even lose their jobs based on employers’ expectations
of how women, and men, should look and act.
Extensive social science research discussed below
also affirms that sex stereotyping in workplaces remains a significant barrier to women’s opportunities to
advance and explains why the glass ceiling persists in
many sectors, particularly in senior management and
other leadership positions.
In short, Price Waterhouse recognized that employers sometimes do rely on sex stereotypes to make
workplace decisions. And it confirmed that this reliance can limit workplace opportunities for women and
men in defiance of Title VII for those who match views
of how women and men should look, act, and conduct
their personal and family lives, and those who do not.
As the cases and data discussed here show, even thirty
years after the Court analyzed Ann Hopkins’s claim
that she had been discriminated against for not fitting
Price Waterhouse’s view of how a female partner
should present herself, employment discrimination
based on sex stereotypes continues, including when
employers limit individuals’ opportunities because of
their sexual orientation or gender identity. Price Waterhouse’s analysis continues to be essential in identifying and addressing these forms of discrimination.
------------------------------------------------------------------
9
ARGUMENT
I.
Courts Have Repeatedly Identified—and Rejected—Sex Stereotypes that Impede Women’s
Opportunities in the Workforce
In a matter well known to this Court, Ann Hopkins
presented evidence that she was denied partnership at
Price Waterhouse—not because of her work ethic or
her management-consulting skills—but because some
of the partners thought she was “macho” and “overcompensated for being a woman.” Price Waterhouse, 490
U.S. at 235. Another partner who reviewed her for
promotion noted that he originally saw her as “tough
talking” and “somewhat masculine.” Id. And one partner advised, in an oft-cited comment, that she take “a
course at charm school.” Id.
Interestingly, not all who evaluated her saw Hopkins’s qualities in such a negative light. Other partners
in her office described Hopkins as having “strong character, independence and integrity.” Id. at 234. Her
clients agreed; one described Hopkins as “extremely
competent, intelligent” and “strong and forthright, very
productive, energetic and creative,” and another praised
her for “decisiveness, broadmindedness, and ‘intellectual clarity.’ ” Id. That is, the very qualities that some
partners found inappropriate or off-putting for a woman
in this position, others viewed as positive attributes for
anyone in leadership.
Perhaps most tellingly, a partner who originally
saw her as “somewhat masculine” explained that he
became a supporter because Hopkins “ha[d] matured”
10
into someone who was “authoritative, formidable, but
much more appealing.” Id. at 235. In other words, even
for someone who ultimately became a supporter, Hopkins’s “somewhat masculine” qualities were a barrier
to her success.
In finding that Price Waterhouse had violated Title VII, 42 U.S.C. § 2000(e)(2), by relying on these views
in deciding not to promote Hopkins, this Court gave effect to Congress’s “inten[t] to forbid employers to take
gender into account in making employment decisions.”
Id. at 239 (internal citations omitted). And although
Price Waterhouse was not the first time this Court recognized that sex-role expectations could stymie
women’s opportunities in the workplace, the Court’s
recognition of the concrete effects of sex stereotypes in
the Title VII context had special importance. It meant
that a legal remedy was available for individuals
around the country whose employers penalized them
for living or presenting themselves in a way that did
not match traditional views or stereotypes of how
women and men should be, either at work or in family
life.
A. Employers’ Use of Stereotypes About
Women’s “Looks,” Personal Style, and
Family Life Have Been Repeatedly
Found to be Discriminatory Under Price
Waterhouse
Since Price Waterhouse, numerous cases have recognized discrimination claims by women who faced
11
harassment or termination for looking and acting in
ways that are not traditionally feminine.
1. “Looks”
Women who do not have a stereotypically feminine
“look” are among those who face discriminatory limitations on their workplace opportunities. Cf. Price Waterhouse, 490 U.S. at 235 (citing record evidence of a
partner telling Ann Hopkins that if she wanted to advance at work, she should “walk more femininely, talk
more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry”).
The underlying facts in Lewis v. Heartland Inns
of Am., L.L.C., 591 F.3d 1033, 1036 (8th Cir. 2010),
are illustrative. Brenna Lewis was a successful, wellregarded hotel employee whose trajectory in the company was going well—until the company’s director of
operations saw her and concluded that Lewis was not
a “good fit” for the front-desk role, notwithstanding
that Lewis was reportedly well-liked by customers and
otherwise effective at her job. Id.
The concern was not about Lewis’s competence—
to the contrary, she was “valued by her direct supervisors,” had previously received two merit raises, and
had been supported for the promotion by her supervisor. Id. at 1035-36.
Instead, the operations director’s concern was that
“Lewis lacked the ‘Midwestern girl look.’ ” Id. at 1036.
This was not the first time that a female employee’s
12
appearance had affected her career opportunities at
Heartland Inns. Record evidence indicated that the
same operations director
was heard to boast about the appearance of
women staff members and had indicated that
Heartland staff should be “pretty,” a quality
she considered especially important for women
working at the front desk. [She] also had advised a hotel manager not to hire a particular
applicant because she was not pretty enough.
Id.
The Eighth Circuit reversed the grant of summary
judgment to the employer, holding that “[c]ompanies
may not base employment decisions for jobs such as
Lewis’ on sex stereotypes, just as Southwest Airlines
could not lawfully hire as flight attendants only young,
attractive, ‘charming’ women ‘dressed in high boots and
hot-pants[.]’ ” Id. at 1042 (citation omitted). Quoting
Price Waterhouse, the court added: “[W]e are beyond
the day when an employer could evaluate employees
by assuming or insisting that they matched the stereotype associated with their group[.]” Id. (quoting 490
U.S. at 251) (second alteration in original).
In another recent example, a federal district court
found that a woman who worked in customer service
for an insurance company stated a claim based on harassment and constructive discharge related to her nonfeminine appearance. Ellingsworth v. Hartford Fire
Ins. Co., 247 F. Supp. 3d 546, 549 (E.D. Pa. 2017). Ellingsworth’s complaint alleged that her supervisor,
13
also a woman, “ridicul[ed] her publicly for ‘dressing
like a dyke,’ and forc[ed] her to peel back her clothing
to show her coworkers her ‘lesbian tattoo.’ ” Id. at 553.
The court found that her complaint “clearly conveys
that Ms. Ellingsworth did not conform to [her supervisor’s] idea of how a woman should look, act, or dress.”
Id. at 554.
The court added: “The fact that Ms. Ellingsworth
is not gay simply reveals that [her supervisor] harbored such a strong prejudice and animus as to how
women should look, dress, and act, that [she] actually
mischaracterized another person’s sexual orientation
because of this prejudice.” Id. Invoking Price Waterhouse, the court observed that “[t]he alleged harassment and discrimination in this case is analogous
to the harassment recognized in other viable gender
stereotyping cases.” Id. See also id. at 551 (“Title VII’s
‘because of sex’ language prohibits discrimination based
upon employers’ subjectively held gender stereotypes.”) (citing Prowel v. Wise Bus. Forms, Inc., 579 F.3d
285, 286-87 (3d Cir. 2009) (citing Price Waterhouse)).
2. Aggressiveness and Leadership
Like this Court in Price Waterhouse, lower courts
have also found that employers have impermissibly
limited workplace opportunities for women perceived
as too aggressive. In Hussain v. Fed. Express Corp., 657
F. App’x 591, 594 (7th Cir. 2016), for example, the Seventh Circuit examined an employer’s reasons for denying a promotion to a longtime female employee. The
14
supervisor in the case had told this employee that she
was not promoted because she was “ ‘overly aggressive,’
‘too emotional,’ and showed too much facial expression.” Id. Against the backdrop of other decisions at the
company, the court found impermissible sex stereotypes might have motivated the promotion denial and
reversed the district court’s grant of summary judgment. Id. at 596.
The Ninth Circuit similarly determined that a
supervisor’s comments about the female software
engineer whom he laid off—that she was “pushy” and
“aggressive”—was “evidence of sex stereotyping and
discriminatory treatment.” Margolis v. Tektronix, Inc.,
44 F. App’x 138, 142 (9th Cir. 2002). These comments,
along with evidence of the supervisor’s treatment of
the plaintiff and other women in the business, led the
court to reverse the lower court’s grant of summary
judgment and allow the case to go to trial. Id.
And in an illustrative case from the banking sector, then-Chief Judge Sotomayor reviewed extensive
evidence regarding a woman who had repeatedly been
denied a promotion to vice president. Greenbaum v.
Handelsbanken, 67 F. Supp. 2d 228 (S.D.N.Y. 1999)
(Sotomayor, C.J., sitting by designation). The documents and testimony presented at trial showed that
Greenbaum, the plaintiff, had consistently met criteria
for promotion, yet was denied precisely because she
possessed the same trait—aggressiveness—that was
highly valued in her male colleagues: “[T]he word ‘aggressive’ was used by . . . officials to describe a form of
excellence when describing male traders . . . but was
15
viewed as a ground for disqualification when considering a woman like Greenbaum.” Id. at 253. See also id.
(“A reasonable juror could have inferred from this evidence that Greenbaum was denied the title of vice
president in part because [the bank] applied standards
for promotion that were inappropriately stereotypical
and gender-biased.”).
Indeed, as the Third Circuit recognized in a related context, the risk to advancement for women who
do not fit the employer’s view of how women should act
may persist even when the employer continues to hire
women. It would be impermissible, the court wrote, for
“[a]n employer [to] act on gender-based stereotypes, firing women it perceives as not feminine enough (or as
too feminine), or discharging women who are too aggressive while not doing the same to male employees,”
even if the employer replaced the fired employees with
other women. Pivirotto v. Innovative Sys., Inc., 191 F.3d
344, 355 (3d Cir. 1999) (citing Price Waterhouse).
More generally, numerous courts have also recognized that the stereotype that women are not strong
leaders has the effect of narrowing women’s opportunities for professional advancement and is an impermissible reason under Title VII for decision-making
about employees. The First Circuit confronted this issue in a case brought by a woman who spent ten years
as an “excellent employee” for the Transportation Security Administration working with the Federal Air
Marshals Service. Burns v. Johnson, 829 F.3d 1, 5 (1st
Cir. 2016).
16
The employee alleged that a new supervisor had
transferred her flight assignment responsibilities to
a group of male employees, despite her consistently
high performance evaluations and her development
of a best practice in her field of international flightscheduling. Id. The employee ultimately left and filed
suit. The First Circuit reversed an award of summary
judgment for the government, observing that “[t]he
idea that discrimination consists only of blatantly sexist acts and remarks was long ago rejected by the Supreme Court.” Id. at 13 (citing Price Waterhouse, 490
U.S. at 250-51). Applying the Price Waterhouse stereotyping framework, the court recognized that “the idea
that men are better suited than women for positions of
importance or leadership in the workplace, particularly where the task concerns national security or defense,” is an impermissible stereotype. Id. The court
then concluded that “[a] reasonable jury could find that
a sex-based stereotype was behind [the plaintiff ’s
supervisor’s] questioning of why ‘she’ was in that
role. . . .” It reached the same conclusion about the
supervisor’s “belief that ‘leadership’ should instead be
given to the group of male [supervisory marshals],”
finding that “these biased beliefs precipitated the decision to give Burns’ duties to a group of men.” Id. at 14.
Similarly, the Eleventh Circuit observed that sexstereotyping prompted a school district’s decision not
to renew the contract of the woman who was District
Superintendent, pointing to the school board’s repeated efforts to convince her to hire a male assistant
superintendent, along with comments that she should
17
have a “tough ‘hatchet man’ ” to assist her and that she
“needed a strong male to work under her to handle
problems, someone who could get tough.” Quigg v.
Thomas Cty. Sch. Dist., 814 F.3d 1227, 1241-42 (11th
Cir. 2016). As the court observed, “[t]hese statements
indicate that [the Board leadership] preferred men—
or, at the least, individuals with masculine characteristics—for positions within the office of the superintendent. As such, the statements are circumstantial
evidence of discrimination.” Id. (citing, inter alia, Price
Waterhouse).
3. Stereotypes About Sexual Interactions
and Merit
Courts have also applied Price Waterhouse to recognize that stereotypes about women’s use of sexual
relationships at work—as a strategy for obtaining promotions—can be a barrier to equal employment opportunity for women.
In a recent Fourth Circuit case, for example, the
plaintiff was a woman who had been highly successful
at work, having been promoted six times within 18
months, from a low-level clerk to assistant operations
manager. Yet just weeks after beginning her managerial role, “she learned that ‘certain male employees
were circulating within RCSI’ ‘an unfounded, sexuallyexplicit rumor about her’ that ‘falsely and maliciously
portrayed her as having [had] a sexual relationship’
with a higher-ranking manager . . . in order to
obtain her management position.” Parker v. Reema
18
Consulting Servs., Inc., 915 F.3d 297, 300 (4th Cir.
2019). She was eventually terminated based on what
she alleged were unfounded warnings. Id. at 301. The
Fourth Circuit, citing Price Waterhouse and related
lower-court rulings, observed that “[a]s alleged, the rumor was that Parker, a female subordinate, had sex
with her male superior to obtain promotion, implying
that Parker used her womanhood, rather than her
merit, to obtain from a man, so seduced, a promotion.”
Id. at 303. The court added:
She plausibly invokes a deeply rooted perception—one that unfortunately still persists—
that generally women, not men, use sex to
achieve success. And with this double standard, women, but not men, are susceptible to
being labelled as “sluts” or worse, prostitutes
selling their bodies for gain.
Id.
Stereotyping related to men’s sexual conduct at
work looks different from the stereotyping imposed on
women—but it has also been found to impermissibly
limit workplace opportunities under Price Waterhouse.
In Sassaman v. Gamache, 566 F.3d 307, 309 (2d Cir.
2009), for example, a male employee “allege[d] that
defendants pressured him to resign because of a sex
stereotype regarding the propensity of men to sexually
harass their female co-workers.” On appeal, Judge
Cabranes relied on Price Waterhouse to reverse a grant
of summary judgment to the employer, writing that the
supervisor’s comment to the employee—“you probably
did what [the complainant] said you did because you’re
19
male”—could reasonably be construed as an invidious
sex stereotype. Id. at 312.
4. Family Priorities and Dependency
Women also face impediments to equity and advancement at work based on stereotypes about the appropriate roles of women in their relationships and as
parents. In cases addressing these stereotypes, too,
Price Waterhouse has played a critical role. Relied on
regularly by lower courts, this Court’s ruling reinforces
that negative treatment in employment based on expectations about who women should be and how they
should act vis-à-vis their spouses and children violates
Title VII’s prohibition against sex discrimination.
In Chadwick v. WellPoint, for example, the employer had denied Laurie Chadwick a promotion to a
managerial position for which she was highly qualified.
561 F.3d 38, 41 (1st Cir. 2009) (noting Chadwick’s excellent reviews and her supervisor’s support for the
promotion). In explaining why Chadwick did not get
the promotion, her supervisor pointed to Chadwick’s
responsibility for parenting several children, among
other reasons. The court observed:
Given what we know about societal stereotypes regarding working women with children, we conclude that a jury could reasonably
determine that a sex-based stereotype was behind Miller’s explanation to Chadwick that,
“It was nothing you did or didn’t do. It was just
that you’re going to school, you have the kids
and you just have a lot on your plate right
20
now.” Particularly telling is Miller’s comment
that, “It was nothing you did or didn’t do.” After all, the essence of employment discrimination is penalizing a worker not for something
she did but for something she simply is.
Id. at 46-47 (emphasis added). Relying on Price Waterhouse and related cases, the First Circuit added: “In
the simplest terms, these cases stand for the proposition that unlawful sex discrimination occurs when an
employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed
childcare responsibilities. Id. at 44-45; see also at 47
(“A reasonable jury could infer from [the supervisor’s]
explanation that Chadwick wasn’t denied the promotion because of her work performance or her interview
performance but because [her supervisor] and others
assumed that as a woman with four young children,
Chadwick would not give her all to her job.”) (emphasis
in original); id. at 48 (“[W]e believe that a reasonable
jury could find that WellPoint would not have denied a
promotion to a similarly qualified man because he had
‘too much on his plate’ and would be ‘overwhelmed’ by
the new job, given ‘the kids’ and his schooling.”) (citation omitted).
Other courts have likewise relied on Price Waterhouse to find discrimination where women’s work options were limited by sex-based assumptions about
how they were (or should be) conducting their lives visà-vis spouses and children. In Back v. Hastings on
Hudson Union Free Sch. Dist., 365 F.3d 107, 113 (2d
21
Cir. 2004) (Calabresi, J.), for example, a school psychologist was denied tenure and terminated when she
finished her three-year probationary period. Despite
receiving excellent evaluations from the school district,
both before and after the three-month maternity leave
she took during her second year, the school district
fired her shortly before her tenure determination, stating that her organizational and interpersonal skills
were inadequate. Id. at 113-14. Using the lens of Price
Waterhouse, the Second Circuit saw sufficient evidence
of discrimination based on Back’s status as a mother
to allow the case to go to trial.
Just as “[i]t takes no special training to discern sex stereotyping in a description of an
aggressive female employee as requiring ‘a
course at charm school,’ ” Price Waterhouse,
490 U.S. at 256, so it takes no special training
to discern stereotyping in the view that a
woman cannot “be a good mother” and have a
job that requires long hours, or in the statement that a mother who received tenure
“would not show the same level of commitment [she] had shown because [she] had little
ones at home.”
Id. at 120.
Even cases that do not rely directly on Price Waterhouse incorporate its analysis of the ways in which
sex stereotyping impedes women’s employment opportunities. See, e.g., Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 50 (1st Cir. 2000) (finding
that an employer’s repeatedly expressed concerns
22
about whether a female employee could “handle simultaneously her job, child care, and marital responsibilities” including questions about “how her husband was
managing, considering she was not home to cook for
him,” provided evidence of impermissible sex stereotyping); Sheehan v. Donlen Corp., 173 F.3d 1039, 104445 (7th Cir. 1999) (observing that “[a] reasonable jury
might conclude that a supervisor’s statement to a
woman known to be pregnant that she was being fired
so that she could ‘spend more time at home with her
children’ reflected unlawful motivations because it invoked widely understood stereotypes the meaning of
which is hard to mistake.”).
Almost fifty years ago, this Court also invoked Title VII when it reviewed an employer policy that denied an employment opportunity to women with small
children while offering that same opportunity to similarly situated men. Phillips v. Martin Marietta Corp.,
400 U.S. 542, 544 (1971) (per curiam). The Court wrote
simply that “Section 703(a) of the Civil Rights Act of
1964 requires that persons of like qualifications be
given employment opportunities irrespective of their
sex.” Id. Concurring, Justice Marshall observed that
“[b]y adding the prohibition against job discrimination
based on sex to the 1964 Civil Rights Act Congress intended to prevent employers from refusing ‘to hire an
individual based on stereotyped characterizations of the
sexes.’ ” Id. at 545 (Marshall, J., concurring) (quoting
U.S. Equal Emp. Opportunity Comm’n, Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.1(a)(i)(ii))
(footnote and additional citations omitted). He added:
23
“Even characterizations of the proper domestic roles of
the sexes were not to serve as predicates for restricting
employment opportunity.” Id.
More recently, recognition of the limiting effect of
sex stereotypes on women’s work opportunities was at
the heart of this Court’s 2003 decision in Nevada Dep’t
of Human Res. v. Hibbs, 538 U.S. 721 (2003), upholding
the Family Medical Leave Act (FMLA). As the Court
wrote, “[t]he impact of the discrimination targeted by
the FMLA, which is based on mutually reinforcing stereotypes that only women are responsible for family
caregiving and that men lack domestic responsibilities,
is significant.” Id. at 722. Even further, this Court observed, these “stereotype-based beliefs about the allocation of family duties remained firmly rooted, and
employers’ reliance on them in establishing discriminatory leave policies remained widespread.” Id. at 730.
B. Constitutional Jurisprudence Has Also
Long Rejected Reliance on Sex Stereotypes by Government Actors
Sex discrimination jurisprudence under the U.S.
Constitution’s equal protection and due process guarantees has also long rejected policies that rest on
claims that all women (or men) have similar desires,
interests or physical capacities.2
2
Courts routinely look to cases examining Title VII and
other federal sex-discrimination laws when examining discrimination claims under the Equal Protection Clause and vice versa
because the same principles inform both. See, e.g., Gen. Elec. Co.
24
More than two decades ago, for example, this
Court held in United States v. Virginia, that the equal
protection guarantee precludes the government from
acting based on assumptions that all women or all men
are the same. 518 U.S. 515, 542 (1996) [hereinafter
“VMI”]. Thus, even assuming arguendo that “most
women would not choose VMI’s adversative method,”
the Court held that the government could not constitutionally deny the specialized training and related opportunities “to women who have the will and capacity.”
Id.
Two decades prior to VMI, the Court similarly rejected, on due process grounds, a school board rule that
barred women from teaching after they were several
months pregnant, recognizing that although the school
board had a legitimate interest in safety, the variation
among pregnant women rendered the rule impermissible. Cleveland v. LaFleur, 414 U.S. 632, 644 (1974):
“Even assuming, arguendo, that there are some women
who would be physically unable to work past the particular cutoff dates . . . , it is evident that there are
large numbers of teachers who are fully capable of
v. Gilbert, 429 U.S. 125, 133 (1976) superseded on other grounds
by statute in Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983)
(“While there is no necessary inference that Congress . . . intended to incorporate into Title VII the concepts of discrimination which have evolved from court decisions construing the
Equal Protection Clause . . . the similarities between the congressional language and some of those decisions surely indicate
that the latter are a useful starting point in interpreting the former.”).
25
continuing work for longer than the . . . regulations
will allow.” Id. at 645-46.
The Court has made clear that policies based on
such overbroad sex-based generalizations are impermissible even if there is some empirical basis for them.
See Weinberger v. Wiesenfeld, 420 U.S. 636, 645 (1975)
(rejecting sex-based rule while stating that “[o]bviously, the notion that men are more likely than women
to be the primary supporters of their spouses and children is not entirely without empirical support.”); cf.
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 139, n.11
(1994) (“We have made abundantly clear in past cases
that gender classifications that rest on impermissible
stereotypes violate the Equal Protection Clause, even
when some statistical support can be conjured up for
the generalization.”); Craig v. Boren, 429 U.S. 190, 201
(1976) (striking down sex-based classification where
evidence supporting the different experiences of young
women and men with alcohol was “not trivial in a statistical sense”).
As the Court has also recognized, the empirical
support for sex-based distinctions often reflects sexbased expectations and stereotypes that should not
be permitted to limit individuals’ opportunities based
on their sex. In Miss. Univ. for Women v. Hogan, for example, the Court observed that although most nurses
were women and that nursing had long been seen as
a women’s profession, excluding men from nursing
school conflicted with the equal protection guarantee:
“MUW’s admissions policy lends credibility to the old
view that women, not men, should become nurses.” 458
26
U.S. 718, 729-30 (1982). In striking down that policy at
the behest of a male nurse, the Court reiterated the
importance of avoiding “traditional, often inaccurate,
assumptions about the proper roles of men and
women” in carrying out constitutional review. Id. at
726.
Similarly, in Frontiero v. Richardson, the Court invalidated different military benefits rules for male and
female service members that rested on “the assumption . . . that female spouses of servicemen would normally be dependent upon their husbands, while male
spouses of servicewomen would not.” Schlesinger v.
Ballard, 419 U.S. 498, 507 (1975) (describing Frontiero,
411 U.S. 677 (1973)).
In Weinberger, the Court rejected “a virtually identical ‘archaic and overbroad’ generalization” embedded
in a social security death benefits rule: “The fact that
a man is working while there is a wife at home does
not mean that he would, or should be required to, continue to work if his wife dies.” 420 U.S. at 651-52; see
also Sessions v. Morales-Santana, 137 S. Ct. 1678, 1695
(2017) (rejecting as a basis for government action “the
long-held view that unwed fathers care little about, indeed are strangers to, their children” and holding that
“[l]ump characterization of that kind . . . no longer
passes equal protection inspection”). These kinds of
acts, which impose gender-based “stereotypical notions
. . . deprive[ ] persons of their individual dignity,” Roberts v. U.S. Jaycees, 468 U.S. 609, 625 (1984), and “ratify
and reinforce prejudicial views,” J.E.B., 511 U.S. at 140.
27
*
*
*
Against this backdrop, the lesson of Price Waterhouse from three decades ago remains salient and
essential today: “In the specific context of sex stereotyping, an employer who acts on the basis of a belief
that a woman cannot be aggressive, or that she must
not be, has acted on the basis of gender.” 490 U.S. at
250. As the lower courts have observed, the same is
true for employers’ decisions to restrict work opportunities based on beliefs that women, whatever their
sexual orientation and including those who are
transgender, should have a certain “look,” personal
style, leadership skills, or set of commitments to her
spouse and children. Each of these can impose profound limits on women’s opportunities to advance in
the workplace. As this Court recognized, this consequence—the limitation of employment based on traditional expectations about women, and men—is squarely
among the sex-based barriers that Congress sought to
eradicate in enacting Title VII.
II.
Sex Stereotypes Continue to Limit Women’s
Workplace Opportunities, as Extensive Research Demonstrates
“Glass ceiling” analyses continue to show strikingly low numbers of women in senior leadership roles
in business, law and other sectors. Although some
women have achieved at the highest levels, including
amicae here, data show that senior management roles
are still held primarily by men and that most women
28
earn substantially less than comparably educated
men.
A variety of stereotypes about women, discussed
supra and in numerous studies below, reinforce these
disparities. Even at the highest levels, expectations
about how women and men should look and act continue to limit opportunities for all women, regardless
of their sexual orientation and including women who
are transgender.
A. Expectations About Who Women and Men
Are—and Who They Should Be—Contribute to These Disparities
A common theme runs through many of the glassceiling analyses just described: the view that “women
‘take care,’ men ‘take charge.’ ” Quick Take: Women
in Management, Catalyst (Jul. 30, 2018), https://www.
catalyst.org/research/women-in-management/.
A related theme in the research is that “[t]ypically
‘male’ characteristics are commonly used as the default
or standard expectation by which women leaders are
hired, retained, or promoted, while typically ‘female’
characteristics are devalued.” Marie A. ChisholmBurns et al., Women in Leadership and the Bewildering
Glass Ceiling, 74 Am. J. of Health-Sys. Pharmacy 312,
314 (2017); see also Madeline E. Heilman, Description
and Prescription: How Gender Stereotypes Prevent
Women’s Ascent Up the Organizational Ladder, 57 J.
Soc. Issues 657, 657-74 (2001) (discussing numerous
studies).
29
Researchers describe “a set of widely shared conscious and unconscious mental associations about
women, men, and leaders,” observing that “[s]tudy after study has affirmed that people associate women
and men with different traits and link men with more
of the traits that connote leadership.” Alice Eagly &
Linda L. Carli, Women and the Labyrinth of Leadership, Harv. Bus. Rev. (Sept. 2007), https://hbr.org/2007/
09/women-and-the-labyrinth-of-leadership (last visited
July 1, 2019).
A study of corporate law firms similarly found that
“reliance on gender as a proxy for competence, use of
sex-labeled roles and gender stereotypes as heuristics
to assess candidate suitability for particular roles, and
in-group favoritism—lead decision makers to prefer
men over women in selection decisions at all levels.”
Elizabeth H. Gorman & Julie A. Kmec, Hierarchical
Rank and Women’s Organizational Mobility: Glass
Ceilings in Corporate Law Firms, 114 Am. J. of Soc.
1428, 1465 (2009).
Consistent with the issues identified in Price Waterhouse and other cases discussed supra, research
also shows that “[w]omen often face different expectations than men in the workplace, as well as increased
scrutiny for reasons other than ability (e.g., appearance), and are frequently evaluated more severely, particularly women in management and leadership roles.”
Chisolm-Burns, supra, at 314.
Women also face the dilemma of being perceived as too feminine (i.e., too ‘soft’) or not
30
feminine enough (i.e., too ‘tough’). [Scholars
have] noted that women tend to be ‘penalized
for displaying either too little or too much assertiveness, competitiveness, and independence.’ The warmer, less direct communication
approach typically used by women may undermine confidence in their capabilities, again
due to the appearance of being too soft.
Women thus face a double burden in their careers if they want to get ahead: not only doing
their jobs well but also overcoming stereotypes that may hamper perceptions of their
leadership potential.
Id. (citations omitted); see also Stephanie Bornstein,
Unifying Antidiscrimination Law Through Stereotype
Theory, 20 Lewis & Clark L. Rev. 919, 962 (2016) (“A
vast body of research has documented numerous patterns of stereotyping that operate to disadvantage women
at work.”); Hannah Riley Bowles, Linda Babcock, &
Lei Lai, Social Incentives for Gender Differences in the
Propensity to Initiate Negotiations: Sometimes it Does
Hurt to Ask, Org. Behav. & Hum. Decision Processes
84, 91 (2007) (finding that women experience a “large
penalty” not imposed on men in negotiations for increased compensation).
Many of these expectations about women’s workplace roles are intensified for women who are mothers,
with negative consequences for both earnings and workplace opportunities. See, e.g., Stephen Benard et al.,
Cognitive Bias and the Motherhood Penalty, 59 Hastings L.J. 1359 (2008) (discussing studies); see also
Joan C. Williams, Beyond the Glass Ceiling: The
31
Maternal Wall as a Barrier to Gender Equality, 26 T.
Jefferson L. Rev. 1 (2003) (citing numerous cases and
studies).
With respect to stereotypes, numerous studies
have also found that mothers are perceived to be less
competent in general than fathers or women without
children. Benard et al., supra, at 1364 (footnotes and
citations omitted). In addition,
[t]hey are . . . perceived to be less committed
to work, likely because cultural beliefs about
the ideal worker and the ideal mother conflict.
The ideal worker is expected to be unreservedly devoted to work, while the ideal mother
is expected to invest similarly intense levels
of devotion to her children. As a result motherhood is perceived as incompatible with high
levels of work effort.
Id. (footnotes and citations omitted); see also, e.g., Amy
J.C. Cuddy et al., When Professionals Become Mothers,
Warmth Doesn’t Cut the Ice, 60 J. Soc. Issues 701, 709
(2004) (showing data that working mothers were perceived as warmer but less competent than working fathers or women who were not parents).
More broadly, “negative reactions to women who
are successful in traditionally male domains are a
consequence of the perception that these women have
violated stereotype-based ‘oughts’ about how women
should behave and the resulting assumption that they
are deficient in feminine attributes.” Madeline E. Heilman & Tyler G. Okimoto, Why are Women Penalized for
32
Success at Male Tasks?: The Implied Communality Deficit, 92 J. of Applied Psychol. 81, 81 (2007) (discussing
research); see also Rhea E. Steinpreis, Katie A. Anders,
& Dawn Ritzke, The Impact of Gender on the Review of
Curricula Vitae of Job Applicants and Tenure Candidates: A National Empirical Study, 41 Sex Roles 509,
514-15, 522 (1999) (discussing a study of academic scientists showing that hiring and tenure committee
members responded much more favorably to a resume
with a man’s name on top than to the identical resume
with a woman’s name).
Reflecting these themes, another scholar described
“a double bind in which women can be penalized for
displaying either too little or too much assertiveness,
competitiveness, and independence” and observing
that “if a woman exhibits too much assertiveness,
which is contradictory to the stereotype, her influence
and likability may be lowered.” Merida L. Johns, Breaking the Glass Ceiling: Structural, Cultural, and Organizational Barriers Preventing Women from Achieving
Senior and Executive Positions, 10 Persp. in Health
Info. Mgmt. 6 (Winter 2013) (footnotes and citations
omitted).
*
*
*
Against this backdrop, amicae curiae have identified no research suggesting that it would be possible to
separate the sex stereotypes that have a limiting effect
on heterosexual women from those that negatively
affect lesbian and bisexual women. Nor have amicae
found research showing that views about how women
33
“should” present themselves, as discussed above, are
different in kind when applied to women who are
transgender.
To the contrary, the host of research just described
reinforces what this Court and numerous lower courts
have recognized for decades, which is that expectations
about women’s appearance, leadership qualities, and
parenting responsibilities can function as barriers
to women’s advancement in the workplace—both for
women who conform to those expectations and those
who do not.
B. Stark Differences Continue in Earnings
and Leadership Roles for Women and
Men
In light of these well-documented workplace dynamics, it is perhaps not surprising that pay disparities between men and women in the United States
have changed little during the past 15 years. See U.S.
BUREAU OF LAB. AND STAT., Highlights of Women’s
Earnings in 2017 (Aug. 2018), https://www.bls.gov/opub/
reports/womens-earnings/2017/pdf/home.pdf. Federal
data show that “[s]ince 2004, the women’s-to-men’s
earnings ratio has remained in the 80 to 83 percent
range.” Id. at 1 (also showing disparities based on sex
and race); see also INSTITUTE FOR WOMEN’S POL’Y RES.,
Pay Equity and Discrimination (2019), https://iwpr.org/
issue/employment-education-economic-changepay-equitydiscrimination/ (observing that if the pace of change
remains the same, “it will take . . . until 2059—for
34
women to finally reach pay parity” and that “[f ]or
women of color, the rate of change is even slower”).
Notably, this differential is even greater for women
with higher education. According to the U.S. Department of Labor, in 2018 women working full-time with
advanced degrees earned 25.4% less than their male
counterparts. U.S. DEP’T OF LAB. WOMEN’S BUREAU,
Data and Statistics-Earnings, https://www.dol.gov/wb/
stats/earnings.htm#earningsot (last visited July 1,
2019) (also showing a 24.8% wage gap for women with
bachelor’s degrees).
Data on differences in leadership roles for men
and women are also striking, even if familiar to those
in corporate or large law-firm landscapes. In the corporate domain, one major recent study concludes that
“[w]omen are dramatically outnumbered in senior
leadership. Only about 1 in 5 C-suite leaders is a
woman, and only 1 in 25 is a woman of color.” Joanna
Barsh & Lereina Yee, MCKINSEY & CO., WOMEN IN
THE WORKPLACE 5 (2018), available at https://women
intheworkplace.com/ (drawing conclusions based on
four years of data from 462 companies with almost
20 million employees, including 279 companies in the
2018 study); see also id. (describing ways in which
views about women limit the opportunities of lesbian
women).
Another report, from the Pew Research Center,
found that “women held only about 10% of the top executive positions (defined as chief executive officers,
chief financial officers and the next three highest paid
35
executives) at U.S. companies in 2016-17,” based on
federal securities filings by all companies in the Standard & Poor’s Composite 1500 stock index. Drew Desilver,
Women Scarce at Top of U.S. Business—And in the Jobs
That Lead There, PEW RES. CTR. (Apr. 30, 2018), https://
www.pewresearch.org/fact-tank/2018/04/30/womenscarce-at-top-of-u-s-business-and-in-the-jobs-that-leadthere/. The same study found that “at the very top of
the corporate ladder, just 5.1% of chief executives of
S&P 1500 companies were women.” Id. See also Eagly
& Carli, supra (“Despite years of progress by women in
the workforce (they now occupy more than 40% of all
managerial positions in the United States), within the
C-suite they remain as rare as hens’ teeth.”).
The law firm environment is similar, and little has
changed since 2013. Annie Pancak, Glass Ceiling Slow
to Break for Female Attorneys in 2018, LAW360 (May
27, 2019), https://www.law360.com/articles/1162800/glassceiling-slow-to-break-for-female-attys-in-2018. In a 2018
survey of more than 300 law firms in the United States,
including most large firms, nearly 80% of equity partners are men, even while women make up almost half
of associates. Id. Among women of color, these percentages are even smaller—less than 9% of associates and
3% of equity partners. Id.
Global data echo these disparities, with women
holding “under a quarter (24%) of senior roles across
the world in 2018, a decrease from 25% in 2017.” Quick
Take: Women in Management, supra. Among management positions more generally, the World Economic
Forum has observed that “just about 34% of global
36
managers are women,” a much lower percentage than
women in the workforce more generally. WORLD ECONOMIC FORUM, THE GLOBAL GENDER GAP REPORT 9 (2018),
http://www3.weforum.org/docs/WEF_GGGR_2018.pdf.
See also id. (“[T]he presence of women in management
roles is today one of the main barriers to overcome,
both in the public and private sector, in order to
achieve full economic gender parity.”).
------------------------------------------------------------------
CONCLUSION
As extensive case law and research show, employers sometimes rely on sex stereotypes to make workplace decisions. These stereotypes—about how women
and men “should” present themselves, interact with
others and conduct their family life—help explain why
the number of women in leadership positions continues to lag behind the number of men, and why women
earn less than men, on average, throughout the United
States.
Nothing in Title VII suggests that employers
may rely on any of these sex stereotypes when making
decisions about an individual’s employment opportunities, including for women who are lesbian, bisexual, or
transgender. Put simply, there are no “free passes” for
employers that might seek to impose sex stereotypes
as a way of restricting opportunities for some employees but not others. To the contrary, as this Court
has recognized, by prohibiting sex discrimination in
employment, Congress intended to get at the full
37
spectrum of sex stereotypes an employer might use to
restrict workplace advancement—both for women and
men who conform to those stereotypes and those who
do not.
Respectfully submitted,
RICHARD M. SEGAL
PILLSBURY WINTHROP
SHAW PITTMAN LLP
501 West Broadway, Suite 1100
San Diego, CA 92101
(619) 544-3203
richard.segal@pillsburylaw.com
CYNTHIA COOK ROBERTSON
ROBERT C. K. BOYD
PILLSBURY WINTHROP
SHAW PITTMAN LLP
1200 Seventeenth Street NW
Washington, DC 20036
(202) 663-8000
cynthia.robertson@pillsburylaw.com
robert.boyd@pillsburylaw.com
SUZANNE B. GOLDBERG
Counsel of Record
SEXUALITY AND
GENDER LAW CLINIC
COLUMBIA LAW SCHOOL
435 West 116th Street
New York, NY 10027
(212) 854-0411
sgoldberg@columbia.edu
Counsel for Amicae Curiae
July 3, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.