Amicus Curiae Brief — R.G. & G.R. Harris Funeral Homes, Inc., Petitioner v. Equal Employment Opportunity Commission, et al.

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