Amicus Curiae Brief — Price Waterhouse v. Hopkins

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No. 87-1167

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IN THE JUN 17 1988

Supreme Court of the United aan

OCTOBER TERM, 1987 CLERK OL, JR,

PRICE WATERHOUSE,

Petitioner,

—_V.—

ANN B. HOPKINS,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE NOW LEGAL DEFENSE AND EDUCATION

FUND, AMERICAN CIVIL LIBERTIES UNION, WOMEN’S LEGAL DEFENSE

FUND, AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, EMPLOY-

MENT LAW CENTER, EQUAL RIGHTS ADVOCATES, INC., GREATER

WASHINGTON AREA CHAPTER, WOMEN LAWYERS DIVISION, NA-

TIONAL BAR ASSOCIATION, INSTITUTE FOR RESEARCH ON WOMEN’S

HEALTH, NADINE TAUB, NATIONAL COALITION FOR WOMEN’S MEN-

TAL HEALTH, NATIONAL CONFERENCE OF WOMEN’S BAR ASSOCIA-

TIONS, NATIONAL ORGANIZATION FOR WOMEN, NATIONAL WOMEN’S

LAW CENTER, NORTHWEST WOMEN’S LAW CENTER, ORGANIZATION

OF PAN ASIAN-AMERICAN WOMEN, SAN FRANCISCO WOMEN LAWYERS

ALLIANCE, WOMEN EMPLOYED, WOMEN’S BAR ASSOCIATION OF

MASSACHUSETTS, WOMEN’S BAR ASSOCIATION OF THE DISTRICT

OF COLUMBIA, WOMEN’S EQUITY ACTION LEAGUE

IN SUPPORT OF RESPONDENT

DONNA R. LENHOFF SARAH E. BURNS*

CLAUDIA A. WITHERS LYNN HECHT SCHAFRAN

Women’s Legal Defense Fund NOW Legal Defense

2000 P Street, NW—Suite 400 and Education Fund

Washington, D.C. 20036 99 Hudson Street—12th Floor

(202) 887-0364 (212) 925-6635 and

1333 H Street, NW—11th Floor

Washington, D.C. 20005

(202) 682-0940

JOAN E. BERTIN

JOHN A. POWELI

American Civil Liberties

Union Foundation

132 West 43 Street

New York, New York 10036

Date: June 18, 1988 (212) 944-9800

*Counsel of Record Counsel for Amici Curiae

Of Counsel

ee 0

TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS ...--eee-s icadwee a

TABLE OF AUTHORITIES ...-+eeeeeees - iii

INTEREST OF AMICI CURIAE ...--++++-- 1

SUMMARY OF ARGUMENT ...--+++-s seeee Oo

INTRODUCTION ..cceeeeeecesereeeees 5

I. The Record is Replete with

Evidence of Intentional Sex

Discrimination, Both Direct

and Circumstantial ........-. cx

II. The Direct Evidence of Sex

Discrimination Here Establishes

Liability Under Title VII

and Requires that the Burden

Shift to Defendant to Show

that No Relief Should be

Gramtee cccoccecseseeceeescccccs 36

A. With Direct Evidence of

Intentional Sex Discrim-

ination a Title VII

Violation is Shown ...... 38

B. The Burden-shifting

Formulation of Burdine

and McDonnell Douglas

is Inappropriate Here ... 46

C. Where the Plaintiff

has Proved that the

Employment Decision

Was Tainted by Discrim-

ination, The Purposes

of Title VII Can Be

Served Only by Requiring

the Defendant to Meet

a Clear and Convincing

Evidentiary Standard

APPENDIX

TABLE OF AUTHORITIES

CASES: PAGE

Addington v. Texas, 441 U.S. 418

(1979) eecoeevoevoeeveveveeee2e2020202802808080 @ *eeee 56

Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) ....ceees ae - oe

Alexander v. Louisiana., 405 U.S.

625 (1972) *eenereeeeeneee eee *eee3«seo#s2eee#e# @# 39

495 F.2d 437 (5th Cir.) cert.

denied, 419 U.S. 1033 (1974)..... 62

Bell v. Birmingham Linen Serv. ,

715 F.2d 1552 (llth Cir. 1983),

cert. denied, 467 U.S. 1204 (1984) 49, 50,

52, 33

, 778 F.2a 1318

(8th cir. 1985) . ccc eeeees eeeeneeeee 29, 52,

Broderick v. Ruder, No 86-1834,

slip op.(D.D.C. May 13, 1988).... 30

Bundy v. Jackson, 641 F.2d 934

(D.C. Cir. 1981) . cece eee eee eeeees 30, 59

, 435 U.S. 247

(1978) «ee ee eeeeees e*eneee e*eeeee#s#*# 40, 44

482 (1977) .--eees eeeeseeveeeeeeeeee 39

- iii -

‘

City of Los Angeles, Dep’t of

Water and Power v. Manhart, 435

= - 702 CEPVSR coceoesececeoceceee

Coble v. Hot Springs School

District No.6, 682 F.2d 721 (8th

cir. BOSS ccccccceescceseeeseecocs

Connecticut v. Teal, 457 U.S. 440

(19B2) wcccccccccccccceesescececes

Co., 784 F.2d 1546 (11th Cir.

1986), cert. denied, U.S.

» 308 BeGee BEG CBRE cb ccccce

Crail Mi sota State Uni

Board, 731 F.2d 465 (1984).......

Davis v. Califano, 613 F.2d 957

(D.C. Cir. BOTD) ccocccccccccecceces

Day v. Matthews, 530 F.2d 1083

als Gis Geis ansacbetuasiens

EEOC v. FLC & Brothers Rebel,

Inc., 663 F. Supp. 864 (W.D. Va.

19ST) cccccccccccseceseeseseeseocs

Fadhi_v. City & County of San

Francisco, 741 F.2d 1163 (9th

Cir.), aff'd after remand, 804

F.2d 1097 (9th Cir. 1984) .......

Fields v. Clarke Univ., 817 F.2d

931 (ist Cir. 19ST) cccccccccccces

-iv-

7, 31,

32, 33,

27, 62

27, 53,

58, 59,

29, 53

29, 52

Vv ans Ge...

494 U.8. 747 CASIED cccccceccccces

Frontiero v. Richardson, 411 U.S.

677 (1973) wee eee reece ere erereereres

ons io Vv.

Waters, 438 U.S. 567

(1978) .. cere reer eeerererererreres

Geduldig v. Aiello, 417 U.S. 484

(1974) ccc cccccccccccccecvescocces

’

429 i - 125 (1976) .e eee ee eeeees

: , 733 F.2d

1551 (11th Cir. 1984).--++eeeeeees

Goo Vv. » Vee

F.2d 113 (3rd Cir. 1985) aff’d,

U.S. , 107 S.Ct. 2617

TISO7) cccccccccccvcccceseccccccees

Vv WwW , 401 U.S.

424 (1971) . ee eee errr erence reererers

Haskins v. Department of the Army,

808 F.2d 1192 (6th Cir.), cert.

denied, U.S. , 108 S.Ct. 68

(1987) - eee reese rere rererererseers

Heckler v. Mathews, 465 U.S. 728

(1984) .- cere eee rere rrererererereers

Vv u eston,

459 U.S. 375 (1983) --eeeeeeeeeens

47,

48,

Hishon v. King & Spalding, 467

U.S. 59 [De SS 6cnbe neh eee bee sé oc

Hopkins v. Price Waterhouse, 618

F. Supp. 1109 (D.D.C. BOGS) ccccecs

W , 825

F.2d 458 (D.C. Cir. 1987), cert.

granted,

U.S. , 108 S.Ct.

1106 REISE ae Re ald ae

Hunter v. Underwood, 471 U.S. 222

bo) Pee Pear re ee eee

sters v. United States, 431 U.S.

324 Paw eh OO be bb OG S664 beds bd ue

(D.C. Cir.

, 810 F.2d 219

lo, en

King v. Trans World Airlines, 738

F.2d 255 (8th Cir. 1984).........

Dist. No. 56, 721 F.2d 976 (4th

Cir. a ee ee

t ¢ United Latin Amer:

Citizens v

Dep't, 654 F.2d 557 (9th Cir.

ee ee Pe ee rT ee oe eee

e Vv.

ou - 9

Educ., 684 F.2d 769 (11th Cir.

ne eee re

Lewis v. Smith, 731 F.2d 1535

(11th Cir.

red 66 66666660866 086%

33, 57 Lewis v. University of Pittsburgh,

725 F.2d 910 (3rd Cir. 1983),

cert. denied, 469 U.S. 892 (1984)

Vv nc., 600 F.2d

1003 (1st Cir. 1979) .ceeeeeeeeees

passim

Vv , 629 F.2d 615

22, 29 (9th cir. 1980) cece reer ere eeeees

Vv t j .

44 Corp., 427 U.S. 273 (1976).....-.

uglas Corp. v. Green,

411 U.S. 792 (1973) wee eee ee nevves

37, 38

39, 40

McKenzie v. Sawyer, 684 F.2d 62

59 (D.C. cir. 1982) . cc ee eee eeeercees

McQuillen v. Wisconsin Educ.

42 Assoc. Council, 830 F.2d 659 (7th

Cir. 1987), cert. denied, U.S.

, 108 S.Ct. 1068 (1988)......

60 Meritor Savings Bank, FSB v.

Vinson, 477 U.S. 57 (1986)......--

Miles v. M.N.C. Corp., 750 F.2d

867 (11th Cir. 1985).....--+-eeeee-

42, 62 .

W , 696 F.2d 94

(D.C. Cir. 1982)....eeeeeeeeeeens

50 Mississippi Univ. for Women v.

Hogan, 458 U.S. 718 (1982).....--

50 Mt. Healthy School Dist. v. Doyle,

450 0.6. 3976 CISTI) occccccccccess

- vii -

Muntin v. State of Cal. Parks &

Recreation Dep't, 671 F.2d 360

(9th Cir. 1982), aff'd, 738 F.2d

1054 TROOP oo ecceseseeeeseeeeseces

Vv Ss

Corp., 462 U.S. 393 (1983).......

Orr v. Orr, 440 U.S. 268 (1979)..

Patterson v. Greenwood School

Dist. 50, 696 F.2d 293 (4th Cir.

BPOED Coeeereeeseeeeeseceuereseseors

Personnel Adm’r of Mass. v.

Feeney, 442 U.S. 256 (1979)......

’

400 U.S. 542 CaP TAap coccccseccccces

Price v. Denison Independent

School Dist., 694 F.2d 334 (5th

Ci. DP S666 6O4CeC ee REC ORE OOO eS

Regents of the Univ. of Cal. v.

Bakke, 438 U.S. 265 (1978).......

468 U.S. 609 OP Peers eee

Smallwood v. United Airlines, 728

F.2d 615 (4th Cir. 1983), cert.

denied, 469 U.S. 832 (1984)......

Ter] it F lc ' f Adai

County, Ky., 825 F.2d 111 (6th Cir.

MT 66S 00686660 6E4E S66 SECS RECO K OS

- viii -

51, 60

41, 51

44, 45

v. Burdine, 450 U.S. 248 (1981)..

T Vv ° undo,

726 F.2d 459 (9th Cir. 1983),

cert. denied, 469 U.S. 979 (1984).

, 705 F.2d 1364

(D.C. Cir.1983) .. ee eee eevee erees

i ines a P

Trans World Airlines, Inc. v.

Thurston, 469 U.S. 111 (1985)....

v. New York, N.H.

United States v. New ¥Y

& Hartford R.R., 355 U.S. 253

(1957) . cee weer eer eeerrerererereres

Governors v. Aikens, 460 U.S. 711

(1983) . eee eee reer eeeeerereeeereees

Vi j j sv

429 U.S. 252 (1977) .ccccccccccees

Washington v. Davis, 426 U.S. 229

(1976) - cee eee reer eeereerereeseeers

STATUTES:

Pregnancy Discrimination Act of

1978, Pub. L. No. 95-555, 92

Stat. 2076 (1978) . eee eee ee eereces

Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e

Ct SCGe cere eeeeeeveeeeesereeeers

- ix -

46,

51,

44,

47,

50,

56,

passim

ADMINISTRATIVE SOURCE MATERIALS

EEOC Remedial Actions, 29 C.F.R.

§1613.271 Pe ée0e06 eceees *e © f+ © 63

LEGISLATIVE MATERIALS

H.R. No. 899, 92d Cong. 2d Sess.

1 (1972) reprinted in 1972 U.S.

Code Cong. & Admin. News 2137,

(Legislative History of the

Equal Employment Opportunity Act

of DPD 6 6 0-3900086 646 beh bes ee eee 31

110 Cong. Rec. 13,088 (1964)

(Statement of Sen. Humphrey).... 37

110 Cong. Rec. 13,837 (1964)

(Statement of Sen. Case)........ 37, 43

220 Comm. BOG. 13, 89B. cccccccesce 43

OTHER LEGAL AUTHORITIES

C. McCormick, Evidence §337

[es 6 600460660460 0450 08 6hheR eee 52

Taub, Keeping Women in Their

Place: Stereotyping Per Se as a

Form of Employment Discrimina-

tion, 21 B.C. L. Rev. 345

(ORNS 460660 esesdcsentecscccisecs 3) 3

OTHER AUTHORITIES

G. Allport, The Nature of Pre--

SE CEs 64604684 b0 6s 664006 %s 12

Billig & Tajfel, Social Categor-

ization and Similarity in Inter-

2 2 =

group Behavior, 3 European J.

Soc. Psych. 27 (1973) -c ce eeeeeees

H. Blalock, Causal Inferences in

Nonexperimental Resea (1964)..

Broverman, Vogel, Broverman,

Clarkson and Rosenkrantz,

Sex Role Stereotypes:

A Current Appraisal, 28

J. of Social Issues 59 (1972)....

Campbell, Enhancement of

Contrast as a Composite

Habit, 53 J. Abnormal &

Social Psych. 350

(EGER na cvcccccecedeccconsccceses

Crocker & McGraw, What’s Good

for the Goose is Not Good for

the Gander, 27 Am. Behav. Scien-

tist 357 (1984) ..cceeee renee ceees

Deaux, Sex: A Perspective on

the Attribution Process, in

New Directions in Attribution

Research (J. Harvey, W. Ickes

& K. Kidel, eds. 1976) ~cccccccees

K. Deaux, The Behavior of Women

and Men(1976) 2... cece eee eeeeeeees

S. Fiske and S. Taylor, Social

Cognition (1984)... eevee eevees

Fiske and Neuberg, A Continuum

of Impression Formation from

Category-Based to Individuating

Processes: Influences of

Information and Motivation

- xi-

18,

13,

i7,

on Attention and Inter

pretation, in 23 Advances

x i atio

(M. Zanna ed. 1988)..........

Hamilton, et al., The Emotional

Consequences of Gender-Based

Abuse in the Workplace, 6 Women

and Therapy 155 (1987)...........

Hamilton & Gifford, Tllusory

Correlation, Correlation in

Interpersonal Perception: A

Cognitive Basis of Stereo-

typic Judgments, 12 J. Exp.

Soc. Psych. 392 (1976)...........

Hansen & O'Leary, Actresses

and Actors: The Effect of

Sex on Causal Attributions,

4 Basic and Applied Soc. Psych.

209 ee a ee

Heilman, Sex Bias in Work

Settings: The Lack of Fit

Model, in 5 Research in

izati ehavior 269

(B. Staw & L. Cummings eds.

1983)

didi bt tte kee ee ake eee © 2 oe oe

Heilman, The Impact of Situ-

ational Factors on Personnel

Decisions Concerning Women:

Varying the Sex Composition

of the Applicant Pool, 26 Org.

Behav. and Hum. Perf. 386

Re rene ee

N. Henley, Body Politics 197

tg) Pee

- xii -

j j da

Hitt and Zikmund, Forewarne

is Forearmed: Potential Between

and Within Sex Discrimination, -

12 Sex Roles 807(1985)..-..-e-+++es:

"How Tom Mitchell Lays Out The

Competition," Fortune, March 30, ie

1987 at 9DLliccccccccreesevece eeeee

"A Humble Hero Drives Ford To The

Top," Fortune, January 4, 1988 at

Beco eeeeeeeeeeeeseeeeoeeoeeeeeeeeeees

R. Kanter, Men and Women of the

Corporation (1977) .--+-+eeeeeeees 16

Kirkpatrick, Speech to the

et Forum, 5 News for Women

in Psychiatry 14 (Oct. 1986)..... 10

A. Morrison, R. White & E.

Van Velsor, Breaking the

(1987) -c een ewer reer reereerereseers 9,

Vv. Nieva & B. Gutek, Women

nd Work: A Psychological ;

Perspective 59 (1982)..--+++++++++ 8,

Pettigrew, The Ultimate

Attribution Error: eo

Extending Allport's Cognitive

Analysis of Prejudice,

5 Pers. & Soc. Psych. Bull. os

ACL (ISTO) ccccccccsccsevccccccess

Rosen, Career Progress of

Women: Getting In and

- xiii -

Staying In in Women in the

Workforce 70 (H. Bernardin ed.

Se 6666046606 66048 58 woe kd x

Rosen and Jerdee, Influence

of Sex Role Stereotypes

on Personnel Decisions, 59

J. App. Psych. 9 (1974).....ceec.

Ruble, Sex Stereotypes Issues

of Change in the 1970's,

9 Sex Roles 397 (1983)...........

Ruble, Cohen and Ruble,

Sex Stereotypes: Occupational

Barriers for Women, 27 Am. Behav.

Scientist 329 (1984) .............

E. Schur, i Wo 2

vi : Ge "

Deviant: Gender, Stigma, _

and Social Control (1983).........

Spangler, Gordon & Pipken,

Token Women: An Empirical

Test of the Kanter Hypothesis,

84 Am. J.Soc. 160 Qo)

Tajfel, Sheikh & Gardner,

Content of Stereotypes and

the Inference of Similarity

Between Members of Stereotyped

Groups, 22 Acta Psychologica

Se eh bud 6 dae Oheeae es veecccc

Tajfel & Billig, Familiarity

and Categorization in

intergroup Behavior,

10 J. Exp. Soc. Psych. 159

bo ee ee eee

- xiv -

22, 23

8, 19

Tajfel, Billig, Bundy &

Flament, Social Categorization

and Intergroup Behavior,

1 European J. Soc. Psych.

LOO CAOTE) cc cccccccccccescccccces

Taylor, A Categorization

Approach to Stereotyping in

Cognitive Processes in

Stereotyping and Intergroup _

Behavior 83 (D. Hamilton ed.

1980) . cee eee reer rere reeeereeeeees

Cc. Tavris & C. Wade, The Longest

spective 265 (2d ed. 1984).......

"The Toughest Bosses in America,"

Fortune, August 6, 1984 at 18....

W : -

vi 206-208

(J. Figueira-McDonough & R. Sarri

“t 7 Rr

E. Webb, D. Campbell,

R. Schwartz and L. Sechrest,

Unobtrusive Measures: Nonreactive

Res Cc \~ Cc ces

> Pepe

Wilder, Categorization, Belief,

Similarly and Intergroup

Discrimination, 32 J. Per. &

Soc. Psych. 971 (1975)..---ee+eeees

Wolman & Frank, The Solo Woman

in a Professional Peer Group,

45 Am. J. Orthopsychiatry 164

(1975) ccc cece cre nereeeeeeecenees

-= xXV =

12,

14,

13,

16,

a a

INTEREST OF AMICI CURIAE?

Amici curiae are non-profit women’s

legal, education and research organiza-

tions, women’s political and membership

organizations, women's bar associations,

women's professional organizations and

other public interest groups and

individuals concerned about women's legal

rights and women's economic status and

well-being. The interest of each

individual amicus curiae is set forth in

the Appendix to this brief.

Amici believe that the opinion below

sets important precedent for the enforce-

ment of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §2000e et seg., and that

1 The parties have consented to the

filing of this brief, and the letters of

consent are being filed with the Clerk of

the Court pursuant to Rule 36.2 of the

Rules of this Court.

- l-

this Court should affirm that decision to

give important and needed guidance to the

Circuits.

SUMMARY OF ARGUMENT

As United States Ambassador to the

United Nations Jeane Kirkpatrick,

reflecting upon others’ perceptions of her

as a woman in a high government office, has

said, "I've come to see here a double-bind:

if a woman seems strong, she is called

'tough,' and if she doesn't seem strong,

she's found not strong enough to occupy a

high level job in a_= crunch." These

evaluations, she noted, “express a certain

+++ general surprise and disapproval at the

presence of a woman in arenas in which it

is necessary to be - what for males would

be considered - normally assertive."

Ambassador Kirkpatrick's observations

summarize the experience of many women who

- 2-

have entered male-dominated occupations and

have sought advancement. Her observations

are borne out also by the conclusions

reported in a vast body of scientific

research on sex-based stereotyping,

particularly in organizational behavior. 2

The problem encapsulated by Ambassador

Kirkpatrick in her speech is at the core of

this case; strong, talented women like Ann

Hopkins, seeking promotion in traditionally

male realms of corporate and political

power, all too often face evaluation by

colleagues and superiors who perceive them

as women first, as employees second. If

2 The brief of Amicus Curiae American

Psychological Association in Support of

Respondent addresses the breadth, depth and

general scientific acceptability of this

research upon which the expert testimony in

this case is based. See also Taub, Keeping

Women in Their Place: Stereotyping Per Se

As A Form of Employment Discrimination, 21

B. Cc. L. Rev. 345 (1980) (discussing

relevance of sex stereotyping research to

Title VII law).

care is not taken to avoid stereotyping

women in the process, women are

impermissibly and illegally assessed using

completely different standards and sexist

norms.

In this case the record is replete

with evidence that the decision-making

process applied by Price Waterhouse to Ann

Hopkins' bid for partnership was pervaded

by easily identifiable sex stereotyping, to

her detriment. There is no indication that

Price Waterhouse, a virtually all-male

domain, took any steps to stop the obvious

sexism in the evaluation process. Such

evidence is direct evidence of

discriminatory motive, that sex-based

discrimination occurred, entitling the

plaintiff to at least Geclaratory and

injunctive relief. No more need be shown

for the burden to shift to the defendant so

that the defendant may attempt to show that

- 4-

other types of requested relief are

inappropriate. At this stage the

defendant, as a proven wrongdoer, should

bear the burden of proving, if indeed it

can, by clear and convincing evidence that

make whole relief is inappropriate.

INTRODUCTION

This case typifies the "second generation"

of employment discrimination cases.

Although women are entering business and

the professions, they are prevented from

achieving the highest levels in those

professions because of gender-based biases.

In this case, Ann Hopkins was denied

advancement to partnership status at Price

Waterhouse even though she was personally

responsible for bringing to the firm more

new clients than anyone else in her

candidate class and generating an estimated

$34 to $44 million dollars in business.

- 5 -

She was highly recommended by her clients.

Her remarkable business achievements, which

were alone sufficient to qualify her to

join the ranks of the more than 650

partners, were virtually ignored, and

instead the firm's all-male partnership

committee focused almost exclusively on her

personality, and in particular, on her

"unladylike" characteristics: her hard-

driving, aggressive, and "unfeminine"

behavior. Behavior that would have been

expected, acceptable and perhaps’ even

required of a man ina leadership position

became a liability for this woman who was

told she needed "a course in charm school"

to qualify for partnership.

That Ann Hopkins' sex was a critical

factor in the failure of her partnership

bid at Price Waterhouse is indisputable.

She was evaluated in terms of sex-based

stereotypes which prescribe specific forms

- 6 -

of behavior and appearance for women. >

These stereotypes are similar to other

impermissible sex-based assumptions and

generalizations, e.g., that women are not

good at math, that they do not like or want

factory work, or that they are or should be

more nurturing than men. In the employment

context, an employer’s reliance on sex-

based assumptions about appropriate

behavior or other characteristics

constitutes direct evidence of intentional

discrimination. Here the requirement that

women conform to an idealized model of

femininity was patently not job-related,

3 These stereotypes rest on assump-

tions or generalizations that women should

conform to certain "female" personality

characteristics, but many women do not

conform to “even a true generalization."

. W

Power v. Manhart, 435 U.S. 702, 708

(1978). Stereotypes apply to expected

behavior as well as other traits.

Since by virtually any measure, Hopkins’

job performance was stellar.

Moreover, as this case demonstrates,

generalizations about how women should look

and act create a profound dilemma for women

aspiring to high-level positions. Those

who fail to conform, like Ann Hopkins, are

criticized because they are not

sufficiently "“ladylike"; those who do

conform to a female stereotype are deemed

inadequate in job-related skills, because

they are said not to be qualified to do a

"man's" job.4 Women seeking high-powered

professional leadership positions thus walk

catch-22 oe generally The Trapped Woman:

Figueira-McDonough & R. Sarri a. of

C. Tavris & C. Wade, We 2987);

ptt + E. Schur, Labeling Women Deviant:

Gender, Stigma, and Social Control (1 ;

Vv. Nieva & B. Gutek, Women & PA nes Me

(1982); Heilman, Sex Bias in j

Work Se :

pe Lack of Fit Model in 5 em age

Organizational Behavior 269

L. Cummings eds. 1983); sila lil

- 8 -

a tightrope, so long as sex-stereotyped

personality characceristics control access

to such jobs. The significance of this

phenomenon has been widely noted, as women

have moved into lower level professional

jobs in significant numbers, but have

failed to progress to the upper echelon, in

substantial part because of these invisible

barriers.”

Ambassador Jeane Kirkpatrick, United

States Permanent Representative to the

United Nations, described the problem in

another way:

(I}f I make a _ speech, particu-

larly a substantial speech, it

has been frequently described in

the media as “lecturing my

colleagues," as though it were

somehow peculiarly inappropriate,

5 As one study noted, the most

insurmountable barrier is the way women are

perceived by their male colleagues and

evaluators. A. Morrison, R. White & E. Van

Velsor, Breaking the Glass Ceiling: __Can

Wome the Top _o ica's La Ss

Corporations? (1987).

- 9 =

like an ill-tempered schoolmarm

might scold her children. When I

have replied to criticisms of the

United States (which is an

important part of my job), I have

frequently been described as

"confrontational".... It was a

while before I noticed that none

of my male colleagues, who often

delivered more "confrontational"

speeches than I, were labeled as

"“confrontational"....

I've come to see here a double-

bind: if a woman- seems strong,

she is called "tough," and if she

doesn't seem strong, she's found

n st fe) to occupy a

high level job in a _ crunch.

Terms like "tough" and "confront-

ational" express a certain very

general surprise and disapproval

at the presence of a woman in

arenas in which it is necessary

to be - what for males would be

considered - normally assertive.

Stereotyping has endless vari-

ations.

5 News for Women in Psychiatry 14, 14-15

(Oct.

Ambassador

1986) (reprinting speech

Kirkpatrick to the

Women's

Forum, New York City, December 19, 1984)

(emphasis in original).

- 39 =

Ambassador Kirkpatrick's experiences

are similar to Ann Hopkins', in that for

both the perceptions and evaluations of

their conduct were fundamentally altered

J J ' e

because of thelr sex. In Hopkins's case,

the result was the denial of partnership.

At trial, Hopkins showed that the

decision not to promote her, the sole

woman, best client recruiter and highest

money earner in a class of 88 candidates,

resulted from an unfavorable evaluation

directly related to the fact of her sex.

The process by which this flawed evaluation

was made is well-recognized and described

by a large body of scientific research

why women encounter

which explains

substantial difficulties achieving

prominence in non-traditional professional

jobs. Indeed, in this case, an expert

cognitive psychologist, Dr. Susan Tufts

Fiske, testified that such sex stereotyping

- ll-

pervaded Price Waterhouse’s decision-

making.

This scientific research exposes the

mechanisms by which invidious sexual,

racial and other stereotypes operate in

evaluation processes. Thus, in his classic

volume, The Nature of Prejudice, Gordon

Allport observed that "people use a ‘least

effort' principle of organization and group

apparently Similar people into

categories...."© at the simplest level the

research observes’ that perceivers use

discriminating cues, especially physical

traits such as sex and race, as ways of

categorizing people and organizing

Taylor, A Cat

to Stereotyping, in egorization Approach

(D.L. Hamilton ed ~~

Allport, “—~ ay: hy

nd Pettigrew, The Ultimate Attribution

: a, Extending Allport's Cognitive

nalysis of Prejudice, 5 Pers & §

Psych. Bull. 461 (1979)). -

= 3s ©

information about then. As a result,

because "similarity" is the organizing

principle, within-group differences become

minimized, and between-group differences

become exaggerated. For example, women are

seen as more similar to each other and more

different from men. /

Once people are categorized into such

groups, the potential for discrimination

arises. Research on ingroup/outgroup

effects "consistently demonstrates" when

subjects are asked to evaluate their own

group and the other group and allocate

rewards between the groups, "out group

7 See S. Fiske & S. Taylor, Social

160-61 (1984); Taylor, supra Nn.

6, at 84-85. The within/between effect in

cognitive process is documented in, among

other sources, Tajfel, Sheikh & Gardner,

Content of Stereotypes and the Inference of

Similarity Between Members of Stereotyped

Groups, 22 Acta Psychologica 191 (1964);

Campbell, Enhancement of Contrast as a

Composite Habit, 53 J. Abn. & Soc. Psych.

350 (1956).

- 13 -

members are evaluated less favorably and

given fewer rewards than in group mem-

bers...even when the subject or subject’s

group do not benefit from depriving or

unfavorably evaluating the out group."8

An example of this phenomenon has been

documented in "resume studies", in which

evaluators were given resumes of job

"applicants" that were identical in every

respect except the sex of the individual

named on the resume; female resumes were

Taylor, supra n.6, at 8 iti

' ° 4 (c

erecta & Gifford, Illusory pelt BE me

7 erpersonal Perception: A Cognitive

a of Stereotypic Judgments, 12 J. Exp

prev Psychology 392 (1976); Wilder,

: egorization, Belief Similarity and

—— Discrimination, 32 J. Per. &

iste 971 (1975); Tajfel « Billig

larity and Categorization in Inter-

viet. 10 J. Exp. Soc. Psych. 159

; Billig & Tajfei

. . J J Ss

ere age and Similarity in’ Sateen

P uropean J. Soc Psych

(1973); Tajfel, Billi hanes,

g, Bundy & Fla

Social Categorization aoe

and Inter

Behavior, 1 E ary

we uropean J. Soc. Psych. 149

- 14 -

consistently rated lower than the sex-

neutral or male resumes. ?

In other words, even where all things

are equal, evaluators tend to discount the

accomplishments of women precisely because

the cccomplishments are those of women.

The stable expectation, in the workplace,

is that men succeed because of skill and

fail because of bad luck or lack of effort

and that women succeed because of luck or

effort and fail because of lack of

9 see generally Hitt & JZikmund,

Forewarned is Forearmed: Potential Between

and Within Sex Discrimination, 12 Sex Roles

807 (1985); Rosen, Career Progress of

Women: Getting In and Staying In, in Women

in the Workforce 70 (H. Bernardin ed.

1982); Heilman, supra n.4, at 281-82; Rosen

& Jerdee, Influence of Sex Role Stereotypes

on Personnel Decisions, 59 J. App. Psych. 9

(1974). The resume studies have been

replicated under field and laboratory

conditions with subjects of all ages and

levels of accomplishment.

- 15 -

ability.19 That is, men are credited for

success and women are blamed for failure;

men are assumed to be capable and women

must prove themselves repeatedly.11

10 See K. Deaux, The Behavior of

Women and Men (1976); Hansen & O’Leary,

Actresses and Actors: The Effect of Sex on

Causal Attributions, 4 Basic and Applied

Soc. Psych. 209 (1984); Deaux, Sex: A

Perspective on the Attribution Process, in

(J.

Harvey, W. Ickes & K. Kidel eds. 1976).

11 The tendency to stereotype is

increased where the target of the

stereotyping is a token, i.e. comprises

fifteen to twenty-five percent or less of

the relevant group, and evaluations are

more extreme in such circumstances. See R.

Kanter, W j

206-42 (1977); Crocker §& McGraw, What's

Good for the Goose is Not Good for the

Gander, 27 Am. Behav. Scientist 357 (1984);

Heilman, The Impact of Situational Factors

on Personnel Decisions Concerning Women:

Varying the Sex Composition of the

Applicant Pool, 26 Org. Behav. and Hun.

Perf. 386 (1980); Taylor, supra n.6, at 89-

98; Spangler, Gordon & Pipken, Token Women:

An Empirical Test of the Kanter Hypothesis,

84 Am. J. Soc. 160 (1978) ; Wolman & Frank,

The Solo Woman in a Professional Peer

Group, 45 Am. J. Orthopsychiatry 164

(1975); .

- 16 -

‘the implications of these research

results are that impermissible sex-based

factors are likely to block the attempts of

women like Ann Hopkins to advance in

careers from which women have previously

been excluded. The effect is not just

attributable to categorization and

ingroup/outgroup dynamics, however. Sex-

based categories are heavily laden with

extensive social meanings and that baggage

becomes applied when an individual is

categorized based upon sex. 12 Despite the

apparent fluidity of sex role definitions

in contemporary society, the social science

research demonstrates a notable consistency

in the different traits, characteristics

and behaviors considered appropriate and

desirable in men and women.

12 see Fiske & Taylor, supra Nn. 7

139-189; Taylor, supra n. 6.

- i737 «

Studies show that overall, women are

expected to be passive, nurturing, and

emotive and not to be aggressive,

egotistical and competitive. Men, on the

other hand, are expected to possess what is

referred to as the "competency cluster of

traits," e.g. independence, ambition,

competitiveness, and control.13 Research

reveals that as women have moved into such

traditionally "male" fields as law,

accountancy and management consulting,

there is a degree of acceptance of women as

competent, strong and professional, but

only so long as they continue to display

the traits of the stereotypically female

13 Ruble, Sex Stereotypes: Issues of

Change in the 1970s, 9 Sex Roles 397

(1982); Broverman, Vogel, Broverman,

Clarkson & Rosenkrantz, Sex Role

Stereotypes: A Current Appraisal, 28 J. of

Soc. Issues 59 (1972).

- 18 -

"warmth-expressiveness cluster".+ The

research also shows that when women violate

traditional sex role expectations, others

tend to react negatively. Feelings of

disappointment, irritation and anger are

common responses to those who do not

conform.!5 Interestingly, men have a wider

latitude of acceptable traits and behaviors

than do women!®, particularly in the work-

place. The men who have risen to the top

of corporate America are described by those

who work under them and by the media, as

14 pBroverman, supra n.13; A. Morrison

et al., supra, n.5, at 54-56.

15 wn. Henley, Body Politics | a9?

(1977); V. Nieva & B. Gutek, supra n.4,

76.

16 &. Schur, supra n.4, at 134.

- 19 =

everything from "mild mannered"17 to

"manag{ing] by intimidation". 18

Some of these points were brought out

in Dr. Fiske's testimony. But this

knowledge is not the _ province only of

social scientists. People who care about

the problems of inequality or the loss of

human capital when managerial decisions are

based upon sex (or race) rather than actual

17 “A Humble Hero Drives Ford To The

Top," Fortune, January 4, 1988 at 23,

describing the Chairman of the Ford Motor

Company.

18 “How Tom Mitchell Lays Out The

Competition," Fortune, March 30, 1987 at

91, describing the President of Seadate

Technology. In an article describing some

of the country's most prominent’ male

executives, such as General Electric's

Chairman, Simon & Schuster's President and

Gulf & Western's Chief Executive Officer,

Fortune Magazine wrote, "(ijJf you want to

know how tough they can be, ask the people

who work for them - the subordinates who

have to put up with ego-shredding, criti-

cism, insatiable demands, and Wagnerian

fits of anger." "The Toughest Bosses in

America," Fortune, August 6, 1984 at 18.

- 20 -

ability or performance are instinctively

aware of the dynamics of sex stereotyping.

Moreover, sex stereotyping is preventabie;

it is possible to perceive and judge

others, even tokens, based upon their

individual characteristics and behavior

rather than through the prism of their sex.

Caring, taking time and paying attention to

tangible performance requirements and

actual performance, not generalized,

ambiguous characteristics such as_ those

used by Price Waterhouse, helps. Being

aware of one's own thought-processes and

staying alert for evidence of sex stereo-

typed thinking -- the tell-tale words,

phrases and concepts prevalent in Price

Waterhouse's partners' discussions of Ann

Hopkins’ candidacy -- also curtails

- 2i-

stereotyped decision-making. 19 Finally. as

the proportion that any minority represents

in a larger group increases, the pressures

to stereotype diminish.

I. The Record is Replete with Evidence of

Intentional Sex Discrimination, Both Direct

and Circumstantial.

Ann Hopkins was an exceptionally well-

qualified partnership candidate. "None of

the other candidates considered for

partnership in 1983 had generated more

business for Price Waterhouse than plain-

tiff." Hopkins v. Price Waterhouse, 825

F.2d 458, 462 (D.c. Cir. 1987) (citing

Hopkins, 618 F. Supp 1109, 1112 (D.D.c.

19 S. Fiske & S. Tay-

lor, supra n.7, at 139-81; Fiske & Neuberg,

A Continuum of Impression Formation from

Category~Based to Individuating Processes:

Influences of Information and Motivation on

Attention and Interpretation, in 23

Vv i (M.

Zanna ed. 1988); Heilman, Supra n.4, at

289-92; Ruble, Cohen & Ruble, Sex Stereo-

types: Occupational Barriers for Women, 27

Am. Behav. Scientist 339 (1984).

- 22 -

1985)). “She billed more hours than any of

the other candidates under consideration."

Id. The clients whom she served liked her

work. See Hopkins v. Price Waterhouse, 618

F. Supp. 1109, 1112 (D.D.C. 1985).

Yet, the comments by the evaluating

partners show that their focus was on her

gender, not her business acumen. Her

critics and supporters alike couched their

evaluations of her in gender’ specific

terms. It was said that "she ... over~

compensated for being a woman," and that

she “had matured from a... somewhat

masculine ... mgr. [manager] to [a] .--

much more appealing lady partner candi-

date." Id. at 1116-1117. One partner

described her as "macho." Id. at 1117.

It is clear from the record that

Hopkins’ perceived deficiencies lay in her

failure to conform to sex-based behavioral

stereotypes. Ann Hopkins was evaluated as

°- 23°

a “lady partner candidate," according to

standards applicable only to : female

candidates. She was a "“tough-talking,"

"formidable" woman whose use of "foul

language" was offensive only because, as

one partner explained, "it's a lady using

foul language." Id. She was explicitly

told, by a partner who conveyed the

information as to why her partnership

consideration was deferred and how she

might do better,29 to "walk more fem-

20 That many of the obviously sex

stereotyped comments about Ann Hopkins

quoted in the District Court’s opinion were

made by her Supporters, rather than her

detractors, does not mean that Hopkins’

gender was not a significant factor in

Price Waterhouse's refusal to promote her.

The comments by Hopkins' staunchest

Supporters demonstrate their awareness that

Hopkins' nonconformity to the stereotype of

the "acceptable" female was working against

her and that she was being held to a

different standard of behavior than male

partnership candidates. Her supporters

understood that if she conformed to sex

stereotypes, she might be accepted. That

her supporters were aware that Ms. Hopkins

was judged according to gender specific

- 24 <-

ininely, talk more femininely, dress more

femininely, wear make-up, have her hair

styled, and wear jewelry." Id. Therefore,

she was evaluated according to standards

applicable only to female candidates.

Such evidence is more than sufficient

to establish a case of intentional discri-

mination based largely on direct evidence,

not on inferences. The discriminatory

process to which Hopkins was subjected was

not an isolated event. In fact, the sex-

based comments made about her were "part of

the regular fodder of partnership evalua-

tions." Id. Female candidates for partner-

ship had previously been denigrated for

standards and that thoy athens OOF wt,

l with those s

per ON discrimination upon sex, rll gay 2

Williams, dissenting from the —, 2

appeals decision, erroneously — u =

nds it. See be 487

ge (1982) (holding that gee oor eal

tion in a decision process is not elimi

ed by an_ apparently nondiscriminatory

outcome).

- 25-

their feminist politics and their unfemin-

ine manners. Id. One partner categorical-

ly refused to consider any woman seriously

for partnership and "believed that women

were not even capable of functioning as

senior managers." Id. Discriminatory

intent is also evident from the history of

sex-segregation in the job,?1 and the use

of a male dominated subjective promotion

process that credited biased evaluations

and was consciously retained by the company

despite evidence that it was tainted by sex

stereotypes. Id.22

21 The fact that Anne Hopkins was the

only woman among 88 candidates and was

being evaluated for partnership by an

organization having 662 male and partners

and only seven female partners demonstrates

the overwhelming historical sex-segregation

in this professional milieu.

22 As the district court noted,

"whenever a promotion system relies on

highly subjective evaluations of candidates

by individuals or panels dominated by

members of a different sex ... such proce-

dures must be closely scrutinized because

- 26 -

Finally, the testimony of Dr. Fiske

established discrimination. Dr. Fiske

examined the record created in connection

with Price Waterhouse’s partnership

decision-making. She found all of the

antecedent conditions that, according to

the research, strongly indicate that

stereotyping is likely to take place--

rarity of the target, selectivity of

perception and memory by the target’s

evaluators, extremely negative reactions

and broad overgeneralizations by her

detractors, to name only a few factors.

She also found the factor most obvious to

the lay observer - the extensive discus-

sions referring to Hopkins’ sex. Finally

she found no factors indicating that the

of their capacity for -cvenaga gue er

i Hopkins, 618 F. Supp. ;

pee ee vi v 613 F.2d 957,

965 (D.C. Cir. 1979))-.- See also, coble vs

H ings is N . ;

2d 721, 726 (8th Cir. 1982).

- 27 -

influences of stereotypes would be avoided

in the ultimate outcome. Based upon these

indicators, she concluded that sex stereo-

typing was important in Price Waterhouse’s

decision about Ann Hopkins’ candidacy. See

Fiske Testimony. The court accepted this

testimony.23 Thus the promotion process

23 pr. Fiske is an extremely well-

qualified researcher in the field of social

cognition including sex stereotyping,

trained as well in the research on organi-

zational behavior, the author of numerous

articles and a leading text on the subject

of social cognition. The methodology

applied by Dr. Fiske in reaching that

conclusion in this case, grounded as it is

in extensive research and drawing from the

evidence created in the ordinary course of

the subject’s daily events without further

intrusion by the researcher, is an accepted

and respected mode of research in its own

right. See E. Webb, D. Campbell, R.

Schwartz & L. Sechrest, Unobtrusive

i (1966). The research on

stereotypes confirms that where stereo-

typing is evidenced the stereotyped

category, i.e. the sex or race of the

target is the causal factor. s. Fiske & S.

Taylor, supra n.7, at 138-89, See H.

Blalock, Causal Inferences in Nonexperimen-

tal Research (1964) (explaining causal

analysis in research).

- 28 -

itself was “impermissibly infected by

sexual stereotypes." Hopkins v. Price

Waterhouse, 825 F.2d 458, 468 ~o.¢c. Cir.

1987).

Such a process in and of itself

j oyers’

violates Title vII.24 To end employ

24 Bibbs v. Block, 778 F.2d 1318,

1321 (8th Cir. “4 Se eee _

key players in the pr em gy org

known to utter racial slurs. eal

j bbs to be consider

held that "(fjorcing Bl 4 -

j i cess in which ra

for promotion in a pro By ag ee

s a discernible par

am Pl of the law, ~~ an

outcome of the process." Bibbs. a

1322. See also Fields v. Clark Univ.,

a9 F.2d 931, 935-37 (ist Cir. od,

(tenure decision found to be impermissik Y

tainted by "pervasively sexis

j 2)

attitudes") ; Fadhl_v. City and County of

741 F.2d 1163 (9th Cir.),

NU 804 F.2d 1097 (9th Cir.

’

‘s state-

court held that employer’:

ner name See eleseat,

idence that she was he 0 a ferent,

posonce ye standard and oe pre an initial

indi i liability); Thorne v.

egg . ee F.2d 459, 468 (9th

cert denied ,

Cir. 1983), , 469 Be

(1984) (employer’s reference to p re Be

femininity was found to + nage Fp

stereotyped view of her ern pnt ly pai

and was "the kind of invidious is :

tion that violates Title VII"); EEOC v. FLC

- 29 -

reliance on outmoded sex stereotypes of the

sort present in this case was a primary

congressional purpose in enacting Title

VII:

Women are subject to economic depriva-

tion as a class ... Numerous studies

have shown that women are placed in

the less challenging, the less respon-

, 663 F. Supp. 864

(W.D. Va. 1987) (court found discriminatory

animus in employer’s statement that he

fired woman bartender for her use of

"unladylike language")

In a related context, this Court has

held that plaintiff may establish a

violation of Title VII by proving that sex

discrimination created a hostile or abusive

work environment. See Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57 (1986).

See also Bundy v. Jackson, 641 F.2d 934,

944 (D.C. Cir. 1981) (sexually stereotyped

insults and demeaning propositions that

poison one’s working environment violate

Title VII). The very maintenance of a

hostile work environment may lead to the

conclusion that promotion decisions made in

that context were discriminatory. See,

e.g., i Vv , No. 86-1834, slip

op. (D.D.C. May 13, 1988) (that SEC

superiors permitted sexually harassing

working conditions to be created and

refused to remedy environment compels

conclusion that plaintiff lost promotion

and job opportunities because of the

hostile climate).

- 30 -

and the less remunerative

nae +n on the basis of their sex

alone.... The time has come to —

an end to job discrimination once an

for all, and to insure every —r™

the opportunity for the decent sel .

respect that accompanies a 4°

commensurate with one’s abilities.

As this Court stated in City of Los Angeles

Departm Wa nd Power Vv. t:

rue eneralization about

a Men is an insufficient

reason for disqualifying an

individual to whom the generali-

zation does not apply....[(T]he

statute requires that we focus on

fairness to individuals rather

than fairness to classes.

Practices that classify employees

in terms of religion, race, or

sex tend to preserve traditional

assumptions about groups rather

than thought ful scrutiny of

individuals.

435 U.S. at 708-09. See also Phillips v.

Martin Marietta Corp., 400 U.S. 542, 545

(1971) (Marshall, J., concurring) (Title

25 H.R. Rep. No. 889, 92d Cong. 2d

Sess. 1 (1972), reprinted in 1972 ee)

Cong. & Admin. News 2140, 2141 (

(Legislative History of the Equal Oppor-

tunity Act of 1972).

- 31-

VII does not permit "ancient canards" about

women to be a basis for discrimination) .26

Thus, this Court has refused to allow

fringe benefits to depend on sex, notwith-

standing valid longevity statistics

(Manhart) ; it has refused to permit

26 This Court has’ in the equal

protection context recognized the discri-

mination inherent in the "baggage of sexual

stereotypes" which is used to Classify,

limit, protect or otherwise needlessly

differentiate between men and women, to the

historical disadvantage of women as a

class. Orr _v. Orr, 440 U.S. 268, 283

(1979); Frontiero v. Richardson, 411 U.S.

677, 684-85 (1973). In Roberts v. United

States Jaycees, 468 U.S. 609, 625 (1984),

this Court noted:

[DJiscrimination based on archaic and

overbroad assumptions about the

relative needs and capacities of the

sexes forces individuals tto labor

under stereotypical notions that often

bear no relationship to their actual

abilities. It thereby both deprives

persons of their individual dignity

and denies society of the benefits of

wide participation in political,

economic, and cultural life.