# Amicus Curiae Brief — Price Waterhouse v. Hopkins > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0633%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1989 - **Citation:** 490 U.S. 228 ## Text No. 87-1167 + D 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, 53 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 Vv 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 Vv 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, 54 27 25 62 27, 62 27 27, 53, 58, 59, 60 29 29, 53 29, 52 62 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 S 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 41 32 47, 49 55 63 60 50 55 53 45 56 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 - 51 60 50 59 32 44 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)....... Vv 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 32 61 44, 45 32 53 50 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, 48 52 49 43 44, 55 47, 50, 52 56, 59 55 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- 14 18, 13 16 16 16 13, 19 i7, 28 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 - 22 35 14 16 16 19 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 20 A. Morrison, R. White & E. Van Velsor, Breaking the (1987) -c een ewer reer reereerereseers 9, Vv. Nieva & B. Gutek, Women a 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 - 19 19 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 - 15 15 18 22, 23 8, 19 16 13 14 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 u 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 = 14 12, 14, 17 8 20 8 14, 14 13, 16, 28 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. Je 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 4 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 of 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 6 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 8 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 - 4 "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 @ @- but the employer does and should bear a heavy burden to prove that the applicant or employee who was subjected to a discrimina- tory practice did not actually suffer as a result.?° Similarly the difficulty of separating illegal from legal motives is a burden which the defendant, as wrongdoer, should properly bear. As this Court has explain- ed: loyer is a wrongdoer, he has pee Oe "ad a motive that is —— illegitimate by the statute. OS. Pe fair that he bear the risk t oo influence of legal and illegal mo ~ cannot be separated, ge ge ne knowingly created the risk and oe the risk was not created by a activity but by his own wrong-doing. N Vv. sporta m Corp., 462 U.S. at 403 (1983) (construing National 35 Especially in this situation, there is "[{n]o reason ... why the wn rather than the perpetrator of the 1 g act should bear the burden of proof on this Ss , 424 issue." s Vv. wm U.S. 747, 773 n.32 (1976). - 41 - Labor Relations Act). See also League of United Latin 2 , Pees ” Salinas Fire Dep’t, 654 F.2d 557, 559 (9th Cir. 1981) (Title VII); King v. Trans World Airlines, 738 F.2d 255, 257 (8th Cir. 1984) (Title VII). Requiring plaintiff to prove more than the presence of discrimination in the employment process to establish liability would undermine the purposes of Title VII. As Justice Scalia noted in Toney v. Block , 705 F.2d 1364, 1366 (3. Cir. 1983): "(Ijt is unreasonable and destructive of the purposes of Title VII to require the plaintiff to establish in addition the difficult hypothetical proposition that ’ had there been no discrimination, the employment decision would have been made in his favor." In fact, Congress specifically rejected an amendment which would have - 42 - imposed this impossibly heavy burden on plaintiff.2© 110 Cong. Rec. 13,838 (1964). In analogous contexts, this Court has approved shifting the burden to the employer to show that the same decision would have been reached absent discrimina- tion "when there is a proof that a dis- criminatory purpose has been a motivating factor in the decision...." Villa fe) Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66 (1977). 36 congress rejected an amendment that would have required a plaintiff to show that a prohibited basis was "solely" the basis for an adverse employment decision. 110 Cong. Rec. 13, 837 (1964) (Amendment proposed by Senator McClellan; Senator Case explaining that proposed amendment would render Title VII "nuga- tory"). While the Court has occasionally described Title VII proof in terms of a "but for" test, e€-gG., Vv i S , 427 U.S. 273, 282 n.10 (1976), this language has to be read in light of the fact that Congress explicitly rejected the proposed amendment. - 43 - In such a case, "judicial deference is no longer justified." Id. Some decisions appear to require a showing that an unlawful motive was a "substantial" factor in the challenged decision before shifting the burden to the defendant to prove that the "same decision" would have been reached anyway. 37 These are constitutional cases in which the burden on the plaintiff is concededly greater than in the Title VII context38. Even in constitutional challenges, however, this approach has not been consistently followed,39 and it is inappropriate, in 37 See, e.g., Hunter ’ ’ Vv 471 U.S. ' + 222, 228 (1985) (equal protect- 429 U.S. 274 (1977) (first amendment). ’ 38 ' Cf. Washington v. Davis 229 (1976); a? Vis, 426 U.S. Feeney, 442 U.S. 256 (1979) 39 435 U.S. 247, 266 (1978). Vv. hus, ss. V. - 44 - discrimination cases, to attempt to quantify or calibrate the amount of discrimination and then determine how much is unlawful, before shifting the burden to defendant. This Court has explained: "(Ijnvidious discrimination does not become less so because the discrimina- tion is a lesser magnitude. Discrimi- natory intent is simply not amenable to calibration. It either is a factor that has influenced choice or it is not." : Vv , 447 U.S. 256, 277 (1979) (footnote omitted). The approach adopted in Teamsters avoids the calibration problem and best effectuates the intent of the Title VII drafters to eradicate employment discrimi- nation in all its manifestations. It recognizes that proof of discrimination, in and of itself, constitutes a cognizable injury for which liability attaches. See 728 also Heckler v. Mathews, 465 U.S. (1984). Although a presumption in favor of - 45 - make whole relief arises, defendant may nonetheless prove that the discrimination did not cause the specific injury com- plained of, and that the specific make whole relief requested is not warranted. This formulation derives directly from authoritative Title VII caselaw and is consistent with caselaw in analogous areas involving discrimination; it provides a Clear, uniform, familiar, and workable analysis for "mixed motive" situations; and it would provide the same degree of statutory protection to plaintiffs in this category of cases as has traditionally been enjoyed by other Title VII plaintiffs. The Burden-shifting Formulation of caaiaans and McDonnell Douglas is Inappro- priate Here. The petitioner incorrectly asserts that the burden-shifting approach in cases - 46 - such as 't Oo uni Vv Burdine, 450 U.S. 248 (1981), and McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973), is appropriate here. That analysis applies where plaintiffs, in order to establish a prima facie case, rely on circumstantial evidence supporting an inference of discrimination. As explained in nco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978), the prima facie case "raises an inference of discrimination only because we presume that these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Thus, the Court said in Burdine, 450 U.S. at 255 n.8, that the “allocation of burdens and the creation of a presump~ tion by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." - 47 - Proof of discriminatory motive is the end- point contemplated by the Burdine analysis. In this case, Hopkins proved through direct evidence that Price Waterhouse considered her gender in evaluating her candidacy for promotion. Under Burdine and Furnco, she thus satisfied her ultimate burden, and the kind of defense those cases contemplate was no longer available. This Court has held squarely that the burden shifting formula set forth in McDonnell Douglas is "inapplicable where the plaintiff presents direct evidence of discrimination." Trans World Airlines, o Ve urs , 469 U.S. 111, 121 (1985). "The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that ‘the plaintiff [has] his day in court despite the unavailability of direct evidence'" Id. (citation omitted). - 48 - The Burdine formula was not meant to be a "Procrustean bed within which all disparate treatment cases must be forced to lie." Bell v. Birmingham Linen Services, 717 F.2d 1552, 1556 (11th Cir. 1983), cert. denied, 467 U.S. 1204 (1984). See also United stal Service Board o overnors Vv. Aikens, 460 U.S. 711, 715 (1983) (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978) (citations omitted) ("the prima facie case method established in McDonnell Douglas was ‘never intended to be rigid, mechanized, or ritualistic'")). The Courts of Appeals have uniformly recognized the inapplicability of the Burdine approach in cases presenting direct evidence of discrimination. For instance, in Be Vv. irmi m_ Line ervices., 715 F.2d 1552 (11th Cir. 1983), cert. denied, 467 U.S. 1204 (1984), the Eleventh Circuit noted: - 49 - If the evidence consists of direct testimony that the defendant acted with discriminatory motive, and the trier of fact accepts this testimony, the ultimate issue of discrimination is proved. Defendant cannot refute this evidence by mere articulation of other reasons; the legal standard changes dramatically. Id. at 1557. This approach has been widely endorsed. 49 40 Terbovitz v. Fiscal Court of Adair County, Ky., 825 F. 2d 111, 114-5 (6th Cir. 1987) ("The McDonnell Douglas formula is inapplicable ... to cases in which the ... plaintiff presents credible, direct evidence of discriminatory animus.") ; Goodman _v. Lukens Steel, 777 F.2d 113, 130 (3rd Cir. 1985), aff'd, aa eHe , 107 S.Ct. 2617 (1987) ("The presumptions and shifting burdens are merely an aid - not ends in themselves. When direct evidence is available, problems of proof are no different than in other civil cases."); Miles v. MNC Corp, 750 F.2d 867, 875 n. 9 (llth Cir. 1985)(quoting Lee v. Russell County Board of Education, 684 F.2d 769, 774 (llth Cir. 1982) (where the evidence consists, as it does here, of direct testimony that defendants acted with a discriminatory motivation, "if the trier of fact believes the prima facie evidence, the ultimate issue of discrimination is proved, no inference is required.")); Lewis v. Smith, 731 F.2d 1533, 1537-1538 (llth Cir. 1984) (where discriminatory intent has been proved by direct evidence, the ultimate - 50 = Price Waterhouse’s characterization of this as a "mixed motive" case does not make the Burdine formula any more applicable. 4} issue is proved); Muntin vv. State of California Parks and Recreation Department, 671 F.2d 360, 363 (9th Cir. 1982), aff’d, 738 F.2d 1054 (1984) (where plaintiff proves discriminatory animus by direct evidence, "this ... not only permits, but compels an inference [of discrimination]. That being so, there 1s no need, for the purpose of deciding whether a Title VII violation has occurred, to consider the explanations which an employer might claim ...-No such explanation could be _suf- ficient, as a matter of law, to justify a judgment that unlawful discrimination did not occur."); Loeb v. Textron. 600 F.2d 1003, 1014 (ist Cir. 1979) (Burdine approach is inapplicable where plaintiff relies on direct evidence of discrimina- tion). 41 hat Burdine did not contemplate the so-called "mixed-motive" case is obvious. In Burdine, as this cCourt discussed in an analogous context, "the estion was who had '[t]he ultimate burden pe persuading the trier of fact that the defendant intentionally discriminated against plaintiff ....' The Court discus- sed only the situation in which the issue is whether either illegal or legal motives, but not both, were the ‘true' motives behind the decision." NLRB v. Transporta- tio a Corp., 462 U.S. 393, 400 n. 5 (1983) (citation omitted). See _ also, - 51- As the Eleventh Circuit noted in Bell, it would be "illogical" and "ironic" if direct evidence of motive or conduct forbidden by Title VII could be negated by the mere articulation, not proof, that the employ- ment decision was undertaken for permis- sible reasons.42 In almost every circuit, once plaintiff proves by direct evidence the presence of discrimination, the burden is placed on the defendant to prove that a remedy should not be required. 43 Bibbs v. Block, 778 F.2d 1318, 1320-21 (8th Cir. 1985). 42 In addition, this allocation of the burden is in accord with the principle of placing upon a party the burden of proving facts peculiarly within its own knowledge. United States v. New York, N.H. & Hartford R.R., 355 U.S. 253, 256 n.5 (1957). See also C. McCormick, Evidence, §337 (1984). 43 Whether or not the inquiry is separated into liability and remedy phases, the burden shifts to defendant to prove that the plaintiff is not entitled to relief. See, e.g., Fields v. Clark - 52 - 6. Where the Plaintiff has Proved that the Employment Decision Was Tainted by Discrimination, The Purposes of Title VII Can Be Served Only by Requiring the Defendant to Meet a Clear and Convincing Evidentiary Standard. The twin goals of Title VII-- deterring illegal conduct by employers and affording employees make whole relief-- are aptly served by requiring a defendant, upon a showing by direct evidence of discriminatory intent, to show by clear and University, 817 F.2d 931 (1st Cir. 1987); Haskins v. United States Dept of the Army, 808 F.2d 1192 (6th Cir.), cert. denied, 108 S.ct 68 (1987). ib Vv sk, 778 F.2d 1318 (8th Cir. 1985); wood v n da Airlines, Inc., 728 F.2d 614 (4th Cir.), cert. denied, 469 U.S. 832 (1984); Fadhl v. it , 741 F.2d City and County of San Francisco 1552 (9th Cir. 1984); Bell v. Birmingham i alg 715 F.2d 1552 (11th Cir. 1983), cert. denied, 467 U.S. 1204 (1984); Day v. Matthews, 530 F.2d. 1083 (D.C. Cir. 976); But see McQuillen v. Wisconsin - +7 ’ il, 830 F.2d 659 (7th Education Ass’n Council Cir. 1987), cert. denied, 108 S.Ct. 1068 (1988), wis v. Universi fe) sbu , 725 F.2d 910 (3rd Cir.), cert. denied, 469 U.S. 892 (1984). - 53 - convincing evidence that the plaintiff would have suffered the challenged adverse employment action even absent discrimina- tion. Title VII was "intended to strike at the entire spectrum of disparate treat- ment." Ss , W Ower v. Man t, 435 U.S. 702, 707 n. 13 (1978). See also McDonnell Douglas fe) Vv. G , 411 U.S. at 801: "Title VII tolerates no ... discrimination, subtle or otherwise." The primary thrust of Title VII is to "“eradicat{e] discrimination throughout the economy and [to make} persons whole for injuries suffered through past discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). Title VII’s protection is a narrow but stringent prohibition against discrimina- tion based on certain immutable character- istics ennumerated as prohibited bases in the statute, in one and only one context-- - 54 - that of employment. Because it narrowly focuses solely on the employment context, in contrast to the broader sweep of the equal protection clause which reaches the full range of employment and nonemployment government action, this Court and Congress have recognized that it is appropriate to place more stringent requirements on the defendant employer under Title VII than under the equal protection clause.44 Title VII’s remedial and deterrent purposes are best served by imposing a clear and 44 compare Washington v. Davis, 426 U.S. 229 (1976) (equal protection does not reach neutral action with discriminatory effect without a showing of intent) with Griggs v. Duke Power Co., 401 U.S. 424 (1971) (liability in Title VII may be imposed upon a showing of discriminatory impact; explicit discriminatory intent need not be proved); compare Geduldig v. Aiello, 417 U.S. 484 (1974) (employment discrimina- tion against pregnant women does not violate the equal protection clause) with Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 _ Stat. 2076 (1978) (amending Title VII to define pregnancy discrimination as sex discrimination). - 55 - convincing evidentiary standard on defend- ants who have acted illegally. "By making it more difficult for employers to defeat successful plaintiffs’ claims ... the higher standard of proof might well discourage unlawful conduct by employers." Toney _v. Block, 705 F.2d at 1373 (Tamn, J., concurring). A preponderance of the evidence standard is appropriate only where the interests of the parties are balanced and it is just that they share equally the "risk of error." Herman and MacLean v. Huddleston, 459 U.S. 375, 390 (1983). See also Addington v. Texas, 441 U.S. 418, 423 (1979). However, where the interests weigh more heavily in favor of one party, the more stringent clear and convincing evidence standard must be imposed. Huddleston, 459 U.S. at 389. - 56 - The interest of an employee not to be harmed in his or her ability to make a livelihood because of his or her race, sex, national origin or religion is far superior to the interest of an employer to make employment decisions based upon such prohibited characteristics. See Hishon v. King & Spalding, 467 U.S. 59, 68-69 (1984). Once the defendant in a Title VII case has been proved to engage in discriminatory conduct, it is only fair and equitable that such a "proved" wrongdoer should bear the lion’s share of the risk of error: "The higher standard of proof is justified by the consideration that the employer is a proved wrongdoer whose unlawful conduct has made it difficult for the plaintiff to show what would have occurred in the absence of that conduct." Toney v. Block, 705 F.2d 1364, 1373 (D.C. Cir. 1983) (Tamm, J., concurring). As noted by the D.c. Circuit - 57 - in Day v. Mathews, "({i]t is now impossible for an individual discriminatee to recreate the past with exactitude ... because of the employer’s unlawful action; it is only equitable that any resulting uncertainty be resolved against the party whose action gave rise to the problem." 530 F.2d 1083, 1086 (D.C. Cir. 1976) (citation omitted). This standard is routinely applied to defendants in a number of circuits. The D.C. Circuit was the first to apply it in D Vv ws, 530 F.2d 1083 (D.C. 1976). In Day, the plaintiff proved discrimination by circumstantial evidence and _ sought retroactive relief. The defendant did not contest the finding of discrimination on appeal. The Court placed the burden on the employer to defeat plaintiff’s claim for retroactive relief and required the employer to meet a clear and convincing evidentiary standard because of both the - 58 - deterrent and make whole purposes of Title VII. Id. at 1086.4° The Ninth Circuit also applies this standard to employers at the remedy stage 45 For a fuller explication of Day v. Mathews as interpreted by the U.S. Court of Appeals for the District of Columbia, see Milton v. Weinberger, 696 F.2d 94, 97-99 (D.c. Cir. 1982). See also Bundy _v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981) (where discriminatory work environment is shown, burden shifts to employer to show by clear and convincing evidence that particu- lar employment action was not the result of discrimination). But see Johnson v. Brock, 810 F.2d 219, 224 (D.C. Cir. 1987) (Day applies only after plaintiff has establish- ed a statutory violation with respect to the particular position for which retro- active relief is sought); Toney v. Block, 705 F.2d 1364, 1366 (9.6. Cae. 1983) (same). Here, plaintiff has shown by direct evidence that discrimination played a significant role in the decision not to promote her. See pp. 22-29 supra. Accord- ingly, plaintiff’s proof is considerably more substantial than that presented in Vv , 705 F.2d 1364 (D.C. Cir. 1983). In Toney, the district court found that race was not a factor in the promotion decision at issue. Plaintiff showed only that race played a role in another employ~ ment context which plaintiff argued might have influenced the promotion decision. Id. at 1365. - 59- of litigation. See, e.g., Muntin v. State of Cal. Parks and Recreation Dep't, 671 F.2d 360, 362-63 (9th Cir. 1982), aff’d, 738 F.2d 1054 (9th Cir. 1984); Marotta v. Usery, 629 F.2d 615, 618 (9th Cir. 1980). In the Ninth Circuit once plaintiff has established initial liability by proving by direct evidence that discrimination played a significant factor in the adverse employment decision, she is entitled to prospective relief. Retroactive relief is forthcoming unless the defendant shows by clear and convincing evidence that the same decision would have been reached absent the discrimination. The Fourth and Eleventh Circuits have imposed a clear and convinc- ing evidence standard on defendants who have an immediate or recent past history of discrimination. See, e€.g., Gilchrest v. Bolger, 733 F.2d 1551, 1554 (11th Cir. 1984); Knighton v. Laurens County School - 60 = Dist., 721 F.2d 976 (4th Cir. 1983). The Fourth Circuit has also established clear and convincing evidence as the appropriate standard where plaintiff proves discrimina- tion by direct evidence. Patterson v. G W istri , 696 F.2d 293 (4th Cir. 1982). In Patterson, the plaintiff produced evidence of sex stereo- typing in the decision not to promote her to principal. 696 F.2d at 294.4© As in the Ninth and D.c. Circuits, this burden is applied to defendant at the remedy stage cf litigation, once liability for injunctive 46 The district court based its finding of discrimination in part. on the subjective and male dominated selection procedure and evidence that the committee was searching for a candidate who fit a male stereotype. Plaintiff was penalized in the process for her "nervousness," "high-pitched voice" and “over~-domineering personality." Patterson, 696 F.2d at 294. - 61- relief has been imposed. 47 See also Price Vv. e , 694 F.2d 334, 376 n. 78 (5th Cir. 1982) (ap- plication of clear and convincing evidence standard in Fifth Circuit) .48 ~ 47 similariy, in class action discrimination cases, several circuits have held the employer as a proven wrongdoer to a clear and convincing evidence standard to rebut a showing of entitlement to relief. See, e.g., Vv. eri Co., 784 F.2d 1546,1561 (llth Cir. 1986), cert. denied, __—»sU.S. _, 107 S. Ct. 274 (1986); McKenzie v. Sawyer, 684 F.2d 62, 77 (D.C. Cir. 1982); League of United Latin American Citizens v. City of Salinas, 654 F.2d 557, 558 (9th Cir. 1981); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 444 (5th Cir.) cert. denied, 419 U.S. 1033 (1974). 48 only two circuits explicitly reject the clear and convincing evidence standard in Title VII cases involving direct evidence of discrimination. Fields v. Clark University, 817 F.2d 431, 437 (1st Cir. 1987); i Vv j Univ i (e) , 731 F.2d 465, 470 n.8 (8th Cir.1984). The preponderance of the evidence standard has been applied else- where, but with no discussion of the reason for its use instead of the clear and convincing evidentiary standard. - 62 - Finally, clear and convincing evidence is required of defendants in actions before the EEOC. See EEOC Remedial Actions, 29 C.F.R. 1613.271 (1980). The guidelines, while not controlling upon the courts, "do constitute a body of experience and informed judgment to which courts and litigants properly resort for guidance." ° avings Ban v. Vi , 477 U.S. 57, 65 (1986) (quoting General ectric Co. v. Gilbert, 429 U.S. 125, 141- 42 (1976)). Price Waterhouse was properly held to clear and convincing evidentiary standard in this case. Plaintiff proved by direct evidence that discriminatory bias played a siqnificant role in the decision not to promote her to the position for which retroactive relief was sought. Defendant's status was therefore elevated to proved wrongdoer. In order to avoid liability for - 63 - make-whole relief, it was appropriately obligated to prove that it would have made the "same decision" absent bias by clear and convincing evidence. CONCLUSION Accordingly, this Court should affirm the decision below and remand for further proceedings consistent with that judgment. Respectfully submitted, Donna R. Lenhoff Claudia A. Withers Women’s Legal Defense Fund 2000 P Street NW Suite 400 Washington, D.C. 20036 (202) 8870-364 Of Counsel June 18, 1938 Sarah F. Burns* Lynn Hecht Schafran Marsha Levick NOW Legal Defense and Education Fund 99 Hudson St. 12th Fl New York, New York 10013 (212) 925-6635 and 1333 H St. N.W. 11th Fl Washington, D.C. 20005 (202) 682-0940 Joan Bertin John A. Powell American Civil Liber- ties Union Foundation 132 W. 43rd Street New York, New York 10036 (212) 944-9800 Counsel for Amici Curiae * Counsel of record. Amici Curiae acknowledge and thank New York University Law School graduate Anne Zinkin, J.D. 1988, for her substantial contribu- tions to this brief. Amici also acknow- ledge and thank New York attorney Alison Wetherfield, N.Y.U. Law School graduate Mary Elizabeth McNulty, J.D. 1988, Emory University School of Law student Jill Hanekamp, Brooklyn College Law Student Andrea Sharrin, Columbia University School of Law student Rita Costabile and Barnard College graduate Kakoli Ray for their assistance. APPENDIX APPENDIX Statements of Interest of Amici Curiae The American Association of University Women ("AAUW") a national organization of over 150,000 college-educated women and men, is strongly committed to promoting and achieving legal, social, educational and economic equity for women. For more than a century AAUW has worked toward those goals by responsible participation in public policy issues at local, state, national and international levels. AAUW supports constitutional protection for the rights of all individuals and opposes all forms of discrimination. Therefore, AAUW has a strong interest in the outcome of this case. The American Civil Liberties Union ("ACLU") is a nationwide union, non- partisan organization of over 250,000 members dedicated to protecting fundamental rights, including the right to equal treatment under the law. The ACLU has established the Women’s Rights Project to work towards the elimination of the pervasive problem of gender-based discri- mination. It has participated, both directly and as amicus curiae, in the litigation of many cases before the Supreme Court and other courts challenging sex discriminatory practices. The Employment Law Center, a project of the Legal Aid Society of San Francisco, is a private non-profit public interest law firm which specializes in employment discrimination. Founded in 1916 to represent individuals unable to afford legal counsel, the Employment Law Center is dedicated to the eradication of all forms of employment discrimination. In the area of sex discrimination, the Employment Law Center has filed amicus curiae briefs in ‘} i t —————— 1 11 promote the professional advancement of women attorneys and to address the problems that women attorneys face in their profes- sion and in the workplace. The organiza- tion also protects and promotes the interests of women generally. The WBA submits this brief in support of affirmance because of WBA's profound concern with the prevalence of sex discrimination in the workplace. The WBA's participation in Meritor Savings Bank, FSB v. Vinson, and Hishon v. King & Spaulding reflects WBA's view that Title VII, and the application of the correct burdens of proof in Title VII cases are essential to eliminating all vestiges of sex discrimination from the workplace. The Women's Equity Action League (WEAL), was founded in 1972 as a national, non-profit membership organization spe- Ccializing in economic issues affecting women. WEAL sponsors research, education projects, litigation and legislative advocacy. WEAL is committed to the full and effective enforcement of antidiscri- mination laws at both the federal and state levels to assure that all economic oppor- tunities are available to women as well as men. WEAL has appeared as amicus curiae in numerous gender discrimination cases before this Court such as Arizona Governing Committee v. Norris, Roberts v. Jaycees, and Grove City College v. Bell . Women Employed is a national member- ship association of working women. Over the past fifteen years, the organization has assisted thousands of women with problems of discrimination, monitored the performance of equal employment opportunity agencies, analyzed equal employment opportunity policies, and developed specific, detailed proposals for improving enforcement efforts. The Women's Legal Defense Fund is a non-profit membership organization founded in 1971 to provide pro bono legal assist- ance to women who have been the victims of discrimination based on sex. The Fund devotes a major portion of its resources to combating sex discrimination in employment through litigation of significant employ- ment discrimination cases, operation of an employment discrimination counseling program, and advocacy before the Equal Employment Opportunity Commission and other federal agencies charged with enforcement of the equal opportunity laws. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0633%3A12. Public record. Not legal advice.