In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court recognized Title VII’s prohibition on sex discrimination necessarily includes a prohibition on gender stereotyping. The female employee in Price Waterhouse was denied a promotion because she was “macho,” “tough-talking,” and used “foul language,” and therefore failed to conform to certain gender stereotypes related to women. Id. at 235, 250-53. Six members of the Court held that adverse employment action like this, rooted in “sex stereotyping” or “gender stereotyping,” was actionable sex discrimination.
Facts
Hopkins worked for an accounting firm, Price Waterhouse, at its Office of Government Services in Washington, D.C. Despite several years of strong performance, she was denied partnership in the firm.
Price Waterhouse denied Hopkins partnership, in essence, because of her aggressive personality, which sometimes bordered on abrasiveness. For example, partners evaluating her work had counseled her to improve her relations with staff members. And although Hopkins’ evaluations later noted improvement, her perceived shortcomings in this area ultimately doomed her bid for partnership. In the firm’s consideration of Hopkins for a promotion to partner, virtually all of the firm’s partners’ negative remarks about her had to do with her “interpersonal skills.” Id. at 234-35. Both “[s]upporters and opponents of her candidacy … indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with and impatient with staff.” Id.
The Court observed that there were “clear signs” that some of the partners reacted negatively to Hopkins’ personality because she was a woman. Id. One partner described her as “macho”; another suggested that she “overcompensated for being a woman”; a third advised her to take “a course at charm school.” Id. Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only “because it’s a lady using foul language.” Id. Another supporter explained that Hopkins “ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.” Id. But the male supervisor who bore responsibility for explaining to Hopkins the reasons for the firm’s decision to not grant her partnership described her purported failings in terms of stereotypes about how women should behave: in order to improve her chances for partnership, the firm advised, Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235.
In short, the record indicated Price Waterhouse denied Hopkins partnership because she did not behave the way Price Waterhouse believed women should behave.
Hopkins filed suit against Price Waterhouse under Title VII of the Civil Rights Act of 1964, on the grounds that she was unlawfully denied partnership because of her sex.
Applicable Law
As discussed in an earlier post, Title VII makes it unlawful for an employer to “discharge any individual, or otherwise discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
Sex need only be a motivating factor, and not the only reason for the discharge or other discrimination. “[A]n unlawful employment practice is established when … sex … was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).
This section clearly prohibits an employer from refusing to hire or promote a female because she is female and the employer would prefer a male. Price Waterhouse addressed the question of whether Title VII also prohibits an employer from discriminating against an individual because she or he does not conform to the employer’s (or society’s) stereotypes about how the different sexes should behave.
The Court’s Decision
Addressing the facts in Price Waterhouse, the Supreme Court held, inter alia, that Title VII’s prohibition on sex discrimination necessarily includes a prohibition on gender stereotyping. The Court noted that Hopkins was denied a promotion because she was “macho,” “tough-talking,” and used “foul language,” and therefore failed to conform to certain stereotypes related to women. Id at 235, 250-53. Six members of the Court held that adverse employment action rooted in such “sex stereotyping” or “gender stereotyping” was actionable sex discrimination. Id. at 250–52 (plurality; “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender”); see also id. at 258 (White, J., concurring); id. at 272–73 (O’Connor, J., concurring).
Analysis
This case is important in the context of developing and understanding Title VII’s prohibition against employment discrimination “because of sex.” Under Price Waterhouse, a discharge (or other adverse employment action) based at least partly on gender stereotyping is unlawful sex discrimination under Title VII. As the Fourth Circuit Court of Appeals explained in G.G. ex rel. Grimm (Grimm II), “the Supreme Court has expressly recognized that claims based on an individual’s failure to conform to societal expectations based on that person’s gender constitute discrimination ‘because of sex’ under Title VII[.]” 654 Fed. Appx. 606, 606–07 (4th Cir. 2016) (Davis, J., concurring) (internal citations omitted).
As the American Psychological Association explained in its amicus brief in Price Waterhouse, sex stereotyping can create discriminatory consequences for stereotyped groups — for example, where they shape perceptions about women’s typical and acceptable roles in society. The APA further explained, as seen in the circumstances surrounding Hopkins’ partnership denial, how sex stereoptyping can have negative effects on women in work settings. The Supreme Court’s decision in Price Waterhouse allowed Title VII to be applied in a manner that seeks to address and remedy these issues.
Following the reasoning in Price Waterhouse, courts around the country have consistently held that an employer violates Title VII when it takes adverse action against an employee because she or he does not behave the way the employer believes the different sexes should behave. For example, Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1072 (9th Cir. 2003), as amended (Jan. 6, 2004) characterized employer complaints about “assertive, strong women” as “difficult,” “having a negative attitude,” “not a team player,” and “problematic” as sex stereotypes that show discrimination. For similar reasons, in Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 351–52 (7th Cir. 2017) (en banc) the Seventh Circuit held that a female plaintiff could state a Title VII claim under a sex stereotyping theory. In Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 200–01 (2d Cir. 2017) (per curiam) the Second Circuit likewise held that the plaintiff employee stated a plausible Title VII claim based on a gender stereotyping theory. As did the Third Circuit, in Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009) (collecting cases, noting “the Supreme Court held that Title VII prohibits discrimination against women for failing to conform to a traditionally feminine demeanor and appearance”). In Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874–75 (9th Cir. 2001), the Ninth Circuit applied Price Waterhouse in the context of sex discrimination against a male employee, observing that “the holding in Price Waterhouse applies with equal force to a man who is discriminated against for acting too feminine.” Similarly, in Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000), the court noted that Title VII forbids “[d]iscrimination because one fails to act in the way expected of a man or woman”). The First Circuit applied Price Waterhouse in Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999), observing that “a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity.”
For some additional examples of stereotyping discrimination in the trial courts, see Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730, 746 (E.D. Va. 2018) (discussing the gender-stereotyping theory of Price Waterhouse, collecting cases, and concluding claims of discrimination on the basis of failure to conform with gender-based societal expectations are “per se sex discrimination under Title VII[.]”); and Klings v. New York State Office of Court Admin., 2010 WL 1292256, *11, *15-16 (E.D.N.Y. Apr. 5, 2010) (complaints that the female plaintiff had an “abrasive personality” and was “condescending” could reflect a “gender bias: that women do not have leadership and motivational skills, [and] cannot manage aggressively[.]”).
In summary, Price Waterhouse was an important case because, among other things, it confirmed that Title VII’s language prohibiting discrimination “because of sex” includes a prohibition on gender stereotyping.
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