Sex stereotyping in the workplace: a manager's guide - Women in Business

Business Horizons, March-April, 1993 by Eileen P. Kelly, Amy Oakes Young, Lawrence S. Clark

Lower Court Decisions. During the trial, Ann Hopkins presented evidence concerning alleged disparate treatment and sex stereotyping.

To prevail, she had to establish "a claim of disparate treatment based on subjective evaluations" and "proof of discriminatory motive or purpose." The district court found three factors that combined to produce discrimination in the workplace: comments made by firm partners based on sex stereotypes; an evaluation process that gave weight to these stereotypes; and conspicuous problems of stereotyping in firm evaluations that the firm failed to address. Because Ms. Hopkins was able to prove these elements, the court shifted the burden of proof to Price Waterhouse, which was unable to demonstrate by "clear and convincing" evidence that its decision to refuse partnership to Hopkins would have been the same absent discrimination.

On appeal, the United States Court of Appeals held that Price Waterhouse had engaged in illegal sex stereotyping. In reaching its decision, the court used a clear and convincing evidence standard--a much more difficult standard to meet than proof by a preponderance of the evidence standard. Additionally, the court held that the Price Waterhouse case was a "mixed motive" case because of the direct evidence of employer bias based on gender.

In a mixed-motive case, there are both legitimate and illegitimate reasons for an employment decision. Legitimate concerns in the Hopkins situation included her alleged inability to get along with subordinates and her weak relations with coworkers. Illegitimate concerns included her so-called "macho" image, overly aggressive attitude, and "unfeminine" behavior and appearance. In other words, she did not act like a "woman." Clearly, Price Waterhouse felt that these characteristics were inappropriate for a female partner. The finding of a mixed motive and sex stereotyping supported the district court's decision to shift the burden of proof from Hopkins to Price Waterhouse. Equally important was the court of appeals finding that the firm's sex stereotyping did indeed play a part in the denial of partnership to Ms. Hopkins. Because Price Waterhouse once again lost its case, the firm applied to the U.S. Supreme Court for review.

Supreme Court Decision. The Supreme Court's analysis of Price Waterhouse is a quagmire of opinions and alternative points of view. As a result, it gives little clear guidance to the legal profession or the business world. Although Justice Brennan's plurality decision recognizes the legal relevance of sex stereotyping and its coverage under Title VII, it leaves many questions unanswered.

Two points, however, are clear. First, the court held that in disparate treatment cases involving direct evidence or mixed motives, the burden of proof can shift from the plaintiff to the defendant. Once shifted, the defendant business must then establish that legitimate employment considerations would have justified the decision without reference to any impermissible motive. Second, the court rejected the clear and convincing standard, instead adopting proof by a preponderance of the evidence--a lesser and more easily proven standard. The Supreme Court subsequently remanded the case to the United States District Court for the District of Columbia.