Sex-Based Stereotyping Endures: Revisiting Price Waterhouse v. Hopkins, 30 years later

Author: Margarite Sullivan

Guest Editor: Brittany Torrence

February 5, 2019 10:28am

Thirty years ago, the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) held that the decision not to promote a woman by giving weight to comments based on stereotypes associated with the woman’s sex was a violation of Title VII of the Civil Rights Act.

Ann Hopkins, the plaintiff in the underlying action and respondent on appeal, worked for Price Waterhouse for five years at the time she was ripe to be proposed to partnership.  One notable accomplishment included Hopkins’ effort to secure a $25 million contract with the Department of State.  The trial judge noted, “none of the other partnership candidates at Price Waterhouse that year had a comparable record in terms of successfully securing major contracts for the partnership.”

Hopkins was described by partners at Price Waterhouse and its clients as “an outstanding professional” who had a “deft touch,” a “strong character, independence and integrity”, “extremely competent, intelligent”, “strong and forthright, very productive, energetic and creative,” a person with “intellectual clarity,” and “a stimulating conversationalist.”

However, internal complaints from staff indicated Hopkins was aggressive and abrasive.  In Price Waterhouse partners’ written comments regarding Hopkins candidacy for partner were comments describing Hopkins as “macho”; suggestions that she “overcompensated for being a woman”; advice that Hopkins should take “a course at charm school”; criticisms about Hopkins’ use of profanity with the suggestion her swearing was objectionable “because it’s a lady using foul language.”  An alleged supporter of her candidacy explained Hopkins “had matured from a tough-talking somewhat masculine hard-nosed manager to an authoritative, formidable, but much more appealing lady partner candidate.”  The straw that broke the proverbial camel’s back and put the cherry on top of this obvious discrimination based on sex was the following comment made by a partner: if Hopkins wanted to improve her chances of partnership, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

Hopkins was not the first victim of Price Waterhouse’s obvious sex-based stereotyping.  In previous years, “one partner repeatedly commented that he could not consider any woman seriously as a partnership candidate and believed that women were not even capable of functioning as senior managers.”  “Candidates were viewed favorably if partners believed they maintained their femininity while becoming effective professional managers.”

Double-Edged Sword

The problems faced by Ann Hopkins are sadly still prevalent in our culture.  Consider the criticisms of Hillary Clinton in her bid for the presidency.  Ever-present were the concerns a woman was unfit to serve as the commander-in-chief and the contrasting criticisms Hillary Clinton is a “Nasty Woman.”  In fact, Kamala Harris has repeatedly been asked if the United States is ready for the first woman of color president.  The very existence of this question demonstrates women’s constant battle to justify their existence in spaces traditionally occupied by men.

Although anecdotal, my experiences in academia and professional life show no deviation from the treatment suffered by Ann Hopkins.  Being told I have a “tone problem” by opposing counsel; my first boss calling aggressive women adversaries vulgar names to me; being told I am too aggressive and then later that I am not cut out to be a lawyer and should consider part-time work; and the list goes on.  I am a witness to my women colleague’s treatment as well.

Sex-Based Stereotyping is Harmful to Men Too

Exclusively using “masculine” and “male” as the norm against which we judge individual’s efficacy harms the male workforce as well.  A primary example of harmful sex-based stereotyping toward men can be found in a diminished access to paternity leave and workplace flexibility concerning childcare.  Men take substantially less leave after the birth or adoption of a child.  A 2012 Department of Labor survey found 70 percent of men taking leave for parental reasons took 10 days or less.  See https://www.dol.gov/asp/policy-development/PaternityBrief.pdf at Fn. 15.  The fathers in the 2012 survey cited workplace pressures as a factor in the length of leave they took.  “Other studies have found that fathers who reduce their work hours or leave work for family reasons may incur a ‘flexibility stigma.’”  https://www.dol.gov/asp/policy-development/PaternityBrief.pdf.

In an article published by Laurie A. Rudman and Kris Mescher in the Journal of Social Issues, the authors found the following:

“Men who request a family leave are viewed as poor organizational citizens and ineligible for rewards. In addition to a poor worker stigma, […] male leave requesters suffer femininity stigma. Compared with control targets, male leave requesters were viewed as higher on weak, feminine traits (e.g., weak and uncertain), and lower on agentic masculine traits (e.g., competitive and ambitious). Perceptions of weakness uniquely predicted greater risk for penalties (e.g., being demoted or downsized) and fully accounted for the effect of poor worker stigma on male leave requesters’ penalties. By contrast, the poor worker stigma and both agency and weakness perceptions contributed to their reward recommendations.”  See https://spssi.onlinelibrary.wiley.com/doi/10.1111/josi.12017.

The “penalized” sex-based stereotyping is attributed to a man’s failure to adhere to masculine norms by participating in stereotypically “feminine” work such as childcare.

Takeaway

From a purely business standpoint, sex-based stereotyping undermines the goal of employing an intelligent, competent, creative, and diverse workforce.  Not only does sex-based stereotyping harm the labeled individual, it also impacts the efficacy of the workforce as a whole.  Why limit the success of society with socially constructed norms and rules that have never served us?  We must encourage each other to deviate from the norm and accept that both women and men can be aggressive and nurturing.  Think about both common and insidious sex-based stereotyping and consider whether these beliefs are helpful in any way.  Embrace the traits that make employees and colleagues successful, regardless of their binary characterization as traditionally masculine or feminine.

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