Woman in the Moon: Gender Stereotypes Are Not a Thing of the Past, and Will Be Reflected in the Future of Employment Law Litigation

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As we all know, Title VII of the Civil Rights Act of 1964 prohibits discrimination on account of sex, race, color, religion and national origin. Too often, though, managers fail to grasp that Title VII's mandate bars employers from acting on gender stereotypes.

In 1989, the U.S. Supreme Court held that an employer may be guilty of engaging in unlawful sex discrimination, even if the employer does not directly consider gender but rather relies on gender stereotypes about the individual. At the time, the decision was heralded as groundbreaking. Today, it is hard to imagine any other outcome.

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While the impropriety of gender stereotyping is clear, the legal consequences are sometimes broader than many HR professionals realize. Plus, in some cases, laudable messages in the context of diversity programs may be seen as impermissible stereotyping.

Unacceptable Comments

In Price Waterhouse v. Hopkins (490 U.S. 228 (1989)), the key issue was whether Ann Hopkins was denied partnership because of her sex.

From the record, it appears that there was no question that she was intellectually capable and very successful in terms of client relations and business generation. To quote the district court judge, she "was generally viewed as a highly competent project leader who worked long hours, pushed vigorously to meet deadlines and demanded much from the multidisciplinary staffs."

However, Hopkins' pushing hard may have been too much of a good thing. According to the district court, both "supporters and opponents of her candidacy indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with and impatient with staff."

These were undeniably legitimate concerns. However, there also were indications that some of the negative reaction to Hopkins' behavior may have been attributable to her gender. One partner described her as macho. Another suggested that she overcompensated for being a woman. A third recommended that she take a course at charm school.

And one of the key decision-makers told her that, to improve her chances for partnership, Hopkins should "walk more femininely, wear make-up, have her hair styled and wear jewelry."

The Supreme Court agreed with the district court that Price Waterhouse had legitimate reasons to deny Hopkins partnership in light of some of the problems with her interpersonal style. But the Supreme Court also agreed with the district court that some of the comments made about Hopkins were based on a stereotypic view of what is acceptable behavior for a woman.

As for the legal significance of gender stereotyping, the Supreme Court stated "we are beyond the day when an employer can evaluate employees by assuming or insisting that they match the stereotypes associated with their group.... An employer who objects to aggressiveness in women but whose positions require this trait place women in an intolerable Catch-22: out of a job if they behave aggressively and out of a …