The New Sex Discrimination

By Kramer, Zachary A. | Duke Law Journal, January 2014 | Go to article overview

The New Sex Discrimination


Kramer, Zachary A., Duke Law Journal


B. Subgroups and Stereotypes

Since the early days of Title VII, courts have been confounded by the issue of subgroup discrimination. Some of the earliest sex discrimination cases were brought by flight attendants--or stewardesses, as the job was called back then--who were challenging the airline industry's discriminatory practices toward women. (152) To cultivate the dual image of flight attendants as both potential bride and sex object, (153) the airlines went to great lengths to control their employees' private lives. Marriage (154) and pregnancy (155) were grounds for dismissal, and the airlines forced flight attendants to retire when they reached a certain age, usually between thirty and thirty-five. (156) The airlines were not engaging in wholesale discrimination against all women. Rather, they were discriminating against some women. Within the subgroup of women who work as flight attendants, the rules drew distinctions between single women and married women, as well as between older women and younger women.

Subgroup discrimination is not always defined by job categories, however. Another prominent form of subgroup discrimination occurs when an employer targets some women (or men) because they have--or do not have--a particular trait. For instance, say an employer will hire men with school-aged children but not women with school-aged children. (157) Even though the employer may not have a policy against hiring women as a general matter, this specific rule disadvantages a subgroup of women (women with school-aged children). (158) A leading antidiscrimination scholar, Kimberly Yuracko, has coined the phrase "trait discrimination" to describe the experience of discrimination in these subgroup cases. (159) The label is especially valuable because it captures the essence of subgroup discrimination: discrimination based on sex plus some other trait. (160) The other trait can be another protected trait, like race, (161) or an unprotected trait, like whether the employee has short or long hair. (162)

Within subgroup discrimination, the thorniest issue concerns the scope of the gender-stereotyping theory of sex discrimination. The gender-stereotyping theory has its roots in a 1989 Supreme Court decision, Price Waterhouse v. Hopkins. The case revolved around Ann Hopkins's unsuccessful partnership bid at the consulting firm Price Waterhouse. Hopkins had worked for the firm for five years before applying for the promotion to partner. (163) Of the eighty-eight employees up for partnership that year, Hopkins was the only woman. (164) In fact, had she been successful, Hopkins would have been only the eighth female partner at the firm, out of 662 partners then affiliated with the firm. (165) As part of its review process, Price Waterhouse solicited feedback about the candidates from partners across the country, even from partners who had little to no contact with the applicant. (166)

The feedback on Hopkins revealed that the partners were conflicted about her candidacy. On the one hand, the partners viewed her work product favorably, citing in particular her work landing, almost singlehandedly, a lucrative contract with the federal government. (167) On the other hand, the partners voiced concerns about Hopkins's interactions with coworkers. The partners depicted Hopkins as difficult to work with and rude to support staff. (168) It was these latter comments, about Hopkins's so-called "interpersonal skills," (169) that raised the specter of sex discrimination. The partners said that she was "macho," that she "overcompensated for being a woman," and that she needed "a course at charm school." (170) Perhaps the most critical fact, however, was the advice given to Hopkins about how she could improve her chances for making partner in the future. (171) She was told to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." (172)

Hopkins sued Price Waterhouse under Title VII, alleging sex discrimination. …

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