Keeping women out of the executive suite: the courts' failure to apply Title VII scrutiny to upper-level jobs.

• Author: Baron, Tracy Anbinder

Despite women's(1) recent gains in fields that have been historically dominated by men, the upper reaches of most professions remain disproportionately male.(2) Thus, although the percentage of female lawyers, professors, and middle managers has risen steadily, the percentage of female law partners, tenured professors, and senior executives is still much lower than many would expect.(3) Some call this phenomenon the "glass ceiling." Others call it a "plateau." But whatever its name, it is keeping productive members of the work force underemployed and unrewarded.

While there are many possible explanations for this persistent problem, the courts are at least partly responsible. As the courts assumed a more active role in scrutinizing employment decisions for lower-level jobs, those jobs became more accessible to women and minorities.(4) Despite their professed concern for equal opportunities at the upper levels of employment,(5) the courts do not scrutinize upper-level employment decisions as closely as lower-level employment decisions. When the position at stake is a prestigious white-collar job, courts tend to defer to the employer, expressing fears of second-guessing the employer or infringing on the employer's professional judgment.(6)

The courts' deference in this area is not wholly unjustified. Employment decisions for upper-leveljobs are virtually always based on subjective judgments of candidates' talents and abilities.(7) These types of decisions can be more dffficult to review than typical lower-level employment decisions, which can usually be based on objective factors such as words typed per minute or widgets assembled per hour. This difficulty inherent in reviewing upper-level employment decisions, however, does not justify abdication of the duty to uphold Title VII's proscription against employment discrimination.(8) Nor should a concern for taking too much discretion out of employers' hands keep the courts from acting. Rather, the courts should develop an analytical system that can identify and address the individual and institutional biases that affect employers' decisions. A legal framework that recognizes and condemns such biases would create incentives for employers to restructure their decision-making in ways that would minimize the impact of those biases, while still preserving a great degree of employer discretion over upper-echelon employment decisions.

This Comment, examines the courts' failure to address upper-level employment discrimination effectively and proposes a solution that would allow them to do so. Part I describes the sociological and psychological factors that create subtle barriers to women's advancement in the upper levels of most professions. Part II explains how the courts' refusal to scrutinize the intricacies of upper-level employment decisions has made it nearly impossible for upper-level plaintiffs to prevail on Title VII claims. Part III proposes a Title VII analysis that would permit courts to scrutinize upper-level employment decisions without unnecessarily limiting employer discretion. By closely analyzing the elements of subjective decision-making systems, the courts can better distinguish between those employers who have reduced the influence of gender bias in their employment decisions and those employers who have not. In this way, courts can apply Title VII scrutiny to upper-level employment decisions without forcing employers to abandon valid subjective criteria.

1. WHY THE GLASS CEILING PERSISTS

   Although the statistics describing women's presence in upper-level jobs(9) vary from source to source, the persistence of a sizable disparity between the presence of men and women in such jobs is unmistakable. From a recent review of the corporate headquarters of ninety-four Fortune 1000 companies, the U.S. Department of Labor estimated that although women represented 37.2% of all employees, they represented only 16.9% of those at all levels of management and 6.6% of executive-level managers.(10) A 1990 survey by the UCLA Anderson Graduate School of Management and the executive search firm Korn/Ferry Intemational found similar statistics, concluding that minorities and women hold less than five percent of the top executive positions in the one thousand largest U.S. corporations, a figure only slightly higher than it was in 1979, when they held fewer than three percent of such positions.(11) In 1991 the Feminist Majority Foundation predicted that it would take 475 years for women to reach equality with men in executive positions if the present rate of progress were to continue.(12)

   Part of this disparity may be due to real or imagined differences between the way women and men pursue their careers. This view attributes the lower achievement levels of professional women to the fact that women, more often than men, interrupt their careers to raise children and prefer to sacrifice work in order to spend more time with their families.(13) Thus, women may consciously or unconsciously choose jobs that are less demanding on their time, and therefore less powerful and less financially rewarding. Others explain the disparity as a mere temporary phenomenon resulting from the lag time needed for recent women entrants into the job market to work their way up to the most prestigious positions.(14)

   These arguments, however, only partially explain the persistent gap between men and women in upper-level jobs. Observers ranging from feminist scholars to the Bush Administration Labor Department agree that women's underrepresentation in the elite ranks of their professions is not solely due to their preferences and work habits. The U.S. Department of Labor's recent report on the glass ceiling phenomenon concluded that "the progress of minorities and women in corporate America is affected by more than qualifications and career choices."(15) The report noted that "[w]hile some assert that minorities and women have neither been in the workforce long enough, nor have the needed credentials, the vast majority of available research information points to artificial barriers as a significant cause for why minorities and women have not advanced further in corporate America."(16) An increasing body of evidence suggests that men and women approach their careers more similarly than most people assume.(17) Deborah Rhode, Professor of Law and Director of Stanford University's Institute for Research on Women and Gender, argues that the barriers to women's professional advancement cannot be explained as mere "cultural lag or employee choice," but rather result from a combination of intentional discrimination and "more subtle forms of socialization patterns and institutional structures that the law has politely overlooked."(18)

   1. Social and Psychological Factors That Affect

      Women in Upper-Leveljobs

      In order to fully comprehend why the law's efforts to eliminate gender discrimination have been only partially successful, one must understand the social and psychological factors that cause discrimination in upper-level jobs. As the following discussion demonstrates, discrimination that affects upper-level women is often unintentional and unconscious. Because discrimination in the executive suite differs from discrimination on the factory floor, it is not surprising that legal doctrines designed with lower-level jobs in mind do not adequately address upper-level discrimination.

      1. Unconscious Tendency to Promote Socially Similar People

         One disadvantage that women face at the upper levels of most professions is that many people prefer colleagues who are similar to themselves. As long as men make up the overwhelming majority of high-level professionals, they will probably continue to promote other men more often than they promote women unless they are held accountable by being forced to justify their employment decisions. This preference to work with similar people may simply be the result of men feeling most comfortable when they are around other men. Research has shown that "`top executives tend to promote people into leadership positions who are as much like them as possible'" because they are "`simply more comfortable with and seem to gravitate toward people like themselves.'"(19)

         Organizational studies have shown that leaders are "likely to show preference for socially similar subordinates and help them get ahead."(20) Thus, in a bureaucratic corporation, managers tend to "rely on outward manifestations to determine who is the 'right sort of person.'"(21) Rosabeth Moss Kanter, a professor of business administration at Harvard Business School and a noted expert on organizational behavior, explains this phenomenon:

         Because of the situation in which managers function, because of the position of managers in the corporate structure, social similarity tends to become extremely important to them. The structure sets in motion forces leading to the replication of managers as the same kind of social individuals. And the men who manage reproduce themselves in kind.(22)

         This tendency to promote people who are similar may be even more pronounced as one climbs the professional ladder. The desire to work with those who are similar results from an attempt to reduce the amount of uncertainty in the workplace.(23) The more discretion a job entails, the more the person performing that job must be trusted, and decision-makers feel most comfortable trusting people similar to themselves. In high-level jobs, where uncertainty abounds, it becomes crucial that "decision-makers [be able] to work together closely in at least the harmony of shared understanding and a degree of mutual trust."(24) Thus, "[w]e expect a direct correlation . . . between the degree of uncertainty in a position-the extent to which organizations must rely on personal discretion-and a reliance on `trust' through `homosocial reproduction'-selection of incumbents on the basis of social similarity."(25)

      2. Inferior Work Assignments

         Another commonly...