Price's progress: sex stereotyping and its potential for antidiscrimination law.

• Author: Herz, Zachary R.
• Position: Introduction through I. Stereotype and Its Importance for the Workplace, p. 396-422

NOTE CONTENTS INTRODUCTION I. STEREOTYPE AND ITS IMPORTANCE FOR THE WORKFORCE A. Before Price Waterhouse: Ascriptive Stereotyping, Sex-Plus, and Individualized Evaluation B. Which Reading of Price Waterhouse Is Correct? II. ANTIGAY DISCRIMINATION, OR SEX STEREOTYPING? COMPARING PRICE WATERHOUSE AND ENDA IN SELECTED EMPLOYMENT CONTEXTS A. Price Waterhouse and ENDA: The Bifurcated Landscape of Sexual Orientation Discrimination B. Price Waterhouse in Practice 1. The "Gayer" Plaintiff: Should Intragroup Differentiation Doom a Lawsuit? 2. The "Gayed" Plaintiff: Can Heterosexuals Be the Victim of Antigay Harassment? III. COMPLEMENTARITY, NOT COMPETITION: HOW PRICE WATERHOUSE CAN WORK WITH TRADITIONAL PROTECTIONS A. Using ENDA's "Because of' Provision to Fight Straightforward Antigay Harassment B. Price Waterhouse Protections in ENDA Itself? CONCLUSION: PRICE'S PROMISE INTRODUCTION

On January 31, 1968, Isabell Slack was stereotyped. (1) Slack, an African-American industrial worker at Havens International, was asked to spend the morning cleaning her department's workspace. (2) Slack's coworker, a white woman, was excused. (3) When Isabell Slack asked why she was being expected to do the work of a cleaning lady, her supervisor explained that "colored people are hired to clean because they clean better." (4) The Ninth Circuit found this to be race discrimination, with perhaps unremarkable brevity; (5) the court felt no need to explain how these statements were racially motivated because no other motivation existed. Ms. Slack's supervisor reduced her to her race--we know nothing about her own aptitude for cleaning, the cleanliness of her workspace, or whether she would be better or worse at such work than her colleague. All we know is that Slack is black. Her supervisor assumed that all African-American women were skilled at domestic work and ascribed that characteristic to Isabell Slack with no further thought. This sort of thinking lies at the core of what Title VII sought to prevent, and has fallen uncontroversially within its ambit since the 1960s.

On May 1, 1989, however, the Supreme Court radically expanded our conception of Title VII stereotype in Price Waterhouse v. Hopkins. (6) Ann Hopkins was repeatedly told by her employers to dress, speak, and act in a manner more appropriate to her sex. (7) This was stereotype, too, but of a vastly different form. Isabell Slack's employer paid no attention to her particular characteristics, while Ann Hopkins's employer obsessed over them. Havens International assumed that Isabell Slack was like other African-Americans, while Price Waterhouse saw that Ann Hopkins was not like other women and held it against her. Havens International, by assigning a characteristic to Isabell Slack without judging her as an individual, engaged in ascriptive stereotyping. Price Waterhouse, by correctly perceiving Ann Hopkins's individual traits but then judging them against an inappropriately gendered baseline, engaged in prescriptive stereotyping. While Price Waterhouse has been incredibly important in Title VII case law and scholarship, (8) this simple difference--between assuming members of a group fit a certain stereotype, on the one hand, and demanding that they do so, on the other--is drastically understudied, and it implicates two major problems in antidiscrimination discourse today.

First, a broader application of Price Waterhouse's view of discrimination has the potential to resolve, or at least to ameliorate, a serious problem in American antidiscrimination law--the inability of traditional Title VII approaches to address the realities of modern workplace bias. While the Civil Rights Act of 1964 led to huge immediate gains for black (9) and female (10) workers, those gains have recently stalled. Discrimination has, to quote Zachary Kramer, "become highly individualized;" (11) specifically, bias is increasingly expressed as a single factor in complex and multivariate individual evaluation, and is thus increasingly difficult to fit into the specific, historically contingent model of open race and gender hierarchies that animated the Civil Rights Act of 1964. This conceptual mismatch has led to shockingly poor outcomes for employment discrimination plaintiffs and persistent workplace inequality. (12) Professor Kramer stands in a long tradition of theorists considering this mismatch and its possible causes. Some view the problem as institutional, arising from structural bias (13) or assimilationist work culture. (14) Other scholars consider individual decision makers' roles in creating these structural inequalities, with some highlighting subconscious individual bias as a potential problem for Title VII law (15) and others considering how structural discrimination can result from conscious, if covert, biased thinking. (16) While these arguments describe slightly different mechanisms of employment discrimination, they all identify the same basic problem: workplace discrimination now largely arises in contexts in which plaintiffs simply cannot prove a violation of Title VII as traditionally understood.

Building on this work, Suzanne Goldberg argues that current evidentiary requirements make complex discrimination exceedingly difficult to prove; by requiring cross-status comparators to demonstrate causation, (17) judges implicitly demand that employers treat members of a group differently on the whole in order to generate a cognizable claim, regardless of the impact discrimination might have on the individual. (18) Goldberg proposes methods of proof that would permit courts to consider context, and claims that subtle discrimination instantiating group hierarchies can occur without generating the clear in-group/out-group distinctions judges currently require. (19) This Note elaborates on how Price Waterhouse doctrines respond to this pressing concern. The context that Goldberg identifies, and that traditional Title VII doctrines cannot reach, is a workplace dominated by gendered and raced prescriptions about how people should behave; Price Waterhouse sex stereotyping doctrine, explicitly designed to fight prescriptive stereotype, is the tool best suited to address this problem.

Furthermore, a nuanced understanding of Price Waterhouse can inform our current debates over how best to protect victims of antigay workplace discrimination. Although there are currently no explicit statutory protections in federal law against antigay discrimination, many courts have held that Price Waterhouse's ban on "assuming or insisting that [employees] match[] the stereotype associated with their group" (20) forbids employers from discriminating against gender-deviant LGBT employees. (21) Furthermore, many states (and soon, possibly the federal government) protect against antigay discrimination using language explicitly modeled on Title VII. (22) This division between sex-stereotyping litigation and new, sexual-orientation-specific legislation has put various scholars, lawyers, and activists at cross-purposes. While Lambda Legal and the Human Rights Campaign minimize existing protections against discrimination and urge passage of a federal ENDA, (23) and while President Obama has signed an executive order protecting LGBT federal employees, (24) the Equal Employment Opportunity Commission (EEOC) has ruled that discrimination against transgender workers categorically violates Price Waterhouse, (25) and EEOC Commissioner Chai Feldblum has publicly stated that discrimination against LGB workers does the same. (26) Similarly, there is a dispute on the merits of Price Waterhouse and ENDA within the legal academy. While recent work argues that Price Waterhouse protection is a flawed substitute for ENDA, (27) and many scholars claim that locating LGBT protections within sex stereotyping jurisprudence is theoretically and practically superior to a separate statute, (28) a recent piece proposes abandoning traditional frameworks entirely for a theory of reasonable accommodation of gender performance. (29)

This Note shows that such arguments fundamentally misunderstand the nature of prescriptive sex stereotyping. The doctrine that has sprung up in Price Waterhouse's wake does not extend the Civil Rights Act so much as radically reimagine its scope. Sex stereotyping doctrines ask courts to examine just the sorts of subjective and individualized workplace evaluations that Title VII has historically ignored. Courts consider these cases through a two-step process, establishing the importance of a particular workplace norm to the plaintiff's firing or harassment, and then asking whether that norm reflects biased thinking about sex. The resulting doctrine is not a mere substitute for, or superior version of, protection through traditional (30) Title VII claims; the two approaches work very differently, and LGBT workers are best protected by having access to both.

This Note proceeds in five parts. Part I considers how American antidiscrimination law has addressed stereotype both before and after Price Waterhouse, and in particular how courts expect plaintiffs to show differences in treatment of in-group and out-group employees under ascriptive and prescriptive theories of stereotyping. This issue of comparison is a serious hurdle facing Title VII plaintiffs, and one that the Price Waterhouse framework can handle more nimbly and effectively than other Title VII doctrines. Part II considers Price Waterhouse in the arena of LGBT workplace rights, where Price Waterhouse protections exist without any explicit protection based on...