Soul of a woman: the sex stereotyping prohibition at work.

• Author: Yuracko, Kimberly A.

In 1989, the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited form of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend Title VII's coverage and to protect groups that were previously excluded. Astonishingly, however, the contours, dimensions, and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate and reject the interpretations most often offered by scholars--namely that the prohibition requires either freedom of gender expression or sex-blind neutrality. I argue that the prohibition reflects not a coherent antidiscrimination principle but a pragmatic burden-shifting framework that turns on the compliance costs for the worker. I conclude by arguing that the sex stereotyping prohibition has not lived up to its rhetorical promise. Indeed, the implications of the prohibition are both dangerous and ironic in ways that scholars have yet to recognize. While the prohibition has extended Title VII's protection to new classes of workers, it has done so by relying on and reinforcing traditional gender categories. The result is that the prohibition protects some individuals at the expense of the class whose subordination--stemming from socially salient gender norms--remains intact.

INTRODUCTION I. PRICE WATERHOUSE AND ITS PROGENY II. LIBERTARIANISM III. TRAIT NEUTRALITY IV. CATEGORY NEUTRALITY V. BURDEN SHIFTING VI. IMPLICATIONS CONCLUSION INTRODUCTION

In 1989, the Supreme Court in Price Waterhouse v. Hopkins (1) declared that sex stereotyping was a prohibited form of sex discrimination at work. (2) This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. (3) It has been the tool used to protect effeminate men and masculine women from harassment in the workplace. (4) More recently, it has been the catalyst for a sea change in courts' treatment of transsexuals. (5) Transsexuals have gone from being outside antidiscrimination protection altogether, (6) to being at the forefront of courts' evolving and expanding interpretation of federal sex discrimination law. (7)

Astonishingly, the precise contours, dimensions, and requirements of the sex stereotyping prohibition have never been articulated clearly either by courts or by scholars. Courts tend simply to restate the language of Price Waterhouse as though its meaning were self-evident. (8) Scholars most often presume what the prohibition should mean, (9) sometimes then chastising courts for their failure to apply the prohibition "correctly." (10)

In this paper, I take a position of greater deference to the judiciary with the aim of achieving greater clarity. By looking at recent case law invoking or ignoring the Supreme Court's admonition of sex stereotyping, I seek to uncover the demands--and limits--of the prohibition as it is actually being applied, rather than as it should be applied in some normatively ideal jurisprudential universe. After defining the prohibition, I explore its likely implications for antidiscrimination law, workplace freedom, and social conceptions of gender.

I begin in Part I with an introduction to the sex stereotyping prohibition announced in Price Waterhouse and its more recent jurisprudential progeny. In Parts II and III, I consider the interpretations of the prohibition most often offered by scholars--namely that the prohibition requires either gender libertarianism or trait neutrality. According to the gender-libertarianism view, the sex stereotyping prohibition guarantees full freedom of gender expression in the workplace. According to the trait-neutrality view, the sex stereotyping prohibition requires that employees be permitted to adopt whatever gendered traits are permitted of the other sex. Both interpretations suggest the transformative potential of the prohibition; neither, I argue, is plausible. In Part IV, I consider whether the prohibition demands instead a narrower commitment to category neutrality whereby employers may require gender code compliance, but must remain neutral as to which gender code employees adopt. In Part V, I consider whether the sex stereotyping prohibition is best understood as a pragmatic burden-shifting framework rather than as a distinct antidiscrimination principle. I argue that the burden-shifting framework--in which conformity demands viewed as highly costly by the court trigger a presumption of protection that the employer then bears the burden of overcoming--provides the most coherent and comprehensive account of the sex stereotyping prohibition at work. Finally, in Part VI, I examine the implications of the prohibition in light of Title VII's broad antidiscrimination goals. Title VII operates on both an individual and a group level. (11) Individuals are to be evaluated on their own merits rather than on their group membership (12) Traditional group hierarchies are to be dismantled, in part, by challenging the norms, stereotypes, and prejudices that justify and legitimize them. (13) In practice, the sex stereotyping prohibition encourages plaintiffs to endorse and adopt highly stereotyped gender packages in order to convince courts of the steep costs associated with their forced gender expression. The implications of the prohibition are both dangerous and ironic in ways that scholars have not previously recognized. While the prohibition has extended Title VII's protection to workers who had previously been excluded, it has done so by relying on and reinforcing traditional gender categories. By doing so, moreover, the prohibition actually protects some individuals at the expense of the class whose subordination (stemming from socially salient gender norms) remains intact.

1. PRICE WATERHOUSE AND ITS PROGENY

   Price Waterhouse v. Hopkins involved a woman who was denied admittance to the partnership at Price Waterhouse because she was deemed insufficiently feminine. (14) Indeed, the partner who was responsible for informing her of the firm's decision to put her candidacy on hold advised her that in order to improve her chances the following year, Hopkins should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." (15)

   There is language in the case suggesting that what the Court found problematic about the employer's femininity demands was that they placed Hopkins in a double-bind. (16) Hopkins was required to be feminine, while the successful performance of her job required her to adopt more traditionally masculine traits and behaviors. As the Court explained, given the demands placed on her, Hopkins would be out of a job if she behaved aggressively, and out of a job if she did not. (17)

   Yet the Court's rhetoric extended well beyond double-binds. Indeed, the Court declared all sex stereotyping to be a prohibited form of sex discrimination. It explained:

   [W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." (18) The Court's prohibition actually encompassed two distinct types of sex stereotyping--ascriptive stereotyping and prescriptive stereotyping. Ascriptive stereotyping occurs when an employer assumes that an individual possesses certain traits and attributes because of her sex that render her unqualified for a particular position. This is the most traditional form of sex stereotyping, and was the Court's initial target. (19) Prescriptive stereotyping occurs when an employer insists that an individual possess or exhibit certain traits and attributes because of her group membership. Price Waterhouse involves prescriptive stereotyping. (20) It was the Court's novel and broad declaration against prescriptive sex stereotyping that set the stage for the dramatic expansion of courts' protection of gender nonconformists under Title VII.

   The first significant development came in the use of the prohibition to protect men harassed because of their perceived effeminacy. (21) In Doe v. City of Belleville, for example, the Seventh Circuit ruled that the harassment of two boys who were perceived by their male coworkers to be insufficiently masculine constituted sex discrimination. (22) In concluding that the boys had presented evidence sufficient to show that they had been harassed because of sex, the Seventh Circuit relied on the Supreme Court's anti-sex stereotyping language from Price Waterhouse. (23) The court explained:

   [A] man who is harassed because his voice is soft, his physique is slight, his hair is long, or because in some other respect he exhibits his masculinity in a way that does not meet his coworkers' idea of how men are to appear and behave, is harassed "because of" his sex. (24) The Ninth Circuit provided similar protection to the plaintiff in Nichols v. Azteca Restaurant Enterprises, Inc. (25) Antonio Sanchez worked as a host and then as a food server at Azteca restaurants in Washington State. (26) During his four-year employment with the restaurant chain, Sanchez was the target of a steady stream of taunts and insults focusing on his perceived effeminacy. (27) Relying on Price Waterhouse, the Ninth Circuit held that Sanchez had suffered actionable sex discrimination. (28) "At its essence," the court explained, "the systematic abuse directed at Sanchez reflected a belief that Sanchez did not act as a man should act.... Price Waterhouse sets a rule that bars discrimination on the basis of sex stereotypes. That rule squarely applies to preclude the harassment here." (29)

   More...