Eradicating thousands of years of gender stereotyping in the human psyche is a formidable task. Courts have been grappling with this challenge for decades, since the inception of Title VII of the Civil Rights Act of 1964.
Price Waterhouse v. Hopkins is the seminal case addressing prohibited sex stereotyping in the work place. Ann Hopkins had worked as a Senior Manager for Price Waterhouse for five years when she was proposed as a candidate for a partnership in 1982. Of the 662 partners at the firm at that time, only seven were women. All of the partners at the firm were invited to submit written comments regarding each candidate. These comments were reviewed by the firm’s Admissions Committee, which in turn made recommendations to the Policy Board.
The comments submitted by some of the partners revealed a negative reaction to Hopkins’s personality because she was a woman: One partner described her as “macho”; another suggested that she was “overcompensated for being a woman”; a third advised her to take “a course at charm school”; other partners criticized her use of profanity; another partner suggested that those partners took offense at her using profanity “only because it’s a lady using foul language.” One partner, who bore the responsibility of informing Hopkins of the Policy Board’s decision to place her candidacy on hold, advised her that in order to improve her chances for partnership, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
The Court rejected Price Waterhouse’s contention that these remarks were merely “discrimination in the air,” or stray comments unrelated to the decision to put Hopkins’s candidacy for partnership on hold. Rather, the Court found, “Price Waterhouse invited partners to submit comments; that some of the comments stemmed from sex stereotypes; that an important part of the Policy Board’s decision on Hopkins was an assessment of submitted comments; and that Price Waterhouse in no way disclaimed reliance on the sex-linked evaluations.”
Title VII forbids an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment…because of such individual’s…sex.” 42 U.S.C. § 2000e-2(a)(1)(2) (emphasis added).The Price Waterhouse Court stated that, “[w]e take these words to mean that gender must be irrelevant to employment decisions,” and “[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” “An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.”
While the objective of Title VII is to lift women out of that bind, decades after its implementation and Price Waterhouse’s specific pronouncement that Title VII prohibits sex stereotyping, women still find themselves being bound by antiquated and prohibited sex stereotyping.
In Equal Employment Opportunity Commission v. New Prime, Inc., Deanna Clouse, a female applicant for a truck driving position, alleged that Prime discriminated against her on the basis of her gender when it informed her she could not be hired because there were no female trainers available to train her. Ms. Clouse had told Prime that she was willing to be trained by a man in order to enter the training program. Prime nevertheless told her that was not allowed, pursuant to its policy.
In 2004, Prime adopted a same-sex trainer policy that required female driver applicants to be trained only by female drivers. Prime implemented this policy after it was found in a previous EEOC lawsuit to have violated Title VII based on one of its female driver trainees being sexually harassed by a male trainer. Female driver applicants were negatively and disproportionately impacted by this policy. There were a small number of female drivers available to train, which resulted in the female applicants being placed on a wait list that for many was longer than one year.
Prime contended that it put this policy in place in order to protect female applicants. Prime argued that sex was a bona fide occupational qualification, or “BFOQ,” because “its same sex training policy was based on its safety and privacy concerns for women.” The court disagreed. “[D]iscrimination on the basis of sex because of safety concerns is allowed only in narrow circumstances,” such as when “sex actually interferes with the employee’s ability to perform the job.” Prime admitted that “a woman’s gender does not interfere with her ability to perform the job of truck driver or to be trained as a truck driver for Prime.” Prime contended, however, that it implemented the policy in order “to better provide for the privacy of its drivers” and “for the safety female drivers, and to protect them from unacceptable behavior, including harassment, assault, and rape.”
“[T]he BFOQ defense is extremely narrow and does not extend to the protection of employees.” The court found that Prime “not only created an obstacle for female applicants, it also removed a female applicant’s ability to make her own decision with regard to any alleged safety or privacy concerns she may or may not encounter with the potential job.” “[T]he women who apply for positions at Prime should be allowed to make their own decisions regarding their potential employment within the trucking industry.”
After the Court entered an order on Prime’s liability, Prime agreed to pay Ms. Clouse $250,000 to resolve her claims. In May 2016, Prime entered into a consent decree to pay over $2.8 million in lost wages and damages for the other 63 women who were denied job opportunities. Responding to the Court’s order, Andrea G. Baran, a regional attorney for the EEOC’s St. Louis District, stated in a May 31, 2016, EEOC Press Release, “When women break into male-dominated fields, they are often trained by men. We should not expect that these women will be sexually harassed. It is disrespectful to men everywhere to assume that they will harass women if they work together in close quarters.”
Prime illustrates that companies sometimes make decisions or implement policies based on negative sex stereotypes of both men and women: men sexually harass women, and in order to “protect” women, women should not be given even the opportunity to make a decision for themselves as to their own potential employment, where that employment involves being in close physical proximity to men. As Ms. Baran explained in the May 31, 2016, EEOC Press Release, “employers have a responsibility to adopt strict anti-harassment policies and practices and enforce them so that all employees–regardless of sex–can work and succeed together.”
Antiquated and impermissible notions of the need to protect women based on their fragility– including their pregnancy–often permeate blue-collar industries. In May 2016, First Call Ambulance Service agreed to settle a pregnancy discrimination lawsuit brought by the EEOC (Equal Employment Opportunity Commission v. First Call Ambulance Service, Inc.) for $55,000. First Call had removed a pregnant emergency technician after she presented a doctor’s note that restricted her from lifting patients greater than 200 pounds without assistance and refused to accommodate her. First Call removed the employee from the work schedule, told her she could not work because of her pregnancy, and forced her to take unpaid leave. Even though First Call had allowed non-pregnant employees to use a power cot to lift patients, First Call refused to offer similar accommodations to female employees who had lifting restrictions due to pregnancy. “Employers should never remove an employee simply because of her pregnancy,” said Faye A. Williams, a regional attorney for the EEOC’s Memphis District Office in a May 27, 2016, EEOC Press Release.
May an employer assert that excluding pregnant workers from certain jobs is lawful because non-pregnancy is a BFOQ? In the EEOC’s enforcement guidance entitled, “Pregnancy Discrimination and Related Issues,” the EEOC stated that, “[a]n employer who seeks to prove a BFOQ must show that pregnancy actually interferes with a female employee’s ability to perform the job, and the defense must be based on objective, verifiable skills required by the job rather than vague, subjective standards.” “The defense cannot be based on fears of danger to the employee or her fetus, of potential tort liability, assumptions and stereotypes about the employment characteristics of pregnant women such as their turnover rate, or customer preference.”
In International Union, UAW v. Johnson Controls, Inc., the Supreme Court held that the employer’s policy of excluding women with childbearing capacity from lead-exposed jobs explicitly discriminated against women on the basis of their sex, in violation of Title VII. The Court rejected the employer’s defense of a BFOQ of female sterility, because the employer could not show that sex or pregnancy actually interfered with the female employees’ ability to perform. Rather, the Court found from the record, fertile women were able to participate in the manufacturing of batteries as efficiently as anyone else. “Johnson Controls’ professed moral and ethical concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility. Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents.”
The acknowledgement in Price Waterhouse that gender-stereotyping discrimination is discrimination “because of sex” under Title VII has been interpreted by some courts to mean that discrimination based on transgender identity is also cognizable under Title VII. “Discrimination on the basis of transgender identity is [] ‘no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman.’” Fabian v. Hospital of Central Connecticut (quoting Smith v. City of Salem). “‘A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.’” Id. (quoting Glenn v. Brumby).
In a case examining alleged discrimination on the basis of transgender identity, the Ninth Circuit eloquently summarized the import of the Price Waterhouse holding, stating: “In Price Waterhouse,…the Supreme Court held that Title VII barred not just discrimination based on the fact that Hopkins was a woman, but also discrimination based on the fact that she failed ‘to act like a woman’–that is, to conform to socially-constructed gender expectations. What matters, for purposes of this part of the Price Waterhouse analysis, is that in the mind of the perpetrator the discrimination is related to the sex of the victim: here, for example, the perpetrator’s actions stem from the fact that he believed that the victim was a man who ‘failed to act like’ one. Thus, under Price Waterhouse, ‘sex’ under Title VII encompasses both sex—that is, the biological differences between men and women–and gender. Discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII.” Schwenk v. Hartford. (Emphasis in original).
As these cases elucidate, employment decisions based on paternalism and sex-stereotyping–even when done with a beneficent objective in mind–are prohibited. As the Supreme Court made abundantly clear in Price Waterhouse, “gender must be irrelevant to employment decisions.” Period.
Written by Valerie A. Chastain