The Expansion of Sex Discrimination

Ann Hopkins was a senior manager at Price Waterhouse, a professional accounting firm, when she was considered for partnership in 1982.[1] Her candidacy was held for reconsideration when Price Waterhouse neither denied nor offered her the partnership; however, Hopkins’ partnership was later denied.[2] Hopkins was denied promotion because she was perceived as less than feminine.[3] Hopkins was seen as aggressive and Price Waterhouse acted on its belief that a woman cannot be aggressive, which is illegal gender stereotyping and a form of discrimination under Title VII.[4]

The Supreme Court provides guidance in recognizing gender stereotyping in employment decisions. A gender stereotyping inquiry asks “whether the harasser treats a member or members of one sex differently from members of the other sex, because of their gender.”[5] To determine if gender played a motivating part in an employment decision, ask the employer what its reasons were for the employment decision at the moment of the decision.[6] Although gender stereotyping is a form of sex discrimination, sex and gender are distinct concepts. Gender encompasses “whether a person has qualities that society considers masculine or feminine.”[7]

Similar to Hopkins, in Back v. Hastings on Hudson Union Free School Dist., 365 F.3d 107 (2d Cir. 2004), a young mother brought suit when she was denied tenure and her probationary period was terminated. The School District argued she was fired because she lacked organizational and interpersonal skills.[8] Back asserted the real reason was because the School District presumed that she could not maintain a necessary amount of devotion to her job while being a good mother.[9] The Second Circuit ruled that stereotyping about the qualities of a mother is a form of gender stereotyping and that it could determine so despite having no evidence of how the School District treated fathers.[10]

In EEOC v. Boh Bros. Constr. Co., LLC, 731 F.3d 444 (5th Cir. 2013), the superintendent of an all-male crew on a construction site subjected a male employee to daily verbal and physical harassment because the employee did not conform to the superintendent’s view of how a man should act. Likewise, in Bellaver v. Quanex Corp./Nichols-Homeshield, 200 F.3d 485 (7th Cir. 2000), Elizabeth Bellaver was let go from twenty years at Quanex Corp, due to alleged reorganization of the company. Bellaver claimed she fired due her aggressive and sometimes abrasive behavior; however, Quanex permitted the same behavior in male employees.[11] The Seventh Circuit Court agreed with Bellaver and reversed the district court’s grant of Quanex’ summary judgment.[12]

These cases show that sex discrimination has expanded and courts are enforcing Congress’ actions to eliminate discrimination on the basis of sex. Employers are held accountable in all things it considers to make employment decisions. Employers should create and enforce non-discrimination policies, respect confidentiality and privacy, and review company dress codes. Courts recent interpretations of extending laws to all types of sex discrimination, charges employers to stay abreast of the law, perform regular audits of its policies and procedures, and effectively communicate with employees.

[1] Price Waterhouse v. Hopkins, 109 S.Ct. 1775 (1989) (U.S. reversed and remanded because courts incorrectly required defendant to avoid liability by proving same decision would have been made absent of discrimination through clear and convincing evidence when preponderance of the evidence standard was required).

[2] Id. at footnote 1.

[3] Id. at footnote 1.

[4] Id. at footnote 1.

[5] Id. at footnote 1. See also Schiavo v. Marina Dist. Dev. Co. (N.J. Super. App. Div., 2015).

[6] Price Waterhouse, 109 S.Ct. at 1790-91.

[7] Enriquez v. West Jersey Health Systems, 342 N.J. Super. 501, 512 (App. Div. 2001). See also Schiavo v. Marina Dist. Dev. Co. (N.J. Super. App. Div., 2015).

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.