Are we “Post-Gender?”

The following is by FIU's Kerri Stone:

Twenty-one years have passed since the Supreme Court held in Price Waterhouse v. Hopkins that Ann Hopkins was passed over for partnership at Price Waterhouse because of her sex, as evinced by the sex-stereotyped comments directed against her. Many of the factors that made that case so compelling overall, however, are no longer commonly found in the modern workplace. It is, for example, no longer politic to refer to the “lady candidate” for anything, or to vocally subscribe to the explicit notion that a woman should act or appear more or less like the men around her do. It would be highly uncommon for a major accounting firm to put eighty-eight candidates up for partnership and have only one woman among them. Indeed, I recently asked my class whether it thought that Ann Hopkins would have won her case if half of those selected had been women and if the company had had a high percentage of female partners. As I had suspected, many felt that she would not have.

But what about the types of stereotyping that persist in the workplace today? In a day and age in which a typical employer’s gender ratio is bound to be more balanced than Price Waterhouse’s was in 1989, and at a time when most people are simply too informed of the law and of societal norms to advise a candidate that she should wear more makeup or more feminine fashions, is stereotyping alone enough to sustain a discrimination or harassment claim?

All of which brings me to a fascinating writeup of a case that a student of mine sent me with the note that it might be, as she termed it, “a modern-day Price Waterhouse v. Hopkins.” According to the case’s writeup, which came from the ABA Journal, a thirty-four year old attorney who had worked in the New York City office of a large Canadian law firm, until her salary was capped and she was eventually laid off, was suing the firm and alleging discrimination, retaliation, and that her supervising partner had helped to create a “‘hostile and demeaning’ environment for women.”

As the writeup recounts, the partner told the associate that “he didn’t think she wanted to be a partner, she ‘must be more than a pretty face’ and [that] she’s not helping herself ‘coming to work looking well put together.’” Id. When asked by the associate how she could do a better job, he responded that she should “stop acting like a child that’s been taken to the woodshed and spanked.” Id. The partner also allegedly advised another associate who took maternity leave “that it would take her off of partnership track, and told another woman, ‘That’s why I hate working with women, because they just get pregnant and leave. Out of every three years, you only get one good year out of them.’” Id. The partner then allegedly “[t]old an associate attending Harvard law school [sic] that it was great he was going there because ‘you might meet some pretty women pretending to get a legal education.’” Id.

Knowing no more than what was in the writeup, I nonetheless cannot help but think that the dynamic described is all too familiar to those who have worked in large firm legal practice in a big city—and likely beyond that context as well. But are the allegations enough to buttress a case for discrimination or for a “demeaning and hostile environment”? My uncertainty was strengthened when I happened across a somewhat snarkier writeup of the same case on AbovetheLaw. The blogger, after dismissively describing the supervising partner in the case as someone who “sounds like a man who has never been to a Harvard party,” wryly asked:

That’s it? At the risk of scraping my knuckles against the pavement, I’m a little underwhelmed. . . . . I mean, sure, the guy probably needs to stop judging the attractiveness of Harvard women based on The Social Network. But in the grand scheme of things, these allegations leave me with a feeling of “meh.”

The blogger then went on to posit that while the associate’s

salary stagnation and eventual layoff . . . could have been in retaliation for her complaints, . . . maybe they could also be attributed to the fact that it was 2009 and everybody was getting [potentially harassing reference to lovemaking] with their [potentially male-normative reference to an article of clothing] on. The year 2009 was rough on a lot of people. . . . I’m not an employment lawyer, but it seems to me that to prevail on a sexual harassment claim arising out of a legal layoff in 2009, you’re going to need a little more fire than a few wisecracks about working women.

I have deliberately retained this blogger’s off-color allusions to highlight the way in which this story seems to “play” against the backdrop of the blogosphere—in which the gritty grounding that the injection of humor and reality give the narrative might well echo the skepticism with which a judge or jury might meet these claims.

How much progress have women really made since the 1980s when Ann Hopkins, who by all accounts, might have been the ideal male partner, was declined for being, in essence, too manly of a woman? To the extent that normative biases about how women should act and appear and stereotypes about the types of women that do things like attend top-flight law schools or have babies—or both—persist and inhere in workplace discourse, how likely is it that they will be seen to inform workplace decisions in light of factors like more integrated workplaces, a terrible economy, and perhaps even receptive malaise as to the discriminatory conceptions and treatment of women? It appears that in a more gender-balanced workplace in which certain speech, like telling a woman to be more feminine, is now taboo, a plaintiff like this associate may have a harder time prevailing on a Title VII claim than Ann Hopkins did. With the standards for the severity or pervasiveness of harassment so high and those for causation in a retaliation case so exacting, those cases are incredibly hard to make out. Moreover, with courts today as poised as they are to find comments short of “smoking guns” to be “stray” or otherwise legally insignificant, as a matter of law, to sustain a cognizable case, evidence in a case like this one might well be relegated to the realm of “wisecracks about working women” and dismissed.

As I finish my newest article on the stray comment doctrine, I find myself very interested in the future of cases like this one. It seems hard to fathom that a supervising partner capable of making such comments would view male and female associates in the same way. Moreover, we know that employment decisions undergirded by dual motives where only one motive is unlawful are nonetheless violative of Title VII. So the question remains, are we as a society too “post-gender” to give credence to the notion that cases like this warrant coverage and redress by Title VII?