Hopkins was nominated for partnership in August of 1982. In the nominating proposal, OGS praised her “outstanding performance” and underlined her "key role" in connection with a large State Department project. No other 1982 candidate's record for securing major contracts was comparable. Hopkins had also billed more hours (2,442 hours in 1982 and 2,507 in 1988) than any other candidate and generated more business than any other candidate considered for partners in that year. The proposal strongly urged her admission to the partnership. The admissions committee then circulated long and short forms to all PW partners. Thirty-two partners, all male, responded about Hopkins. Of the 32 initial evaluations, 13 supported her for partnership, 3 recommended that her candidacy be put on hold, 8 stated that they were uninformed as to her suitability for partnership, and 8 opposed making her a partner. The admissions committee also tabulated the results of the evaluations for all the candidates and prepared quartile rankings of the class. Hopkins received very few "yes" votes and more "no' votes than all but two of the 88 candidates that year. These no votes and negative comments, mostly from partners outside OGS, placed Hopkins near the bottom of the class.
A review of the partners’ comments reveals many criticisms of Hopkins’ lack of interpersonal skills, along with praise of her accomplishments. Specifically, comments were made regarding Hopkins being too “macho” and “overcompensated for being a woman.” Others stated opinions that she “should take a course at charm school.” One partner referred to her as “one tough lady” and another recommended her for “lady ptr” (sic) after commenting that she had matured into a “much more appealing lady ptr (sic) candidate.”
In March 1983, the admissions committee recommended that Hopkins be held "at least a year to afford time to demonstrate that she has the personal and leadership qualities required of a partner." The other two candidates OGS had nominated became partners. One had worked for PW for less time than Hopkins. Beyer suggested she "soften her image in the manner in which she walked, talked, dressed” and advised her to use less profanity and to alter her voice tone, to "look more toward appearing more feminine," to wear more jewelry and make-up, to style her hair, and to dress less in "power blues." During the next few months, according to Hopkins, the firm failed to give her opportunities to demonstrate her abilities and gain more exposure. Four months after the policy board's recommendations, with OGS's strong support, it was felt that her candidacy could not possibly be successful. Hopkins was advised that it was very unlikely that she would be admitted to partnership. In December 1983, she learned she would not be re-proposed for partnership. Hopkins tendered her resignation and left PW in January. In 1984 she filed suit against PW claiming that she had been denied a partnership because of sex discrimination. She sought an award of back pay for lost wages and reinstatement at PW as a partner.
- Critical Legal Issues
- Do partnership decisions fall under Title VII jurisdiction?
- Is gender stereotyping in the workplace permissible under Title VII?
- Legal Rules
- In 467 U.S. 69 1984, Hishon v. King & Spalding, the Supreme Court ruled that once a contractual employment relationship is established, the provisions of Title VII attach, forbidding unlawful discrimination as to the "terms, conditions, or privileges of employment," which clearly include benefits that are part of the employment contract.
- Title VII of the Civil Rights Act of 1964 prohibits job discrimination based on race, color, religion, sex, or national origin, except when there are bona fide occupational qualifications reasonably necessary to normal business operations. Under the disparate treatment doctrine, the employee must provide evidence that the employer intentionally discriminated against the employee. Under the disparate impact doctrine, the employee must prove that the employer’s policies had a discriminatory effect on a group protected under title VII.
- The Civil Rights Act of 1991 states the following:
SEC. 5. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE CONSIDERATION OF RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN IN EMPLOYMENT PRACTICES.
(a) IN GENERAL.--Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (as amended by section 4) is further amended by adding at the end thereof the following new subsection:
"(1) DISCRIMINATORY PRACTICE NEED NOT BE SOLE CONTRIBUTING FACTOR.--Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a contributing factor for any employment practice, even though other factors also contributed to such practice." (1)
- Observations
Historically, partnership decisions have been held outside the purview of Title VII and are not actionable. However, in 467 U.S. 69 1984, Hishon v. King & Spalding, the issue arose whether the promise or enticement of partnership was “terms, conditions, or privileges of employment” under Title VII. The court ruled “that which clearly include benefits that are part of the employment contract. If the evidence at trial establishes petitioner's allegation that the parties contracted to have her considered for partnership, that promise clearly was a term, condition, or privilege of her employment. Independent of the alleged contract, Title VII would then bind respondent to consider petitioner for partnership as the statute provides, i.e., without regard to her sex. Moreover, an employer may provide its employees with benefits that it is under no obligation to furnish by any express or implied contract. Such a benefit, though not a contractual right of employment, may qualify as a "privilege" of employment under Title VII that may not be granted or withheld in a discriminatory fashion.” Moreover, “even if respondent is correct in its assertion that a partnership invitation is not itself an offer of employment, Title VII would nonetheless apply. The benefit a plaintiff is denied need not be employment to fall within Title VII's protection; it need only be a term, condition, or privilege of employment. It is also of no consequence that employment as an associate necessarily ends upon elevation to partnership; a benefit need not accrue before a person's employment is completed to be a term, condition, or privilege of that employment relationship. Nor does the statute or its legislative history support a per se exemption of partnership decisions from scrutiny.” (2)
Clearly, in the face of this decision, partnership deliberations are subject to the attachments of Title VII.
Gender stereotyping would also seem to fall under the aegis of Title VII without much argument. Even if frank overt discrimination cannot be determined, the mere presence of stereotyping reflects an underlying bias that is clearly discriminatory, and should not be allowed under Title VII. Hopkins without question appears to have been a forceful, if not overbearing person in her daily dealings with personnel and superiors. Her lack of interpersonal skills was noted in her evaluations as well as tendencies to abuse subordinates. Had gender comments not appeared in the evaluations as explanations or qualifiers, she probably would not have had a cause for action. Yet, undeniably, gender comments were flagrantly evident. She was described as “macho” in an equivocal comment that was backhandedly complimentary, however “macho” is a trait almost exclusively attributed to men. She was noted to be “rough on people” with the explanation offered that she “may have overcompensated for being a woman.” A partner suggested that she take “a course at a charm school” which is generally reserved for women improving their feminine traits. A partner’s positive evaluation commented on her maturation to a “much more appealing lady candidate.” Thomas Beyer advised in order to improve her candidacy chances to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry.”
Also significant in the evaluations were the sheer number of negative evaluations of partners who had had little interaction with Hopkins, yet felt qualified to deliver a negative evaluation. If one reviews the opinions of Dr. Susan Fiske, a social psychologist who testified at trial on stereotypic behavior, she believes that the innate presence of a stereotype gives some people the rationalization to use shortcuts in interactions with people, especially as those in power already have demands on their attention. Dr. Fiske testified that these powerful men were likely to hold stereotyped expectations about the women and pay less attention to their individual details, such as their qualifications. (3)
The ultimate consideration becomes whether, in the absence of gender stereotypic comments in her evaluations, would Hopkins have been voted into partnership? The evidence is not at all clear that this would have been the case as there were legitimate gender neutral negative impressions of her abilities in certain evaluations. At the time of the Supreme Court decision on this case, the CRA of 1991 had not been passed, so that PW had only to show evidence that absent any discriminatory behavior, she would have been refused partnership anyway, and therefore PW was not liable. PW freely admitted the bias but maintained this position regarding Hopkins’ partnership qualifications. It was under these auspices that the case was remanded in 1989.
- Conclusions
The partners at PW clearly relied on fixed gender stereotypes as to the appropriate behavior of a female executive. Under any review of Title VII, these actions were clearly illegal. However, under the current legal theory of the day, an employer was not liable if it could show that in the absence of the discriminatory behavior the action in question would still have taken place, and therefore it would not be liable. In 1989 PW fell under these guidelines and maintained that Hopkins’ other qualifications were not sufficient for her to make partner. In 1991 the CRA amendment allowed that any discriminatory basis for a decision was illegal and actionable, regardless of whether the decision would have been carried out absent the discriminatory behavior (although limits were placed on damages if proof of the decision absent the discrimination could be offered.) As the original review predated the CRA amendment of 1991, based on these parameters, Hopkins’ other characteristics utilized by PW to deny her partnership were sufficiently evident that PW should suffer no liability.
- ETHICAL CASE ANALYSIS
- Issues
- Did the partners at Price Waterhouse behave ethically in their evaluation of Ann Hopkins?
- Is the moral practice of allowing gender stereotypes to impact corporate decision making ethical?
- Evidence
The partners at PW that provided evaluations clearly voiced opinions that reflected gender bias against Hopkins’ behavior, which did not necessarily reflect accurately on her qualifications. It is clearly unethical to allow such biases to color a supposedly objective evaluation.
Advice was offered at many levels as to the supposed remedy for Hopkins’ failings, including changing her dress, hair style, make-up, as well as voice, speech, and mannerisms. It is unethical to presume improvements in another’s appearance or behavior would necessarily improve business qualifications.
The establishment of stereotypes for female executives by male partners was accepted by the partnership establishment as a whole. Improper comments were not discouraged or reprimanded – indeed they were widely accepted as valuable data to be given full weight in discussions, more so even than positive comments. Such a corporate policy of tolerance of stereotypes, whether written or not is unethical in any definition.
- Assumptions
The partners at PW were not overtly aware of their stereotypic bias in rendering their evaluations of Hopkins.
The partners at PW felt sincerely that their beliefs and comments were constructive.
The partners at PW believed that they had the right to promote persons that the felt comfortable with, business expertise notwithstanding.
Hopkins believed that her overall presence in the workplace, including language, affect, and style, was necessary to get the job done the best way she could.
Hopkins had a right not to conform to a preconceived notion of femininity.
- Ethical Alternatives
The company as a whole could have reviewed the partnership process in its entirety and refused to allow personal comments to become significant determinants in the approval algorithm, allowing the fair evaluation of a candidate to include only objective criteria.
Partners persisting in commenting on gender-specific attributes could be counseled as to appropriate evaluation techniques and/or statements.
The weighting of the approval process should give equal measure to positive statements rather than overly emphasizing the negative.
- Judgment and Rationale
From a utilitarianism perspective, it can be neither economical nor advantageous to the whole to spend the resources essentially training a candidate for years, only to deny that candidate the promotion and have them leave the company. The greatest utility is to maximize the potential benefit of a candidate by considering only their contribution to the overall good. Therefore, if one looks at the objective facts of Hopkins’ contributions to PW in her initial tenure, she definitely billed more hours, garnered more important contracts and secured more profits than any other candidate in her class, which obviously would seem to find her utility the greatest. Offsetting these figures would be the negative utility of subordinate dissatisfaction and possible lost productivity resulting from her abrasive personality. These values may be extremely difficult to quantify, yet must be considered as well. In reviewing all these facts, one must conclude that PW did not behave ethically.
From another perspective, the utility of lessening the value of potential female candidates due to a preconceived notion of appropriate female behavior is suspect at best. There are many more current potential female applicants for these positions than historically, and to discount their potential benefit due to gender stereotyping would be disadvantageous. Removing gender stereotyping from he partnership approval process would increase the availability of the best candidates regardless of sex. The ethical behavior with the greatest utility would be to embrace their presence and maximize the potential utility to the whole.
When one reviews the situation using a Kantian lens, one must evaluate if the actions satisfied the categorical imperative. Everyone should have a moral right to be treated as a free and equal person and should treat all other in the same way. If every person in a similar situation would chose to do the same action, then that action should be considered moral and ethical. The partners at PW using gender stereotyping cannot argue that they would wish to be evaluated in a similar fashion, as they would likely suffer negative impact as well. Therefore using this rationale,, their behavior in using gender stereotyping is unethical. The second dictum of the categorical imperative involves treating persons only as they would have freely consented to be treated beforehand, and develop each person’s capacity to freely choose the aims they will pursue. Clearly Hopkins would not have consented to be treated in the manner that she was, and she was not allowed to freely choose her own aims. Therefore, again under Kantian evaluation, PW did not behave ethically.
A review of Hopkins’ situation using a care model of ethics finds similar faults with the behavior of PW. The first moral demand of an ethic of care is that we each exist in a web of relationships and should preserve and nurture those concrete and valuable relationships we have with those specific persons. The second moral demand is that we should exercise special care for those with whom we are concretely related by attending to their particular needs, values, desires and concrete well-being as seen from their own personal perspective, and by responding positively to those needs, values, desires and concrete well-being, particularly of those who are vulnerable and dependant on our care. When one looks at these criteria in light of the behavior of the partners of PW, clearly they failed on both counts. Hopkins did not receive the nurturing and preservation of relationships, nor did PW attend to her needs, values and desires. Again, one must conclude that PW behaved unethically.
In summary, in almost any review of ethical behavior, the partners of Price Waterhouse did not behave ethically in dealing with Ann Hopkins. The ethical behavior would have been to offer her a partnership based on the merits of her accomplishments, not colored by gender stereotype preconceptions.
References
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- Civil Rights Act of 1991.
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- 467 U.S. 69 Hishon v. King & Spalding
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- 490 U.S. 228 Price Waterhouse v. Hopkins