Gender-Based Stereotypes Have No Place in Employment Decisions. Will the Supreme Court Agree?

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Commentary Law and Policy

Gender-Based Stereotypes Have No Place in Employment Decisions. Will the Supreme Court Agree?

Sunu Chandy

A decision here against the workers would leave LGBTQ employees without federal protection.

In the spring of 2017, I was working as a leader in a civil rights agency in the federal government when my new boss was appointed—and he was on record against same-sex marriage. As a member of the LGBTQ community, I was terrified that my boss would discriminate against me if he found out that I had a same-sex spouse. When he first arrived at our workplace, I took my family photo from my wedding off my desk. I hid the parts of myself that did not conform to my boss’s idea of sex stereotypes: that women may only marry men.

Now, in July 2019, as the legal director of the National Women’s Law Center, I am joined by over 30 women’s rights organizations in filing an amicus brief urging the U.S. Supreme Court to confirm that our existing federal civil rights protections against sex discrimination in the workplace cannot exclude LGBTQ workers, no matter where one lives in the country. Sex- and gender-based assumptions, or what is known in legal phrasing as sex stereotypes, have no place in employment decisions—and indeed, fly in the face of our shared national values of equality, fairness, and dignity in the workplace.

The federal protections we are drawing from have a long history. We no longer live in a nation where employers can legally put up a sign advertising that some jobs are just for men or just for women. Almost 40 years ago, the Supreme Court recognized that banning women from “male” professions is sex discrimination. Yet, women who work in male-dominated spaces routinely face harassment if they behave assertively or show anger.

In 1982, Ann Hopkins was a young consultant at one of the “Big Eight” accounting firms, then known as Price Waterhouse. She had an outstanding record for generating business, billing hours, and landing multimillion-dollar contracts. She was smart and driven—exactly the type of person who should rise to the top.

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But to the men deciding Hopkins’ future, only one thing mattered. They said Hopkins did not “act like a woman.” Or rather, she did not fit their stereotype of how women should act. According to her employer, she was “overly aggressive, unduly harsh.” She needed to “walk more femininely, talk more femininely, dress more femininely,” and to, as one firm partner put it, “take a course in charm school.”

Hopkins was denied her partnership. In response, she sued Price Waterhouse, arguing that the firm discriminated against her because of her sex. That case, Price Waterhouse v. Hopkins, made it to the Supreme Court. In 1989, the Court sided with Hopkins, stating explicitly what many other federal courts had implied: Employers cannot discriminate because of how employees do or do not conform to sex stereotypes.

In my own life, several years ago, a potential employer pulled my job offer at the last minute after I shared that I had a newly adopted daughter who was in day care. After I went through three rounds of interviews for a senior position at a college and was in the midst of salary negotiations, I was suddenly denied the position—because of sex stereotyping. This employer ultimately concluded that a new mother would not devote the necessary attention to a demanding senior leadership role. Even though I knew this was clear sex discrimination, I did not have the courage to pursue this case. Though these experiences are all too common, workplace decisions such as this one are in fact illegal under federal law. Those protections should, if anything, be strengthened.

Unfortunately, Ann Hopkins’ legal legacy could soon be undone. Three cases before the Supreme Court next term (Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G & G.R. Funeral Homes v. EEOC) will ask the Court to confirm that these well-established protections in federal law against sex stereotyping do not exclude LGBTQ employees. A decision here against the workers would leave LGBTQ employees federally unprotected.

Aimee Stephens, the employee in the R.G. & G.R. Funeral Homes v. EEOC case, was also told she did not adhere to sex stereotypes as a trans woman. In 2013, she told her boss that she was going to start living openly as a woman. Two weeks later, the employer fired her, saying that he believed that “a male should look like a…man” and a woman should look like a woman. The Sixth Circuit ruled in Stephens’ favor, agreeing that this was sex discrimination under federal law and therefore it was illegal to fire her. And the U.S. Supreme Court must agree with this common sense approach to civil rights protections at work—for all of us.

Imagine if Price Waterhouse had stated that its reason for not promoting Ann Hopkins was not because she wasn’t feminine enough, but because she was a lesbian? The facts would remain the same: She would still look and act in ways that defied sex stereotypes, she would still be more than qualified for the job, and her employer would still be discriminating based on sex stereotypes. No employer should be allowed to get away with that.

When it considers the case next fall, the U.S. Supreme Court must decide these matters in line with decades of precedent and confirm that federal protections against sex stereotyping apply to all workers. That way all of us who don’t conform to sex stereotypes—based on our behaviors, our dress, our gender identity, or based on who we love—will not be excluded from critical civil rights protections in the workplace.