As the first U.S. Supreme Court decision to explore sex stereotyping in depth, Price Waterhouse v. Hopkins was a landmark decision, with unforeseen and often progressive results in cases involving LGBQT rights and sexual harassment. However, on balance, its effect on women plaintiffs in glass ceiling cases has been disappointing to feminists because the opinion failed to define “stereotyping” in a way that gave legal meaning to the concept of implicit bias. The Court did not connect the dots between stereotyping, subconscious behavior, and disparate gender impact in corporate culture. It is no surprise, therefore, that even in 2015, a new generation of women faces a corporate culture startlingly similar to the one Ann Hopkins faced over twenty-five years ago.
Professor Martha Chamallas, writing as Justice Chamallas, strengthens the original opinion by clarifying that decision makers often stereotype unconsciously. She also makes clear that, especially in cases involving “token” women in male-dominated workplaces, courts should pay close attention to expert testimony. The feminist judgment provides a framework for lower courts to identify implicit gender stereotyping and define actionable violations of Title VII.
In Price Waterhouse, the Court established the “mixed motive” framework of discrimination cases. The “mixed motive” framework supplemented the McDonnell-Douglas test in which a plaintiff can succeed by showing that an employer's proffered “legitimate” reason for the employment decision was a “pretext” for discrimination. By contrast, “mixed motive” cases recognize that employment decisions can be the result of a combination of legitimate and illegitimate reasons. The burden then shifts to the employer to prove it would have made the same decision without the illegitimate factors. Plaintiff Ann Hopkins succeeded because her case involved several “smoking gun” comments by the male partners that showed their decision had relied on explicitly gender-based stereotyping. But the limitations of Price Waterhouse stem in part from these “smoking gun” comments, because the Court failed to clarify how, in future cases without such comments, plaintiffs could prove an illegitimate “motive.”
The other weakness of Price Waterhouse is that the Court seemed to reaffirm the assumption that bias is always deliberate and conscious. Therefore, subsequent plaintiffs were circumscribed from proffering evidence about subconscious bias or about inherently biased male-dominated work environments with broad-based disparate impacts on women.