Lead Opinion
Oрinion for the Court filed by District Judge JOYCE HENS GREEN.
Dissenting opinion filed by Circuit Judge WILLIAMS.
In Hishon v. King & Spalding,
I.
A. Background
Price Waterhouse is a professional partnership specializing in auditing, tax, and management consulting services, primarily for private corporations and government agencies. The firm is known colloquially as one of the nation’s “big eight” accounting firms; at the time this suit commenced, it had 662 partners working in 90 offices across the country. Price Waterhouse is managed by a Senior Partner and Policy Board elected by all the partners. New partners are regularly drawn from the ranks of the firm’s senior managers through a formal nomination and review process that culminates in a partnership-wide vote. There are no formal limits on the number of persons who may be made partners in any one year. Hopkins v. Price Waterhouse,
Plaintiff joined Price Waterhouse as a manager in August 1978 and began working in its Office of Government Services (OGS) in Washington, D.C. She specialized in preparing, securing, and managing contracts for large-scale computer-based systems designed specifically for government agеncies. Plaintiff had previously worked at Touche Ross, another large accounting firm where her husband was also employed, but left because that firm’s rules prohibited both husband and wife from being considered for partnership. Shortly after her departure, plaintiff’s husband became a partner at Touche Ross. In order to hire her, Price Waterhouse waived one of its own rules that barred employment of anyone whose spouse was a partner in a competing firm. In 1981, however, the firm advised plaintiff that, because of her
There is no dispute that Hopkins was qualified for partnership consideration. She was exceptionally successful in garnering business for the firm, winning contract awards with the Department of State and the Farmers Home Administration worth an estimated $34 to $44 million to Price Waterhouse. The firm’s Senior Partner, Joseph Connor, characterized one of these contracts — a world-wide computerized system capable of handling all State Department financial transactions — as a “leading credential” that enabled the firm to win similar business from other federal agencies. The District Court expressly found that none of the other candidates considered for partnership in 1983 had generated more business for Price Waterhouse than plaintiff.
The partners in OGS formally initiated the admission process for plaintiff by nominating her for partnership in August 1982. In support of her candidacy OGS submitted a flattering appraisal of her work, highlighting her “outstanding performance” in connection with the State Department project, and strongly urging her admission to the partnership. The appraisal stated in part:
In her five years with the firm, she has demonstrated conclusively that she has the capacity and capability to contribute significantly to the growth and profitability of the firm. Her strong character, independence and integrity are well recognized by her clients and peers. Ms. Hopkins has outstanding oral and written communication skills. She has a good business sense, and ability to grasp and handle quickly the most complex issues, and strong leadership qualities.
Plaintiff’s Exhibit ("Pl.Ex.”) 15.
After a local office such as OGS nominates one of its senior managers for partnership, Price Waterhouse circulates the nominee’s name and the accompanying appraisal of his or her work to all partners, who are invited to comment on the candidate. Those partners who have worked closely or extensively with a candidate submit “long-form” evaluations, while those whose contact has beеn more limited submit “short-forms.” Partners are asked to rank individual nominees against all other candidates in 48 categories; to indicate whether the individual should be admitted, rejected, or placed on hold; and to provide written comments explaining their recommendations. The Admissions Committee, an arm of the firm’s Policy Board, reviews each candidate’s personnel file and occasionally interviews individual partners who have commented on a given candidate. The Committee then prepares a summary of the evaluations and makes its own recommendations to the Policy Board, providing a short written statement explaining any recommendation to hold or reject a candidate. The Policy Board in turn votes on whether the candidate should be included on the partnership ballot, held for reconsideration, or rejected. The Board can override the recommendations of the Admissions Committee and evaluates candidates not only on the basis of their individual merit, but also in terms of the firm’s business needs. Those candidates who receive the Board’s approval are placed on the ballot for a partnership-wide election; those who are not included are informed of the Board’s reasons for rejecting or postponing their candidacies.
Plaintiff was the only woman among the 88 candidates nominated for partnership in August 1982. Of these, 47 were invited to join the partnership, 21 were rejected outright, and the remaining 20 — including plaintiff — -were placed on hold. Seventeen of the 19 men placed on hold were renominated the following year (the other two had been placed on two-year holds), and of these, 15 were ultimately admitted. OGS, however, did not renominate plaintiff. Of the thirty-two partners who submitted evaluations and comments on her candidacy,
A number of these complaints about plaintiffs lack of “interpersonal skills” were couched in terms of her sex. One critic suggested that Hopkins needed to take a “course at charm school.” Pl.Ex. 21. A supporter sought to excuse her behavior by speculating that “she may have overcompensated for being a woman.” Defendant’s Exhibit (“Def.Ex.”) 31. A member of the Admissions Committee investigated a reference in Hopkins’ personnel file about her use of profanity and testified that “several ... partners” regarded her language as “one of the negatives.” Transcript оf Trial (“Tr.”) 321. One supporter felt compelled to defend her on this subject, arguing that “[m]any male partners are worse than Ann (language and tough personality)”; this partner believed that the concerns over her profanity arose only “because she is a lady using foul language.” Id. Another supporter opined that Hopkins initially came across as "macho,” but concluded that “if you get around the personality thing she’s at the top of the list or way above average.” Still another supporter wrote that plaintiff “had matured from a tough-talking, somewhat masculine hard-nosed mgr. to an authoritative, formidable, but much more appealing lady partner candidate.” Pl.Ex. 21.
Due to the large number of comments concerning her interpersonal skills, the Admissions Committee recommended that Hopkins’ candidacy be held for at least a year. The Policy Board concurred, noting that although plaintiff had “a lot of talent,” she needed “social grace.” Pl.Ex. 20. Shortly thereafter, plaintiff met with the firm's Senior Partner, Joseph Connor, to discuss the Board’s decision, and he urged her to undertake a Quality Control Review, which would allow her to work with more partners, demonstrate her skills, and allay concerns about her ability to deal with staff. Prior to that meeting, Thomas Beyer, the head partner at OGS and perhaps Hopkins’ most fervent supporter, discussed with her problems the Board had identified with her candidacy and the steps she might take to enhance her partnership prospects. Beyer advised her “to walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
Four months after she embarked on her Quality Control Review, however, the partners at OGS decided not to propose Hopkins for partnership. During the year following her initial nomination, Hopkins lost the support of two of these partners, who had come to strongly oppose her candidacy. Although candidates have on occasion been admitted despite the opposition of partners in their home offices, plaintiff’s supporters at OGS felt that in view of the strong criticisms her earlier nomination had drawn, she could not possibly become a partner without the unanimous endorsement of her local office partners. Beyer advised plaintiff that it was very unlikely that she would ever be admitted to the partnership. He told her that she could remain at Price Waterhouse as a senior manager, but one of the OGS partners who opposed her candidacy advised her to resign. That advice was consistent with the regular practice and custom at Price Wa-terhouse, where candidates rejected for partnership routinely left. Hopkins resigned in January 1984 and set up her own consulting firm.
B. Proceedings Below
The District Court had no difficulty finding that plaintiff had presented a prima facie case of sex discrimination: she was a qualified partnership candidate, she was rejected, and Price Waterhouse continued to seek partners with her qualifications.
The trial court’s finding of liability rested instead on its determination that Price Waterhouse had discriminated against Hopkins by filtering her partnership candidacy through a system that gave grеat weight to negative comments and recommendations, despite evidence that those comments reflected unconscious sexual stereotyping by male evaluators based on outmoded attitudes towards women. Id. at 1118-19. The District Court found that comments based on sexual stereotypes were “part of the regular fodder of partnership evaluations,” yet Price Waterhouse took no steps to discourage sexism, to heighten the sensitivity of partners to sexist attitudes, or to investigate negative comments to ascertain whether they were the product of such attitudes. Id. at 1119. The trial judge acknowledged that it was impossible to measure the precise role sexual stereotyping had played in the Policy Board’s decision to deny Hopkins partnership, but found that the decision was in fact tainted by discriminatory evaluations that resulted from the firm’s failure to root evident sexism from its evaluation system. Accordingly, the District Court determined that Price Waterhouse bore the burden of demonstrating by clear and convincing evidence that its decision would have been the same regardless of such discrimination — a showing the firm was unable to make.
Having concluded that Hopkins was a victim of sexual discrimination, the trial judge went on to find that she was nevertheless not entitled to an order directing the firm to make her a partner. Applying the doctrine of constructive discharge to the professional partnership sеtting, the District Court determined that Hopkins’ departure from Price Waterhouse was the result of neither intolerable working conditions nor any aggravating circumstances such as a firm history of discrimination or undue humiliation. Id. at 1121. Although one OGS partner suggested to plaintiff that she resign, the firm offered to retain her as a senior manager and several partners encouraged her to accept this option. Aside from her failed partnership bid, Hopkins had enjoyed an amicable and otherwise quite successful five years of employment with the firm. The trial court concluded that a discriminatory denial of partnership, without more, did not amount to a showing of constructive discharge and thus did.not warrant the equitable relief Hopkins sought. Accordingly, the court denied her both backpay from the date of her resignation and a decree requiring that she
The respective cross-appeals followed.
II.
A. The Liability Determination
Price Waterhouse mounts two attacks on the District Court’s determination that it discriminated against Hopkins in violation of Title VII. First, the firm contends that there is no competent evidence supporting the lower court’s finding that impermissible sexual stereotyping infected the partnership evaluation system. Second, Price Waterhouse argues that even if this finding is upheld, the liability determination still cannot stand because the lower court expressly found that Hopkins’ behavior provided “ample justification” for the complaints about her lack of interpersonal skills, and that these complaints in turn constituted a legitimate, nondiscriminatory business reason for placing Hopkins’ candidacy on hold. Thus, the firm submits that even if the evaluation process has not been purged of sexist attitudes, those attitudes were not responsible for the decision to hold Hopkins for further consideration, and therefore Hopkins has failed to establish any causation between the partnership’s inappropriate treatment of female candidates and her own unsuccessful candidacy.
1. The District Court’s Findings
As this court recently emphasized, appellate review of District Court findings in Title VII cases is necessarily narrow. Underwood v. District of Columbia Armory Board,
In concluding that Price Water-house’s partnership evaluation system was infected by impermissible, sexually stereotyped attitudes toward women, the District Court relied on three principal pieces of evidence: (1) the comments partners made about Hopkins herself; (2) the testimony of Dr. Susan Fiske, a social psychologist and an expert in the field of stereotyping, who identified some of these comments as the product of sexual stereotyping; and (3) comments made аbout other women candidates in previous years. Defendant attempts to dismiss this evidence by isolating various comments and arguing that they are either irrelevant, sex-neutral, or otherwise not probative of discrimination. This piecemeal attack on the District Court’s finding, however, ignores the fact that we must view the evidence in its entirety, and is in any event unequal to the task of demonstrating that the court’s finding is clearly erroneous. Anderson v. City of
Price Waterhouse argues, for example, that the District Court could not have drawn any adverse inferences about the firm’s evaluation system from statements describing Hopkins as “macho,” “a somewhat masculine hard-nosed mgr,” or a manager who “overcompensated for being a woman,” because all these comments were made by those favoring her candidacy. That Hopkins’ supporters made these statements, however, in no way undermines the District Court’s finding that they reflect stereotypical thinking on the part of the commenters. Stereotypical attitudes that sometimes work to the advantage of women, such as the once unchallenged assumption that mothers are inherently superior parents and thus nearly always entitled to custody of children in divorce actions, are no less the product of archaic thinking than those attitudes that disadvantage women. The comments of Hopkins' supporters may or may not have harmed her candidacy,
Perhaps most telling is Price Water-house’s desperate attempt to erase from the record Thomas Beyer’s advice to Hopkins that she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
The District Court also rested its finding of discriminatory sexual stereotyping on the testimony of Dr. Fiske, an expert in the field of stereotyping, who stated that the disappointed stereotypical expectations of male partners played a “major determining role” in the firm’s decision not to make Hopkins a partner. Tr. 545. Disclaiming any intention of denigrating Dr. Fiske’s field of expertise, Price Waterhouse attempts to dismiss this evidence as “sheer speculation” of “no evidentiary value.” Brief for Appellee-Cross Appellant at 31. This is so, the firm contends, because Dr. Fiske failed to compare the stereotypical comments made about Hopkins with similar comments made about male candidates; she lacked information concerning the authors of these comments; and she had never met Hopkins and had no idea what her conduct or behavior was like. However useful Price Waterhouse might believe this information to be, Dr. Fiske made clear that experts in her field do not require such data in order to determine whether stereotyping is occurring in a given employment context. Dr. Fiske testified that she was an expert at evaluating written comments, that reliance on such written documents was a standard practice in her field, and that she did not need to observe Hopkins or meet her critics because she had the entire universe of reactions to Hopkins before her, as well as comments the same partners made about male candidates. Tr. 595-96. This information, along with other “convergent indicators” of stereotyping— such as the extremely small number of female partners at the firm; the absence of any other female candidates among the 88 nominated along with Hopkins; the exaggerated and extremely intense negative reactions of Hopkins’ critics to behavior that supporters perceived as positive; the ambiguous criteria the firm used to evaluate a candidate’s personal qualities; the absence of complaints from Hopkins’ clients; and the positive assessments of Hopkins in areas where performance could be measured objectively, (e.g., business generation) — taken together provided Dr. Fiske a sufficient basis from which to draw her conclusions that Hopkins was the victim of stereotyping. To the extent that Price Waterhouse believes Dr. Fiske lacked necessary information, the firm is in fact quarreling with her field of expertise and the methodology it employs. Defendant, however, failed to challenge the validity of Dr. Fiske’s discipline at trial and disavows any such challenge here. We cannot find any error in the District Court’s decision to credit Dr. Fiske’s testimony as that of an expert, or the decision to rely on that testimony as evidence of sexual stereotyping at Price Waterhouse.
Finally, the firm challenges the District Court’s reliance on comments partners made about other female candidates, contending that the trial judge intentionally misconstrued these statements in order to find in them evidence of stereotypical thinking. One partner stated that he could never vote for a female partner. One successful female candidate was criticized for being a “women’s libber,” and two other unsuccessful women were characterized as curt, brusque, and abrasive; “Ma Barker”; and “one of the boys.”
In sum, there is ample support in the record for the District Court’s finding that the partnership selection process at Price Waterhouse was impermissibly infected by stereotypical attitudes towards female candidates.
2. The District Court’s Legal Theory
Price Waterhouse also challenges the liability determination below on two purely legal grounds. First, it contends that Hopkins did not prove “intentional” discrimination on the part of the Policy Board, but only “unconscious” sexual stereotyping by unidentified partners who participated in the selection process. Second, the firm argues that even if such a showing is sufficient to satisfy Title VII’s intent requirement, Hopkins did not prove, and the District Court did not find, that this unconscious stereotyping, or the firm’s conscious failure to prevent it, actually caused her partnership denial.
Hopkins claimed, and the District Court found, that Price Waterhouse treated her differently than the 87 male candidates nominated in 1982 by subjecting her candidacy to an evaluation system that the firm knew or should have known allowed sexual stereotypes to influence decisions on partnership selection. She made a substantial showing of the role such sexual stereotypes played in the selection system generally and in her own candidacy in particular — a showing made all the more remarkable by the educational background and sophistication of the рarticipants in that system. Price Waterhouse tries to escape liability for this sex-based disparate treatment by arguing that it was not “intentional” — the individual partners who evaluated plaintiff on the basis of stereotypes did so unconsciously, and plaintiff failed to show the extent to which this stereotyping influenced the ultimate decisionmaker in this case, the Policy Board. In so arguing, defendant seeks refuge in the collegial nature of its decisionmaking body, in the subtle and insidious nature of the discrimination involved, and in a mistaken notion of the intent requirement in disparate treatment cases.
As the Supreme Court noted a decade ago in International Brotherhood of Teamsters v. United States,
Price Waterhouse nevertheless argues that Hopkins has failed to establish a discriminatory motive on the part of the actual decisionmaker in this case, the Policy Board, because she has not demonstrated the exact impact that stereotyped comments had on the Board’s ultimate decision. The faulty logic upon which this contention is premised, however, would, if accepted, place an enormous, perhaps insurmountable, burden on Title VII litigants who challenge the employment decisions of collegial bodies such as partnerships. It is the rare case indeed in which a group of sophisticated professionals such as the Policy Board would formally pass on the candidacy of a woman or other member of a protected group in the unvarnished terms of the Price Waterhouse partner who objected to all female candidates as a matter of principle. Here, Hopkins presented evidence that stereotypical attitudes towards women had manifested themselves in connection with the partnership bids of other women and, more importantly, that these stereotypes had been brought to bear on her own candidacy. In addition, she offered the expert testimony of Dr. Fiske, who concluded that these attitudes played a “major” role in plaintiff’s failure to make partner. In particular, Dr. Fiske noted that these stereotypical attitudes accounted for the extremely negative reactions of Hopkins’ critics to behavior that other partners praised in her — negative reactions, moreover, which the Policy Board formally recognized in its recommendation by stating that plaintiff needed to learn social grace. The District Court therefore had ample support for its conclusion that stereotyping played a significant role in blocking plaintiff’s admission to the partnership.
In Burdine, of course, the Court made clear that ultimately the plaintiff bears the burden of persuasion on the issue of intentional discrimination. While the Court noted that this burden requires the plaintiff to prove that “a discriminatory reason more likely motivated the employer,”
Recognizing that “[discriminatory intent is simply not amenable to calibration,” Personnel Administrator v. Feeney,
it is unreasonable and destructive of the purposes of Title VII to require the plaintiff to establish in addition the difficult hypothetical proposition that, had there been no discrimination, the employment decision would have been made in [her] favor. We chose instead to place the burden upon the employer to show, by “clear and convincing evidence,” that the unlawful factor was not the determinative one.
Toney v. Block,
Finally, Price Waterhouse argues that the District Court’s findings conclusively demonstrate that Hopkins’ unappealing personality, rather than any unlawful discrimination on the part of the Policy Board, was the but for cause of her failure to make partner. The trial judge expressly noted that the concerns raised over Hopkins’ dealings with staff found support in the record and “provided ample justification for the complaints that form the basis of the Policy Board’s decision.”
B. Relief
Turning to the question of relief, the District Court found that Hopkins was entitled to recover backpay from the date of her partnership denial until the date of her resignation, but disallowed any such recovery because the parties had attempted to bifurcate the trial and postpone consideration of the issue of damages without the knowledge or consent of the court. With respect to postdesignation damages, the District Court found that Hopkins had failed to demonstrate that she had been constructively discharged and therefore was ineligible both for backpay subsequent to the date of her resignation and an order directing that she be made a partner.
The facts Hopkins proffered in support of her constructive discharge claim are undisputed. She made clear both at trial and during the course of her employment with Price Waterhouse that consideration for partnership was an absolute prerequisite for any job she would take. Indeed, she left Touche Ross when her husband’s successful partnership bid eliminated her own chances for partnership, and she threatened to resign in 1981 when Price Water-house suggested that her husband’s status as a Touche Ross partner might preclude her consideration for partnership at the firm. Nor does defendant take issue in any way with the District Court's finding that following her initial failure to make partner and OGS’s decision not to re-propose her, it was “very unlikely” that Hopkins would ever become a partner at Price Waterhouse. It is true that plaintiff could have stayed on at the firm as a senior manager and that at least one partner urged her to do so. On the other hand, the customary and. nearly unanimous practice at Price Waterhouse, as at most other accounting firms, is for senior managers who have been passed over for partnership to resign, and one of the OGS partners who strongly opposed Hopkins’ candidacy advised her to do just that.
In ruling that this showing did not suffice to make out a claim of constructive discharge, the District Court relied on Clark v. Marsh,
We continue to adhere to the view, first set forth in Clark, that the mere fact of discrimination, without more, is insufficient to make out a claim of constructive discharge. Similarly, we believe that discrimination is still best attacked within the context of existing employment relations. Price Waterhouse’s decision to deny Hopkins partnership status, however, coupled with the OGS’s failure to renominate her, would have been viewed by any reasonable senior manager in her position as a career-ending action. Accordingly, it amounted to a constructive discharge. We believe the District Court erred in ruling otherwise and therefore reverse that portion of its decision and remand the case so that the court may conduct further proceedings in order to determine the appropriate relief.
In assessing Hopkins’ post-resignation damages, the District Court must of necessity consider much if not all of the evidence plaintiff sought to introduce in connection with her claim for backpay for the period between her partnership denial and her resignation. We believe, therefore, that the District Court, in determining damages on remand, should also compensate Hopkins for this period. In so ruling, we do not wish to condone unauthorized bifurcation of Title VII or any other actions, nor are we confident that we would require such a re-determination were it not for our remand. The District Court itself, however, expressly found that Hopkins was entitled to recover pre-resignation damages, and there is no suggestion in the record that she was in any way responsible for the decision to postpone the presentation of evidence in this issue. We are somewhat troubled by the fact that the District Court’s penalty for that decision fell solely on plaintiff and resulted in a complete windfall for Price Waterhouse, whose attorneys joined equally in the unauthorized stipulation. In any event, the discourtesy and inconvenience to the court occasioned by the stipulation is largely moot in light of our remand, and we therefore believe it appropriate for the court to award Hopkins the full relief tо which she is entitled.
For all the foregoing reasons, we affirm the District Court’s liability determination and reverse and remand the case for the determination of appropriate damages and relief.
Notes
. For the sake of convenience, the court will refer to the parties as plaintiff and defendant, rather than appellant, cross-appellee, and appel-lee, cross-appellant.
. The District Court also rejected Hopkins’ evidence concerning the very small number of female partners at Price Waterhouse. The trial court found this evidence "wholly inconclusive" because it failed to indicate the percentage of female partners relative to the percentage of available qualified women, and failed to take into account the fact that female partners presently at Price Waterhouse were selected over a long span of years during which the pool of qualified women changed dramatically. Hopkins v. Price Waterhouse,
. We do not share Price Waterhouse’s emphatic conviction that because the comments in question were made by her supporters, they could not possibly have hurt Hopkins’ partnership prospects. Characterizing a female candidate as "macho” and "masculine” is certainly one way of qualifying, and thereby diluting, an endorsement. Supporters of a male candidate are very unlikely to describe that candidate in sexual terms, i.e., as “masculine,” or to excuse character flaws as merely the result of "overcompensating for being a man.” Indeed, plaintiffs expert, Dr. Fiske, testified that these qualifying statements reflected a conscious effort on the part of the commenters to overcome their stereotypical attitudes and vote for Hopkins despite their disdain for her behavior. Tr. 565. By couching their qualifications in terms of sexual stereotypes, however, these supporters echoed the complaints of Hopkins’ critics, thereby lending credence to those complaints and unwittingly undermining the support they sought to provide.
. "Charm school” is a somewhat derogatory colloquialism for an institution formally known as a "finishing school.” Webster’s defines the latter as "a private school that prepares young women for social life (by emphasizing cultural accomplishments and social graces) rather than for a vocational or professional career.” Webster’s Third International New Dictionary (1968).
. In Texas Dep’t of Community Affairs v. Burdine,
. In Lynn v. Regents of the University of California,
. In McDonald v. Santa Fe Trail Transp. Co.,
More recently, the Court ruled in an analogous setting that for purposes of establishing an unfair labor practice under the National Labor Relations Act, a showing that antiunion bias was a substantial or motivating factor in an adverse employment decision is sufficient to shift to the employer the burden of proving that the decision would have been the same even absent such bias. National Labor Relations Board v. Transportation Management Corp.,
. Only two circuits have adopted the "but for” test of causation. See Lewis v. University of Pittsburgh, 725 F.2d 910, 915-17 (3d Cir.1983) and Mack v. Cape Elizabeth School Bd.,
. In Toney, the court declined to apply this test, originally set out in Day v. Mathews,
Dissenting Opinion
dissenting:
The majority implicitly adopts a novel theory of liability under Title VII, but neither confronts the novelty of the theory nor gives it any intelligible bounds. Further, as it must to reach the result, it bends out of recognition this court’s holding in Toney v. Block,
The theory is one of sexual stereotyping. See, e.g., Majority Opinion (“Maj.”) at 465, 468, 469. An analysis grounding Title VII liability in such stereotypes may well be meritorious; but its articulation would require care. No one argues that Congress intended entirely to overturn Justice
The court makes no effort to delineate the theory, to draw a line between permissible and impermissible. There is a good reason not to do so: the record here provided no causal connection between Hopkins’s fate and such stereotyping as went on among Price Waterhouse’s 662 partners. The evidence of sexual stereotyping
Under Texas Department of Community Affairs v. Burdine,
The district court summarized its view of the evidence of discrimination in these terms:
Discriminatory stereotyping of females was permitted to play a part. [1] Comments influenced by sex stereotypes were made by partners; [2] the firm’s evaluation process gave substantial weight to these comments; and [3] the partnership failed to address the conspicuous problem of stereotyping in partnership evaluations. [4] While these three factors might have been innocent alone, they combined to produce discrimination in the case of this plaintiff.
1. Partner comments influenced by stereotypes. The bulk of the comments instanced as stereotyped are by Hopkins’s supporters. One said that opponents focused on Hopkins’s profanity “because its [sic] a lady using foul language,” another characterized her as “macho,” and another
As for the “smoking gun” remark by her most ardent supporter, Thomas Beyer (“walk more femininely,” etc.), there is no reason to suppose that it represented any more than one partner’s speculations. The district court was clearly erroneous in characterizing the statement as having been made by Beyer in fulfillment of his “responsibility] for telling her what problems the Policy Board had identified with her candidacy.”
The majority tries to shore up the misconception by imputing to Price Water-house an “artificial assumption that Beyer ... would be kept completely in the dark as to the Policy Board’s views on her candidacy.” Maj. at 466. No one assumes any such thing. The issue is whether Beyer was summarizing the Policy Board’s views or was offering his own helpful suggestions. The evidence of Hopkins and Beyer is clear that it was the latter. The only faint evidence the other way came from Roger Marcellin, a partner in another office who did field work for the Policy Board. Tr. at 305-07. He simply assumed (“ha[d] no doubt”) that Beyer would be reporting “where the problems were.” Id. at 316. Beyer’s and Hopkins's testimony on the subject makes clear that Marcellin’s guesswork was inaccurate.
In the majority’s most dramatic imaginative leap, the stereotyped language of Hopkins’s supporters is said, without a shred of supportive evidence, to have “len[t] credence to [stereotyped complaints of Hopkins’s critics] and unwittingly undermin[ed] the support they sought to provide.” Maj. at 466 n. 3. The creativity of the proposition is underscored by its building in an assumption that stereotyped critiques by Hopkins’s opponents exist — an assumption for which the majority identifies no record support.
The only remark by a Hopkins opponent that can be characterized as manifesting sexual stereotyping is the facetious suggestion that she should take a “course at charm school.” The smoke from this gun seems to me rather wispy. It was embedded in the following comment:
Contacts with Ann are only casual — several mtgs at OGS and MMGS sessions. However, she is consistently annoying and irritating — believes she knows more than anyone about anything, is not afraid to let the world know it. Suggest a course at charm school before she is con*476 sidered for admission. I would be embarrassed to introduce her as a ptnr.
Def.Exh. 27.
The substance of the remark has nothing to do with sex stereotypes. It fits with the many other characterizations of Hopkins (“too assertive, overly critical of others, impatient with her staff”; it required “diplomacy, patience and guts to work with her”;
The district court and the majority take refuge in comments made by Price Water-house partners in evaluations of other women in other years.
The other remarks (still relating to other evaluations in other years) are ambiguous. For instance, it had been said of one woman candidate that she acted too much like “one of the boys,”
In a case where alleged sexual stereotyping had a demonstrable connection to the plaintiff, a careful analysis of such remarks would be in order. Such an analysis would begin with the recognition that not all sex-based phrases are sexist. Our vocabulary is full of such phrases, some of which have gradually detached themselves from any genuine link to sex, or even switched sex. Thus “doll,” originally a slang phrase for a “conventionally pretty and shapely young woman, ... whose function is to elevate the status of a male and to inspire general lust,” see New Dictionary op American Slang 108 (R. Chapman ed. 1986), has come in some contexts to refer to any “notably decent, pleasant, generous person,” as in “Isn’t he a doll?” That is the way language evolves, especially in a lively, spontaneous culture such as ours. Words themselves are metaphors, and it is in their nature to acquire meanings completely detached from original, concrete detail, whether or not sex related. Thus the phrase “BS” clearly relies on no distinction between cows and bulls.
Here, the phrase “one of the boys” was used in a sex-neutral sense: it was used of a woman, and since it evidently referred to her camaraderie with clerical staff at Price Waterhouse, the statistical probability is overwhelming that they were predominantly women. The phrase’s connotation of easy familiarity (an “ordinary, amiable man ... without side or lofty dignity; = ORDINARY JOE: His Eminence was trying to be one of the boys,” id. at 305) easily escapes its masculine origins. The phrase does not manifest sexism, notwithstanding the solemn avowals of the plaintiff, the district court and the majority.
In discussing sex stereotyping, the district court gave great weight to the testimony of Dr. Susan Fiske, a witness purporting to be an expert in that field. She claimed to be able to find forbidden stereotyping simply by reading partners’ comments — without information about the truth of the matters commented upon. Of course where the remarks themselves carry such a tint (if, for example, a commenter had said, “She’s too masculine”), anyone could do so. But (apart from the “charm school” remark) no Hopkins detractor said any such thing. Dr. Fiske’s expеrtise rose to the occasion. Her arts enabled her to detect sex stereotyping based largely on “the intensity of the negative reaction.” Tr. at 559. So if an observer characterized someone as “overbearing and arrogant and abrasive and running over people,” an expert such as Dr. Fiske could discern — and would, if the subject were a woman — that they stemmed from unconscious stereotypes. Dr. Fiske could do this without meeting the subject of the comment or making any inquiry into a possible factual basis. Id. at 569, 595-97. To an expert of Dr. Fiske’s qualifications, it seems plain that no woman could be overbearing, arrogant or abrasive: any observations to that effect would necessarily be discounted as the product of stereotyping. If analysis like this is to prevail in federal courts, no employer can base any adverse action as to a woman on such attributes.
2.The evaluation process gave weight to such comments. This generalization suffers precisely the defect of the first leg of the tripod of liability: it depends entirely upon comments that could not have adversely affected Hopkins. Either they related to other candidacies in other years, or they represented her supporters’ views or intuitions about her adversaries. All we have that connects in any potentially adverse way with Hopkins is the “charm school” remark.
3. Neglect of duty to address problem of stereotyping. Key to the district court’s finding of liability was Price Waterhouse’s failure to institute special programs for sensitizing partners to sex stereotyping, or otherwise to stamp it out of the evaluation process.
From the facts here, it looks as though the duty to sensitize has a hair trigger. The implications are serious. The more delicate the trigger, the more completely this court has dropped the requirement of intentional discrimination out of the law. As few employers can say with confidence that those who run its hiring and promotion are one hundred percent free of what may later be characterized as forbidden stereotyping, the only safe course will be to institute programs of the sort approved by the district court. The rule turns Title VII from a prohibition of discriminatory conduct into an engine for rooting out sexist thoughts.
4. Innocent alone, the three factors combined to produce discrimination in the case of this plaintiff. Such alchemy is mysterious. Having found that specific complaints caused the Policy Board’s adverse decisión and thаt there was ample
The evidence here establishes at most the existence of sexist attitudes. Thus there can be no doubt that this court’s decision in Toney v. Block controls. The showing of “generalized discrimination” can at the most establish a prima facie case, requiring defendant to meet its burden of showing non-pretextual grounds for its action. The district court properly found those established, restoring the burden to plaintiff.
The majority would eviscerate Toney by a clever name change: calling the case one of mixed motive, the majority looks to precedents in related areas where a party acting with one permissible motive and one unlawful one may prevail only by affirmatively proving that it would have acted as it did even if the forbidden motive were absent; I have no quarrel with this principle. See National Labor Relations Board v. Transportation Management Corp.,
There is not enough evidence of intentional discrimination to support a verdict for Hopkins under any established approach to Title VII liability. The stereotype theory adopted by the district court should not be allowed to spring to life in a case where its occurrence is not plausibly related to the decision on plaintiff. If a court is to develop such a theory, it should do so in a context where it and the parties properly focus on what elements of sexual differentiation Congress may have sought to stamp out. If failure to provide sensitivity training is to be a ground of Title VII liability, there should be some illumination of the circumstances triggering the duty. And if Toney is to be overturned, it should not be by a panel of this court. I dissent.
. The majority’s treatment of the relief issues, however, seems correct.
. The line between legally permissible and legally impermissible stereotyping has yet to be drawn. When I use the term, I refer simply to whatever expressions have been so characterized by the district court or the majority.
. Cf. Maj. at 466 (“The comments of Hopkins’ supporters may or may not have harmed her candidacy....’’)
. If this leg is in any way based on the firm’s procedure of giving substantial weight to “no” votes, it is inconsistent with the district court's prior finding that "the firm's practice of giving ‘no’ votes great weight treated male and female candidates in the same way.”