Women in the Workforce

Vanegas_Marta_webAccording to the Bureau of Labor Statistics, the past several decades have been marked by notable changes in women’s labor force activities.[1] Women’s labor force participation is significantly higher today than it was in the 1970s, particularly among women with children, and a larger share of women work full time and year round than in past decades.[2] In addition, women have increasingly attained higher levels of education: Among women ages 25 to 64 who are in the labor force, the percentage with a college degree roughly tripled from 1970 to 2008.[3] Thus, more and more professional women are participants in the workforce. This progress is both the result of women’s activism and a catalyst of further change. Women’s increased workforce participation and increasing level of formal equality was achieved through feminist activism in the 1960s and 1970s.[4] Feminist critique of restrictive legal structures led to anti-discrimination legislation and the evolution of constitutional jurisprudence recognizing women’s rights to social and economic independence.[5] But the increased presence of women in the workforce continues to disrupt entrenched patriarchal systems and contribute to the development and further refinement of anti-discrimination laws.

For example, women are less willing to merely play the passive victim, and are actively challenging oppressive structures in the workplace. Women undertake the burden of publicly airing their grievances as plaintiffs,[6] and provide civil rights attorneys with test cases for impact litigation and Private Attorney General lawsuits.[7] Some of these cases provide further tweaks of the terms in existing legislation, while also fueling the movement to increase the bases of protection for minorities.[8] Litigation demonstrates to courts the changing cultural landscape and may make the courts more receptive to broader interpretations of existing statutes, such as Title VII and the Family Medical Leave Act.[9] Thus, litigation and legislation work in tandem in achieving greater substantive equality.[10] Even a litigation loss is “useful” as it often creates the necessary impetus for progressive legislation: Congress enacted the Pregnancy Discrimination Act and the Fair Pay Act to remedy rather regressive Supreme Court decisions.[11]

Similarly, a litigation success may spur equal rights advocates into action in pursuing even broader legislative goals. In 1982, Ann Hopkins found herself firmly under the glass ceiling and in “an intolerable and impermissible Catch-22”:[12] She was deemed too aggressive and too unfeminine for elevation to partnership in a Big Eight accounting firm, where her assertiveness earned the firm a fairly large contract with the Department of State.[13] In 1989, the Supreme Court found that the sex stereotyping practiced by Price Waterhouse was a form of sex discrimination. The court said: “It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring ‘a course at charm school.’ Nor (…) does it require expertise in psychology to know that, if an employee’s flawed ‘interpersonal skills’ can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.”[14] The court held that the requirement that an employee conform to sex stereotypes is gender discrimination, while using the terms sex and gender interchangeably in the opinion.[15]

Based on Price Waterhouse, however, it is difficult to say what the actual definition of impermissible “sexual stereotyping” is, and to define the extent to which the distinction between “sex” and “gender” should be relevant to a sex discrimination suit under Title VII.[16] State legislatures are, nevertheless, picking up the subtle differences between sex- and gender-based discrimination, and are acting in increasing numbers to refine these terms and disallow employment discrimination under state laws based on sex or gender, including gender identity and gender expression.[17] Expressly including “gender identity and gender expression” among the protected bases for employment (and often housing) discrimination should, at least, provide notice to employees of their rights.[18] The broad definitions that equal employment statutes give to these terms also assist not only women, but other gender minorities towards their goals of substantive equality.[19]

A number of states now expressly prohibit employment discrimination on the basis of gender identity or gender expression. For example, the California Fair Employment and Housing Act (FEHA) was amended in 2011, to prohibit discrimination on the basis of sex or gender, including gender identity and gender expression, the latter meaning “gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”[20] Connecticut enacted a similar bill, also in 2011.[21] The New Mexico Human Rights Act defines “gender identity” to mean “a person’s self-perception, or perception of that person by another, of the person’s identity as a male or female based upon the person’s appearance, behavior or physical characteristics that are in accord with or opposed to the person’s physical anatomy, chromosomal sex or sex at birth.”[22]

Other jurisdictions that expressly extend protection against discrimination in employment on the basis of gender identity include Connecticut,[23] Colorado,[24] the District of Columbia,[25] Illinois,[26] Iowa,[27] Maine,[28] Massachusetts,[29] Rhode Island,[30] Vermont[31] and Washington.[32] The list keeps growing, even as an attempt in the New York legislature to enact the Gender Expression Non-Discrimination Act (GENDA), which would have prohibited discrimination because of a person’s gender identity or expression, failed yet again.[33]

After seven years of litigation, Ann Hopkins was admitted to partnership at Price Waterhouse under court order.[34] Her victory was bittersweet: She had to leave a position she learned to love with the World Bank, and the firm she returned to had changed considerably during the years of litigation.[35] It took her a few years to feel comfortable again working as a partner in Price Waterhouse.[36] In 1998, Price Waterhouse merged with Coopers & Lybrand, and in 2001, Hopkins retired from the firm.[37] In October 2002, PricewaterhouseCoopers sold its consulting arm to IBM.[38] Yet, Hopkins’ legacy lives on in the continuing evolution of sex discrimination law and policy.[39] With her brave step into the limelight as plaintiff, a new frontier opened in the law of gender equality.[40] Her landmark case still inspires policymakers, advocacy groups, attorneys, judges and legislators, and continues to influence the ongoing change in the law of sex stereotyping and gender expression discrimination.

Marta R. Vanegas is a graduate of UC Davis School of Law and practices as Deputy Legislative Counsel in Sacramento, Calif. Any views expressed in this article are those of the author and do not represent the views of the Office of Legislative Counsel.

[1] Bureau of Labor Statistics, U.S. Department of Labor, Women in the Labor Force: A Databook 1 (Sept. 2009) available at http://www.bls.gov/cps/wlf-databook-2009.pdf (last accessed July 6, 2013).

[2] Id.

[3] Id.

[4] Jill Maxwell, Leveraging the Courts to Protect Women’s Fundamental Rights at the Intersection of Family-Wage Work Structures and Women’s Role As Wage Earner and Primary Caregiver (2012) 20 Duke J. Gender L. & Pol’y 127, 132.

[5] Id.

[6] Ann Hopkins, Price Waterhouse v. Hopkins: A Personal Account of A Sexual Discrimination Plaintiff (2005) 22 Hofstra Lab. & Emp. L.J. 357, 365 (“I was as weary as the title was long.”)

[7] Douglas Nejaime, Winning Through Losing (2011) 96 Iowa L. Rev. 941, 990 (“[S]ophisticated social movement lawyers engage in multidimensional advocacy that moves beyond, but not without, litigation.”)

[8] See Carol Smart, Feminism and the Power of Law 152 (1989) (“Not only are rights part of the very history of modern social movements, they also give status to the groups or minorities who are making demands. The person demanding her rights is not a supplicant or seeker of charity, but a person with dignity demanding a just outcome according to widely accepted criteria of fairness.”)

[9] Maxwell, supra note 5, at 138.

[10] See id.

[11] Id. at 139.

[12] “An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.” Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 251.

[13] “After two and a half years, travel to thirty or forty countries, and a 26 volume proposal, Price Waterhouse won the $30-50 million implementation project for [the State Department]. At the time, that project was the biggest consulting deal the firm had ever done.” Ann Hopkins, Price Waterhouse v. Hopkins: A Personal Account of A Sexual Discrimination Plaintiff (2005) 22 Hofstra Lab. & Emp. L.J. 357, 360

[14] Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 256.

[15] The Civil Rights Act of 1991 overruled another prong of Price Waterhouse’s holding, allowing the “mixed motives” defense in Title VII employment discrimination cases. See 42 U.S.C.A. § 2000e-2(m) (West).

[16] Francine Tilewick Bazluke & Jeffrey J. Nolan, “Because of Sex”: The Evolving Legal Riddle of Sexual vs. Gender Identity (2006) 32 J.C. & U.L. 361, 364-65.

[17] Id. At 402-03.

[18] “[I]n 2011, California joined the modern trend and made the protections for trans and gender nonconforming people explicit throughout its nondiscrimination statutes. A.B. 887, authored by Assemblymember Toni Atkins, added both “gender identity” and “gender expression” to the lists of protected characteristics enumerated in [the Fair Employment and Housing Act (FEHA)], the Education Code, and dozens of other nondiscrimination provisions. As a result, “gender identity” and “gender expression” are finally included on the posters that inform employees of their right to be free from discrimination, required by California law to be posted in every workplace.” Ilona M. Turner, Pioneering Strategies to Win Trans Rights in California (2012) 34 U. La Verne L. Rev. 5, 12-13

[19] L. Camille Hébert, Transforming Transsexual and Transgender Rights (2009) 15 Wm. & Mary J. Women & L. 535, 547-48; Turner, supra note 18, at 12-13.

[20] Calif. Gov. Code § 12926(q)(2)(emphasis added).

[21] Conn. H.B. No. 6599 (May 23, 2011).

[22] N.M. Stat. Ann. §§ 28-1-2(Q), 7(A) (LexisNexis 2008); Hébert, supra note 19, at 547.

[23] State Employment Law Developments, SU033 ALI-ABA 1445, 1451.

[24] Colo. Rev. Stat. §§ 24-34-401(7.5), 402 (2008); Hébert, supra note 19, at 547.

[25] D.C. Code Ann. §§ 2-1401.02(12A), 1402.11 (LexisNexis 2008) (“Gender identity or expression” is defined to mean “a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s assigned sex at birth.”); Hébert, supra note 19, at 547-48.

[26] 775 Ill. Comp. Stat. Ann. §§ 5/1-103(O-1), (Q), 5/2-102 (West Supp. 2008); Hébert, supra note 19, at 548.

[27] Iowa Code §§ 216.2(10), 216.6 (2008) ; Hébert, supra note 19, at 548.

[28] Me. Rev. Stat. Ann. tit. 5, § 4553 (9-C) (2008) (defining “sexual orientation” to include “gender identity or expression”) ; Hébert, supra note 19, at 548.

[29] State Employment Law Developments, SU033 ALI-ABA 1445, 1451.

[30] R.I. Gen. Laws §§ 28-5-6(10), 7 (2003). “Gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth.” Id. at § 28-5-6(10); Hébert, supra note 19, at 547, 590.

[31] Vt. Stat. Ann. tit. 1, § 144 (2007); tit. 21, § 495 (2007) (“The term ‘gender identity’ means an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth.”); Hébert, supra note 19, at 548.

[32] Wash. Rev. Code Ann. § 49.60.040(15) (LexisNexis 2008) (defining “sexual orientation” to include “gender expression or identity,” which is defined as “having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth”); Hébert, supra note 19, at 548.

[33] Andy Towle, New York Senate Ends Session, Fails to Take Up Gender Expression Non-Discrimination Act (GENDA), Towleroad (Jun 22, 2013 at 5:10 PM EST) available at http://www.towleroad.com/2013/06/new-york-senate-ends-session-fails-to-take-up-gender-expression-non-discrimination-act-genda.html (last accessed July 8, 2013) (“Said Empire State Pride Agenda’s executive director Nathan Schaefer in a statement lamenting the failure to take up the bill: ‘The Gender Expression Non-Discrimination Act (GENDA) made historic progress during the legislative session that just concluded. A broad, deep and diverse statewide coalition of law enforcement, labor, faith, civil rights, LGBT, progressive and women’s organizations stood shoulder-to-shoulder and called for GENDA. The community was united behind language that offered strong protections, particularly in the areas of housing and employment.’” (emphasis added)).

[34] Hopkins, supra note 7, at 365. (“Early in 1991, the firm paid what it was ordered to pay and I rejoined the firm as a partner with compensation and benefits set at the average of the partner group admitted in July 1983. I received checks for court ordered back pay, attorneys’ fees that I had paid, and for back pay earned between the date of the court order and when I returned to the firm.” See also id., at 398. (“That’s the only way she’s going to be made a partner, by order.”)

[35] Id. at 409.

[36] Id. at 409-10.

[37] Id. at 411.

[38] Jack Schofield, IBM buying Price Waterhouse Coopers’ consulting business, Technology Blog – The Guardian (July 31, 2002) available at http://www.guardian.co.uk/technology/blog/2002/jul/31/ibmbuyingpric (last accessed July 16, 2013); News Release, IBM, PricewaterhouseCoopers Complete Sale of PwC Consulting, IBM (Oct. 2, 2002) available at http://www-03.ibm.com/press/us/en/pressrelease/491.wss (last accessed July 16, 2013).

[39] Ms. Hopkins also wrote a book telling a personal account of her story. See generally, Ann Branigar Hopkins, So Ordered: Making Partner the Hard Way (Univ. Mass. Press, 1996).

[40] Id. at 396 (quoting Transcript, Hopkins v. Price Waterhouse, 737 F. Supp. 1202 (D.D.C. 1990) (No. 84-3040) (on remand): “Somebody was going to get the first partnership case. This is the biggest partnership anybody could have imagined to have that case happen to. Hishon v. King & Spalding could have had it happen to it. It was a firm of about a hundred people with a former Attorney General who I’m sure didn’t believe that they violated the law. That woman decided not to press that issue, but somebody was going to do it because it’s an important part of Title VII.”).

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