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OutsidersWhy Difference is the Future of Civil Rights$

Zachary Kramer

Print publication date: 2019

Print ISBN-13: 9780190682743

Published to Oxford Scholarship Online: February 2019

DOI: 10.1093/oso/9780190682743.001.0001

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Discrimination, Old and New

Discrimination, Old and New

Chapter:
(p.11) 1 Discrimination, Old and New
Source:
Outsiders
Author(s):

Zachary Kramer

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190682743.003.0001

Abstract and Keywords

Chapter 1 examines the stories and cases of three women, each of whom was unsuccessful in her attempt to use civil rights laws to redress an individual wrong. The transition from old to new discrimination is a story about identity. Despite their different jobs and distinct life experiences, the women in Chapter 1 share a common bond. They are outsiders. Discrimination evolves. While it used to be aimed at discrete outsider groups, discrimination is increasingly about the individual. And existing civil rights law is not equipped to deal with this shift. We need a new language to explain modern discrimination. Religious discrimination law holds the key.

Keywords:   old discrimination, new discrimination, identity, social change, rights, wrongs

The firm had made its decision.1 Ann Hopkins would not become a partner. At least for now, as the partners had put Hopkins’s partnership application on hold until next year. The fact that it wasn’t an outright rejection was cold comfort. Ann Hopkins was mad, and with good reason.

Hopkins was a strong candidate. During her five years with Price Waterhouse—the professional services firm that would later become PricewaterhouseCoopers—Hopkins had been a stand-out in the firm’s Washington, D.C., office. She was decisive and effective. She was tough. She was emerging as a leader. In support of her candidacy, the partners in D.C. released a joint statement praising Hopkins. They described her as “an outstanding professional.” They hailed her “strong character, independence and integrity,” and they noted that she had a “deft touch.” Of particular importance was Hopkins’s two-year effort to secure a $25-million contract with the Department of State. An “outstanding performance,” the partners called it, which Hopkins performed “virtually at the partner level.”

(p.12) If the partnership decision turned on work product exclusively, Hopkins would have been an easy case. But partnership decisions are holistic. Making partner is as much about personality as it is about results, and the partners had some concerns about Hopkins’s personality. She was curt with the support staff. She rubbed people the wrong way. She cursed. This wasn’t some excuse ginned up to thwart her candidacy. Earlier in her career, partners advised Hopkins that she needed to improve her interpersonal skills, particularly with respect to her interactions with the support staff. She had improved, but not enough.

To gather information on candidates, the firm invited all the partners in the firm to submit written evaluations of the candidates. Hopkins’s evaluations were revealing, to say the least. Partners described Hopkins as “universally disliked,” “consistently annoying and irritating,” and “macho.” One said that she “overcompensated for being a woman.” Another advised her to take “a course at charm school.” One of her supporters wrote that “Hopkins matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.” Some of these partners interacted with Hopkins more than others. Some of them had no direct contact with her whatsoever.

Thomas Beyer had spent a lot of time with Hopkins, perhaps the most of any partner at the firm. As her mentor, Beyer shepherded Hopkins though the partnership process. He was a trusted advisor. The two were close, friends as much as colleagues. When she learned of the firm’s decision, Hopkins sought Beyer’s counsel. He was candid: If she wanted to make partner in the future, she should walk, talk, and dress more femininely, wear (p.13) make-up and jewelry, and style her hair. She should, in short, be more ladylike.

At the time, Price Waterhouse had 662 partners worldwide. Just seven of them were women. There were eighty-eight candidates up for partner that year. Hopkins was the only woman.

In 1991, the Department of Labor established the Federal Glass Ceiling Commission. Comprised of prominent leaders in government and the private sector, the Commission was tasked with making proposals to break down arbitrary barriers that prevent women and minorities from ascending to the upper ranks of corporate life. The culmination of the Commission’s work was a 1995 report, “A Solid Investment: Making Full Use of the Nation’s Human Capital.”2 The report opens by declaring that the glass ceiling “betrays America’s most cherished principles.” “The American dream is about opportunities for all,” the report continues. “Yet the glass ceiling denies millions of Americans opportunities for economic and personal advancement.” The report argues that the glass ceiling is not only discriminatory in operation, but it is bad for business. It proposes a number of recommendations, including more expansive affirmative action and diversity training programs, leading by example, and strengthening antidiscrimination laws. Whatever the method, the goal is the same: “achieving the full promise of our society by making its bounty available to all.”

There are two ways of reading Ann Hopkins’s story, and the first is in terms of the glass ceiling. Hopkins applied for partnership at Price Waterhouse in 1982, almost a decade before the Glass Ceiling Commission was created and thirteen years before it issued its findings. At the time, only seven women had scaled the firm’s partnership structure, a mere one percent of the (p.14) firm’s total partnership. This alone suggests that Hopkins was not playing on a level field. But the story comes into even sharper focus when you add that Hopkins was the only female in a pool eighty-eight candidates deep. Men would make the decisions, and the decisions were mostly about men. Looking back, the problem seems obvious. The absence of women in the process is conspicuous, strongly suggesting that discrimination was afoot. But back in the early 1980s, this was not an uncommon picture. The whole idea behind the glass ceiling metaphor is that, to achieve equality, women would have to change the landscape. The glass ceiling would crack before it would shatter, and Ann Hopkins was determined to be an important first crack.

On this reading, what is Ann Hopkins’s vision of equality? How was she harmed by the firm’s decision? In the most immediate sense, Hopkins did not advance at work. Making partner is a big deal. It carries with it prestige and, in most cases, the prospect of transforming a person’s financial circumstances. There is no question that being denied access to partnership is a tangible harm. But glass ceilings demand a more robust vision of equality. Sure, Ann Hopkins was injured by the firm’s decision, but its real victims were women. The firm’s decision sent the message that women were not welcome in leadership roles. In doing so, the firm fortified the glass ceiling. Ann Hopkins represented all ambitious women trying to climb the corporate ladder.

In this regard, Ann Hopkins’s case is a textbook example of old discrimination. Old discrimination has two defining features. The first is that it involves issues of integration. Stories about old discrimination always go the same way: A group of people is being excluded from some benefit of public life. The remedy for exclusion is integration, and this is exactly what civil rights law (p.15) seeks to do in cases of old discrimination: integrate the group, break down the barrier, and shatter the ceiling.

Note that the group is the focal point of old discrimination. The second feature of old discrimination is that it is only skin-deep. Group membership is the only thing that matters. A person becomes a victim of discrimination simply by virtue of having the disfavored trait in question.

A prominent case from the mid-1970s helps to illuminate the dynamics of old discrimination.3 The Water and Power Department for the City of Los Angeles administered a pension fund for its employees. The Department funded the program, in part, through employee contributions. In practice this meant that the Department withheld employees’ contributions directly from their paychecks. The problem was that the Department withheld more money from women’s paychecks than it did from men’s paychecks. The reason for this disparity was simple: Women tend to live longer than men. If they’re going to live longer than men, women will need more money, so the company had its female employees pay larger sums into the system.

The discrimination revealed itself in wages. Because women had to make larger contributions to the system than men, women took home less pay than men, to the tune of almost fifteen percent. The discrimination was formal in nature, targeting women as a group. It didn’t matter if a particular woman died earlier than expected. The Department didn’t assess an employee’s risk factors. It didn’t require medical certification before withholding contributions. The only thing that mattered was the employee’s sex. If you were female, you had to make the extra contributions, plain and simple.

(p.16) It is easy to discount this case. After all, the case is older than I am. Part of the reason we can think of old discrimination as old is because it is rooted in our country’s discriminatory past. The Civil Rights Act of 1964 was a response to longstanding practices that were baked into our culture—businesses refusing to serve black people, employers considering women only for secretarial positions, and so on. Sandra Day O’Connor couldn’t find a job when she graduated from law school in 1952.4 Despite graduating third in her class at Stanford Law School, the only law firm job she was offered was as a legal secretary. Hers is a story about segregation and exclusion, as well as courage and perseverance. At every turn, the legal profession was organized to exclude her, yet she always found a way to thrive. She was a pioneer because she had to be and because she could be. It is a privilege to work at a law school that bears her name.5

When I look out over my classroom, I see more female faces than male faces. There are more faces of color, more heads in religious coverings, and more bodies in wheelchairs than there were a decade ago when I started teaching. This is the trend in all of higher education, not just law schools. When I worry about my students’ job prospects, it is because of market conditions, not discrimination. They have inherited a legal profession that is more inclusive than ever before. Organizations like the American Bar Association (ABA) and the Association of American Law Schools (AALS) are fully committed to making outsiders insiders. They have forceful nondiscrimination policies, policies that sweep broader than federal law. They offer regular programming about diversity and inclusiveness, targeting law students, lawyers, and law professors alike. I don’t want to sound naïve about this. Some of my students will run into difficulties in their career, and some (p.17) of those difficulties will stem from discrimination. But today’s law students are in a better position than the lawyers who came before them, at least with respect to discrimination.

Although old discrimination is largely a thing of the past, it does still occur from time to time. And when it does, it tends to arise in large organizations. Which makes sense, as it is hard for large organizations to monitor what goes on in the far reaches of their outfit. The recent Wal-Mart litigation is a prime example.6 Everything about the case was big. As the nation’s largest retailer, Wal-Mart employs 1.4 million people across the country.7 That makes Wal-Mart responsible for around one percent of the entire American workforce.8 The plaintiffs in the case brought a sex discrimination claim on behalf of all women who have ever worked for the retail giant, something like 1.5 million women. They argued that Wal-Mart systematically discriminated against women in its pay and promotion decisions. Rather than making these decisions at the corporate level, Wal-Mart delegated them to local store managers, who enjoyed considerable discretion in these matters. The numbers painted a stark picture.9 The plaintiffs’ statistical expert found that, in hourly positions, men made $1,100 more than women each year.10 And the wage gap was even greater in salaried management positions, where men out-earned women by $14,500.

With respect to promotions, the plaintiffs also made a strong showing of sex segregation. While women occupied sixty-seven percent of all hourly workers and seventy-eight percent of hourly department manager positions, they were significantly underrepresented in salaried management positions.11 At the assistant manager level, women held 35.7% of the jobs, and 14.3% of store managers, the next level up the management chain, were (p.18) women.12 And only 9.8% of the company’s district managers were women.13 As you go up the ladder, there are fewer and fewer female faces. This is a classic glass ceiling story.

The plaintiffs also submitted anecdotal accounts of sex discrimination. For instance, business meetings were held at strip clubs and Hooters restaurants. At meetings of Sam’s Club, a subsidiary of Wal-Mart, executives frequently referred to female employees as “girls” and “little Janie Qs.”14 After complaining about her boss’s favoritism toward men, a female employee was told that “God made Adam first.”15 Another learned that she should “blow the cobwebs from her make-up” and “doll up” if she wanted a better job.16 And another was told that she belonged at home with her baby rather than at work.17 The story that launched the litigation involved a female assistant manager who found a fellow assistant manager’s W-2 lying around.18 The document revealed that the other manager, a man, earned $10,000 more than she did. When she complained about the discrepancy, the single mother was told that the man had “a wife and kids to support.”19 After further protest, she was asked to submit a personal household budget. She did and eventually received a $40 a week raise, still significantly less than the male manager made.

Although the plaintiffs produced compelling evidence of discrimination, they never got their day in court. The Supreme Court dismissed the case on procedural grounds related to class actions.20 Specifically, the Court held that the plaintiffs did not have enough in common to constitute a class.21 There were too many plaintiffs, too many unique experiences of discrimination, too many possible points of departure. There was, perhaps, too much discrimination for a single lawsuit.

(p.19) There is a second way of reading Ann Hopkins’s situation at Price Waterhouse. Her story is as much about the perils of being an individual as it is about the glass ceiling. Ann Hopkins was an outsider not because she was a woman, but because of the kind of woman she was. She was brash, self-sufficient, and all too masculine for the partners’ taste. She didn’t conform to their idea of how she was supposed to look and act. She was different, it showed, and she didn’t get the promotion because of it.

Like a living thing, discrimination evolves. It adapts and fills spaces. It is a product of its time. Modern discrimination is not like the discrimination of the 1960s and 1970s. Back then, discrimination targeted outsider groups. The goal of civil rights law was to achieve formal equality of the sexes, the races, and so on. Today, by contrast, discrimination is increasingly about the individual. The defining feature of new discrimination is that it targets people who do not or cannot conform to the whims of society. Difference is like a target on the back, inviting scrutiny. The pressure to be a part of something larger than yourself, to fit in, to assimilate—these are the pressure points of modern discrimination. In his masterful book Covering, legal scholar Kenji Yoshino discusses the shift from old to new discrimination. In our current environment, Yoshino writes, “individuals no longer needed to be white, male, straight, Protestant, and able-bodied; they needed only to act white, male, straight, Protestant, and able-bodied.”22 Note the distinction between being and doing. Modern discrimination is not so much about who you are, but about how you perform who you are. As the great sociologist Erving Goffman observed, identity is akin to a theatrical performance.23 Like actors on a stage, we craft our identity through our interactions with others. Our language, mannerisms, and clothing, as well (p.20) as the things we say and believe, work together to modify the identities we wear on our bodies.

Take Darlene Jespersen.24 For over twenty years, Jespersen worked as a bartender in a sports bar at Harrah’s Casino, in Reno, Nevada. She loved her job and did it well, earning the praise of coworkers and customers alike. Presumably, Jespersen would have worked there until she couldn’t do the job anymore. Then something changed. For most of her years at Harrah’s, the company encouraged—but did not require—women to wear make-up. Jespersen never did, on or off the job. Wearing make-up made her feel “very degraded and very demeaned.”25 She explained that make-up affected her self-dignity, robbing her of her “credibility as an individual and as a person.”26 Had the choice been hers, she would have always gone without make-up.

A change in policy took away that choice. In February 2000, Harrah’s rolled out its “Beverage Department Image Transformation” program at twenty Harrah’s locations, including Reno.27 A key provision of the new program was the “Personal Best” initiative.28 All employees involved in beverage service, both male and female, would wear the same uniform of white shirt, black vest, black bow tie, and black pants. All were expected to “be well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform.”29 The men could not have long hair or wear make-up of any kind. Women, by contrast, were required to style their hair every day and wear their hair down at all times. Most importantly for Darlene Jespersen, the policy made make-up mandatory: “Make up (face powder, blush and mascara) must be worn and applied neatly in complimentary colors. Lip color must be worn at all times.”30 (p.21) Employees would be photographed looking their personal best, memorializing how they should look every day when they report for work.

Jespersen couldn’t bring herself to abide by the make-up requirement. Wearing make-up, she concluded, would prevent her from being able to do her job well. In an ideal universe, she would have transferred to a different position within the company, one that wasn’t subject to the make-up requirement. Unfortunately, she didn’t qualify for any of the open positions that paid a salary comparable to her bartending job. Left with no other options, she quit. Imagine quitting a job you held for over twenty years—a job in which you thrived—simply because the company expects you to wear make-up. Most women would not have taken such a hard line. But Darlene Jespersen was not most women.

And that is how the courts viewed her situation. Jespersen sued Harrah’s, alleging that the make-up requirement amounted to unlawful sex discrimination. Jespersen’s theory of discrimination was that the make-up requirement compelled women to conform to a stereotypical standard of femininity. The case weaved through the courts, landing in the U.S. Court of Appeals for the Ninth Circuit, the federal court that hears appeals arising out of western states. The Ninth Circuit rejected Jespersen’s claim.31 It concluded that her injuries were too subjective to sustain a sex discrimination claim. She gave the court the “subjective reaction of a single employee,”32 but what the court really wanted was evidence that the make-up requirement “would objectively inhibit a woman’s ability to do the job.”33 Put another way, her complaints were too much her own. In order to state a sex discrimination claim, she needed to show that the make-up requirement was bad for all women, as a group.

(p.22) There are two points to take away from Darlene Jespersen’s case.34 The first is that her allegations of discrimination fall firmly within the category of new discrimination. Although she cast her claim in terms of gender stereotypes, the thrust of Jespersen’s claim was that the make-up requirement interfered with her ability to do her job. It was not that make-up was bad for women as a general matter, nor was it even that most women would find the make-up requirement problematic. The case was far more intimate than that. At its core, the central issue was whether Harrah’s would let Darlene Jespersen be herself. She may have called it sex discrimination, but this was really a claim of Darlene Jespersen discrimination.

The second, more important point to take away is that civil rights law does not have the requisite language to deal with modern discrimination. Darlene Jespersen described her injury in terms of her own dignity and sense of self. What she wanted was for the court to say that her identity mattered, that the make-up requirement inhibited her ability to thrive in the workplace. The court, by contrast, made the case about sex discrimination writ large. It viewed the case through the glass ceiling, concluding that make-up was not a barrier to women’s upward mobility at Harrah’s. Although both Jespersen and the court were talking about sex discrimination, they were talking about it in completely different ways, almost past each other.

This is not an isolated occurrence. In fact, it has become commonplace for courts to struggle with the personalized nature of modern discrimination. The primary sticking point is the expectation—often tacit but sometimes explicit, as it was in Darlene Jespersen’s case—that victims need to anchor their discrimination claims to a narrative of group subordination. They (p.23) have to show, in other words, that the discrimination they face harms their group as a whole. A woman has to carry all women on her back, just as a black person has to speak for all black people. The group is the focal point of American civil rights law. To gain ground in the fight against inequality—to make change real—outsiders have to define who they are by saying they are like some group of people. But they are not like them, and that is why they are experiencing discrimination in the first place. While the universe of difference is vast indeed, civil rights law only cares about inter-group difference.

At the end of the workday on January 4, 2010, Dr. James Knight asked Melissa Nelson to join him in his office.35 A dental assistant, Nelson had worked for Dr. Knight for over ten years. Joining them at the meeting was a pastor from Dr. Knight’s church. The purpose of the meeting, Nelson soon found out, was to terminate her employment. Dr. Knight read from a prepared statement. He was firing her because he was attracted to her, and these feelings were interfering with his private life. He was afraid that he may try to have an affair with Nelson, which he did not want to happen. So he had to let her go. Nelson received an envelope with a month’s severance pay.

For most of her time in Dr. Knight’s office, Nelson had done well. She was good at her job and she got along with her boss. Their relationship was cordial, if friendly. Toward the end, however, things changed between them. They began texting often, concerning both work and private matters. Both had children, so a good amount of their texts were updates about their children’s activities. At no time did Nelson flirt with or say suggestive things to Dr. Knight. Yet the same was not true for Dr. Knight. He frequently told her that her clothing was distracting. He said that (p.24) if she saw his pants bulging, it meant that her clothing was too revealing. He said that not having sex with her would be like keeping a Lamborghini in a garage and never driving it. One time he texted her that the shirt she wore that day was too tight. Nelson responded that he wasn’t being fair, and Dr. Knight replied that it was good for him that she didn’t wear tight pants because then he would get it coming and going. Nelson also remembered a text from Dr. Knight where he asked how often she had an orgasm.

Dr. Knight’s wife also worked in his dental office. She discovered that Dr. Knight and Nelson were texting. She confronted him and demanded that he fire Nelson. They consulted with their church’s senior pastor, who agreed that Dr. Knight should fire Nelson. And so he did.

Melissa Nelson filed a discrimination claim, alleging that Dr. Knight discriminated against her on the basis of sex. Hers was not a sexual harassment claim. Instead, she argued that Dr. Knight terminated her because she was a woman. Had she been a man, she would not have lost her job.

The courts didn’t see it that way. The trial court granted Dr. Knight’s motion for summary judgment—a pre-trial motion that says there are no factual issues that need to be teased out at trial. The court concluded that “Nelson was fired not because of her gender but because she was a threat to the marriage of Dr. Knight.”36 And, of course, being a threat to someone’s marriage is not a protected trait under existing civil rights laws.

The case then went to the Iowa Supreme Court on appeal, which agreed with the lower court’s take on the case. Although Nelson did nothing inappropriate, Dr. Knight was free to terminate her if doing so would ease tension in his marriage. “The civil rights laws seek to insure employees are treated the same regardless of (p.25) their sex or other protected status,” the court explained.37 And Dr. Knight’s decision to fire Nelson “does not jeopardize that goal.”38 In an earlier version of its decision—which the court later withdrew—the court referred to Nelson as an “irresistible attraction.”39

Criticism of the case was swift and unforgiving. Writing in the New York Times, sociologist Michael Kimmel compared the Iowa Supreme Court to a “Midwestern Taliban tribunal.” Kimmel even went on to suggest that Mullah Omar—the leader of the Taliban—would approve of a male boss firing anyone who could tempt him.40 Naomi Wolf, author of the bestselling book The Beauty Myth, called the decision “heinous.” For Wolf, the decision confirmed The Beauty Myth’s core argument—that women’s appearance is used against them as a diversionary tactic to prevent women from gaining ground in our society.41 In an opinion piece for CNN’s website, sociologist Pepper Schwartz called the court’s decision “stupid,” the product of an all-male court that is out of touch with women’s working realties.42

This kind of outrage is understandable. Melissa Nelson got a raw deal indeed. But was it discrimination?

I asked my students this question, and their answers were surprising. A handful found the court’s opinion problematic—one or two thought it deeply so—but most of them were more or less OK with the court’s thinking. As they saw it, an employer should be given wide latitude to run its business as it sees fit. While they could envision real limits on an employer’s decision-making, this case landed on the permissible side of the line. None of them felt this way about Ann Hopkins’s case, and they were evenly split over Darlene Jespersen’s case. Their responses make sense if you think of them in terms of group (p.26) harms. Of the three cases, Ann Hopkins’s case had the most to do with women as a group—the employer expected its female employees to be aggressive but later punished them for it. Melissa Nelson’s was the most narrowly tailored of the three cases—she was the only “irresistible attraction” in the office, the only threat to her boss’s marriage. And Darlene Jespersen’s case falls somewhere between the two—involving an employment policy that affected all women, but one that not all women would object to.

New discrimination is messy. While old discrimination was easier to spot—and, therefore, easy to conceptualize as a legal matter—new discrimination defies easy categorization. Cases of new discrimination elicit a feeling that a wrong has been committed, but it is often hard to explain why. This is a failure of law. Civil rights law provides a legal language to describe social wrongs. The animating force behind this language is an intuition about justice, a feeling about right and wrong. Some wrongs are worse than others. Race discrimination, of course, is the principal evil our civil rights laws are designed to fight. This is why race gets the highest level of protection under the Equal Protection Clause and why employers cannot argue that race is a bona fide occupation qualification in hiring—a fancy way of saying that employers cannot refuse to consider applicants because of their race, even if race would seem to be an essential component to the job. And some wrongs are horrific but not discriminatory. In 2008, an employee brought a lawsuit alleging that his supervisor waterboarded him as a motivational exercise.43 The idea was that the sales team should work as hard at selling as the waterboarded employee had worked at breathing. The allegations are awful but in no way discriminatory.

(p.27) Civil rights law cannot right every wrong, nor should we expect it to. The question we have to reckon with is: Which wrongs matter? To answer this question, we need to decide what we want civil rights law to achieve. Does make-up matter? Should civil rights law care about beauty? What about the words we use and the clothes we wear? Or how diverse our institutions are?

Reasonable people can and will disagree about how to resolve these issues. My proposal is to focus on difference, to have civil rights law protect the aspects of our identities that set us apart from everyone else. Individuality is a weapon against conformity. All too often, outsiders face pressure to contort themselves into the mainstream. Some people simply can’t conform, as they wear their difference on their bodies. Other people just don’t want to conform, perhaps because doing so will be too taxing or because their identity was hard-fought and they’re not willing to give it up. Imagine a civil rights regime that is a bulwark against conformity. Imagine a civil rights regime that takes as a given that all people are different in some way and that these differences define who we are and how we relate to those around us. Imagine a civil rights regime that cares about how each and every one of us, as individuals, experiences the world.

The subtitle of Ann Hopkins’s autobiography is Making Partner the Hard Way.44 It is a reference to the Supreme Court’s landmark decision in Price Waterhouse v. Hopkins, which held that Hopkins was the victim of sex discrimination.45As for a remedy, the Court ordered the firm to reverse its decision.46 Despite her poor interpersonal skills and her non-ladylike demeanor, Hopkins would be a partner after all.

The case was novel in its time. Up until that point, old discrimination dominated the landscape, with men and women (mostly (p.28) women) using the courts to desegregate workplaces. Hopkins’s case, by contrast, was more subtle than that. She charged that the firm allowed stereotypical ideas about women to seep into and ultimately dictate the partnership decision. Dr. Susan Fiske, a social psychologist from Carnegie Mellon University (now at Princeton), testified during the trial as a witness for Hopkins. She testified that the firm’s method for evaluating its partnership candidates—which relied heavily on reviews submitted by partners—opened the door to stereotyping. Partners who had little, if any, contact with Hopkins could submit a review of her candidacy. One partner wrote that Hopkins was “universally disliked” by the staff.47 A different partner wrote that Hopkins was “consistently annoying and irritating.”48 Many partners had substantial contact with Hopkins, but these partners did not. Fiske testified that such comments, while not stereotypical on their face, were likely motivated by Hopkins’s uniqueness as the only woman up for partner that year.49

As to be expected, Price Waterhouse saw the situation differently. It argued that Hopkins’s flawed interpersonal skills, and only her flawed interpersonal skills, were to blame for her failure to make partner. The firm roundly denied that stereotypes factored into the decision. Had she behaved more professionally toward support staff, it argued, Hopkins would have gotten the promotion. Presumably this is why the firm put her candidacy on hold rather than rejecting her outright. A rejection would have meant that Hopkins’s career at Price Waterhouse was over. By putting her candidacy hold, however, the firm signaled that she would elevate to partner after she improved her relationships with her coworkers. In this sense, postponing her partnership was a commitment to her future at the firm.

(p.29) The case wound its way through the courts, ultimately landing before the Supreme Court. In 1989, almost seven years after Hopkins lost her bid for partnership, the Court handed her a victory. In many ways, the case was easy for the Court. As Justice William Brennan wrote for a plurality of justices, “[I]f 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 have drawn the criticism.”50 But the Court went deeper than that, gesturing toward a broader theory of discrimination. “In the specific context of sex stereotyping,” Justice Brennan wrote, “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”51 Recognizing that he was breathing new life into civil rights law, Justice Brennan added that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”52

Price Waterhouse v. Hopkins marks the shift from old to new discrimination. It draws a contrast between being a woman (old discrimination) and acting like a woman (new discrimination). In the eyes of the partners, Ann Hopkins fell short on the latter front. She was not the kind of woman the firm expected her to be. Recall sociologist Erving Goffman’s dramaturgical theory of identity. Ann Hopkins stumbled at work because she went off script, performing her womanhood in a way that the partners found problematic. The partners wanted to cast a woman who was feminine—a woman who dressed the part, wore make-up, and walked daintily. But the woman they got didn’t fit the bill. Yes, she was good at her job. But she was not good at being a woman.

(p.30) This is a compelling way to think about new discrimination. In effect, the Court is carving a space for individuality. The lesson of Price Waterhouse v. Hopkins is that transcending norms is central to the work civil rights. Stereotypes lock people in place. They constrain authenticity. They thwart change. Price Waterhouse v. Hopkins provides the antidote to compelled conformity. It smooths a path for people to be themselves fully and openly. The promise of Price Waterhouse v. Hopkins is a legal means to make yourself visible.

In the realm of civil rights, visibility is a virtue. It is not enough that outsiders consider themselves to be different; they must articulate their identity to the world around them. Some of us wear our difference on our bodies, such as in the case of race or a physical disability. Just by existing in the world we assert who we are and how we are different. Others have an identity that rests below the surface—for instance, religious beliefs, sexuality, or political opinion. When identity is invisible to the naked eye, outsiders must take affirmative steps to make their identity known. In the case of religion, people say prayers or wear religious symbols. For sexual minorities, it might be going out in public with a partner or telling others about your sexual proclivities. A person can write their political beliefs on a bumper sticker or yard sign, or perhaps by telling others where she stands on certain issues. As I write this, sitting next to me in the coffee shop is a man wearing a matching hat, t-shirt, and tote bag that say “No on 487” (Proposition 487, which was voted down in 2014, would have replaced Phoenix’s retirement plan from public pension to a private 401(k)-style plan).

Of course, the thing about subterranean identities is that people don’t have to disclose who they really are. They can, in (p.31) other words, be closeted. The closet metaphor—and the attendant idea of “coming out of the closet”—may have originated within the lesbian and gay community, but it has since become universal. To the extent that we can, we manage our identities—controlling information about us, emphasizing certain aspects about us, downplaying others. Sociologist Erving Goffman—the scholar who compared identity to a theatrical performance—identified three strategies people employ to manage their identity.53 The first is conversion. This is where a person changes who they are. So, for example, a Christian becomes a Jew, or a person opposed to Proposition 487 decides he is now in favor of it. The second strategy is passing. Passing is where a person presents herself outwardly as something she is not. Gays pass as straight. Squares pass as hipsters. The sick pass as healthy. And on and on it goes. The critical feature of passing is that your audience lacks some key information about you. They think you’re one thing but you’re really something else.

The final strategy is covering. Of the three strategies, covering is the most commonplace yet least understood. Covering is where a person downplays her true identity. She does not deny who she is. She doesn’t pretend to be something else. She just doesn’t emphasize her identity. Covering is being out but not loud about it. The fellow in the coffee shop might be opposed to Proposition 487 but not decorate himself in his opinion. Anticipating a hostile crowd, a religious person may choose not to wear a piece of religious clothing, such as a turban, yarmulke, or headscarf. A working mom makes a concerted effort not to talk about her children during the workday.

These are just a few examples. The important thing about covering, however, is that it is ubiquitous. “Everyone covers,” writes (p.32) Kenji Yoshino.54 The pressure to be part of mainstream culture is something we can all relate to. Consciously or not, we bend ourselves to satisfy the wishes of others. The cost of not doing so can be severe. For Ann Hopkins, it almost cost her career.

And this is, ultimately, why the Supreme Court’s decision in Price Waterhouse v. Hopkins is so important. If what Price Waterhouse did was discriminatory, as the Court concluded it was, then that means that identity work—the push and pull of being different—belongs in the American civil rights project.

The transition from old to new discrimination is a story about progress. Fifty years ago, when Congress passed the Civil Rights Act, there was no old discrimination or new discrimination. There was only discrimination. Fifty years from now, there very well may be an even newer form of discrimination. Justice takes time. Standing on the steps of the state capitol building in Montgomery, Alabama, at the conclusion of the Selma to Montgomery march in 1965, Reverend Martin Luther King, Jr., gave his now famous “Our God Is Marching On!” speech.55 Answering the question raised by the title of his speech, King said, “the arc of the moral universe is long, but it bends toward justice.”56 Justice takes time because it is a moving target. Today’s outsiders will become tomorrow’s insiders, and new outsiders will emerge. Such is the ebb and flow of discrimination.

The transition from old to new discrimination is also a story about identity. The people we’ve met so far, despite their different jobs and distinct life experiences, share a common bond. They are outsiders. Some are outsiders by choice: Melanie Strandberg chose to shave her head and Darlene Jespersen refused to wear make-up. Others come by it naturally: Ann Hopkins is an aggressive person and Melissa Nelson is pretty. The root cause of (p.33) their difference matters less than the way they experience their difference. For years scientists and advocates have debated the cause of homosexuality—is it a learned behavior or is it hardwired into our DNA? This debate misses the point. Whatever the cause of homosexuality, the point is that our culture has been hostile to lesbians and gay men for a long time. Identity is a relative concept, for we define who we are in terms of how we relate to others. This is true for both the perpetrators and victims of discrimination.

As an antidiscrimination lawyer, I spend the bulk of my workday reading, writing, and thinking about discrimination. To tell the truth, it can be a thoroughly depressing way to pass the time. Every story of discrimination, harassment, and bullying is a stark reminder that people are often afraid of what they don’t know. In far too many cases, difference brings out the absolute worst in people. Through my work, I have come to accept that bias is part of the human condition. We classify and distinguish. We make associations. We see difference. This is who we are, and we are hard to change. But change does happen, often in tangible ways that improve people’s daily lives. Sometimes law brings about these changes. Cases like Brown v. Board of Education,57 Regents v. Bakke,58 and Lawrence v. Texas59 were not just novel legal decisions, but learning opportunities for the whole country. Other times interaction and conversation are the primary drivers of change. Never underestimate the power of really getting to know and care about someone who has lived a life different from your own. Meaningful relationships are the lifeblood of social change.

The moral arc of the universe is indeed long, and it does indeed bend toward justice. Elsewhere in that same speech, delivered to (p.34) a crowd 25,000 strong, Dr. King charged his supporters to think about the task that lay in front of them. “The road ahead is not altogether a smooth one,” he said. “There are no broad highways that lead us easily and inevitably to quick solutions. But we must keep going.”60 Justice takes time, but it is worth the wait.

Ann Hopkins referred to her time away from the firm as a “sabbatical.”61 In all, her sabbatical lasted seven years—two years longer than her initial stint with the firm. While on sabbatical, Hopkins held a number of jobs, including contract work with the State Department and a full-time position at the World Bank. Her marriage fell apart. Her kids grew up. She adopted a standard poodle named George.62

When the case finally came to an end, Hopkins readied herself for life as a partner. Reentry was going to be difficult. A lot can happen in seven years, and both the firm and Hopkins had changed. Most importantly, though, Hopkins had to deal with her new reputation as the woman who sued her way into partnership. Navigating the politics of a new position is hard enough as it is, but to do so under such fraught circumstances—where everyone knows your name but not everyone is glad you came—is nothing short of brave. By this point, one thing was clear: Ann Hopkins was no shrinking violet.

Hopkins rejoined Price Waterhouse in the winter of 1991. She struggled to find her footing at first, but she eventually settled into place. Over the next eleven years, Hopkins had a solid career. She retired in 2002, giving up consulting to work in her garden and spend time with her family.

In 2005, Hopkins published an essay about the legacy of her case.63 The most compelling part of the essay involves the advice she gives people who are thinking about using the courts to (p.35) remedy bad situations at work. Given her history, you would expect Hopkins to champion litigation. Yet she doesn’t. If anything, she seems almost to regret her course of action. “I got into litigation emotionally, almost on a whim. I fired the opening round with a law suit and then I was dragged through years of appeals. It seemed ill-advised to quit because each trial or appeal was favorable to me.”64 That was not all. Even if the person seeking the advice didn’t want to hear it, she would say, “Get on with your life, your career, your other interests.”65

Not what you’d expect from the hard-charging, aggressive businesswoman whose poor interpersonal skills and lack of make-up almost spoiled her career. (p.36)

Notes:

(1.) The following comes from Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

(2.) A Solid Investment: Making Use of the Nation’s Human Capital, FEDERAL GLASS CEILING COMMISSION, Nov. 1995, at https://www.dol.gov/oasam/programs/history/reich/reports/ceiling2.pdf.

(3.) City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978).

(4.) Biography of Sandra Day O’Connor, SANDRA DAY O’CONNOR INSTITUTE, at http://oconnorinstitute.org/programs/oconnor-history/sandra-day-oconnor-library-and-archives/biography/.

(5.) The official name of the law school where I work is the Sandra Day O’Connor College of Law at Arizona State University. See http://www.law.asu.edu. The school took Justice O’Connor’s name in 2006. Adam Kress, ASU Law to Be Named for Sandra Day O’Connor, PHOENIX BUSINESS J., April 5, 2006, at http://www.bizjournals.com/phoenix/stories/2006/04/03/daily41.html.

(6.) Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).

(7.) Doug Altner, Why Do 1.4 Million Americans Work at Walmart, With Many More Trying To? FORBES, Nov. 27, 2013, at https://www.forbes.com/sites/realspin/2013/11/27/why-do-1-4-million-americans-work-at-walmart-with-many-more-trying-to/#719655eee599.

(8.) Henry Blodget, Walmart Employs 1% of America. Should It Be Forced to Pay Its Employees More? BUSINESS INSIDER, Sept. 20, 2010, at http://www.businessinsider.com/walmart-employees-pay.

(9.) A particularly helpful source on the statistics in the Wal-Mart litigation is Melissa Hart, Learning from Wal-Mart, 10 EMPLOYEE RTS. & EMP. POL’Y J. 355 (2006–2007).

(10.) Plaintiffs’ Motion for Class Certification and Memorandum of Points and Authorities at 25, Dukes et al. v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (No. C01-02252 MJJ) [hereinafter Plaintiffs’ Motion for Class].

(11.) Id.

(12.) Id.

(13.) Id.

(14.) Hart, Learning, supra note 9, at 364 (citing motion for certification).

(16.) Daniels, Women v. Wal-Mart, supra note 15.

(17.) Id.

(18.) Id.

(19.) Id.

(20.) Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–352 (2011).

(21.) Dukes, 564 U.S. at 351–352.

(22.) Kenji Yoshino, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS 22 (2006).

(23.) See Erving Goffman, THE PRESENTATION OF SELF IN EVERY DAY LIFE (1959).

(24.) Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc).

(25.) Id. at 1108.

(26.) Id. at 1108.

(27.) Id. at 1107.

(28.) Id. at 1107.

(29.) Id. at 1107.

(30.) Id. at 1107.

(31.) Id. at 1109–1111, 1112–1113.

(32.) Id. at 1113.

(33.) Id. at 1112.

(34.) What follows is my own take on Jespersen. To be clear, there are compelling scholarly accounts that come down differently on the case. See, e.g., Michael Selmi, The Many Faces of Darlene Jespersen, 14 DUKE J. GENDER L. & POL. 467 (2007); Meredith M. Render, 22 YALE J.L. & FEMINISM 133(2010); Devon Carbado et al., The Jespersen Story: Makeup and Women at Work, in EMPLOYMENT DISCRIMINATION STORIES 105 (Joel Wm. Friedman ed., 2006).

(35.) The following comes from Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64 (Iowa 2013).

(36.) Nelson, 834 N.W. 2d at 67.

(37.) Id. at 70.

(38.) Id. at 70.

(39.) Nelson v. James H. Knight DDS, P.C., No. 11–1857, 2012 WL 6652747 (Sup Ct. of Iowa), withdrawn and superseded by Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64 (Iowa).

(40.) Michael Kimmel, Fired for Being Beautiful, N.Y. TIMES (Op-ed), July 16, 2013, at A25.

(41.) Naomi Wolf, Through the Lookism Glass, PROJECT SYNDICATE, July 31, 2013, at https://www.project-syndicate.org/commentary/women-s-appearance-and-workplace-sexism-by-naomi-wolf.

(42.) Pepper Schwartz, Fired Because a Man Can’t Control Himself, CNN, July 16, 2013, at http://www.cnn.com/2013/07/16/opinion/schwartz-fired-looks/index.html?iref=allsearch.

(43.) Erin Alberty, Employee’s Suit: Company Used Waterboarding to Motivate Workers, THE SALT LAKE TRIBUNE, February 27, 2008, at http://archive.sltrib.com/story.php?ref=/ci_8385103.

(44.) Ann Branigar Hopkins, SO ORDERED: MAKING PARTNER THE HARD WAY (1996).

(45.) Price Waterhouse v. Hopkins, 490 U.S. 228, 250–252 (1989).

(46.) Id. at 258.

(47.) Id. at 235.

(48.) Id. at 235.

(49.) Id. at 235–236.

(50.) Id. at 256.

(51.) Id. at 250.

(52.) Id. at 251.

(53.) Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY (1963).

(54.) YOSHINO, COVERING, supra note 22, at ix.

(55.) The text of the speech, also called the “How Long, Not Long” speech, is available at Dr. Martin Luther King, Jr., Our God Is Marching On!, THE MARTIN LUTHER KING, JR. RESEARCH AND EDUCATION INSTITUTE AT STANFORD UNIVERSITY (delivered on March 25, 1965), at https://kinginstitute.stanford.edu/our-god-marching.

(56.) King, Jr., Our God Is Marching On!, supra note 55.

(57.) 347 U.S. 483 (1954).

(58.) 438 U.S. 265 (1978).

(59.) 539 U.S. 558 (2003).

(60.) King, Jr., Our God Is Marching On!, supra note 55.

(61.) HOPKINS, SO ORDERED, supra note 44, at 385.

(62.) Id. at 279–80.

(63.) Ann Hopkins, Price Waterhouse v. Hopkins: A Personal Account of a Sexual Discrimination Plaintiff, 22 HOFSTRA LAB. & EMP. L.J. 357 (2005).

(64.) Id. at 413.

(65.) Id. at 414.