Justices Set Guideline on Job Bias : Burden of Proof Put on Manager in Promotion Denial

The Supreme Court gave women and other civil rights plaintiffs an important new edge in job discrimination suits Monday, ruling that in some cases management must assume the burden of proving that its promotion decisions are based on valid, non-discriminatory reasons.

The 6-3 ruling, in a suit by a professional woman who said that she was denied a promotion in part because she was supposedly too “macho,” came in this term’s most closely watched employment case.

Contrasted with most job discrimination suits in recent years that focused on bias in hiring, this one typifies a new generation of complaints that deal with women and minorities who are already on the job but allegedly face unfair obstacles to advancement.

Partial Victory

The high court ruling, setting standards for proving promotion discrimination, was seen as a partial victory for the workers.

In three opinions for the majority in the splintered ruling, the court said that women or other plaintiffs must prove that discriminatory attitudes by management are a “substantial” reason for rejection but need not show that these attitudes “caused” it.

If the plaintiff establishes that much, the burden of proof switches to the managers, who, to avoid liability, must show that promotion was denied ultimately for reasons other than sexism or other improper bias.

The rules set by the court apply to an array of federal job suits involving bias because of race, sex, religion, national origin and age. They will be used in what are called “mixed motive” cases, in which a management decision may have been based on both improper and valid reasons.

Ruling Praised

Sarah E. Burns, legal director of the NOW Legal Defense and Education Fund, called the ruling “a victory for non-discrimination in the workplace.”

She said that it will be helpful for women stuck in “glass ceiling jobs” in law firms, universities or corporations, which have accepted that they must hire women but not that they must give them a full opportunity to move up.

Marcia Greenberger, an attorney for the National Women’s Law Center, agreed. “With today’s decision, the court tells employers in no uncertain terms--there is no room in the work place for discrimination on the basis of harmful stereotypes,” she said.

The reaction by business groups was divided. Kathryn A. Oberly, the Washington attorney for the Price Waterhouse accounting firm, target of the job complaint in the case before the court, said she was pleased that the court did not shift the burden of proof even more heavily to management.

“This is a reasonably fair standard and one that employers can meet,” she said.

However, Douglas McDowell, a lawyer for the business-oriented Equal Employment Advisory Council, called the new standards “a change for us and not a good one.”

In the past, most circuit appeals courts have ruled that job plaintiffs, to win redress, had the ultimate burden of proving that sexism, racism or other illegal bias caused them to be passed over for a higher job.

More Stringent View

However, Oberly noted that the federal appeals court in this case, as well as the U.S. 9th Circuit Court of Appeals in California, had taken the much more stringent view that if bias were present in any degree in the promotion decision, management must produce “clear and convincing evidence” that other overriding factors were the chief determinant.

The case (Price Waterhouse vs. Hopkins, 88-1167) arose in 1982 when Ann Hopkins, a successful manager in Price Waterhouse’s Washington office, sought to become a partner in the firm. At that time, only seven of the 668 partners were women. She was the only woman among 88 partnership candidates that year.

She was evaluated based on comments by 32 partners. According to testimony in the case, several praised her as outstanding, noting that she had won a $25-million contract for the firm. Others, however, said that she had a personality problem.

They described her as loud, profane and generally difficult to work with. One partner described her as “macho” and another said that she could use “a course at charm school.”

Offered Advice

Hopkins’ application was put on hold by a Price Waterhouse committee. According to the court record, one of her supporters on the panel advised her that her chances would be better next time if she would “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry.”

Disgusted by that advice, Hopkins resigned and filed a lawsuit under Title VII of the Civil Rights Act. The law says that an employer may not discriminate against an employee “because of an individual’s race, color, religion, sex or national origin.”

U.S. District Judge Gerhard A. Gesell in Washington heard Hopkins’ suit and ruled for her. An appeals court affirmed the ruling and said that the company could only rebut the allegations against it by producing “clear and convincing evidence” that its decision was not based on sex bias. The firm, supported by the Ronald Reagan Administration, appealed last year to the Supreme Court.

Brennan Sees ‘Catch-22’

Justice William J. Brennan Jr., writing for three other justices, said that Title VII was intended to make gender “irrelevant” to employment decisions. “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 don’t.”

In key concurring opinions, Justices Byron R. White and Sandra Day O’Connor agreed that a woman such as Hopkins should win her case if the comments reflecting gender bias played a “substantial” part in her evaluation.

But all six members of the majority said that the case should be returned to Gesell to consider whether Price Waterhouse could show, by only a preponderance of the evidence, that it would have denied the promotion to Hopkins even if the sexist comments had never been mentioned.

Conservatives Dissent

The three conservative dissenters in the ruling--Justices Anthony M. Kennedy and Antonin Scalia and Chief Justice William H. Rehnquist--endorsed the Justice Department’s argument in the case. They said that the plaintiff should not win a sex discrimination lawsuit unless she can prove that the biased views of managers “caused” her rejection.

Burns of the NOW fund said that had the court majority adopted this view, plaintiffs would have faced an almost impossible test in proving promotion discrimination. An employee and her lawyer can get bits and pieces of evidence showing discriminatory attitudes by managers, but cannot actually prove that these attitudes caused her to be rejected, she said.

In other actions, the court:

--Ruled 5 to 4 that a lawyer may not be forced by a federal judge to represent indigent clients in a civil suit. The court said the law says a judge may “request” a lawyer to take on such a case, but a judge in Iowa erred by requiring him to do it (Mallard vs. U.S. District Court, 87-1490).

--In a defeat for environmentalists, ruled unanimously that federal officials need not consider a “worst-case scenario” in deciding whether developers could move ahead on a project that affected federal lands. The decision, rendered in two cases, cleared the way for development of a ski resort in Washington state (Robertson vs. Methow Valley Citizens Council, 87-1703) and a flood control dam in Oregon (Marsh vs. Oregon Natural Resources Council, 87-1704).

--Apparently cleared the way for a federal trial charging nine members of the Synanon Foundation with having conspired illegally to avoid taxes. The foundation members had asked the justices to throw out the indictment against them because of alleged misconduct by prosecutors. Instead, the high court sent the case (Benjamin vs. United States, 88-1290) back to an appeals court in California and cited a recent ruling saying that such appeals should be heard after a trial, not before.