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Accountants' preferences in sex, Sandinistas on welfare, the unknown liberal, and other matters. WRESTLING WITH BIAS
(FORTUNE Magazine) – As expected, the media reacted affirmatively to the Supreme Court decision in Price Waterhouse v. Hopkins. They always approve when the decision makes it easier to claim bias. They said this one was a ''balanced, sensible judgment'' (New York Times) giving femmes an ''important new edge in job discrimination suits'' (Los Angeles Times). More rhapsodic was the Newsday columnist whose slant was foreshadowed by this headline: ''High Court Gives Bimboism Forces Solid Thrashing.'' Our own view is that the opinion is about as sensible as tag-team wrestling. What the decision really demonstrates is the infinite capacity of the judicial system to complexify the law of discrimination. The Supremes statedly took this case because the appellate level was all confused about the law. The one thing you can say for sure about their handiwork is that it has not reduced the world supply of confusion. The case, you will recall, concerned a Price Waterhouse lady who failed to make partner. It was agreed by everybody that, although talented, Ann Hopkins was abrasive and hard to work with; it was also agreed -- a little too rapidly, in our own opinion -- that the firm's decision against her reflected a certain amount of impermissible sexist thinking. Sexist thinking was, as usual, defined in this case as ''stereotypical'' thinking about women, which, also as usual, turned out to involve the highly suspect belief that the sexes might be different along various temperamental and personal dimensions, a perspective that somehow got to be against the law when you weren't looking. In fact, the record in this case does not show that Price Waterhouse preferred one gender over the other. What it did prefer was feminine women over masculine women -- a bias that Congress never had the nerve to outlaw and is certainly not mentioned in the Civil Rights Act. But, of course, the Supremes were assuming that Price Waterhouse had shown impermissible bias. The question they aimed to clarify was this: What does the Civil Rights Act require in such ''mixed motive'' cases, wherein decisions against the employee are held to reflect both prejudice and legitimate concerns? Responding to the question, the High Court produced four different answers: -- First, there was a four-man liberal plurality (Brennan, Marshall, Blackmun, Stevens) that said if the decision was even slightly tainted by sex bias -- if ''gender played a part'' -- then the burden is on the company to show by a preponderance of the evidence that it would have reached the same decision absent the bias. -- Then there were two centrists (O'Connor and White), who partly agreed with these rules but added a large caveat: The plaintiff must show the sex bias was a ''substantial factor'' in the decision against her. -- White also had an odd wrinkle all his own: While the company must prove it had legitimate reasons for turning down the woman, it should be able to do so without a lot of ''objective evidence,'' merely by ''credibly'' testifying on its reasons. -- Then there were the conservatives (Rehnquist, Scalia, Kennedy), who said, in effect, hey, what's going on here? Why should employers bear the burden of proof? Whatever mixture of motives the case presents, the plaintiff still has to prove that but for her sex, she would have got the job. If she can't prove that, she has no case. This view is plainly too simple to prevail. Some even call it bimboism. |
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