Thursday, July 19, 2018

Ann Hopkins Has Passed Away

Ann Hopkins, of Price Waterhouse v. Hopkins fame, has passed away. You can see the NY Times obituary on her here. Especially in the current #MeToo movement, it's important to remember the major impact that her case has had on sex discrimination in the workplace.

-Jeff Hirsch

http://lawprofessors.typepad.com/laborprof_blog/2018/07/ann-hopkins-has-passed-away.html

Employment Discrimination, Labor and Employment News | Permalink

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Price Waterhouse (1989) and Oncale v. Sundowner Offshore Services (1998) were instrumental, albeit very slowly, in getting lower courts to rethink their views about whether discrimination based on gender identity or expression, transgender status, a gender affirmation, or, more recently, sexual orientation is discrimination based on sex.


As a result of the Supreme Court’s holdings in Price Waterhouse and Oncale, both principal underpinnings of the circuit court opinions such as Holloway v. Arthur Andersen (9th Cir. 1977), Sommers v. Budget Marketing (8th Cir. 1982), and Ulane v. Eastern Airlines (7th Cir. 1984), as well as their progeny, were undercut. “Sex” as used in Title VII was no longer solely limited to biological sex but could apply to gender stereotypes as well, and Title VII was no longer limited to what Congress supposedly envisioned in 1964 (and thus same-sex harassment became illegal). Price Waterhouse and Oncale were the critical pivots that moved the courts and the EEOC from thinking that Title VII “can’t possibly mean what it says” when it outlawed sex discrimination in 1964 to “maybe it means a bit of what it says” to it finally accepting that it actually does “mean what it says.” Chai R. Feldblum, Law and Culture in the Making of Macy v. Holder, http://chaifeldblum.com/wp-content/uploads/2015/10/CH39-Law-and-Culture-in-the-Making-of-Macy-v.-DOJ.pdf.


As a side note, it is too bad that it had to take Ann Hopkins, Joseph Oncale, and so many others to help courts understand the meaning of “sex”. Before them was Karen Ulane, the gender-affirmed woman who was fired by Eastern Airlines because Karen began living life in accordance with Karen’s gender identity. Twenty-five years before other judges began to see the light in gender identity or sexual orientation Title VII cases, federal district court judge John Grady held, in 1983, that Karen’s termination violated Title VII:


“Prior to my participation in this case, I would have had no doubt that the question of sex was a very straightforward matter of whether you are male or female. That there could be any doubt about that question had simply never occurred to me. I had never been exposed to the arguments or to the problem. After listening to the evidence in this case, it is clear to me that there is no settled definition in the medical community as to what we mean by sex.


. . . .


“I find by the greater weight of the evidence that sex is not a cut-and-dried matter of chromosomes, and that while there may be some argument about the matter in the medical community, the evidence in this record satisfies me that the term, “sex,” as used in any scientific sense and as used in the statute can be and should be reasonably interpreted to include among its denotations the question of sexual identity and that, therefore, transsexuals are protected by Title VII.” https://law.justia.com/cases/federal/district-courts/FSupp/581/821/1596321/.


The Seventh Circuit reversed a year later, holding that Congress clearly didn’t intend to protect the “the untraditional and unusual.” http://www.transgenderlaw.org/cases/ulane.htm. That one decision would become a major thorn in the side of LGBT litigants for years. It was not until last year that the Seventh Circuit effectively overruled its Ulane decision, in its en banc decision in Hively v. Ivy Tech Community College, when, based on Price Waterhouse and Oncale, it held that “actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.” http://www.lambdalegal.org/sites/default/files/legal-docs/downloads/hively_in_20170404_opinion.pdf.


Now we all wait to see if the trials and tribulations of the legions of plaintiffs who are gender diverse, gender affirmed, and/or not heterosexual only will be undermined by the U.S. Supreme Court.

Posted by: Christine Michelle Duffy | Jul 20, 2018 4:22:00 AM

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