Women at work: navigating discrimination
Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991
In 1982, Ann Hopkins’ name was put forward for partner nomination at Price Waterhouse, which is one of the country's largest accounting firms. She had secured a contract worth tens of millions of dollars for the firm, which was more than any candidate that year. She was also the only woman out of the 88 partner candidates. Her nomination for partner was put on hold, and she was eventually told not to resubmit.
Partners described Ann as macho. They said she needed to be more feminine in how she walked, talked and dressed. She was advised to wear makeup, style her hair and wear jewelry. Her work clearly wasn't of any concern. It was that she wasn't performing womanhood correctly. Hopkins sued under Title VII of the Civil Rights Act of 1964. The Supreme Court's 1989 decision in Price Waterhouse v. Hopkins held that penalizing an employee for failing to conform to sex stereotypes is sex discrimination. The statute's prohibition on discrimination because of sex also includes discrimination of how someone performs their sex.This was significant because it named what many of us professional women have long understood, which is that discrimination isn't solely about being a woman, but about being the wrong kind of woman.
Title VII of the Civil Rights Act of 1964
Title VII makes it unlawful for an employer to fail to hire, discharge, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of that individual's race, color, religion, sex, or national origin.The statute covers employers with 15 or more employees. It created the Equal Employment Opportunity Commission (EEOC) as the federal agency responsible for receiving charges, investigating complaints and in some cases, litigating on behalf of workers. Before a worker can sue under Title VII, they must first file a charge with the EEOC. You do not have to have an open case open at your workplace to validate your case.
How Title VII grew
Title VII prohibits discrimination. What the text doesn't say is whether that prohibition extends only to intentional acts, or whether it reaches practices that are neutral on the surface but discriminatory in effect. That question was answered by a race case whose logic has since shaped sex discrimination law.In Griggs v. Duke Power Co. (1971), the Supreme Court considered a North Carolina power company that had a long history of racial segregation. Black employees were confined to the labor department, which was the lowest paying division in the plant. On July 2, 1965, Duke Power added a high school diploma and passing scores on two standardized tests as two new employment requirements. On paper, this is race neutral, but in practice, blacks who were systemically denied equal education under segregation failed at higher rates than whites. With cutoffs set at the median for high school graduates, 58 percent of white applicants passed the tests compared to six percent of Black applicants. White employees who did not have a high school diploma were grandfathered into the company, meaning they were exempt from the new rules. The Court held that Title VII prohibits not only intentional discrimination but also neutral practices that produce discriminatory outcomes, and that practices must be justified by business necessity.
The Civil Rights Act of 1991
Under Griggs, once a plaintiff demonstrated that a neutral practice produced a discriminatory outcome, the burden shifted to the employer to prove the practice was justified by business necessity. However, in Wards Cove Packing Co. v. Atonio (1989), the Supreme Court reversed that logic by ruling that even after a plaintiff established disparate impact, it was the plaintiff's burden to disprove the employer's justification. The Civil Rights Act of 1991 was enacted explicitly to restore the Griggs standard, returning the burden of proving business necessity to the employer where it belonged.
Two theories of discrimination
Disparate treatment describes an employer treating someone differently because of a protected characteristic. The Price Waterhouse v Hopkins case is disparate treatment.Disparate impact doesn't require proof of intent. It asks whether a policy that is neutral on the surface produces a statistically significant disadvantage for a protected group, and whether the employer can justify that policy as a business necessity.
How a Title VII claim actually works
Despite what we know about disparate treatment and disparate impact, winning a Title VII claim is difficult. The Supreme Court's 1973 decision in McDonnell Douglas Corp v. Green established the burden-shifting framework that governs most individual disparate treatment cases. A plaintiff must first establish a prima facie case. This shows that they were qualified, applied, were rejected and that the position remained open or was filled by someone outside the protected class. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for that decision. Then it shifts back to the plaintiff to show that the reason the employer is giving is not the real reason for the decision.This means the plaintiff carries an enormous weight in this process. Most discrimination occurs in contexts where the real reasoning is never written down, and where the plaintiff has limited access to the information that would reveal it. The statute created a right. However, the doctrine governing how to prove that right has substantially narrowed the statute.
Dealing with retaliation after filing a complaint
Filing a complaint does not insulate a worker from further harm, and in many cases, it invites it. Title VII prohibits employers from retaliating against employees who oppose a discriminatory practice or participate in an EEOC proceeding, such as filing a charge or serving as a witness. This protection was significantly strengthened by the Supreme Court's 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White, which held that the anti-retaliation provision covers any employer action that would dissuade a reasonable worker from making or supporting a discrimination complaint ,a broader standard than what applies to the underlying discrimination claim itself. In practice, retaliation can look like termination, demotion, a shift to less desirable assignments, or subtler forms of professional isolation. Because retaliation often follows closely after a complaint is filed, workers should document any changes in their treatment, performance reviews, or working conditions from the moment they begin a formal process. Retaliation charges now consistently make up the largest share of EEOC filings each year, which reflects not a system working well, but one in which workers are penalized for using the very protections the law provides.
The enforcement gap
The EEOC reported that over 30% of filings received are sex discrimination charges. Of the cases resolved, the agency found probable cause in less than 4%. Most charges are closed with a right-to-sue letter, meaning the agency has done no investigation, made no finding, and the worker is left to pursue private litigation if they choose. Private litigation under Title VII is expensive, slow, and uncertain. Workers who lack access to attorneys willing to take cases on contingency face a system that is formally open to them but practically inaccessible. The gap between what the statute guarantees and what workers can realistically obtain is the law's design operating as it was built: a floor, not a guarantee.
Where this leaves women
Title VII was transformative because it made sex discrimination legally actionable for the first time. However, Ann Hopkins’ case made me think about my own experience as a black woman in the workplace. Specifically, how conscious I am of my hair and the impression it gives about my professionalism and femininity. In my next post, I will look at what policy says about that, through the Crown Act.