providing information on its partnership section process. The evidence as a whole indicates that over the years the firm has consistently placed a high premium on candidates' ability to deal with subordinates and peers on an interpersonal basis and to promote cordial relations within a firm which is necessarily dependent on team effort. Not only are candidates regularly held because of concerns about their interpersonal skills -- the Policy Board takes any evaluations recommending denial of partnership or a negative reaction on this basis very seriously. Despite the fact that the negative comments of short form evaluators are often in sharp contrast to the glowing reports of partners who have had extensive contact with the candidate, such comments are treated as serious reservations and given great weight. "No" votes, even from short form commenters who may only have had very limited contact with the candidate, often result in a "no" or "hold" decision.
Thus, while plaintiff argues that her accomplishments in generating business, management and client satisfaction were so far above average that she would have been admitted despite any interpersonal skills problems if Price Waterhouse had honestly balanced all her qualifications, Price Waterhouse responds by pointing out that she received very few "yes" votes and more "no" votes than all but two of the 88 candidates that year. These no votes and negative comments, largely from partners outside OGS, effectively placed the plaintiff toward the bottom of the candidate pool. Regardless of its wisdom, the firm's practice of giving "no" votes great weight treated male and female candidates in the same way. "The issue in a case of alleged failure to hire or promote is not the objective superiority or inferiority of the plaintiff's qualifications, but rather whether the defendant's selection criteria -- be they wise or foolish -- are nondiscriminatory." Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80, 85 n.3 (D.C. Cir. 1985). The Court finds that the firm's emphasis on negative comments did not, by itself, result in any discriminatory disparate treatment.
Plaintiff tried to reinforce her claim of disparate treatment with a number of statistics that proved wholly inconclusive. Plaintiff attempted to show that the small number of women partners at Price Waterhouse indicates discrimination but her proof lacked sufficient data on the number of qualified women available for partnership and failed to take into account that the present pool of partners have been selected over a long span of years during which the pool of available qualified women has changed. Women have only recently entered the accounting and related fields in large numbers and there is evidence that many potential women partners were hired away from Price Waterhouse by clients and rival accounting firms.
Although women partnership candidates have been elected to partnership at a slightly lower rate than men (60% versus 68%), the difference is not statistically significant. The other statistical studies presented by plaintiff only bear an indirect relationship to Price Waterhouse's practice in partnership selection, and when corrected to examine the appropriate comparisons, lack statistical significance. No conclusion can be drawn from this fragile data.
3. Stereotyping and the Partnership Selection Process.
Plaintiff's final argument begins with the allegation that the male partners who criticized her interpersonal skills applied a double standard. She claims that she was not evaluated as a manager, but as a woman manager, based on a sexual stereotype that prompts males to regard assertive behavior in women as being more offensive and intolerable than comparable behavior in men because some men do not regard it as appropriate "feminine" behavior.
Plaintiff claims that this type of sexual stereotyping is reflected in comments about her aggressiveness and profanity that indicate she was being evaluated as a woman and not simply as a partnership candidate. One commenter said "she may have overcompensated for being a woman." Another suggested that she needed to take a "course at charm school." Supporters indicated that her critics judged her harshly due to her sex. One acknowledged "Ann has a clearly different personality," but "many male partners are worse than Ann (language and tough personality)," and people were only focusing on her profanity "because its a lady using foul language." Another conceded that she initially came across as "macho" but said, "if you get around the personality thing she's at the top of the list or way above average." Another defended her by saying, "she had matured from a tough-talking, somewhat masculine hard-nosed mgr. to an authoritative, formidable, but much more appealing lady partner candidate."
When plaintiff consulted with the head partner at OGS, who was her strongest supporter and responsible for telling her what problems the Policy Board had identified with her candidacy, she was advised to walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.
Some comments on other women partnership candidates in prior years support the inference that the partnership evaluation process at Price Waterhouse was affected by sexual stereotyping. Candidates were viewed favorably if partners believed they maintained their femininity while becoming effective professional managers. To be identified as a "women's liber" was regarded as negative comment. Nothing was done to discourage sexually biased evaluations. One partner repeatedly commented that he could not consider any woman seriously as a partnership candidate and believed that women were not even capable of functioning as senior managers -- yet the firm took no action to discourage his comments and recorded his vote in the overall summary of the evaluations. Besides the plaintiff, the Admissions Committee rejected at least two other women candidates because partners believed that they were curt, brusque and abrasive, acted like "'Ma Barker'" or tried to be "'one of the boys'." Comments suggesting that sex stereotypes may have influenced the partners' evaluations of interpersonal skills were not frequent, but they appear as part of the regular fodder of the partnership evaluations.
Plaintiff presented a well qualified expert, Dr. Susan Fiske, who has done extensive research and study in the field of stereotyping. Dr. Fiske examined the partners comments about the plaintiff and other partnership candidates and gave opinions as to the possible presence of sex stereotyping. Dr. Fiske did not purport to be able to determine whether or not any particular reaction was determined by the operation of sex stereotypes. However, she did identify comments that she believed were influenced by sex stereotypes. Dr. Fiske stated that in her opinion unfavorable comments by male partners, slanted in a negative direction by operation of male stereotyping, were a major factor in the firm's evaluation of the plaintiff. But she could not pinpoint the degree to which stereotyping had influenced the selection process.
That deep within males and females there exist sexually based reactions to the personal characteristics of one of the opposite sex surely comes as no surprise. It is well documented that men evaluating women in managerial occupations sometimes apply stereotypes which discriminate against women.
Indeed, the subtle and unconscious discrimination created by sex stereotyping appears to be a major impediment to Title VII's goal of ensuring equal employment opportunities.
Dr. Fiske testified that situations, like that at Price Waterhouse, in which men evaluate women based on limited contact with the individual in a traditionally male profession and a male working environment foster stereotyping. One common form of stereotyping is that women engaged in assertive behavior are judged more critically because aggressive conduct is viewed as a masculine characteristic.
Establishing a claim of disparate treatment based on subjective evaluations requires proof of discriminatory motive or purpose. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). The Court finds that while stereotyping played an undefined role in blocking plaintiff's admission to the partnership in this instance, it was unconscious on the part of the partners who submitted comments. The comments of the individual partners and the expert evidence of Dr. Fiske do not prove an intentional discriminatory motive or purpose. A far more subtle process is involved when one who is in a distinct minority may be viewed differently by the majority because the individual deviates from an artificial standardized profile. Even in examining the comments months later at trial, it is impossible to label any particular negative reaction as being motivated by intentional sex stereotyping. Business women who earn a place at the highest ranks of their profession by combining ability with a strong persistent effort to succeed frequently sense antagonism from some male colleagues whose contact with the working female as an equal has been limited. However, considering the infinite variety of work conditions; differences in experience, education and perceptions among individuals in working encounters; as well as the fact that the interactions of personalities of either sex are as complex and inscrutable and as infinite as combinations of genes will produce, it is impossible to accept the view that Congress intended to have courts police every instance where subjective judgment may be tainted by unarticulated, unconscious Congress intended to have courts police every instance where subjective judgment may be tainted by unarticulated, unconscious assumptions related to sex.
But plaintiff takes her argument one step further and stresses that the Price Waterhouse partnership evaluation system permitted negative comments tainted by stereotyping to defeat her candidacy, despite clear indications that the evaluations were tainted by discriminatory stereotyping. All the evaluators were men. The Policy Board gave great weight to the negative views of individuals who had very little contact with the plaintiff. Several of the negative comments allude to the plaintiff's sex and many might be attributed to sex stereotyping. Despite the fact that the comments on women candidates often suggested that the male evaluators may have been influenced by a sex bias, the Policy Board never addressed the problem. The firm never took any steps in its partnership policy statement or in the evaluation forms submitted to partners to articulate a policy against discrimination or to discourage sexual bias.
The Admissions Committee never attempted to investigate whether any of the negative comments concerning the plaintiff were based on a discriminatory double standard.
Whenever a promotion system relies on highly subjective evaluations of candidates by individuals or panels dominated by members of a different sex, there is ground for concern that such "high level subjectivity subjects the ultimate promotion decision to the intolerable occurrence of conscious or unconscious prejudice." Robinson v. Union Carbide Corp., 538 F.2d 652, 662 (5th Cir. 1976), cert. denied, 434 U.S. 822, 54 L. Ed. 2d 78, 98 S. Ct. 65 (1977). Such procedures "must be closely scrutinized because of their capacity for masking unlawful bias." Davis v. Califano, 198 U.S. App. D.C. 224, 613 F.2d 957, 965 (D.C. Cir. 1979). This scrutiny comprehends examination of evaluation procedures that permit or give effect to sexual stereotyping. Differential treatment on account of sex, even if it is not obviously based on a characteristic of sex, violates Title VII. McKinney v. Dole, 246 U.S. App. D.C. 376, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). An employer who treats a woman with an assertive personality in a different manner than if she had been a man is guilty of sex discrimination. See Craik v. Minnesota State University Board, 731 F.2d 465, 481-84 (8th Cir. 1984); Skelton v. Balzano, 424 F. Supp. 1231, 1235 (D.D.C. 1976). A female cannot be excluded from a partnership dominated by males if a sexual bias plays a part in the decision and the employer is aware that such bias played a part in the exclusion decision.
Although the stereotyping by individual partners may have been unconscious on their part, the maintenance of a system that gave weight to such biased criticisms was a conscious act of the partnership as a whole. There is no direct evidence of any determined purpose to maliciously discriminate against women but plaintiff appears to have been a victim of "omissive and subtle" discrimination created by a system that made evaluations based on "outmoded attitudes" determinative. Marimont v. Califano, 464 F. Supp. 1220, 1226 & n.15 (D.D.C. 1979). As noted above, the firm accorded substantial weight to negative comments and recommendations, even if they came from partners who had limited contact with a candidate. The evidence indicates that Price Waterhouse should have been aware that women being evaluated by male partners might well be victims of discriminatory stereotypes. Yet the firm made no efforts to make partners sensitive to the dangers, to discourage comments tainted by sexism, or to investigate comments to determine whether they were influenced by stereotypes.
The Court is aware that this case involves applying Title VII to a professional partnership. Partnership consideration was clearly a privilege of plaintiff's employment covered by Title VII. Hishon v. King and Spaulding, 467 U.S. 69, 104 S. Ct. 2229, 82 L. Ed. 2d 59 (1984). Title VII does not bar a partnership from considering subjective evaluations of interpersonal skills as significant criteria in the partnership selection process. Subjective evaluations in high-level, professional jobs have received particular deference in Title VII cases. See Zahorik v. Cornell University, 729 F.2d 85, 93 (2d Cir. 1984); Harris v. Group Health Insurance, 213 U.S. App. D.C. 313, 662 F.2d 869, 873 (D.C. Cir. 1981); Bartholet, Application of Title VII to Jobs in High Places, 95 Harv. L. Rev. 945, 973-78 (1982); Waintroob, The Developing Law of Equal Employment Opportunity at the White Collar and Professional Level, 21 Wm. & Mary. L. Rev. 45, 48-62 (1979). However, while partnerships must be given freedom to evaluate the qualifications of employees who seek to become partners, they are not free to inject stereotyped assumptions about women into the selection process. Neither a partnership nor any other employer can remain indifferent to indications that its evaluation system is subject to sex bias, as Price Waterhouse did in plaintiff's case. Price Waterhouse's failure to take the steps necessary to alert partners to the possibility that their judgments may be biased, to discourage stereotyping, and to investigate and discard, where appropriate, comments that suggest a double standard constitutes a violation of Title VII in this instance.
Price Waterhouse had every reason and legal right to come down hard on abrasive conduct in men or women seeking partnership. But "'in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'" County of Washington v. Gunther, 452 U.S. 161, 180, 68 L. Ed. 2d 751, 101 S. Ct. 2242 (1981), quoting Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 707, 55 L. Ed. 2d 657, 98 S. Ct. 1370 n.13 (1978). This is not a case where "standards were shaped only by neutral professional and technical considerations and not by any stereotypical notions of female roles and images." Craft v. Metromedia, Inc., 766 F.2d 1205, 38 Fair Empl. Prac. Cas. (BNA) 404, 412 (8th Cir. 1985). Discriminatory stereotyping of females was permitted to play a part. Comments influenced by sex stereotypes were made by partners; the firm's evaluation process gave substantial weight to these comments; and the partnership failed to address the conspicuous problem of stereotyping in partnership evaluations. While these three factors might have been innocent alone, they combined to produce discrimination in the case of this plaintiff. The Court finds that the Policy Board's decision not to admit the plaintiff to partnership was tainted by discriminatory evaluations that were the direct result of its failure to address the evident problem of sexual stereotyping in partners' evaluations.
Because plaintiff had considerable problems dealing with staff and peers, the Court cannot say that she would have been elected to partnership if the Policy Board's decision had not been tainted by sexually biased evaluations. Even supporters of the plaintiff viewed her style as somewhat offensive and detrimental to her effectiveness as a manager. However, once a plaintiff proves that sex discrimination played a role in an employment decision, the plaintiff is entitled to relief unless the employer has demonstrated by clear and convincing evidence that the decision would have been the same absent discrimination. Williams v. Boorstin, 213 U.S. App. D.C. 345, 663 F.2d 109, 117 (D.C. Cir. 1980); Day v. Mathews, 174 U.S. App. D.C. 231, 530 F.2d 1083, 1085-86 (D.C. Cir. 1976). Price Waterhouse has not done so. Where sex discrimination is present, even if a promotion decision is a mixture of legitimate and discriminatory considerations, uncertainties must be resolved against the employer so that the remedial purposes of Title VII will not be thwarted by saddling an individual subject to discrimination with an impossible burden of proof.
However, plaintiff must carry the burden of proof on another issue. She has the burden of proving that she was constructively discharged. If the plaintiff resigned voluntarily, and not because Price Waterhouse made working conditions intolerable and drove her to quit, she is not entitled to an order that she be made a partner. Clark v. Marsh, 214 U.S. App. D.C. 350, 665 F.2d 1168, 1172-73 (D.C. Cir. 1981). The fact that discrimination has occurred does not, by itself, provide the "aggravating factors" required to prove a constructive discharge. Id. at 173-74. Plaintiff has not shown any history of discrimination, humiliation or other aggravating factors that would have compelled her to resign. She dropped her allegations of harassment and retaliation before trial. Aside from Price Waterhouse's denial of partnership, plaintiff's experience at the firm appears to have been quite normal and amicable. The one incident in which a project managed by the plaintiff was unfavorably evaluated appears to have involved a disagreement over the appropriate technical standards rather than an improper effort to pressure plaintiff to resign. Price Waterhouse offered to retain her as an employee and some partners even encouraged her to take this option rather than resign when it appeared unlikely that she would become a partner.
Being denied partnership was undoubtedly a professional disappointment and it may have been professionally advantageous for plaintiff to leave the firm when it was unlikely she would not obtain her ultimate goal. Disappointments do not constitute a constructive discharge, however. See Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65-66 (5th Cir. 1980); Sparrow v. Piedmont Health Systems Agency, Inc., 593 F. Supp. 1107, 1117-18 (M.D.N.C. 1984). Recognizing that in partnerships, as in other employment contexts, "society and the policies underlying Title VII will be best served if, wherever possible, unlawful discrimination is attacked within the context of exiting employment relationships." 617 F.2d at 66, plaintiff's failure to show a constructive discharge requires the Court to deny plaintiffs request for an order directing Price Waterhouse to make her a partner.
Because plaintiff has failed to prove a constructive discharge, she is not entitled to any monetary relief for the period subsequent to her resignation. Clark v. Marsh, 665 F.2d at 1172. Nevertheless, plaintiff has satisfied her burden of proving discrimination under Title VII and established the predicate for an award of backpay from the date she would have been elected partner, July 1, 1983, until her voluntary resignation on January 17, 1984. Backpay for these few months, limited to the difference between plaintiff's compensation as a senior manager during that period and what her compensation would have been if elected to partnership, might have been appropriate if proof had been presented. However, no evidence has been presented on what compensation plaintiff would have received if she had been elected partner. The parties have represented that, without the knowledge or consent of the Court, they agreed to defer resolving the amount of backpay until the issue of liability was resolved. But the parties do not have the authority to structure a trial for their own convenience. Issues can only be separated for a separate trial by order of the Court. Fed. R. Civ. P. 42(b). No such order was ever requested or granted in this case. A party who makes an "unauthorized determination not to go forward on issues that were properly in the case does so at his own peril." U. S. Industries Inc. v. Blake Construction Co., Inc., 246 U.S. App. D.C. 326, 765 F.2d 195, 209-10 (D.C. Cir. 1985). Under the circumstances the Court can do no more than recognize plaintiff as the prevailing party on the issue of liability, grant judgment in favor of the plaintiff, and award attorneys fees. No other equitable relief is appropriate on this record.
An appropriate order is entered contemporaneous with the filing of this memorandum.
It appearing for reasons set forth in a memorandum filed this day that plaintiff has prevailed on the merits of her claim that denial of partnership in her specific situation was caused, in part, by defendant's failure to protect against the presence of sex discrimination in evaluations of her qualifications for partnership, but that plaintiff has failed to establish any basis for granting equitable relief in the form of backpay or other relief, it is hereby
ORDERED, that the complaint shall be and hereby is dismissed; and it is further
ORDERED, that plaintiff shall be and hereby is awarded her reasonable attorneys fees plus costs the be set by the clerk; and it is further
ORDERED, that the parties shall attempt to agree on an amount to compensate for such reasonable attorney fees and advise the Court in writing on or before September 30, 1985, whether further proceedings to establish the fee award will be necessary.
Gehard A. Gesell, United States District Judge.