Article of Interest: Kerri L. Stone’s Clarifying Stereotype

Federal Rule of Evidence 801(d)(2)(E) provides that “[a] statement is not hearsay if…[t]he statement is offered against a party and is…a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Rule 801(d)(2)(E) is based upon agency theory. As long as co-conspirators are engaged in a conspiracy, statements made by one conspirator in furtherance of that conspiracy are attributable to co-conspirators. But when exactly is a statement in furtherance of a conspiracy? Well, as the Court of Appeals of Idaho noted in State v. Rolon, 201 P.3d 657 (Idaho.App. 2008), there is a split among the courts.

Some courts find that “stray” comments qualify as co-conspirator admissions. For instance, in United States v. Clark, 18 F.3d 1337 (6th Cir. 1994), Jeffrey Mullins, Roger Clark, and others allegedly robbed three banks. After the third alleged robbery (but before the money from the robbery was distributed), Mullins said to his girlfriend that “Roger (Clark) got sick, that he was a wimp, that he couldn’t handle it any better than anybody else could. Everybody wanted part of the money, but they couldn’t handle the job.” The Sixth Circuit found no problem with the girlfriend testifying concerning this statement under Federal Rule of Evidence 801(d)(2)(E), finding that a “statement need not actually advance the conspiracy to be admissible” and that “statements which identify the participants and their roles in the conspiracy are made ‘in furtherance’ of a conspiracy.” The court in Rolon rejected this reading of Rule 801(d)(2)(E) and joined those courts that had held that “a determining factor is whether a statement in any way assists or advances the objectives of a conspiracy-otherwise such a statement is not ‘in furtherance’ as prescribed by the rule.”

This split was the first thing that I thought about after reading the terrific recent article, Clarifying Stereotype, 59 U.Kan. L. Rev. 591 (2011), by Kerri L. Stone, a professor at the Florida International University College of Law. The major point of Professor Stone‘s article is that, in the wake of the Supreme Court’s opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), courts have cited to Hopkins “in a one-size-fits-all manner in virtually every case brought under Title VII in which stereotyping of any kind or in any context has been alleged.” In other words, courts themselves have engaged in stereotypical thinking in addressing Title VII stereotyping claims, sometimes leading to similar claims being treated disparately and other times leading to disparate claims being treated similarly. And this is how we end up with a supervisor’s “stray” stereotypical comment to an employee being one court’s garbage but another court’s treasure. Professor Stone‘s goal in the article is to dig beneath courts’ habitual citations to Hopkins and see what really is (and should be) going on.

Early in the article, Professor Stone explains the Court’s holding in Hopkins, in which Ann Hopkins brought a mixed-motive Title VII action against Price Waterhouse, claiming that she was denied partnership based upon sex discrimination as well as the proffered reason of interpersonal problems. Her main evidence of sexual discrimination was evidence of sex stereotyping in partners’ evaluations of her. According to Professor Stone,

It is important to review the precise derivation and wording of the Court’s theory promulgated about sex stereotyping and Title VII liability. Specifically, the Court explained that, “[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman  cannot be aggressive, or that she must not be, has acted on the basis of gender.” The Court also explicitly rejected both the suggestion that sex stereotyping did not occur in Hopkins’s case–because the partners’ comments evinced it–and the suggestion that sex stereotyping “lacks legal relevance.” Noting that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group,” the Court emphasized that Congress’s intent in enacting Title VII was to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Thus, the Court observed: “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 do not. Title VII lifts women out of this bind.”

The Court, however, noted workplace comments predicated on sex stereotyping “do not inevitably prove that gender played a part in a particular employment decision.” Rather, the Court found the plaintiff bore the burden of demonstrating that her employer “actually relied on her gender in making its decision.” While stereotyped remarks could evince that gender played a role in the decision, the Court believed the case involved more than stray remarks.

As Professor Stone notes, the Supreme Court did not give much guidance to lower courts in how to apply this analysis in future cases. Instead,

-“The Court…was not as clear as might be imagined as to the legal doctrine of stereotyping and its contours generally;”

-“The Court gave even less clear guidance as to how courts should go about discerning illicit stereotyping that could make employers run afoul of the law….[,] t[aking] a we’ll-know-it-when-we-see-it approach to sex stereotyping;” and

-“The Court left the lower courts the task of infusing its words with additional meaning.”

The problem, according to Professor Stone, is that courts have not infused Hopkins‘ words with additional meaning. Instead, when confronted with motions for summary judgment dismissing Title VII claims in which stereotyping of any kind or in any context has been alleged, courts habitually apply Hopkins in an opaque, one-size-fits-none manner that lends itself to inconsistency and unreliability, i.e., they have applied it stereotypically. Professor Stone‘s goal is to dig beneath the surface of these opinions and unearth (and challenge) what courts are really doing. And what she finds is that

Although the courts have been less than explicit about this fact, a court confronted with an allegation that a stereotyped comment or belief evinces discrimination “because of” sex must address two primary questions. The ultimate question, of course, is whether Hopkins applies to the case so as to compel the court to view the comment or belief as existing and serving as evidence of discrimination sufficient to at least create a triable issue of fact. The first question–a focus of this Article–is whether a stereotype is even in play. In other words, is there a stereotyped belief, voiced or somehow acted upon, that could serve as viable evidence of discrimination? The second question is when a sufficient nexus may be said to exist between the stereotype and the adverse action at issue.

Professor Stone then breaks down this first inquiry further, finding that

Among the questions that courts appear to have considered when resolving the issue of whether or not a stereotype–expressly articulated or not–was in play include the following: Does the statement reference an identifiable class, or is it too vague or ambiguous; is the stereotype an entrenched stereotype, meaning, is it societally known; is the stereotype adequately voiced, or is too tacit or implied to be discerned as such; and is the comment or remark a stereotype that adverts to a characterization of a person based upon his class, or is it merely an inartful characterization of a trait or behavior that has no relation to either the plaintiff’s protected class or to the speaker’s perception of the class?

Does the Stereotype (need to) Reference an Identifiable Class?

Should plaintiffs using stereotypical comments to prove Title VII claims have to prove that they were signaled out because they are members of  protected class and treated less favorably than those outside the class? Some courts reach this conclusion, such as the Eastern District of Michigan in Maturen v. Lowe’s Home Centers, Inc., 2007 WL 3173962 (E.D. Mich. 2007), in which the plaintiff’s supervisor told him that he “should learn to control [his] wife and keep her in her place” after the plaintiff’s wife criticized his employer’s store and personnel in an e-mail to the supervisor. In dismissing the plaintiff’s claim, the court concluded that “[t]he salient issue in a Title VII claim of discrimination is whether the plaintiff was singled out because of his membership in a protected class and treated less favorably than those outside the class, not whether the plaintiff was treated less favorably than ‘someone’s general standard of equitable treatment.'”

Professor Stone points out that this makes no sense because there is both intergroup bias (e.g., preferring male employees to female employees) and (the more difficult to prove) intraclass preference (e.g., preferring more feminine female employees to more masculine female employees or vice versa). And, indeed as she notes (and as I noted in a previous post), courts have been receptive to Title VII claims alleging family responsibility discrimination “even though the discrimination does not systemically discriminate against all women.” Professor Stone also takes to task courts finding that stereotyping based upon gender non-conforming behavior not observed at work falls outside the scope of Title VII, concluding that “[i]f gender nonconforming behavior is not observed in the workplace but is still used as the basis for a workplace-related consequence, it is certainly no less an action taken ‘because of’ protected class status than it would be if the behavior were discernible at work.”

Is the Stereotype Entrenched (and does it need to be)?

In Love v. Motiva Enterprises, LLC, 2008 WL 4286662 (E.D. La. 2008), the plaintiff sued for discrimination, claiming that she received complaints that she did not conform to her supervisor’s “idea of a liberated, physically fit woman” or of a “slimmer, liberated woman.” The Eastern District of Louisiana, however, rejected this claim, finding that someone’s idea of a “liberated, physically fit woman by definition cannot constitute a stereotype, which is based on society’s general ideas about traits commonly thought to be shared by persons of the same physical type.”

Professor Stone again takes these types of opinions to task, concluding that

the question of how entrenched the stereotype is should not be relevant, so long as it inheres in the decision-maker’s mind. Stereotypes are nefarious because of the mindset they evince; that mindset is subjective and should not need societal reinforcement to be valid evidence of animus, prejudice, or misperception that may have precipitated class-based disparate treatment. Moreover, whether the stereotype invoked goes toward the woman being “too manly” ought not be the dispositive question as to whether she can prove sex discrimination. To the extent any decision-maker is inclined to see a protected class ideal in a certain way and then judges a protected class member in a way in which he would not judge a non-class member for failing to conform to this ideal, the class member experiences discrimination on the basis of class status.

Was the Stereotype Explicit or Too Tacit or “Inartful” to Evince Prejudice?

In Valles-Hall v. Ctr. for Nonprofit Advancement, 481 F.Supp.2d 118 (D.D.C. 2007), a Hispanic female sued her former employer, claiming, inter alia, that complaints about her “aggressive and inflammatory” style of communication were coded, “stereotyped characterizations that are often used when women and people of color are self-confident, intelligent and assertive.” As support for this claim, she alleged that her then-supervsior told her

that “[i]f making judgments about people and telling them is a cultural thing, then maybe we should tell the staff it’s a cultural thing and they should buck up and take it.” This same supervisor, however, informed the plaintiff that she deemed her “behavior not to be ‘a cultural thing’ but rather to be ‘verbal abuse.”’

In granting the defendant’s motion for summary judgment, the court held that the supervisor’s comment was “[a]t most,…a stray remark that, although probative of discrimination, cannot serve as direct evidence of discrimination.” Professor Stone is troubled by this conclusion and similar conclusions, and I agree. Going back to the introduction to this post, I think that we can all agree that a co-conspirator can make a statement during a conspiracy that does not further the conspiracy (e.g., a statement about the co-conspirator getting food or doing laundry). But can we ever say, as a matter of law, that a supervisor’s stereotypical comment to an employee is merely a “stray” comment or too tacit to serve as evidence of discrimination?

Professor Stone cites to a lot of research refuting this theory and compellingly notes that because “the law has rendered overt and explicit bias taboo and socially unacceptable, invidious discrimination…has become expressed in increasingly subtle, nuanced ways, with those harboring bigoted attitudes deploying coded speech, tacit understandings, and unspoken, but acted-on preferences.” Therefore, “[t]o the extent that social mores dictate restraint when it comes to the utterance of such comments, the fact of their vocalization ought to strengthen the presumption of their truthfully representing the beliefs of the speaker.”

Is the Comment Merely an Inartful Characterization of a Trait that Has No Relation to Class Status?

Finally, what about cases where a supervisor makes no comments explicitly referencing race/gender/etc., but the plaintiff claims that the supervisor’s view of her skills was “tainted” by the supervisor’s “discriminatory attitude? For instance, what if, as in Cuttino v. Genesis Health Ventures, Inc., 2006 WL 62833 (D. Conn. 2006), the plaintiff claims that she was targeted for particularly bad treatment because of her status as “an assertive African-American employee.” Well, according to the District of Connecticut, it is unlikely (impossible?) for the plaintiff to succeed if she was replaced by another African-American employee.

Professor Stone again finds this nonsensical based upon intraclass preference and notes that if the plaintiff

could demonstrate that traits that she possessed were not tolerated as well in her as they would be in one who was not a member of her protected class, she should certainly have a cognizable claim of race discrimination. Moreover, if she could show that a decision-maker was more prone to discerning or ascribing certain traits to her than he would be to one who was not a member of her protected class (in this case, race), she should certainly have a cause of action.


Professor Stone also analyzes what courts are (and should be) doing under the second question, and I direct readers to the article to read her complete analysis on the issue. Overall, I think that the article does a wonderful job of exposing a real complacency in courts in applying Hopkins to Title VII claims in which stereotyping is alleged, and I strongly recommend it to readers (and hope that the article finds its way into the hands of some judges). The bottom line seems to be that courts taking the easy out of applying the same generic Hopkins analysis to widely disparate discrimination claims are engaging in the same type of stereotypical behavior that Title VII sought to curtail and that, as in the article, they need to dig deeper and address what is really going on. I asked Professor Stone what led her to write the article, and she responded:

In the spring of 2008, I was teaching an employment law class, and we had just finished reading and discussing the 1989 Supreme Court case of Price Waterhouse v. Hopkins. A woman in my class raised her hand and shared that she had been told by her boss at work that she was “too girly” to succeed at the company. The boss, she quickly added, had “no problem with women,” though, and he had readily hired and promoted numerous other women. I put the question to my class: if this woman were to suffer an adverse action at the hands of this boss, would Title VII have been violated? The group’s feelings were mixed. One student raised his hand and contended, “Employment is at will. If this guy really has a good record with women and he has singled her out because of the way in which she comes across to him, that’s his prerogative.” Another student countered, “What about Hopkins? Isn’t that gender stereotyping?” Others weighed in: if this woman were held back while many other women were not, how could the issue be tied to her sex and not to particularities of her personality?

I decided to try a different tack. “OK. Let’s change the example here. What if a firm had a spectacular record of hiring and promoting members of a certain minority racial group—let’s say Asian Americans, and let’s say in numbers greater than the group exists in the labor pool. But one day, one guy is pulled aside and told that he’s “too ethnic” seeming to succeed at the company. Title VII problem?” I watched with interest as the class bristled, as I’d hoped they would, as they thought more about the issue. “But that’s really offensive for that boss to say,” one student remarked. “Yes,” I answered, “but anchor your analysis to Title VII.” We discussed Title VII’s objectives and their nexus with the notion of “stereotyping.” It was in the course of this discussion that I began to think about the fact that there has been an immense amount of confusion as to Hopkins’s precise meaning with respect to stereotyped remarks and beliefs that are alleged to have factored into adverse employment decisions. Once back in my office, a review of Title VII cases invoking Hopkins over the course of the twenty years since its issuance, and especially several recent cases highlighted this confusion.

This article really came out of that discussion and my subsequent review of the confused jurisprudence on point. Here is the article’s abstract:

Discrimination on the basis of sex in employment is illegal, but can one legally be fired for being “too girly?” How about for not acting “manly enough?” The notion that stereotyped beliefs about groups can engender employment discrimination liability was first set forth in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Notably missing from that opinion, however, was clear guidance as to how to discern when an impermissible stereotype is at play, when a belief underlies or motivates an adverse action at work, or under what circumstances a comment alleged to evince “stereotyping” may be ample evidence of discrimination. This Article is the first analytical exploration of the concept of stereotyping in the context of employment discrimination claims.

Courts guided only by Hopkins, which is ubiquitously invoked, but unclear, have come up short in their adjudication of these cases. Courts have failed to engage with the threshold questions of what it means to stereotype; how stereotyping translates into impermissible action; and why stereotyping is considered to be nefarious and capable of fomenting discrimination. This Article examines Hopkins’s language, its precise mandates, and its guidance for lower courts. This study then explains the widespread extrapolation of Hopkins by the lower courts and the framework in which it now operates. Hopkins furnished guidance that is less than clear as to when so-called “stereotyping” is evidence that warrants evaluation by a trier of fact and when a comment is harmless or too attenuated from an adverse action to permit an allegation of discrimination to survive. This Article also identifies the various smaller, often unarticulated questions bound up in the larger issues of when impermissible stereotyping has occurred, and how various courts’ failure to specify these questions and their answers may have led to the confused state of stereotyping jurisprudence. In light of these questions, this work offers a matrix to guide stereotyping analyses in the future.

-Colin Miller

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