In 1989, Ann Hopkins sued Price Waterhouse under Title VII of the 1964 Civil Rights Act, alleging that Price Waterhouse had denied her the chance of becoming a partner at the firm because she was a woman. Her case traveled all the way to the Supreme Court, where a plurality held that, given a set of both discriminatory and nondiscriminatory factors, an employer does not violate Title VII if it can prove by a preponderance of the evidence that it would have made the same employment decision even absent the discriminatory factor. In Bostock v. Clayton County (the case next term for which I will write my own opinion), the employees alleging discrimination make a litany of citations to Hopkins’ case in their briefs—especially its discussion of sex stereotyping under Title VII. Consequently, I take a look at the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins and assess subsequent legal developments and its relevancy today.
I have two objectives here on SCOTUS Predictions: to cover what the Supreme Court does on a daily basis and to try my hand at what the Supreme Court does in general. This latter task is by far the more intellectually-taxing one, and I do it by selecting one case each term for which I write my own opinion before the Court releases its decision. Last term, I selected Madison v. Alabama, for which I authored a 49-page opinion holding that the Eighth Amendment prohibits the execution of a prisoner who does not rationally understand the circumstances of his execution and the reasons for which he is being put to death.
The time has come to select my next case, this time for O.T. 2019. That case—perhaps the most closely-watched case thus far of any before the Supreme Court next term—is Bostock v. Clayton County, Georgia. I will decide whether discrimination against an LGBTQ+ employee because of their sexual orientation qualifies as discrimination “because of . . . sex” under Title VII of the 1964 Civil Rights Act.