Price’s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law

Yale Law Journal, Volume 124, Issue 2, 396 (November 2014)

American antidiscrimination law has addressed harmful stereotypes since, at least, the Civil Rights Act of 1964. Stereotypes about the different abilities of men and women, or of black and white workers, lay underneath much of the segregation and workplace inequality that Title VII sought to correct. However, Price Waterhouse v. Hopkins has radically expanded our conception of stereotypes as discrimination, and in doing so has introduced revolutionary ideas to the workplace and the courts. Prior to Price Waterhouse, Title VII had been thought to apply only to ascriptive stereotyping—to monolithic misconceptions burdening all members of a disfavored group. Price Waterhouse’s extension of Title VII protection to victims of prescriptive stereotype has constituted a massive, and heretofore unstudied, conceptual leap. This Note examines how Price Waterhouse’s prohibition against stereotyping can transform American workplace law and analyzes one area where it already has—antigay discrimination. By contrasting the requirements for proving antigay discrimination under a Price Waterhouse sex stereotyping theory with the traditional Title VII methods many states use to protect LGBT workers, I show both how Price Waterhouse can complement proposed LGBT-specific protections such as the Employment Non-Discrimination Act (ENDA), and how its normative vision is a vital addition to existing antidiscrimination law.