Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [67]
The contrast between the two demands should not obscure what they share—both relate to behavioral aspects of Hopkins’s identity. When Hopkins first perceived her career was endangered, she desperately hoped the problem was something “other than sex, that I could start to work on, especially given that changing sex was not an option.” This comment reflects her naivete about how sex can be “worked on” without having a sex change. Only one partner at Price Waterhouse said he would never vote for a woman, and others scrambled to distance themselves from him. Yet many partners unwilling to exclude all women were willing to exclude a certain kind of woman. This was the woman who did not perform her gender in the middle band. As the trial judge observed: “Candidates were viewed favorably if partners believed they maintained their femin[in]ity while becoming effective professional managers.”
An expert witness for Hopkins—psychologist Susan Fiske—offered a crucial characterization of this predicament as a “double bind.” Fiske first explained stereotyping, testifying that “the overall stereotype for feminine behavior is to be socially concerned and understanding, soft and tender, and the overall stereotype for a man, all other things being equal, is that [he] will be competitive, ambitious, aggressive, independent, and active.” Fiske maintained that because stereotypically male traits are valued in many work environments, women in such environments are placed in a “double bind”—a “conflict between the assertiveness and aggressiveness required to get the job done and the image required to fit the female stereotype.”
Fiske’s concept played a major role in the Supreme Court’s analysis. In 1989, six justices ruled in Hopkins’s favor, leading Hopkins to be the first person admitted to a partnership under a court order. No one opinion commanded a majority of the Supreme Court’s nine justices, but four justices wrote a plurality opinion that, although not binding precedent, has been followed in subsequent cases. This opinion first articulated a “Catch-22” theory of liability: “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 plurality’s Catch-22 theory is urbane and naïve. It is urbane in recognizing women’s unique subjection to both covering and reverse-covering demands. It is naïve in assuming women cannot extricate themselves from such binds. As the plethora of how-to manuals show, professional women can and do. Yet that naivete may have been deliberate—the plurality may have characterized women as trapped in a Catch-22 to place limits on its new theory of liability. Like immutability, the Catch-22 is another “I can’t help it” argument. In the plurality’s view, it is because women cannot extricate themselves from the Catch-22 that Title VII chivalrously “lifts women out of this bind.” This formulation implies that if women were able to meet the employer’s demands, no matter how stereotypical, they would have to do so.
Subsequent cases illustrate the limitations of the Catch-22 theory. In Dillon v. Frank, the Sixth Circuit considered the case of a male postal worker harassed because his coworkers thought he was gay. Dillon claimed that just as Hopkins was punished for not being “feminine” enough