Price Waterhouse Discrimination Case: Hopkins v. Price Waterhouse, Lecture notes of Human Rights

Download Price Waterhouse Discrimination Case: Hopkins v. Price Waterhouse and more Lecture notes Human Rights in PDF only on Docsity! HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 357 PRICE WATERHOUSE V. HOPKINS: A PERSONAL ACCOUNT OF A SEXUAL DISCRIMINATION PLAINTIFF Ann Hopkins* INTRODUCTION I was asked to discuss my experience with the legal system and to go beyond previously published material to answer some questions. • Why did the case succeed? • What happened after you went back to Price Waterhouse? • What changed after the litigation? • What advice would you offer to people who seek to combat discrimination? In this article, I offer some answers, all of which are colored by my point of view, my profession, and my personality. My point of view is that of a litigant. By profession I am a management consultant, although I have been variously (and erroneously) assumed to be an attorney or an accountant. By personality type I am a value driven, big picture, people watching problem solver. Most problems look like management problems to me. Solutions may involve elements of research, writing, psychology, analysis, and other skills or disciplines. These solutions, however, are posited with time constraints and less than perfect information. I usually begin with an evolving hypothetical solution, an opinion, if you will, grounded in * Ann Hopkins is a management consultant and a retired partner of PricewaterhouseCoopers. She spent her career helping clients solve financial and administrative problems. Her clients included NASA, U.S. Department of State, U.S. Patent and Trademark Office, U.S. Department of Housing and Urban Development, and the U.S. House of Representatives. She had three children, one of whom was killed. Her daughter works at the Department of Veterans Affairs. Her son teaches high school English. Portions of this piece have been reprinted with permission from the University of Massachusetts Press, publisher of SO ORDERED: MAKING PARTNER THE HARD WAY, by Ann Branigar Hopkins. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 358 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 my core values, common sense, and experience, not necessarily in data or evidence. When time runs out, hypothesis becomes the management solution. Remember that when I comment on numbers, matters of law, or psychology: I try to be accurate, but I don’t always get it right. BACKGROUND I am a Texan as were my parents. My father was a career army of- ficer, my mother a nurse. I am the oldest of three children. My sister, brother and I grew up in Germany where my father served a couple of three-year tours separated by four years at Fort Leavenworth, Kansas. Each of us earned master’s degrees: my sister Susan in languages, my brother John in psychology, and I in mathematics. Susan and her hus- band, Henry, are teachers, she at The Brooks School, he at Phillips Academy in Andover. Their two children graduated from Andover. One teaches and is married to a teacher, the other is an environmental scien- tist married to a biologist. My brother and his wife, Cathy, live and work in New York. She is a physician’s assistant. He is a speech therapist. They have one child out of college, one in, and one en route. We are a tightly knit family that believes in education and work – values we learned from our parents. I graduated from Hollins College and Indiana University and began my career in aerospace at IBM in the late sixties. I developed mathe- matical models to simulate the motion of scientific and weather satellites under the influence of various magnetic, gravitational, and radiation forces. In the early seventies I moved from purely technical work into project management and from IBM to a series of smaller companies. As aerospace work declined, I was exhausted by the hand to mouth exis- tence of the small company for which I worked. I went to work for Touche Ross & Co., one of the “Big Eight” national accounting firms, as a management consultant. I was the oldest of three women on the con- sulting staff in my office when I started. I worked on projects for the Mayor’s Office in Chicago, the Federal Reserve, the Corporation for Public Broadcasting, and National Public Radio. My biggest project was for the United Mine Workers of America (UMWA) Health and Retire- ment Funds (HRF). In the course of that work I traveled to many coal mines and mining communities. I loved the work at Touche – the pro- jects, the clients, the Touche teams I worked with, the travel, the way that Touche did business, the culture – all of it. At the Touche offices in downtown Washington, I shared an office, which held only five desks, with five other consultants. We were usually HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 361 class of 1983, I was miserable, depressed, furious, disconsolate, and in- consolable in cycles. Tom was in a state of controlled depression. Lew was visibly sad. Joe invited me to New York so that he could explain why I wasn’t admitted. He was pleasant, but there was no warmth about him. He summed up the paperwork that partners had submitted with their votes on me. By his analysis, “Admit” votes from three partners who knew me well represented strong support. My downfall was negative comments from 26 partners who didn’t know me well, some of whom were sup- posedly supporters. The 26 voted: ten to admit, seven not to admit, one to hold over for another year, and 8 abstained for lack of information. Joe read the comments to me. A few of the more memorable ones were: • Needs a course in charm school, • Matured from a tough-talking somewhat masculine hard- nosed manager to an authoritative, formidable, but much more appealing lady partner candidate, • Macho, • Overly aggressive, unduly harsh, difficult to work with and impatient with staff, • Overcompensated for being a woman, • Universally disliked. Clearly a bunch of partners didn’t like me. When I asked Joe what I had to do to make partner in the next year, the answer I got sounded like: keep up the good work and avoid getting negative comments. When I got back to Washington, Tom Beyer offered some memorable advice that came to figure prominently in the litigation. He suggested that I walk more femininely, talk more femininely, dress more femininely, wear makeup and jewelry, have my hair styled. After the next nomination cycle I was told I would never be a part- ner. What more could I do? The firm had the business I had been instrumental in winning and I was a failed partner candidate in an “up or out” profession. Lacking a reasonable explanation for what appeared to be an irrational business decision, my husband suggested that I “sue the bastards,” which I did. In August of 1983, as first step on the path to litigation, I filed a sex discrimination claim with the Equal Employment Opportunity Commis- sion (EEOC) alleging that Price Waterhouse had violated Title VII of The Civil Rights Act of 1964 (the Act). I left Price Waterhouse early in 1984 and worked as a consultant to the State Department, and later, as a budget officer for the World Bank until the litigation ended. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 362 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 Hishon v. King & Spalding In 1984 Hishon v. King & Spalding1 was under consideration by the U.S. Supreme Court. At issue was whether a partnership was subject to Title VII of the Act.2 In the lower courts, King & Spalding claimed that its constitutional right to freedom of association was paramount in deci- sions to admit partners to the firm. Betsy Hishon alleged that she had been discriminated against and was entitled to relief under the Act.3 The lower courts weighed the competing constitutional and federal interests, agreed with King & Spalding and denied Betsy her day in court for lack of jurisdiction of the Act.4 Because Hishon raised questions about federal jurisdiction over discrimination in partnership decisions, Hopkins v. Price Waterhouse en- tered the court system as a matter before the Superior Court of the Dis- trict of Columbia alleging violation of the D.C. Human Rights Act. At issue was whether Price Waterhouse had discriminated against me when it failed to make me a partner. In the summer of 1984, the Supreme Court ruled on Hishon: deci- sions concerning advancement to partnership are governed by Title VII, and must therefore be made without regard to race, sex, religion, or na- tional origin. King & Spalding was subject to the Act. Betsy settled with the firm – the terms of the settlement undisclosed. Her discrimination case was never tried. Hopkins v. Price Waterhouse In September of 1984, Hopkins v. Price Waterhouse5 entered the legal system as a federal case before the District Court for the District of Columbia Circuit. In that case, I alleged: Discrimination – Price Waterhouse had discriminated against me when it failed to make me a partner because of gender stereotyping in the partnership evaluation process. Constructive Discharge – Price Waterhouse had, in effect forced me to leave the firm. 1. 467 U.S. 69 (1984). 2. Id. at 73-4. 3. Id. at 72. 4. Id. at 72-3. 5. 618 F. Supp. 1109 (D.D.C. 1985). HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 363 As remedy I sought admission to the partnership, back pay, legal fees and court costs. A year later, in September 1985, the District Court held that Price Waterhouse had discriminated, but that I left the firm voluntarily – I was not constructively discharged.6 Absent constructive discharge, I was not entitled to the partnership remedy I sought. I appealed the constructive discharge result. Price Waterhouse appealed the discrimination result. After a couple of years, in August 1987, the Court of Appeals for the District of Columbia Circuit upheld the lower court on the discrimi- nation result, reversed it on the constructive discharge result, and re- manded the matter to the lower court for trial on remedy.7 Price Water- house appealed to the Supreme Court on the discrimination issue.8 Constructive discharge was never appealed. In the D.C. Circuit, Hopkins expanded the definition of constructive discharge to include career end- ing situations. Price Waterhouse v. Hopkins Better known than Hopkins is the firm’s appeal to the Supreme Court, Price Waterhouse v. Hopkins9 (hereinafter Price Waterhouse). In that appeal, the firm offered several arguments on the issue of liability: • There was no discrimination. • Freedom of association is paramount in partnerships. • Stereotyping is inadequate evidence of discrimination. • The burden of proof should never have shifted to the firm to prove that absent the discriminatory behavior the firm would have made the same decision (not to admit). • The evidentiary standard required when the firm had the burden of proof was too high. (The firm had to prove its point by clear and convincing evidence and I had to prove mine by only a preponderance of the evidence.) After another couple of years, on May Day 1989, in six opinions, the Justices of the Supreme Court discussed their views and related rul- ings, only one of which affected me. The Court ruled that plaintiffs and defendants should be held to the same evidentiary standard – preponder- ance of the evidence.10 The case was reversed and remanded to lower 6. 618 F. Supp. 1109 (D.D.C. 1985). 7. Hopkins v. Price Waterhouse, 825 F.2d 458 (D.C. Cir. 1987). 8. Price Waterhouse v. Hopkins, 485 U.S. 933 (1988). 9. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). 10. Id. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 366 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 WHY THE CASE SUCCEEDED In litigation, for a case to “succeed” surely means to prevail on li- ability and achieve the desired remedy. By that definition, my case, after it finally got through two trials, two appeals, and a trip to the Supreme Court, was successful. But if you break my case into the cases that constitute its parts, some were more successful than others. In the initial case on liability, I won a declaratory judgment and lost constructive discharge with the result that I earned no back pay and no partnership. On the first appeal I won liability again, with a split opinion, won constructive discharge and earned a trip to the Supreme Court, an- other trial, and another appeal on liability. Technically, I lost the Su- preme Court case – it was reversed and remanded. I “rewon” liability and earned attorneys’ fees, back pay, and a partnership in the case on remedy, although I lost an amount roughly equal to the back pay award for failure to mitigate damages. When the litigation ended with the final appeal, I had lost seven years of my career. There is, however, more to discrimination cases than “winning.” In the years since she argued the firm’s case before the Supreme Court, I have had the pleasure of meeting Kay Oberly, as she refers to herself, on several occasions. “Nothing personal. Litigation polarizes,” she said when we were first introduced. The warmth of her smile and the sincerity that radiated from troubled eyes banished any recollection I had of her at the argu- ments. I gave her a ride to the airport once. I was driving to work and noticed her unsuccessfully trying to hail a cab. We chatted about being single parents and the trauma of divorce proceedings, matters that we had in common. I like Kay. “Nothing personal. Litigation polarizes.” I’m sure it wasn’t per- sonal to her, but it was to me. Discrimination cases tend to get very per- sonal, very fast. My life became a matter of public record. Attorneys pored over my tax returns. People testified about expletives I used, peo- ple I chewed out, work I reviewed and criticized, and they did so with the most negative spin they could come up with. I’m no angel, but I’m not as totally lacking in interpersonal skills as the firm’s attorneys made me out to be. So there is a personal side to success: how did I survive the personal onslaught? That the case, in all its parts, was personally successful is because of a lot of people. I attribute that success to me, my firm, my family, my friends, my attorneys, the trial judge and the judges on the appeals pan- HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 367 els, my predecessors, and some people I never even met. People on both sides of the litigation made the case successful. Had I been less accom- plished, my firm less prominent, my family less involved, my attorneys less brilliant, the trial judge less insightful, the appeals panels less lib- eral, my predecessors less sympathetic, and others in the civil rights community less committed, the outcome could have been dramatically different. I might have become a nut case. So let’s talk about the people in the context of the case in all its parts. *** William Glaberson wrote an article entitled, “Determined to be Heard,” which appeared in the New York Times Magazine the day before the 1989 Supreme Court term started.16 I was one of several litigants dis- cussed in that article. When Bill interviewed me for it, he commented that interesting stories often emerge when people have “opposing views, strongly held.” This is such a story. I liked Price Waterhouse, the work, the clients, the culture, and most of the people I knew. The firm had more, and more interesting, op- portunities to develop professionally, personally, and financially than any other business I encountered in my career. Before the litigation I counted many of the partners I knew as friends. They remained friends afterward. The legal fight between me and my firm was, by and large, con- ducted politely and with dignity. The people were educated, experi- enced, skilled professionals who did their very best, very well, to repre- sent their opposing views. *** After my husband’s memorable advice, I asked a friend who was a senior partner at Arnold & Porter, a giant law firm, to recommend an at- torney. He gave me a list of tiny law firms. Big law firms, he said, rarely represent plaintiffs like me. I started calling for an appointment with the first name on the list – no answer. Second on the list was Stein & Huron. At my first appointment, I observed that the office of Stein & Huron oc- cupied less space than the cafeteria at Arnold & Porter. Doug Huron seemed very serious, even a little stuffy. He was a slender, medium- 16. William Glaberson, Determined To Be Heard, N.Y. TIMES, Oct. 2, 1988, at 33. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 368 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 height man with a shock of dark, straight hair and a mustache. He of- fered coffee and stepped into the hall to produce cups from a curtained closet that also contained neat piles of office supplies. He filled the cof- fee pot with water from a little bathroom that, judging from the style and pattern of the tile, had not been redecorated since the 1930s. He struck me as organized, careful, thoughtful, considered in his speech, and ana- lytical, with a touch of the “Renaissance man” mixed into his personal- ity. By contrast, I am ill-organized, sometimes emotional, generally in- tuitive, and occasionally reckless or inclined toward acting on whim. I didn’t know if I would like him, but I was confident that he would add balance to whatever I did and, thereby, keep me out of trouble. I only learned when I went in search of facts for this article that Doug graduated from Swarthmore College (1967) and the University of Chicago Law School (1970). He worked for the Civil Rights Division of the Department of Justice from 1970 until he joined the Carter presiden- tial campaign in 1976. After Carter’s election, he was at the White House as Senior Associate Counsel to the President from January 1977 to January 1981. When I retained Doug, I wanted him to file a lawsuit and I wanted to quit working for Price Waterhouse and get on with my life. I couldn’t get what I wanted. I had to file a claim with the EEOC to get permission to file a lawsuit and Doug insisted that I keep working at Price Water- house until he could make an argument for constructive discharge. Without constructive discharge, I would not be entitled to remedy. The firm’s attorneys bogged down the EEOC process by maintaining that the EEOC lacked jurisdiction because Title VII did not apply to admissions to partnership. After six months, the EEOC finished doing nothing and granted me the right to sue. About the same time, I left Price Water- house. Although I was still pretty miserable as a failed partner, I was re- lieved to escape from the adversarial environment that I had created. The State Department kept me busy professionally as a consultant and three small children kept me busy the rest of the time. With Hishon v. King & Spalding17 undecided, Doug filed a lawsuit in the D.C. Court alleging violation of the D.C. Human Rights Act. There was less of a jurisdictional question about the D.C. Human Rights Act18. The D.C. Court was, however, clogged with criminal cases and 17. 467 U.S. 69 (1984). 18. In fact, after all these years, we still don’t know if D.C. law is broader that Title VII in this re- spect. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 371 and that he thought I provided a good sense of direction and leadership to the Price Waterhouse team. Constructive discharge. The constructive discharge accusation was that any reasonable senior manager in my position would view the decision not to admit as a career-ending action. Doug strongly discouraged me from seeking to be made a partner as remedy for discrimination. As the first case since Hishon, I was al- ready on the bleeding edge of the law. He doubted that any judge would order a partnership to admit me. In spite of his reservations, as remedy, he asked that Price Waterhouse make me a partner retroactive to July 1, 1983, compensate me for lost wages, and pay my attorneys’ fees and court costs. He also asked that Price Waterhouse be enjoined from dis- criminating or retaliating in the future. Doug’s partner, Eileen Stein, tired of the practice of law, so Doug joined a new firm and I gained legal reinforcements for the federal court suit. The complaint filed in September 1984 was signed by James H. Heller. The court’s docketing system entitled the case Hopkins v. Price Waterhouse and numbered it 84-3040. I never saw the federal lawsuit or the accompanying papers. I was in Nepal working on a World Bank pro- ject to determine the organizational placement of and resources needed by a newly created budget and planning office for the Government of Nepal. My attorneys were pleased when Judge Gesell was assigned to the case. By their descriptions the man was brilliant and thoughtful, loved the law and managed his calendar. His parents founded the Gesell Hu- man Development Institute. He graduated from Andover (1927), where my niece and nephew went to school, Yale (1932), and Yale Law School (1935). He was a partner at Covington and Burling, a prominent Wash- ington law firm, on Pearl Harbor day in 1967 when President Johnson appointed him to the federal bench. He could be impatient, especially with the irrelevant, and acerbic when irritated. He was known to glaze over when confronted with statisticians, especially those who testify about statistically insignificant numbers. On the day before Halloween 1984, the judge scheduled a pretrial conference for the first week in March and a trial for the week beginning March 25, 1985. Gibson, Dunn & Crutcher (GD, double entendre intended), a law firm a lot bigger than King & Spalding, represented Price Waterhouse. As we expected, the GD lawyers resisted interrogatories about and HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 372 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 document production requests for sensitive data. They were reluctant to turn over personnel information that might be publicly exposed and even more reluctant to provide compensation data. Doug was a little queasy at taking on a huge, prominent, national law firm. He had no desire to irritate the GD lawyers for fear of being overwhelmed with legal activity if he provoked them. Doug and the GD lawyers made a deal to the effect that partner compensation data would be provided only if Price Waterhouse were found liable (guilty of dis- crimination). They agreed to bifurcate the trial, split it into two parts – one on liability and a second on remedy. Unfortunately, they failed to let Judge Gesell in on their deal. At the end of the trial when the Judge found out about it he was shocked and furious with both sets of attorneys for not seeking a court order to bifurcate. I first met Jim Heller when I went to the Kator, Scott & Heller of- fices to discuss the firm’s response to our document production request. The office, just above Farragut Square, was much more convenient to me than the office of Stein & Huron had been. To enter, I proceeded through the small, unsecured hall that served as a building lobby and took the closet sized elevator to the seventh floor. The elevator door opened on a cozy, cluttered area that served as an office waiting room. It was partially occupied by people typing and others standing around in shirt sleeves talking. Doug’s new office was small, barely large enough for a couple of uncomfortable looking, overstuffed chairs and a drafting table. But that wasn’t really an issue. Doug worked standing up. When I entered Jim’s office he stood, walked around his desk, and shook hands firmly. He wore a white shirt with a slightly curling collar. The fact that it was unbuttoned at the neck was obscured by a nonde- script tie. Although he clearly came to work in a business suit, his coat was nowhere to be seen. Atop his craggy face, a curly mass of short, dark brown, grey speckled hair fell naturally in an appealing state of dis- array. He seemed very serious. He fit perfectly into his cluttered sur- roundings. Boxes and piles of legal stuff – work paper binders, briefs, and law books – covered most flat surfaces and a lot of the floor of his office. Only the center of his desk was relatively clear. It contained a yellow pad and a few loose yellow sheets covered with what can only be described as undecipherable black scribbling. It was years later that I learned that Jim graduated from Harvard College (magna cum laude, 1949) and Yale Law School (1952). From his first years as a lawyer he handled federal employment cases. He served as a volunteer lawyer for the American Civil Liberties Union (ACLU) and as the elected Chairman of the ACLU’s National Capital HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 373 Area affiliate, which he helped found. He organized the affiliate’s legal challenges to the mass arrests and detentions of the “Mayday” 1971 demonstrators against the Vietnam War. Jim asked questions from no apparent agenda. “What happened? What reasons did they give for rejecting you? What did they say? What did you do?” When he seemed to have finished, I asked him what he thought of my chances. He said he was reluctant to answer me until he had pored over the pile of materials the firm had sent over in response to our request that they produce documents, but that as near as he could tell, there was no “smoking gun,” no piece or pattern of evidence that screamed discrimination. He also said that the legal outcome might de- pend on the defense the firm offered. “If they argue that they just didn’t like you, and that’s why they didn’t make you a partner, they might win,” he said. Not liking a candidate was probably an acceptable basis for rejection, as long as it was used indiscriminately. I was not feeling confident when I left. *** In a day when discrimination cases were won by “smoking guns,” situations in which an obvious villain pursued an obviously discrimina- tory course of action, Doug came up with the novel notion that more subtle behavior, stereotyping, can result in organizationally discrimina- tory results without an obvious villain. He based his notion on the pat- tern of remarks in the materials that Price Waterhouse submitted under discovery. These included documents and notes related to partner votes on all partner candidates in my class, and minutes and notes taken at several years of Partner Admissions Committee and Policy Board meet- ings. Doug discussed his theory with Donna Lenhoff of the Women’s Legal Defense Fund. She and Doug had worked together on legal mat- ters in which they shared a common interest. Donna referred him to Sarah E. “Sally” Burns who then worked at the Georgetown Sex Dis- crimination Clinic, but shortly thereafter joined the National Organiza- tion of Women (NOW) Legal Defense Fund. Sally suggested that Doug solicit the testimony of an expert on stereotyping and recommended Dr. Susan T. Fiske, a Harvard PhD who was an associate professor of psy- chology at the Carnegie Mellon Institute. Sally had worked with Susan on a case involving the General Accounting Office (GAO) but Susan never testified because the GAO matter was settled the night before trial. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 376 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 Tom Beyer’s advice, contributed less to the outcome of the case than did the firm’s written record. The firm kept meticulous files of annotated partner candidate evaluation forms, notes of Admission Committee pro- ceedings, and Policy Board minutes. These became public in the discov- ery process. Doug wrote the pretrial brief and prepared the list of witnesses. In the process, he and Jim negotiated with the GD lawyers. Price Water- house wanted to avoid testimony by prominent clients who regarded me more favorably than the firm. Doug and Jim wanted to avoid testimony about my competence. Both kinds of testimony often consume lots of trial time and smear both parties. The GD lawyers agreed to stipulate to competence and Doug and Jim agreed to drop the harassment and re- taliation charge. Doug delivered the pretrial package about a week before the trial. He decided to call Susan Fiske on rebuttal to offer expert testimony to the effect that stereotyping played a determinative role in the Admission Committee’s decision. Doug had never met Susan. He still worried be- cause stereotyping had never been used to support a claim of discrimina- tion and Judge Gesell might not qualify her as an expert. Doug met Susan for the first time when she came to Washington on Friday to prepare to testify in the trial that began on Monday. *** Judge Gerhard A. Gesell reminded me of Moses without a beard. He was close to seventy-five the first time I stood to watch him enter his courtroom. His full head of perfectly groomed, snow white hair was in stark contrast with his black ankle length robe. He had alert, curious eyes and a warm smile. I had watched the interaction between him, his mar- shal, and court reporter at a couple of the conferences that took place be- fore the trial. The steady-eyed, unfailing attention that they paid him gave me the impression they worshipped the man. The Judge lived up to all that Doug and Jim had said about him. He couldn’t believe that I really wanted to be a partner at Price Waterhouse. When I testified about my then current job at the World Bank, he asked in an incredulous tone, “And you want to leave that job and go back and join this crowd? That’s what you’re asking me to do, right?” He had trouble with the scarcity of women in senior positions at Price Waterhouse. When my mentor Tom Beyer testified, the Judge grilled him with “You spotted a star, right? Now then, what happened? HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 377 What happened?” and “Did you ever have a woman project manager work with you on a major matter?” He questioned other testifying part- ners: “Do you need women partners? Do you have women clients?” “You don’t have a very good percentage of women, do you?” “You’re not interested in how someone gets along with clients?” Joe Connor on film impressed him, as Jim said he would. Joe was elegantly positioned center screen as the videotape equipment was moved so all could see him. Judge Gesell leaned forward with a mildly astonished look on his face, eyes glued to the screen, and asked in obvi- ous admiration “How old is this man? Does anybody know?” (He was 53.) He managed the trial schedule by keeping the lawyers moving along. When Doug overran his time after promising twenty minutes to finish an examination, the Judge prodded him with “You said yesterday that you had twenty minutes – we’ve now been an hour.” Of the statistical data submitted in volumes through hours of testi- mony, he remarked “Well it’s unintelligible to me. If you want me to consider it, I have to know what it is. It doesn’t make any sense at all. It looks like gibberish. I am sure it is important in terms of analyzing something, but what is its evidentiary value?” The Judge also justified Doug’s worries about his stereotyping the- ory of the case when he commented “You’ve got to identify who you say are the discriminating officials. You haven’t done it.” *** When Susan Fiske took the stand the plan was for her to talk through the relevant definitions, literature, research, and findings about stereotyping and then state her opinion. Not very far into the definitions, Judge Gesell frowned and commented “You are not telling me anything. You have got to talk to a layman, ma’am. You have got to talk to a lay- man. You are not talking to one of your colleagues and so I have got to understand what you are saying. . .” Judge Gesell wanted the “big picture.” He had another plan. He turned to Doug and asked, “Why doesn’t she give me her opinion? And then tell me what she bases it on . . . If we did that then I think I would have a better understanding of where you are getting.” She offered her opinion: “I am confident that stereotyping played a role in the decision about Ann Hopkins. . . . In lay language I would say it played a major determining role.” Her opinion was based on the same evidence that the policy board used to make partnership decisions. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 378 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 Susan fared well when questioned by the GD lawyer, in part, I believe, because he used a sarcastic tone in what appeared to be an effort to im- pugn the science, which he didn’t seem to know much about. As an example, he asked “Are there abrasive women? Are there mean women? Are there arrogant women? Women who are just plain rude? . . . Now, if I run across one of these women and I comment that she is just plain rude, what must I do to ensure that my own reactions are not springing from some deep seated stereotype that I am carrying around in my bosom?” Susan answered, “Well, if you say she is the rudest person you ever met you should pay attention to what she said because she is unlikely the rudest person you ever met. When people say extreme statements like that, they should be reexamining the basis for those statements.” The GD lawyer also asked: “Did you sample that [data] in any sci- entific way that I can take an empirical number to see if you had a scien- tific basis for that?” No, she answered. And she didn’t count them either, she said. She used no empirical data base and no statistics. She observed, however, “I am an expert in observing behavior and at drawing conclu- sions from written documents” and “You don’t need to have a sample in this particular case because I have the entire population of comments that were made . . . .” He followed up with: “Some of these folks describe Miss Hopkins as . . . overbearing, arrogant, self-centered, abrasive, thinks she knows more than anyone in the universe, and potentially dangerous. Would you think it would be somehow a stereotypical decision to exclude such a person from the partnership, if that was in fact true?” Susan answered “I am not qualified to say whether or not it is true.” Judge Gesell was harder to deal with. Toward the end of her testi- mony he referred to a meeting conducted by Tom Beyer, in which I cut off one of my staff members: He had a group of managers in the company talking about how the job was going, women, new managers, including this plaintiff. He was asking for suggestions on how they ought to proceed. And another woman spoke up and she was told by Miss Hopkins to keep still. It wasn’t relevant. So he said, look, we are all trying to work on this. You shouldn’t be so assertive. A stereotype? Susan responded: “I would suggest that the same behavior coming from a man would be less likely to be focused on as much of a problem.” HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 381 ceptions, by my supporters. Opponents made no sexist comments, he said. Judge Edwards observed that Susan Fiske had a reached a different conclusion. In her expert opinion, stereotypical views were a determin- ing factor in the partnership decision. Was the firm now challenging the expert witness who had been unchallenged at trial? Steve vehemently asserted that it was not. Judge Edwards asked about Tom Beyer’s oft-published advice that I walk, talk, and dress differently. Steve argued that Joe Connor – not Tom – was responsible for telling me what I had to do to take corrective action and Joe told me, in gender-neutral terms. According to Steve, Tom was speaking as a friend. His views did not represent those of the partnership. Judge Green had been relatively silent to that point. She had disap- peared deep into her chair. She held her left hand in front of her face, hiding her mouth. The body language said contemplation, skepticism or disbelief. Clasping both hands in front of her, she leaned forward on her elbows. “Tell me, Mr. Tallent, in a partnership, which partners do not speak for the firm?” she asked, mildly incredulous. She seemed unable to buy the “Beyer-was-speaking-only-for-himself” argument. When the arguments ended, Doug and Jim were of the opinion that the vote would be 2-1 in my favor on liability. They were perplexed by the apparent lack of interest in constructive discharge and declined to of- fer opinions on the outcome. They were right. The decision on liability was split 2 to 1 in my fa- vor. Judge Williams dissented. The decision on constructive discharge was unanimous in my favor. The majority opinion was written by Judge Joyce Hens Green. Early in the opinion she reiterated what Judge Edwards had stated so clearly at oral arguments. The Court of Appeals does not retry district court cases. In order to overturn a determination of liability, we must conclude that it is ‘based on an utterly implausible account of the evidence.’ She then knocked off the firm’s arguments: Price Waterhouse . . . suggests that one partner’s comment that Hop- kins needed to take a ‘course at charm school’ is not sex-indicative, because charm is a quality admired both in men and women. This ar- gument borders on the facetious. . . . The sexist import of the comment is patently clear, particularly as charm schools are inextricably linked, HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 382 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 both historically and philosophically, with the antiquated notion that women should devote their energies to social and cultural affairs rather than business or professional endeavors.19 The firm argues that the District Court erred in stating that Beyer was ‘responsible for telling her what problems the Policy Board had identi- fied with her candidacy.’ Price Waterhouse claims that this task offi- cially fell to the firm’s Senior Partner, Joseph Connor, who made no reference to Hopkins femininity in his meeting with her . . . This con- tention not only rests on the artificial assumption that Beyer, the chief partner in Price Waterhouse’s Washington office and Hopkins’ leading supporter, would be kept completely in the dark as to the Policy Board’s views on her candidacy, but is directly contradicted by the tes- timony of Roger Marcellin, a member of both the Policy Board and the Admissions Committee at the time of Hopkins’ nomination, who stated that he had ‘no doubt that Tom Beyer would be the one that would have to talk with her [Hopkins]. He knew exactly where the problems were.’ Beyer’s advice, of course, speaks for itself.20 The GD lawyers created their own trap on the argument that Dr. Fiske’s testimony was without evidentiary value. At trial they accepted her as an expert. They presented no opposing expert to refute her testimony. They made no attempt to disqualify her on appeal – a course of action likely to have failed. There was no way out. Judge Green noted that the firm’s argument that Judge Gesell made an error by accepting, as evidence, sexist statements that were irrelevant failed: the firm challenges the District Court’s reliance on comments partners made about other female candidates, contending that the trial judge in- tentionally misconstrued these statements in order to find in them evi- dence of stereotypical thinking. One partner stated that he could never vote for a female partner. One successful female candidate was criti- cized for being a ‘women’s libber’ and two other unsuccessful women were characterized as . . . ‘Ma Barker’; and ‘one of the boys.’ It is of course impossible to misconstrue the sentiment behind a categorical opposition to all female partnership candidates. Despite the fact that the firm took no steps to admonish this partner for his statement, which he made just one year before Hopkins came up for consideration, Price 19. Hopkins v. Price Waterhouse, 825 F.2d 458, 466 (D.C. Cir. 1987). 20. Id. at 466-467. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 383 Waterhouse suggests the comment is essentially irrelevant because it was obviously ignored by the Policy Board and was ‘of no further con- cern . . . by the time that plaintiff was proposed.’ The firm also argues that the comment about one candidate being a ‘women’s libber’ cannot be viewed as evidence of discrimination because the woman in ques- tion became a partner . . . These arguments miss the mark. The District Court did not purport to find that any of these comments determined the fate of the women in question, reflected the views of the Policy Board itself, or had a direct impact on plaintiff’s candidacy. Rather, the court relied on them as evidence that partners at Price Waterhouse of- ten evaluated female candidates in terms of their sex. We find nothing erroneous in such reliance; on the contrary, we believe it is eminently correct.21 On these same remarks, Judge Williams disagreed with the majority in his dissenting opinion. He did it with humor: These included one [remark] plainly beyond the pale – a remark by a partner that he ‘could not consider any woman seriously as a partner- ship candidate and believed that women were not even capable of functioning as senior managers.’ So we know that, at least at some time in the past, there was one male chauvinist pig rampant among the Price Waterhouse partners. But there is no evidence that this troglodyte ever influenced a single other partner.22 Doug’s brief and Jim’s oral argument on the issue of constructive discharge must have been persuasive. The issue received as little atten- tion in the majority opinion as it had at oral arguments. Judge Williams agreed with the majority in a dismissive footnote to his dissent. The Court decided in my favor. I believe Jim was more proud about the constructive discharge rul- ing than he was about any of his other accomplishments on my behalf. The constructive discharge ruling in Hopkins established a legal prece- dent in the District of Columbia Circuit. Price Waterhouse appealed li- ability again. *** Washington is full of attorneys and I have my fair share of friends and acquaintances in the business. Few believed the Supreme Court 21. Id. at 467-468. 22. Id. at 476. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 386 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 place in line. I didn’t come all the way from Arkansas to miss the show,” Sheila said as she and Tela left to catch a cab to the Court. I heard Brother thump down the stairs to the first floor to wake the boys, who had fallen asleep with the television running in the recreation room. He thumped by once again in the process of getting the boys into the shower. “Don’t worry about it, Sis. I’ve got everything under con- trol,” Brother said. By all appearances, his statement was false. Bare- footed, with his shirt unbuttoned and a tie draped over his shoulders, he poured himself a cup of coffee. Apparently the boys could only find one tie and were unable to find any socks at all. “Get out of here. We’ll handle it,” said Susan as she coaxed me out of the house. When the door closed behind me, Brother, still barefooted, was making plans to borrow a tie from my next door neighbor. A cab dropped me at Kator, Scott & Heller to meet Jim and Doug. Jim was wearing a new shirt that fit and an elegant tie, both acquired for him by his wife. Over the years, Jim’s wife and I had gently, but persis- tently, teased him about his boring shirts. He always responded with in- difference: shirts were generally irrelevant to him, but not on Supreme Court Day. A convoy of cabs transported me and most of the attorneys from Kator, Scott & Heller to the Court. Susan and Sheila seemed relieved when I caught up with them shortly before noon at the front of the line that stretched for hundreds of feet at the base of the steps that lead to the Supreme Court entrance. They had arrived at ten o’clock for the mid afternoon argument. “Where’s John?” they asked in unison. No one had seen Brother since he took the boys and left the house on a mission to buy socks en route to the Court. Fortunately, he and the boys, completely dressed with ties and socks, arrived as the line was released to proceed up the stairs and into the Court. Susan and Brother had reserved seats in Justice Brennan’s box. She got them through the efforts of a colleague whose family had for genera- tions been friends of the Brennan family. I was impressed with her clev- erness and her good fortune. I was also a little envious. Jim had obtained passes from the Court that guaranteed seats for me and the children somewhere in general seating. The children and I were escorted into the courtroom to the middle of fifteen or twenty rows of high-backed benches by a young, very seri- ous, female marshal. Gilbert and Peter sat to my right and along the aisle. Friends, supporters, and the rest of the family were sprinkled around the back of the full house. Gilbert and Peter and I were unable to see the argument before the Court. The seating was designed to observe HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 387 the Justices, not the attorneys. To the horror of the stern marshal who seated us, the boys, unable to see past the bench in front of them, de- cided to chat with each other. On her quiet command, I moved Peter so that my body separated the two bored boys. The ceiling in the courtroom was easily eighteen feet high. Draper- ies, dark purple, shaded toward burgundy, hung from the ceiling behind the Justices’ seats and along the sides of the general seating area. I won- dered what the acoustics would be like as I stood and coaxed the boys to stand. The Justices of the Supreme Court entered through slits in the drapery. Chief Justice Rehnquist sat at center. The other Justices sat in seniority order, Justice Marshall to the Chief Justice’s far right, Justice Scalia to his far left. Somewhere near the center, Justice O’Connor’s eyes stared through deep grey rings on a ghostly white, stoically expres- sionless face. In spite of a mastectomy ten days earlier, she was on the bench. The press had speculated that she might be absent. The boys fell asleep. I got another stern command from the mar- shal. Sleeping in the Supreme Court is prohibited. Between the dreadful acoustics and the badgering marshal, I barely heard the arguments. Benches prevented me from seeing the attorneys. Susan and John later told me that from their vantage point, they could hear and see everything. Jim argued for me. According to those who could see him, Jim was calm, poised, eloquent and articulate. Had he been taller they might have described him as elegant. Since he and I were close to the same height, most characterized him as urbane. Kathryn “Kay” Oberly argued for the firm. She had been on brief, but a different attorney, Paul Bator, was supposed to argue the case, which was initially scheduled for the first week in October. He had an- other argument before the Supreme Court that same week so the firm’s case was rescheduled. I believe he was terminally ill when Kay replaced him. She didn’t look good in black. All I remember about Supreme Court Day was the presence of fam- ily and friends and the party. My family, the attorneys with families, cli- ents and colleagues from the World Bank and the State Department, friends and neighbors celebrated that Halloween and the party estab- lished a tradition for the litigation. We had a party whenever opinions came out and after every major court event. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 388 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 *** When the Supreme Court announced its judgment in Price Water- house v. Hopkins23 I got a message on my desk at the World Bank that Jim had called. Someone from Kator, Scott & Heller, was en route to the Supreme Court to pick up the opinion. Jim had no clue what it said. When I got to the Kator, Scott & Heller offices I was told that Jim was in the copy room. I found him reading disjointed bits and snatches of the Supreme Court opinion as the copies trickled from what had to be one of the slowest copying machines I have ever seen. Jim told me that he was too busy copying the opinion to read it and it would be a while before he figured out what the Court had said. The “opinion” was actually four opinions. • Justice Brennan wrote the judgment of the Court and was joined by Justices Marshall, Blackmun and Stevens. • Justice White wrote a concurring opinion. • Justice O’Connor wrote a concurring opinion. • Justice Kennedy wrote a dissenting opinion that was joined by Chief Justice Rehnquist and Justice Scalia. The vote was six to three on something described in sixty or sev- enty pages. When Jim finished making copies, I took one and headed for home in a cab. Half way home on the Rock Creek Parkway, the local all news radio station announced that Ann B. Hopkins had won a major vic- tory over Price Waterhouse. I felt better but I was skeptical and won- dered how the local news station had figured it out before my attorneys did. The local news station must have had better copy machines. The firm’s argument that Judge Gesell had made an error in finding discrimination when there was none was rejected by the majority. The Court dismissed the freedom of association argument as having been set- tled in its ruling on Hishon. Doug’s novel theory of the case was af- firmed and Susan Fiske was quoted and given credit as the expert she was. On the critical issue of burden shifting, I won. Price Waterhouse maintained that the courts should not have shifted the burden to them to prove that interpersonal skills problems, all by themselves, were the ba- sis for the denial of partnership. On the issue of evidentiary standard, however, I lost. Price Waterhouse maintained that even if the burden to prove something did shift to them, they had been held to a standard of proof that was too tough. Judge Gesell had required that the firm prove 23. 490 U.S. 228 (1989). HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 391 portion of the profits of the firm based on a number of shares assigned to him. Unlike securities, the shares were not assets that could be bought or sold. A share value was computed at the end of a fiscal year based on the profits made in that year. Each partner was paid an amount equal to the share value multiplied by the number of shares he held. The number of individual shares varied from year to year based on individual perform- ance. I was useless to them on the retirement program about which I knew nothing. And I was not helping them by insisting on reinstatement as a partner. “If you insist on reinstatement, it will make the case harder to win,” Jim had said on more than one occasion. They got an expert economist to help them. Joseph L. Tryon was a Georgetown University economics professor. He held advanced degrees, including a PhD, from Harvard. By comparison to the dozens (maybe hundreds) of economists I must have met at the World Bank, Joe was the most unassuming. Although Doug always referred to him deferentially as Professor Tryon, Joe referred to himself simply as “a teacher.” He never qualified the term, not college teacher, not economics teacher; he was simply a teacher. He never referred to himself as Dr. Tryon or Professor Tryon, or even Mr. Tryon; he was just Joe. I was impressed when we met to discuss the possibility of his testi- fying. I had the impression that he interviewed me to determine if I was acceptable as a client. Joe reminded me of Mr. Rogers, although he was probably a little shorter and bigger boned. In age he could have been a young grandfather. He spoke softly. Complicated principles of econom- ics were explained in simple terms. He was never condescending. *** The legal proceeding to arraign Marion Barry, then Mayor of the District of Columbia, began at the same time and on the same day as the trial on remedy. The army of police and media people and the drastically increased security for the Mayor’s arraignment slowed efforts to get to Judge Gesell’s courtroom. Judge Gesell greeted us on a cheery note. “Glad you were all able to get in. I put a lot of police out there to protect you.” Jim planned to call three witnesses: • Myself, to testify that I wanted to be reinstated as a partner and to describe efforts I made to mitigate damages – to get work to earn an income – after I left the firm. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 392 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 • My former husband, Tom Gallagher, to corroborate what I said about some of my job searches. • Joe, to testify about his estimates of back pay to which I claimed to be entitled and “front pay,” a financial substitute for the part- nership. The GD lawyers planned to call: • The “Big Six,” Representatives of Arthur Andersen, Coopers & Lybrand, Deloitte & Touche, Ernst & Young, Peat Marwick, and Price Waterhouse to testify about compensation and em- ployment in the “Big Six.” • Joe Connor to testify about Price Waterhouse. • An executive search expert to testify about what my earnings should have been if I had appropriately mitigated damages. • An outplacement expert to testify what I should have done to seek high-paying jobs. • A “labor market economics and statistics and human resource management” expert to testify about the economic values of al- ternatives to making me a partner. When I testified, the Judge was grappling with partnership as a remedy: I’m just talking to you as a person and trying to understand. Not trying to say they’re right at all, but they’re all sitting here to keep you out of the partnership and you’re an intelligent woman, you’ve got a lot of experience and you’ve got – you’ve shown you make a living on your own. You’ve probably shown they were wrong, so what is the point of wanting to put yourself into a position of future friction? That’s what I find so difficult to deal with because my responsibility here is an equitable responsibility. It’s a matter of trying to understand and be fair and you – It just seems to me that I’ve got two people that have got their minds made up. They’re going to butt heads together and I have to say to you that if you go back to the partnership, and you may as a result of these proceedings, I’m not saying one way or the other about that, but we’ll be back in here again and again on problems relating to your relationship with these people that don’t want you. Now that’s my trouble and I can’t get an answer.25 25. Transcript, Hopkins v. Price Waterhouse, 737 F. Supp. 1202 (D.D.C. 1990) (No. 84-3040). HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 393 All I could say was “I may be deluded, but I feel that there are peo- ple there who would be happy to practice with me and there certainly are lots of them there that I’d be happy to practice with.” Just before lunch, Jim called my former husband as a witness to corroborate my testimony that I had worked hard to find a comparable job after I resigned. Tom managed to testify to his name, age, and ad- dress. Then Tom sat dumbfounded as Judge Gesell expressed his frustra- tions with the state of the case. Addressing both sets of attorneys, he raised questions about when it became my duty to mitigate damages. The question had been moot in the previous trial where he held that there were no damages because I was not constructively discharged. But he was overruled by the Court of Ap- peals and he was not happy about it. He complained to the GD lawyers for failing to appeal constructive discharge to the Supreme Court. He chastised both sets of attorneys for making the bifurcation deal without letting him in on it. He was displeased with getting the case back from the Supreme Court. In spite of Judge Gesell’s obvious belief that the Court of Appeals’ ruling on constructive discharge was the law governing this case, Ted Olson politely disagreed. Tom was excused from the witness chair. The Judge declared his intention to go to lunch. Joe Tryon’s testimony took more time than mine, almost half a day. He did a first rate job. He had mastered the complexities of the compen- sation and retirement systems of both the World Bank and Price Water- house. He unflappably responded to a steady stream of questions from Judge Gesell. Joe never cluttered up the testimony with specious, im- pressive sounding numbers or fake precision. Every interest rate, dis- count rate, cost of living or other factor that he used was taken from an unassailable source. The bottom line according to Joe amounted to a lit- tle more than half a million in back pay and about two and a half million in front pay. *** The GD lawyers wanted to introduce compensation data from each of the “Big Six” to show how much money I could have made had I gone to work for one of them when I left Price Waterhouse. They wanted to do so without calling representatives of each of the firms to introduce the data into evidence. They asked Doug to stipulate to related documents. Doug declined. It irritated GD. For lack of stipulation, each HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 396 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 lieve that that is where the law is and I didn’t mean to suggest anything more, your Honor. I don’t think anybody is quite responsible for the posture of this case. Certainly I am not saying that the two lawyers together bear all of the responsibility for it. Somebody was going to get the first partnership case. This is the biggest partnership anybody could have imagined to have that case happen to. Hishon v. King & Spalding could have had it happen to it. It was a firm of about a hundred people with a former At- torney General who I’m sure didn’t believe that they violated the law. That woman decided not to press that issue, but somebody was going to do it because it’s an important part of Title VII. Now I really do think, your Honor, that if you hear testimony and take it to heart, and again I shouldn’t cut off a judge in a bench trial, but I do want to note for the record, if you take to heart Mr. Connor’s, meri- torious partner that he is, projection of how the policy board, which he no longer serves on, will deal with a decision which might come down in Miss Hopkins’ favor saying not only was there enough discrimina- tion to warrant relief but I ordered the relief, because that is what the law calls for. If that’s where you Honor comes down and if the policy board of Price Waterhouse says we can’t accept that, we’re sure we were right before, then I don’t know where we’re ever going with these cases. But it’s going to be true in every other Title VII case, corporate versus partnership level. At this size, level doesn’t make any differ- ence.28 Shortly thereafter, we broke for lunch. “That speech either lost the case or made you a partner,” Jim said. Joe was followed by a pair of expert witnesses, representing an ex- ecutive search firm and an outplacement counseling firm. The executive searcher testified that I should easily have been able to find a position at $80,000 - $200,000 per year when I left Price Waterhouse in early 1984. Furthermore, my income in 1990 should have been at least $200,000 per year. The outplacement counselor offered his expert opinion that I should have sent out at least 50-60 resumes as part of my Washington based job search. I should also have contacted 200 search firms nationwide. If Judge Gesell believed the two experts, then I clearly failed to mitigate damages adequately. On one hand, I should have been able to earn a lot 28. Id. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 397 more money than I did. On the other hand I failed to look hard enough for another job. Jim asked the outplacement counselor how he would advise a per- son to handle a litigation situation such as mine and what advice he would give to the litigant who had to participate in depositions, trials, or other legal proceedings. His response was “Oh, I would never advocate that anybody offer that as a piece of information in seeking a job.” “I would probably ask them to stretch their imaginations and say that they had some sort of legal business to take care of. I would not suggest to them to say that I am suing a company that I was employed by.” The final expert and final witness for the day and the trial was “the figure man” as Judge Gesell referred to him. By contrast to Joe Tryon, Dr. Paul J. Andrisani was a “labor market economics and statistics and human resource management” specialist. Dr. Andrisani irritated Judge Gesell about five minutes into the direct examination. He was testifying to what he believed I should have earned had I stayed at Price Water- house and been nominated for the partnership the year after I was held. The Judge protested. I don’t understand this whole scenario. It doesn’t bear any relation to this case. We’re talking about somebody else’s case. We’re not talking about this case. This woman couldn’t have stayed at Price Waterhouse. She was forced out. She was constructively discharged. So all of that supposition is pure hypothetical. In addition, if you carry it on as he apparently is about to do, he’s carrying it out in a period when I’ve been hearing tes- timony all day that they don’t want her anyhow. So you’re talking about something that has no relation to the case and I’m willing to have you make it as an offer of proof and I’m not critical of the witness because he’s doing what he was asked to do, I’m not go- ing to pay any attention to it. It hasn’t anything to do with this case. It’s just off the mark.29 Then Judge Gesell realized that the constructive discharge issue re- mained unresolved to the GD lawyers. 29. Id. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 398 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 You’re assuming that – The assumption is that she wasn’t construc- tively discharged?” “I thought she was. Then I was wrong. I thought she could have stayed. I thought she could do just what this man was talking about. But I was told I was wrong. And that’s our system. I was told by the Court of Appeals that I was wrong. And that’s an ac- cepted fact in the case and I don’t see why we can go ahead.30 The GD lawyer explained that Dr. Andrisani’s testimony also supported an alternate theory of the case, under which the Judge might order my return to the firm as an eligible partner candidate, instead of a partner. Judge Gesell gave his views on the alternate theory. Well, you see, you’ve asked – you’ve proposed to me that I declare that she’s eligible – to be considered eligible for partnership and then Mr. Connor got on the stand and indicated that they’d obey an order to make her a partner but otherwise he made it clear she would never be a partner, so making her eligible to be a partner would be utterly nonsen- sical . . . That’s the only way she’s going to be made a partner, by or- der.31 The GD lawyer moved on to front pay, a key element of which is an es- timate of future earnings. The calculation involves factors similar to those used to predict the growth of the economy of the United States. (As any newspaper will tell you, these futuristic estimates are wildly un- reliable.) He suggested a structured settlement or a structured award as a means of getting around the estimating vagaries. The idea failed to appeal to Judge Gesell. Well, you could, I suppose, fashion a front pay approach that would wait until the year’s gone by and then each year come into court and we’d have another lawsuit and talk about it and fix the figures for that year in relation to the taxes and the interest rate and then we wait for another year and another judge would do it. Maybe some of my law 30. Id. 31. Id. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 401 broad grin, Judge Gesell said “I don’t seem to agree with your number Mr. Heller.” Ted Olson suggested that the lawyers work out the detail and get back to him at a later date. Judge Gesell would have none of it. He made perfectly clear the fact that he was going to sign the order that afternoon, even if he accomplished nothing else. One of the other attorneys made another attempt at the calculation – still wrong. Finally Price Waterhouse’s in-house counsel, who had never uttered a single word in all the years of litigation, computed the right number, $422,460.32. “It always helps to have an accounting firm handle the numbers,” Judge Gesell remarked. He was in a jovial mood. The attorneys retired to Judge Gesell’s chambers, where the order was printed and signed on the spot. Doug gave me a copy when we met in the hall afterward. As I walked away from the court room, I ran into a woman who worked for Judge Gesell. She smiled warmly and said “I hope you enjoy your new job, Miss Hopkins.” Price Waterhouse appealed again. *** Judge Harry Edwards was back on the appeals panel, this time with Judges Abner J. Mikva and Karen L Henderson. Chief Judge Mikva seated himself and greeted the attorneys in a friendly mellow voice. He leaned over the bench to introduce Judge Henderson, the newest member of the Court of Appeals. It was her first day on the job. Judge Edwards, who sat to Judge Mikva’s right, needed no introduction. He had been the chief judge at the last argument. Ted Olson went first. The gist of his argument was: • Ann Hopkins had genuine and serious interpersonal skills problems. Her problems and the complaints about her were not a pretext for discrimination. They were real and serious and gender-neutral. These same problems had been grounds for holding or rejecting males. Some of the criticisms of Ann Hopkins did show some indication of sexual stereotyp- ing, but it was unconscious. • Her serious problems and stereotypical biases both contrib- uted to the decision to hold her over for consideration in the next year, a common practice. She was not rejected. She HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 402 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 had a chance. 85% of those held over became partners the next year. She, however, blew it. • Her own unreasonable conduct destroyed her chances for the partnership. She left. Although she had plenty of oppor- tunities to work elsewhere, she ignored or rejected them. • Price Waterhouse may have committed an error in the evaluation process. It did not, however, commit an error in weighing the negative against the positive factors. • Gender-neutral issues were overpowering. Twenty of twenty-one comments were negative in some manner. When Price Waterhouse investigated, it found a pervasive theme: unacceptable interpersonal relationships. Three partners testified to that effect at trial. Judge Edwards, who had been sitting back in his chair to this point, leaned forward on his elbows. He had heard the story before. Mr. Olson, your argument would be more properly presented to the District Court. Judge Gesell asked you to resubmit your evidence there. Now you raise factual arguments before the Court of Appeals. . . This Court of Appeals can’t go through the entire record. What you are asking for is impermissible.35 Ted argued that Judge Gesell never weighed the evidence and failed to evaluate gender-neutral comments. Judge Edwards disagreed. • Judge Gesell reviewed the trial transcript; considered briefs pre- pared by both sides, listened to their arguments, and decided that, at best, the facts were in equipoise. Price Waterhouse did not meet its burden by a preponderance of the evidence. • The gender-neutral comments were tainted. Judge Mikva joined Judge Edwards and the two took turns reading quotes from Judge Gesell’s opinion and that of the Supreme Court. The 35. Transcript, Hopkins v. Price Waterhouse, 920 F.2d 967 (D.C. Cir. 1990) (No. 90-7099). HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 403 evidentiary record was in balance. The record was not discarded. It was in balance. Judge Gesell said so. Justice O’Connor said so. Ted tried again. • Although some comments were affected by stereotyping, others were unaffected. • Judge Gesell considered none of the unaffected comments. • “It’s like throwing out all the apples in a barrel because of a few bad ones. Judge Mikva joined the fray. “You didn’t submit any more evi- dence.” With one arm over his head, he expanded on the apple barrel metaphor, “How hard is it to hold up an apple and say ‘This is a good apple?’” “You were told by several judges that no matter how good you thought your evidence was, it wasn’t,” Judge Edwards retorted. “The Supreme Court didn’t disagree with Gesell, so you lose again.” As he was running out of time he got to his arguments on the nature of my legal injury and the related remedy. He argued quickly about the lack of injury. Ann Hopkins was not rejected; consideration of her part- nership was deferred. Her own actions, as opposed to an act of the part- nership resulted in her not being proposed the second time. With a few seconds remaining, Ted got to remedy. He referred the panel of judges to Price Waterhouse’s brief, which he summarized. • Partnership as a remedy is not described in Title VII or its legislative history. • Partnership is an inappropriate remedy where the plaintiff took herself out of the running. • She unreasonably prevented herself from being a partner. • She also failed in her duty to mitigate • She refused to go on interviews. • At most she is entitled to receive back pay for the one year that she was in suspension. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 406 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 Title VII. The Congress, not the courts should decide if a partnership can be ordered under Title VII. What a hoot! Here we were, arguing before the Court of Appeals for the second time, and after two trials, an appeal, and a trip to the Su- preme Court, Ted Olson wanted an act of Congress. Judge Mikva asked Ted:”Suppose that an employer said all em- ployees who do ‘such and such’ are eligible for a $50,000 bonus and a person was denied it because she was a woman. Would that violate Title VII?” Ted acknowledged that it would. “What in the statute prohibits the same remedy if partnership is substituted for $50,000?” Judge Mikva asked. “What if it were a vice presidency of a company?” “You don’t think that a court can order the remedy?” he asked rhetorically. “Until a few years ago, we couldn’t order universities to give tenure,” he quipped. Ted’s position was unchanged. The court could not order a partnership. “So a court could order someone to be made president of General Motors but not a partner in an accounting firm?” Judge Mikva asked finally. “Not until Congress recognizes non-employee relationships,” re- plied Ted. *** On Tuesday, December 4, 1990 the Court of Appeals unanimously affirmed Judge Gesell’s order on all issues. The liability issue had been to the Supreme Court. It was dead. The opinion of the Court of Appeals was written by Judge Edwards. In the first sentence of the opinion, I immediately sensed a desire to be rid of the matter. This case, before this court for the second time, arises from a decision by appellant Price Waterhouse to deny partnership to one of its em- ployees, appellee Ann B. Hopkins. We are again asked to review a finding by the District Court that Price Waterhouse’s denial of partner- ship to Ms. Hopkins violated Title VII of the Civil Rights Act of 1964 . . . and to assess its shaping of an appropriate remedy.36 Unlike Judge Gesell’s memorandum, it was not difficult to find what the Court of Appeals decided. Very early in the opinion, Judge Edwards wrote the overall ruling of the Court on the issues of liability and rem- edy: 36. Hopkins v. Price Waterhouse, 920 F.2d 967, 968 (D.C. Cir. 1990). HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 407 Having found appellant liable under Title VII, the District Court or- dered Price Waterhouse to admit Ann Hopkins . . . and to pay her . . . back pay . . . . On this appeal, Price Waterhouse challenges both the District Court’s finding of liability and its remedial order that Ms. Hopkins be made a partner. We can find no merit in either of these challenges.37 For the second time, the Court of Appeals stated its position on constructive discharge. The position was unchanged. “We find no error in Judge Gesell’s finding that Ms. Hopkins was constructively discharged when Price Waterhouse informed her that she would not be renominated for partnership.”38 Betsy Hishon was mentioned once again when Judge Edwards wrote that Judge Gesell had the authority to order a partnership. Price Waterhouse also asserts that the District Court had no authority to order admission to partnership to remedy a Title VII violation . . . Given the Court’s judgment in Hishon, and after a careful review of Title VII, its legislative history and the case law interpreting it, we find that the District Court clearly acted within the bounds of the remedial authority conferred by the statute.39 The final page of the twenty-nine page opinion summed it up. “For all of the foregoing reasons, the judgment of the District Court is affirmed. So Ordered.”40 Judge Henderson added a concurring opinion to express her dissat- isfaction with the outcome. She was not a fan of Judge Gesell’s finding on discrimination. I concur in the majority’s decision, but only because the narrow scope of our review compels affirmance. The district court found as a fact that the decision to defer consideration of Hopkins’s partnership can- didacy was a product of intentional discrimination. While I view this finding as highly questionable, in light of the all but overwhelming evidence that the decision resulted from Hopkins’s own, well-attested 37. Id. at 969. 38. Id. at 974. 39. Id. at 975. 40. Id. at 982. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 408 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 personality deficiencies, I cannot say it is ‘based on an utterly implau- sible account of the evidence’ so as to warrant reversal of the district court’s decision.41 And she did not want to reward me with partnership as remedy. I also concur, but even more reluctantly, in affirming the award of a partnership interest under the circumstances here. . . . In my view, Hopkins’s conduct toward other employees and partners both before and, particularly, after her candidacy deferment casts great doubt on her ability to function effectively with the other Price Waterhouse partners. Nevertheless, I cannot say that under these circumstances the district court abused its discretion in awarding Hopkins a partnership interest.42 RETURN TO PRICE WATERHOUSE It was two months after the Court of Appeals ruled before I re- turned to the firm. I was a little reluctant to leave the World Bank where I liked the people and I was getting the hang of being a bureaucrat. I was also reluctant to return to a firm that I worried I might not know. After all, by the end of 1990, I had spent five years working for the firm and seven years in litigation. The prominent partners I had worked with in the early eighties were then running the firm. Tom Beyer was in charge of consulting and Lew Krulwich was in line right behind him. I would reenter without the strong mentors I had as a senior manager. Most of the OGS senior staff I had worked with became partners during the liti- gation. I knew nothing about how to “be a partner,” while my legally- established peer group, the class of 1983, had had seven years to learn the ropes. On return to the firm in February 1991, I was sent for new partner orientation and technology training in Tampa, Florida, probably to keep me out of the press and to teach me something about the firm’s informa- tion technology methodologies. Neither happened. Someone from the television show “What’s my line” called, and actually reached me in Tampa, to ask me to appear on the show. I declined. The methodology was voluminous, irrelevant to what I did, and distastefully uninteresting. Furthermore, I later learned that few people, partners or staff, used it. Every consulting organization had to have one, but methodology never 41. Id. at 982-83. 42. Id. at 983. HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 411 The Price Waterhouse I knew vanished in 1998 when Price Water- house merged with Coopers & Lybrand. The new firm, Pricewater- houseCoopers, bore little resemblance to the old. My mentor into the partnership, Tom Beyer, put it well when he and I were speakers at a re- tirement dinner for a staff member that we had worked with in the eight- ies. He said “This is not the firm we fought for.” I retired from PricewaterhouseCoopers in 2002. Shortly thereafter, that firm sold its consulting practice to IBM. The remaining firm is a global accounting and financial services firm, one of the “Final Four” left from what was the “Big Eight” in 1983. WHAT CHANGED? Twenty years ago when I sued Price Waterhouse, the firm lacked even a published equal employment opportunity policy. When I rejoined the firm in 1991, human resource (HR) policy was published in a classy, bound volume about the size of Fortune magazine. HR professionals and processes abounded. The firm had retooled the partner candidate evalua- tion forms, but not significantly – the instructions included language to prohibit gender-based comments. The evaluation process and criteria hadn’t changed much. I grew up in my career without many HR professionals. Sure, there was an HR Office where one went to register hiring, firings, promotions and the like. But I rarely saw an HR person in most of what I did, which was working with people to write proposals and do projects for clients. Somewhere in time, people became resources like cash or trees and we needed many human resource professionals to manage them. I have listened to HR and related professionals employed by part- nerships, federal agencies, and corporations. These people described elaborate, time-consuming processes used to handle allegations of dis- crimination, processes veiled in confidentiality or secrecy and designed to protect the rights of both accuser and accused. Some talked guardedly about matters settled, without regard for merit, for small amounts of cash to avoid embarrassment or bad publicity. Others talked about “zero tol- erance” policies that resulted in summary firing for certain kinds of dis- criminatory behavior. In my experience, HR professionals, in and outside the firm, were generally talented, conscientious, caring people, but their role was, at least partly, to manage a process designed to protect the corporate inter- est from lawsuits. My comment to them was always that an appropriate corporate culture and managers who act on that culture are far more ef- HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 412 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol.22:357 fective in eliminating discrimination than HR processes that seek to dis- cover, examine, investigate, protect, and (usually a long time later) rem- edy discriminatory acts. When I attended my first meeting of the partners and staff who worked in my practice area in OGS, the staff included two Asian women. They were new to the staff and recent graduates. One graduated with an MPA from the Kennedy School at Harvard, and the other earned a BA at Wellesley. They observed that they constituted most of the Asians on the OGS staff and asked why Asians were so underrepre- sented. A senior manager with many years tenure, who was heavily in- volved in recruiting, and the partner in charge of the practice area, both white males, engaged the two Asian women in a discussion. The men talked about how hard it was to recruit minorities. There just weren’t enough able minorities available in the places we recruited. The discus- sion moved to where we recruited. The women suggested that maybe we weren’t looking in the right places; the men held that we might have to lower our standards if we looked elsewhere. The senior manager summed it up “You can’t catch sharks in Lake Erie.” I annoyed both men by saying “Find a better body of water.” We had better look for dif- ferent fish in different waters. My comments in that meeting marked my debut as the office spokesman for diversity and a culture that seeks to encourage diversity. Beginning in 1992 when I returned to OGS, I worked with HR and other partners and managers as an outspoken advocate for a culture that prized diversity and sought and nurtured it in the work place. I acted on perceived discrimination (in consultation with HR and without a lot of process) and encouraged other managers to do so. Five years later, in 1997, my OGS made more money than most of the rest of the firm and had a staff that was sufficiently diverse in that protected groups did not feel like minority groups. Only half of the thirty or so partners were white Anglo-Saxon men. The composition of the group of partners and staff that served clients was quite different from that in 1983 and even in 1991. Something changed. I believe it was in the culture. Outside of my office, in the rest of the U.S. firm of Price Water- house, I believe the demographics (or the culture) were different. When I sued in 1983 only 1% of the partners were women. By the time I re- turned to the firm in 1991 the number of women partners had risen to a whopping 3%. I don’t believe the number ever topped 10% and the larg- est number of minority group partners was in my office. While I was a partner, Price Waterhouse merged its affiliated firms worldwide to form a global partnership. I went to at least one global HOPKINS FIRST FORMAT.DOC 6/14/2005 5:02 PM 2005] PERSONAL ACCOUNT OF ANN HOPKINS 413 partner meeting and was hard pressed to find ten women in hundreds of men. After the 1998 merger with Coopers & Lybrand, I attended a “women’s partner meeting,” a Coopers & Lybrand remnant of which I mildly disapproved. A huge display calendar showing significant events related to women in the firm occupied several linear yards of wall space. I wasn’t on it. The self-proclaimed “leadership team” of partners from the national office came to the meeting briefly to introduce themselves and demonstrate how important the women partners were to the firm. They seated themselves at different tables around the room. They needed no introduction; with one exception they were all men. ADVICE I have listened to hundreds of litigants or potential litigants describe their situations in the work place and ask for advice about what to do. These people included women, men, African-Americans, Asians, His- panics, gays, and lesbians. They were attorneys, accountants, consult- ants, polygraphers, research scientists, doctors, administrators, clerks, bureaucrats, and senior executives. They were all between 25 and 60 years old. Each felt displaced by someone in the corporate majority who was less qualified. Most were sad and frustrated. Many were angry. Many felt powerless. A few believed they could make money out of their plights. Another few, typically attorneys who had retained attor- neys to represent them, were absorbed in managing their own litigations to the exclusion of getting on with their lives. I offer advice reluctantly. That said, I suggested to most of the po- tential litigants that they ask themselves: If I win, will the prize be worth the price? At what cost is litigation worth it? Is one more grade or step in the civil service hierarchy worth a year of life struggling through internal administrative processes and the EEOC? What’s the human cost in time lost to self, family, and career? Considered in the greater context of life, is this the hill to die on? In my case, I failed to consider any of these questions until it was too late. I got into litigation emotionally, almost on a whim. I fired the opening round with a law suit and then I was dragged through years of appeals. It seemed ill-advised to quit because each trial or appeal was favorable to me. In retrospect, perhaps I would advise: be sure to blow the opposition away with the opening round – you may not get a second shot. I also suggested to those who appeared not to have done so that they get on with their lives. One potential litigant sat for months at a