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PRICE WATERHOUSE V. HOPKINS :
A PERSONAL ACCOUNT OF A
SEXUAL DISCRIMINATION PLAINTIFF
Ann Hopkins *
I NTRODUCTION
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 S O ORDERED: MAKING P ARTNER THE HARD WAY , by Ann Branigar Hopkins.
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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
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I picked it up. State wanted an analysis leading to design recommenda- tions for a worldwide financial management system. It planned two small contracts with different companies, each of which would inde- pendently do the analysis and design. State would then select a design and require the two companies to compete for a big contract to imple- ment the design. This type of contract was called a “fly-off” based on a type of aircraft procurement whereby two competing contractors would each build one aircraft. After flying both of them, the government would award a contract to build the better aircraft in volume. The State analysis and design proposal was the first time I worked for Thomas O. Beyer, the partner in charge of consulting in OGS. Tom was a Harvard MBA. His father had been the managing partner at Touche Ross. Tom transferred from Boston the summer my son Peter was born. He was a lean man, on the short side, with fierce steel blue eyes. He was bald on top with very curly, closely cropped grey hair on the sides. Decisive, direct, his demeanor scared some, offended others. When he took over the consulting function, OGS was a cost center of the firm’s national office – it was not required to make a profit. He had a new and aggressive charter for OGS. It was going to be a profit center; it was going to grow exponentially; and State was going to be an engine for that growth. Tom became the partner in charge of my work at State. Of all the people for whom I worked in my career, none has more of my professional respect, regard, or admiration than Tom Beyer. Whatever I needed to win the State analysis and design proposal he provided. After phone calls from Tom to partners in other offices, people I needed flew in from wherever they were to do whatever I needed done. State selected Price Waterhouse for one of the “fly-off” design con- tracts. As the second, State chose the computer consulting company for which I had briefly worked. After two and a half years, travel to thirty or forty countries, and a 26 volume proposal, Price Waterhouse won the $30-50 million implementation project for State. At the time, that project was the biggest consulting deal the firm had ever done. The senior part- ner of the firm, Joseph E. Connor, signed the contract for the firm at a formal, State-arranged award ceremony that included a lot of civil ser- vice people who were prominent in federal financial management. In August 1982, at the end of a nomination process that began in June, the partners in my office, Tom and Lew leading the charge, pro- posed me as a candidate for the partner class to be admitted in July of
- I was the only woman among 88 candidates. Six of the firm’s 667 partners were women. About 10% of the partners were consultants. When I was told I would not be among the 47 members of the partner
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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.
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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. Hopkins^9 (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
- 618 F. Supp. 1109 (D.D.C. 1985).
- Hopkins v. Price Waterhouse, 825 F.2d 458 (D.C. Cir. 1987).
- Price Waterhouse v. Hopkins, 485 U.S. 933 (1988).
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
- Id.
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courts for reconsideration by the lesser evidentiary standard. 11 The Dis- trict Court would have to reconsider the firm’s argument that it would not have made me a partner even if there had been no discrimination and then decide whether it was convinced by a preponderance of the evi- dence. It had not been convinced by clear and convincing evidence. What made this case famous, among other things, was that the Su- preme Court recognized stereotyping as a way of showing evidence of discrimination and it characterized cases in which an employment deci- sion is made for both lawful and unlawful reasons as “mixed-motive” cases. In such cases, once a plaintiff proves that an unlawful reason is a substantial or motivating factor in the decision, the burden of proof shifts to the employer to prove that it would have made the same decision in spite of the unlawful reason. The Court went on to rule that an employer may avoid all liability - including attorney’s fees and court costs – if it succeeds with this “same-decision” defense.^12 The Price Waterhouse decision was one of nine Supreme Court de- cisions issued in May and June of 1989 that narrowed in some respect the scope of key civil rights laws. Partly in response to the Court’s deci- sions, Congress passed the Civil Rights Act of 1991. In response to Price Waterhouse , Title VII, as amended in 1991, provides: “Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employ- ment practice, even though other factors also motivated the practice.”^13 The 1991 amendments also overruled Price Waterhouse ’s holding that an employer could avoid Title VII liability entirely by showing that it would have made the same employment decision in spite of the dis- criminatory motive. An employer violates the law if unlawful discrimi- nation is a motivating factor for the employment practice. The employer can, however, limit its liability if it shows that it would have taken the same action absent the discrimination.
Hopkins v. Price Waterhouse on Remand
When the District Court judge got Hopkins back after appeals he was irritated at being overruled by the Court of Appeals for the D.C. Circuit and then told by the Supreme Court to reconsider the evidence.
- Hopkins v. Price Waterhouse, 737 F. Supp. 1202 (D.D.C. 1990).
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
- 42 U.S.C. 2000e-2(m) (2000).
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W HY THE CASE S UCCEEDED
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-
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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-
- William Glaberson, Determined To Be Heard , N.Y. TIMES, Oct. 2, 1988, at 33.
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priority-setting criteria gave precedence to criminal cases over civil cases. In the D.C. Court we expected major schedule delays. The D.C. lawsuit was short-lived because the Supreme Court ruled on Hishon , enabling me to file a federal lawsuit. After almost a year of what I perceived to be “diddling around” with the EEOC and DC Supe- rior Court, I was excited at the prospect that something might happen. But what? I wondered. I dialed information in Atlanta to find Betsy His- hon’s phone number. After a few referrals from polite people at former phone numbers, I found myself listening to an exuberant voice with a dramatic southern accent. I offered my congratulations and told her that I was next in the legal line behind her. She told me about her legal battle, which started in 1978, and how she failed to get into the federal court system for lack of jurisdiction, a result affirmed by the Court of Appeals for the Eleventh Circuit that serves Atlanta. I thanked her for her efforts on my behalf – after all, had she not started her legal battle six years ear- lier, I might have had to fight that one too. She wished me luck. We both hoped that my case would take less time than hers. Betsy and I stayed in touch regularly and became friends over the years. We talked before and after every court event and every opinion. When she accompanied her husband, also an attorney, to annual meet- ings in Washington, we usually met for drinks or dinner. The summer after oral arguments on the first appeal, Betsy and I were part of a sym- posium on “Women and the Constitution” held by an organization asso- ciated with the Carter Library of Emory University. We were on a panel that included Sara Weddington, the attorney who, at age 28, argued Roe v Wade before the Supreme Court. I took my daughter, Tela, who was then eleven, to Atlanta for the event. She was less interested in discus- sions of women or the Constitution than she was in the glass elevator that ascended twenty plus stories through the hotel atrium. We had din- ner with President Carter and Rosa Parks. It was hardly intimate. As I recall there were about three hundred guests. The President and Mrs. Parks sat at the head table. Tela, who wanted to shake hands with the former President, walked the thirty yards across the hotel dining room and discussed the matter with a security officer at one end of the table. President Carter and Tela spoke, shook hands. He kissed her on the fore- head. As the firm’s appeal was going through the Supreme Court process, the media started to refer to it as a landmark. Betsy and I met at the Grand Hyatt downtown. Over grins and gin and tonics, we toasted each other as “Landmark 1” and “Landmark 2.” She talked about her experi- ences with briefs and oral arguments. I discovered that her case and
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mine were both heard on Halloween. We laughed at the fact that her amicus briefs outnumbered mine twenty to four. We couldn’t figure out if that was good or bad. After I returned to the firm, Betsy developed cancer and asked me to fill in for her as keynote speaker at a meeting of the South Carolina Women Lawyers Association. I did so. When she died a few years ago, her brother called from Atlanta to tell me. I miss her. She cheered me up and boosted my morale regularly over the years of litigation. I wonder who helped her. I never asked.
***
Doug prepared to file suit in federal court. Because federal court schedules are rigorously controlled, we expected a federal case to be re- solved quickly – in less than a year or so. Doug reviewed and revised discovery requests used for the EEOC to make them appropriate for a federal case. He asked for a lot of private or confidential data, including partner candidate evaluations, minutes of partner admissions committee and policy board meetings, and compensation data that might be needed to determine lost compensation or other damages. We both knew Price Waterhouse would resist providing any information about partner com- pensation. Such information was closely guarded, even from the part- ners. In the federal court complaint Doug made three accusations: dis- crimination, retaliation and harassment, and constructive discharge. Discrimination. The accusation of discrimination was based on nothing more than the fact that the reasons for rejection seemed incon- sistent with my business accomplishments. The only information we had at that time was copies of my performance appraisals (glowing). There were no sexist comments in evidence about me or anyone else.
Retaliation and harassment. The accusation of retaliation and harassment was based largely on the fact that my technical work was subject to an extensive internal review process that resulted in a declara- tion that the work my team was doing for the State Department was “technically not in conformance with the firm’s high standards for qual- ity.” About the same work, the Comptroller at the State Department was prepared to compare me to every partner he ever met, and not to the benefit of the partners. A senior Foreign Service Officer, who later be- came ambassador to Nicosia, was prepared to comment that I was a very good project manager, that he tried to hire me for the State Department,
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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
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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.
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tion. At close to 5:00PM, just before we quit for the day, Doug asked Tom what advice he offered to better position me as a partner candidate after I failed the first time. Tom was trying to be helpful when he offered his advice. It was often quoted in the newspapers: “... walk more femin- inely, talk more femininely, dress more femininely, wear makeup and jewelry.. .” That remark was the closest thing to a smoking gun that we ever found. Doug contained himself until the revolving door whooshed behind us as we left the building. Then the normally somber man broke into a broad grin and said “The walk, talk, dress femininely stuff didn’t hurt.” The grin stayed on his usually serious face for most of the time it took us to walk the four or five blocks back to Kator, Scott & Heller. The first time I saw Jim in legal action was in a deposition that started late in the morning on a Friday. I was tired. Someone was using a jackhammer on one of the floors above the GD offices. The noise was conducted through the concrete superstructure of the building and rever- berated through the normally quiet conference room with nerve wrack- ing irregularity. Jim’s first legal action on my behalf was to comment, on the record, that if the noise got too bad we would have to move or stop and reschedule. We had to take one deposition on videotape. Joe Connor, the Chair- man and Senior Partner of the U.S. firm of Price Waterhouse, had busi- ness plans that called for him to be out of the country during the week in which the trial was scheduled. When the GD lawyers suggested that the trial date be moved to April to accommodate Joe’s plans, the Judge suggested that the deposition be videotaped and that the tape substitute for Joe’s testimony at trial. He managed his calendar. The trial date re- mained fixed. Doug and Jim didn’t like the videotape agreement (you can’t cross- examine a videotape), but they liked less the prospect of an appearance before Judge Gesell to argue about the presence of a witness who was less than critical to my case. So Jim went to the National Office in New York to take Joe’s deposition. The deposition went well for the firm. According to Jim, Joe had all of the media presence of a first-rate politician. He frequently answered the question that he preferred to answer instead of the question he was asked. Jim summed it up when he said: “I understand how he became senior partner of the firm.” Jim was convinced that the Judge Gesell would be positively impressed. The deposition process taught Doug and Jim about the partners, the partnership, and the admission process, but with rare exception, notably
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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?
