When she first brought her lawsuit claiming sex discrimination against Price Waterhouse more than a decade ago, Ann B. Hopkins acknowledges that the action made her a pariah in the industry. In a strikingly candid evaluation, Hopkins was told that even though she brought business to the firm, she was being passed over for partnership because she was too aggressive, particularly for a woman; she was advised to be more feminine, get new clothes, get a haircut. Instead, she got a lawyer. In 1989, the Supreme Court held that comments about femininity could amount to gender discrimination, a victory for Hopkins that ultimately resulted in her return to the firm as a partner two years later. But the Court also held that so long as there was a non-discriminatory reason justifying a firm decision not to promote a woman, even comments like these would not prove sex discrimination.

Lawsuits, particularly class actions, have long been used as a tool to open entry level jobs to women. When I was a law student, two decades ago, a number of Wall Street’s top law firms were operating under consent decrees with stated goals for entry level hiring. But promotions were considered a much different matter. In a professional context, where decisions are subjective to begin with, there is almost always some non-discriminatory reason that can be cited to a court. Exact comparisons are almost impossible. As Nancy Ezold, who sued her Philadelphia law firm for denying her a partnership, and won in the district court, only to see that decision reversed on appeal because of her supposed “lack of analytical ability,” discovered, many courts will bend over backwards to defer to such professional judgments.

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