Firing Abramson wasn’t only sexist. It may have been illegal.

Let’s talk about stereotypes.

As the whole internet has repeated to itself a million times by now, Jill Abramson was fired from her post as executive editor of the New York Times on Wednesday. A few possible narratives have emerged. Some say Abramson leaned in after she learned her salary was less than the previous male executive editor’s and she was kicked out for asking for a raise. Others point to her recent attempt to hire an editor without consulting her number two. All of the explanations come back to a sense that Abramson was just too “pushy.” Yet only the unequal pay itself, separate from Abramson’s demands, has been treated as possibly illegal rather than just subtly sexist.

That may be wrong. Let’s forget, for a moment, about the question of the actual pay differential. While I don’t doubt that the Times might have unjustifiably paid Abramson less than her successor, there are also possible explanations beyond bald misogyny: Abramson had spent less time at the paper than Bill Keller, after all. Yet even if its pay scale was permissible, the Times may still be on the hook legally if the “pushy” theory holds true.

But let’s back up for a second. A caricature of Abramson’s aggressive management style — and the sexism that might lurk behind this characterization — has circulated since last year, when a widely-condemned Politico  piece presented the editor as an “uncaring,” “difficult” woman with an unpleasant voice to boot. Last night, the New Yorker reported that one employee explained that “[s]he was definitely polarizing, and I heard stories of how arbitrarily brusque she could be. ‘Mercurial’ is a word you hear used for her a lot.” Perhaps Abramson was needlessly, aimlessly rude. Alternatively, perhaps she was doing her job, running a powerful institution that moved at a lightening speed. Yet by failing to be gentle in the process Abramson made herself, at least in the public imagination if not throughout the office, a bitch.

Decades before “Ban Bossy” we had Price Waterhouse v. Hopkins. The 1989 Supreme Court opinion recognized that Ann Hopkins was likely denied promotion in significant part because she was too pushy for a nice lady. Hopkins’ performance reviews were solid but the company’s partners found her too assertive, even abrasive — and thought “a course at charm school” and new lipstick might help. The Court recognized the not-so-subtle sexism behind these comments; the partners’ comments suggested that ”perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.” And the Justices also recognized the impossible bind these expectations place on women in demanding, high-stakes, conflict-ridden jobs. Writing for the majority, Justice Brennan explained:

An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. [Workplace anti-discrimination law] Title VII lifts women out of this bind.

Sound familiar? Look, we don’t know what happened at the New York Times. The whole deal may have been free of misogyny and Title VII violations. Yet, as the Court recognized in Price Waterhouse, it’s hard to disentangle sexist expectations of feminine gentleness from complaints about a powerful woman’s interpersonal style, including the very assertiveness that makes her good at much of her job in the first place. If we accept the Times spokeswoman’s explanation that Abramson’s demand for equal pay was “part of a pattern” that led to her dismissal, shouldn’t we worry that a woman’s supposed management problems were considered of a kind with her demand for equitable compensation? Or, if we buy Politico‘s explanation (despite their track record on the subject) that Abramson was fired for moving to hire an editor without first running the choice by her number two — doesn’t that sound just a little bit sexist to you? Doesn’t it suggest that maybe attractive decisiveness on a man looks arrogant on a woman? Or, even if her decision was legitimately condemnable, that it was only the last straw for publisher Arthur Sulzberger because many of the other straws boiled down to a belief that Abramson should go to charm school?

As Price Waterhouse instructed, Title VII doesn’t let an employer off the hook if sexism was only part of its reason for penalizing a worker. The 1989 Court insisted that Hopkins could in fact be a little aggressive — yes, maybe a little abrasive — and her employers’ sexist response would still be impermissible. Likewise, if gender-based stereotypes played into the Times‘ decision even in part, likely filtered through Sulzberger’s impressions of her aggressive management style, the paper could be liable. And Abramson v. New York Times would be a hell of a case.

Alexandra

Alexandra Brodsky is an editor for Feministing, student at Yale Law School, and co-founder of Know Your IX.

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