SEX DISCRIMINATION SLIDES

1. SEX DISCRIMINATIONSLIDES

2. Definitions of Key Terms SEX: • Identification of being either male or female. • Some types of activities involving sex related parts of the body (e.g. Former President Clinton’s “I did not have sex with that woman.” GENDER • Same as definition #1 of sex • Behavioral, cultural, psychological traits associated with males or females. SEX DISCRIMINATION Actions that treat males and females differently

3. Common Law Treatment of Women In Commentaries on the Laws of England, Blackstone wrote: • By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband, under whose wing, protection and cover, she performs everything.

4. Bradwell v. State (1873) REASONING: • State's decision was rationally based on inherent differences in the sexes. State was merely recognizing that God had ordained women to be wives and mothers and that they were not fit for "men's occupations."

5. Bradwell v. State (1873) Justice Bradley wrote in his concurring opinion: “...the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destines of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.”

6. Bradwell v. State (1873) Note how Justice Bradley dealt with the fact that not all women choose to be wives and/or mothers. • “It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator, and the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.”

7. Women’s Suffrage 19th amendment was ratified in 1920 “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

8. Reed v. Reed (1971) TEST USED: Not clear • Opinion of the Court doesn’t specifically say what test they are using. • In Frontiero v. Richardson, Justice Brennan (joined by Douglas, Marshall, and White) argues that the court applied strict scrutiny becausewomen are part of an inherently suspect class. • The Idaho statute] “provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection clause.”

9. Reed v. Reed (1971) TEST USED • On the other hand, Justice Powell (joined by Burger and Blackmun) argue that Reed • “did not add sex to the narrowly limited group of classifications which are inherently suspect.” • It seems pretty clear that the judges didn’t need to apply strict scrutiny because Idaho’s law wouldn’t even pass the less demanding rational basis test. • Quotation in Reed that the statute in question “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.”

10. Reed v. Reed (1971) PRECEDENT: • It is a violation of the equal protection clause of the 14th amendment for a state to give statutory preference to males over females when it comes to appointing executors for estates in which the deceased has not left a will.

11. Frontiero v. Richardson (1973) ISSUE: Is it a violation of the due process clause of the 5th amendment for the armed services to require Frontiero to prove her husband was dependent upon her for more than half his support before she could qualify for extra “dependents benefits?” YES (8-1) [Rehnquist was sole dissenter]

12. Frontiero v. Richardson (1973) PRECEDENT: • It is a violation of the due process clause of the 5th amendment for the armed services to require females to prove their spouses are dependents upon them for more than half their support before they can qualify for extra "dependents benefits," while males can collect those extra benefits without having to prove their spouses are dependent upon them for more than half their support.

13. Frontiero v. Richardson (1973) TEST USED: • Strict Scrutiny: 4 Justices (Brennan, Marshall, White and Douglas) • Rational basis: 4 Justices (Powell, Burger, Blackmun and Rehnquist) • None stated: Stewart

14. Frontiero v. Richardson (1973) JUSTIFICATION FOR STRICT SCRUTINY: • Brennan’s opinion quotes part of Reed v. Reed where court said that classifications based on sex were “subject to scrutiny.” • Brennan argues “sex, like classifications based upon race, alienage, and national origin, are inherently suspect.”

15. Frontiero v. Richardson (1973) JUSTIFICATION FOR RATIONAL BASIS: Justice Powell’s opinion rejects use of strict scrutiny and applies rational basis because • It isn’t necessary to decide the case in Frontiero’s favor. The Air Force regulation being challenged fails the rational basis test. • The question of applying strict scrutiny should be left to the people to resolve through ratification of the Equal Rights Amendment.

16. Equal Rights Amendment • ERA discussed briefly in Box 12-3 on p. 661 in E&W. • It stated: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” • What does this wording mean to you? • What difference would passage make?

17. Equal Rights Amendment ALLEGED NEGATIVE CONSEQUENCES: • women would have to give up special advantages and preferences affecting such things as: military draft, child custody preferences, alimony, etc. • it could be used to protect right to abortion • it might lead to unisex bathrooms and locker rooms

18. Craig v. Boren (1976) ISSUE: Is it a violation of the equal protection clause of the 14th amendment for Oklahoma to discriminate on the basis of sex with respect to the purchase of alcoholic beverages? YES (7-2) PRECEDENT: • It is a violation of the equal protection clause of the 14th amendment for a state to discriminate on the basis of gender with respect to who is allowed to purchase alcoholic beverages.

19. Craig v. Boren (1976) TEST/STANDARD APPLIED • When applying the equal protection clause of the 14th amendment to situations involving discrimination based on sex, Courts should apply a “heightened” or “mid-level” scrutiny standard.

20. Craig v. Boren (1976) SUPPORTERS OF NEW TEST: • Supported by 6 Justices (Blackmun, Brennan, Marshall, Powell, Stevens, and White) • 2 Justices (Burger and Rehnquist) applied rational basis test. Burger concluded that the gov. failed to meet even the rational basis standard, while Rehnquist concluded that they had. • 1 Justice (Stewart) didn’t say which test he was using but did rule that the gov. hadn’t met it.

21. Racism v.Sexism • In deciding not to apply the strict scrutiny standard the Court indicated that sex discrimination should be treated differently than racial discrimination. • Do you agree that different standards should apply? • In what ways does racism differ from sexism?

22. Equality v. Difference Debate • Prominent feminist writer Catharine Mackinnon has written that the term “sexual equality” is an oxymoron because the concept of equality presupposes sameness and the concept of sex presupposes difference. • The debate over whether biological and cultural differences between males and females should matter in the law is often referred to as the “equality v. difference debate.”

23. APPLICATIONS OF MIDDLE-LEVEL SCRUTINY • Craig v. Boren (1976) • Mississippi Univ. for Women v. Hogan (1982) • United States v. Virginia (1996) • Rostker v. Goldberg (1981) • Michael M. v. Superior Court of Sonoma County (1981) • Nguyen v. Immigration & Naturalization Service (2001)

24. Mississippi Univ. for Women v. Hogan (1982) FACTS: A male that was denied admission to the Univ. nursing program challenged the legality of the state operating single-sex schools. PRECEDENT: It is a violation of the equal protection clause of the 14th amendment for a state to maintain single-sex institutions of higher learning.

25. United States v. Virginia (1996) ISSUES: • Is it a violation of the 14th amendment equal protection clause for VMI to exclude women students? YES (7-1) • Did the establishment of the VWIL program at Mary Baldwin College provide an adequate remedy for women in the state of Virginia? NO (7-1)

26. United States v. Virginia (1996) • PRECEDENT: It is a violation of the 14th amendment equal protection clause for a state to operate single sex colleges or universities when there are no comparable programs at other state colleges and universities that are open to the members of the other sex.

27. Combat Roles for Women • Rostker v. Goldberg justified making males, but not females, register for the draft because women were not allowed to be used on combat situations. However, the Court did not consider the validity of the Congressional act that forbids women from being used in combat roles. • Do biological and physiological differences between the sexes justify exempting women from combat roles?

28. Michael M. v. Superior Court of Sonoma County (1981) TEST USED: Heightened Scrutiny test. Disc. against males based on gender. PRECEDENT: It is not a violation of the equal protection clause of the 14th amendment for a state to hold the male participant criminally liable for having sexual intercourse with a girl under 18 without also making the female participant criminally liable. (5-4)

29. Michael M. v. Superior Court of Sonoma County (1981) • What is the argument used in the Opinion of the Court? • What is the argument used in the dissenting opinion in this case? • What’s wrong with the government trying to prevent teen pregnancies?

30. Nguyen v. Immigration & Naturalization Service (2001) PRECEDENT: • It is not a violation of the equal protection component of the 5th amendment for Congress to set different standards as to what a foreign-born child of a US citizen had to prove to establish citizenship when the citizen parent was the mother v. the father.

31. Nguyen v. Immigration & Naturalization Service (2001) MAJORITY REASONING: • Statute was justified by important gov. objectives of: • Ensuring a biological parent-child relationship exists. • Ensuring a parent-child relationship goes beyond a mere biological connection. • Differences in the role of women in child birth and child rearing are substantially related to these important government objectives.

32. What is or is not sex discrimination • Personnel Administrator of Mass. v. Feeney

33. Personnel Administrator of Mass. v. Feeney (1979) ISSUE: Did it violate the equal protection clause of the 14th amendment for Massachusetts to give military veterans preferences for government jobs? NO PRECEDENT: It is not a violation of the equal protection clause of the 14th amendment for a state to give statutory preferences to military veterans in hiring for government jobs. TEST USED: Rational basis Used because the discrimination was based on status of being veteran--not on basis of sex.

34. Title VII of the Civil Rights Act • Title VII of the Civil Rights Act of 1964 made it "an unlawful employment practice for an employer...to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, or national origin… • In 1970s Congress amended Title VII to add protection against sex discrimination.

35. BFOQ • Title VII contains special exception that allows employer to discriminate on the basis of sex, religion or national origin where one of those characteristics is a “bona fide occupational qualification” necessary to the normal operation of that particular business. • Example is towel monitor in men’s or women’s locker room.

36. Other Statutes Protecting Women • Equal Pay Act of 1963 requires employers to pay men and women performing equal work an equal salary. • In 1972 Title IX of the Education Act was added with its protection that: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance." This has led to gender equity in high school and college sports controversies.

37. Other Statutes Protecting Women • Pregnancy Discrimination Act of 1978 forbids employment discrimination on grounds of pregnancy. • The Family and Medical Leave Act of 1993 allows individuals who work for employers with fifty or more employees to take up to twelve weeks of unpaid leave to stay home with a new baby or sick parent, child or spouse. • Violence Against Women Act of 1994 authorized victims of sexual assault to sue for damages in federal courts. However, in United States v. Morrison (2000) the US Supreme Court struck it down (5-4 vote) on the basis that commerce power did not apply to general violence against women.

38. SEXUAL HARASSMENT • Note that Title VII makes it illegal to discriminate not only with regard to hiring and pay, but also covers “terms, conditions, or privileges of employment.” • Sexual harassment is considered to be a form of sexual discrimination because it interferes with women’s ability to compete effectively in the workplace.

39. Meritor Savings Bank v. Vinson 477 U.S. 57 (1986) • FACTS: Female bank employee sued employer for damages claiming her male supervisor made demands for sexual favors. • PRECEDENT: Title VII of the Civil Rights Act is not limited to economic or tangible discrimination and protects workers from being in a hostile or abusive work environment.

40. Two types of sexual harassment Quid pro quo • Sexual favors required to get or keep job. • Has to involve boss harassing worker. Hostile work environment • Unwanted sexual looking, touching, commenting, jokes, suggestions and/or propositions. • Applies to acts of co-workers as well as superiors.

41. Gender Neutrality in Sexual Harassment Law • We ordinarily think of sexual harassment in terms of a male boss or co-workers harassing a female subordinate or co-worker. • Can a female boss be guilty of harassing a male employee? • Can female co-workers be guilty of harassing a male co-worker? • Can sexual harassment occur if the boss and the worker are both males or both females?

42. Oncale v. Sundowner Offshore Services Inc. (1998) ISSUE: • Was the alleged harassment against Oncale covered by Title VII? Yes (9-0) HOLDING/PRECEDENT: • It is a violation of Title VII's prohibition against sexual discrimination for an employer to sexually harass a worker, even when the supervisor and the employee are of the same sex. What was the rationale for the court’s decision?

43. Employer Liability for Sexual Harassment To what extent should the employer be held legally responsible for the actions of its employees if the company has policies against sexual harassment and the actions of the offending employee was in violation of the company’s policy?

44. Burlington Industries, Inc. v. Ellerth (1998) SPECIFIC ISSUE: Did the District Court apply the correct standard for determining liability? NO (7-2) HOLDING/PRECEDENTS: • Under the terms of Title VII, an employer can be held liable for the sexual harassment of one of its supervisors without having to show the employer was negligent or otherwise at fault for the supervisor’s actions.

45. Burlington v. Ellerth (1998) HOLDING/PRECEDENTS: • Under the terms of Title VII, a defending employer may raise an affirmative defense to liability for sexual harassment by a supervisor when no tangible employment action was taken. • When asserting an affirmative defense in Title VII cases, the employer must show (a) that reasonable care was taken to prevent and promptly correct any sexually harassing behavior and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

46. Proving Sexual Harassment • With quid pro quo harassment it often becomes a “he said, she said” problem. How do you prove someone didn’t get a promotion because they wouldn’t sleep with the boss? • In hostile environment claims, there are more likely to be witnesses that can testify to the behavior, but the standards for establishing a violation are more subjective.

47. Proving Sexual Harassment In Harris v. Forklift Systems (1993), the Supreme Court ruled that when interpreting whether a "hostile work environment" exists under Title VII of the Civil Rights Act, the plaintiff: • must show that "a reasonable person" would find it to be hostile or abusive, • does not have to show that the conduct complained of actually interfered with the plaintiff's work or seriously affected his/her "psychological well-being."

48. Vagueness of “Reasonable Person" Standard As in negligence law, great discretion is left to jury to determine what was "reasonable" under the circumstances. • What offends one woman might not be offensive to either a man or another (less "prudish") woman. • Some circuits use "reasonable woman" standard and others just speak of "reasonable victim"