Constitutional Limits on Sex-Based Discrimination

1. Constitutional Limits on Sex-Based Discrimination Eco 336

2. I. Paternalism – Pre-1971 • Foundation of US system was English Common Law • Operated under 3 basic assumptions about women’s place in social order • Dependence on men was necessary and proper for women • Property management and public affairs best left to men • Interests of a husband and wife were identical and were expressed by his will and self-interest. • Married woman’s relationship to her husband was “something better than his dog, a little dearer than his horse” (Kay & West, p. 11)

3. Paternalism – Pre-1971 • Therefore the English Common Law System denied to married women any separate rights to their personal property, income, children, or bodies. • Married Women couldn’t initiate divorce • Married Women couldn’t make a legal contract • Married Women could work, but had no right to their wages. • Married Women could not serve on juries. • Surest route to property for a woman was widowhood, although the amount received depended large on adult male relatives. • Marital Rape Exemption: Kay & West, pp 1154-1156

4. I. Paternalism (cont) • Classifications and the Law • Our legal system classifies persons and treats them differently under the law. • Examples? • Equal Protection Clause of the 14th Amendment was the basis for sex discrimination lawsuits in cases where plaintiffs have claimed that a statute or governmental action constituted a denial of equal protection. • “No persons shall be denied equal protection of the laws”.

5. 14th Amendment Equal Protection Clause “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherin they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

6. 14th Amendment Equal Protection Clause • Equal protection, not equal treatment. • Can treat people differently if there is a compelling reason. • Ensures that the law is applied in a non-arbitrary matter. • Similarly situated people treated similarly. • Course grades • The 14th Amendment was ratified in 1868 as part of the Reconstruction Amendments and in reaction to: • Dred Scott v Sanford, 1857: Blacks not citizens, so do not deserve equal treatment to whites.

7. I. Paternalism (cont) • Equal Protection tests – RATIONAL BASIS TEST REASONABLE RELATIONSHIP TEST (Kay, pp 29) • Pre-1971 • The law must establish a reasonable relationship between the goal and the means of attaining the goal. • Question: Is sex a reasonable basis upon which to achieve the goal? More generally, is there a reasonable connection between the classification (age, sex, intelligence), and the public purpose of the law? • Burden of proof on the plaintiff (person challenging must prove it unconstitutional).

8. Paternalism (Cont) • Important Court Cases • (15th Amendment, 1870, Right to vote cannot be denied based on color, race, servitude) • Bradwell v Illinois, 1873 • Myra Bradwell’s application for a license to practice law had been denied by the Illinois Supreme Court solely because she was a woman. • “Man is, or should be, women’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently units 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 woman hood…”

9. Bradwell v. Illinois (1873) • Discriminatory legislation was rational because of perceived physical limitations and social functions of women. Rational relationship between the law the the government objective of protecting women.

10. I. Paternalism (Cont) • Important Court Cases (cont) • Mueller v Oregon (1908) • Oregon law prohibited employment of women in any mechanical establishment, factory, or laundry more than 10 hours/day. • See handout for excerpt from ruling. • Law was upheld as constitutional because women were emotionally and physically weaker. • Rational relationship between law and government objective of protecting women. • Upheld women-only “protective” legislation. • Why are women skeptical of laws designed to “protect” them?

11. I. Paternalism (cont) • (19th Amendment – Women’s Right to Vote, 1920) • Important Court Cases (cont) • Goesaert v. Cleary (1948) • Michigan law denied women the right to tend bar • Allowed women to serve as waitresses but not bartenders EXCEPT for the wives and daughters of male tavern owners. • Plaintiff challenged the law on the exception for wives and daughters (rather than discrimination against women per se.) • There was a rational basis for the exemption for wives and daughter.

12. Ia. Plessy v. Ferguson, 1896 Segregated railroad cars in Louisiana Supreme Court upheld law of separate but equal. If ‘colored race’ takes this as a sign of inferiority, that’s their problem. However, pre-1954 (Brown v. BOE), the Supreme Court ruled separate AND unequal was a violation of 14th amendment

13. Ib. Brown v. Board of Education, 1956 Facts, Issues? SC ruled that separate but equal is also a violation of 14th amendment. Separate facilities conferred a “badge of psychological inferiority”

14. Ic. Perry v. Schwarzenegger, 2010 Proposition 8 (CA ballot initiative banning same-sex marriage) unconstitutional because of lack of “reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage.” (CA Justice Walker) The argument that banning same-sex marriage promoted children’s welfare was unconvincing, too, since the evidence showed “without a doubt” that gay and lesbian parents could raise kids as effectively as straight ones. Walker held that the ban on same-sex marriage did not pass even the most minimal scrutiny under equal protection law, because it denied a fundamental right—the right to marry the person one chose—without a “legitimate (much less compelling) reason.” Tradition alone would not suffice; marriage had changed in all sorts of ways, and there were plenty of traditions that had outworn their welcome. For more info: http://www.newyorker.com/online/blogs/newsdesk/perry-v-schwarzenegger/

15. II. Turning Point - 1971 • Reed v. Reed (1971) • FACTS, ISSUES? • First time the Court invalidated a statute on grounds of sex discrimination. • Is administrative ease an important enough objective to justify classification based on sex? • No relationship between the government objective (best executor of will) and the means (preference given to men). Not a rational relationship between law and government objective.

16. II. Turning Point - 1971 Sex as a Suspect Classification • Frontiero v. Richardson (1973) • FACT, ISSUES? • “What differentiates sex from such nonsuspect statutes as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its members.” • Like Reed v. Reed, a departure from “traditional” rational bases analysis.

17. II. Turning Point - 1971 • New Equal Protection Test – “Craig test” • Craig v. Boren (1976) • FACTS, ISSUES? • New standard to test constitutionality of statute. • Law must have a substantial relationship to the achievement of an important govt objective. • So raised the bar/standard for sex discrimination cases: must pass a stricter test. • Although not “strictest” test of “strict scrutiny” reserved for discrimination based on race, ethnicity. • Intermediate (“heightened”) scrutiny test. • Exceedingly persuasive reason to justify classification based on sex. (VMI) • Overwhelm us with a mighty good reason.

18. Other Craig/Intermediate/Middle Tier Cases Darryl Olesen, Jr (Plaintiff) v Board of Education of School District, Illinois (Defendant), 1987 The school district forbids all gang activities at the schools, including the wearing of gang symbols, jewelry and emblems. The wearing of earrings by male students is included in that ban. Olesen, a senior at Bremen H.S., wishes to wear an earring and claims the schools policy violates his right to equal protection under the 14th amendement (The ban does not forbid earrings on girls). Court Ruling and reason…

19. Other Craig/Intermediate/Middle Tier Cases Nikki Craft, et al (Plaintiffs) v. Donald Hodel, et al (Defendants), 1988 The plaintiffs, who are women, contend that a National Park Service regulation prohibiting public nudity – particularly the exposure of female breasts – at the Cape Cod National Seashore, violates their right to equal protection…insofar as it permits males to walk and play and swim “shirtfree” upon the Seashore whereas it denies women the same “rights”. Court ruling and reason…

20. Summary • The Equal Protection Clause of the 14th Amendment has declined in significance as a format for expanding women’s rights.

21. SC Justice Scalia’s views on 14 amendment and Sex Discrimination In widely quoted comments in the current issue of California Lawyer, Scalia said the EPC of the 14th Amendment does not protect against discrimination on the basis of gender. Read: http://www.callawyer.com/story.cfm?eid=913358&evid=1 “That boils down to the idea that women are not part of the Constitution.” Women’s Enews, 1/7/11

22. Women and Employment • I. The Equal Pay Act of 1963 • Prohibits employers from discriminating “between employees on the basis of sex by paying wages to employees…at a rate less than the rate at which he pays wages to employees of the opposite sex…for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions…” • Deficient as an anti-discrimination tool – why? • “Since job content is a matter determined by the particular employer, whether two job classifications entail “equal work”…necessarily must be decided on a case-by-case basis.” Kay, p. 924. See handouts.

23. Lilly Ledbetter vs. Goodyear Tire, 2006 Lilly Ledbetter, a supervisor at Goodyear Tire & Rubber Co, sued right before she retired, claiming that throughout her employment, she had received poor evaluations because of her sex, resulting in lower pay, and that by the end of her 19 years of employment she was earning significantly less than her male colleagues The U.S. Supreme Court ruled (5-4) that she had waited too long to sue based on legislation stating an employee must sue within 180 days of a decision involving pay if the employee thinks it involved race, sex, etc. Assignment: Read Justice Ginsberg dissenting opinion in which she states the law runs from the date of any paycheck that contains an amount affected by a prior discriminatory pay decision

24. Lilly Ledbetter Fair Pay Act, 2009 A bill to amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.

25. II. Title VII of the Civil Rights Act of 1964 • It is unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment because of such individual’s race, color, religion, sex, or national origin”, and to “segregate or classify employees…based on race, color, religion, sex, or national origin”. • Other protected classes?

26. II. Title VII (cont) • A. Title VII cases further defining what prohibited discrimination • Is sex-plus discrimination prohibited under Title VII? • Defn: Discrimination based on sexually-identifiable factors. • Disparate Impact: The adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nevertheless, disproportionately affects individuals having a disability or belonging to a particular group based on their age, ethnicity, race, or sex. • Phillips v. Martin Marietta (1971) • Facts, issues, ruling.

27. II. Title VII (cont) • Sex-Plus Discrimination (cont) • Griggs v. Duke Power Co (1971) • Race-Plus Discrimination • FACTS, ISSUES? • Employer has burden of proving that any given requirement must “have a manifest relationship to the employment in question.” • Nothing in the Act precludes the use of testing…Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant” (Kay, p. 585)

28. II. Title VII (cont) • Title VII cases further defining what prohibited discrimination (cont) • Jobs in which “religion, sex, or national origin is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that particular business…”

29. BFOQ • Diaz v. Pan Am (1971) – see Kay, pp. 785-787 • Pan Am: “Women were better are providing courteous service and in general making flights more pleasurable”. • Pan Am: “Customers prefer female flight attendants.” • SC: “Discriminating based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively”. • SC: Essence of Pan Am business was transporting passengers. • SC: BFOQ should not be based on customer preference.

30. II. Title VII (cont) • -BFOQ (cont) • Dothard v. Rawlinson (1977) • FACTS, ISSUES, RULING? • Dissenting opinion by Justice Marshall (pp. 779-783): • “Some women, like some men, undoubtedly are not qualified and do not wish to serve as prison guards, but that does no justify the exclusion of all women…” • “All…dangers – with one exception…-are inherent in a prison setting whatever the gender of the guards”. • “…perpetuates one of the most insidious of the old myths about women – that women…are seductive sexual objects”. • P. 781 & 782 • Hooters

31. II. Title VII (cont) • Pregnancy Discrimination Act (1978) • Amendment to Title VII • Court cases/History (see Kay pp 746 & 2nd para on p. 741) • Geduldig v. Aiello (1974) • State of CA did not cover pregnancy/childbirth-related medical costs in its disability benefits plan. State Supreme Court ruled that discrimination on the basis of pregnancy was not sex discrimination. Rationale? • GE v. Gilbert (1976) • GE did not cover pregnancy/childbirth-related medical costs in its disability benefits plan. • Pregnancy was a sickness, not a disability, so GE would pay for those hospital costs, but not recovery costs. US Supreme Court ruling similar to that in Geduldig.

32. Pregnancy Discrimination ActAmendment to Title VII1978 • US Congress decided Courts had misinterpreted Title VII. Congress had intended in 1964 to prohibit employment discrimination based on pregnancy as part of the sex restriction. • PDA was intended to correct SC’s narrow interpretation of Title VII. • Prohibits discrimination on the basis of pregnancy or a women’s ability to become pregnant. • Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related purposes, including receipt of benefits under fringe benefit programs and leaves, as other persons not so affected by similar in their ability or inability to work. “Pregnancy related conditions should be treated the same as any other medical condition covered under any fringe benefit program.” • However, an employer who doesn’t provide health insurance of other income maintenance benefits for temporary periods of nonoccupational diability doesn’t have to provide these benefits for pregnancy related conditions

33. Harassment and the Law Eco 336

34. Legal Questions • Is Sexual Harassment a violation of Title VII? Yes Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature • Meritor Savings Bank v. Vinson, 1986 • Recognized 2 types of SH as violating Title VII 1. Quid Pro Quo (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions. 2. Hostile Work Environment: such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

35. Legal Questions (Cont) • Harris V. Forklift Systems, Inc, 1993 • Further defined hostile work environment. • Oncale v. Sundowner Offshore Services,1998 • Same-sex harassment is a violation of Title VII. • B. When is an employer liable for the sexual harassment of an employee vs escape liability? AFFIRMATIVE DEFENSE Faragher v. City of Boca Raton, 1998 Burlington Industries v. Ellerth, 1998 Ellerth never filed a sexual harassment complaint with Burlington or otherwise informed anyone in authority of her supervisor’s misconduct.