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Constitutional Limits on Sex-Based Discrimination ( Note: KW=Kay & West Text BFW= Blau , Ferber, Winkler Text )

Constitutional Limits on Sex-Based Discrimination ( Note: KW=Kay & West Text BFW= Blau , Ferber, Winkler Text ). Eco 336. Constitutional Limits Outline. I. Paternalism : pre-1971 Classifications and the law 14 th Amendment Equal Protection tests II. Turning Point :1971 III. Summary.

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Constitutional Limits on Sex-Based Discrimination ( Note: KW=Kay & West Text BFW= Blau , Ferber, Winkler Text )

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  1. Constitutional Limits on Sex-Based Discrimination(Note: KW=Kay & West TextBFW=Blau, Ferber, Winkler Text) Eco 336

  2. Constitutional LimitsOutline I. Paternalism : pre-1971 • Classifications and the law • 14th Amendment • Equal Protection tests II. Turning Point :1971 III. Summary

  3. I. Paternalism – Pre-1971(Reading: KW pp 10-mid 14) • 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, paragraph 1)

  4. I. 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. • Women as Property • Marital Rape Exemption: Kay & West, p 1154-1156 • Saving Face – review this link about this issue and watch the trailer to this academy award-winning documentary.

  5. 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”.

  6. 14th Amendment Equal Protection Clause(click on link) “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.”

  7. 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 • Are we equal? • Thaddeus Stevens - one badass  http://www.youtube.com/watch?v=LPK2FA5I6Vg

  8. 14th Amendment (cont) ORIGINAL INTENT OF 14TH Amendment: 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. See also 14th Amendment. What is the 13th Amendment? Why was it passed if the Emancipation Proclamation was enacted?

  9. 14th AmendmentOriginal Intent vs. Strict Interpretation http://www.cnn.com/video/?hpt=hp_t3#/video/bestoftv/2013/01/16/exp-erin-birth-tourism-business-booming-in-us.cnn http://www.nytimes.com/2011/01/05/us/politics/05babies.html?nl=todaysheadlines&emc=tha2

  10. 14th Amendment and Same-Sex Marriage • Watch Zach Wahls (did anyone see him speak on campus this spring?) http://www.youtube.com/watch?v=yMLZO-sObzQ • How many U.S. states allow same-sex marriage? • What are the 14th amendment arguments surrounding same-sex marriage? That is, discuss the various arguments about whether heterosexual and homosexual couples are similarly situated.

  11. 14th Amendment and Same-Sex Marriage (cont) • Perry v. Schwarzenegger, 2010: California’s Proposition 8 banning same-sex marriage • ASSIGNMENT: Find information about the recent Supreme Court case involving same-sex marriage. Discuss the facts and issues in the case. • New Zealand http://www.news.com.au/world-news/the-speech-that-legalized-same-sex-marriage-in-nz/story-fndir2ev-1226623206187

  12. I. Paternalism (cont) • Equal Protection tests – REASONABLE (aka Rational) RELATIONSHIP TEST (Pre-1971) http://www.law.cornell.edu/wex/rational_basis_test(click on link) • Is there a reasonable relationship between the law and a legitimate government objective? • Kay & West pp very bottom of p.27-mid p.29

  13. Paternalism (Cont) • Important Court Cases • Bradwell v Illinois, 1873 (Reading:KWpp10-20) • Myra Bradwell’s application for a license to practice law had been denied by the Illinois Supreme Court solely because she was a woman. • SC ruling: Reasonable relationship between the law and the legitimate government objective of protecting women. • “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…”

  14. I. Paternalism (Cont)Bradwell v. Illinois (1873) • This and subsequent cases upheld women-only “protective” legislation. • Why are women skeptical of laws designed to “protect” them? • Broader question: Why are consumers in general skeptical of laws/regulations designed to “protect” them? Examples (think licensing requirements)?

  15. II. Turning Point - 1971 • Reed v. Reed (1971)(Reading: KW pp23-26) • 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 reasonable/rational relationship between law and government objective. • Frontiero v. Richardson (1973) (Reading:KWpp31-37) • FACT, ISSUES? • Like Reed v. Reed, used the reasonable/rational relationship test.

  16. II. Turning Point - 1971 • New Equal Protection Test – “Craig test” • Craig v. Boren (1976) (Reading: KW pp41-45) • FACTS, ISSUES? • New standard to test constitutionality of statute. • Law must have a substantial relationship to the achievement of an importantgovt 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. http://www.law.cornell.edu/wex/intermediate_scrutiny(click on link) - Exceedingly persuasive reason to justify classification based on sex. (VMI) - Overwhelm us with a mighty good reason.

  17. 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…

  18. 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…

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

  20. Women and Employment:U.S. LawsREAD KW pp 578-580 for an Introduction to this section. Outline Equal Pay Act of 1963 Title VII of the Civil Rights Act of 1964 a. Sex-Plus & Race-Plus Discrimination b. BFOQ c. Pregnancy Discrimination Act of 1978 d. Sexual Harassment

  21. Women and Employment:U.S. Laws • I. The Equal Pay Act of 1963 (Reading:KWpp1249- 1250) • 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?

  22. Women and Employment: U.S. LawsII. Title VII of the Civil Rights Act of 1964(Reading: KW pp1240-1246) • 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?

  23. II. Title VII of the Civil Rights Act of 1964 • When laws are passed, there is often confusion about what exactly is and is not prohibited. • For Title VII, there were questions about what exactly constituted sex- and race-discrimination. • Examples: Is discriminating against someone because she is pregnant sex-discrimination and thus prohibited under Title VII? Can a company claim that “being male” is a bona fide occupational qualification (BFOQ)?

  24. II. Title VII of the Civil Rights Act of 1964 Case Law helps define and interpret laws. That is, courts interpret laws by ruling in legal cases, typically transforming the rules from generalities to specifics and sometimes filling gaps to cover situations never addressed by lawmakers when the legislation was first enacted.

  25. IIa. Title VII cases further defining prohibited discrimination: Sex-Plus & Race-Plus Discrimination • Question – Is sex-plus discrimination prohibited under Title VII? • Sex-Plus Discrimination Definition: Discrimination based on sexually-identifiable factors. Discrimination of a sexually-identifiable factor has a disparate impact on a particular group. • 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.

  26. IIa. Title VII cases further defining what is prohibited under Title VII: Sex-Plus & Race-Plus Discrimination • Phillips v. Martin Marietta (1971) (Reading: KW pp 714-717(3)) • PLEASE note the Facts, issues, ruling of the case. • Martin Marietta (MM) would not hire women with school-aged children, but would hire men with school-aged children. • This is an example of sex-plus discrimination because MM would not hire MOTHERS, and only women can become mothers. MM tried to say that men with school aged children were not similarly situated with women with school aged children, but the court ruled against them.

  27. IIa. Title VII: Sex-plus/Race-Plus Discrimination Griggs v. Duke Power Co (1971)(Reading: KW pp580-585) • Race-Plus Discrimination • FACTS, ISSUES? • From Ruling: Employer has burden of proving that any given requirement must “have a manifest relationship to the employment in question.” • From Ruling: “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”

  28. Women and Employment IIb. Title VII cases further defining prohibited discrimination: BFOQ • A section of Title VII allows companies to discriminate based on religion, sex, or national origin if they can prove that “religion, sex, or national origin is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that particular business…” (KW pp 1243 last paragraph)

  29. Women and Employment IIb. Title VII cases further defining prohibited discrimination: BFOQ • Diaz v. Pan Am (1971) – (KW last paragraph (4) p.785-top of p.787) • Pan Am Airways tried to claim that “being female was a BFOQ for the position of flight attendant”. Therefore, they wouldn’t hire Diaz who was male. • 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. Women and Employment IIb. Title VII cases further defining prohibited discrimination: BFOQ • Dothard v. Rawlinson (1977) (KW pp 777-779) • FACTS, ISSUES, RULING? • Dissenting opinion by Justice Marshall (pp. 779-783): Provide a summary of his arguments • Hooters • http://abcnews.go.com/Nightline/video/breastaurants-business-booming-18786907

  31. Women and Employment IIc. Title VII cases further defining prohibited discrimination: Pregnancy Discrimination • The lower courts AND the Supreme Court initially said NO! – that discriminating based on pregnancy is NOT sex discrimination. • However, Congress disagreed and passed The Pregnancy Discrimination Act of 1978 as an amendment to Title VII (KW p 1242 (k)) to clarify that pregnancy-discrimination IS sex-discrimination since only WOMEN can get pregnant. • Congress decided Courts had misinterpreted Title VII.

  32. The Pregnancy Discrimination Act of 1978 • Prohibits discrimination on the basis of pregnancy or a women’s ability to become pregnant. • “Pregnancy related conditions should be treated the same as any other medical condition covered under any fringe benefit program.” • Discrimination based on pregnancy is an example of sex-plus discrimination because it has a disparate impact on women: disqualifies women at a higher rate than men.

  33. IId. Is Sexual Harassment a Violation of Title VII?(That is, Is Sexual Harassment, Sex Discrimination)Answer: Yes!(Readings: KW last para.p.823-1st para.p.824; KW pp 1253-1254; BFW pp 229-231) • Court Cases a. Meritor Savings Bank v. Vinson, 1986 • Recognized 2 types of SH as violating Title VII • 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. - 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. b. Oncale v. Sundowner Offshore Services,1998 • Same-sex harassment is a violation of Title VII.

  34. Sexual Harassment 2. When is an employer liable for the sexual harassment of an employee vs escape liability? • “When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence … [.] The defense comprises two necessary elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. b. Two SC Cases that answered this question -Faragher v. City of Boca Raton, 1998 Summary (READ!): http://www.law.cornell.edu/supct/pdf/97-282P.ZS -Burlington Industries v. Ellerth, 1998 Summary (READ!): http://www.law.cornell.edu/supct/pdf/97-569P.ZS

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