Constitutional Limits on Sex-Based Discrimination

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Constitutional Limits on Sex-Based
Discrimination

• Eco 336

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I. Paternalism Pre-1971

• Foundation of US system was English Common Law
• Operated under 3 basic assumptions about womens
  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 womans relationship to her husband was
  something better than his dog, a little dearer
  than his horse (Kay West, p. 11)

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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 couldnt initiate divorce
• Married Women couldnt 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

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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.

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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.

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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.

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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).

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Paternalism (Cont)

• Important Court Cases
• (15th Amendment, 1870, Right to vote cannot be
  denied based on color, race, servitude)
• Bradwell v Illinois, 1873
• Myra Bradwells 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, womens 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

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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.

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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?

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I. Paternalism (cont)

• (19th Amendment Womens 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.

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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, thats their problem.
• However, pre-1954 (Brown v. BOE), the Supreme
  Court ruled separate AND unequal was a violation
  of 14th amendment

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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

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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 childrens 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 rightthe right to marry the person
  one chosewithout 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/

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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.

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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.

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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.

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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

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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
  protectioninsofar 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

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Summary

• The Equal Protection Clause of the 14th Amendment
  has declined in significance as a format for
  expanding womens rights.

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SC Justice Scalias 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?eid913358evid
  1
• That boils down to the idea that women are not
  part of the Constitution. Womens Enews, 1/7/11

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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
  employeesat a rate less than the rate at which
  he pays wages to employees of the opposite
  sexfor 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 worknecessarily
  must be decided on a case-by-case basis. Kay,
  p. 924. See handouts.

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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

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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.

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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 individuals race,
  color, religion, sex, or national origin, and to
  segregate or classify employeesbased on race,
  color, religion, sex, or national origin.
• Other protected classes?

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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-identifiabl
  e 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.

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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
  testingCongress 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)

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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

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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.

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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
• Alldangers 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 womenare seductive
  sexual objects.
• P. 781 782
• Hooters

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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-rel
  ated 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.

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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 SCs narrow
  interpretation of Title VII.
• Prohibits discrimination on the basis of
  pregnancy or a womens 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 doesnt provide health
  insurance of other income maintenance benefits
  for temporary periods of nonoccupational
  diability doesnt have to provide these benefits
  for pregnancy related conditions

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Harassment and the Law

• Eco 336

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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 individuals 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 individuals work performance or creating
  an intimidating, hostile, or offensive working
  environment.

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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 supervisors misconduct.