SWG 222 Gender Law and Policy Midterm

Intersectionality

Kimberle Crenshaw; birdcage analogy and basement analogy; aspects of oppression within society do not act independently of one another; these forms of oppression interrelate

Constitutional law

Highest law of the land, set out the structure and power of governments, protection against government intrusion on individual liberties, states also have constitutions but the US Constitution prevails over them

Statutory Law

Derived from legislative bodies: US Congress, State Legislatures, City Councils, attempts to anticipate problems that may affect large numbers of people

Common Law

Judges look to past decisions called “precedents,” if a court made a decision future courts must follow it, only higher courts can reduce lower court precedent

Administrative Law

Technical orders, rules, and regulations created by governmental agencies, includes executive orders

Trial court

determine the facts of the case, courts of original jurisdiction, must hear all cases they are assigned

Appellate court

Determine whether the law was properly applied and/or legal procedures followed in the lower court, not obligated to hear all cases, most of the decisions we read this semester are appellate courts

Civil cases

dispute between two private parties, plaintiff & defendent

Criminal cases

The state (prosecutor) brings charges against a private person (defendant)

Coverture

Free colonial women were subject to the marital unity doctrine, where a husband controlled a wife’s property, children, and body (right of chastisement)

Political liberalism

Locke, Rousseau, Hobbes: Individual liberty and consent of the governed, equality, rationality

Ideology of true womanhood

Portrayed women as pious, pure, submissive, and domestic, excluded many women who had to work outside the home, female reformers used the ideology of domesticity to justify their participation in the public sphere to “clean up the world”

Republican motherhood

Portrayed white women as custodians of civic morality, mothers expected to raise virtuous sons on whom the health of the republic depended, mothers had a quasi-political role, which justified education for girls and women

Married women’s property acts

Began to empower women to own propriety, and to sue and be sued, also made it so that women’s property would not have to pay for men’s debts

Separate spheres ideology

Portrayed men as the protector, defender, and representing women politically, portrayed women as timid, delicate, and domestic, justified by history, civil law, nature, and “divine ordinance”

Suffrage movement [arguments for the right to vote]

inalienable right to liberty, better wives and mothers, “social housekeeping,” racial uplift, also racist arguments

Anti-suffrage arguments

women belong in the private sphere, not suited to the rough and tumble of politics, would compromise women’s abilities to be good wives and mothers, liquor and business interests opposed female suffrage

Protective labor legislation

Progressives pushed for maximum hours laws to protect workers from employers demanding long hours from employees, businesses challenged these laws on due process grounds arguing government regulation of business violated their liberty to enter into contracts with workers

Social feminists

Focused on differences between men and women, believed women needed special protections, supported protective labor laws

Egalitarian feminists

Ignored differences between men and women, wanted men and women to be treated identically, supported the Equal Rights Amendment

Strict Scrutiny [standard of review]

applies to laws classifying citizens based on race and national origin. TEST: whether the classification is necessary to achieve a compelling government objective BURDEN OF PROOF: the government must prove it, until recently the only thing that survived this standard was affirmative action

Rational basis scrutiny [standard of review]

applies to most laws that classify among citizens. TEST: whether the classification is rationally related to a legitimate governmental objective BURDEN OF PROOF: party challenging the law must prove that the government does not have a legitimate objective or that the classification is not rationally related to the state’s objective CASE USED IN: Goesaert v Cleary

Intermediate scrutiny [standard of review]

TEST: whether a law is substantially related to an important statutory objective, law is presumed to be unconstitutional BURDEN OF PROOF: defender of the law must prove its constitutionality, laws are judged in light of their actual purpose, APPLIES TO: sex

Equal Rights Amendment

Men and women shall have equal rights throughout the United States and in every place subject to its jurisdiction. Never received the ratification of 38 states required to become law, opponents portrayed it as anti-family and linked it to abortion, homosexuality, and women in combat

Formal equality

Virtual equality, conditional equality

Substantive equality

transforms the institutions, norms, and traditions in society that oppress all people

Civil Rights vs Human Rights

Civil Rights include civil and political rights, these are “negative” or “first generation” rights; Human Rights include not only civil and political rights, but also economic, social, and cultural rights, these are “positive” or “second generation” rights

Facial discrimination under Title VII

explicit discrimination based on sex, includes “sex-plus” like mothers, married women, etc

Disparate treatment under Title VII

when an employer treats some people less favorably because of their race, color, religion, sex, or national origin, employer does not admit discrimination, over 90% of cases are disparate treatment

Disparate impact

facially neutral in their treatment of groups but in fact fall more harshly on one group than another and cannot be justified by business necessity, must be proven by statistical data, less than 2% of cases are disparate impact

Remedies for Title VII discrimination

hiring or reinstatement, back pay, and attorney’s fees and costs, Civil Rights Act of 1991 amended Title VII by expanding the available remedies, one is guaranteed trial by jury where intentional discrimination is claimed and damages are demanded

Equal Employment Opportunity Commission (EEOC)

before bringing suit, the plaintiff must file a complaint with the EEOC or the state Fair Employment Practice office, must be filed within 180 days from the act of discrimination, plaintiff may receive a “right to sue” letter 180 days after filing charges, must file a suit in federal Court within 90 days of receiving a “right to sue”

Disparate Treatment shifting burdens

Prima Facie Case, employer articulates a Rebuttal (clear and reasonably specific reason other than discrimination), then Pretext (plaintiff may show that the employer’s explanation was not the real reason for the action, by direct or indirect evidence)

Second generation discrimination

Unconscious bias in evaluations, mentoring, and assignments, along with inflexible workplace structures, have largely replaced deliberate sex discrimination in employment, particularly for managerial and professional positions

Disparate Impact shifting burdens

Plaintiff must demonstrate that a particular employment practice causes a disparate impact on the basis of sex, then the defendant has the burden to demonstrate that the challenged practice is job related and consistent with business necessity, then the plaintiff prevails if they demonstrate that an alternative employment practice is available and does not have a disparate impact and the employer refuses to adopt it, some courts have ruled that a disparate impact is shown if members of a protected class are selected at rates less than 4/5ths of those not within the protected class

Bona fide occupational qualifications (BFOQ)

APPLIES TO: religion, sex, national origin; explicit facial discrimination allowed only when it is reasonably necessary to the normal operation of that particular business; these exceptions generally relate to authenticity and genuineness, privacy, and safety and security if directly related to business necessity

Quid Pro Quo sexual harassment

a supervisor makes unwelcome sexual advances towards or sexual demands of a subordinate employee by offering tangible job benefits or threatening job detriment

Hostile environment sexual harassment

Unwelcome sexual or sex-based conduct that unreasonably interferes with an individual’s performance at work by creating an intimidating, hostile, or offensive work environment, must be “severe or pervasive”

Unwelcomeness

correct inquiry is whether the conduct was unwelcome, not whether it was voluntary

Employer liability

Supreme Court answered this in Faragher v City of Boca Raton, the liability depends on the kind of harassment and who is the harasser

Reasonableness standards

how do you determine whether conduct is sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive work environment, the idea of a “reasonable woman”

sex stereotyping theory of discrimination

discrimination based on sex in Title VII prohibits discrimination based on gender stereotyping 

Pregnancy discrimination

discrimination based on pregnancy, childbirth, or related medical conditions, including nursing

Caregiver discrimination

includes sex-based disparate treatment of caregivers, gender-based stereotyping about future caregiving responsibilities, effects of stereotyping on subjective assessments of work performance, and hostile work environments

Wage gap

ratio of women’s and men’s median annual earnings is a stark difference

Motherhood penalty

mothers are paid 74 cents for every dollar paid to fathers

Occupational segregation (vertical and horizontal)

Latina moms make 51 cents and AAPI moms make 93 cents

5th Amendment Due Process Clause

applies to the federal government, “no person shall… be deprived of life, liberty, or property, without due process of law",” court has interpreted the 5th amendment to guarantee equal protection of the laws

14th Amendment Privileges and Immunities Clause

no state shall make or enforce any law which shall abridge the privileges of immunities of citizens of the US

Equal Protection Clause

nor deny to any person within its jurisdiction the equal protection of the law

19th Amendment

this was ratified in 1920, no discrimination about sex for voting, Congress shall have the power to enforce this

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

adopted by the UN General Assembly in 1979, international bill of rights for women, US is the only developed nation that has not ratified CEDAW, it promotes substantive equality

Title VII of the Civil Rights Act of 1964

prohibits employment discrimination on the basis of “race, sex, color, religion, or national origin

Civil Rights Act of 1991

sex need only be a motivating factor, even if other factors were also involved, however if the employer would have made the same decision in the absence of impermissible motives then the plaintiff can only get declaratory relief, injunctive relief, and attorney’s fees, not financial damages or reinstatement

Pregnancy Discrimination Act

“The terms ‘because of sex’ or ‘on the basis of sex’ include… pregnancy, childbirth, or related medical conditions; and women affected by the same for all employment-related purposes”

Pregnant Workers Fairness Act

This requires employers to provide reasonable accommodations to pregnant employees

Family Medical Leave Act

Provides 12 weeks of unpaid leave for birth or adoption of a child, acquiring a foster child, caring for a child, spouse, or parent with a serious health condition, or for the worker’s own seriously illness preventing performance on the job, applies to private employers with >50 employees and to public agencies

Equal Pay Act

Employers are prohibited from paying employees of the opposite sexes at different rates for jobs that are equivalent in terms of skill, effort, responsibility, and working conditions

Lilly Ledbetter Fair Pay Act

Ledbetter v Goodyear Tire severely restricted the statute of limitations for Title VII cases, saying there could be no continuing violation, the Fair Pay Act reversed the Supreme Court Decision

Bradwell v Illinois

Used the separate spheres ideology to decide whether a state’s refusal to allow a woman to practice law violate the Fourteenth Amendment’s Privileges and Immunities Clause. They decided no because the right to practice law is not a privilege of national citizenship protected by the Constitution

Minor v Happersett

Decided whether denying women the vote violated the Fourteenth Amendment’s Privileges and Immunities Clause, they decided no because the right to vote is not a privilege of national citizenship protected by the Constitution

Muller v Oregon

Does an Oregon law setting maximum hours for women violate liberty of contract prohibited by the Due Process Clause of the 14th Amendment? No. Because the state may limit individual liberty of contract to protect women

Goesaert v Cleary

Decided that the law prohibiting women from bartending did NOT violate the 14th Amendment’s Equal Protection Clause because it protected women from moral and social hazards

Hoyt v Florida

Decided that a law allowing women to volunteer in order to be on a jury did not violate the 14th Amendment. Women have family obligations that may prevent them from serving of juries. 

Reed v Reed

Decided that an Idaho law preferring fathers over mothers to administer a child’s state did violate the 14th Amendment Equal Protection Clause because the law is arbitrary and not based on legitimate objectives

Frontiero v Richardson

Decided that the US military’s sex discrimination policy violated the 5th amendment’s due process clause

Craig v Boren

Decided that an Oklahoma law prohibiting the sale of 3.2% beer to males under the age of 21 and females under the age of 18 VIOLATES the 14th amendment Equal Protection Clause because the sex classification is not substantially related to an important governmental objective, this case created INTERMEDIATE SCRUTINY

Orr v Orr

Decided that Alabama’s alimony statutes, requiring husbands to pay alimony but not wives, violate the Equal Protection Clause, because sex is not a reliable proxy for need, and the statute must be carefully tailored in order to achieve important governmental objectives, a gender-neutral alimony statutes is less discriminatory and still meets the state’s important interests

Stanton v Stanton

Decided that a Utah law specifying for males a greater age of majority than for females violated the Equal Protection Clause because there was nothing rational in the decision

Personnel Admin’r of Mass v Feeney

Indirect discrimination; if a classification is neutral on its face with regards to sex, then the statute reviewed under the rational basis standard, unless it is shown to have been adopted for the purpose of disadvantaging people on the basis of their sex

Michael M v Superior Ct of Sonoma Cty

Even if a statute explicitly uses a sex-based classification, the Court will apply the rational basis review if the statute is based on real differences

Miss Univ for Women v Hogan

Decided that a state-supported single-sex school violated the 14th Amendment Equal Protection Clause, state must have “exceedingly persuasive justification” for sex-based discrimination; this case put teeth on INTERMEDIATE SCRUTINY

Phillips v Martin Marietta Corp

Sex-plus discrimination about mothers of preschool children

Nichols v Azteca Restaurant Enterprises

Coworkers harassed a man for not conforming to male stereotypes, court decided that the verbal abuse was closely related to gender, and discrimination because of sex in Title VII prohibits discrimination based on gender stereotyping

Bostock v Clayton County

Employers fired employees because of their sexual orientation and gender identity, the court decided that Title VII’s prohibition of sex discrimination in employment prohibits discrimination based on sexual orientation and gender identity, because the plain meaning of sex includes each of these. 

EEOC v Brown & Root, Inc

A woman working as an electrician’s helper froze on an overhead steel beam and was fired, it was decided that she was fired because of sex because men who froze in similar circumstances were not fired, in other words the sex of the plaintiff was a “necessary condition” for her being treated in the discriminatory manner

Los Angeles Dept. of Water v Manhart

LA required women to pay 14.8% more into a retirement fund because women as a group live longer than men, the court decided that true generalization about the sexes that disadvantages one sex violates Title VII, because Title VII protects individuals so the courts must compare individual characteristics not class characteristics. 

Texas Dept of Comm Affairs v Burdine

The employer does not have the burden to prove their practices are nondiscriminatory, the plaintiff has the burden of persuasion and the employer only needs to produce a clear explanation of the nondiscriminatory reasons for their actions.

Price Waterhouse v Hopkins

Lawyer denied partnership at a law firm, told to walk talk and dress more femininely. Holding was that an employment decision motivated in part by sex stereotyping does violate Title VII.

Lindahl v Air France

Female employee sued for age and gender discrimination after she was passed over for promotion in favor of a younger male, legal issue was whether the plaintiff had provided enough evidence of Title VII and the holding was yes. In the absence of direct evidence a plaintiff can prove discrimination by showing that the employer’s justification for the suspect employment discrimination is unworthy of credence.

Burlington Northern & Santa Fe Railway Company v White

RETALIATION? A plaintiff must show that an employer took a materially adverse employment action that would have “dissuaded a reasonable worker from making or supporting a charge of discrimination”

Griggs v Duke Power Co

This case established that employers policies having a disproportionate impact on a protected class violates Title VII

Dothard v Rawlinson (Legal Issue 1)

This was the first Supreme Court Case addressing disparate impact based on sex

Cheatwood v So. Cent. Bell Tel & Tel Co

To qualify as a BFOQ, employees must show that all or substantially all women would be unable to perform safely and efficiently the duties of the position involved

Diaz v Pan American World Airways Inc

Relates to customer preferences, found that discrimination based on sex is only valid when the “essence of the business operation would be undermined by not hiring members of one sex exclusively,” furthermore, preferences and prejudices of the customers do not justify discriminatory treatment of employees

Dothard v Rawlinson (Legal Issue 2)

This case addressed the scope of BFOQ exceptions, holding was that the Alabama Board of Corrections’ ban on women in “contact positions” did NOT violate Title VII because being male is a BFOQ to being a prison guard. Dissent reasoning is that it is not brute force keeping prisoners under control, it’s psychological weapons & also the prison wasn’t being operated in a normal way

UAW v Johnson Controls

relates to safety concerns, holding was that a policy barring the participation of potentially fertile and pregnant women in occupations that could be detrimental to their reproductive capacities constituted sexual discrimination AND WAS in violation of Title VII. Distinctions based on sex must relate to the employee’s ability to perform the duties of the job, not decisions about potential future children’s welfare

Healey v South Wood Psychiatric Hospital

Decided that being a woman was a BFOQ for working the night shift treating victims of sexual abuse, because the therapeutic aspects of the childcare specialist job as well as privacy concerns require the consideration of gender

Meritor Saving Bank v Vinson

Supreme Court ruled that both quid pro quo and hostile environment sexual harassment was sex discrimination prohibited by Title VII

Faragher v City of Boca Raton

When are employers responsible for sexual harassment. Answered in Faragher v City of Boca Raton, the liability depends on the kind of harassment and who is the harasser

Ellison v Brady

The Ninth Circuit used a reasonably woman standard to determine whether harassment created a sufficiently hostile work environment to violate Title VII

Robinson v Jacksonville Shipyards

The display of pornography in the workplace was found to have created a sufficiently hostile working environment to violate Title VII

Harris v Forklift Systems Inc

Supreme Court held that the victim does not have to provide tangible psychological injury, but only needs to show: they perceived the environment to be harassing, a reasonable person in the victim’s position find that environment harassing

Rene v MGM Grand Hotel Inc

What if harassment was motivated by hostility to a person’s sexual orientation? The motivation is not relevant

Cleveland Board of Ed v LaFleur

The school board violated the 14th Amendment’s Due Process Clause by requiring pregnant teachers to take unpaid maternal leave

General Electric Co v Gilbert

Equality is treating similarly situated people the same, and pregnant women are not similarly situated to “non-pregnant persons: so the Equal Protection Clause and Title VII don’t apply

California Federal Savings v Guerra

Maternity leave policy did not violate Title VII, it provides a floor not a ceiling

Young v United Parcel Service Inc

Failing to accommodate pregnant workers with medical needs while accommodating other workers medical needs violates the Pregnancy Discrimination Act

Chambers v Omaha Girls Club, Inc

Nonpregnancy DOES qualify as a BFOQ under Title VII, it was considered business necessity

Corning Glass Works v Brennan

EPA Burden of Proof: The plaintiff must show that employers pay different wages to employees of opposite sex for equal work under similar working conditions, the Employer then has the burden of proof to show that the pay differential is justified under one of the Act’s four exceptions, working conditions: surroundings and hazards, not different time of day