SWG 222 Midterm Study Guide

Intersectionality

Recognizes how multiple aspects of identity interact on institutional/interpersonal levels. Moving away from single-axis frameworks & top-down approaches to social justice

Constitutional Law

In the (national/state) Constitution. Affects individual liberties

Statutory Law

Comes from legislative bodies (Congress, state legislatures). Anticipating problems.

Common Law

Comes from precedents, past decisions by other courts. Stare decisis - let the decision stand

Administrative Law

Technical orders/rules/regs by government agencies. Executive orders.

Trial Courts

Determine facts of the case. OG jurisdiction = 1st court to hear a case. Must hear all cases!

Negative rights

States must REFRAIN from discriminating. protects individual liberty

Remedies for Title VII discrimination

Backpay, reinstatement, attorney's fees/court costs. Civil Rights Act of 1991 expanded to include compensatory & punitive damages

Gender identity discrimination

Discrimination based on gender identity

Title VII of the Civil Rights Act of 1964

Prohibits employment agencies, employers & unions from discriminating against applicants & employees on the basis of race, color, religion, national origin or sex.

Los Angeles Dept. of Water v. Manhart

True generalizations about women as a class cannot justify discrimination against an employee. Title VII protects individuals; courts must compare individual characteristics, not class characteristics.

Lindahl v. Air France

Without direct evidence of discrimination, a plaintiff can prove discrimination by showing that the employer's justification for the suspect employment decision is unworthy of credence.

General Electric Co. v. Gilbert

Excluding pregnancy from an employer disability plan isn't sex discrimination because it doesn't discriminate between men and women but between "pregnant women and nonpregnant persons."

Appellate Courts

Review decision from trial court- was law/legal procedures properly followed? Not required to hear case!

Civil law

Btwn individuals, defendant v plaintiff. Defines legal rights.

Political liberalism

Individual liberty, civil rights/political freedom, equality → Democratic government. Argument made in early women's rights movement

Substantive equality

Transforms the oppressive structures/institutions. Equal outcomes, equal opportunities. Intersectional.

Human rights

Basic rights we are all entitled to as human beings

Social feminists

Treat men & women differently. Pro protective labor legislation

Rational basis scrutiny

Supreme Court test to see if a law violates the Equal Protections clause. Classification must be RATIONALLY related to a LEGITIMATE governmental objective. Challenger must prove illegitimate objective or that the law isn't rationally related to it

Sexual orientation discrimination

Discrimination based on sexual orientation

Vertical occupational segregation

Hierarchy of jobs. Women in low-ranked, low-pay jobs compared to men in same field.

Bradwell v. Illinois

The right to practice law is not a privilege of citizenship; it does not violate the privileges & immunities clause. Concurrence used separate spheres ideology & justified by history, nature & divine ordinance.

Muller v. Oregon

Upheld protective labor laws for women under due process clause.

Orr v. Orr

Requiring men to pay alimony but not women violates equal protection clause. Statute must be "carefully tailored" (gender neutral unless otherwise necessary). (Intermediate scrutiny)

Dothard v. Rawlinson

Plantiff only needs to prove that facially neutral standards create a discriminatory pattern when put in effect. Supreme Court approved "narrow interpretation" of BFOQs.

Criminal law

Btwn private person (defendant) & state (prosecutor).

Coverture

Common law doctrine. Husband and wife viewed, legally, as 1 person. Control over property, children, body

Separate spheres ideology

Women belong in the home, men in the workforce. Gender differences are innate and natural.

Ideology of True Womanhood

Pious, pure, submissive & domestic. Reformers used to justify women in the public sphere - "our purity will clean up the world"

Republican Motherhood

White women as the "civic moral example" to raise virtuous sons

Married Women's Property Acts

Altered coverture to include right to buy/sell/own property, file lawsuits. Passed to safeguard family property, but large step for women's movement

Woman suffrage movement (arguments for and against votes for women)

Main goal & purpose of first-wave feminism. FOR: inalienable right, makes them better wives/mothers, "social housekeeping," racism. AGAINST: Women belong in the private sphere (would make them worse wives/mothers)

Equal Rights Amendment

Proposed amendment (27th) stating you cannot deny civil rights based on sex

Formal equality

Legal/institutional equality & freedom. Not intersectional.

Civil rights

The rights of citizens to political/social freedom and equality

Positive rights

Overt government action towards economic, social and cultural rights

Egalitarian feminists

Treat men & women equally. Pro ERA

Protective labor legislation

Laws enacted to protect women from the dangers of work, based on the 'separate spheres' ideology. Reduced opportunities for women in workforce.

Strict scrutiny

Supreme Court test to see if a law violates the Equal Protections clause. Government must prove the classification is NECESSARY to achieve a COMPELLING government objective. Used in race discrimination cases

Intermediate scrutiny

Classification must be SUBSTANTIALLY related to an IMPORTANT statutory objective. Government must prove its constitutionality - law is presumed unconstitutional. Used in most sex discrimination cases

Facial discrimination

Explicit discrimination based on sex. Admittially intentional.

Sex-plus discrimination

Discrimination against a SUBSET of a class, not every member (ex: pregnant women, feminine men)

Disparate treatment

Employer denies intentional discrimination. Prima facie - Plaintiff provides evidence proving discrimination based on sex. Rebuttal - Employer argues legitimate, nondiscriminatory reason for their actions. Pretext - Plaintiff proves this ^^^ was not the true reason (direct or indirect evidence)

Disparate impact

Facially neutral but falls more harshly on one group. Prima facie - Plaintiff provides evidence proving disparate impact. Rebuttal - Employer argues practice is a) job-related and b) a business necessity. Pretext - Plaintiff provides alternative, nondiscriminatory business practice

Bona fide occupational qualification (BFOQ)

NECESSARY sex/religion/nationality employment qualification. Exception to facial discrimination. Limited to a) interference w/ ability to perform job and b) what is "reasonably necessary" to normal operation

Equal Employment Opportunity Commission (EEOC)

Federal agency regulating & enforcing Title VII

Second generation discrimination

Unconscious bias affects workplace culture, creating discriminatory structures. Replaced deliberate sex discrimination.

Sex-stereotyping theory of discrimination

Sex-stereotyping discrimination is sexual harassment under Title VII.

Quid pro quo

Supervisor makes unwelcome sexual advances/demands of an employee by offering TANGIBLE job benefits or threatening job detriment. Employers are ALWAYS LIABLE.

Hostile environment

Unwelcome sexual/sex-based conduct that creates an intimidating/hostile work environment. Conduct must be "severe" or "pervasive." Employers are liable IF NO TANGIBLE EMPLOYMENT ACTION IS TAKEN, unless employer exercised "reasonable care" to prevent and plaintiff didn't use available "preventative/corrective" measures.

Pregnancy discrimination

Employment discrimination against pregnant employees/applicants

Family responsibilities/caregiver discrimination

Includes sex-based disparate treatment towards caregivers, sex-stereotyping mothers & hostile work environment.

Motherhood penalty

Tendency of mothers to be disadvantaged in hiring/wages compared to women w/o children

Wage gap

Level of women's income compared to men (significantly lower)

Occupational segregation

Separation of men & women into diff. Jobs

Horizontal occupational segregation

High-rank, high-pay jobs are dominated by men across many fields.

5th Amendment Due Process Clause

Government can deprive a person of "life, liberty or property" only according to law applied by a court and in accordance with fair procedures.

14th Amendment Privileges and Immunities Clause

A citizen may not be denied their rights in any state.

14th Amendment Equal Protection Clause

Prohibits states from denying equal protection under the law. Used to combat discrimination.

19th Amendment

1920. Gave women the right to vote.

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

International Bill of Rights for women that promotes substantive equality.

Civil Rights Act of 1991

Amended parts of Title VII of the Civil Rights Act of 1964. In sex discrimination cases, sex need only be "a motivating factor, even though other factors also motivated the practice" for it to violate Title VII. Expanded available remedies to compensatory & punitive damages.

Pregnancy Discrimination Act (1978)

Terms "because of sex" or "on the basis of sex" in Title VII include pregnancy & childbirth; women affected must be treated the same as others in their ability/inability to work.

Pregnancy Workers Fairness Act (2023)

Requires employers to provide disability accomodations to pregnant employees.

Family Medical Leave Act (FMLA) (1993)

Provides 12 weeks of unpaid leave for family-related medical circumstances. Applies to private employers w/ 50+ employees. Requires employers to reinstate employee to the same/equivalent position (same pay, benefits and conditions).

Equal Pay Act (1963)

Employers prohibited from paying employees of the opposite sexes at different rates for jobs equivalent in terms of skill, effort, responsibility & working conditions. Applies to work done by women that is "substantially similar" to work done by higher-paid men.

Lilly Ledbetter Fair Pay Act (2009)

Amended Title VII to address wage gap; reversed backpay limitations to allow full compensation for every discriminatory paycheck issued.

Minor v. Happersett

The right to vote is not a privilege of citizenship; denying women suffrage does not violate the privileges & immunities clause.

Goesaert v. Cleary

Law prohibiting women from bartending doesn't violate equal protection clause. Law is rational because it protects women from "moral and social hazards."

Hoyt v. Florida

Not requiring women to serve on juries does not violate the equal protection clause. Law is rational because women may have "family obligations" that prevent them from serving on juries. Upheld idea that women are second-class citizens.

Reed v. Reed

Sex preference for who administers a child's estate violates the equal protection clause. Ruled that law was arbitrary & not based on legitimate objectives. (Rational basis + higher scrutiny)

Frontiero v. Richardson

Denying a female soldier the right to claim her husband as a dependant violates the due process clause because it's based on discriminatory stereotypes. (Plurality voted to use strict scrutiny, dissenting voted to use rational basis)

Craig v. Boren

Law prohibiting beer to -21 males violates equal protection clause. Created intermediate scrutiny - sex classification isn't substantially related to an important government objection.

Phillips v. Martin

Refusing to hire women w/ preschool kid while hiring men in the same position violates the Civil Rights Act of 1964. (Sex-plus discrimination)

Marietta Corp. Personnel Admin'r of Mass. v. Feeney

Establishing employment preference for veterans does not discriminate against women under equal protection clause. (If classification is facially neutral/unintentionally discriminatory, use rational basis standard)

Michael M. v. Superior Ct. of Sonoma Cty.

Equal protection clause regards men solely responsible for statutory rape bc only women can get pregnant. (If statute based on "real differences," use rational basis standard)

Miss. Univ. for Women v. Hogan

Single-sex admissions policy to nursing school violated equal protection clause. State did not sufficently relate sex-based discrimination to gov't objective. (Intermediate scrutiny)

Nichols v. Azteca Restaurant Enterprises

Discrimination based on sex-sterotyping violates title vii under the "because of sex" clause. (Sex-plus discrimination)

Bostock v. Clayton County

Title VII prohibits discrimination based on sexual orientation and/or gender identity. (Plain meaning of sex)

EEOC v. Brown & Root, Inc.

"Because of sex" clause means if the plaintiff wouldn't have been fired "but for" her gender, then she was discriminated against under title vii.

Texas Dept. of Comm. Affairs v. Burdine

In disparate treatment cases the employer only needs to produce a clear explanation of the nondiscriminatory reasons for their actions. The plaintiff has the burden of persuasion (prove that's not the true reason).

Price Waterhouse v. Hopkins

Employment decisions decided in part by sex-stereotyping violates title vii, unless same decision would've been made regardless of gender (mixed motives). Reversed by Civil Rights Act of 1991.

Griggs v. Duke Power Co.

An employer's policies that are facially-neutral but have a disproportionate impact on protected classes violates Title VII. Set the burden of proof for disparate impact cases.

Cheatwood v. So. Cent. Bell Tel. & Tel. Co.

To qualify as a BFOQ, employers must show that all or substantially all women would be unable to perform the job's duties safely & efficiently.

Diaz v. Pan American World Airways, Inc.

Discrimination based on sex is valid only when the "essence of the business operation" necessitates hiring one sex. Customer preference/prejudice doesn't justify.

U.A.W. v. Johnson Controls

Sex distinctions must be based on employee's ability to do the job, not the welfare of potential children. Speculative tort liability isn't a justification.

Healey v. Southwood Psychiatric Hospital

Key responsibilites of the job and privacy/safety concerns both allow BFOQ exceptions.

Meritor Saving Bank v. Vinson

Quid pro quo & hostile environment sexual harassment are sex discrimination prohibited by Title VII.

Faragher v. City of Boca Raton

Employers are not automatically liable for sexual harassment. Always liable for quid pro quo. Hostile environment depends on if they had corrective opportunities, and if the employee took advantage of them.

Ellison v. Brady

Court used a "reasonable woman" standard to determine whether hostile environment sexual harassment violated Title VII.

Robinson v. Jacksonville Shipyards

Employer is liable for hostile environment sexual harassment even if the victim suffers no psychological harm. Display of porography was sufficient enough.

Harris v. Forklift Systems Inc.

Plaintiff does not need to prove tangible injury, just that 1) they percieved the environment to be hostile and 2) a "reasonable person" in their situation would as well.

Burlington Northern & Santa Fe Railway Company v. White

Retaliation is illegal under Title VII. Plantiff 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."

Cleveland Board of Ed. v. LaFleur

State can't compromise women's procreative rights by presuming their inability to work during pregnancy.

California Federal Savings v. Guerra

Maternity leave policies don't violate Title VII. The intent of the PDA was "to guarantee women the basic right to participate fully and equally in the workforce, without denying them the fundamental right to full participation in family life."

Young v. United Parcel Service, Inc.

Failing to accommodate pregnant women w/ medical needs (while accomodating non-pregnant workers) violates the PDA.

Chambers v. Omaha Girls Club, Inc.

Nonpregnancy qualifies as a BFOQ because the "role model rule" is justified by business necessity and therefore does not violate Title VII.

Corning Glass Works v. Brennan

Under the Equal Pay Act, working conditions refer to surroundings and hazards, not the time of day. Set the EPA burden of proof.