Definitions for GLP Midterm

Intersectionality

The idea that different social identities (race, class, sexuality, gender, etc) overlap to form a unique intersection of marginalization or privilege.

Sources of law (constitutional, statutory, administrative, and common law)

Constitutional law is law set out by the US Constitution, the highest law of the land. Statutory law is derived from legislative bodies, like the US Congress, state legislatures, and city councils. There are often jurisdictional differences. Common law is based on past precedents looked to in absence of statutory law. Administrative law is passed by governmental agencies and executive orders.

Trial and appellate courts

Trial courts: courts of original jurisdiction that must hear all cases they are assigned. Determine the facts of the case. Hear the case first.

Appellate courts: Determine whether the law was properly applied and/or legal procedures followed in the lower court by reviewing the decisions of trial courts. Generally don’t have to take every case.

Civil and criminal law

Civil involves private disputes between individuals, with one suing the other for damages or relief, whereas criminal involves the state prosecuting to punish.

Coverture

A historical English common law doctrine stating that a married woman's independent legal existence was suspended and merged into that of her husband.

Separate spheres ideology

idea that men and women have innate, biologically driven differences that assign them to distinct realms of life. Used as justification for a variety of laws and cases, including Hoyt v. Florida and Goesaert v. Cleary.

Benefits: gave women some degree of autonomy, allowed them to organize into religious and social welfare associations, gave access to education, and allowed them to unite

Disadvantages: masked inferior position

Ideology of True Womanhood

Also known as the cult of domesticity. Defined femininity through piety, purity, submissiveness, and domesticity and strictly separated the worlds of men and women.

Republican Motherhood

Idea that a woman's primary political and civic role in the United States was to instill republican values, patriotism, and morality in her children

Political liberalism

Rise in ideas about equality & individual liberty during Revolutionary War period. Enlightenment ideas that informed women’s rights movement.

Married Women’s Property Acts

Enacted by state legislatures and constitutional conventions to make inroads against ‘marital unity’ or coverture. Wanted to give women the right to own property and keep it after marriage, and to execute their own wills.

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

For: “Women should be able to vote before immigrants/Black men”, inalienable rights to liberty and equality, ability of women to bring a moral side to politics, allows them to be better wives and mothers by protecting the home and the weak.

Against: Politics will corrupt women, voting will diminish their abilities to be good wives and mothers, women belong in the domestic sphere, and women voting will lower men’s status

Equal Rights Amendment

Proposed addition to the United States Constitution designed to guarantee equal legal rights for all American citizens regardless of sex. First introduced in the 1920s. ERA not currently certified by the federal archivist— legally uncertain. Failed ratification in a couple states before the deadline, as well as faced organized opposition.

Formal equality

• Same treatment of people who are the same (or similarly-situated)

• Different treatment of people who are different

Substantive equality

• Exposes who is doing what to whom: white supremacy, male domination, etc.

• Focuses on equal results, not just equal opportunity

• Equality of opportunity in terms and access to the resources of a country, to be secured by a framework of laws and policies, and supported by institutions and mechanisms for their operation

Essentially equality that is enforced structurally in such a way that the outcome of equality is guaranteed. (CEDAW)

Civil rights v. human rights

• Civil rights: includes civil and political rights (eg the right to vote, own property, speak freely, and freedom from workplace discrimination)

• Human rights: include not only civil and political rights, but also economic, social and cultural rights

Positive rights v. negative rights

Positive rights: states have to take certain positive actions, like providing housing, food, and medical care. Negative rights: states must refrain from interfering with certain rights.

Social and egalitarian feminists

• Social Feminists:

  • Focused on differences between men and women

  • Believed that women needed special protections

  • Supported protective labor laws

  • NAWSA, League of Women Voters

• Egalitarian Feminists:

  • Ignored differences between men and women

  • Wanted men and women to be treated identically

  • Supported the Equal Rights Amendment

  • National Women’s Party

Protective labor legislation

Progressives pushed for maximum hours laws to protect workers from employers demanding long hours from employees— when they couldn’t get them for all workers, they got them for women.

Strict scrutiny

Used when the statute is suspected of being used as an instrument for discrimination against a traditionally disadvantaged group. Puts the burden of proof on the government. The objective must be compelling and the classification must be necessary.

Intermediate scrutiny

Established by Craig v. Boren. Burden of proof on the government to prove that the objective is important and the classification is substantially related to the objective. Triggered under the Feeney structure by a sex-based classification or when a facially neutral statute is motivated by discrimination.

Rational basis scrutiny

Burden of proof is on the challenger to prove that the classification is rationally related to a legitimate objective. Under Feeney, facially neutral policies that have not been proven to have a discriminatory motive are evaluated under this level of scrutiny.

Facial discrimination

When the very terms establish one policy for employees or applicants who are female and another who are male, regardless of whether they were motivated by benign or prejudiced motive.

Sex-plus discrimination

when an employer discriminates against a specific subgroup of employees based on their sex combined with another characteristic.

Disparate treatment (shifting burdens)

1. Prima facie case: Burden on plaintiff to prove by a preponderance of the evidence that the employer treats qualified members of different sexes differently because of their sex

2. Rebuttal: Burden on defendant to give a nondiscriminatory reason that might have motivated the decision

3. Pretext: burden on plaintiff to show directly or indirectly that the explanation given by the defendant wasn’t the true reason for the employment decision. Can show through direct or indirect methods.

Disparate impact (shifting burdens)

1. Prima facie case: Burden is on plaintiff to show that facially neutral practices disproportionately disadvantages men or women

2. Rebuttal: burden on defendant to show the practice is job related (ie has a manifest relationship to the employment in question and is consistent with business necessity)

3. Pretext: Burden on plaintiff to show equally efficient but less discriminatory alternatives are available to the employer.

Bona fide occupational qualification (BFOQ)

An exception to facial discrimination. Allowed on the basis of religion, sex, or national origin where it is reasonably necessary to the normal operation of the particular business or enterprise.

Remedies for Title VII discrimination

Initially, Title VII only provided hiring or reinstatement, back pay, and attorney’s fees and court costs. After the Civil Rights Act of 1991 amended it, there are greater compensatory and punitive damages available, as well as a guaranteed trial by jury where intentional discrimination is claimed and damages are demanded.

Equal Employment Opportunity Commission (EEOC)

Enforces Title VII. Before bringing a Title VII suit, the plaintiff must file a complaint with the EEOC or the state Fair Employment Practice office within 180 days. Can sue after they get a right to sue letter.

Second generation discrimination

Sexism is in the “organizational culture,” not traceable solely to a single “bad actor.” Rather than overt sexism, it’s unconscious bias in evaluations and mentoring assignments, as well as inflexible workforces.

Sexual orientation discrimination

Bostock v. Clayton County establishes precedent for anti-sexual orientation discrimination. Otherwise, it has to be fit into existing sex discrimination frameworks, which can be done through arguing sex-plus discrimination, motivation by sexual desire, general hostility to the presence of one sex in the workplace, or punishment of victim for noncompliance with gender stereotypes. Many states have their own laws on the books banning sexual orientation discrimination.

Gender identity discrimination

Addressed in Bostock v. Clayton County. 23 states and DC explicitly ban discrimination based on sexual orientation and/or gender identity. Massachusetts has legislation banning discrimination based on gender identity. Federally, it is up in the air due to Trump interpretations of existing policies.

Sex-stereotyping theory of discrimination

Noncompliance with sex stereotyping is a method of proving discrimination based on sex.

Quid pro quo v. hostile environment sexual harassment (unwelcomeness, reasonableness standards, employer liability)

Quid pro quo: Where a supervisor makes unwelcome sexual advances toward or sexual demands of a subordinate employee by offering tangible job benefits (promotion, job training, pay increase) or threatening job detriment (ie have sex with me or you’re fired). Employers are liable if the harasser was a direct supervisor and it culminated in a tangible employment action.

Hostile environment: 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. Meritor Savings Bank v. Vinson established that the sexual harassment must be unwelcome and pervasive or severe enough to create a hostile work environment.

Reasonableness standards: Determined by Ellison v. Brady, Robinson v. Jacksonville Shipyards, Harris v. Forklift Systems.

Employer liability (hostile environment): not automatic (Vinson)— occurs when there is an actionable hostile environment created by an immediate authority, unless there is proof that the employee didn’t mitigate or prevent the harm (Faragher)

Pregnancy discrimination

Discrimination based on pregnancy, childbirth, or related medical conditions, including nursing. PDA, Title VII. Lots of legislation on the matter— Pregnancy Discrimination Act, etc. Cases include General Electric Co. and Young v. United Parcel Service.

Family responsibilities/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 environment

Motherhood penalty

Women are disadvantaged by being working mothers, through not being considered for promotion, decreased bonuses, raises, and promotions, illegal layoffs or jobs reorganized out of existence, sidelining, disproportionate financial punishment, or termination. They also make 73 cents to the average male dollar. Exacerbates stereotypes. Triggered at 3 points: 1) telling others she’s pregnant, 2) returning from maternity leave, 3) asking for accommodations

Wage gap

Largely, the gap between men and women’s wages, but can also refer to gaps between LGBT and heterosexual workers, black and white workers, etc. Women make 81 cents for every dollar a man makes.

Occupational segregation (vertical and horizontal)

The tendency for men and women to be employed in different occupations from each other across the entire spectrum of occupations. Horizontal occurs when men and women go into different occupations, and traditionally male-dominated occupations pay more. Vertical occurs within any particular occupation: men are in the top/higher paying roles and women are stuck at the bottom in lower-paying roles.

Appearance regulation (unequal burdens test)

Jespersen v. Harrah’s Operating Co. established this test. It says that sex-specific appearance regulation is acceptable as long as the rules don’t impose unequal burdens on men and women.