Intersectionality
Kimberlé Crenshaw
Identites exist at margins of oppression and privilege
Sources of law
Constitutional law, statutory law, administrative law, and common law
Constitutional law
US and state constitutions
The US constitution trumps state constitutions
Statutory law
Derived from legislative bodies: US congress, state legislatures, city councils
Administrative law
Executive order - legal orders declared by the executive officers of localities, states, or the President of the United States
Common law
Stare decisis: "let the decision stand"
Trial courts
Determine the facts of the case
Courts of original jurisdiction (first courts to hear a case)
Appellate courts
Determine whether the law was properly applied (error of law) and/or legal procedures (error in procedure) followed in the lower court
Usually not obligated to hear all cases
Civil law trials
A dispute between two private parties
Plaintiff - initiates the civil suit and can be award monetary damages if they win
Civil law process
Plaintiff files a complaint
Defendant files a response
Defendant may file a motion to dismiss
Criminal law
The state (prosecutor) brings charges against a private person (defendant)
Coverture
Marital unity doctrine
Separate Spheres Ideology
Public and private spheres
Ideology of true womanhood
Women as pious, pure, submissive, and domestic
Thought to not have any sexual desires
Upper/middle class ideal excluded those who had to work
Ideology of domesticity --> justify their participation in the public sphere
Ideology of domesticity
Clean up the world
Kinda led to the social work field
Republic motherhood
White women as "custodians of civic morality"
Expected to raise virtuous sons on whom the health of the Republic depended
Quasi-political role
Political liberalism
Individual liberty
Equality
Married Women's Property Acts
29 states passed married women's property acts between 1839-1865
These acts began to empower women to own property and to sue and be sued in their own names
Why were they passed?
In the northeast, a lot of the laws were a result of female efforts
Why were they passed?
To safeguard family property, i.e. to protect father's property from son-in-law's creditors
Mississippi passed the first property act because fathers wanted to keep control of the things that they gave their daughters (often slaves)
Woman suffrage movement (arguments for and against votes for women) for
Political liberalism: women have an inalienable right to liberty and equality
Ideology of domesticity: the vote will enable women to be better wives and mother
"Social housekeeping" arguments: the vote will enable women to "clean up politics," decrease vice (e.g. alcohol), and protect the weak (e.g. child labor laws)
Woman suffrage movement (arguments for and against votes for women) against
Women stop being in the home
Equal Rights Amendment
First draft, 1923
WWII
Push in second wave feminism
Why'd it fail?
First draft, 1923
Men and women shall have equal rights throughout the United States and in every place subject to its jurisdiction
WWII
Equality of rights under the law shall not be denied or abridged by the United States or by any State on the account of sex
Push in second wave feminism
1972, the Equal Rights Amendment (ERA) passed congress and went to the states for ratification
"Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex"
Why'd it fail?
Well-organized opposition movement: Phyllis Scholarly and STOP ERA
Supreme Court decisions eliminated the most compelling arguments in favor of the ERA
Proponents failed to organize adequately
Formal equality
Same treatment of people who are the same (or similarly-situated)
Different treatment of people who are different
Abstract Aristotelian approach
Paradox: equality is defined as sameness, but sex is defined as difference
Virtual equality
Substantive equality
Focuses on harm and disadvantage rather than sameness and difference
Exposes who is doing what to whom: white supremacy, male domination, etc.
Civil rights
Include civil and political rights (e.g. 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
First generation/negative rights
States must refrain from interfering with certain rights
Second generation/positive rights
States have to take certain positive actions, such as provide housing, food, and medical care
Social feminists
Focused on differences between men and women
Believed that women needed special protections
Egalitarian feminists
Ignored differences between men and women
Wanted men and women to be treated identically
Protective labor legislations
Based on women's differences from men
Maximum hour laws
Laws prohibiting night work
Minimum wage laws
Based on women's differences from men
The women advocating for labor laws were laborers, usually white
HEY LOOK AT THAT ONE REALLY HELPFUL TABLE
Factors for heightened scrutiny
The group has suffered a history of invidious discrimination
The characteristics that distinguish a group's members bear no relationship to their ability to perform or contribute to society
Strict scrutiny
Applies to laws classifying citizens based on race and national origin
Test: whether the classification is necessary to achieve a compelling governmental objective
Intermediate scrutiny
In between, applied to sex
If a state is going to pass a law that specifically discriminates between men and women, need to prove direct and rational interest
Rational basis scrutiny
Applies to most laws that classify among citizens
Test: whether the classification is rationally related to a legitimate governmental objective
Facial discrimination
Explicit discrimination based on sex
Sex-plus discrimination
Mothers
Disparate treatment (shifting burden of proof)
When an employer treats some people less favorably than others because of their race, color, religion, sex, or national origin
Employer does not admit discrimination (v. facial discrimination)
Proof of discriminatory motive is crucial
Over 90% of cases are disparate treatment
Burden of production
Burden of persuasion
Prima facie case: plaintiff provides evidence that she applied for an available position for which she was qualified but was rejected under circumstances which give rise to an inference of unlawful discrimination because of sex
Rebuttal: the defendant employer then articulates a legitimate, nondiscriminatory reason for the challenged action (must be "clear and reasonably specific")
Pretext: plaintiff wins if they can show that the employer's explanation was not the real reason for the action (by direct or indirect evidence)
Burden of production
The burden of producing some evidence to support your side
Disparate impact (shifting burden of proof)
Also called "pattern and practice" cases
Practices that are facially neutral in their treatment of different groups but in fact fall more harshly on one group than another and cannot be justified by business necessity
Proven by statistical data
Less than 2% of cases are disparate impact
Bona fide occupational qualification (BFOQ)
Exception for facial discrimination
"Reasonably necessary to the normal operation of that particular business or enterprise"
Cannot be based on:
Often based on
Virtual equality
Conditional equality
Burden of persuasion
The burden to prove your case
Ultimate burden of persuasion rests with the plaintiff
Pretext: plaintiff wins if they can show that the employer's explanation was not the real reason for the action (by direct or indirect evidence)
Direct proof of discrimination
Indirect proof of discrimination
Cannot be based on:
Assumptions of the employment characteristics of women or men in general
Stereotyped characterizations of the sexes; or
Often based on:
Authenticity and genuineness (actor, actress)
Privacy: businesses must be permitted to satisfy the privacy concerns of their customers if they are to prosper (restroom attendant)
Safety and security: if directly related to business necessity
Remedies for Title VII discrimination
Title VII only provided hiring or reinstatement, back pay, and attorney's fees and court costs
Equal Employment Opportunity Commission (EEOC)
Enforces Title VII
Second generation discrimination
Many researchers believe that unconscious bias in evaluations, mentoring, and assignments, and inflexible workplace structures have largely replaced deliberate sex discrimination in employment, particularly for managerial and professional positions
Sexual orientation discrimination / Gender identity discrimination
Traditional approach
Azteca says sexual orientation may fall under but for sex
Bostock says sexual orientation and gender identity both fall under plain meaning of sex
Traditional approach
Title VII does not prohibit discrimination based on gender identity or sexual orientation
Quid pro quo sexual harassment (unwelcomeness, reasonableness standards, employer liability)
Where a supervisor makes unwelcome sexual advances toward or sexual demands of a subordinate employee
Offering tangible job benefits (promotion, job training, pay increase)
Or threatening job detriment (e.g. have sex with me or you're fired)
Liability
Liability
Employers are liable for quid pro quo sexual harassment culminating in a tangible employment action (discharge, demotion, undesirable reassignment) by supervisory employees
Hostile environment sexual harassment (unwelcomeness, reasonableness standards, employer liability)
Unwelcome sexual or sex-based conduct
Unreasonably interferes with an individual's performance at work
Creates an intimidating, hostile, or offensive work environment
Must be "severe or pervasive"
Unwelcomeness
Liability
Unwelcomeness
Correct inquiry is whether the conduct was unwelcome, not whether it was voluntary
Liability
When no tangible employment action is taken, an employer is responsible for hostile environment sexual harassment by a supervisor unless they can prove
That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior
Reasonable woman standard
The frequency of the discriminatory conduct
Whether it is physically threatening or humiliating rather than merely offensive, and
Pregnancy discrimination
Discrimination based on pregnancy, childbirth, or related medical conditions, including nursing
Feminist division over
Equal treatment
Special treatment
Equal treatment
Pregnancy should be treatment as a liability under existing disability leave policies
Special treatment
Pregnancy is a unique condition that warrants special treatment in order to facilitate women's balancing family and work roles
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
Mothers less likely to be hired, likely to be paid less, "motherhood wage penalty," "maternal profiling"
Wage gap
Wage gap is greater for part-time workers than full-time workers
College educated women and older women experience a greater wage gap
Occupational segregation (vertical and horizontal)
Horizontal = across occupations, tendency for men and women to be employed in different occupations from each other across the entire spectrum of occupations
Vertically = within the hierarchy of occupations, work traditionally done by women has lower wages, lower status, and fewer opportunities of advancement than work done by men
Vertically = within the hierarchy of occupations, work traditionally done by women has lower wages, lower status, and fewer opportunities of advancement than work done by men
"Pink collar jobs"
Appearance regulation (unequal burdens test)
Court applied the "unequal burdens test":
5th Amendment Due Process Clause
The 5th Amendment applies to the federal government
"No person shall... be deprived of life, liberty, or property without due process of law"
14th Amendment Privileges and Immunities Clause and Equal Protection Clause
All persons born or naturalized in the Untied States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside
Significant clauses
Significant Clauses
Privileges and immunities clause
Due process clause
Equal protection clause
19th Amendment
Right for women to vote
1920
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Adopted by the United Nations General Assembly in 1979 and came into force in 1981
CEDAW is an international bill of rights for women
Title VII of the Civil Rights Act of 1964
Has become major tool to respond to sexual harassment and retaliation
Prohibits discrimination on the basis of race, color, religion, sex, and national origin
"It shall be an unlawful employment practice for an employer to... discriminate against any individual with respect to his (or her) compensation, terms, conditions, or privileges of employment because of such an individual's race, color, religion, sex, or national origin"
Applies to businesses employing more than 15 people
Protects men as well as women
Only have to prove discriminatory impact, not intent - unlike equal protections clause
Title VII only applies to employers with more than 15 employees
Affirmative action
Applies to businesses employing more than 15 people
Domestic workers often not covered
Affirmative action
Is the affirmative action plan consistent with the purpose of Title VII to overcome manifest statistical imbalance in traditionally segregated jobs?
Does the plan "unnecessarily trammel" interests of non-preferred group
Absolute or relative preference
Civil Rights Act of 1991
Sex need only be "a motivating factor, even though other factors also motivated the practice"
Pregnancy Discrimination Act (1978)
"The terms 'because of sex' or 'on the basis of sex' include... pregnancy, childbirth, or related medical conditions; and women affected by the for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other person not so affected but similar in their ability or inability to work"
Family Medical Leave Act (FMLA) (1993)
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 serious illness preventing performance on the job
Applies to private employers employing more than 50 employees and to public agencies
Equal Pay Act (1963)
Employers are prohibited form paying employees of the opposite sexes at different rates for jobs that are equivalent in terms of skill, effort, responsibility, and working conditions
The EPA generally does not apply to differentiation in the rates of pay among different job classifications or workers at different "establishments"
However, the EPA does apply to jobs in distinct classifications where the work performed by women workers is "substantially similar" to that performed by better-paid men
Different payment to employees of the opposite sexes is allowed under four circumstances
Exemptions: e.g. outside sales, representatives, farmworkers employed on small farms, elder caregivers, etc.
Different payment to employees of opposite sexes is allowed under four circumstances
A seniority system
A merit system
A system which measures earning baby quantity or quality of productions
A differential based on any other factor other than sex
Lilly Ledbetter Fair Pay Act (2009)
Reversed the following Supreme Court decision
Reversed the following Supreme Court decision
Ledbetter v. Goodyear Tire
Severely restricted the statue of limitations for Title VII cases
Bradwell v Illinois (1873)
Principle: access to professions, 14th amendment privileges and immunities
Reasoning: the right to practice law is not a privilege of national citizenship protected by the Constitution
Bradley Concurrence: separate spheres ideology
Reed v Reed (1971)
Principle: Intermediate scrutiny, 14th amendment, equal protection
Reasoning: law is arbitrary and not based on legitimate objectives
Michael M. v. Superior Ct. of Sonoma Cty. (1981)
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"
Texas Dept. of Comm. Affairs v. Burdine (1981)
Principle: burden of proof is with plaintiff but defendant must give non-discriminatory reason for employment action (so can challenge)
Legal issue: Whether Title VII requires the employer to prove a legitimate, nondiscriminatory reason for not promoting a woman?
Reasoning: The burden of proof always rests with the plaintiff but the defendant has a burden of articulating a nondiscriminatory reason for the challenged employment action
Diaz v. Pan American World Airways, Inc. (1971)
Principle: customer preference is not a BFOQ
Legal Issue: whether being female was a BFOQ for being a flight attendant
Reasoning: Discrimination based on sex is valid only when the "essence of the business operation would be undermined by not hiring members of one sex exclusively"
Robinson v. Jacksonville Shipyards (1991)
Display of pornography in the workplace was found to have created a sufficiently hostile working environment under Title VII
Young v. United Parcel Service, Inc. (2015)
Principle: pregnancy discrim and PDA
Goesaert v. Cleary (1948)
Principle: Protective labor law, moral and physical, 14th amendment, equal protection
Reasoning: law is rational because it protects women from moral and social hazards
Phillips v. Martin Marietta Corp. (1971)
Principle: sex plus discrimination
Plaintiff's Argument: this policy was sex discrimination in violation of Title VII because of the Civil Rights Act of 1964
Court's Ruling: The Supreme Court ruled that "sex plus" violated Title VII
Miss. Univ. for Women v. Hogan (1982)
Principle: equal protection, persuasive justification for segregated education, intermediate scrutiny
Reasoning: applying intermediate scrutiny, the court found that the state failed to show that barring men from the nursing program was substantially related to an important governmental objective
State must show an "exceedingly persuasive justification"
EEOC v. Brown and Root, Inc. (1982)
Principle: but for sex,
Legal issue: was the woman fired because of sex
Reasoning: men who froze in similar circumstances were not fire so she was fired but for her sex
Price Waterhouse v. Hopkins (1989)
Principle: sex stereotyping in employment decisions violates VII
Reasoning: her sex played a motivating part in the employment decision
Decision reversed in part by the Civil Rights Act of 1991
Dothard v. Rawlinson (1977)
Principle: case developed a three step burden of proof for disparate impact cases
Legal issue: whether requirements violate Title VII
Reasoning: Alabama did not produce evidence correlating height and weight to the requisite amount of strength necessary to do the job
Height and weight requirements not allowed, but only male BFOQ was allowed!
Principle: safety BFOQ
Reasoning: the essence of the job is the maintain prison security; a female guard's ability to maintain prison security is "reduced by her womanhood"