Published on December 17, 2007
Constitutional Limits on Sex-Based Discrimination: Constitutional Limits on Sex-Based Discrimination Eco 336 I. Paternalism – Pre-1971 : I. Paternalism – Pre-1971 Foundation of US system was English Common Law Operated under 3 basic assumptions about women’s 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 woman’s relationship to her husband was “something better than his dog, a little dearer than his horse” (Kay & West, p. 11) I. Paternalism (cont): 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”. I. Paternalism (cont): I. Paternalism (cont) Equal Protection tests – RATIONAL BASIS TEST REASONABLE RELATIONSHIP TEST (Kay, pp 29) Pre-1971 The law must be a reasonable measure designed to achieve a legitimate government purpose. 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 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. Paternalism (Cont): Paternalism (Cont) Important Court Cases (15th Amendment, 1870, Right to vote cannot be denied based on color, race, servitude) Bradwell v Illinois, 1873 Myra Bradwell’s application for a license to practice law had been denied by the Illinois Supreme Court solely because she was a woman. See handout for excerpts from ruling. 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. I. Paternalism (Cont): 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. I. Paternalism (cont): I. Paternalism (cont) (19th Amendment – Women’s 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. II. Turning Point - 1971: 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. II. Turning Point - 1971: II. Turning Point - 1971 Sex as a Suspect Classification Frontiero v. Richardson (1973) FACT, ISSUES? “Classifications based on sex should be treated as suspect, like … race, alienage, and national origin, are inherently suspect, and must therefore be subjected to close strict scrutiny.” “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. II. Turning Point - 1971: 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. Stricter test. Intermediate (“heightened”) scrutiny test. Summary: Summary The Equal Protection Clause of the 14th Amendment has declined in significance as a format for expanding women’s rights. Women and Employment : 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 employees…at a rate less than the rate at which he pays wages to employees of the opposite sex…for 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 work”…necessarily must be decided on a case-by-case basis.” Kay, p. 924. See handouts. II. Title VII of the Civil Rights Act of 1964: 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 individual’s race, color, religion, sex, or national origin”, and to “segregate or classify employees…based on race, color, religion, sex, or national origin”. Other protected classes? II. Title VII (cont): 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-identifiable factors. Phillips v. Martin Marietta (1971) Facts, issues, ruling. II. Title VII (cont): 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 testing…Congress 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) II. Title VII (cont): II. Title VII (cont) Title CII cases further defining what prohibited discrimination (cont) Jobs in which “religion, sex, or national origin is a bona fide occupational qualification (BFOQ) reaonably necessary to the normal operation of that particular business…” Diaz v. Pan Am (1971) – see Kay, pp. 785-787 “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”. II. Title VII (cont): 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…” “All…dangers – 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 women…are seductive sexual objects”. P. 781 & 782 Hooters II. Title VII (cont): 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-related 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. UW Supreme Court ruling similar to that in Geduldig. 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 SC’s narrow interpretation of Title VII.