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Because of Sex: Sex Discrimination
Villanova University School of Law
Juliano, Ann C.

Because Of Sex
Professor Juliano
Spring 2011
Formal Equality: Overview
·         Formal Equality = equal treatment
–          Similarly situated individuals should be treated alike, according to their actual characteristics rather than on the basis of assumptions/stereotypes about their sex, race, or other irrelevant characteristic
·         Often focused on eliminating the stereotypes that inaccurate/perceived differences
–          “Archaic and overbroad”
–          Individuals who do not fit the stereotype are doubly harmed
–          Even when true, the use stereotypes perpetuates the “problem”
·         Major Criticism: fails to address the dilemma of disparate impact –
–          what to do when rules or practices are “formally equal” with respect to men and women but create different outcomes or impact each gender disproportionately.
·         Requires the law to be gender-neutral – that on its face, it does not discriminate against men or women:
–          Provide men and women equal opportunity to exercise civic responsibility (voting, jury duty)
–          Public benefits be available on the same terms
–          Property rules, tax liability, alimony, etc. be sex-neutral
–          Employers use the same hiring/firing criteria for men and women
·         Principles played a major part in developing SCOTUS standard of review for sex discrimination cases:
–          Prior to 1971 the court used a “State Action” test
                         o   See: Muller v. Oregon; Goesart v. Cleary
–          In 1971, the court began moving to the current “intermediate” standard
                         o   See: Reed v. Reed
                         o   See: Craig v. Boren: a classification based on sex must serve important governmental objectives and be substantially related to the achievement of those objectives
                         o   See: J.E.B. v. Alabama: a sex-based classification must be supported by an exceedingly persuasive justification
Intermediate Standard of Review Process:
·         Is there a classification based on (because of) sex?
–          The government cannot avoid using classifications when making the law (ex. drinking age, education level requirements, etc.)
–          however the state cannot – on the basis of administrative convenience alone – rely on sex based classifications
·         What is the government’s objective in enforcing the classification?
–          Objectives based on assumptions, stereotypes, “traditional gender roles” etc. are not acceptable
                         o   Examples are generalizations that are overbroad or not factually supported, and those that are prescriptive (i.e. the woman’s place is in the home not at work)
–          Mere administrative convenience is not acceptable  
·         Does enforcing the classification actually serve the government’s interest?
–          Even if the objective is legitimate, statutes must be narrowly tailored to support the objective
–          Some classifications may be invalid because even if true of women in general, they are not true for each individual woman
                         o   Ex. woman as a group may not be as strong as men, however an individual woman should be given the opportunity to prove that she meets the strength requirements of a particular job
Formal Equality: Establishing Intermediate Scrutiny
Reed v. Reed (1971) (15) – “must be reasonable, not arbitrary… fair and substantial relation”
  §   ID State Statute: Males must be preferred to females when administering the estate of one who die intestate
–          So Mother was not allowed to be executor of her son’s estate
  §   State Interest: Reducing workload on probate court by eliminating one class of contest, eliminate hearings.
  §   Held: Violates EPC.  Used rational basis test: must have a reasonable, NOT arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike
  §   Significance: Legislatures can no longer use administrative convenience as a reason for excluding women.   Court was silent on whether gender would be “suspect class” subject to strict scrutiny
Frontiero v Richardson (1973) (17)
  §   Federal Statute: Member of armed services with dependents are entitled to increased “basic allowance for quarters” and member’s dependents are provided comprehensive medical and dental care.  But treated men and women differently:
–          Married man was automatically entitled, regardless of whether his wife earned a lot or little. 
–          BUT married women, was unable to obtain such benefits unless she proved that her husband was dependent on her for more than ½ of his support.
–          Different treatment of men and women – men didn’t have to show actual dependency (5th A invoked here, because it’s FEDERAL, not state statutory law)
  §   State Interest: Administrative convenience cuz wives tend to be dependent on their husbands.  Cheaper and simply more conclusive to presume that wives are financially dependent on their husbands, meanwhile burdening women to establish the dependency of their husbands
  §   Held: Plurality decision that statute is unconstitutional. 
–          Opinion said: bring SS to sex… “classifications based upon sex…. are inherently suspect and must be subjected to close judicial scrutiny”
–          Sex is an “immutable characteristic”
–          SS → two prong test: compelling state interest and narrowly tailored to match that interest
  §   Other Opinions:
–          Stewart: Concurs, Doesn’t buy into SS language
–          Rhenquist → Dissent, why aren’t we using rational basis test?
  §   Significance: Court rejects rational basis test, statutes based on “romantic paternalism”
Orr v Orr (1979) (20)
  §   State Law: Facially Discriminatory – required husbands, but not wives, to pay alimony to a needy spouse in divorce.  Wife would not have to support husband in need – man has a burden that he wouldn’t have had he been a woman. Took no note of individual circumstances  – categorical,
  §   State interest: (1) Provide help for needy spouses, using sex as a proxy for need.  (2) Compensate women for past discrimination during marriage which has left them unprepared to be independent after divorce. 
–          Court conceded that these were important govt’l interests – but:
                                                               i.      Is it “substantially related to achieving these objectives?”
  §   Intermediate Test:
–          Important governmental objective
–          Substantially related to achievement of those objectives
  §   Held: Alimony Law is discriminatory!  Unnecessary to use sex as a proxy for need.
–          The gender based classification distributes benefits and burdens on the basis of gender (benefits to rich wives who don’t have to pay husbands)
–          Statutes that are trying to compensate for past discrimination must “be carefully tailored” cuz it runs the risk of reinforcing stereotypes. – “baggage of sexual stereotypes” of women’s “proper place and need for special protection”
–          The same statute and its purposes can be made gender neutral               
  §   Significance: lays out the language for intermediate scrutiny in sex-based classifications
Weinberger v Wiesenfeld (1975)
·         Federal Law: Social Security Act, built on the notion that only male workers support their families and only women take care of young children.  When male worker died, his widow was entitled to a government payment that allowed her to stay home and care for children rather than go out and work.
o   But when female worker died, her widower was not entitled to the same benefit.  Congress assumed that widowers neither needed the money nor wished to stay home to take care of offspring.
·         State interest: To correct past discrimination,  compensate widows for the difficulty they encountered because of economic discrimination when they tried to go out and work.
·         Held: Purpose is “irrational.”  Father, no less than a mother, has a right to take care of his children.
o   Questioned the state’s interest: Statute did not provide benefits to all widows, but only widows with minor children.  So purpose wasn’t to correct past discrimination but to allow a widow to stay at home and raise her children
·         What Test to apply?
o   Under rational basis, could have been found to be “rationally related” to the “valid public purpose’ of remedying effects of past employment discrimination against women.
Stanton v Stanton (1975) (23)
·         Utah Statute: Different ages of majority (adulthood) for men and women.
o   Relied on Stereotypes:– females marry earlier, man needs to have training early before assuming the responsibility of being a man and providing for the household
·         Held: No rational basis for differential ages.  Violates the equal protection clause.
o   If boy needs support to continue his education, women do too!  If you stop supporting the girl, then she wont ever be as educated as the man and it’ll perpetuate role-typing.
·         Significance: Societal norms are driving changes in the law
o   “A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike.”
Craig v Boren (1976) (24)     
·         Oklahoma Statute: regulated sale of beer by allowing women to buy the beer at 18 and men at 21. 
·         State interest: Traffic safety.  Statistics: more men than women ages 18-21 were arrested for drunk driving and in accidents.
·         Intermediate Scrutiny, classification on basis of gender must:
o   Serve important governmental objectives
o   “important” looking like a compromise between “compelling” and “legitimate”
o   Be substantially related to achievement of those objectives
·         Held: Sex is NOT legitimate proxy for the regulation of drinking and driving. The relationship between gender and traffic safety is too tenuous to withstand intermediate scrutiny
o   If maleness is a proxy for drinking and driving regulations, then 2% is an unduly tenuous ‘fit” – isn’t it unfair to punish the 98% of those who don’t get arrested for the sins of the 2% who did?
o   Statute bars men from buying it, but not from drinking it
·         Significance: language –
o   “the statute is classification is objectionable because it is based upon an accident at birth”
o   “the relationship between gender and traffic safety is far too tenuous… to be substantially related to the achievement of the statutory objective”
o   “therefore the statute invidiously discriminates”
Formal Equality: Facially neutral statute that creates disparate impact
Indirect discrimination = statutes drawn on some basis other than sex, but the effect of which disproportionally affects persons because of their sex
·         The critical aspect in the case of a facially neutral statute is whether the state INTENDED to discriminate against or disadvantage a particular sex
Personnel Adminstrator of MA v Feeney (1979) (35) – don’t confuse impact with intent!
·         Mass. Statute: Not facially discriminatory,  discriminated on the basis of veteran status. 
o   Was a veteran preference program. All veterans who qualify for civil service positions wil be considered ahead of any

ment or policy is not related to job performance
§  Unlike cases under the EPC or the 5th amendment, the plaintiff need not show discriminatory intent
o   To the extent that disparate impact theory focuses on the effects of the rule rather than the form, it fits more with a substantive view of equality rather than formal
Two separate phase of Title VII Analysis:
1.       Definitional question of whether the claimed discrimination constitutes “discrimination on the basis of sex”
2.       Question of whether, even if a classification is sex discrimination, it is nonetheless justified because of its relationship to legitimate business concerns of the employer
Title VII: Disparate Treatment
Disparate Treatment theory: Rules or decisions that treat an employee less favorably than others explicitly because of his race, sex, religion or national origin
·         2 different types of discrimination in Disparate Treatment Cases
o   Pretext
o   Mixed Motives
Pretext Claim Process:
·         Plaintiff bears the burden of proof to show that the discrimination complained of was “because of” sex
o   Can be either individual or “pattern and practice” claims
·         PFC = plaintiff establishes that a negative employment decision was intentionally made because of plaintiff’s sex
o   Plaintiff may show that she was qualified-but-rejected for a position (on the basis of sex) or that other members of the opposite sex were treated more favorably because of their sex.
o   If the defendant offers a non-discriminatory reason for the decision, the plaintiff must show that either
§  (1) the reasoning provided is untrue OR
§  (2) the reasoning serves as a pretext for sex discrimination (think facially neutral with disparate impact)
·         Plaintiff may show pretext by EITHER directly, persuading the court that a discriminatory reason more likely motivated an employer OR indirectly, by showing that the employer’s pre-offered reason is unworthy of credence.
·         BURDEN SHIFT: If Plaintiff establishes that the employment decision (or policy, etc,) was in fact discriminatory, defendant must show that the discrimination is based on a bona fide occupational qualification (BFOQ)
o   Requires employer to show that the essence of business operation would be undermined by hiring employees without the qualification in question
 [Pretext] Ezold v. Wolf, Block & Cohen (1993) (63)  
·         Plaintiff pre-offers evidence of discrimination through a showing that male employees with seemingly similar or lesser qualifications received more opportunities and were promoted and she was not.
·         In response, defendant employer offers proof that employment action was justified, that there was a “legitimate, nondiscriminatory reason” why P was rejected
o   She lacked the necessary writing and legal reasoning skills to do complex lit or make partner
·         Plaintiff then attempts to show that the employer’s reasoning was just a pretext for underlying discrimination – a “coverup” for a discriminatory decision – i.e. that women are not as advanced/capable of complex legal reasoning as men
o   2 ways:
§  1) Directly: persuade court that discriminatory reason more likely motivated the employer 
·         Presented evidence of employer’s past treatment of P (giving her small assignments, seemingly sexist comments, inconsistent reviews)
·         Could have offered evidence of employer’s general policy and practice with respect to minority employment
§  2) Indirectly: employer’s proffered reason is unworthy of credence
·         Attempted to show (unsuccessfully) that she was at least equal to, if not more qualified than, similarly situated males promoted to partnership             
·         Held: Plaintiff was denied partnership because of legitimate factors – her lack of legal analytical skills.
Mixed Motives Claim Process:
·         Plaintiff bears the initial burden of proof to show discrimination occurred “because of sex”
·         PFC = Plaintiff establishes that although some legitimate reasons for the decision may have existed, part of the reasoning occurred on the basis of prohibited sex-based discrimination
·         BURDEN SHIFT: If plaintiff establishes a PFC, the defendant may avoid liability by showing that “even if discrimination played a role in an employment decision, it would have made the same decision in the absence of the discrimination.” (PWC v. Hopkins)
o   i.e. the employer would’ve come to the same conclusion even in absence of the impermissible motive.
o   Employer’s burden of proof is by a preponderance of the evidence (PWC v. Hopkins)