Remember always

We stand on the shoulders of those who went before us.

The U.S. Constitution

AMENDMENT XIV (1868)

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

AMENDMENT XIV (1868)

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Amendment XIV – continued

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Amendment XIV – continued

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

AMENDMENT XIX (1920)

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Ch. 1 Formal Equality

Defined, as typically used in Equal Protection cases, text at p. 1:

“Individuals should be treated alike, according to their actual characteristics rather than on the basis of assumptions (or “stereotypes”) about their sex, race, or other irrelevant characteristic.”

A. Historical Legacy of Women’s Treatment in Law: Public Sphere

• Bradwell v. Ill. (1872)(deference to state law on requirements for admission to practice law)(privileges & immunities clause)

• Muller v. Oregon (1908)(upheld protective labor law prohibiting women from working >10 hrs/day in laundry, rational basis)(EPC?)

• Goesart v. Cleary (1948)(upheld state law prohibiting women bartenders unless W or daughter of male owner)(EPC)

Privileges & Immunities Clause, 14th Amend. §1

. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . .

Equal Protection Clause, 14th Amend. §1

. . . nor deny to any person within its jurisdiction the equal protection of the laws.

Bradwell v. Illinois (1872)

• Studied law with her husband, respected lawyer & judge. Ill. S.Ct. denied admission b/c as married woman, had no legal capacity to enter contracts. SCOTUS aff’d.

Argument based on P & I clause

14th Am., §1 . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . Brief: “if this provision [of Civ. Rts Amends]… protect[s] the colored citizen, then it protects every citizen, black or white, male or female…Intelligence, integrity & honor are the only qualifications that can be prescribed as conditions precedent to an entry [into] any honorable pursuit or profitable avocation.”

Infamous Bradley concurrence reflects “romantic paternalism”

Separate spheres, cult of true womanhood:Man: protector & defender of womanWoman: natural & proper timidity, delicacy unfit for occupations of civil life; divine ordinance commits to domestic sphere. Paramount destiny & mission to fulfil noble & benign offices of wife & mother, law of Creator.Hence, state legislature has police power to prescribe regulations for professions.

Muller v. Oregon (1908) pp. 7-8

Statute limited women laundry workers to 10 hour days. Louis Brandeis represented Int’l Shirt, Waist & Laundry Workers Union, 2 pp. legal argument, over 100 pp. w/ statistics, Dr. reports, showing overwork harmful to women.

Brandeis Brief persuades SCOTUS

Especially re dangers to women’s reproductive capacity, persuaded Ct to take judicial notice of data.Maternal functions warrant protection, both for health of female workers and for “well-being of the race . . . justifies [facially discriminatory legislation] to compensate for some of the burdens which rest upon her.” Rationale basis (usually cursory review)Careful to distinguish from Lochner (1905)(striking gender-neutral protective labor law)

Clicker & Discussion Questions

1. Is Muller good for women? (yes/no)2. Generally good for worker rights? (yes/no)3. What are underlying assumptions about

women? To what extent were they true then? Now?

14th Amendment, Equal Protection Clause

§1. . . . nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.

Goesart v. Cleary (1948) pp. 9-11

Context: WCTU > prohibition > repealed 1933.WCTU, temperance movement: drinking establishments as dens of iniquity, unfit for women b/c men used coarse language, engaged in manly camaraderie. Mich. Statute: example of male bartenders’ union successful efforts to exclude women from lucrative job.EPC challenge to statute prohibiting women bartenders unless they were wife or daughter of male owner.

Goesart v. Cleary (1948) pp. 9-11

Frankfurter, J.Upheld on very lenient rational basis test. EPC only precludes irrational discrimination, legislature might have found that bartending by women could give rise to moral & social problems, and that wife/daughter exception justified because male owner’s oversight could minimize perceived hazards. Women could work as waitresses in those establishments.

Reactions?

Discussion Questions p. 4

• Under what circumstances should we welcome or reject gender-specific labor laws?– What possible harms guarded against?– What possible harms caused as result of

protective laws?– Currently, is there any good reason why a

legislature or employer might enact statute or policy singling out one gender for special treatment? Likelihood it would be upheld?

B. Formal Equality & the Constitutional Right to Equal Protection pp. 11-22

1. The Right to Equal, Individualized TreatmentReed (1971)(invalidated statutory presumption, man as intestate administrator)Frontiero v. Richardson (1973)(invalidated federal statutory presumption of female but not male dependency)Orr v. Orr (1979)(invalidated statutory presumption female, but not male gets alimony)

Reed v. Reed (1971)

Start of 2d wave. 1864 Idaho statute adopts categories of administrators for intestate administration; each category gives automatic preference to male over female.Divorced parents of adopted child, Richard, who disliked visiting burly dad on week-ends. Midway through 7 day visit, begs Mom to let him come home, she encouraged him to stay. Richard kills himself with Dad’s rifle.Tiny estate, Sally no feminist but challenged on principle. Remarkably, lawyer undertook for small fee, then pro bono.

Reed (cont’d)

ACLU WLRP, RBGinsburg amicus brief: argued for strict scrutiny; fallback on meaningful review under rational basis.Burger, J.: “To give a mandatory preference to members of either sex . . . Merely to . . . [avoid need for individual determination for administrative convenience] is to make the very kind of arbitrary legislative choice forbidden by [EPC]”

Reed

**See p. 14, new articulation of rat’l basis test.States m/n use different classes of treatment based on sex, using “criteria wholly unrelated to” statutory objective. “Classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair & subst’l relation to . . . [statutory objective] so . . . All persons similarly circumstanced shall be treated alike.”

Reed’s significance

• 1st time Ct gave meaningful review under rational basis test.

• Avoided any decision on strict scrutiny• Blackmun’s papers: “much ado about nothing”

but recognized as test case; Ct shd keep op. short & sweet, no extended & emotional discussion of women’s rts. At 29-30.

• RBG strategy: chip away at stereotypes, starting w/ small issues

Frontiero v. Richardson pp. 15-19

Congressional benefit scheme presuming wife of serviceman is dependent (for ^ benefits), but husband of servicewoman must prove he was actually dependent on her for > ½ of his support.Joseph c/n prove he received > ½ his support from Sharron, thus administrative agency denied his claim for extra benefits.

Frontiero

D.P. Clause of 14th Amend., applies to federal action. §1 “nor shall any State deprive any person of life, liberty, or property, without due process of law”π/appellants: facially discriminatory provision has disproportionate impact on 1) procedure and 2) substantive. @ 16

Brennan, J., plurality opin.: strict scrutiny: sex an immutable characteristic invidiously discriminates, inherently suspect.Powell concurrence: unnecessary to use SS, fails under Reed, arbitrary administrative convenience.

Frontiero’s significance

High point, 4 J’s voted for strict scrutiny in evaluating facially discriminatory legislation; “high watermark” …. Later cases retrenched, never got 5th vote.

Once again, RBGinsburg for LRWP, amicus argued for strict scrutiny

Clickers

Who is the victim here, Sharron or Richard? Analysis?

Orr v. Orr (1979) pp. 19-22

Alabama statute: husbands, but not wives, may be required to pay alimony upon divorceHusband ordered to pay, held in contempt b/c in arrears (& able to pay). I: is the gendered statutory classification “substantially related to achievement of legislative objectives?

hypothetical objecs: 1) help needy spouses, w/ sex as proxy; 2) compensate women for past discrimination w/in marriage

SCOTUS: Orr

Assuming arguendo those 2 objectives, facially discriminatory law, no adequate justification. Individualized hearings already occur.Statute perpetuates stereotype of women’s dependency, with perverse results: advantages finally secure wife (nondependent) whose husband is in need.Irony: Mr. Orr “won battle but lost the war”: tho he won EPC challenge, he could only get alimony if he could prove dependency – and he could not. @ 31

2. The Right to Equal Group Treatment pp.

22-33

Stanton v. Stanton (1975)(EPC, struck Utah statute providing child support for boys until 21, but girls only until 18; overt disparate treatment) π female wins

Craig v. Boren (1976)(struck OK stat. prohibiting sale of 3.2% beer to boys under 21, but sale to girls allowed when 18) ***heightened intermediate scrutiny

Stanton v. Stanton

Used Reed standard: Classification must be reasonable, not arbitrary & must rest on ground of difference having a fair & substantial relation to the legislative objective. H: invalid, distinction “wholly unrelated” to statutory objective, “nothing rational “in overt disparate treatment, where father’s support obligations for daughter end at age 18, but for son, extends to age21. @ 24

What underlying assumptions using stereotypes?

Relevant that was Utah statute, influence of LDS?Generalized assumptions about boys/men vs. girls/women?Perpetuate dependency?

Craig v. Boren (1976) pp. 24-29

OK statute: misdemeanor to sell 3.2% beer to males under 21, females under 18.Stillwater drive-in “Hoot-N-Hollar” convenience store employee charged with violating. He, his employer & OSU men brought challenge.Their lawyer mostly did patent work, little or no experience with constitutional litigation, EPCRBG: wrote with long list of relevant cases. See p. 30 for mild quote from his brief, which merely string-cited EPC cases, little serious legal argument.Thereafter WLRP & RBG appeared as amicus, their brief carried day.

Honk-N-Holler

Stillwater, Oklahoma

Victorious collaborators

Craig v. Boren (1976)

New, heightened standard of scrutiny for gendered, overt disparate treatment, “intermediate scrutiny”: “To withstand constitutional challenge . . . Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”

Brennan op. for divided court, Stevens concurence

Majority: Although females in this age group are less likely than males to drink & drive, a correlation of only 2% between being male & driving after drinking is too “tenuous a fit.” See pp. 25-26 & fn.

14, pp. 226-27.

Note: Court’s word choice shifts from “sex” to “gender”Stevens: “there is only one EPC”; don’t confuse further by adding third tier of scrutiny. “insult” to visit the sins of 2% upon 98% of young men.

Use of Stereotypes

• In OK statute? • Benign or adverse to women? [Appellant

brief, p. 30?]• WHAT’S THE HARM IN USING STEREOTYPES?– Overbroad & inaccurate?– Or harm to individuals who don’t fit generally

accurate sterotype?– Or perpetuates inequalities that they reflect?

Equal Rights Amendment

§ 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.§ 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.§ 3. This amendment shall take effect two years after the date of ratification.

Fits & starts towards ERA

1923: Alice Paul proposed (next step after 19th Amend.); introduced every year until Congress passed in 1972.By 1982, ratified by 35 states; short 3 states Major, albeit unsuccessful battle in Okla. Close vote.

Imagine progressive activists rallying to support! Included Cleta Deatheridge (now Mitchell) (OU law grad, now in D.C., prominent lawyer for conservative causes, e.g., term limits, corps. behind Citizens United). Also (now) Ok. S.Ct. Justice Yvonne Kauger, former TU law dean Tom Reid, OU library director Lolly Gassaway.

ERA: 1997-present

· Efforts to resuscitate federal ERA· Ratification bills introduced in Senate and House, including one House bill that would remove ratification deadline.· Many states amended state constitutions as part of ratification process > “independent & adequate state grounds” for state courts to give expansive interpretation on own constitutions.

Utah & Wyoming: 19th Century!

ERA

• Do you support enactment of state or federal ERA? (yes/no)

• Benefits?• Risks?• Largely symbolic?• Vs. Ellen Goodman “words matter” (2003)• Be careful what you wish for?

3. Indirect Discrimination: Discrimination Based on Impact, Not Intent pp. 34-39

Personnel Administrator of MA. V. Feeney (1979)(7-2, Stewart, J. for maj.)• §1983 action seeking damages for EPC violation

based on persistent failure to obtain state jobs because of absolute veteran’s preference allowing repeated use.

• Great disparate impact: b/c < 2% MA women are veterans, civil service employees at top are almost all male while women relegated to low-grade & pay clerical & secretarial jobs. Marshall Dissent @37

Feeney Maj. Op. pp. 36-37

• Settled rule: when law facially neutral, to find EPC violation must show decisionmakers’ invidious intent to harm disadvantaged group.– Washington v. Davis (‘76); Arlington Heights (‘77)

• Test: when facially neutral law challenged b/c disparate impact on protected group, ask1) Was it really gender neutral (or classification

pretextual)2) If disparate impact, must show classification result of

invidious, purposeful “intent to discriminate”

Discriminatory purpose

• State actor motivated at least in part “because of” … to accomplish collateral goal of keeping women in stereotypic & predefined place.

• “Discriminatory intent is …either …a factor that has influenced the legislative choice or it is not.”–

@ 36. N.B. Stewart absolutist, tended to view thinks as black or white, nothing in between, no nuances.

• Very deferential to D.Ct. factfinding. (Brennan: myopic view of record below)

War Context

WW II

Vietnam WarU.S. involvement circa 1959-75

Impact of Feeney at time of 1979 decision?

Still “good law.” Current impact?Rostker (1981) upheld male-only registration requirement; Congress not about to changeCombat exclusions continue to date

Consider role of Veterans in state & national politics

C. Formal Equality in Employment: Formal Equality Paradigmpp. 40-49

Equal Pay Act of 1963, 29 U.S.C. §206(d) Prohibition of sex discrimination

(1) No employer …shall discriminate… between employees on the basis of sex by paying wages to employees in such establishment 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, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex…

EEOC v. Madison Community Unit School Dist. No. 12 (7th 1987) pp. 41-44

High school athletic coaches of male and female teams: equal pay required because “equal skill, effort, and responsibility”?

girls’ softball vs. boys’ hardball?girls’ vs. & boys’ basketball? vs. boys’

track?Collegiate: men’s & women’s basketball?

Posner (7th Cir. 1987)

Deferred to D.Ct. factual determination that coaching the girls’ & boys’ teams “sufficiently alike” to be equal work, but that coaching teams of different sports is not.Where school offers same sport, with separate girls’ and boys’ teams, prima facie violation where difference in pay.If lower wages, school must rebut w/ proof of good reason (o/than sex).If women ineligible to coach boys’ team (locker room problem), it cannot defend EPA viol’n on that ground.

EEOC v. Madison Community Unit School Dist. No. 12 (7th 1987) pp. 41-44

H: defer to tr. ct. factual determination that coaching the same sport (e.g., boys’ & girls’ basketball) are same sport for purposes of EPA. Prima facie case; school did not repub, show good reason that bona fide basis for different treatment, by showing factor o/than sex of -ee.But, if different teams, EPA d/n reach.

2. Wage Gap, 3. Factors Justifying Pay Differences, 4. Comparable Worth pp. 45-9

• Historical improvement (ERA era (’72) 59¢ vs. 81¢ (2011). N.B. Greater disparity for M & F where higher ed. (75% for those w/ college degrees, PhD.; 69% for those w/ professional degrees.

• WHY? Marketplace forces? Other differences?

NCAA college sports, men’s & women’s teams & coaches? 1996-present

Lon Kruger

4. Comparable Worth or Pay Equity

• Janitors/janitress?• Janitors/receptionist/secretary• Focus on VALUE of work to employer– C/n fit EPA Formal Equality Paradigm; political

efforts to change (high watermark circa 1990)• Legal significance of choices?– Clean workspace, apparel– Starting & finishing times

Title VII of 1964 Civil Rights Act, 42 U.S.C.§§ 2000e-2 employer practices

(a) Employer practices It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

Pay Equity: in Corporations & Academy

• Often include optional procedure for periodic review when, over the course of time, it appears that some salaries have stagnated while others have surged ahead.

• Delicate issues: re changing responsibility; (un)willingness to demand/ask for more; meeting competing offers from other prospective employers to retain valued employee.– Current: U. Tex. Law School (private deals, secret

forgiveable loans); Dean forced to step down & President evaluating situation.

2. Title VII: Finding the Limits of Formal Equality

§2000.e2It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin;

Disparate treatment

Overt, “because of” prohibited ground (race, sex, religion, national origin)Π BOP: prima facie caseShifts to Δ: BFOQ (essence of busines operation would be undermined w/o the challenged qualification)

Disparate impact

Facially neutral job requirement or policy disproportionately affects protected class & unrelated to job performance.

If π makes prima facie showing of disparate impact, burden shifts to Δ that facially neutral requirement justified by business necessity. Unlike C’l cases, need not show discriminatory intent.

Ezold & Price: Professional Partnership (both based on disparate treatment) pp. 51-66

Ezold v. Wolf, Block, et al, 983 F.2d 509 (3d Cir. 1992), cert. denied.Facts: Ezold: Villanova J.D., top 1/3, ‘83 lateral hire to litigation dept.Wolf, Block, et al. (silk stocking Phila. Firm (Biglaw), hired mostly from crème of crop, Ivy League law schools).Initial & later work assignments?Performance reviews & impact on future assignments?

Burdens of Proof, Shifts & Risk of Non-persuasion

π: in protected class, qualified & rejected for position & non-members treated more favorablyΔ: rebuts: legitimate, non-discriminatory reason for adverse decisionπ (both BOP, risk of non-persuasion): Δ reasons pretextual. Must show that presumtively valid reason stated was coverup for discrimination, either b/c motivated by discriminatory reason or indirect proof that Δ’s asserted rsn not credible.

Ezold v. Wolf, Block (3d Cir. 1992)

• D.Ct. FF & Conclusions of Law for π.• 3d Cir. reversed & remanded. Clearly erroneous, not

supported in record. Π D/n show pretext.• Formalized partnership evaluation process based on

judgment (both objec. & subjec.). D.Ct. not free to pick & choose whether to give credence to some + cmts for Ezold & disregard some – on her, while relying on – cmts for men accepted into partnership as proof of discrimination. Shd not base credibility determination on conflicting double standard. @ 56

Work assignments

• No FF that given small assignments b/c of sex• 3d Cir. disregarded early conversation w/

Schwartz• Actual assignments often bypassed formal

process (hmmm…)• Personal demeanor: [reminds of difficult male

associate] “very demanding, prima donna-ish, not a team player”

Personal takeaways on Ezold?

Why is this case under subheading “Finding the Limits of Formal Equality”? (similarly situated persons should be treated alike)

Impact on shattering “glass ceiling”?Real world consequences of filing suit: “untouchable” as future associate? Assess: Future costs to self vs. paving way for others? Worth it personally vs. for others?Alternatives to lawsuit?What would YOU do? (Clicker: (1) sue? (2) find another job?) Why?

Price Waterhouse v. Hopkins (S.Ct. 1989) pp. 58-

62

Maj.: Recognized cause of action for disparate treatment where decision based on “mixed-motives.”Adverse employment decision prompted both by legitimate, non-discriminatory reasons, but some of decisionmakers’ negative assessments were based on impermissible use of gender stereotypes.

Ann Hopkins

Price Waterhouse v. Hopkins (S.Ct. 1989) pp. 58-

62

• In Washington, D.C. office 1977-82 when considered for partnership at recommendation of those in her office.

• PW then “big 8” accounting firm, 7 of 662 partners were women; she was only woman among 88 then under consideration.

• 32 partner comments (13 for, 8 against, 3 “place on hold”, 8: no opinion”

• Policy Bd: place her & 19 others “on hold” for next year.• Next year denied > lawsuit

Evidence that Star Performer

Year b/4: brought in more business, billed more hours than any other person nominated for partner that year, including $25M Dept. of State contract.

Strongly supported by D.C. partners

Prior & ongoing Use of Stereotype by PW Partners

• Maintain femininity while becoming effective managers

• No “women’s lib[b]ers”• One refused to consider any woman seriously as

partnership candidate … not capable of functioning as Sr. Managers….. w/o any corrective action by management, & vote counted.

• Negative comments from those who had little 1st hand experience w/ her.

“on hold” advice

Thomas Beyer (supporter?): to improve chances for next year, “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.Brennan, J., “coup de grace” @ 60

Hopkins v. Price Waterhouse, S.Ct. (1989)

D.Ct.: Δ violated T-7 by consciously giving credence & effect to partners’ comments that resulted from sex stereotyping; could only avoid equitable relief with clear & convincing evidence that it would have taken same action (put on hold) absent that discrimination; firm failed to carry that burden.D.C. Cir. aff’d, but higher challenge; D not liable if can prove by clear & convincing evidence that wd still have made same dcn absent impermissible motive.

Hopkins v. Price v. Waterhouse, S.Ct. (1989)

• Brennan, for plurality: D.C. approach better, but erred in imposing on employer burden of proving it would make same decision absent discriminatory motive – should not have been by “clear & convincing evidence”

• Instead – preponderance of evidence? Civil procedure issues on burden shifting, risk of nonpersuasion.

Hopkins v. Price v. Waterhouse, S.Ct. (1989): IMPACT????

Beginning to shatter glass ceilingSignificance of “stray remarks” Cat’s paw inferenceUse of stereotypes in proving discrimination

Descriptive (use of assumptions to predict individual capability/performance)Prescriptive (disadvantage those who don’t conform to stereotypes; “deviants”)

Which applied to Ann Hopkins?

Fisk, using Kanter’s work on tokens

Token: when group less than 15% of organization, vulnerable to stereotyping

Sanctions for acting consistent with stereotype?

Sanctions for acting against stereotype?

Richard Epstein

@ 66-67: employer self-interest is sufficient check on gender bias; free market rewards efficiency & it’s inefficient for employers to discriminate against qualified women.Agree? Disagree?

Devon Carbado & Mitu Gulati

• Identity work to counter stereotypes• Personal costs of this strategy?p. 67 para. 3: What incentives for successful members of subordinate groups to differentiate themselves from those less successful, by conforming with existing workplace norms?Susan Sturm: preventative vs. curative, after-the fact proof in litigation

Legacy of Hopkins v. Price Waterhouse: 1991 Congress codified mixed motive framework as part of Civil Rights

(Restoration) Act

42 U.S.C. 2000e-2(m) “(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices

Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”

b. The Special Case of Appearance Regulation

Many employers have dress & appearance codesWhen are they unobjectionable?

When is there good reason for employee to object, or for human relations or corporate employment counsel to advise against certain provisions?

Jespersen v. Harrah’s Operating Co., Inc. (9th Cir. 2006) pp. 71-80, scan

New “Personal Best” policy was most equally applicable to all bartenders, both men & women, no colored nail polish, no faddish hairstyles or unnatural colors Gendered: hair length; make-up required for women, prohibited for men

20 year employee, Darlene objected, refused to wear make-up> constructive discharge > suit. Why did she refuse?

Does make-up requirement impose “unequal burden”?

• If so, how?– Time– $– Limits activities before & after work– Personal integrity

Did make-up requirement violate Price Waterhouse, enforced stereotype?

9th Cir. maj.?

Dissenters?

Notes, pp. 80-83

1. Appearance discriminationPay, advancement, performance evaluationWithin legal profession?

unattractiveoverweightdrop-down beautiful women vs. handsome men

Subtle race bias in defining beauty?Strategies for enlightened employer’s to counteract customer preferences based on impermissible appearance biases?

Newscasters

Christine Craft: transferred to off-camera job b/c “too old, too ugly, and not deferential to men”fn. 67

8th Cir. (1985) upheld b/c focus groups & “scientific phone survey” showed negative viewer response.Have things changed much since then? Current examples? Exceptions?

Women Journalists/Press CorpsHelen Thomas (retired 2007, White House Press Corp)

Joan Biscupic, USA Today, Supreme Court Reporter

Weight Discrimination

• Within one’s power to change: valid assumption?

• Racial implications?• “big butts”?