Chapter 2 Substantive Equality

pp. 113-239

Formal equality useful only to the extent that women and men are similarly

situated. What about when they are not?

Formal equality

“levels playing field” for exceptional “non-average” woman who can compete with men on equal terms (strength, etc.)

When should “differences” be taken into account?

When is focus on gender equity outcome appropriate? Risks?

A. Remedying the Effects of Past Discrimination pp. 114-133

1. Sex-Specific Public Benefits to Remedy Past Societal Discrimination

Kahn v. Shevin (1974)(Fla. Property tax gave $500 exemption for widows but not widowers)Douglas, J. for maj.: upheld, using Reed standard “fair & substantial relation to object of legislation”Brennan, Marshall, dissent:

Benign Classifications Favoring Women p.

117

• Why did ACLU WRP bring suit?• In retrospect, was this a case it should not

have brought? Clicker: yes/no– Glick & Fiske: hostile & benevolent sexism linked

& together serve as better predictors of gender inequality than either alone.

– Policy implications?• MacKinnon critique of both formal equality &

“special benefit” approaches?

2. “Affirmative Action” in Employment

• Johnson v. Transportation Agency (1987)(upheld voluntary preference to promote women construction workers to integrate workforce, even though no proven history of illegal discrimination)

• Ricci v. DeStefano (2009)(City voluntarily set aside objective test for firefighter promotion solely b/c produced racially disparate results; absent strong evidentiary basis of likely Title VII liability for those disparate results, voluntary action itself constitutes actionable Title VII reverse discrimination)

Executive Order 11246 p. 126

• Presidential actions: Johnson approved (‘65) Nixon strengthened, Clinton modified.

• Requires covered federal contractors & subcontractors & federally assisted (>$10K) employ targeted groups in % roughly proportional to representation in applicant pool.

• If segments of population underrepresented in applicant pool, must develop corrective plan, g.f. efforts to implement, may be “set-asides” for minority & women owned businesses.

Race-based minority set-aside programs & strict scrutiny

P. 127, fn. 9 at p. 233

City of Richmond v. J.A. Croson Co. (1989)Adarand Constructors v. Pena (1995)(voluntary race-based minority-set aside programs, strict scrutiny not satisfied except to correct proven instances of past discrimination).

2. Affirm. Action & Gender: Separate Standard?

• Voluntary affirmative action plans for gender: should they be treated more leniently than race-based?– Gender & intermediate scrutiny (VMI: exceedingly

persuasive justification)– Normative: perverse to be more lenient on

gender than race?– Public opinion: should it matter?– Strategy: Promote “Diversity” vs. “preferences”

Notwithstanding Title VII, formal equality ….

• Work force still remains sex-segregated.– Women are 90% of nurses, secretaries,

administrative assistants, child-care workers, preschool & kindergarten teachers

– Men at least 80% in farming, agriculture, fishing, construction, architecture & engineering

– Although women are majority of professional workers, not at highest levels

Text at 129,http:/www.bls.gov/cps/cpswom2006.pdf

http://www.bls.gov/opub/ted/2009/ted_20090807.htm

Women and men in management, professional, and related occupations, 2008

Women working in full-time management, business, and financial operations jobs had median weekly earnings of $941 in 2008, more than women earned in any other major occupational category.

The second-highest paying job group was professional and related occupations, in which women earned $867 per week.

Bureau of Labor Statistics

n. 7 “Positive Action” in European Law

E.U.: tax breaks for hiring women in traditionally male-dominated jobs, other positive action?Pushback from those disadvantaged by positive action?Job segregation continues … why?

n. 9 Pay Equity & Women’s Choicesp. 131

• Self-selection reflecting different priorities, life style choices? If so, no problem.

• To what extent do women lawyers make career choices based on their priorities, life style choices? Same question, men lawyers?

B. Eliminating The Disadvantages of Women’s Differences

1. PregnancyCleveland Bd. Of Ed’n v. LaFleur (1974)(EPC violated by mandatory maternity leave at 4th month of pregnancy until child 3 months old; no conclusive presumption that unable to work)Geduldig v. Aiello (1974)(upheld exclusion of pregnancy from state disability plan; all neither disparate treatment nor disparate impact where statute creates 2 categories: “pregnant women and nonpregnant persons”)Gilbert v. General Electric (1976)(same reasoning, no Title VII violation from pregnancy discrimination)

Pregnancy Discrimination Act of 1978

Congress legislatively overruled Gilbert. See lang., text p. 134

“because of sex” . . . include(s) . . . Pregnancy, childbirth, or related medical conditions; and women [so] . . . affected . . . Shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs . . .

Cal. Fed’l S & L v. Guerra (1987) pp. 135-38

Cal. Statute required employers to provide 4 up to months(unpaid) pregnancy leave and reinstatement.Who sued & why?I: pre-empted by Title VII, PDA? SCOTUS holding?Clicker Q: is PREGNANCY A DISABILITY? (yes/no)Identify split among feminist lawyers? N. 1, pp. 149-52

“Equal” vs. “Special treatment”Herma Hill Kay, pregnancy not itself a disability p. 150 quote

UAW v. Johnson Controls, Inc. (1991) pp. 142-49

Who were π class representatives?Claim re “fetal protection policy” as Title VII violation?SCOTUS, Blackmun, J.III. Policy classifies on gender + childbearing capacity > Title VII

violation unless Δ can show BFOQ.IV. & V. Safety justification only BFOQ where reproductive

potential prevents individual from performing job safely & efficiently, not here.

VI. Incremental costs of hiring women c/n justify discrimination (re potential tort liability, precautionary costs)

VII. Remember Muller v. Oregon (historical justification for excluding women from desirable jobs)

Concurring opinions

• White, et al.: Majority’s narrow interpretation of BFOQ unnecessary & “cramped” reading belied by legis. history. Pp. 147-48, n. 8. Error below in granting summary judgment b/c genuine dispute of material fact, re risk of harm to offspring of male employees by workplace exposure to lead.

Motherhood Penalty? P. 151, text accompanying n. 38.

• Should such evidence be admissible?• How else might it help prevent workplace

bias?

European Community Law: more favorable to claims of pregnant women, greater accommodation n. 2, p. 151

Impact? Consistent?

Good news, bad news

☺Census bureau: 51% working women who had their first birth between 2006-08 received paid leave (maternity or sick leave, vacation time) up from 42% between 1996-2000, & 37% between 1986-90☺42% received unpaid leave, 10% took disabilityBAD NEWS: Pregnancy discrimination complaints are on the rise. Ironically, employers using ineligibility for FMLA as basis for adverse treatment based on pregnancy leave!

2. Work and Family

Joan Williams (1998)pp. 155-56

• Domesticity– “ideal worker”– Marginalizes caregivers• Marketplace perpetuates economic vulnerability• Mothers & everyone else (like pregnant persons &

nonpregnant persons?)

• Domesticity mutated. Q: do women still bear disproportionate caretaking responsibilities?

Key to happiness? Pondering Valentine’s Day

• Clicker questions Is key to happiness # 1 equal split? Or # 2: understanding & supportive, quality time?

Agree w/ Naomi Cahn that wives’ take responsibility for disproportionate caregiving & home-tending is way of “performing gender”? (Y/N)

“opt-out”

• Empirical data: substantial gender differences in # of high achieving women vs. men who voluntarily leave workforce for caregiving.

• Do you see it happening today? • Would you make that choice for yourself?

Why/why not?

N. 3 Are Policies an Accommodation vs. Discrimination?

• Accommodation for special needs?• Vs. necessary component of non-

discriminatory workplace? (substantive equality)

FMLA 1993

• Up to 3 months unpaid leave for newborn or sick family member or self-care; strict requirements for eligibility.

• Underutilized because employees can’t afford unpaid leave

• And because well founded concerns for informal retaliation & blacklisting– “mommy track” – Men’s special concerns: job security

Nevada v. Hibbs (2003)

Male state employee sought & denied leave to care for dying wife and maintain household with children.S.Ct., Rehnquist, J.: expansive language re long history of sex discrimination against women caregivers, notorious discrimination against male caregivers. Pp. 159-69

N.B. He learned empathy because of daughter’s experience.

Pending Coleman v. Court of App. Of Md., No. 10-1016

• Oral arguments to Supreme Court 1/12/12• Issue: whether 11th Amendment abrogated

from FMLA’s “self-care” provision• Male state employee allegedly fired for taking

leave because of his own illness• Oral arguments re impact of self-care would

give employer incentive to discriminate against women.

C. Recognizing Sex-Linked Average Differences

1. Educationa. Sex-Segregated SchoolsWomen started entering college only in late 19th century. E.g., ΚΑΘ formed 1870Clickers:

Did your grandmothers go to college? Y/NYour mothers? Y/N

Mothers’ reasons for going to college?b. Prepare for work c. Prepare for marriage & family, be interestingd. Mrs. Degree, have something to fall back on if needed

Have you attended a single sex. . .

1. elementary school?2. middle school?3. High school?4. College?

If yes to any, how was it different from the mixed male & female schools you attended?

Miss. Univ. for Women v. Hogan (1982)

Single sex nursing school, denied admission to men. Male plaintiff challenged.7-2, O’Connor, J. opinion, Powell & Rehnquist dissentH: Exclusion of men reflected stereotypical views of nursing as exclusively female occupation. (natural extension caregiving role at home)

Basis for Powell & Rehnquist dissent?

Time-honored traditionValues to women of sex-segregated schools

Explain.

Clicker: Agree/disagree/ambivalent?

U.S. v. Virginia (1996)

VMI (1996) pp. 176-79

(7-1) Ginsburg, J. for Court, Scalia DissentThomas recused (son at VMI)*Complex procedural history demonstrates how beloved was the state-financed school in state of VA. P. 167 ¶3

D. Ct. & 4th Cir. gave multiple opportunities for state to figure out solution, avoid constitutional problem.

Mission Statement: what’s beneath those buzzwords? p. 166 ¶2

Founded 1839, financially supported by legis. (& loyal alums)“produce educated & honorable men, prepared for varied work of civil life, …love of learning, confident in functions & attitudes of leadership, …high sense of public service, advocates of …democracy & free enterprise…ready as citizen-soldiers to defend country …[if] national peril”

Teaching pedagogy?

Adversative, doubting model … physical rigor, mental stress, no privacy, minute regulation of behavior, indoctrination…

Practically, how done?Why would ANYONE want to attend? Benefits of attending?

IV Standard for EPC gender challenge pp.

168-71

¶1 “to summarize recent [cases] . . .whether the profferred justification is ‘exceedingly persuasive.’ The burden . . . Is demanding and it rests entirely on the state. . . [it] must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objective . . . Must be genuine, not hypothesized or invented post hoc…[or] rely on overbroad generalizations…”

“does not make sex a proscribed classification” Inherent differences . . .

2 sexes “not fungible”

Differences remain cause for celebration

. . . Not for denigration or artificial constraints on opportunity

V. Applying standard to Va.’s proferred justifications

1. benefits of diverse forms of education- state’s history of excluding women- U. Va.: ‘72 court order required admission on

equal basis- VMI’s current lack of women “more deliberate

than anomalous”

V. Applying standard to Va.’s proferred justifications

2. Admitting women would destroy adversative method of training, inherently unsuitable for them.

-yes, would need adjustments (housing assignments, physical training methodology)- Neither raison d’etre (produce citizen soldiers) nor

methodology inherently unsuitable for women- Can’t generalize from assumptions, even if most would

not, could not, must allow individual choice & opportunity to try

-successes in federal academies, military forces show unfounded fears

VI Remedial Issue

Standard: where EPC violation is categorical exclusion from extraordinary educational opportunity, remedy should “aim to eliminate ... the discriminatory effects of the past” and bar future discrimination.

VWIL

Compare VWIL to VMI using each component of VMI mission statementCooperative methodology, reinforces self-esteemNot boarding school/barracks/rigorous physical & mental stressLeadership training in seminars, externships, speaker series

Compare VMI & VWIL

• $$$, endowments & expected return on investments

• Admission standards• Faculty credentials & pay• Curriculum• Facilities****future value of degree, open doors to large network of high level alums willing to hire grads, mentor, assume political leadership

Separate is not Equal

Citing Sweatt v. Painter (1950)(U. Tex. Law)

But not Sipuel v. Board of Regents of University of Oklahoma (1948 per curiam decision, Feb. 1949 denied motion for mandamus)

Scalia’s hot dissent

pp. 174-top 75 Intro.: rejects FF of lower cts, ignores precedents, radically revises EPC standard for sex-based, ignores national history.

Virtue of democratic system with 1st Am.: enables people to change laws, amend Constitution. This course of judicial conduct instills the counter-majoritarian preferences of legal elite.

Scalia dissent

I: Proper judicial function & democratic processII: misleading treatment of precedents, slips in higher standard of scrutiny “exceedingly persuasive justification” (epj). Heightened scrutiny unwarranted because women are not “discrete & insular minority”; prefers rational basis. III. State discretion over spending; rational electionIV. “Code of a Gentleman”

Epilogue

Changed conditions at VMIAlso helped men (10 min. shower vs. 30 seconds)Recruiting difficulties (~ 30 early on, up to 47 in 2007)VWIL lives on, producing about 2x the number of who go into military than VMI. Q: possible interpretation?

2. Single-Sex Schools at the Elementary & Secondary Level?

Public schools, taxpayer support means state action.Why might they be good, should be allowed?Arguments to the contrary?

D. Substantive Equality in the Family3. Equality in the Context of DivorceJoan Williams, Do Wives Own Half? (1999), pp. 204-05

“Joint property theory: mandates equalization of the standard of living in the post-divorce two households”• Formula bottom p. 205-top 206: equalize for period of

children’s dependence, + # years to allow W to regain ability to recover her earning potential OR save for her future (based on 1 yr. of income sharing for each 2 years of marriage)

Q: to what extent has passage of time reduced strength of this proposal?

D. Substantive Equality in the Family

Note 3, p. 203. Toward what economic standard should spousal support aim? CLICKERa. Continue standard of living achieved in

marriageb. Rehabilitative minimal self-sufficiency

“minimalist doctrine” Riehl at 208c. Equitable rehabilitative approach Id.

Riehl v. Riehl (N.D. 1999) pp. 206-09

Facts: 24 year marriage, 4 children; Deborah 43 (1 year college, dropped out when pregnant again), Andrew (45, boilermaker $51K/year + benefits). 2 minor children still at home.Law: award of spousal support requires fact-finding that petitioner is “disadvantaged”: “foregone opportunities or lost advantages . . . [b/c ] of marriage & contributed during marriage to supporting spouse’s increased earning capacity.”

Riehl v. Riehl (N.D. 1999) pp. 206-09

Goal: support for disadvantaged spouse to balance burdens & disadvantages created by divorce. Either:Permanent OrRehabilitative

equitable approach: education, training to achieve adeq/approp self-support, improve employment skills.

Riehl v. Riehl (N.D. 1999) pp. 206-09

Court: D. Ct. “clearly erroneous”1. to award rehabilitative support only for 5

years, $800/month (actual time for training); instead what standard?

2. To not consider permanent spousal support.3. What next, on remand? Predict what

happened?

4. Child Custody: “best interests of the child”

• Many factors: quality of emotional bonds, ethical emotional & intellectual guidance of child in formative years, moral fitness & ability, continuity of care.

• Criticisms re subjectivity?• Problems with “primary caretaker

presumption”? (3 states adopted, since abandoned) Academics liked(Fineman & Chambers)

Patricia Ann S. v. James Daniel S. (W.Va. 1993) pp. 213-222

• Exemplifies criticisms of standardless discretionary power of trial judge, appellate court deference to same.

• Facts per maj. opinion on who was primary caretaker, role of testifying experts, children’s stated preference on custody. **Spector: procedural posture important (affirmance)

• Contrast with Chief Justice Workman’s dissent, alternative view of factual reality.

Best interests of these children?

Impact on Jason (14 at time of W. Va. Decision)?

Impact on Justin (then 11)?

Impact on Jennifer (then 7)? Remand?

What their futures may hold?

N. 2, p. 225 Joint Custody Alternative

All states allow, some have statutory presumption favoring

Okla.?

Potential risks?

n. 4, p. 227 Relocation

• Trend: Increased deference to parent with primary custody

N. 5 p.228 Cohabitation & American Paradox

Andrew Cherlin, The Marriage Go-Round (2009)U.S. unique: importance of marriage & easy escape from, contrasted with cohabitation: easy to move in & out > “social turbulence” greater than anywhere else!

N.B. OK common law marriage (if facts support, divorce required)

n. 5 Unmarried Parents pp. 230-32

OK & AR: mother gets custody of out-of-wedlock childSCOTUS: increased but inconsistent recognition of father’s rights. cases:Stanley v. Ill. (‘72)(on Mom’s death, children not wards of state; invalidated presumption of Dad’s unfitness)Caban v. Mohammed (‘79)(consent of biological Dad w/ parenting relationship required for stepfather adoption)

n. 5 Unmarried Parents, Tragic Casespp. 230-32

Nguyen v. INS (2001)(son born to Vietnam Vet & Vietnamese mother, lived with Dad from 6-22; pled nolo to Tex. Sexual Assault charge (Romeo/Juliet, Romeo/Romeo?); deportable because Dad had, before son reached 18: legitimized, filed declaration of paternity or obtained paternity court order. “Romantic paternalism” Dicta, re uniqueness of umbilical cord, maternal tie. *Consolation prize: he could return to Vietnam, dual citizen.

Flores-Villar v. United States (2011) Aff’d by equally divided court deportation order of son who never had meaningful relationship with Mexican mother. U.S. Dad only parent he ever knew. 9th Cir. applied former sections of INS Act 8 U.S.C. §§ 1401(a)(7) & 1409, imposing facially disparate gender standard for U.S. fathers, no 14th Amend. Due Process viol’n. Tragic: decision left him stateless.

n. 5 Unmarried Parents, Tragic Casespp. 230-32