SEX DISCRIMINATION (Update 2)

While the nineteenth amendment gave women the right to vote, no provision of the Constitution explicitly prohibits sex discrimination. The Supreme Court has held, however, that equal protection and due process protections of the Fifth Amendment and the fourteenth amendment prohibit the federal and state governments from discriminating against either men or women because of sex.

In 1996, Justice ruth bader ginsburg, the second woman ever appointed to the Court, wrote the majority opinion in united states v. virginia, holding that Virginia could not exclude women from the Virginia Military Institute (VMI), the only single-sex state school in Virginia. That opinion departs substantially from sex discrimination cases decided before 1971 and appears to consolidate disparate decisions from 1971 until 1996. Before 1971, the Court had dismissed women's claims of unequal treatment on the ground that women are different from men. In United States v. Virginia, the Court explicitly disapproved one of those early opinions, goesaert v. cleary (1948), which had said that although the discrimination challenge was "beguiling," differences between men and women justified a state statute passed after world war ii prohibiting most women from working as bartenders.

In 1971, a legal sea change in gender equal-protection cases occurred. In Reed v. Reed (1971), with little explanation, a unanimous Supreme Court held that an Idaho statute preferring men over women in the administration of decedents' estates violated the Fourteenth Amendment, choosing not to follow precedent or the Idaho Supreme Court's reasoning that men were more likely than women to have business experience. By 1976 the Court had articulated a mid-tier analysis, requiring that a state's use of gender classifications be substantially related to the achievement of important governmental objectives. The mid-tier analysis is stricter than rational basis analysis, and less so than strict scrutiny analysis. The first upholds classifications that rationally relate to a legitimate governmental purpose. The second, applied in race and fundamental rights cases, requires the government to show that the classification is necessary to achieve a compelling purpose, or, stated differently, that no less discriminatory means are available to achieve that purpose.

Starting in 1976, the Court used the mid-tier analysis to invalidate many state and federal policies that treated men and women differently, including the age for drinking beer, craig v. boren (1976); eligibility for social security benefits, califano v. goldfarb (1977); spousal property management rights, Kirchberg v. Feenstra (1981); a state nursing degree only for women, mississippi university for women v. hogan (1982); and a prosecutor's use of peremptory challenges, J. E. B. v. Alabama (1994). The Court occasionally upheld differential treatment to remedy past discrimination, but decisions involving physical differences between men and women continued to resemble the decisions before 1971. For example, the Court upheld a male-only draft registration system because men and women were not similarly situated, rostker v. goldberg (1981); a statutory rape law applicable to men because only women become pregnant, michael m. v. superior court (1981); and differential adoption rules for unmarried mothers and fathers, Lear v. Robertson (1983).

In the VMI case the trial court had rejected the equal protection challenge to VMI's all-male admissions policy because the school offered diversity to Virginia's educational system. The Supreme Court held, however, that the provision of diversity only for Virginia's sons and not its daughters violated the Fourteenth Amendment. The trial court had also based its ruling on its finding that admission of women would alter VMI's strenuous, punishing, and privacy-free "adversative method." Instead of holding that VMI complied with the Constitution because women and men are not similarly situated, the Supreme Court held that exclusion of women "ready, willing and able to benefit from [VMI's] opportunities" violated the Constitution, and that Virginia's establishment of an inferior women's leadership program in a private women's college was an insufficient remedy. Applying the methodology from some prior mid-tier cases, but also articulating a "skeptical scrutiny" standard and reiterating that official discrimination requires an "exceedingly persuasive justification"—hall-marks of strict scrutiny—the Court held that Virginia had not met its burden of proving, without reliance on stereotypes, that no women could benefit from the program or that its interest in diversity was in fact the reason for the exclusion of women.

Rather than simply ordering women's admission to VMI, the Court required VMI to make "adjustments" and "alterations" in housing and skills training to "accommodate" the privacy and strength differences of female cadets. This remedy departed from remedies in past gender equal-protection cases, which merely eliminated gender requirements. This departure may signal an implicit raising of the level of scrutiny in gender equality cases from mid-tier to strict scrutiny. By ordering a remedy only for "capable" women, the Court apparently is using a "least-restrictive-means" analysis, holding that VMI can achieve its purpose in a manner less restrictive than excluding all women. By requiring VMI to alter housing and skill requirements, the Court apparently is saying that institutional alterations are less restrictive than exclusion of women. The Court relied on two racial discrimination cases, including milliken v. bradley (1977), which had ordered institutional changes as part of a desegregation remedy.

By requiring VMI to admit only capable women, but also to make changes, Ginsburg apparently balanced two debated feminist viewpoints for achieving gender equality: whether governmental policies should provide equal treatment or, instead, equal results for men and women. In emphasizing that inherent differences between men and women are "cause for celebration, but not for denigration" of women, Ginsburg avoided the rationale of muller v. oregon (1908) that women needed to be paternalistically protected.

Ginsburg cited two cases as examples of permissible sex classifications: Califano v. Webster (1977), which upheld computations of Social Security benefits to compensate women's economic disabilities; and California Federal Savings & Loan Association v. Guerra (1987), decided under Title VII of the civil rights act of 1964, an employment antidiscrimination statute. Guerra held that a state law requiring employers to provide pregnancy leaves did not violate Title VII. Because a prior constitutional pregnancy case, Geduldig v. Aiello (1974), had held that pregnancy discrimination is not sex discrimination, the citation of a Title VII pregnancy discrimination case in a constitutional sex discrimination opinion may cast doubt on the continuing validity of Geduldig, despite its citation in dicta in bray v. alexandria women ' s health clinic (1993), which held that a federal conspiracy statute cannot be used against people who obstruct access to abortion clinics. Because Guerra had described pregnancy leaves as allowing "women, as well as men, to have families without losing their jobs," its citation in a gender equality case requiring institutional alterations may imply that pregnancy leaves are constitutionally required for governmental employers. Consistent with this implication is the purpose section of the Family and Medical Leave Act of 1993, which identifies one of its purposes as promotion of equal employment opportunity pursuant to the Fourteenth Amendment.

There was no majority opinion in the Court's next constitutional sex discrimination case, Miller v. Albright (1998), upholding citizenship laws that classified children of unmarried parents differently according to the sex of the citizen parent, despite the agreement of five Justices that gender classifications based on stereotypes are unlikely to withstand heightened scrutiny. Two of them upheld the statute saying that the plaintiff daughter could not raise her father's claims. Two Justices said only Congress can remedy citizenship claims. Only two found the statute constitutional.

Sexual assault or harassment claims raise constitutional issues when brought under federal statutes that impose criminal or civil liability upon persons who, under color of law, deprive others of rights protected by the Constitution. Sexual assault may be a due process violation; sexual harassment, a sex discrimination equal protection violation.

In United States v. Lanier (1997) the Court affirmed the federal conviction of a state judge who sexually assaulted several women in his judicial chambers, holding that freedom from sexual abuse is a protected due process liberty interest. The trial judge had instructed the jury that 18 U.S.C. © 242, which prohibits someone acting under color of state law from depriving another of constitutional rights, forbids serious and substantial misconduct, but not every unjustified grabbing by a state official. This is similar to the Supreme Court's definition, summarized in Faragher v. City of Boca Raton (1998), of workplace harassment actionable under Title VII. The conduct must be objectively and subjectively serious or pervasive to alter employment conditions. It must be more than merely offensive but, as stated in Harris v. Forklift Systems, Inc. (1993), need not cause psychological injury. Oncale v. Sundowner Offshore Services, Inc. (1998) held that it may include same-sex harassment.

Faragher, above, and Burlington Industries, Inc. v. Ellerth (1998) held that employers would be liable to employees who suffered severe, tangible, employment retaliation by harassing supervisors but not liable if there were no retaliation and if the employers had a plan, unreasonably unused by the employee, to prevent or correct supervisory harassment. The Supreme Court articulated a different standard for vicarious liability under Title IX of the Education Amendments of 1972, which prohibits sex discrimination by educational institutions receiving federal funds. Gebser v. Lago Vista Independent School District (1998) and Davis v. Board of Education (1999) held that school districts would be liable for teacher or peer sexual harassment of students only if the districts were knowingly and deliberately indifferent to the harassment.

Candace Saari Kovacic -F leischer
(2000)

Bibliography

Babcock, Barbara Allen et al. 1996 Sex Discrimination and the Law: History Practice and Theory, 2nd ed. Boston: Little, Brown and Company.

Bartlett, Katharine and Harris, Angela 1998 Gender and Law: Theory, Doctrine, Commentary, 2nd ed. New York: Aspen Law and Business.

Berry, Mary Frances 1993 The Politics of Parenthood. New York: Viking Penguin.

Greenberg, Judith F.; Minow, Martha L.; and Roberts, Dorothy E. 1998 Mary Jo Frug's Women in the Law, 2nd ed. New York: Foundation Press.

Kay, Herma Hill and West, Martha 1996 Sex-Based Discrimination: Text, Cases and Materials, 4th ed. (with 1999 Supplement). St. Paul, Minn.: West Group.

Kovacic -F leischer, Candace Saari 1986 Remedying Under-inclusive Statutes. Wayne State University Law Review 33: 39–95.

——1997 United States v. Virginia 's New Gender Equal Protection Analysis with Ramifications for Pregnancy, Parenting, and Title VII. Vanderbilt Law Review 50:845–915.

Rhode, Deborah 1997 Speaking of Sex: The Denial of Gender Inequality. Cambridge, Mass.: Harvard University Press.

Udell, Collin O'C onner 1996 Note: Signaling a New Direction in Gender Classification Scrutiny: United States v. Virginia. Connecticut Law Review 29:521–560.