Gender Discrimination Flashcards
a) Personnel Administrator v. Feeny (1979)(1363)
Veterans preference for state employment which results in more men hired than women.
i) Rule: for the state to be liable the state has to actually have intended a particular outcome.
The intended outcome (to help veterans) was gender neutral
b) Reed v. Reed (1971) (p.1422)
law prefers men to women as administrators of an estate
i) Court held the code violated EPC. A classification must be reasonable, not arbitrary and must rest upon some ground of difference having a fair and substantial relation to the object to the law.
(1) This outcome is not rational basis review, despite the court saying that it is (Strict Scrutiny)
(2) point in fact: men are more likely to have business degrees. easy therefore to argue that training was overwhelmingly male and if rational basis test allows one to use statistically plausible proxy, the state can pass rational basis
Frontiero v. Richardson (1973) (p.1422)
i) Federal statute permitting males in the armed services an automatic dependency allowance for their wives but requiring females to prove their husband’s dependency
ii) Court held the law violated the DPC of the 5th amendment.
(1) One plurality says gender should be afforded a stricter review of scrutiny, other side says should not amend EPC outside of what is normally about.
Equal Rights Amendment
a) When it was first proposed in the 1960s, it was widely thought to be a good idea, as it was explicitly enforced by both major political parties and it was quickly ratified by a very large number of state legislatures
i) Under Article 5, three-fourths of state legislatures must ratify an amendment passed by Congress before it becomes part of the Constitution.
b) About the time when a little more than 30 states had ratified, opposition began to crystallize
i) Arguments that EPC for gender would result in removal of gender separated restrooms In
public facilities
ii) Drive for ERA came to a halt.
Coleman v. Miller:
Court determined that the question on amendability is non-justiciable. Thus, Congress alone has the authority to decide.
ERA produces a discussion about what it is to say that a certain form of classification will get heightened scrutiny.
i) One option: The most important aspect of race for constitutional purposes was the immutability of race, and it is fundamentally wrong to classify people based on immutable characteristics. Gender in some ways has immutable characteristics, but then saying that gender is therefore like race has limited power.
ii) Other Option: if the way to understand heightened scrutiny is to talk about historical classifications that build on discrimination. Gender would be a classic example of this type of past discrimination. Gender, with a history of discrimination and subordination is like race and should get heightened scurrility if the theory behind discrete and insular minorities is that they have systematically less historical power and political power even though in the numeral dense women are not a minority.
(1) numerical (2) degree of political power (3) historical discrimination (4) discrete and insular minatory : does some combination of those give heightened scrutiny?
ERA Current state of the law:
a) Gender discrimination gets intermediate scrutiny (between rational basis and strict scrutiny)
i) Individual assessment even if reasonable proxy might exist.
ii) State must show an exceedingly persuasive justification that is substantially related iii) Overly-broad generalisations about differences between men and women are per se impermissible
iv) “It is because gender discrimination is wrong that gender-based generalisation, even when statistically rational, is wrong as well.”
Craig v. Boren (1976)(p.1427)
women can buy 3.2% beer at 18. Men cannot until 21.
i) Intermediate Standard of Review
ii) Court held the statute violated EPC.
iii) Rule: classifications by gender must serve important governmental objective and must be substantially related to achievement of those objectives to justify gender based classifications
(1) Important: there may be interests that are important but not compelling. Important is more than rational.
(2) Substantially related: close fit, but not as close as least restrictive alternative and not as close as narrowly tailoring.
Mississippi Univ. for Women v. Hogan (1982)(p.1453)
i) A male applicant was denied admission to a women’s only nursing school.
ii) Court held the state statute preventing men from enrolling in MUW violated the EPC because it did not provide an exceedingly persuasive justification for the gender-based distinction.
(1) Gender affirmative action here was unpersuasive because women never lacked opportunities to be nurses & the statute perpetuated the stereotype of nursing as a female job.
(2) “exceedingly persuasive”: stronger than “important” but weaker than “compelling”
United States v. Virginia (VMI) (1996)(p.1431)
i) VMI disallowed female admission. Court held that violated EPC. The programs were unequal & VMI failed to show an exceedingly persuasive justification for its policy.
ii) Rule in gender discrimination cases: “parties who seek to defend gender based government action must demonstrate an “exceedingly persuasive justification” for that action. The state must show that at least the challenged class-action serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. It must not rely on over-broad generalisations about the different talents, capacities or preferences of males and females.”
(1) Test needs to be more individually tailored (there are some woman who have the skills to succeed in an adversarial learning environment per Ginsburg). iii) Issues:
(1) Justification needs to be genuine and not invented post-hoc in response to litigation
(a) raises the question: is it possible that an invented justification for rational basis review might be good enough?
(2) Ginsburg: even if the generalisation is correct, and even if it is necessarily correct, it is still the case that making the decision on the basis of the generalisation is impermissible under this intermediate standard of review.
(a) Even in that case: the standard being applied is more individualised that does not exist for lower standards of review.
(b) This is a product of previous discrimination, and under intermediate review that is not good enough. As in Reed, the empirical prop in reed was that at the time men were more likely than women to be accountants, MBA’s, lawyers, etc but it is almost certain that they is a function of previous steering / channelling of men into some forms of education and steering women in another.
(c) genuine difference that are functions of pervious discriminations will not count as permissible justification.
