Title VII: Laws, Context & Implementation

Title VII: Laws and Context

• Title VII is the most important federal law concerning sex discrimination in employment
• Know the basics of the Equal Pay Act and Executive Orders 11246/11375, as summarized in the memo and slide on attributes of the laws
• Know enough to explain why Title VII is the most important law
• Understand how the importance of the executive orders changed in January of this year
• Begins with a summary of women's employment situations in 1960 and compare situations to the current period
• Understand the changes regarding workforce participation, job types, and wage levels
• Wage ratio should be understood
• Role of discrimination laws on women's employment since 1960 is a question
• Need awareness of other developments aiding women's employment for a general sense of their impact, and how Title VII has been interpreted and implemented.

Implementing Title VII

• Understand the procedural paths of employment discrimination complaints in the EEOC and federal courts, shown in the slides
• Key elements of the paths that determine outcomes and the roles of the EEOC and federal courts in Title VII complaints should be noted
• Note the differences between the roles of the Office for Civil Rights and federal courts for Title IX complaints, including administrator and judge importance
• Focus on the overall patterns in the EEOC and in court and the sources of those patterns
• The EEOC handles a large volume of complaints and many discrimination cases go to court, impacting complaint outcomes
• Most people who feel they have been discriminated against do not file complaints, and fewer go to federal courts
• Data on sex discrimination complaints can reveal why people do or do not bring complaints
• In both the EEOC and the courts, many people who bring actions for discrimination are successful, but as a group they have a low rate of success in the courts
• Nancy Gertner's article provides an explanation on the low rate of success in court, which is based on her experience as a judge

Title VII: Forms of Discrimination

• Understand several Title VII interpretation issues that involve expansions beyond the original focus of Congress when the Civil Rights Act of 1964 was enacted.
• Disparate impact is a category of discrimination and it should be understood.
• The distinction between disparate treatment and disparate impact should be identified.
• The Supreme Court has ruled that disparate impact cases can be brought under Title VII, meaning employment practices can violate Title VII even without intent to discriminate.
• Title VII, as interpreted, differs from equal protection
• The dichotomy of disparate treatment and disparate impact differs from the dichotomy of explicit and implicit discrimination under equal protection
• Supreme Court has three-part analytic schemes for disparate treatment and disparate impact cases but there is no need to memorize them
• The structure of the schemes help describe and apply them.
• The second expansion involves ambiguous situations: discrimination based on sexual orientation or gender identity
• The Court addressed this issue in Bostock v. Clayton County
• Understand the positions on both sides and the underlying logic, because that is a good example of how justices interpret statutes in the current era
• Conservatives in the legal community favor textualism (interpreting statutes based solely on the text, without considering the intent of Congress) over members' of congress intent
• Justices Gorsuch and Kavanaugh are textualists who disagreed in Bostock about what the text of Title VII means for discrimination based on sexual orientation and gender identity
• The other ambiguous situation concerns employment benefits and pregnancy: does excluding pregnancy from benefits constitute illegal discrimination?
• Addressed in relation to disability benefits under equal protection in Geduldig v. Aiello and under Title VII in General Electric v. Gilbert
• The Court ruled in Gilbert and the bases for majority and dissenting opinions on whether the exclusion was sex discrimination should be known
• Congress responded to Gilbert with the Pregnancy Discrimination Act
• In reading the Senate Report, focus on the language added to Title VII, subsection (k) and material on the bill's background and provisions on pages 1-6.
• Understand the legal status of the Geduldig and Gilbert decisions after Congress enacted this law and the general principles concerning the powers of Congress and the Supreme Court
• The third expansion is "sex-plus," where an employer discriminates based on a combination of sex and another factor
• This topic related to gender stereotyping, where people are treated differently for not conforming to gender stereotypes
• Portions from Price Waterhouse v. Hopkins, the classic general stereotyping case, should be reviewed

Sexual Harassment

• The first legal question was whether sexual harassment could be defined as sex discrimination and violate Title VII
• Arguments that harassment could violate Title VII should be understood
• Once harassment was treated as a Title VII issue, there were two broad questions: the circumstances under which harassment violates Title VII and the extent of employers' responsibility
• The Supreme Court's stance on both issues in general terms should be understood
• The key decision on the first issue was Harris v. Forklift Systems
• The key decision on the second issue was Burlington Industries v. Ellerth,
• The Ellerth syllabus is convoluted
• The key part of the syllabus is section (f) which isn't easy to follow
• There's also sexual harassment of students under Title IX issue
• The key question is similar to Title VII
• The Supreme Court gave a somewhat different answer from its answer for Title VII in Ellerth, that can be found in Gebser v. Lago Vista
• Should understand schools' responsibility for harassment of students by other students.

Pay Equity and Bona Fide Occupational Qualifications

• Issues related to equity in pay between women and men and the "bona fide occupational qualification" (BFOQ) provision of Title VII are the subjects
• Pay levels and the wage gap has previously been considered
• Higher levels of pay that men receive should be provided context for examination of pay equity under Title VII
• Men on average reflect the differences in average pay for men and women within the same job categories and differences in the distribution of men and women among job categories.
• The main focus will be on a theory called comparable worth
• This theory starts with the fact that there is a correlation between the percentages of men and women in different occupations and the average level of pay in those occupations
• Proponents of comparable worth view on discrimination against women should be understood as well as the arguments on how that discrimination should be remedied.
• Proponents of comparable worth sought to incorporate it into the law.
• The Equal Pay Act cannot be used as a basis for comparable worth because it is limited to comparisons of women and men who hold the same jobs, impacting wage gap
• Title VII was the vehicle for lawsuits that were based on the comparable worth theory
• Federal courts of appeals rejected the use of Title VII to encompass comparable worth
• American Nurses' Association v. Illinois is excerpted to see why comparable worth was an exception that judges rethought the meaning of sex discrimnation
• The BFOQ (bona fide occupational qualification) provision is the most important exception to the general prohibition of sex discrimination in title VII
• The provision says and how the EEOC and the Supreme Court have interpreted the provision overall should be known
• The Court's key decision is United Auto Workers v. Johnson Controls
• You should know what the issue in the case and the Court's ruling and the concurrence of Justice Byron White
• How their interpretations of the BFOQ provision differed should also be understood

Law of Marriage

• Topic: The Law of Marriage
• Issues covered: the legal meaning and status of marriage
• First, the basic legal character of marriage
• Key elements: those that pertain to marriage as a contract and those that pertain to merger of identities
• How those elements are reflected in specific legal rules on the law of conspiracy, interspousal immunity from lawsuits, control over the couple's legal domicile, and the doctrine of necessaries should be known
• States impose terms for marriage contracts
• Important question: the extent to which couples can alter a state's terms
• Discussion with Borelli v. Brusseau is key
• What is the dominant rule on alteration of the state's terms, (majority opinion), what is the example of the questioning of that rule (in the dissenting opinion), competing arguments about the desirability of that rule
• On property rights in marriage
• Understanding of how wives' property rights have evolved over time is important
• States adopted two different systems of rules to govern the allocation of property that was obtained during the time of marriage: the common law and community property systems
• Exception to the dominant rule concerning alteration of a state's terms for the marriage contract
• Modification of statutory rights to property that is obtained during marriage
• Side by side, the dominant rule should be recognized
• In re Bonds, asked to read
• How the court ruled in the case and the rationale from the court's opinion
• How the new statute changed the law and what effect the statute would have had on the Bonds case

Same-Sex Marriage

• Public policy toward same-sex marriage went through stages from the 1960s to the mid-2010s and what that history looked like
• There are some areas for more attention:
• Hawaii Supreme Court decision in Baehr v. Lewin
• US v. Windsor and Obergefell v. Hodges
• In Obergefell the Court used reasoning to reach conclusion
• What provisions of the Constitution does he invoke as a basis for the Court's decision and how does he justify the judgment that prohibitions of same-sex marriage violate those provisions
• Understand the heart of that reasoning
• Dissent written by Chief Justice Roberts fundamentally disagrees
• You can identify the main points of Roberts's criticism of the majority.
• What stands out most is, fundamental change in state and national policies that came about over a relatively short time

Unmarried Relationships

• Unmarried relationships raise several kinds of legal questions

• Property and income rights of the partners in those relationships, the status of children and parental rights related to children, and availability of benefits from government and from employers

• You should understand the state of the law on each of these issues

• On property and income rights of partners, the legal rules changed quite substantially, beginning with the decisions of the California (Marvin v. Marvin) and Oregon Supreme Courts in 1976

• Make sure that you know the pre-1976 rule and how the law has changed

• The opinions in Marvin, should identify court's rationale and circumstances under which they are thought to develop

• Supreme Court has addressed several issues relating to the rights of children whose parents are not married.

• Issues that arise under the Constitution (primarily equal protection)

• Information will be presented about the Court's decisions on the various issues: specifically, to what extent does the Court require that governments treat children of unmarried parents the same as children of married parents, and to what extent does the Court allow differences in treatment between those two sets of children?

• On rights of mothers and fathers, the issues arise under due process and equal protection

• You should also strike down how limits on the rights of unmarried fathers in a series of decisions in the 1970s, which are summarized in the majority opinion in Lehr v. Robertson should be handled

• Overall position on fathers rights should be summarized.

• Some unmarried couples have brought cases arguing that benefits provided by government to married couples should be extended to unmarried couples

• There's overall pattern of courts' decisions on these arguments

• Common Law Marriage

• Discussion of unmarried relationships

• A sense of what it is

• The basic criteria for it

• How its legal status compares with the legal status of formal marriage