Women & the Law: Exam 2

What types of complaints are most common that come to the EEOC?

#1: Firing, #2: harassment (sex, race, religion) #3: terms or conditions of employment (how they're treated at work)

3 bases for divorce

1) Fault: 34 states continued with need to prove fault 2) Breakdown of marriage/Incompatibility (no fault): 45 states now allow marriage to end on these grounds 3) Separation: 28 states, length of separation has become shorter than in the old days (6 months v. 12 years - "slow no fault") **every state has at least #2 or #3, or both - so no fault options in every state

2 basic characteristics of a marriage

1) contractual relationship: rules people follow when they get married, duty of husband is to provide and duty of wife is to maintain household/caretaker 2) merger of legal identities of husband and wife, wife melded into husband's identity (husband becomes primary decision maker)

some grounds on which states allow annulments (differs from state to state)

1) marriage invalid bc one spouse not legal age 2) one spouse married to someone else 3) either party obtained by fraud

framework for proving disparate treatment in court

1) plaintiff must show "prima facie" evidence (evidence on its face) of discrimination 2) employer/defendant must show alternative, nondiscriminatory explanation of employer's actions 3) plaintiff must show that the alternative explanation is just a pretext, an excuse, for the discrimination

framework for proving disparate impact in court

1) plaintiff must show that the employer's action has a disparate impact on a group protected by Title VII 2) employer/defendant must show that the practice is job-related for the position in question and consistent with business necessity 3) plaintiff must show that there is an alternative practice that has a less discriminatory effect and would achieve the same desirable result for the employer

Why was sex added to Title VII?

1) women in the House were pushing for something like this 2) opponents of the Civil Rights Act thought it would cause people to vote against it

How long must a complaint reside in EEOC before individual can request it be sent to court?

180 days +

1st era same sex marriage

1970s: no consideration to same sex marriage at all; Courts said even laws that don't explicitly mention gender, same sex still illegal bc its implicit in the law Baker v Nelson (1971): MN statute didn't mention gender, plaintiff argued that several amendments were violated; SC only considered 9A and 14A, but found law to be constitutional

What often happens in the cases where a judge rules in favor of the plaintiff?

41% of the time, the court of appeals reverses the decision

State ex rel Krupa v. Green (1961)

Blanche Krupansky running for judge in CLE, created agreement w/ husband that she would keep her maiden name; informed board of elections and Sec of State that would retain maiden name and followed ruled of notifying them of notation on the ballot; opponent claimed she hadn't filed protocol in regards to last name - Court turned him down. She DID follow protocol, and no law stating a woman HAS to take husband's last name. RULING: person can adopt any name they want so long as it's in good faith w/ no intent to deceive or defraud

Geduldig v. Aiello (1974)

CA has disability insurance system for private employees temporarily disable from working due to an injury not covered by workmen's compensation. However, disabilities as a result of pregnancy were not covered, pregnant women challenged the law. SCOTUS found in 6-3 decision that the CA statute did NOT violate EPC of 14th amendment - insuring disability resulting from pregnancy complications would be too expensive and make program impossible to maintain

David M v. Margaret M (1989 WV Court of Appeals)

David got custody of son, Margaret appeals; court of appeals agreed with Margaret that David wasn't suitable for childcare; David filed complaint alleging cruel and inhumane treatment - Margaret had committed adultery. women get short end of stick when it comes to sexual promiscuity - harsher reputation than men

Are disparate impact or disparate treatment cases more common in federal courts?

Disparate treatment; harder to prove disparate impact b/c of three part test and lack of explicit discrimination

California family code (regards to marriage)

Enforcement of premarital agreements are NOT enforceable IF: agreement wasn't signed voluntarily; agreement was unconscionable when it was executed; party not provided fair/full disclosure of the property or financial obligations; party didn't voluntarily waive right to disclosure of property; didn't have adequate knowledge of party obligations

When will an employer be liable for the actions or practices of a supervisor?

Firing, reassigning, demoting and other tangible actions - employer will always be liable. What if no tangible action? Employer will not be liable if they establish 2 things: 1) employer exercises reasonable care 2) to prevent and correct behavior; if NO grievance procedure, no violation

General Electric v. Gilbert (1976)

GE offered disability plan for non-occupational sickness & accidents, didn't cover pregnancy. Class of females at GE sued under Title VII. SCOTUS: 6-3, No violation of Title VII, employers have right to exclude condition from disability plan w/ reasonable basis. Disability plan not worth more to men than it was to women, therefore no discrimination on basis of sex. DISSENT: should've considered policy in light of GE's history of downgrading role of women in workforce. Policy not gender-neutral. Pregnancy exclusions negatively impact women's abilities to remain in the workforce.

Gebser v. Lago Vista school district (1998)

Geiser had affair with a teacher at Lago Vista, a school w/ no procedure for reporting sexual harassment or anti-harassment policy. Teacher was arrested and fired; Gebser sought damages on basis that she was subjected to discrimination under Title IX. Question: Can a federally funded educational program/activity be required under Title IX to pay sexual harassment damages to a student involved in secret affair with member of its staff> SCOTUS: NO. 5-4 decision against Gebser. 2 criteria must be met in order for aggrieved party to recover sexual harassment damages: 1) party must show that school district official, w/ ability to instituted corrective measures, knew of forbidden conduct 2) must show that despite official having knowledge of the conduct, educational establishment failed to respond in a proper manner. (Lago vista never showed indifference to the relationship bc it didn't know of its existence)

What does individual do if they have complaint under Title VII?

Individual must go to the EEOC, can't go straight to court like you can with Title IX.

United Automobile Workers v. Johnson Controls (1991)

Johnson Controls makes batteries and assembly has high levels of lead. 8 female employees became pregnant while maintaining high levels of lead in blood, so Johnson barred females (except those who were infertile) from engaging in tasks that required exposure to lead. United Automobile workers challenged this as sex discrimination under Title VII SCOTUS: unanimous decision in favor of UAW, violation of Title VII. Men didn't have to demonstrate medical fertility even tho lead exposure hazardous to male reproductive systems. Also: exception in Title VII only permits discrimination based on qualities that detrimentally impact employee's job performance. No proof that lead exposure detracted from female ability to perform tasks

What often happens when a company being sued has a grievance procedure in place?

Judges usually rule in favor of the company/employer; how could they intend to discriminate if they have a grievance procedure?

Burlington Industries, Inc. v. Ellerth (1998)

Kim Ellerth quit working at Burlington b/c she allegedly suffered sexual harassment by her supervisor. She refused his advances but didn't suffer tangible retaliation. Question: can employee who suffered no job-related consequences after refusing sexual advances recover against employer under Title VII without showing employer was responsible for supervisor's harassing conduct? SCOTUS: 7-2 decision in favor of Ellerth. Employers are liable for supervisors who create hostile working conditions

Can EEOC reach final rulings about discrimination?

No. The EEOC can conclude if there is a cause of violation, but can't enforce the law. IF a violation is found, then EEOC can bring the complaint to court. (Congress may have thought everything would be compromised w/in EEOC)

What percent of filed cases go to trial?

Only 1% go to trial

When will a SCHOOL be liable for actions of a teacher or employee?

Schools are not liable unless a school official who has the authority to institute corrective measures knew about the teacher misconduct and didn't do anything about it. (different from employers b/c employers must show they exercised reasonable care to prevent and correct behavior - even if they didn't know about a situation, they must show they were committed to investigating into things like this)

What hasn't changed in regards to female employment from the 60s to today?

Still barely any movement of women into skilled crafts. NOT a lot of movement of men into female-dominated jobs (childcare: 98% female, preschool/kindergarten: 98% women)

Zarda v. Altitude Express

Zarda fired for being gay, sued under Title VII; Feb 2018: en banc decision by court of appeals decided that sexual orientation IS covered under Title VII; majority: other traits considered "sex" like life expectancy and non-conformity with gender norms (sex can be interpreted many ways); sexual orientation fits under gender norms/stereotyping bc we expect a female to like men and vice versa. Judging someone based on who they like is another form of gender stereotyping

3 grounds that existed for divorce in most states

adultery, desertion, cruelty. other more minor grounds: imprisonment, drunkenness

what are requirements to allow common law marriages?

agreement to be married, hold themselves out to be married, live together

How do disparate impact under Title VII and implicit discrimination under the EPC differ?

although both are often implicit forms of discrimination by employers, plaintiff does NOT need to prove intent to discriminate in order to win a disparate impact case. If an implicit discrimination case under EPC, plaintiff must prove that there was an intent to discriminate

Changes in female employment from the 60s to today

although the gap has narrowed a lot, women still make less and are still more likely to stay home. Great strides, however: 1960: 19% of women w/ kids under 6 were employed, 2017: 65%. Less sex-segregated today, women entering more male-dominated fields.

Lehr v. Robertson (1983)

appellant: father of child born out of wedlock; appellee: mother of child who married another man after child was born --> mom and new husband filed for adoption when baby was 2 y/o. Appellant filed suit that adoption order violated his due process and EPC. SCOTUS: no rights violated bc he hadn't made effort to be there for the kid nor filed under putative father registry

still some resistance to legalization of same sex marriage in 2015

children issues - biological parents have greater parental rights than nonbiological parents; Masterpiece Bakeshop v. CRC 2018 - ruled in favor of baker who denied baking cake for same sex couple (freedom of speech and religion)

rights of children

children w/ unmarried parents tend to get less rights; 1970s: SCOTUS determines this as heightened scrutiny; struck down most laws that discriminated children out of marriage on basis of EPC

Obergefell v. Hodges (2015)

class action lawsuit from same sex couples on basis of 14th amendment; SCOTUS: violates due process and EPC bc 1) marriage is sacred institution 2) history of marriage is one of both continuity and change - constantly changing 3) children suffer stigma knowing families are somehow lesser 4) marriage = keystone of nation's social order DISSENT: courts shouldn't have jurisdiction over same sex marriage; marriage created bc of reproduction

comparable worth

company does study on characteristics of a job and then gives the job a score of its worth. then it compares those scores to the pay being received. If pay lower than the value, you need to raise the pay; varying opinions about whether or not comparable worth should be incorporated into Title VII

pattern/practice lawsuits

complaints that convince the EEOC that there is a broader issue or pattern within a workplace, not just an individual case of discrimination

legal separation

creating legal separation of spouses, sometimes temporary separation when divorce is pending, doesn't end a marriage

Dissenting opinion in Zarda

creators of Title VII never intended for sexual orientation to be encompassed into sex (same for sex harassment & hostile work environment claims but those were eventually adopted under Title VII); some want to add sexual orientation to list of grounds eventually, but just want to keep sex separate

Why is there a growing # of people who go to federal court on there own without a lawyer?

difficult to convince a lawyer that it's worth taking these types of cases - chance of winning and chance of getting money is small

Stevens v. Stevens

diploma dilemma - professional degree not part of divided earnings of a married couple; BUT Ohio SC reversed some inadequacies of the trial court in regards to the money they awarded wife - Ohio SC gave her more $ bc she had helped to pay for professional degree and would get screwed economically thru divorce dissent: wanted to reimburse wife even more

"stray remarks" doctrine

discounts explicitly discriminatory statements; example: employer makes ageist/racist comment, not his TRUE feelings, and also not necessarily judge's job to decide what the remark really meant

disparate treatment under Title VII

employer treats someone less favorably based on an attribute like race or gender covered under Title VII; could take form of formal policy that discriminates based on gender or could take form of specific decision made based on gender of employees

disparate impact

employment practice that does not explicitly refer to an attribute that is covered under Title VII but has an unfavorable impact on a group such as women or blacks

Equal Employment Opportunity Commission

established at the same time as Title VII, a place where someone can go to file a complaint; responsible for many laws like Equal Pay Act; can't enforce Title VII - only can bring it to court

reasons that contribute to extent of employment, kinds of jobs, and levels of pay of women

family responsibilities, barriers to education/jobs, gender norms (women expected to be caretakers), workplace cultures, pay policies.

Why do the majority of people not bring a Title VII complaint to the EEOC?

fear of retaliation; don't know they can sue under Title VII; complaints aren't taken care of quickly and some need immediate resolution; unpleasant to be in the situation

2nd era same sex marriage: strong opposition

full faith and credit clause: states give full faith and credit to legal actions of OTHEr states (if one state allows same sex marriage and married couple moves to state where it's prohibited, that prohibition state must recognize the marriage) State v. Carswell 2007: OH adopted domestic violence statute, Carswell in relationship but unmarried, couldn't argue domestic violence bc no legal recognition in unmarried relationship - 6-1 vote against Carswell Defense Against Marriage Act 1996: no state required to recognize same sex marriage from another state; if state adopts same sex marriage, not recognized at federal level

some exceptions to Title VII

hiring decisions can be made on basis of religion, sex or origin IF one of those characteristics is necessary to operation of the particular business; NOT discrimination to give employment preference to veterans; differences in wages on basis of sex not unlawful if differences authorized by the minimum wage law; NOT intended to preempt state and local laws

Bonds v. Bonds (SC of CA, 2000)

husband and wife signed premarital contract regarding property, Court of appeals said wife lacked independent counsel and her husband's attorneys failed to explain that she and husband had conflicting interests; also had limited English skills and consequences of signing the agreement not spelled out to her. agreement cost her lots of $$, wife sought to nullify agreement once marriage ends. Supreme Court of CA: didn't think it should be held to strict scrutiny like appeals court said, SC said her signing of contract was voluntary

Borelli v. Brusseau (CA court of appeals 1993)

husband had failing health and needed care, he and wife made contract that she would receive inheritance if she took care of him. He died, didn't leave her anything in the will, she sues. Court says you can't get anything because it was already part of her duty as a woman to care for her husband

"nearly identical" doctrine

if someone in a protected class under Title VII is fired for misconduct, must show that someone else outside of the protected class was doing the exact same misconduct, not enough to say it was similar

remedies to a Title VII violation

injunction against further violations of the law; affirmative action - rehiring of employees; compensatory/punitive damages

why are most terms decided upon before going to court for a divorce?

judge already typically agrees to what the parties have decided; if things still aren't decided, it's left in the fate of the judge (often embarrassing and more legal fees as well)

pros of no fault divorce

judges don't want to hear about fault, lots of negatives associated with it. no fault is less expensive than fault

common law system

law traditionally developed by the courts; 8 states (French and Spanish states) had community property, the other 42 states had common law system common: whatever someone brought into the marriage belonged to them individually; growing feeling that common law unfair

Discrimination

many jobs labelled men or women; wages: common to pay women less for the same job

how to calculate the wage gap

mean women's wages / mean men's wages = pay ratio = 100-pay ratio = wage gap

Family responsibility

most women left work at some point to care for kids, if they returned, typically part-time; makes less sense to get a degree when thinking of long term task of taking care of children; don't make huge effort to become higher position due to this socialization

American Nurses Association v. State of Illinois (7th circuit 1986)

nurses being underpaid as found by comparable worth study, judge ruled that you need to show that state deliberately paid nurses less in order to prove disparate treatment (can't make a comparable worth case under Title VII) comparable worth seen as too controversial for many people b/c seems like big government intervention into the way people are paid

interspousal immunity

one partner in a marriage can't sue to the other (today has largely been eliminated)

process of sexual harassment being incorporated under Title VII

passage of CR Act of 1964: no thought of sexual harassment as part of Title VII. Women's movements brought it more into focus, @ first, people thought of it as quid pro quo harassment & ppl using their power to leverage that power over others. Later on expanded to mean hostile work environment b/c it interfered w/ one's ability to work. Could sexual harassment be harassment because of sex? Early on judges said no (saw it as personal behavior rather than behavior of an employer), 1970s1980s change in public opinion, 1980: EEOC issued regulations that sexual harassment violated Title VII

change in property rights of women over time

pre-1960s: women who weren't married pretty much lost their property rights; married women's property acts: gave SOME rights over property to married women women's movements: sped up some of these rights 1981: in LA, law where community property (property that belongs jointly to husband and wife) was in husband's hand. SC said violated EPC

Title VII of the Civil Rights Act of 1964

prohibition of discrimination in employment on the basis of race, religion, sex or national origin

Equal Pay Act 1963

prohibits discrimination between employees in WAGES (only) on basis of sex; focuses on employees performing the same/similar jobs; Congress power to regulate interstate commerce & therefore applied to anyone involved in interstate commerce

Of the filed cases in federal court that do NOT go to trial, what happens to them?

resolved by negotiation between the parties, case thrown out by a judge - either dismisses case because plaintiff hasn't made a case or judge reaches summary judgment

issues in unmarried relationships

rights to each other's property and income

heuristics

rules developed in response to patterns in cases to deal w/ complex cases in a more efficient manner

4 largest categories of types of jobs women held in the 1960s

secretary, retail/sales, private household work, elementary school teacher

summary judgement

so clear that there's no point in having a trial - majority are in favor of defendants (most cases resolved this way in favor of defendant)

Women's own expectations

socialized to adopt a certain role; employment less important as a goal for women; focus on jobs appropriate to them

3rd era: movement towards legal acceptance

some laws striking down prohibitions of same sex marriage (Many called civil unions instead of marriage); 2012: first time voters voted in FAVOR of same sex marriage, signal that public opinion had changed US v. Windsor 2013: SCOTUS strikes down Defense of Marriage Act on basis of EPC

What constitutes hostile environment harassment?

sufficiently severe to alter conditions of employee's employment and create a hostile and abusive working environment; can be a Title VII violation even if person doesn't suffer economic loss

Why did labor unions support the Equal Pay Act?

they feared that if females were paid lower wages, more women would be hired and consequently take the jobs of the men

why did states allow common law marriage?

to protect children

Marvin v. Marvin (1976)

unmarried couple - 1964 oral agreement that they'd combine their efforts and earnings and would share property accumulated; also would hold themselves out to the public as husband and wife. Broke up - up to courts to determine rights to property and other objects

Johnson's executive orders 11246 (race) and 11375 (sex)

used spending power to prohibit discrimination of any entity that does business with the federal gov't through a contract; applies to many aspects of employment, not just pay; "debarred" from future contracts w/ fed gov't if violation occurs; executive orders don't disappear with new admin, new admin simply issues new order

But, is no fault truly desirable?

w/ change to no fault laws, divorce rates have increased; making divorce easier can be worse for women who are economically dependent on their husbands (esp. when women are given custody most of the time) - wife has more leverage if there is a fault system, would give her negotiation powers in terms of the divorce

What accounts for the great majority of complaints that are not successful in the EEOC?

weak cases - people feel they've been wronged when they haven't been; ppl might have a strong case but didn't make it; bias in way EEOC handles cases - might find it easier to reach "no probable cause" judgement when things are murky

asymmetric decisionmaking

when judges encouraged to write detailed decisions when granting summary judgement and not to write anything when denying it (results in more favoring of defendants in Title VII cases)

law of conspiracy as applied to married couple

when ppl come together to commit a crime, also charged w/ conspiracy for conspiring on the crime. However, husband & wife can't be charged w/ law of conspiracy b/c they're considered one person

vicarious liability

where lower-level supervisor is accused of harassment, employer is responsible

annulment

wiping out the fact that a marriage ever existed