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II. ANALYSIS OF SPECIFIC CASES UNDER STATUTES

The Supreme Court has also decided many gender discrimination
challenges based upon statutory violations, predominantly under
Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. 2000e
et seq., and Title IX of the Education Amendments of 1972, 20
U.S.C. 1681 et seq., which focus on discrimination in employment
and education respectively. As shown earlier in the constitutional
context, the Supreme Court will apply a particular standard of
review depending on the facts of the case, the classification
involved and the nature of the discrimination. When the Court is
faced with a case that involves a specific statute, its review of
the facts is in accordance with the wording and the legislative
history of the statute which has allegedly been violated. Thus, a
review of gender discrimination cases based on statutory grounds
will reflect a different approach from that used in decisions under
the equal protection clause.

A. Title VII of the 1964 Civil Rights Act, as Amended

Title VII prohibits employment discrimination on the basis of any
of several classifications, including sex. The statute states that
it is an unlawful employment practice for an employer:

     (1) to fail or refuse to hire or to discharge any individual,
     or otherwise to discriminate against any individual with
     respect to his compensation, terms, conditions, or privileges
     of employment, because of such individual's race, color,
     religion, sex, or national origin; or

     (2) to limit, segregate, or classify his employees or
     applicants for employment in any way which would deprive or
     tend to deprive any individual of employment opportunities or
     otherwise adversely affect his status as an employee, because
     of such individual's race, color, religion, sex, or national
     origin.

                         42 U.S.C. 2000e-2 (a) (1), -2 (a) (2).

Sex discrimination cases under Title VII have generally involved
pregnancy related questions, disputes involving pensions and
insurance, and conflicts dealing with the problem of unequal wage
differentials. Underlying all these cases are questions regarding
the scope of coverage and standard of proof necessary to
successfully litigate a Title VII claim. A review of Title VII
cases necessitates a departure from chronological analysis in order
to understand trends in the Court's decisions. However, in order to
place all these cases in their proper perspective, this examination
of Supreme Court decisions will be preceded by a discussion of the
scope of coverage of Title VII, followed by an explanation of the
standard of proof required in this area.

1. Scope of Coverage of Title VII

In 1984, the U.S. Supreme Court handed down its decision in Hishon
v. King and Spalding, 467 U.S. 69, holding that Title VII covers
the selection process in partnership situations. Under the facts in
Hishon, petitioner worked as an associate in a large Atlanta law
firm. She was reviewed for and denied partnership twice.
Thereafter, she was notified to seek employment elsewhere.
Petitioner filed a charge with the Equal Employment Opportunity
Commission (EEOC) claiming that the law firm had discriminated
against her on the basis of her sex in violation of Title VII. When
the case reached the district court it dismissed the complaint on
the ground that Title VII did not apply to the selection of
partners by a partnership. On appeal, a divided panel of the U.S.
Court of Appeals for the Eleventh Circuit affirmed. 678 F.2d 1022
(1982). The Supreme Court reversed, ruling that petitioner's
allegations stated a claim under Title VII, and that she was
entitled to a trial to prove them. The case was thus remanded to
the district court for further proceedings consistent with this
opinion.

In Hishon, the Court based its conclusion that Title VII covered
the selection of partners by a partnership in part on the fact that
once a contractual relationship of employment is established, Title
VII's provisions apply. The contract could be written or oral,
formal or informal. The Court wrote: "The contractual relationship
of employment triggers the provision of Title VII governing 'terms,
conditions, or privileges of employment.' Title VII in turn forbids
discrimination on the bases of 'race, color, religion, sex, or
national origin.'" 467 U.S. 69, 74. According to the Court, when
the underlying employment relationship is contractual, the "terms,
conditions, or privileges of employment" include benefits that are
part of an employment contract. In Hishon, the petitioner argued
that the law firm made a contract to consider her for partnership.
The Court observed:

     Indeed, this promise was allegedly a key contractual provision
     which induced her to accept employment. If the evidence at
     trial establishes that the parties contracted to have
     petitioner considered for partnership, that promise clearly
     was a term, condition, or privilege of her employment. Title
     VII would then bind respondent to consider petitioner for
     partnership as the statute provides, i.e., without regard to
     petitioner's sex.

                                   Id. at 75.

Aside from the claim that a contract was made, there were other
allegations in the petitioner's complaint that would also support
a valid cause of action under Title VII. An employer can provide
its employees with many benefits that it is under no contractual
obligation to furnish. Such benefits may qualify as a "privilege"
of employment under Title VII. Such benefits cannot be dispensed in
a discriminatory manner in violation of Title VII. The Court wrote:

     Several allegations in petitioner's complaint would support
     the conclusion that the opportunity to become a partner was
     part and parcel of an associate's status as an employee at
     respondent's firm....Thus, the benefit of partnership
     consideration was allegedly linked directly with an
     associate's status as an employee, and this linkage was far
     more than coincidental: petitioner alleges that respondent
     explicitly used the prospect of ultimate partnership to induce
     young lawyers to join the firm. Indeed, the importance of the
     partnership decision to a lawyer's status as an associate is
     underscored by the allegation that associates' employment is
     terminated if they are not elected to become partners. These
     allegations, if proved at trial, would suffice to show that
     partnership consideration was a term, condition, or privilege
     of an associate's employment at respondent's firm, and
     accordingly that partnership consideration must be without
     regard to sex.

                                   Id. at 76.

Finally, the Court rejected the law firm's contention that the
application of Title VII to the decision whether to admit
petitioner to the firm implicated the constitutional right to
association. The allegation by petitioner was that the firm as an
employer was obligated to consider her for partnership on equal
terms without regard to sex. The Court ruled that to enforce this
obligation did not violate the firm's right of association. As
such, there was no interference with the management of the law firm
by it partners. In sum, the Court in Hishon was simply holding that
a person who alleges that he or she was not considered for
partnership on a "fair and equal basis" is entitled to bring suit
under Title VII of the 1964 Civil Rights Act.

2. Burden of Proof under Title VII: Intent and Impact

When the Court is faced with a case that involves a specific
statute like Title VII of the 1964 Civil Rights Act, as amended,
its review of the facts conforms to the specifics of the statute
which has allegedly been violated and, until recently, where the
challenged action was facially neutral, a showing of
disproportionate impact, at least in the Title VII situation, was
sufficient to make out a case of discrimination. Thus, in the past,
given a factual context where discrimination existed because of the
effects of an employer's practices, it had been easier to prove sex
discrimination under Title VII because complainants only had to
show impact and did not have to establish intent as required when
bringing a case alleging sex discrimination under the equal
protection clause of the Constitution. The Supreme Court's recent
decision in Wards Cove Packing Co., Inc. v. Atonio, 109 S. Ct. 2115
(1989), however, has changed this because in that case the Court
appears to have melded Title VII disparate treatment, for which the
plaintiff must prove discriminatory intent, and the disparate
impact theory, traditionally thought not to require such proof.
Because of Wards Cove, it is now just as difficult to make out a
case of discrimination under Title VII as it is under the equal
protection clause of the Constitution. In order to understand the
complexity and significance of Wards Cove, the following discussion
lays out the background and the cases leading up to that
decision.(10)

The effects test or disproportionate impact analysis was first
articulated by the Court in Griggs v. Duke Power Co., 401 U. S. 424
(1971). In Griggs, the company had practiced overt racial
discrimination prior to the enactment of Title VII, but abandoned
the policy after the law's adoption. In its place, the company
developed a new policy of requiring completion of high school and
satisfactory performance on a general intelligence test as a
condition to placement in higher paying jobs. In striking down this
policy, the Chief Justice noted that Whites fared better than
Blacks and attributed this "consequence" to the "inferior education
in segregated schools" received by minority groups. The Court went
on to define permissible types of employment criteria in terms of
their effects on protected classes under the Act, holding that
requirements which are facially neutral but operate in a
discriminatory fashion are barred unless justified by business
necessity. Title VII was designed to "achieve equality of
employment opportunities and remove barriers that have operated in
the past to favor an identifiable group of...employees over other
employees. Under this Act, practices, procedures, or tests neutral
on their face, and neutral in terms of intent, cannot be maintained
if they operate to 'freeze' the status quo of prior discriminatory
employment practices." Id. at 429-30. The diploma and testing
requirements in Griggs were infirm because they were not shown to
be job-related and had the effect of perpetuating the company's
pre-Act discrimination.

The critical aspect of Griggs was its apparent rejection of
discriminatory intent as a prerequisite to relief under the Act.
"Congress directed the thrust of the Act to the consequences of
employment discrimination, not simply the motivation." Id. at 432.
The policy in Griggs could not stand, regardless of the motive
behind its adoption, because it had a disproportionate adverse
impact on minority employees and could not be justified on grounds
of business necessity. Thus, Griggs advanced a concept of
discrimination based on adverse effects that challenged practices
have on the employment opportunities of those protected by the Act.

Subsequent to Griggs, in Washington v. Davis, 426 U. S. 229 (1976),
the Supreme Court reiterated the distinction between proving a
discrimination claim under the Constitution and under a statute
like Title VII. In Davis, the Court said that when the plaintiff
alleges a statutory violation and the questionable practice has a
substantially disproportionate effect upon a protected minority,
discriminatory purpose need not be proved. For example, when
employment discrimination under Title VII of the 1964 Civil Rights
Act, as amended, is the allegation, once the Title VII plaintiff
established a prima facie case of discrimination under this
disproportionate impact analysis, then the burden shifted to the
employer to prove that the disqualifying employment practice was
related to the employment in question. While the test under Title
VII was one of impact, the test under the equal protection clause
of the Fourteenth Amendment was one of intent. It is more difficult
to prove intent or a discriminatory animus than it is to show
disproportionate impact. When a plaintiffs challenge rests on
constitutional grounds, he or she must show that the discrimination
was purposeful; however, evidence of disproportionate impact is
relevant to the question of intent. Thus prior to Wards Cove,
significant legal consequences followed depending upon whether a
plaintiffs cause of action derived from the statutory proscription
against discrimination or the constitutional guarantee of equal
protection. As will be shown below, this was true in the gender
context as well as in the race area.

In Dothard v. Rawlinson, 433 U. S. 321 (1977), the plaintiff
challenged the statutory height and weight requirements for prison
guards as well as a regulation which essentially barred women from
"contact" positions in maximum security, all-male penitentiaries,
on the ground that both violated Title VII of the Civil Rights Act
of 1964. The thrust of the plaintiff's claim in Dothard was that
the statutory height (5 ft. 2 in. minimum) and weight (120 lbs.
minimum) requirements, while facially neutral, had a
disproportionate impact upon women, i.e. excluded women from
eligibility for employment by the Alabama Board of Corrections.
There was no assertion of purposeful discriminatory motive. The
Supreme Court held that employment requirements for height and
weight discriminate illegally against women when statistics show a
disproportionate impact upon women and when employers fail to
demonstrate that the tests have some real relation to the ability
to handle the job. The Court supported its ruling by relying on two
of its earlier decisions, Griggs v. Duke Power Co., supra, and
Albermarle Paper Co. v. Moody, 442 U.S. 405 (1975). In the latter
two cases, the Court dealt with similar allegations that facially
neutral employment standards disproportionately excluded Blacks
from employment.

The Dothard decision was significant because the Court relied upon
Griggs and Albermarle, two race discrimination cases, in its
analysis of the statutory height and weight standards. The Court
applied the same disproportionate impact analysis in the
gender-based context as it did in those two race discrimination
cases. Thus, Dothard made it clear that when plaintiffs allege sex
discrimination in violation of Title VII, they can make out their
prima facie case by showing disproportionate impact.

In sum, the Griggs model of proof was followed in both sex and race
contexts. It involved two basic steps. The plaintiff carried the
initial burden of proving, most often in practice by the use of
statistical evidence, the disproportionate or adverse impact of a
given policy or practice on protected class members as compared to
other employee or applicant groups. Subsequent cases then suggested
that the burden was on the defendant to rebut plaintiff's prima
facie case with proof of an affirmative defense of "business
necessity" for the challenged practice. (Dothard, supra; Albermarle
Paper Co., supra.) Motivation was not an explicit element of impact
analysis. Moreover, the defendant employer's burden appeared to be
the weightier one of persuading the court of a "manifest
relationship" between the challenged practice and business
purposes. (Griggs, supra.) The plaintiff could then reshift the
burden back to the defendant by showing the availability of "lesser
discriminatory alternatives" responsive to employer needs. (E.g.,
EEOC v. Rath Packing Co., 787 F. 2d 318 (8th Cir. 1986); Contreras
v. Los Angeles, 656 F. 2d 1267 (9th Cir. 1981)).

The Court's most recent rulings, however, seem to blur traditional
distinctions between disparate treatment and adverse impact
approaches, possibly reducing the defendant's burden for proving
business necessity in the latter context. In Watson v. Fort Worth
Bank & Trust, 108 S. Ct. 2777 (1988), the Court resolved that
disparate impact analysis is applicable in challenges to subjective
or discretionary hiring and promotion standards. The Court
specifically stated that an employee complaining of subjective
decisions does not need to prove that the employer intended to
discriminate. Thus, this holding, in the important area of evidence
in employment discrimination cases, extended to subjective
decisions the same legal concept that the Supreme Court applied in
1971 in Griggs, supra, to objective employment decisions. Objective
employment decisions are those involving standardized tests for
hiring or promotion, or setting specific requirements for a job.
Subjective decisions, on the other hand, are those based on
interviews, recommendations, and past job evaluations. The Watson
decision was unanimous with respect to ruling that bias in
subjective employment decisions may be proven by statistical
evidence showing that the employer's practices have had a
discriminatory effect. However, the Court was split concerning the
follow-up question of what are the proper evidentiary standards,
i.e. what happens after an employee has proven statistically that
an employer's decisions had a disproportionate impact? The
plurality stated that the burden of proof always remains with the
plaintiff, and that after an employer presents evidence that the
employment decisions were based on necessary business judgments,
then the employee has to prove that nondiscriminatory alternatives
existed that would serve the company's business goals. Justices
Blackmun, Brennan and Marshall objected and contended instead that
once a case of discriminatory impact is made out, the employee wins
unless the employer can show that the actions taken were a
necessary business practice. Justice Stevens said that the Court
should not try to resolve the issue now, but instead should wait
for a future case.

The matter of how an employer may defend against a statistical
showing of disparate impact was resolved when the Court decided
Wards Cove Packing Co. v. Atonio, supra. With the ascendancy of
Justice Kennedy to the High Court, the plurality view in Watson
appears to have become the majority rule in Wards Cove. By a 5 to
4 vote, the Court held that while employers bear the burden of
producing evidence of a "legitimate business justification" for any
practice that has a racially disparate impact, the "burden of
persuasion" remains with the plaintiff who must ultimately disprove
any asserted employer justification. While Wards Cove involved
allegations of discrimination against minorities, the rationale
used by the Court and its articulation of the standards for burden
of proof also pertain in the gender discrimination context.

Justice White wrote for the majority in Wards Cove and examined two
important issues: causation and the business necessity defense. The
majority followed the Watson plurality by requiring employees
asserting disparate impact claims to prove "specific causation" as
part of their prima facie case. Statistical evidence of racial
imbalance, allegedly caused by the aggregate operation of multiple
employer practices, as in Wards Cove, would not satisfy the
plaintiffs' burden. Instead, the focus of the disparate impact
analysis is on "the impact of particular hiring practices on
employment opportunities for minorities." Therefore, Title VII
plaintiffs have to prove "that the disparity they complain of is
the result of one or more of the employment practices they are
attacking and "specifically show that each challenged practice has
a significantly disparate impact on employment opportunities for
whites and nonwhites." The dissenting justices in Wards Cove were
critical of what they perceived as an "apparent redefinition of the
employees' burden in a disparate impact case", and they would have
instead allowed Title VII plaintiffs to make out their prima facie
case based on proof of the cumulative effect of "numerous
questionable employment practices."

Wards Cove is also significant in terms of how the Court
articulated the employer's burden. It essentially recast the
business necessity doctrine in Griggs from an affirmative defense
for which the employer carries the burden of persuasion to a
"business justification" subject only to "reasoned review" and for
which the latter need meet a "burden of production." The result of
the Court's determination in Wards Cove is that the "ultimate
burden" remains "at all times" with the plaintiff employee. The
Court also melded the disparate treatment analysis, for which the
plaintiff must prove discriminatory intent, and the disparate
impact theory, traditionally thought not to require such proof.
Thus, for purposes of making out a case of race or sex
discrimination, it is now more difficult for a plaintiff to prove
that he or she was discriminated against under Title VII. In
instances where the facts illustrate discrimination resulting from
the effects of a particular policy which may be neutral on its
face, in the future it will be just as difficult for a plaintiff to
establish his or her case under Title VII as it is under the equal
protection clause of the Constitution. The disparate impact
analysis as articulated in Griggs has been discredited, and the
plaintiff now has to attack the employer's asserted business
justification by showing that it is a "pretext" for discrimination.

During its 1988-1989 Term the Court also decided a sex
discrimination case which involved a "mixed motive" situation and
the burden of proof under Title VII, Price Waterhouse v. Hopkins,
109 S. Ct. 1775. The plaintiff was a female senior manager being
considered for partnership by the accounting firm, Price
Waterhouse. Pursuant to the firm's established peer review system,
she was evaluated by the firm's partners. Some praised her for
"outstanding performance" and productivity while others criticized
her for her "aggressiveness", her "macho" and "abrasive" manner,
and a general lack of "interpersonal skills." After her candidacy
was held over for reconsideration and two partners withdrew their
support, she resigned and filed a Title VII charge for sex
discrimination. The Supreme Court's decision in Price Waterhouse
resolved a conflict among the federal circuit courts concerning the
appropriate standard of proof in "mixed motive" cases, i.e. where
an alleged intentional act of discrimination may be partially the
product of both lawful and unlawful employer motivation. The
decision was splintered with a plurality of four Justices led by
Justice Brennan articulating a rule of causation which states that
once the plaintiff establishes that impermissible factors play a
role or were "a" motivating factor, the employer then must prove by
a "preponderance of the evidence" that it would have made the same
decision absent that factor. Thus, the "burden of persuasion" rests
with the employer to show as an ''affirmative defense" the exact
causal roles played by both legitimate and illegitimate
considerations, i.e. establishing that the same employment decision
was dictated by only legitimate factors. The plurality indicated as
well that "in most cases" employers "should" rely on "some
objective evidence" instead of "the employer's own testimony" to
meet this burden; however, the plurality did reject the "clear and
convincing evidence" standard which had been applied by the court
of appeals. Justice White partially concurred with the plurality's
"same decision" rule, but he would allow employers broader
evidentiary latitude. Justice O'Connor rounded out the majority for
the same rule, but she disagreed with the plurality's causation
standard and allocation of the burden of proof in the "mixed
motive" cases. Unlike the plurality which required that the
plaintiff show that discrimination was "a" motivating factor,
Justice O'Connor would instead mandate that illicit motivation be
a "substantial" factor before requiring the employer to assume the
same decision burden. In addition, she would restrict the
plurality's burden-shifting rule to cases where there is actually
"direct evidence" of illegitimate motive that does not depend on
statistics or other indirect inference.

3. Analysis of Specific Cases Dealing With Equal Pay Under Title
VII

The doctrine of equal pay for work of comparable value has varied
meanings and the implementation of it in the workplace is subject
to much controversy. In 1981, the National Academy of Sciences
(NAS) issued a report prepared under contract to the Equal
Employment Opportunity Commission (EEOC) stating that:

     On the basis of the evidence, our judgment is that there is
     substantial discrimination in pay. Specific instances of
     discrimination are neither easily identified nor easily
     remedied, because the widespread concentration of women and
     minorities into low-paying jobs makes it difficult to
     distinguish discriminatory from nondiscriminatory components
     of compensation. One approach, which needs further development
     but shows some promise is to use existing job evaluation plans
     as a standard for comparing the relative worth of jobs....

     [W]e have not been able to make any assessment of what the
     social and economic consequences may be of implementing wage
     policies based on the principle of equal pay for jobs of equal
     worth. This is an extremely complex question, with no clear
     answers, which goes well beyond the charge to the
     committee...(11)

The Supreme Court in County of Washington v. Gunther, 452 U.S. 161
(1981), attempted to remedy some of the complexities in the equal
pay area. In a five to four decision the Court in Gunther held that
Title VII was not limited to claims of "equal pay for equal work,"
the standard required under the Equal Pay Act of 1963. Justice
Brennan wrote the opinion for the majority and indicated that women
who are paid less than men are entitled to sue their employer under
Title VII, regardless of whether the jobs performed by the two
sexes are identical.

The Gunther case involved a dispute in which the sheriff of the
county jail ordered four jail matrons to be laid off. The women
claimed that their jobs were being terminated because they had been
making equal pay demands. They charged that prior to being laid
off, the county had refused to pay them equal pay for work
substantially equal to that performed by higher paid male workers.
In addition, they contended that even if their work was not
comparable to that of their male co-workers, some element of the
wage disparity was attributable to discrimination on the basis of
sex alone. The latter allegation stemmed from a claim that because
of intentional discrimination, the county set the pay scale for the
female jail matrons, but not for the male guards, at a level lower
than that warranted by the county's own survey of outside job
markets and the worth of jobs. The jail matrons pointed to the fact
that as a result of that market survey, the county on its own
concluded that the women should be paid approximately 95% as much
as the male correctional officers; however, the county then went
ahead and paid them only 70% as much, while paying the male
officers the full evaluated worth of their jobs. It was precisely
this failure to meet the results of the market survey to pay women
the 95% that led them to charge the county with intentional sex
discrimination.

The precise issue before the Court was actually the narrow one of
whether section 703 (h) of Title VII of the 1964 Civil Rights Act,
42 U.S.C. 2000e-2 (h), restricted Title VII's prohibition of
sex-based wage discrimination to claims of "equal pay for equal
work," the standard required by the 1963 Equal Pay Act, 29 U.S.C.
206 (d).

In reaching the conclusion that section 703 (h) of Title VII did
not limit Title VII to that standard, the Court basically ruled
that Title VII was broader in its coverage than the Equal Pay Act.
The Court emphasized the narrowness of the question before it.
Justice Brennan, author of the Court's opinion, wrote:

     Respondents' claim is not based on the controversial concept
     of "comparable worth," under which plaintiffs might claim
     increased compensation on the basis of a comparison of the
     intrinsic worth or difficulty of their job with that of other
     jobs in the same organization or community. Rather,
     respondents seek to prove, by direct evidence, that their
     wages were depressed because of intentional sex
     discrimination, consisting of setting the wage scale for
     female guards, but not for male guards, at a lower level than
     its own survey of outside markets and the worth of the jobs
     warranted.

          Gunther, 452 U.S. at 166 (footnote citation omitted).

The Court emphasized that it was not considering the comparable
worth theory, which involves an analysis of the value of specific
jobs in terms of their worth to the employer. The county was
arguing that the jail matrons were asking the Court to deal with
that question, and if it should follow the approach of the court of
appeals, the "the pay structure of virtually every employer and the
entire economy [would be] ... at risk and subject to scrutiny by
the federal courts." Id. at 180. (Footnote citation omitted).

The Court did rule on the overlap of Title VII and the Equal Pay
Act. It examined the question of whether Title VII was broader than
the Equal Pay Act with respect to bringing sex discrimination
suits. The pertinent provision in Title VII is section 703 (h),
more commonly referred to as the Bennett Amendment, which
specifically provides:

     It shall not be an unlawful employment practice under this
     subchapter for an employer to differentiate upon the basis of
     sex in determining the amount of the wages or compensation
     paid or to be paid to employees of such employer if such
     differentiation is authorized by the provisions of section 206
     (d), of title 29.

                              42 U.S.C. 2000e-2 (h).

     The Equal Pay Act, provides in pertinent part,

     No employer having employees subject to any provisions of this
     section shall discriminate, within any establishment in which
     such employees are employed, between employees on the basis of
     sex by paying wages to employees in such establishment at a
     rate less than the rate at which he pays wages to employees of
     the opposite sex in such establishment for equal work on jobs
     the performance of which requires equal skill, effort, and
     responsibility, and which are performed under similar working
     conditions, except where such payment is made pursuant to (i)
     a seniority system; (ii) a merit system; (iii) a system which
     measures earnings by quantity or quality of production; or
     (iv) a differential based on any other factor other than sex.

                              29 U.S.C. 206 (d) (1).

The question before the Supreme Court was whether the word
"authorized" used in the Bennett Amendment in Title VII only
incorporated the Equal Pay Act's four defenses or whether in
addition it included the "equal work" requirement of that Act. The
majority held that the former was the case. Justice Brennan wrote
that limiting the Bennett Amendment to only those sex-based wage
discrimination claims that meet the Equal Pay Act's standard
of"equal pay for equal work" would mean "that a woman who is
discriminatorily underpaid could obtain no relief--no matter how
egregious the discrimination might be--unless her employer also
employed a man in an equal job in the same establishment, at a
higher rate of pay." Id. at 178.

The impact and general significance of the Court's decision in
Gunther are difficult to assess at this time. On its face, the
holding is a narrow one. Justice Brennan emphasized this fact in
the decision itself when he stressed that the ruling was not one
concerning the broader concept of "comparable worth." The dissent
also pointed to the narrowness of the holding. In fact,

Justice Rehnquist described the opinion in the following specific
terms:

     All we know is that Title VII provides a remedy when as here,
     plaintiffs seek to show by direct evidence that their employer
     _intentionally_ depressed their wages. And, for reasons that
     go largely unexplained, we also know that a Title VII remedy
     may not be available to plaintiffs who allege theories
     different than that alleged here, such as the so-called
     'comparable worth' theory. One has the sense that the decision
     today will be treated like a restricted railroad ticket, "good
     for this day and train only."

                    Id. at 183. (Emphasis in dissenting opinion.)

From Gunther, it is clear that the Court has endorsed claims of
sex-based wage discrimination without equal work; however, this
determination was made in a factual context of intentional
discrimination on the part of the employer. It remains to be seen
what courts will do where the reasons for women's lower wages are
not attributed to intentional discrimination. In other words, the
question after Gunther is not whether sex-based wage discrimination
is illegal, but what is required to prove such discrimination.(12)

4. Specific Cases in the Pension and Insurance Area of Title VII
Litigation

The U.S. Supreme Court in City of Los Angeles, Department of Water
and Power v. Manhart, 435 U.S. 702 (1978), invalidated a pension
plan administered by the department that required female employees
to make substantially larger contributions than similarly situated
male employees to obtain equivalent periodic benefits upon
retirement. The department's principal defense was that the unequal
contributions were based on a longevity factor, rather than sex.
Empirical data, reinforced by sex-segregated mortality tables,
suggested that female employees outlived department males by an
average of five years. Indeed, neither party in Manhart disputed
the actuarial premise that females as a class enjoy a greater life
expectancy than males. Nonetheless, the Court concluded that the
department had predicated its longevity determination solely on
sex, a practice prohibited by Title VII. In brief, the Court
reasoned that all individuals of a class do not share the
characteristics of the class as a whole and that Title VII
prohibits treatment of individuals as a mere component of a class.

The Manhart decision thus established that mandatory unequal
pension contributions distinguished by the sex of employees to an
employer sponsored or administered retirement program violated
Title VII. Left for future judicial resolution, however, were
several other issues related to the operation of sex distinctions
in employee benefit plans. First was the question whether the
Manhart principle applied to the more common pension industry
practice of requiring equal contributions from both sexes but
providing larger annuity benefits to retired male rather than
female employees. It was also unclear what the implications of
Manhart would be for pension plans administered by private insurers
rather than by the employers themselves. Finally, Manhart involved
a mandatory employee retirement program and did not address the
status of sex distinctions in a similar plan where participation by
the employees was voluntary.

After Manhart, it became clear that the test for Title VII
discrimination was whether the evidence showed treatment of a
person in a manner which "but for that person's sex would be
different." Id. at 711. The Court reaffirmed this approach in
Arizona Governing Committee v. Norris, 463 U.S. 1073 (1983),
striking down as violative of Title VII an Arizona deferred
compensation plan under which women received smaller annuity
payments than men because of the use of sex-based tables. The
Arizona case involved a voluntary plan funded entirely by
participating employees with no employer contribution. Employees
could defer compensation and elect to receive it in a lump sum, in
a fixed monthly amount over a specified period of time, or in the
form of a lifetime annuity, with monthly payments made by an
independent insurance company. The district court found that the
State of Arizona violated Title VII, despite the state's claims
that all the insurance companies available to provide the life
annuities used sex-based mortality tables. The Ninth Circuit
affirmed that ruling.

On appeal to the U.S. Supreme Court, the State of Arizona argued
that it was not liable because it did not administer the sex-based
actuarial tables at issue, but instead simply purchased contracts
from private insurance companies in order to provide its employees
with a life annuity option if they chose to exercise it.

The Court approached the question in basically two steps. It first
examined the issue of whether the state would have violated Title
VII if it had run the entire deferred compensation plan itself,
without the participation of any insurance companies. The Court
answered this question affirmatively, relying almost exclusively on
its earlier holding in Manhart. The Court in Norris stated:

     We have no hesitation in holding, as have all but one of the
     lower courts that have considered the question, that the
     classification of employees on the basis of sex is no more
     permissible at the pay-out stage of a retirement plan than at
     the pay-in-stage. We reject petitioners' contention that the
     Arizona plan does not discriminate on the basis of sex because
     a woman and man who defer the same amount of compensation will
     obtain upon retirement annuity policies having approximately
     the same present actuarial value. Arizona has simply offered
     its employees a choice among different levels of annuity
     benefits, any one of which, if offered alone, would be
     equivalent to the plan at issue in Manhart.... The fact that
     Arizona has offered a range of discriminatory benefit levels,
     rather than only one such level, obviously provides no basis
     whatsoever for distinguishing Manhart.

               Norris, 463 U.S. 1082-1083. (Footnote omitted).

In addition, the Court found it to be irrelevant that the plan in
Manhart was mandatory, whereas the one in Norris was voluntary. It
noted:

     ...Title VII forbids all discrimination concerning
     "compensation, terms, conditions or privileges of employment,"
     not just discrimination concerning those aspects of the
     employment relationship as to which the employee has no
     choice...An employer that offers one fringe benefit on a
     discriminatory basis cannot escape liability because he also
     offers other benefits on a nondiscriminatory basis....

                                   Id. at n.10.

In its rationale, the Court emphasized that Title VII required that
employers treat employees as individuals. It specifically rejected
the class concept. In so doing, Justice Marshall indicated that,
since racial classifications would be prohibited, so would
sex-based classifications:

     ...We continue to believe that "a statute that was designed to
     make race irrelevant in the employment market,"...could not
     reasonably be construed to permit such a racial
     classification. And if it would be unlawful to use race-based
     actuarial tables, it must also be unlawful to use sex-based
     tables, for under Title VII a distinction based on sex stands
     on the same footing as a distinction based on race unless it
     falls within one of few narrow exceptions that are plainly
     inapplicable here.

                                   Id. at 1084.

After concluding that the State of Arizona would have violated
Title VII if it had run the entire deferred compensation plan by
itself, the Court next turned to the second part of its analysis,
inquiring whether the state's conduct was beyond the reach of the
civil rights statute because the insurance companies chosen by it
to participate in the plan were the ones which actually calculated
and paid the retirement benefits. The Court wrote:

     It is no defense that all annuities immediately available in
     the open market may have been based on sex-segregated
     actuarial tables. In context it is reasonably clear that the
     stipulation on which petitioners rely means only that all the
     tables used by the companies taking part in the Arizona plan
     are based on sex, but our conclusion does not depend upon
     whether petitioner's construction of the stipulation is
     accurate or rejected. It is irrelevant whether any other
     insurers offered annuities on a sex-neutral basis, since the
     State did not simply set aside retirement contributions and
     let employees purchase annuities on the open market. On the
     contrary, the State provided the opportunity to obtain an
     annuity as part of its own deferred compensation plan. It
     invited insurance companies to submit bids outlining the terms
     on which they would supply retirement benefits and selected
     the companies that were permitted to participate in the plan.
     Once the State selected these companies, it entered into
     contracts with them governing the terms on which benefits were
     to be provided to employees. Employees enrolling in the plan
     could obtain retirement benefits only from one of those
     companies, and no employee could be contacted by a company
     except as permitted by the State....

                                   Id. at 1088-1089.

Thus, the Court felt there was no doubt that the State of Arizona
was legally liable for the discriminatory terms on which the
annuities were offered to its employees. The State of Arizona had
specifically selected the companies offering the various plans to
the workers. Therefore, the Court ruled that "the State cannot
disclaim responsibility for the discriminatory features of the
insurers' options." Id. at 1089. It did not matter that third
parties, i.e. the insurance companies, were involved in the
discrimination. The State of Arizona had itself entered into
contracts concerning the annuities to be offered by the companies,
and "it is well established that both parties to a discriminatory
contract are liable for any discriminatory provisions the contract
contains, regardless of which party initially suggested inclusion
of the discriminatory provisions." Id. at 16. The Court also
pointed out that if an employer cannot find a third party who can
provide a fringe benefit plan on a nondiscriminatory basis, the
employer must either supply the plan himself or not provide it at
all; to do otherwise would constitute a violation of Title VII as
occurred in the Norris case.

Manhart and Norris made it clear that Title VII prohibited
broad-based sex classifications and that the individual must be
considered when determining insurance rates in the
employer-sponsored pension and retirement context. Moreover,
employers could no longer disclaim responsibility for the
discrimination on the theory that the insurance companies were the
ones actually using the sex-based tables. Employers covered by
Title VII are required to provide nondiscriminatory plans for their
employees.

In its 1988 Term, the Court ruled 5 to 4 in Florida v. Long, 108
S.Ct. 2354 (1988), that employers are not required to pay the
differences between pension benefits that were given to men and
women before the 1983 decision in Manhart because the cost to
employers for such retroactive correction of benefits would be
prohibitive. The Court ruled that Norris, and not Manhart, sets the
proper date for beginning liability for employer-operated pension
plans that offered discriminatory payment options. The Court
reasoned that Manhart did not put the employer, which adopted an
optional unisex pension plan after that ruling, on notice that
maintenance of other plans offering sex-based benefits violated
Title VII. In Florida the Court also pointed out that retroactive
awards are not generally permissible in the pension context so pre-
Norris retirees were not entitled to either back compensatory
payments or to increased future payments.

5. Specific Cases Involving Title VII and Pregnancy

Congress in 1978 enacted the Pregnancy Discrimination Act (PDA) as
Section 701 (k) of Title VII, 42 U.S.C. 2000e (k). Section 701 (k)
provides:

     The terms 'because of sex' or 'on the basis of sex' include,
     but are not limited to, because of or on the basis of
     pregnancy, childbirth, or related medical conditions, and
     women affected by pregnancy, childbirth, or related medical
     conditions shall be treated the same for all
     employment-related purposes, including receipt of benefits
     under fringe benefit programs, as other persons not so
     affected but similar in their ability or inability to work,
     and nothing in section 703 (h) of this title shall be
     interpreted to permit otherwise....

Congress was prompted to enact this amendment after the Supreme
Court decisions in General Electric Co. v. Gilbert, 429 U.S. 135
(1976), and Nashville Gas Co. v. Satty, 434 U.S. 136 (1977). In
Gilbert, the Court effectively overruled the unanimous conclusion
of six courts of appeals by holding that the exclusion of pregnancy
related disability from an otherwise comprehensive, privately
funded, employee disability benefits plan did not constitute sex
discrimination prohibited by Title VII. A majority of the Justices
concluded in Gilbert that discrimination against pregnancy is "not
a gender-based discrimination at all." Gilbert, 429 U.S. at 136. It
was rather a distinction between pregnant women and non-pregnant
women. Id.

In Satty, the Court invalidated an employer's requirement that
women forfeit all seniority for competitive bidding purposes upon
return from maternity leave. The Court distinguished Gilbert by
reasoning that women were not simply denied a benefit but were
burdened in a manner "that men need not suffer." Satty, 434 U.S.
142. It was evident after Gilbert and Satty that the Court did not
include pregnancy classifications within the prohibition of sex
discrimination. This is true even though the result in Satty was
favorable to women. Thus, Congress passed the Pregnancy
Discrimination Act to clarify its intent to include pregnancy
within the definition of sex in Title VII.

During the 1982-83 term, the Court for the first time interpreted
the pregnancy discrimination prohibition of the 1978 Amendment to
Title VII. Newport News Shipbuilding & Dry Dock Co. v. Equal
Employment Opportunity Commission, 462 U.S. 669 (1983). In the
Newport News case, a male employee filed a complaint against the
company with the EEOC. The company had a $500 reimbursement limit
for hospital costs related to the pregnancy of an employee's wife,
while placing no such limits on hospital care for employees'
husbands. The company then filed a pre-emptive lawsuit for an
interpretation of the law, and it was successful in the federal
district court, which held that the 1978 Act protected only
pregnant workers themselves. The court of appeals reversed that
ruling and gave the statute a more expansive interpretation. The
Supreme Court basically upheld the appeals court decision. Writing
for the majority, Justice Stevens noted:

     Male as well as female employees are protected against
     discrimination. Thus, if a private employer were to provide
     complete health insurance coverage for the dependents of its
     female employees, and no coverage at all for the dependents of
     its male employees, it would violate Title VII...

     By making clear that an employer could not discriminate on the
     basis of an employee's pregnancy, Congress did not erase the
     original prohibition against discrimination on the basis of an
     employee's sex.

     In short, Congress' rejection of the premises of General
     Electric v. Gilbert forecloses any claim that an insurance
     program excluding pregnancy coverage for female beneficiaries
     and providing complete coverage to similarly situated male
     beneficiaries does not discriminate on the basis of sex.
     Petitioner's plan is the mirror image of the plan at issue in
     Gilbert. The pregnancy limitation in this case violates Title
     VII by discriminating against male employees.

                                   Id. at 682-683.

The significance of this ruling, however, may be in the implication
that the disproportionate impact analysis may not be relevant in
the pregnancy discrimination context with respect to women alone.
In the constitutional context, Geduldig v. Arello, supra, the Court
held that showing intent was critical to establishing one's case of
sex discrimination based on pregnancy. The Court indicated in its
Newport News opinion that the Title VII proscription applied to
both male and female employees who are discriminated against in
employment. Specifically, the Supreme Court held in Newport News
that company medical plans must cover the pregnancies of employees'
wives to the same extent that they cover all other dependents'
medical expenses. Failure to provide comparable coverage for
dependents' pregnancies constituted illegal sex discrimination
against male employees. Justice Stevens wrote the opinion for the
Court and stated that an employer who limits pregnancy coverage for
employees' wives "unlawfully gives married male employees a benefit
package for their dependents that is less inclusive than the
dependency coverage provided to married female employees." Id. at
685. Thus, the Court cleared up the confusion over what the
Pregnancy Discrimination Act of 1978 means with respect to
dependents' health coverage.

The Supreme Court's next interpretation of the Pregnancy
Discrimination Act (PDA) arose in the context of its review during
the 1987 Term of a California State statute which requires
employers to grant pregnant employees unpaid disability leave for
up to four months with a right to reinstatement to the same or
similar job at the end of that period. The California law is
similar to that of some eight other states which mandate minimum
leave and reinstatement rights for pregnant employees. The issue
presented by California Federal Savings and Loan Ass'n. v. Guerra,
479 U.S. 272 (1987), was whether the preferential treatment under
California law for female employees disabled by pregnancy,
childbirth, or related medical conditions was inconsistent with,
and therefore preempted by the PDA. By a vote of 6 to 3, the
Supreme Court voted to uphold the California statute. Justice
Marshall, writing for himself and four other Justices, noted first
that Congress had by express provision severely limited the
preemptive effect of Title VII to those state laws that "actually
conflict" with federal law. To determine whether such conflict
existed here, the Court examined both the legislative history and
the historical context of the PDA.

Justice Marshall found the former "devoid of any discussion of
preferential treatment of pregnancy, beyond acknowledgment of the
existence of state statutes providing for such preferential
treatment." This was significant, in the majority's view, because,
while aware of state laws similar to California's, including
statutes in Connecticut and Montana, Congress "failed to evince the
requisite 'clear and manifest purpose' to supersede them."
Moreover, the historical context demonstrated that the PDA and
California law "share a common goal" of "remov[ing] barriers" to
full female participation in the workforce, an objective fostered
by the preferential treatment of pregnancy. Finally, the state law
was not invalid under Title VII because it "does not compel
California employers to treat pregnant workers better than other
disabled employees," Justice Marshall said. "[It] merely
establishes benefits that employers must, at a minimum, provide to
pregnant workers. Employers are free to give comparable benefits to
other disabled employees...."

Justices Brennan, Blackmun, O'Connor, and Stevens joined wholly or
partially in Justice Marshall's opinion of the Court and his
conclusion that Congress severely limited the preemptive effect of
the federal law by leaving state fair employment laws where they
were before Title VII was enacted. In a separate concurring
statement, Justice Stevens added that he could not read the PDA to
mandate absolute neutrality with respect to pregnancy. Justice
Scalia also concurred in the judgment, concluding that the
California law does not purport to require or permit any act that
would be an unlawful employment practice under the PDA.

Justice Marshall's opinion for the Court stressed the limited
character of the benefits conferred by the California law as
militating against a finding of invalidity. "The statute is
narrowly drawn to cover only the period of actual physical
disability on account of pregnancy, childbirth, or related medical
conditions. Accordingly, unlike the protective labor legislation
prevalent earlier in this century, it does not reflect archaic or
stereotypical notions about pregnancy and the abilities of pregnant
workers." Also relevant, perhaps, was the fact the state law
provided only for unpaid leave, so that employers do not bear the
far heavier burden of compensating female workers for the period of
time they are disabled by pregnancy, childbirth, or related medical
conditions. Note that the Court in Guerra did not read the PDA to
impose a mandatory maternity leave requirement on employers, or
otherwise to afford special or preferential treatment for pregnant
workers. Rather, it held that Congress had in effect deferred to
state authority to make policy in this area, subject only to the
PDA ban on discriminatory treatment.

Similarly, in Wimberly v. Labor and Industrial Relations
Commission, 479 U.S. 511(1987), the Court was unwilling to read a
preferential treatment mandate into a 1976 amendment to the Federal
Unemployment Tax Act (FUTA), which prohibits state unemployment
compensation laws that discriminate "solely on the basis of
pregnancy or termination of pregnancy." 26 U.S.C. 3304 (a) (12).
Involved there was a Missouri law under which all persons who leave
work for reasons not causally connected to the work or the employer
are disqualified from receiving benefits. A former cashier at a
J.C. Penney store was denied unemployment compensation after the
company refused to reinstate her upon return from pregnancy leave.
In her suit, she claimed that the denial of benefits to her was
illegal because it was based solely on pregnancy. The state
countered, however, that she was treated the same as all other
persons who voluntarily leave their jobs without "good cause
attributable to the work or the employer," and that she was
entitled to no special treatment under the FUTA amendment.

By an 8 to O vote, the U.S. Supreme Court agreed that the Missouri
practice does not discriminate on the basis of pregnancy. Justice
O'Connor, writing for the Court, reasoned that, if anyone leaves
his or her job for a medical reason, and the job becomes
unavailable, then he or she is ineligible for benefits. Congress
only intended to ensure equality of treatment for female workers
unemployed because of pregnancy and did not intend to prevent the
states from applying "neutral" eligibility criteria which may
result in denial of benefits to pregnant women as well as other
applicants. "[T]he state cannot single out pregnancy for
disadvantageous treatment, but it is not compelled to afford
preferential treatment," Justice O'Connor wrote for the Court. In
reviewing the legislative history, the Court found no evidence that
Congress intended to disqualify Missouri and other states with
similar practices, but that the FUTA amendment was meant to outlaw
provisions, like that in Utah, disqualifying a woman for twelve
weeks prior to the expected date of childbirth, and for six weeks
thereafter. In short, the Justices accepted the position of the
state and the Reagan Administration that the amendment permits
neutral rules, even if their impact excludes pregnant women. All
members of the Court joined in the opinion, except Justice
Blackmun, who took no part in the decision of the case.

In summary, Title VII has provided both men and women with an
important avenue for challenging sex discrimination in employment.
With the emergence of more and more women in the workforce,
problems stemming from the differences between men and women were
inevitable, but these problems have in most cases been effectively
resolved by the Court's interpreting Title VII. However, since
Title VII, i.e. the PDA, only guarantees benefits to pregnant
workers if similar benefits are already made available by the
employer to other workers, there still remain gaps in protection of
pregnancy and maternity under the law. For example, women who go
out on maternity leave, like employees who take sick leave, are not
necessarily guaranteed job protection and reinstatement when they
return to work. This situation has led to the recent debate over
whether pregnancy should be accorded special treatment under the
law because equal treatment arguably affords insufficient
protection of pregnant workers' rights.(13) The U.S. Supreme Court
addressed this problem in the Guerra case, supra, and upheld the
California statute, finding no conflict with the federal law, the
PDA, which requires only equal treatment.

B. Other Title VII Cases

1. Affirmative Action

In Johnson v. Santa Clara County Transportation Agency, 480 U.S.
616 (1987), the Supreme Court held that a county did not violate
Title VII when it considered sex among other factors in promoting
a woman under a voluntary affirmative action plan. Although the
plan was designed to increase the number of women and minorities in
jobs where they had traditionally been underrepresented, rather
than to remedy past discriminatory practices, the Court upheld the
plan as a remedy for "manifest imbalance" in a "traditionally
segregated job category."

In 1978, the county agency had adopted a voluntary affirmative
action plan that permitted consideration of the sex of a candidate
for promotion within traditionally segregated job categories. Women
were significantly underrepresented in the county's labor force as
a whole and in five of seven job categories, including skilled
crafts, where all 238 employees were men. The plan's long range
goal was proportional representation, but because of the small
number of positions and low turnover, actual implementation was
based on short term goals which were adjusted annually and took
account of qualified minority and female availability. No specific
numerical goals or quotas were used. The male respondent had been
one of seven candidates for promotion to road dispatcher who had
been passed over in favor of a female county employee with a
marginally lower overall qualification rating. The agency head
testified that he had based his final selection on the "whole
picture," including affirmative action concerns.

In his majority opinion, Justice Brennan decided that Title VII was
not coextensive with the Constitution, which means that they are
not to be interpreted as having the same effect. Therefore, United
Steelworkers v. Weber, 443 U.S. 193 (1979), was controlling. The
Court in Weber upheld a voluntary affirmative action plan by a
private employer which included a minority quota for a craft
training program to remedy "manifest racial imbalance in
traditionally segregated jog categories." In Johnson, the Court
guided by its earlier decision and rationale in Weber, adopted a
"manifest imbalance" standard that was different from the Title VII
standard for proof of a "prima facie" case of discrimination. To
require the employer to compile evidence that could lead to a
reverse discrimination lawsuit would only be a disincentive to
voluntary compliance favored by the statute. Accordingly, to
justify voluntary affirmative action, the employer may rely on
statistics that demonstrate a "disparity" between its minority and
female workforce participation when compared to the general county
labor force. To rectify the obvious pattern of female
underrepresentation presented by this case, Justice Brennan
emphasized, the county had established both long and short range
goals that took account of the "practicalities," including the
availability of jobs and qualified female candidates, rather than
having adhered to "blind hiring by the numbers." Therefore, Justice
Brennan concluded that because sex was "but one of numerous
factors" in the promotion equation, and no qualified candidates
were excluded nor unqualified advanced, there was no Title VII
violation.

Justice Stevens concurred that the plan was consistent with Weber,
and Justice O'Connor, in a separate concurrence, provided a sixth
vote for the judgment. In her opinion, however, to support a
voluntary affirmative action plan, there should be "a statistical
disparity sufficient to support a prima facie claim under Title VII
by the employee beneficiaries of the affirmative action plan of a
pattern or practice claim of discrimination." Equal Protection
standards, not Title VII, should govern public employer cases, she
said, and she chided the majority approach for giving too little
guidance as to the requisite statistical imbalance standard. But
because there were no women in skilled craft positions, and sex was
only a "plus" factor, either standard was satisfied here.

2. Sexual Harassment

While the problem of sexual harassment of working women has always
existed, it has only been within the past decade that it has been
given greater attention, and that lawsuits have been filed against
employers. As more and more women enter the workplace, the matter
of sexual harassment will likely receive even more attention.

Since 1976, when a federal court first recognized sexual harassment
as a cause of action under Title VII,(14) lower courts permitted
plaintiffs two distinctly different avenues within which to make
their legal challenges. The first approach required the plaintiff
to show that her supervisor conditioned the granting or denial of
economic benefits on the receipt of sexual favors.(15)

Under the second approach, the plaintiff had to prove she was
compelled to suffer "sexually stereotyped insults and demeaning
propositions" in an environment dominated by hostile sexual
innuendo and behavior.(16) This latter approach has been referred
to as the "hostile environment" approach.

In 1986, the U.S. Supreme Court held in Meritor Savings Bank, FSB
v. Vinson, 477 U.S. 57, that both of the aforementioned forms of
sexual harassment violated Title VII. With respect to two related
issues, however, the Court weakened its seemingly broad
interpretation of sexual harassment. It ruled that employers in a
hostile environment are not strictly liable for the harassment
caused by their supervisors. The Court also held that evidence
concerning the plaintiff's speech and dress was relevant to
ascertaining whether the alleged sexual advances were unwelcome.

Justice Rehnquist wrote the opinion for the Court. The Court
rejected the bank's argument that sexual harassment cases should
focus on the "tangible, economic barriers erected by
discrimination." Id. at 64. Justice Rehnquist stated:

     First, the language of Title VII is not limited to "economic"
     or "tangible" discrimination. The phrase "terms, conditions,
     or privileges of employment" evinces a congressional intent
     "'to strike at the entire spectrum of disparate treatment of
     men and women'" in employment.

                                   Id .

In addition, the Court pointed to EEOC's guidelines specifying that
"sexual harassment" is a form of sex discrimination prohibited by
Title VII. Justice Rehnquist noted further that "The EEOC
guidelines fully support the view that harassment leading to
noneconomic injury can violate Title VII." Id. at 65. The Court
found that the EEOC's guidelines were well supported by and
consistent with existing caselaw.

The Court next discussed the elements of what constituted a valid
claim of sexual harassment. Justice Rehnquist explained that, "The
gravamen of any sexual harassment claim is that the alleged sexual
advances were 'unwelcome'." Id. at 68. The correct inquiry thus was
whether the alleged sexual advances were "unwelcome," not that the
woman's "actual participation in sexual intercourse was voluntary."
Id. However, Justice Rehnquist did say that a "complainant's
sexually provocative speech or dress" is relevant to determining
"whether he or she found particular sexual advances unwelcome." Id.
at 69. Thus, the Court held there was no per se rule against the
admissibility into evidence of such factors.

Another defense accepted by the Court as being valid for an
employer to rely on was that employers are not always automatically
liable for sexual harassment by their supervisors. Thus, employers
do not have to abide by a standard of strict liability, i.e.
liability without notice. Justice Rehnquist specifically wrote:

     This debate over the appropriate standard for employer
     liability has a rather abstract quality about it...

     We...decline...to issue a definitive rule on employer
     liability, but we do agree with the EEOC that Congress wanted
     courts to look to agency principles for guidance in this area.
     While such common-law principles may not be transferable in
     all their particulars to Title VII, Congress' decision to
     define "employer" to include any "agent" of an
     employer...surely evinces an intent to place some limits on
     the acts of employees for which employers under Title VII are
     to be held responsible.

                                   Id. at 72.

In sum, Meritor was the Supreme Court's first and thus far only
ruling on sexual harassment. It is significant because the Court
did hold that a claim of "hostile environment" sex discrimination
could be brought under Title VII.(17) The impact of the ruling is
difficult to assess at this time because the Court also held that
(1) Title VII did not require strict liability on the part of the
employer and (2) that employers could refer to the female workers'
dress, speech and the like as a defense to the sexual harassment
charges. These two aspects of the Court's Meritor decision tend to
weaken its initial condemnation of sexual harassment under Title
VII.

C. Title IX of the Education Amendments of 1972

Title IX of the Education Amendments of 1972 provides in pertinent
part: "No person in the United States shall on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity
receiving Federal financial assistance." 20 U.S.C. 1681 (a). It was
patterned after Title VI of the Civil Rights Act of 1964 (which
prohibits discrimination on the basis of race, color or national
origin in federally assisted programs or activities), 42 U.S.C.
2000d et seq., except that Title IX does not have a provision
similar to section 604 of Title VI, which excludes employment from
the coverage of the statute. 42 U.S.C. 2000d-3.

Several issues are relevant to an analysis of Title IX and gender
discrimination, such as exactly what constitutes federal assistance
and whether Title IX covers programs or institutions. The Court has
also had to consider whether Title IX covers employment and certain
questions which have arisen over the enforcement of this statute.
An examination of pertinent Supreme Court cases in this area will
illustrate how the Court has interpreted Title IX with regard to
these particular issues.

One question that has arisen concerning the enforcement of Title IX
is whether there exists an implied private right of action for
vindicating violations of the statute, i.e. whether an individual
may sue the institution on his or her own in order to obtain relief
for being discriminated against on the basis of sex. The U.S.
Supreme Court addressed this matter in Cannon v. University of
Chicago, 441 U.S. 667 (1979). In Cannon, the Court held that a
private right of action could be implied under Title IX. In writing
for the six to three majority, Justice Stevens emphasized that the
Title IX administrative remedy, the termination of federal
assistance, was actually too severe to help the individual person
claiming to be a victim of sex discrimination. Therefore, in order
that the victim be given adequate relief, it only made sense to
award individual relief to a private litigant who had prosecuted
his or her own suit.

A matter left open by Cannon is whether Title B also implies a
private damages remedy. This question was answered in the negative
by the U.S. Court of Appeals for the Seventh Circuit in Lieberman
v. University of Chicago, 660 F. 2d 1185 (7th Cir. 1981). The
Seventh Circuit decided that if Congress intended a damages remedy
under Title IX it should have stated so explicitly in the statute
itself. Since Title IX was part of a bill designed to alleviate the
financial squeeze on institutions of higher education, the court
said it must be deemed to be an exercise of the Congress' spending
power. Spending power legislation is in the nature of a contract,
and therefore, in return for federal funds, the states agree to
comply with federally imposed conditions. The Supreme Court in
Pennhurst State School and Hospital v. Halderman, 451 U.S. 1(1981),
held that, in order to ensure a "meeting of the minds," the
conditions to be imposed by Congress must be stated in unambiguous
terms. The implication of a damages remedy would impose a
potentially massive financial liability upon the very institutions
whose "acute financial distress" triggered the 1972 Education
Amendments. Therefore, the Seventh Circuit concluded that it must
assume that if Congress had intended to create a remedy for
damages, it would have done so expressly.

The Supreme Court ruled in North Haven Board of Education v. Bell,
456 U.S. 512 (1982), that Title IX applies to employees as well as
to students. This holding resolved the uncertainty that had existed
for the prior several years concerning the scope of the statute's
coverage.

In the North Haven case, the school received federal funds for its
education programs and activities and was thus subject to Title
IX's prohibition against gender-based discrimination. A tenured
teacher in that school system filed a complaint that the school
system had violated Title IX by refusing to rehire her after she
had been out on a one-year maternity leave. HEW began to
investigate the matter and tried to obtain information concerning
the school board's employment practices. The board refused to
cooperate on the ground that the agency lacked authority to
regulate employment practices under this statute. When HEW
announced that it was considering administrative enforcement
proceedings, i.e. cutting off the federal assistance, the school
board filed suit in U.S. district court in Connecticut. The
district court invalidated the employment regulations, the Second
Circuit reversed, and the Supreme Court affirmed the reversal.

Justice Blackmun wrote the opinion for the Court in North Haven.
The Court first examined the language of the statute. It found that
Title IX's "broad directive that 'no person' may be discriminated
against on the basis of gender appears, on its face, to include
employees as well as students." Id. at 520. The opinion continued:

     Because [sec.] 901 (a) neither expressly nor impliedly
     excludes employees from its reach, we should interpret the
     provision as covering and protecting these 'persons' unless
     other considerations counsel to the contrary. After all,
     Congress easily could have substituted 'student' or
     'beneficiary' for the word 'person' if it had wished to
     restrict the scope of [sec.] 901 (a).

                              Id. at 521.

Even though the statutory language appeared to favor the inclusion
of employees in its coverage, the Court found it necessary to
examine the legislative history in search of evidence whether
Congress in any way meant to limit the seeming expansive language
of the statute. It found no such evidence. In fact, the Court
pointed to the various attempts in the early 1970's to pass
legislation that explicitly banned discrimination against women in
education, noting: "Although unsuccessful, these efforts included
prohibitions against discriminatory employment practices." Id. at
523.

While the Supreme Court in North Haven agreed with the Second
Circuit's conclusion that Title IX proscribed employment
discrimination in federally funded education programs, it found
that the court of appeals had not paid enough attention to the
"program-specific" nature of the statute. Id. at 536. The Court
stressed that the agency's authority was very limited in the sense
that the funding termination provision and the power to promulgate
regulations thereunder were program-specific. The opinion pointed
out that the legislative history of Title IX supported this
interpretation. Thus, the Court concluded that "an agency's
authority under Title IX both to promulgate regulations and to
terminate funds is subject to the program-specific limitation of
Section 901 and 902." Id. at 538. In North Haven, the Court found
that the regulation was consistent with the Act's program-
specificity requirement.

The Supreme Court's decision in North Haven also did not resolve
the question of what constituted a "program" under Title B. In
fact, it specifically left the matter open for determination in a
future case. Id. at 540. The decision is significant, however, in
the sense that it clarified that Title IX provides a remedy for
employment discrimination based upon sex. It also became clear that
suing under Title IX is easier than suing under Title VII of the
1964 Civil Rights Act. The latter requires investigatory and
administrative processing by the Equal Employment Opportunity
Commission (EEOC) in each individual case; whereas, under Title IX,
the process is faster and the enforcement mechanism potentially
more effective, i.e. the institution can have its federal funding
terminated.

During the 1983-84 term, the U.S. Supreme Court held that (1) a
private college which receives no direct federal financial
assistance, but some of whose students receive federal financial
aid in the form of Basic Educational Opportunity Grants (BEOGs), is
subject to Title IX of the Education Amendments of 1972 which
prohibits sex discrimination in "any education program or activity
receiving federal financial assistance," 20 U.S.C. 1681; (2) the
students' receipt of the BEOGs, either directly from the government
or through the college that receives the grant from the government
for that purpose, subjects only the college's financial aid program
to Title IX regulation, not the entire institution; (3) the federal
government may end the federal aid to the students if the college
refuses to sign the proper assurance of compliance form stating
that it will conduct the financial aid program in accordance with
Title IX and its regulations, even though there has been no proof
of actual discrimination; and (4) the college had to comply with
Title IX's prohibition against discrimination as a condition for
its continued eligibility to participate in the BEOG and that such
requirements did not constitute an infringement of first amendment
rights. Grove City College v. Bell, 465 U.S. 555 (1984).

In Grove City, the Court had been confronted with two issues
concerning Title IX coverage and the enforcement provision in 20
U.S.C. 1682. The first coverage-related issue was whether the
receipt of federal financial assistance by students was sufficient
to subject the college or university attended to Title IX. The
Court answered this affirmatively and next addressed the second
issue pertaining to coverage and enforcement--whether the entire
institution would thus be made subject to Title IX or only a more
narrowly defined part of the institution, such as its financial aid
program. The Court chose the latter and held that the cutoff of
federal financial assistance would be program-specific and not
institution-wide. Thus, the Supreme Court applied a very narrow
reading of Title IX to the Grove City College situation. It decided
in this case that this law did not bar sex discrimination by the
college as a whole; instead, this law affected only the department
that received the federal aid, the financial aid office. In short,
Title IX's compliance requirement reached only the specific program
or activity receiving the federal funds and allegedly
discriminating. The Court set forth this part of its holding in
Part m of its decision. Justice White, writing for the majority,
remarked: 

     .. Although the legislative history contains isolated
     suggestions that entire institutions are subject to the
     nondiscrimination provision whenever one of their programs
     receive federal assistance, see 1975 Hearings 178 (Sen. Bayh),
     we cannot accept the Court of Appeals' conclusion that in the
     circumstances present here Grove City itself is a "program or
     activity" that may be regulated in its entirety.

                              465 U.S. 555 at 570-571.

The Court also rejected the Third Circuit's assumption that Title
IX applied to programs that received a larger share of the
college's own resources because the federal money was earmarked for
use elsewhere within the school. It rejected this theory because it
was "inconsistent with the program-specific nature" of Title IX.
Justice White wrote:

     ...Most federal educational assistance has economic ripple
     effects throughout the aided institution, and it would be
     difficult, if not impossible, to determine which programs or
     activities derive such indirect benefits. Under the Court of
     Appeals' theory, an entire school would be subject to Title IX
     merely because one of its students received a small BEOG or
     because one of its departments received an earmarked federal
     grant. This result cannot be squared with Congress' intent.

                                   Id. at 572-573.

The Court noted further that it found "no persuasive evidence"
revealing that Congress intended the enforcing agency's regulatory
authority to "follow federally aided students from classroom to
classroom, building to building, or activity to activity." Id. at
573. The Court concluded that, "In purpose and effect, BEOGs
represent federal financial assistance to the College's own
financial aid program, and it is that program that may properly be
regulated under Title IX." Id. at 573-574 (emphasis added).

By narrowly construing "program or activity" as used in Title IX,
the Grove City Court rejected the institution-wide approach where
categorical or earmarked federal assistance is involved. Unresolved
by that case, however, was the status of institution-wide civil
rights coverage where general unrestricted federal financial
assistance to a grant recipient, as under revenue-sharing for
example, is involved. Nor did Grove City provide much practical
guidance as to how the "purpose and effect" standard should be
applied to determine which programs and activities are receiving
federal financial assistance and are thus subject to regulation
under Title IX and the other program-specific civil rights
statutes.(18)

D. Cases Decided Under Miscellaneous Statutes

In June 1981, the Supreme Court ruled that, under present federal
law, the former spouse of a military service member or retiree is
not entitled to any share of that member or retiree's military
pension as part of a divorce property settlement in a community
property state. McCarty v. McCarty, 453 U.S. 210 (1981). The
McCarty Court recognized "that the plight of an ex-spouse of a
retired service member is often a serious one," McCarty, 453 U.S.
at 235, and invited Congress to legislatively change the situation
if it so decided. Congress has now done so, with the adoption of
the "Uniformed Services Former Spouses' Protection Act," Title 10
of P.L. 97-252, the Department of Defense Authorization Act. 10
U.S.C. 1401 et seq.(19)

Under this Act, state courts are authorized to divide military
pensions in accordance with state law; and those former spouses who
were married over ten years of covered military service can have
the decree directly enforced by the military. Certain former
spouses who were married over twenty years of creditable service
will retain certain medical, commissary, and post exchange
benefits. Former spouses can also receive survivor annuities under
certain circumstances. Although this Act is related to sex
discrimination, it is very narrow in scope and only applicable in
the situation of a military spouse seeking part of the other
spouse's military pension in a divorce settlement. Thus its
contribution to the evolution of gender discrimination analysis is
limited.

In 1984 the Supreme Court decided Heckler v. Mathews, 465 U.S. 728,
and Equal Employment Opportunity Commission v. Shell Oil Co., 466
U.S. 54. These two cases are significant because of their holdings
with regard to the procedural aspects of bringing a gender
discrimination suit rather than for their substantive contribution.

In Heckler, the Supreme Court held that the gender-based
classification of the Social Security Act's pension offset
exception is constitutional. Justice Brennan, delivering the
opinion for a unanimous court, addressed the standing question to
some extent.(20) Justice Brennan's discussion seemed to be
significant because it appeared to expand an earlier Supreme Court
holding which established very stringent standing requirements.
Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26
(1976). However, the Heckler ruling may not be as significant as
originally contemplated because of the more recent decision, Allen
v. Wright, 468 U.S. 737 (1984). In Wright, the Court reiterated its
narrow view of standing. In this case, parents of black children
attending public school claimed their children were discriminated
against by being excluded from private schools. These parents did
not assert that their children suffered direct harm but rather that
they were harmed by the fact that federal financial aid was
extended to private schools that were discriminatory, and that
federal tax exemptions to such schools in their communities
impaired their ability to have public schools desegregated. The
Court found that these parents did not have standing to sue to
force the Internal Revenue Service to adopt a more stringent
procedure. Thus the importance of Justice Brennan's hint in Heckler
of a more expansive view of standing is diminished in light of the
Court's more recent ruling in Wright.

Shell also involved a procedural requirement that was a
prerequisite to Title VII litigation. This case involved a charge
made by the EEOC that Shell, the employer, had

     violated and continues to violate Sections 703 and 707 of the
     Civil Rights Act of 1964, as amended by discriminating against
     Blacks and females on the basis of race and sex with respect
     to recruitment, hiring, selection, job assignment training,
     testing, promotion, and terms and conditions of employment.

                              466 U.S. 54 at 57.

Subsequently, the charge was amended to allege that Shell "had
engaged in the identified unlawful employment practices on a
continuing basis from at least July 2, 1965, until the present."
Id. at 59. However, Shell contended that the EEOC's charge was not
enforceable and refused to relinquish records requested by the
EEOC, even after the Commission subpoenaed them. The Supreme Court
ruled that the charge was sufficient despite Shell's contention
that the charge did not meet the requirements of 706 (b) of Title
VII because it was "not supportable by the facts." Id. at 57.

Justice Marshall, writing the opinion for the Court, formulated
guidelines for cases involving patterns of discrimination, such as
this one, to ensure that the requirements of Title VII are
satisfactorily met. He stated in part:

     Insofar as he is able, the Commissioner should identify the
     groups of persons that he has reason to believe have been
     discriminated against, the categories of employment positions
     from which they have been excluded, the methods by which the
     discrimination may have been effected and the periods of time
     in which he suspects the discrimination to have been
     practiced.

                                   Id. at 73.

The Court also emphasized that the purpose behind the regulations
issued under 706 (b), which governs the form and content of a
charge of discrimination, is to afford the employer "fair notice of
the existence and nature of allegations against them," and not to
inhibit the EEOC's investigatory powers. Id. at 77. With these
considerations noted, the Court found that the charge in Shell met
all the necessary requirements of Title VII, thus requiring Shell
to provide the subpoenaed information.

Shell illustrates the Court's willingness to allow suits against
employers when the evidence of discrimination is not an isolated
incident but rather a pattern or practice that has occurred over
time. Thus the Court has chosen to leave another avenue open for
gender discrimination claims.