This file was prepared for electronic distribution by the inforM staff. Questions or comments should be directed to inform-editor@umail.umd.edu. CONCLUSION During the eighteen year period between 1971 and the present, progress has been made toward achieving clarity and consistency in the area of sex discrimination law. Under the equal protection clause, the Court has done much to eliminate the division that pervaded the Court before Craig v. Boren, between those who thought sex was a suspect class, similar to race, and those who believed it should be accorded a lesser standard of review. Thus, Craig was a landmark decision for the Court in the area of equal protection and gender discrimination, as it clarified the Court's position that sex classifications would be subject to an intermediate level of scrutiny. However, it is arguable that some uncertainty may still exist on the Court, as Justice O'Connor suggested in Hogan six years after the Craig decision that the Court may yet declare sex a suspect classification. At this writing, there has been no indication that the Court will do so, thus leaving the intermediate standard of Craig intact. After Craig, the Court attempted to clarify the analysis necessary under the intermediate substantial relationship test. Early cases involving gender discrimination and the Social Security Act are relevant to the two concepts of upholding ameliorative legislation, and rejecting legislation based on outmoded stereotypes. Webster and Goldfarb, two Social Security decisions, are significant because of the way the Court viewed the disparate treatment in each case. In Webster, the Court held that where there is disparate treatment of the sexes as a result of legislation directly addressing discrimination (which also serves to remedy it) such a provision is constitutional at least as an interim measure. In Goldfarb, because the disparate treatment of the sexes was regarded by the Court to be the by-product of traditional stereotypes and was not specifically aimed at redressing past injustices, the Court regarded such unequal treatment based on sex to be unconstitutional. After Webster and Goldfarb, it was clear that the Court was reluctant to uphold any gender classification unless its purpose was ameliorative. Orr v. Orr reinforced the Court's position stated in Webster. The holding in Orr prohibited discrimination based on traditional stereotypes in the context of alimony obligations upon divorce. Because the Court in Orr would not allow alimony obligations to be imposed on husbands and not wives, it demonstrated that the intermediate standard of review was the same regardless of whether women or men were disadvantaged by the classification. Also in the family law context, the Court decided Caban and Parham, illustrating the difficulty the Court has faced in arriving at predictable results when applying the intermediate standard of review. Statutory differentiation between unwed mothers and fathers received different treatment through the Court's perception of the justifications and presumptions underlying each. The Court settled one aspect of gender discrimination law during 1979. In Feeney, it refused to strike down a facially neutral law which had a discriminatory effect on women because discriminatory motive or intent was not shown. The Court held that discriminatory motive or intent must be shown in sex discrimination cases, as it must in other areas under the equal protection clause, in order to establish a prima facie case. Up until 1980, the Court had at times implied that benign classifications (i.e. classifications benefiting women) would be subject to lesser scrutiny than other classifications. However, in Wengler the Court took a firm position that the substantial relationship test should be used in all gender discrimination cases without regard to whom the classification benefits. Thus, after Wengler the Court had reached a certain level of stability in the gender discrimination area under the equal protection clause. The decisions during the next term seemed to retreat from the firm position taken in Wengler. The Court used language during the 1980 Term that did not have the strength and force of that used in the Wengler case. In Michael M. and Rostker, it ruled that the males and females involved were not similarly situated, thus it did not invalidate the statutory classifications in either instance. The Court in 1982 decided Hogan, the last gender discrimination decision based on equal protection grounds at the time of this writing. In Hogan, the Court was concerned with the use of a benign or remedial purpose as a pretext, while actually reinforcing traditional stereotypes. In an attempt to remedy this problem, the Court held that a remedial purpose is only valid if persons of the gender benefitted by this action were actually disadvantaged by the classification in the past. Hogan illustrates the Court's constant awareness of the different ways in which traditional stereotypes were still perpetuated. The gender discrimination cases decided under Title VII of the Civil Rights Act of 1964 underwent a different analysis from that used under the equal protection clause. The Court in Griggs decided for the first time that adverse impact was enough to make out a prima facie case under Title VII. In Dothard, it indicated that the ruling in Griggs pertained to gender as well as race. In Watson the Court concluded that a disparate impact analysis was sufficient to establish one's case of discrimination when the employer used subjective standards. Watson was thus an extension of Griggs which applied in situations where the employer based his decision on objective standards. However, in its 1988-89 Term in Wards Cove the Court discredited the Griggs decision and rationale respecting the disproportionate impact analysis. Therefore, now there may be few if any operational advantages for Title VII plaintiffs under the disparate impact approach. As discussed earlier, Wards Cove may have effected a de facto merger of disparate treatment (intentional discrimination) and disparate impact (effects discrimination) so that now some showing of discriminatory intent may be required in all Title VII cases. Significant decisions under Title VII have been rendered with respect to equal pay, pensions and pregnancy. In the equal pay area Gunther made it clear that valid claims of sex-based wage discrimination could be made despite the fact that males and females involved had different jobs if there was evidence of intentional discrimination. However, the Supreme Court has yet to address the question whether a cause of action could be stated when one sex's lower wages were not attributable to intentional discrimination. In the contexts of pension and insurance, the Court examined a situation in which women had to contribute more than similarly situated males to obtain the same benefits upon retirement (Manhart) and another situation in which women received smaller annuity payments than men in a deferred compensation plan (Norris). The Manhart decision established that mandatory unequal pension contributions by employees to an employer sponsored or administered retirement program violated Title VII. In Norris, the Court required employers to treat employees as individuals, specifically rejecting generalizations based on group experiences. Moreover, employers could not escape liability for discrimination on the theory that the insurance companies were the actual users of the sex-based tables. The Court also found it irrelevant whether a plan was voluntary or mandatory. The thrust of Norris and Manhart was that employers must consider employees on an individual basis and therefore were not permitted to use sex-based actuarial tables in the pension or insurance contexts. The Florida case made it clear that employees who retired after Manhart but before Norris are not entitled to have their pensions adjusted upward to the level that would have existed if the employer had remedied its plan at the time of Manhart. The Court specifically noted that retroactive awards are generally not allowed in the pension context. In the pregnancy area, there have been three Supreme Court decisions since the adoption of the Pregnancy Discrimination Act of 1978. The first case, Newport News Shipbuilding, is significant because of its interpretation that the Pregnancy Discrimination Act applies to the dependents of both male and female employees who are discriminated against. In the second decision, Guerra, the Court concluded that the California law which gave women job reinstatement rights did not conflict with Title VII and therefore was not preempted by the federal law. The majority did not see the California statute as giving women preferential treatment. Similarly, in Wimberly, the Court upheld a Missouri law which refused special treatment to pregnant women in the unemployment compensation context. The Court in interpreting Title IX of the Education Amendments of 1972 has clarified many issues associated with this avenue for gender discrimination litigation. After Cannon, there was no question that a private right of action could be implied under Title IX, and North Haven Board of Education removed any doubt that Title IX covered employees as well as students of a school. The most significant case in the Title IX area recently was Grove City. The Court in Grove City applied a narrow reading of Title IX's enforcement mechanism. The Court specifically held that the termination of federal money as a means of enforcing Title IX reached only the specific program or activity receiving the federal funds and not the entire institution. The impact of this decision has essentially been mooted by the 100th Congress' passage of the Civil Rights Restoration Act of 1987, P. L. 100-259. This legislation is designed to "restore the...broad institution-wide application" of certain federal civil rights laws, and thus, effectively overturns the Grove City decision. Two cases decided by the Supreme Court in 1984, Shell and Heckler, are significant because of their holdings with regard to the procedural aspects of bringing a Title VII gender discrimination suit. These two cases illustrate the Court's intention to keep access to the courts clear from procedural barriers placed in the way of worthwhile claims in the sex discrimination context. The Court recently handed down important rulings with respect to public accommodation, affirmative action, and sexual harassment. All of these decisions for the most part are favored by those who support women's achievement of equality. In the Rotary case, the Court held that a California law requiring the admission of women into Rotary Clubs in the state did not violate the first amendment. The New York State Club Assn., Inc. case clarified that state and local governments have the authority to regulate the membership practices of private business-oriented service clubs. With respect to affirmative action, the Court ruled in Johnson that a county could consider gender among other factors in promoting a woman under a voluntary affirmative action plan, even where there was a man arguably better qualified for the position. Finally, in the sexual harassment context, in Vinson, the Supreme Court recognized that sexual harassment was a valid cause of action under Title VII. The Vinson case was qualified, however, by the fact that the Court ruled that 1) employers could not be held strictly liable for the harassment actions of their supervisors and 2) evidence regarding the employee's speech and dress was relevant for determining whether the alleged sexual advances were unwelcome. In summary, over the last eighteen years the Supreme Court has rendered significant decisions in the area of gender discrimination. The Court will also be hearing and deciding more cases in the future. While the Court has resolved numerous questions concerning gender-based discrimination law in the past, there are still problems awaiting future consideration, e.g. whether the Court's interpretation of"comparable worth" presents a cognizable cause of action under Title VII absent proof of intent to discriminate. The consideration of this and other issues in the future will add to the body of law that has been developing with respect to sex-based discrimination. [signature] Karen J. Lewis Legislative Attorney American Law Division ENDNOTES 1. Karen Crump, a Legislative Research Assistant, assisted in the updating of this report. 2. The fourteenth amendment provides, in pertinent part: "No state shall...deny to any person within its jurisdiction the equal protection of the laws." The fifth amendment prohibits Congress from depriving any person of "life, liberty, or property, without due process of law." "Although the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process.'" Johnson v. Robison, 415 U.S. 361, 364 n.4 (1974). 3. Shull, Reinforcement of Middle Level Review Regarding Gender Classifications: Mississippi University for Women v. Hogan, 11 Pepperdine L. Rev. 421, 431(1984). 4. Shull, supra. 5. During its 1988-89 Term, the Court decided a case involving the rights of a biological father. Michael H. v. Gerald D., 109 S.Ct. 2333 (1989). The Court held that a California statute containing a presumption that a child born to a married woman living with her husband is a child of the marriage, and allowing rebuttal only by the husband or wife, does not deny the biological father due process by preventing him from establishing paternity. The Court's decision was based on due process and not equal protection; however, there were allegations of violation of equal protection made in the briefs submitted. The decision is significant because it indicates that a majority of the Court recognizes a "liberty" clause substantively protects. The justices, however, are divided concerning the method of identifying protectable "liberty" interests. 6. Comment, Wengler v. Druggists Mutual Insurance Co.--However the Discrimination is Described, If Gender Based, the Test Applies, 1981 Utah L. Rev. 431 (1981). 7. Shull, supra, at 438. 8. The Supreme Court 1981 Term, 96 Harv. L. Rev. 62, 120 (1982). 9. But c.f. Forrester v. White, 484 U. S. 219 (1988), which was a constitutional challenge brought by a female probation officer alleging that she was demoted and discharged on account of her sex in violation of the equal protection clause of the fourteenth amendment; however, this case was brought under 42 U. S. C. 1983. The Court held that a state court judge does not have absolute immunity from a damages suit under section 1983 for his decision to demote and dismiss a court employee. 10. For a more complete discussion of burden of proof under Title VII, see CRS Report 89-439 A, Dale, Federal Civil Rights Decisions of the U.S. Supreme Court during the 1988-89 Term, July 28, 1989. 11. Women, Work, and Wages: Equal Pay for Jobs of Equal Value, Committee on Occupation Classification and Analysis, Assembly of Behavioral and Social Sciences, National Research Council, 91-2 (1981). 12. The U.S. Ninth Circuit Court of Appeals, in a pair of decisions, has roundly rejected a theory of Title VII liability predicated on a public employer's failure to pay equal wages to male and female employees alleged to be performing duties of "comparable worth." AFSCME v. State of Washington, 770 F. 2d 1401 (9th Cir. 1985); Spaulding v. University of Washington, 740 F. 2d 686 (9th Cir. 1984). The court in both instances rejected the use of the "disparate impact" theory in a comparable worth case and recognized the importance which the market plays in the wage setting process. With respect to the "disparate treatment" or intent aspect of discrimination, the Ninth Circuit concluded in both cases that the evidence was such that it did not rise to the level of making out a prima facie case of discrimination under Title VII. In American Nurses' Association v. State of Illinois, 783 F. 2d 716 (7th Cir. 1986), the Seventh Circuit held that the Nurses' Association had no cause of action against the State of Illinois based strictly on a "comparable worth" study. It remanded the case, however, to give the plaintiffs an opportunity to try to prove intentional discrimination, i.e. showing that the overpaying of workers in predominantly male jobs because most of those workers were male was caused by intentional discrimination on the part of the employer. 13. Williams, "Equality's Riddle: Pregnancy and the Equal Treatment/ Special Treatment Debate," N.Y.U. Review of Law and Social Change, Vol. XIII, No. 2, 325 (1984-1985). 14. Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976), rev'd on other grounds sub nom. Williams v. Bell, 587 F. 2d 1240 (D.C. Cir. 1978). 15 Barnes v. Costle, 561 F. 2d 983 (D.C. Cir. 1977). 16. Bundy v. Jackson, 641 F. 2d 934, 944 (D.C. Cir 1981). 17. In 1988, the U.S. district court, District of Columbia, followed the Supreme Court ruling in Meritor and upheld a "hostile environment" sex discrimination claim under Title VII. Broderick v. Ruder, 685 F. Supp. 1269 (D.D.C. 1988). 18. Over President Reagan's veto, the 100th Congress approved the Civil Rights Restoration Act of 1987, P.L. 100-259, which effectively overturns the Court's holding and rationale in Grove City. Congress declared in findings portion of this legislation that: "(1) certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon the broad application of Title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and title VI of the Civil Rights Act of 1964; and (2) legislative action is necessary to restore the prior consistent and long-standing executive branch interpretation and broad, institution-wide application of those laws as previously administered." P. L. 100-259, Section 2. 19. The Supreme Court recently interpreted this law in Mansell v. Mansell, 109 S.Ct. 2023 (1989). It held that the plain language of the Former Spouses Protection Act prevents state courts from treating as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans' disability benefits. The Act grants to state courts the authority to divide disposable retired pay as excluding amounts waived in order to receive disability payments. 20. Standing is an element of the cases and controversies requirement in the US Constitution, Art III, section 2, cl.1. It requires that a party seeking relief in federal court have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which a court 80 largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204 (1962). The requirement of a "personal stake" has been refined further by the Supreme Court to require both a "distinct and palpable injury" to the plaintiff, Warth v. Seldin, 422 U.S. 490, 501 (1975), and a "fairly traceable" causal connection between the claimed injury and the challenged conduct. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261(1977). See also Simon v. Eastern Ky. Welfare Rights Org, 426 U.S. 26, 41-42 (1976), and Duke Power Co. v. Caroline Environmental Study Group, Inc., 438 U.S. 59, 72 (1978).