SEX DISCRIMINATION (Update 1)

During the 1980s and early 1990s intense disagreement has arisen over the appropriate strategy for eliminating sex discrimination. Some courts and commentators argue for gender-neutral rules that define categories in purely functional terms. Others, who point out that gender-neutral rules promise equality only for women who can meet a "male standard," think that legal distinctions between the sexes are not only appropriate but necessary, at least in cases involving perceived biological differences. Still others refuse to think in terms of sameness and difference. They analyze each issue by asking whether the disputed rule furthers the domination of men and the subordination of women.

Those who favor gender-neutral rules argue that the equality and liberty of women is best furthered by treating women, like men, as autonomous individuals capable of exercising free choice. Their opponents believe that legal rules ought to acknowledge the degree to which many women are actually constrained in ways men are not—by direct and indirect pressures to engage in intercourse, to become pregnant, and to assume parenting and nurturing responsibilities. The disagreement is most painfully joined over laws, such as those granting unique benefits to pregnant women or mothers, that seem intended to help women but resemble earlier, unconstitutional "protective" legislation in assuming difference and dependency between men and women.

In the latter half of the 1980s, the Supreme Court was not asked to resolve this dispute in constitutional terms. No case presented an equal protection challenge to a governmental distinction based on sex. The basic structure of intermediate review of gender-based rules was reaffirmed in passing in nongender cases such as city of cleburne v. cleburne living center (1985) and Kadrmas v. Dickinson Public Schools (1988). In obiter dicta in a race case, mccleskey v. kemp (1987), the Court reaffirmed its earlier ruling that unconstitutional discrimination could not be established by unexplained statistical disparities that correlate with sex. This latter principle effectively eliminated use of the Constitution in suits such as those arguing theories of comparable worth, which challenged structural and economic disparities between the sexes.

The equal protection cases that touched on family relationships and gender roles did not involve classifications between men and women and thus did not call for "heightened scrutiny." For example, in Bowen v. Owens (1986) the Court ruled on an equal protection challenge to a distinction drawn by the social security act. For a four-year period widowed spouses of deceased wage earners who remarried after the age of sixty continued to receive survivor's benefits, while divorced widowed spouses who remarried were not so treated. In this context, where the distinction was drawn within, rather than between, gender groups, the Court held that Congress could make presumptions about dependence: "Because divorced widowed spouses did not enter into marriage with the same level of dependency on the wage earner's account as widows or widowers, it was rational for Congress to treat these groups differently after remarriage."

Although no case directly raised the constitutional question, several Title VII cases gave the Court an opportunity to respond to the debate among advocates of Women's rights. The question was posed most starkly by California Federal Savings and Loan v. Guerra (1987), a challenge to a California statuatory requirement that employers provide unpaid pregnancy disability leave. As amended by the Pregnancy Disability Act, Title VII of the civil rights act of 1964 specifies that discrimination on the basis of pregnancy is sex discrimination. Opponents of the California law argued that it was preempted by federal law because it required benefits for pregnant women that were not required for temporarily disabled men. The Court, in an opinion by Justice thurgood marshall, found no conflict with the Title VII. Earlier protective legislation that had been held invalid under equal protection clause and Title VII was distinguished on the ground that it "reflected archaic or stereotypical notions about pregnancy and the abilities of pregnant workers." Justice Marshall found that Title VII and the state law shared a common goal of equal employment opportunity for women: "By taking pregnancy into account, California's … statue allows women, as well as men, to have families without losing their jobs."

Because the Court has not modified its holding in Geduldig v. Aiello (1974) that discrimination on the basis of pregnancy is not unconstitutional because it is not gender-based, Guerra raised no equal protection questions. But the decision indicates that the Court is willing to permit governmental distinctions between men and women when those distinctions appear to benefit women without perpetuating pernicious sex-role stereotypes. The decision leaves ambiguous exactly how the Court will determine whether such stereotyping exists. Justice Marshall described the statute as "narrowly drawn to cover only the period of actual physical disability." Yet "disability" seems an odd description for a common human condition like reproduction. The term suggests that mandatory pregnancy leave is necessary only because of real biological differences between men and women, and not as a remedy for the problem of inequality caused by the allocation of child-rearing responsibilities to women. Some commentators fear that in the long run mandatory pregnancy leave, like earlier forms of protective legislation, will decrease the actual employment opportunities of women by increasing the cost of hiring them.

A related question is whether the law ought to recognize a practice as discriminatory when it is said to harm women though it presents no threat to men who seem, at least superficially, to be similarly situated. Just as it has been difficult for the court to see pregnancy discrimination as sex discrimination, some lower courts refused to characterize sexual harassment claims as sex discrimination claims, especially when both men and women worked in an environment that only women perceived as hostile. In another Title VII case, meritor savings bank v. vinson (1986), the Supreme Court emphatically affirmed that claims of a hostile work environment are actionable under the statute as sex discrimination. Again, the Court was willing to look beyond formal equality of treatment to determine whether practices have different social meanings for, and thus different impacts on, men and women.

Many of the earliest constitutional sex discrimination cases decided by the Court involved challenges by men to "benign" gender distinctions that could be eliminated by simply extending the challenged benefit to men as well as women. In this respect, sex discrimination law differed from cases involving race; few racial classifications benefited blacks at the expense of whites. However, in challenges brought by men to affirmative action programs, the claim is the same as in race cases: the preference ought to be eliminated, not simply be available without reference to gender or race. This similarity may explain why the Court's approach to gender-based affirmative action has tended to merge with its approach to race-based affirmative action, even though racial classifications are theoretically subject to a stricter level of scrutiny. In johnson v. transportation agency (1987) the Court found no violation of Title VII in a public employer's voluntary affirmative action plan that permitted the sex of an employee to be considered as one factor in promotion decisions for jobs in which women historically had been underrepresented. The Court approved the plan as a "moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women in the Agency's work force." Title VII imposes identical restrictions on gender-based and race-based affirmative action plans, but the Court also cited wygant v. jackson board of education (1986), a racial affirmative action case decided under the equal protection clause, as if it would provide the standards for evaluating a constitutional challenge to the Johnson plan. Thus, the Court, although reserving the question, suggested that the constitutional approach, like the Title VII approach, may be identical for both kinds of affirmative action.

Two years later, in richmond v. j. a. croson co. (1989), a constitutional case in which strict scrutiny, was applied to overturn a municipal set-aside plan for racial minorities, the Court signaled a new reluctance to approve government affirmative action plans that could not be justified by evidence of identified past discrimination. Whether the constitutional approach in Richmond will be applied to gender-based governmental affirmative action plans depends on whether gender classifications will be distinguished as calling for less searching scrutiny. Since intermediate review has been the standard in other gender-preference cases, governmental affirmative action designed to benefit women may, if the suggestion in Johnson is not followed, be found to raise no constitutional problems, even where identical plans benefiting racial minorities are unconstitutional.

Some efforts by local governments to further sex equality have been challenged as unconstitutional under the first amendment. Those that further women's claims for equal access to all-male institutions have proved most resistant to constitutional attack. In Board of Directors of Rotary International v. Rotary Club (1987) and new york state club association v. new york city (1988), the Supreme Court upheld state and local requirements that women not be excluded from membership in certain private organizations, despite the claim that the local laws infringed upon male members' First Amendment right to freedom of assembly and association. The effort to impose local restrictions on pornography as a step toward the elimination of the subordinate status of women has proved more vulnerable to constitutional challenge. In Hudnut v. American Booksellers Association (1986), a divided Supreme Court summarily affirmed a lower federal court's conclusion that a municipally created civil rights action for women injured by pornography impermissibly burdened protected speech.

Christina Brooks Whitman
(1992)

(see also: Feminist Theory and Constitutional Law; Gender Rights.)

Bibliography

Becker, Mary 1987 Prince Charming: Abstract Equality. Supreme Court Review 1987:201–247.

Finley, Lucinda M. 1986 Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate. Columbia Law Review 86:1118–1182.

Mac Kinnon, Catharine A. 1987 Feminism Unmodified: Discourses on Life and Law. Cambridge, Mass.: Harvard University Press.

——1989 Toward a Feminist Theory of the State. Cambridge, Mass.: Harvard University Press.

Olsen, Frances 1986 Statutory Rape: A Feminist Critique of Rights Analysis. Texas Law Review 63:387–432.

Rhode, Deborah 1989 Justice and Gender. Cambridge, Mass.: Harvard University Press.

West, Robin 1988 Jurisprudence and Gender. University of Chicago Law Review 55:1–72.

Williams, Joan C. 1989 Deconstructing Gender. Michigan Law Review 1989:797–845.