Exam 1: Gender and the Law Outline

1. Constitution (Is it unconstitutional?)

a. 14th amendment
i. State cannot discriminate
b. 5th amendment
i. Feds
c. Test:
i. Intermediate Scrutiny
1. Burden of proof is on the govt
2. Important govt interest
3. The law must be substantially related to the interest
2. Title 7- employers cannot discriminate (Is it illegal under Title 7?)
a. 15 or more employers
b. Test:
i. What type of discrimination?
1. Discriminatory/disparate treatment
2. Disparate impact
3. Overt discrimination
a. BFOQ
c. Standard of proof; prima facie; burden of proof; burden shifting
3. Be able to relate tests to hypothetical situations!
4. Historical stuff
a. Coverture
b. Equal Rights Amendment of 1964
c. Goals of early feminist movement
i. Types of discrimination they were concerned about
d. Different types of Feminism

Cheat sheet

Reed v. Reed
o Divorced parents, dead son. State Supreme court of Idaho preferred males over females
(tie breaker). Mom sued.
o SCOTUS overturned lower court. Violated EPC.
o Created new level of scrutiny
Legit purpose
Discrimination of groups has to have a substantial relation to govt interest
Frontiero
o Army husband. Has to prove that husband is dependent, males didnt have to . She sued
under the Due Process clause 5th amend.
o SCOTUS reversed.
o Arugment: efficiency, based on stereotypes.
Craig v. Boren
o Now men can also sue for discrimination.
o Prohibits Beer being sold to males under 21, and females under 18. Sueing under EPC of
14th Outmoded stereotypes
o New level of scrutiny: intermediate
o No substantial relationship: main statistical arugment .02 difference between DUI
arrests b/t males and females. (govt purpose/interest is traffic safety)
Orr v Orr
o Alimony: husband pays but not wife. Outmoded stereotypes
o 14th
o Disparate Impact
Feeney
o 14th
o disparate impact on woman.
o No EPC violation; no discriminatory intent. State intent was to encourage patriotism in
cs and reward soldiers
Micheal M.
o Males and females not similarly situated.
Commonwealth
o
Miss. Univ for Woman v Hogan
o Justice OConnar
Admission policy actually affirms stereotype about nursing being a field for
woman.
o Both men and women are protected in the constitution against gender discrimination.
ERA
o 1st proposed in 1920s by Alice Paul, but feminists could not agree

o
o
o
EEO
o

Both parties said they wanted it

1972 passes in both houses
ERA dies in 1982 (abortion in the southern conservatives)

Title 7 1964, originally didnt include sex, until the last day.
No discrimination from Public and private employers
Exceptions B
BFOQ
VETERANS PREF
Seniority
National security
Merit, productivity etc
Appointed staff
Nochols v Azteca Rest
o Same sex sexual harassment
Discrimantion b/c of sex?
YES!
o Because of sex
but for the fact that I was a woman.

EEOC v. Brown and Root

o Scared of heights. She was dismissed, men who had this were not but were given
another task. Didnt matter that she was replaces with a woman.

LA dept. of water v. Manhart

o Woman had to give more pension based on the fact that they lived longer
o Gereralization may be true, but generalization to indv may NOT be true

Texas Dept of Comm Affairs v Burdine

o Method for proving burden of prood is on the plantiff
o 3 steps ********
Prima facie
Burden shifting
Defend meets burden, it shifts back to plantiff.
Price Waterhouse
o She wasnt lady enough. wear more makeup
o Gender played part in employment decision
Lindahl v Air France
o Employers had relied on stereotypes when denying promotions/hiring
o Disparate impact

Griggs v Duke Power

o Job requirement had a dispate impact
o It was not a business necessity.

Dothard (1 )
o Disparate impact test
Prima facie
Burden shifts
BFOQ???
Burden is on plantiff.
Overt discrimination
o Affirmative action
o BFOQ

Cheatwood
o Phone company (coins). Woman at risk.
o Women should be able to choose whether they want to take on the risk
Diaz v. Pan Am
o Company wanted comfortable atmosphere. Woman provide that.
Def argues BFOQ
o Business necessity test
The essence of the business. (safety for Pan Am)
Customers pref were based on steretypes
Irrelevant unless based on primary function (safety)
Dothard (2)
o Third party
UAW v Johnson
o Fertal woman not fertile man.
o Fetus is not third party. Parents make decisions on risk
Healey
o Patients.
o Overt discrimination: assign shifts incorporating sex.
o Business essence