Elusive Equality: Women's Rights, Public Policy, and the Law 9781685858841

Table of contents :
Contents
Preface
Introduction: The Continuing Quest for Equality
1 Seeking Constitutional Parity
2 Achieving Educational Equity
3 Securing Workplace Equality
4 Fighting for Pay Equity
5 Battling Sexual Harassment
6 Striving for Equality in Professional Life
7 Accommodating Work and Family
8 Securing Reproductive Rights
9 Retaining Reproductive Rights
Conclusion: Elusive Equality
Bibliography
Index of Cases
Index
About the Book

Citation preview

Elusive Equality

Elusive Equality WOMEN'S RIGHTS, PUBLIC POLICY, AND THE LAW

Susan Gluck Mezey

LYN N E RI EN N E R PUBLISHERS BOULDER L O N D O N

Published in the United States of America in 2003 by Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.rienner.com and in the United Kingdom by Lynne Rienner Publishers, Inc. 3 Henrietta Street, Covent Garden, London WC2E 8LU © 2003 by Lynne Rienner Publishers, Inc. All rights reserved

Library of Congress Cataloging-in-Publication Data Mezey, Susan Gluck, 1944— Elusive equality : women's rights, public policy, and the law / Susan Gluck Mezey. p. cm. Includes bibliographical references and index. ISBN 1-58826-151-4 (alk. paper) — ISBN 1-58826-176-X (pbk. : alk. paper) 1. Sex discrimination against women—Law and legislation—United States. I. Title. KF4758.M49 2003 342.73'0878—dc21 2002030692 British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library.

Printed and bound in the United States of America

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The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1984. 5

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For my children, Jennifer and Jonathan Jason and Dee

Contents

Preface

ix

Introduction: The Continuing Quest for Equality

1

1

Seeking Constitutional Parity

5

2

Achieving Educational Equity

39

3

Securing Workplace Equality

69

4

Fighting for Pay Equity

105

5

Battling Sexual Harassment

129

6

Striving for Equality in Professional Life

157

7

Accommodating Work and Family

185

8

Securing Reproductive Rights

221

9

Retaining Reproductive Rights

247

Conclusion: Elusive Equality

283

Bibliography Index of Cases Index About the Book

289 303 311 319

vii

Preface

T

HIS BOOK IS A SEQUEL TO IN PURSUIT OF EQUALITY,

MY EARLIER WORK ON

women's rights policy and law. When the research for the earlier book began in the 1980s, it appeared as though a number of contentious legal issues had been resolved—although not always conclusively or favorably. There had been progress in attaining equal rights for women over the past several decades: abortion rights, although always fragile, seemed relatively secure for the time being; the equal protection doctrine was stable, with no high court ruling on equal protection grounds in more than five years; sex equality in education was subject to fits and starts but was generally progressing in the right direction toward greater egalitarianism; women were moving up the ranks in business and the professions; and the courts, including the Supreme Court, had finally accepted the argument that sexual harassment was a major source of concern to women in the workplace. Now, after more than a decade that saw two new presidents in office and recent additions to the Supreme Court, the world has continued to change for women. There have been improvements in educational equality, but separatesex education continues to exist in some areas for some children. Although advances have been made in combating sexual harassment in the workplace and in the educational setting at all levels, including grade school, sexual harassment has not been eradicated from the workplace or school. Greater numbers of women are entering the workforce, including at the professional level, but there are still wage gaps and disparities in high-level positions such as partnerships in law and accounting firms. Moreover, a new, indirect threat to equality has arisen: the Supreme Court's commitment to advancing state sovereignty at the expense of the federal government's policymaking authority has diminished the effectiveness of the 1993 Family and Medical Leave Act and threatened the stability of the Equal Pay Act. Although it seemed as

ix

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PREFACE

if the Court was on the verge of formally adopting the highest level of scrutiny in its equal protection analysis, it has retreated, clinging to the belief that it is acceptable for biological sex differences to determine public policy. Finally, although Congress enacted a law protecting access to abortion clinics, there are continued assaults on abortion rights from the public and private sector. There are increasingly restrictive parental notification statutes, as well as more intensive regulation of abortion procedures, and anti-abortion activists resort to violence to prevent women from seeking to exercise their reproductive rights and to curtail the ability of abortion providers to deliver abortion services. Taken together, these events indicate that the pursuit of equality has led to a number of successes—but also that sex equality is still elusive and that we erred if we were complacent about our success in achieving the goals of a feminist society. The title of this book, Elusive Equality, suggests that although this society has become more egalitarian, work remains to be done before we can sit back and relax—if such a time will ever come. The achievements of the recent past show that there has been greater movement toward egalitarianism at home and at work, but there is still room for improvement, and further changes are necessary to attain a society in which sex does not preordain one's public or private role. The purpose of this book is to tell the story of the continuing struggle for sex equality in the United States. Highlighting the events occurring over the past decade, it discusses the role of the law in bringing about social, economic, and political equality between the sexes. —Susan Gluck

Mezey

Elusive Equality

Introduction: The Continuing Quest for Equality

T

HE FIRST WOMEN'S MOVEMENT WAS DERIVED FROM THE ABOLITIONIST MOVE-

ment in the mid-1800s and largely ended with the passage of the Nineteenth Amendment in 1920. In part, the successful conclusion of the struggle for the electoral franchise left women uncertain about the path of future movement activity. The inevitable disarray that follows the attainment of a movement's goals, as well as circumstances resulting from the upheaval caused by the two world wars and the Great Depression, frustrated women's efforts to bring about change in society's political, economic, social, and legal systems. Women's rights advocacy reasserted itself in the latter part of the twentieth century, when women began to rally under the banner of feminism, an ideology seeking to empower women in their public and private lives. In the 1960s, the feminist movement, also known as the women's rights movement or the women's liberation movement, began the slow—and as yet incomplete—task of transforming society so that women were no longer subordinated to men. This second wave of feminism was in part born out of women's participation in the civil rights and antiwar protests of the early 1960s. Equally committed with men to bringing about an end to racial discrimination and the war in Vietnam, women discovered that their voices were often unheard and they were expected to remain silent while the men made the important decisions and took responsibility for the group's actions. Women vowed that they would no longer accept their subordinate status, and while continuing to fight for racial equality and peace, they began to call attention to the imbalance of power at home and at work—as well as on the civil rights picket line and antiwar peace march. One of the first steps toward achieving equality in the second wave of feminism was the passage of federal legislation banning pay disparity between the sexes and prohibiting discrimination on the basis of sex in 1

2

INTRODUCTION

employment, education, credit, and housing. The courts became an integral part of the movement toward equality, as women's rights litigants turned to them for assistance in implementing this legislation. At the same time, women's groups also mounted legal challenges against state and federal laws based on traditional and stereotypical notions of men and women's roles. Concomitant with these actions, women engaged in efforts to expand reproductive rights—again, largely through the courts—as part of a broader movement to enhance individual rights of privacy. This multifaceted litigation effort transformed most attacks on inequality into legal challenges, subject to the limitations of the law in effecting societal change. This book bridges the gap between law and public policy by tracing the development of sex equality in the United States, largely although not exclusively through rulings made by the federal judiciary. It focuses on judicial decisionmaking, discussing the key public policy issues affecting women's rights that have been adjudicated since the 1960s. Viewing these issues through a public policy lens, it examines the formulation and implementation of women's rights policies by Congress, the executive branch, and the courts, as well as state and local policymakers, and shows how these public officials have shaped much of the direction and pace of the nation's movement toward achieving equality between the sexes. Appraising the results of their labor suggests that although advances have been made, equality between the sexes remains elusive. Written from a feminist perspective, these chapters feature women in their roles as citizens, workers, students, wives, and mothers and assess the progress over the last four decades when the second wave of the women's rights movement began. In doing so, the book explores a wide array of public policy issues affecting women and men, including sex-based legal classifications, pay equity, equal employment opportunity and affirmative action, fetal protection policies, the preferential status of pregnancy in the workplace, single-sex public schools, sexual harassment at work and in school, the balance between family and work, the glass ceiling and career advancement for business and professional women, and the right to choose an abortion. The analysis reflects a liberal feminist view, premised on the belief that equality between men and women in the United States has been furthered by removing the legal constraints that impeded women's access to rights and opportunities. For a variety of reasons and for better or worse, liberal feminism has been the prevailing paradigm of the modern U.S. women's movement. Liberal feminists must be given the lion's share of the credit for devising the political strategy, including litigation, that furthered the objectives of the women's rights movement. At the same time, it is important to acknowledge that liberal feminists represent only one type of feminist; there are also radical feminists (with their focus on issues such as sexual harassment, pregnancy, and reproductive rights), gender feminists, sometimes called cultural

INTRODUCTION

3

feminists or maternal feminists (who applaud women's biological or psychological differences), Marxist-socialist feminists (with their focus on the effects of capitalism in subordinating women), and black or multicultural feminists (who call attention to the discriminatory effects of race and class divisions in society). 1 Although debates among feminists are significant, this book does not endeavor to assess the quality of their beliefs or compare their effectiveness in bringing about social change. In their own way, all are committed to the goal of greater egalitarianism and have important things to say about how to achieve it. Underlying the debate over whether to follow a liberal feminist approach is the controversy over the effectiveness of law as an instrument of social change. Some feminists have argued that the law serves to maintain and reinforce women's disadvantaged position in society. Others see it as an effective tool in the arsenal of weapons to end women's subordination and achieve an equal status in society. Recognizing that until recently, courts used sex differences to enforce legal inequality, the question is to what extent legal reform is capable of generating sexual equality. Although legal action is an essential component of social change, it is unlikely that it will be sufficient to remove the myriad constraints on women. Ensuring women's full participation in society requires that—in addition to law—change occurs on a number of fronts, including the transformation of political, social, and economic institutions that often (still) relegate women to second-class citizenship. To move toward full equality in the public and private sector, women must have control over their reproductive lives, they must be paid according to their worth, and they must have workplace security. Perhaps the most difficult task of all is to revise society's perceptions of their role in the family. Such revision requires substantial modification of deeply held beliefs, rendering these issues less amenable to the use of legal tactics. To sum up, legal reform is an important vehicle for effecting societal change. And although the law itself cannot bring about an end to political, social, and economic inequality, it sets a standard and creates a tone, in no small part because it responds to and helps engender awareness of feminist goals.

Note 1. See Lynn E. Ford, Women and Politics: The Pursuit of Equality (Boston: Houghton Mifflin, 2002), for a discussion of the various types of feminist theories, including, in addition to these, ecofeminism and global feminism.

1 Seeking Constitutional Parity

S

EX-BASED LAWS MIRROR A SOCIETY'S VIEW OF THE STATUS OF MEN AND WOMEN,

often helping to create and maintain political and social inequality between the sexes. 1 From the Founding era, this nation's lawmakers have relied on an "ideology of separate spheres—in which the public sphere of work was considered men's and the private world of family was women's" to justify differential treatment under the law. 2 The separate spheres doctrine had a profound influence on public policymaking in the United States, and although women have overcome many barriers to legal equality, the law continues to reflect traditional notions about proper roles for women and men. 3

Early Battles for Sex Equality Signaling her concern about the status of women in the new nation, Abigail Adams wrote to her famous husband, John, on March 31, 1776, about the "new code of laws" he and his compatriots were about to draft. Abigail urged him to "remember the ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of husbands." She reminded him that "all men would be tyrants if they could. [And that] if particular care and attention is not paid to the ladies we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation." Husband John responded on April 14, 1776: "I cannot but laugh . . . your letter was the first intimation that another tribe, more numerous and powerful than all the rest were grown discontented." 4 She chided him again in a letter dated May 7, 1776: "I cannot say that I think you are very generous to the ladies; for whilst you are proclaiming peace 5

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ELUSIVE EQUALITY

and good-will to men, emancipating all nations, you insist on retaining an absolute power over wives." She cautioned that "arbitrary power is like most other things which are very hard, very liable to be broken." 5 Abigail's admonitions to John were largely unheeded; there is no evidence that the nation's founders gave much thought to women's rights during their deliberations over independence or the nation-building process.

The Seneca Falls Convention The Declaration of Sentiments and Resolutions, adopted at the first women's rights convention in Seneca Falls, New York, in July 1848 echoed Abigail Adams's indictment of U.S. society. The Seneca Falls Convention was largely inspired by the experiences of two women, Lucretia Mott and Elizabeth Cady Stanton, who were demeaned at the World Anti-Slavery Convention in London in 1840 when convention leaders decided that women delegates would not be seated on the convention floor and would observe the proceedings from the galleries. Eight years later an announcement appeared in the Seneca County Courier: Women's Rights Convention—A convention to discuss the social, civil and religious rights of woman will be held in the Wesleyan Chapel, Seneca Falls, New York, on Wednesday and Thursday, the 19th and 20th of July current; commencing at 10:00 A.M.

Borrowing from the Declaration of Independence, the Seneca Falls Convention organizers, including Mott and Stanton, drafted a statement of principles for the meeting: When in the course of human events it becomes necessary for one portion of the family of man to assume among the peoples of the earth a position different from that they have hitherto occupied. . . . We hold these truths to be self evident: that all men and women are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.

The struggle for women's rights, propelled by the events at the Seneca Falls Convention, was linked to the abolitionist movement. Most of the early women's rights advocates—Elizabeth Cady Stanton, Lucretia Mott, Henry Ward Beecher, Lucy Stone, Frederick Douglass, Susan B. Anthony, and Henry Blackwell—joined in the antislavery struggle, linking it to the fight for women's rights. With the Civil War looming, however, everyone's attention turned away from women's rights and toward the conflict over African American citizenship and the fate of the Union.

SEEKING CONSTITUTIONAL PARITY

7

Women's Suffrage A f t e r the Civil War, w o m e n ' s rights advocates r e n e w e d their efforts to secure the right to vote, in part to secure political equality in the public sphere and in part because they believed that the p o w e r they would gain f r o m e n f r a n c h i s e m e n t would lead to r e f o r m of laws affecting their rights in the private sector. 6 Most of the m o v e m e n t leadership supported the ratification of the Reconstruction-era Fourteenth A m e n d m e n t , h o p i n g it w o u l d extend their rights of citizenship as well as those of f o r m e r slaves. Instead the a m e n d m e n t dealt a m a j o r setback to their cause because it explicitly inserted the w o r d male into the Constitution f o r the first time. 7 T w o years later, w h e n the Fifteenth A m e n d m e n t , b a n n i n g discrimination in voting on the basis of "race, color, or previous condition of servitude," was ratified, w o m e n ' s rights advocates suffered another defeat. A l t h o u g h they tried mightily to c o n v i n c e the a m e n d m e n t ' s sponsors to prohibit discrimination in voting on the basis of sex as well as race, they were u n s u c c e s s f u l . Ultimately, the failure to include w o m e n ' s rights in the c a m p a i g n for black suff r a g e led to the collapse of the antislavery coalition. A n e w organization, the National W o m a n S u f f r a g e Association, f o u n d e d in 1869 by Stanton and Anthony, c o m m i t t e d itself to pursuit of w o m e n ' s rights, including a federal w o m e n ' s s u f f r a g e a m e n d m e n t . T h e same year, the A m e r i c a n W o m a n Suff r a g e Association was f o u n d e d by Stone to f o c u s m o r e narrowly on achieving the f r a n c h i s e for w o m e n . 8 T h e struggle for suffrage through a federal constitutional a m e n d m e n t dominated the w o m e n ' s rights m o v e m e n t f r o m the latter part of the nineteenth century into the early part of the twentieth. 9 During this time as well, s o m e suffragists w h o turned their attention to voting in statewide elections succeeded in securing the vote in parts of the country, primarily the western states of W y o m i n g and Utah. Finally, the Nineteenth A m e n d m e n t , k n o w n as the Susan B. A n t h o n y A m e n d m e n t in honor of the tireless advocate for w o m e n ' s rights, was ratified in 1920. 1 0 Abigail A d a m s would have been pleased at the o u t c o m e but would have undoubtedly felt that it took too long to achieve this basic right that w o m e n should have had at the outset.

The Right to Practice Law W h i l e w o m e n sought political equality through the ballot, they also pursued legal equality through challenges to laws restricting their right to b e c o m e part of the public sphere. One of the first legal battles over w o m e n ' s rights revolved around the right to choose an occupation. Bradwell v. Illinoisu was brought by M y r a Bradwell, who, although she successfully qualified for the Illinois bar, w a s denied admission because of her marital status. Her appeal to

8

ELUSIVE EQUALITY

the Supreme Court claimed that the privileges and immunities clause of the Fourteenth Amendment protected her right to earn a living. 12 Speaking for the Court, Justice Samuel Miller agreed that the Fourteenth Amendment guaranteed rights of national citizenship but added that "the right to admission to practice in the courts of a State is not one of them. This right," he continued, "in no sense depends on citizenship of the United States." 1 3 Bradwell was based on precedent established in the Slaughterhouse Cases}* decided the day before, in which the Court issued a constrained interpretation of the privileges and immunities clause. According to the Court, it protected only a narrow range of federal constitutional rights, such as the right to sail on navigable waters; it did not extend to the right to earn a living, which was within the scope of state authority. With her case decided on the heels of the Slaughterhouse Cases, Myra Bradwell was a victim of the Court's restricted interpretation of the privileges and immunities clause. By relying on the Slaughterhouse Cases, the Court was able to sidestep the issue of Bradwell's rights as a woman. But Justice Joseph Bradley's concurring opinion squarely addressed—and rejected—her claim to equality. In a strong affirmation of the separate spheres ideology, Bradley denied that women enjoyed the same rights as men to pursue an occupation. He contended that "nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. . . . The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life." He continued, "the paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator." 1 5

The Right to Vote Soon after Bradwell, women argued for the right to vote in Minor v. Happersett,16 an 1875 ruling. Virginia Minor sued a St. Louis voting registrar for refusing to allow her to register to vote. When she lost in the Missouri Supreme Court, she appealed to the U.S. Supreme Court, claiming that the right to vote was a privilege of national citizenship protected from state infringement by the Fourteenth Amendment. Speaking for the Court, Justice Morrison Waite explained that because the Fourteenth Amendment did not confer suffrage, Minor could only win her case if women had the right to vote at the time the Constitution was adopted. 17 After surveying the laws of several states in which suffrage was restricted to men, he concluded they did not. As in Bradwell, the Court declined to accept a claim based on the privileges and immunities clause, saying that it did not add to a citizen's rights but "simply furnished an additional guaranty for the protection of such as he already had." 1 8

SEEKING CONSTITUTIONAL PARITY

9

The Right to Work Around the turn of the century, increasing industrialization prompted states to regulate conditions of work, hours, and wages to ameliorate harsh working conditions. Industry challenged these regulations in the courts, arguing that they exceeded the state's lawmaking authority. In 1905, in Lochner v. New York}9 the Court struck down a New York law that prohibited bakers from working more than sixty hours a week or ten hours a day; the Court held that the law violated the due process clause of the Fourteenth Amendment because "the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution." 20 The Court based its decision on several factors: first, baking is not an unhealthy industry; second, as adults, the bakers could make their own decisions about how many hours to work; and third, the quality of baked goods is not improved if made by bakers working fewer hours. Convinced that bakers did not require special protection, the Court found no reason to interfere with their right to work longer hours if they desired. Lochner marked the beginning of an era of judicial support for laissezfaire economics that lasted until the 1930s. 21 But three years later, in Muller v. Oregon,22 the Court revisited its commitment to a hands-off approach to industrial working conditions in a case involving an Oregon statute limiting women laundry workers to a maximum ten-hour workday. Arguing for the state in Muller, future Supreme Court justice Louis D. Brandeis presented a 113-page brief to the Court, contending that, unlike bakers, women laundry workers needed the state's protection because they were physically incapable of working long hours. The Brandeis brief, an exegesis of the separate spheres doctrine, focused on the physical differences between the sexes and presented evidence on the need to restrict women's working hours. The Court began by reiterating the laissez-faire philosophy that workers should be permitted to contract their labor without government interference. But it believed that this principle did not apply to women because they are physically different from men and play different roles in society. Echoing the separate spheres ideology, the Court found that a woman's "physical structure and a proper discharge of her maternal functions . . . justify legislation to protect her from the greed as well as the passion of man." 2 3 Although some labor reformers welcomed Muller, others believed the Court's ruling harmed women workers by justifying restrictive legislation aimed only at them. Withholding job opportunities under the guise of protection, these laws limited women's availability for work and made them more expensive to employ. Criticizing the Court's approach, Frances Olsen notes that"Muller was based on the thesis that women differ from men in important ways, and although the case might have seemed to exalt women, it effectively

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ELUSIVE EQUALITY

degraded them by treating the asserted differences as evidence of women's inferiority." 24 And in their book on women's employment rights, Barbara Brown and her coauthors argue that most of these laws "were based on stereotypes about women's transient and secondary role in the labor market and their weak physical condition as well as on the desire of male workers to reduce competition for higher paying jobs." 2 5 In 1924, the Court also rejected a challenge to a New York statute that prohibited women from working in restaurants between 10:00 P.M. and 6:00 A.M. The Court accepted the state's argument that "night work . . . so injuriously affects the physical condition of women, and so threatens to impair their peculiar and natural functions, and so exposes them to the dangers and menaces incident to night life in large cities." 26 Acquiescing in the denial of women's employment opportunities, the Court did not question the state's logic in barring women from nighttime restaurant work while allowing them to work nights as performers, ladies' cloakroom attendants, or hotel kitchen help (all exempted from the law) and apparently did not think to inquire whether the statute was enacted to preserve men's monopoly in the more lucrative nighttime restaurant jobs. Forty years after Muller, in Goesaert v. Cleary,27 a 1948 decision, the Supreme Court again considered whether women could be excluded from certain occupations. Under Michigan law, only women related to men bar owners could be licensed as bartenders. Speaking for the Court, Justice Felix Frankfurter set a light tone for the decision by commenting that as "beguiling as this subject is, it need not detain us long." His derision was evident as he reminded the Court that "we are, to be sure, dealing with a historic calling. We meet the alewife, sprightly and ribald, in Shakespeare, but centuries before him she played a role in the social life of England." 28 Perhaps because he did not consider the constitutional question an important one, Frankfurter refrained from challenging the state's logic in allowing women to work as tavern waitresses, saying he was persuaded that the state had sufficient reason to believe that only women related to tavern owners would be protected from the dangers of bartending. Rejecting the insinuation that the legislature was motivated by the desire to allow returning World War II veterans to fill the higher-paying bartending jobs, Frankfurter concluded that the law satisfied the command of the equal protection clause.

The Modern Equal Protection Clause In guaranteeing equality under the law, the equal protection clause of the Fourteenth Amendment put states on notice that they must justify their legislative decisions to treat persons as legally different. Under equal protection doctrine, differential treatment is constitutionally permissible when it is based

SEEKING CONSTITUTIONAL PARITY

11

on relevant differences among individuals. 29 Because immutable characteristics such as race or national origin bear no relationship to ability and are considered irrelevant to valid legislative goals, the Court views laws based on such classifications as inherently suspect and scrutinizes them carefully, placing the government under a heavy burden to justify distinctions in law based on these criteria. The Supreme Court first articulated the concept of a suspect classification based on race in Korematsu v. United States?0 the case that revolved around the U.S. policy of interning persons of Japanese ancestry—citizens and noncitizens alike—during World War II. In deciding the case, the Court proclaimed that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect." 3 1 However, despite the indications that racial discrimination had been a determinative factor in establishing the interment camps and exclusion orders, the Court ruled that the policy was not based on race and accepted the government's defense that it was justified by military necessity and national security.

Levels of Scrutiny Stemming from its proclamation in Korematsu that laws "curtailing] the civil rights of a single racial group are immediately suspect," the Court formulated a two-tier level of scrutiny for determining the constitutionality of laws under the equal protection clause. In cases involving a suspect classification (such as race or national origin), the Court would invoke "strict scrutiny" and place the burden of proof on the state, requiring it to show a "compelling" reason for the law in question and to demonstrate that the means (the classification) are "necessarily" related to the ends sought to be achieved by the statute and are the "least restrictive" to achieve those ends. In all other equal protection cases, those involving nonsuspect classifications, the Court would apply minimal scrutiny, which is satisfied if there is a "legitimate" reason for the law and if the classification is "rationally" related to that end. Minimal scrutiny is the more common approach and is used for economic and social legislation as well as laws that are based on classifications with mutable characteristics (such as wealth) or those related to ability (such as age). Determining the proper level of scrutiny is crucial for the outcome of the case: a statute reviewed under minimal scrutiny almost always receives the Court's approval. Conversely, because of its strong statement disfavoring laws based on racial classifications in Korematsu, the Court is extremely loathe to uphold laws based on race. 3 2 Because of this dichotomy, over the years a mystique has surrounded the use of strict scrutiny, a mystique that springs up not only from the language and mindset accompanying the Court's strict scrutiny analysis but also, and perhaps even more important, from a strong presumption against the constitutionality of the law under review. 3 3

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The Warren Court During Earl Warren's tenure as chief justice from 1953 to 1969, the high court earned a well-deserved reputation for expanding the parameters of racial equality. Its record in the area of sex discrimination was less stellar, however. The Warren Court's continued adherence to the separate spheres ideology was evident in its decision in Hoyt v. Florida,34 a 1961 case involving a Florida law that created a voluntary jury registration system for women. Hoyt, w h o claimed she killed her husband with a baseball bat as retribution for his infidelity, was convicted of second-degree murder by an all-male jury. She appealed, maintaining that the trial was unfair because women jurors would have been more sympathetic to her. Speaking for the Court, Justice John Marshall Harlan pointed out that defendants are not entitled to juries of their choice but to juries "indiscriminately drawn from among those eligible in the community for jury service." 3 5 Florida did not exclude women from juries, Harlan noted; it merely exempted them from jury service at their option. The Court based its decision in part on the fact that "despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life." And because of her unique role in the family, a woman should be allowed to "determine [for herself] that such service is consistent with her own special responsibilities." 36 Acknowledging that the state could have achieved its goal of protecting children and families by limiting jury exemptions to women with child care responsibilities, Harlan refused to condemn the law as "irrational." 37

The Burger Court By the end of the 1960s, at the start of Warren Burger's tenure as chief justice, women's rights advocates had become more vocal, their rising consciousness fueled in part by the struggle for ratification of the Equal Rights Amendment. 3 8 They fought for their rights in a variety of forums, demanding an end to sex discrimination in employment and education, reform of restrictive abortion laws, and increased opportunities for women in public office. Not surprisingly, they often turned to the federal courts, appealing for judicial support in their battle to expand sexual equality. In response to their litigation efforts, during the years of Burger's term as chief justice from 1969 to 1986, the Court began to develop a constitutional doctrine to judge legislative assertions of relevant sex differences in light of the equal protection clause. Ironically, the Burger Court, not known for advancing individual rights, helped further sex equality by handing down a panoply of rulings striking laws

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predicated on assumptions about women's and men's roles in society. 39 Just as important as the rulings in the individual cases, however, the Burger Court developed a new approach to assessing the constitutionality of sex-based classifications by incorporating another level of scrutiny into its equal protection jurisprudence. The Burger Court first attempted to redefine the appropriate limits of sexbased classifications in 1971 in the case of Reed v. Reed.40 The suit was argued by the head of the American Civil Liberties Union's (ACLU's) Women's Rights Project, Ruth Bader Ginsburg (now Justice Ginsburg), on behalf of Sally Reed. 41 This case marked the beginning of the Court's new approach to constitutional sex equality and resulted from the efforts of women's rights advocates, such as Ginsburg, who mounted a campaign to challenge state laws under the Fourteenth Amendment's equal protection clause; federal laws were challenged under the due process clause of the Fifth Amendment. 4 2 Reed involved a challenge to an Idaho law that compelled the selection of a man over a woman to serve as administrator of an estate when both were equally qualified. The state argued that the statute was designed to prevent conflict within the family and reduce the workload of probate courts in assessing the qualifications of competing estate administrators. Conceding that the state's objectives were legitimate, the Supreme Court nevertheless found the statute unconstitutional. Forgoing its usual deference to sex-based classifications, the Court noted that to withstand constitutional scrutiny, the classification must bear a "fair and substantial relation to the object of the legislation." Speaking for a unanimous Court, Burger characterized the law as "makfing] the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intra-family controversy, the choice in this context may not lawfully be mandated solely on the basis of sex." 43 Without openly acknowledging it, the Court appeared to have moved toward a stricter standard for reviewing sex-based classifications. The statute under attack in Reed was based on the reasonable (and undoubtedly accurate) assumption that men had more experience in business and finance than women. And although the law seemed more rational and defensible than others that had survived judicial scrutiny in the past, the Supreme Court invalidated it. Perhaps distancing itself from its previous rulings on sex-based classifications, the Court cited no sex discrimination case in its opinion. Frontiero v. Richardson,44 decided in 1973, revolved around a challenge to a military regulation requiring married women to prove they provided over one-half their family's support before obtaining certain benefits, even though married men automatically received the benefits. A plurality of four justices declared sex an inherently suspect classification and held that the regulation violated Lieutenant Sharon Frontiero's constitutional right of equality. Justice

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William Brennan explained that in rejecting the state's "apparently rational" explanation for its probate scheme in Reed, the Court had departed from a "'traditional' rational basis analysis." Justifying the use of strict scrutiny, Brennan indicated that the United States has had a "long and unfortunate history of sex discrimination"; he characterized this history as '"romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage." 45 Moreover, Brennan said, like race and national origin, sex is immutable and "frequently" is unrelated to ability; therefore, sex deserved the same searching scrutiny as those two received. The plurality opinion rejected the government's assertion that the dependency rule was administratively convenient and cost efficient; more important, it held, as in Reed, that such line drawing between the sexes for the sake of administrative convenience was constitutionally forbidden. 46 Together Reed and Frontiero indicated that the Court was moving away from the equal protection decisionmaking associated with minimal scrutiny. In declining to accept the government's argument of administrative convenience, typically considered quite a reasonable basis for a law, the Reed Court signaled that it was holding the government to a stricter standard of review. Frontiero represented a milestone in the development of the Court's sex equality doctrine, with four justices agreeing to apply strict scrutiny to laws based on sex. But the concurring justices, who were also disinclined to accept the government's facile justification for the regulation, nevertheless refused to adopt strict scrutiny. Then in 1976, in Craig v. Boren 4 7 the Court formally adopted a third level of scrutiny for laws involving sex-based classifications, introducing an element of uncertainty into the analysis of equal protection law. The case arose over a seemingly innocuous Oklahoma law that allowed eighteen-yearold women—but not men—to buy 3.2 or "near" beer. Brennan delivered the 7 to 2 opinion for the Court and, without explicitly acknowledging the shift toward stricter scrutiny, asserted that "previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." 48 In addition to proclaiming this standard that would become the Court's third level of scrutiny, Brennan broadly declared that laws could not be grounded in "archaic and overbroad generalizations"; nor on '"old notions' of role typing"; nor on "outdated misconceptions concerning the role of females in the home rather than in the 'marketplace and world of ideas.'" 4 9 Within these guidelines, Brennan examined the use of sex as a "classifying device." He accepted Oklahoma's assertion that its goal was to reduce incidents of driving under the influence of alcohol. But despite the statistical basis for the sex-based classification, the Court held that the law did not pass the heightened scrutiny test. In declaring the law unconstitutional, the Court

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made it clear that the new heightened scrutiny standard would be applied to laws that disadvantaged men as well as women. In his dissent, Justice William Rehnquist (now Chief Justice Rehnquist) objected to adopting the stricter standard of review, arguing it was particularly inappropriate in cases of men challenging sex-based classifications. He pointed out that the Court had justified its departure from minimal scrutiny of sex-based classifications because of the historical discrimination against women. But because there was no history of discrimination against men, Rehnquist said he would only apply minimal scrutiny to the Oklahoma law. Using the lower level of scrutiny, he found the law reasonable and constitutional. 50 After Craig, the Court reached a consensus on the proper level of scrutiny for sex-based classifications. Unwilling to equate them with racial classifications, it refused to declare sex a suspect category; yet mindful of the history of sex discrimination against women in the nation, the Court was also averse to applying minimal scrutiny to legislative classifications based on sex. Table 1.1 summarizes the approach the Court has taken in its equal protection analysis since 1976, showing the scrutiny level for each classification and the ends and means inquiry used in each. The Court has remained committed to the intermediate scrutiny language since Craig imposed the requirement that the government show that a challenged sex-based classification bears "a substantial relationship to an important governmental interest." Beginning in 1979, however, there were indications that the message within the formulaic language might be undergoing a subtle change. In a case involving a challenge to a Massachusetts veteran's preference law, Personnel Administrator of Massachusetts v. Feeney,51 a new phrase, "exceedingly persuasive justification," was inserted into the intermediate scrutiny test. In this case, the Court had to rule on a challenge to a Massachusetts law granting a permanent preference to military veterans in state employment. The issue for the Court was whether a statute that was neutral on its face (with no explicit reference to sex) was unconstitutional because it had a disproportionate impact on women, who did not have the same opportunities as men to become veterans and therefore were less able to take advantage of the benefit offered by the law.

Table 1.1

Levels of Scrutiny in Equal Protection Cases

Classification Suspect (e.g., race) Semisuspect (e.g., sex) Nonsuspect (e.g., age)

Scrutiny Strict Heightened" Minimal

Note: a. Also known as intermediate scrutiny.

Ends Compelling Important Legitimate

Means Necessarily related Substantially related Rationally related

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In upholding the Massachusetts statute, the Court relied on Washington v. Davis,52 a 1976 case in which it held that the equal protection clause only proscribes laws that intentionally discriminate on the basis of race. Under this rule, a law that has an adverse effect on the basis of race or sex falls outside the scope of equal protection. In a plurality opinion in Personnel Administrator v. Feeney, noting that the state had not overtly or covertly discriminated against women, Justice Potter Stewart observed that although public employment is not a constitutional right... [our] precedents dictate that any state law overtly or covertly designed to prefer males over females in public employment would require an exceedingly persuasive justification to withstand a constitutional challenge under the Equal Protection Clause. 53

Two years later, in Kirchberg v. Feenstra,54 a case involving a Louisiana law that allowed husbands to unilaterally dispose of property owned jointly by a married couple, the Court made it clear that the state's burden under intermediate scrutiny was to provide "an exceedingly persuasive justification" for the sex-based classification. Thus, to demonstrate that the law substantially furthered an important governmental objective, the government must provide "an exceedingly persuasive justification" for it. Then in Mississippi University for Women v. Hogan,55 which challenged the university's womenonly nursing program, Justice Sandra Day O'Connor, the newest member of the Court, formally subsumed the "exceedingly persuasive justification" language into the intermediate scrutiny test. Speaking for a 5 to 4 majority, she explained that the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an "exceedingly persuasive justification" for the classification. The burden is met only by showing at least that the classification serves "important governmental objectives and that the discriminatory means employed" are "substantially related to the achievement of those objectives."5''

Also, contrary to the wishes of some justices, Hogan specifically held that the Court would use this heightened form of scrutiny whenever a sex-based classification was challenged, regardless of the sex of the injured party. 5 7

Sex Equality Cases Between 1971 and 2001, the Court decided twenty-nine constitutional sex equality cases on equal protection grounds. 5 8 Table 1.2 illustrates that the Court struck the challenged law in fifteen cases (the pro-equality rulings) and

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allowed it to stand in fourteen (the anti-equality rulings). Ironically, despite the fact that constitutional litigation was spurred by women's rights advocates as part of the women's movement strategy for equal rights in the 1970s and 1980s, twenty-one of these cases were brought by or on behalf of men to challenge laws disadvantaging them; only eight cases were brought by or on behalf of women to challenge laws favoring men. The table also shows that the Court was more inclined to rule against men and allow the government to retain the sex-based classifications that favored women. The twenty-one cases brought by men to challenge laws disadvantaging them yielded nine rulings in their favor and twelve rulings against them, for a 43 percent success rate. Looking at the results in the cases brought by women, the table demonstrates that the Court struck the law in six of the eight cases, for a success rate of 75 Table 1.2

Constitutional Sex Equality Cases, 1971-2001

Case

Date

Reed Stanley Frontiero Kahn" Geduldig Ballard0 Wiesenfeld0 Stanton Craig" Goldfarb" Webster" Vorchheimer Fiallo" Quilloin" Orr" Parhanf Caban" Westcott Wengler" Kirchberg Michael M." Rostker" Hogan" Lehr" Mathews" J. E. B." VMI Miller" Nguyen"

1971 1972 1973 1974 1974 1975 1975 1975 1976 1977 1977 1977 1977 1978 1979 1979 1979 1979 1980 1981 1981 1981 1982 1983 1984 1994 1996 1998 2001

Issue Preferences in estate administrators Child custody and unwed fathers Dependency benefits in armed forces Tax exemptions for widowers Pregnancy benefits in disability plans Time in rank for naval officers Child care benefits for widowers Age of majority Age to purchase beer Dependency benefits for widowers Calculation of benefits for retirees Single-sex high schools Immigration preferences for unwed mothers Child adoption and unwed fathers Alimony payments Wrongful death suits and unwed fathers Child adoption and unwed fathers Unemployment benefits for fathers Workers' compensation benefits for widowers Community property Statutory rape Draft registration Single-sex nursing school Child adoptions and unwed fathers Pension benefits Jury selection procedure Single-sex military school Immigration preferences for unwed mothers Immigration preferences for unwed mothers

Notes: a. Case brought to challenge a law disadvantaging men. b. Case decided on due process and equal protection grounds.

Disposition Pro-equality Pro-equalityb Pro-equality Anti-equality Anti-equality Anti-equality Pro-equality Pro-equality Pro-equality Pro-equality Anti-equality Anti-equality Anti-equality Anti-equality Pro-equality Anti-equality Pro-equality Pro-equality Pro-equality Pro-equality Anti-equality Anti-equality Pro-equality Anti-equality Anti-equality Pro-equality Pro-equality Anti-equality Anti-equality

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percent for women litigants. Table 1.2 presents the cases and issues and indicates whether the decision promoted equal treatment of the sexes. Striking Sex-Based

Laws

The decisions in which the Burger Court struck down sex-based laws have been characterized by some as "easy cases" because they reflected outmoded stereotypical notions of proper roles for men and women. 5 9 Reed, Frontiero, and Craig were easy cases. Others that may also be considered easy were Stanley v. Illinois,60 a 1972 decision in which the Court held that unwed fathers were entitled to individualized custody hearings to determine their fitness for custody; Stanton v. Stanton,61 in 1975, in which the Court invalidated a Utah law setting twenty-one as the age of majority for men and eighteen for women because it was based on outmoded thinking about women's lifestyles; Orr v. Orr?1 decided in 1979, in which the Court struck an Alabama law in which sex was used as a proxy for need in determining alimony; Kirchberg, the 1981 case invalidating a portion of Louisiana's community property law; and Hogan, the 1982 decision in which the Court rejected the state's effort to maintain a women-only nursing program. Additionally, there were easy cases challenging traditional notions of women's dependency that had been incorporated into the Social Security Act and state workers' compensation laws: Weinberger v. Wiesenfeld,63 decided in 1975, in which the Court struck a provision of the Social Security law mandating that only widows could receive child care benefits; Califano v. Goldfarb,M a 1977 case reminiscent of Frontiero, in which the Court invalidated a provision of the Social Security Act requiring widowers to have received at least one-half their support from their deceased wives before receiving survivors' benefits; Califano v. Westcott,65 a 1979 case in which the Court held that benefits under the Aid to Families with Dependent Children-Unemployed Father program could not be restricted only to families in which the father was unemployed; and Wengler v. Druggists Mutual Insurance Company,66 decided in 1980, in which the Court struck a provision of the Missouri workers' compensation law requiring widowers to prove they had been incapacitated or dependent on their deceased wives before receiving death benefits. In deciding the easy cases, the Court served notice that laws based upon stereotypical generalizations about the roles of women and men would not satisfy the equal protection clause. Most of the laws at issue here were based on a model of a household headed by a man with a dependent wife. In striking the laws, the Court recognized that society had become more complex and that women functioned in the public sphere—as citizens and wage earners— in addition to having roles in the private sphere. Ironically, although these cases were brought as part of a rising consciousness about women's rights,

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most of the immediate beneficiaries of the rulings were men. Yet despite their disagreement at times about which sex the discrimination targeted, the opinions show that the justices were aware of the discriminatory assumptions behind the laws. Upholding Sex-Based Laws: The Compensation Cases The Court was inclined to uphold sex-based classifications that fell into either of two categories: first, compensatory laws in which the government sought to recompense women for past discrimination against them; and second, laws that the Court felt were based on real, that is, physical, differences between the sexes and not simply stereotypical generalizations. 67 There were only three relatively minor cases involving compensatory laws: Kahn v. Shevin,68 decided in 1974; Califano v. Webster,69 a 1977 case; and Heckler v. Mathews,70 decided in 1984. All involved narrow holdings, and in two, the policies were only temporary measures designed to redress prior inconsistencies in the law. Perhaps the most difficult case to explain is Kahn, an anomalous decision in light of the fact that it was handed down a year after Frontiero when the Court seemed to be on the verge of adopting strict scrutiny. The case revolved around the constitutionality of a law that entitled only widows to claim a $500 property tax exemption, an amount equaling a benefit of fifteen dollars a year. The law reflected the stereotypical image of a family with a dependent wife and breadwinner husband, but the Court upheld it, agreeing with the state that it fulfilled the rational purpose of providing a remedy for society's economic disparity between men and women. In Webster, the Court upheld a provision of the Social Security Act that sought to compensate women for generally having lower-paying jobs by allowing them to exclude more of their lower-earning years than men in computing their average monthly wage upon which their pension was based. But since Congress had eliminated this computation method in 1972, the law only applied to men who reached sixty-two before 1972. Similarly, in Mathews, the Court permitted the government to grant women a five-year exemption from a pension offset provision put into the Social Security Act in 1977 as a result of the Goldfarb ruling, when Congress repealed the dependency requirement for spousal benefits. The law was thus merely a temporary measure to avoid harm to pensioners who had relied on the pre-Goldfarb law. Although perhaps it was reasonable to uphold these policies to compensate women for their economic disadvantages, the Court did not question whether the modest benefits provided were worth the cost of allowing society to continue to draw legal distinctions between the sexes.

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Upholding Sex-Based Laws: The Physical Differences Cases The cases in which the Court upheld challenged laws based on physical differences between the sexes illustrate the contradictions within the Court's sex equality doctrine most sharply. 71 They reflect the Court's unwillingness to address legal inequality that ostensibly stemmed from physical sex characteristics. Wendy Williams calls these the "hard" cases, contrasting them with the "easy" ones that "rest on an economic model of the family that no longer predominates." In her view, these cases are hard for the Court because, in part, the challenged laws are often traceable to physiological sex differences and push the Court's willingness to abandon the separate spheres ideology to the limit. 72 The first case upholding a legislative distinction derived from physical sex differences was Geduldig v. Aiello,73 In this 1974 case, somewhat surprisingly, the Court found that a law affecting pregnancy was not based on sex differences. Applying minimal scrutiny, the Court upheld the state policy excluding pregnancy benefits in a state-operated disability insurance program. Schlesinger v. Ballard. 7 4 a 1975 decision, revolved around differences in promotion policy in the U.S. Navy. 75 The policy permitted men naval officers to serve for nine years as commissioned line officers before being discharged for lack of promotion; women were granted thirteen years. In reaching its decision, the Court failed to inquire into the legitimacy of the reasons for limiting women's opportunities in the Navy, simply accepting the government's argument that the extra time in rank was justified because limitations on women's sea duty restricted their opportunities for promotion. Similarly, in Rostker v. Goldberg 7 6 the Court addressed a military registration scheme, instituted after the Soviet invasion of Afghanistan in 1979, that was limited to nineteen- and twenty-year-old men. 7 7 Although President Jimmy Carter's authority allowed him to order men to register without congressional approval, he proposed legislation to require both men and women to register. In any event, he was required to ask Congress to appropriate even the funds necessary to carry out the registration of men. But the administration was not really prepared to send women into combat; its proposal called for two separate draft pools: one for men in combat roles, and the other for men and perhaps women to fill noncombat roles. Defending the proposal before a House Armed Services Personnel subcommittee, Bernard Rostker, head of the Selective Service, called it "a question of equity." He continued, saying, "it is a question of whether women should bear an equal risk of being called." A subcommittee member responded, "we're talking about national security; we're not talking about sociological things." 78 A large majority in the Congress supported the idea of registering men but vehemently opposed Carter's proposal to register women. Moreover, in addition to opposition from Congress and the military, groups resistant to pas-

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sage of the Equal Rights Amendment were also against the plan to register women. Shortly after it was proposed, the administration acknowledged defeat and sought only the money needed to carry out the registration of men. Defending its registration policy before the Court in Rostker, the government contended that because women were ineligible for combat, draft registration should be restricted to men. 7 9 By failing to examine the relationship between the sex-based classification and the goal of maintaining an effective defense force, as well as ignoring the fact that many registered men would also be ineligible for combat, the Court applied virtually no scrutiny to the challenged policy, deferring to the government's authority over national security. In a 6 to 3 ruling, the Court accepted the government's argument to equate registration with combat. And, as in Ballard, the Court expressed no concern over the fact that forbidding women from engaging in combat diminishes their prospects for promotion and advancement in the military. 80 Even the dissent offered no objection to the constraints on women's combat status; it simply argued that women could be registered and drafted as needed. Thus, as in Ballard, despite the fact that the military policy was brought to the courts on a claim of discrimination against men, the rulings had the perhaps unintended consequence of perpetuating discriminatory treatment against women in the military. 81 In Michael M. v. Superior Court,82 the Court assessed the constitutionality of the California statutory rape law punishing men seventeen and older for engaging in sexual intercourse with women younger than seventeen. Because only women faced the risk of pregnancy, the Court found that "a criminal sanction imposed solely on the males thus serves to roughly 'equalize' the deterrents on the sexes." 83 Instead of applying intermediate scrutiny, the Court treated the law with "great deference" and upheld it because men and women were not similarly situated with respect to the purported intent of the law, preventing teenage pregnancy. However, despite the state's claim about its purpose, the legislative history of the law indicates that it was based on traditional notions of men as aggressors and women as victims and was primarily intended to protect women's virtue. 84 Once again, the Court failed to explore the discriminatory assumptions behind the statute. Though women are far more likely than men to be victimized by rape, a sex-neutral statutory rape (or indecent liberties) law would accomplish the same purpose as the California law by punishing individuals of either sex over seventeen who engaged in inappropriate sexual conduct with individuals under seventeen. Such a law would promote equality and still accomplish the state's aim of protecting young victims from sexual predators. Consistent with its decisionmaking in cases involving physical sex differences, the Court strayed from its traditional approach to equal protection jurisprudence and applied a lesser form of scrutiny than usual to sexbased classifications.

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Unwed Fathers and Illegitimacy Another set of cases decided by the Burger Court addressed the constitutionality of laws distinguishing between unwed mothers and unwed fathers; here too, the Court was forced to decide whether the laws were legitimately based on universal physical sex differences or were impermissibly based on stereotypical assumptions about societal roles played by women and men. The challenge for the Court was to disentangle the relationship between physical sex differences and society's norms about culturally derived roles. In Fiallo v. Bell,85 decided in 1977, the Court rejected a challenge to a provision of the Immigration and Nationality Act of 1952 that granted automatic preferential immigrant status to children bom abroad of unwed citizen mothers but not to children bom abroad of unwed citizen fathers. In this and other cases involving sex-based differences in immigration law, the Court applied a lower level of scrutiny, "roughly equivalent to a rational basis test," deferring to Congress's broad power over immigration and naturalization matters. 86 Quilloin v. Walcott,87 a 1978 decision, upheld a Georgia law permitting unwed mothers, but not fathers, to veto their children's adoption. And in Parham v. Hughes,88 in 1979, the Court approved a Georgia statute permitting all unwed mothers, but only fathers who had legitimated their children under applicable state law, to sue for the wrongful death of their children. Finally, in Lehr v. Robertson,89 decided in 1983, the Court upheld a New York law denying an unwed father the right to receive prior notice of an adoption proceeding involving his child unless he had formalized his claim to paternity. In that case, Justice John Paul Stevens, announcing the majority opinion, justified the differential treatment on the grounds of mothers' greater commitment to their children, evidenced by their decision to give birth to them. In these cases, the Court accepted the state's argument that it had an interest in ensuring that fathers have relationships with their children and avoiding fraudulent lawsuits brought by men claiming to be fathers of children bom out of wedlock. 90 But because of the facts in Caban v. Mohammed91 the Court took a contrary position there, striking a New York law that permitted unwed mothers, but not fathers, to block their child's adoption simply by withholding their consent. It distinguished Caban from the other cases because the father had clearly established a relationship with his child. However, in accepting the other laws involving unwed fathers, the Court failed to probe the assumption that women are naturally more willing to assume primary responsibility for their children and that men seek to avoid responsibility if they can. This analysis shows that most Burger Court equal protection rulings were supportive of a more egalitarian society. For the most part, the decisions reveal that the Court did not permit laws emanating from traditional notions about proper roles for women and men to stand. However, it was disinclined

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to accede to challenges, brought largely by men, to laws that the justices believed were grounded in real (that is, physical) differences between women and men. In permitting laws involving physical sex differences to stand, as Ann Freedman argues, "the paradoxical—although hardly surprising result . . . has been to uphold those views about sex differences that are most entrenched in cultural beliefs and legislation, which in turn pose the greatest dangers of stereotyping." 9 2 Although history will undoubtedly debate the extent to which the Burger Court rulings on laws implicating physical sex differences marred its record of championing women's rights, it is undeniable that, despite its reluctance to put aside its cultural beliefs, the Burger Court was responsible for many victories won by the modern women's rights movement during the 1970s and early 1980s. 93 In any event, by 1984, it appeared that the Burger Court's modern equal protection jurisprudence that had begun with Reed had ground to a halt.

The Rehnquist Court A new era of Supreme Court decisionmaking emerged during the Rehnquist Court, beginning in 1986. After a hiatus of an entire decade, in 1994 the Rehnquist Court began to apply equal protection analysis to a number of sex-based laws, one of which, United States v. Virginia (VM/), 94 would cause speculation that the Court had adopted a new, higher level of scrutiny in equal protection jurisprudence. 9 5 In its first constitutional sex equality case, J. E. B. v. Alabama,96 the Rehnquist Court determined whether peremptory challenges that exclude jurors on the basis of sex violated the equal protection clause. 9 7 The defendant in a paternity and child support action argued that the state violated the equal protection clause by using its peremptory challenges to remove all men from the jury. For the 6 to 3 majority, Justice Harry Blackmun strongly reiterated that intentional discrimination based on sex "violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women." 9 8 The Court rejected the state's attempt to distinguish racial discrimination from sex discrimination in the jury selection procedure, refusing to engage in debate over whether women or racial minorities suffered more at the hands of the state. Reiterating that the "long and unfortunate history of sex discrimination" in the nation merits the use of heightened scrutiny, the Court sought to determine whether sex-based peremptory challenges were substantially related to the state's goal of ensuring a fair trial. Concluding that they were not, the Court added in a footnote that it "need not decide whether classifications based on gender are inherently

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suspect." 9 9 In reaching its conclusion, the Court rejected the state's attempt to show that because studies showed that attitudes differed by sex, it was justified in using sex as a proxy to eliminate potential juror bias. Characterizing the state's evidence largely as gender stereotyping, Blackmun noted that the equal protection clause does not allow states to base laws on a stereotypical generalization about the sexes, "even when some statistical support can be conjured up for the generalization." 1 0 0 Rehnquist dissented, arguing for the need to maintain distinctions between the scrutiny applied to race- and sexbased classifications. In his view, although racially based peremptory strikes were clearly unconstitutional, the equal protection clause permitted potential jurors to be excluded on the basis of sex.

Revisiting Intermediate Scrutiny The VMI case, perhaps the most widely discussed equal protection case of the decade, began with a complaint from a woman high school student to the U.S. Department of Justice in 1990. Filed by the attorney general, the suit charged that the state and the institution violated the equal protection clause by refusing to admit women. Proclaiming itself guided by the high court's ruling in Hogan, the district court applied intermediate scrutiny. 101 Based on testimony presented at trial, the judge found that a single-sex environment—of either sex—provides educational benefits and that by limiting its applicants to men only, VMI advanced the state's goal of diversity in its coeducational system. Establishing that single-sex education was an important state objective, he held that VMI's exclusionary admissions policy was substantially related to it; moreover, the benefits of its adversative education system, upon which much of VMI's reputation was based, would be appreciably altered if women were admitted. A three-judge panel of the Fourth Circuit Court of Appeals agreed that VMI's uniqueness justified the single-sex admissions policy and that admitting women would change the nature of the education offered at VMI. 1 0 2 In effect, the court declared that admitting women would be counterproductive because the institution would be transformed from the one they sought to attend. It nevertheless vacated the lower court's judgment, ruling that the state had not satisfactorily explained why it should be permitted to offer this type of educational benefit to men only. Refusing to order that women be admitted to VMI, however, the appellate court instead offered the state three options: stop providing funds to VMI, offer a "parallel" program for women, or admit them to VMI. The state responded by establishing a military-style training program for women at neighboring Mary Baldwin College, a private liberal arts school 30 miles from VMI. Called Virginia Women's Institute for Leadership (VWIL),

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this program would allow women to attend VMI for reserve officer training while taking leadership courses and a liberal arts curriculum at Mary Baldwin. When the case was sent back to the district court to determine whether the remedy was constitutionally satisfactory, the judge acknowledged that there were substantial differences between VMI and VWIL, but nevertheless found that they were "justified pedagogically and . . . not based on stereotyping." He added that VWIL need not be "a mirror image" of VMI and that the equal protection clause is satisfied if the two programs "achieve substantially similar outcomes." 1 0 3 On appeal again, this time the circuit court upheld the lower court, agreeing that the state had cured its equal protection violation by creating VWIL. Concerned about overstepping its judicial role, the appellate court explained that a reviewing court should defer to the legislative will and approve legislation as long as its purpose was not "pernicious." According to the court, the intermediate scrutiny analysis "begins with the limited inquiry into whether the state objective is both consistent with a legitimate governmental role and important in serving that role. Thereafter it shifts to an inquiry of heightened scrutiny into whether the classification 'substantially and directly furthers' that objective." 1 0 4 To satisfy the equality of treatment required by the Fourteenth Amendment in a law mandating separate facilities, the court must weigh the value of the benefits provided to each sex. The state's objective in providing a single-sex education was clearly not "pernicious," nor was it insidious to exclude women from VMI because admitting them would sabotage the adversative system by forcing the academy to accommodate their needs for privacy and such. Given the legitimacy of the state's purpose, the court assessed the means chosen to meet those ends and determined that establishing the separate institutions was key to fulfilling the state's purpose of providing single-sex education. But, rather than applying a "separate but equal" analysis and demanding equality in the two programs, the court merely considered whether they were "substantively comparable." Concluding that they were, the court found that the educational opportunities at the two institutions were "sufficiently comparable" to withstand the equal protection challenge. Ginsburg's opinion for the 7 to 1 Court began by enumerating the school's notable achievements and proclaiming its excellent reputation, which, not surprisingly, made it attractive to women as well as men. After reviewing the case's tortuous path through the lower courts, she summarized the two issues before the Court: first, does VMI's single-sex admissions policy deny equal protection to eligible women, and if it does so, what remedy must be provided? Citing J. E. B. and Hogan, Ginsburg characterized the scrutiny applied to sex-based classifications as "skeptical" because of the nation's long history of

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sex discrimination. She made it clear that despite this unfortunate past, strict scrutiny is not applicable in such circumstances but reiterated that the justification for such classifications must be "exceedingly persuasive." Moreover, she added, "the burden of justification is demanding and it rests entirely" on the party defending the classification. Quoting from Hogan, she continued, "the state must show 'at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives.'" Additionally, "the justification must be genuine, not hypothesized or invented post hoc in response to litigation; nor can it rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." 1 0 5 She explained that because racial differences and sex differences are not comparable, the Court reserves strict scrutiny for racial classifications only. However, she emphasized that although "physical differences between men and women are . . . enduring," they may not be used to denigrate "members of either sex or for artificial constraints on an individual's opportunity." 106 The state had argued that single-sex education provides important benefits that contribute to the diversity of the state's educational system. Ginsburg conceded that it may be advantageous for some and that diversity in a state's educational system is a legitimate goal, but she rejected the state's claim that it maintained VMI as a single-sex school to promote a policy of diversity in its educational system. 1 0 7 Ginsburg also made short shrift of the state's claim that opening VMI's adversative education system to women would require such radical modification that it would destroy the school. Conceding that most women (and many men) would probably not wish to take part in such a program, she insisted that the real issue was whether the state may deny the opportunity to those who seek it and are qualified. Warning that a state may not base policies on generalizations about the "tendencies" of the sexes, she asserted there was no evidence to show that admitting women would destroy the school's adversative system. Such predictions, all proven erroneous, were often made in the past to justify excluding women from men-only educational environments, including the national military academies. Virginia's goal of creating "citizen-soldiers" is not furthered by barring all women from its "premier citizen-solder corps." Echoing Hogan, she concluded that the state "has fallen far short of establishing the 'exceedingly persuasive justification' . . . that must be the solid base for any gender-based classification." 108 Finding the state guilty of the constitutional violation, the Court set about to determine whether the remedy—VWIL—was sufficient. Pointing to the myriad differences between the two programs, one of which was VWIL's failure to provide an education using the adversative method, Ginsburg dismissed the appellate court's measure of "sufficient comparability" as inadequate to meet the demands of the equal protection clause under heightened scrutiny.

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And because the remedy provided by the state fell far short of curing the equal protection violation, VMI must open its doors to qualified women who seek admission. The chief justice, concurring in the Court's opinion, took exception to what he believed was the majority's revision of the intermediate scrutiny test. 109 He believed the "exceedingly persuasive justification" language was merely a description of the intermediate scrutiny test, rather than a separate layer of analysis. In his view, the majority opinion heightened the level of scrutiny applied to sex-based laws. Justice Antonin Scalia was the lone dissenter. He accused the majority of elevating the level of scrutiny in applying the "exceedingly persuasive justification" test and argued that the exclusionary admissions policy would have been constitutionally permissible had the majority applied the traditional intermediate scrutiny test. Lamenting the loss of chivalry if the VMI experience were extended to women on an equal basis, he protested that the Court should have allowed VMI to retain its traditions. Back to Physical

Differences

Notwithstanding the speculation about the Court's reformulation of heightened scrutiny that arose after VMI, two subsequent decisions suggest that a majority of the Court is still reluctant to abandon its views on the relationship between physiological sex differences and societal norms about appropriate sex role behavior. Despite Ginsburg's strong condemnation of VMI's exclusion of women, she left the door open for laws based on physical differences by referring to them as "enduring" and declaring that "inherent differences" between the sexes are cause for "celebration." 110 The issue of physical sex differences that had occupied much of the Burger's Court's attention returned to the Rehnquist Court in 1998, when the Court ruled on the constitutionality of a law at the intersection of immigration policy and equal protection jurisprudence. 111 Specifically, the Court was asked to determine whether immigration law could favor children born to unwed mothers over children born to unwed fathers. Lonera Penero was born in the Philippines in 1970 to a noncitizen Filipino mother and a citizen father serving in the military. Her parents did not marry, and her father left the country before her birth and never returned; he finally recognized her as his daughter after she turned eighteen. In 1992, Penero applied for U.S. citizenship and was rejected because of her father's failure to establish paternity as specified in immigration law. After a declaration of paternity by a Texas court, she reapplied for citizenship. This time she was refused because, according to §309 of the Immigration and Nationality Act (8 U.S.C. § 1409(a)(4)), a child born abroad to an unmarried citizen father and foreign national mother must be properly legitimated—either through a vol-

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untary acknowledgment of paternity or court adjudication—before eighteen to acquire citizenship. Once the age limit passes, citizenship cannot be established through the father. Both father and daughter sued the secretary of state in federal court, seeking to have the daughter declared a citizen. They argued that because the law treated citizen fathers and citizen mothers differently, it violated his right to equal protection under the Fifth Amendment. Under the law, a child born out of wedlock on foreign soil to a citizen mother and noncitizen father is automatically considered a citizen, whereas a child born to a citizen father and noncitizen mother is not granted automatic citizenship but must comply with certain procedures. Moreover, unlike the citizen father, there is no time limit on the mother's ability to claim citizenship for her child. The Texas district court dismissed his suit for lack of standing and transferred her case to the District Court for the District of Columbia. 112 That court dismissed her suit, ruling that it could not redress her injury because federal courts do not have the power to grant citizenship. 113 Basing its opinion largely on Fiallo—the most recent sex-based immigration case—and the government's virtually unlimited authority in immigration matters, the appellate court affirmed the lower court. 114 Ruling that she had standing to bring the case, the circuit court held that the law distinguishing between unwed mothers and fathers was justified by real differences between mothers and fathers in establishing relationships with their children. Thus, the law furthered the government's interest in fostering an early connection between a foreign-born child and this nation as well as with her citizen parent. At the oral argument, the deputy solicitor general reminded the Court of the deference owed Congress in matters of immigration and naturalization. This law, he said, is grounded in the reality that mothers are always present at birth and Congress may require additional evidence of fatherhood to ensure the existence of a relationship with a parent to prevent the child from becoming dependent on society. The burden of the law is minimal, he added, allowing paternity to be easily established. 115 The Court granted certiorari to consider whether the distinction between children of unwed citizen mothers and fathers is justified. In a fractured 6 to 3 ruling, in Miller v. Albright,116 in 1998, it affirmed the lower court, but although six justices upheld the law, their opinions were split three different ways. Stevens and Rehnquist were the only justices to uphold the immigration law on substantive grounds. Stevens, who wrote the opinion, found the law constitutional because of the differences in the nature of the parent's relationship to the child. Echoing the appellate court, Stevens found that the government may rightfully conclude that men and women are not similarly situated with respect to proving the existence of a biological relationship between parent and child; the law simply requires the father to do (and gives him eighteen years in which to do it) what the mother accomplishes by giving birth. More-

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over, the government's interest in encouraging the relationship among a foreign-bom child, the nation, and the citizen parent was advanced by this law. Anxious to refute charges that the law reflected stereotypical views of parental roles, Stevens insisted instead that it reflected Congress's "solid" assumption that unwed fathers are less likely to establish relationships with their children, not that they are less likely to be good parents. Similarly, it does not assume that unwed mothers are better parents than unwed fathers but merely assumes that they will be present at birth and attend to the paperwork that establishes parentage. O'Connor and Justice Anthony Kennedy concurred with the judgment against her. And in their view, Penero did not have standing to raise her father's equal protection challenge. 117 They believed, however, that his claim might have succeeded because the law would not pass the heightened scrutiny test. Scalia and Justice Clarence Thomas also concurred in the judgment, reasoning that even if there were an equal protection violation, the Court could not confer citizenship. Dissents by Justices Stephen Breyer and David Souter and Ginsburg argued for the use of heightened scrutiny and maintained that the law did not meet this standard. Three years later, in Nguyen v. INS}18 the Court addressed the issue left unresolved in Miller. Tuan Anh Nguyen was born in Saigon to an unmarried Vietnamese-citizen mother and U.S.-citizen father. The mother abandoned him at birth, and the boy lived with the family of his father's new girlfriend in Vietnam until he was almost six. Then after Saigon fell in 1975, Nguyen joined his father in Texas, where he was granted permanent resident status. 119 When the boy was twenty-two, he pleaded guilty to two counts of sexual assault on a child and was sentenced to eight years on each count. After he had served three years, the Immigration and Naturalization Service (INS) began proceedings to deport him. He was deemed "deportable" by an immigration judge and, while his appeal before the Board of Immigration Appeals was pending, in 1998 the father used a DNA test to obtain an order of parentage from a Texas state court. The board rejected Nguyen's citizenship claim because he had not met the requirements of the law for a child born out of wedlock to a citizen father and noncitizen mother. When they appealed the board's ruling, the circuit court determined that the law was constitutional and rejected their equal protection challenge. 120 This time, the Court mustered a majority that included Kennedy, Rehnquist, Stevens, Scalia, and Thomas. Speaking for the majority, Kennedy found first that the government's interest in ensuring the existence of a biological relationship between a parent and child was important. And because parents are not similarly situated with respect to offering proof of their parentage— proof of motherhood is obviously evident at birth—Congress could require different methods of proof from each parent. Rejecting the argument that the father could satisfy the law by providing evidence of parenthood through

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DNA testing, the Court found that Congress was not obligated to select any one means to achieve its purpose. The second objective, noted the Court, was to ensure that the child and parent have an opportunity to develop a relationship with each other that consists of "real everyday ties," which, in turn, allow the child to develop ties to the United States. Because of time and distance, the father may not be with the mother during the pregnancy or present at the birth; indeed, he may not even be aware of it. In light of this, the majority believed that Congress may require that the father and child at least have an opportunity to meet to allow the relationship to develop, reasoning that the father's opportunity would arise through the process of establishing paternity and the mother's through the process of giving birth. Again, the Court rejected the argument that scientific testing is sufficient to prove paternity, believing that proof of paternity does not ensure that a relationship exists. Reacting to the dissent's criticism that the law simply reflects the stereotypical notion that women are more likely to develop relationships with their children, the majority asserted that Congress merely intended to create the circumstances in which the tie could develop, not to guarantee that it would, and that the distinction between the parents reflects "a basic biological difference" in the circumstances of birth. 121 Citing the language in VMl and Hogan, the Court found that the law easily satisfied the intermediate scrutiny test. O'Connor's dissent sharply criticized the majority's application of intermediate scrutiny, arguing that the sex-based classification is not "substantially related" to the government's objective of establishing a relationship and that a sex-neutral alternative, such as a measure of time spent with the child, was available to serve the government's objective. The dissent accused the majority of applying a heightened scrutiny that was "a stranger to our precedents." 122 Reviewing the tenets of heightened scrutiny, O'Connor noted that the crucial distinction between intermediate scrutiny and a lower form of scrutiny was the requirement that, in the former, the "fit" between the means and goals of the legislation must be substantial, whereas in the latter, the means and ends must only be "rationally related." Under minimal scrutiny, the Court does not question whether other means are available to reach the government's purpose, but under a heightened scrutiny of sex-based classifications, a reviewing court must inquire if there are sex-neutral alternatives available. The dissent also pointed to internal inconsistencies in the majority opinion. Most important, O'Connor declared that the government's interest in proving the existence of a biological relationship between a parent and child is met by another section of the statute, not at issue in the case, that required "clear and convincing evidence" of a blood relationship between the person seeking citizenship and the father. She questioned why Congress should also require proof of legitimation when the prior section of the statute already ensured, with certainty through DNA testing, that there was a relationship.

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Thus, she concluded, the challenged provision does not substantially further the government's aim, especially when, as here, a sex-neutral alternative to the law was readily available. Last, she questioned the logic of the government's claim that it merely sought proof that a relationship could develop; but even if so, she wondered how proving it before the child turned eighteen furthered that interest, especially when other forms of proof that did not depend on sex—such as requiring the parent's presence at birth or at least knowledge of it—were available to meet it. Citing Breyer's dissent in Miller, she asserted that the law was based on an impermissible stereotype. Miller and Nguyen raised questions about whether the law simply acknowledged the reality of sex-based differences with respect to pregnancy and childbirth or whether it relied on stereotypes and overbroad generalizations arising from beliefs about culturally determined sex roles. 123 According to Kennedy, the equal protection clause does not require that we "fail to acknowledge even our most basic biological differences." 124 The issue, however, is not whether the Court failed to acknowledge those differences but whether it should allow states to rely on them, which, as O'Connor charged, contradicted the Court's prior equal protection jurisprudence. O'Connor concluded by hoping that "the depth and vitality of these [equal protection] precedents will ensure that today's error remains an aberration." 125 Women's rights groups also expressed disappointment with the decision, believing that it could have provided an opportunity for the high court to renounce the use of biological sex differences to justify sex-based legal classifications. 126 Clearly, a majority of the Court chose not to do so, thus making it likely that physical sex differences will continue to play a role in structuring the nation's laws.

Conclusion For most of its history, U.S. laws have reflected society's view that sex-based classifications are permissible. Few such laws were challenged on constitutional grounds; when they were, the challenges were unsuccessful, with the courts clearly indicating their support of the prevailing sex role divisions in society. Then in 1971, in response to the litigation campaign mounted by feminists, the federal courts began to scrutinize laws based on sex more carefully, requiring the government to justify the differential treatment in the law. Over the next twenty-five years, the Court became less sympathetic to the government's arguments that such laws were within the bounds of constitutional equal protection. In 1996, in its VMI ruling, the high court appeared to be on the verge of equating sex-based classifications with laws based on race, making it virtually impossible for such laws to pass constitutional muster. However, a few years later, the Court retreated from its apparent strong opposition to sex-based clas-

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sifications, when a majority upheld a law that imposed different standards of proof of citizenship for children of citizen mothers and citizen fathers. Although many had assumed constitutional sex equality had been attained, the high court's most recent decisions indicate that biological sex differences remain an acceptable justification for laws in the United States.

Notes 1. Unlike the Supreme Court, I use the term sex instead of gender when referring to women and men; gender denotes cultural characteristics and norms, such as masculinity and femininity. Laws are typically based on sex rather than gender. 2. Ava Baron, "Feminist Legal Strategies: The Powers of Difference," in Beth B. Hess and Myra Marx Ferree, eds., Analyzing Gender (Beverly Hills: Sage Publications, 1987), p. 477. See also Frances Olsen, "The Family and the Market: A Study of Ideology and Legal Reform," Harvard Law Review 96 (1983): 1497-1578; Nadine Taub and Elizabeth M. Schneider, "Perspectives on Women's Subordination and the Role of Law," in David Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon, 1982). 3. During this time, however, married women began to be freed from some of the legal disabilities with which they were burdened. The laws relating to women's property rights developed from the English common law doctrine of coverture, in which a married woman's legal identity was subsumed into her husband's. Beginning in the middle of the nineteenth century and continuing until the early part of the twentieth century, most states abandoned the coverture doctrine by enacting Married Women's Property Acts. Under these acts, women were given the benefits of property ownership such as the right to contract, the right to sue and be sued, and the right to sell. The current prevailing view of these reforms is that the women's movement did not play a major role in getting these laws enacted and that the acts did little to alter the economic and social status of women. In any event, they were narrowly construed by most courts and did not have a major impact on women's lives. See Liane Kosaki and Susan Gluck Mezey, "Judicial Intervention in the Family: Interspousal Immunity and Civil Litigation," Women and Politics 8 (1988): 69-85; Baron, "Feminist Legal Strategies." 4. David McCullough, John Adams (New York: Simon and Schuster, 2001), pp. 104—105. According to McCullough, Abigail was partially teasing John. 5. Familiar Letters of John Adams and His Wife, Abigail Adams During the Revolution (New York, 1876), reprinted in Eve Cary and Kathleen Willert Peratis, eds., Woman and the Law (Skokie: National Textbook Company, 1977), p. 2. 6. See Suzanne M. Marilley, Woman Suffrage and the Origins of Liberal Feminism in the United States, 1820-1920 (Cambridge: Harvard University Press, 1996); Ellen Dubois, "The Radicalism of the Woman Suffrage Movement: Notes Toward the Reconstruction of Nineteenth-Century Feminism," Feminist Studies 3 (1975), reprinted in Kermit L. Hall, ed., Women, the Law, and the Constitution (New York: Garland Publishing, 1987). 7. W. William Hodes, "Women and the Constitution: Some Legal History and a New Approach to the Nineteenth Amendment," Rutgers Law Review 25 (1970): 35-37, reprinted in Hall, Women, the Law, and the Constitution. In The Ideas of the Woman Suffrage Movement, 1890-1920 (Garden City: Anchor, 1971), chaps. 1 and 7, Aileen S. Kraditor discusses how the disagreement over ratification of the Fourteenth

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Amendment led to a split in the women's rights movement in 1869. Anthony and Stanton argued that the amendment should be defeated, but Stone, speaking for a majority of women's rights advocates, believed that women should support political freedom for the former slaves, even if they were excluded from the protection offered by the amendment. 8. Nancy E. McGlen, et al. Women, Politics, and American Society, 3d ed. (New York: Longman Publishing, 2002), chap. 1. In 1890, these two groups merged to form the National American Woman Suffrage Association under the leadership of Susan B. Anthony. 9. See Jo Freeman, A Room at a Time: How Women Entered Party Politics (Lanham, Md.: Rowman and Littlefield, 2002), chap. 3 for a discussion of state suffrage movements and the battle over the Nineteenth Amendment. 10. Martha Craig Daughtrey, "Women and the Constitution: Where We Are at the End of the Century," New York University Law Review 75 (2000): 1-25. 11. 83 U.S. (16 Wall) 130(1873). 12. For a discussion of the privileges and immunities clause, see John Denvir, Democracy's Constitution: Claiming the Privileges of American Citizenship (Urbana: University of Illinois Press, 2001). 13. Bradwell, 83 U.S. at 139. 14. 83 U.S. (16 Wall) 36 (1873). 15. Bradwell, 83 U.S. at 141. Twenty years later in In re Lockwood, 154 U.S. 116 (1894), the Supreme Court also rejected Belva Lockwood's request to order her admission to the Virginia bar. 16. 88 U.S. (21 Wall) 627 (1875). 17. The Court's decision was reminiscent of Dred Scott, 60 U.S. (19 How.) 393 (1857), in which the Court denied citizenship rights to an African American man. Why the Court chose to base Minor on the thoroughly discredited Dred Scott is not known, but historian W. William Hodes suggests that it was viewing women as "second-class citizens—citizens with less legal rights than other citizens." Hodes, "Women and the Constitution," pp. 45-46; see also Joan Hoff Wilson, "The Legal Status of Women in the Late Nineteenth and Early Twentieth Centuries," Human Rights 6 (1977), reprinted in Hall, Women, the Law, and the Constitution. 18 .Minor, 88 U.S. at 629. 19. 198 U.S. 45 (1905). 20. Lochner, 198 U.S. at 53. 21. Under the "substantive due process doctrine" adopted in Lochner, the Court looked at the substance of the law to determine if it was "reasonable" or not, and its assessment of reasonableness was largely influenced by the current laissez-faire attitude that viewed regulation of working conditions as undue interference with the prerogatives of industry. The era ended in the late 1930s, when the Court began to uphold New Deal legislation. 22. 208 U.S. 412 (1908). 23. Muller, 208 U.S. at 422. 24. Olsen, "The Family and the Market," p. 1557. See also Deborah L. Rhode, "Equal Protection: Gender and Justice," in Michael W. McCann and Gerald L. Houseman, eds., Judging the Constitution: Critical Essays on Judicial Lawmaking (Glenview: Scott, Foresman, 1989). 25. Barbara Brown et al., Women's Rights and the Law (New York: Praeger Publishers, 1977), p. 209. 26. Radice v. New York, 264 U.S. 292, 294 (1924). 27. 335 U.S. 464 (1948).

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28. Goesaert, 335 U.S. at 465. 29. Some classic discussions of equal protection analysis can be found in Owen Fiss, "Groups and the Equal Protection Clause," Philosophy and Public Affairs, 5 (1976): 107-177; Gerald Gunther, "Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection," Harvard Law Review 86 (1972): 1-48; Joseph Tussman and Jacobus tenBroek, "The Equal Protection of the Laws," California Law Review 37 (1949): 341-381. 30. 323 U.S. 2 1 4 ( 1 9 4 4 ) . 31. Korematsu, 323 U.S. at 216. 32. Laurence Tribe, American Constitutional Law, 2d ed. (Mineola: Foundation Press, 1988), pp. 1451-1452. This characterization does not include cases in which the Court allows a racial classification as a remedy for racial discrimination, such as the use of busing to integrate racially segregated schools. 33. See Michael W. McCann, "Equal Protection for Social Inequality: Race and Class in Constitutional Ideology," in McCann and Houseman, Judging the Constitution. 34. 368 U.S. 57 (1961). 35. Hoyt, 368 U.S. at 59. 36. Hoyt, 368 U.S. at 61-62. 37. More than a decade after Hoyt, in Taylor v. Louisiana, 419 U.S. 522 (1975), the Court held that a Louisiana law that required women to affirmatively register for jury duty violated the Sixth Amendment; ironically, that case was brought by a man convicted of rape. 38. The ill-fated Equal Rights Amendment (ERA) would likely have transformed sex into a suspect category, although it is probable that the Court would have allowed exceptions for reasons of privacy or where unique physical differences between the sexes were involved. The ERA was first introduced in Congress in 1923 and approved in 1972; although women's rights advocates hoped it would become the Twenty-Seventh Amendment, it failed to receive the necessary votes in three-quarters of the state legislatures. See Barbara Brown et al., "The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women," Yale Law Journal 80 (1971); Mary Frances Berry, Why ERA Failed (Bloomington: Indiana University Press, 1986); Jane Mansbridge, Why We Lost the ERA (Chicago: University of Chicago Press, 1986); and Janet Boles, The Politics of the Equal Rights Amendment (New York: Longman, 1979) for discussions of the politics of the ERA ratification movement. 39. The following analysis is limited to equal protection cases; assessing other Burger Court decisions, such as those on abortion reform, tilts the balance toward a favorable view of the Court's overall record in the area of women's rights. 40. 404 U.S. 71 (1971). 41. Ginsburg argued six sex discrimination cases before the Court in the early years, succeeding in five; but despite her success in these cases, she was unable to convince the Court to adopt strict scrutiny in sex-based classifications. 42. The equal protection clause of the Fourteenth Amendment applies to states and local governmental units, not the federal government. In Boiling v. Sharpe, 347 U.S. 497 (1954), a case involving segregated schools in the District of Columbia, the Supreme Court ruled that there was an equal protection component of the due process clause of the Fifth Amendment that applied to the federal government. 43. Reed, 404 U.S. at 76-77. 4 4 . 4 1 1 U.S. 677 (1973). 45. Frontiero, 411 U.S. at 684.

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46. Stephanie M. Wildman, "The Legitimation of Sex Discrimination: A Critical Response to Supreme Court Jurisprudence," Oregon Law Review 63 (1984), pp. 2 7 8 - 2 7 9 claims that despite the plurality's assertion that it was using the strict scrutiny doctrine, the justices were not really following a strict scrutiny approach. She argues that the opinion suggests that the Court would have accepted the dependency rule if the government had shown that it saved money. 47. 429 U.S. 190(1976). 48. Craig, 429 U.S. at 197. 49. Craig, 429 U.S. at 198-199. 50. Leo Kanowitz, "'Benign' Sex Discrimination: Its Troubles and Their Cure," Hastings Law Journal 31 (1980), p. 1394, argues that "sex discrimination against males in statutes and judicial decisions has been widespread and severe." 5 1 . 4 4 2 U.S. 256 (1979). 52. 426 U.S. 229 (1976). 53. Feeney, 442 U.S. at 273 (emphasis added). 54. 450 U.S. 455 (1981). 55. 458 U.S. 718 (1982). This case is discussed in a later chapter. 56. Hogan, 458 U.S. at 724. 57. Hogan, 458 U.S. at 723. 58. This number refers only to constitutional cases involving equal protection analysis; constitutional cases affecting women's rights such as Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Hodgson v. Minnesota, 497 U.S. 417 (1990); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Davis v. Monroe, 526 U.S. 629 (1999); University of Pennsylvania v. EEOC, 493 U.S. 182 (1990); and Stenberg v. Carhart, 530 U.S. 914 (2000) concern other legal issues and are discussed in later chapters. 59. Wendy Williams, "The Equality Crisis: Some Reflections on Culture, Courts, and Feminism," Women's Rights Law Reporter 7 (1982), pp.178-180. 60. 405 U.S. 645 (1972). 61. 421 U.S. 7 (1975). 62. 440 U.S. 268 (1979). 6 3 . 4 2 0 U.S. 636 (1975). 64. 430 U.S. 199 (1977). 65. 443 U.S. 76 (1979). 66. 446 U.S. 142 (1980). 67. In Vorchheimer v. School District of Philadelphia, 430 U.S. 703 (1977), discussed in a later chapter, the Court affirmed a lower court ruling allowing a school district to maintain single-sex public high schools. 68. 416 U.S. 351 (1974). 69. 430 U.S. 313 (1977). 70. 465 U.S. 728 (1984). 71. Women's rights advocates argue that the Court's approach to the physical differences cases serve as the greatest obstacle to achieving a sex equality doctrine divorced from the separate spheres ideology. In their view, the major problem with the Court's approach to sex equality is its embrace of deferential review in physical differences cases. And, they argue, because such laws are often linked to physical sex differences, they are likely to seem reasonable. By upholding laws that reflect cultural biases, the Court validates and reinforces sex role stereotypes. See, for example, Rhode, "Equal Protection: Gender and Justice." 72. Williams, "The Equality Crisis," p. 180. 73. 417 U.S. 484 (1974). This case is discussed in a later chapter.

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74. 419 U.S. 498 (1975). 75. This case may also fit into the compensatory benefits category, but since the naval regulation stems from the restriction on women in combat, a situation arising from physical sex differences, it is primarily seen as a physical differences case. 76.453 U.S. 57 (1981). 77. The lawsuit, initially filed on grounds of sex discrimination by the ACLU during the Vietnam War, was revived following the imposition of the draft registration scheme. 78. New York Times, February 20, 1980. 79. See Cynthia Enloe, Does Khaki Become You? (Boston: South End Press, 1983). The issue of women in the military is discussed in a later chapter. 80. For a historical view of women in the military, see Linda Grant De Pauw, Battle Cries and Lullabies: Women in War from Prehistory to the Present (Norman, OK: University of Oklahoma Press, 1998). 81. See Judith Hicks Stiehm, Arms and the Enlisted Woman (Philadelphia: Temple University Press, 1989), chap. 5, for a discussion of sex-based litigation in the military. 82. 450 U.S. 464(1981). 83. Michael M„ 450 U.S. at 473. 84. Williams, "The Equality Crisis," p. 181 n.47. 85. 430 U.S. 787 (1977). 86. Katharine B. Silbaugh, "Miller v. Albright: Problems of Constitutionalization in Family Law," Boston University Law Review 79 (1999): 1144. 87. 434 U.S. 246 (1978). 88. 441 U.S. 347 (1979). 89. 463 U.S. 248 (1983). 90. In a later decision involving an unwed father and his child, Michael H. v. Gerald D., 491 U.S. 110 (1989), the Court considered a California law that presumed that a child born to a woman living with her husband was the husband's child. Decided on due process grounds, the Court upheld the law, despite evidence of a 98.07 percent probability that the plaintiff, who wanted the opportunity to prove his paternity, was the child's father. 91.441 U.S. 380 (1979). 92. Ann E. Freedman, "Sex Equality, Sex Differences, and the Supreme Court," Yale Law Journal 92 (1983): 944-945; Williams, "The Equality Crisis," pp. 182-183 n.50. 93. See Ruth Bader Ginsburg, "The Burger Court's Grapplings with Sex Discrimination," in Vincent Blasi, ed., The Burger Court: The Counter-Revolution That Wasn't (New Haven: Yale University Press, 1983). 94. 518 U.S. 515 (1996). 95. There was speculation that O'Connor had elevated the level of scrutiny in Hogan by inserting the "exceedingly persuasive justification" language into the intermediate scrutiny test. More recently, after VMI was decided, the speculation that the Court created a new form of scrutiny for sex-based classifications was renewed. See discussions in Kathryn A. Lee, "Intermediate Review 'with Teeth' in Gender Discrimination Cases: The New Standard in United States v. Virginia," Temple Political and Civil Rights Law Review 1 (1997): 221-244; David K. Bowsher, "Cracking the Code of United States v. Virginia" Duke Law Journal 48 (1998): 305-339; Elizabeth A. Douglas, "United States v. Virginia: Gender Scrutiny Under an 'Exceedingly Persuasive Justification Standard,'" Capital University Law Review 26 (1997): 173-199; and

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Jeffrey A. Barnes, "The Supreme Court's 'Exceedingly [Un]persuasive'Application of Intermediate Scrutiny in United States v. Virginia," University of Richmond Law Review 31 (1997): 523-548. 96.511 U.S. 127(1994). 97. J. E. B. was the latest in a series of cases in which the Court determined the limits of peremptory challenges—strikes against potential jurors without explanation. The Court held in Batson v. Kentucky, 476 U.S. 79 (1986), that a prosecutor's use of peremptory challenges in a racially discriminatory manner violated the equal protection clause. In subsequent cases, such as Powers v. Ohio, 499 U.S. 400 (1991); Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991); and Georgia v. McCollum, 505 U.S. 42 (1992), the Court extended Batson to cases involving white defendants, cases involving the use of peremptory challenges by defendants, and civil cases. 9 8 . J . E . B„ 511 U.S. at 130-131. 99. J. E. B., 511 U.S. at 137 n.6. 100. J. E. B., 511 U.S. at 140 n . l l . 101. United States v. Virginia, 766 F. Supp. 1407 (W.D. Va. 1991). 102. United States v. Virginia, 976 F.2d 890 (4th Cir.1992). 103. United States v. Virginia, 852 F. Supp. 471, 481 (W.D. Va. 1994). 104. United States v. Virginia, 44 F.3d 1229, 1237 (4th Cir. 1995). 105. VMI, 518 U.S. at 532-533. 106. VMI, 518 U.S. at 533. 107. Ginsburg stopped just short of accusing the state of manufacturing this goal as a post hoc invention for litigation purposes. 108. VMI, 518 U.S. at 546, quoting Hogan, 458 U.S. at 731. In "United States v. Virginia and Our Evolving 'Constitution': Playing Peek-a-boo with the Standard of Scrutiny for Sex-Based Classifications," Case Western Reserve Law Review 47 (1997): 1121-1155, Steven A. Delchin argues that Ginsburg's use of this language instead of the traditional intermediate scrutiny language signifies a change in the Court's position on sex-based classifications. 109. According to Philippa Strum, Ginsburg herself later acknowledged that "the line between strict scrutiny and intermediate scrutiny was now blurred" as a result of the VMI case. See Strum, Women in the Barracks: The VMI Case and Equal Rights (Lawrence, KS: University of Kansas Press, 2002), p. 287. 110. In "A Postscript on VMI," American University Journal of Gender and the Law 6 (1997): 59-64, Elizabeth M. Schneider notes that the Court's meaning here is very obscure. 111. Debra L. Satinoff discusses the contradiction between the Court's review of immigration laws, which receive almost no scrutiny, and its review of sex-based laws, which are supposed to be analyzed with heightened scrutiny. The Court seems to have resolved this conflict by relying on one standard or the other and not attempting to reconcile the two. See Satinoff, "Sex-Based Discrimination in U.S. Immigration Law: The High Court's Lost Opportunity to Bridge the Gap Between What We Say and What We Do," American University Law Review 47 (1998): 1353-1392. 112. Miller v. Christopher, C.A. No. 6: 93 CV 39 (E.D. Tex. June 2, 1993). 113. Miller v. Christopher, 870 F. Supp. 1 (D.D.C. 1994). 114. Miller v. Christopher, 96 F.3d 1467 (D.C. Cir. 1996). 115. Washington Post, November 5, 1997. 116. 523 U.S. 420 (1998). 117. None of the nine justices believed that the daughter's rights were violated. O'Connor and Kennedy rejected her standing argument because the statute distin-

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guished on the basis of the parents' sex, not the children's. Rehnquist, Stevens, and the three dissenters believed she had standing to bring a third-party claim on her father's behalf; Silbaugh, "Miller v. Albright," p. 1148. 118. 533 U.S. 53 (2001). 119. Houston Chronicle, June 12, 2001. 120. Nguyen v. INS, 208 F.3d 528 (5th Cir. 2000). Because the father joined his son in this suit, standing was not an issue here, as in Miller. The presence of the father as a plaintiff in the case determined that the sex-based classification in the statute would be subjected to heightened scrutiny. See Clay M. West, "Nguyen v. INS: Is Sex Really More Important Now?" Yale Law and Policy Review 19 (2001): 525-537. 121. Nguyen, 533 U.S. at 73. 122. Nguyen, 533 U.S. at 74. 123. Whether it should be permissible to base legal classifications on pregnancy or childbirth is discussed in a later chapter. 124. Nguyen, 533 U.S. at 73. 125. Nguyen, 533 U.S. at 97. 126. Christian Science Monitor, June 13, 2001.

2 Achieving Educational Equity

I

N BROWN

V. BOARD

OF EDUCATION,1

THE SUPREME COURT HELD IT WAS

unconstitutional to segregate public schools on the basis of race because separating children "from others of similar age and qualifications solely because of their race generates a feeling of inferiority . . . that may affect their hearts and minds in a way unlikely ever to be undone." 2 Over the past thirty years, the federal courts have largely supported the abolition of single-sex public schools but have stopped short of declaring, as the Supreme Court did in Brown, that "separate educational facilities are inherently unconstitutional." 3 However, although the courts have not echoed Brown and placed an outright ban on sex-segregated education in public schools, it is questionable if singlesex public educational facilities would survive constitutional scrutiny today. Nevertheless, despite the apparent demise of single-sex education, there is still evidence of inequality between the sexes in the nation's schools. A much-publicized study, commissioned by the American Association of University Women (AAUW) and released in 1992, concluded that on the whole, girls were treated as "second-class citizens" in U.S. classrooms. 4 Calling attention to the need to place the issue of gender equity on the national policymaking agenda, the study cited evidence of gender bias in the schools, including stereotyped curricula content, girls answering fewer questions and getting called on less, and an increase in incidents of sexual harassment of girls. Two results of this inequity, the report concluded, were that girls' selfesteem was being undermined and they were discouraged from pursuing nontraditional careers like science and math. The report also emphasized that African American girls were even more likely to be ignored by teachers than Caucasian girls. In part as a result of this study, a number of single-sex public and private schools were established—especially in the inner cities—with some aimed at 39

40

ELUSIVE EQUALITY

providing a single-race and single-sex educational environment. 5 Thus, ironically, as the federal courts were deliberating the future of VMI's single-sex admissions policy, single-sex education was flourishing in public school settings in Baltimore, New York, Chicago, Milwaukee, and Miami. The movement toward single-sex education was accompanied by reports of raised confidence levels and increased risk taking among girls; studies showed that single-sex education was especially beneficial for African American and Hispanic girls. 6 Critics of the schools argued that they were discriminatory and violated federal law. Moreover, they claimed, such schools lent credence to the stereotypical notion that girls are less capable of learning science and math than boys and require special attention to enable them to achieve. Perhaps the most well known of the single-sex public schools was New York City's Young Women's Leadership School, which opened its doors in East Harlem in 1996. 7 Echoing groups such as the New York City Civil Liberties Union and the New York chapter of the National Organization for Women (NOW), which protested the formation of these schools, the Office of Civil Rights (OCR) of the Department of Education (DOE) charged that federal law required the school district to provide similar facilities for boys. 8 Then in 1998, the AAUW released another report on gender equity in education, concluding that single-sex education was not the magic potion for gender inequity in education. 9 The news release accompanying the report explained that there was "no evidence in general that single-sex education works or is better for girls than coeducation." 10 The report acknowledged the studies showing the increased risk taking and self-confidence manifested by girls in single-sex classrooms but indicated that girls' achievement level overall was not affected by single-sex schooling; it found as well that single-sex classes reinforced gender stereotypes and often promoted sexism. The researchers insisted that the benefits were achieved by sound education practices, such as reductions in class size. Although the debate continues over the benefits of single-sex education, for the most part, single-sex schools and classrooms are atypical and are primarily located in private education systems, where they are, of course, permitted by federal law.

Sex Segregation and Federal Court Decisions Women took their battle for equality in education to the federal courts in 1970, claiming that separate admissions policies and disparate admissions standards violated their constitutional rights. Table 2.1 presents the significant federal court decisions on the constitutionality of sex segregation in public education over the last several decades.

ACHIEVING EDUCATIONAL EQUITY

Table 2.1

41

Educational Equity Cases, 1970-1996

Case

Date

Kirstein"

1970

Williams"

1970

Bray" Berkelman" Vorchheimer

1972 1974 1977

Hogan

1982

VMI

1996

Issue Single-sex admissions policy in university Single-sex admissions policy in colleges Disparate admissions standards Disparate admissions standards Single-sex admissions policy in high schools Single-sex admissions policy in school Single-sex admissions policy in school

Disposition state

Anti-equality

state

Anti-equality

public

Pro-equality Pro-equality Anti-equality

nursing

Pro-equality

military

Pro-equality

Noie: a. Lower court ruling.

Disparate Admissions

Standards

To maintain a balance between the sexes in public schools, districts established disparate admissions standards, requiring higher standardized test scores and better grades f r o m the w o m e n applicants. In two early 1970s cases, the lower federal courts f o u n d such policies unconstitutional. In Bray v. Lee,u a 1972 decision, a Massachusetts federal district court upheld a challenge against the Boston school district, ruling that Girls Latin could not impose higher admissions standards than Boys Latin. The city argued that its admissions policy was based on the n u m b e r of seats available in each school, but the court found that the higher admissions standards for girls denied them equal protection and ordered a uniform score for boys and girls. Then, in 1974, in Berkelman v. San Francisco Unified School District,12 a discriminatory admissions policy was challenged at the prestigious Lovell High School in San Francisco. Because it was committed to a 50-50 boy-togirl ratio, boys were accepted with a grade point average of 3.25; girls were required to have a 3.50 grade point average. The court rejected the city's argument that its policy was justified because the numerical balance between the sexes improved the educational environment; nor did it accept the explanation that the policy was legitimate because girls were academically superior in their early years and boys needed time to achieve their level of skill.

Single-Sex

Admissions

Policies

Because these cases involved inequality of benefits and the schools could not justify them with a "separate but e q u a l " defense, the courts were able to avoid

42

ELUSIVE E Q U A L I T Y

addressing the underlying issue of whether separate but equal facilities were constitutionally permissible. Therefore, although these cases furthered sex equality in public education, they did not resolve the constitutional status of single-sex education in the public schools. When the lower federal courts considered the separate but equal issue squarely, they initially accepted separation by sex at both the high school and college levels. 13 And although the Supreme Court did not issue formal opinions in these cases, it declined to reverse the lower court rulings, perhaps indicating its satisfaction with the continued existence of separate but equal as applied to sex in public schools. The first major challenge to a single-sex admissions policy was directed at the University of Virginia in Kir stein v. Rector and Visitors of the University of Virginia}* in a suit brought by four women who were denied admission to the main campus at Charlottesville, the most prestigious in the state system. With the district court urging settlement of the case, the Board of Visitors agreed to implement a three-year plan during which women students would be phased into the Charlottesville campus. Under this plan, by 1972, women would be admitted on an equal basis with men, with no limitations on the number allowed to matriculate. However, although the plaintiffs had asked the court to abolish single-sex education throughout the entire state system, the court refused, in part because it was unwilling to require women to be admitted to the state military academy, VMI. Then in Williams v. McNair,15 there was a challenge to South Carolina's system of higher education, which, with two exceptions, was coeducational. The Citadel was a military academy restricted to men, and Winthrop College was reserved for "girls." Winthrop was established as a first-class institution for the thorough education of the white girls of this State, the main object of which shall be . . . to give instruction to young women in stenography, typewriting, telegraphy, bookkeeping, drawing . . . designing, engraving, sewing, dressmaking, millinery, art, needlework, cooking, housekeeping and such other industrial arts as may be suitable to their sex and conducive to their support and usefulness.16 The suit was brought by a man seeking admission to Winthrop. Conceding that there was a growing national trend toward coeducational colleges, the district court upheld the state's restrictive admissions policy, reasoning that "the Constitution does not require that a classification 'keep abreast of the latest' in educational opinion, it only demands that the discrimination not be wholly wanting in reason." 17 Following the minimal scrutiny analysis used by the Supreme Court in sex-based decisionmaking at the time, the court found nothing arbitrary or irrational in having single-sex schools and no Fourteenth Amendment violation in restricting Winthrop College to women only. 18 Four years later, in 1974, Susan Lynn Vorchheimer, a Philadelphia teenager, challenged the admissions policies in the city's two "academic" high

ACHIEVING EDUCATIONAL EQUITY

43

schools: Central High for boys and Girls High. Vorchheimer, who applied to Central High because she believed it provided a richer educational experience, was denied admission solely because of her sex. In a 2 to 1 vote, the Court of Appeals for the Third Circuit upheld the policy, explaining that the differences between the sexes "may, in limited circumstances, justify disparity in law."19 The court believed that both sexes were equally affected by the sex-segregated school system and, because there was evidence that adolescents benefited from single-sex high schools, both sexes could possibly be advantaged. Applying minimal scrutiny, the court found that the city's policy was rational and that Vorchheimer's desire to attend Central High was not a sufficient reason to alter it. 20 A strong dissent by the minority judge drew comparisons between the majority opinion and Plessy v. Ferguson,21 in which the Supreme Court formulated the separate but equal doctrine for racial classifications. Outraged at the majority's decision, he said he "was under the distinct impression" that separate but equal was no longer acceptable—especially in public education. 22 Notwithstanding his plea to abandon the discredited separate but equal doctrine, the Supreme Court affirmed the court below.23 Thus, two decades after Brown, the highest court in the land refused to repudiate the separate but equal doctrine for men and women. Separate but Equal Is Attacked The Supreme Court addressed the issue of a restrictive admissions policy in the nursing program in Mississippi University for Women v. Hogan in 1982.24 The university, the oldest public women's college in the United States, had established the School of Nursing in 1971, admitting only women but allowing men to audit classes. The school's charter defined its purpose, essentially unchanged since its founding in 1884, as the moral and intellectual achievement of the girls of the state by the maintenance of a first-class institution for their education in the arts and sciences, for their training in normal school methods and kindergarten, for their instruction in bookkeeping, photography, stenography, telegraphy, and typewriting, and in designing, drawing, engraving, and painting, and their industrial application, and for their instruction in fancy, general and practical needlework, and in such other industrial branches as experience, from time to time, shall suggest as necessary or proper to fit them for the practical affairs of life. 25

When Joe Hogan, a registered nurse who sought admission to the nursing program of Mississippi University for Women (MUW), was rejected despite his qualifications, he filed suit. MUW's founding principles were similar to those of Winthrop College. But unlike South Carolina, which maintained sep-

44

ELUSIVE EQUALITY

arate—and theoretically equal—educational facilities, MUW was the only single-sex school in the state. For that reason, the Supreme Court was able to avoid resolving the separate but equal issue and limit its decision to the narrow question of whether men should be admitted to the nursing program. In contrast to its far-reaching opinion in Brown, where the issue was met headon, the Court explained in a footnote that it was "not faced with the question of whether States can provide 'separate but equal' undergraduate institutions for males and females." 2 6 The state argued that its restrictive admissions policy was intended to compensate women for past discrimination. Speaking for a 5 to 4 majority, O'Connor ruled that the nursing program must be open to men, pointing out that there was no evidence that women were victims of discrimination in the nursing field. She instructed the state that a discriminatory policy may only be justified by showing that "the members of the gender benefitted by the classification actually suffer a disadvantage related to the classification." 27 Actually, O'Connor noted, the policy served the opposite goal of maintaining the stereotypical image of nursing as a woman's occupation. Mississippi was also unable to show that its policy was substantially related to its compensatory goal. With men admitted to the classroom as auditors, MUW was unable to claim it provided women nursing students with a classroom all to themselves. Because the decision was narrowly focused, it left important issues unresolved, among them whether challenges to other MUW single-sex programs would succeed. Hogan raised almost as many questions as it answered and left many dissatisfied with the result. Some are critical because O'Connor's opinion failed to address (and overturn) the separate but equal doctrine and indeed seemed to leave open the possibility that if a state offers an "exceedingly persuasive justification" for a single-sex admission policy, one that compensates for "a disadvantage" adhering to one sex, the policy might be constitutionally valid. 28 Others are distressed because the Court's equal treatment approach failed to recognize that a single-sex school may serve women's needs better than a coeducational school by empowering them and allowing them to assume nontraditional leadership roles. 29 Echoing this view in his dissent, Justice Lewis Powell argued that the equal protection clause had never before been invoked to restrict women's opportunities. In his view, the state should be able to consider women's differing educational needs because identity of treatment is not a prerequisite to equality. Speaking for himself and Rehnquist, Powell maintained that MUW's admissions policy was constitutional because Mississippi was simply offering women another alternative. Acknowledging that coeducational institutions are more common, he defended the legitimacy of single-sex schools and believed that the Court should defer to the views of MUW students and alumni who wished to continue the restrictive admissions policy.

ACHIEVING EDUCATIONAL EQUITY

45

Although Hogan contained strong language about sex-based stereotypes and put public institutions on notice that their admissions policies might be inconsistent with the Constitution, the separate but equal doctrine survived. The Court's continued acceptance of the separate but equal doctrine is troubling because "in light of the many vestiges of sexism which remain in American society, it is difficult for a fair-minded observer to conclude that an allgirl school can be separate but equal to an all-boy school." 3 0 A number of scholars argue that like racially separate education, single-sex schools stem from prejudicial and stereotypical notions about women and should be relegated to the past. 3 1 Military

Schools

With two exceptions, single-sex education in the nation's military colleges ended when West Point and the Naval Academy began to admit women in 1976. The exceptions, VMI and The Citadel, were the last men-only military schools in the nation that refused to admit women on an equal basis with men, claiming their presence would undermine the institutional mission of training men for the military. 3 2 As one observer noted about VMI, however, "what really mattered to VMI was its cult of masculinity in a world sealed from the presence of women who might either meet or undermine the masculine standard, in each case threatening male privilege." 3 3 The six-year battle to win admission for women to these men-only military academies began with the suit against VMI in 1990. The state argued that VMI, established by the Virginia Legislature in 1839, would lose its distinctiveness and that its educational mission would be destroyed if it were forced to admit women. Following a six-day trial, in June 1991, federal court judge Jackson L. Kiser ruled for the state, holding that to allow women into VMI would significantly impair the educational environment. Concluding his opinion, Kiser stated that "VMI truly marches to the beat of a different drummer, and I will permit it to continue to do so." 3 4 After the Fourth Circuit sent the case back to the lower court to allow Kiser to determine whether the state's chosen remedy was constitutionally acceptable, he ruled in May 1994 that although the two programs were substantially different, they satisfied equal protection requirements. He wrote: "If VMI marches to the beat of a drum, then Mary Baldwin marches to the melody of a fife, and when the march is over, both will have arrived at the same destination." 3 5 When his ruling was again appealed, this time the circuit court upheld it, agreeing that the state's remedy was adequate. In June 1996, the Supreme Court found that the separate sex admissions policy violated the equal protection clause and held that the state failed to remedy the constitutional violation by creating V W I L . 3 6 In comparing the

46

ELUSIVE EQUALITY

two programs, the majority noted that the women's program was "different in kind from VMI and unequal in both tangible and intangible facilities." 37 The program at VWIL was based on cooperation and self-esteem; it lacked the rigor of the military training available at VMI, including barracks life, uniforms, communal eating arrangements, and leadership development. Moreover, its academic standards, curriculum, and financial resources were inferior to those at VMI. Looking to the past, the Court analogized the establishment of VWIL to the allegedly "separate but equal" law school for African Americans created by the University of Texas, a solution found unacceptable by the high court in its 1950 ruling in Sweatt v. Painter,38 By insisting on "substantial equality" in both tangible and intangible factors, the Court may have moved closer to repudiating the concept of separate but equal on the basis of sex. But by stressing the inequality in these programs, the Court left open the question of how it would react in cases in which the state is able to present evidence of the equality of the separate facilities. The Citadel case began in 1993, when Shannon Faulkner sued the university for rejecting her application for admission, charging that The Citadel's cadet corps, restricted to men only, was unconstitutional. In August, a federal judge ordered her admission but barred her from participating in the corps of cadets. Following numerous legal delays, she was finally permitted to enroll in January 1994—the first woman ever to sit in regular day classes at The Citadel. After a trial in July 1994, the same federal judge ordered Faulkner into the corps of cadets, but because of appeals and other legal challenges, during which time the state made a half-hearted attempt at creating an alternative program such as VWIL, Faulkner did not become a member of the corps until August 1995. About a week after she became the first woman cadet at The Citadel, Faulkner unexpectedly resigned—with about thirty other new cadets. Citing ill health and emotional stress, she explained that the lengthy battle with its two and a half years of stress had "all crashed in" on her during the week. 39 Another plaintiff was substituted in the suit against The Citadel, but the action was placed on hold while the case against VMI was on appeal before the high court. On the day that the Supreme Court announced that VMI would have to admit women or forfeit state funding, The Citadel declared it would immediately begin to accept women; four became part of the corps of cadets in August 1996. In contrast, VMI alumni began to explore the possibility of amassing the millions of dollars necessary to maintain it as a private institution. Three months after the Court's ruling on September 21, 1996, in a 9 to 8 vote, VMI's Board of Visitors finally abandoned its efforts and decided to admit women in the coming semester. 40 Ironically, despite VMI's insistence throughout the litigation that it would have to undergo massive changes to accommodate the presence of women, it made only slight alterations. It

ACHIEVING EDUCATIONAL EQUITY

47

allowed women to have slightly longer hair (although about the same as upperclassmen), added a skirt to the official uniform, and modified the bathrooms to afford each sex some privacy. In contrast, The Citadel substantially changed the environment for its students, adapting its regulations as well as its physical structure for the presence of women. 4 1

Title IX and Sex Equality In 1972, Congress responded to the issue of sexual inequality in education by enacting Title IX of the Education Amendments. The essence of Title IX states that "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." The law came about largely through the efforts of House Democrat Edith Green of Oregon, chair of the Special Education Subcommittee, and Senator Birch Bayh, a Democrat from Indiana. 42 Green's bill to aid higher education included provisions barring sex discrimination; hearings were held during June and July 1970, but the bill never cleared the subcommittee. In 1971, similar bills were introduced in the House, and after battles over the question of restrictive admissions policies, a committee-approved bill was eventually sent to the full House. Although weakened by amendments, it was approved late in 1971. During that summer, when the Senate was considering a higher education bill without a sex discrimination provision, Bayh unsuccessfully introduced an amendment to prohibit sex discrimination in higher education. The House-approved bill, which included the sex discrimination provisions, was sent to the Senate Committee, and the version that passed out of committee, similar to the earlier Senate version, did not contain a sex discrimination provision. Then in 1972, Bayh's proposed amendment banning sex discrimination was approved by the Senate; in part, it gained acceptance because it exempted separate admissions policies in private undergraduate colleges. During conference committee consideration of the bill, the conferees were forced to conciliate 250 differences between the two versions, only eleven of which concerned sex discrimination. Because conference debate was primarily centered on court-ordered busing for racial integration, little attention was paid to the sex discrimination provisions, which were approved with little discussion. The conference version passed both houses, and the bill was signed by President Richard Nixon on June 23, 1972. Title IX banned discrimination in admissions to all vocational, professional, and graduate schools and most public undergraduate schools. According to Secretary of Health, Education, and Welfare (HEW) Casper Wein-

48

ELUSIVE EQUALITY

berger, the statute covered 16,000 public school systems and nearly 2,700 postsecondary institutions. However, although it represented an important and far-reaching step toward equal educational opportunity, it fell short of a comprehensive attack on sex discrimination in education, leaving major gaps in admissions and athletics. Single-sex admissions remained legal in most elementary and secondary schools, private undergraduate schools, and public undergraduate institutions "that traditionally and continually" from their inception only admitted students of one sex. However, the single-sex exception did not permit these institutions to discriminate against students already enrolled. The law also excluded two classes of institutions from the reach of Title IX: schools with a "primary purpose" of training students for the military services or merchant marine and religious schools "to the extent that the provisions of Title IX would be inconsistent with the basic religious tenets of the school." Two years later, Congress amended Title IX to exempt single-sex groups such as sororities and fraternities; Young Men's Christian Associations and Young Women's Christian Associations; and the Boy Scouts, Girl Scouts, and Campfire Girls. In 1976, further amendments restored father-son and mother-daughter activities as well as scholarships awarded to beauty contest winners. Despite their importance to the principle of sex equality, the sex discrimination provisions received little attention during passage of the Education Amendments of 1972. Moreover, because of its scant legislative history, there was little to guide the courts on legislative intent. However, notwithstanding the brief debate on the Senate floor and the remarks of Senator Bayh, there are a few clues to Congress's design. Title IX is modeled after the identically worded first section of Title VI of the 1964 Civil Rights Act, and to the extent that they discussed it, members of Congress indicated their intent to have the two laws similarly interpreted. 43 Title IX Regulations Because Congress writes in broad strokes, administrative agencies have responsibility for translating the intent of Congress into specific policy through regulations. Reflecting the agency's interpretation of the statute, regulations have the force of law until challenged in court. Although courts often follow the agency's lead in interpreting the statute, they are not bound to do so and can strike regulations on the grounds that they do not express legislative intent. The proposed Title IX regulations, issued by HEW in June 1974, unleashed a flurry of activity by supporters and opponents of the sex equality provisions of Title IX during the four-month public comment period. The coalition known as the Education Task Force, which included such organizations as the National Student Lobby, Project on Equal Education Rights, and

ACHIEVING EDUCATIONAL EQUITY

49

the Project on the Status and Education of Women, led the fight for an expanded interpretation of the statute. 44 Their primary opposition came from the National Collegiate Athletic Association and the American Football Coaches Association. 45 That HEW received nearly 10,000 comments during the public comment period from June to October 1974 indicates the intensity surrounding the debate. Because Congress had authority to reject the regulations, some of the lobbying efforts—especially over athletics—were directed at it as well. 46 The final regulations, signed by President Gerald Ford on July 2, 1975, and made effective a few weeks later, were weakened during the long lobbying process, despite the energy expended by the women's groups. The Title IX regulations, written by OCR, encompassed physical education classes; course offerings, such as shop and home economics; extracurricular activities; financial aid; and counseling. Although they expressed concern about sex stereotyping in textbooks, because of the possible conflict with First Amendment guarantees of freedom of expression, the regulations did not include restrictions on books and other curricular materials. 47 Title IX and Athletics The stellar performances of the U.S. women athletes in the 1996 Centennial Olympics in Atlanta were widely attributed to the influence of Title IX in the lives of this generation of women. Almost one-half of the gold medals won by the United States were won by women—as individuals or team members. Individual women won gold as swimmers, runners, gymnasts, and tennis players; what was especially exciting was the fact that, for the first time, they succeeded in the highly competitive team sports of basketball, softball, and soccer. 48 The issue of intercollegiate athletics had been controversial from the outset; it received the most attention during the public comment period and was the object of the greatest interest during the battle over the regulations. 49 The final regulations contained many contradictions, undoubtedly resulting from compromises necessitated by the conflict over their promulgation. 50 Although the rules generally barred schools from having separate teams in the same sport on the basis of sex, there were two major exceptions. First, separate sports teams were permitted where selection was based on competitive skill. Second, single-sex teams were permitted in sports requiring body contact among the players. Such sports include wrestling, boxing, football, basketball, ice hockey, and rugby. Similarly, the regulations required "equal athletic opportunity for members of both sexes," yet they allowed differential spending on the basis of sex because "unequal aggregate expenditures" were not considered a failure to comply with the regulations. When the regulations were attacked by women's groups, HEW proposed a new policy interpretation requiring equal per capita

50

ELUSIVE E Q U A L I T Y

spending in such areas as scholarships, recruitment, and equipment. HEW also tried to address the effects of past discrimination against women by asking institutions to encourage women to participate in sports, to increase the number of sports offered to women, and to raise the level of awareness of women's sports. After criticism was leveled at it from the other side, HEW released a weakened version, calling only for equal per capita funding in scholarships. Equal funding was not required in other areas; equivalency became the new watchword, and the requirement for redressing past discrimination became less burdensome for college athletic programs. 5 1 Amid continuing debate over sex equality in sports, HEW issued a policy interpretation in 1979 specifying three ways for an institution to show it was in compliance with the law: first, by providing athletic opportunities in "substantially" equal proportion to the overall enrollment of women and men; second, by demonstrating a "continuing history of expansion" in athletic programs for the underrepresented sex (most likely women); or third, by showing it has "fully and effectively accommodated" the "interests and abilities" of the underrepreresented sex. 5 2 A subsequent clarification issued in 1996 by DOE, which explained that compliance with any of the three parts of the test satisfies Title IX, has led to further controversy over the enforcement of Title IX on college campuses because DOE had explained that it would count the actual number of athletes in determining whether the proportionality test was met. In January 2002, the National Wrestling Coaches Association, the National Coalition for Athletics Equity, and three college athletic programs filed suit against DOE, charging that the 1996 policy guidance statement is discriminatory because it leads to colleges and universities eliminating men's athletic programs such as wrestling to meet the proportionality requirement. 5 3 A further indication of the uneasy status of Title IX was the press release issued by the National Women's Law Center in Washington, D.C., on June 18, 2002, to commemorate the upcoming thirtieth anniversary of Title IX. 5 4 Rather than celebrating the victories, the statement condemned the failure of as many as thirty colleges and universities in twenty-four states to give women a fair share of the athletic scholarships offered at these institutions. According to the report and based on data reported to the federal government, women were being shortchanged by a total of at least $6.5 million, with women athletes receiving an average of $2,131 less per year than the men athletes.

Title IX Litigation As Table 2.2 indicates, the federal courts have been moderately supportive of equal rights principles in adjudicating Title IX cases.

ACHIEVING EDUCATIONAL EQUITY

Table 2.2

51

Title IX Cases, 1979-1999

Case

Date

Issue

Disposition

Cannon Lieberman" North Häven Grove City Pfeiffer" Franklin Rowinsky" Gebser

1979 1981 1982 1984 1990 1992 1996 1998

Pro-equality Anti-equality Pro-equality Anti-equality Pro-equality Pro-equality Anti-equality Anti-equality

Davis

1999

Right to sue Availability of damages Application to employees Program specificity and indirect aid Availability of damages Availability of damages School's liability for peer harassment School's liability for employee harassment School's liability for peer harassment

Pro-equality

Note: a. Lower court ruling.

Title IX and School

Employees

H E W regulations included far-reaching prohibitions on employment discrimination in recruitment, hiring, compensation, and fringe benefits, including maternity leave and pregnancy disability. Additionally, the regulations banned employment discrimination on the basis of marital and parental status. Employment discrimination against women constituted the largest number of complaints to HEW—almost 40 percent—between 1972 and 1976, and a June 1979 survey of complaints pending with HEW showed that more than 55 percent charged employment discrimination. 55 When HEW began to investigate these complaints, the targeted schools turned to the federal courts, arguing that Title IX did not govern conditions of employment. With the exception of the Second Circuit, most federal courts agreed with the schools and held that the employment regulations were beyond the scope of Title IX. 5 6 The Supreme Court resolved the conflict among the circuits in North Haven Board of Education v. Bell,51 a 1982 decision. In a 6 to 3 vote, the high court agreed with the Second Circuit that employment policies were a proper subject of inquiry for HEW. Speaking for the Court, Blackmun observed that it was more plausible to interpret the ban on discrimination against any "person" to include rather than exclude employees. In the absence of committee reports to explain legislative intent, he looked to the Senate floor debate and statements by Birch Bayh that clearly revealed his intent to include employment practices within Title IX. When he had introduced the amendment, Bayh explained that it would "cover such crucial aspects as admissions, procedures, scholarships, and faculty employment." 5 8 Based on its analysis of the bill's legislative history, the Supreme Court agreed with the Second Circuit that the regulations were consistent with the legislative intent of Title IX.

52

ELUSIVE EQUALITY

Narrowing the Reach of Title IX North Haven ended with a discussion about how broadly to interpret the word program in Title IX. The employment discrimination complaint was put on hold, and the case remanded to the lower court with instructions to specify the parameters of the federally funded program in the North Haven school system. In 1984, in Grove City College v. Bell,59 the Court addressed the issue of whether indirect aid to students triggered Title IX coverage of the institution and whether the law applied only to the program receiving the federal aid or to the entire institution. Grove City was a private, coeducational liberal arts college with approximately 2,200 students in western Pennsylvania. The college received federal financial aid only indirectly through student financial assistance in the Basic Education Opportunity Grant (BEOG) or Guaranteed Student Loan (GSL) programs, with almost one-quarter of its students assisted through these programs. The 1975 Title IX regulations classified educational institutions with students receiving BEOG funds as recipients of federal financial assistance. 60 When Grove City College refused to file an Assurance of Compliance as required by the Title IX regulations, DOE announced its intention to cut off funds. The college argued that since it did not receive federal funds, it was not a program or activity within the meaning of the law and sued to prevent DOE from terminating student aid. With Justice Byron White speaking for the majority, the Court held that indirect aid to students subjected the college to Title IX. He said there was no evidence in either the language, legislative intent, or postenactment history to suggest that Congress intended to distinguish between direct and indirect aid. "We have little trouble concluding," he said, "that Title IX coverage is not foreclosed because federal funds are granted to Grove City's students rather than directly to one of the College's educational programs." 6 1 Grove City College also contended that if Title IX were applicable, its coverage was limited to the program receiving the aid—in this case, the financial aid office. It urged the Supreme Court to reverse the lower court's ruling that federal aid to students through the BEOG program subjected all programs within Grove City College to Title IX. Here, the majority agreed with Grove City that Congress intended the "program or activity" language of Title IX to be narrowly interpreted, accepting the college's argument that financial aid to students did not trigger institutionwide coverage of Title IX. The high court rejected the government's broad interpretation of Title IX that, because it relieved the school of the burden of financial aid, federal funds to students effectively were grants to the institution as a whole. The Court "found no persuasive evidence" that Congress meant to have HEW's "regulatory authority follow federally aided students from classroom to classroom, building to building, or activity to activ-

ACHIEVING EDUCATIONAL EQUITY

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ity." 6 2 Thus, the Court concluded that the Title IX regulations were only applicable to the college's financial aid office. In the end, there was little cause for celebration at Grove City College because the Court ordered that it must prove that its financial aid office complied with Title IX. 6 3 And if it refused, the government could terminate financial assistance to the student aid program.

Congress Responds to Grove City Although Title IX had received a great deal of attention over the years since its passage, perhaps college sports programs had been most affected by the Supreme Court's ruling in Grove City. The implications of that decision were soon apparent as collegiate athletic programs began to claim exemption from the ban on sex discrimination, arguing they were not programs or activities receiving federal funds. More broadly, the Grove City decision was greeted with dismay by the civil rights community and its congressional supporters. In part, the groups feared its effect on other civil rights statutes, such as Title VI, Section 504 of the 1973 Rehabilitation Act, and the 1975 Age Discrimination Act, which had the same "program" or "activity" language as Title IX. Their concern was well-founded—the decision had a drastic effect on pending civil rights litigation: "According to the Leadership Conference on Civil Rights, the Department of Education had 'closed, limited or suspended hundreds of [discrimination] cases' because of the Grove City ruling." 6 4 The Supreme Court's insistence on constructing walls around individual programs within institutions threatened to set back the major civil rights advances of the 1960s and 1970s. Activists' fears were later realized in 1986, when the Supreme Court decided that federal aid to airports and the air traffic control system did not bring commercial airlines within the reach of the 1973 Rehabilitation Act prohibiting discrimination against disabled persons. 6 5 Congress displayed sharp displeasure with the Court's opinion, and shortly after, a bill aimed at reversing it was introduced in the House. It proposed these three changes in the civil rights laws affected by the Court's ruling: it would replace the words "program" and "activity" with "recipient," it would define a "recipient" as an institution receiving assistance "directly or through another," and it would specify that the entire institution or system would lose funding if one of its units violated the ban on discrimination. 6 6 After hearings in the Education and Labor and Judiciary Committees, the House easily passed a bill to reverse Grove City on June 26, 1984, in a 375 to 32 vote. But opposition from the Reagan administration and the Republicancontrolled Senate, despite the support of sixty-three bipartisan cosponsors, stalled the Senate version of the bill in the 98th Congress. The measure was tabled by a 53 to 45 vote on October 2, 1984. Republican Senator Orrin Hatch

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of Utah was primarily responsible for defeating the Senate bill, arguing that it would expand federal control over society in its zealous attempts to prevent discrimination. In the 99th Congress, two House committees approved versions of a bill that would also have reversed the Grove City decision, but neither reached the floor for consideration. Congress adjourned with these two bills in limbo, as well as two other bills pending in the Senate Labor and Human Resources Committee. A Senate version of the Grove City bill, as it was informally known, was subsequently approved in committee in May 1987, but no further action was taken during that year. 67 Although neither Title IX nor the proposed bill mentioned abortion, Senate debate, often bitter, primarily revolved around the implications of the bill for abortion rights. The U.S. Catholic Conference and the National Right to Life Committee lobbied against it, insisting that the bill would expand abortion rights. Current administrative regulations specified that federal aid recipients were required to treat pregnancy and termination of pregnancy "in the same manner and under the same policies as any other temporary disability." The regulations also barred discrimination against students or employees who received abortions. Opponents of the Grove City bill argued that it would force hospitals with religious ties that received federal aid to perform abortions or be subject to suits for discrimination. 68 Proponents insisted that such hospitals could claim exemption and that the bill only addressed coverage of the civil rights laws, not definitions of discrimination. From 1985, controversy over the bill's effects on abortion stymied it for three years. The Senate finally passed the Grove City bill, S. 557, on January 28, 1988, by a 75 to 14 vote, with the price for its passage the Danforth amendment. Supported by the Catholic Conference and other anti-abortion groups, the amendment contained a so-called right to conscience clause that permitted federally funded hospitals (and their medical personnel) to refuse to perform abortions and allowed educational institutions to exclude abortion from health and disability leave plans. Described by its supporters as abortion-neutral because it also prohibited discrimination against women who had abortions, opponents charged that there was "a certain anti-woman animus in the proponents of this amendment." The Senate approved the Danforth amendment in a 56 to 39 vote. In the House, civil rights advocates were torn over whether to support the Senate version of the bill with the Danforth amendment. Despite their desire to see the Grove City decision overturned, women's groups were upset with the abortion language and did not lobby for the bill. The Senate-passed bill was approved in the House on March 2, 1988, in a 315 to 98 vote. 69 Entitled the Civil Rights Restoration Act, the bill extended Title IX coverage to all the operations of state or local government units, including public school systems; to all the operations of colleges, universities, or other public

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schools of higher education, as well as vocational schools or any other school system that received federal aid; to all the operations of corporations, partnerships, or other private organizations if aid was given to the enterprise as a whole or if the enterprise was "principally engaged" in providing education, housing, health care, parks, or social services. 70 On March 16, 1988, President Ronald Reagan vetoed S. 557, saying it "would vastly and unjustifiably expand the power of the Federal government over the decisions and affairs of private organizations, such as churches and synagogues, farms, businesses, and State and local governments. In the process," he said, "it would place at risk such cherished values as religious liberties." The administration offered a weaker substitute bill, entitled the Civil Rights Protection Act, that proposed to extend the religious exemption to institutions that are "closely identified" with but not "controlled by" a religious organization. By limiting coverage to the entity receiving federal aid, the bill would have substantially undercut the government's ban on discrimination in private businesses, religious school systems, and state and local government units. 71 Less than a week later, on March 22, 1988, Congress overrode the president's veto on a 73 to 24 vote in the Senate and a 292 to 133 vote in the House. 72 With this action, the Supreme Court's narrow interpretation of the program-specific language of the nation's federal civil rights laws was reversed, and according to its congressional sponsors, Congress had now ensured that the laws would be interpreted according to their original intent.

Private Suits Under Title IX For reasons not readily apparent, a number of federal statutes do not authorize individuals to seek private remedies, that is, to sue in federal court. The remedy provided in Title IX specifies the termination of federal funds for institutions found guilty of discrimination. Although many statutes explicitly authorize suit for violation of the law, others, such as Title IX and Title VI, merely proscribe a type of conduct and leave enforcement to the federal government, requiring the courts to decide whether victims of discrimination should be allowed to sue, that is, whether a private cause of action should be implied from the statute. 73 When Geraldine Cannon sued the University of Chicago's Pritzker School of Medicine for sex discrimination under Title IX, the institution argued that Title IX does not authorize suits by private individuals; the only remedy against an offending institution is termination of federal funds. The Seventh Circuit agreed and dismissed her suit. 74 In Cannon v. University of Chicago 7 5 decided in 1979, the Supreme Court resolved the debate over Title IX suits, primarily basing its decision on

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the identity between Title VI and Title IX. Speaking for a 6 to 3 majority, Stevens devoted most of the opinion to discussing the purposes of Title IX, identifying two: first, to prevent institutions from using federal funds to support discriminatory practices, and second, to protect individuals against discrimination. Although cutting off federal funds to a guilty institution would prevent the federal government from subsidizing discrimination, it would not help the victim. A private suit, he held, would serve the victim better and fulfill the second aim of the statute. Cannon paved the way for others to sue for sex discrimination in education, but it made no mention of whether victims could seek monetary compensation or were restricted to simply asking the courts to order the institution to cease its discriminatory conduct. Judith Lieberman, also rejected by the University of Chicago Medical School, sued the institution for discriminating against her on the basis of sex. She claimed that the school violated Title IX by questioning her about her husband, her plans to have children, and other intimate matters. 7 6 However, her case differed from Cannon's because she had been accepted at a number of prestigious medical schools and had no interest in obtaining an injunction to order the university to admit her; instead, she sought compensatory and punitive damages. 7 7 The district court dismissed her claim, and in 1981, in Lieberman v. University of Chicago,78 the Seventh Circuit affirmed that decision, declining to expand the scope of Title IX. The appellate court relied on a 1981 ruling in Pennhurst State School and Hospital v. Halderman,79 in which the Supreme Court held that by receiving federal aid, the state had entered into a contract with the federal government, agreeing to accept conditions in return for the funds. But Congress may not insert a financial obligation into an aid statute without adequate warning because a contract is valid only if it clearly specifies the terms of the agreement. Characterizing Title IX as part of a package of aid to higher education, the circuit court ruled that Congress had not intended to allow an additional strain on an institution's finances through suits for money damages. Cannon, the court said, had only enlarged the class of persons who could sue under the contract, it had not expanded the institution's financial liability. The court insisted that there must be evidence that the university knew that receiving federal funds increased its potential liability for financial losses. It concluded by observing that Congress must specify a damage remedy in a funding statute to give institutions ample notice of their liability, giving them an opportunity to reconsider their acceptance of the financial aid. The dissenting judge questioned the majority's logic in requiring that Congress specify money damages in a statute that had not expressly indicated a right to sue. He warned that barring a damage remedy will reduce enforcement of Title IX because the best qualified applicants, like Judith Lieberman, who are admitted to other schools will have no incentive to charge a school

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with discrimination; only less qualified applicants will file suit, and they will have greater difficulty proving their case. Almost a decade later, the Third Circuit issued a contrary ruling in Pfeiffer v. Marion Center Area School District,80 holding that damages were available under Title IX. The case was brought by a student against her former high school: she claimed that the school violated Title IX by removing her from its National Honor Society chapter after she became pregnant. The school argued that its decision was not based on sex discrimination but rather on the fact that her premarital sexual activity and her refusal to marry the father of her child manifested deficiencies of character and leadership, two requisites of honor society membership. The appellate court found insufficient evidence to determine the school's actual motive in dismissing her but noted that it must resolve the issue of whether monetary damages were available under Title IX before returning the case to the district court to allow it to rule on the school's intent. The circuit court was guided by the high court's ruling in a 1983 case, Guardians Association v. Civil Service Commission of New York,81 in which a majority apparently concluded that plaintiffs were entitled to money damages if they proved their claims of intentional discrimination under Title VI of the 1964 Civil Rights Act, the statute upon which Title IX was modeled. 8 2 Acknowledging that other circuits expressed contrary positions, the appellate court held that if Pfeiffer were able to prove her claim of intentional discrimination, she was entitled to an award of money damages against the school. In 1992, the Supreme Court resolved the split among the circuits by addressing the issue of the availability of money damages under Title IX. The case arose when Christine Franklin, a Georgia high school student, claimed that a teacher verbally and physically harassed her for more than two years, including forcing her to have sexual intercourse with him three times on school grounds. 8 3 According to Franklin, school officials knew of the harassment but took no action to stop it and even discouraged her from filing charges against him. Eventually, the school compelled his resignation, agreeing to his condition that all matters be dropped and the case considered closed. Franklin filed a complaint with the O C R that found that the school had violated Title IX, but since the offending school official resigned and the school had instituted a grievance procedure, it was now in compliance with Title IX. Her lawsuit, seeking monetary damages, was dismissed because the courts were reluctant to approve such awards in statutes that do not explicitly authorize them. In Franklin v. Gwinnett County Public Schools,84 a unanimous decision announced by White, the Court noted that the question of damages was "analytically distinct" from the question of whether an implied right of action existed but cited a long-held presumption that federal courts have the authority to order appropriate relief, absent a contrary indication from Congress.

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Echoing the dissent in Lieberman, the Court said it was not surprising to find that Congress had not indicated an intent to allow money damages in Title IX since it had not explicitly authorized suit under the statute. In determining whether Congress intended to alter the fundamental rule of the availability of damage remedies, the Court cited two amendments to Title IX that were enacted after Cannon was decided. First, the Civil Rights Remedies Equalization Act of 1986 expanded the right to sue under Title IX, indicating that money damages were not precluded in Title IX suits. 85 And although the statute did not specify the type of damages available to litigants, the Court was satisfied that there was no evidence in it of Congress's intent to limit damage remedies. Second, the Court pointed to the Civil Rights Restoration Act, which had broadened the coverage of federal antidiscrimination statutes, including Title IX, and offered no indication of an intent to limit damage remedies under Title IX. The Court also rejected a number of other arguments against awarding damages in Title IX cases, the most important of which revolved around the question of whether damage remedies were appropriate in statutes enacted under Congress's spending clause authority. The school district, supported by the federal government, cited Pennhurst and argued that damages should not be awarded in suits at all. But although the Court agreed that recipients of federal funds could not be held accountable for acts of unintentional discrimination because they lacked notice of their liability, it believed there was no bar against holding them accountable for claims of intentional discrimination. Title IX, White pointed out, put federally funded school districts on notice that they must not discriminate on the basis of sex. Citing the futility of any other remedies for students such as Christine Franklin who had already graduated, White concluded there was no barrier to awarding money damages to compensate victims of intentional sex discrimination. The Court also reiterated the long-standing principle that federal courts are authorized to award appropriate relief in actions brought to enforce federally protected rights.86 Title IX and Sexual

Harassment

Sexual harassment in schools is a common practice, according to surveys commissioned by the AAUW in 1993 and 2001. In the 1993 survey, the first systematic study of sexual harassment, researchers had asked 1,632 students in grades eight through eleven whether they had ever experienced sexual harassment; an astonishing 85 percent of the girls and 76 percent of the boys said they had. 87 The effect on girls was more serious in that they reported being more afraid in school and less confident about themselves. Similarly, a 2001 survey of 2,064 students in the same grades found that 83 percent of girls and 79 percent of boys reported experiencing harassment; the study also showed that the practice begins in elementary school and that teachers often witness the harass-

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ing behavior.88 Although most students reported being subject to verbal harassment, over half indicated they had been physically harassed, most often by their schoolmates. Ironically, most students in the survey indicated they were aware of their school's policy against sexual harassment. Although Franklin made it clear that monetary damages may be awarded in cases of teachers harassing students, it did not specify the extent of the school's liability for the harassing behavior of its employees or students. By the late 1990s, the courts had still not determined when schools should be held responsible for the harassment that occurs there. OCR guidelines issued in March 1997 clearly stated that Title IX covers harassing behavior by school employees, other students, and even third parties and that schools must take the necessary actions to respond to complaints of harassment and ensure that it stops. 89 As with workplace harassment, the guidelines indicated that the conduct must be sufficiently severe and pervasive to adversely affect the student's educational experience or create a hostile environment. The issue of a school's liability for teacher harassment came before the Court in a case filed by a fifteen-year-old eighth grader who had engaged in nonconsensual sex with her teacher. She had not reported it, and school authorities had no knowledge of the affair, only learning about it when the two were discovered having sex. He was arrested and fired from his position. In her Title IX suit against the school, the issue was whether the school should be held responsible when it had no direct knowledge of the harassing conduct. There had been other complaints about the same teacher, but following an investigation in which he denied any responsibility, the matter was dropped. The defendant, a Texas public high school, had never issued a formal antiharassment policy, nor had it created and publicized a student grievance procedure. After her suit for damages was dismissed by the lower federal courts, the Supreme Court granted review of the case to consider when a school district was accountable for the sexual harassment of a student by a teacher. Speaking for a 5 to 4 Court, in Gebser v. Lago Vista Independent School District,90 in 1998, O'Connor narrowly framed the issue as one of how Congress would have handled the question of a Title IX defendant's liability had it expressly included a right to sue in Title IX. Principally because the statute stated that a school must be notified of its nonconforming behavior and given an opportunity to comply with the law, the Court inferred that Congress had not intended to impose liability on a school that was unaware of its employees' discriminatory actions. O'Connor reasoned that Congress would not have wanted the school to be strictly liable for its employees' actions without being given notice of the illegal acts, and it would be inappropriate for the Court to attach such a penalty in a statute with a judicially implied remedy. Citing the Pennhurst requirement that a recipient of federal funding have notice of its potential financial liability when accepting funding, the Court was unwilling to make

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the school responsible for conduct of which it was unaware. It concluded that a school may only be liable for damages when it displayed "deliberate indifference," that is, when a school official with responsibility to correct the behavior knew of it and deliberately failed to act. 9 1 In restricting the school's liability for Title IX violations, the Court adopted a standard that differed from the one it had just established in workplace sexual harassment cases, namely, that an employer is held liable when a supervisor who has immediate control over an employee creates a hostile work environment. 9 2 The Court refused to apply similar principles to school situations, however, notwithstanding the fact that children require even greater protection from those in authority than adults in the workplace and that its ruling would encourage schools to remain ignorant of Title IX violations committed by their employees against vulnerable children. When schools are notified of harassing behavior of students by their fellow students, they are often inclined to dismiss the incidents as childish teasing or name-calling, sexual banter, or harmless flirting; they also argue that they cannot be held legally responsible for their students' behavior. Indeed, in Rowinsky v. Bryan Independent School District93 a 1996 decision, the Fifth Circuit dismissed a Title IX action based on peer harassment on the grounds that there was no claim that the school district itself had been guilty of discrimination and because there was no evidence that the school acted differently toward women's complaints of harassment than toward complaints filed by men. 9 4 The Supreme Court addressed the issue of the school's liability for peer harassment in Davis v. Monroe,95 a 1999 case involving a fifth grader at a Georgia elementary school who claimed she was physically and verbally harassed for five months by the boy who sat next to her in class. According to her complaint, he grabbed her breasts, rubbed against her, and made lewd comments. Although she and her mother complained to school officials numerous times, they were unresponsive; it was three months before a teacher finally allowed her to change her seat in the classroom. The Board of Education in her district had no sexual harassment policy, nor had it trained school personnel in responding to complaints. The child's grades began to suffer, and she threatened suicide. The incidents of abuse finally ended when the Davis family filed criminal charges against the boy and he pleaded guilty to sexual battery in juvenile court. And in the face of the school's apparent lack of concern, the family filed suit in federal court, claiming that the harassment created a hostile, intimidating, and offensive environment in violation of Title IX. They sought damages and an injunction ordering the school to create a sexual harassment policy. With the support of the Clinton administration, the lawyers for the Davis family argued that the school was legally responsible for the boy's behavior, especially after it knew of the harassment and failed to stop it. They insisted the facts of the case placed it within the standard set in Gebser, that is, that a

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responsible school official knew of the behavior and was "deliberately indifferent" to it. In their view, it was insignificant that the harassment in Gebser was caused by a teacher and that in Davis by a classmate. They argued that the statute forbids discrimination in an education program without regard for the perpetrator. The lower courts dismissed her claim, ruling that schools were not liable for student-on-student harassment. During oral arguments before the Supreme Court, the justices expressed concern about the difficulty of distinguishing between ordinary teasing and the kind of harassment that was alleged here and the consequences that might ensue if suits for student-on-student harassment were permitted. "Little boys tease little girls through their years in school," O'Connor noted; "is every incident going to lead to a lawsuit?" 96 In her opinion for a 5 to 4 Court, O'Connor seemed to deal with her concerns by allowing the school to be held liable under Title IX, but only under narrow circumstances. The school had argued that the statute only extended to the actual grant recipients, not third parties such as students over whom the recipients exercised little control. The Court appeared most troubled about the conditions under which a federally funded school district could be sued for damages; its major concern was whether the district would have sufficient notice of its liability for third parties when accepting federal funds. 9 7 But although it recognized the school's concern, the Court nevertheless concluded that the school could be sued under these circumstances. The question, according to O'Connor, was whether deliberate indifference to acts of harassment by a student, as well as a teacher, constitutes intentional discrimination under Title IX and allows a private damage suit. In answering her question, O'Connor cited federal law and state common law, as well as a publication released by the National School Board Association that showed that schools had been placed on notice that they were responsible for the acts of third parties, such as students, who were under their control. A school that was aware of and deliberately indifferent to a student harassing another in the classroom might be held responsible under Title IX. Spelling out the exact nature of the school's liability, O'Connor stated that "funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." 98 Acknowledging that children's behavior is often manifested in gender-specific name-calling and teasing, the majority reiterated that it was not subjecting schools to liability for every antisocial act that occurs there. Despite the restricted nature of the holding, the dissent, written by Kennedy, expressed concern about the implications of the majority's opinion, warning of federal control over the day-to-day disciplinary decisions in the

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nation's schools; he feared that it would turn Title IX into a "Federal Student Civility Code." 9 9 Moreover, he questioned the Court's characterization of the child's inappropriate behavior as sex discrimination because, in his view, it was not necessarily sexual harassment, much less sex discrimination. He predicted there would be a flood of litigation in the wake of the ruling, and citing the AAUW survey on the frequency of sexual harassment incidents in schools, he warned that "the number of potential lawsuits against our schools is staggering." 1 0 0 Additionally, he feared that even first and second graders who did not understand the consequences of their behavior would be targeted by overzealous administrators who wanted to insulate themselves from liability by overreacting to innocent acts. Ironically, however, school officials seemed less concerned, undoubtedly pleased with the high standard of proof required to prove a Title IX violation caused by peer harassment. 1 0 1 "We can live with this standard," said the general counsel for the National School Boards Association. "I think it will be the rare occasion when a school board is found liable in the future." 1 0 2 Other school administrators echoed these views. "The days of boys will be boys and girls will be girls are long gone," another said. "The school needs to address all elements of the school environment, . . . [and] there won't be liability if you are proactive and out there teaching kids about appropriate behavior." 1 0 3

Conclusion Looking back over the years since the 1970s shows that the United States has moved a long way toward equality in its public schools. In the early 1970s, the federal courts began to take a dim view of the constitutionality of public school districts maintaining separate schools and separate admissions policies. Eventually, it seemed that the only remaining single-sex institutions were the menonly military academies, which argued that tradition and the physical inferiority of the women applicants justified the maintenance of their single-sex environment. After a lengthy litigation process, by the end of the 1990s, these last bastions of single-sex education did not survive constitutional scrutiny and were ordered to admit women. Single-sex education continues to have adherents, however, who argue that children learn more effectively in a single-sex environment. A number of public school districts in the nation have experimented with single-sex and sometimes single-race schools to deliver education to children who have not been well served by the traditional education system or who have difficulty learning in an integrated school setting. The constitutionality of these schools has been challenged, but because most are confined to the private sector, there has not been much litigation in this area.

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The commitment toward equity in education was also manifested in the passage of Title IX in 1972, the law prohibiting discrimination in federally funded institutions on the basis of sex. In 1984, the Supreme Court dealt a major blow to efforts to enforce Title IX by restricting the ban on discrimination to the specific programs receiving federal aid. Once Congress reversed that ruling four years later, Title IX became a major force for equality in education on a number of fronts; perhaps the most well known is in the area of sexual harassment. Studies show, however, that sexual harassment is pervasive even in elementary schools and children suffer from its effects every day. Although the Court has ultimately agreed that school districts can be held accountable for the harassing acts of their employees as well as their students, it is difficult for plaintiffs to meet the standards for liability set by the Court. Thus, sexual harassment remains a problem for students of both sexes, and the weapons available to combat it are limited. Title IX has also had mixed results in the athletics arena. During the process of promulgating the implementing regulations, opposition was mounted by college and university athletic organizations that expressed concern about its impact on men's sports programs. They saw that Title IX's aim of equity in athletics would require shifting resources away from men's sports programs. Thirty years later, it is clear that Title IX has increased women's participation in sports activity. At the same time, however, there is still inequality between men's and women's athletic programs, and there is substantial opposition to Title IX from those who view increased opportunities for women as coming at the expense of opportunities for men.

Notes 1. 347 U.S. 483 (1954). 2. Brown, 347 U.S. at 494. 3. Brown, 347 U.S. at 495. 4. American Association of University Women, How Schools Shortchange Girls: A Study of Findings on Girls and Education (Washington, D.C.: AAUW Education Foundation Research, 1992). 5. Such schools were not limited on the basis of sex alone. The Detroit school district proposed to open three schools for African American boys. A suit was filed, and in Garrett v. Board of Education, 775 F. Supp. 1004 (E.D. Mich. 1991), the federal court held that such schools were unconstitutional. See Carrie Corcoran, "Single Sex Education After VMI: Equal Protection and East Harlem's Young Women's Leadership School," University of Pennsylvania Law Review 145 (1997): 987-1033. 6. South Bend Tribune, March 13, 1998. 7. The school concentrated on math and science, areas in which studies showed that coeducation had a detrimental effect on girls' learning; see Corcoran, "Single Sex Education After VMI."

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8. See Corcoran, "Single-Sex Education After VMI," for an analysis of the constitutionality of the New York experiment with single-sex education. 9. American Association of University Women, Separated by Sex: A Critical Look at Single-Sex Education (Washington, D.C.: A A U W Education Foundation Research, 1998). 10. American Association of University Women, Separated by Sex (emphasis in the original). 11. 337 F. Supp. 934 (D. Mass. 1972). 12. 501 F.2d 1264 (9th Cir.1974). 13. Two Texas state courts refused to order that women be admitted to Texas A & M University, even though courses were offered there that were not offered at other Texas schools. See Heaton v. Bristol, 317 S.W.2d 86 (Tex. Civ. App. 1958), and Allred v. Heaton, 336 S.W.2d 251 (Tex. Civ. App. 1960). 14. 309 F. Supp. 184 (E.D. Va.1970). 15. 316 F. Supp. 134 (D.S.C. 1970). 16. Section 408, Title 22, Code of South Carolina (1962), cited in Williams, 316 F. Supp. at 136 n.3). 17. Williams, 316 F. Supp. at 137. 18. Williams preceded Reed; see John D. Johnston Jr. and Charles L. Knapp, "Sex Discrimination by Law: A Study in Judicial Perspective," New York University Law Review 46 (1971): 675-747 for criticism of Williams. 19. Vorchheimer v. School District of Philadelphia, 532 F.2d 880, 886 (3d Cir. 1976). 20. Vorchheimer was decided nine months before the Supreme Court adopted heightened scrutiny for sex-based classifications in Craig. The appellate court held that the city policy would have survived constitutional scrutiny under a higher level of scrutiny as well. 21. 163 U.S. 537 (1896). 22. Vorchheimer, 532 F.2d at 888. 23. Vorchheimer v. School District of Philadelphia, 430 U.S. 703 (1977). The vote to uphold the lower court was 4 to 4; a tie vote affirms the lower court opinion. In Newburg v. Board of Public Education, 26 Pa. D.&C.3d 682 (1983), the Philadelphia Court of Common Pleas ordered three women admitted to Central High School. Applying the more stringent test for sex classifications demanded by the Pennsylvania Equal Rights Amendment, the court ruled that separation of the sexes was not sufficiently related to the asserted educational benefits. The court looked at the tangible and intangible differences between the two schools and found that Girls High did not compare favorably to Central. See Rosemary Salomone, Equal Education Under Law (New York: St. Martin's Press, 1986), pp. 120-121. 24. 458 U.S. 718 (1982). 25. Mississippi Code Annotated §37-117-3 (1972), cited in Hogan, 458 U.S. at 720. 26. Hogan, 458 U.S. at 720 n . l . 27. Hogan, 458 U.S. at 728. 28. See Heather Larkin Eason, "Gender Equality and Single-Sex Education: United States v. Virginia, 116 S.Ct. 2264 (1996)," University of Arkansas at Little Rock Law Journal 20 (1997): 191-211. 29. See Janella Miller, "The Future of Private Women's Colleges," Harvard Women's Law Journal 7 (1984): 153-187. 30. Alfred Blumrosen, "Single-Sex Public Schools: The Last Bastion of 'Separate but Equal?'" Duke Law Journal (1977): 276-277.

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31. See, for example, Comment, "Plessy Revived: The Separate but Equal Doctrine and Sex-Segregated Education," Harvard Civil Rights-Civil Liberties Law Review 12 (1977): 585-648; Deborah Rhode, "Association and Assimilation," Northwestern University Law Review 81 (1986): 106—145; Patricia Werner Lamar, "The Expansion of Constitutional and Statutory Remedies for Sex Segregation in Education: The Fourteenth Amendment and Title IX of the Education Amendments of 1972," Emory Law Journal 32 (1983): 1111-1165. 32. See Susan Gluck Mezey, "The Persistence of Sex-Segregated Education in the South," Southeastern Political Review 22 (1994): 371-395. 33. Mary Anne Case, "Discrimination and Inequality Emerging Issues 'The Very Stereotype the Law Condemns': Constitutional Sex Discrimination Law as a Quest for Perfect Proxies," Cornell Law Review 85 (2000): 1455. 34. United States v. Virginia, 766 F. Supp. 1407, 1415 (W.D. Va. 1991). 35. United States v. Virginia, 852 F. Supp. 471, 484 (W.D. Va. 1994). 36. United States v. Virginia (VMI), 518 U.S. 515 (1996). 37. VMI, 518 U.S. at 547. 38. 339 U.S. 629 (1950). 39. Newspaper accounts revealed that Faulkner had received death threats for her attempts to integrate The Citadel. When she announced her departure, Citadel students yelled and cheered. Houston Chronicle, August 19, 1995. 40. Kathryn A. Lee, "Intermediate Review 'with Teeth' in Gender Discrimination Cases: The New Standard in United States v. Virginia," Temple Political and Civil Rights Law Review 7 (1997): 243. 41. Case, "Discrimination and Inequality," p. 1484, describes the changes at each institution and raises the interesting question of whether The Citadel's accommodations may be more susceptible to legal challenge than VMI's response of virtually ignoring the presence of women. 42. See Andrew Fishel and Janice Pottker, National Politics and Sex Discrimination in Education (Lexington: Lexington Books, 1977) for an account of the passage of Title IX. 43. Title VI has a broader reach, barring racial discrimination in federally assisted programs or activities such as public elementary and high schools, hospitals, highway departments, and housing authorities. 44. See Joyce Gelb and Marian Lief Palley, Women and Public Policies, 2d ed. (Princeton: Princeton University Press, 1987); Salomone, Equal Education Under Law. 45. Anne Costain, "Eliminating Sex Discrimination in Education: Lobbying for Implementation of Title IX," in Marian Lief Palley and Michael Preston, eds., Race, Sex, and Policy Problems (Lexington: Lexington Books, 1979), p. 11. 46. The regulations were subject to a newly enacted provision of the 1974 Education Amendments that allowed Congress to issue a concurrent resolution within forty-five days if it disapproved of any administrative regulations dealing with education because they were inconsistent with legislative intent. 47. The original Title IX regulations, published by HEW, were codified at 45 C.F.R. Part 86. 48. See, for example, Washington Post, September 4, 1996; Boston Globe, August 19, 1996; Rocky Mountain News, August 18, 1996; New York Daily News, August 11, 1996; Cincinnati Enquirer, August 11, 1996. 49. Sports were only mentioned twice in the Title IX debates and were never addressed in any congressional reports. See Note, "Sex Discrimination and Intercollegiate Athletics: Putting Some Muscle on Title IX," Yale Law Journal 88 (1979):

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1254—1279; June E. Jensen, "Title IX and Intercollegiate Athletics: HEW Gets Serious About Equality in Sports," New England Law Review 15 (1980): 573-596. 50. Regulations pertaining to sports were divided into two categories, one involving physical education classes and the other school team activities at all levels of performance. Coeducation was ordered for all physical education classes except those involving ability grouping and contact sports. Elementary schools were given one year to achieve full compliance with the regulations on physical education and athletics; because of the greater complexity of the problems, high schools and colleges were given three years. 51. See Jensen, "Title IX and Intercollegiate Athletics." 52. Legal Issues in Collegiate Athletics, February 2002. 53. The complaint alleged that the 1996 guideline was illegal and asked D O E to write new regulations that allowed colleges to create athletic programs that reflect the number of interested women rather than overall enrollment; see Legal Issues in Collegiate Athletics, February 2002; Higher Education Legal Alert, April 2002. 54. National Women's Law Center, Investigation by NWLC Finds $6.5 million Athletic Scholarship Gap for Women at 30 Colleges and Universities (Washington, D.C.: NWLC, June 18, 2002). 55. Rosemary Salomone, "Title IX and Employment Discrimination: A Wrong in Search of a Remedy," Journal of Law and Education 9 (1980): 438. 56. North Haven Board of Education v. Hufstedler, 629 F.2d 773 (2d Cir. 1980). For the opposite view, see, for example, Romeo Community Schools v. HEW, 600 F.2d 581 (6th Cir. 1979); Islesboro School Committee v. Califano, 593 F.2d 424 (1st Cir. 1979); Junior College District of St. Louis v. Califano, 597 F.2d 119 (8th Cir. 1979). 57. 456 U.S. 512 (1982). See Susan Gluck Mezey, "Gender Equality in Education: A Study of Policymaking by the Burger Court," Wake Forest Law Review 20 (1984): 793-817. 58. 118 Congressional Record (1972), pp. 5802-5803, cited in Rosemary Salomone, "North Haven and Dougherty: Narrowing the Scope of Title IX," Journal of Law and Education 10 (1981): 195. 5 9 . 4 6 5 U.S. 555 (1984). 60. Department of Education regulations describing a "recipient" of federal aid, cited in the Grove City case, are found at 34 C.F.R. §106.2. These regulations were in accordance with H E W regulations enforcing Title VI. See Barrie L. Brejcha, "Grove City College v. Bell: Restricting the Remedial Reach of Title IX," Loyola University Law Journal 16 (1985): 319-358. 61. Grove City, 465 U.S. at 569-570. All nine justices agreed that indirect aid triggered Title IX coverage. 62. Grove City, 465 U.S. at 573-574. 63. Under the Reagan administration, D O E changed its position in favor of a narrow interpretation of Title IX, arguing that the ban on sex discrimination only applied to the particular program receiving federal funds, not to the entire institution. 64. Congressional Quarterly Almanac, 1987, p. 281. 65. Department of Transportation v. Paralyzed Veterans of America, 477 U.S. 597 (1986). 66. H. R. 5490, 98th Congress, 2d Session (1984); S. 2568, 98th Congress, 2d Session (1984). See Brejcha, "Grove City College v. Bell," for a discussion of Congress's attempts to reverse Grove City. 67. S. 557, 100th Congress, 1st Session (1987). 68. Congressional Quarterly Almanac, 1985, p. 24.

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69. Congressional Quarterly Almanac, 1988, pp. 65-66. The Danforth amendment provided that "nothing in this title shall be construed to require or prohibit any person or public or private entity to provide or pay for any benefit or service, including use of facilities, related to abortion. Nothing in this section shall be construed to permit a penalty to be imposed on any person because such person has received any benefit or service related to legal abortion." The amendment superseded Title IX regulations that barred educational institutions from treating health insurance, leave policies, and other services related to abortion differently from services provided for pregnancy and childbirth and prohibited discrimination against students who had had abortions. 70. Congressional Quarterly Almanac, 1988, pp. 63-64. 71. Congressional Quarterly, March 19, 1988, pp. 752-753. 72. Congressional Quarterly, March 26, 1988, pp. 774-776. 73. In deciding whether to imply a cause of action, the Court is largely guided by a four-part test, derived from Cort v. Ash, 422 U.S. 66 (1975). The test, to determine if a private suit is compatible with the purpose of the statute, requires consideration of four questions: First, is the person bringing the suit someone for whose "especial benefit" the statute was designed? Second, is there evidence of congressional intent, either explicit or implicit, to create or deny a private remedy or suit? Third, is a private suit consistent with the legislative purpose of the statute? Fourth, is it inappropriate to infer a cause of action in federal law because the suit is in an area that traditionally concerns state law? See Susan Gluck Mezey, "Judicial Interpretation of Legislative Intent: The Role of the Supreme Court in the Implication of Private Rights of Action," Rutgers Law Review 36 (1983): 53-89. 74. Cannon v. University of Chicago, 559 F.2d 1063, 1072 (7th Cir. 1976). The court's refusal to allow a private cause of action was not unique. Similar rulings were handed down in Jones v. Oklahoma Secondary School Association, 453 F.Supp. 150 (W.D. Okla. 1977) and Cape v. Tennessee Secondary School Athletic Association, 424 F. Supp. 732 (E.D. Tenn. 1977). 7 5 . 4 4 1 U.S. 677 (1979). 76. Elyse Pearlman, "Lieberman v. University of Chicago: Implying Remedies for Implied Causes of Action," John Marshall Law Review 16 (1982): 155 n.14. 77. Nancy Peterson, "Lieberman v. University of Chicago: Refusal to Imply a Damages Remedy Under Title IX of the Education Amendments of 1972," Wisconsin Law Review (1983): 183 n.9; G. R. C., "Implied Private Rights of Action for Damages Under Title IX—Lieberman v. University of Chicago," Georgia Law Review 16 (1982): 523 n.83. 78. 660 F.2d 1185 (7th Cir. 1981). 79. 451 U.S. 1 (1981). 80. 917 F.2d 779 (3d Cir. 1990). 8 1 . 4 6 3 U.S. 5 8 2 ( 1 9 8 3 ) . 82. Although there was no majority opinion in Guardians, a majority of the Court believed that damages were available for claims of intentional discrimination under Title VI. 83. The first case to rule that sexual harassment claims could be brought under Title IX was Alexander v. Yale University, 631 F.2d 178 (2d Cir. 1980). 84. 503 U.S. 60 (1992). 85. This act abrogated the state's Eleventh Amendment immunity in suits brought to enforce Title VI, Title IX, §504 of the 1973 Rehabilitation Act, and the 1975 Age Discrimination Act.

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86. Susan Wright, "Franklin v. Gwinnett County Public Schools: The Supreme Court Implies a Damage Remedy for Title IX Sex Discrimination." Vanderbilt Law Review 45 (1992): 1367-1386. 87. American Association of University Women, Hostile Hallways: The AAUW Survey on Sexual Harassment in America's Schools (Washington, D.C.: AAUW Education Foundation Research, 1993). 88. American Association of University Women, Hostile Hallways: Bullying, Teasing, and Sexual Harassment in School (Washington, D.C.: AAUW Education Foundation Research, 2001). 89. See Kathy Lee Collins, "Student-to-Student Sexual Harassment Under Title IX: The Legal and Practical Issues," Drake Law Review 46 (1998): 789-834 for a survey of lower court cases in the context of the OCR guidelines. 90. 524 U.S. 274 (1998). 91. The Court imposed an actual knowledge standard, rejecting a negligence standard in which the school would be liable only if it knew or should have known of the harassment. 92. Montre Underwood, "Gebser v. Lago Vista Independent School District: The Supreme Court Adopts Actual Knowledge Standard as Basis for School District's Liability Under Title IX," Tulane Law Review 73 (1999): 2181-2193. 93. 80 F.3d 1006 (5th Cir. 1996). 94. Other circuits, such as the Seventh, in Doe v. University of Illinois, 138 F.3d 653 (7th Cir. 1998), found school districts liable for peer harassment. 95. 526 U.S. 629(1999). 96. New York Times, January 13, 1999. 97. In order to sue recipients of federal funds for violations of programs enacted under Congress's spending clause authority, it is necessary to show that the recipient was aware of the restrictions imposed by Congress. 98. Davis, 526 U.S. at 650. The majority opinion places a burden on students to come forward with complaints, notwithstanding the school's failure to promulgate or publicize a sexual harassment policy or a procedure for filing complaints; see Kristen Safier, "A Request for Congressional Action: Deconstructing the Supreme Court's (In)Activism in Gebser v. Lago Vista Independent School District, 118 S.Ct. 1989 (1988) and Davis v. Monroe County Board of Education, 119S.Ct. 1661 (1991)," University of Cincinnati Law Review 68 (2000): 1309-1329. 99. Davis, 526 U.S. at 684. 100. Davis, 526 U.S. at 680. 101. In "Students as Targets and Perpetrators of Sexual Harassment: Title IX and Beyond," Hastings Women's Law Journal 12 (2001), Martha McCarthy argues that the Court's standard is too high for Title IX plaintiffs and the proper standard should be "constructive notice," that is, whether the school knew or should have known of the harassment. Carrie Urrutia Sponseller takes the opposite view in "Peer Sexual Harassment in Light of Davis v. Monroe County Board of Education: A Successful Balance or Tipping the Scales?" University of Toledo Law Review 32 (2001), arguing that the standard adopted by the Court balances the child's right under Title IX and the school's concern with the threat of litigation. 102. David Savage, "Look the Other Way and Pay," ABA Journal (July 1999): p. 34. 103. New York Times, May 25, 1999. McCarthy, "Students as Targets," reports that most cases of peer harassment since Davis have been unsuccessful.

3 Securing Workplace Equality

D

ESPITE THEIR PRIMARY ROLE OF CARING FOR THE HOME AND FAMILY, WOMEN IN

THE United States have worked for wages since the early 1800s. In 1890, as many as 4 million women were wage earners; by 1910, the number had doubled, with women comprising more than 20 percent of all workers. Their numbers expanded during World War I. Most were soon replaced by men returning from the war, but a good number, especially single women, remained at work. They returned to work in great numbers again after the attack on Pearl Harbor on December 7,1941; more than 20 million women, having been encouraged to fulfill the needs of the war production industries, entered the labor force. Both single and married women took on nontraditional industrial jobs, typified by the image of the well-known "Rosie the Riveter." By the time the men came back from the war, a good many women had grown to like the pay and working conditions, although some women were pleased to leave their jobs and resume their housewife roles. But in contrast with wartime, when the government encouraged them to seek work to help the war effort, once the war was over, the government discouraged them from working outside the home by canceling child care benefits and granting returning veterans the right to displace women on the job. 1 For many women, though, the exodus was short-lived, and there was a steady increase in women's labor force participation in the second half of the twentieth century: in 1950, the percentage of employed women reached 28.8 percent; by 2000, it had grown to 57.7 percent.2 Today, women constitute almost half the nation's workforce. 3

69

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The 1964 Civil Rights Act In the 1960s, civil rights advocates directed their energies toward producing legislation to end racial discrimination in employment, education, and public accommodations. A civil rights bill sent to Congress by President John Kennedy on June 19, 1963, was propelled by marches; sit-in demonstrations; and numerous attempts, often bloody, to increase voter registration. The bill sought equal access to public accommodations, federal guarantees of desegregation in public schools, protection of voting rights, and a ban on employment discrimination. After Kennedy's assassination on November 22, 1963, President Lyndon Johnson was able to secure final passage of the bill. It was signed into law on July 2, 1964.

Title VII Controversial in many parts, the 1964 Civil Rights Act's most far-reaching section was perhaps Title VII, banning employment discrimination in private business and industry. As originally proposed, Title VII of the act prohibited discrimination in employment on the basis of race, color, national origin, and religion. Spurred by a coalition of northern Democrats and Republicans, the bill was moving closer to passage when southern Democrats stepped up their efforts to block it. As H.R. 7152 was being debated on the floor of the House of Representatives, Judge Howard Smith, a Democrat from Virginia and chair of the Rules Committee, stood up: '"Mr. Chairman,' he drawled, 'I offer an amendment.'" 4 These few words were destined to change the lives of working women in America forever. Smith proposed to add the word "sex" to the employment discrimination section, explaining that his aim was "to prevent discrimination against another minority group, the women, but a very essential minority group in the absence of which the majority group would not be here today." 5 His intentions were not benign; he proffered his amendment "in a spirit of satire and ironic cajolery," hoping that he would generate enough opposition to block the entire bill. Instead he produced gales of laughter, and in the spirit of hilarity that prevailed, the day became known as Ladies' Day. In urging support for the measure, Smith quoted from a letter he received from a woman asking him what the government intended to do about the fact that there were 2,661,000 more women in the nation than men, thereby "shutting off the 'right' of every female to have a husband of her own." The letter concluded by asking whether he had "any suggestions as to what course our Government might pursue to protect our spinster friends in their 'right' to a nice husband and family." Unlike other important pieces of legislation, neither chamber held committee hearings on the Smith amendment.

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Despite resistance by some members of the Democratic House leadership who were concerned that the amendment would deprive women of legal protections they currently enjoyed, especially in family law and employment, a bipartisan coalition of House women supported the Smith amendment, and it passed the House in a 168 to 133 vote; two days later, the entire bill was approved in the House by a vote of 290 to 130. Eventually, after a filibuster lasting more than 500 hours, the Senate approved the historic Civil Rights Act of 1964 in a 73 to 27 vote. Title VII provides that it shall be 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. (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.

Originally applicable to employers and labor unions with at least twentyfive employees, after 1972, the act was extended to cover employers and unions with fifteen or more employees; it also permits suits against employment agencies that discriminate. As originally written, the act allowed plaintiffs to sue in federal court for back pay and attorney fees, as well as injunctive relief (a court order against future discriminatory acts). Today, most plaintiffs can sue for monetary damages as well.

The Equal Employment Opportunity

Commission

Title VII included a provision to establish an Equal Employment Opportunity Commission (EEOC). 6 The agency opened its doors on July 2, 1965, a year after the act was passed. Given only a $2.25 million budget and a staff of 100 at the outset, the EEOC developed a backlog almost immediately and, since then, has been struggling to reduce it. Five commissioners, including a chair and vice chair, were appointed for staggered five-year terms, but the first commissioners demonstrated indifference to, if not disdain for, the commission's role in fighting sex discrimination. Indeed, "EEOC commissioners and staff . . . expressed a general belief that the addition of sex to the law [Title VII] had been illegitimate—merely a ploy to kill the bill—and that it did not therefore constitute a mandate to equalize women's employment opportunities." 7 The EEOC's authority was initially limited to attempting to achieve voluntary settlement through conciliation, and it was required to refer cases to the

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Civil Rights Division of the Department of Justice for litigation. In 1972, the Equal Employment Opportunity (EEO) Act granted the EEOC the authority to bring "pattern and practice" suits (charging systemic discrimination on an industrywide or company wide basis) on its own. 8 Today, the EEOC is charged with investigating complaints brought by individuals; if it finds "reasonable cause" for the complaint, it attempts to conciliate and resolve the problem. If it cannot devise a settlement, it can bring suit in federal court; individuals may also file federal suits on their own after receiving a "right-to-sue" notice from the agency. The agency's workload grew when it was given responsibility for enforcing the nation's equal employment laws against discrimination on the basis of age and disability, and by 2000, it had received almost 80,000 charges of discrimination. Over time, many have expressed dissatisfaction with the work of the EEOC, complaining of a huge backlog of complaints, lack of political will to eradicate employment discrimination, and a concomitant failure to pursue vigorous enforcement actions. Budgetary and personnel problems have plagued the agency from the outset and, many argue, still do. 9 As the lead federal agency in enforcing Title VII, as well as the Equal Pay Act (EPA), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), the EEOC issues guidelines and regulations, that, though not binding on the courts, often provide guidance for judicial decisionmaking. 10 Protective Legislation

and the

BFOQ

In the brief debate over the sex discrimination amendment, some House members feared that the bill would make it impossible to hire on the basis of sex for any reason—even when sex was relevant to job performance. Their concern was allayed when Congress created an exception to the ban on sex discrimination, permitting employers to make distinctions "in those certain instances where religion, sex, or national origin is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that particular business or enterprise." Employers charged with discrimination could defend themselves by showing that a particular sex, religion, or national origin was a legitimate requirement of the job.

Early Title VII Litigation Soon after Title VII was enacted, women turned to the federal courts seeking to further the ban on employment discrimination guaranteed in the law. Table 3.1 summarizes the principal cases and results in this area of women's rights litigation. 11

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Table 3.1

Women's Equal Employment Cases, 1969-1989

Case

Date

Weeksa Diaz" Rosenfeld" Phillips Pittsburgh Press Dothard

1969 1971 1971 1971 1973 1977

Johnson Watson Price Waterhouse

1987 1988 1989

Issue Sex as a B F O Q Sex as a B F O Q Sex as a B F O Q Sex-plus hiring policy Sex-segregated want ads Sex as a BFOQ, height and weight requirements Affirmative action for women Subjective employment criteria Mixed motive discrimination

Disposition Pro-equality Pro-equality Pro-equality Pro-equality Pro-equality Mixed-equality 1,b Pro-equality Anti-equality Pro-equality

Notes: a. Lower court ruling. b. The Court accepted the state's claim that sex was a BFOQ but rejected the use of height and weight requirements.

One of the first legal issues arising under Title VII revolved around state laws enacted during the late nineteenth and early twentieth centuries that barred women from certain occupations or regulated their working conditions, ostensibly for their protection. By 1936, forty-three states had such statutes limiting women's working hours. 12 A number of them repealed the laws in response to Title VII, but court challenges were required in others. In Weeks v. Southern Bell Telephone and Telegrapha Fifth Circuit case decided in 1969, the circuit court held that Southern Bell did not prove that sex was a bona fide occupational qualification for the job of "switchman." To rely on a BFOQ defense, the court said, "an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved." 14 Similarly, in Rosenfeld v. Southern Pacific,15 a 1971 decision, the Ninth Circuit noted that the key question was "whether employment restrictions based upon characterizations of a sex group's physical capabilities are, by their nature, capable of fitting within the BFOQ category." 16 Rejecting the company's reliance on the California protective legislation, it ruled that Title VII does not permit assumptions about the physical characteristics of the group as a whole to form the basis of employment decisions. Diaz v. Pan American World Airways}1 another 1971 decision, reinforced a narrow interpretation of the BFOQ defense, when the Fifth Circuit held that the passengers' preferences for women flight attendants did not constitute a BFOQ since Title VII only allows employers to use sex as a BFOQ when it is "reasonably necessary" to the operation of a business. The test, held the court, is "business necessity," not "business convenience." The court concluded that employers may only hire on the basis of sex "when the essence of

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the business operation would be undermined by not hiring members of one sex exclusively." 1 8 In these cases, women's rights advocates asked the courts to rule that protective legislation failed to survive Title VII's ban on sex discrimination, and for the most part, the federal courts made it clear that protective legislation was inconsistent with Congress's commitment to eradicating sex discrimination.

The Supreme Court and the BFOQ In 1971, Phillips v. Martin Marietta Corporation19 became the first Title VII suit to reach the Supreme Court. When Martin Marietta rejected her application as a trainee on the assembly line at its Florida plant because she had preschool children, Ida Phillips filed a Title VII suit. She argued that the company's policy of accepting men with preschool children for these positions discriminated against her on the basis of sex. The company asserted that she was not rejected solely because of her sex but because of her sex and her status as a mother and that other women were hired for the position. The lower courts ruled against her, finding that Congress intended to allow employers to treat mothers and fathers of small children differently because women had more responsibilities to their families. In a brief unsigned opinion, the Supreme Court held that Title VII does not allow a company to create separate hiring policies for men and women. But it refused to rule out the possibility that a woman's commitment to her children could serve as a BFOQ if an employer could show that her family responsibilities affected her performance more than a man's. Indeed, as the transcripts of the oral argument indicate, the justices were dismissive of equal opportunity in the workplace and, amid laughter in the courtroom, asked her attorneys questions that displayed a cavalier attitude toward women workers. They wanted to know whether Title VII meant that airlines would be required to employ men as stewards or that railroads would be required to hire "porteresses"; they also inquired whether women could insist on being employed as ditch diggers. 2 0 Then, in 1977, in Dothard v. Rawlinson21 the Supreme Court reinvigorated the BFOQ defense by allowing Alabama to refuse to hire women as prison guards. Dianne Rawlinson applied for the job of "correctional counselor" in an Alabama prison and was initially rejected because she failed to meet the height and weight requirements. While her suit was pending in federal court, the prison authorities adopted Regulation 204. The new regulation restricted "contact" positions in the prison wards to guards of the prisoners' sex because such positions required "continual close physical proximity to [the] inmates." 2 2 When Rawlinson amended her complaint to include Regulation 204, the prison claimed that sex was a bona fide occupational qualification for the job of prison guard.

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Announcing the opinion for a 6 to 3 vote Court, Stewart upheld Regulation 204. He acknowledged that women should ordinarily be allowed to decide how much risk they wished to accept in their working conditions. In this case, however, he maintained, the state's interest in prison security outweighed the woman's right to self-determination. The dangers created by overcrowded prison conditions make women susceptible to attacks from men prisoners who have long been deprived of women's company. Stewart rejected the claim that the Court was motivated by a "romantic paternalism" toward women, insisting that a woman's ability to keep order in a maximumsecurity prison could be directly "reduced by her womanhood." 23

Sex-Segregated Advertising In August 1965, an EEOC guideline condemned discrimination in newspaper advertising on the basis of race, religion, or national origin but was silent on the question of sex. After protests by women's groups, the EEOC created an ad hoc committee to study sex-segregated ads. Dominated by advertising agencies and newspapers, the committee determined that Title VII did not bar them. The EEOC subsequently voted 3 to 2 in favor of allowing sex-segregated ads but required newspapers to insert disclaimers that they were not intended to deter job applicants of the other sex. Finally, in August 1968, the EEOC reversed itself and issued a guideline against such advertising. 24 Although some newspapers had voluntarily abandoned the practice of running separate help wanted ads, many did not. In keeping with the spirit of Title VII, Pittsburgh adopted an ordinance mirroring the statute's prohibition on employment discrimination on the basis of sex, except where sex was a bona fide occupational qualification. 25 In October 1969, NOW filed a complaint with the Pittsburgh Commission on Human Relations, charging that the Pittsburgh Press Company violated the ordinance by allowing prospective employers to place sex-designated ads for jobs in which sex was not a BFOQ. The Supreme Court had to decide whether the ordinance violated the newspaper's First Amendment right to publish free of government censorship. In a 5 to 4 decision handed down in 1973, in Pittsburgh Press v. Pittsburgh Commission on Human Relations,26 the Court upheld the ordinance against the First Amendment challenge, ruling that such advertisements could not be limited by sex. By banning sex-specific help wanted ads, eliminating state protective legislation, and undermining the BFOQ defense, the federal courts eradicated many of the overt barriers to sex equality in employment in the 1970s. Despite these victories, however, women were forced to continue fighting for equal employment opportunity on many fronts.

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Proving Discrimination Under Title VII The courts identified two kinds of Title VII violations: disparate treatment and disparate impact. Describing the former as the "most easily understood type of discrimination," 2 7 the Supreme Court believed that Congress's primary impetus for enacting Title VII was to eliminate it. A disparate treatment lawsuit, which requires proof of a discriminatory motive, reflects the most common understanding of discrimination, that is, that "people [are treated] less favorably than others because of their race, color, religion, sex, or national origin." 2 8 But if Title VII were limited to cases in which discriminatory motivation must be shown, employers would quickly learn to mask their motives, and Title VII would be vitiated. Disparate impact cases, in contrast, do not require proof of discriminatory motives. They involve an employment practice or policy that is facially neutral, but has the effect of restricting job opportunities for selected groups of people. Although the disparate treatment cases account for the vast majority of claims, the impact cases, largely brought as class action suits, are likely to have a more far-reaching effect on large numbers of people. As the case law emerged, the courts began to differentiate between the two types of claims by allocating different burdens of proof to the respective parties in the case.

Disparate Treatment Cases The key to winning a lawsuit in a disparate treatment case lies in the plaintiff's ability to show that the employer had an intent to discriminate. In 1973, in McDonnell Douglas v. Green,29 the Court set forth the trial procedure in a disparate treatment claim; in addition to designating the type of evidence each side must produce, the Court specified the allocation of the burden of proof. 3 0 Subsequent cases have refined and refined the original formulation. 3 1 Title VII plaintiffs must present four elements to establish their prima facie case in the first stage of the trial: first, they are members of a class protected by Title VII; second, they are qualified for the job; third, they applied for and were rejected for the job or denied the promotion; and fourth, the prospective employer continued to seek employees with their qualifications. 3 2 At the second stage of the trial, the "rebuttal" phase, the employer has an opportunity to refute the plaintiff's prima facie case by stating a "legitimate, nondiscriminatory reason" for the decision not to hire or promote; the burden of proof remains on the plaintiff, however. The employer is merely required to provide a nondiscriminatory basis for the employment decision but does not have to prove that the stated reason was the one that motivated the decision. At the last stage, the "pretext" stage, plaintiffs must demonstrate that the employer's proffered reason was a pretext for a discriminatory motive, either by showing it was more likely than not that the employer was motivated by

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discrimination or that the explanation offered by the employer to justify the action was not credible.

Mixed Motive Cases The theory of disparate treatment was designed for cases in which an employee charges that intentional discrimination was the sole basis for an adverse job decision. But more commonly, employment decisions are based on both legitimate and illegitimate grounds. These so-called mixed motive cases are "particularly [relevant] in the context of the professional world, where decisions are often made by collegial bodies on the basis of largely subjective criteria. Requiring the plaintiff to prove that any one factor is the definitive cause of the decisionmakers' actions may be tantamount to declaring Title VII inapplicable to such decisions." 3 3 Thus, even though a plaintiff is able to show that race or sex played a role in the employment decision, the employers will prevail because they can almost always point to legitimate reasons for the decision as well. The Supreme Court formulated its approach to mixed motive disparate treatment cases in the 1989 case of Price Waterhouse v. Hopkins,34 a plurality decision substantially devoted to determining which side bears the burden of proof at the second stage of the trial. Ann Hopkins sued Price Waterhouse for refusing to promote her to a partnership position in the accounting firm, claiming that sex stereotyping among the partners played a significant role in their decision. After denying that its decision was motivated at all by sex, Price Waterhouse argued that even if her sex were a consideration, Hopkins should be required to prove that she would have been promoted in the absence of discrimination. The Court, however, held that once an employee shows that sex is a motivating factor in an employment decision, the employer must prove the result would have been the same if the discriminatory motive had not played a role in the employment decision. These cases differ from the pure pretext cases in which the defendant must simply articulate a legitimate nondiscriminatory reason for the decision; in mixed motive cases, when the employee provides evidence that the employer relied, at least in part, on discriminatory factors, the burden of proof shifts to the defendant at the second stage of the trial, much like an "affirmative defense." And to meet this burden, employers have to provide "objective" evidence to support the decision. Employees benefit from this shifting burden because although they may have proof that discrimination played a role in the employment decision, they rarely have enough evidence to show it was the key factor. Overall, the decision advanced the cause of women's rights, but the high court reversed the appellate court's holding that the employer must satisfy a "clear and convincing evidence" standard. 3 5 The Supreme Court allowed

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employers to meet their burden with the lesser "preponderance of the evidence" standard.

Disparate Impact Cases Following the passage of Title VII, when discrimination on the basis of race, sex, and national origin w a s forbidden, companies devised policies that purported to rely on objective criteria for job selection. N o t overtly discriminatory, such facially neutral criteria often have the effect of restricting job opportunities for w o m e n and minorities. 3 6 Because it is exceedingly difficult—if not impossible—to prove that such policies are motivated by discriminatory intent, the courts began to apply Title VII to claims of "unintentional" discrimination under a disparate impact theory. The theory was not revolutionary. The 1965 Voting Rights Act ( V R A ) had outlawed voting mechanisms that had either the purpose or effect of discriminating on the basis of race. According to Drew D a y s III, assistant attorney general for civil rights under President Jimmy Carter, the VRA's "emphasis on preventing discriminatory effects reflected the changing v i e w of the nature of discrimination; namely, that discrimination f l o w s not only from individuals but also from certain institutional arrangements which, whatever the motive for their establishment, disadvantage racial minority group members and women." 3 7 In the 1971 landmark decision Griggs v. Duke Power Company,38 the Court considered whether employment policies with a disproportionate impact on w o m e n and minorities fell within the purview of Title VII. The plaintiffs in Griggs were African Americans w h o worked in the Duke Power Company's Dan River Steam Station. They complained that the company violated Title VII by requiring a high school education or specified scores in standardized tests for higher-status jobs in the plant, which, they argued, disqualified them at a "substantially" higher rate than whites and excluded them from the higher-paying j o b s . 3 9 Speaking for a unanimous Court, Burger held that the statute "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to j o b performance, the practice is prohibited." 4 0 He continued, saying that a successful defense in such a case requires the employer to show that the practice or policy measures j o b performance. Because Duke Power was unable to show that either the testing or educational requirements accurately predicted job performance—indeed, it had imposed these standards without even determining that they were related to work on the job—the Court found it guilty of the Title VII violation. The importance of Griggs cannot be overstated. Former chief of the E E O C Office of Conciliations Alfred Blumrosen believed that "few decisions

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in our time—perhaps only Brown v. Board of Education—have had such momentous social consequences" as Griggs.41 Similarly, past EEOC chair Eleanor Holmes Norton asserted that "the Griggs Court, in announcing the disparate impact theory, defined the most important concept in modern employment discrimination work." 42 As a result of Griggs and a 1975 decision, Albemarle Paper Company v. Moody,43 the Supreme Court created a three-part test to determine when job selection procedures with a disproportionate or disparate impact on women and minorities violate Title VII. 44 In disparate impact cases, the plaintiffs must identify a facially neutral (nondiscriminatory on its face) employment policy or practice that disadvantages them. The burden of proof then shifts to the employer to justify the employment criteria, such as written tests, height and weight limits, or high school diplomas, as a business necessity by showing that they have "a manifest relationship" to the employment and there are no alternate selection procedures with a lesser disproportionate impact on the group in question. If the employer convinces the court that the employment criteria are job related, the plaintiffs have an opportunity to demonstrate the availability of a less discriminatory alternative. As in disparate treatment cases, the allocation of the burden of proof is often the crucial element of the case. Following Griggs and Albemarle, most lower courts ruled that the burden of proof shifts to employers to show business necessity after plaintiffs demonstrate that high test scores or other qualifications have an adverse impact on them. But they were unable to agree on the requirements of proof; the high court added to the confusion by its indiscriminate use of such phrases as "business necessity," "related to job performance," and "manifest relationship to the employment in question" in discussing the employer's burden 4 5

Height and Weight Requirements Height and weight mínimums, which are often used by law enforcement agencies, exemplify "neutral" employment requirements that restrict women's employment opportunities. In 1977, the Supreme Court assessed the disparate impact of height and weight requirements on women applying for prison guard jobs in Dothard. Rawlinson claimed that the 120-pound minimum weight requirement and 5-foot 2-inch minimum height requirement violated Title VII by disproportionately affecting women. She presented evidence that women fourteen years and over constituted 52.75 percent of the Alabama population and 36.89 percent of its total labor force, yet they held only 12.9 percent of the correctional counselor positions. The state argued that Rawlinson's statistics were not valid because they were based on the national population as opposed to actual job applicants. Delivering the opinion of the Court on this claim, Stewart noted that the sta-

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tistics need not reflect the applicant pool because applicants below the minimum height or weight would have been discouraged from applying. Moreover, he said, national figures are acceptable because there is no reason to assume that the physical characteristics of Alabama men and women are different from those in the national population. Alabama also contended that height and weight were valid measures because they were related to strength, essential to the job of prison guard. But the prison authorities offered no evidence to show that the height and weight requirements were correlated to "the requisite amount of strength thought essential to good job performance." 4 6 Reiterating an earlier theme, the Court noted that employers must "prov[e] that the challenged requirements are job related." 4 7 Because Alabama had not done so, it had not met its burden under Title VII, and although the state had prevailed on the BFOQ defense, it lost on the issue of height and weight requirements.

Subjective Employment Criteria Many employment decisions, especially at the professional or managerial level, are based on subjective judgments, rather than objective criteria such as scores on a test or numbers on a height and weight chart. Women seeking jobs traditionally held by men are particularly vulnerable because employers' decisions may be influenced by unconscious stereotypes or prejudices about their proper societal roles. The circuit courts were divided on whether they should employ a disparate impact model for subjective selection procedures or whether they should use the McDonnell Douglas intentional discrimination test. In part, the lower courts that opted for the disparate impact analysis did so because of the difficulty of proving intentional discrimination when subjective measures were used to hire or promote employees. The Supreme Court resolved the conflict among the circuits in 1988 in Watson v. Fort Worth Bank and Trust.48 The case was brought by Clara Watson, an African American woman who filed a complaint against the Fort Worth Bank, claiming she was denied promotion to a supervisory position four times within one year. The bank had no formal criteria for evaluating applicants for promotion; its supervisors used their discretion in the selection process. Each time Watson applied, a white supervisor, using subjective judgment, rejected her application and offered the job to a white person. Her suit for employment discrimination, under both disparate treatment and disparate impact theories, was dismissed by the lower courts. In an 8 to 0 decision, the Supreme Court reversed the courts below. Speaking for the Court, O'Connor declared that challenges to subjective selection procedures must be included within the disparate impact analysis because otherwise employers would easily evade responsibility by adding interviews or other subjective factors to an objective (and illegal) selection

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process. However, although the justices agreed that disparate impact theory was applicable to claims of discrimination arising from subjective judgments, they were sharply divided on the requirements of proof. Speaking for a plurality of four, O'Connor suggested a new framework for disparate impact cases that would allow employers to rebut the plaintiff's prima facie case more easily. The bank had claimed that unlike objective criteria, it was impossible to validate subjective measurements, such as common sense, self-confidence, good judgment, or interpersonal skills; it warned that employers could defend themselves in such disparate impact cases only by creating a quota system with enough women or minorities in supervisory positions to prevent plaintiffs from establishing prima facie cases based only on statistics. She sympathized with this view, noting that racial or sexual quota systems were impermissible under Title VII. To address the employer's concerns, O'Connor urged the Court to abandon the Griggs-Albemarle approach and adopt the same analysis for all Title VII claims; she would require plaintiffs in disparate impact cases to carry the burden of proof throughout the trial as they do in disparate treatment cases. Under her formulation, disparate impact plaintiffs would have to establish a prima facie case in three steps: first, present evidence of a statistical disparity in the workforce; second, identify the specific discriminatory employment practice responsible for the disparity; and third, offer statistical evidence that applicants of their race or sex are excluded by the practice. And, to further ease the employer's burden during the second phase of the trial, she would permit the employer to rebut the plaintiff's prima facie case only by showing—not proving—that the employment practice was based on "legitimate business reasons" rather than "business necessity." 49 Blackmun wrote to express his disagreement with the plurality's analysis, charging that it "is flatly contradicted by our cases." 50 Citing Griggs, Dothard, and Albemarle, he stressed that the Court had repeatedly used the word prove to describe the employer's burden in establishing the business necessity of a challenged policy. He maintained that the plurality was confusing the two types of Title VII analyses. In cases of intentional discrimination, in which the plaintiff's prima facie case merely creates an inference of an intent to discriminate, it would be unfair to shift the burden of proof to the employer in the second stage of the trial. However, in disparate impact cases, he explained, it is fair to shift the burden of proof to the employer after the plaintiff establishes a prima facie case because the plaintiff has presented direct proof that a particular employment practice caused a significant numerical disparity. Merely requiring the employer to articulate, rather than prove, a nondiscriminatory justification in a disparate impact case "is simply not enough to legitimatize a practice that has the effect of excluding a protected class from job opportunities at a significantly disproportionate rate." 51

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A New Direction for Disparate Impact Theory Because Kennedy had not participated in Watson, there was no majority opinion on the shifting burden of proof issue. A year later, in Wards Cove Packing Company v. Atonio,52 a Court majority was formed to settle this question. Wards Cove began in 1974 with a Title VII suit brought by minority workers, primarily Filipinos and Alaska natives, in the Alaska salmon industry; the workers claimed they were victims of discrimination because they held primarily unskilled lower-paying cannery positions, and white workers occupied most of the higher-paying skilled noncannery positions. Additionally, they charged the company with maintaining segregated employee housing and dining facilities. Cannery workers were hired locally in Alaska, whereas the noncannery workers were hired during the winter off-months from company offices in Washington and Oregon. Identifying these and other hiring and promotion policies, the workers filed suit under both disparate treatment and disparate impact theories. The Ninth Circuit ruled that plaintiffs had made a prima facie case of disparate impact by presenting statistics showing a high percentage of minority workers in cannery jobs and a low percentage of minority workers in noncannery jobs; it remanded the case to the lower court, instructing it to require the employer to prove the business necessity defense. 5 3 The Supreme Court accepted the case for review because it presented an opportunity to resolve the question of the burden of proof in disparate impact cases, the issue on which the Court had been divided in Watson. In a 5 to 4 vote, with White delivering the majority opinion, the high court dismissed the circuit court's formulation of the proper statistical comparison for establishing a prima facie case of disparate impact under Title VII. White began by rejecting the plaintiffs' statistical analysis showing a strong correlation between minority status and unskilled cannery jobs. In disparate impact cases, he said, the proper comparison was between the number of persons in the jobs at issue and the number of qualified persons in the labor market. Employers were not guilty of discriminating if no qualified nonwhite applicants were available for the better jobs. But under the appellate court's approach, he emphasized, employers would be forced to defend themselves against discrimination suits simply because there were few minorities on the job. Concluding that the plaintiffs had not established a prima facie case of disparate impact, the Court reversed the appellate court and remanded the case to determine whether the plaintiffs had established a prima facie case of discrimination under the proper statistical analysis. The Court then addressed two remaining points of contention raised in the case. Citing O'Connor's opinion in Watson, White specified that to establish a prima facie case of discrimination, the plaintiffs had to point to a "particular" discriminatory

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employment practice that led to the disparate impact, demonstrating that each challenged practice led to the disparate impact they cited in their complaint. Introducing the issue of the burden of proof, notwithstanding the contrary language in Griggs, White adopted O'Connor's suggestion about the shifting burden during the second phase of the trial. He turned Griggs on its head by announcing that the disparate impact plaintiff must retain the burden of proof throughout the trial (just like the disparate treatment plaintiff). Thus, once the plaintiff establishes a prima facie case of discrimination, the employer must merely show "that the challenged practice serves, in a significant way . . . legitimate employment goals"; there is "no requirement," he continued, that it "be 'essential' or 'indispensable' to the employer's business." 54 Aware of the potentially explosive effect of this pronouncement, White acknowledged that some might think the Court was deviating from established case law. "But," he insisted, "to the extent that those cases speak of an employer's 'burden of proof' with respect to a legitimate business justification defense . . . they should have been understood to mean an employer's production—but not persuasion—burden." 55 Blackmun's dissent accused the Court of "tak[ing] three major strides backwards in the battle against race discrimination"; he questioned whether the majority "still believes that race discrimination—or, more accurately, race discrimination against nonwhites—is a problem in our society, or even remembers that it ever was." 5 6 In strong language, he charged the industry with displaying "a kind of overt and institutionalized discrimination [that] we have not dealt with in years: a total residential and work environment organized on principles of racial stratification and segregation which . . . resembles a plantation economy." 57 In his own bitterly worded dissent, Stevens accused the majority of "retreat[ing]" from its long-established commitment to furthering the principles of equality and "turning a blind eye to the meaning and purpose of Title VII." 5 8 Claiming that the majority's cavalier treatment of "settled law" required a "primer" on Title VII case law, he reviewed the eighteen-year history of disparate impact and disparate treatment analysis since Griggs and focused on what he termed the majority's error in failing to shift the burden of proof to the defendant at the second stage of the inquiry. Distinguishing between disparate treatment and disparate impact cases, he explained that in the former, when there is only indirect evidence of an intent to discriminate in the plaintiff's prima facie case, the court utilizes the McDonnell Douglas analysis to explore the employer's motive. And because there is no Title VII violation until the discriminatory motive is established during the third stage of the trial, the burden of proving the discrimination remains with the plaintiff throughout the trial. Because intent is irrelevant in disparate impact cases, he stressed, the Title VII violation is established once employees present a factual showing of

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a disproportionate impact on a Title VII protected class. With the Title VII violation settled, he said, the employer can only "justify the practice by explaining why it is necessary to the operation of business." Drawing on established legal principles, Stevens characterized the employer's burden in the second phase of a disparate impact case as "a classic example of an affirmative defense." 5 9 He argued that the Court had always placed the burden of proof on the employer in disparate impact cases. Protesting the majority's "casual—almost summary—rejection of the statutory construction that developed in the wake of Griggs," he emphasized that he "always believed that the Griggs opinion correctly reflected the intent of the Congress that enacted Title VII. [And] even if I were not so persuaded," he continued, "I could not join a rejection of a consistent interpretation of a federal statute." 6 0

The Civil Rights Act of 1991 By changing the long-standing rules of disparate impact lawsuits, the Court undermined Griggs and sharply reduced the effectiveness of Title VII in battling employment discrimination. 6 1 In February 1990, Democrats Ted Kennedy of Massachusetts and Augustus Hawkins of California each introduced a bill, S. 2104 and H. R. 4000, in their respective chambers. Known as the Kennedy-Hawkins bill, the legislation was intended to modify or reverse six civil rights rulings in the Court's 1988-1989 term. 6 2 The proposed bill would have restored the Griggs formula for allocating the burden of proof in disparate impact cases and amended Title VII to permit monetary damages under certain circumstances for victims of intentional discrimination based on sex, religion, and national origin. Additionally, it would have expanded coverage of 42 U.S.C. §1981, the 1866 law that prohibited racial discrimination in making contracts, to include a ban on racial harassment on the job as well as racially motivated firing decisions. The Bush administration objected to many aspects of the proposed bill, including the provisions for awarding damages under Title VII. However, the crux of the president's argument was that it would force employers to establish racial and sexual hiring and promotion quotas to avoid Title VII lawsuits. Supporters of the bill countered by saying that the bill merely restored the Court's ruling in Griggs, which, they contended, had not led to companies adopting quotas to protect themselves against discrimination suits. Following approval by Senate and House committees, congressional supporters continued meeting with White House officials to try to arrive at language that would be acceptable to the president. In an effort to show his commitment to civil rights, although the attorney general announced he would recommend a presidential veto, the president indicated he wanted to approve

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the legislation. In a White House Rose Garden ceremony on May 17, 1990, he stated: "I want to sign a civil rights bill, but I will not sign a quota bill." 63 Negotiations with the White House continued over the summer, but on July 18,1990, amid "partisan rancor" and in the face of a veto threat, the Senate bill, S. 2104, was approved in a 65 to 34 vote, ten Republicans joining with the fifty-five Senate Democrats to support the bill. 64 A few weeks later, on August 3, 1990, the House approved H.R. 4000 in a 272 to 154 vote. The vote was twelve votes short of a veto override. 65 Seeking to accommodate the president, Senate and House conferees produced a compromise bill that was approved by the Senate on October 16, 1990, in a 62 to 34 vote. Bush renewed his objections to the bill, however, warning that it would "forcfe] businesses to adopt quotas in hiring and promotion"; he also predicted it would "foster divisiveness and litigation rather than conciliation and do more to promote legal fees than civil rights." 66 House approval of the conference report came a day later in a 273 to 154 vote. 67 On October 22, 1990, after it was clear that he and Congress were at an impasse, Bush vetoed it, becoming the second president (along with Reagan) in the twentieth century to veto civil rights legislation. Proclaiming his commitment to civil rights and urging Congress to act on his proposed alternative introduced two days earlier, Bush pointed out similarities in the two bills and expressed his support for several provisions of the congressional measure. But, he said, the differences were manifest, for "despite the use of the term 'civil rights' in the title of S. 2104, the bill actually employs a maze of highly legalistic language to introduce the destructive force of quotas into our nation's employment system." He further criticized S. 2104 for its "sweeping re-write of two decades of Supreme Court jurisprudence [that] will lead to years—perhaps decades—of uncertainty and expensive litigation." 68 Two days later, the Senate failed to override the veto in a 66 to 34 vote— just one vote short of the necessary two-thirds. It is unclear why the bill's supporters were unable to garner the necessity votes to create a veto-proof bill. In part, the civil rights community attributed it to the president's misleading references to it as a "quota bill" and in part to his warnings about its effect on the business community in a receding economy. They also thought the technical nature of the bill (revolving around issues of burdens of proof and damages) prevented them from amassing enough grassroots support for it. 69 Amid attacks and counterattack from the bill's supporters and its opponents, they promised to introduce an even stronger bill in the next Congress. The presidential veto was a stunning defeat for the civil rights community, especially women's rights advocates. The bill would have extended employment discrimination remedies to all groups, but women were its primary beneficiaries. Explaining the White House's opposition to a civil rights bill that would have a major impact on fighting employment discrimination

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based on sex, one official stated that "we fought a Civil War for blacks, we didn't fight a Civil War for women." 7 0 A new civil rights bill, reflecting stronger language than the version vetoed by the president—containing no caps on monetary damages for intentional discrimination against women and religious minorities—was introduced in the 102d Congress on January 3, 1991, as H.R. 1. Cognizant of its potential effect on the upcoming presidential election in 1992, a number of supporters characterized it as a woman's rights measure. Chair of the House Judiciary Committee Democrat Jack Brooks noted that H.R. 1 would amend Title VII by allowing nonminority women to sue for money damages for intentional discrimination, giving them the same rights currently available to racial minorities of both sexes under the law known as §1981. William Ford, a Democrat from Michigan and chair of the House Education and Labor Committee, talked about a commission to study the "glass ceiling," the invisible barrier that keeps women out of high-level jobs. 71 House Republicans objected to H.R. 1, again raising the specter of employee quotas. Henry Hyde, a Republican from Illinois, was quoted as saying: "I can envision signs that read: 'Help Wanted: four women, two African-American males and one Hispanic.'" 7 2 Although both sides agreed on reversing the Wards Cove holding on the shifting burden of proof, they were still far apart on the evidence required for employers to meet their burden in disparate impact cases and the limits on damages in Title VII in cases of intentional discrimination. Under H.R. 1, the employer would have to show that the challenged practices "bear a significant relationship" to workers' success on the job. The administration favored language requiring the employer to show that the practice had a "manifest relationship to the employment" or that it "significantly served" the employer's goals. Also, H.R. 1 would have allowed lawsuits in all forms of intentional discrimination, not merely harassment, and placed no limits on available damages. The White House wanted to allow employees to collect money damages only in harassment cases and only after exhausting company remedies, with damages limited to $150,000. 73 Against a backdrop of behind-the-scenes maneuvering, including failed negotiations between business groups and civil rights leaders, with the rhetoric becoming sharper and threats of a presidential veto being renewed, a substitute version of H.R. 1 cleared the House on June 5, 1991, in a 273 to 158 vote, more than a dozen votes short of those needed to override the expected veto. As passed, the bill represented a last-minute effort to compromise with the White House by explicitly banning quotas in hiring or promotion and placing a limit of $150,000 on damages available in disparate treatment suits brought by women, religious minorities, or disabled people. 74 No formal Senate action took place all summer, but in October, the Senate and White House agreed on a compromise bill, S. 1745, that represented

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an agreement put together by administration officials, Senate Republican John Danforth of Missouri, and Kennedy. The president claimed credit for it, saying he had been in favor of a civil rights bill all along and this bill now represented his views on hiring quotas. Some members of Congress, however, complained that the bill was essentially the same as the one he had vetoed the year before. They attributed his change of attitude to political motives, such as wanting to contain the fallout from the Clarence Thomas-Anita Hill Senate hearings earlier in the month and the recent victory of former Ku Klux Klan member David Duke in the Louisiana Republican primary race for governor, as well as Bush's concern over a possible veto override. 75 Without defining "business necessity," the law now required that an employment practice be "job related for the position in question and consistent with business necessity"; it indicated that the measure was intended to reinstate the standards adopted in Griggs and other cases prior to Wards Cove76 Under the agreement reached, the measure would reverse five Supreme Court cases of the 1988-1989 term, primarily Wards Cove. The law placed the burden of proof on employers in disparate impact cases during the second phase of the trial, requiring that they prove a business necessity defense; it also waived the requirement that the job applicant must point to the specific discriminatory employment practice in all cases. Additionally, it reversed the Court's ruling in Price Waterhouse by declaring that improper motives could not play any role in an employment decision. 77 Expanding on the availability of Title VII remedies, the act allowed victims of intentional discrimination based on sex, religion, or disability to collect limited money damages, including punitive damages in certain circumstances, in addition to back pay; additionally, they could demand jury trials when they sought such damages. 78 There were no limits on damages for back pay or past expenses, such as medical bills, but damages for pain and suffering and punitive damages were dictated by the size of the business, ranging from $50,000 for employers with 15-100 workers to $300,000 for a company with more than 500 employees. 79 To collect punitive damages, workers would have to show the employer acted with "malice or reckless indifference to [their] federally-protected rights."80 The law also extended protection under Title VII and the ADA to U.S. workers on foreign soil, reversing the Court's recent ruling in Equal Employment Opportunity Commission v. Arabian American Oil Company 81 The Senate approved S. 1745 on October 30, 1991, in a 93 to 5 vote. The final version established a commission to study the "glass ceiling" effect and allowed Senate employees a partial right to sue under the act. The House voted to approve S. 1745 in a 381 to 38 vote on November 7, 1991, and two weeks later, on November 21, 1991, the president signed the Civil Rights Act of 1991 into law. Despite the compromises that led to the passage of the bill, tensions were renewed at the signing ceremony. The controversy arose over a contradiction between the president's oral remarks and the written statement

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issued by the White House. In the White House's analysis, the law should be interpreted according to a memorandum written by Senate majority leader, Bob Dole, which characterized it as an "affirmation of existing law," despite the fact that the bill was intended to reverse numerous Court decisions over the past several years. 82

Title VII After t h e 1991 Civil Rights Act Since passage of the 1991 act, there has been a marked increase in employment discrimination litigation, and it is likely that much of it is attributable to the expanded opportunities for plaintiffs to collect damages under the ADEA, Title VII, and the ADA. According to court records, workers brought 10,771 lawsuits in 1992 and more than doubled that to 23,000 in 1996. 83 The Court has further refined issues of proof in Title VII cases. In St. Mary's Honors Center v. Hicks,84 a 1993 ruling and the first major Title VII decision after the 1991 act, the Court held that a lower court should not automatically find in favor of a plaintiff, even if there is proof that the employer's asserted reason for the employment action was a pretext. It noted that the employee retains the burden of proof at all times and must convince the court that he or she was subjected to unlawful discrimination and that such proof requires more than a mere showing that the employer's explanation was untrue. 85 In addition to the confusion generated by the president's statement at the signing ceremony over the interpretation of the act, there was also controversy over how the law affected actions filed before it was passed. About a month after the bill was signed, the EEOC issued a policy statement, saying that because Congress had not specified whether the law was retroactive, it did not apply to persons whose suits were pending on November 21 or if the discrimination they complained of occurred before November 21. 8 6 In 1994, in two companion cases, Rivers v. Roadway Express, Inc.?1 involving a claim of racial discrimination under §1981, and Landgraf v. USI Film Products,88 involving a suit for sexual harassment under Title VII, the Court ruled 8 to 1 that the 1991 act did not apply to conduct that occurred before it was passed. The majority looked for a clear indication of congressional intent to resolve the matter and, finding none, was in part persuaded that because the president had vetoed the 1990 bill that had established retroactivity, Congress omitted the language of retroactivity in the later bill to avoid a presidential veto. Blackmun dissented in both cases, saying it was not "unjust" to hold employers accountable for laws that had been on the books for decades. The Court returned to the question of proof raised in St. Mary's in Reeves v. Sanderson Plumbing Products, Inc.?9 an age discrimination case decided in 2000. In a ruling that also applied to suits brought under Title VII and the

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ADA, the Court unanimously held that although a court may not automatically rule in favor of the plaintiff, the employee is not required to have actual proof of the discrimination but may win by proving the employer's reason was pretextual, allowing the court to infer that discrimination was the real reason. And even more recently, in Swierkiewicz v. Sorema N. A., 9 0 a February 2002 opinion, the Court unanimously ruled in favor of the plaintiff, reversing the lower court. Following circuit precedent, the appellate court dismissed the case brought by Akos Swierkiewicz, a fifty-three-year-old native of Hungary, who sued his employer on the basis of national origin and age discrimination. The lower court granted the employer's motion to dismiss because the plaintiff had not presented sufficient evidence to make a prima facie case under the McDonnell Douglas formula. 9 1 The issue before the Supreme Court was whether to hold the plaintiff to the McDonnell Douglas standard in the initial stage of the suit—the pleading stage. To do so would require an employee to have the information needed to make the prima facie case before the discovery phase, that is, before he or she has access to the employer's records. The Court held that the pleading rules of the federal courts merely require that a suit give "fair notice" to a defendant of an action against it and that it was unjust to dismiss the case at the preliminary stage for failing to do more than that.

Affirmative Action Although Title VII helped remove restrictions on employment opportunities for women and members of racial minority groups, occupational and income disparities remain, to some extent, because societal norms still disadvantage women and minorities in social, economic, and political institutions. 92 The issue is how to change the norms that accord privilege to a favored group. One answer is affirmative action. In the midst of debate over Title VII in 1964, members of Congress asked whether employers would be required to establish preferential hiring systems, or quotas, to achieve a balanced workforce. To eliminate this possibility, Title VII states that employers are not required "to grant preferential treatment" on the basis of race, color, religion, sex, or national origin to remedy "an imbalance" in the workforce. Several decades later, the controversy over the 1991 act was fueled by the debate over the extent to which hiring goals or quotas should play a role in eradicating the lingering effects of race and sex discrimination in employment. Proponents argue that affirmative action is a necessary tool to fight discrimination; opponents claim it is discriminatory to hire or promote on the basis of race or sex, no matter how laudable the purpose behind the action.

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The focus of the current debate surrounding affirmative action is the extent to which racial and sexual preferences can be used to remedy imbalances in the workforce caused by societal factors such as exclusion from craft unions and job training programs, denial of access to educational opportunities, and poverty, rather than the employer's own discriminatory actions. 9 3 Advocates of affirmative action contend that because discrimination has prevented women and minorities from achieving equality in the workforce, employers must take sex or race into account when making employment decisions—whether they were guilty of discriminating or whether the imbalance resulted from the widespread effects of societal discrimination. They argue that combating entrenched patterns of segregation requires a commitment to change involving goals and timetables and to removal of the vestiges of discrimination based on race or sex or national origin. 9 4 Opponents of affirmative action maintain that promoting or hiring on the basis of these characteristics violates federal law and is antithetical to the widely held belief in the American value of individualism, which posits that an individual's success must be a reward for individual merit. 9 5

The Origins of Affirmative Action The modern era of the federal government's attack on discrimination began in 1961, when Kennedy established the Committee on Equal Employment Opportunity. Johnson's 1965 Executive Order (EO) 11246 prohibited federal contractors from discriminating on the basis of race, religion, or national origin; it was amended in 1967 by EO 11375 to include sex discrimination. The Office of Federal Contract Compliance (OFCC), later known as the Office of Federal Contract Compliance Programs (OFCCP), was created in 1966 as part of EO 11246. Authorized to ensure compliance with the executive order, it required self-evaluation and reporting by employers and imposed goals and timetables to remedy minority underrepresentation. 9 6 In 1968, the OFCC promulgated regulations ordering all federal contractors with fifty employees or more and contracts of at least $50,000 to produce written affirmative action plans. A year later, under what became known as the Philadelphia Plan, government contractors were required to employ "good faith efforts" to remedy past discrimination against skilled minority workers in the construction industry by setting goals and timetables for increasing minority hiring.

Affirmative Action and the Reagan Administration During the 1980s, the controversy over affirmative action intensified as Reagan set about changing the executive branch's role in enforcing civil rights laws. Civil rights attorney Norman Amaker argued that "the president adopted policies designed to facilitate the change he and his advisers believed was

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needed and, in so doing, reversed many of the existing policies in a manner often described as 'turning back the clock' of civil rights enforcement." 97 The major impetus for the change in civil rights policy came from Reagan's Justice Department, which argued that numerical hiring and promotion goals were unacceptable remedies for employment discrimination. It took primary aim at the goals and timetables strategy that courts and executive agencies such as the EEOC and OFCCP had used for more than a decade to monitor compliance with affirmative action plans. In scholarly writings, congressional testimony, and appellate briefs, the Reagan Justice Department denounced affirmative action, labeling efforts to redress the racial and sexual imbalance in the workforce as discrimination and urging the elimination of widespread race-conscious remedies in employment discrimination suits; it sought to limit compensation to identified victims of discrimination only. Early in the Reagan administration, Assistant Attorney General William Bradford Reynolds testified before a House subcommittee that "the Justice Department will not urge or support in any case the use of quotas or any other numerical or statistical formulae designed to provide to non-victims of discrimination preferential treatment based on race, sex, national origin, or religion." 98 Later, writing in 1989, Reynolds warned that "negative preference had wormed its way into the policy of 'affirmative action' and threatened everything sacred to the American ideal of equality of opportunity." 99 The dispute between the Reagan administration and the civil rights community centered around the administration's view that affirmative action constituted unlawful discrimination against white men, whom it called "innocent victims." 100 White House officials argued that extending preferential treatment to racial or sexual groups to redress a statistical imbalance not of the employer's making was contrary to Title VII, insisting that even when employers were found guilty of discrimination, the remedy must be as narrow as possible and limited to those who could prove they personally suffered discrimination. In 1984, the White House came closest to achieving judicial endorsement for its position that Title VII relief must be limited only to minority group members identified as victims of past discrimination, when the Supreme Court reversed a lower court order requiring white firefighters to be laid off first to protect the jobs of blacks, hired more recently under a court-approved affirmative action plan. 101 Soon the Justice Department raised challenges to minority hiring plans in more than fifty cities across the United States. 102 But the sense of victory was short-lived. Two years later, the Court ruled that Title VII relief was not restricted to identified victims only. 103 Reagan's civil rights posture was also reflected in EEOC policy. Following the lead of the Justice Department, EEOC chair Clarence Thomas expressed opposition to the goals and timetables approach. In testimony before a House subcommittee in March 1986, Thomas reported EEOC "skep-

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ticism about the values of goals and timetables, relative to the value of other available remedies in providing equal employment opportunities and eradicating discrimination." 104 The administration also sought to revise the regulations enforcing EO 11246 by eliminating the use of goals and timetables in affirmative action plans. 105 Although the regulations remained in force, the OFCCP's effectiveness in monitoring compliance by federal contractors diminished sharply; between 1981 and 1986, there were only two instances of federal funds being withheld from noncompliant companies. 106 Finally, the president's power over judicial appointments gave him an opportunity to seat like-minded judges on the federal courts. By 1988, almost half the members of the federal bench had been appointed by Reagan: he named seventy-eight of the 160 full-time appellate court judges and 292 of the 556 full-time district court judges. 107 With O'Connor's appointment in 1982, Reagan had his first opportunity to place his imprimatur on the Supreme Court. Later appointments of Scalia and Kennedy and Rehnquist's elevation to chief justice made it more likely that the president's opposition to affirmative action would prevail. Affirmative Action and the Supreme Court The Supreme Court entered the debate over affirmative action in 1978 in Regents of the University of California v. Bakke.108 In a highly fragmented plurality opinion, the Court announced that the University of California at Davis Medical School could not establish a separate admissions policy for racial minorities but that its admissions decisions could take race into account. Since Bakke, the Supreme Court has accepted affirmative action employment plans as part of a judicial order to remedy past discrimination against minorities and has rejected the Reagan administration argument that preferential treatment must be solely limited to identified victims of discrimination. 109 It has allowed employers (both public and private) to voluntarily adopt affirmative action plans to redress societal discrimination, that is, an imbalance in the workforce not of their making. But in other cases, it has insisted on evidence of past discrimination by the employer and stopped short of approving preferential treatment by employers who have not been found guilty of past discrimination. The confusion in affirmative action law is partly attributable to the Court's application of Title VII to some employment situations and of constitutional equal protection to others. In general, when Title VII is applied to an affirmative action plan, it is more likely to be upheld. And when the constitutional test with its more exacting scrutiny comes into play, the plan is less likely to be approved. Despite inconsistencies, it is possible to isolate two major principles that have guided the justices in deciding most affirmative action cases: first, the

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burden placed upon "innocent" parties must not be too onerous; and second, there must be some evidence of past discrimination to justify the preferential treatment. 1 1 0 Balancing these considerations, the Supreme Court has permitted race-conscious recruitment in an apprenticeship training program, a preferential promotion policy, court-ordered quotas for minority union memberships, a federal public works set-aside program, and a federal program that aided women and minorities in obtaining broadcast licenses. 1 1 1 In limiting affirmative action remedies, the Court has refused to accept affirmative action plans that protect the jobs of minority employees at the expense of more senior white employees when layoffs are instituted. It has also rejected a municipal minority set-aside program in the absence of evidence of past discrimination by the city as well as a federal plan to increase the number of minority federal contractors. 1 1 2

Affirmative Action and Title VII Title VII law developed as the result of employment discrimination suits by women and minorities. The statute was put on a collision course with itself when court-ordered remedies for employment discrimination fostered a new round of suits by white men, arguing that their employer's preferential treatment of women and minorities violated Title VII. In part, the judicial response depended on whether the affirmative action plan was a voluntary action by an employer to remedy discrimination, whether it resulted from a consent decree (a judicially approved agreement between parties arising out of a suit), or whether it was implemented in a judicially prescribed remedy. The Court's first affirmative action employment decision was its 1979 ruling in United Steelworkers of America v. Weber,1' ^ in which Brian Weber, a white employee, filed a Title VII complaint against his employer, Kaiser Aluminum and Chemical Corporation of Louisiana. Kaiser had entered into a collective bargaining agreement with the Steelworkers Union in 1974, in which the company created training programs in three skilled craft positions. The programs were open to all employees on the basis of seniority, but 50 percent of the openings were reserved for minority workers. Kaiser's agreement with the union was voluntary. The company had never been found guilty of discrimination; it was motivated by the low percentage of minorities in its craft positions, who comprised fewer than 2 percent of the skilled workforce in the plant yet equaled 39 percent of the area labor force. The scarcity of African American employees was largely attributable to prior discrimination by the craft unions; Kaiser had hired only workers with craft experience, and African Americans lacked the experience required for the Kaiser jobs. Concerned about a Title VII lawsuit from its minority employees, Kaiser decided to institute a training program to make them eligible for its craft jobs.

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Weber, with six years of experience at the plant, was denied admission into the training program despite higher seniority than two admitted African American workers. He argued that the apprenticeship program violated Title VII's statement on preferential treatment on the basis of race, sex, or national origin. The Court rejected his argument, finding that Title VII allowed employers to create voluntary programs "designed to break down old patterns of racial segregation." 114 Weber created a two-part test for voluntary affirmative action plans. First, the plan had to be justified by "manifest racial imbalances in traditionally segregated job categories." 115 Second, it must not "unnecessarily trammel the interests of the white employees," which would be determined by whether it was temporary, whether it led to "the discharge of white workers and their replacement with new black hirees," whether it created "an absolute bar to the advancement of white employees," and whether it was intended to "maintain racial balance" or designed as a short-term effort to "eliminate a manifest racial imbalance." 116 Almost a decade after Weber, the Court relied on it to decide its only case involving a claim of preferential treatment on the basis of sex, the 1987 case of Johnson v. Transportation Agency of Santa Clara.117 Paul Johnson, an employee of the county agency, was passed over for the job of road dispatcher in favor of Diane Joyce. 118 In part, she was promoted because the agency had adopted a voluntary affirmative action plan in 1978 to increase the number of women in certain job categories, in response to a scarcity of women and minorities in its workforce. The "long-term goal" of the plan was to achieve "a work force whose composition reflected the proportion of minorities and women in the area labor force." 119 No fixed percentage of women or minority workers was specified; but with women comprising about 36 percent of the area labor market, the county hoped eventually to fill its roster with roughly the same proportion of women workers. At the time of the competition between Joyce and Johnson, women were severely underrepresented in professional and administrative positions, and of the 238 skilled craft jobs, one of which was road dispatcher, none was held by a woman. Johnson sued, claiming that the affirmative action plan violated Title VII. Announcing the decision for the Court, Brennan assessed the county plan according to standards developed in Weber. That case, he said, "was grounded in the recognition that voluntary employer action can play a crucial role in furthering Title VII's purpose of eliminating the effects of discrimination in the workplace, and that Title VII should not be read to thwart such efforts." 120 It was not material to the Court's analysis of Title VII that Weber involved a private employer and Johnson a public employer. 121 Using Weber as the yardstick, Brennan found that the county had made a reasonable assessment that there was "manifest imbalance" in the workforce and that because of its commitment to changing this imbalance, it could con-

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sider sex as part of the promotion decision. There was no need, Brennan said, to find that the county had been guilty of sex discrimination in the past. The plan also conformed to the Weber standards because, as in that case, it did not require men to be fired and replaced by women, it did not create an absolute obstacle to advancement by men, and it was only temporary. Like the Kaiser program, the Santa Clara plan did not place an undue burden on men employees—Johnson became a road dispatcher when an opening appeared in 1983. In sum, Brennan stated, with its goal of gradually improving the sexual imbalance in the workforce, the county followed a "moderate, flexible" approach to affirmative action in which sex was a relevant factor in a promotion decision. The plan was "fully consistent with Title VII. for it embodie[dl the contribution that voluntary employer action can make in eliminating the vestiges of discrimination in the workplace." 122 Scalia dissented and accused the Court of "converting this [Title VII] from a guarantee that race or sex will not be the basis for employment determinations, to a guarantee that it often vW//."123 He was most troubled by the far-reaching implications of the majority opinion because the Court was allowing a preferential treatment plan without a finding of past discrimination. Indeed, in his view, the situation at the agency did not even constitute societal discrimination against women. "The most significant proposition of law established by today's decision," he said, "is that racial or sexual discrimination is permitted under Title VII when it is intended to overcome the effect, not of the employer's own discrimination, but of societal attitudes that have limited the entry of certain races, or of a particular sex, into certain jobs." 1 2 4 It was "absurd," he declared, to think that road crew positions were "traditionally segregated" because of "systematic" discrimination against women "eager to shoulder pick and shovel." 125 Put simply, in his view, women were not in the skilled craft jobs because they did not want to be.

The Conflict over Affirmative Action Continues The Reagan administration had entered office with a desire to alter the nation's approach to civil rights policy. Focusing primarily on administrative and judicial enforcement of the civil rights laws, the administration "pursued its agenda with a single-mindedness that perhaps was unequaled by any of its recent predecessors." 126 The Court's rulings during the 1980s reflected the nation's increasing discomfort with affirmative action, and spurred by the Reagan-Bush White House, the United States seemed to be reexamining its commitment to equal opportunity. The debate entered the political arena as civil rights advocates argued that government action was still needed to fight discrimination and

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affirmative action was merely a method of achieving the goal. They feared that a new majority was emerging that would dismantle the structure of rights put in place over the years. Their concern stemmed, in part, from the surge in ballot initiatives over affirmative action during the 1990s. The votes on these initiatives were often accompanied by legislation aimed at eliminating affirmative action plans in states such as California, Colorado, Florida, Georgia, Michigan, Oregon, Pennsylvania, South Carolina, Texas, and Washington. 127 The 1990s saw the controversy over affirmative action continue, with the struggle manifested in the battle over passage of the 1991 Civil Rights Act and the rhetorical war over quotas. Against the backdrop of criticism sparked by the new Republican majority in the House and Senate following the 1994 election, President Bill Clinton ended speculation about his position on affirmative action. In a speech at the National Archives, he said, "It should be changed now to take care of those things that are wrong, and it should be retired when its job is done." "I am resolved," he continued, "that that day will come, but the evidence suggests, indeed screams, that that day has not come. The job of ending discrimination in this country is not over." He added, "We should have a simple slogan . . . mend it, but don't end it." 1 2 8 At the beginning of the second Clinton administration, the debate was fueled, in part, by his nomination of Bill Lann Lee to fill the post of assistant attorney general for civil rights. Opposition from Republicans centered on Lee's purported radical views on preferential treatment for women and minorities and his support of challenges to California's Proposition 209, an initiative that ended the state's affirmative action programs. While the Senate was considering the Lee nomination, another controversy arose over a House bill, H. R. 1909, that proposed to ban preferences in federal contracting; the bill was defeated in committee in a bipartisan vote. 1 2 9 When it became clear that the Senate would not confirm Lee, Clinton named him acting assistant attorney general with no limits on the length of time he could serve. In announcing the decision to appoint him, Clinton noted that the nominee's position on affirmative action was consistent with his: "no quotas; no discrimination; no position or benefit for any unqualified person; but mend, don't end, affirmative action so that all Americans can have a fair chance at living the American dream." 1 3 0

Conclusion Although women in the United States have been wage earners since the early 1800s, they only began to secure employment rights in the latter half of the nineteenth century. Including a ban on employment discrimination on the basis of sex within Title VII of the 1964 Civil Rights Act, initially intended as a ploy to defeat the entire act, was the nation's first major effort to secure equal oppor-

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tunity in employment for women. One of the first obstacles to achieving equal opportunity in the workforce was the protective legislation of the late nineteenth and early twentieth centuries. These laws barred all women from certain occupations or positions on the basis of stereotypical assumptions about their interests and capabilities. A provision of Title VII allowing employers to make employment decisions on the basis of sex if it were a BFOQ also allowed them to argue for the validity of the protective legislation. In adjudicating the legal challenges to the protective laws, the lower federal courts quickly agreed with the plaintiffs that the BFOQ defense did not permit employers to rely on untested beliefs about women's abilities or desire to perform the jobs in question. And for the most part, the Supreme Court agreed. Women's efforts to enforce Title VII in the courts have led to protracted and complex litigation, although most of the interpretation of Title VII has been developed in the cases brought to enforce the law's ban on racial discrimination in the workforce. Battling over legal concepts such as disparate treatment, disparate impact, mixed motive discrimination, and subjective employment criteria, women and racial minorities together sought to further the aims of Title VII to provide equal opportunity in the workplace. And although they achieved a number of important successes during the early 1970s establishing some significant legal precedents, over the next decade, with increases in Reagan-Bush appointees, the Supreme Court became less sympathetic to Title VII plaintiffs. By the end of the 1980s, the progress toward employment equality had eroded. The civil rights community, anxious to halt the decline of equal employment guarantees, enlisted the aid of Congress, and against the background of the 1992 election, the battle was joined between the president and the legislature. The passage of the 1991 Civil Rights Act was a victory for equal opportunity, expanding remedies for women victimized by employment discrimination. On another front, women and minorities sought to remedy imbalances in the workforce through the use of affirmative action policies, in which employers would take racial and sex criteria into account to compensate for past discrimination. Although never openly declaring affirmative action illegal, during the 1980s, the Supreme Court moved closer to that position, echoing the position of the Reagan-Bush administrations. By the early 1990s, the Clinton administration, although not embracing it, had adopted a more conciliatory approach toward affirmative action; the majority of the Court, however, has not retreated from its opposition. Although far from settled, the controversy over affirmative action took a back seat to other issues in the wake of the 2000 election of George W. Bush, who is not a supporter of affirmative action policy. The startling attacks on New York's World Trade Center on September 11, 2001, and the "war on ter-

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rorism" have driven the issue of affirmative action in employment even lower down on the nation's public policy agenda.

Notes I. In "The Glass Ceiling and Sexual Stereotyping: Historical and Legal Perspectives of Women in the Workplace," Virginia Journal of Social Policy and the Law 4 (1997): 581-643, Diane L. Bridge discusses the history of women in the workforce; see also American Federation of Labor-Congress of Industrial Organizations, Working Women: Equal Pay—Facts About Working Women, www.afl-cio.org/women/wwfacts. htm; Nancy Woloch, Women and the American Experience, 2d ed. (New York: McGraw-Hill, 1994); Ray Marshall and Beth Paulin, "Employment and Earnings of Women: Historical Perspective," in Karen Shallcross Koziara, Michael H. Moskow, and Lucretia Dewey Tanner, eds., Working Women: Past, Present, Future (Washington, D.C.: Bureau of National Affairs, 1987); Barbara R. Bergmann, The Economic Emergence of Women (New York: Basic Books, 1986); June Sochen, Herstory: A Women's View of American History (New York: Alfred Publishing, 1974). 2. The 2000 data (for women sixteen and over) are from U.S. Department of Labor, Bureau of Labor Statistics, Table 2: Employment status of the civilian noninstitutional population 16 years and over by sex, 1970 to date (2001). The 1950 data (for women fourteen and over) are from the Inter-University Consortium for Political and Social Research, Study 0003: Historical, Demographic, Economic and Social Data: U.S. 1790-1970 (Ann Arbor: ICPSR). 3. Janice Goodman, "Comparable Worth: Time May Be Now," New York Law Journal (June 28, 1999): 9. 4. Charles Whalen and Barbara Whalen, The Longest Debate: A Legislative History of the ¡964 Civil Rights Act (New York: Mentor Books, 1985), p. 117. 5. Francis J. Vaas, "Title VII: Legislative History," Boston College Industrial and Commercial Law Review (1966): 441^442; for the House debate, see Carolyn Bird, Born Female (New York: Pocket Books, 1970), chap. 1. 6. See The U.S. Equal Employment Opportunity Commission, various sites, for information about the work of the EEOC, www.eeoc.gov. 7. Cynthia Harrison, On Account of Sex: The Politics of Women's Issues, 1945-1968 (Berkeley: University of California Press, 1988), p. 187 (emphasis in the original). 8. In addition to expanding the EEOC's power, the EEO also brought federal, state, and local government workers as well as employees at educational institutions within the reach of Title VII. 9. See New York Times, July 1, 2001, for an update on the E E O C ' s problems. 10. Theodore W. Wern, "Judicial Deference to EEOC Interpretations of the Civil Rights Act, the ADA, and the ADEA: Is the EEOC a Second Class Agency?" Ohio State Law Journal 60 (1999): 1533-1587. I I . The table is limited to Title VII cases involving women's rights. 12. Karen Maschke, Litigation, Courts, and Women Workers (New York: Praeger Publishers, 1989), p. 13. 13. 408 F.2d 228 (5th Cir. 1969). 14. Weeks, 408 F.2d at 235. 15. 444 F.2d 1219 (9th Cir. 1971). 16. Rosenfeld, 444 F.2d at 1224.

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17. 442 F.2d 385 (5th Cir. 1971). 18. Diaz, 442 F.2d at 388 (5th Cir. 1971) (emphasis in the original). 19. 400 U.S. 542 (1971). 20. Martha Chamallas, "Mothers and Disparate Treatment: The Ghost of Martin Marietta," Villanova Law Review 44 (1999): 346. 2 1 . 4 3 3 U.S. 321 (1977). 22. Dothard, 433 U.S. at 325. 23. Dothard, 433 U.S. at 335. 24. See Bird, Born Female, pp. 13-15; Donald Robinson, "Two Movements in Pursuit of Equal Employment Opportunity," Signs 4 (1979): 423^424. 25. Sex was added to the list of forbidden classifications in 1969. 26. 413 U.S. 376 (1973). 27. International Board of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). 28. International Board of Teamsters, 431 U.S. at 335 n.15; the Court spells out the differences between disparate treatment and disparate impact in this case. 29. 411 U.S. 792 (1973). The McDonnell Douglas formula is applied to suits based on sex, age, and disability discrimination. With some variation, the formula applies to suits alleging discrimination in hiring, promotion, and firing. 30. It is commonly said that the burden of proof in a lawsuit is on the plaintiff. There are two kinds of burdens in lawsuits: the burden of persuasion and the burden of production; typically the plaintiff retains the former throughout the trial and the defendant the latter, but in some cases, the burden of persuasion shifts to the defendant during the trial. Civil suits may be won or lost depending on whether this shift occurs. 31. Later cases included Furnco Construction Company v. Waters, 438 U.S. 567 (1978); Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24 (1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983). 32. A prima facie case creates a presumption (a set of facts assumed to be true unless evidence to the contrary is presented) of intentional discrimination that the employer must refute to escape a finding of a Title VII violation. A prima facie case does not have to be sufficient to carry the plaintiff's burden of proof; it requires sufficient evidence to avoid dismissal of the case. 33. Price Waterhouse v. Hopkins, 490 U.S. 228, 273 (1989) (emphasis in the original). 34. 490 U.S. at 228; this case is discussed in a later chapter. 35. Price Waterhouse v. Hopkins, 825 F.2d 458 (D.C. Cir. 1987). 36. Alfred Blumrosen, "Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination," Michigan Law Review 71 (1972): 59. 37. Drew S. Days III, "The Courts' Response to the Reagan Civil Rights Agenda," Vanderbilt Law Review 42 (1989): 1005. 3 8 . 4 0 1 U.S. 4 2 4 ( 1 9 7 1 ) . 39. Before Title VII, Duke Power had openly discriminated against its African American employees by restricting them to the lowest-paying department, the labor department. Other departments were exclusively white. In 1955, the company started requiring high school diplomas from all white employees hired after that year. When the 1964 Civil Rights Act went into effect and all employees became legally eligible to work in previously all-white departments, the company created new hiring and transfer rules. Beginning employees in all departments, other than labor, had to pass two aptitude tests in addition to producing a high school diploma. Current employees wishing to transfer between departments were also required to show a high school

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diploma. White employees protested the new transfer rule because it kept many of them out of the more desirable jobs. In response, the company changed the rule to permit employees to substitute a passing grade on two standardized intelligence tests for a high school diploma. Satisfactory scores on these tests were based upon a national median grade of high school graduates. Neither test was shown to be related to ability to perform on the job. 40. Griggs, 401 U.S. at 431. 41. Alfred Blumrosen, "The Legacy of Griggs: Social Progress and Subjective Judgments," Chicago-Kent Law Review 63 (1987): 1-2. 42. Eleanor Holmes Norton, "Equal Employment Law: Crisis in Interpretation— Survival Against the Odds," Tulane Law Review 62 (1988): 691 n.41. 43. 422 U.S. 405 (1975). Here, the Court specified that once the defendant rebuts the prima facie case, the plaintiff has an opportunity to demonstrate that other tests, without a disparate impact, would also serve the employer's needs. 44. In Washington v. Davis, 426 U.S. 229 (1976), the Supreme Court held that the Fourteenth Amendment required proof of intentional discrimination. In Davis, the plaintiffs were a group of African Americans who filed suit against the District of Columbia police department, claiming they were rejected on the basis of a verbal skills test that had a disproportionate impact on them. Under Griggs, their claim would have been decided under disparate impact analysis, but the Court ruled that they had to prove that the tests were adopted with the intent of keeping them out of the jobs. 45. George Rutherglen, "Disparate Impact Under Title VII: An Objective Theory of Discrimination," Virginia Law Review 73 (1987): 1312—1313; see Linda Lye, "Title VII's Tangled Tale: The Erosion and Confusion of Disparate Impact and the Business Necessity Defense," Berkeley Journal of Employment and Labor Law 19 (1998): 315-361. 46. Dothard, 433 U.S. at 331. 47. Dothard, 433 U.S. at 329. 48.487 U.S. 977 (1988). 49. Lye, in "Title VII's Tangled Tale," discusses how the Court had even begun to merge the two doctrines before Watson in New York City Transit Authority v. Beazer, 440 U.S. 568 (1979) and Connecticut v. Teal, 457 U.S. 440 (1982). 50. Watson, 487 U.S. at 1000-1001. 51. Watson, 487 U.S. at 1004. 52. 490 U.S. 642 (1989). 53. Wards Cove Packing Company v. Atonio, 827 F.2d 439 (9th Cir. 1987). 54. Wards Cove, 490 U.S. at 659. 55. Wards Cove, 490 U.S. at 660. 56. Wards Cove, 490 U.S. at 661-662. 57. Wards Cove, 490 U.S. at 662. 58. Wards Cove, 490 U.S. at 663. 59. Wards Cove, 490 U.S. at 670. 60. Wards Cove, 490 U.S. at 671-672. 61. See Anita Allessandra, "When Doctrines Collide: Disparate Treatment, Disparate Impact, and Watson v. Fort Worth Bank and Trust," University of Pennsylvania Law Review 137 (1989); Merrill D. Feldstein, "Watson v. Fort Worth Bank and Trust: Reallocating the Burdens of Proof in Employment Discrimination Litigation," American University Law Review 38 (1989): 919-951. 62. Congressional Quarterly, February 10, 1990, pp. 392-393. The cases were Price Waterhouse, 490 U.S. at 228; Wards Cove, 490 U.S. at 642; Martin v. Wilks, 490

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U.S. 755 (1989); Lorance v. AT&T Technologies, 490 U.S. 900 (1989); Patterson v. McLean Credit Union, 491 U.S. 164 (1989); and Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989). 63. Congressional Quarterly, May 19, 1990, p. 1563. 64. Congressional Quarterly, July 21, 1990, p. 2312. 65. Congressional Quarterly, August 4, 1990, p. 2517. 66. New York Times, October 17, 1990. 67. New York Times, October 18, 1990. 68. Congressional Quarterly, October 27, 1990. 69. Congressional Quarterly, October 20, 1990, pp. 3518-3519. 70. New York Times, October 26, 1990. 71. Congressional Quarterly, February 9, 1991, pp. 366-373. 72. Congressional Quarterly, March 23, 1991, p. 745. 73. Congressional Quarterly, March 16, 1991, p. 684. 74. Congressional Quarterly, May 25, 1V91, pp. 1378-138U; Congressional Quarterly, June 8, 1991, pp. 1498-1503. 75. The hearings are discussed in a later chapter. 76. The lower courts have applied the business necessity standard inconsistently; see Lye, "Title VII's Tangled Tale." The law also did not indicate whether the court has to weigh the costs of the alternatives proposed by the plaintiff; see Note, "The Civil Rights Act of 1991 and Less Discriminatory Alternatives in Disparate Impact Litigation," Harvard Law Review 106 (1993): 1621-1638; Notes, "The Civil Rights Act of 1991: The Business Necessity Standard," Harvard Law Review 106 (1993): 896-913. 77. Plaintiffs can establish sex discrimination by showing that sex was a motivating factor in the employment decision; see Tristin K. Green, "Making Sense of the McDonnell Douglas Framework: Circumstantial Evidence and Proof of Disparate Treatment Under Title VII," California Law Review 87 (1999): 983-1015 for a discussion of the evidence courts now require in mixed motive cases. 78. See Lewis R. Hagood, "Claims of Mental and Emotional Damages in Employment Discrimination Cases," University of Memphis Law Review 29 (1999): 5 7 7 600 for a discussion of damages for emotional injury under the 1991 act. 79. Congressional Quarterly, October 26, 1991, pp. 3124—3126; New York Times, October 26, 1991. The law also affected the Court's rulings in Wilks, 490 U.S. at 755, by limiting third-party challenges to consent decrees; in Lorance, 490 U.S. at 900, by extending the time an employee has to challenge a discriminatory seniority system; and in Patterson, 491 U.S. at 164, by applying §1981 to hiring, firing, and promotion decisions as well as harassment. 80. See Ann M. Anderson, Whose Malice Counts? Kolstad and the Limits of Vicarious Liability for Title VII Punitive Damages," North Carolina Law Review 78 (2000): 7 9 9 - 8 3 0 for a discussion of Kolstad v. American Dental Association, 527 U.S. 526 (1999), in which the Supreme Court addressed the issue of the defendant's liability for punitive damages under Title VII. 8 1 . 4 9 9 U.S. 244 (1991). 82. New York Times, November 22, 1991; Congressional Quarterly, November 23, 1991, p. 3463. 83. Washington Post, May 12, 1997. The number of class action suits dropped during the 1990s, in part because of the difficulty of reconciling the damage provisions of the act with the rules for class certification. See Lesley Frieder Wolf, "Evading Friendly Fire: Achieving Class Certification After the Civil Rights Act of 1991," Columbia Law Review 100(2000): 1847-1880.

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84. 509 U.S. 502 (1993). 85. See Tern L. Dill, "St. Mary's Honors Center v. Hicks: Refining the Burden of Proof in Employment Discrimination Litigation," Arkansas Law Review 48 (1995): 617-637 for a discussion of the question of proof in Title VII cases in St. Mary's. 86. New York Times, December 31, 1991. 87. 511 U.S. 298 (1994). 88. 511 U.S. 2 4 4 ( 1 9 9 4 ) . 89. 530 U.S. 133 (2000). 90. 2002 U.S. LEXIS 1374 (2002). 91. Swierkiewicz v. Sorema N.A., 5 Fed. Appx. 63 (2d Cir. 2001). 92. Joe E. Feagin and Clairece Booher Feagin, "Theories of Discrimination," in Paula Rothenberg, ed., Racism and Sexism: An Integrated Study (New York: St. Martin's Press, 1988). The concept of institutional racism was first identified in Charles Hamilton and Stokely Carmichael, Black Power (New York: Random House, 1967); see also Louis L. Knowles and Kenneth Prewitt, eds., Institutional Racism in America (Englewood Cliffs: Prentice Hall, 1969). 93. David D. Meyer, "Finding a 'Manifest Imbalance': The Case for a Unified Statistical Test for Voluntary Affirmative Action Under Title VII," Michigan Law Review 87 (1989): 1989 n. 13. 94. See Days, "The Courts' Response to the Reagan Civil Rights Agenda." 95. Andrea Giampetro and Nancy Kubasek, "Individualism in America and Its Implications for Affirmative Action," Journal of Contemporary Law 14 (1988): 165-194. 96. Gary Bryner, "Congress, Courts, and Agencies: Equal Employment and the Limits of Policy Implementation," Political Science Quarterly 96 (1981): 419. 97. Norman Amaker, Civil Rights and the Reagan Administration (Washington, D.C.: Urban Institute Press, 1988), p. 3. 98. Amaker, Civil Rights and the Reagan Administration, p. 124. 99. William Bradford Reynolds, "The Reagan Administration's Civil Rights Policy: The Challenge for the Future," Vanderbilt Law Review 42 (1989): 995. 100. New York Times, February 26, 1986. 101. Firefighters Local Union #1784 v. Stotts, 467 U.S. 561 (1984). 102. Norton, "Equal Employment Law: Crisis in Interpretation," p. 703 n. 93. 103. Local 28 of the Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986); Local Number 93 v. Cleveland, 478 U.S. 501 (1986). 104. House Committee on Education and Labor, Subcommittee on Employment Opportunities, Equal Employment Opportunity Commission Policies Regarding Goals and Timetables in Litigation Remedies, 99th Cong., 2d sess., March 11, 1986, p. 25. 105. Congressional Quarterly, February 15, 1986, p. 315. 106. Washington Post National Weekly Edition, January 27, 1986, p. 29. 107. Congressional Quarterly, November 26, 1988, p. 3392. 108. 438 U.S. 265 (1978). 109. Affirmative action cases may arise under Title VII as well as constitutional equal protection theory, except that private, voluntary affirmative action plans are solely governed by Title VII. George Rutherglen and Daniel R. Ortiz, "Affirmative Action Under the Constitution and Title VII: From Confusion to Convergence," University of California at Los Angeles Law Review 35 (1988): 469^170. 110. Rutherglen and Ortiz, "Affirmative Action Under the Constitution and Title VII," pp. 468-471. 111. In Local Number 93, 478 U.S. at 501, the Court ruled that under Title VII, a city may enter into a settlement agreement to use race-conscious promotions, even though the court did not order the employer to create the preferential system, and in

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Local 28, 478 U.S. at 421, the Court specified that relief was not limited to identified victims of past discrimination. In United States v. Paradise, 480 U.S. 149 (1987), the Court approved a court-ordered racial quota in the Alabama State Police Department by letting stand a lower court ruling that the state police must promote one African American for every white promoted until African Americans comprise 25 percent of all officers above the rank of trooper. In Fullilove v. Klutznick, 448 U.S. 448 (1980), the Court upheld a federal set-aside program for minority business enterprises, holding that Congress had adequate authority to impose race-conscious remedies to redress patterns of racial discrimination in the construction industry. In Metro Broadcasting v. FCC, 497 U.S. 547 (1990), the Court allowed an affirmative action policy because it promoted the government's interest in broadcast diversity. 112. In Stotts, 467 U.S. at 561, the Supreme Court held that a valid seniority system protects the jobs of white workers, even at the expense of newly hired minority workers who will be laid off. In Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), pursuant to an agreement between the Board of Education and the teachers union, the board laid off nonminority teachers with more seniority than minority teachers. The Court found that the board did not have a compelling interest in preserving the jobs of the African American employees. In Richmond v. J. A. Croson, 488 U.S. 469 (1989), the Court ruled against a Richmond, Virginia, plan that 30 percent of its public works contracts be awarded to minority-owned companies because there was no proof that the city had engaged in past discrimination against minority contractors. For the first time, a majority of the Court applied strict scrutiny in an affirmative action case. In Adarand Constructors v. Pena, 515 U.S. 200 (1995), the Court struck a federal plan, also using strict scrutiny, and overruled its earlier decisions allowing federal set-aside programs. 113.443 U.S. 193 (1979). 114. Weber, 443 U.S. at 208. 115. Weber, 443 U.S. at 197. 116. Weber, 443 U.S. at 208. 117. 480 U.S. 616 (1987). 118. When the road dispatcher position opened up in December 1979, twelve employees, including Johnson and Joyce, applied; both had the necessary experience. Nine employees were interviewed and seven scored above the required seventy points. Johnson was tied for second place with a score of seventy-five, Joyce had a score of seventy-three. Joyce was named to fill the post. 119. Johnson, 480 U.S. at 621-622. 120. Johnson, 480 U.S. at 630. 121. Johnson was decided under Title VII because the parties had inexplicably failed to raise the constitutional issue. See Melvin Urofsky, Affirmative Action on Trial (Lawrence: University of Kansas Press, 1997) for a detailed discussion of this case. 122. Johnson, 480 U.S. at 642. 123. Johnson, 480 U.S. at 658 (emphasis in the original). 124. Johnson, 480 U.S. at 664. 125. Johnson, 480 U.S. at 668. 126. Days, "The Courts' Response to the Reagan Civil Rights Agenda," p. 1010. 127. Arleen Jacobus, "Affirmative Action on Way Out in California," ABA Journal (1995): 22. 128. New York Times, July 20, 1995. 129. New York Times, November 7, 1997; Congressional Quarterly, November 8, 1997, p. 2766. 130. New York Times, December 16, 1997.

4 Fighting for Pay Equity

F

ULL-TIME WOMEN WORKERS HAVE ALWAYS RECEIVED LESS PAY THAN FULL-TIME

men workers. 1 In 1951, women earned only 63.9 cents for every dollar earned by men. Over the next four decades, the earnings gap between women and men fluctuated slightly, with women's earnings continuing to lag behind men's earnings. In 1992, the earnings gap finally began to narrow at a steady pace, albeit still slowly. But despite its positive movement, in that year, women still only earned 70 cents for every dollar men earned. 2 And in 2000, notwithstanding almost forty years of equal pay legislation, the median weekly earnings for full-time women wage and salary workers were $491, 76 percent of the $646 earned by full-time men wage and salary workers. 3 The wage gap varies with age, occupation, and race; generally, there is a smaller wage gap between the sexes among younger workers, but contrary to conventional wisdom, the gap does not decrease as women's salaries and wages rise. Among women aged forty-five to fifty-four, who had the highest earnings among women—$565—the gap widens, with women in this age group earning only 72.7 percent of men's median weekly earnings of $777. 4 The United States is not the only nation with pay disparity between the sexes; the gap exists throughout the world. "The inequality between women and men emerges as a 'global phenomenon'—a commonality eluding differences between women of various nations. No matter the nation, women remain the least unionized and the lowest paid of all workers." 5 There is evidence, however, that the European Union, through the legal interpretations of its European Court of Justice, has taken steps to remedy pay inequities between the sexes in the countries within its jurisdiction. 6 The battle for pay equity in the United States dates back to the early part of the twentieth century, when just after World War I, Michigan and Montana adopted equal pay laws. The issue drew national attention in 1942, when the 105

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War Labor Board announced General Order No. 16, authorizing employers to pay equal wages to men and women employees "for comparable quality and quantity of work on the same or similar operations." 7 During the 1960s, Esther Peterson, head of the Women's Bureau in the Department of Labor, spearheaded the drive for equal pay legislation. A presidential commission established by Kennedy in 1961 to assess pay imbalances recommended a comparable work bill, which was supported by the administration. Pay equity proponents supported the Federal Equal Pay Act, encompassing an "equal pay for comparable work" standard because they feared that "equal work" would be interpreted as "identical work" and minor differences between jobs would be used to justify differentials in pay. During House debate over the bill, however, members of Congress objected that the standard of "equal pay for comparable work" was too far-reaching; they warned that employers would refuse to hire women at all if they had to pay them equal wages. Seeking to expedite its passage, Representative Katherine St. George, Republican of New York, offered an amendment that substituted the phrase "equal pay for equal work" for the proposed "equal pay for comparable work." The substitution would have lasting legal and economic implications for women workers. 8 Thus, despite its status as the first piece of national women's rights legislation, the law was less than a complete victory for women's rights advocates; when Congress was done, the narrow scope of the EPA seemed to ensure that it would encompass "only the most onerous offenses" of pay inequity. 9 Signed by Kennedy on June 10, 1963, the EPA went into effect a year later on June 11, 1964. The act, requiring employers to pay men and women an equal salary for performing equal work, "marked the entrance of the federal government into the field of safeguarding the right of women to hold employment on the same basis as men." 1 0 It was passed as an amendment to the Fair Labor Standards Act (FLSA) and was originally applicable only to workers covered by the FLSA. In 1972, Congress extended the EPA's provisions to executive, administrative, and professional employees. The FLSA Amendments of 1974 subsequently expanded equal pay protection to federal, state, and municipal workers. 11

Pay Equity Litigation Women began to sue for pay equity in the late 1960s. Table 4.1 shows the principal cases and outcome of the litigation. 12

Interpretation of the Equal Pay Act The EPA, which gave rise to the popular slogan "equal pay for equal work," bars employers from paying men and women in the same establishment differently

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Table 4.1

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Pay Equity Cases, 1970-1986 Issue

Disposition

Case

Date

Wheaton Glass" Brookhaven Hospital" Robert Halla Corning Glass Christensen" Lemons0 Westinghou.se? Gunther Spaulding° AFSCME" American Nursed

1970

Substantially equal work

Pro-equality

1970

Extra work requirement

Pro-equality

1973 1974 1977 1980 1980 1981 1984 1985 1986

Factors other than sex Similar working conditions Wage disparities and market wages Wage disparities and market wages Interpretation of Bennett Amendment Interpretation of Bennett Amendment Title VII and wage discrimination Discriminatory intent and market wages Proving discriminatory intent

Pro-equality Pro-equality Anti-equality Anti-equality Pro-equality Pro-equality Anti-equality Anti-equality Anti-equality

Note: a. Lower court ruling.

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.

The act specifies that women's wages must be raised to match men's wages and that the latter cannot be lowered to the levels of women's wages. The secretary of labor was designated as the primary enforcement authority, but then in 1978, Carter's Civil Rights Reorganization Plan transferred responsibility for EPA enforcement to the EEOC; the transfer became effective on July 1, 1979. To win an EPA suit, a plaintiff must show that an employee of the other sex is being paid higher wages for performing equal work. Although the act applies to either sex, the vast majority of suits are brought by or on behalf of women. Because Congress intended the law to remedy deep-seated wage disparities between men and women, the courts have only required plaintiffs to show that the jobs are "substantially equal," rather than identical. And once a plaintiff meets this test, the employer has an opportunity to show that the wage difference is based on one of the four reasons specified in the statute: merit, seniority, a difference in productivity, or "any other factor other than sex." The plaintiff bears the initial burden of proof of showing the wage difference, and the burden then shifts to the employer to prove that the differential is justified by one of the four exceptions permitted by the act. If the employer fails to satisfy the court that the wage differential is permitted by the act, that is, that it is not based on sex, then the plaintiff prevails without having to show a discriminatory motive on the part of the employer.

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Substantially Equal Jobs Schultz v. Wheaton Glass Company,13 a case decided in 1970, was the first appellate court opinion to construe the act, establishing the "substantially equal" test. In holding that jobs meriting equal pay need not be "identical" but only "substantially equal," the Third Circuit paved the way for other circuits to construe the EPA, as it did, "as a broad charter of women's rights in the economic field"; ruling that Congress intended the Act to "overcome the age-old belief in women's inferiority and to eliminate the depressing effects on living standards of reduced wages for female workers and the economic and social consequences which flow from it." 14 This case demonstrates the importance of having the judiciary appraise the workers' duties rather than simply rely on the company's descriptions of the jobs performed by women and men. Because it was irrational to pay men twenty-one and a half cents an hour more than women for occasionally performing extra work—essentially unskilled labor—the court believed that the company's payment scheme was motivated by a desire to subordinate women. Noting that an economic benefit to the company might justify a pay differential, the court indicated that the company had not shown that the economic benefit was worth a 10 percent wage difference. Moreover, said the court, there was no reason why women could not perform the extra tasks to increase their value to the company and thereby merit the higher pay as well. Skill, Effort, and Responsibility Similarly, in Hodgson v. Brookhaven General Hospital,15 another 1970 ruling, the Fifth Circuit carefully examined the hospital's claim that its men orderlies were entitled to higher salaries than the women aides because the orderlies' jobs involved greater "skill, effort, and responsibility." The court outlined a test for assessing whether an employer's wage policy violates the act. Conceding that orderlies and aides were at the same level of skill, effort, and responsibility in their primary jobs, the hospital argued that orderlies frequently performed additional tasks requiring greater skill, effort, and responsibility; moreover, the men were assigned to intimate jobs involving men patients. The trial court judge found and the appellate court concurred that the levels of skill and responsibility of the aides and orderlies were substantially equal and that the decisive issue was whether there was a difference in effort. The circuit court explained that a difference in pay between jobs with overlapping duties is only justified if one job demands extra effort for a "significant amount" of time from all those performing the job and provides economic value to the employer in line with the pay difference. "Employers," the court continued, "may not be permitted to frustrate the purposes of the [Equal

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Pay] Act by calling for extra effort only occasionally, or only from one or two male employees." 16 The hospital argued that although orderlies and aides were responsible for approximately the same number of patients, orderlies were more frequently required to perform the nonroutine patient care chores, and because of their extra effort, they deserved higher pay. Since the trial judge made no findings of fact on this crucial issue, the appellate court did not have the information necessary to rule on Brookhaven's defense. On remand, the trial court ruled against the hospital once more and ordered it to give the aides back pay and raise their salaries to match the orderlies' wages. 17 Any Other hactor Other Than Sex The ambiguously phrased exception to the EPA, "any other factor other than sex," has been the subject of more litigation than the other three exceptions combined. 18 In Hodgson v. Robert Hall Clothes,19 a 1973 ruling, the Third Circuit articulated a definitive interpretation of this catch-all defense that has created a major obstacle for EPA plaintiffs to overcome when seeking relief under the act. The secretary of labor filed suit against Robert Hall, a clothing store in Wilmington, Delaware. The suit alleged that the store paid its saleswomen, who sold women's clothes, less than its salesmen, who sold men's clothes, even though they performed equal work. The secretary argued that the "factor other than sex" phrase should not be construed as an open-ended invitation for pay disparity but should be limited to factors "related to job performance or . . . typically used in setting wage scales." 20 The store contended that because men's clothes cost more, their department was more profitable and warranted higher pay for men. The circuit court agreed that the differential "economic benefit" to the employer was a "legitimate business reason" that vindicated the sex-based wage difference. Congress had intended to allow employers to base wage differentials on job requirements or job performance measures only, and the Third Circuit's broad interpretation of the "other factor other than sex" exception in Robert Hall is at odds with the act's remedial purpose. By accepting the company's argument that the wage differential was justified because women provided less economic benefit to the company, the court ignored the fact that it was company policy that determined the respective economic benefits attributable to each sex. Additionally, in allowing Robert Hall to pay men more than women, the court accepted the policy of basing wages on the average earnings of the department as a whole, rather than on individual job performance. The court thus frustrated Congress's intent in passing the EPA by permitting the company to justify the wage differential on the basis of its segregated workforce. 21 Moreover, in accepting Robert Hall's "economic benefit" argument,

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the court opened the door to companies claiming market defense as a reason to evade the act. The lower federal courts have continued to interpret the "other than sex" defense so broadly that it has undermined women's ability to prove their equal pay claims. 22 The Supreme Court Rules on Equal Pay Corning Glass Works v. Brennan23 was the first Equal Pay Act case to reach the Supreme Court. In this 1974 case, the Court was asked to determine whether men who worked on the night shift could be paid more than women who worked on the day shift. Before 1925, only women inspected the finished glass products at the plant. Then, when it created a nighttime inspection shift, Corning hired men because women were barred from night work by New York State law. These new nighttime inspectors, men who transferred from higher-paying jobs within the plant, were paid more than the women daytime inspectors, even though their work was the same. Aside from the inspecting jobs, there were no wage differences between nighttime and daytime workers until 1944, when the company established a pay differential between night and day work. The men inspectors, working at night, were able to add this extra increase to their already existing higher base pay. In 1966, Corning began to allow women to work at night and compete for the higher-paying night inspection jobs. Three years later, in 1969, the plant eliminated the day-night pay differential for inspectors hired after that year, yet the nighttime inspectors hired before 1969 continued to receive a higher wage that perpetuated the day-night wage distinction. In response to the EPA action against it, Corning argued that the wage differential between day and night work was permissible under the act as a "factor other than sex." In a 5 to 3 vote, with Justice Thurgood Marshall announcing the decision, the Court explained that the EPA prohibits pay disparity for equal work in jobs performed under similar working conditions. Because the company's own job evaluation scheme indicated that working conditions differed by "surroundings" and "hazards," not by time of day, the differential pay for nighttime and daytime inspection jobs violated the EPA. Moreover, simply allowing women to become nighttime inspectors in 1966 had not cured the violation because men continued to receive higher wages than women for doing what the company's own evaluations showed was the same job; the only remedy was to raise the pay of the women day inspectors to the higher rates of the night inspectors. In rejecting the company's market defense, that is, the claim that women have historically worked for less pay, as a "factor other than sex," the Court signaled its intent to construe this affirmative defense narrowly; however, in subsequent cases, the lower courts have not always followed the high court in rejecting the market defense in EPA actions. 24

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The EPA and State Employees Recently, there has been concern that the Supreme Court's move toward "new federalism" during the 1990s would create an insurmountable obstacle for state employees who wished to bring EPA suits against state governments. 25 "New federalism" refers to the Supreme Court's preference for enhancing state sovereignty over federal authority. The issue over the EPA arose as states defended themselves in EPA actions by arguing that the law failed to override the state's grant of immunity under the Eleventh Amendment of the U.S. Constitution. 26 In the late 1990s, states had successfully claimed immunity in suits brought for age discrimination, discrimination on the basis of disability, and discrimination on the basis of family status. However, most lower federal courts that assessed the extent of the state's immunity under the act concluded that because the EPA was intended to prevent gender-based pay inequities, it was enacted under Congress's power to enforce the equal protection clause and did not exceed congressional authority to legislate against sex discrimination. 27

The Inadequacy of the EPA Although women won millions of dollars in increased wages in EPA suits, the act's equal work requirement has meant that it "contribute[d] only modestly to closing the salary gap." 2 8 Criticism of the EPA arises from two directions: one view, embodied in the writings of Richard Epstein and Richard Posner, argues that the EPA interferes with the free market, causing business inefficiencies and ultimately hurting the women it purports to benefit. 29 However, the primary criticism leveled at the EPA is that it has not eliminated the earnings disparity between the sexes because it is applicable only to employment settings where men and women work in the same establishment and perform substantially equal jobs. It is of limited use, therefore, in a workforce consisting of sex-segregated occupations, that is, occupations predominantly (usually defined at about 70 percent) held by members of one sex. The pervasiveness of sex segregation is illustrated by the fact that, in the early 1980s, over half of all women employed held clerical or service jobs. 3 0 The oversupply of workers in the so-called pink-collar jobs—a term assigned to work typically dominated by women—depresses the wages of workers in those occupations. 31 In 2000, almost 99 percent of all secretaries were women, as were more than 90 percent of registered nurses, nursing aides, receptionists, hairdressers, bookkeepers, and teacher's aides. 32 Moreover, there were almost 100 occupations, including space scientists, dentists, architects, sheriffs, funeral directors, police officers, air traffic controllers, clergy, airline pilots, and motion picture projectionists, in which women constituted

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less than 25 percent of the workforce. 33 It is very unlikely that women eschewed all jobs such as these, especially in light of evidence that they would substantially raise their earning capacity. The severity of sex segregation in the workforce, which has been characterized as even more "widespread and more severe than racial discrimination," is the underlying basis for the theory known as comparable worth or pay equity. 34 Beginning in the 1980s, women's rights advocates led the fight for comparable worth in the courts; their challenge was to reduce pay disparities in a highly sex-segregated workforce and stay within the bounds of acceptable legal theory. 35

Comparable Worth Theory Because of the limitations of the EPA, women claiming sex-based wage discrimination were forced to resort to Title VII, with the battle cry changing from "equal pay for equal work" to "equal pay for jobs of comparable worth." In pursuing a Title VII claim, plaintiffs have to use traditional means of proof to show that their employers pay them less because of their sex. The struggle for comparable worth became part of the ideological battle over women's rights in the 1980s, especially during the 1984 presidential election campaign. Reflecting the Reagan administration's opposition to comparable worth, a member of Reagan's Council of Economic Advisers, William Niskanen, called it a "truly crazy proposal." After the election, the head of the Civil Rights Commission, Clarence Pendleton, referred to comparable worth as the "looniest idea since Looney Tunes came on the screen." 36 And writing in 1986, William Bradford Reynolds, Reagan's assistant attorney general for civil rights, charged that comparable worth advocates have "revolutionary" aims to bring about a "redistribution of wages and salaries in this country along preconceived notions of a properly ordered society." 37 More than a decade later, the criticism persisted, as Roger Clegg, general counsel of the Center for Equal Opportunity, a Washington-based group, charged that the theory was "flatly inconsistent with one of the most important lessons of the 20th century: the free market is infinitely better at setting prices and allocating society's scarce goods and resources than a centralized bureaucracy." 38 The controversy over comparable worth often centers on the extent to which employment discrimination is responsible for the gap in the earnings of women and men. After analyzing the debate over the role of labor market discrimination, Henry Aaron and Cameran Lougy concluded that they "support the commonsense notion that women have suffered extensive and damaging discrimination in the labor market." 39 In their study of comparable worth, Joseph and Timothy Loudon agreed that "the higher wages paid to tree trimmers (a male-dominated job category) as compared to nurses (a female-dom-

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inated job category) is the result of a discriminatory compensation system that simply perpetuates historical discrimination." 40 A 1985 report issued by the Civil Rights Commission reached the opposite conclusion. It believed the wage gap between men and women "result[ed], at least in significant part from a variety of things having nothing to do with discrimination by employers." The report identified three reasons for women's lower paying jobs: lower job expectations, educational choices leading to jobs that can accommodate their childbearing and childrearing functions, and interrupted labor force participation. 41 Similarly, Reynolds contended that "comparable worth has very little to do with gender-based discrimination and even less to do with pay equity." 42 He echoed the commission's findings that the wage gap between men and women can be attributed to women choosing to accommodate their family responsibilities with their work. Their desire to combine family and work responsibilities, he said, causes women to enter the job market later than men, take time out for raising children, work part-time, and refuse to work overtime. Reynolds defined discrimination as deliberate exclusion from occupations dominated by men or unequal compensation for the same job, and in his view, the EPA and Title VII were sufficient to combat it. The commission's findings are contradicted by studies showing that the concentration of women in occupations dominated by women is not explained by their family obligations. Neither parental status, marital status, race, nor age affects the likelihood of women occupying jobs outside traditional sexrole occupations. Claiming that women lack interest in higher-paying occupations and prefer lower-paying jobs conveniently allows policymakers to ascribe the blame to women. But "contrary to conventional wisdom, sex segregation does not persist because women's commitment to the family leads them to 'choose' to consign themselves to lower-paid, female dominated occupations." 43 Blaming women for sex segregation and pay inequity conveniently denies the effect of labor market forces on job status. Comparable worth theory was fashioned to bypass the equal work requirements of the EPA. It is based on the premise that men and women working for the same employer in jobs of comparable skill, effort, responsibility, and conditions merit comparable pay. Relying on the assumption that the value of a job can be objectively measured, a reasonable assumption, considering that most large employers incorporate some sort of job grade scheme, a pay equity policy must begin with a detailed evaluation of jobs within a company or organization. 44 Every job classification receives a score based on factors such as responsibilities, skills, and working conditions. In this way, the value of different jobs such as secretary and truck driver, nurse and physical plant worker, can be compared. Comparable worth advocates contend that because job classifications with equal scores have equal value to the employer, they should claim the

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same wage—seniority and merit being equal. And they argue that because of sex segregation in the workforce, accompanied by the fact that jobs that are primarily held by women tend to pay less than jobs primarily held by men, comparable worth policy is needed to reduce wage disparities between men and women. 45 Opponents of comparable worth theory maintain that employers do not base salary decisions solely on job classification scores. Rather, they say, salaries are determined by neutral and nondiscriminatory market conditions, such as the supply of available workers, the demand for the work, and the rate of unionization. And because these factors are outside their control, employers cannot be held responsible for disparities in wage rates. 46 Comparable worth proponents counter that sex segregation in the workforce is one of the primary reasons for the salary gap between men and women, and hence the law of supply and demand is not a neutral force. 47 They contend that women are channeled into low-paying and low-prestige job categories that, according to economist Ruth Blumrosen, are undervalued because they are predominantly held by women. She asserts that "the same forces which determine that certain jobs or job categories will be reserved for women or minorities also and simultaneously determine that the economic value of those jobs is less than if they were 'white' or 'male'jobs." 4 8

The Bennett Amendment to the EPA On June 12, 1964, Republican senator Wallace Bennett of Utah offered an amendment to Title VII that he described as a "technical correction." Characterizing the EPA as the culmination of "many years of yearning by members of the fair sex in this country," he said he wanted to ensure that if conflicts arose between Title VII and the EPA, the former would not nullify the latter. 49 The Bennett amendment, hastily accepted by the Senate as a "technical correction," allowed pay differentials if "such differentiation is authorized" by the EPA. Some courts interpreted this to require plaintiffs to satisfy the equal work standard in a Title VII wage discrimination claim; others held that it incorporated the four affirmative defenses into a Title VII wage claim. The confusion over the relationship between the two statutes was heightened when a year later, Bennett inserted a statement into the Congressional Record indicating that the Senate had understood that the amendment was intended to ensure "that discrimination in compensation on account of sex does not violate Title VII unless it also violates the Equal Pay Act." 5 0 According to Anne Draper, head of the National Committee for Equal Pay, this revisionist interpretation would have nullified Title VII for claims of discrimination in compensation and would have left "the Equal Pay Act as the only applicable Federal statute in the field."51

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The Narrow Interpretation of the Bennett Amendment Reflecting the ambiguity surrounding the meaning of the Bennett amendment, some courts adopted a narrow interpretation, requiring plaintiffs to prove equal work as the basis for their Title VII wage discrimination claim. Christensen v. Iowa52 and Lemons v. City and County of Denver5^ exemplified this position. Christensen arose because clerical workers at the University of Northern Iowa objected to the university's wage policy. In 1974, the university adopted a wage scheme for all nonprofessional jobs, dividing them into labor grades based on an objective measure of how valuable the job was to the employer. The physical plant employees, mostly men, and the clerical staff, entirely women, were scored the same, yet the plant workers started at higher salaries than the clerical workers. The reason, according to the university, was the salary disparity in the local job market for such jobs. The clerical workers brought suit under Title VII, claiming that the wage disparity is a "continuation of a long history of sex discrimination in the local job market." 5 4 The circuit court accepted the university's argument that the local job market created upward pressure on the salaries of the physical plant workers and said it doubted that "Congress intended to abrogate the laws of supply and demand or other economic principles that determine wage rates for various kinds of work." 5 5 Because the university had made a good faith effort to equalize wages, the court did not consider the remaining wage disparity a Title VII violation. Lemons, a Tenth Circuit case, involved a suit brought by Denver nurses who claimed the city's pay scale violated Title VII. The city responded by pointing out that its wage structure was comparable to the private sector's. The nurses contended that because nurses are almost exclusively women, they are historically underpaid, and basing their salaries on those in the private sector perpetuates their low wage status. The court, however, ruled that Title VII, like the EPA, required a showing of equal work. More fundamentally, the judge also expressed concern about the propriety of courts interfering in market relationships.

The Broad Interpretation of the Bennett Amendment International Union of Electrical, Radio, and Machine Workers v. Westinghouse Electric Company 5 6 a 1980 ruling that embodied the broad interpretation of the Bennett amendment, arose out of the union suit against Westinghouse for setting wages in job classifications predominantly held by women lower than those in jobs predominantly held by men. The company had initially established a separate wage scale for men and women in the 1930s. All jobs within the plant were given points and assigned a grade upon which the

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salaries were based. Because of the point system, women earned less than men even when the jobs were equally ranked on the basis of knowledge, training, demands, and responsibility. In 1965, the two pay scales were combined, but the women's jobs were given a lower grade than the men's jobs—even though they had been at equal grades in the old system. Under the new plan, with just one exception, all workers in the four lowest grades were women, and no women were in the highest four grades. In bringing suit, the union claimed that "the new wage scale . . . embodies the deliberately discriminatory policy of the prior plan." 57 Following an extensive analysis of the language and legislative history of Title VII, the appellate court interpreted the amendment as merely incorporating the four affirmative defenses of the EPA into Title VII. It pointed out that placing an equal work limit on a Title VII sex discrimination claim allowed employers to discriminate on the basis of sex where they could not do so on the basis of race, religion, or national origin. It questioned why sexbased wage claims should be treated differently from these other Title VII wage claims. Commenting that "the legislative materials on the Bennett Amendment are remarkable only for their equivocacy and turbidity," the court concluded that, on balance, its interpretation was the one Congress had intended. 58 The Supreme Court Resolves the Conflict The Supreme Court resolved the conflict among the circuits in County of Washington v. Gunther,59 a 1981 case brought by women prison guards in Washington County, Oregon. Their Title VII action alleged disparate treatment by their employer, claiming that they were paid less than men for performing substantially the same work and that the pay difference was a result of intentional discrimination. 60 In a narrowly focused opinion, the high court pointedly noted that the guards' claim was based on intentional discrimination, not on comparable worth theory. Announcing the opinion for the 5 to 4 majority, Brennan confined himself to the question of whether the guards' inability to comply with the equal work requirements of the EPA invalidated their Title VII claim. Based on the statute's legislative history and congressional intent, he found it did not. In part, he said, the Court desired to "avoid interpretations of Title VII that deprive victims of discrimination of a remedy, without [a] clear congressional mandate." 61 In dissent, Rehnquist charged that the Court's broad interpretation of the Bennett amendment misconstrued congressional intent. Delving into the debate surrounding passage of the act, Rehnquist argued that the legislative history shows that "Congress was unwilling to give either the Federal Government or the courts broad authority to determine comparable wage rates." 62

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Rehnquist also criticized the decision because it provided "little guidance to employers and lower courts as to what types of compensation practices might now violate Title VII." All we know, [he said,] is that Title V E 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.®-'

Comparable Worth Litigation After Gunther Although the Court did not explicitly address the soundness of comparable worth theory in Gunther, it removed the primary legal obstacle to relying on it in Title VII sex-based wage discrimination suits. However, in repudiating the narrow interpretation of the Bennett amendment, the Court only eliminated the requirement that Title VII plaintiffs must satisfy the equal work component of the EPA; it did not specify the proof needed to establish a Title VII violation. Consequently, this decision should not be interpreted as supporting comparable worth litigation. The future of comparable worth theory would be decided in the lower courts during the 1980s. Spaulding v. University of Washington64 was brought by nursing faculty at the University of Washington, who charged the university with sex-based wage discrimination under Title VII and the EPA. The Ninth Circuit rejected the EPA claim, ruling that the nurses were unable to prove that their jobs and the jobs of men faculty in the departments and schools dominated by men were substantially equal. Turning to their Title VII disparate treatment claim, the court refused to "infer intent merely from the existence of wage differences between jobs that are only similar." 65 It concluded that the plaintiffs' evidence of discriminatory intent, statistical evidence as well as reported attitudes among university administrators, failed to establish that discrimination motivated the university's wage system. The faculty's disparate impact theory was premised on the university's market-priced wage policy, thus requiring the court to decide whether disparate impact theory could be adapted to a claim of sex-based wage discrimination based on comparable worth. 66 Stressing that Gunther was a disparate treatment case and that no other court had accepted such a sex-based wage discrimination claim under impact theory, the court held that it could not. Aligning this case squarely with Lemons, in which city-employed nurses complained about a market-based salary policy, the court added in a footnote that "courts are not competent to engage in a sweeping revision of market wage rates." 67

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Another case raising the issue of comparable worth was brought by the American Federation of State, County, and Municipal Employees Union on behalf of 15,500 women employees in the state of Washington. Suing under both disparate impact and disparate treatment theories, the plaintiffs claimed that reliance on a market-based wage system disproportionately affected women and that the court could infer discriminatory intent from the state's failure to correct the pay disparities, especially because the state's own studies showed that women earned about 20 percent less than men for performing comparable work. Announcing his decision in American Federation of State, County, and Municipal Employees v. Washington (AFSCMEj,68 Judge Jack Tanner agreed on both counts. Echoing Griggs, he held that the market system constituted a neutral employment practice with a disparate impact on women in job classes predominantly held by women and was not justified by business necessity. And, he found, the state's continued use of its compensation scheme in the face of studies showing it was unfair to women was sufficient to infer intentional discrimination. Tanner's ruling on disparate impact represents the only occasion in which a court has allowed plaintiffs to apply disparate impact theory to a Title VII wage claim based on comparable worth theory. 6 9 On appeal, the three-judge panel of the Ninth Circuit unanimously rejected the union's argument that the state's reliance on prevailing market rates to determine wages adversely affected women, who have historically received lower wages than m e n . 7 0 A valid disparate impact claim requires a "challenge [to] a specific, clearly delineated employment practice applied at a single point in the job selection process." 7 1 Here, because the workers' salaries were based on a multiplicity of complex factors, there was no unique element involved to sustain a disparate impact claim. Nor, held the court, is a wage system that mirrors the supply and demand of the market sufficiently narrow to conform to the demands of disparate impact theory. Turning to the disparate treatment charge, the court rejected the union's argument that discriminatory intent could be inferred from the state's reliance on a market-based wage system, shown by its own studies to be discriminatory; nor could intent be inferred from the state's failure to implement the recommendations of the commission that conducted the study. The link between the state's wage policy and the economic realities of a market system of supply and demand is not sufficient to prove discriminatory intent, and although the state may elect to implement a comparable worth pay scheme, "Title VII does not obligate it to eliminate an economic inequality that it did not create." 7 2 Conceding that discriminatory intent may be inferred from statistical evidence, the court held that the kind of evidence produced h e r e — j o b evaluation studies and comparable worth statistics—did not rise to the level of proof needed, absent corroboration by specific testimony. 7 3 Also opposed to comparable worth claims, the E E O C raised the bar for comparable worth litigants by refusing to find "reasonable cause" of discrim-

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ination in suits alleging employment discrimination under a comparable worth theory. 74 Forced to rely on disparate treatment theory in comparable worth claims after Spaulding and AFSCME, employees were required to prove that intentional discrimination motivated the employer's sex-based wage differences. 75 In refusing to infer discriminatory intent from the employer's reliance on a market-based pay scheme, the federal courts essentially shut the door on litigants in Title VII wage discrimination claims. American Nurses' Association v. Illinois,76 decided in 1986, illuminates the difficulties of charging intentional wage discrimination under Title VII. The case was brought on behalf of state women employees who claimed that men in jobs predominantly held by men were paid higher wages that were not justified by the relative worth of the jobs. Moreover, they argued that the state had not implemented its own job evaluation study showing that women were underpaid. The Seventh Circuit, in an opinion written by Judge Richard Posner, instructed the plaintiffs about proof necessary for Title VII claims of intentional sex-based wage discrimination. Such proof, Posner noted, cannot be inferred merely from a state's inaction. Citing AFSCME, he pointed out that a state's failure to implement a job evaluation study and to eliminate existing wage disparities does not violate Title VII. "The critical thing lacking in AFSCME," he explained, "was evidence that the State decided not to raise the wages of particular workers because most of those workers were female." 7 7 Inferring a Title VII violation every time a state commissions a wage study would discourage such studies. The appellate court remanded the case to the lower court to allow plaintiffs to present evidence of discrimination, suggesting that they could do so by showing that the state deliberately kept women out of jobs predominantly held by men or that it departed from market rates only for these jobs—because they were held by men. The judge ended, however, by warning that he did "not want to arouse false hopes; the plaintiffs have a tough row to hoe." 7 8 Reflecting Posner's pessimism about comparable worth claims, women's rights advocates have not looked to the courts to redress pay inequities since the late 1980s. Writing in 1987, one scholar gloomily noted that "the judiciary has been and, apparently, will continue to be unreceptive to the doctrine of comparable worth as a viable legal theory under Title VII." 7 9 In opening the door to Title VII suits for wage discrimination in Gunther, the high court cautioned that it was not deciding "the precise contours of lawsuits challenging sex discrimination in compensation under Title VII." 8 0 Thus, although Gunther was seen as a victory for women's rights advocates, the victory proved to be ephemeral as the lower courts continued to accept market-based salary structures as defenses in disparate treatment cases and rejected wagebased claims brought under disparate impact theory. 81 In part fearing that they would be overwhelmed by comparable worth claims and that remedies would

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require them to impose and supervise sweeping economic changes in the public and private sectors, the judiciary was unreceptive to women's rights litigants seeking to apply comparable worth theory to sex-based wage discrimination claims.

Comparable Worth Legislation Discouraged by the prospects for comparable worth litigation in the federal courts, women's rights advocates turned their attention to state and local governments, meeting with some success in a number of states. 82 Pay equity actions ranged from research and data collection to creating task force commissions, performing job evaluation studies, and implementing pay equity plans. Within the states, the demands for pay equity were often initiated by commissions on the status of women, with unions adding their voices as well. As a result of collective bargaining agreements with state employee unions, as well as pay equity legislation, a number of states enacted legislation calling for pay equity for jobs of "comparable character" or "comparable value," mostly aimed at public employees, although some extended to the private sector as well. 83 In response to the pressure, comparable worth bills were introduced in thirteen state legislatures between 1981 and 1983. 84 Minnesota, the first state to enact pay equity legislation, provided a model for the nation. In 1982, the Minnesota legislature approved a law affecting 9,000 state employees; it called for a job evaluation study for civil service positions every two years and appropriated more than $20 million for pay adjustments over the next two years. In 1984, the state enacted legislation to mandate pay equity at the municipal level. 85 On the local level, the city of San Jose, California, ordered a job evaluation study that showed women working in "women's jobs" were paid less than men working in "equal" job classifications that were dominated by men. But despite its reputation as a hotbed of feminism, the city council of San Jose, California, turned down a union demand for $3.2 million in comparable worth adjustments over a four-year period. The union voted to strike. After a job action that lasted nine days, the city agreed to pay approximately $1.45 million over two years to correct pay inequities. 86 By 1990, twenty states, including Washington—site of Spaulding and AFSCME—had implemented pay equity plans to reduce inequities in jobs in which women predominated. Of the twenty states, only six—Iowa, Minnesota, New York, Oregon, Washington, and Wisconsin—enacted comprehensive reforms covering a wide range of job classifications and implemented corresponding pay increases. Reforms in the remaining fourteen states were more narrowly applied. 87 In assessing the effect of pay equity in the sixteen states for which they could collect data, Heidi Hartmann and Stephanie

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Aaronson found that state governments spent more than $527,000,000 for this purpose through 1992, raising the pay of approximately 335,000 workers. 88 Despite the warnings of pay equity opponents, they found few negative effects of pay equity programs; specifically, there were no increases in public sector unemployment and no declines in women's wages in the private sector. Moreover, there were positive results: women in states that had implemented pay equity plans had attained "significant absolute wage gains relative to their male co-workers, and relative to the national experience for all women." 8 9 The struggle for pay equity returned to the federal arena in the more welcoming political climate of the Clinton administration. Eleanor Holmes Norton, former chair of the EEOC and current nonvoting delegate in the House representing the District of Columbia, introduced H. R. 4803. the Fair Pay Act, in 1994. She sought to amend the FLSA (thereby making its provisions applicable to both the public and private sector) by inserting a comparable worth component that measured jobs on the basis of "skill, effort, responsibility, and working conditions." Going beyond the EPA, her bill would have barred employment discrimination on the basis of race, sex, or national origin for "work in equivalent jobs." Under the provisions of this bill, class action suits would have been permissible and employers would have been subject to more substantial record keeping and reporting requirements. Although it had more than three dozen sponsors and was heavily supported by labor unions, the bill died before any action was taken on it. 90 Norton reintroduced the bill several years in a row, but no final action was ever taken. Additionally, beginning in 1997 and for several years thereafter, her colleague, Representative Rosa DeLauro, Democrat from Connecticut, introduced H. R. 2023, the Paycheck Fairness Act. It would have amended the EPA, the FLSA, and Title VII to enhance the remedies available to victims of wage discrimination and prescribed record keeping and reporting procedures for employers. 91 In the Senate, Tom Daschle, Democrat from South Dakota and Senate Minority Leader, introduced the Paycheck Fairness Act, S. 74, in 1999. Similar to DeLauro's bill, it also proposed to amend the equal pay provisions of the FLSA by inserting a nonretaliation clause and allowing suits for compensatory and punitive damages. Senator Tom Harkin, Democrat from Iowa, sponsored S. 702, also called the Fair Pay Act, which was similar to the Norton bill. As hers did, it would have simply required employers to pay equal wages for jobs of comparable worth. Both Senate bills were referred to committee, and hearings were held on the Daschle bill. Both died in the Senate. 92

Conclusion Inequities between women and men wage earners in the United States have persisted over time, despite legislative efforts to eradicate them. Congress's

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first attempt to equalize the wages of women and men was the 1963 Equal Pay Act, a law banning unequal payment for equal work. When women turned to the courts to enforce the law, the law was broadly interpreted for the most part, only requiring plaintiffs to show that the work performed by men and women was "substantially equal." As women increasingly sought legal remedies for the wage disparities between themselves and men, the courts largely ruled in their favor, generally refusing to accept employers' arguments for maintaining wage disparities. Although EPA litigation helped bring about a measure of wage equity in the workplace, women soon found themselves stymied by the problem of occupational segregation, which was outside the parameters of the 1963 Act. The battle for equal pay soon turned to a battle for comparable worth—also known as pay equity. Pay equity theory was based on the principle that employees who performed jobs requiring comparable skill, effort, responsibility, and working conditions, as determined by standard employment evaluation measures, should receive comparable wages. Comparable worth cases, brought as Title VII wage discrimination suits, were initially dismissed because the courts imported Equal Pay Act principles into Title VII. The Supreme Court rejected this theory, ruling that an inability to satisfy the equal work standard was not cause for dismissal of the Title VII suit. However, although the high court seemed to have paved the way for comparable worth litigation, the circuit courts dismissed the Title VII disparate treatment claims, ruling that the plaintiffs had not shown the salary differentials were motivated by an intent to discriminate. Similarly, the courts refused to apply disparate impact theory to wage-setting policies and, within a few years, it became clear that comparable worth litigation would not remedy wage disparities based on occupational segregation. A few state and local governments established policies to study and implement wage equity programs in government work, but although they succeeded in closing some of the wage gap between men and women, the policies were not widely instituted. Although the earnings gap between men and women has narrowed over time, there is still a substantial difference in the salaries men and women command, primarily because of the highly segregated nature of the U.S. workforce. Pay equity litigation has succeeded in closing some of the gap, but fulltime women workers still earn only about 70 cents for every dollar men earn; despite greater egalitarianism in the workforce, pay inequity persists.

Notes 1. Diane L. Bridge, in "The Glass Ceiling and Sexual Stereotyping: Historical and Legal Perspectives of Women in the Workplace," Virginia Journal of Social Policy and

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the Law 4 (1997): 587, reports that the wages of pre-industrial women were 20 to 50 percent less than men for doing the same work. 2. U.S. Department of Labor, Women's Bureau, Median Annual Earnings in Current and 1999 Dollars for Year-round Full-time Workers by Sex, 1951-99, October 2000. The figures are in 1999 dollars. 3. Heidi I. Hartmann and Stephanie Aaronson, "Pay Equity and Women's Wage Increases in the States: A Model for the Nation," Duke Journal of Gender Law and Policy 1 (1994): 69, report that between 1982 and 1992, half of the decreased earnings gap was attributable to an increase in women's real wages and the other half was attributable to a decrease in men's real wages. 4. U.S. Department of Labor, Bureau of Labor Statistics, Highlights of Women's Earnings in 2000, August 2000. 5. Lucy Bednarek, "The Gender Wage Gap: Searching for Equality in a Global Economy," Indiana Journal of Global Legal Studies 6 (1998): 214. 6. See Sandra J. Libeson, "Reviving the Comparable Worth Debate in the United States: A Look Toward the European Community," Comparative Labor Law Journal 16 (1995): 358-398. Another study, however, showed that women in the U.S. hold more top management positions than women in Britain, Germany, Brazil, or Australia. Los Angeles Times, July 29, 2001. 7. L. Tracee Whitley, ' " A n y Other Factor Other than Sex': Forbidden Market Defenses and the Subversion of the Equal Pay Act of 1963," Northeastern University Forum 2 (1997): 56. 8. Cynthia Harrison, On Account of Sex: The Politics of Women's Issues, 19451968 (Berkeley: University of California Press, 1988), pp. 96-97; see also Virginia Dean, "Pay Equity/Comparable Worth," in Carol Lefcourt, ed., Women and the Law (New York: Clark Boardman, 1987). 9. Cynthia Reddick-Martin, "Women's Rights to Equal Pay in the International Workplace: Is the United States a Poor Leader and a Poor Follower?" Florida Journal of International Law 9 (1994): 483. 10. Harrison, On Account of Sex, p. 104. 11. In National League of Cities v. Usery, 426 U.S. 833 (1976), the Supreme Court struck down the extension of the FLSA's provision on wages and hours to state and local employees. In 1985, in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), the Supreme Court overruled National League of Cities on the issue of state and local government workers. Even before Garcia, however, most lower courts had limited National League of Cities to wages and hours provisions and allowed EPA claims against state and local governments. More recently, states have argued that the Eleventh Amendment to the U.S. Constitution bars public employees from suing them for wage disparities under the EPA. 12. Includes Equal Pay Act and comparable worth litigation. 13. 421 F.2d 259 (3d Cir. 1970). 14. Wheaton Glass, 421 F.2d at 265. 15. 436 F.2d 719 (5th Cir. 1970). 16. Brookhaven Hospital, 436 F.2d at 725. In Schultz v. American Can CompanyDixie Products, 424 F.2d 356 (8th Cir. 1970), the Eighth Circuit held that the work of men and women machine operators was "substantially equal," even though the men loaded the machines with heavy rolls of paper. 17. Diana Stone, Pay Equity Sourcebook (San Francisco: Equal Rights Advocates and Washington, D.C.: National Committee on Pay Equity, 1987), p. 195. 18. Charles A. Sullivan, "The Equal Pay Act of 1963: Making and Breaking a Prima Facie Case," Arkansas Law Review 31(1978): 545-606.

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19. 473 F.2d 589 (3d Cir. 1973). 20. Robert Hall, 473 F.2d at 593. 21. See Nina Joan Kimball, "Not Just Any 'Factor Other Than Sex': An Analysis of the Fourth Affirmative Defense of the Equal Pay Act," George Washington Law Review 52 (1984): 319-339; Sullivan, "The Equal Pay Act of 1963." 22. Whitley, ' " A n y Other Factor Other than Sex.'" 23. 417 U.S. 188 (1974). 24. Whitley, ' " A n y Other Factor Other than Sex.*" 25. See analysis of the "new federalism" in Frank B. Cross and Emerson H. Tiller, "The Three Faces of Federalism: An Empirical Assessment of Supreme Court Federalism Jurisprudence," Southern California Law Review 73 (May 2000): 741-771; Daniel Farber, "Pledging a New Allegiance: An Essay on Sovereignty and the New Federalism," Notre Dame Law Review 75 (2000): 1133-1145. 26. The Eleventh Amendment, ratified in 1798, bars the federal courts from hearing suits against states for damages. Congress may have the authority under the Fourteenth Amendment's equal protection guarantee to override the state's immunity defense. 27. See, for example, Varner v. Illinois State University, 150 F.3d 706 (7th Cir. 1998); Kovacevich v. Kent State University, 224 F.3d 806 (6th Cir. 2000). 28. Barbara Bergmann, The Economic Emergence of Women (New York: Basic Books, 1986), p. 186. 29. See Whitley, ' " A n y Other Factor Other Than Sex,'" for analysis of the "neoclassical" criticism of the EPA. 30. See Francine D. Blau and Marianne A. Ferber, "Occupations and Earnings of Women Workers," in Karen Shallcross Koziara, Michael H. Moskow, and Lucretia Dewey Tanner, eds., Working Women: Past, Present, Future (Washington, D.C.: Bureau of National Affairs, 1987); Ray Marshall and Beth Paulin, "Employment and Earnings of Women: Historical Perspective," in Karen Shallcross Koziara, Michael H. Moskow, and Lucretia Dewey Tanner, eds., Working Women: Past, Present, Future (Washington, D.C.: Bureau of National Affairs, 1987). 31. Bednarek, "The Gender Wage Gap," pp. 223-224. 32. U.S. Department of Labor, Women's Bureau, 20 Leading Occupations of Employed Women, 2000 Annual Averages (2002). 33. U.S. Department of Labor, Women's Bureau, Nontraditional Occupations for Women in 2000 (2002). 34. George Rutherglen, "The Gender Gap in Compensation: The Theory of Comparable Worth as a Remedy for Discrimination," Georgetown Law Journal 82 (1993): 142. 35. Michael W. McCann, in Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago: University of Chicago Press, 1994), discusses the legal and political battles in the struggle for comparable worth, especially the work of the unions, one of the most important components of the battle for pay equity. 36. Mary Frances Berry, Why ERA Failed (Bloomington: Indiana University Press, 1986), p. 111. 37. William Bradford Reynolds, "Comparable Worth: Bad Policy and Bad Law," Harvard Journal of Law and Public Policy 9 (1986): 90. 38. Legal Times, July 19, 1999. 39. Henry Aaron and Cameran M. Lougy, The Comparable Worth Controversy (Washington, D.C.: Brookings Institution, 1986), p. 15. 40. Joseph P. Loudon and Timothy D. Loudon, "Applying Disparate Impact to Title VII Comparable Worth Claims: An Incomparable Task," Indiana Law Journal 61 (1986): 165.

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41. Judith Brown, Phyllis Tropper Baumann, and Elaine Millar Melnick, "Equal Pay for Jobs of Comparable Worth: An Analysis of the Rhetoric," Harvard Civil Rights-Civil Liberties Law Review 21 (1986): 127-170. 42. Reynolds, "Comparable Worth: Bad Policy and Bad Law," p. 89. 43. Vicki Schultz, "Telling Stories About Women and Work," Harvard Law Review 103 (1990): 1749-1843. 44. See discussions of job evaluation studies in Brown, Baumann, and Melnick, "Equal Pay for Jobs of Comparable Worth"; Aaron and Lougy, The Comparable Worth Controversy. 45. See Sara Evans and Barbara Nelson, "Comparable Worth: The Paradox of Technocratic Reform," Feminist Studies 15 (1989): 171—190; Jane Bayes, "Women, Labor Markets, and Comparable Worth," Policy Studies Review 5 (1986): 776-799. 46. A primary difference between an equal pay action and a comparable worth action lies in the employer's ability to use market wages as a defense in the latter. In an EPA suit, employers are not permitted to use prevailing market rates to justify less pay for women workers. 47. Donald Treiman and Heidi Hartmann, eds., Women, Work, and Wages: Equal Pay for Jobs of Equal Value (Washington, D.C.: National Academy Press, 1981). See also Roslyn Feldberg, "Comparable Worth: Toward Theory and Practice in the United States," Signs 10 (1984): 311-328; Bayes, "Women, Labor Markets, and Comparable Worth." The U.S. labor force is also segregated by race, a fact that helps explain wage gaps between the races. See National Committee on Pay Equity, Pay Equity: An Issue of Race, Ethnicity, and Sex (Washington, D.C.: National Committee on Pay Equity, 1987); Mary Corcoran and Greg Duncan, "Work History, Labor Force Attachment, and Earnings Differences Between the Races and Sexes," Journal of Human Resources 14 (1979): 3-20. 48. Ruth Blumrosen, "Wage Discrimination, Job Segregation, and Title VII of the Civil Rights Act of 1964," University of Michigan Journal of Law Reform 12 (1979): 401. 49. Congressional Record, 88th Cong., 2d sess., 1964, 110: 13647. 50. Congressional Record, 89th Cong., 1st sess., 1965, 111: 13359. 51. Congressional Record, 89th Cong., 1st sess., 1965, 111: 18263. 52. 563 F.2d 353 (8th Cir.1977). 53. 620 F.2d 228 (10th Cir.1980). 54. Christensen, 563 F.2d at 355. 55. Christensen, 563 F.2d at 356. 56. 631 F.2d 1094 (3d Cir. 1980). 57. Westinghouse, 631 F.2d at 1097. 58. Westinghouse, 631 F.2d at 1101-1102. 59. 452 U.S. 161 (1981). 60. Plaintiffs filed suit under Title VII because the EPA did not apply to municipal employees until the FLS A Amendments of 1974. 61. Gunther, 452 U.S. at 178. 62. Gunther, 452 U.S. at 188. 63. Gunther, 452 U.S. at 183 (emphasis in the original). 64. 740 F.2d 686 (9th Cir. 1984). 65. Spaulding, 740 F.2d at 700. 66. Spaulding, 740 F.2d at 705. 67. Spaulding, 740 F.2d at 706 n . l l . 68. 578 F. Supp. 846 (W.D. Wash. 1983).

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69. Loudon and Loudon, "Applying Disparate Impact to Title VII Comparable Worth Claims," p. 174. 70. American Federation of State, County, and Municipal Employees v. Washington (AFSCME),HQ F.2d 1401 (9th Cir. 1985). 71. AFSCME, 770 F.2d at 1405. 72. AFSCME, 770 F.2d at 1407. 73. See Rutherglen, "The Gender Gap in Compensation," for a discussion of the use of statistical evidence in comparable worth suits. 74. Ronald Cooper, "EEOC Deals Clear Setback to Comparable Worth," Legal Times (July 1-July 8, 1985). 75. Ruth Blumrosen, in "Wage Discrimination, Job Segregation and Title VII," p. 465, argues that plaintiffs should merely have to show sex segregation to raise a prima facie case of discrimination because "evidence of segregated jobs justifies an inference of discrimination in compensation." Briggs v. City of Madison, 536 F.Supp. 435 (W.D. Wis. 1982) explicitly rejected this theory. See also Loudon and Loudon, "Applying Disparate Impact to Title VII Comparable Worth Claims," pp. 171-172. 76. 783 F.2d 716 (7th Cir.1986). 77. American Nurses, 783 F.2d at 722 (emphasis in the original). 78. American Nurses, 783 F.2d at 730. 79. Tina L. Speiser, "The Future of Comparable Worth: Looking in New Directions," Syracuse Law Review 37 (1987): 1207. 80. Gunther, 452 U.S. at 181. 81. Brown, Baumann, and Melnick, "Equal Pay for Jobs of Comparable Worth," p. 143. 82. In chap. 4 of Women, Politics, and American Society, 3d ed. (New York: Longman Publishing, 2002), Nancy E. McGlen et al. suggest that these efforts have been generally disappointing. 83. Rich Arthurs, in "State Legislatures See Flood of Comparable Worth Proposals," Legal Times, October 15, 1984, discusses activity at the state level. 84. See Chi Keon "Comparable Worth in State Government: Trends and Issues," Policy Studies Review 5 (1986), for discussion of the adoption of state comparable worth policies. 85. Aaron and Lougy, The Comparable Worth Controversy, pp. 37-38. 86. Robert H. Cohen, "Pay Equity: A Child of the 80s Grows Up," Fordham Law Review 63 (1995): 1485-1486. 87. Hartmann and Aaronson, "Pay Equity and Women's Wage Increases in the States," pp. 72-73. 88. Hartmann and Aaronson, "Pay Equity and Women's Wage Increases in the States," p. 76; the figures are in 1990 dollars; see Arthurs, "State Legislatures See Flood of Comparable Worth Proposals," for a discussion of pay equity actions at the state level. 89. Hartmann and Aaronson, "Pay Equity and Women's Wage Increases in the States," pp. 85-86. 90. Thomas, Legislative Information on the Internet, Bill Summary and Status for the 103rd Congress, thomas.loc.gov/bss/; see Cohen, "Pay Equity"; Libeson, "Reviving the Comparable Worth Debate in the United States"; and B. Tobias Isbell, "Gender Inequality and Wage Differentials Between the Sexes: Is It Inevitable or Is There an Answer?" Washington University Journal of Urban and Contemporary Law 50 (1966): 369-400, for an analysis of the proposed Fair Pay Act.

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91. See various editions, Thomas, Legislative Information on the Internet, Bill Summary and Status for the 103d-106th Congresses, thomas.loc.gov/bss/. 92. Thomas, Legislative Information on the Internet, Bill Summary and Status for the 106th Congresses, thomas.loc.gov/bss/; see Janice Goodman, "Comparable Worth: Time May Be Now," New York Law Journal, June 28, 1999; and Legal Times, August 23, 1999; for a discussion of the two Senate bills.

5 Battling Sexual Harassment

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EXUAL HARASSMENT IS INEXTRICABLY LINKED TO THE ROLE OF WOMEN IN THE

workforce, sending a message that women are sexual objects. It has been characterized as "nothing more than the assertion of power by men over women, perceived to be in a vulnerable position with respect to male authority." 1 And although men may suffer from harassment, women workers are far more likely to be victimized. 2 Not surprisingly, therefore, suits alleging sexual harassment are predominantly brought by women. 3 Attributing the problem to their subordinate status in the labor force, Catharine MacKinnon maintains that women are victimized by harassment because they "are generally men's subordinates on the job, with men in the position to do the hiring, firing, supervising, and promoting." 4 Thus, women holding clerical or blue-collar jobs are more likely to experience sexual harassment on the job. 5 Additionally, the problem of sexual harassment may be particularly acute for women of color. Writing about the intersection of race, class, and sex, Angela Davis claims that because of their historic economic and sexual victimization by white men, women of color are especially vulnerable to sexual harassment. 6 Prior to 1976, there was little reliable data on sexual harassment in the workplace. In November 1976, Redbook Magazine released the results of a survey of 9,000 clerical and professional women. Ninety-two percent of the respondents reported experiences of physical harassment, sexual remarks, and leering; almost 50 percent claimed that they or someone they knew had been fired or resigned because of harassment, and 75 percent believed that complaining to a supervisor would accomplish nothing. 7 Later studies have substantiated findings such as these. 8 Indicating the prevalence of sexual harassment in the U.S. workforce, charges filed with the EEOC and the Fair Employment Practices (FEP) 129

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Agency show that in fiscal year 1992, the combined agencies received 10,532 charges (9.1 percent filed by men); in fiscal year 2001, there were 15,475 complaints (13.7 percent filed by men). 9 A survey on sexual harassment in the federal workforce, released by the U.S. Merit Systems Protection Board, showed that in 1994, 44 percent of women and 19 percent of men who responded to a survey had experienced a form of "unwanted sexual attention" during the last two years, up slightly from the 42 percent of women and 14 percent of men reported in a 1987 survey. The most common form of harassment was unwelcome teasing, sexual comments, and lewd remarks, with most employees reporting harassment by coworkers rather than supervisors. 1 0 Ironically, despite society's attention to the problem of sexual harassment in the workforce during the 1990s, the survey showed that harassing behavior in federal employment increased rather than decreased. In her pathbreaking 1979 book on sexual harassment, MacKinnon identified two types of sexual harassment in employment. The first situation, called quid pro quo, occurs when a person in authority requires sexual favors from an employee in exchange for employment benefits, such as getting hired or promoted, obtaining better working conditions, or not being fired. The second happens when an employee's coworkers or supervisors permeate the atmosphere with sexuality, but no explicit demands are made as a condition of employment, or no negative consequences follow from an employee's refusal to "play along." 1 1

Dismissing Sexual Harassment Suits Despite the widespread occurrences of sexual harassment in the workplace, for a long time, victims were forced to cope with it on their own. In part, they were reluctant to report episodes of harassment because they were ashamed, embarrassed, or fearful of losing their jobs. When women began to take their complaints to the federal courts, claiming that sexual harassment violated the ban on sex discrimination in employment in Title VII, the judges refused to acknowledge that the harassment had employment consequences. In their eyes, sex in the workplace was a natural occurrence, the result perhaps of sexual attraction or flirtatious behavior; they typically attributed it to the woman's physical characteristics or manner of dress and refused to hold the employer liable. Thus, most courts denied the legitimacy of the woman's complaints, dismissing her suit on the grounds that even if her allegations were true, there was no Title VII violation. The judiciary's reluctance to entertain suits for sexual harassment also stemmed, in part, from fears that the federal courts would be inundated with Title VII litigation. Courts typically cited three reasons for dismissing the sexual harassment suits that came before them. First, they refused to acknowledge sexual harass-

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ment as a form of sex discrimination. Because either sex could be harassed by a member of the opposite sex or the same sex, the courts held that sex was not a determining factor in causing the harassment. The courts believed that a woman's demotion or dismissal was not attributable to sex but rather to her refusal to engage in sexual activity with her supervisor, a "sex-plus" situation that had been discredited in the early 1970s when the courts ruled that an employment barrier applied to one sex constituted sex discrimination. 12 Second, the courts were unwilling to recognize that harassment had consequences for an employee's work conditions. They viewed sexual advances from an employee to another and even from supervisor to employee as personal conduct that was not employment-related. Flirtatious comments, offcolor jokes, and invitations to engage in sexual relations were dismissed as individual actions with no relationship to the terms and conditions of employment—even when the consequences of not going along was a demotion, an unfavorable job evaluation, or dismissal. Finally, and most troublesome for the courts, was the question of where the liability lay. Judges were unwilling to hold the company legally responsible for harassment committed by an employee's supervisor or coworker. And their reluctance was heightened when the company had a policy forbidding sex discrimination, including harassment, and even more so when the plaintiff made no attempt to resolve the problem through the internal grievance procedure. When victims of sexual harassment brought their claims to the federal courts, however, they were not treading on new ground. The courts had found Title VII violations in oppressive workplace atmospheres beginning in 1971, when the Fifth Circuit allowed a claim for racial harassment under Title VII in Rogers v. EEOC,13 In the years following, other circuits permitted suits for harassment based on religion, national origin, and race. Despite the precedent set in these cases, the courts distinguished sexual harassment from other types of workplace harassment, labeling a single incident of racial harassment as a discriminatory employment condition while dismissing a single incident of sexual harassment as an act without employment consequences. 14 Moreover, the courts did not require victims of racial or ethnic harassment to prove that the conduct was "unwelcome," a requirement of sexual harassment cases. 15 And even when the courts denied relief in cases alleging racial or religious harassment, at least they were not telling the victims that the actions taken against them were "normal," "natural," and a "private affair." 16 Additionally, in these cases the courts held employers accountable for the harassing conduct of their supervisory personnel. 17 Although women's rights advocates eventually persuaded the federal courts that sexual harassment in the workplace fell within the purview of Title VII, their acceptance developed gradually. And it required more than a decade of litigation in the lower courts before the Supreme Court acknowledged in

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the 1986 case of Meritor Savings Bank v. Vinson18 that sexual harassment was a discriminatory job action subject to relief under Title VII. Because of the myriad obstacles, sexual harassment suits met with a chilly reception in the federal courts, with victims losing most of the cases. The following four cases illustrate the barriers to successful Title VII actions for sexual harassment. In Barnes v. Train,19 decided in 1974, the District Court for the District of Columbia dismissed a case brought by Paulette Barnes, an employee of the Environmental Protection Agency. She claimed that shortly after she began working at the agency, the director asked her to join him in after-hours social activities, during which he made sexual remarks to her and promised her extra privileges if she had an affair with him. When she turned him down, he retaliated against her by decreasing her job duties and eventually abolishing her job. The court ruled that her supervisor's actions were not motivated by her sex but stemmed from her refusal to engage in sexual relations—not a Title VII problem. One year later, in Come v. Bausch and Lomb20 an Arizona federal district court decided a case brought against the Bausch and Lomb company. The plaintiffs claimed that their supervisor's verbal and physical harassment created an intolerable working condition and that the company was responsible for allowing them to be supervised by a man who harassed them. The district court dismissed their complaint, saying that the supervisor's behavior was not a company-directed policy that negatively affected their employment opportunities. The supervisor's conduct "appeared to be nothing more than a personal proclivity, peculiarity, or mannerism"; he was merely "satisfying a personal urge." 21 The court concluded there was no sex discrimination because the supervisor could have harassed men employees as well. The judge also expressed concern that a flood of litigation would follow if their suit succeeded. In Tomkins v. Public Service Electric and GasP- a 1976 ruling, the New Jersey district court refused to apply Title VII to the plaintiff's sexual harassment claim, despite her allegation that she was physically attacked by her supervisor. Adrienne Tomkins was invited to lunch by her supervisor to discuss his evaluation of her work and the possibility of a future promotion. He propositioned her for sex at lunch and made it clear that her compliance was a requirement of the job. The judge, however, considered sex irrelevant to her claim and expressed no concern about whether her supervisor's behavior affected her employment status. Her claim was dismissed, with the court describing the supervisor's acts merely as "abuse of authority . . . for personal purposes." 23 In Miller v. Bank of America,24 also decided in 1976, a California district court judge rejected Margaret Miller's Title VII suit against her employer for sexual harassment. Miller claimed she was promised a better job if she agreed to engage in sexual activity with her supervisor and was fired for refusing.

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The court dismissed her suit in part because she had not presented evidence of a systematic policy of harassment of women; it balked at applying Title VII to the case because it involved only one victim. Indicating his reluctance to interfere in a personnel decision involving sexual attraction, the judge asked "whether Title VII was intended to hold an employer liable for what is essentially the isolated and unauthorized sex misconduct of one employee to another." 25 He noted that the bank had a policy against immoral behavior and that Miller had not availed herself of the complaint procedure. Although he did not rule out the possibility of a future Title VII suit against an employer for allowing sex to be a condition of employment, the judge felt this was not the time. Warning of the possible abuse of Title VII in these situations, he stated that "it would not be difficult to foresee a federal challenge based on alleged sex motivated considerations of the complainant's superior in every case of a lost promotion, transfer, demotion or dismissal." 26

Sexual Harassment Suits in the Courts Williams v. Saxbe,27 another 1976 decision, was the first sexual harassment suit to succeed in federal district court. Diane Williams, an information officer for the Department of Justice, brought suit when she was fired from her job less than two weeks after she refused her supervisor's sexual advances. For the first time, a court recognized a link between a supervisor's conduct and a victim's employment status and agreed that the plaintiff had made a legitimate claim of sex discrimination. Rejecting the argument that sexual demands could be made to both sexes, the district court found that the actions of her supervisors "created an artificial barrier to employment which was placed before one gender and not the other." 28 Following Williams, the courts began to accept Title VII suits for sexual harassment; Table 5.1 shows the key sexual harassment cases decided by the federal courts since 1977. The first real breakthrough at the appellate level was in 1977, when the District of Columbia Circuit Court ruled in Barnes v. Costle29 (Barnes v. Train in the lower court), that Paulette Barnes's complaint of sexual harassment stated a valid claim of sex discrimination under Title VII. 3 0 The primary issue in Barnes was whether the harassment was "based on sex," as Title VII required, and the court found that Barnes had been treated differently from other employees because of her sex. Citing examples of her supervisor's attempts to persuade her to engage in sex with him, the court agreed that she had successfully shown that "retention of her job was conditioned upon submission to sexual relations—an exaction which the supervisor would not have sought from any male." The court continued, "but for her womanhood . . . her participation in sexual activity would never have been solicited." 31

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Table 5.1

Sexual Harassment Cases, 1977-1998

Case

Date

Barnes" Tomkins" Miller" Bundy" Vinson

1977 1977 1979 1981 1986

Robinson"

1991

Ellison" Harris Oncale Eilerth

1991 1993 1998 1998

Faragher

1998

Issue Harassment "based on sex" Employer liability Employer liability Hostile environment harassment Hostile environment harassment and employer liability for supervisor harassment Employer liability for coworker harassment Reasonable woman standard Psychological injury Same sex harassment Lack of tangible job consequences and employer liability for supervisor harassment Employer liability for supervisor harassment

Disposition Pro-equality Pro-equality Pro-equality Pro-equality Mixed equality1

Pro-equality Pro-equality Pro-equality Pro-equality Mixed equality'

Mixed equality'

Note: a. Lower court ruling. b. The Court expanded the employer's liability for the actions of its employees but rejected strict liability.

The judge explained that Title VII does not require sex to be the sole cause of discriminatory treatment, as long as it "contribut[es] to the discrimination in a substantial way." 3 2 Employers cannot subject men and women to different conditions of employment, fire the women for not complying, and then disclaim any responsibility for sex discrimination. Employer Liability Beginning in 1977, as the courts became more accepting of sexual harassment claims, they were also more willing to hold employers liable for the acts of their supervisory personnel. In allowing a Title VII suit for sexual harassment, a Michigan district court held that, under some circumstances, a company could be held liable for the acts of its supervisory employees. The judge ruled that the employer had an affirmative duty to investigate complaints and take appropriate action against the offender; failing to investigate, the court noted, gave the appearance of consenting to the harassing behavior. 33 Then in 1978, another district court agreed that sexual harassment of women falls within Title VII, as long as it could be shown that the sexual demands were sufficiently tied to a condition of employment. Because the plaintiff had complained to company management and her complaints were either ignored or summarily dismissed, the court found the company liable for the harassment by the supervisor. 34

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The appellate court first ruled in favor of a plaintiff's claim on the issue of employer liability in 1977 by reversing the district court ruling in Tomkins. The circuit court found that the sexual demands made on Adrienne Tomkins were based on sex and linked to her employment status. It held that a Title VII violation occurs when a supervisory employee "makes sexual advances or demands towards a subordinate e m p l o y e e , . . . and the employer does not take prompt and appropriate remedial action" after learning of it. 35 When Margaret Miller appealed the district court ruling against her to the Ninth Circuit, it was no longer possible for the Bank of America to argue that Title VII is indifferent to sexual harassment. Instead, the bank tried to disclaim responsibility by pointing to its policy against the kind of conduct Miller complained of, including an internal grievance procedure she did not utilize. The Ninth Circuit analogized the bank's position to that of a taxi company under the tort doctrine of respondeat superior (in which an employer is held liable for an employee's acts). It would be shocking to most of us if a court should hold, for example, that a taxi company is not liable for injuries to a pedestrian caused by the negligence of one of its drivers because the company has a safety training program and strictly forbids negligent driving. Nor would the taxi company be exonerated even if the taxi driver, in the course of his employment, became enraged at a jaywalking pedestrian and intentionally ran him d o w n . ^

Citing Barnes and Tomkins, the Miller court determined that Congress did not intend Title VII to exempt employers from the customary rules of liability. The court held the bank responsible when, as here, a superior with authority to "hire, fire, discipline or promote" was guilty of harassment. 37 In response to the bank's argument that Miller forfeited her right to sue because she bypassed the personnel office, the court disagreed, holding that Congress did not intend to require a Title VII plaintiff to exhaust company grievance procedures before filing suit in federal court.

EEOC Guidelines At the same time that the courts became more willing to hear sexual harassment suits, the E E O C issued guidelines reaffirming the linkage between sexual harassment and employment discrimination. Based in large part on prevailing Title VII case law, the guidelines were formally added as an amendment to the EEOC Guidelines on Discrimination Based on Sex. On April 11, 1980, the E E O C published a set of interim guidelines on sexual harassment, and after the requisite public comment period, the final regulations were drafted and released on November 10, 1980. Going beyond case law, the guidelines provided a comprehensive definition of sexual harass-

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ment, including both quid pro quo and workplace harassment, and expanded the currently held theory of employer liability. The 1980 guidelines stated that (a) Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.-^

The EEOC's position on a company's liability for harassment by supervisory personnel was a broad one. It urged that the company be held strictly (that is, always) liable even if the harassment violated company policy and was unknown to company officials. The guidelines made no distinctions between hostile environment harassment and quid pro quo harassment when supervisors were involved. When other employees (nonsupervisors) were the harassers, the guidelines placed responsibility on the company only if the officials knew or should have known about the harassment and failed to take corrective measures. Hostile Environment

Harassment

The judiciary eventually came to accept quid pro quo harassment suits under Title VII because it was apparent that they had a tangible effect on an employee's terms and conditions of employment. But employees who complained about demeaning and sexually degrading comments were less likely to prevail because the courts believed there were no adverse job consequences in such cases. In Sandra Bundy's case, there were numerous examples of sexually charged statements directed at her, including the one by a high-level supervisor who, when she complained to him of his subordinates' actions, told her that "any man in his right mind would want to rape you." 3 9 When she filed suit against her employer, the District of Columbia Department of Corrections, for sexual harassment, the district court held that she did not have a valid Title VII claim because the law did not forbid the conduct she had been experiencing. The judge dismissed her complaint, saying that she was not denied employment benefits because there were no job-related consequences to her refusal of her superiors' sexual advances. Instead, he found that "the making of improper sexual advances to female employees [was] standard operating procedure, a fact of life, a normal condition of employment in the office." 4 0 The court denied her relief because it viewed the sexual attention

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t o w a r d w o m e n e m p l o y e e s as o n l y sport f o r the s u p e r v i s o r s and a " g a m e " p l a y e d w i t h o u t retaliation against a n y o n e w h o r e f u s e d to play. O n a p p e a l , the circuit court r e a c t e d d i f f e r e n t l y , r e c o g n i z i n g that B u n d y w a s a v i c t i m o f sex d i s c r i m i n a t i o n w i t h i n the b o u n d s o f T i t l e V I I . T h e court cited earlier c a s e s o f Title V I I v i o l a t i o n s in w h i c h e m p l o y e r s w e r e either directly

or indirectly

responsible

for discriminatory

working

conditions,

w h e t h e r or not e m p l o y e e s s u f f e r e d any t a n g i b l e j o b e f f e c t s b e c a u s e o f the discrimination. R u l i n g o t h e r w i s e , said the court, w o u l d s u b j e c t a w o m a n to a "cruel trilemma" [in which] she can endure the harassment. [Or] she can attempt to oppose it, with little hope of success, either legal or practical, but with every prospect of making the job even less tolerable for her. Or she can leave her job, with little hope of legal relief and the likely prospect of another job where she will face harassment anew.^'

The Vinson Case T h e s e x u a l harassment c a s e that e v e n t u a l l y r e a c h e d the S u p r e m e C o u r t b e g a n a f e w y e a r s after Bundy w a s d e c i d e d , w h e n M e c h e l l e V i n s o n f i l e d suit against her supervisor, S i d n e y T a y l o r , and her e m p l o y e r , the C a p i t a l C i t y F e d e r a l S a v ings and L o a n A s s o c i a t i o n . V i n s o n had b e e n hired initially as a teller-trainee and w a s s u b s e q u e n t l y p r o m o t e d to teller, head teller, and then assistant branch m a n a g e r . A f t e r w o r k i n g at the b r a n c h f o r f o u r y e a r s , she took an indefinite sick l e a v e and w a s fired for e x c e s s i v e time on l e a v e . A t a trial in district court that lasted e l e v e n d a y s , V i n s o n testified that T a y l o r p r o p o s i t i o n e d her, and after initially r e f u s i n g h i m , she

ultimately

capitulated b e c a u s e she w a s afraid o f l o s i n g her j o b . S h e c l a i m e d that she w a s f o r c e d to submit to h i m during the d a y as w e l l as after w o r k , that he t o u c h e d her in front o f other e m p l o y e e s , that he f o l l o w e d her into the r e s t r o o m , w h e r e he e x p o s e d h i m s e l f to her, and that he assaulted and raped her. S h e testified that she had s e x u a l intercourse with h i m f o r t y or f i f t y t i m e s during the threey e a r period in w h i c h the h a r a s s m e n t t o o k p l a c e . S h e w a s a f r a i d to report h i m , she said. T a y l o r repudiated her story, and the bank d e n i e d responsibility, a r g u i n g that e v e n if he c o m m i t t e d these acts, h e d i d so w i t h o u t its k n o w l e d g e or authorization. F o l l o w i n g the trial, the district court j u d g e ruled that V i n s o n had f a i l e d to establish a Title V I I c l a i m o f s e x d i s c r i m i n a t i o n . E v e n t h o u g h this ruling d i s p o s e d o f the c a s e , the l o w e r court n e v e r t h e l e s s a s s e s s e d the b a n k ' s liability. B e c a u s e it had a p o l i c y against d i s c r i m i n a t i o n and b e c a u s e V i n s o n had n e v e r c o m p l a i n e d about T a y l o r , the district court j u d g e c o n c l u d e d that e v e n if V i n s o n ' s c h a r g e s w e r e true, the b a n k w a s not r e s p o n s i b l e . 4 2 T h e District of C o l u m b i a C i r c u i t C o u r t r e v e r s e d on a p p e a l , ruling that v i c t i m s o f s e x u a l harassment h a v e t w o alternative legal theories a v a i l a b l e to

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them. 4 3 Citing Barnes, the court stated that it was now settled that quid pro quo harassment was illegal under Title VII. It added that Bundy had created a second option for a sexual harassment suit in situations in which one employee subjects another to pervasive harassment in the workplace and creates a hostile or offensive environment. Referring to the EEOC guidelines, the court held that Title VII applied to both types of harassment and remanded the case to the district court for a ruling on whether Taylor's actions created a hostile work environment. In remanding, the circuit court also instructed the lower court on several points of law. The district court had held that even if Vinson and Taylor had a sexual relationship, it was voluntary and irrelevant to her employment status, basing its judgment in part on evidence presented about Vinson's dress and sexual fantasies. The appellate court rejected the view that Vinson's "voluntary" acquiescence to Taylor's sexual demands defeated her claim. Quoting the EEOC definition of sexual harassment as "unwelcome sexual advances . . . [that have] the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment," the appellate court stressed that her "voluntariness" was immaterial. 44 Because victims do not forfeit their rights when they are forced to capitulate to sexual demands to keep their jobs, evidence of her clothing and sexual fantasies was irrelevant. The court also ruled that Vinson could introduce evidence to show that Taylor had sexually harassed other employees to bolster her claim that there was a sex-based hostile environment in the workplace. Finally, and perhaps most important, the appellate court rejected the lower court view of the employer's responsibility. The bank's grievance procedure required an employee to file a complaint with the supervisor. In this case, with Taylor as the supervisor, Vinson could not comply with the rules. She contended that her employer had notice of Taylor's harassment by other means, but the lower court disagreed and refused to hold the bank liable, reasoning that even if Taylor were guilty of sexual harassment, the employer was unaware of it. Although the issue of employer liability had not been directly litigated in Barnes and Bundy, in both cases, the employers had been held accountable for the acts of their supervisory personnel. The Vinson court pointed out that Title VII forbids discrimination by employers and their agents and held that as the bank's "agent," Taylor's violation of Title VII was attributable to his employer, regardless of its knowledge of his behavior. Justifying its decision to assess far-reaching employer liability for the acts of its employees, the circuit court pointed to the legislative debate on Title VII. Although there was no direct evidence that Congress intended to impose such liability on the employer, the court considered it significant that Congress had at least discussed the issue and had not ruled it out. 45

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Finding the EEOC guidelines "persuasive," the circuit court accepted the broad interpretation of employer liability. Under the guidelines, an employer is accountable for sexual harassment committed by its supervisory personnel, "regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence." Moreover, the court added, Title VII case law generally considers supervisory personnel as agents of their employers and holds employers accountable for their acts. The court broadly defined an agent not only as a supervisory employee but as any employee with authority to hire and fire. An employee with power over a subordinate can threaten and coerce and thereby harass. 46 Although Taylor did not have the authority to hire or fire, he did have the power to recommend salary and promotion. By assigning broad liability to the employer, the court wanted to create a disincentive for the employer to look the other way and escape responsibility simply by disclaiming knowledge of the harassment. "Much of the promise of Title VII will become empty," it declared, "if victims of unlawful discrimination cannot secure redress from the only source capable of providing it." 47 Vinson's employer, now known as the Meritor Savings Bank, appealed to the Supreme Court. In 1986, the Court unanimously affirmed the circuit court's ruling to send the case back to the district court for trial on Vinson's complaint of hostile environment harassment. The Supreme Court, however, rejected the circuit court's expansive interpretation of the employer's liability as well as its ruling that evidence of the employee's provocation was inadmissible. Despite these reservations, the high court affirmed the circuit court's holding that a hostile work environment created by sexual harassment violates Title VII, even in the absence of demands for sexual favors or loss of tangible job benefits. The bank maintained that the legislative history and settled case law showed that Title VII protection was limited to sexual discrimination that erects "tangible, economic barriers." 48 Not true, Rehnquist said. The injury caused by the discrimination need not be economic. Title VII was intended to reach an entire array of employment disparity between the sexes. He also pointed out that the EEOC guidelines clearly state that Title VII extends to complaints of a hostile environment. Cautioning that not all incidents of offensive or annoying behavior in the workplace would amount to harassment, he agreed that the conduct described by Vinson was sufficiently "severe or pervasive" to constitute harassment. On these grounds, the Court affirmed the circuit court's decision to remand. Rehnquist, however, also cited errors that the appellate court had made in interpreting sexual harassment law. It was irrelevant whether Vinson voluntarily participated in the sexual relationship. The key question, he said, was whether the sexual advances were "unwelcome." And although the circuit court had flatly stated that Vinson's dress or speech "had no place in this liti-

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gation," the Supreme Court found these were relevant in determining whether the sex was unwelcome. The Court took a middle ground on the issue of the employer's liability for hostile environment harassment. Refusing to impose strict liability in workplace harassment cases, that is, to make the employer liable in all circumstances, it also held that a company was not relieved of responsibility merely by claiming that it lacked notice of a supervisor's actions. Nor was it absolved by simply pointing to a company policy against discrimination or proof that the victim did not avail herself of a grievance procedure. The Court was unwilling to commit to a clear statement on employers' liability in part because of the EEOC's apparent shift in direction. Notwithstanding the 1980 guidelines that created strict employer liability whenever supervisory personnel were involved, the EEOC now argued in a brief to the Court that although a company may be strictly liable for the acts of its agents in a quid pro quo case, strict liability is not suitable for a hostile environment suit. In such a case, the EEOC now urged, employer liability should rest on two factors: first, whether the employer had an express policy against harassment and a grievance procedure to resolve complaints, and second, whether the employer knew of the harassment and failed to take action to remedy it. The Supreme Court adopted a position midway between the circuit court's position and the EEOC's revised and more conservative posture. It refused to impose automatic liability on the employer for a supervisor's sexual harassment of an employer, agreeing with the EEOC's more recent view that employers must have notice in order to be held liable in a hostile environment case. But because Congress intended to hold employers accountable for at least some of the acts of their employees, the Court held that mere "absence of notice to an employer does not necessarily insulate that employer from liability." 49 Advocating a case-by-case approach, the Court ruled that trial courts must examine the facts of each case to determine whether an employer is liable for its supervisor's acts. In Vinson, the Court criticized the bank's grievance policy because it was a general prohibition against discrimination and did not specifically forbid harassment. Moreover, it required the employee to direct complaints to the supervisor, a questionable procedure when, as here, the supervisor was the harasser. In sum, after more than a decade of litigation, the courts finally acknowledged that sexual harassment was an unfair condition of work—based on sex—and was within the bounds of Title VII. However, although Vinson advanced sexual equality in the workplace, it had two major shortcomings. First, it permitted evidence of the employee's dress, manner, and speech to be introduced at trial, allowing the employer to argue that the woman had invited the sexual attention. Second, it signaled a retreat from the original—and more stringent—EEOC position on strict employer liability for workplace harassment. Objecting to this part of the opinion, Marshall wrote separately to

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express disapproval of the Court's position on employer liability in environmental harassment cases. He pointed out that under Title VII law, expressed in the 1980 EEOC guidelines, the employer is always liable for harassment by supervisory employees—in either quid pro quo or workplace harassment— and lack of notice to the employer is no defense. He saw no "justification for a special rule, to be applied only in 'hostile environment' cases, that sexual harassment does not create employer liability until the employee suffering the discrimination notifies other supervisors." 50

The Lower Courts Advance Sexual Harassment Law In January 1991, two lower court decisions, Robinson v. Jacksonville Shipyards,51 a Florida district court case, and Ellison v. Brady,52 a Ninth Circuit ruling, alleviated the evidentiary requirements for sexual harassment plaintiffs by broadening the scope of the employer's liability and establishing a new standard of proof for determining whether the harassment occurred. Jacksonville Shipyards, where Lois Robinson worked, employed only a handful of skilled women workers and was characterized by a sexually explicit atmosphere dominated by men. Robinson complained of a hostile work environment, citing drawings and photographs of nude women on the walls and in locker rooms. In particular, she described a picture circulating among her coworkers of a nude woman with long blond hair and a whip; she felt especially threatened by it, she said, because she has long blond hair and works with a welding tool known as a whip. She and her coworkers also testified to numerous lewd remarks and vulgarities written on walls in their work areas. Repeated protests by the women were essentially ignored; in one instance, the response was to move an offensive calendar from one wall to another. The district court cited five elements of a sexual harassment claim based on a hostile environment: the plaintiff belongs to a protected group, the plaintiff was subjected to unwelcome verbal or physical sexual behavior, the harassment was based on sex, the harassment affected a term or condition of employment, 53 and the employer knew or should have known of the harassment and failed to take prompt remedial action. 54 The key element was the fourth one. The court explained that this factor must be satisfied by both a subjective and objective test: first, the plaintiff had to show that she was affected by the harassment; second, the court had to determine whether a reasonable person of her sex, that is, a reasonable woman, would believe that she had been subjected to an abusive working environment. Together, these two tests allowed a victim to show that she felt harassed and that it affected her job performance as well; they also permitted the court to consider the harassment from its own perspective rather than simply the perspective of a possibly hypersensitive victim.

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The court had little difficulty concluding that Robinson met both parts of the test. Turning to the issue of the employer's liability, the court explained that an employer can be directly or indirectly liable for the harassment. Direct liability attaches when an agent of the employer, that is, a supervisor, engages in the harassing behavior within the scope of his or her employment. Indirect liability is incurred when a hostile environment is created by coworkers or agents of the employer outside the scope of their duties and the employer knew about the harassment and made no attempt to correct it. Again, the court found in Robinson's favor, agreeing that she had proven both kinds of liability on the part of the employer. Because of the history of this employer's apparent lack of concern for the conduct of its employees, the court believed that the plaintiff was entitled to a broad decree, ordering the employer to stop the harassing conduct, adopt an employee training and education program, and establish a reporting procedure for future complaints. Robinson presaged a new approach to pornography in the workplace and its effect on women employees; it also demonstrated a heightened sensitivity for the predicament of women employed in a workplace in which men predominate. By rejecting the company's defenses about its attempts to deal with the women's complaints and ordering it to devise a sexual harassment policy, the court paved the way for greater judicial involvement in remedying the problems of workplace sexual harassment. 55 Shortly thereafter, the Ninth Circuit adopted a somewhat different formulation of the Robinson court's analysis. 56 Kerry Ellison worked in the San Mateo, California, office of the Internal Revenue Service. Her coworker, Sterling Gray, began to lavish her with unwelcome attention, including asking her out and writing her increasingly intrusive and disturbing notes and letters expressing his attraction to her. When she filed a grievance against him, he was transferred to another office. His subsequent grievance, asking to be allowed to return to the San Mateo office, was also granted. Learning of his imminent return, Ellison filed a complaint, which was rejected by the Treasury Department and the EEOC; she eventually filed a Title VII suit against the government in federal court. The district court ruled against her, labeling his conduct "isolated and genuinely trivial." 57 On appeal, the Ninth Circuit announced that the major point of contention in the case was whether his behavior was sufficiently "severe or pervasive" to alter the condition of her employment by creating an abusive working environment. The circuit court emphasized that "in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim." 58 Women have a different view of offensive or abusive conduct, and judging the harassment by a "reasonable person" standard, the customary approach, would only perpetuate sexual harassment if it were based on common practices in the workplace. The traditional sex-neutral reasonable person approach, the court explained, "tends to be male-biased and tends to system-

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atically ignore the experiences of women." 59 Under the Ninth Circuit approach, the victim, assuming she is a woman, would be required to show that a reasonable woman would consider the behavior sufficiently "severe or pervasive." This test allows her to prove her case more easily because she does not have to offer proof of unwelcomeness, nor does she have to show that the person guilty of the harassment intended to discriminate against her. 60 Under this approach, compliments or ostensibly well-meaning remarks may be considered sexual harassment if the victim, that is, a reasonable woman, believes they alter the terms or conditions of her employment.

Sexual Harassment and Judicial Politics In the same year in which Robinson and Ellison were decided, sexual harassment was brought to the nation's attention in a dramatic fashion. In October 1991, Professor Anita Hill of the University of Oklahoma Law School testified before the all-man Senate Judiciary Committee on national television that she had been sexually harassed by Supreme Court nominee Clarence Thomas (now Justice Thomas) when she worked for him at the Equal Employment Opportunity Commission in the early 1980s.61 Hearings on the Thomas confirmation, which began in early September, were initially characterized by opposition to him from representatives of women's and civil rights groups because of his position on women's and minority rights issues such as abortion and affirmative action; they also disputed his qualifications to fill the post and were skeptical of President George Bush's statement that Thomas was "the best person for this position." 62 Their disapproval centered around the fact that he would move the Court further to the right by taking positions opposite to those of the retiring Marshall, the first African American Supreme Court justice. Marshall, who had successfully argued the school desegregation cases before the high court, was a hero of the civil rights and women's rights movements. In a vote on September 27, the Judiciary Committee split 7 to 7 on whether to send Thomas's name to the full Senate with a favorable recommendation. All the committee Democrats but one voted no, citing his refusal to provide direct answers to their questions. The committee then voted 13 to 1 to send Thomas's name to the Senate floor without a recommendation. 63 Then, on October 5, Anita Hill's charges, which had been known to the committee before the vote, were made public, and the second round of Thomas hearings began shortly after. 64 During this round of hearings on the Thomas nomination, committee members found themselves in the position of having to defend themselves against charges that they had not viewed Hill's allegations of sexual harassment as sufficiently grave to delay the committee vote or bring them to the attention of the full Senate before voting. A few days

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later, on October 8, seven Democratic women members of the House of Representatives marched across the Capitol and attempted to interrupt the Senate Democratic Caucus luncheon to protest the fast pace and likely outcome of the nomination; they were not allowed to enter. The Senate, scheduled to vote on his confirmation on October 11, delayed the vote, in part to underscore to the public the seriousness with which they perceived Hill's allegations. The televised hearings to investigate her complaint began on October 11 and continued throughout the weekend. 65 Anxious to avoid accusations of indifference to sexual harassment, as senators stood to declare their support for Thomas, they also expressed their concern about the seriousness of the problem for working women. At the same time, their treatment of Anita Hill illustrated some of the dilemmas that women confront when complaining of sexual harassment at work. Senators— mostly Republican—either obliquely or openly accused her of lying about her experiences with Thomas and attacked her motivation in coming forward; Senator Arlen Specter, Republican from Pennsylvania, charged her with committing perjury during her testimony. And while they were expressing support for the unnamed victims of sexual harassment, senators refused to give credence to Hill's testimony in the face of Thomas's impassioned denials, in which he proclaimed himself a victim of racism and characterized the investigation "as a high-tech lynching." 66 Although Thomas was narrowly confirmed by the Senate in a 52 to 48 vote on October 16 and soon took his seat on the high court, the controversy created a greater awareness of the problems of harassment that many women face on their jobs. 6 7 At the time of the hearings, just before the Senate vote to confirm Thomas, a New York Times/CBS News Poll reported that four out of ten women said they had been subjected to unwelcome physical advances or verbal harassment from men supervisors or others with the ability to affect their working environment, but most said they had not reported the incident at the time. Additionally, slightly more than half the men surveyed admitted to engaging in behavior that could have been construed as harassing. 68 One outcome of the hearings was increased national attention to the problem of sexual harassment and the widespread belief that had more women been in the Senate—there were only two at the time 69 —Anita Hill's charges would have been taken more seriously. 70 In partial reaction to the furor over the Senate's reaction to Hill, women candidates gained unprecedented numbers of seats in Congress in the 1992 election, labeled as the "Year of the Woman." 71 When the dust settled and the results of the November 1992 election were tabulated, there were record numbers of women in the House and Senate: four new women joined the two in the Senate, including the first African American woman senator, Carol Moseley Braun, Democrat from Illinois, and a pair of Democrats from California, Barbara Boxer and Dianne Feinstein. 72 Determined not to show an all-male Judiciary Committee to the

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nation again, t w o w o m e n , Moseley Braun and Feinstein, were appointed to the committee that had interrogated Anita Hill and were perceived as u n s y m pathetic to the problem of sexual harassment in the workplace.

Psychological Harm T h e S u p r e m e Court again delineated the parameters of sexual harassment law in its 1993 decision in Harris v. Forklift Systems, Inc,,73 a case arising out of the Sixth Circuit. Here, the Court considered whether victims w h o could not claim they were psychologically harmed or prevented f r o m doing their j o b could sue for sexual harassment. Teresa Harris was the rental m a n a g e r at Forklift Systems, a c o m p a n y selling, leasing, and repairing forklift machines, f r o m 1985 to 1997. Of the six managers in the firm, two were w o m e n , the other a daughter of the president. During her years at Forklift Systems, her boss, the c o m p a n y president, referred to her in derogatory ways, calling her " a d u m b ass w o m a n , " and saying that the c o m p a n y "need[ed] a m a n as a rental m a n a g e r " and " y o u ' r e a w o m a n , what d o you know." O n c e he said to her, in front of others, "let's g o to the Holiday Inn to negotiate your raise." H e also asked her and other w o m e n employees to retrieve coins f r o m his front pants pocket. W h e n she complained about his conduct, he apologized and said he was only joking and would stop his behavior. Based on his reassurances, she remained on the job. His promise was soon forgotten, and he addressed m o r e offensive remarks to her, saying to her, again in front of other employees, " W h a t did you do, promise the guy s o m e sex Saturday night?" She quit and filed a federal lawsuit. 7 4 At trial, he said he had only been j o k i n g and that everybody had k n o w n it. Agreeing that his c o m m e n t s were vulgar and offensive, the lower courts held they were not so serious as to interfere with her work p e r f o r m a n c e or cause her psychological harm. T h e S u p r e m e Court accepted the case to resolve a conflict among the circuits about whether an e m p l o y e e must prove she suffered psychological d a m a g e in a hostile environment case. Speaking for a unanimous Court, O ' C o n n o r said that w o m e n were not required to demonstrate that the sexual harassment they complained of was so severe it led to psychological injury. T h e important issue, she explained, was whether the work environment was hostile or abusive and affected the employee's j o b performance, not whether the w o m a n suffered psychological harm f r o m it. In adopting this position, the Court took a middle ground between courts that found Title VII violations when the behavior was "merely offensive" and those that demanded, as the Sixth Circuit did, proof of tangible psychological harm. Quoting Vinson, O ' C o n n o r reiterated that a Title VII violation occurs only when the sexual harassment is severe or pervasive enough to create a hostile workplace. T h e conduct must be viewed objectively, using a

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"reasonable person" standard, as well as subjectively, based on the victim's perspective of it. " B u t , " she explained, "Title VII comes into play before the harassing conduct leads to a nervous breakdown." 7 5 Victims are entitled to relief if the behavior affects the way in which they do their job. If race, national origin, or sex play a role in creating an abusive or hostile work environment, she added, Title VII's vision of "workplace equality" is threatened. T h e Court indicated that the following factors must be considered in determining whether a workplace is hostile: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an e m p l o y e e ' s work p e r f o r m a n c e . " 7 6 Psychological harm is relevant to the inquiry, O ' C o n n o r noted, but it is only one of several factors, with no single one necessary to prove the claim of harassment. The case was remanded to allow the appellate court to consider Harris's suit. Although Harris was clearly a victory for w o m e n ' s rights, the C o u r t ' s use of a "reasonable p e r s o n " test suggested that it was distancing itself f r o m the Ninth Circuit "reasonable w o m a n " standard. 7 7 However, because the Court had not explicitly rejected the "reasonable w o m a n " standard, after Harris the lower courts were split about the correct standard to use. In 1995, the Ninth Circuit carved out a compromise, adopting a "reasonable person with the same fundamental characteristics" as the victim as the standard. 7 8

M o r e Sexual Harassment and Politics The nation again was treated to a seminar on sexual harassment when Paula Jones, a twenty-four-year-old state employee, accused then Arkansas governor Bill Clinton of lewd conduct in a Little Rock hotel room on M a y 8, 1991. In May 1994, after negotiations over a settlement broke down, she filed suit against him under federal and state law, alleging sexual harassment, emotional distress and defamation, and seeking $700,000 in d a m a g e s . 7 9 Clinton's first defensive strategy was to claim presidential immunity, arguing that a sitting president cannot be sued while in office. In D e c e m b e r 1994, District Court j u d g e Susan Webber Wright, a Clinton appointee in Little Rock, agreed, ruling that the trial must be deferred while the president was in o f f i c e . 8 0 A year later, the Eighth Circuit reversed Wright's decision, explaining that the president is not entitled to special treatment and that n o precedent existed to excuse a president f r o m trial for unofficial conduct during the duration of his presidency. 8 1 The case went to the S u p r e m e Court to decide the extent of a president's immunity. There was speculation that the Court would dismiss the suit, in part because of its position in Nixon v. Fitzgerald,82 a 1982 decision, in which it held that a "president is absolutely i m m u n e f r o m civil d a m a g e s liability for his official acts." 8 3

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However, in Clinton v. Jones?4 decided on May 27, 1997, the high court unanimously held that there is no special rule of immunity for a sitting president and rejected the president's claim that the Constitution compelled postponement of the trial until after he left office. The Supreme Court did not explain to what extent a president's duties allow him to evade the requirements of a trial schedule—to appear for depositions and the like—but it ruled that the lower court judge had not given sufficient weight to the importance of bringing the plaintiff's case to trial in a timely manner. Later events proved that the Court's greatest error of judgment was its rejection of the president's argument that the decision would result in undue interference with the duties and office of the presidency and "generate a large volume of politically motivated harassing and frivolous litigation." 85 When the case finally came to trial a year later, in May 1998, ruling on Clinton's motion to dismiss, Wright held that even if Clinton did what Jones alleged, she stated no valid claim against him for either quid pro quo harassment or hostile environment harassment. She treated the nation to a seminar on sexual harassment law, stating: "[T]he conduct as alleged by the plaintiff describes a mere sexual proposition or encounter, albeit an odious one, that was relatively brief in duration, did not involve any coercion or threats of reprisals and was abandoned as soon as plaintiff made clear that the advance was unwelcome." 8 6 Wright rejected Jones's evidence of adverse job consequences after the incident took place, including the fact that she did not get flowers on Secretary's Day. The judge wrote that although "it is not clear why plaintiff failed to receive flowers on Secretary's Day in 1992, such an omission does not rise to a federal cause of action in the absence of evidence of some more tangible change in duties or working conditions." 8 7 Wright found no evidence to support Jones's claim of emotional distress and held that she had not suffered any negative job consequences; indeed, Jones had never complained to her supervisors, had not sought professional help, and had even received merit raises after the incident. Although the case against Clinton was dismissed, the victory was ephemeral for the president. The Jones lawsuit led to the revelations about the Monica Lewinsky scandal and brought about his impeachment. Clinton was ultimately acquitted by the Senate, but his presidency was permanently marred by the long series of events stemming from Jones's lawsuit.

Same-Sex Harassment The Court handed down three sexual harassment rulings in 1998, once attempting to clarify some remaining uncertainties in the law. The Oncale v. Sundowner Offshore Services,88 raised the question whether VII applies to sexual harassment between persons of the same sex. The

more first, Title other

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two cases, Burlington Industries v. Ellerth89 and Faragher v. City of Boca Raton,90 involved continuing questions of employer liability left unresolved in earlier cases. Joseph Oncale, a twenty-one-year-old slightly built man, worked for a Louisiana offshore oil drilling company. He claimed he had been abused by other men employees, including two who had supervisory authority over him; they insulted him and physically assaulted him, and one even threatened to rape him. The accused men were all heterosexual. Oncale claimed that one of his tormentors said to him, "You know, you've got a cute little ass; I'm going to get you." The company defended the acts of its employees, saying it was simple hazing, a reflection of the men-only environment of the job. 9 1 Despite his complaints to the company, nothing was done, and he quit, suing for sexual harassment. The lower federal courts dismissed his case, ruling that Title VII does not apply to claims of same-sex harassment; they noted that although other circuits had allowed such suits, they were not common. The high court took the case to decide whether Title VII's ban on discrimination "because of sex" should be interpreted to apply to situations in which the sexual harassment is caused by individuals of the same sex as the victim. In a brief unanimous opinion, delivered by Scalia, the Court made it clear that the language in Title VII, "because of sex," means that men are not automatically disqualified from the protection of the law, nor does it disqualify victims who are the same sex as the harassers. Scalia also noted that illegal conduct does not have to reflect sexual desire but can stem from hostility; what mattered most was whether the conduct was so severe that it could be classified as sex discrimination. The behavior in question, he said, must be sufficiently offensive that it affects the terms and conditions of employment. He noted that the Court had recently held in Harris that the conduct must be evaluated "from the perspective of a reasonable person in the plaintiff's position, 'considering all the circumstances.'" 92 Consequently, he continued, it was important to apply common sense and social norms to determine whether the law was being violated. Because the courts below had not ruled on the merits of Oncale's suit, the case was remanded to the lower court to allow it to determine whether he was discriminated against on the basis of sex. 93 Some months later, in June 1998 on the last day of the term, the Supreme Court handed down a pair of 7 to 2 opinions (Thomas and Scalia dissenting in both cases), again delineating the conditions under which sexual harassment claims could be filed and, elaborating on Vinson, further defining the limits of the employers' liability in sexual harassment cases. The Court was also forced to grapple with the intersection of the two kinds of sexual harassment: hostile environment and quid pro quo. Ellerth revolved around a complaint by Kimberly Ellerth, a merchandising assistant in Burlington Industry's mattress fabric division in Chicago. She worked there for a little over a year, beginning in March 1993. Her suit

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claimed that a supervisor, a company vice president operating out of New York, made sexual overtures to her, including offensive comments about parts of her body, and touched her inappropriately. 94 According to her, he said such things as, "You know, Kim, I could make your life very hard or very easy at Burlington" and "Are you wearing your shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier?" 95 Unlike most other sexual harassment cases, though, she never submitted to him, and his veiled threats were never carried out; indeed, she received a promotion. She eventually quit and sued the company for sexual harassment, despite the fact that there was no tangible effect on her job. Although she knew of Burlington's sexual harassment policy, she never complained about his behavior to anyone in a higher position of authority. The lower court dismissed her complaint, ruling that she needed to show adverse job consequences in a quid pro quo claim. The Seventh Circuit disagreed and, with eight separate opinions among the twelve judges, reinstated her suit. At the Supreme Court, Kennedy adapted principles of employer liability used in a quid pro quo case, explaining that the case required the Court to decide whether a company is liable when there is an unfulfilled threat by a supervisor. As in Vinson, the Court assessed the employer's liability for the acts of its supervisors, noting that the lower courts unanimously agree that under agency law, an employer is liable for a discriminatory act by a supervisor that leads to a tangible job consequence such as hiring, firing, or deprivation of a promotion or benefit. Under this approach, the Court said, quid pro quo harassment by a supervisor is always attributable to the employer. However, when there are no tangible job consequences, as in this case, an employer is not automatically liable and can defend itself by showing that it acted reasonably to "prevent or correct promptly any sexually harassing behavior" and that the employee "unreasonably failed to take advantage" of grievance procedures offered by the employer. 96 The Court sent the case back to the lower court to determine whether the company defense fell within these principles. In Faragher, Beth Ann Faragher had worked as a lifeguard for the City of Boca Raton, Florida, for four years to help defray her college expenses. After she left, she sued the city and her two supervisors, both men, claiming they created a hostile work environment by repeatedly touching her and making lewd comments to her. She testified that one of them touched her shoulders and waist and patted her thigh and buttocks. The other one tackled her on the beach and talked about having sex with her. She never complained to city officials about their behavior during her employment, though she did tell another lifeguard supervisor, who advised her to ignore the two, claiming the city was unconcerned about such behavior. The city had adopted a sexual harassment policy, but it was not widely disseminated at that time.

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Souter's decision for the majority explained that the issue here was the extent of the employer's liability for a hostile work environment caused by a supervisor who ostensibly acted outside the scope of his employment. Ruling that the notion of "scope of employment" is irrelevant to ascertaining the employer's liability, Souter said that under Title VII, the employer is liable for the acts of supervisors who abuse their authority by altering the terms and conditions of employees through sexual harassment. Employers may only escape liability by showing they have a reasonable sexual harassment policy and that the employee unreasonably failed to avail herself of it. In applying these principles, the Court was persuaded that even though the city had a formal sexual harassment policy, it had not done enough to make the policy known to its employees, nor had city officials made any effort to make themselves aware of the conduct of the supervisors. The problem was in part that the sexual harassment policy specified that complaints must be reported to the employee's supervisor and the city had neglected to inform their employees that they might bypass their supervisors when necessary. Thus, the Court concluded, the city had not exercised reasonable care in preventing the supervisors' harassing conduct. As a result of the two decisions, the Court finally established some clearcut legal rules about employer responsibility for the harassing conduct of their supervisory employees: when the harassment results in a tangible job loss, the employer is absolutely liable; when there is no tangible job action, either in quid pro quo or hostile environment harassment cases, the employer can defend itself by showing it had an effective policy to deal with harassment complaints and that the employee was unreasonable in not availing herself of it. Both employers' groups and women's rights advocates applauded the Supreme Court's decisions, saying that the Court had gone a long way toward clarifying a confusing area of law and underscoring the fact that employers would not easily evade responsibility when their supervisory employees engage in sexual harassment. A woman's rights attorney praised the decisions, calling them a "win-win for employers and for all the women of America." Her view was seconded by a lawyer for the U.S. Chamber of Commerce, who said "the court responded to our cries in the wilderness for clear, bright-line legal standards so employers will know what to do." 9 7

Conclusion Sexual harassment in the workplace stems from a power imbalance between women and men, or more precisely, between men employers and supervisors and women employees. Although women workers, the main targets, have likely been subjected to sexual harassment since they entered the workforce, they began to file federal lawsuits after passage of Title VII, arguing that sex-

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ual harassment constituted discrimination on the basis of sex. The courts initially refused to accept their claims, ruling that the conduct they complained of was not sex discrimination because it was not based on sex and had no consequences for women's employment. Rather, they held, it was merely flirtatious behavior, stemming from natural sexual attraction or even the woman's manner of dress or physical characteristics. Additionally, the courts refused to hold employers accountable for the actions of their workers, even those in supervisory positions. Eventually, the courts "got it" and began to take more seriously women's complaints that the harassing behavior was based on sex and had adverse job consequences. The courts first accepted the harassment known as quid pro quo, in which the employer (or supervisor) demands sexual favors for positive job results, but they soon began to acknowledge that a hostile work environment characterized by sexually explicit talk or pictures—with no overt demands for sexual acts—constituted harassment as well. By the late 1980s, the Supreme Court sanctioned lawsuits against employers for both types of harassment. However, the standards of proof were difficult to meet: the behavior had to be "severe" and "pervasive," and it was often difficult for women to prove their cases. Moreover, even when they succeeded in persuading the courts they were victims of sexual harassment, judges were often reluctant to hold employers liable when coworkers or supervisors were responsible for the offending acts. As women continued to bring suits for sexual harassment, the courts gradually became more open to their arguments, and some courts applied a "reasonable woman" standard, in which they interpreted the law through the eyes of the victim, who perceived joking, constant teasing, or "playful" touches as harassment rather than innocent behavior. In the early 1990s, the nation's attention was drawn to the battle over the nomination of Clarence Thomas to the high court, stemming from charges by Anita Hill. Then, at the end of the decade, sexual harassment was once again brought to the nation's awareness when Paula Jones filed suit against Bill Clinton. In addition to the political ramifications that resulted from these events, the issue of sexual harassment was placed on the national political agenda. Meanwhile, in a series of rulings throughout the 1990s—three in 1998— the Supreme Court expanded the protection offered to victims of sexual harassment in several ways. They did not have to prove they suffered psychological damage; they could file suit even when employers failed to carry out threats in quid pro quo harassment. Moreover, the Court clarified and expanded employer liability for the harassment of their employees and ruled that same-sex harassment was within the parameters of Title VII, as long as the victim could prove the behavior was based on sex, a difficult but not impossible task.

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Despite the legal advances, however, sexual harassment in the workplace has not been eradicated. Women continue to file complaints of harassing behavior, and surveys indicate that the behavior has persisted and, in some cases, even increased.

Notes 1. Joan Vermuelen, "Sexual Harassment," in Carol Lefcourt, ed., Women and the Law (New York: Clark Boardman, 1987), p. 7. 2. Ann C. Juliano, "Did She Ask For It? The 'Unwelcome' Requirement in Sexual Harassment Cases," Cornell Law Review 77 (1992): 1558 n. 3. The author cites a report that 10 to 15 percent of men complain of sexual harassment—by supervisors of both sexes. 3. In "The Sweep of Sexual Harassment Cases," Cornell Law Review 86 (2001): 560, Ann Juliano and Stewart J. Schwab present an analysis of all federal district and circuit court opinions reported in legal databases from 1986 to 1996, a total of 666 cases. They found that only 5.4 percent of the plaintiffs were men, with nine additional cases with a man plaintiff, usually a husband, joining his wife in the lawsuit. 4. Catharine MacKinnon, Sexual Harassment of Working Women (New Haven: Yale University Press, 1979), p. 12. 5. Juliano and Schwab, "The Sweep of Sexual Harassment Cases," p. 561. 6. Angela Davis, Women, Race and Class (New York: Random House, 1981), chap. 11. See also Paula Giddings, When and Where I Enter (New York: William Morrow and Company, 1984). 7. Project on the Status and Education of Women, Sexual Harassment: A Hidden Issue (Washington, D.C.: Association of American Colleges, 1978), p. 2. 8. Marvin F. Hill Jr., and Curtiss K. Behrens, "Love in the Office: A Guide for Dealing with Sexual Harassment Under Title VII of the Civil Rights Act of 1964," DePaul Law Review 30 (1981): 581-582 n. 2. A study of state university employees and public sector municipal workers conducted in 1992 and 1993 found that 21 percent of respondents reported personal experiences of harassment and 44 percent knew of coworkers being harassed; Karen E. Lindenberg and Laura A. Reese, "Sexual Harassment Policy: What Do Employees Want," Policy Studies Journal 24 (1996): 391. Lindenberg and Reese found that both sets of surveyed employees were only moderately satisfied with the sexual harassment policies in their workplaces. 9. U.S. Equal Employment Opportunity Commission, Sexual Harassment Charges EEOC and FEP as Combined: FY 1992-FY 2001, www.eeoc.gov/stats/ harass/html; the data were compiled by the Office of Research, Information, and Planning of the EEOC. 10. U.S. Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges, November 1995, pp. 15, 19, 58. 11. MacKinnon, Sexual Harassment of Working Women; MacKinnon uses the phrase "condition of work" to describe the non-quid pro quo harassment. The Supreme Court and the EEOC use the phrase "hostile environment" for non-quid pro quo harassment. See P. J. Murray, "Employer: Beware of 'Hostile Environment' Sexual Harassment," Duquesne Law Review 26 (1987): 461-484. 12. Kerri Weisel, "Title VII: Legal Protection Against Sexual Harassment," Washington Law Review 53 (1977):129-132.

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13. 454 F.2d 234 (5th Cir. 1971). The plaintiff, a Hispanic employee, complained that her employer created a discriminatory work environment. Other harassment cases were Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506 (8th Cir. 1977); Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C. Cir. 1976); Compston v. Borden, Inc., 424 F. Supp. 157 (S.D. Ohio 1976); Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87 (8th Cir. 1977). These cases are cited in Meritor Savings Bank v. Vinson, All U.S. 57 (1986). 14. See MacKinnon, Sexual Harassment of Working Women, chap. 2; Vermuelen, "Sexual Harassment." 15. Juliano, "Did She Ask for It?" p. 1567 n. 61. 16. MacKinnnon, Sexual Harassment of Working Women, chap. 4. 17. Examples of cases in which employers were held accountable for racial harassment are: Calcote v. Texas Educational Foundation, 578 F.2d 95 (5th Cir. 1978); Flowers v. Crouch-Walker, 552 F.2d 1277 (7th Cir. 1977); Anderson v. Methodist Evangelical Hospital, 464 F.2d 723 (6th Cir. 1972). A case in which the employer was held responsible for religious harassment is Young v. Southwestern Savings and Loan, 509 F.2d 140 (5th Cir. 1975). 18. Vinson, 411 U.S. at 57. 19. 13 Fair Empi. Prac. Cas. 123 (D.D.C. 1974). 20. 390 F. Supp. 161 (D. Ariz. 1975). 21. Come, 390 F. Supp. at 163. 22. 422 F. Supp. 553 (D.N.J. 1976). 23. Tomkins, 422 F. Supp. at 556. 24. 418 F. Supp. 233 (N.D. Cai. 1976). 25. Miller, 418 F. Supp. at 234. 26. Miller, 418 F. Supp. at 236. 27. 413 F. Supp. 654 (D.D.C. 1976). 28. Williams, 413 F. Supp. at 657. This decision was reversed on other grounds in Williams v. Bell, 587 F.2d 1240 (D.C. Cir. 1978). The circuit court ruled that the district court judge erred in deciding the case on the basis of the administrative record and should have remanded the case to the district court for a new trial. On remand, the district court dismissed the supervisor's testimony as incredible and concluded that "submission to the sexual advances of the plaintiff's supervisor was a term and condition of employment in violation of Title VII." Williams v. Civiletti, 487 F. Supp. 1387, 1389 (D.D.C. 1980). 29. 561 F.2d 983 (D.C. Cir. 1977). 30. Shortly before Barnes, in Garber v. Saxon Business Products, 552 F.2d 1032 (4th Cir. 1977), the Fourth Circuit held that Title VII was violated when women employees were required to submit to their superiors' sexual advances. 31. Barnes, 561 F.2d at 989-990. 32. Barnes, 561 F.2d at 990. 33. Munford v. James T. Barnes and Company, 441 F. Supp. 459 (E.D. Mich. 1977). 34. Heelan v. Johns-Manville, 451 F. Supp. 1382 (D. Colo. 1978). 35. Tomkins v. Public Service Electric and Gas, 568 F.2d 1044, 1048-1049 (3d Cir. 1977). 36. Miller v. Bank of America, 600 F.2d 211, 213 (9th Cir. 1979). 37. Miller, 600 F.2d at 213. 38. 29 C.F.R. §1604.11(a). See Stewart Oneglia and Susan French Cornelius, "Sexual Harassment in the Workplace: The Equal Employment Opportunity Commission's New Guidelines," Saint Louis University Law Journal 26 (1981): 39-61.

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39. Bundy v. Jackson, 19 Fair Empl. Prac. Cas. 828, 831 (D.D.C. 1979). 40. Bundy, 19 Fair Empl. Prac. Cas. at 831. 41. Bundy v. Jackson, 641 F.2d 934, 946 (D.C. Cir. 1981). The Eleventh Circuit allowed a suit for workplace harassment a year later in Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982) and the Fourth Circuit followed the next year in Katz v. Dole, 709 F.2d 251 (4th Cir. 1983). 42. Vinson v. Taylor, 23 Fair Empl. Prac. Cas. 37 (D.D.C. 1980). 43. Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985). 44. Vinson, 753 F.2d at 146. 45. Employer liability can be premised on several theories: agency law, tort law, or Title VII law. Title VII, as expressed in legislative intent, offers the broadest protection to workers. The doctrine of respondeat superior used by the Miller court arises from tort law. The problem with using tort law is that courts limit the reach of Title VII only to areas where employees can sue in tort. Traditionally, under tort and agency law, employers are exempt from liability when agents act outside the scope of their duty. By equating employers with their agents for purposes of Title VII, Congress indicated an intent to go beyond tort and agency law in assigning employer liability. In Vinson, the Supreme Court seemed to have adopted a position somewhere between agency law and Title VII law. Vermuelen, "Sexual Harassment," pp. 17-18. 46. The appellate court explained that it was deriving these rules from analysis of statutory language and interpretation rather than from common law tort principles of respondeat superior, which exempts employers from liability when the actions of their employers are outside the scope of their employment. Vinson, 753 F.2d at 149-152. 47. Vinson, 753 F.2d at 151. 48. Vinson, All U.S. at 64. 49. Vinson, All U.S. at 72. 50. Vinson, All U.S. at 77 (emphasis in the original). 51. 760 F. Supp. 1486 (M.D. Fla. 1991). 52. 924 F.2d 872 (9th Cir. 1991). 53. The conduct must be sufficiently severe or pervasive to affect the terms of employment. 54. The original five-part formulation for judging sexual harassment complaints based on a hostile environment was articulated in Henson, 682 F.2d at 897. The Henson court cited the rules developed in the racial hostile environment cases and rejected the defendant's argument that the suit should be dismissed because the plaintiff had not alleged job-related consequences. The Henson test is the most commonly used one in all the circuits. Juliano, "Did She Ask for It?" p. 1571. 55. Nell J. Medlin, "Expanding the Law of Sexual Harassment to Include Workplace Pornography: Robinson v. Jacksonville Shipyards, Inc.," Stetson Law Review 21 (1992): 655-680. 56. Juliano, "Did She Ask for It?"; see Naomi R. Cahn, "The Looseness of Legal Language: The Reasonable Woman Standard in Theory and Practice," Cornell Law Review 11 (1992): 1398-1446. Saba Ashraf, in "The Reasonableness of the 'Reasonable Woman' Standard: An Evaluation of Its Use in Hostile Environment Sexual Harassment Claims Under Title VII of the Civil Rights Act," Hofstra Law Review 21 (1992): 483-504, claims the use of this standard will hamper eradicating discrimination in the workplace, the goal of Title VII. 57. Quoted in Ellison, 924 F.2d at 876; the lower court opinion was not published. 58. Ellison, 924 F.2d at 878.

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59. Ellison, 924 F.2d at 879. In 1988, the E E O C had issued a notice stating that sexual harassment complaints should be judged from the perspective of a sex-neutral "reasonable person." Ashraf, "The 'Reasonable Woman' Standard," p. 490. 60. Juliano, "Did She Ask for It?" p. 1572. 61. Thomas became head of the EEOC during the Reagan administration in 1982; in 1990 he was appointed to the twelve-member District of Columbia Circuit Court, where he served until his appointment to the U.S. Supreme Court. Service on this circuit court is often considered a stepping-stone to membership on the high court. 62. Congressional Quarterly, July 6, 1991, p. 1851. 63. Congressional Quarterly, September 28, 1991, p. 2786. 64. Senator Joseph Biden, Democrat from Delaware and chair of the Senate Judiciary Committee, claimed the committee had been bound by promises of confidentiality to Hill and had not simply overlooked the matter of Thomas's harassment. 65. See Jane Mayer and Jill Abramson, Strange Justice: The Selling o f Clarence Thomas (Boston: Houghton Mifflin, 1994), for an analysis of the struggle over the Thomas nomination. 66. Congressional Quarterly, October 12, 1991, p. 2948. 67. Forty-one of forty-three Republicans, including the lone woman Republican Senator, Nancy Landon Kassebaum of Kansas, voted for Thomas; they were joined by eleven Democrats, seven from the South. The southern Democrats were concerned about losing support among African Americans who favored Thomas's appointment. 68. New York Times, October 11, 1991. 69. There were twenty-eight women in the House of Representatives at the time. 70. In the New York Times/CBS News Poll, almost two-thirds of those surveyed of both sexes indicated they believed Hill's charges would have been given more serious consideration with more women in the Senate. New York Times, October 11, 1991. 71. For a variety of reasons, women were considered attractive candidates and were more heavily recruited by the political parties; they were also more likely to win primary elections. See Clyde Wilcox, "Why Was 1992 the 'Year of the Woman'? Explaining Women's Gains in 1992," in Wilcox, S. Thomas, and E. Cook, eds., The Year of the Woman: Myth or Reality (Boulder, CO: Westview Press, 1994). Factors that may have contributed to women's increased support at the polls were the widely reported rape trials of boxer Mike Tyson and Kennedy nephew, William Kennedy Smith, as well as the treatment of women at the naval aviators' Tailhook convention and allegations of sexual harassment of women Senate staffers. See Congressional Quarterly, November 7, 1992, p. 3559. Additionally, 1992 was a bad year for House incumbents, who were tainted by the check-writing and banking scandal; women challengers were therefore particularly advantaged in this election. 72. Forty-eight women took seats in the House of Representatives as a result of the 1992 election. Congressional Quarterly Almanac, 1993, p. 4. 73. 510 U.S. 17 (1993). 74. Harris, 510 U.S. at 19. 75. Harris, 510 U.S. at 22. 76. Harris, 510 U.S. at 23. 77. O'Connor specifically stated that the Court was not addressing the proposed EEOC regulation that had adopted the "reasonable w o m a n " standard. 78. See discussion in Juliano and Schwab, "The Sweep of Sexual Harassment Cases," pp. 5 8 2 - 5 8 4 and accompanying footnotes. They report that most courts (well over three-quarters of their sample of cases) did not refer to any "reasonable standard" at all; when they did, the vast majority employed the "reasonable person" standard.

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They found that plaintiffs succeeded slightly more often when the courts used the "reasonable w o m a n " standard but concluded that there were too few cases to use this variable to predict the outcome of cases. 79. Jones claimed that he exposed himself to her in the hotel room, to which she had gone at the behest of one of the state troopers assigned to guard Clinton. The allegations became public following the January 1994 publication of a story by David Brock, writing in the conservative American Spectator magazine, in which Arkansas state troopers told of providing women for the governor on various occasions. One of the women mentioned in the story was called "Paula." She claims she recognized herself in the story and contacted lawyers, who advised her to hold a press conference to attract the public's attention. The press conference, sponsored by the Conservative Political Action Conference, was held in February 1994. The story continued to develop, and Jones filed suit. The Economist, January 18, 1997. 80. She held that discovery could begin immediately, that is, that the lawyers could begin to interview witnesses for the case. 81. The appellate court also rejected Clinton's claim that separation of powers principles—that is, preventing the judiciary from interfering with the executive branch—required presidential immunity from suit. 82. 457 U.S. 731 (1982). 83. Nixon, 457 U.S. at 748. 84. 520 U.S. 681 (1997). 85. Jones, 520 U.S. at 708. 86. Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998). 87. Jones, 990 F. Supp. at 674. 88. 523 U.S. 75 (1998). 89. 524 U.S. 742 (1998). 90. 524 U.S. 775 (1998). 91. Washington Post, December 4, 1997. 92. Oncale, 523 U.S. at 81. 93. Juliano and Schwab, in "The Sweep of Sexual Harassment Cases," p. 586, report that most complaints brought by men against heterosexual men lose, whereas men complaining of harassment by women or homosexual men are as successful as women plaintiffs. 94. The vice president was described as a midlevel manager with authority to make hiring and firing decisions. 95. Ellerth, 524 U.S. at 748. 96. Ellerth, 524 U.S. at 765. 97. New York Times, June 27, 1998.

6 Striving for Equality in Professional Life

D

ISCRIMINATION AGAINST PROFESSIONAL WOMEN MAY DIFFER FROM THE Dis-

crimination leveled against women in blue-collar or pink-collar positions, but it is just as invidious. Seen from one perspective, because the bias that creeps into the decisionmaking process is more subtle and hence may be more difficult to prove, it may be more troublesome to eradicate. 1 And although women continue to make progress in reaching high-level positions in academia, business, and law, they are still often unable to secure jobs offering them the "greatest power, prestige, and economic reward." 2 Part of the problem stems from employers' stereotypical perceptions of women that lead to differences in the way in which women's personalities and work are evaluated. 3 The existence of the glass ceiling, the barrier that impedes women and minorities from overcoming the power imbalance in the workforce, was demonstrated by a 1991 U.S. Department of Labor report based on a survey of ninety-four Fortune 1000 companies. 4 The survey findings, depicting an inverted funnel, indicated that although women comprised 37.2 percent of all employees, they held only 16.9 percent of middle management positions and 6.6 percent of executive positions. 5 And according to Defense Department information, women constituted 12.7 percent of the armed forces officer corps but only 1.2 percent of generals and admirals. 6 Given these disparities, it is also not surprising that there is a substantial pay gap in the earnings of professional women and men: the data show that for full-time workers, women accountants earn 25 percent less than men and women lawyers earn 30 percent less. 7 More broadly, a comprehensive study of the total compensation packages of corporate managers from 1992 to 1997 found that women as a group received 33 percent less compensation than men. 8

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Although commonly associated with sex-based differences in the workforce, the glass ceiling applies to racial inequalities as well; indeed, there is evidence that women of color are especially absent among the top corporate leadership ranks. 9 On March 16, 1995, the Labor Department released the report of the twenty-one-member bipartisan Glass Ceiling Commission, the first comprehensive analysis of the barriers to women and minorities achieving upper-level positions in the workforce. After hundreds of hours of hearings, the report, entitled, "Good for Business: Making Full Use of the Nation's Human Capital," revealed a significant gap in positions of authority between white men and women and minorities. The study revealed that although white men comprised just under 30 percent of the workforce, they held 95 percent of the senior management positions, defined as vice presidents and higher. It largely attributed the barriers to women's advancement to an undifferentiated and unreasonable fear among white men in charge. According to the commission, "the glass ceiling exists because of the perception of many white males that as a group they are losing—losing the corporate game, losing control and losing opportunity." 1 0 Echoing this view, New York Times columnist Maureen Dowd also attributed the problems faced by today's professional women at least in part to their men colleagues, when she bemoaned the fact that "professional alpha women are an endangered species. Over and over, you see alpha males, who would otherwise be plotting to crush one another, forming alliances to crush the uppity alpha woman in their midst." 1 1

Litigation by Professional Women The impediments to advancing in the professional, business, and military world stem from a variety of factors, including bias against women in positions of authority or prestige. 1 2 Women face significant obstacles to overcoming discrimination against them in high-level jobs, in part because evaluations of professional and managerial employees are largely based on subjective measures, such as collegiality, effectiveness of style, quality of scholarship, skills, ability to generate clients, ability to supervise staff, and degree of professionalism. Because sex-role bias often creeps into the decisionmaking process, women are seen as unprofessional or uncollegial if they are ambitious, aggressive, or outspoken—attributes that are positively valued in men. Women bringing discrimination suits often confront a reluctant judiciary, unwilling to interfere with employers' assessments of their professional qualifications. Indeed, it has been argued that the courts are more hesitant to intrude into these employment decisions than they are in entry-level jobs. 1 3 With vague and indeterminate criteria used to assess the work of professionals and because motives are often confounded and difficult to discern, women

STRIVING FOR EQUALITY IN PROFESSIONAL LIFE

Table 6.1

1 59

Professional Women Cases, 1984-1992

Case

Date

H is hon

1984

Jaycees Rotary Club New York State Club Association Price Waterhouse University of Pennsylvania Ezold"

Issue

Disposition Pro-equality

1984 1987 1988

Application of Title VII to law partnerships Women and "private" clubs Women and "private" clubs Women and "private" clubs

1989 1990

Mixed-motive discrimination Disclosure of tenure file to applicant

Pro-equality Pro-equality

1992

Pretext for discrimination

Anti-equality

Pro-equality Pro-equality Pro-equality

Note : a. Lower court ruling.

have a formidable task in convincing the courts they are victims of discrimination. Part of their problem in proving the discrimination arises from the judiciary's unwillingness to probe too deeply into the merits of the complaints brought by business and professional women against their employers. 14 Judges are frequently reluctant to inquire into the standards used to evaluate the work of professional employees, preferring to limit their review to assessing procedural fairness instead. The problem is magnified by the court's reluctance to substitute its judgment for the evaluations of corporate executives, law and accounting partners, top military officers, and university tenure boards. Over time, the federal courts have become more amenable to suits brought by professional women, but progress has been slow. Table 6.1 presents the significant federal court decisions arising from suits brought by professional and businesswomen. Given the courts' reluctance to become involved in substantive decisionmaking, most of the cases represented here reflect rulings on procedural matters.

Women in Academia As enacted, Title VII did not apply to employees in educational institutions. Eight years later, the EEO Act of 1972 expanded Title VII coverage to all public and private elementary school, secondary school, and college and university teachers. The legislative committee report accompanying the act explained that the exemption was insupportable because "discrimination against minorities and women in the field of education is as pervasive as discrimination in any other area of employment." Especially in "the field of higher education," the committee noted,

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women have long been invited to participate as students in the academic process, but without the prospect of gaining employment as serious scholars. [And] when they have been hired into educational institutions of higher education, women have been relegated to positions of lesser standing than their male counterparts.1-5

Women academics are underrepresented in tenured positions. By 1985, they held 37 percent of academic positions but only about 10 percent of the tenured positions, and even less at the most prestigious universities. 1 6 In the early 1990s, it was reported that women comprise only 7 - 1 3 percent of full professors in the prestigious Ivy League schools. Moreover, even when women achieve the same status as men, they are often paid less: at one of the Ivy League schools, women full professors—the highest rank—earned $10,000 less than men full professors. 1 7 Faculty with tenure may only be removed from their positions for "adequate" cause; not surprisingly, many of the battles over sex discrimination in higher education have been fought over denying tenure to women. The problem of proving that a tenure denial is based on or motivated by sex discrimination is exacerbated by the fact that there are numerous and diverse standards by which tenure decisions are made; indeed, "it is often difficult to even specify exactly what goes into tenure decisions." 1 8 Judicial restraint in tenure review cases stems from the belief that "of all fields, which the federal courts should hesitate to invade and take over, education and faculty appointments at a university level are probably the least suited for federal court supervision." 1 9 Some courts, however, are more willing to hold universities accountable under Title VII. Illustrating this approach, in Powell v. Syracuse University,20 a 1978 ruling, the Second Circuit defined its task as "steer[ing] a careful course between excessive intervention in the affairs of the university and the unwarranted tolerance of unlawful behavior." 21 A system that allocates rewards based on imprecise standards, often vaguely articulated, is ripe for the practice of discrimination; moreover, because courts are not anxious to oversee judgments on the merits of the tenure decision, impermissible motives may enter into the decisionmaking process. Not surprisingly, most of the Title VII suits brought by women to challenge tenure denials have not succeeded. 2 2 Title VII and Tenure Review Title VII litigation over sex discrimination in academia began in the 1970s. During this decade, there were 145 federal court decisions; by the mid-1980s, there were an average of thirty-four cases a year. 23 Most Title VII complaints of sex discrimination in academia are based on the theory of disparate treat-

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ment, which requires plaintiffs to establish a prima facie case of discrimination following the steps outlined in McDonnell Douglas. Under this test, adapted to the academic setting, the plaintiff has to show that she is a member of a class protected by Title VII; that she is qualified for the position or rank sought; that she was denied promotion or tenure; and that others with similar qualifications were promoted at approximately the same time or, in the case of tenure denial, that the university sought applicants for the position from similarly qualified persons. 24 A plaintiff has a relatively easy time establishing a prima facie case of discrimination, and relatively few reported cases have been dismissed on those grounds. 25 Tenure denial cases frequently revolve around the type of evidence courts require to prove discrimination. When she was denied tenure in 1976, Therese Lynn filed suit against the University of California, presenting statistical evidence of the university's pattern of basing tenure and promotion (or hiring) decisions on sex. Since its founding, the university had tenured twenty-six men and only two women; the last woman was granted tenure in 1972. Lynn also offered what the court called "specific statistical data," demonstrating that she had the same qualifications as men who were granted tenure. Finally, she showed that the university's poor evaluation of her work stemmed in part from its perception that women's studies research was not sufficiently scholarly. The district court was not persuaded that a low opinion of women's studies research constituted discrimination against women because the university would have had the same negative attitude toward men who researched in this area. 26 On appeal, in Lynn v. Regents of the University of California,27 the Ninth Circuit reversed the lower court, explaining that "a disdain for women's issues, and a diminished opinion of those who concentrate on those issues is evidence of a discriminatory attitude towards women." 2 8 Based on these factors, the circuit court found that Lynn demonstrated that her tenure denial was more likely than not motivated by sex. In defending itself against a charge of discrimination, a university typically presents evidence that the plaintiff is deficient in scholarship, teaching, service, or some combination of these; it also argues that the plaintiff does not fit in—either personally or intellectually—with the rest of the department. Plaintiffs typically lose at this stage, the pretext stage, of the case because they are seldom able to convince the court that the university's explanation for their dismissal is a pretext for discrimination, especially if the university is able to produce negative evaluations of their teaching or scholarly work. 2 9 One of the few cases in which a plaintiff was able to prove that the college's reason for dismissing her was a pretext for sex discrimination was Kunda v. Muhlenberg College,30 a 1980 case decided by the Third Circuit. Connie Rae Kunda established a prima facie case of discrimination in her suit against Muhlenberg College for refusing to grant her tenure and promote her to the rank of assistant professor in the Physical Education Department. The

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college argued that she was denied because she did not have a master's degree. But she was able to show that three men in the department who also lacked master's degrees were promoted during her time at Muhlenberg, satisfying the court that the reason offered by the college was a pretext for discrimination.

Confidentiality in Tenure Decisions Tenure decisions are highly decentralized, typically involving a review process in which the applicant's file is forwarded by a department to a dean; then to a college or university committee; and finally a vice president, president, and perhaps even a board of regents or trustees. 3 1 The file usually includes evaluations of the candidate's scholarship from recognized scholars in the field as well as recommendations from administrators and faculty members within the university. Because much of a university's tenure decision is based on confidential information, it is often difficult for a woman who suspects discrimination to be able to prove her claim, when the university, citing principles of confidentiality and academic freedom, refuses to grant her access to her file. 3 2 Plaintiffs argue that withholding their files deprives them of the normal right of civil litigants to the discovery process (the exchange of relevant information between parties to a lawsuit). The courts must balance the university's need for secrecy of its documents against the plaintiff's right to discover relevant evidence. In 1990, the Supreme Court settled the matter in University of Pennsylvania v. EEOC.33 The case began in 1985, when the University of Pennsylvania denied tenure to Rosalie Tung, a faculty member at the Wharton School of Business. She filed a charge with the EEOC, claiming discrimination on the basis of sex, race, and national origin. After beginning its investigation and determining that her file contained relevant information, the agency asked the university to produce her file, along with the files of five male faculty members mentioned in her charge. The university refused to comply, asking the EEOC to modify its request to exclude the letters from outside reviewers and the internal faculty committee deliberations. The university contended that the personnel committee's summary letter giving the reasons for her tenure denial provided enough information for the investigation. When the E E O C renewed its request and the university again refused, the agency went to court to compel disclosure of the file. Defending its right to withhold the documents, the university argued that the tenure process requires candid evaluations of an applicant's qualifications that are assured by promising confidentiality to evaluators. Citing the need for secrecy, the university sought to require the EEOC to obtain a "judicial finding of particularized necessity of access, beyond a showing of mere relevance." 3 4

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In a unanimous opinion announced by Blackmun, the Court ruled against the university. Reaffirming the Court's commitment to avoid "second-guessing of legitimate academic judgments," he emphasized that "nothing we say today should be understood as a retreat from this principle of respect for legitimate academic decisionmaking." 3 5 Tung's victory allowed her case to go forward and required the university to reveal the documents, perhaps disclosing its real reasons for its decision not to grant her tenure. Although not a final victory, it was likely to be a significant one for her because, as Blackmun noted, "if there is a 'smoking gun' to be found that demonstrates discrimination in tenure decisions, it is likely to be tucked away in peer review files." 3 6

Women in Law The first woman lawyer in the new world was Margaret Brent, arriving in the colonies from England in 1638. A relative of Lord Baltimore, Brent acquired large land tracts and, within a few years, was appointed counsel to the governor of Maryland. Despite her success, there were no other women lawyers until 1869, when the Chicago Legal News reported that Mrs. Mary E. Magoon was practicing law in North English, Iowa. As a county lawyer, Magoon did not require admission to the state bar. Although she may not have been the only woman to practice at a local level, there were no women yet admitted to a state bar. Then in June 1889, Belle Babb Mansfield was admitted to the Iowa bar, officially becoming the first woman lawyer in the United States. In allowing Mansfield to take the bar examination, the Iowa Supreme Court bypassed a statute that restricted membership in the bar to white males over twenty-one. Other w o m e n — M y r a Bradwell, for one—had not been as fortunate. After successfully passing her qualifying examination, Bradwell was denied admission to the Illinois bar and lost her appeal to the U.S. Supreme Court. Ironically, in 1872, the year before the Bradwell decision, the Illinois legislature had enacted a statute forbidding the exclusion of women from any profession, other than the military, on the basis of sex. Bradwell was eventually granted a license to practice law by the Illinois Supreme Court, acting on its own initiative, in 1890. 3 7 By 1999, there were almost 280,000 women lawyers in the United States 3 8 Their numbers had grown very slowly for a long time: in 1900, there were only about 1,000, and by 1970, the number had only risen to about 14,000. 3 9 There was a dramatic increase in the decade from 1970 to 1980, with women lawyers numbering 13,964 in 1970 (compared to 273,044 men) and jumping to 72,312 in 1980 (compared to 452,494 men). 4 0 The growth in the number of women in law has been characterized as "one of the great under-noticed revolutions of our time." 4 1 A 1996 report issued by the Com-

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mission on Women in the Profession of the American Bar Association showed that women comprised slightly less than one-quarter of the nation's lawyers and that almost half the law students were women. However, despite their numbers, in comparing their success in achieving partnership status, the study found that women were being promoted to partner at a much lower rate than men. Another study by the National Association for Law Placement that was based on a 1996 survey of 500 law firms reported that women constituted only 14.2 percent of the partners in these firms. 4 2 Women of color, who had remained largely invisible to the profession for decades, often suffered from a double dose of discrimination: as women and as racial minorities. 43

Partnership Decisions Lawyers on the partnership track are hired as associates; they typically serve a probationary period for five to seven years. If their performance is considered satisfactory, the firm invites them to become partners; if they are considered unsatisfactory, the firm generally invites them to look for work elsewhere or sends a message that they are unwelcome. Partnership decisions in law, like those in accounting, are typically collegial affairs in which the candidate is judged on a variety of dimensions. In 1972, one of Atlanta's most well-known firms, King and Spalding, hired Elizabeth Anderson Hishon as an associate. A graduate of Wellesley College and Columbia Law School, Hishon was the first woman at the firm to be considered for partner. 44 In 1978, the partners evaluated her for partnership and declined to invite her to become a partner. After another rejection a year later, she was asked to look for work elsewhere. She left the firm in December 1979 and sued, claiming that the firm's refusal to make her a partner was motivated by her sex in violation of Title VII. Hishon contended that the firm's promise that she would be considered for partnership played an important role in her decision to work for King and Spalding. Her complaint stated that she had been assured that "advancement to partnership after five or six years was 'a matter of course' for associates 'who receive[d] satisfactory evaluations' and that associates were promoted to partnership 'on a fair and equal basis.'" 4 5 Because she always received favorable evaluations, she assumed that she would be promoted. When she was evaluated for partner, however, she was rejected; they told her that, among other things, "she didn't fit in" and she kept herself apart from the rest of the firm. The firm argued that partnership decisions are beyond the reach of Title VII, in part because lawyers are no longer employees once they are elevated to partner. The lower court dismissed Hishon's case, agreeing that a partnership invitation is not an "employment" decision within the meaning of Title VII. 4 6 Immunizing the partnership selection process from Title VII's ban on dis-

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crimination, the court characterized a partnership as a marriage and compared the attempt to force a firm to grant a partnership to an attempt to enforce a "shotgun wedding." In accepting the case to decide whether Title VII's ban on sex discrimination applies to partnership decisions, the Supreme Court took a less romantic view of the partnership relationship. Writing for a unanimous Court, Burger briefly disposed of the question, explaining that Title VII begins to govern an employment relationship once a contract for employment is established. Title VII bars an employer from discriminating with respect to "terms, conditions, or privileges of employment," and the Court characterized the opportunity for an associate at a firm to be considered for partnership as either a "term" of the employment contract or a "privilege" of employment. In either case, Title VII applied, prohibiting the partners from using sex as a basis for their decision. King and Spalding also argued that a partnership was a voluntary association and applying Title VII to partnership decisions would hinder its First Amendment right to freedom of association. Burger rejected this argument as well, saying that considering a woman for partnership on her merits does not interfere with the firm's right of expression. He also noted that private discrimination has never been accorded affirmative constitutional protection. The case was remanded to the court below to allow Hishon to prove she had been a victim of discrimination. 47 It probably would not have been too difficult for her to show that a pervasive atmosphere of sex discrimination existed at the firm. While her case was pending before the high court, the firm had contemplated holding a wet T-shirt contest for its women summer associates at the annual summer outing, later changing it to a swimsuit competition. The winner was a third-year Harvard Law School student who was subsequently offered a job at the firm. "She has the body we'd like to see more of," a partner told the Wall Street Journal,48 Hishon's suit was never tried on the merits because she eventually settled with the firm out of court, with neither party ever publicly revealing the terms of the settlement. The Hishon case established that Title VII applies to partnership decisions in law firms.49 But although it was clearly a victory for women lawyers, the extent to which the ruling would change the manner in which law firms select partners is unclear. Despite the Court's affirmation of the applicability of Title VII, plaintiffs still must overcome a court's reluctance to interfere in the decisionmaking process of law firms. Speculating on the effects of the decision, Powell noted that "with respect to laws that prevent discrimination, much depends upon the standards by which courts examine private decisions that are an exercise of the right of association." 50 While applauding the decision, some women lawyers remained skeptical: "One Wall Street associate said, 'I suspect we will see a few more women making partner. But I'm afraid the real result of Hishon may just be that firms

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will keep a more careful watch on their women associates—not in an effort to promote them but to better justify their decisions not to make these women partners.'" 5 1 Proving Discrimination

in Partnership

Decisions

The difficulty professional women face in winning a Title VII case is highlighted by the court's adherence to the McDonnell Douglas formula that requires the plaintiff to prove that the employer's asserted reason for acting against her was not the "actual" one, a task made more difficult when the employer's judgment is based on subjective criteria. 52 Typically, the plaintiff has an easy job of establishing a prima facie case of discrimination, and the employer can readily put forward a plausible reason for its decision. But because the employer merely has to articulate the reason for that decision, most cases are won or lost at the final stage—the pretext phase. Nancy Ezold was turned down for partnership by the large Philadelphia law firm Wolf, Block, Schorr, and Solis-Cohen in 1988; her suit, characterized as "a typical example of a modern upper-level employment discrimination case," was the first attempt to take advantage of the Supreme Court's decision to apply Title VII to law firm partnerships. 53 Unlike the Hishon case, however, there was no "smoking gun" of sexist statements and practices at the firm for her to cite as evidence of sex discrimination. Ezold began as an associate on the partnership track in the firm's litigation department in 1983; she was initially told by a partner that she would have a difficult time at the firm because she was a woman, had not graduated from an Ivy League school, and had not served on law review. She worked on a large variety of cases, although she was primarily assigned to smaller, civil matters generally considered less important and an assortment of criminal matters. In contrast to male associates, she worked for only a few partners and never for more than 500 hours on a single case. During her early years there, several partners expressed concern about the "catch-22" the firm placed her in—she was not assigned to complex cases and then criticized for not working on complex cases—and indicated their intention to remove her from this situation. She received very positive evaluations from most of the partners who were familiar with her work during her reviews, but some partners had reservations about her analytical ability. When the time came to make the decision about partnership, she was rejected, even though she received an overall ranking of "good," meaning "displays particular merit on a consistent basis; effective work product and performance; able; talented." 5 4 When informed of her rejection for partnership status, she was also told that the firm believed she had the skills to head up the domestic relations unit and that, if she agreed, she would be promoted to partner a year later. When she agreed to do so but only for one year, she was told that she had to make a longer com-

STRIVING FOR EQUALITY IN PROFESSIONAL LIFE

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mitment or the promise to make her a partner the next year would be retracted. In any event, the firm told her it wanted her to stay on with them. Four months later, she left to take a new job. Ruling in 1990, District Court Judge James Kelly found that Ezold proved that the firm's reason for the denial—that too many partners believed she lacked sufficient analytical ability to deal with complex legal matters— was a pretext for discrimination. 55 Kelly based his decision on a broad array of factors, stemming in part from the fact that the firm promoted all but one of the men whose evaluations were similar or inferior to hers and were also considered to lack the necessary analytical skills. Additionally, he noted that although she was negatively evaluated for being too "assertive" and "demanding," men who were criticized for lacking assertiveness were promoted to partner. Finally, he weighed the fact that although she was reproached for excessive involvement in what they called "women's issues," which was based on her misgivings about the firm's treatment of its women paralegals, no stigma was attached to a man at the firm who expressed concern about the status of part-time lawyers, which he himself characterized as a "woman's issue." Kelly concluded that the firm treated her differently from men associates by applying higher standards to her. 56 In July 1991, he ordered that she be reinstated in the firm and awarded more than $100,000, although part of that would be counted as her normal contribution to the firm if she were made partner. 57 On appeal, a three-judge panel of the Third Circuit reversed the lower court, ruling that the trial judge's finding that she had been held to a higher standard than the men in the firm who made partner was "clearly erroneous." 58 The appellate court agreed that she had established a prima facie case of discrimination but disagreed with the lower court that she proved the employer's reason was a pretext for discrimination. The circuit court then distinguished between a pretext case and a mixed-motive case, in which both permissible and impermissible reasons play a role in an employment decision; in a pretext case such as Ezold's, the court had to determine whether the real reason was legal or illegal. In determining whether the proffered reason for the job action was a pretext for discrimination, the court said that the trier of fact must only consider the legitimacy of the employer's reason for the decision, not explore all the possible reasons for it. The court found that the lower court judge disregarded the firm's contention that its most important criterion for partnership was analytical ability and that all the men associates who made partner scored higher than she did on this dimension. In essence, the appellate court chided Kelly for concentrating on her positive evaluations and disregarding the negative comments—and the reverse for the men—especially in the category considered most important by the law firm. By engaging in its own evaluation of the associates under review and concluding that she merited promotion, the court

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had "impermissibly substituted its own subjective judgment for that of Wolf in determining that Ezold met the firm's partnership standards." 59 Thus, despite the promise held out by Hishon, Ezold helped insulate the partnership decision by constraining a court's examination of a firm's subjective standards. 60 In requiring the plaintiff to prove that the firm's asserted reason for refusing to make her partner was either "not credible" or "more likely motivated by a discriminatory reason" than the reason it gave, the court essentially compelled her to produce a "smoking gun." 61 The appellate court granted the difficulty of requiring a plaintiff to prove discrimination when subjective factors, such as loyalty, leadership skills, and collegiality, are the basis for an employment decision. But it pointed out that the higher principle of "our society's commitment to free decisionmaking by the private sector in economic affairs" was served in this way. 62

Women in Accounting Women have been accountants since the early days of the nation's founding. Like their colleagues in law, their numbers were very low for a long time. In 1870, for example, there were only 1,000 women bookkeepers, accountants, and cashiers keeping the books for U.S. businesses. In 1899, Christine Ross became the first woman to pass the state examination to become a certified public accountant (CPA). In 1910, the number of women bookkeepers, accountants, and cashiers had risen to 190,000, but there were only ten women CPAs, and by 1933, the number of women CPAs had only climbed to just over 100. 63 The federal securities laws of 1933 and 1934 created a tremendous need for public accountants to file the reports required under the acts. Additionally, the government agencies created by these acts hired hundreds of accountants, creating a shortage in the nation. This scarcity, accentuated during the 1940s by World War II, opened up opportunities for employment as women entered the public accounting profession in greater numbers. But it remained difficult for women to find jobs in the larger public accounting firms. This pattern continued during the 1950s and 1960s, as most public accounting firms persisted in their refusal to hire women, citing as reasons that they "were unsuited for out-of-town travel, weren't career-minded and had high turnover." 64 During the 1970s, the number of women accountants increased dramatically, and by the 1980s, women constituted about 50 percent of new hires in accounting positions and were soon expected to comprise more than half the profession. Salaries also increased, as indicated by a 1986 survey of 12,000 women CPAs. Fourteen percent of the women responding to the survey reported incomes of $50,000 or more in 1985, compared to 8.6 percent in 1983, 4.1 percent in 1981, and 2.1 percent in 1979. Similar increases were reported at all salary

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levels. But as in law, where women were also being hired in greater numbers, the rise to the top was slow. The results of the same 1986 survey showed that only 1.9 percent of women accountants were partners in national or international firms and 9.4 percent of women in local firms were partners. 65 Other surveys of the eight largest accounting firms conducted in 1983 and 1986 show that there were sixty-nine women partners in these firms in 1983; the number rose to 157 in 1986. Despite the increase of more than double the number of women in partnership positions, the percentage of women partners had risen to only 3 percent in 1986, up from 1 percent in 1983. 66 Against this backdrop, Ann Hopkins, who served as senior manager in the Office of Government Services in the District of Columbia for four years, was under review for partnership by the major accounting firm of Price Waterhouse; the deliberations ultimately led to the Court's 1989 decision in Price Waterhouse v. Hopkins.67 At the time Hopkins, who had joined the firm in 1978, was first considered for partnership in 1982, Price Waterhouse had seven women partners out of a total of 662. She was the only woman among eighty-eight candidates for partnership that year. At Price Waterhouse, partnership decisions were based on evaluations by the existing partners in the firm; evaluations were submitted to an admissions committee that made a recommendation to the policy board, which in turn either submitted the candidate's name for a vote to the entire partnership, rejected the application, or simply placed it on hold. Of the eighty-eight candidates, forty-seven were promoted to partner, twenty-one were rejected, and twenty, including Hopkins, had their applications put "on hold." In the case of Ann Hopkins, thirteen partners supported her, eight recommended to deny her the partnership, eight said they did not know enough about her, and three voted to put her "on hold." Although she was widely praised for her competence, her interpersonal skills came under attack. Price Waterhouse primarily attributed its decision to put off her partnership bid to her failings in this area because, although she was highly rated and generated more business than any other candidate, they felt she lacked "charm and femininity." Not surprisingly, women who aspire to law or accounting partnerships have to overcome barriers erected by the male partners' stereotypical images of professional women. Examination of the partnership evaluations revealed that "some of the partners reacted negatively to Hopkins's personality because she was a woman." Both supporters and opponents characterized her in stereotypical terms. She was described as "macho" and advised to take a "course at charm school"; they reportedly also accused her of "overcompensat[ing] for being a woman." Her own supporters provided the most striking evidence of the use of sex-based evaluations. One "explained that Hopkins 'ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.'"

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The partner assigned to explain to her why her candidacy was put on hold, also a supporter, advised her that her professional problems would be solved if she were to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." 68 The firm argued that because many of these remarks were made by her supporters, they could not have harmed her in the partnership consideration. When Hopkins was told she would not be reconsidered the next year, she resigned and sued the firm under Title VII, alleging she was discriminated against on the basis of sex. Later she explained that she sued because the reason she was given for the denial "didn't make sense"; she felt she "had been given an irrational explanation for a bad business decision." 69 Her case differed from most suits involving professional women because Hopkins had abundant written evidence that sex bias played a role in her partnership decision. 70 Perhaps it was this kind of direct evidence that inspired the Court to formulate the new rule for the so-called mixed-motive case by requiring the defendant to prove that the decision would have been the same absent the discrimination. Additionally, the Court's 6 to 3 opinion clarified the relationship between sex stereotyping and sex discrimination. Price Waterhouse denied that stereotypical views of women played a role in its decision to defer her partnership and disputed her expert witness, a psychologist, who testified at trial that the partners' remarks reflected sex stereotyping. The Court explained that it viewed the psychological evidence as "merely icing on the cake," adding, somewhat caustically, it takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring "a course in charm school." Nor . . . does it require expertise in psychology to know that, if an employee's flawed "interpersonal skills" can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex and not her interpersonal skills that has drawn the criticism. 7 '

Although the Court held that producing evidence of sex-biased remarks was not sufficient to prove that sexual stereotyping played a role in the decision, it found that the policy board relied on stereotypical evaluations in determining Ann Hopkins's fate at Price Waterhouse. The record also showed that partners had used sex-based comments in the past in evaluating other women in the firm. The Court concluded that Hopkins had successfully shown that the firm violated Title VII by inserting sex as an element in the employment decision. The partners may have been justified in reacting negatively to her personality, the Court explained, but Title VII bars them from reacting "negatively to her personality because she is a woman." 7 2 Based on the fact that sexual stereotypes underlay the partners' evaluations, Hopkins succeeded in meeting her burden that they "acted" on the basis of sex. Rejecting Price

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Waterhouse's contention that the stereotypical remarks merely constituted "discrimination in the air," the Court accepted her claim that the remarks were '"discrimination brought to ground.'" 7 3 The Court remanded the case to the court below to allow it to judge whether Price Waterhouse could meet its burden of showing, by a preponderance of the evidence, that it would have turned her down for partner in the absence of discrimination. On May 14, 1990, Judge Gerhard Gesell of the District of Columbia District Court, the judge who had initially in her favor, "found that the firm maintained a partnership evaluation system that 'permitted negative sexually stereotyped comments to influence partnership selection.'" He ordered Price Waterhouse to pay her $371,175 in back pay and award her the partnership it had denied her eight years ago. Explaining his ruling, Gesell said that "Price Waterhouse plainly does not want her and would not voluntarily admit her. Partnership, not simply a new vote, is the logical remedy, given the finding that Ms. Hopkins was likely to have been made a partner if not for unlawful discrimination." 7 4 The district court's ruling represented the first instance of a court ordering a professional firm to confer a partnership as a remedy for sex or race discrimination. 7 5 Hopkins, a budget manager at the World Bank at the time Gesell made his ruling, said she would go back to Price Waterhouse because she "was sure of her abilities as a management consultant and wanted a chance to use them at a top-notch concern. In any case, she added, many of the people who criticized her are no longer in the Washington office." 7 6 On December 4, 1990, a three-judge panel of the Court of Appeals for the District of Columbia affirmed Gesell's ruling, holding that the firm had failed to prove there were nondiscriminatory reasons for rejecting her partnership bid. 7 7

Women in the Military Since the Revolutionary War, women have served in a variety of support positions in the military, ranging from nurse to engineer. 7 8 In 1948, the Women's Armed Services Act established women's legal place within the nation's defense system. The controversy over an expanded role for women in the military, which was fueled by the women's rights movement, grew out of their increasing demands for greater equality in the armed services. The decade of the 1990s was a volatile one, with much debate about the role women should play as part of the national defense effort in the post-Cold War years. In 1989, during the U.S. invasion of Panama, an army woman commanded a military operation against Panamanian Defense Forces (PDF). Captain Linda Bray, commander of a thirty-person military police unit that included men and women, led an assault to capture a kennel holding guard dogs. The mission led to unexpected fighting when, contrary to intelligence

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reports, the kennel was heavily defended by the PDF. Shots were exchanged, and three PDF soldiers lost their lives. The encounter was the first in which a woman commanded troops in combat. 79 Bray's actions led to renewed debate about the role of women in the military. Women are barred from combat positions in the U.S. Marines, Navy, and Air Force by the 1948 Combat Exclusion Act; the U.S. Army's restrictions on women in combat emanate from its own regulations. Representative Patricia Schroeder, Democrat from Colorado, who chaired the House Armed Services Military Installations and Facilities Subcommittee, proposed legislation in 1990 to require the army to allow women into combat positions for a fouryear trial period. Proponents of a more active role for women in the military, such as Schroeder, argued that the combat exclusion was directly linked to women's inability to move into high-ranking positions in the armed services. 80 There was little support for her bill in either the House or Senate, and the measure died. When the Persian Gulf War ended in early 1991, there was a new perspective on the role of women in the military, much of it revolving around the increasingly blurred line between combat and noncombat positions. 81 Despite the combat restrictions, fifteen women died during U.S. action in the Gulf. After the war, women comprised almost 11 percent of the 2-millionmember active-duty forces (about 225,000), up from 2 percent in 1973. It was estimated that 35,000 women troops had participated in the war effort, serving in support positions such as nurses, truck drivers, and cargo plane pilots. The military itself was not in accord about how far their roles should be expanded; the Defense Department was opposed. Testifying before the Senate Armed Services Subcommittee on Manpower and Personnel, some high-rank ing military officials expressed opposition to changes allowing women to serve in combat, but those representing the Air Force and Navy were more supportive. Legislation had already passed the House to permit the services to remove the ban on women flying warplanes in combat for the Marines, Navy, and Air Force. 82 In April 1993, Clinton's defense secretary, Les Aspin, directed the military to remove restrictions on women flying aircraft in combat, which affected primarily the Navy and Air Force. He ordered the services to consider whether they could lift current bans on women in combat, including ground activity, and indicated his intention to ask Congress to remove the barrier on women serving on warships. Indicating the resistance women would likely encounter, a retired general said, "there's no way women can improve combat readiness, but they sure as hell can degrade it." 83 Six months later, Aspin announced a policy change in which many women could move into ground unit positions previously closed to them because of a new—lower—definition of "risk." Under the new policy, thousands of positions would be open to women in the Army and Marines because

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they could serve closer to the battlefield in support positions. Under the old rules, they were permitted to serve only if they did not run a significant risk of harm; under the new rule, they were barred from serving only in units that could engage in direct combat. 84 Adding tension to the debate over women's roles in the military was the rising concern over sexual harassment and sexual assault of women members of the armed services. The military was also struggling to recover from a set of scandals, beginning with the Tailhook scandal that broke out in the summer of 1991. The annual meeting of the Tailhook Association, a private organization of former and current naval aviators, achieved notoriety for reported assaults against twenty-six women, including a dozen naval officers. The incident led to the resignation of top navy officials and the formulation of rules about how to handle the problem of sexual harassment in the military, including requiring sensitivity training about sexual harassment. Additionally, the navy's relationship with this supposedly private group became known, after the release of the information that government funds were used to fly more than 1,000 aviators to the meeting in Las Vegas. 85 Within days after the secretary of the navy resigned as a result of Tailhook, testimony before a Senate panel by active-duty women reported incidents of rape and sexual assault of women serving in the army and a largely indifferent response from their commanders. 86 In response to continuing charges of sexual misconduct in the military—specifically, allegations of drill instructors abusing female recruits— some members of Congress proposed separate basic training for men and women in the military. A special panel headed by Nancy Landon Kassebaum, former Republican senator from Kansas, also recommended separating the sexes into their core units during basic and advanced training activities. William Cohen, secretary of defense in the second Clinton administration, rejected the panel's suggestion but did order the military to improve training and supervision of recruits as well as establish greater separation of men and women in base housing. 87

Exclusion from "Private" Clubs In 1984, the New York City Council drew attention to one of the barriers to advancement for women professionals and business executives: exclusion from men-only social, business, and service clubs. The council pointed to "the discriminatory practices of certain membership organizations where business deals are often made and personal contacts valuable for business purposes, employment and professional advancement are formed." 8 8 The problem for women is that clubs reserved for them typically "have neither the prestige nor occupational importance of men's clubs." 89 Although men may denigrate the importance of their private club membership to their

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business lives, surveys of business executives attest to the enhancement of career or business opportunities in the club environment. As Deborah Rhode argues, "In a society in which men obtain almost one-third of their jobs through personal contacts, and probably a higher percentage of prestigious positions, the commercial role of social affiliations should not be undervalued." 90 Always annoying or enraging, at times this type of discrimination verged on the ridiculous. In 1936, a woman lawyer at a prestigious New York law firm described her experiences at the Yale Club, where she went to attend a business meeting. Women were allowed in only if they entered through a side door that led to the elevators. It wasn't considered proper for a woman to be in the main area—you could only stand on the edges of the room. Well, I just walked in, and here I was standing in the middle of the floor when a young page came over to me and said, "Pardon ma'am, but you can't stand here." I asked him why not, and he said, "I don't know why, but I was told to tell you ladies aren't allowed on the carpet." My answer was to ask him to go back to whoever gave him those instructions and tell him to come here and move me if he'd like. 9 '

Freedom of Association Almost fifty years later, when state and local public accommodations laws finally banned sex discrimination in private clubs, the courts were asked to decide whether equality trumped the club members' First Amendment right to choose with whom they associate. 92 The clubs argued that the nondiscrimination laws did not apply to them because, as private associations, they were entitled to limit their membership in any manner. The first case to test this argument in the Supreme Court was Roberts v. United States Jaycees,93 decided in 1984. The case was brought by the Jaycees to challenge the Minnesota Human Rights Act, an act barring discrimination on the basis of sex, race, creed, color, religion, disability, and national origin in public accommodations. The case originated when the Minneapolis and St. Paul chapters of the Jaycees began to admit women as regular members in the early 1970s. The Jaycees, founded in 1920 as the Junior Chamber of Commerce, was an educational and charitable organization that provided young men between eighteen and thirty-five with an opportunity for personal development and participation in the affairs of the community, state, and country. Women and older men were entitled to become associate members, which denied them the right to vote and hold office. Each chapter had about 400 members, and apart from age and sex restrictions, all applicants were admitted into membership. Additionally, large numbers of nonmembers, including women, regularly participated in numerous Jaycees activities. 94 When the national organization threat-

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ened to revoke the charters of the Minneapolis and St. Paul chapters, the local chapters filed charges of discrimination with the Minnesota Department of Human Rights. The department ordered a hearing, but before it was held, the national organization sued to prevent enforcement of the Human Rights Act. The legal debate over men-only clubs involves the larger issue of the constitutional right to freedom of association. In 1958, the Supreme Court formally recognized that the First Amendment guarantee of freedom of speech and assembly also protected associational rights.95 Since then, the Court has identified two strands of associative freedom. The first, intimate association, stems from a constitutional right to privacy implicit in the Bill of Rights. 96 The Court stated that it "has long recognized that because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State." The second, expressive association, arises from the First Amendment. As the Court explained, "an individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed." 97 Groups or organizations that could not meet the standards for intimate association may be protected from governmental intrusion by the principle of expressive association. The question before the Court in Jaycees was whether the application of the Minnesota statute infringed on the Jaycees' freedom of expressive and intimate association. In answering this question, the Court fleshed out the contours of these rights. Speaking for a seven-member Court, Brennan indicated that associations range from intimate family relationships to large business enterprises; the former is entitled to constitutional protection from governmental intrusion, but the latter is not. Recognizing that the Jaycees fall somewhere in between, he suggested that certain factors were relevant to determining where a particular organization should be placed on the continuum. The factors include "size, purpose, policies, selectivity, [and] congeniality." Applying these standards, he concluded "that the local chapters of the Jaycees are large and basically unselective" and therefore "lack the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women." 9 8 The Jaycees argued that the exclusion of women was related to its freedom to express itself and that forcing the club to admit women would impinge on its protected speech. Brennan recognized that the Jaycees engage in a wide variety of activities protected by the First Amendment. But he also noted that the right of expressive association is not unlimited and may be curbed by a state to serve a compelling interest. The state's interest in preventing sex discrimination and ensuring women equal access to places of public accommodation was such a compelling interest. Because the Jaycees had not proven that the Minnesota law

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burdens its membership's freedom of expressive association, the Court found "there is . . . no basis in the record for concluding that admission of women as full voting members will impede the organization's ability to engage in these protected activities or to disseminate its preferred views." 9 9 Applying

the Jaycees Test

Three years later, in Board of Directors of Rotary International v. Rotary Club of Duarte}00 the Court was asked to uphold California's Unruh Act, a law guaranteeing full access to all business establishments, regardless of sex, race, color, religion, ancestry, or national origin. As with the Minnesota Jaycees, the local chapter of the Rotary Club was expelled by the parent organization for admitting women; it responded by filing suit in a California state court. Because of the First Amendment issue involved, the case eventually reached the U.S. Supreme Court. Speaking for the seven justices who participated in the case, Powell applied the Jaycees test and determined "that the relationship among Rotary Club members is not the kind of intimate or private relation that warrants constitutional protection." 1 0 1 Similarly, he concluded, admitting women will not hurt the members' ability to engage in protected First Amendment activities. In both Jaycees and Rotary Club, the Court believed that the compelling interest in eradicating sex discrimination justified possible restrictions on the club members' rights of expressive association. Distinctly Private Clubs The Supreme Court's most recent opinion on women and private clubs, New York State Club Association v. City of New York,102 decided in 1988, also revolved around a public accommodations law. New York City's Human Rights Law, passed in 1965, prohibited discrimination in public accommodations. It exempted "any institution, club, or place of accommodation which proves that it is in its nature distinctly private." 1 0 3 In 1984, in Local Law No. 63, the city defined as a public accommodation any "institution, club or place of accommodation [that] has more than four hundred members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business." 1 0 4 The New York State Club Association, a corporation consisting of 125 private clubs and associations, challenged the constitutionality of Local Law No. 63. The association argued that the law was invalid "on its face," meaning that it could never be constitutionally applied or was so broad that it inhibited constitutionally protected speech of parties not before the Court. 1 0 5 The Court rejected both arguments in a unanimous opinion delivered by White.

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According to White, because a number of the clubs in the association share characteristics of the Jaycees and the Rotary Club such as size, nonselectivity, and engagement in commercial transactions, they cannot claim a right of private association. Neither, said White, does the law impair expressive associational rights of all the clubs in the association. Simply preventing an association from using race or sex as criteria for membership does not affect the ability of individuals within the clubs to advocate views. Therefore, because the law can be constitutionally applied to at least some clubs in the association, it cannot be considered invalid on its face. While the case was pending in the courts, New York City initiated administrative proceedings against four all-male clubs: the New York Athletic Club, which had 10,000 members; the 4,000-member University Club; the Century Association, which had 1,900 members; and the 1,600-member Union League Club. The Court's opinion confirmed that the clubs were guilty of sex discrimination. Also, following the ruling, officials of the 1,300-man Friars Club in New York City proposed an amendment to its charter to allow women members. And city attorneys in Los Angeles and San Francisco indicated that they would redouble their efforts to enforce local ordinances against sex discrimination.106 A few years later, in July 1990, the New Jersey Supreme Court found that the all-male eating clubs at Princeton University were "places of accommodation" within the meaning of the state law against discrimination. 107 Although the clubs argued that they were "distinctly private," the court found that their "symbiotic relationship" with the university brought them within the reach of the New Jersey law against discrimination on the basis of sex in public accommodations. The clubs were ordered to "discontinue their practice of excluding women purely on the basis of gender." 108 The cases suggest that although the Supreme Court was willing to restrict discriminatory exclusion by certain private clubs, it was unwilling to ban such clubs entirely. None of the cases determined which men-only clubs must comply with state nondiscrimination laws, nor did they disturb a club's right to discriminate if it can prove that sexual or racial restrictions are necessary to maintain First Amendment associational freedoms. Lastly, although the Court held that cities or states can constitutionally ban discrimination in certain clubs, it did nothing to alter the fact that clubs are still free to discriminate in the absence of state or local ordinances against discrimination in public accommodations. 109

Professional W o m e n and Family Responsibilities

Admitting women to men-only clubs is not a panacea for discrimination in the business and professional world. Holding accounting and law firms accountable for sex discrimination in partnership decisions will not ensure women's

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rise to the top in these professions. Forcing universities to divulge the truth about tenure denials does not guarantee that women will receive tenure. And allowing women to serve their country by flying combat aircraft does not ensure equal opportunity for women in the military. Legal reforms such as these can help remove obstacles to women achieving equality in the professional and business world, but they do not solve the problem that perhaps most hinders women in achieving success in their business and professional lives: balancing home and family with their careers. Contrary to the popular image, studies show that most professional women are married and have children, and whether they are accountants, lawyers, college professors, or business executives, their home arrangements play a vital role in their career mobility and advancement. 110 A 1985 study showed that employed wives spend about twice as much time on homemaking responsibilities as their employed husbands; men married to women who work fulltime spend only about 1.4 hours more on domestic chores than men married to unemployed wives. 111 When women near the higher rungs of the corporate world, they find that they are often forced to choose between career and family. And because most are unwilling and indeed unable to abandon their family obligations, "they either ascend the corporate ladder but are unable to penetrate the top of the corporate hierarchy or they simply opt for positions outside large corporations that allow them to more readily balance work and family." 112 The dilemma faced by women in corporate career paths has not received much attention from the courts, but it was recognized in a noted article in the Harvard Business Review by Felice Schwartz. Schwartz's 1989 article began by reporting that "the cost of employing women in management is greater than the cost of employing men." 1 1 3 Women cost more, she said, because of their career interruptions, caused primarily by their maternal roles. Employers must learn to accommodate the conflicting demands made on women in the business world by making it easier for them to combine home and career. The article received a great deal of publicity in the popular press and gave rise to the expression the "Mommy Track." 114 Although Schwartz called for greater attention to the needs of working women, she seemed comfortable with the fact that women naturally assumed the larger share of work in the home. Indeed, she called for reinforcing the present division of labor by proposing two categories for working women: "career-primary" and "career and family"; both are valuable to the corporation, she said, but the latter requires a new corporate approach to retain women and keep them productive. 115 Schwartz believed that "career-primary" women, following the male model, put their careers first. They may sacrifice their personal lives, remain single or at least childless, or if they have children, have someone else raise them. In her view, "The secret to dealing with such women is to recognize

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them early, accept them, and clear artificial barriers from their path to the top." 1 1 6 The majority of women, however, are "career and family" women, most of whom "are willing to trade some career growth and compensation for freedom from the constant pressure to work long hours and weekends." 117 Such women would be willing to stay at middle management levels, and companies would benefit from having access to a talented crop of middle managers. To serve the needs of such women, she proposed that companies help women adapt to their roles by instituting child care, flexible hours, job sharing, and maternity leave. To be fair, Schwartz urged employers to allow men to take parental leave and to provide more support for two-career families during relocations, but her proposals that involve men seem to be more transitory. By focusing primarily on women, she reinforced the notion that it is acceptable that women bear sole responsibility for the care of home and children.

Conclusion Although employment opportunities for women have been on the rise since the 1970s, almost every indicator, whether salary or percentage of women in upper management, shows that men still occupy the positions of power, with women struggling to climb to the top. The term glass ceiling describes the phenomenon by which women in the corporate or business world attain middle management positions and then, for a variety of reasons, are able to go no further. Although litigation has helped to overcome some of the obstacles to women's advancement, the barriers remain, in part because the courts are reluctant to intrude into personnel decisions about professional qualifications. Most of the legal decisions have been confined to procedural rulings, including the decision to require universities to disclose tenure files to women in academia against claims of confidentiality, the decision to allow women to file Title VII actions in cases in which they have been denied partnerships, and the decision to require the defendant to prove that it would have reached the same result in the employment decision in the absence of discriminatory motives. Despite these favorable rulings—and almost all cases were decided in women's favor—the causes of women's inequality remain outside the bounds of legal solutions. Most agree that the primary hindrance to women's achievements in business, law, and academia is their dual responsibility for their home and their career and the resulting choices they are often forced to make between their families and their professional advancement. Although there is greater opportunity for business and professional women, until there is a more equitable distribution of labor and responsibility in the home, women will not be able to assume their rightful places in the professional and corporate world.

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Notes 1. In "Women in Corporate Law: Rewriting the Rules," American University Journal of Gender, Social Policy, and the Law 4 (1996): 511-534, Amy E. Decker discusses the various ways in which bias against women in the corporate law firm manifests itself; see Diane L. Bridge, "The Glass Ceiling and Sexual Stereotyping: Historical and Legal Perspectives of Women in the Workplace," Virginia Journal of Social Policy and the Law 4 (1997): 581-643; and Randy Albelda and Chris Tilly, Glass Ceilings and Bottomless Pits: Women's Work, Women's Poverty (Boston: South End Press, 1997). 2. Deborah L. Rhode, "Perspectives on Professional Women," Stanford Law Review 40 (1988): 1163. 3. See Tracy Anbinder Baron, "Keeping Women Out of the Executive Suite: The Courts' Failure to Apply Title VII Scrutiny to Upper-Level Jobs," University of Pennsylvania Law Review 143 (1994): 267-320, for a discussion of how sex plays a role in evaluating workers' performances, as well as other reasons for the lack of advancement for professional women. 4. Glass ceiling is a term first used in a Wall Street Journal article in 1986 to describe the "invisible" barrier to women's advancement to top positions in U.S. corporations; also applied to minorities, it is more commonly used for women; Pennsylvania Employment Law Letter, May 1995. 5. L. Tracee Whitley, '"Any Other Factor Other than Sex': Forbidden Market Defenses and the Subversion of the Equal Pay Act of 1963," Northeastern University Forum 2 (1997): 78; see Baron, "Keeping Women Out of the Executive Suite," for discussion of this and other reports indicating women's underrepresentation in upperlevel positions. 6. J. Norman Baldwin, "Female Promotions in Male-Dominant Organizations: The Case of the United States Military," Journal of Politics 58 (1996): 1184. 7. Legal Times, August 23, 1999. 8. Marianne Bertrand and Kevin F. Hallock, "The Gender Gap in Top Corporate Jobs," Cornell University Industrial and Labor Relations Review 55 (2001): 3-6; their data included the top five executives for hundreds of major firms. 9. See David A. Cotter, Joan M. Hermsen, and Seth Ovadia, "The Glass Ceiling Effect," Social Forces 80 (2001): 655-681; Matthew Scott, "For Women, the Glass Ceiling Persists," Black Enterprise 32 (2001): 30, for discussions of the special problems that exist for women of color in U.S. corporations. 10. New York Times, March 16, 1995. 11. Maureen Dowd, "Mean, Nasty and Missing," New York Times, February 27, 2002. The term alpha applies to ambitious and aggressive individuals. 12. See Christine Jolls, "Is There a Glass Ceiling?" Harvard Women's Law Journal 25 (2002): 1-18. 13. Baron, "Keeping Women Out of the Executive Suite," p. 268. 14. Elizabeth Bartholet, "Application of Title VII to Jobs in High Places," Harvard Law Review 95 (1982): 959. 15. H. Rep. No. 238, 92d Congress, 1st sess. (1971), pp.19-20. 16. Rhode, "Perspectives on Professional Women," pp. 1179-1180. 17. New York Times, January 24, 1993. 18. Elizabeth Kluger, "Sex Discrimination in the Tenure System at American Colleges and Universities: The Judicial Response," Journal of Law and Education 15 (1986): 320. 19. Faro v. New York University, 502 F.2d 1229, 1231-1232 (2d Cir. 1974).

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20. 580 F.2d 1150 (2d Cir. 1978). 21. Powell, 580 F.2d at 1154. 22. Karen W. Kramer, "Overcoming Higher Hurdles: Shifting the Burden of Proof After Hicks and Ezold," George Washington Law Review 63 (1995): 421. 23. George R. LaNoue and Barbara A. Lee, Academics in Court: The Consequences of Faculty Discrimination Litigation (Ann Arbor: University of Michigan Press, 1987), p. 23. 24. Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980). 25. Kluger, "Sex Discrimination in the Tenure System," p. 323. 26. Lynn v. Regents of the University of California, 1979 U.S. Dist. LEXIS 12663 (C.D. Cal. 1979). 27. 656 F.2d 1337 (9th Cir. 1981). 28. Lynn, 656 F.2d at 1343. 29. LaNoue and Lee, Academics in Court, pp. 38-39. 30. 621 F.2d 532 (3d Cir. 1980). 31. See Andrew M. Staub, "Title VII in Academia: A Critical Analysis of the Judicial Policy of Deference," Washington University Law Quarterly 64 (1986): 619-634. 32. In Lynn, the appellate court ruled that she had been denied due process because the district court judge relied on evidence in her tenure file that she had not been allowed to see. The court suggested that the contents of the file might be particularly relevant to the issue of whether the university's articulated reason for dismissing her was a pretext for discrimination. 33. 493 U.S. 182 (1990). 34. University of Pennsylvania, 493 U.S. at 188. The university also unsuccessfully argued that it had a "privilege" not to disclose these "confidential" documents. 35. University of Pennsylvania, 493 U.S. at 199 (emphasis in the original). 36. University of Pennsylvania, 493 U.S. at 193. 37. See Karen Berger Morello, The Invisible Bar: The Woman Lawyer in America, 1638 to the Present (New York: Random House, 1986), chap. 1, for an account of the "first women lawyers." 38. Cynthia Fuchs Epstein, "Women in the Legal Profession at the Tum of the Twenty-First Century: Assessing Glass Ceilings and Open Doors," Kansas Law Review 49 (2001): 736. 39. See Virginia G. Drachman, "Women Lawyers and Their Quest for Professional Identity in Late Nineteenth-Century America," Michigan Law Review 88 (1990): 2414—2443, for letters about women in law written by members of the Equity Club, a club for women lawyers begun at the University of Michigan in the late 1800s. See also Cynthia Grant Bowman, "Bibliographical Essay: Women and the Legal Profession," American University Journal of Gender, Social Policy, and the Law 1 (19981999): 149-175, for other accounts of the first women lawyers. 40. Terence Halliday, "Six Score Years and Ten: Demographic Transitions in the American Legal Profession, 1850-1980," Law and Society Review 20 (1986): 62-63. 41. Epstein, "Women in the Legal Profession at the Turn of the Twenty-First Century," p. 733. 42. New York Times, January 8, 1996; "Women in Major Law Firms," ABA Journal (March 1997): 14. 43. See J. Clay Smith Jr., "Black Women Lawyers: 125 Years at the Bar; 100 Years in the Legal Academy," Howard Law Journal 40 (1997): 365-397, for an account of these professional women; see also David B. Wilkins and G. Mitu Gulati, "Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis," California Law Review 84 (1996): 493-618; Alex M. Johnson, "The Under-

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representation of Minorities in the Legal Profession: A Critical Race Theorist's Perspective," Michigan Law Review 95 (1997): 1005-1062. 44. Morello, The Invisible Bar, p. 215. A woman was hired in 1944 as a "permanent associate," the firm's only one. In the 1960s, another woman was hired to work on a special project; when it was over, she left the firm. 45. Hishon v. King and Spalding, 467 U.S. 69, 71-72 (1984). 46. Hishon v. King and Spalding, 1980 U.S. Dist. LEXIS 16179 (N.D. Ga. 1980). 47. Hishon's complaint was dismissed at the initial stage of the litigation. The record of her work performance was not before the court because for purposes of a motion to dismiss, the allegations made by the plaintiff are assumed to be true. 48. Nina Burleigh and Stephanie B. Goldberg, "Breaking the Silence: Sexual Harassment in Law Firms," ABA Journal (August 1989): 46. 49. Because the contract for employment had been established when Hishon was hired, the Court's opinion did not seem to rule out sex discrimination in lateral partnership decisions, that is, women who were already partners in law firms. 50. Hishon, 467 U.S. at 80-81 n. 4; Powell wrote separately to show that the decision did not mean that Title VII applies to the relationship among partners. 51. Morello, The Invisible Bar, p. 217. 52. See S. Elizabeth Foster, "The Glass Ceiling in the Legal Profession: Why Do Law Firms Still Have So Few Female Partners?" UCLA Law Review 42 (1995): 1631-1689. 53. Baron, "Keeping Women Out of the Executive Suite," p. 299. 54. Ezold v. Wolf, Block, Schorr, and Solis-Cohen, 751 F. Supp. 1175, 1187 (E.D.Pa. 1990). 55. Ezold, 751 F. Supp. at 1191-1192. 56. The judge denied her claim that the firm "constructively discharged" her by making conditions for her at the firm so intolerable that she could not stay. 57. Ezold v. Wolf, Block, Schorr, and Solis-Cohen, 1991 U.S. Dist. LEXIS 10270 (E.D. Pa. 1991). In March 1991, in Ezold v. Wolf, Block, Schorr, and Solis-Cohen, 758 F. Supp. 303 (E.D. Pa. 1991), the court rejected the firm's argument that the damages should be limited to her salary during the four months between the time the partnership decision was made and the time she left the firm because that would be insufficient to "make her whole" within the meaning of Title VII. 58. Ezold v. Wolf, Block, Schorr, and Solis-Cohen, 983 F.2d 509 (3d Cir. 1992); the circuit refused a rehearing en banc and the Supreme Court denied certiorari. 59. Ezold, 983 F.2d at 512. 60. See Kramer, "Overcoming Higher Hurdles," for her analysis of the need to reconcile Ezold with Hicks; she also discusses Masterson v. LaBrum and Doak, 846 F. Supp. 1224 (E.D. Pa. 1993), another Pennsylvania district court case that indicates another approach to proving pretext in subjective decisionmaking. Here, the court held that the law firm's purported reason for refusing to promote Ellen Masterson, "lack of business development," was a pretext for discrimination. 61. Ezold, 983 F.2d at 529. 62. Ezold, 983 F.2d at 531; see Kramer, "Overcoming Higher Hurdles," for a discussion of subjective judgments in Title VII cases. 63. These and related statistics are reported in Glenda Reid, Brenda T. Acken, and Elise G. Jancura, "An Historical Perspective on Women in Accounting," Journal of Accountancy 163 (1987): 338-355. 64. Reid, Acken, and Jancura, "An Historical Perspective on Women in Accounting," p. 344.

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65. "Women CPAs Advance in Profession, Survey Finds," Journal of Accountancy 161 (1986), p. 30. 66. Karen L. Hooks and Shirley J. Cheramy, "Coping with Women's Expanding Role in Public Accounting," Journal of Accountancy 167 (1989): 67. 6 7 . 4 9 0 U.S. 228 (1989). 68. Price Waterhouse, 490 U.S. at 235. 69. New York Times, May 19, 1990. 70. William L. Kandel, "Current Developments in Employment Litigation," Employee Relations Law Journal 15 (1989): 103. 71. Price Waterhouse, 490 U.S. at 256. 72. Price Waterhouse, 490 U.S. at 258. 73. Price Waterhouse, 490 U.S. at 251. 74. Hopkins v. Price Waterhouse, 737 F. Supp. 1202, 1210-1211 (D.D.C. 1990). 75. New York Times, May 16, 1990. 76. New York Times, May 19, 1990. 77. Hopkins v. Price Waterhouse, 287 U.S. App. D.C. 173 (D.C. Cir. 1990). 78. The Women's Armed Services Integration Act of 1948 limited women to 2 percent of each branch of the service. Congress eliminated the cap in 1967; see Robin Rogers, "A Proposal for Combating Sexual Discrimination in the Military: Amendment of Title VII," California Law Review 78 (1990): 165-195. 79. New York Times, January 4, 1990. 80. Congressional Quarterly, March 10, 1990, pp.762-763; see Rogers, "A Proposal for Combating Sexual Discrimination in the Military," for a discussion of the link between combat and discrimination against women in the military. 81. See Lorry M. Fenner and Marie E. de Young, Women in Combat (Washington, D.C.: Georgetown University Press, 2001), for debates over women's combat roles. 82. New York Times, June 19, 1991. 83. New York Times, April 29, 1993. 84. New York Times, January 14, 1994; Congressional Quarterly, January 15, 1994, p. 78. 85. New York Times, July 3, 1991. 86. New York Times, July 1, 1991. 87. New York Times, December 16, 1997; New York Times, March 17, 1998; Congressional Quarterly, March 21, 1998, p. 762. 88. New York State Club Association v. City of New York, 487 U.S. 1, 5 - 6 (1988). 89. Lois M. McKenna, "Freedom of Association or Gender Discrimination? New York State Club Association v. City of New York," American University Law Review 38 (1989): 1086. 90. Deborah L. Rhode, "Association and Assimilation," Northwestern University Law Review SI (1986): 121. 91. Morello, The Invisible Bar, p. 203. 92. A public accommodation is a place of business such as a hotel, restaurant, department store, or theater that sells or otherwise makes available goods or services to the public. Title II of the 1964 Civil Rights Act prohibits discrimination in public accommodations on the basis of race, color, religion, or national origin but not sex. Enacted under Congress's authority to regulate interstate commerce, Title II exempted private clubs from its reach, resulting in the clubs' attempts to use this exemption to evade the law. See Laurence Tribe, American Constitutional Law, 2d ed. (Mineola: Foundation Press, 1988), chaps. 5 and 18, for an explanation of congressional authority to regulate public accommodations through its interstate commerce power.

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93. 468 U.S. 609 (1984). 94. Jaycees, 468 U.S. at 612. 95. In NAACP v. Alabama, 357 U.S. 449 (1958), the Supreme Court unanimously held that the NAACP did not have to reveal its membership lists to the state because its members' right to associate was inseparable from their right to engage in activities protected by the First Amendment, such as speech and assembly. 96. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court formally acknowledged a constitutional right of privacy; Griswold is discussed in a later chapter. 97. Jaycees, 468 U.S. at 622. 98. Jaycees, 468 U.S. at 620-621. 99. Jaycees, 468 U.S. at 627. 100. 481 U.S. 537 (1987). 101. Rotary Club, 481 U.S. at 546. Local chapters have from 20 to 900 members and are encouraged to cast their membership net widely. 102. New York State Club Association, 487 U.S. at 1. 103. New York State Club Association, 487 U.S. at 5. 104. New York State Club Association, 487 U.S. at 6. 105. The overbreadth argument represents an exception to the rule that only parties who are injured by a law can raise a constitutional challenge; it may be made in First Amendment cases. Under this construction, a plaintiff can challenge a law on the basis of its injury to third parties, claiming that the statute's very existence will chill or impair protected First Amendment rights. 106. New York Times, June 21, 1990. 107. Frank v. Ivy Club, 576 A.2d 241 (N.J. 1990). 108. Ivy Club, 576 A.2d at 261. 109. Isabelle Mouyssett, "New York State Club Association v. City of New York: Private Club Sex Discrimination," West Virginia Law Review 91(1989): 515-516; see Kurt Frederick Overhardt, "New York State Club Association v. City of New York: As 'Distinctly Private' Is Defined, Women Gain Access," Denver University Law Review 66(1988): 109-121. 110. Reid, Acken, and Jancura, "An Historical Perspective on Women in Accounting," p. 353; Epstein, Women in Law, pp. 330-331; Hooks and Cheramy, "Coping with Women's Expanding Role in Public Accounting," p. 70. 111. Rhode, "Perspectives on Professional Women," p. 1183. 112. Jeremy I. Bohrer, "You, Me, and the Consequences of Family: How Federal Employment Law Prevents the Shattering of the 'Glass Ceiling,'" Washington University Journal of Urban and Contemporary Law 50 (1996): 405. 113. Felice Schwartz, "Management Women and the New Facts of Life," Harvard Business Review 67 (1989): 65. 114. See Note, "Why Law Firms Cannot Afford to Maintain the Mommy Track," Harvard Law Review 109 (1996): 1375-1392, for a more recent discussion of how the "Mommy Track" affects law firms. 115. See interview with Schwartz in Marilyn Berlin Snell, "Careerus Interruptus: Babies and the Bottom Line," New Perspectives Quarterly 15 (1998): 70-73; see also Jolls, "Is There a Glass Ceiling?" 116. Schwartz, "Management Women," p. 69. 117. Schwartz, "Management Women," p. 70.

7 Accommodating Work and Family

S

INCE THE 1970S, AS THE NUMBER OF WOMEN IN THE NATION'S WORKFORCE

HAS increased, so has the number of employed women with children. 1 U.S. Labor Department statistics showed that in 1999, three-quarters of all women between twenty and fifty-four were employed, 2 as well as 65 percent of all women who had children under six. 3 Put another way, in 2 0 0 0 , more than 75 percent of women with children from six to seventeen who lived in marriedcouple families were employed, and in the vast majority of such families, both parents were employed. The percentage of employed women was even higher (79.6 percent) for women living in families "maintained by women." And among women with children under six living in married-couple families, 59.9 percent were employed; most commonly in such families, both parents were employed. Among women with children under six, living in families "maintained by women," 69.1 percent were employed. 4 Thus, by any measure, the days of "Mom" staying at home with the children while "Dad" goes out to work are largely gone. However, despite the overwhelming evidence that women with children are firmly attached to the labor force, it is evident that policymakers are insufficiently committed to the goal of accommodating work and family. 5

Society has been largely governed by the perception that working women are primarily wives and mothers and only loosely committed to their work; and as women became an increasing presence in the workforce in the last third of the twentieth century, they were confronted with laws and policies stemming from societal attitudes about the incompatibility of pregnancy and employment. Such policies included forced pregnancy leaves and exclusions from employee benefit plans. 6 When challenged in court, these laws were often upheld by judges who failed to perceive "that some of the legal rules restricting the activities of pregnant women were not required by physiology, 185

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but resulted from a social order built on patriarchal principles, designed to protect the family as a reproductive institution." 7 More recently, the impact of pregnancy and childbirth on employed women has been recognized, yet society has remained ambivalent about the role of pregnant women in the workplace and the place of the family in a woman's work life. Reflecting society's ambivalence, policymakers have not yet reached a consensus on the extent to which pregnancy should be treated as any other disability necessitating a temporary absence from work or whether pregnancy differs from other disabilities and calls for special treatment. Similarly, they have not agreed that fulfilling the promise of equal opportunity in the workplace requires societal solutions to ease women's (and men's) burdens at home. 8

Litigation over Pregnancy Policy The Supreme Court entered the arena of family policymaking in 1974 in response to challenges to laws restricting women's ability to work during pregnancy. Table 7.1 displays the significant cases decided by the courts since 1974. Forced Maternity

Leaves

In Cleveland Board of Education v. LaFleur,9 the Court considered the lawsuit brought by Jo Carol LaFleur and Ann Nelson. These two Cleveland junior high school teachers were forced out of the classroom because of a district policy requiring pregnant schoolteachers to take leave at least five months before their due date and not return until after their child was three months old; to return to work, women needed a doctor's certificate and, in some cases, a physical examination. Teachers with less than a year of seniority were simply dismissed at the beginning of their fifth month. The Court declined to rest its decision on equal protection grounds; instead, with Stewart speaking for the majority, it based its opinion on the Fourteenth Amendment's due process clause. The law was unconstitutional, the Court said, because it unduly burdened a teacher's fundamental freedom of choice in matters of marriage and family by creating an irrebuttable presumption that all women were unfit to work after an arbitrarily selected date. 1 0 With no mechanism for an "individualized determination" of a teacher's fitness, the rules "sweep too broadly" by presuming her physical incompetence, even in the face of contrary medical evidence that she is not given an opportunity to present. 11 The maternity leave policy violated the Fourteenth Amendment because it was based on an "unwarranted conclusive presumption that seriously burden[ed] the exercise of a protected constitutional liberty." 12 Rejecting

A C C O M M O D A T I N G W O R K A N D FAMILY

Table 7.1

Pregnancy Cases, 1974-1991

Case

Date

LaFleur Geduldig

1974 1974

Turner

1975

Gilbert

1976

Satty Newport

1 87

News

1977 1983

Miller-Wohl" Guerra Wimberly

1984 1987 1987

Johnson

1991

Controls

Issue Forced pregnancy leave Pregnancy benefits in state disability plan Eligibility for unemployment compensation Pregnancy benefits in private disability plan Seniority and pregnancy leave Pregnancy benefits for employees' wives Preferential treatment for pregnancy Preferential treatment for pregnancy Eligibility for unemployment compensation Fetal protection policy

Disposition Pro-equality Anti-equality Pro-equality Anti-equality Pro-equality Pro-equality Pro-equality" Pro-equality b Anti-equality Pro-equality

Notes: a. Montana State Supreme Court ruling. b. A decision favoring a preferential treatment approach for pregnancy is considered proequality.

the district's argument that it was too burdensome to make "individualized" determinations of fitness for every teacher, Stewart said that administrative convenience cannot be used to justify a due process violation. A year later, in Turner v. Department of Employment Security,11 the Court considered whether the due process clause prevented Utah from denying pregnant women unemployment benefits from twelve weeks before the expected date of their delivery to six weeks after the birth of their child. Mary Ann Turner lost her job in November 1972 and collected unemployment benefits until March 1973, twelve weeks before her child was due. Like most states, Utah's unemployment compensation law required recipients to be able to work. Also, as in most states, pregnant women were unable to receive benefits for a period of time during and shortly after their pregnancy. Citing LaFleur, the Court held that the Utah statute violated due process by creating an irrebuttable presumption that all women were unfit to work during the latter stages of pregnancy. In assessing these policies on due process grounds, the Court accepted the premise that a pregnant woman could be subjected to special restrictions—as long as they are not based on presumptions about women as a group. LaFleur and Turner left open the question of whether states were permitted to draw lines on the basis of pregnancy because under the Court's formulation, "pregnancy could still create a presumption of unfitness, albeit [now] a rebuttable one." 1 4

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Pregnancy Disability and the Equal Protection Clause Another set of legal challenges revolved around employer disability policies that excluded benefits for pregnant women. The Court initially dealt with this issue in Geduldig v. Aiello,15 a 1974 ruling involving a California disability insurance plan that provided benefits to employees in the private sector. The plan was self-supporting and financed by contributions of 1 percent of workers' salaries (up to a maximum of $85 a year); payments were available for up to twenty-six weeks. Under the plan, employees were protected against loss of income arising from a wide variety of mental and physical disorders. Virtually the only potentially disabling condition that was excluded was pregnancy. In Geduldig, a group of four women, three of whom suffered complications arising during their pregnancies and one temporarily unable to work because of her pregnancy, charged that the state plan violated the equal protection clause. 16 The legal question for the Court was the extent to which the equal protection clause required the state to sacrifice the fiscal integrity of the plan to provide benefits to women who could not work because of normal pregnancies. Delivering the opinion of the Court, Stewart stated that the equal protection clause does not require a state to provide a fully comprehensive disability plan. He focused on the solvency of California's social insurance plan, explaining that it was up to the state to determine how to maintain it. The Court was persuaded by the state's argument that the current contribution rate was designed to provide the most comprehensive coverage to employees at all levels of income. To include normal pregnancy within the plan would be "extraordinarily expensive" and force a drastic restructuring of the program— either by raising the contribution rate or reducing benefits. By excluding pregnancy, the disability plan could remain self-sufficient. 17 Even with a legitimate goal such as maintaining the fiscal solvency of the plan, however, the state was required to justify its reason for excluding women from receiving its benefits. Here, in an elaborate—and to most unpersuasive—analysis, Stewart explained that the California plan was consistent with the equal protection clause because the exclusion was based on pregnancy, not sex. And because sex discrimination was not at issue, the Court subjected the law to the minimal scrutiny normally accorded economic and social welfare legislation and ruled that the policy was rationally related to the state's interest in maintaining the plan under its current fiscal constraints. The most memorable part of the decision was Stewart's discussion of pregnancy as a unique physical characteristic unrelated to sex. In the widely quoted Footnote 20, he declared that the California plan does not exclude

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women on the basis of sex. Rather, the state merely selected from among risks and omitted the risk of pregnancy as a covered disability because its unique features justified the exclusion. To substantiate the fact that sex was not used as the basis for dividing potential beneficiaries, he explained that "there is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not." 1 8 Acknowledging that "only women can become pregnant," Stewart denied what was for many the obvious link between pregnancy and sex. Sex was not at issue, Stewart said, because the California scheme "divided potential recipients into two groups—pregnant women and nonpregnant persons. Although the first group is exclusively female, the second includes members of both sexes." 19 Because there were no differences in benefits available to nonpregnant persons, the plan does not discriminate on the basis of sex, even though all pregnant persons are women. Thus, Footnote 20 conveniently disposed of the confluence between pregnancy and sex. Brennan's dissent criticized the majority for ignoring the obvious connection between pregnancy and sex. He found Stewart's logic unpersuasive because, in his view, pregnancy discrimination equated to sex discrimination. He argued the Court should have applied the strict scrutiny approach urged by the four-justice plurality in Frontiero a year before and that the state's desire to maintain the fiscal status quo did not justify excluding pregnancy benefits. Brennan reminded the Court that the disability program was intended to serve "broad humanitarian goals." Toward this end, it provided a wide range of benefits for costly disabilities (like heart attacks), voluntary disabilities (like cosmetic surgery and sterilization), sex- and race-specific disabilities (like prostatitis and sickle-cell anemia), preexisting conditions (like arthritis or cataracts), and so-called normal disabilities (like impacted wisdom teeth). By singling out pregnancy disability, he said, the state limited benefits for disabilities pertinent to women but placed no restrictions on benefits for disabilities pertinent to men. "In effect," he charged, "one set of rules is applied to females and another to males." 20 Differentiating between men and women on the basis of a physical characteristic unique to one sex, Brennan insisted, is sex discrimination, a reality that is not altered by the fact that the characteristic is not found among all members of the affected sex. Brennan also pointed out that the Court's decision contradicted the EEOC's 1972 guidelines on pregnancy benefits, a fact that the majority had ignored. 21 The most enduring effect of the Geduldig decision was the Court's surprising declaration of the distinction between pregnancy and sex. But in addition to the Court's verbal gymnastics, a more serious indictment of the opinion is that it indicated a cavalier attitude toward women. By ignoring the effect of excluding pregnancy from employee disability plans, the Court failed to challenge the stereotypical view of women as marginal workers. 22

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ELUSIVE E Q U A L I T Y

Pregnancy Disability and Title VII Geduldig made it clear that the equal protection clause provided no support in the battle against pregnancy discrimination in the workplace and that plaintiffs should contest the policies under Title VII. First, unlike the equal protection doctrine, in which a state may justify its policy on the basis of cost, under Title VII, the employers' defenses are limited, and cost cannot be considered. 23 Second, an equal protection challenge requires evidence of intentional discrimination, in contrast to Title VII, where plaintiffs can succeed by showing that the pregnancy exclusion has an adverse impact upon women. Of course, if the Court rules that pregnancy distinctions do not implicate sex, Title VII, which requires a showing of a sex-based classification, becomes unavailable also. 24 Ironically, despite Geduldig, there was some progress in the states. Through statutes, state court rulings, and opinions of state attorneys general, a number of states expanded women's access to disability insurance. 25 Based on its 1972 guidelines, the EEOC supported the principle that Title VII required pregnancy to be treated like other disabilities. Most lower federal courts agreed and refused to apply Geduldig to Title VII suits. And by 1976, six circuits and eighteen district courts ruled that Geduldig only controlled in equal protection cases. In accordance with the EEOC guidelines, they held that a pregnancy exclusion violated the ban on sex discrimination in Title VII. 26 In General Electric Company v. Gilbert,21 decided in 1976, the Supreme Court resolved the question of whether Title VII prohibited the exclusion of pregnancy benefits in company disability plans. General Electric provided its employees with a far-reaching disability plan. As in the California plan, employees were covered for diseases, disabilities, and illnesses regardless of the effect, the voluntariness, the predictability, or the cost. The plan included circumcisions and prostate operations, conditions unique to men. The only excluded disabilities were those arising from pregnancy, miscarriage, or childbirth; even unrelated illnesses that surfaced during pregnancy were excluded. Denied disability benefits, women employees sued General Electric, arguing that the pregnancy exclusion was discriminatory and contravened the EEOC guidelines. In a 6 to 3 decision, Rehnquist announced the opinion of the Court, echoing the analysis in Geduldig and, once again, drawing the distinction between pregnancy and sex. Because both men and women belonged to the class of nonpregnant persons, it was not discriminatory to exclude pregnancy. Reiterating the theme of Geduldig, Rehnquist denied that the plan constituted sex discrimination. This case was about the classification of risks, he said, not the exclusion of persons or groups. Under the company plan, both men and women were entitled to disability insurance for risks they shared in common. A plan that removed a condition only affecting women was not discriminatory.

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Brushing aside evidence of the company's record of discrimination against women, the Court rebuffed plaintiffs' argument that the plan was a pretext for discrimination against women. Because pregnancy was sufficiently different from other disabilities, the company was entitled to treat it differently. And noting that the average cost of the plan was still higher for women than for men, Rehnquist declined to find the company guilty of violating Title VII. He declared that it is impossible to find any gender-based discriminatory effect in this scheme simply because women disabled as a result of pregnancy do not receive benefits. . . . discrimination does not result simply because an employer's disability-benefits plan is less than all-inclusive. For all that appears, pregnancy-related disabilities constitute an additional risk, unique to women, and the failure to compensate them for this risk does not destroy the presumed parity of the benefits accruing to men and women alike, which results from the facially evenhanded inclusion of risks.2®*

He also pointed out that the EEOC guidelines were not issued until 1972— eight years after Title VII was enacted—and they were inconsistent with the EEOC's original policy toward pregnancy disability, which had been issued soon after the law was passed. In his dissent, Stevens pointed out that the classification of pregnancy was not sex-neutral, saying, "It is the capacity to become pregnant which primarily differentiates the female from the male." In a footnote he rejected the Court's reliance on the infamous Geduldig formulation of "pregnant women and nonpregnant persons." This categorization is inappropriate, he said; the proper one "is between persons who face a risk of pregnancy and those who do not." 29 The Court's depiction of the plan was somewhat disingenuous. As in Geduldig, the disability policy allowed benefits for such male-specific risks as circumcisions, vasectomies, and prostatectomies, risks unique to men. Rehnquist never explained why risks unique to women did not have to be covered as well. In arriving at this decision, the majority appeared influenced by the belief "that a woman's role is to bear children and that women should bear the cost of childbearing just as they have always done." 30 By refusing to equate pregnancy with other conditions requiring brief interruptions from work, the Court ignored the financial burden of pregnancy on women's employment opportunities. Nashville Gas Company v. Satty,31 decided a year later, involved a suit against a company policy that required women to take pregnancy leave, but denied them sick leave pay and their accumulated seniority when they returned to work. The plaintiff claimed the policy was discriminatory because she was being treated differently from employees absent from work for other reasons; the others not only retained their seniority but continued to accrue it during the time they were out.

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ELUSIVE EQUALITY

With Rehnquist again delivering the majority opinion, the Court held that the company's seniority policy violated Title VII. This case was unlike Gilbert, he said, because there had been no evidence that General Electric's policy "favored men over women." In contrast, the Nashville Gas Company "has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer." 32 However, because the sick leave policy was virtually identical to the plan that the Court upheld in Gilbert, the majority rejected the claim that it also violated Title VII. 33

The PDA Within days of the Supreme Court's decision in Gilbert, a coalition of more than 300 groups, called the Campaign to End Discrimination Against Pregnant Workers, formed to lobby Congress to reverse the Court's decision. Mostly union groups, the campaign included members of NOW, the National Women's Political Caucus, and the Women's Equity Action Alliance. 34 Congress's response to Gilbert was swift. The move to amend Title VII began on March 15, 1977, about three months after Gilbert was decided, when Representative Augustus Hawkins, Democrat from California, introduced H. R. 5055 in the House. The bill was subsequently amended and reintroduced as H. R. 6075 with 119 cosponsors; hearings were held on it during April and June 1977. On February 2, 1978, the bill was approved and favorably reported to the House by the Committee on Education and Labor, with an amendment exempting employers from paying for abortions unless the mother's life was in danger. The amendment was added because of concerns that an employer with moral or religious objections to abortion, such as a church organization, would be obligated to fund it. The Senate version of the bill, S. 995, was approved by the Committee on Labor and Human Resources, omitting the abortion exception. When the bill went to conference, the House prevailed, and the final bill included the abortion exclusion. 35 Despite this, the conference report stressed that complications arising from abortions were still fully insured under disability or sick leave provisions and prohibited employers from discriminating against women who exercised their right to abortion. On October 31, 1978, Carter signed the Pregnancy Discrimination Act (PDA) of 1978 into law. Amending Title VII, the act makes it clear that "because of sex" or "on the basis of sex" refers to pregnancy and childbirth and specifies that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." 3 6 In contrast to the Court's view as expressed in Gilbert, Congress was

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committed to barring employers from classifying employees on the basis of pregnancy and requiring employers to treat pregnant employees the same as other temporarily disabled employees. The House committee report accompanying the bill noted that Gilbert was wrongly decided and "the dissenting Justices correctly interpreted the Act." 3 7 At the time of the PDA's passage, almost half the nation's women were already protected from pregnancy discrimination through state action, with about twenty-two states requiring some disability coverage for pregnant women, primarily through state fair employment practices laws. 3 8 By providing a uniform interpretation of employment discrimination on the basis of pregnancy, its sponsors hoped the PDA would end this piecemeal approach. In enacting the PDA and correcting the Court's interpretation of Title VII in Gilbert, Congress seemed to adopt an evenhanded approach to pregnancy, placing it on a par with other disabilities that temporarily interrupted work. But it did not create a preferred status for pregnancy because there was no mandate that employers provide disability or sick leave benefits for pregnant workers if they did not provide them for all their employees. Thus, although the PDA brought certain women up to par with men, it was only beneficial for women who worked for companies that provided disability benefits to their entire workforce; the law provided little benefit to others who were not similarly situated. The debate surrounding passage of the bill, however, showed that Congress was also concerned about promoting equal opportunity for women and perceived the PDA as another step toward creating greater parity between the sexes in the workforce. As one of its Senate cosponsors, Democrat Alan Cranston of California, described it, the act "is fully compatible with the underlying objectives of Title VII to assure equality of employment opportunity and to eliminate those discriminatory practices which pose barriers to working women in their struggle to secure equality in the workplace." 3 9 Ironically, the Supreme Court's first PDA case was brought by a man. At issue in Newport News Shipbuilding and Dry Dock Company v. EEOC40 was the company's medical plan that offered pregnancy benefits to its women employees but provided less extensive pregnancy benefits to the wives of its men employees. Prior to passage of the PDA, the company had excluded pregnancy benefits for women employees, but it later established a policy that provided equal disability coverage for pregnancy; it did not, however, increase the benefits available to the employees' wives. In September 1979, John McNulty, an employee of the shipbuilding company, filed a discrimination charge with the EEOC, claiming that the company's disability policy discriminated against him. A month later, the United Steelworkers Union filed a similar charge on behalf of the other male employees in the shipbuilding company. In response, the company filed an action in federal court naming McNulty, the EEOC, and the union as defendants; it claimed that the less favorable pregnancy coverage for employees' wives did

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ELUSIVE EQUALITY

not violate the PDA because the act was simply intended to overrule Gilbert and apply to women employees only. 41 Rejecting the company's argument that the PDA was intended to protect female employees only, the Supreme Court stressed that the law's evenhanded approach barred employers from treating pregnancy differently from other medical conditions. Speaking for the Court, Stevens said, "For all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex." 42 The Court ruled that the disability plan was unacceptable because it discriminated on the basis of pregnancy and was therefore inconsistent with Congress's intent in passing the PDA, which was not simply limited to overruling Gilbert.

The Debate over Preferential Treatment A new debate over pregnancy policy emerged with the passage of the PDA. After their success in the struggle against pregnancy discrimination in disability, seniority, pensions, sick leave, and unemployment compensation, women's rights advocates soon found themselves split on the question of whether pregnant women were entitled to special accommodations in the workplace. With guarantees of equal treatment secured through federal statute, the debate arose precisely because of concerns that the PDA's evenhanded approach failed to acknowledge that pregnant working women had short-term needs that differentiated them from other women and from men. Some advocates argued that new laws were required to maintain women's "workplace continuity" and "minimize the negative effects pregnancy has on workplace productivity, opportunity, and security." 43 Others felt that the PDA's nondiscrimination or equality principle was a necessary first step but that it would ultimately harm working women by ignoring the physical and financial burdens pregnancy placed on them. The debate over the status of pregnancy in the workplace was partially fueled by ambiguities in the PDA. Intended to prohibit discrimination, the statute required pregnancy to be treated like other disabilities. However, in reversing Gilbert, Congress stressed that it was also concerned about the financial burdens of pregnancy on women that hindered them in securing equality in the workplace. But it left open several important questions, namely, whether the PDA proscribed state laws mandating preferential treatment for pregnant women, tolerated them, or required them.

The Supreme Court and the Preferential Treatment Debate The Supreme Court entered the thicket of pregnancy policymaking again in 1987 in its ruling in California Federal Savings and Loan v. Guerra 4 4 a case

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with widespread implications for the preferential treatment approach. The case had its roots in the 1970s in state laws, such as those in Montana, Connecticut, and Massachusetts, that mandated accommodations for pregnant women, including reasonable time off and job protection. 45 Shortly before the PDA was passed, California followed the lead of these states by amending its Fair Employment and Housing Act to require employers to provide women employees covered by Title VII up to four months of unpaid pregnancy disability leave and a qualified guarantee of reinstatement. Lillian Garland worked as a receptionist for the California Federal Savings and Loan Association for several years. Bank policy allowed pregnant employees to take unpaid leaves of absence and committed to trying to reinstate them in their jobs on their return. When Garland became pregnant, she took a disability leave for three months, but when she tried to reclaim her job, the bank told her there were no openings. (She was eventually rehired seven months later.) Her complaint to the California Fair Housing and Employment Commission charged that the bank violated the California law. But before the commission acted on her complaint, the bank, joined by the Merchants and Manufacturers Association and the California Chamber of Commerce, sought to have the California statute declared invalid under Title VII. The Ninth Circuit ruled that the PDA provided a minimum standard for protecting pregnant women; it serves as "a floor beneath which pregnancy disability benefits may not drop—not a ceiling above which they may not rise."46 The question before the Court was whether the California preferential treatment law conflicted with the PDA's principle of nondiscrimination. According to Martha Minow, "the dilemma in the case . . . was whether women could secure a benefit that would eliminate a burden connected with their gender, without at the same time reactivating negative meanings about their gender." 47 The major legal issue in the case was whether the California law was preempted by the PDA. Under the supremacy clause of the U.S. Constitution, a state law is invalid if it conflicts with federal law. And in deciding whether a state law is preempted or not, courts look to the intent of Congress. Preemption can be either explicit (when specified by Congress) or implicit (when the federal law is so comprehensive that it is reasonable to infer that Congress "left no room" for the state to act). When neither condition prevails, a state law is preempted if it conflicts with federal law. Laws conflict "either because 'compliance with both federal and state regulations is a physical impossibility' . . . or because the state law stands 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" 4 8 The resolution of the preemption issue had far-reaching implications for pregnancy policy. If Title VII preempted the California law, all state preferential treatment laws were doomed. But if the law could be reconciled with the nondiscrimination principles of the PDA, states were free to follow Cali-

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fomia's lead and recognize the special needs of working pregnant women through leaves of absence and qualified assurances of job reinstatement. The PDA specified that a state law is not preempted unless it "purports to require or permit the doing of any act which would be an unlawful employment practice under this title," in other words, if it violated Title VII. With Marshall announcing the opinion, the Court rejected the bank's argument that by mandating pregnancy leaves for pregnant women, the law conflicted with the PDA's nondiscrimination policy. He articulated an expansive interpretation of the PDA, saying it did not "require" preferential treatment but neither did it "prohibit" it because Congress had been aware of existing state preferential treatment statutes when deliberating passage of the PDA and did not indicate its intent to ban them. Recalling the legislative history of Title VII, Marshall pointed out that it and by extension the PDA was intended to allow women to '"participate fully and equally in the workforce, without denying them the fundamental right to full participation in family life.'" 4 9 The California statute has the same objective. "By 'taking pregnancy into account,' California's pregnancy disabilityleave statute allows women, as well as men, to have families without losing their jobs." 5 0 Additionally, he said that because it was possible for an employer to comply with both laws at the same time by merely extending disability leave and promises of reinstatement to all workers, there was no conflict between the two statutes. Therefore, he concluded, Title VII does not preempt the California law. Concurring opinions by Stevens and Scalia expressed concern that the ruling would be interpreted as giving blanket approval to all state preferential treatment laws. Stevens cautioned that "the Court has not yet had occasion to explore the exact line of demarcation between permissible and impermissible preferential treatment under Title VII." 51 Writing in dissent, White stressed that the language of the PDA "leaves no room for preferential treatment of pregnant workers." 52 And the legislative history, he added, clearly supports his interpretation of the act. He pointed out that Congress had been concerned with discrimination against pregnant women and had not considered the possibility of discrimination in their favor. Congressional silence on preferential treatment, he insisted, "cannot fairly be interpreted to abrogate the plain statements in the legislative history, not to mention the language of the statute, that equality of treatment was to be the guiding principle of the PDA." 5 3 Guerra illustrates the sharp divisions in the two sides of the debate over the PDA's approach to pregnancy policy. The Reagan administration filed a brief in favor of the bank. But somewhat surprisingly, the administration was joined by the League of Women Voters and the ACLU, which argued that treating pregnancy as a special condition disadvantaged women. Along with NOW, these two organizations believed that the California law conflicted with the PDA. In their view, however, the matter could be resolved by following

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Marshall's suggestion and granting all employees disability leaves when needed. Conversely, representing the preferential treatment approach, California Women Lawyers argued that the California law was essential to allow women to maintain equity in the workforce. 5 4 In Wimberly v. Labor and Industrial Relations Commission55 also decided in 1987—shortly after Guerra—the Court shied away from a preferential treatment approach to pregnancy. The case revolved around interpretation of the 1935 Federal Unemployment Tax Act (FUTA); the Court had to decide whether the law's prohibition against denying unemployment compensation "solely on the basis of pregnancy or termination of pregnancy" required states to accommodate women who were unemployed because of pregnancy. 56 Upon returning from her pregnancy leave, Linda Wimberly was told there were no positions available at J. C. Penney, her employer of three years; the store had granted her pregnancy leave but had made no promises about reinstatement. When she applied for unemployment compensation, her claim was denied because she had left work voluntarily. Under Missouri law, unemployment compensation was only available to persons who quit their jobs for "good cause," that is, reasons related to the job or the employer. Leaving for any other reason, including childbirth, was not "good cause." Although Wimberly argued that Missouri law contravened FUTA, the Supreme Court upheld the Missouri statute. In an 8 to 0 decision, the Court ruled that FUTA was intended "only to prohibit States from singling out pregnancy for unfavorable treatment." 5 7 Because pregnancy is only one of any number of reasons for denying a claim, the state could have withheld her benefits without even knowing about her pregnancy. 5 8 Because Missouri's statute was not aimed at workers who left their jobs for pregnancy but encompassed all who left for any reason other than "good cause," it did not conflict with FUTA. Speaking for the Court, O'Connor pointed out that because FUTA allows states a great deal of discretion to determine eligibility for unemployment compensation benefits, state laws on pregnancy and unemployment compensation will vary. By banning pregnancy discrimination, FUTA was intended to forbid unemployment compensation schemes like the one in Utah, which the Court struck in Turner. It was not intended to obligate a state to accommodate a worker's pregnancy. The language in FUTA, she explained, should be construed "as prohibiting disadvantageous treatment, rather than as mandating preferential treatment." 5 9 In her brief to the Supreme Court, Wimberly had argued that "the word 'solely' in the context of the statute meant that a state could not 'deny compensation to an otherwise eligible woman' simply because 'she left her job because of pregnancy.'" 6 0 But in construing the federal tax act so narrowly, the Court held that FUTA allowed states to deny unemployment benefits to "otherwise eligible women" who left work because of pregnancy.

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The Supreme Court disapprovingly cited a 1981 Fourth Circuit opinion, Brown v. Porcher,61 in which the circuit court ruled that FUTA prohibited states from denying unemployment benefits to "otherwise eligible" pregnant women who left their jobs and were able to return to work after childbirth. The appellate court held that it did not matter how the state dealt with the claims of other disabled workers, it could not deny benefits to women who were unable to work solely because of pregnancy. 62 However, in Wimberly, unlike the Fourth Circuit, the high court chose to disregard the fact that the Missouri unemployment compensation law had a disproportionate effect on women workers by "penalizing] mothers who leave work to have children or who are forced to become unemployed due to pregnancy." 63 As in Geduldig, the Court buried its head in the sand and ignored the financial burdens imposed on women who must take time off for pregnancy reasons. By refusing to mitigate the conflict that arises between pregnancy and work, as before, the Court subordinated equality in the workplace to the state's interest in its fiscal policy. Another Look at Preferential

Treatment

In 1987, the Montana Supreme Court ruled on the validity of the 1975 Montana Maternity Leave Act (MMLA), a law prohibiting employers from firing a woman because of her pregnancy and refusing to grant her "a reasonable leave of absence" for the pregnancy. The case sparked a controversy among women's rights advocates about accommodating pregnancy in the workplace. Tamara Buley began to work as a sales clerk at the Three Sisters clothing store, owned by the Miller-Wohl Company, in Great Falls, Montana, in 1979. She had worked there for less than a month when she began missing work because of pregnancy-related morning sickness. Company policy at the time entitled all full-time employees with one year of seniority to five paid days of sick leave per year and unpaid leaves of absence for longer periods. Because she was not eligible to take a paid sick day or a leave of absence, she was fired for being away from the job. There was no evidence that the company treated her differently from the way it treated men who failed to appear for work. Buley filed a complaint with the Montana Labor and Industry Commission, claiming her employer violated the MMLA. After a hearing, the commission agreed. Meanwhile, the company went to federal court, naming the commissioner of labor and industry as the defendant, and asked the court to declare the MMLA invalid because it violated the equal protection and due process clauses of the Fourteenth Amendment and was preempted by the PDA. The MMLA, Miller-Wohl argued, violated the equal protection clause because it granted benefits to pregnant women that are not accorded to disabled men. The court disagreed, saying that on the contrary, by removing "pregnancy-

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related disabilities as a legal grounds for discharge from employment, the MMLA places men and women on more equal terms." 64 Moreover, although it appears aimed at women only, the court stated, the intent of the law was neutral as to sex because the legislature recognized that in many families both parents are employed. The statute therefore "protect[s] the right of husband and wife, man and woman alike, to procreate and raise a family without sacrificing the right of the wife to work and help support the family after her pregnancy." 65 Additionally, the Montana law was not preempted by the PDA because it did not require the employer to violate the federal law. Rather, employers might comply with both statutes by allowing reasonable leave time to first-year employees of both sexes who miss work for disability-related reasons. A year later, the Ninth Circuit Court of Appeals found that the lower court lacked jurisdiction over the matter and vacated the judgment. 6 6 Miller-Wohl had also sought judicial review of the commissioner's decision in the Montana state court, and here the judge ruled in its favor, finding that the MMLA was discriminatory because it favored nondisabled pregnant employees over disabled nonpregnant women and disabled men and was preempted by the PDA. On appeal to the state supreme court, three alternative positions were presented to the court. The state, supported by briefs from California and California women's rights organizations, urged the court to uphold the MMLA, arguing that preferential treatment is consistent with Title VII. In their joint brief, the ACLU, NOW, and the League of Women Voters argued that the MMLA was inconsistent with the PDA and asked the court to order it extended to all workers. Miller-Wohl simply argued that the MMLA was invalid because it was preempted by the PDA. 67 Announcing its decision in December 1984, the Montana high court upheld the state industrial commission, reversing the state court below. It found that although Miller-Wohl's no-leave rule "was facially neutral, it nonetheless subjected pregnant women to job termination on a basis not faced by men." 6 8 Therefore, even without the MMLA, Miller-Wohl's policy violated the PDA because it had a disparate impact on women. Additionally, the court ruled, the purpose of the PDA and the MMLA was to promote sex equality, and employers could effectuate both laws by simply extending leaves to first-year employees of both sexes. Because they could be reconciled, the PDA did not preempt the MMLA. The Montana court also had a message for the Montana legislature, which was scheduled to meet shortly. It suggested that further debate over preferential treatment of pregnancy could be halted if the legislature followed its suggestion and expanded the provisions of the MMLA to temporarily disabled employees of either sex. On appeal to the U.S. Supreme Court, the high court vacated the state supreme court decision without explanation and remanded the case to the state high court for reconsideration in light of its decision in Guerra,69 Confessing

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uncertainty about why the case was remanded, the state court noted that Guerra reinforced its view that the MMLA was not preempted by the PDA; the court reinstated its earlier judgment in Buley's favor in this eight-year-old case. 70

Pregnancy Policymaking The cases suggest that the Court is unable or unwilling to articulate a consistent approach to pregnancy in the workplace. Its rulings range from minimally endorsing the preferential treatment law in Guerra to refusing to express an opinion on the more far-reaching maternity leave policy in Miller-Wohl to narrowly construing the federal statute banning discrimination on the basis of pregnancy in Wimberly. The ambiguity surrounding the Court's interpretation of the act is heightened by the ambiguities in the act itself—as well as society's ambivalence toward pregnancy policies. The PDA provides that discrimination on the basis of pregnancy violates the ban against sex discrimination in Title VII, thus prohibiting employers from singling out pregnant women for adverse job action. But in requiring identical treatment of employees—pregnant and nonpregnant—the law absolves employers without disability plans from accommodating the needs of pregnant women. It also seems to bar employers from firing pregnant employees who absent themselves from their work because of pregnancy. The Court's confusion about the PDA reflects "the conflicting views of equality that form the equal treatment/special treatment debate." 71 The Equal Treatment

Model

During the 1980s, women's rights advocates debated the wisdom and practicality of the equal treatment and special treatment approaches. Concerned about the implications of special treatment for pregnant women, some argued that the legislation tested in Miller-Wohl renewed visions of protectionist laws finally laid to rest in the 1970s. Maternity leave provisions, they said, represented a step backward for women's employment equality. They "tend to encourage stereotyping and hierarchy, and thus operate as Muller [v. Oregon] did, though far less offensively." 72 Wendy Williams, one of the foremost proponents of the equality approach, urged that laws be based on an "assimilationist" model of equality that arises from a unity of men and women's interests in the workplace. 73 She thought that considerations of sex should be kept to a minimum in the policymaking process because one could not make principled distinctions between special treatment in favor of pregnant women and special treatment against them. And because pregnancy legislation restricted women's employ-

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ment opportunities in the past, it was preferable to treat pregnancy like any other physical condition affecting work. Aside from the risk engendered by restrictive legislation, Williams and other advocates of the equality model believed that special treatment for pregnant workers drew attention away from demands for labor reform, such as eliminating toxins in the workplace and creating viable sick leave and disability plans for all employees. Even worse, they argued, attention that should be focused on employers with inadequate sick leave policies would become displaced by resentment of pregnant employees. The Preferential Treatment

Model

Equal treatment proponents played an important role in advancing women's rights by advocating equality in the workforce. But they lost sight of the fact that equality has a differential effect on women and, although it may have superficial appeal, it ignores the needs of many pregnant workers. Women are more likely to have jobs without health or disability benefits and less likely to have bargaining power with their employers. The nonunion worker in a textile factory, the part-time saleswoman, the nurse's aide in a home health care agency, the lone secretary in a small business enterprise, or the waitress in a roadside diner—all lacking a disability plan—are disadvantaged by an equal treatment approach that ignores the special effect of pregnancy on employment. Taking heart from the Montana Supreme Court's decision in Miller-Wohl, proponents of the preferential treatment model argued that a positive action, or "reasonable accommodation," approach to pregnancy is necessary to overcome structural inequities in the workforce. Failing to accommodate the needs of pregnant women affects their ability to compete in the workplace and leaves the impression that pregnancy and employment are incompatible. Moreover, they emphasized, the equality approach is premised on a workplace adapted to men's experiences in reproduction and family life. Preferential treatment advocates Linda Krieger and Patricia Cooney contended that the nondiscrimination principles of the PDA would not overcome sex discrimination in the workplace because they merely required women to be treated like similarly situated men. Treating pregnant women like "disabled" men, they argued, would not ensure equality in the labor force; only positive action that recognized the special needs of pregnant women would do so. Krieger and Cooney denied that the Montana legislation at issue in MillerWohl raised the specter of protective legislation because it was different from the old protective laws. Furthermore, they insisted, it was easy to distinguish between the Montana statute and laws based on stereotypical assumptions about women's capacities. The MMLA did "not provide women with an additional benefit denied to men; it merely prevented] women from having to suffer an additional burden which no male would ever have to bear." 7 4

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Attacking the equal treatment approach, they asserted that a no-leave policy like Miller-Wohl's violated Title VII's adverse impact doctrine. To support this view, they cited a 1981 ruling by the District of Columbia Circuit Court in which the court invalidated an employer's flat ten-day disability leave policy because it "portended a drastic effect on women employees of childbearing age—an impact no male would ever encounter." 7 5 Responding to the argument that the language of the PDA precluded a preferential status for pregnancy, Krieger and Cooney maintained that a literal interpretation of the PDA would vitiate the disparate impact theory of sex discrimination. And they insisted that "there is no reason to believe that Congress intended such a result." 7 6

Reconciling the Debate Realizing the futility of debating among themselves, some women's rights advocates attempted to reconcile the two approaches. Herma Hill Kay, recognizing the contradiction between insisting on equality between the sexes and at the same time demanding special treatment, asserted that traditional equality theory—based on the assumption that equality is sameness—was inapplicable to the issue of pregnancy in the workplace. The formal model of equality, she pointed out, ignores the fact that where people are different, to treat them alike is to treat them unequally. Instead, she proposed an equality of opportunity theory, which "offer[ed] a theoretical basis for making unequals equal in the limited sense of removing barriers which prevent individuals from performing according to their abilities." 77 In her view, this theory justifies modification of the workplace rules for short periods of time to accommodate the physical needs of pregnancy for working women. Although she had misgivings about labeling pregnancy a woman's issue, Kay suggested a pregnancy policy in which "biological reproductive sex differences" are assigned legal significance "only when they are being utilized for reproductive purposes." 7 8 This "episodic analysis" requires policies that accommodate working women in jobs where their performance would be adversely affected by their pregnancy. Absent such a policy, she warned, a woman would "experience employment disadvantages arising from her reproductive activity that are not encountered by her male co-worker." 79 Kay and others who advocated this restricted special treatment approach recognized the danger that their model would perpetuate women's image as primary child caretakers; this problem could be solved, they believed, by allowing preferential treatment of pregnant women for medical reasons only. Ann Scales, another critic of the equal treatment approach, also argued that simply adopting a preferential status for pregnancy would not create equality in the workplace. It must be accompanied by workplace reform that promoted egalitarian childrearing responsibilities. Specifically, she believed it

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necessary to make part-time work more attractive and accessible to all workers and allow greater flexibility in the workday schedule so that both men and women could perform their dual roles of parent and worker. 80 Finally, also rejecting both the equal treatment and preferential treatment models, Lucinda Finley urged a unified focus on the "responsibilities" and "interconnectedness" of all workers. She criticized the equality approach because it was premised on the belief that "whatever is male is the norm," but she also abjured the preferential treatment approach because it furthered the stereotypical notion that pregnancy is a "woman's problem." 81 In her view, the workplace must be transformed into a place that promotes human responsibilities by recognizing the interdependence of home and job for both men and women workers. Finley believed that a law such as California's was a good start in the direction of equality, and rather than criticize it as special treatment, she felt it should be extolled as a benefit to both sexes and its scope expanded.

Fetal Protection Policies A related concern about pregnancy and work, also relevant to the equal treatment versus preferential treatment debate, revolves around employers' attempts to impose restrictions on women's work opportunities by adopting fetal protection policies. Such policies were devised during the late 1970s, as women began to work in the higher-paying industrial jobs that had traditionally been closed to them. 82 Employers, proclaiming their concern for fetal health, barred women—or at least women of childbearing age—from "hazardous" or "toxic" areas, unless they were able to prove their infertility. Although the policies may have been motivated by concern for fetal health, they were also fueled by fears of tort liability. The rhetoric used to justify the policies proclaimed employers as champions of worker and fetal safety, with women pictured as selfishly pursuing their narrow economic interests. "By couching the debate in terms of the protection of the health and safety of pregnant women and their children, major corporations . . . won the support of a wide range of people in state government, the business and medical communities and some labor unions." 83 Many believe that these policies resemble outdated protectionist laws because they "reinforce the perception of women as marginal workers and stereotype women as nurturers first and workers second." 84 Critics claim they harm women in a number of ways: first, they are more likely to be aimed at women working in higher-paying industrial jobs, where they can easily be replaced by men, than at women in lower-paying jobs where women predominate, even when the risks of the job are comparable; second, they are more likely to be aimed at women rather than men, even if the risks of harm to the

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adults and their offspring are alike; and finally, they reduce an employer's incentive to decrease workplace hazards. 8 5 Still others acknowledge the undisputed risks to pregnant women from toxic chemicals in the workplace and argue that pregnancy requires special treatment to avoid harm to the next generation. They urge, for example, that women be allowed to move out of high-risk jobs during their pregnancies or in contemplation of pregnancy. The problem for them was to reconcile women's equality in the workplace with a desire to accommodate their physical health concerns and concerns about their offspring. 8 6 Workers challenged the sex-specific fetal protection policies, claiming they violated Title VII and the PDA. More narrowly, they asked the courts to decide whether, as the employers argued, the exclusion was justified on the basis of business necessity (it "bears a demonstrable relationship to successful performance of the jobs for which it is used") or a B F O Q (it is "reasonably necessary to the normal operation of that particular business"). Under traditional Title VII scrutiny, the less stringent business necessity defense is used in disparate impact analysis; the more difficult (for the employer) B F O Q defense is used in disparate treatment cases in which the policy is discriminatory on its face, that is, when there is an explicit sex-based classification. In the early 1980s, several circuits ruled on the potential conflict between Title VII and fetal protection policies. 8 7 However, although the rulings varied and despite the explicit references to sex, the courts assessed them under a disparate impact analysis. This approach allowed the employers to argue—in some cases, successfully—that fear for the health of the employee's fetus constituted a business necessity. In such cases, the courts balanced the interests of the fetus against the interests of the woman employee. Johnson Controls was a company based in Milwaukee, Wisconsin, that manufactured car batteries; working there involved exposure to lead, a substance known to harm a fetus. Initially, the company allowed women employees to voluntarily transfer out of high-lead areas, simply warning them of the possible danger of lead exposure. In 1982, it adopted a policy that excluded all women of childbearing age from high-lead exposure positions, excepting only those who were able to provide medical evidence that they were unable to bear children. The union sued on behalf of the employees, arguing that it was wrong to bar only women from lead-exposed areas because lead can be transmitted through both parents, that most women did not get pregnant, and that the company had an obligation to eliminate or decrease the risk of fetal harm in the workplace. 8 8 In International Union, United Auto Workers v. Johnson Controls,89 decided in 1989, the Seventh Circuit followed the lead of the other circuits and established a modified business necessity defense as the appropriate measure with which to balance the interests of the employer, the employee, and the fetus. The three-part test for the business necessity defense inquired

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whether there is a substantial health risk to the fetus, whether it is only transmittable through the woman, and whether there is an equally effective nondiscriminatory policy that serves the employer's business interests, in this case, avoiding harm to the fetus. Unlike the other circuits, however, the Seventh Circuit held that the burden of proof remained on the plaintiff throughout. Applying the test, the court found in favor of the company because, first, both sides had agreed on the risk of harm to the fetus through lead exposure; second, there was insufficient evidence that the risk to the fetus resulted from the father's lead exposure; and third, the plaintiffs had not offered an equally effective alternative policy. 9 0 Johnson Controls thereby satisfied the business necessity defense. Turning to the BFOQ defense, the court also found in favor of the company. It broadly held that industrial safety was part of the "essence" of the company's business and that the fetal protection plan was "reasonably necessary" to promote that concern. The court believed that the company's interest in avoiding the risk of birth defects outweighed the woman's right to selfdetermination in the workplace. Implicit in the circuit's decision was its denigration of women, who would have risked their "unborn child's life" to further their economic interests were it not for the farsighted and benevolent policies of their employers. 9 1 Judge Richard Easterbrook argued in dissent that because the policy was sex-specific, it must be analyzed under the disparate treatment approach, restricting the employer to the BFOQ defense only. And in his view, the defense failed because the employer's concern for fetal health—which was the justification for the policy—was unrelated to the job of making batteries. Judge Richard Posner, another dissenter, agreed that the employer had to offer a BFOQ defense, but he believed that a serious concern with tort liability might constitute a B F O Q that would allow a company to exclude women from certain positions or require sterility as a condition of employment. Likening the decision to those in the early 1900s, where women were "protected" out of jobs for their own good, women's rights advocates warned that unless the decision were reversed by the high court, "it will institutionalize the secondclass employment status of all fertile women." 9 2 In 1990, the Sixth Circuit contradicted the prevailing view of the circuits in Grant v. General Motors Corporation 9 3 The court squarely held that the automobile manufacturer's fetal protection policy discriminated against women of childbearing age by barring them from certain positions. And it assailed the other circuits for wrongly deciding the earlier cases and ignoring the language and intent of Title VII and the PDA. However, although it adopted the test suggested by the dissent in Johnson Controls, the court nevertheless refused to categorically rule out all fetal protection policies. The Supreme Court's ruling in International Union, United Auto Workers v. Johnson Controfs,94 in 1991, resolved the conflict among the circuits about

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the proper framework for the Title VII analysis. Writing for a unanimous Court, Blackmun declared that "the bias in Johnson Control's policy is obvious. Fertile men, but not fertile women, are given a choice as to whether they wish to risk their reproductive health for a particular job." 9 5 Because it was facially discriminatory, the Court ruled the policy was not amenable to a disparate impact analysis and the business necessity defense; the company was required to meet the more stringent BFOQ defense. Consistent with Title VII case law, the Court interpreted the BFOQ narrowly, requiring the company to show that ensuring fetal safety "went to the core of the employee's job performance" or "involved the central purpose of the enterprise." 96 Acknowledging the company's "deep social concern" over fetal safety, Blackmun refused to accept it as "an essential element of batterymaking." 97 Blackmun declared that "Johnson's Controls professed moral and ethical concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility. Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents." 98 That was what Congress intended when it enacted Title VII and the PDA. Ultimately, the company could not satisfy the BFOQ test because there was no evidence that fertile women were less capable than men of working safely and effectively in producing batteries. However, although the Court did not rule out the possibility that tort liability could be a BFOQ, it indicated it was unlikely that the employer would be liable if it conformed to federal work safety guidelines and warned workers of the risk involved. 99 Agreeing that the company had not met the BFOQ defense, four justices were unwilling to go as far as Blackmun and the others in defining its scope. They believed that Title VII case law supported a broader interpretation of the BFOQ, allowing a manufacturer to defend against a Title VII claim of discrimination by showing it was subject to a high risk of tort liability from the third party involved—the fetus. 1 0 0 Under this analysis, an employer's concern for incurring a substantial cost as a result of a lawsuit could justify infertility as a BFOQ. In ruling against fetal protection, the Court implicitly harkened back to the equal treatment and special treatment debate, opting for the former approach. In telling a woman she was free to decide to further her economic interests over reproductive safety, the Court promoted equal opportunity and reflected the nondiscrimination principle of Title VII and the PDA. However, although it was a victory for women's rights advocates, the decision left unanswered questions about the employer's (and the government's) responsibility to ensure a safe workplace for this generation of workers as well as the next. Moreover, it also raises concerns about whether the equal treatment approach that simply allows women to coexist in the workplace with men offers adequate consideration to the special needs of pregnancy. 101

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The Family and Medical Leave Act Despite differences of opinion over equal treatment or special treatment, feminists believed that the workplace must be restructured to allow men and women to share responsibilities for work and family. During the 1980s, the primary locus of pregnancy policymaking was at the state level. About half the states had some type of parental or sick leave for workers, generally divided into three categories: laws that treated pregnancy like other disabilities, laws that distinguished pregnancy from other disabling conditions by mandating affirmative rights for pregnant women, and laws that allowed either or both parents to take unpaid child care leave. 102 A national policy finally emerged in 1993, after being stalled in Congress for almost a decade and vetoed twice by the president. Indicating the ascendancy of the equal treatment approach, the policy was known as family policy rather than pregnancy policy. Congress began deliberating over proposed family leave legislation in 1986, with the introduction of H. R. 4300; another bill had been introduced a year earlier, but no action had been taken on it. H. R. 4300 required public and private employers with fifteen or more workers to grant up to eighteen weeks of unpaid "family" leave to women and men employees for a variety of circumstances, including birth, adoption, or the serious illness of a child or dependent parent. Employees were permitted to take up to twenty-six weeks of unpaid disability leave for medical reasons for themselves, with their employers continuing their health insurance benefits during the leave time and ensuring their jobs with seniority and other benefits intact. The bill also would have created a commission to study the issue of income replacement during leaves. At the time the bill was proposed, most industrialized nations provided maternity or parental leave benefits; some, such as Sweden and Austria, extended benefits for up to a year. Additionally, recipients almost always received some form of income replacement during the time off. 103 Representative Patricia Schroeder, Democrat from Colorado, spoke of the need for such a bill in the United States, commenting that "it is time that we drag ourselves into the 1980s and update our personnel policies to make work and family more compatible. 104 Supported by labor, women's rights, and health groups, the bill faced strong opposition from the business community, which objected to it as anticompetitive and expensive; it also warned the law would harm women by making them more expensive to employ and causing employers to refuse to hire them. 105 A letter to members of Congress from the U.S. Chamber of Commerce and other business groups argued that the proposed legislation "is contrary to the voluntary, flexible and comprehensive benefit system that the private sector has developed." 106 Despite their opposition, H. R. 4300 was approved in a voice vote by the House Education and Labor Committee, but it was never considered by the full House.

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A year later, in the 100th Congress, Democratic representatives William Clay of Missouri and Schroeder again attempted to enact family leave legislation by introducing H. R. 925, an updated version of the 1986 bill; a Senate version, S. 249, was introduced by Christopher Dodd, Democrat from Connecticut. This bill was also accompanied by intense lobbying on both sides. In support of the bill, NOW was responsible for sending more than 25,000 Mother's Day cards to congressional leaders. Testifying against the bill at a Senate subcommittee hearing, a member of the Chamber of Commerce gloomily predicted that the legislation would cost more than $20 billion a year; the General Accounting Office (GAO) rejected this figure, saying that the estimate was based on "a variety of unrealistic assumptions." 107 The final House version of H. R. 925 set the threshold size of a covered business at fifty employees; the number dropped automatically to thirty-five after three years, unless Congress took affirmative steps against the decrease. 108 Employees would be permitted to take leaves of absence to care for others, including children and ill parents, for ten weeks over a two-year period; personal disability leaves would be limited to fifteen weeks per year. To be eligible for a leave, an employee had to work for a minimum of twenty hours a week for at least a year. Employers were given the right to refuse to reinstate the highest-paid 10 percent of their workforce. 109 Although the bill was approved by a House committee in November 1987, it failed to pass out of Congress that year. Next year a Senate version stalled in a filibuster, and although parental leave was part of a pro-family package, along with child care and protection against child pornography, it failed to clear Congress in 1988 as well. In what was becoming a standard congressional exercise, a slightly different version of parental leave legislation was again introduced in both the House and Senate in February 1989, also requiring companies to provide up to ten weeks every two years to new parents and workers with ill parents or children. The bills differed slightly in that the House version, H. R. 770, was more generous, allowing fifteen weeks of medical leave; the Senate measure, S. 345, permitted workers to take up to thirteen weeks of individual medical leave in a year for a serious illness. The GAO estimated that each bill would cost approximately $200 million a year. 110 Reacting against the House bill, Representative Dick Armey, Republican from Texas, was critical because it would only allow well-to-do couples who could afford the loss of income to take advantage of the bill. '"This is yuppie welfare—a perverse redistribution of income' from the poor to the rich," he said. 111 He did not, however, offer a substitute bill that would have provided paid parental leave, a move that surely would have benefited lower-income workers. Both House and Senate bills were approved by a total of four congressional committees over the next two months. 1 1 2 But in a letter to Utah senator Orrin Hatch, ranking Republican on the Labor and Human Resources

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Committee, Labor Secretary Elizabeth Dole indicated that she would advise the president to veto the bill. Preferring to give employers the option of providing family leave benefits, she stated, "We strongly believe this [benefit program] can be best achieved voluntarily; therefore, the administration strongly opposes the mandated approach to employee benefits." 1 1 3 The White House reiterated its opposition to the bill, saying it favored the goal of parental and medical leave but felt that decisions about employee fringe benefits should be left to the private sector. 114 H. R. 770 passed the house in a 237 to 187 vote on May 10, 1990. Just before the vote, White House chief of staff John Sununu told business leaders at a White House meeting that "if Congress passed a measure requiring parental leave, Mr. Bush would veto it because he opposed Government's dictating fringe benefits." 1 1 5 The bill was later approved in a voice vote by the Senate on June 14, 1990. Over time, the bill had been steadily weakened in an effort to appease the business community. In the final version of H. R. 770, employers with fifty or more employees would have to offer twelve weeks of unpaid medical or parental leave, with only one parent able to take leave at a time. The medical leave could be used to provide care for an ill child, a parent, or a spouse. Workers would be eligible for the released time if they had worked in the job for at least 1,000 hours over the course of a year. Employers would continue to provide health coverage for employees on leave and place returning employees in their previous jobs or equivalent positions. 1 1 6 On June 29, 1990, as promised, Bush vetoed the legislation. In his veto message, he said, "I want to emphasize my belief that time off for a child's birth or adoption or for family illness is an important benefit for employers to offer employees. I strongly object, however, to the Federal Government mandating leave policies for America's employers and work force. H. R. 770 would do just that." 1 1 7 Almost one month later, on July 25, 1990, the House of Representatives failed to override the president's veto in a 232 to 195 vote. Although the measure failed this time, members of Congress promised to keep sending family leave legislation to the president until they secured its passage. Echoing the words of the civil rights movement, Schroeder vowed, "We will override someday." 1 1 8 Dodd, the bill's chief sponsor in the Senate, promised that "George Bush is going to have a family leave bill on his desk every year he's in office." A member of Bush's own party, Marge Roukema, House member from New Jersey, expressed amazement at the presidential veto. "It's beyond my understanding why the President vetoed this," she said, adding, "what compelling national interest prompted this veto?" On the other side, reacting positively to its victory in defeating the legislation, an official of the National Federation of Independent Businesses said, "From our standpoint, it's a great day." 1 1 9

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A year later, H. R. 2 and S. 5, another set of compromise bills, were introduced in the face of renewed veto threats. But despite approval by voice vote in the Senate and a vote of 253 to 177 in the House, the bills lacked sufficient support to defeat the promised veto and were shelved. In 1992, the scene repeated itself, only that year the vote in the House was 241 to 161. The Senate was able to override the veto in a 68 to 31 vote, but the House was unable to produce the requisite votes. 1 2 0 In his veto message, Bush reiterated his support for a voluntary family policy, calling on "those members of Congress who have joined me in the past in opposing government mandates to work with me again." 121 Finally, on February 5, 1993, H. R. 1, the Family and Medical Leave Act (FMLA), was signed into law, the first piece of legislation of the new Clinton administration. With Democratic control of Congress and the White House, the likelihood of the bill's passage had increased after the November 1992 election, especially as it was one of Clinton's chief campaign issues. 122 In signing the FMLA in a Rose Garden ceremony, Clinton said, "Now millions of our people will no longer have to choose between their jobs and their families." 123 Representing an amalgam of the earlier versions, the FMLA provides that workers in companies with fifty or more employees are entitled to twelve weeks of unpaid leave during any twelve-month period for the birth or adoption of a child; the illness of a child, spouse, or parent; or the worker's own serious health condition that prevents the employee from performing the job. To be eligible, an employee must work for the same employer for at least a year and have worked at least 1,250 hours during the year. The employer must continue to maintain health care benefits for employees during the leave time, and workers must be allowed to return to their former, or equivalent, jobs on their return. The bill allows employers to deny leave to the highest-paid 10 percent of the workforce if their absence would cause "serious and grievous injury." The act went into effect on August 5, 1993; enforced by the Department of Labor, it allows employees to sue noncompliant employers for damages and injunctive relief. Its legislative history indicates that Congress was concerned that women's familial responsibilities for children or parents affected their employment status, in part by allowing employers to discriminate against them. This concern is reflected in the act's stated goal of "promot[ing] . . . equal employment opportunity for women and men [by] balancing] the demands of the workplace with the needs of f a m i l i e s . . . in a manner that. . . minimizes the potential for employment discrimination on the basis of sex." The purpose of the FMLA, to allow men and women to balance the needs of work and family, furthers the principle of equal opportunity in the workplace. However, because it provides only unpaid leave, the FMLA falls short of its goal of allowing women to accommodate work and family. 124 Moreover, despite its neutral language, studies show that women are far more likely

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than men to avail themselves of the option of taking time off from work, indicating that the primary responsibility for family care remains with women. It was also found that men who attempt to take advantage of their employer's family leave policy are subjected to derision, if not outright hostility. 125 Thus, although it was a positive step toward equal opportunity, the FMLA represents only the initial stages in the process of creating a more egalitarian workplace. The Court's continued expansion of state sovereignty under the Eleventh Amendment doctrine of sovereign immunity presents another obstacle to the protection offered workers by the F M L A . 1 2 6 In the late 1990s, states began to raise immunity defenses in suits brought under the FMLA, arguing that state employees could not sue them for violating the act—notwithstanding the fact that Congress explicitly made the law applicable to states. In adjudicating these claims, most courts felt that the rights created by the law were sex-neutral in scope and there was no evidence that it was intended to redress sexbased employment discrimination. 1 2 7 Applying the rules articulated by the high court in its "new federalism" jurisprudence, the lower courts ruled that the act was not intended to remedy discrimination on the basis of family status or temporary disability. Most circuits ruled that the statute exceeded Congress's authority to enforce the equal protection guarantees of the Fourteenth Amendment. More recently, in the last days of its 2001-2002 term, the Supreme Court agreed to hear a case filed by the state of Nevada to challenge a Ninth Circuit ruling on the state's immunity under the F M L A . 1 2 8 The principal issue in the case is whether the FMLA exceeded Congress's authority under the Fourteenth Amendment. 1 2 9 If it did, states would be able to claim the protection of the Eleventh Amendment and insulate themselves from suit by their employees. The controversy arose in 1997, when William Hibbs requested his twelve weeks of unpaid leave time from his employer, the Nevada Department of Human Resources, to care for his sick wife. Although his leave was granted, he was ultimately fired for extending it beyond the time limit allowed by the state. When Hibbs sued the state for terminating him, it claimed immunity under the Eleventh Amendment, arguing that the "family care" provision of the law was unrelated to Congress's interest in eradicating sex discrimination. In Hibbs v. Department of Human Resources,130 the Ninth Circuit, unlike the other circuits that had addressed this and similar issues, 1 3 1 ruled that the burden of proof was on the state to show that it had not been guilty of sex-based discrimination in granting family leaves and the state had not satisfied its burden. The unanimous three-judge appellate panel held that one of the purposes of the FMLA was to alleviate women's disproportionate burden of caring for sick family members. And because the law was based on sex, it merited heightened scrutiny, placing the burden of proof on the state to show that Congress acted outside the bounds of its authority. 132

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Conclusion Until quite recently, most public policymakers viewed pregnancy as a reason for denying equal opportunity to women in the workforce, restricting their ability to work during their pregnancy and allowing employers to exclude them from disability plans and sick leave policies. Such policies were based on the assumption that women were only tangentially related to the labor force and were primarily interested in pursuing their obligations to their home and family. As increasing numbers of women entered the workforce, women's rights advocates turned to the courts for assistance in changing the status of pregnant women in the workforce. The courts initially supported women's demands to remove the special restrictions employers placed on their ability to work during their pregnancy. Decided on due process grounds, the courts held that it was unfair to permit employers to make assumptions about women's inability to work during the latter months of their pregnancy. However, in subsequent cases, the courts determined that employers could exclude women from employee benefit plans, and in a startling announcement, the Supreme Court proclaimed that pregnancy discrimination differed from sex discrimination. Passage of the PDA touched off a new round of controversy, known as the preferential treatment-equal treatment debate. The issue revolved around whether the PDA required equal treatment of pregnancy in the workplace, allowed accommodations for pregnant workers that were unavailable to other employees, or commanded special treatment for pregnant women. When the high court had an opportunity to settle the debate, it merely indicated that the PDA permits preferential treatment but does not require it. For the next several years, the courts were unclear about the direction they should take, and feminists, employers, and policymakers were divided among themselves about the proper approach to pregnancy in the workplace. Another thorny issue involving pregnancy was the legitimacy of fetal protection policies that barred women from certain jobs in factories that required them to come into contact with material that purportedly harmed the fetus. Defending themselves in the Title VII suits brought against them, employers argued that they were justified in banning women of childbearing age outright or requiring them to prove their infertility. Although the courts were initially split on the matter, the Supreme Court eventually decided that employers are not permitted to "protect" the fetuses of women of childbearing age. Passage of the Family and Medical Leave Act essentially ended the debate over preferential treatment for pregnant women by transforming pregnancy leave into parental leave. Constructed as a sex-neutral policy, the law provides women with an opportunity to take a disability leave for any reason, including a pregnancy and, at the same time, allows either parent to take time

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off to care for a newborn child. Although this measure undoubtedly advanced equality in the workplace, its provision for only unpaid leave limited its value; in practice, the law was useful to families who could afford to forfeit the woman's salary but provided little benefit to women working in low-wage jobs whose salaries were essential to their family's survival. Equality requires the nation's policymakers to go beyond the FMLA and adopt a family policy that enables both men and women to fulfill their roles at home and at work and heightens their familial and job satisfaction.

Notes 1. U.S. Bureau of the Census, Statistical Abstract of the United States: 2001, No. 577: Employment Status of Women by Marital Status and Presence and Age of Children: 1970 to 2000. 2. U.S. Department of Labor, Bureau of Labor Statistics, Table 8: Employment and Earnings, January 1999. 3. U.S. Department of Labor, Bureau of Labor Statistics, Table 4: Employment Characteristics of Families in 1998. 4. U.S. Bureau of the Census, Statistical Abstract of the United States, No. 579: Families with Own Children—Employment Status of Parents: 1995 and 2000. 5. See Naomi Cahn, "The Power of Caretaking," Yale Journal of Law and Feminism 12 (2000): 177-223; Kathryn Abrams, "The Constitution of Women," Alabama Law Review 48 (1997): 861-884, for a discussion of the role of women in the workforce. 6. Wendy Williams, "The Equality Crisis: Some Reflections on Culture, Courts, and Feminism," Women's Rights Law Reporter 1 (1982): 175-200. 7. Eva Rubin, The Supreme Court and the American Family (Westport, Conn.: Greenwood Press, 1986). 8. Making quality child care more available and accessible would be the most obvious solution. 9. 414 U.S. 632 (1974). 10. Concurring, Powell criticized the majority's reliance on the irrebuttable presumption doctrine. He argued that the Court should have decided the case on equal protection grounds and found the policy irrational. 11. LaFleur, 414 U.S. at 644. 12. LaFleur, 414 U.S. at 650-651. 13. 423 U.S. 44 (1975). 14. Katharine T. Bartlett, "Pregnancy and the Constitution: The Uniqueness Trap," California Law Review 62 (1974): 1547. 15. 417 U.S. 484 (1974). 16. Geduldig, 417 U.S. at 494. Shortly before the lower court's ruling, in another case brought by a woman disabled by an abnormal pregnancy, the California Court of Appeal held that the state plan must provide disability payments to women missing work because of complications from abnormal pregnancies. As a result of the California court decision, the disability program was revised so that the three women with the abnormal pregnancies were given benefits for time lost from work; the fourth woman, disabled by normal pregnancy, was not. The only issue before the Supreme Court was the exclusion of benefits for normal pregnancy.

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17. Under a stricter standard of review, the Court would have demanded more evidence from the state that the cost of adding pregnancy disability benefits insurance would have severely disrupted the disability insurance program. Even if such evidence were available, under a stricter form of scrutiny, the Court would have been less willing to accept financial exigency as a basis for discrimination. See Ann Scales, "Towards a Feminist Jurisprudence," Indiana Law Journal 56 (1980-1981): 375-444; Harriet Hubacker Coleman, "Barefoot and Pregnant—Still: Equal Protection for Men and Women in Light of Geduldig v. Aiello," South Texas Law Journal 16 (1975): 211-240. 18. Geduldig, 417 U.S. at 496-497. 19. Geduldig, 417 U.S. at 496-497 n.20. 20. Geduldig, 417 U.S. at 501. 21. In 1966, the EEOC guidelines noted that pregnancy is unique to women and excluding it from disability plans would not be discriminatory. In March 1971, the agency abruptly reversed itself and, a year later, issued guidelines reflecting this change. The 1972 guidelines, classifying pregnancy with other temporary disabilities, prohibited employers from refusing to hire qualified women because they were pregnant or might become pregnant; required employers to treat pregnancy like other temporarily disabling conditions; and barred employers from disproportionately firing women for absences from the job caused by pregnancy unless doing so was justified by business needs. See Mark A. Lies II, "Current Trends in Pregnancy Benefits—1972 E E O C Guidelines Interpreted," DePaul Law Review 24 (1974): 127-142; Joanne L. Levine, "Pregnancy and Sex-Based Discrimination in Employment: A Post-Aiello Analysis," Cincinnati Law Review 44 (1975): 57-80; and Wendy Williams, "Equality's Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate," New York University Review of Law and Social Change 13 (1984-1985): 325-380. 22. Diane L. Zimmerman, "Geduldig v. Aiello: Pregnancy Classifications and the Definition of Sex Discrimination." Columbia Law Review 75 (1975): 4 4 1 ^ 8 2 . 23. Phillip Nollin Cockrell, "Pregnancy Disability Benefits and Title VII: Pregnancy Does Not Involve Sex," Baylor Law Review 29 (1977): 266. 24. Scales, "Towards a Feminist Jurisprudence," pp. 380-381. 25. See Zimmerman, "Geduldig v. Aiello." 26. Patricia Huckle, "The Womb Factor: Policy on Pregnancy and the Employment of Women," in Ellen Boneparth and Emily Stoper, eds., Women, Power and Policy, 2d ed. (New York: Pergamon Press, 1988), p. 135. 27. 429 U.S. 125 (1976). 28. Gilbert, 429 U.S. at 138-139 (emphasis in the original). 29. Gilbert, 429 U.S. at 162 n.5. 30. Scales, "Towards a Feminist Jurisprudence," p. 399. 3 1 . 4 3 4 U.S. 136 (1977). 32. Satty, 434 U.S. at 142. 33. Shortly after Satty, in Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702 (1978), the Court found the city violated Title VII by requiring women to make higher contributions than men to the pension fund; unlike in Gilbert, the Court explained, the pension plan discriminated on the basis of sex. 34. Joyce Gelb and Marian Lief Palley, Women and Public Policies, 2d ed. (Princeton: Princeton University Press, 1987). 35. The final bill provided that an employer is not required "to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer

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from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion." 36. The law went into effect on April 29, 1979, and applied to employers with at least fifteen employees. 37. H. Rep. No. 948, 95th Congress, 2d Session (1978), p. 2. 38. H. Rep. No. 948, 95th Congress, 2d Session (1978), pp. 10-11. 39. Congressional Record, 95th Cong., 1st sess., 1977, 123: 29663. 40. 462 U.S. 669 (1983). 41. See discussion of the case in Sherri Thornton, "Title VII: The Equalization of Spousal Benefits in View of the Pregnancy Discrimination Act of 1978 Newport News Shipbuilding and Dry Dock Co. v. Equal Employment Opportunity Commission," Howard Law Journal 27 (1984): 653-680. 42. Newport News, 462 U.S. at 684. 43. Comment, "Accommodating Pregnancy on the Job," Kansas Law Review 45 (1996): 243. The author discusses the other legal avenue to securing workplace accommodation in the ADA's requirement that employers must provide "reasonable accommodations" to otherwise qualified workers. Most attempts, however, to claim accommodations under the ADA have been unsuccessful, perhaps in part because the EEOC does not consider pregnancy to be a disability. 44.479 U.S. 272 (1987). 45. See Mary DeLano, "The Conflict Between State Guaranteed Pregnancy Benefits and the Pregnancy Discrimination Act: A Statutory Analysis," Georgetown Law Journal 74 (1986): 1743-1768. 46. California Federal Savings and Loan v. Guerra, 758 F.2d 390, 396 (9th Cir.1985). 47. Martha Minow, "Foreword: Justice Engendered," Harvard Law Review 101 (1987): 19. 48. Guerra, 479 U.S. at 281. 49. Guerra, 479 U.S. at 289, quoting Congressional Record, 95th Cong., 1st sess., 1977, 123: 29658. 50. Guerra, 479 U.S. at 289. 51. Guerra, 479 U.S. at 294 n.4. 52. Guerra, 479 U.S. at 297. 53. Guerra, 479 U.S. at 300. 54. David O. Stewart, "Equal Treatment for Pregnant Workers," ABA Journal (March 1987): 44. 55. 479 U.S. 511 (1987). 56. FTJTA was amended in 1976 in part to prevent federal funds under the act from going to states that denied assistance to individuals solely on the basis of pregnancy. See H. Irene Higginbotham, "Pregnancy Discrimination in Unemployment Benefits: Section 3304(a)(12) Merely an Antidiscrimination Provision," Stetson Law Review 17 (1987): 219-247. 57. Wimberly, 479 U.S. at 516. 58. Logically, in order to determine whether an individual is eligible for unemployment compensation benefits, the state has to know why an employee left his or her job; thus, it knew that pregnancy was the reason in Wimberly's case. Higginbotham, "Pregnancy Discrimination in Unemployment Benefits," p. 234, citing Brief for Petitioner in Wimberly. 59. Wimberly, 479 U.S. at 517. 60. Brief for Petitioner at 7, Wimberly, cited in Higginbotham, "Pregnancy Discrimination in Unemployment Benefits," p. 234 (emphasis in the original).

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61. 660 F.2d 1001 (4th Cir. 1981). 62. Brown, 660 F.2d at 1004. 63. Higginbotham, "Pregnancy Discrimination in Unemployment Benefits," p. 233, citing Brief for Petitioner in Wimberly. 64. Miller-Wohl Company v. Commissioner of Labor and Industry, 515 F. Supp.1264, 1266 (D. Mont. 1981). 65. Miller-Wohl, 515 F. Supp. at 1266-1267. 66. Miller-Wohl Company v. Commissioner of Labor and Industry, 685 F.2d 1088 (9th Cir. 1982). 67. See Williams, "Equality's Riddle." 68. Miller-Wohl Company v. Commissioner of Labor and Industry, 692 P.2d 1243, 1252 (Mont. 1984). 69. Miller-Wohl Company v. Commissioner of Labor and Industry, 479 U.S. 1050 (1987). On remand, the company argued that the issue was moot because it had already paid damages to Buley by giving her back pay, plus penalties and interest. The court, however, agreed with her that she was entitled to attorney fees and sent the case to the lower court for a determination of the fees. Miller-Wohl Company v. Commissioner of Labor and Industry, 744 P.2d 871 (Mont. 1987). 70. Miller-Wohl, 744 P.2d at 872 n.2. 71. Melissa Feinberg, "After California Federal Savings and Loan Association v. Guerra: The Parameters of the Pregnancy Discrimination Act," Arizona Law Review 31 (1989): 144. 72. Frances Olsen, "The Family and the Market: A Study of Ideology and Legal Reform," Harvard Law Review 96 (1983): 1558. 73. Williams, "Equality's Riddle"; Williams, "The Equality Crisis"; see Koontz, "Childbirth and Childrearing Leave." 74. Linda J. Krieger and Patricia N. Cooney, "The Miller-Wohl Controversy: Equal Treatment, Positive Action and the Meaning of Women's Equality," Golden Gate University Law Review 13 (1983): 533. 75. Abraham v. Graphic Arts International Union, 660 F.2d 811, 819 (D.C. Cir. 1981). 76. Krieger and Cooney, "The Miller-Wohl Controversy," p. 529. 77. Herma Hill Kay, "Equality and Difference: The Case of Pregnancy," Berkeley Women s Law Journal 1 (1985): 26. 78. Kay, "Equality and Difference," p. 22. 79. Kay, "Equality and Difference," p. 27. 80. Scales, "Towards a Feminist Jurisprudence," pp. 438-439. 81. Lucinda Finley, "Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate," Columbia Law Review 86 (1986): 1155-1157. 82. Suzanne Uttaro Samuels, Fetal Rights, Women's Rights: Gender Equality in the Workplace (Madison: University of Wisconsin Press, 1995), chap. 1, discusses the effect of such policies on women's employment opportunities, especially their access to higher-paying jobs. 83. Cynthia Daniels, "Competing Gender Paradigms: Gender Difference, Fetal Rights, and the Case of Johnson Controls," Policy Studies Review 10 (1991-1992): 58. 84. Pendelton Elizabeth Hamlet, "Fetal Protection Policies: A Statutory Proposal in the Wake of International Union, UAW v. Johnson Controls, Inc.," Cornell Law Review 15 (1990): 1110. 85. Hamlet, "Fetal Protection Policies," p. 1125; see Mary Becker, "From Muller v. Oregon to Fetal Vulnerability Policies," University of Chicago Law Review 53 (1986): 1219-1268, who discusses similarities between the old and new forms of pro-

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tectionist policies; and Daniels, "Competing Gender Paradigms," who discusses the types of jobs from which women are most likely to be excluded. 86. See Daniels, "Competing Gender Paradigms," for a discussion of types of fetal protection policies. 87. Zuniga v. Kleberg County Hospital, 692 F.2d 986 (5th Cir. 1982); Wright v. Olirt Corporation, 697 F.2d 1172 (4th Cir. 1982); Hayes v. Shelby Memorial Hospital, 796 F.2d 1543 (11th Cir. 1984). 88. There are numerous arguments against directing exclusionary policies only at women. It has been known for several decades that exposing men to lead can directly harm them and indirectly harm their future children. Joan I. Samuelson, "Employment Rights of Women in the Toxic Workplace," California Law Review 65 (1977): 1113-1142; Daniels, "Competing Gender Paradigms." 89. 886 F.2d 871 (7th Cir. 1989). 90. Specifically, the court granted summary judgment to the defendant, a ruling issued before a trial on the merits when the court finds there are "no genuine issues of material fact." 91. Samuels, Fetal Rights, Women's Rights, chap. 7. 92. New York Times, October 3, 1989. 93. 908 F.2d 1303 (6th Cir. 1990). 94. 499 U.S. 187 (1991). 95. Johnson Controls, 499 U.S. at 197. 96. Johnson Controls, 499 U.S. at 203. 97. Johnson Controls, 499 U.S. at 204. 98. Johnson Controls, 499 U.S. at 206. 99. At that time, forty states allowed recovery for a prenatal injury, but only in cases of negligence or wrongful death, neither of which was likely to apply to an employer who complied with federal law and warned employees of the possible dangers involved in the job. Congressional Quarterly, March 23, 1991, p. 749. 100. Most employers are not liable in tort to employees because of worker's compensation laws in which employees waive the right to sue their employers; they may be liable to a third party such as a fetus. 101. See Daniels, "Competing Gender Paradigms," for a discussion about the problems of designing a workplace that reflects egalitarian principles yet does not ignore the realities of reproductive safety. 102. New York Times, May 8, 1990; see Eva A. Cicoria, "Pregnancy and Equality: A Precarious Alliance," Southern California Law Review 60 (1987): 1345-1374; and Christine Neylon O'Brien and Gerald A. Madek, "Pregnancy Discrimination and Maternity Leave Laws," Dickinson Law Review 93 (1989): 311-337, for a discussion of state maternity policies. 103. Congressional Quarterly, June 28, 1986, p. 1485; see Eschel M. Rhoodie, Discrimination Against Women: A Global Survey (Jefferson, N.C.: McFarland, 1989). 104. Congressional Quarterly, June 14, 1986, p. 1361. 105. The dire warnings about the cost of the bill and its negative effect on women employees have failed to materialize; see Lisa Bornstein, "Inclusions and Exclusions in Work-Family Policy: The Public Values and Moral Code Embedded in the Family and Medical Leave Act," Columbia Journal of Gender and Law 10 (2000): 77-124, who notes that despite employers' initial opposition, they report many positive effects that have resulted from the law. 106. Congressional Quarterly, June 28, 1986, p. 1485. As originally proposed and approved by the House Education and Labor Subcommittee in a 9 to 6 vote, the bill

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would have reached employers with as few as five workers; Congressional Quarterly, June 14, 1986, p. 1361. 107. Congressional Quarterly, May 16, 1987, p. 999; Congressional Quarterly, November 21, 1987, p. 2884. 108. Marjorie Jacobson, "Pregnancy and Employment: Three Approaches to Equal Opportunity," Boston University Law Review 68 (1988): 1019-1045. 109. Congressional Quarterly, November 21, 1987, p. 2884. According to a GAO study, the fifty-employee cutoff would exempt 95 percent of the nation's employers from the bill. The remaining 5 percent of employers covered by the bill employ 39 percent of the workforce, about 42 million people. 110. Congressional Quarterly, March 4, 1989, p. 439. 111. Congressional Quarterly, March 11, 1989, p. 519. 112. Congressional Quarterly, April 22, 1989, p. 892. 113. Congressional Quarterly, April 22, 1989, p. 892. 114. New York Times, May 8, 1990. 115. New York Times, May 8, 1990. 116. Congressional Quarterly, June 16, 1990, p. 1873; Congressional Quarterly, June 30, 1990, p. 2055. The bill would have given federal workers eighteen weeks of parental leave and twenty-six weeks of medical leave. House workers would get the same benefits as private employees; Senate workers were not included in this version of the bill. 117. Congressional Quarterly, July 7, 1990, p. 2178. 118. Congressional Quarterly, July 28, 1990, p. 2405. 119. New York Times, July 26, 1990. 120. Congressional Quarterly, November 16, 1991; p. 3385; Congressional Quarterly, December 7, 1991; 3593; New York Times, August 11, 1992; New York Times, September 10, 1992; New York Times, September 24, 1992. 121. Congressional Quarterly, September 26, 1992. 122. See Michael Selmi, "The Limited Vision of the Family and Medical Leave Act," Villanova Law Review 44 (1999): 395-413. 123. Bureau of National Affairs, Daily Labor Report, February 8, 1993. 124. In 1999, Clinton had announced that the Department of Labor was proposing a regulation that would allow states to use their unemployment insurance trust funds for parental leave; Bornstein, "Inclusions and Exclusions in Work-Family Policy," pp. 79-80. 125. Rosemarie Feuerbach Twomey and Gwen E. Jones, "The Family and Medical Leave Act of 1993: A Longitudinal Study of Male and Female Perceptions," Employee Rights and Employment Policy Journal 3 (1999): 232-236; see Jeremy I. Bohrer, "You, Me, and the Consequences of Family: How Federal Employment Law Prevents the Shattering of the 'Glass Ceiling,'" Washington University Journal of Urban and Contemporary Law 50 (1996): 401—421, for a discussion of the reasons why the FMLA is incapable of breaking the glass ceiling. 126. See Stephanie C. Bovee, "The Family Medical Leave Act: State Sovereignty and the Narrowing of Fourteenth Amendment Protection," William and Mary Journal of Women and Law 1 (2001): 1011-1037. 127. See, for example, Chittister v. Department of Community and Economic Development, 226 F.3d 223 (3d Cir. 2000); Hale v. Mann, 219 F.3d 61 (2d Cir. 2000); Sims v. University of Cincinnati, 219 F.3d 559 (6th Cir. 2000); Kazmier v. Widmann, 225 F.3d 519 (5th Cir. 2000). 128. The Justice Department presented a brief, urging the Court not to take the case on the grounds that such an important issue, which could have serious implica-

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tions for enforcement of civil rights statutes, should be allowed to circulate in the lower courts. Twelve states filed briefs, urging the Court to take the case and reverse the circuit court (New York Times, June 25, 2002). 129. The Supreme Court held in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), and Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), that Congress lacked the authority to abrogate state immunity in the Age Discrimination in Employment Act and the Americans with Disabilities Act, thus shielding states from damage suits brought to enforce these laws. 130. 273 F.3d 844 (9th Cir. 2001). 131. Only the Fifth Circuit in Kazmier, 225 F.3d at 519, had addressed the "family care" provision at issue in this case. 132. In City ofBoerne v. Flores, 521 U.S. 507 (1997), the Court specified that legislation to enforce the Fourteenth Amendment's equal protection clause was unconstitutional unless Congress had found (and documented^ constitutional abuses by the states.

8 Securing Reproductive Rights

I

N HER CLASSIC WORK ON THE POLITICS OF ABORTION, KRISTEN LUKER ARGUES

that the conflict over abortion is different from other public policy debates because it is infused with passion, largely because "the two sides share no common premises and very little common language." 1 In this clash over the permissible limits on reproductive rights, neither side has been able to declare victory, and as with other moral dilemmas in the public policy arena, the U.S. Supreme Court has played an important role in determining the outcome of the struggle. In 1973, abortion rights proponents were elated when the Supreme Court announced that the constitutional right to privacy included a woman's right to choose to terminate her pregnancy. For the most part, over the next decade, the pro-choice majority on the high court rejected legislative attempts to restrict access to abortion for adult women. 2 However, when the composition of the Court began to reflect the anti-abortion sentiment of the Reagan administration, pro-choice advocates learned that they could no longer take the right to choose for granted. Table 8.1 summarizes the abortion rights cases decided by the Court from 1973 through 1986—the end of the Burger Court.

Early Abortion Laws Abortion may be one of the most controversial legal, political, and social issues of our time. It was not always so. Prior to the 1800s, abortion was widely practiced; it was even considered a relatively safe medical procedure, especially before quickening, the time at which fetal movement is detectable (generally around the fourth or fifth month of pregnancy). Prescriptions for home abortion remedies were widely used and freely advertised. Criminal 221

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Table 8.1

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Abortion Rights Cases, 1973-1986

Case

Date

Roe Doe

1973 1973

Danforth

1976

Beai

1977

Mäher

1977

Poelker Colautti Bellotti

1977 1979 1979

Harris 1980 Mat he son 1981 City of Akron 1983

Thornburgh

1986

Issues2 Abortion ban Hospital and doctor restrictions, residency requirement Parental and spousal consent, saline abortions, record keeping and reporting Medicaid funding limits and the Social Security Act Medicaid funding limits and equal protection Abortion in public hospitals Physician's duty to fetus Parental consent and judicial bypass procedure Constitutionality of Hyde amendment Parental notice Second-trimester hospitalization, parental consent, waiting period, informed consent lecture Informed consent lecture, waiting period; physician's duty to fetus, record keeping and reporting, second physician requirement

Disposition' Pro-choice Pro-choice Pro-choice Antichoice Antichoice Antichoice Pro-choice Pro-choice Antichoice Antichoice Pro-choice Pro-choice

Notes: a. Reflects the major issues in the case. b. Pro-choice indicates that a majority voted to strike all or most of the regulations under review; antichoice indicates that a majority voted to uphold all or most of the regulations under review.

charges, rare in any event, were never brought against the woman. By 1880, however, the law had changed, and legal abortions were no longer attainable in the United States. Increasing pressure for abortion reform developed in the 1950s and 1960s. In 1962, the nation watched as Phoenix celebrity Sherri Finkbine, star of a children's television show, was unable to obtain a legal abortion after she had taken thalidomide, a tranquilizer drug found to cause severe birth defects. Under Arizona law, the only reason for a legal abortion was to save the life of the woman. Ultimately, Finkbine was forced to travel to Sweden for her abortion. Also during this time, an outbreak of German measles—a disease often leading to blindness, deafness, or mental retardation in infants—further focused the public's attention on the restrictiveness of abortion laws when women with the disease were denied legal abortions. The German measles epidemic in the early 1960s resulted in the birth of about 20,000 severely disabled children. 3

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Women's rights activists began to lobby for changes in abortion laws as a necessary condition for sexual equality. As a California activist explained, when we talk about women's rights, we can get all the rights in the world . . . and none of them means a doggone thing if we don't own the flesh we stand in, if we can't control what happens to us, if the whole course of our lives can be changed by somebody else that can get us pregnant by accident, or by deceit, or by force. So I consider the right to elective abortion, whether you dream of doing it or not, is the cornerstone of the woman's movement. . . . if you can't control your own body you can't control your future, to the degree that any of us can control futures. 4

Finally, pressure for abortion reform increased because abortion was already a reality for millions of American women. Although the number of illegal abortions can only be estimated, studies have concluded that in the years before legalization in 1973, there were approximately 1 million illegal abortions performed each year in the United States. 5 Also, many in the medical profession favored legalization of abortion, believing medical judgments should control the decision. Between 1967 and 1970, abortion reform legislation was enacted in twelve states, including Colorado (the first), New York, California, Hawaii, North Carolina, Alaska, and Georgia. Although they differed, most comported with the Model State Abortion Law drafted by the American Law Institute (ALI) in 1959, permitting abortions for victims of rape or incest, in cases of severe fetal deformity, or when the woman's life or health was threatened. Going beyond the ALI model, the New York law allowed abortion for any reason during the first twenty-four weeks of pregnancy. 6 By 1973, although a number of states offered women somewhat easier access to abortion, some, such as Texas, still banned all abortions except to save the woman's life. In Georgia, abortions were permitted when the pregnancy endangered the life of the woman or would lead to serious and permanent health issues. When the Texas and Georgia laws were challenged in the Supreme Court in Roe v. Wade7 and Doe v. Bolton,8 the Court was forced to determine whether they violated the right to privacy guaranteed by the U.S. Constitution.

Establishing a Right to Privacy The foundation for the Supreme Court's decision in Roe and Doe was laid in two earlier decisions: Griswold v. Connecticut,9 decided in 1965, and Eisenstadt v. Baird,10 decided in 1972. In Griswold, in a 7 to 2 vote, the Court invalidated a Connecticut law prohibiting the use of contraceptives by married couples on the grounds that various amendments to the Constitution ere-

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ated a "zone of privacy" that was protected from intrusion by the government. Because the marital relationship lies within that zone, a law forbidding the use of contraceptive devices constituted an unconstitutional invasion of that privacy. A few years later, in Eisenstadt, the Court struck a Massachusetts law prohibiting the distribution of contraceptive devices or materials to single persons. Speaking for the majority, Brennan stated that a married couple's privacy, established in Griswold, belonged to single persons as well. Perhaps laying the foundation for Roe less than a year later, he explained that "if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." 1 1

The Right to Abortion In Roe, the Court was asked to decide whether the privacy right articulated in Griswold extended to the right to decide whether to terminate a pregnancy. The case arose when Norma McCorvy, an unmarried, pregnant carnival worker, sought an abortion in her home state of Texas in 1969. McCorvy consulted a doctor, who informed her that abortion was illegal in Texas and suggested she might try going to another state. With no money to travel, she sought an attorney to arrange a private adoption and was referred to two Dallas-Fort Worth attorneys, Linda Coffee and Sarah Weddington. It was a fortuitous meeting because Coffee and Weddington had been looking for a plaintiff to challenge the Texas abortion law in federal court. They took her case, arguing that restricting the right to abortion unconstitutionally infringed on a woman's fundamental right to privacy. 12 Speaking for the 7 to 2 majority, Blackmun agreed that the right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 1 3 But although the right is fundamental, it is not absolute, and a woman may not "terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses." 1 4 He emphasized that the woman's right must be balanced against the state's interest in regulating abortions.

The State's Compelling Interests Texas advanced two reasons to justify its abortion law: first, it safeguarded the woman from the medical risks of an abortion; second, it protected prenatal life. 1 5 Agreeing these were important, the Court emphasized that in the past, it had held that "where certain 'fundamental' rights are involved . . . [a] regu-

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lation limiting these rights may be justified only by a 'compelling state interest' . . . and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake." 16 Roe's attorneys argued that no compelling interest justified the state's virtual ban on abortions, and the government countered that protecting prenatal life is always a compelling reason to prohibit abortion in the absence of a threat to a woman's life. The Supreme Court rejected both views. To support its claim, Texas contended that as a person, the fetus is protected by the Fourteenth Amendment, but the Court was not persuaded because there was no evidence that the framers of the Constitution had ever contemplated protection of the unborn. Texas also maintained that because life began at conception, its compelling interest in prenatal life arose at that point and continued throughout the pregnancy. Citing the dispute among religious, medical, and philosophical perspectives about when life begins, the Court proclaimed itself unable to define the onset of life. It refused to accept the state's unproven theory of life as a justification for state abortion restrictions. Although it rejected the state's claim that its interests in maternal health and fetal life were compelling throughout the pregnancy, the Court acknowledged that each became compelling at a specific stage. This led to the adoption of the trimester approach, the principle that abortion regulations must vary with the stage, or trimester, of pregnancy. Because abortion carries almost no medical risk when performed in the first three months of pregnancy, the state has no compelling reason to regulate the procedure beyond requiring the physician to be licensed. During the first trimester, Blackmun said, "the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State." 17 Although the Court would later retreat from this sweeping statement, with about 90 percent of abortions performed during the first trimester, Blackmun's avowal had enormous consequences for a woman's abortion decision. 18 The state's "important and legitimate interest" in maternal health becomes compelling at "approximately the end of the first trimester." During the second trimester, the state "may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health." 19 A regulation specifying the place where abortions may be performed (that is, in hospitals or clinics) and by whom would be permissible according to this standard. Last, the "State's important and legitimate interest in potential life" becomes compelling at viability, when "the fetus . . . presumably has the capability of meaningful life outside the mother's womb." 2 0 The Court located viability at about seven months (twenty-eight weeks) but noted that it may

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occur even earlier, possibly at twenty-four weeks. In protecting the fetus during the last trimester, the state "may go so far as to proscribe abortion . . . except when it is necessary to preserve the life or health of the mother." 21 After applying this standard to the Texas abortion law, the Court declared it unconstitutional. A law that permits abortion only to save a woman's life, makes no distinctions among the stages of pregnancy, and acknowledges no competing interests with the state's interest in fetal life violates the Fourteenth Amendment's due process clause by interfering with her right to privacy. Hospital and Physician

Approval

22

In Doe v. Bolton, the Court determined the constitutionality of Georgia's abortion statute. The Georgia law exempted certain "necessary" abortions from criminal penalties: when the pregnancy endangered the woman's life or would cause serious and permanent injury; when the fetus would be born with a "grave, permanent, and irremediable mental or physical defect"; or when the pregnancy resulted from rape. In addition to the woman's physician, two other doctors had to certify in writing, after examining her, that the abortion was "necessary." All abortions had to be performed in licensed and accredited hospitals and required advance approval from at least three members of the hospital's abortion committee. The law authorized hospitals to deny admittance to abortion patients and allowed physicians or staff members to refuse to participate in abortions. It also specified that the woman seeking the abortion must be a Georgia resident. 23 Applying the standard developed in Roe, with the same 7 to 2 majority, the Court held that states could not require all abortions to be performed in hospitals because there was no compelling interest in first trimester abortions, that the hospital-committee approval and two-physician requirement served no legitimate state interest and "unduly" restricted a woman's right to privacy, and that the residency requirement abridged the constitutional right to travel and was irrational as well. 24 The Dissents in Roe and Doe Rehnquist disputed the majority's conclusion that abortion is a fundamental right, entitled to strict scrutiny and deserving of the compelling state interest test. Conceding that the right to privacy is a liberty protected by the Fourteenth Amendment, he emphasized that the "liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law." The traditional test for assessing the constitutional bounds of economic or social legislation, such as an abortion regulation, is whether the law is rationally related to a "valid state objective," that is, minimal scrutiny. 25 By

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227

applying a lower level of scrutiny, he said, the Court would appropriately entrust abortion policy to the judgments of state legislators. Also dissenting, White accused the majority of allowing a woman to terminate her pregnancy for almost any reason "or for no reason at all" and without having to demonstrate any risk to her own health. Before viability, he said, the Court shows more concern for "the convenience, whim, or caprice of the putative mother . . . than [for] the life or potential life of the fetus." 2 6 Like Rehnquist, he charged the Court with creating a new constitutional right for pregnant women and said he found no constitutional justification for usurping the power of elected state representatives to decide how to protect human life.

Legislative Reactions to Roe Reacting to Roe, Republican Senator Orrin Hatch of Utah sponsored a constitutional amendment that came within eighteen votes of the necessary twothirds in the Senate in 1983. The amendment stated that "a right to abortion is not secured by this Constitution." 2 7 Additionally, almost 200 bills were introduced in state legislatures, and within two years after Roe was decided, thirtytwo states enacted a total of sixty-two abortion-related laws. The laws revolved around seven categories: performance regulations (where abortions could be performed and by whom), informed consent requirements, record keeping and reporting requirements, advertising prohibitions, funding restrictions (state and federal), conscience laws (allowing hospitals or physicians to refuse to perform abortions), and fetal protection. 2 8 Largely aimed at second trimester abortions, most of these laws were quickly challenged in federal court. In June 1974, the Missouri General Assembly enacted a regulation predominantly aimed at second trimester abortions. 2 9 The most significant features of the law were the requirement that second trimester abortions be performed in hospitals and the ban on the use of saline amniocentesis method of abortion, the most popular second trimester abortion procedure at the time. 3 0 Three days after the act went into effect, Planned Parenthood and two Missouri physicians challenged it in federal court on behalf of themselves and their women patients. 3 1 When the case reached the Supreme Court, the Court indicated that it had become more divided on the issue of abortion rights than it had been in Roe. In a 5 to 4 opinion, in Planned Parenthood of Central Missouri v. Danforth,32 the Court rejected the state's claim that its regulation furthered maternal health. Although there were other second trimester abortion procedures, they were not generally available, and the Court found it illogical to ban a safe abortion procedure and thus force women to undergo a more dangerous method—under the guise of protecting their health.

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ELUSIVE EQUALITY

Parental Consent Laws Shortly after Roe, states began to impose restrictions on a minor woman's access to abortion, usually by requiring the consent of one or both of her parents. 3 3 In a series of cases beginning in 1976, the Court was faced with the need to decide the parameters of the minor's right to privacy, by weighing it against the parents' interest in the welfare of their child and the state's own interest in the health of the minor and the integrity of the family. 3 4 In addition to regulating the saline abortion method at issue in Danforth, the Missouri law required an unmarried woman under eighteen to obtain her parent or guardian's written consent, unless a licensed physician certified that the abortion was a lifesaving measure. A married woman needed her husband's consent. Known as a "blanket veto," this law took the decision away from the young woman, placing it instead with her parents or husband. In another 5 to 4 vote, the Court struck both consent provisions. Recalling that the abortion decision is between the physician and the woman, the Court held that "the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent." 3 5 Conceding that parents have an "independent interest" in the termination of their minor daughter's pregnancy, the Court believed the daughter's right to privacy should prevail. Missouri argued that the statute "safeguarded] the family unit" and promoted "parental authority," but Blackmun doubted it accomplished either goal. As part of the majority, Stewart and Powell indicated their concerns about how much autonomy a minor should be allowed to have in deciding whether to have an abortion. They stressed that their objection to the parental consent provision stemmed from its "absoluteness" and that a law that included a procedure for allowing a child to seek a judge's consent instead of the parent's (a "judicial bypass procedure") would be acceptable to them. Dissenting again, White candidly admitted that the statute did not only aim at furthering a parent's interest in a child. It was designed, he said, to support a pregnant minor's right "to decide 'whether or not to terminate her pregnancy.'" There is nothing novel, or unconstitutional, he insisted, when a state seeks "to protect children from their own immature and improvident decisions." 3 6 Stevens also dissented from the majority's stand on parental consent because, in his view, the state's interest in the welfare of minors entitles it to compel them to obtain the "advice and moral support of a parent." Unlike the other dissenters, however, Stevens did not view the law as an anti-abortion measure. He assumed that some parents will "advise" abortions that should not be performed and others will "prevent" those that should be performed. In his view, "the overriding consideration is that the right to make the choice be exercised as wisely as possible." 3 7

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229

Judicial Bypass Procedures With the "blanket" veto imposed by the Missouri law forbidden, states began to add a judicial bypass procedure to their consent laws. Under such a provision, a minor who was unable to secure her parent's consent (or unwilling to ask) could seek consent from a judge. Under most bypass procedures, a teenager had to prove that she was sufficiently mature to make her own decision or that an abortion was in her "best interests." The case that best clarified the Court's view on the judicial bypass process was Bellotti v. Baird,38 decided in 1979. It revolved around a 1974 Massachusetts law requiring parental consent for unmarried minors under eighteen. If one or both parents refused to consent, a judge could, after a hearing, supply the necessary permission. If a parent had died or deserted the family, the other's consent was sufficient. The law specified criminal penalties for physicians who performed abortions without the requisite consent. When the case was presented to the Supreme Court, the high court was sharply divided. 3 9 Although there was only one dissent, there was no majority opinion for the Court. Powell, writing for a plurality of four, recognized the state's important interest in furthering the "guiding role of parents in the upbringing of their children." 4 0 But he believed that the state must accommodate a minor's right to privacy by creating an alternate route for obtaining consent; it must allow a young woman to demonstrate that she is mature enough to make an abortion decision on her own or that the abortion is in her best interests. Powell articulated three criteria that became the standard for determining a proper judicial bypass procedure: it must allow a minor to show either that she is mature enough to decide to have an abortion or, if she is not, that an abortion would be in her best interests; it must ensure her anonymity; and it must allow expedited appeals. 4 1 Stevens's concurring opinion simply found the law unconstitutional because, like the Missouri law in Danforth, it subjected a minor's abortion decision to an "absolute veto" by a third party. In all cases, he said, regardless of how mature she is, either her parents or a judge controlled the abortion decision.

Parental Notice Laws In many states, the battle over abortions for minors shifted from consent requirements to notice provisions. Under notice laws, physicians and hospitals were required to notify parents of pregnant teenagers seeking abortions. The first case to challenge the constitutionality of a notice law was H. L. v. Matheson,42 a 1981 decision. Here, the Court ruled on a Utah statute requiring a physician to "notify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor, or the husband of the woman, if she is married." 4 3 There was no judicial bypass procedure.

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The law was initially challenged in state court by a fifteen-year-old pregnant and unmarried teenager living at home with her parents, who wanted to obtain an abortion without notifying them. Limiting its ruling to the facts of the case, the Supreme Court held that a state may require a physician to notify the parents of an immature and dependent minor seeking an abortion and is not obligated to provide a bypass procedure for such teenagers. 4 4 In a 6 to 3 opinion, with Burger announcing the decision, the Court held that the law did not establish veto power in the parents nor did it deter a minor from seeking an abortion. Instead, it furthered the state's interest in promoting the family unit and protected the teenager by allowing her parents to supply her physician with her medical records, as well as her emotional and psychological history. The Court concluded that "the Utah statute is reasonably calculated to protect minors in appellant's class by enhancing the potential for parental consultation concerning a decision that has potentially traumatic and permanent consequences." 4 5 Marshall dissented, arguing that the notice requirement unduly burdened a minor's right to abortion. He denied that the statute served Utah's asserted purpose of providing relevant medical information to physicians because, although it mandated that they notify a minor's parents, it did not require the parents to communicate medical history or other information to the physician. A physician placing a telephone call to the parents a few minutes before the abortion was scheduled to be performed would satisfy the statute. He also contended that the statute was "plainly overbroad." Parental consultation, he said, is inappropriate when incest or other physical abuse is involved or when a teenager is afraid that the notice would prevent her from obtaining the abortion she seeks. He doubted that a parental notification requirement would strengthen the family, and in any event, he argued, a state's desire to establish parental authority should not be permitted to override a child's fundamental right to privacy as guaranteed by the Fourteenth Amendment. Funding Limits Another area in which the Court was asked to approve governmental restrictions on the right to abortion was in the area of public funding. Here, the issue was not whether a woman could secure an abortion but whether the government had to pay for it if she could not afford it. This issue had arisen because Roe "recognized the constitutional privacy right in a negative way—limiting state power to forbid abortions—rather than creating a positive state obligation to implement abortion." 4 6 Many states had reacted to the liberalization of abortion rights reflected in Roe by limiting payment for abortion expenses in their state medical assistance (Medicaid) programs for indigent women. Medicaid is a joint federalstate program administered by the states and subject to the rules of Title XIX

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of the Social Security Act. 47 It was estimated that in 1977, almost 3 million women who were eligible for Medicaid assistance were at risk for having an unwanted pregnancy. 48 According to Senator Birch Bayh, Democrat from Indiana, restrictions on abortion funding under Medicaid meant that society was "saying that those who have the resources to enjoy their constitutional right to decide to have an abortion may do so. Those who do not have the financial resources have the constitutional right, but," he added, "a right without the ability to use it is absolutely worthless." 49 On the contrary, said Senator John Stennis, Democrat from Mississippi, the restrictions meant that government would not be "spending millions of tax dollars for the unnecessary slaughter of innocent unborn children." 50 Most lower federal courts had found the. funding regulations illegal 5 1 On June 20, 1977, in a trio of cases—Beal v. Doe,52 Maher v. Roe,53 and Poelker v. Doe 54 —the Supreme Court revealed its approach to public funding of abortions. The issue in these cases was whether a state's interest in childbirth justified its refusal to fund a medically unnecessary (nontherapeutic) abortion. Abortion rights advocates charged that states were misusing their authority over medical assistance programs to assert their opposition to abortion, forcing poor women to have unwanted children by denying them access to legal and safe abortions. They argued that the funding regulations were clearly aimed at discouraging abortions and contended that withholding funds for poor women's abortions restricted access to abortion as effectively as the Texas law struck down in Roe.55 In Beal, a Pennsylvania case, the Court held that Title XIX allowed states to fund only "medically necessary" abortions. Speaking for the Court, Powell noted that it was "hardly inconsistent with the objectives of the Act [Title XIX] for a State to refuse to fund unnecessary—though perhaps desirable— medical services." 56 Acknowledging that abortions were cheaper and safer than childbirth, Powell held that a state's "strong and legitimate interest" in childbirth justified its refusal to fund an unnecessary abortion. In his dissent, Brennan predicted that the majority opinion "can only result as a practical matter in forcing penniless pregnant women to have children they would not have borne if the State had not weighted the scales to make their choice to have abortions substantially more onerous." 57 Marshall also dissented, accusing the state of abusing its funding power. "It is all too obvious," he charged, "that the governmental actions in these cases, ostensibly taken to 'encourage' women to carry pregnancies to term, are in reality intended to impose a moral viewpoint that no State may constitutionally enforce." He contended that anti-abortionists were using "every imaginable means to . . . impose their moral choices upon the rest of society"; the result, he predicted, will be that nearly all poor women will be denied access to "safe and legal abortions." 58 Maher, the most important of the three cases, was the only one decided on constitutional grounds. The plaintiffs claimed that the Connecticut regula-

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tion restricting Medicaid funds to "medically necessary" abortions violated the equal protection clause by differentiating among women on the basis of wealth. 5 9 Rejecting this argument, Powell explained that the regulation places no obstacles—absolute or otherwise—in the pregnant woman's path to an abortion.... The State may have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it more difficult—and in some cases, perhaps, impossible—for some women to have abortions is neither created nor in any way affected by the Connecticut regulation.

Although he admitted that the Court's ruling meant it likely that a woman living in poverty may be more unlikely to have an abortion, Powell insisted that the decision "signals no retreat from Roe." 6 0 The last of the trio, Poelker, arose from a policy adopted by the city of St. Louis, Missouri, that banned elective abortions in public hospitals. In a brief unsigned opinion, echoing Maher, the majority held that public hospitals are not required to provide or even permit elective abortions. The Court stressed that the policy had been adopted by the people's representatives in the city council and could be reversed if a majority of people were opposed to it. Again, the Court ruled that it was permissible for the government to express its preference for childbirth over abortion and provide funds to implement its policy preferences. In a press conference following these rulings, President Carter defended the Court, saying, "There are many things in life that are not fair, that wealthy people can afford and poor people can't. But I don't believe that the federal government should take action to try to make those opportunities exactly equal, particularly when there is a moral factor involved." 6 1 By the end of 1978, only ten states and the District of Columbia were voluntarily paying for abortions for poor women. 6 2 Congress entered the policymaking arena on Medicaid funding for abortions by enacting the Hyde amendment, named after Representative Henry Hyde, Republican from Illinois, an abortion opponent who made no secret of the fact that the law was aimed at restricting access to abortions. 6 3 In 1977, Hyde stated, "I certainly would like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle-class woman, or a poor woman. Unfortunately, the only vehicle available is the . . . Medicaid bill." 6 4 A year later, his cosponsor, Representative Robert Bauman, Republican from Maryland, said, "I think without the availability of Federal funds there would definitely be a decrease in abortions. That is what we seek." 6 5 The first attack on the Hyde amendment came when Planned Parenthood of New York City filed suit in federal court. The lower court judge, asserting

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that his decree affected the Hyde amendment nationwide, ordered all states to pay for "medically necessary" abortions. 6 6 On appeal to the Supreme Court, his order was vacated, and the case was sent back for rehearing in light of the June 1977 decisions. 6 7 On January 15, 1980, the lower court held that the Hyde amendment violated First and Fifth Amendment rights. On appeal that same year, in Harris v. McRae,68 Stewart announced the opinion for the 5 to 4 Court. He compared the Hyde amendment to the law upheld in Maker, stressing that neither interfered with a woman's constitutionally protected right to an abortion. Echoing Maker, he explained that although government may not place obstacles in the path of a w o m a n ' s exercise of her freedom of choice, it need not r e m o v e those not of its own creation. . . . T h e financial constraints that restrict an indigent w o m a n ' s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. 6 ^

As in Maker, the Court rejected the equal protection challenge, holding that Congress did not discriminate against poor women by refusing to pay their abortion expenses. The dissent argued that the Hyde amendment imposed a moral code on poor women only and denied their ability to exercise their right to privacy just as effectively as the laws had done in the days before Roe. Marshall predicted that women seeking abortions would be forced to resort to dangerous methods to secure them; he contended that the majority opinion was a "retreat" from Roe and a "cruel blow to the most powerless members of our society." 7 0

A Frontal Attack on Roe In February 1978, the city council of Akron, Ohio, enacted the most restrictive set of abortion regulations yet devised. 7 1 The ordinance, authored by the counsel for the Ohio Right to Life Society, who later argued the case before the Supreme Court, contained seventeen provisions regulating the performance of abortions, including a variety of consent and notice requirements affecting first trimester abortions. Perhaps the most important section required all abortions after the first trimester to be performed in hospitals rather than clinics or doctors' offices. Because of the inaccessibility of hospital abortions and the cost involved, this provision significantly reduced access to abortions for Ohio women. The sections on informed consent and waiting periods required a physician to obtain a woman's written consent and wait twenty-four hours after obtaining the consent before performing an abortion, notify the father of her child and obtain his consent, and secure the consent of her parents if she were

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a minor. To ensure that her consent is "informed," the doctor must describe to her "in detail the anatomical and physiological characteristics of the particular unborn child at the gestational point of development at which time the abortion is to be performed," explaining that "the unborn child is a human life from the moment of conception" and can feel pain. The doctor's lecture, which had to be personally delivered, must indicate that an "abortion is a major surgical procedure, which can result in serious complications" and inform her that an abortion "may worsen any existing psychological problems she may have, and can result in severe emotional disturbances." 72 The ordinance was immediately challenged by the ACLU on behalf of an Akron physician and several abortion clinics. Powell announced the 6 to 3 opinion for the Court in City of Akron v. Akron Center for Reproductive Health73 in 1983. Substantially reaffirming Roe, the ruling revealed that some cracks had developed in the edifice constructed by Roe ten years earlier. Especially heartening to pro-choice advocates was Powell's seeming rejection of the efforts by Reagan's solicitor general, Rex Lee, to urge the Court to adopt a less rigorous form of scrutiny for abortion regulations. 74 Powell reiterated the Court's commitment to a strict scrutiny approach, insisting that states that seek to limit the right to choose abortion must offer a compelling reason for the restrictive regulation. Hospitalization for Second Trimester Abortions The Court found that Akron's hospital requirement created a "significant obstacle" to a woman seeking an abortion; the cost was more than double, and Akron's hospitals rarely performed second trimester abortions. Although Akron conceded that its regulation erected a barrier for a pregnant woman, it defended the law as a reasonable health measure. But Powell explained that the hospital requirement, like any second trimester regulation, is constitutional "only if it is reasonably designed" to advance the state's compelling interest in maternal health, and a regulation that "depart[s] from accepted medical practice" cannot reasonably advance the state's interest. 75 Under this principle, a regulation encompassing the entire trimester may be presumptively unreasonable. At the time Roe was decided, health considerations had prompted the American Public Health Association (APHA) and the American College of Obstetricians and Gynecologists (ACOG) to recommend that all abortions performed during or after the second trimester be performed in hospitals. Based on these views, Roe had cited a hospitalization requirement as an example of an acceptable second trimester regulation. In the intervening decade since Roe, however, second trimester abortions (at least up to sixteen weeks) had been safely performed in abortion clinics, making it unnecessary to go to a full-service hospital. By 1983, the two medical organizations had abandoned their recommendation for hospital abortions during the first six-

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teen weeks of pregnancy. 7 6 And because the Akron regulation now "departed from accepted medical practice," the Court found it unconstitutional because it was unreasonable for Akron to require all second trimester abortions to be performed in hospitals. 7 7

Informed Consent The twenty-four-hour waiting period and informed consent requirements of the Akron ordinance regulated first trimester abortions, as well as those occurring later in the pregnancy. Despite the Court's statement in Roe that first trimester abortions were mostly beyond state regulation, Powell explained in City of Akron that first trimester abortion regulations may be valid when they "have no significant impact on the woman's exercise of her right... [and are] justified by important state health objectives." 7 8 But in this case, the Court found that the waiting period led to scheduling delays that increased a woman's risk and did not further a legitimate state interest. With appropriate counseling and informed written consent, the Court held, no purpose is served by an arbitrary twenty-four-hour delay. Attorneys for the city characterized the mandatory lecture to the pregnant woman as an attempt to ensure that her consent is informed. The Court found instead that the information, "a parade of horribles," was really intended to influence her choice against an abortion. 7 9 And by specifying the content of the warning, the Court believed that the city was also intruding on the physician's discretion. Moreover, no proof had been presented that others could not deliver the lecture as well as the doctor.

O'Connor's

Dissent

Many eyes were on O'Connor. City of Akron was her first abortion case, and prior to her confirmation hearings, she had been attacked by anti-abortion groups who feared that her views on reproductive rights diverged from theirs. Members of Congress questioned her very closely about her views on Roe. Her opinion in City of Akron suggested that the fears of the anti-abortion forces had been largely unfounded. Her dissent attacked Roe's trimester approach as technologically outmoded. She characterized it as "unworkable" because medical knowledge was simultaneously advancing the state's interest in potential life by moving the point of viability to an earlier stage in the pregnancy and delaying the state's interest in maternal health by making abortions safer at a later stage in the pregnancy. She even suggested that viability might move up to the first trimester. 80 These technological changes, she contended, meant the Roe framework was "on a collision course with itself." 8 1 O'Connor argued it was inappropriate to divide the state's interests into trimesters because the state has a compelling interest in maternal health and

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fetal life throughout the pregnancy. "Potential life," she said, "is no less potential in the first weeks of pregnancy than it is at viability or afterwards. At any stage in pregnancy," she continued, "there is the potential for human life." 82 In deciding these cases, she urged the Court to limit itself to one question only: is the regulation "unduly burdensome" on a pregnant woman's right to abortion? If the regulation does not "unduly" burden her abortion decision, O'Connor would apply minimal scrutiny and only require that the state show the law is rationally related to a legitimate purpose. She would reserve strict scrutiny for regulations that impose an undue burden on a woman's right to abortion. Seeking to restrain the Court's interference with state lawmaking, she urged it to pay "careful attention" to a state legislature's judgment on whether the regulation is unduly burdensome, defined by her as "absolute obstacles or severe limitations" to abortions, not merely regulations that "inhibit" them. 83 She judged none of the provisions of the Akron ordinance as unduly burdensome and, applying minimal scrutiny, found each rationally related to a legitimate state interest and constitutionally acceptable.

Another Assault on Roe The drama began anew in 1985, when the Supreme Court agreed to review the Pennsylvania and Illinois abortion laws. The Illinois case was dismissed on procedural grounds, but despite procedural irregularities in the Pennsylvania case, the Court chose to rule on it. 84 After the Court struck its earlier abortion law, Pennsylvania enacted another, the 1982 Pennsylvania Abortion Control Act. Similar to the Akron ordinance, this law was also the product of an anti-abortion group. It contained provisions on second trimester abortions, informed consent, the physician's responsibilities, record keeping and reporting, a twenty-four-hour waiting period, public funding, and parental consent for minors. 85 On June 11, 1986, in Thornburgh v. American College of Obstetricians and Gynecologists,86 the last major abortion case decided by the Burger Court, the Court announced its decision on informed consent, the physician's duty, and reporting requirements. Blackmun delivered the 5 to 4 majority opinion, frequently referring to the anti-abortion intent of the statute. 87 Informed Consent The law required seven kinds of information to be given to the woman, five by the physician personally. Along with the usual medical information about risks associated with the procedure, a doctor had to tell a woman "that there may be detrimental physical and psychological effects which are not accu-

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rately foreseeable." The law also required a physician to inform her that she might be entitled to financial support from the state and the father of her child. Additionally, the woman had to read (or be read) a card telling her that adoption agencies were available to help her and that she was "strongly urged" to contact them. The material had to describe the "probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including any relevant information on the possibility of the unborn child's survival." 8 8 After receiving the information, she was required to wait twenty-four hours before she could legally give consent. The Court found that, like the "parade of horribles" in City of Akron, the informed consent provision of the Pennsylvania law was intended to deter abortions. It seemed "to be nothing less than an outright attempt to wedge the Commonwealth's message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician." 8 9 Rather than ensuring informed consent, the information would likely increase a woman's anxiety and tension about the upcoming procedure and harm the doctor-patient relationship. Furthermore, because much of the information was not relevant to consent, it served "no legitimate state interest." The Court concluded that these provisions were designed to prevent a woman from exercising her choice freely rather than to aid her in making a choice. And "states are not free under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies." 9 0

The Physician's Duty The law required physicians, under the threat of losing their licenses, to file detailed reports of the abortion, including the basis for their determination that the fetus was not viable. Although the reports were not supposed to become public records, they were to be made available for public inspection and copying. The woman's name would not be part of the record, but because of the breadth of information called for, it would be possible to identify her. Blackmun concluded that the information required in the Pennsylvania law exceeded health-related concerns and served no legitimate interest. This reporting regulation was different from the one in Danforth, he said, because the Missouri law kept the records confidential except for public health officers and was designed for statistical purposes only. The law also instructed a physician performing an abortion on a viable fetus to exercise the same degree of care he or she would in the case of a child intended to be born alive and not aborted. The physician was instructed to use a technique that "would provide the best opportunity for the unborn child to be aborted alive unless . . . [it] would present a significantly greater medical risk to the life or health of the pregnant woman." 9 1 The penalty for violating

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ELUSIVE EQUALITY

the law was a possible seven-year prison sentence and a $15,000 fine. The Court found this provision unconstitutional because it promoted an impermissible tradeoff between a woman's health and fetal life. Another section required the presence of a second physician at an abortion after viability to preserve the child's life, a provision the Court had upheld in a previous case because that statute contained an "implicit" exception to prevent an increased risk to a woman's health if an abortion were delayed to await a second physician. But late abortions tend to be emergency situations, and the Pennsylvania law provided no exception for emergencies when the woman's life could be lost waiting for the second physician to appear. Instead, the Court found that "all the factors are here for chilling the performance of a late abortion, which, more than one performed at an earlier date, perhaps tend to be under emergency conditions." 92 Blackmun ended with an impassioned plea for the preservation of the abortion right. He acknowledged that abortion "raises moral and spiritual questions over which honorable persons can disagree sincerely and profoundly." Yet, he insisted that few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision— with the guidance of her physician and within the limits specified in Roe— whether to end her pregnancy. A woman's right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all. 9 -'

The Thornburgh

Dissent

In dissent, Burger accused the majority of far exceeding the bounds of Roe. It is not possible, he said, that the Court would forbid a state from giving a woman "accurate medical information" about the procedure she is about to undertake. How can the Court refuse to allow the state to impose conditions for obtaining consent for a medical procedure, he asked rhetorically? Moreover, he stressed, the second physician requirement was merely a means of realizing the state's compelling interest in fetal life after viability. Pennsylvania was entitled to assume, he said, that the Court meant what it said in Roe that the state has a legitimate concern in a viable fetus. O'Connor devoted the bulk of her dissent to attacking the procedural irregularities of the decision. But more important, she continued to advocate the undue burden standard, which, she stressed, the Court had relied on in past cases. She accused the Court of going "well beyond distortion" of that standard. "It [now] seems," she said, "that the mere possibility that some women will be less likely to choose to have an abortion by virtue of the presence of a particular state regulation suffices to invalidate it." 94

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Although O'Connor indicated in City of Akron that she would apply a stricter scrutiny to legislation that unduly burdened a woman's decision to abort, her dissents in City of Akron and Thornburgh failed to indicate what kind of regulation she would regard as an undue burden. With her acceptance of the numerous regulations at issue in both cases, it appeared her threshold was a high one. White's was the major dissent in Thornburgh. He urged the majority to acknowledge that Roe was wrongly decided and to overrule it. He insisted that abortion is not a fundamental right. But, he added, even if it were, the Pennsylvania law is within constitutional bounds because it furthers the state's compelling interest in the fetus before and after viability. The right to personal autonomy recognized in cases such as Griswold and Eisenstadt does not extend to abortion, he contended. The decision to abort a fetus is distinct, he said, from the decision not to conceive it in the first place. Because a life is involved, a woman's decision to abort is "sui generis, different in kind from other decisions the Court has protected under the rubric of personal or family privacy and autonomy." 95 He charged that by identifying abortion as a fundamental right, the majority was infusing the Constitution with its own values. Reiterating that the primary responsibility for abortion policy should be left to the states, he urged the Court to defer to the views of state legislators when assessing abortion regulations. White argued that Pennsylvania's informed consent regulation, unlike the City of Akron "parade of horribles," merely represented the state's attempt to present truthful information to a woman considering an abortion. He defended the reporting requirements because they furthered the state's medical knowledge of fetal and maternal health and believed the state to be within its authority to require a physician to preserve the life of a viable fetus. If a state can prohibit an abortion entirely during the last trimester except to save a woman's life, surely, he said, it can compel a procedure that gives the fetus the greatest chance of survival.

Conclusion Women's rights groups achieved a major victory when the Supreme Court declared in 1973 that the constitutional right to privacy guaranteed a woman's choice to have an abortion. The right was not absolute, though: the Court struck a balance between the woman's control over her body and the state's interest in regulating the abortion procedure. The Court crafted a compromise, creating a trimester framework in which the state's interest was weighed against the woman's during each stage of the pregnancy. As a result, as the pregnancy progressed, the state was permitted greater control over the woman's decision.

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ELUSIVE EQUALITY

Unwilling to accept a woman's right to choose, anti-abortion activists lobbied the state legislatures and Congress, seeking to have their elected officials undo the Court's ruling by imposing restrictions on abortion rights. Over the next ten to fifteen years, the Court generally refused to allow the government to curb abortion rights. However, although it preserved the right to choose for women who could afford to pay for their abortions, it was unwilling to offer the same protection to poor women. In a series of cases in the late 1970s, the Court refused to order states to pay for abortions for women who relied on public aid for their medical care, ruling it was permissible for the state to promote its preference for childbirth through its Medicaid program. States devoted a great deal of effort to restricting the abortion rights of young women by enacting parental consent laws and then parental notice laws. With one exception, in the case of a blanket veto, the Court accepted the state's claim that its interest in the young woman's welfare and in preserving the family unit justified the parental involvement statute, notwithstanding the logical inconsistency behind the state's argument that the minor was too young to decide whether to have an abortion yet old enough to bear a child. The controversy in these cases revolved around the adequacy of the provision allowing the young woman to bypass parental involvement by turning to the courts. Over time, the politics of abortion have affected the courts as well as the other institutions of government. Although for the most part the Court was sympathetic to women's privacy claims, during the 1980s, with the appointment of Reagan-Bush justices, it became less committed to abortion rights. By 1986, with most of the Reagan-Bush appointees in place—and Rehnquist assuming the position of chief justice—it was doubtful that the pro-choice majority that had been in place since 1973 would continue to prevail. Reproductive rights could no longer be taken for granted.

Notes 1. Kristen Luker, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984), pp. 1-2. For more recent accounts of abortion politics, see James R. Bowers, Pro-Choice and Anti-Abortion (Westport, Conn.: Praeger Publishers, 1994); Ted G. Jelen and Marthe A. Chandler, eds., Abortion Politics in the United States and Canada (Westport, Conn.: Greenwood Press, 1994); Mark A. Graber, Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics (Princeton: Princeton University Press, 1996). 2. During this time, however, the Court refused to order the government to pay for abortions, essentially reserving the right to terminate a pregnancy to women who could afford it. 3. Hyman Rodman, Betty Sarvis, and Joy Walker Bonar, The Abortion Question (New York: Columbia University Press, 1987), p. 5. 4. Luker, Abortion and the Politics of Motherhood, p. 97.

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5. Rodman, Sarvis, and Bonar, The Abortion Question, p. 23. 6. One of the most important sources of information on early abortion policy in the United States is James C. Mohr, Abortion in America (Oxford: Oxford University Press, 1978). See also Luker, Abortion and the Politics of Motherhood; Marian Faux, Roe v. Wade (New York: Mentor Books, 1988); Eva Rubin, Abortion, Politics, and the Courts (Westport, Conn.: Greenwood Press, 1987), for an overview of U.S. policy before 1973. 7. 410 U.S. 113 (1973). 8 . 4 1 0 U.S. 179 (1973). 9. 381 U.S. 479 (1965). This was the first case in which the Court formally declared there was a constitutional right to privacy. 10. 405 U.S. 438 (1972). 11. Eisenstadt, 405 U.S. at 453 (emphasis in the original). 12. The lower court ruled in her favor, finding that a woman's right to terminate a pregnancy was constitutionally protected. But although it declared the law unconstitutional, it refused to order the state to cease enforcement. Coffee and Weddington were forced to go to the U.S. Supreme Court for a final victory. 13. Roe, 410 U.S. at 153. The district court grounded its belief in the woman's right to privacy in the Ninth Amendment; the Supreme Court found it "in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action." 14. Roe, 410 U.S. at 153. 15. The Court first resolved the procedural issues in the case, primarily whether the mootness doctrine compelled dismissal. The federal mootness doctrine requires a live controversy when the case is reviewed by a court. But because the litigation process will almost always outlast a pregnancy and because pregnancy will "always be with us," the Court concluded that it "provides a classic justification for a conclusion of nonmootness." Roe, 410 U.S. at 125. 16. Roe, 410 U.S. at 155. As with a suspect category in equal protection analysis, when a fundamental right is involved, the state must offer a compelling reason to restrict it. Fundamental rights arise out of the guarantee of liberty protected by the due process clause of the Fourteenth Amendment. 17. Roe, 410 U.S. at 163. In Connecticut v. Menillo, 423 U.S. 9 (1975), the Supreme Court upheld a Connecticut statute requiring all abortions to be performed by licensed physicians. In Sendak v. Arnold, 429 U.S. 968 (1976), the Supreme Court affirmed an Indiana three-judge district court ruling that struck a statute requiring first trimester abortions to be performed by physicians in hospitals or other licensed facilities. 18. Paul Reidinger, "Will Roe v. Wade Be Overruled?" ABA Journal (July 1988), p. 68. 19. Roe, 410 U.S. at 163. 20. Roe, 410 U.S. at 163. 21. Roe, 410 U.S. at 163-164. 22. The abortion committee at Atlanta's Grady Memorial Hospital had denied Mary Doe's application for an abortion because she failed to meet the criteria for a medically necessary abortion. Doe, who was twenty-two years old, had three children—two in foster care and one given up for adoption; she also had a history of mental illness. The Georgia law was challenged by Doe, as well as social workers, nurses, and clergy, in federal district court. 23. Doe, 410 U.S. at 183-184. 24. Doe, 410 U.S. at 194-200. 25. Roe, 410 U.S. at 173.

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ELUSIVE EQUALITY

26. Doe, 410 U.S. at 221. 27. Rubin, Abortion, Politics, and the Courts, p. 157. See Ann E. Fulks, "Thornburgh: The Last American Right-to-Abortion Case?" Journal of Family Law 26 (1987-1988): 775-776; Rodman, Sarvis, and Bonar, The Abortion Question, chap. 7; and Frederick S. Jaffe, Barbara L. Lindheim, and Philip R. Lee, Abortion Politics: Private Morality and Public Policy (New York: McGraw-Hill, 1981), chap. 9, for discussion of congressional efforts to overturn and restrict Roe by constitutional amendment and statute. 28. Rubin, Abortion, Politics, and the Courts, pp. 127-130. 29. There were also parental and spousal consent requirements, as well as record keeping and reporting rules that were not specific to any trimester. Physicians were also charged with a duty to preserve a viable fetus or face manslaughter charges and civil suits for damages. 30. The process involved a saline solution being introduced into the amniotic sac, causing premature labor. This procedure could not be performed earlier than sixteen weeks. Nancy K. Rhoden, "Trimesters and Technology: Revamping Roe v. Wade," Yale Law Journal 95 (1986): 644. 31. In general, plaintiffs are not permitted to vindicate the rights of third parties. In abortion cases, the Court typically allows physicians to assert the rights of their patients before the court because the relationships are sufficiently intertwined. See Singleton v. Wulff, 428 U.S. 106 (1976). 32. 428 U.S. 52, 63 (1976). 33. National averages reported by the Alan Guttmacher Institute in February 2000 indicate that 52 percent of women receiving abortions were under twenty-five: women aged twenty to twenty-four obtain 32 percent of all abortions; teenagers obtain 20 percent. Most abortions are performed on women who have never been married. Over half (58 percent) of the women who had abortions during 1995 had used contraception during the month they became pregnant. Alan Guttmacher Institute, Facts in Brief (2000), p. 2, www.agi-usa.org/pubs/fb_induced_abort.html. 34. Although the Court had generally been moving toward a convergence of rights enjoyed by adults and children, there were still some important areas of difference remaining. In 1969, in Tinker v. Des Moines, 393 U.S. 503 (1969), the Court proclaimed that students do not shed their constitutional rights at the schoolhouse door and overturned the suspension of three Des Moines students who wore black armbands to school to protest the Vietnam War. But in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the Court upheld a restriction on a student's nonobscene speech that it would not have allowed for an adult. Then in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the Court curtailed freedom of the press in public schools by upholding a principal's regulation of the student newspaper. And in New Jersey v. TLO, 469 U.S. 325 (1985) the Court allowed a school search on grounds that would not have satisfied Fourth Amendment standards for a search of adults. In each case, the Court balanced a minor's constitutional right against a state's need to educate the child and maintain discipline in the school. 35. Danforth, 428 U.S. at 74. 36. Danforth, 428 U.S. at 9 4 - 9 5 (emphasis in the original). 37. Danforth, 428 U.S. at 104. 38. 443 U.S. 622 (1979). 39. The same case had been in the Supreme Court three years earlier, and in Bellotti v. Baird, 428 U.S. 132 (1976), the Court unanimously vacated the district court ruling, holding that the court should have allowed the state court to construe the law.

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243

It reappeared in the Massachusetts Supreme Court and was appealed to the U.S. Supreme Court again. 40. Bellotti, 443 U.S. at 637. 41. Bellotti, 443 U.S. at 644-645. 42. 4 5 0 U.S. 398 (1981). 43. Matheson, 450 U.S. at 400. 44. The Court only addressed the constitutionality of the Utah statute as it applied to teenagers in the plaintiff's class. 45. Matheson, 450 U.S. at 412. 46. Thomas Dickinson, "Limiting Public Funds for Abortions: State Response to Congressional Action," Suffolk University Law Review 13 (1979): 926. 47. Title XIX requires states to provide medical assistance to persons with inadequate "income and resources" to pay for their "necessary" medical care, allowing states to establish "reasonable standards" for the amount of the aid. Distinguishing between medically necessary (therapeutic) and elective (nontherapeutic) abortions, states generally denied funding for the latter. 48. Alan Guttmacher Institute, Abortions and the Poor: Private Morality, Public Responsibility (New York: Alan Guttmacher Institute, 1979), p. 8. 49. Alan Guttmacher Institute, Abortions and the Poor, p. 9. 50. Alan Guttmacher Institute, Abortions and the Poor, p. 34. 51. Note, "Abortion, Medicaid, and the Constitution," New York University Law Review 54 (1979): 124; see Angela Benzo Norman, "Beal v. Doe, Maher v. Roe, and Non-Therapeutic Abortions: The State Does Not Have to Pay the Bill," Loyola University Law Journal 9 (1977): 288-311. 52. 432 U.S. 438 (1977). 5 3 . 4 3 2 U.S. 4 6 4 ( 1 9 7 7 ) . 54. 432 U.S. 519 (1977). 55. Michael Perry, "The Abortion Funding Cases: A Comment on the Supreme Court's Role in American Government," Georgetown Law Journal 66 (1978): 1201. 56. Beal, 432 U.S. at 4 4 4 - 4 4 5 (emphasis in the original). 57. Beal, 432 U.S. at 454. 58. Beal, 432 U.S. at 454-455. 59. The Court cited Dandridge v. Williams, 397 U.S. 471 (1970) and San Antonio School District v. Rodriguez, 411 U.S. 1 (1973), in which the Court held that wealth is not a suspect category for equal protection analysis. In these cases, the Court refused to apply strict scrutiny to wealth classifications, using a rationality test to scrutinize a state welfare policy and a school financing plan. 60. Maher, 432 U.S. at 474-475. 61. Jaffe, Lindheim, and Lee, Abortion Politics, p. 132. 62. Some of the states were New York, Colorado, Idaho, Michigan, and Maryland. Of the thirty-nine other states participating in the Medicaid program, eighteen adopted the precise language of the Hyde amendment, sixteen limited Medicaid funding to women in life-endangering situations, and five paid for abortions in life-threatening situations or cases of reported rape or incest. Seven of the thirty-nine states, including California and Massachusetts, were prevented from enforcing their funding restrictions by court order. See Alan Guttmacher Institute, Abortions and the Poor, pp. 22-23. 63. See Roger Davidson, "Procedures and Politics in Congress," in Gilbert Y. Steiner, ed., The Abortion Dispute and the American System (Washington, D.C.: Brookings Institution, 1983); Susan Tolchin, "The Impact of the Hyde Amendment on

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Congress: Effects of Single Issue Politics on Legislative Dysfunction, June 1977-June 1978," Women and Politics 5 (1985): 91-106. 64. Congressional Record, 95th Cong., 1st sess., 1977, 123: 19700. 65. Congressional Record, 95th Cong., 2d sess., 1978, 124: 17260. 66. McRae v. Calif ano, 491 F. Supp. 630 (E.D.N. Y. 1980). "Medically necessary" abortions referred to abortions based on physical, psychological, emotional, and familial considerations. 67. In November 1976, the Supreme Court had refused to block enforcement of the court's order. New York Times, November 9, 1976. See Albie Sachs and Joan Hoff Wilson, Sexism and the Law (New York: Free Press, 1978), chap. 4. 68. 448 U.S. 297 (1980). The Court based its ruling on the current version of the Hyde amendment, applicable for fiscal year 1980, that banned funding for abortions unless a woman's life was in danger or in cases of rape or incest. The Court noted that this version was more inclusive than the fiscal year 1977 approach that did not include the rape or incest exception. It was narrower than the one used in most of fiscal year 1978 and all of fiscal year 1979 that allowed federal funding for abortions in which physical and long-lasting damage to health would result if the pregnancy were continued. In sum, the operative version of the Hyde amendment prohibited funding unless a woman's life was threatened by the pregnancy. Medically necessary abortions were not funded by Medicaid because they did not rise to the requisite degree of danger. 69. Harris, 448 U.S. at 316. 70. Harris, 448 U.S. at 338. 71. In 1981, with a population of 237,000 people, Akron had five abortion clinics, which performed a total of 7,685 abortions. New York Times, December 1, 1982. 72. City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 423 n. 5 (1983). 73. City of Akron, 462 U.S. at 416. 74. New York Times, December 1, 1982. 75. City of Akron, 462 U.S. at 434. 76. By the time this case was decided, advances in medical knowledge meant that abortions performed up to sixteen weeks were now safer than carrying a child to term. Rhoden, "Trimesters and Technology," p. 649. 77. The vast majority of abortions take place before the end of the second trimester, and most are performed during the first trimester. Reidinger, "Will Roe v. Wade Be Overruled?" p. 68. 78. City of Akron, 462 U.S. at 430. 79. City of Akron, 462 U.S. at 445. 80. O'Connor's view was not supported by then current medical evidence. At that time, the medical community believed that fetal viability was unlikely to ever move back earlier than twenty-three or twenty-four weeks because fetal lung development required at least that length of time. According to a study published two years after City of Akron was decided, more than one-quarter of infants bom between twenty-four and twenty-six weeks were born with a severe handicap. Only about 40 percent of infants born between the twenty-sixth and twenty-eighth week of pregnancy survived, and many of those suffered numerous handicaps; at twenty-eight weeks, an infant's chances improved remarkably. Another study showed that 83 percent of infants born at twenty-eight weeks survived. Reidinger "Will Roe v. Wade Be Overruled?" p. 69. See studies reported in Rhoden, "Trimesters and Technology," pp. 660-662. See Chapter 9 for further discussion of fetal viability. 81. City of Akron, 462 U.S. at 458. 82. City of Akron, 462 U.S. at 461 (emphasis in the original).

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83. City of Akron, 462 U.S. at 464. 84. In Diamond v. Charles, 476 U.S. 54 (1986), the Court unanimously held that the petitioner, an anti-abortion pediatrician, did not have standing to bring an appeal to the Supreme Court. Among other provisions, the law had an informed consent provision requiring physicians to inform their patients that certain drugs and intrauterine devices are "abortifacient[s]" that cause fetal death by preventing the fertilized egg from attaching to the uterine wall. 85. Fulks, "Thornburgh: The Last American Right-to-Abortion Case," p. 780. 86. 476 U.S. 747 (1986). 87. David Fernandez, "Thornburgh v. American College of Obstetricians: Return to RoeT Harvard Journal of Law and Public Policy 10(1987): 714. 88. Thornburgh, 476 U.S. at 761. 89. Thornburgh, 476 U.S. at 762. 90. Thornburgh, 476 U.S. at 759. 91. Thornburgh, 476 U.S. at 768. 92. Thornburgh, 476 U.S. at 771. 93. Thornburgh, 476 U.S. at 772. 94. Thornburgh, 476 U.S. at 829. 95. Thornburgh, 476 U.S. at 792.

9 Retaining Reproductive Rights

I

N 1 9 9 8 , TWENTY-FIVE YEARS AFTER ROE WAS DECIDED AND AFTER ALMOST 3 0

million abortions had been performed, the debate over abortion continued to rage. Surveys showed that public opinion remained sharply divided over access to abortion, with often contradictory views held by the same individuals. Thus, although most Americans supported Roe and abortion rights, some had begun to express reservations about the extent to which it was made available, especially for younger women, and their support for it tended to diminish as the pregnancy progressed. 1 The shift in the legal climate began a decade before Roe's twenty-fifth anniversary, with Rehnquist's elevation to chief justice—to replace the retiring Burger—and the appointment of two Reagan nominees, Scalia and Kennedy. Table 9.1 presents the abortion cases decided by the Rehnquist Court from 1989 to 2000. Abortion opponents were hoping that with the addition of the ReaganBush justices appointed throughout the 1980s and early 1990s, the Court would reevaluate its commitment to Roe and allow states greater latitude to restrict a woman's access to abortion. They anxiously awaited the Court's decision in a Missouri case, Webster v. Reproductive Health Services} hoping the president's new appointees would join the Thornburgh dissenters in forming an anti-abortion majority.

A Retreat from Roe On July 4, 1989, a New York Times banner headline read: "Supreme Court, 5 4, Narrowing Roe v. Wade, Upholds Sharp State Limits on Abortions." 3 In a sharply divided and often bitterly worded opinion, the Supreme Court sparked 247

248 Table 9.1

ELUSIVE EQUALITY

Abortion Rights Cases, 1989-2000

Case

Date

Webster

1989

Hodgson

1990

Akron Center

1990

Casey

1992

Lambert

1997

Carhart

2000

Issues3 Preamble defining life, restrictions on public facilities and funding, fetal viability testing Two-parent notice and judicial bypass procedure Parental notice and judicial bypass procedure Informed consent lecture, waiting period, spousal notice, parental consent, record keeping and reporting, definition of medical emergency Parental notice and judicial bypass procedure Late-term abortions

Disposition1 Antichoice

Antichoice Antichoice Antichoice

Antichoice Pro-choice

Notes: a. Reflects the major issues in the case. b. Pro-choice indicates that a majority voted to strike all or most of the regulations under review; antichoice indicates that a majority voted to uphold all or most of the regulations under review.

renewed interest in the abortion debate by raising serious doubts about the future of Roe v. Wade. On the day the Court's decision in Webster was announced, demonstrators from both sides of the abortion controversy gathered outside the courthouse to await the decision. The case revolved around a 1986 Missouri abortion law challenged by doctors, nurses, abortion clinics, and Planned Parenthood. Following a threeday trial, the district court declared seven provisions of the act unconstitutional; the circuit court affirmed the lower court on all but one. Oral Arguments The Supreme Court heard oral arguments in Webster on April 26, 1989. Although it is unusual to attempt to persuade the Supreme Court by mounting public demonstrations, two weeks earlier, at least 300,000 pro-choice advocates marched in Washington. They carried signs proclaiming "My body, my baby, my business" and "Keep your laws off my body." The rally drew counterdemonstrators to the scene, shouting, "What about the babies?" and "Life, life, life." The Court received 200,000 pieces of mail before the argument day. 4 And on the day of the argument, demonstrators from both sides gathered outside the Supreme Court building with signs and loud voices. Inside, the Court listened to arguments by Attorney General William L. Webster; Frank Susman of the ACLU, representing Missouri abortion clinics; and former U.S. solicitor general Charles Fried, representing the Bush adminis-

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tration. Fried urged the Court to "reconsider and overrule its decision in Roe v. Wade." Anxious to demonstrate the limits of his argument, he stressed that he was "not asking the Court to unravel the fabric of unenumerated and privacy rights." Rather, he said, he was merely "asking the Court to pull this one thread." Susman argued that the right to abortion was an integral part of the right to privacy and procreation. He accused Fried of being "disingenuous" by insisting that he was "not seek[ing] to unravel the whole cloth of procreational rights, but merely to pull a thread. It has always been my personal experience," Susman said, "that when I pull a thread, my sleeve falls off. There is no stopping."5 The

Preamble

The Supreme Court considered the constitutionality of four sections of the Missouri law: a preamble declaring life begins at conception, a required test to determine fetal viability, a ban on the use of public funds to encourage or counsel women to have abortions not necessary to save their lives, and a prohibition on the use of public facilities and public employees to perform abortions not necessary to save women's lives. 6 The preamble to the Missouri law stated that human life "begins at conception" and that "unborn children have protectable interests in life, health, and well-being." Missouri characterized the preamble as abortion-neutral, saying it merely extended the protections of tort, property, and criminal law to the unborn. Moreover, it argued, the law had no effect on abortion policy because it explicitly stated that it must be interpreted in a manner consistent with Supreme Court decisions. The appellate court disagreed, ruling that the preamble was not abortion-neutral because "the only plausible inference is that the state intended its abortion regulations to be understood against the backdrop of its theory of life."7 Moreover, specifying that the law must be compatible with the Constitution does not save it. An otherwise unconstitutional law is not made constitutional, the court stated, simply by pointing out that it is bound by the dictates of the Constitution. At the Supreme Court, Rehnquist's plurality opinion for himself, White, and Kennedy declined to resolve the issue, holding that the Court need not decide on the constitutionality of the preamble. The law did not purport to regulate abortion and, in his view, was merely a legitimate expression of a value judgment favoring childbirth over abortion. Because it did not impinge on abortion in "some concrete way," the preamble was too abstract to require the Supreme Court to rule on its constitutionality. 8 Public

Facilities

In 1985, Truman Medical Center in Kansas City, Missouri, performed 97 percent of all Missouri hospital abortions at sixteen weeks or later. Although it

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was a private hospital primarily staffed by private physicians, with no public funds expended on abortions performed there, it was considered a "public facility" because it was on land leased from the state. 9 Rehnquist found no constitutional problem in the ban on abortions at Truman. If a state may prefer childbirth to abortion by withholding funds, Rehnquist said, "surely it may do so through the allocation of other public resources, such as hospitals and medical staff." 10 He explained that the state had not created a barrier to abortion by withholding its facilities and personnel. It merely left women in the same position as if it had chosen not to operate a public hospital in the first place, and any restriction caused by a woman's physician being affiliated with Truman or another public hospital was "easily remedied." Public Funds As with the preamble, the Supreme Court found it unnecessary to rule on the provision of the law forbidding the use of public funds, employees, and facilities to encourage or counsel abortions. The appellate court found the entire provision unconstitutional, but the state appealed only a portion of the lower court ruling to the Supreme Court. The issue before the high court was whether the ban on using public funds to encourage women to seek abortions was constitutional. Missouri argued that the provision was not aimed at persons engaged in abortion counseling (a possible First Amendment violation); rather, it was intended to prevent hospital administrators from allocating funds for use in abortion counseling. Given the state's narrow interpretation of the law, the plaintiffs were forced to admit they were not "adversely affected" by it and withdrew their challenge. The Court therefore never determined whether the law restricted freedom of speech by preventing physicians from discussing abortion with their patients. 11 Viability Testing The most significant part of the law, the viability testing section, provided that before a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of twenty or more weeks gestational age, the physician shall first determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful, and prudent physician. . . . In making this determination of viability, the physician shall perform . . . such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child.

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The appellate court held that because these tests were costly and potentially dangerous to the woman and the fetus, the provision was unconstitutional. Speaking for himself, White, and Kennedy again, Rehnquist reversed the circuit court. He construed the law as requiring doctors to test for lung maturity, age, and weight only when, in their professional judgment, they felt such tests were useful in determining viability. He denied that the law required the tests whenever the physician believed a woman was at least twenty weeks pregnant. Rehnquist acknowledged that the Missouri law clashed with Roe by allowing viability tests during the second trimester. But instead of forthrightly overruling Roe, the Rehnquist plurality utilized a "backdoor approach [that] allowed it to eviscerate Roe without explicitly overruling" it. 13 Rather than attacking Roe head-on, Rehnquist proposed to resolve the conflict between Roe and the Missouri law by abandoning "the rigid trimester" approach that he said had made "constitutional law in this area a virtual Procrustean bed." 14 Declining to limit the state's compelling interest in potential human life to the third trimester, Rehnquist approved the fetal test provision as a permissible method for the state to further its interest in protecting fetal life. Conceding that his decision would allow government regulation of abortion that would have been forbidden under Roe, Rehnquist seemed to invite legislatures to challenge Roe. He repeated his oft-stated assertion that abortion is not a fundamental right but only a rather narrowly defined "liberty interest," implying that the Court will not require the state to show a compelling interest in the future. Indeed, the plurality already appeared to have adopted a new standard by sustaining the abortion regulation because it "permissibly" advanced the state's interest. In denying that the Court was overruling Roe, Rehnquist insisted that the facts in the two cases were distinct and that Webster offered the Court "no occasion to revisit the holding of Roe." But, he added, "to the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases."15 The Concurring

Opinions

O'Connor found the plurality's interpretation of the fetal viability section persuasive and agreed that the viability tests did not impose an undue burden on a woman's abortion right. But she disputed Rehnquist's contention that the viability testing section was inconsistent with Roe because, in her view, Roe was not implicated and the plurality did not have to address it. "When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully."16 Scalia also concurred but expressed disappointment in the plurality's failure to explicitly overrule Roe. In a rare attack on a colleague, he criticized O'Con-

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nor by saying her refusal to reconsider Roe "cannot be taken seriously."17 He charged that the plurality had vitiated Roe but was fearful of saying so openly. Characterizing the Court's decision as "stingy" because it failed to forthrightly address the constitutionality of abortion, Scalia argued that by refusing to dismantle Roe, the Court had chosen the "least responsible" path. "It thus appears," he complained, "that the mansion of constitutionalized abortion-law, constructed overnight in Roe v. Wade, must be disassembled door-jamb by door-jamb, and never entirely brought down, no matter how wrong it may be." 18 The Webster Dissent In a passionate dissent, Blackmun charged that the plurality and Scalia "would return to the States virtually unfettered authority to control the quintessentially intimate, personal, and life-directing decision whether to carry a fetus to term." He accused the plurality of implicitly invit[ing] every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases, in the hope that sometime down the line the Court will return the law of procreative freedom to the severe limitations that generally prevailed in this country before January 22, 1 9 7 3 . ^

In language rarely heard in judicial opinions, Blackmun described one of the Court's statements as "totally meaningless" and charged the plurality with "obscuring" the analysis of the case, thereby breeding "disregard for the law." He focused his attack on the plurality's position on the fetal testing provision—especially its denial that it implicated Roe. Contrary to the plurality's assertion, the plain language of the statute directed the doctor to determine the age, weight, and lung maturity of every twenty-week fetus. By requiring doctors to impose risks on the woman and the fetus by performing the tests, he continued, the law was not rationally related to the state's interest in protecting fetal life or maternal health. Blackmun defended the trimester approach the Court created almost twenty years ago, describing it as a tool for evaluating and balancing a woman's constitutional right to procreational privacy against the state's competing interests. Roe's trimester approach and the dividing line of viability, he claimed, still represented the most effective and sensible way to balance a state's interest in regulation and a woman's interest in privacy. Given the result in Webster, Blackmun predicted dire consequences for the future, warning that hundreds of thousands of women, in desperation, would defy the law, and place their health and safety in the unclean and unsympathetic hands of

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back-alley abortionists, or they would attempt to perform abortions on themselves, with disastrous results. Every year, many women, especially poor and minority women, would die or suffer debilitating physical trauma, all in the name of enforced morality or religious dictates or lack of compassion, as it may be. 2 ®

He concluded somberly, "For today, at least, the law of abortion remains undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows." 21 ihe Impact of Webster The political climate changed after Webster; the Court's opinion galvanized the pro-choice forces, largely quiescent since 1973, into action. Their efforts were matched by invigorated activity from the anti-abortion groups. The battle over abortion rights was not only focused on the courts; it was also aimed at the state legislatures and Congress, with each side seeking supremacy in the political as well as the legal arena. 22 Encouraged by the decision, states enacted new restrictive laws. Yet at the same time, pro-choice supporters saw their candidates win major political battles in campaigns focused on abortion rights. The political battles following Webster reflected the importance of the state as an arena for the abortion debate. Abortion played a key role in electing pro-choice governors in Virginia and New Jersey. It was also an important issue in the 1990 congressional elections. In most races, the Democrat was more supportive of abortion rights than the Republican, but whatever the candidate's position on abortion, the issue likely played a role in the political campaign. 23

State Restrictions After

Webster

Within months after Webster, a number of state legislatures approved restrictive abortion laws, often inserting provisions that had been declared unconstitutional by the Supreme Court in earlier cases. Sponsors of the legislation intended to force the Court to reexamine Roe and, they hoped, to overrule it. Republican governor Bob Martinez made the first move by calling the Florida legislature into a special session in October 1989 to propose a bill that would have required viability testing of the fetus at twenty weeks, a one-week waiting period between the woman's consent and the abortion, extensive licensing regulations, and a ban on abortion in public facilities. The legislature rejected the bill. 24

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In November 1989, Pennsylvania governor Robert P. Casey, a Democrat, signed the first post -Webster state abortion law. The Pennsylvania Abortion Control Act of 1989, an amendment to the 1982 law, banned most abortions in public hospitals; it required that the woman notify her husband of a planned abortion, or if she was a minor, required her parent's consent; imposed a twenty-four-hour waiting period after her consent was obtained; and ordered counseling by the doctor that included providing the woman with a pamphlet on fetal development. In March 1990, Joseph F. Ada, Republican governor of the U.S. Territory of Guam, signed a bill reinstating a criminal abortion law that predated Roe. The bill made it a felony to perform or aid in the performance of an abortion; for the woman, having an abortion was a misdemeanor. An abortion was legal only if two independent physicians agreed that the pregnancy threatened the woman's life or seriously endangered her health. In the same month, in a move that pleased pro-choice advocates, Cecil D. Andrus, Democratic governor of Idaho, vetoed a bill that forbade abortion except in cases of rape reported within seven days, of incest when the victim was under eighteen and it was reported to authorities, or when the fetus was severely deformed. The law would have imposed a $10,000 fine on a doctor performing an illegal abortion. 25 Then, in July 1990, Governor Buddy Roemer, Democrat from Louisiana, vetoed an anti-abortion bill for the second time. If passed, it would have imposed the most stringent abortion regulations in all the states. The first version of the bill allowed legal abortions only to save the woman's life. The second added an exception for pregnancies resulting from rape if the crime were reported within seven days. Under both versions, performing an abortion was a felony punishable by prison at hard labor. 26

Two-Parent Notice Laws During the 1980s, an increasing number of state legislatures had enacted parental involvement laws, and by 1988, twenty-five states had notice or consent laws involving at least one parent; most included a judicial bypass procedure. Proponents of notice laws said that parents had a right to know of their teenager's decision to have an abortion and that parental involvement reduced teenage pregnancies. Opponents said that most pregnant teenagers informed their parents anyway and that it is unrealistic and harmful to assume parental involvement benefits every teen. 2 7 Studies showed that the majority of teens notified their parents when they were considering an abortion. A 1980 survey by the Alan Guttmacher Institute found that 75 percent of teenagers fifteen and under reported that they informed their parents; overall, slightly more than half (55 percent) of teens under the age of eighteen claimed that they told their parents they were considering an abor-

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tion. The studies also suggested that notification laws had little influence on a pregnant teenager's decision to tell her parents. A 1984 survey of 236 teenagers in Minnesota and Wisconsin found that about 60 percent of the teens in each state confided the news of their pregnancy and possible abortion to their parents. Minnesota had a notification law; Wisconsin did not. 28 Janet Benshoof, former director of the Reproductive Freedom Project of the ACLU, argues that notification laws are counterproductive and result in a "survival of the fittest" effect because mature, well-connected, and more affluent minors will be able to secure abortions. "The minors who do not get the abortions are the younger, more immature teenagers, those least prepared for the emotional and physical rigors of pregnancy and childbirth." 29 Public opinion polls indicate that most Americans approve of parental involvement in a minor's abortion decision. A 1989 national survey found that almost 70 percent of voters support a parental consent requirement for teenagers seeking abortions. Not surprisingly, most candidates for public office also favor parental involvement laws. And although the National Abortion Rights Action League recognized that parental involvement laws were related to the "campaign to ban abortion," it did not view a candidate's opposition to a mandatory parental notification law as "a litmus-test issue." In states such as Oregon, Colorado, and Michigan, parental notification and consent initiatives appeared on the ballot in the 1990 elections to allow voters to decide on the limits on a minor's access to abortion. 30 On June 26, 1990, the Supreme Court addressed the issue of parental notice in two cases arising out of Minnesota and Ohio. The Minnesota law was passed in 1981 as an amendment to the Minors' Consent to Health Services Act that authorized minors to give valid consent to health care services for pregnancy, venereal disease, and alcohol or drug abuse. The amendment was in effect for five years until 1986, when it was barred from enforcement by court order. Subdivision Two of the amendment required a physician to notify both parents of an unemancipated minor before performing an abortion. There was no exemption for minors with divorced or separated parents or for those whose parent deserted the family. It was sufficient to notify only one parent if the other one was dead or could not be found after "reasonably diligent effort." Notice was not required in emergencies, when both parents consented in writing to the abortion, or if the minor had previously been certified to the authorities as a victim of sexual or physical abuse. The physician was required to wait forty-eight hours after notification before performing the abortion. Subdivision Six of the law specified that a judicial bypass procedure would take effect if Subdivision Two were declared unconstitutional by a court. The bypass allowed the pregnant minor to attempt to convince a judge that she was sufficiently mature to make the abortion decision herself or that an abortion without notice would be in her best interests. 31

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The litigation began in July 1981, when a number of plaintiffs, including Dr. Jane Hodgson, filed suit to prevent enforcement of the law. In 1986, after a five-week trial, the district court upheld their challenge. A year later, a threjudge panel of the Eighth Circuit affirmed the decision. After a rehearing, he entire appellate court reversed the panel in a 7 to 3 vote. The majority concluded that "considering the statute as a whole and as applied to all pregnant minors, the two-parent notice requirement does not unconstitutionally burcen the minor's abortion right."32 The court also upheld the forty-eight-hour waiting period. The court's ruling indicates the importance of presidential appointments to the federal bench. Six of the seven judges in the majority were appointed by Reagan; the three dissenting judges were appointed by Johnsor. 33 On appeal, in Hodgson v. Minnesota,34 five members of the Supreme Court found Subdivision Two unconstitutional because it was not reasonably related to a legitimate state interest. A different five-justice majority sustained Subdivision Six, thereby affirming the appellate court and upholding the entire law, including the forty-eight-hour waiting period. Four justices would have found the law constitutional—with or without the bypass provision. Speaking for the Court on Subdivision Two, Stevens distinguished between this case and earlier cases addressing the constitutionality of a notice or consent requirement. "None of the opinions in any of t ose cases," he explained, "focused on the possible significance of making the consent or the notice requirement applicable to both parents instead of just one." 3 5 He highlighted the district court's findings that only about half the minors in Minnesota lived with both biological parents and that the effect of notifying the absent parent was potentially harmful to the teenager. Even when both parents are present, Stevens said, criminal reports show there is a realistic danger of violence against the teen. Additionally, he cited the lower court's finding that even though most petitions were granted, the bypass procedure was often traumatic for the teenager. Stevens denied that the two-parent notice furthered the state's interests in the teenager, the parent, or the family. The state could fulfill its obligation to the minor by notifying one parent and permitting that parent to decide whether to notify the other or whether the notice would be detrimental to the teenager. He responded to the state's contention that the family functions best if both parents are involved in a teenager's abortion decision by saying that the state cannot legitimately seek to mold the family into its idealized image. Dissenting from the majority's ruling on Subdivision Six, Stevens explained that the judicial bypass procedure in the Minnesota law differed from those upheld in previous cases. "A judicial bypass that is designed to handle exceptions from a reasonable general rule, and thereby preserve the constitutionality of that rule, is quite different from a requirement that a minor—or a minor and one of her parents—must apply to a court for permis-

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sion to avoid the application of a rule that is not reasonably related to legitimate state goals." 36 In her concurring opinion, O'Connor agreed that Subdivision Two was unconstitutional. But she concluded that "Subdivision 6 passes constitutional muster because the interference with the internal operation of the family required by Subdivision 2 simply does not exist where the minor can avoid notifying one or both parents by use of the bypass procedure." 37 However, although she "broke rank" with the Reagan appointees, she "demonstrated once again that she is not prepared to climb off the fence she has long straddled on abortion issues." 38 One-Farent

Notice Laws and Judicial

Bypass

The same day Hodgson was decided, in Ohio v. Akron Center for Reproductive Health,39 the Court upheld an Ohio law with a one-parent notice requirement and a bypass procedure. The law specified that before performing an abortion, the physician was required to give twenty-four hours notice to a parent. Another relative could be notified if the teenager and the relative filed an affidavit in juvenile court testifying that the minor feared physical or emotional abuse if the parent were told. The law also allowed the teenager to attempt to prove to a juvenile court judge that she was sufficiently mature and had enough information to make the decision without notifying her parent or simply that notification was not in her best interests. Both district and appellate courts declared the Ohio law unconstitutional. Delivering the opinion of the Supreme Court, Kennedy left open the question of whether all parental notification laws must be accompanied by judicial bypass procedures. He merely held that because the Ohio statute satisfied the criteria listed in Bellotti for consent statutes, it must logically be sufficient for a notice statute as well because the latter places a lesser burden on the rights of the young woman seeking an abortion. Kennedy concluded that the Ohio law did not unduly burden the minor's right to abortion. In Lambert v. Wicklund,40 a 1997 decision, the high court ruled on a challenge to a parental notification law in Montana. 41 The law authorized the young woman to seek a court's approval to bypass notice to her parents by showing either that she was sufficiently mature to decide whether to have an abortion, she had been subjected to abuse, or notifying her parent or guardian was not in her best interests. The issue was whether the law—specifically, the third condition—was too narrow to satisfy her constitutional right to obtain an abortion. The doctors challenging the law argued that the high court's precedents required a judicial bypass procedure that allowed the notice requirement to be waived whenever an abortion was in the woman's best interests, not just when notification would not be in her best interests. In a brief unsigned opin-

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ion, the Court found the Montana law constitutional, comparing it to the laws upheld in the 1990 Akron Center case and the 1979 Bellotti case. With the Supreme Court's endorsement, by 1999, the majority of states had enacted laws requiring a young woman to obtain the consent of or notify one or both parents about her intent to obtain an abortion. Most applied to women under eighteen and contained a judicial bypass procedure as well. Only eight states and the District of Columbia had no such law. 42 In 1998, the U.S. House of Representatives approved a bill entitled the Child Custody Protection Act, which prohibited anyone from taking a minor across state lines to obtain an abortion to circumvent a state parental notice and consent law. If convicted, the defendant could receive a fine of $100,000 and be liable for civil damages as well. Although it cleared the House each year from 1998 to 2000, the bill was never voted on by the Senate.

The Freedom of Choice Act In 1991, congressional abortion rights supporters introduced a one-page bill entitled the Freedom of Choice Act, which would have forbidden states from "restrict[ing] the right of a woman to choose to terminate a pregnancy before fetal viability, or at any time, if such termination is necessary to protect the life or health of the woman." States would be permitted to enact measures considered "medically necessary" to protect the life or health of the woman. No action was taken on the bill by the time of adjournment. Subsequent versions of the bill were introduced in the following years, but it was never approved and eventually died. In part, bill proponents expected a presidential veto and were aware they lacked the votes to override it. 43 However, although it essentially codified Roe, opponents charged that it went beyond Roe by outlawing parental consent or notification provisions as well as hospitalization requirements. 4 4

Roe Under Attack Again In October 1990, Souter had become the newest associate justice, replacing the fiercely pro-choice Brennan. In his confirmation hearings, Souter suggested support for a right to privacy yet refused to answer questions about his views on abortion or Roe. In the meantime, states continued to enact restrictive abortion measures, and both sides of the abortion debate anxiously awaited the next case to see how the Supreme Court, and especially the newest justice, would clarify limits on abortion rights. Shortly thereafter, Thomas was appointed to the bench to replace Marshall, like Brennan, a resolutely pro-choice justice. Thomas's confirmation hearings were the subject

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of a great deal of controversy, not the least of which revolved around his denial of having any views on Roe or even admitting that he had ever discussed the case. Given his background and political leanings, pro-choice advocates were even more fearful about the fate of the next case to come before the Court. The suspense ended in 1992 when the Court announced its decision in Planned Parenthood of Southeastern Pennsylvania v. Casey.45 The case revolved around the 1982 Pennsylvania Abortion Control Act, amended in 1988 and again in 1989, the latter partially in response to the Webster plurality's invitation to limit abortion rights, making it one of the most restrictive in the nation. Because it included provisions that had been declared unconstitutional by the Court in City of Akron and Thornburgh. it appeared to be an attempt to provoke the Court into overruling or at least narrowing Roe46 The law seemed primarily aimed at regulating the conduct of physicians. 47 Under the general heading of informed consent, it required a doctor to inform a woman of the risks of abortion and childbirth and indicate the "probable gestational age of the unborn child" at least twenty-four hours before performing the abortion. 48 It obligated a married woman to present a signed statement that she had notified her husband of the planned abortion, unless he was not the father of the baby, if the pregnancy resulted from a reported case of sexual assault, or if she believed that she would be subjected to "bodily injury." A woman who lied about the notification was guilty of a misdemeanor and could be sent to jail for a year, and a doctor who failed to obtain a statement from her could have his or her license suspended or revoked and be liable to her husband for civil damages. Additionally, the law required the informed consent of a minor's parent or guardian and ordered that the same information be presented to the parent or guardian as to the adult woman. It defined a medical emergency that would excuse compliance with those rules as a condition that makes abortion necessary "to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function" and placed new record keeping and reporting requirements on abortion providers that could, under certain conditions, be made public, including their name and address and the number of abortions they performed each year by trimester. 49 The case began when several Pennsylvania abortion providers challenged the constitutionality of five provisions of the law, arguing they infringed on a woman's fundamental right to privacy. After a three-day bench trial, the district court agreed and struck the law. Applying the "compelling state interest" test, the court ruled that the informed consent, parental consent, spousal notice, and reporting and record keeping requirements violated the due process clause of the Fourteenth Amendment. 5 0 On appeal, a three-judge panel of the circuit court found that rulings subsequent to Roe, especially Webster and Hodgson, indicated that the Court no

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longer considered abortion a fundamental right and that the "compelling state interest" test that subjected abortion restrictions to strict scrutiny had been superceded by O'Connor's "undue burden" standard, defined as a regulation that "imposed an absolute obstacle or severe limitation on the abortion decision." Using O'Connor's rationale, strict scrutiny would be applied only to laws imposing an undue burden on a woman's right to abortion, and absent a finding of an undue burden, the reviewing court would apply a "rationality" test. The court characterized this standard as the "common denominator" among the justices and held that, unlike Roe's "compelling state interest" test, it represented the approach that "a majority of the justices . . . would agree" should be used as the basis for determining the constitutionality of abortion laws. 5 1 Applying the new standard, the circuit court reversed the lower court on all but the spousal notification requirement, finding that it alone imposed an undue burden on a woman seeking to exercise her right to abortion and did not meet the "compelling state interest" test. Both sides appealed to the Supreme Court, with the Bush administration entering on the side of the state and asking the Court to overturn Roe. On January 22, 1992, the nineteenth anniversary of the Roe decision, the Court agreed to hear the case. Once again, the pro-choice side feared and the antiabortion advocates hoped that the Court's opinion would signify a return to the pre-Roe era, in which each state was free to decide for itself how to restrict access to abortion. With four justices—Rehnquist, White, Scalia, and Kennedy—on record for criticizing Roe and O'Connor at best described as lukewarm toward it, the odds were not in favor of abortion rights advocates. In their view, even if the Court did not formally overrule Roe, the chances were great that it would permit states a great deal more latitude in restricting abortion rights.52 Basing her argument in large part on the Court's commitment to precedent, known as stare decisis, Planned Parenthood attorney Kathryn Kolbert reminded the Court that since Roe, abortion had been considered a fundamental right, relied on by millions of women to preserve their decisionmaking over childbearing. Moreover, she indicated, the Court had already determined in City of Akron and Thornburgh that the twenty-four-hour waiting period and the physician's lecture were unconstitutional restrictions on this right. Arguing on behalf of the state, Attorney General Ernest Preate claimed that the five provisions under review were constitutional according to the analysis in Webster 5 3 He urged the Court to adopt the "undue burden" standard, arguing that if the statute could not be upheld under this standard, the Court should overrule Roe. Kenneth Starr, solicitor general in the Bush administration, sought to convince the Court to view the statute within the framework of the Webster plurality opinion, identifying it as a "rational basis standard." In his view, the state had a compelling interest in the fetus through-

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out the pregnancy, not, as Roe stipulated, only in the third trimester. 54 Kolbert and Starr's positions were diametrically opposed. In an all-or-nothing strategy, she was asking the Court to keep Roe intact; he asked that it be overruled. The state was primarily interested in having the Court uphold its regulations, arguing that the law did not interfere with a woman's right to abortion. In any event, it seemed clear that, no matter what the result of the decision, the issue would surface during the 1992 election campaign. 55 Predicated on the arguments of counsel, the Court was obligated to address such central questions as the following: Should a woman's fundamental right to abortion be retained? What standard should be used to judge abortion regulations? Should the state's interest in fetal life expand to include the entire pregnancy? Can the Pennsylvania law be saved without abandoning Roe? and Can Roe be partially dismantled without going back to the pie-Roe status of virtually unlimited state regulation of abortion? Moreover, affirming the Third Circuit required the high court to reverse portions of its rulings in City of Akron and Thornburgh, calling its commitment to stare decisis into question. The Court issued a lengthy and complex ruling in Casey on June 29, 1992. The opinion indicated that a new (and somewhat surprising) consensus had been forged on the Court: O'Connor, Kennedy, and Souter jointly authored a plurality opinion; Scalia and Rehnquist, joined by White and Thomas, wrote in dissent; and Stevens and Blackmun delivered opinions as well. Perhaps seeking to establish the limits of its ruling, the joint opinion by O'Connor, Souter, and Kennedy began with a strong statement of support for Roe: "After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe should be retained and once again reaffirmed." 5 6 The opinion proceeded to outline three elements it considered essential to Roe. First, the woman has a right to have an abortion before the fetus is viable without "undue interference" from the state. Second, a state can restrict abortions after the fetus has become viable, as long as it allows exceptions to protect the woman's life or health. Third, a state's interest in maternal and fetal life commences at the start of pregnancy. Acknowledging that the government's argument to overrule Roe was not without weight, the authors of the joint opinion stressed that the Court's commitment to individual liberty, joined with the constraints of stare decisis and the rule of law, as well as the Court's own legitimacy, overcame their reservations in reaffirming Roe. In light of these considerations and in an attempt to balance a woman's constitutional right to abortion with a state's interest in prenatal life throughout the pregnancy consistent with Roe, the Court drew a line at viability. Thus, abandoning the trimester framework, which it did not consider "essential" to

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Roe, the Court replaced the three trimesters with two stages of pregnancy: pre- and postviability. 57 Before viability, a state could ensure that the abortion decision was "thoughtful and informed," but it "may not strike at the right itself." The Court was apparently not troubled by the fact that in ensuring that the decision was "thoughtful and informed," the law might have an "incidental effect of increasing the cost or decreasing the availability" of abortion. 58 Departing from Roe, the Court explained that because of its legitimate interest in protecting "potential human life," a state was not entirely precluded from involving itself in the abortion decision throughout the pregnancy but was only forbidden to enact abortion regulations during the pre-viability stage that imposed an "undue burden" on the woman's choice. For the benefit of a reviewing court, the opinion specified that "a finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." 5 9 The Court summarized its legal analysis thus far: it was adopting the "undue burden" standard, which replaced the "compelling state interest" test, as a means of balancing its commitment to Roe with a state's interest in "potential life"; it was abandoning the trimester framework and allowing a state to ensure a woman's choice was informed, which included the opportunity to attempt to persuade her to choose childbirth over abortion; it was permitting a state to adopt reasonable health measures; it was preventing a state from banning entirely an abortion of a pre-viable fetus; and it was allowing a state to regulate or proscribe the abortion procedure after viability with reasonable health exceptions in place. Given these principles, the Court accepted the appellate court's judgment on the validity of the regulations in the Pennsylvania statute. And under the standards it had just announced, the holdings in City of Akron and Thornburgh on the twenty-four-hour delay and informed consent were overruled. With respect to the former, the Court was disturbed by the district court's findings that the twenty-four-hour waiting period might be a burden for some women, particularly those who have to travel long distances to secure the abortion, but in the end, it felt that the provision was not "unduly" burdensome. Finally, the Court affirmed the circuit court ruling on the unconstitutionality of the mandate that a woman notify her husband of her intention to have an abortion. Citing the detailed findings of fact made by the district court on battery, spousal abuse, and marital rape, as well as other studies of domestic violence, the opinion concluded that most women inform their husbands of a pregnancy and those who do not are likely to have a legitimate reason for refusing to do so. Finding that the spousal notification requirement had the effect of creating a veto power over a woman's abortion decision, the Court held that it created a "substantial obstacle" for many women and was unconstitutional.

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Each of the other justices concurred and dissented in part. Calling the joint opinion "an act of personal courage and constitutional principle," Blackmun exulted that "just when so many expected the darkness to fall, the flame has grown bright." He gloomily continued, however, "I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light." 60 The four justices Blackmun referred to concurred in the judgment of the Court but dissented from the ruling on spousal notification. Speaking for these four, Rehnquist criticized the opinion for "retaining] the outer shell of Roe ... but beatfing] a wholesale retreat from the substance of that case." He continued, "We believe that Roe was wrongly decided and should be overruled . . . [and ] we would adopt the approach of the plurality in Webster and uphold the challenged provisions of the Pennsylvania statute in their entirety." 61 Thus, Casey allowed states greater freedom to regulate abortion but retained the woman's ultimate power to decide to have one. Occupying something of a middle ground, the 5 to 4 decision in Casey gratified neither side of the abortion debate. Outside the Supreme Court building on the day the decision was announced, the president of the National Right to Life Committee said, "We are disappointed by today's Supreme Court decision to affirm Roe v. Wade, the 1973 decision which legalized abortion on demand." 62 The president of the Women's Legal Defense Fund called the ruling "a dark omen," declaring that American women were being deprived of the fundamental right to make decisions about their own lives. 63 Each side vowed to continue fighting for its cause. Although the nation's battle over reproductive rights was far from over, Casey effectively ended the debate over the future of Roe. And, as it turned out, as a consequence of the Court's compromise in Casey, the legal battles over abortion rights for adult women abated as abortion politics moved center stage in the presidential election.

Access to Abortion Clinics The 1990s witnessed increasingly violent activity against abortion providers by anti-abortion activists, whose goal was to deter them from delivering abortion services; much of this struggle occurred at the doors of abortion clinics in an effort to prevent women from gaining entrance. 64 In the summer of 1991, Wichita, Kansas, was the setting for anti-abortion protests at clinic entrances lasting over a month. Federal court judge Patrick Kelly enjoined the protestors' activities to allow the clinics to stay open and called out the federal marshals for protection. 65 As it turned out, Kelly himself required marshals to protect him against the death threats he received as a result of his rulings in the case. 66 Protestors ignored the injunction against their activities,

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and tensions increased, accompanied by a mounting number of arrests. At the direction of Bush attorney general Richard Thornburgh, the local U.S. attorney filed a legal brief arguing that the federal court lacked jurisdiction to enforce abortion rights. In other parts of the nation, protests, often leading to violence and numerous arrests, disrupted clinic activities. As a result of the efforts of the anti-abortion forces, abortion rights advocates were discovering that despite the Court's reaffirmation of Roe and abortion rights in Casey, access to abortion was jeopardized as women seeking abortions were subjected to physical and verbal harassment by abortion opponents. Largely prompted by the often violent tactics of anti-abortion protest groups, abortion clinics began to turn to the federal courts when local law enforcement officials were unwilling or unable to curb the violence at their doors. 67 They sought to invoke the Ku Klux Klan Act, a Reconstruction-era federal civil rights law, as a basis for a federal injunction against trespassing or obstructing access to a clinic. The statute barred conspiracies by persons seeking to deprive "any persons or class of persons" of equal rights. The protestors were led by Operation Rescue, an anti-abortion group organized in 1987 by Randall Terry, whose members argued that the 1871 statute, enacted to guarantee the federally protected rights of the newly freed slaves, was inapplicable to women seeking to exercise their right to abortion. 68 The Bush administration supported the protestors' claims. The Supreme Court settled the matter in Bray v. Alexandria Women's Health Clinic 6 9 a 6 to 3 decision announced by Scalia. In this 1993 opinion, the Court held that women seeking abortions were not within the class of people intended to be protected by the federal law and barred federal court judges from invoking the 1871 act to enjoin protest activity aimed at clinics. Congress Protects

Clinics

From 1977 to 1994, there were more than 1,000 violent incidents reported at clinics, including thirty-six bombings, eighty-one fires, 131 deaths, eightyfour assaults, two kidnappings, and two shootings of doctors. 70 Concerned about the implications of Bray as well as the growing violence of anti-abortion protestors, Charles Schumer, a New York Democrat, and Constance Morella, a Republican from Maryland, introduced a bill in the House of Representatives to protect women seeking abortions, as well as abortion providers. At a news conference, Schumer announced that "the bill gives the federal government the power to act when abortion protestors move from the legitimate expression of their views to acts of violence against those who have made other choices." 71 Congress's passage of the Freedom of Access to Clinic Entrances Act (FACE) was a response to the problems presented by blockades of abortion

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clinics and the inability of local law enforcement agencies to keep clinic doors open. The law was passed in early May and signed into law by Clinton on May 26,1994. At the signing ceremony, the president said, "We simply cannot—we must not—continue to allow the attacks, the incidents of arson, the campaigns of intimidation upon law-abiding citizens that has given rise to this law." 72 FACE makes it a federal crime to use force, the threat of force, or physical obstruction, such as sit-ins, to interfere with, injure, or intimidate clinic workers or women seeking abortions or other reproductive health services. Violent offenders are subject to fines of up to $100,000 and a year in prison for a first conviction; a subsequent conviction is punishable by a fine of $250,000 and three years of imprisonment. Nonviolent offenders could be sentenced to six months in prison and a $10,000 fine for a first offense and eighteen months and a $25,000 fine for a second offense; the law also authorized civil suits by private citizens. During debate over the bill, two physicians who performed abortions were shot, one fatally, by anti-abortion activists near the entrances to their clinics. 73 Shortly after it was enacted, the Clinton administration announced that federal prosecutors relied on the new law to arrest six demonstrators at a Milwaukee abortion clinic. The protestors used chains and containers filled with concrete to attach themselves to two cars to block the entrance to the clinic. 74 Media reports indicate that as a result of FACE, "obstructive" abortion protests have appreciably diminished, allowing women to exercise their constitutional right to reproductive freedom in comparative silence and safety. 75 The Rights of Abortion

Protestors

In the mid-1990s, the Court was confronted with cases about the rights of abortion protestors. In National Organization for Women v. Sc he idler76 decided in 1994, the Court considered whether the civil suit brought by NOW, invoking the 1970 Racketeer Influenced and Corrupt Organizations Act (RICO), was applicable to the activities of the protestors. NOW charged that anti-abortion activists, including Terry's Operation Rescue, engaged in a nationwide conspiracy to close abortion clinics through a pattern of conduct that included bombings, vandalism, intimidation, and other forms of violence. RICO is a powerful weapon, enabling the government to file criminal charges against perpetrators and allowing private plaintiffs to collect triple damages if successful. 77 The specific issue before the Court was whether RICO could be used as the basis of a suit against a defendant who seeks to further ideological or political gain rather than economic gain. The lower federal courts were divided on the issue: the Third Circuit ruled that the plaintiff was not required to show that the racketeering enterprise was economically motivated, 78 but the Seventh Circuit required it. 79 Once this hurdle was overcome, the plaintiff had to prove that the defendant had committed at least two

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or more criminal acts as part of a conspiracy to force abortion clinics out of business. In a brief opinion devoted to analyzing the statutory language and assessing its legislative intent, the Court agreed with the Third Circuit and unanimously held that RICO need not be restricted to conspiracies based on furthering economic interests, saying that the statute "contains no economic motive requirement." 8 0 This decision allowed clinics to present evidence to a judge that the defendants committed serious felonies, like bombings or murder, to further the conspiracy. Although the Court noted that the issue of allowing a RICO suit to interfere with the First Amendment rights of the protestors was not before it in this case, Souter, joined by Kennedy, explicitly addressed the First Amendment issue. He pointed out that "nothing in the Court's opinion precludes a RICO defendant from raising the First Amendment in its defense in a particular case." He continued, "I think it prudent to notice that RICO actions could deter protected advocacy and to caution courts applying RICO to bear in mind the First Amendment interests that could be at stake." 81 On April 20, 1998, a federal court jury found for the plaintiffs in the suit initially brought by NOW against the anti-abortion activists more than a decade before. The seven-week trial in the class action suit ended after three days of deliberation by the jury with an award of $85,000 to the two abortion clinics to compensate them for their expenses for security at the clinics. Damages were liable to be tripled by the judge, but the prospect of the clinics collecting any damages from these largely judgment-proof defendants was very slim. 8 2 Although abortion providers had won millions of dollars in judgments since the mid-1990s, they had been unable to collect their awards; similarly, the government was owed millions of dollars in contempt fines from individuals in anti-abortion groups who had become skilled at ridding themselves of assets. 8 3 In addition to RICO suits, abortion rights advocates also asked the courts to enjoin anti-abortion protests that included physical obstruction of clinics and patients and, at times, even violence. Madsen v. Women's Health Center84 was the first case to squarely address the conflict between the First Amendment rights of the demonstrators and women's constitutional rights to choose to terminate their pregnancies. Madsen grew out of a legal confrontation between the Aware Woman Center for Choice in Melbourne, Florida, and Operation Rescue and other anti-abortion groups. 8 5 In 1991, the center was singled out for demonstrations by large numbers of anti-abortion protestors (as many as 400 at a time) who blocked the clinic doors and marched on the street, using bullhorns to convey their anti-abortion message, approaching patients directly to attempt to dissuade them from getting an abortion, and following staff to their homes to demonstrate there as well. Responding to the Center's suit to curb this conduct, in September 1992, a state court judge enjoined the protestors from tres-

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passing on Center property, blocking its entrances, and physically abusing persons entering or leaving the clinic; the court specified that the injunction did not intend to limit the exercise of the protestors' First Amendment rights. About six months later, as the demonstrations continued, with protestors violating the court order, the court modified the injunction to establish a 36foot buffer zone around the clinic entrances and driveways (including the public sidewalk), within which all anti-abortion speech was banned and to prohibit excessive noise ("singing, chanting, whistling, shouting, yelling, and the use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside") during the hours of morning surgery and recovery. 86 Additionally, the court created a 300-foot zone within which protestors were prohibited from approaching patients without their consent and a 300-foot barrier for demonstrations and picketing at the homes of clinic staff members. The Florida Supreme Court unanimously upheld the injunction, declaring that the protestors' activity conflicted with the state's concern for public safety as well as women's right to abortion. 87 The anti-abortion groups also challenged the injunction in federal court, and shortly before the Florida Supreme Court issued its opinion, the federal circuit court ruled that the state court injunction was unconstitutional. 88 The focus of the case before the Supreme Court was the 36-foot buffer zone, with the protestors claiming the state court order was content-based and viewpoint-based and therefore impermissible under the First Amendment; they did not challenge the 300-foot zone in which only invited speech was allowed. 89 The protestors argued that anti-abortion beliefs were targeted by the court order, with pro-choice demonstrators allowed in the buffer zone and anti-abortion demonstrators arrested for violating the injunction. The center contended that the injunction was a proper "time, place, and manner" restriction that indicated no views on abortion and served to protect a variety of government interests, including public safety. Each side asked the Court to apply the level of scrutiny that would lead to the desired outcome: the protestors advocated the use of strict scrutiny, whereas the center requested the lower level of intermediate scrutiny customarily applied to "time, place, and manner" restrictions. 90 The Court's 6 to 3 ruling, announced by Rehnquist in 1994, first addressed the proper form of scrutiny to apply to the restrictions imposed by the state court order. The Court rejected the protestors' claims that the injunction was aimed only at anti-abortion speech. Every injunction, explained the Court, is aimed at a party involved in a particular dispute. That the injunction did not proscribe pro-choice demonstrations is explained by the fact that there were no pro-choice demonstrations. Moreover, the restrictions were not aimed at the content of the speech but rather at the activities of these demonstrators who had repeatedly violated the earlier injunction; the order would be applied

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to all persons engaged in such activities, regardless of their message. However, although it agreed that the injunction was content-neutral and did not merit the strict scrutiny the demonstrators had sought, the Court nevertheless imposed a higher standard of review than it normally applied to "time, place, and manner" laws, contrasting a generally applicable ordinance with the relief ordered by a single judge. This higher standard was "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." 91 Applying this heightened, although not strict, scrutiny standard, the majority upheld the 36-foot buffer zone around the clinic entrances and driveway to preserve access to and from the clinic and to allow the flow of traffic on the street; it also allowed the noise abatement restrictions. It found, however, that the restrictions imposed on access to private property at the back and side of the clinic, as well as the one forbidding protestors from flashing signs and pictures to patients, were unjustified as greater burdens on speech than necessary; similarly, the 300-feet no-approach buffer zone around the clinic and the one at staff residences was too broadly constructed to allow the peaceful expression of protestors' views; it burdened their speech beyond the permissible limits of the government's interests in ensuring access to the clinic and preventing intimidation of the patients and staff. Three years later, in Schenck v. Pro Choice Network of Western New York,92 the Court again addressed permissible limitations on the so-called sidewalk counseling engaged in by anti-abortion protestors. In response to a suit brought by abortion providers, including doctors, hospitals, and clinics, in upstate New York, a federal court judge issued an order that established a 15foot buffer zone outside the clinic entrances and driveway and prohibited such "sidewalk counselors" from being within 15 feet of persons or vehicles entering or leaving the clinic. 93 The order permitted two "counselors" to come closer to have a nonthreatening conversation but required that they cease discussion at the patient's request. Although the demonstrators portrayed their activities as attempts at peaceful persuasion by those holding anti-abortion views, as the Supreme Court opinion indicated, the injunction had been granted (after seventeen months of protests and numerous contempt hearings) to keep access to the clinics open by preventing protestors from demonstrating within 15 feet of clinic entrances. The protestors lost their appeal in the circuit court in a 13 to 2 vote and took their case to the Supreme Court. 94 Reinforcing the principles applied in Madsen, the high court examined the factual circumstances of the dispute and, in a 6 to 3 vote, decided that the behavior of the demonstrators justified the order to create the 15-foot buffer at the entrances to clinic doors and parking lots to maintain public safety, allow traffic to freely flow, and ensure women's access to medical care. In an 8 to 1 vote, however, the Court refused to permit the "floating buffer zone" established around individuals and cars. 95 Applying the Madsen standard, the

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Court held that this part of the injunction infringed on the First Amendment rights of the protestors because they placed unnecessary burdens on speech. Despite his characterization of such encounters turning "into 'in your face' yelling, and sometimes into pushing, shoving, and grabbing," 96 when the women objected to the message conveyed by these sidewalk counselors, Rehnquist held this "floating buffer" zone unconstitutional. It prevented the expression of peaceful views, including handing people leaflets and communicating a message in normal conversational tones, as well as the intimidating conduct. And as such, the Court was not compelled to decide whether the requirement that the "counselors" cease their attempts at persuasion when asked unconstitutionally restricted their speech. Again called on to resolve the conflict over sidewalk counseling and the so-called bubble against interference by anti-abortionists, the Court decided Hill v. Colorado in 2000. 97 Here, the Court had an opportunity to rule on the validity of a 1993 Colorado statute, enacted before FACE, that attempted to protect women seeking abortions by establishing a 100-foot zone around health care facilities and barred persons inside this zone from moving closer than 8 feet to pass out literature, display signs, or engage in sidewalk counseling without the listener's consent. Violation of the law could result in a maximum fine of up to $750 or six months in jail. In a challenge brought by three anti-abortion activists, the Colorado Supreme Court ruled in February 1999 that the law did not violate their First Amendment rights.98 On appeal before the Court, the Clinton administration supported the state court decision. Lawyers for the state and the administration argued that the 8foot barrier did not impede speech or debate because it allowed the protestors to have a conversation with intended clinic patients. In another vote reflecting the 6 to 3 division, the Supreme Court upheld the statute against the First Amendment challenge. The Court first noted that each side had undisputed interests in this conflict: the protestors in the First Amendment and the state in protecting the health and safety of its citizens, especially at medical care facilities. Signaling the direction of the Court, Stevens, who delivered the opinion, indicated that the statute was not aimed at restricting speakers or at the dissemination of any particular views. He stressed the importance of "recognizing] the significant difference between state restrictions on a speaker's right to address a willing audience and those that protect listeners from unwanted communication. This statute," he added, "deals only with the latter." 99 After a lengthy analysis, Stevens joined with the Colorado court to conclude that the statute was a content-neutral "time, place, and manner" restriction because first, it did not regulate speech, just the place where the speech occurred; second, it was not enacted with the intent of restricting a particular message; and third, the state's interests were not related to the content. Additionally, the restriction was narrowly tailored, allowing communication of the protestors' message to listeners—either verbally or with signs and

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pictures. The distance did not preclude the sidewalk counselors from offering leaflets or other written material to individuals walking by them. Lastly, he noted, as with schools and courthouses, the state had a special interest in regulating the area surrounding a health care facility. These cases reveal that the Court was sensitive to the First Amendment rights of the anti-abortion forces and ruled some of the restrictions on their protest activity out of bounds. For the most part, however, a majority endorsed the state's interests in ensuring access to medical care and maintaining public order. And given the often extreme nature of the protest activity, even justices such as Rehnquist and O'Connor, not known for favoring abortion rights, viewed the restrictions as legitimate.

Late-Term Abortions The most recent controversy over abortion rights revolves around a method known as "intact dilation and extraction" (D&X), a procedure almost always performed in the last months of pregnancy when women's lives are endangered or when their fetuses have developed abnormalities. 100 The legal and political battles over the method—known as "late-term" abortion by abortion rights supporters and "partial birth" abortion by opponents of abortion rights—have raged for more than five years, encompassing the courts, Congress, and the executive branch. In 1995, Congress debated a bill (H. R. 1833) that proposed to criminalize partial birth abortions, defined as a procedure in which the doctor "partially vaginally delivers a living fetus before killing the fetus and completing the delivery." 101 The debates often grew rancorous, with charges of cruelty and infanticide from the bill's supporters, who described the procedure in graphic language, and its opponents, who contended that the procedure was rarely used and then only under extreme circumstances, when the mother's life was at risk or when the fetus suffered severe abnormalities. The bill's proponents claimed that it was more frequently used than opponents would admit and that it was often elective. 102 Members of the House were straightforward about their perceptions of the bill and its ultimate effect on abortion rights. Longtime abortion opponent, Republican Robert Doman of California, said, "We've got to start somewhere. . . . we have to take this one step at a time." His California colleague, Lynn Woolsey, a Democrat, charged that the law was a "frontal attack on Roe v. Wade, make no mistake." 103 When the bill was cleared by both houses and sent to the president in March 1996, the final version subjected doctors to federal charges, with up to two years imprisonment or $250,000 in fines, unless they could prove the procedure was necessary to save the woman's life and no other procedure was

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effective; it also allowed the father, if he was married to the woman at the time she received the abortion, and her parents, if she was a minor, to sue the doctor. In vetoing the bill on April 10, 1996, Clinton said that although he disapproved of late-term abortions, he could not sign the bill because it allowed an exception only to save the woman's life and provided no exemption for situations in which a woman's health was at risk. His veto message charged that Congress "fashioned a bill that is consistent neither with the Constitution nor with sound public policy." 104 Although the House narrowly voted to override the president's veto, the vote to override failed to secure the necessary twothirds vote in the Senate. Despite their failure to pass the bill, abortion opponents succeeded in turning public attention away from the issue of a woman's constitutional right established in Roe and focusing it on a particular procedure that much of the public found disagreeable. They also succeeded in making sure that the president's support for abortion rights would be an issue in the 1996 presidential election. In March 1997, another battle to control abortion was underway, focused on a new House bill (H. R. 1122), which was identical to the one passed a year ago. Charges and countercharges flew back and forth, with abortions rights advocates claiming the bill's supporters wanted to outlaw all abortions and were merely aiming at this procedure first. They feared that banning this method of abortion, used in the second and third trimesters, would allow inroads to be made on constitutionally protected second trimester abortions, thus undermining Roe (and even Casey). Proponents of the measure focused on the details of the procedure to gain public support for the ban; they were aided by revelations from an abortion provider's lobbyist, who stated that his earlier testimony had deliberately misrepresented the number of late-term abortions performed. The new House bill passed easily on a vote large enough to override the anticipated veto from the president. With new support coming from the American Medical Association (AMA) in exchange for changes in the wording of the bill to expand protection for doctors, the Senate approved the measure as well. The issue, however, was not about the bill's passage in the Senate, but about whether the vote would be sufficient to override a veto. The 64 to 36 vote was three votes shy of the two-thirds necessary to override. 105 Again, after the House voted to accept the Senate version, amid warnings about the implications for the 1998 congressional elections, the bill was sent to the president. In October 1997, Clinton, reiterating his earlier remarks that he was opposed to the procedure but could not deny it to women who needed it, vetoed it. In his veto message, he explained that he was returning the bill unsigned for the same reasons he rejected the earlier version. He said it was because "H. R. 1122 does not contain an exception to the measure's ban that would adequately protect the lives

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and health of a small group of women in tragic circumstances who need an abortion performed at a late stage of pregnancy to avert death or serious injury." He said he had "asked Congress repeatedly, for almost two years to send [him] legislation that includes a limited exception for the small number of compelling cases where use of this procedure is necessary to avoid serious health consequences." 106 In a familiar pattern, the House voted to override the veto; the Senate could not, and the measure died. In 1999, both houses of Congress again cleared legislation to outlaw this abortion procedure, but they took no further action because the Supreme Court had agreed to review a lower court ruling on a state law banning the procedure. While the battle had been raging in Congress and the White House, more than half the states were also attempting to ban the procedure. But no mater the precise wording of these statutes, when they were challenged in the federal courts, they were almost always found unconstitutional, either because they were unconstitutionally vague or because they placed an undue burcen on a woman's right to abortion by banning the dilation and evacuation (D&E) procedure. Additionally, because the D&X procedure might be safer for a woman than any other method, the state would have been preventing her doctor from performing an abortion that protected her life and health. A Nebraska physician challenged the state's law that automaticaly revoked the medical license of a doctor who "partially delivers vaginally a lving unborn child before killing the unborn child and completing the delivery." The law also subjected the doctor to felony charges, including up to twenty years in prison, a $25,000 fine, or both. The doctor argued that because he D&X is the safest method of abortion for women with pre-viable fetures under certain circumstances, the law imposed an undue burden on women seeking an abortion. 107 Additionally, he claimed that the law, which had lot yet taken effect, was unconstitutionally vague because it contained definitions that were subject to interpretation and therefore misinterpretation. In September 1999, the Eighth Circuit held in Carhart v. Stenberg108 that the Nebraska law was so broadly written that in addition to prohibiting he D&X method of abortion, it also barred doctors from performing a ortionsby the most common and safest method of second trimester abortion, the D&E. 1 0 9 The court explained that, as in Casey, the proper standard for determining the constitutionality of a law restricting abortions of pre-viable fetures was whether it imposed an undue burden on the woman seeking an abortion. In extending to the type of abortion performed in the vast majority of second trimester abortions (the D&E), the law placed a substantial obstacle in the path of women seeking abortions and therefore imposed an undue burden on a woman's right to choose to have an abortion; this burden made the law unconstitutional.

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Shortly after the appeals court decision on the Nebraska law, the Seventh Circuit Court of Appeals ruled in the opposite direction in a case on the constitutionality of Illinois and Wisconsin laws. In the case of Illinois, the penalty for the doctor was three years in prison, in Wisconsin, it was life imprisonment. In Hope Clinic v. Ryan,110 the circuit court held that the laws were not unconstitutionally vague and could be constitutionally applied, depending on how the state courts construed the statutes. The appellate court's primary concern was whether the state courts could define the statute in a way that did not impinge on the performance of procedures other than the D&X method and that clearly marked the bounds of the physician's liability in performing abortions. The court was persuaded that the statutes were capable of constitutional construction in part because the state attorneys general presented assurances that the laws pertained only to the D&X procedure and were not aimed at outlawing the D&E method. 111 The conflict among circuits made it more likely that the Supreme Court would accept a case in which a state's ban on a D&X procedure was challenged. In accepting the Nebraska case for review, the Court effectively placed the national debate over late-term abortions on hold. Considering whether the Nebraska statute violated the Constitution, the high court focused on two issues: the statute's failure to contain an exception to preserve the health of the woman and its limits on a woman's ability to obtain a D&E abortion, which imposed an undue burden on the right to abortion. The ruling in Stenberg v. Carhartwhich was handed down in June 2000, was the Rehnquist Court's first major abortion opinion in eight years. Observers debated whether the Court had expanded abortion rights or was merely applying the Casey ruling to the facts of the case. In announcing the opinion for the 5 to 4 majority, Breyer's opinion clearly indicated that he believed the ruling was within the parameters determined by Casey. He identified three principles that were established in Casey and Roe and upon which the Court now based its decision: first, a woman has a right to terminate her pregnancy before viability; second, a state cannot place an undue burden on a woman's right to terminate her pregnancy before viability; and third, after viability, the state may regulate and even prohibit abortion, unless an abortion is necessary to preserve the life or health of the woman. Breyer began his analysis of these three principles by apologizing for the clinical nature of the discussion and proceeded to give descriptions of the various abortion techniques, focusing on those performed during the second trimester, in which approximately 10 percent of abortions are performed. 113 Echoing the courts below as well as the opponents of the proposed federal law, Breyer held that there were two factors that persuaded the Court that the Nebraska law was unconstitutional. Quoting Casey, he noted that the law

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failed because it did not contain an exception for the health of the mother. It was also deficient because it placed an undue burden on a woman's ability to opt for a D&E abortion—and that places an undue burden on the right to abortion itself. As indicated in Casey, Breyer stressed that the state's interest in a postviability fetus, although not subject to an undue burden test, must nevertheless take into account the life or health of the woman. Moreover, the Nebraska law was not restricted to third trimester abortions. Encompassing those performed in the second trimester as well, when the state has a lesser interest in potential life, it follows logically that there must be a health exception for a second trimester abortion. Furthermore, the law was directed at a specific type of abortion procedure, and the Court, he said, has repeatedly held that it might not subject a woman to greater health risks by regulating the method of abortion. Based on the facts presented in evidence, he rejected the state's contention that outlawing this procedure would not create any risks for the woman because other methods were available. That was simply not supported by the medical testimony in the record; there were situations in which the D&X procedure was the safest for the woman. And, he emphasized, the arguments presented by the state to the contrary were "insufficient to demonstrate that Nebraska's law needs no health exception." 114 The second consideration revolved around the relationship of the two abortion procedures. The state conceded that the statute would place an undue burden on the woman's right to abortion if it applied to the D&E as well as the D&X procedure. Reiterating the findings of the circuit court, Breyer held that the plain language of the statute did not distinguish between the two procedures and was so broadly written that it encompassed both. Whether the state intended to ban the D&X was not the issue, he maintained; the issue was whether the law only affected the D&X or also reached other types of procedures, notably the D&E. The answer, he said, was that it could be applied to both. The state attorney general argued that he interpreted the statute to ban only the D&X procedure, but Breyer rejected this attempt to narrow the application of the statute. In part, Breyer pointed out, the attorney general's opinion was his only and did not bind the state courts, which might not accept his view, nor did it even bind the county prosecutors, who would be responsible for enforcing the law. Moreover, the attorney general's interpretation of the law was flatly contradicted by its text. In essence, the state wanted the Supreme Court to accept the common view that "partial birth" abortion as used in the statute was limited to the D&X procedure. But the Court clearly saw that the law itself did not single out the D&X procedure; the state was making an effort to save the law by distinguishing D&X from the D&E method. The Court stressed that it must find the statute unconstitutional because it would allow state law enforcement officials to "pursue physicians who use 'D&E' procedures, the most commonly used method for performing

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pre-viability second trimester abortions. . . . [and] the result is an undue burden upon a woman's right to make an abortion decision." 115 Stevens's concurring opinion was brief, questioning "how a state has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman" who chooses to exercise her right to an abortion. He added that for the state to distinguish between abortion procedures used late in pregnancy and claim that one was closer to "infanticide" than the other was "simply irrational." 116 Similarly, Ginsburg wrote to question the motives of the legislators who, she believed, were using the law to "chip away at the private choice shielded by Roe v. Wade, even as modified by Casey.O'Connor concurred as well, agreeing that a health exception was required. But she also suggested that Nebraska could have narrowed the application of its statute to encompass only D&X abortions, and had it done so, as other states had, and included a health exception, there would have been a different question before the Court. In lengthy opinions, Rehnquist, Scalia, Kennedy, and Thomas dissented, arguing that Casey had been wrongly applied by the majority and that the right to abortion was being expanded beyond the principles articulated in Casey. They described the procedure in detail and expressed their shock at a society that tolerated it. Additionally, they were concerned that the Court had entirely negated any future efforts by the state to regulate abortion. Kennedy's dissent, as one of the authors of the joint opinion in Casey, suggested another possible shift in the Court's majority. And O'Connor's care in pointing out that a different statute with a health exception would likely have been acceptable to her will no doubt return this issue to the forefront of politics again. Although proponents of the ban in a number of states vowed to fight on, they were faced with the Court's insistence on a health exception in the law. But most of the laws that were enacted during the heyday of the laws on partial birth abortions did not contain health exceptions because supporters feared that an exception that was acceptable to the courts would defeat their efforts to outlaw the procedure. Additionally, if abortion foes were trying to make inroads into Casey and regulate abortion more generally, as Ginsburg suggested, they were confronted with the choice of whether to outlaw only this procedure with a narrowly written statute or write a broader statute that was worded so generally that the courts would apply the reasoning in Carhart and strike it on grounds of vagueness and overbreadth.

Conclusion Following Thornburgh, the satisfaction of the pro-choice advocates began to ebb. The four dissenting judges challenged the Thornburgh majority's view on a woman's access to abortion and called for a searching reexamination, if

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not an outright reversal, of Roe. Three years later, a new majority emerged and took up the challenge. Meanwhile, the politics of abortion continued to rage in the nation. The pro-choice forces found themselves on the defensive, with the anti-abortion activists more optimistic about their chances for ending abortion rights. Although a majority of the Supreme Court had voted to maintain abortion rights, the numbers had declined over time: the 7 to 2 pro-choice vote in 1973 had dwindled to a 5 to 4 pro-choice vote in 1986. The tide seemed to be turning, and when the Supreme Court announced its decision in the 1989 Webster case, it was confirmed that a new majority had formed that was willing to erode abortion rights. Five justices voted to allow the state to curtail a woman's right to terminate her pregnancy. And although Roe itself was not formally overruled, three justices signaled that they were willing to accept sharp inroads into Roe, with Scalia stating outright he would overturn Roe. Webster galvanized pro-choice advocates, and the issue of abortion rights assumed an important role on the political agenda, with statewide elections often turning on a candidate's views on the issue. Meanwhile, a number of state legislatures eagerly accepted the Court's apparent invitation to challenge Roe with new abortion restrictions, making it more difficult for women to obtain abortions, in part by increasing penalties on doctors who provide them. Although abortion was still available, there was certainly no security that it would remain so. The Supreme Court took center stage in the abortion controversy again by agreeing to decide the constitutionality of the Pennsylvania law that, among other things, required married women to notify their husbands before doctors could perform the abortion. Again, both sides held their breath, the anti-abortion activists anticipating that the Court would finally grant them their wish and overturn Roe, and the pro-choice side all but convinced abortion rights were doomed. To the surprise of many, the Court refrained from overturning Roe. Nevertheless, a majority upheld the bulk of the law's restrictions, refusing only to accept the spousal notification provision. After the 1992 Casey decision, the Court drew back from deciding abortion rights cases, having created another uneasy compromise: saving Roe yet allowing states greater latitude in regulating the procedure. And Clinton, the pro-choice president who won the 1992 election, appointed two justices who were more sympathetic to the pro-choice position. However, the controversy erupted again as the anti-abortion activists began to focus on the late-term abortion procedure. They lobbied the state legislatures and Congress, presenting graphic descriptions of the procedure they called "partial birth abortion." Each side again geared up for the court battles, and once again, the issue came to the Supreme Court. With the Clinton-appointed justices in place on the Rehnquist Court, a majority voted to strike the Nebraska law because it

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did not contain an exception for the woman's health. At the end of the day, the Court refused to allow the state to ignore women's health concerns. Far from resolved, the debate over abortion rights is certain to continue, and with the likely Supreme Court nominees presented by the Bush administration, women's access to abortion remains at risk. Although the major battles have been won—albeit very narrowly—abortion rights are very precarious, only a vote away from eradication.

Notes 1. New York Times, January 16. 1998; see also, Congressional Quarterly, January 17, 1998, pp. 127-128; New York Times, January 17, 1998; New York Times, January 20, 1998. 2. 492 U.S. 490 (1989). 3. New York Times, July 4, 1989. 4. New York Times, April 10, 1989; Congressional Quarterly, April 29,1989, pp. 973-975. 5. New York Times, April 27, 1989. 6. Webster, 492 U.S. at 490. The lower court struck the provision of the state law requiring all abortions at sixteen weeks gestational age to be performed in hospitals. The appellate court affirmed, and the state did not appeal the lower court's ruling on this issue to the Supreme Court. 7. Reproductive Health Services v. Webster, 851 F.2d 1071, 1076 (8th Cir. 1988). 8. In her concurrence, O'Connor rejected the argument that the preamble made postfertilization contraceptive choices and in-vitro fertilization (where fertilized ova may be destroyed) illegal. Recognizing that earlier cases protected such choices, she said there was nothing in the record to indicate that the preamble would have such an effect. 9. Webster, 492 U.S. at 539 n. 1. 10. Webster, 492 U.S. at 510. 11. For a discussion of the First Amendment implications of the Missouri law challenged in Webster, see Rachel Pine, "Abortion Counseling and the First Amendment: Open Questions After Webster," American Journal of Law and Medicine 15 (1989): 189-197. 12. Webster, 492 U.S. at 513. 13. Walter Dellinger and Gene B. Sperling, "Abortion and the Supreme Court: The Retreat from Roe v. Wade," University of Pennsylvania Law Review 138 (1989),: 83. 14. Webster, 492 U.S. at 517. 15. Webster, 492 U.S. at 521. 16. Webster, 492 U.S. at 526. 17. Webster, 492 U.S. at 532. 18. Webster, 492 U.S. at 537. 19. Webster, 492 U.S. at 538. 20. Webster, 492 U.S. at 557-558. 21. Webster, 492 U.S. at 560.

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22. See Malcolm L. Goggin, "Understanding the New Politics of Abortion," American Politics Quarterly 21 (1993): 4-30. 23. Congressional Quarterly, March 10, 1990, pp. 765-775. 24. New York Times, October 12, 1989. 25. Washington Post National Weekly Edition, July 9-15, 1990. 26. New York Times, July 28, 1990. 27. Congressional Quarterly, May 19, 1990, p. 1575. 28. Chicago Tribune, July 5, 1990. 29. Janet Benshoof, "The Legacy of Roe v. Wade," in Jay L. Garfield and Patricia Hennessey, eds., Abortion (Amherst: University of Massachusetts Press. 1984), p. 42. 30. Congressional Quarterly, May 19, 1990, pp. 1573-1575. 31. The statute provided that the bypass procedure must remain confidential, that it be expedited, that the minor be given court-appointed counsel if desired, and have twenty-four-hour, seven-day-a-week access to the court. Appeal is permitted for a court order denying an abortion but is not allowed for an order authorizing an abortion without notice. Hodgson v. Minnesota, 497 U.S. 417 (1990). 32. Hodgson v. Minnesota, 853 F.2d 1452, 1465 (8th Cir. 1988). 33. New York Times, August 9, 1988. 34. Hodgson, 497 U.S. at 417. 35. Hodgson, 497 U.S. at 437. 36. Hodgson, 497 U.S. at 457. 37. Hodgson, 497 U.S. at 461. 38. Washington Post, June 26, 1990. 39. 497 U.S. 502(1990). 40. 520 U.S. 292 (1997). 41. More recently, in 1999, the Court let stand a federal appeals court ruling that upheld a Virginia parental notice requirement. Although the lower courts have imposed some conditions on judicial bypass procedures (such as requiring expedient review), laws mandating parental involvement in a minor woman's abortion decision have generally been upheld; see, for example, Planned Parenthood of Southern Arizona v. Lawall, 1999 U.S. App. LEXIS 33154 (9th Cir. 1999). 42. Miami Herald internet News, July 27, 1999. 43. New York Times, June 30, 1992. 44. Congressional Quarterly, August 25, 1990, pp. 2713-2719. 45. 505 U.S. 833 (1992). 46. New York Times, October 25, 1989. 47. In 1979, in Colautti v. Franklin, 439 U.S. 379 (1979), the Supreme Court ruled on an earlier version of the law that had imposed criminal penalties on physicians who failed to preserve the life of a viable fetus or one they had "sufficient reason to believe" was viable by requiring them to use the abortion technique most likely to save the fetus unless another technique was necessary to preserve the woman's life or health. In a 6 to 3 decision, the Court had found the duty imposed on the physician unconstitutionally vague because it did not indicate when the doctor's duty to the fetus came into play and how the risks of the survival of the fetus and the survival of the woman should be balanced. Such a law, Blackmun said, intimidates physicians from performing abortions. 48. This information had to be presented by the doctor performing the abortion or the referring doctor. Other information, such as the availability of printed material on fetal development, the legal obligation of the father to support the child, and the oppor-

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tunity for medical assistance from the state for childbirth, could be presented by a "qualified nonphysician." 49. See L. Anita Richardson, "Parsing Roe v. Wade: Will the Court Reaffirm the Right to Choose but Make It Easier for States to Regulate?" American Bar Association Preview of United States Supreme Court Cases (May 15, 1992), for analysis of the legal issues involved in Casey. 50. Planned Parenthood of Southeastern Pennsylvania v. Casey, 1990 U.S. Dist. Lexis 15775 (D. Pa. 1990). 51. Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682, 694 (3d Cir. 1991). 52. Congressional Quarterly, January 25, 1992, pp. 167-171. 53. Rehnquist, Scalia, White, and Kennedy had applied a less stringent test for abortion regulations in Webster but did not give it a formal name; O'Connor has used the "undue burden" standard since City of Akron. 54. New York Times, April 23, 1992. 55. Congressional Quarterly, April 25, 1992, pp. 1074-1076. 56. Casey, 505 U.S. at 845-846. 57. The opinion pointed out that advances in medical care have affected the onset of viability since Roe. However, even five years after Casey, the debate over when a fetus becomes viable continued. Most doctors agree there is no way to set a firm date because too many factors, such as the health of the mother, the extent of her prenatal care, and the development of the fetus, affect it. In 1973, most doctors were agreed that fetuses reached viability at about twenty-six weeks, out of the normal forty weeks. Over the next two decades, it appeared to drop by one or two weeks, but fewer than 40 percent of infants b o m from twenty-three to twenty-five weeks survive, and those that do have severe disabilities. One doctor characterized an appraisal of viability as "an assessment of anticipated and assigned degree of probability. That's the reason the question becomes gray." New York Times, May 16, 1997. 58. Casey, 505 U.S. at 874. 59. Casey, 505 U.S. at 877. 60. Casey, 505 U.S. at 922-923. 61. Casey, 505 U.S. at 944. 62. New York Times, June 30, 1992. 63. New York Times, June 30, 1992. 64. John Henn and Maria Del Monaco, "Civil Rights and RICO: Stopping Operation Rescue," Harvard Women's Law Journal 13 (1990): 251-277, describe the tactics of these abortion protestors; see also Laurence Tribe, Clash of Absolutes (New York: Norton, 1992). 65. See Georgia M. Sullivan, "Protection of Constitutional Guarantees Under 42 U.S.C. Section 1985(3): Operation Rescue's 'Summer of Mercy,'" Washington and Lee Law Review 49 (1992): 237-262. 66. New York Times, August 8, 1991. 67. Clinics play an important role in the delivery of abortion services; they are cheaper, more easily accessible, and generally have more supportive staff than hospitals. 68. Operation Rescue emerged during the late 1980s as the predominant antiabortion protest group; see National Organization for Women v. Operation Rescue, 726 F. Supp. 1483 (E.D. Va.1989) for a discussion of the organization and its goals. The group was perhaps best known for its demonstrations in Atlanta during the 1988 Democratic National Convention. The group was founded by anti-abortionist Randall

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Terry, a used car salesman, to shut down abortion facilities; see Henn and Monaco, "Civil Rights and RICO." 69. 506 U.S. 263 (1993). 70. New York Times, June 7, 1994. 71. Congressional Quarterly, February 6, 1993, p. 271. 72. New York Times, May 27, 1994. 73. See New York Times, May 27, 1994; Congressional Quarterly Weekly, April 13, 1996. 74. New York Times, June 7, 1994. 75. New York Times, January 18, 1998. 76. 510 U.S. 249(1994). 77. A civil RICO suit requires a plaintiff to prove that "(1) the defendant (2) through the commission of two or more acts (3) constituting a pattern (4) of racketeering activity (5) directly or indirectly invest[ed] in, or maintain[ed] an interest in (6) an enterprise (7) the activities of which affect[ed] interstate or foreign commerce." Geri Yonover, "Fighting Fire with Fire: Civil RICO and Anti-Abortion Activists," Women's Rights Law Reporter 12 (1990): 156-157. 78. National Women's Center v. McMonagle, 868 F.2d 1342 (3d Cir. 1989). 79. National Organization for Women v. Scheidler, 968 F.2d 612 (7th Cir. 1992). 80. National Organization for Women, 510 U.S. at 262. 81. National Organization for Women, 510 U.S. at 263-264. 82. Chicago Tribune, April 21, 1998. 83. New York Times, June 11, 1994. 84. 512 U.S. 753 (1994). 85. Judy Madsen and the other named parties in the cases were purportedly not members of Operation Rescue. 86. Madsen, 512 U.S. at 760. 87. Operation Rescue v. Women's Health Center, Inc., 626 So.2d 664 (Fla. 1993). 88. Cheffer v. McGregor, 6 F.3d 705 (11th Cir. 1993). 89. The Florida Supreme Court opinion was the case on appeal before the Supreme Court. 90. See Ward v. Rock Against Racism, 491 U.S. 781 (1989); Frisby v. Schultz, 487 U.S. 474 (1988); Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983); for discussions of the standards applied to content-neutral and content-based restrictions on speech. 91. Madsen, 512 U.S. at 765. 92. 519 U.S. 357 (1997). 93. By 1997, it was reported that such buffer zones applied to about one-third of the nation's 900 abortion clinics. New York Times, February 20, 1997. 94. Pro-Choice Network v. Schenck, 67 F.3d 377 (2d Cir. 1995); the appellate court upheld the injunction in its entirety. 95. As in Madsen, the dissent consisted of Scalia, Thomas, and Kennedy; the eight-justice majority on the "floating buffer" issue included all but Breyer. 96. Schenck, 519 U.S. at 363. 97. 530 U.S. 703 (2000). 98. Hill v. City of Lakewood, 973 P.2d 1246 (Col. 1999). 99. Hill, 530 U.S. at 715-716. 100. A D&X is a variation of the procedure known as "dilation and evacuation" (D&E). In the more customary D&E, the cervix is dilated, and the fetus is extracted from the womb by forceps or a suction device. Because of the size of the fetus in a second trimester abortion, the fetus may not be removed intact; dismemberment occurs

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after part of the fetus is extracted from the womb. The D&X, performed from sixteen to twenty weeks gestation, differs from the D & E in that in the D&X, the intact fetus is partially delivered in a breech position from the cervix into the vagina. Because the head is too large to pass through the partially dilated cervix, the physician must evacuate the cranial contents in order to deliver the fetus. The contrast between the two methods is not great, and it is difficult to draw a clear line between the two. In the D&E, fetal demise occurs after dismemberment; in the D&X, fetal demise occurs after the cranial contents are evacuated. See Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999) for a discussion of the two procedures. 101. The bill uses terms that are not medically recognized and are not limited to just one type of procedure. New York Times, March 28, 1996. 102. It is difficult to determine how often the procedure is performed because records are not kept on the type of procedure used in an abortion. What is known is that fewer than 1.5 percent of abortions are performed after twenty weeks of gestation. New York Times, March 28, 1996. 103. Congressional Quarterly, November 4, 1995. 104. Congressional Quarterly, April 13, 1996. 105. New York Times, May 21, 1997. 106. Congressional Quarterly, October 18, 1997. 107. Although the procedure may be performed on women before or after the twentieth week of pregnancy, the Nebraska case addressed only pre-viability abortions. An earlier Ohio case included a ruling on the procedure involving viable fetuses. 108. Carhart, 192 F.3d at 1142. 109. The appellate court declined to rule on the vagueness argument because the law failed on undue burden grounds. 110. 195 F.3d 857 (7th Cir. 1999). 111. The Seventh Circuit noted that if the law reached the D & E method of abortion, it would be an undue burden on the woman and therefore unconstitutional. 112. 530 U.S. 914 (2000). 113. Carhart, 530 U.S. at 924-929. The Court largely relied on the findings of the lower court and also cited Dr. Carhart's testimony as well as medical textbooks. The medical evidence indicated that the " D & X " procedure was often preferable to the " D & E " at certain stages of pregnancy because of concerns about the woman's safety. 114. Carhart, 530 U.S. at 934. 115. Carhart, 530 U.S. at 945-946. 116. Carhart, 530 U.S. at 946-947. 117. Carhart, 530 U.S. at 952. This view was first expressed by Seventh Circuit Judge Richard Posner in his dissent in Hope Clinic in 1999.

Conclusion: Elusive Equality

T

HE CHAPTERS IN THIS BOOK EXAMINED THE WAY IN WHICH WOMEN'S RIGHTS

advocacy, public policy, and the law played a role in the struggle for sex equality in the United States. Emphasizing judicial decisionmaking through analysis of Supreme Court and lower federal court cases, as well as policymaking by the legislative and executive branches, the book presented the story of the battle for women's rights since the 1960s. In tracing the development of sexual equality in law during that period, it assessed the constitutional sex equality doctrine that arose in response to challenges to legislative sex-based classifications. After surveying the judiciary's response to demands for equality in education, through judicial interpretation of the constitutionality of single sex schools and implementation of the law forbidding discrimination on the basis of sex in federally funded institutions, it focused on the quest to ban discriminatory employment practices, including sexual harassment. Within the context of equal employment opportunity, the book explored pay inequity and its relationship to the sex-segregated labor force, the evolution of equal employment law and affirmative action, the special concerns of career advancement for business and professional women, and the problems that confront women trying to negotiate their obligations to their families and work. The increasing number of employed women with children meant that the conflicting demands of family and work were especially acute for pregnant women workers. Feminists were divided in their beliefs about pregnancy and work: some believed pregnancy should be recognized as a special situation and that employers must accommodate the needs of pregnant women workers; others felt that pregnant women should not be given special privileges and must be treated as other employees temporarily incapable of working. 283

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Last, the book examined the ebb and flow of abortion policy, noting the victories for women's rights advocates throughout the 1970s and 1980s as the Burger Court, expanding the right to privacy generally, held that it encompassed a woman's right to choose to terminate her pregnancy. Since then, states have sought to reverse the Court's position on reproductive rights by enacting abortion regulations that restrict women's choices. For the most part, they have been unsuccessful, with the notable exception of poor women and young women. However, more recently, the states have gained back a measure of control over abortion policy, although not as much as abortion opponents would like.

Public Policy and Legal Change For most of the twentieth century, women's rights advocates were not well served by the courts. In cases involving women's right to vote, the right to self-determination in the workplace, and the right to serve on juries, the courts were wedded to the status quo and saw no reason to depart from society's prevailing beliefs about fixed sex roles. Reflecting their commitment to the philosophy of separate spheres, they upheld laws restricting women's opportunities and denying them equality in both public and private life. Dedicated to expanding individual rights during the latter part of the twentieth century and in response to increasing pressure from women's rights groups, Congress enacted a variety of laws banning discrimination on the basis of sex. Endeavoring to solidify these rights on the ground, women discovered that getting laws passed was only the first step toward achieving sexual equality. In many cases, legislative victories required judicial implementation for effective enforcement. Feminists, mostly liberal feminists, embarked on a campaign to secure women's rights, relying in large part on litigation as a weapon in their fight to expand sexual equality. Consequently, women's rights litigation served as a focal point in the debate over the status of women in society, and the victories became a barometer of the feminists' success in furthering social reform. Over time, the courts played an increasingly important role in defining sexual equality, with women demanding that they make good on the promise of equal treatment under the law. It was not surprising that women turned to the courts. Because most reform movements in the United States are infused with concepts of legal equality, the courts frequently served as the arena for the debate over social change. Following the example of other minority groups seeking to empower themselves, women made use of litigation strategy for two ends: to cement legislative or administrative gains in antidiscrimination policy and to raise constitutional challenges to existing discriminatory laws or policies at the state and federal level.

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The appeals for judicial support in the effort to expand sexual equality had mixed results. The courts struck laws based on stereotypical generalizations about women and men's roles, ruling that they conflicted with the guarantees of the equal protection clause. In striking the laws, the courts recognized that society had become more complex and that women functioned in the public sphere—as citizens and wage earners—in addition to playing roles in the private sector. Ironically, however, although these cases reflected the rising feminist consciousness in the nation, most of the plaintiffs were men. At times, it was difficult to discern whether the courts' concern about past discrimination was a help or hindrance to women's desire for greater equality. Perhaps reflecting their cultural biases, judges upheld laws that purportedly compensated women for their economic disadvantages, not questioning whether the modest benefits provided were worth the cost of allowing society to continue to draw legal distinctions between the sexes. Ultimately the Supreme Court's refusal to delve into the complex relationship between physiological sex differences and societal norms meant that laws grounded in real or imagined biological differences survived. More important, their reliance on biological determinism indicated their unwillingness to break with the past and repudiate the separate spheres philosophy lurking in constitutional sex equality doctrine. In such circumstances, just when their review should have been most rigorous, the courts often relaxed their inquiry, merely requiring that the legislation be reasonable. And by not probing the cultural biases behind the legislation, the courts accepted superficial justifications for laws implicating biological differences between the sexes. Even in the new millennium, the Supreme Court approved a law reflecting the prevailing sex role norms, couching it as a law based on biological sex differences. In doing so, the Court helped ensure that physical sex differences would continue to play a role in structuring the nation's laws. Most feminists argue that the courts should apply a more exacting review to laws implicating the sexes, especially those enshrining culturally derived beliefs about men and women's roles; they urge the courts to show more sensitivity to the harm perpetuated by such sexbased classifications. And although there are differences among feminists, they agree on these principles: first, that laws based on biological differences should be included within sex equality doctrine; and second, that such laws rest on sex role stereotypes and should not be validated. From a feminist perspective, the courts should apply a more rigorous analysis to sex-based classifications. Whether strict scrutiny will accomplish the ends sought is not known, but equal protection doctrine must recognize the reality of biological differences between the sexes and yet not permit the differences to overwhelm the principles of equal opportunity and legal equality. As the cases indicated, the danger arises when the courts allow biological sex differences that are enmeshed with cultural norms to justify their decisions. Adopting a more meaningful review of sex-based classifications will

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likely advantage men in the short run, but at the end of the day, the demise of most sex-based classifications should yield positive results for women. Applying strict scrutiny would also underscore the fact that the courts view sex-specific laws as presumptively unconstitutional because sex, like race, is an immutable characteristic that is unrelated to ability. It would serve as a warning to policymakers that sex is no longer an acceptable basis for classifying individuals. Urging the courts to adopt strict scrutiny, however, runs the risk that they will follow a formulaic approach to sex-based classifications and undermine legislative attempts to equalize conditions in the workplace where women are disproportionately burdened, such as during pregnancy. That the advocacy of strict scrutiny doctrine, desirable in a number of ways, is fraught with peril is indicated by the debate over national pregnancy policy. Until a few decades ago—with the federal courts' acquiescence—women's rights advocates challenged laws that treated pregnant women less favorably than other workers, laws that denied them benefits solely on the basis of their pregnancy. After Congress stepped in to reaffirm that discrimination on the basis of pregnancy constituted discrimination on the basis of sex, a pregnant woman could not be treated as an anomaly of the workplace, banished for the duration of her pregnancy and denied the benefits granted to other workers. All feminists recognized that the workplace must be restructured to allow men and women to share responsibilities for work and family but disagreed among themselves about how pregnant women should be treated by their employers. Their quandary stemmed in part from their ambivalence about the interpretation of the Pregnancy Discrimination Act—specifically, what to do when employers adhere to its nondiscrimination principles and deny disability benefits to their employees on an equal, sex-neutral basis. The debate focused on the degree to which pregnant women are entitled to special consideration in the workplace and, more precisely, whether employers should be required to institute an affirmative action program accommodating the needs of pregnant women. Advocates of the special treatment approach rightfully insist on a compensatory policy for pregnancy; without it, women are disproportionately burdened and unable to compete equally in the job market. Surely, if the PDA were intended to end discrimination against working women in the late 1970s, it should not embody the source of discriminatory policies today. To argue to the contrary defies logic and raises doubts about the real value of the PDA for working women. There is reason to believe that the special treatment approach will be able to withstand an equal protection challenge - even under strict scrutiny—for the government has a compelling interest in furthering women's workplace equality. Thus, a policy limited to the course of the pregnancy should pass constitutional muster.

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For the most part, the debate over pregnancy policy was put aside since the passage of the Family and Medical Leave Act, a law adopting a sex-neutral approach to disability leave. Hardly the perfect solution, however, the FMLA reflects a class bias in that only women who can afford to take time off from work without pay are able to take advantage of it. Thus, it appears the debate over pregnancy policy in the United States is far from resolved. The results are also mixed with respect to ensuring legal equality in the nation's schools and in the labor force more generally. Without formally declaring an end to separate but equal on the basis of sex, the courts gradually accepted the view that single-sex public education violates the Constitution. And while expressing reservations, they finally became sensitive to the need to expand women's rights in the workplace and at school by implementing laws to ban sexual harassment. Progress was slow, however; it took over a decade for the courts to acknowledge that sexual harassment was a form of sex discrimination that affected the working and educational activities of its victims. And there is still a reluctance to hold employers and school districts liable for the actions of their employees. Although more recently courts have been inclined to accept laws and policies regulating women's reproductive rights, initially, women's rights advocates were rewarded when they first sought to expand reproductive rights through litigation. Not known for an expansive approach to individual rights, the Burger Court did promote women's rights through its privacy doctrine, and beginning in 1973, the Court was on the forefront of abortion rights for almost two decades. Gradually, these rights have been whittled away, and more restrictions have been allowed, but the basic principle has remained intact: women may choose to have an abortion. Not easily in many cases and often not if they are young or poor. Despite the backsliding, the courts have been the most consistent supporters of a woman's right to choose. The threat to abortion rights is real, however, with the possibility that Bush judicial appointees will carry out the anti-abortion agenda of the Republican Party. It became apparent to feminists that in women's rights litigation, as in other social reform litigation, judicial decisions prompted further litigation to test the limits of change. And as women right's advocates also discovered, judicial rulings served as catalysts to legislative and executive actions. On a number of occasions, such as when judicial rulings led to constrained interpretations of the 1964 Civil Rights Act and the 1972 Education Amendments, Congress stepped in to reverse the judiciary. Despite their efforts to further equality in the workplace, the courts failed to provide meaningful relief for the problem of pay inequity between men and women. Only willing to extend the law to the limits of the Equal Pay Act, the federal courts refused to grant relief under the theory known as comparable worth. Here again, public officials at the state and local government levels

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attempted to compensate for the courts' deficiencies by enacting legislation; it is widely recognized that such actions were not highly successful. On balance, the fight for legal equality through litigation proved to be worthwhile for women's rights advocates. In part as a result of their campaign of litigation activity, they succeeded in attaining rights they could only dream of fifty years ago. However, as this analysis recognized throughout, law and politics were not perfect methods for transforming the United States into a more egalitarian society. Pay equity is still a widespread problem, as is the scarcity of women in the higher levels of corporate and government decisionmaking; there are persistent attempts to constrain women's reproductive freedom, and perhaps most important, society is still hesitant about taking meaningful steps to help women and men integrate their work with their family lives. Thus, despite important achievements in the law, society is not at the point where the differences between the sexes are interesting and intriguing but not determinative of a person's rights and stature. Each of the chapters in this book presented the gains made toward achieving equality and highlighted conditions and concerns that need to be addressed to move beyond the present. Society has progressed since the days Abigail Adams urged her husband to "remember the ladies" and when judges and other public officials had no hesitancy in saying that "woman is still regarded as the center of home and family life" or that women are " u n f i t . . . for many of the occupations of civil life." But although the United States is closer to achieving the goal of a more equal and just society, for now, at the beginning of this new century, equality is still elusive.

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Index of Cases

Abraham v. Graphic Arts International Union, 660 F.2d 811 (D.C. Cir. 1981), 202 Adarand Constructors v. Pena, 515 U.S. 200 (1995), 103 Albemarle Paper Company v. Moody, 422 U.S. 405 (1975), 78-79, 81 Alexander v. Yale University, 631 F.2d 178 (2d Cir. 1980), 67 Allred v. He aton, 336 S.W.2d 251 (Tex. Civ. App. 1960), 64 American Federation of State, County, and Municipal Employees v. Washington, 578 F. Supp. 846 (W.D. Wash. 1983), 118 American Federation of State, County, and Municipal Employees v. Washington, 770 F.2d 1401 (9th Cir. 1985), 107, 118-119, 120 American Nurses' Association v. Illinois, 783 F.2d 716 (7th Cir. 1986), 107, 119 Anderson v. Methodist Evangelical Hospital, 464 F.2d 723 (6th Cir. 1972), 153 Barnes v. Cosile, 561 F.2d 983 (D.C. Cir. 1977), 133, 134, 135, 138, 153 Barnes v. Train, 13 Fair Employment Practice Cases 123 (D.D.C. 1974), 132, 133 Batson v. Kentucky, 476 U.S. 79 (1986), 37 Beai v. Doe, 432 U.S. 438 (1977), 222, 231 Bellotti v. Baird, 428 U.S. 132 (1976), 242-243 Bellotti v. Baird, 443 U.S. 622 (1979), 222, 229, 257, 258 Berkelman v. San Francisco Unified School District, 501 F.2d 1264 (9th Cir. 1974), 41 Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), 242 Board of Directors of Rotary International v. Rotary Club ofDuarte, 481 U.S. 537 (1987), 159, 176, 184 Board of Trustees ofKeene State College v. Sweeney, 439 U.S. 24 (1978), 99 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), 219 Boiling v. Sharpe, 347 U.S. 497 (1954), 34 Bradwell v. Illinois, 83 U.S. (16 Wall) 130 (1873), 7-8, 163 Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993), 264 Bray v. Lee, 337 F.Supp. 934 (D. Mass. 1972), 41 Briggs v. City of Madison, 536 F. Supp. 435 (W.D. Wis. 1982), 126 Brown v. Board of Education, 347 U.S. 483 (1954), 39, 43, 44, 78 Brown v. Porcher, 660 F.2d 1001 (4th Cir. 1981), 198

303

304

INDEX OF CASES

Bundy v. Jackson, 19 Fair Employment Practice Cases 828 (D.D.C. 1979), 136-137 Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981), 134, 137, 138 Burlington Industries v. Ellerth, 524 U.S. 742 (1998), 35, 134, 148-149 Caban v. Mohammed, 441 U.S. 380 (1979), 17, 22 Calcote v. Texas Educational Foundation, 578 F.2d 95 (5th Cir. 1978), 153 Califano v. Goldfarb, 430 U.S. 199 (1977), 17, 18, 19 Califano v. Webster, 430 U.S. 313 (1977), 17, 19 Califano v. Westcott, 443 U.S. 76 (1979), 17, 18 California Federal Savings and Loan v. Guerra, 758 F.2d 390 (9th Cir. 1985), 195 California Federal Savings and Loan v. Guerra, 479 U.S. 272 (1987), 187, 194-197,199, 200 Cannon v. University of Chicago, 559 F.2d 1063 (7th Cir. 1976), 55 Cannon v. University of Chicago, 441 U.S. 677 (1979), 51, 55-56, 58 Cape v. Tennessee Secondary School Athletic Association, 424 F.Supp. 732 (E.D. Tenn. 1977), 67 Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999), 272, 281 Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87 (8th Cir. 1977), 153 Cheffer v. McGregor, 6 F.3d 705 (11th Cir. 1993), 267 Chittister v. Department of Community and Economic Development, 226 F.3d 223 (3d Cir. 2000), 218 Christensen v. Iowa, 563 F.2d 353 (8th Cir. 1977), 107, 115 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), 222, 234-236, 237, 239, 259, 260, 261, 262, 279 City of Boerne v. Flores, 521 U.S. 507 (1997), 219 Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974), 186-187 Clinton v. Jones, 520 U.S. 681 (1997), 146-147, 156 Colautti v. Franklin, 439 U.S. 379 (1979), 222, 278 Compston v. Borden, Inc., 424 F.Supp. 157 (S.D. Ohio 1976), 153 Connecticut v. Menillo, 423 U.S. 9 (1975), 241 Connecticut v. Teal, 457 U.S. 440 (1982), 100 Come v. Bausch and Lomb, 390 F. Supp. 161 (D. Ariz. 1975), 132 Corning Glass Works v. Brennan, 417 U.S. 188 (1974), 107, 110 Cort v. Ash, 422 U.S. 66 (1975), 67 County of Washington v. Gunther, 452 U.S. 161 (1981), 107, 116-117 Craig v. Boren, 429 U.S. 190 (1976), 14-15, 17, 18 Dandridge v. Williams, 397 U.S. 471 (1970), 243 Davis v. Monroe, 526 U.S. 629 (1999), 35, 51, 6 0 - 6 2 Department of Transportation v. Paralyzed Veterans of America, All U.S. 597 (1986), 53 Diamond v. Charles, 476 U.S. 54 (1986), 245 Diaz v. Pan American World Airways, 442 F.2d 385 (5th Cir. 1971), 73 Doe v. Bolton, 410 U.S. 179 (1973), 222, 223, 226-227, 241 Doe v. University of Illinois, 138 F.3d 653 (7th Cir. 1998), 68 Dothard v. Rawlinson, 433 U.S. 321 (1977), 73, 74-75, 79-80, 81 Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857), 33 Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991), 37 Eisenstadt v. Baird, 405 U.S. 438 (1972), 223, 224, 239 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), 134, 141, 142-143

INDEX OF CASES

305

Equal Employment Opportunity Commission v. Arabian American Oil Company, 499 U.S. 244 (1991), 87 Ezold v. Wolf, Block, Schorr, and Solis-Cohen, 751 F. Supp. 1175 (E.D. Pa. 1990), 166-167 Ezold v. Wolf, Block, Schorr, and Solis-Cohen, 1991 U.S. Dist. LEXIS 10270 (E.D. Pa. 1991), 167 Ezold v. Wolf, Block, Schorr, and Solis-Cohen, 758 F. Supp. 303 (E.D. Pa. 1991), 182 Ezold v. Wolf, Block, Schorr, and Solis-Cohen, 983 F.2d 509 (3d Cir. 1992), 159, 167-168, 182 Faragher v. City of Boca Raton, 524 U.S. 775 (1998), 134, 148, 149-150 Faro v. New York University, 502 F.2d 1229 (2d Cir. 1974), 160 Fiallo v. Bell, 430 U.S. 787 (1977), 17, 22, 28 Firefighters Local Union #1784 v. Stotts, 467 U.S. 561 (1984), 91, 102 Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506 (8th Cir. 1977), 153 Flowers v. Crouch-Walker, 552 F.2d 1277 (7th Cir. 1977), 153 Frank v. Ivy Club, 576 A.2d 241 (N.J. 1990), 177 Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), 51, 57-58, 59 Frisby v. Schultz, 487 U.S. 474 (1988), 280 Frontiero v. Richardson, 411 U.S. 677 (1973), 13-14, 17, 18, 19, 189 Fullilove v. Klutznick, 448 U.S. 448 (1980), 102 Furnco Construction Company v. Waters, 438 U.S. 567 (1978), 99 Garber v. Saxon Business Products, 552 F.2d 1032 (4th Cir. 1977), 153 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), 123 Garrett v. Board of Education, 775 F. Supp. 1004 (E.D. Mich. 1991), 63 Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), 51, 59-60, 61 Geduldig v. Aiello, 417 U.S. 484 (1974), 17, 20, 187, 188-190, 191, 198, 213 General Electric Company v. Gilbert, 429 U.S. 125 (1976), 187, 190-191, 192, 193, 194 Georgia v. McCollum, 505 U.S. 42 (1992), 37 Goesaert v. Cleary, 335 U.S. 464 (1948), 10 Grant v. General Motors Corporation, 908 F.2d 1303 (6th Cir. 1990), 205 Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C. Cir. 1976), 153 Griggs v. Duke Power Company, 401 U.S. 424 (1971), 78-79, 81, 82, 83, 84, 87, 118 Griswold v. Connecticut, 381 U.S. 479 (1965), 184, 223-224, 239, 241 Grove City College v. Bell, 465 U.S. 555 (1984), 51, 52-55 Guardians Association v. Civil Service Commission of New York, 463 U.S. 582 (1983), 57 Hale v. Mann, 219 F.3d 61 (2d Cir. 2000), 218 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), 134, 145-146, 148 Harris v. McRae, 448 U.S. 297 (1980), 222, 233 Hayes v. Shelby Memorial Hospital, 796 F.2d 1543 (11th Cir. 1984), 217 Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), 242 Heaton v. Bristol, 317 S.W.2d 86 (Tex. Civ. App. 1958), 64 Heckler v. Mathews, 465 U.S. 728 (1984), 17, 19 Heelan v. Johns-Manville, 451 F. Supp. 1382 (D. Colo. 1978), 134 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982), 154

306

INDEX OF CASES

Hibbs v. Department of Human Resources, 273 F.3d 844 (9th Cir. 2001), 211 Hill v. City of Lakewood, 973 P.2d 1246 (Colo. 1999), 269 Hill v. Colorado, 530 U.S. 703 (2000), 269-270 Hishon v. King and Spalding, 1980 U.S. Dist. LEXIS 16179 (N.D. Ga. 1980), 164-165, 182 Hishon v. King and Spalding, 467 U.S. 69 (1984), 159, 165-166, 168, 182 H. L. v. Matheson, 450 U.S. 398 (1981), 222, 229-230, 243 Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970), 107, 108-109 Hodgson v. Minnesota, 853 F.2d 1452 (8th Cir. 1988), 256 Hodgson v. Minnesota, 497 U.S. 417 (1990), 35, 248, 255-257, 259 Hodgson v. Robert Hall Clothes, 473 F.2d 589 (3d Cir. 1973), 107, 109-110 Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999), 273, 281 Hopkins v. Price Waterhouse, 737 F. Supp. 1202 (D.D.C. 1990), 171 Hopkins v. Price Waterhouse, 287 U.S. App. D.C. 173 (D.C. Cir. 1990), 171 Hoyt v. Florida, 368 U.S. 57 (1961), 12 In re Lockwood, 154 U.S. 116 (1894), 33 Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989), 100 International Board of Teamsters v. United States, 431 U.S. 324 (1977), 75-76, 99 International Union of Electrical, Radio and Machine Workers v. Westinghouse Electric Company, 631 F.2d 1094 (3d Cir. 1980), 107, 115-116 International Union, United Auto Workers v. Johnson Controls, 886 F.2d 871 (7th Cir. 1989), 204-205 International Union, United Auto Workers v. Johnson Controls, 499 U.S. 187 (1991), 187, 205-206 Islesboro School Committee v. Califano, 593 F.2d 424 (1st Cir. 1979), 66 J. E. B. v. Alabama, 511 U.S. 127 (1994), 17, 23-24, 25, 37 Johnson v. Transportation Agency, 480 U.S. 616 (1987), 73, 94-95, 103 Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998), 147, 156 Jones v. Oklahoma Secondary School Association, 453 F.Supp. 150 (W.D. Okla. 1977), 67 Junior College District of St. Louis v. Califano, 597 F.2d 119 (8th Cir. 1979), 66 Kahn v. Shevin, 416 U.S. 351 (1974), 17, 19 Katz v. Dole, 709 F.2d 251 (4th Cir. 1983), 154 Kazmier v. Widmann, 225 F.3d 519 (5th Cir. 2000), 218 Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), 219 Kirchberg v. Feenstra, 450 U.S. 455 (1981), 16, 17, 18 Kirstein v. Rector and Visitors of the University of Virginia, 309 F. Supp. 184 (E.D. Va. 1970), 41, 42 Kolstad v. American Dental Association, 527 U.S. 526 (1999), 101 Korematsu v. United States, 323 U.S. 214 (1944), 11 Kovacevich v. Kent State University, 224 F.3d 806 (6th Cir. 2000), 111 Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980), 161-162 Lambert v. Wicklund, 520 U.S. 292 (1997), 248, 257-258 Landgrafv. USl Film Products, 511 U.S. 244 (1994), 88 Lehr v. Robertson, 463 U.S. 248 (1983), 17, 22

INDEX OF CASES

307

Lemons v. City and County of Denver, 620 F.2d 228 (10th Cir. 1980), 107, 115, 117 Lieberman v. University of Chicago, 660 F.2d 1185 (7th Cir. 1981), 51, 56-57, 58 Local Number 93 v. Cleveland, 478 U.S. 501 (1986), 91, 102 Local 28 of the Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986), 91, 102 Lochner v. New York, 198 U.S. 45 (1905), 9, 33 Lorance v. AT&T Technologies, 490 U.S. 900 (1989), 100, 101 Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978), 214 Lynn v. Regents of the University of California, 1979 U.S. Dist. LEXIS 12663 (C.D. Cal. 1979), 161 Lynn v. Regents of the University of California, 656 F.2d 1337 (9th Cir. 1981), 161, 181 Madsen v. Women's Health Center, 512 U.S. 753 (1994), 266-268 Maher v. Roe, 432 U.S. 464 (1977), 222, 231-232, 233 Martin v. Wilks, 490 U.S. 755 (1989), 100, 101 Masterson v. LaBrum and Doak, 846 F. Supp. 1224 (E.D. Pa. 1993), 182 McDonnell Douglas v. Green, 411 U.S. 792 (1973), 76, 80, 83, 89, 99, 161, 166 McRae v. Califano, 491 F.Supp. 630 (E.D. N.Y. 1980), 232-233, 244 Meritor Savings Bank v. Vinson, All U.S. 57 (1986), 132, 134, 137, 139-141, 145, 148, 149, 153 Metro Broadcasting v. FCC, 497 U.S. 547 (1990), 102 Michael H. v. Gerald D„ 491 U.S. 110 (1989), 36 Michael M. v. Superior Court, 450 U.S. 464 (1981), 18, 21 Miller v. Albright, 523 U.S. 420 (1998), 17, 27-29, 31 Miller v. Bank of America, 418 F. Supp. 233 (N.D. Cal. 1976), 132-133, 135 Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979), 134, 135, 154 Miller v. Christopher, C.A. No. 6: 93 CV 39 (E.D. Tex. June 2, 1993), 28 Miller v. Christopher, 870 F. Supp. 1 (D.D.C. 1994), 28 Miller v. Christopher, 96 F.3d 1467 (D.C. Cir. 1996), 28 Miller-Wohl Company v. Commissioner of Labor and Industry, 515 F. Supp. 1264 (D. Mont. 1981), 198-199 Miller-Wohl Company v. Commissioner of Labor and Industry, 685 F.2d 1088 (9th Cir. 1982), 199 Miller-Wohl Company v. Commissioner of Labor and Industry, 692 P.2d 1243 (Mont. 1984), 187, 199 Miller-Wohl Company v. Commissioner of Labor and Industry, 479 U.S. 1050 (1987), 199 Miller-Wohl Company v. Commissioner of Labor and Industry, 744 P.2d 871 (Mont. 1987), 200,201,216 Minor v. Happersett, 88 U.S. (21 Wall) 627 (1875), 8, 33 Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), 16, 17, 18, 25, 26, 30, 41, 43-45 Mullet v. Oregon, 208 U.S. 412 (1908), 9-10, 200 Munford v. James T. Barnes & Co. 441 F. Supp. 459 (E.D. Mich.1977), 134 NAACP v. Alabama, 357 U.S. 449 (1958), 184 Nashville Gas Company v. Satty, 434 U.S. 136 (1977), 187, 191-192, 214 National League of Cities v. Usery, 426 U.S. 833 (1976), 123 National Women's Center v. McMonagle, 868 F.2d 1342 (3d Cir. 1989), 265, 266 National Organization for Women v. Operation Rescue, 726 F. Supp. 1483 (E.D. Va.1989), 279

308

INDEX OF CASES

National Organization for Women v. Scheidler, 968 F.2d 612 (7th Cir. 1992), 265 National Organization for Women v. Scheidler, 510 U.S. 249 (1994), 265-266 Newburg v. Board of Public Education, 26 Pa. D.& C.3d 682 (1983), 64 New Jersey v. TLX), 469 U.S. 325 (1985), 242 Newport News Shipbuilding & Dry Dock Company v. EEOC, 462 U.S. 669 (1983), 187, 193-194 New York City Transit Authority v. Beazer, 440 U.S. 568 (1979), 100 New York State Club Association v. City of New York, 487 U.S. 1 (1988), 159, 176-177 Nguyen v. INS, 208 F.3d 528 (5th Cir. 2000), 29, 38 Nguyen v. INS, 533 U.S. 53 (2001), 17, 29-31 Nixon v. Fitzgerald, 457 U.S. 731 (1982), 146 North Haven Board of Education v. Bell, 456 U.S. 512 (1982), 51-52 North Haven Board of Education v. Hufstedler, 629 F.2d 773 (2d Cir. 1980), 51 Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990), 248, 257, 258 Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), 134, 147-148 Operation Rescue v. Women's Health Center, Inc., 626 So.2d 664 (Fla.1993), 267, 280 Orr v. Orr, 440 U.S. 268 (1979), 17, 18 Parham v. Hughes, 441 U.S. 347 (1979), 17, 22 Patterson v. McLean Credit Union, 491 U.S. 164 (1989), 100, 101 Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), 56, 58, 59 Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983), 280 Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), 15-16 Pfeiffer v. Marion Center Area School District, 917 F.2d 779 (3d Cir. 1990), 51, 57 Phillips v. Martin Marietta Corporation, 400 U.S. 542 (1971), 73, 74 Pittsburgh Press v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973), 73, 75 Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), 222, 227, 228, 229, 237 Planned Parenthood of Southeastern Pennsylvania v. Casey, 1990 U.S. Dist. LEXIS 15775 (D. Pa. 1990), 259 Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682 (3d Cir. 1991), 259-260, 261 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), 248, 259-263, 264, 271, 272, 273, 274, 275, 276, 279 Planned Parenthood of Southern Arizona v. Lawall, 1999 U.S. App. LEXIS 33154 (9th Cir. 1999), 278 Plessy v. Ferguson, 163 U.S. 537 (1896), 43 Poelker v. Doe, 432 U.S. 519 (1977), 222, 231, 232 Powell v. Syracuse University, 580 F.2d 1150 (2d Cir. 1978), 160 Powers v. Ohio, 499 U.S. 400 (1991), 37 Price Waterhouse v. Hopkins, 825 F.2d 458 (D.C. Cir. 1987), 77 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), 35, 73, 77, 87, 100, 159, 169-171 Pro-Choice Network v. Schenck, 67 F.3d 377 (2d Cir. 1995), 280 Quilloin v. Walcott, 434 U.S. 246 (1978), 17, 22

INDEX OF CASES

309

Radice v. New York, 264 U.S. 292 (1924), 33 Reed v. Reed, 404 U.S. 71 (1971), 13, 14, 17, 18, 23 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), 88 Regents of the University of California v. Bakke, 438 U.S. 265 (1978), 92 Reproductive Health Services v. Webster, 662 F. Supp. 407 (W.D. Mo. 1987), 277 Reproductive Health Services v. Webster, 851 F.2d 1071 (8th Cir. 1988), 277 Richmond v. J. A. Croson, 488 U.S. 469 (1989), 103 Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994), 88 Roberts v. United States Jaycees, 468 U.S. 609 (1984), 159, 174-176 Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486 (M.D. Fla. 1991), 134, 141-142, 143 Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970), 241 Roe v. Wade, 410 U.S. 113 (1973), 222, 223, 224-227, 228, 233, 234, 235, 236, 238, 239, 241, 247-248, 249, 251, 252, 253, 258, 259, 260, 261, 262, 263, 264, 270, 271, 273, 275, 276, 279 Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), 131 Romeo Community Schools v. HEW, 600 F.2d 581 (6th Cir. 1979), 66 Rosenfeld v. Southern Pacific, 444 F.2d 1219 (9th Cir. 1971), 73 Rostker v. Goldberg, 453 U.S. 57 (1981), 17, 20-21 Rowinsky v. Bryan Independent School District, 80 F.3d 1006 (5th Cir. 1996), 51, 60 San Antonio School District v. Rodriguez, 411 U.S. 1 (1973), 243 Schenck v. Pro Choice Network of Western New York, 519 U.S. 357 (1997), 268-269, 280 Schlesinger v. Ballard, 419 U.S. 498 (1975), 17, 20, 21 Schultz v. American Can Company-Dixie Products, 424 F.2d 356 (8th Cir. 1970), 123 Schultz v. Wheaton Glass, 421 F.2d 259 (3d Cir. 1970), 107, 108 Sendak v. Arnold, 429 U.S. 968 (1976), 241 Sims v. University of Cincinnati, 219 F.3d 559 (6th Cir. 2000), 218 Singleton v. Wulff, 428 U.S. 106 (1976), 242 Slaughterhouse Cases, 83 U.S. (16 Wall) 36 (1873), 8 Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980), 161 Spaulding v. University of Washington, 740 F.2d 686 (9th Cir. 1984), 107, 117, 119, 120 St. Mary's Honors Center v. Hicks, 509 U.S. 502 (1993), 88, 101, 182 Stanley v. Illinois, 405 U.S. 645 (1972), 17, 18 Stanton v. Stanton, 421 U.S. 7 (1975), 17, 18 Stenberg v. Carhart, 530 U.S. 914 (2000), 35, 248, 273-275 Sweatt v. Painter, 339 U.S. 629 (1950), 46 Swierkiewicz v. Sorema NA„ 5 Fed. Appx. 63 (2d Cir. 2001), 88-89 Swierkiewicz v. Sorema NA., 2002 U.S. LEXIS 1374 (2002), 88-89 Taylor v. Louisiana, 419 U.S. 522 (1975), 34 Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), 99 Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), 222, 236-239, 248, 259, 260, 261, 262, 275 Tinker v. Des Moines, 393 U.S. 503 (1969), 242 Tornkinsv. Public Service Electric and Gas, 422 F. Supp. 553 (D.N.J. 1976), 132, 135 Tornkins v. Public Service Electric and Gas, 568 F.2d 1044 (3d Cir. 1977), 134, 135

310

INDEX OF CASES

Turner v. Department of Employment Security, 423 U.S. 44 (1975), 187, 197 United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983), 99 United States v. Paradise, 480 U.S. 149 (1987), 102 United States v. Virginia, 766 F. Supp. 1407 (W.D. Va. 1991), 24, 45 United States v. Virginia, 976 F.2d 890 (4th Cir. 1992), 24, 45 United States v. Virginia, 852 F. Supp. 471 (W.D. Va. 1994), 25, 45 United States v. Virginia, 44 F.3d 1229 (4th Cir. 1995), 25, 45 United States v. Virginia, 518 U.S. 515 (1996), 17, 23, 25-27, 30, 31, 41, 4 5 ^ 7 United Steelworkers of America v. Weber, 443 U.S. 193 (1979), 93-94 University of Pennsylvania v. EEOC, 493 U.S. 182 (1990), 35, 159, 162-163 Varner v. Illinois State University, 150 F.3d 706 (7th Cir. 1998), 111 Vinson v. Taylor, 23 Fair Employment Practice Cases 37 (D.D.C. 1980), 137 Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985), 137-139, 154 Vorchheimer v. School District of Philadelphia, 532 F.2d 880 (3d Cir. 1976), 4 2 ^ 3 , 64 Vorchheimer v. School District of Philadelphia, 430 U.S. 703 (1977), 17, 35, 41, 43 Ward v. Rock Against Racism, 491 U.S. 781 (1989), 280 Wards Cove Packing Company v. Atomo, 827 F.2d 439 (9th Cir. 1987), 82 Wards Cove Packing Company v. Atonio, 490 U.S. 642 (1989), 81-84, 86, 87, 100 Washington v. Davis, 426 U.S. 229 (1976), 16, 100 Watson v. Port Worth Bank and Trust, 487 U.S. 977 (1988), 73, 80-81, 82 Webster v. Reproductive Health Services, 492 U.S. 490 (1989), 247-253, 254, 259, 260, 276, 277, 279 Weeks v. Southern Bell Telephone & Telegraph, 408 F.2d 228 (5th Cir. 1969), 73 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), 17, 18 Wengler v. Druggists Mutual Insurance Company, 446 U.S. 142 (1980), 17, 18 Williams v. Bell, 587 F.2d 1240 (D.C. Cir. 1978), 153 Williams v. Civiletti, 487 F. Supp. 1387 (D.D.C. 1980), 153 Williams v. McNair, 316 F. Supp. 134 (D.S.C. 1970), 41, 42 Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976), 133 Wimberly v. Labor and Industrial Relations Commission, 479 U.S. 511 (1987), 187, 197-198, 200 Wright v. Olin Corporation, 697 F.2d 1172 (4th Cir. 1982), 217 Wygant v. Jackson Board of Education, 416 U.S. 267 (1986), 103 Young v. Southwestern

Savings and Loan, 509 F.2d 140 (5th Cir. 1975), 153

Zuniga v. Kleberg County Hospital, 692 F.2d 986 (5th Cir. 1982), 217

Index

Aaron, Henry, 112 Aaronson, Stephanie, 120-121 AAUW. See American Association of University Women Abortion: adult women's consent/notice laws, 228, 233, 242, 259, 260, 262, 276; antiabortion protests, 263-270; and compelling state interest test, 224-226, 234, 235-236, 251, 259, 260, 262; early reform efforts, 222-223; fetal viability, 225-226, 235-236, 238, 244, 249, 250-251, 252-253, 261, 262, 274-275, 279; hospitalization requirements, 227, 233, 234—235; informed consent laws, 233-234, 235, 236-237, 238, 239, 259, 262, 278-279; and judicial bypass, 229-230, 254-258, 278; lateterm, 238, 270-275, 280-281; minors' consent/notice laws, 227, 228-230, 233, 236, 240, 242, 254-258, 259, 278; and physicians' duties, 236, 237-238, 239, 259, 278; public funding limits, 230-233, 236, 240, 249-250; and public opinion, 247, 255; recordkeeping/reporting requirements, 236, 242, 259; and right to privacy, 221, 223-227, 239, 241, 252, 259; trimester approach, 225-226, 227, 235-236, 239, 251, 252, 261-262; and undue burden test, 236, 238, 239, 260, 262, 272, 275,

279; waiting period laws, 233, 235, 236, 237, 253, 255, 256, 262 ACLU. See American Civil Liberties Union Ada, Joseph, 254 Adams, Abigail, 5-6, 7 Adams, John, 5 - 6 Affirmative action: and Fourteenth Amendment, 92, 102, 103; goals and timetables, 89-90, 91, 94; and Title VII of the Civil Rights Act of 1964, 8 9 , 9 1 , 9 2 , 93-95, 102, 103 Age Discrimination Act of 1975, 53, 67 Age Discrimination in Employment Act (ADEA), 72, 88 Alan Guttmacher Institute, 254 Amaker, Norman, 90 American Association of University Women (AAUW), 39, 40, 58-59, 62 American Civil Liberties Union (ACLU), 13, 196, 199, 234, 248, 255 American College of Obstetricians and Gynecologists (ACOG), 234 American Football Coaches Association, 49 American Medical Association (AMA), 271 American Public Health Association (APHA), 234 Americans with Disabilities Act (ADA), 87, 88 Andrus, Cecil, 254

311

312

INDEX

Anthony, Susan B., 6,7 Armey, Dick, 208 Aspiri, Les, 172 Bauman, Robert, 232 Bayh, Birch, 47, 48,51,231 Beecher, Henry Ward, 6 Bennett amendment, 114—117 Benshoof, Janet, 255 BFOQ. See Bona fide occupational qualification Blackmun, Harry, 23, 51, 81, 83, 88, 163, 206, 224-226, 228, 237, 238, 252-253, 261, 263 Blackwell, Henry, 6 Blumrosen, Alfred, 78 Blumrosen, Ruth, 114 Bona fide occupational qualification (BFOQ), 72-75, 80, 96; and business necessity, 73; and fetal protection, 204—206; and protective legislation, 73-75; and sex-plus discrimination, 74; and sex-segregated advertising, 75 Boxer, Barbara, 144 Bradley, Joseph, 8 Bradwell, Myra, 7, 8, 163 Brandeis, Louis, 9 Braun, Carol Moseley, 144, 145 Brennan, William, 13-15, 94-95, 116, 189, 224, 231, 258 Brent, Margaret, 163 Breyer, Stephen, 29, 31, 273-275 Brooks, Jack, 85 Brown, Barbara, 10 Burger, Warren, 12, 13, 78, 165, 230, 238, 247 Burger Court, 12, 16,18, 22-23, 27, 221, 236 Bush, George H. W„ 84-85, 87, 143, 209, 210 Bush, George W., 97 Bush administration, 84, 95, 97, 240, 247, 248-249, 260, 264, 277 Carter, Jimmy, 20, 192, 232 Carter administration, 20, 78, 107 Casey, Robert, 254, Child Custody Protection Act, 258 Citadel, The, 42, 45, 46, 47, 65

Civil Rights Act of 1991: and ADA, 87, 88; and ADEA, 88; and burden of proof, 84, 85, 86, 87, 88-89; and business necessity, 86-87; and damages, 85-87; and disparate impact theory, 84, 87; and disparate treatment theory, 84, 85, 88; and EEOC, 88; and glass ceiling, 86, 87; legislative history, 84—87; legislative intent, 87-88; provisions, 86-87; and reversing Supreme Court, 84, 86, 87; and Title VII, 84, 85, 86, 87, 88-89, 95 Civil Rights Remedies Equalization Act, 58, 67 Civil Rights Restoration Act, 54-55, 58 Clay, William, 208 Clegg, Roger, 112 Clinton, Bill, 96, 146, 147, 151, 156, 210, 265, 271-272, 276 Clinton administration, 97, 121, 172, 173, 210, 265, 269, 276 Coffee, Linda, 224 Cohen, William, 173 Comparable worth: and Bennett amendment, 114-117; and disparate impact theory, 117-120, 122; and disparate treatment theory, 117, 118, 122; and EEOC, 118-119; and EPA, 112-117, 122; and sex-segregated occupations, 112-114, 122; state and local governments, 120-121 Cooney, Patricia, 201, 202 Cranston, Alan, 193 Danforth, John, 86 Danforth amendment, 54, 67 Daschle, Tom, 121 Davis, Angela, 129 Days, Drew III, 78 DeLauro, Rosa, 121 Disparate impact theory, 75, 76, 77-84, 97, 99, 100, 117-120, 122, 206; and Civil Rights Act of 1991, 84, 87; and subjective selection procedures, 80-81, 97 Disparate treatment theory, 75-76, 77, 79, 80, 81, 82, 83, 117, 118, 122, 160-161, 205, 206; and Civil Rights Act of 1991, 84, 85-88, 97

INDEX

Dodd, Christopher, 208, 209 Dole, Bob, 87 Dole, Elizabeth, 209 Dornan, Robert, 270 Douglass, Frederick, 6 Dowd, Maureen, 158 Draper, Anne, 114 Duke, David, 86 Easterbrook, Frank, 205 EEO. See Equal Employment Opportunity EEOC. See Equal Employment Opportunity Commission Eleventh Amendment, 67, 111, 124, 211 EPA. See Equal Pay Act Epstein, Richard, 111 Equal Employment Opportunity (EEO) Act of 1972, 7 1 , 9 8 , 159 Equal Employment Opportunity Commission (EEOC), 71-72, 78; and affirmative action, 90, 91; and Age Discrimination in Employment Act, 72, 88; and Americans with Disabilities Act, 72; and bona fide occupational qualification, 75; and Civil Rights Act of 1991, 88; and Equal Pay Act, 72, 107; and pregnancy policy, 189, 190, 191, 214; and sex-segregated advertising, 75; and sexual harassment, 129, 135-136, 139, 140; and Title VII of the Civil rights Act of 1964, 71, 72 Equal Pay Act (EPA): and comparable worth, 112-117, 122; and EEOC, 72, 107; enforcement, 107; equal work requirement, 108-111, 115-116, 121; and FLSA, 106, 121, 123; legislative history, 105-106; legislative intent, 108, 109, 111; provisions, 106-107; and sex-segregated occupations, 111-112; and state employees, 111; and Title VII of the Civil Rights Act of 1964, 114-117, 121, 122 Equal Rights Amendment (ERA), 21, 34 Executive Order (EO): 11246, 90, 91; 11375, 90 FACEA. See Freedom of Access to Clinic Entrances Act

313

Fair Employment Practices (FEP) Agency, 129-130 Fair Labor Standards Act (FLSA), 106, 121, 123 Fair Pay Act, 121 Family and Medical Leave Act (FMLA): legislative history, 207-211; legislative intent, 207-211; provisions, 210 Federal Unemployment Tax Act (FUTA), 197-198 Feinstein, Dianne, 144, 145 Feminism and legal change, 1 - 3 , 283-288 FEPA. See Fair Employment Practices Agency Fifteenth Amendment, 7 Fifth Amendment, 13, 28, 34, 233 Finley, Lucinda, 203 First Amendment: and abortion, 233, 250, 266-270; academic freedom, 162-163; and law firm partnerships, 165; and private clubs, 174—177; and sex-segregated advertising, 75; and Title IX of the Education Amendments of 1972, 49 FLSA. See Fair Labor Standards Act FMLA. See Family and Medical Leave Act Ford, Gerald, 49 Ford, William, 86 Fourteenth Amendment: and affirmative action, 92, 103; due process clause, 9, 33, 36, 226, 259; equal protection clause and abortion, 231-233; and compensatory discrimination, 19, 22, 27-31; "easy" cases, 18-19; "hard" cases, 20-23, 27-31; levels of scrutiny, 10-16, 19-22, 23-32, 36, 103, 189, 214, 226-227, 234, 236, 239, 260; and peremptory challenges, 23-24, 37; and physical differences, 19, 2 0 - 2 3 , 2 7 - 3 1 , 3 2 , 35; and pregnancy policy, 20, 186-190, 212; privileges and immunities clause, 8; right to privacy and "separate but equal" education, 41-47; and unwed fathers' rights, 22, 2 7 - 3 1 Frankfurter, Felix, 10 Freedman, Ann, 23

314

INDEX

Freedom of Access to Clinic Entrances Act (FACE), 264-265, 269 Freedom of Choice Act, 258 Fried, Charles, 248, 249 FUTA. See Federal Unemployment Tax Act General Accounting Office (GAO), 208 Gesell, Gerhard, 171 Ginsburg, Ruth Bader, 13, 25-27, 29, 275 Glass ceiling, 86, 87, 157, 158, 179, 180 Green, Edith, 47 Harkin, Tom, 121 Harlan, John Marshall, 12 Hartmann, Heidi, 120-121 Hatch, Orrin, 5 3 - 5 4 , 208, 227 Hawkins, Augustus, 84, 192 HEW. See U.S. Department of Health, Education, and Welfare Hill, Anita, 86, 143, 144, 145, 151 Hyde, Henry, 86, 232 Hyde amendment, 232-233, 243, 244 Immigration and Nationality Act, 22, 27-31 Johnson, Lyndon, 70, 90; and EO 11246, 9 0 , 9 1 ; andEO, 11375, 90 Jones, Paula, 146, 147, 151, 156 Kassebaum, Nancy Landon, 173 Kay, Herma Hill, 202 Kelly, James, 167 Kelly, Patrick, 263 Kennedy, Anthony, 29-30, 31, 61-62, 81, 92, 247, 249, 251, 257, 260, 261, 266, 275 Kennedy, Edward, 84, 86 Kennedy, John, 70, 90, 106 Kiser, Jackson, 45 Kolbert, Kathryn, 260, 261 Krieger, Linda, 201, 202 League of Women Voters, 196, 199 Lee, Rex, 234 Lee, William Lann, 96 Loudon, Joseph, 112-113 Loudon, Timothy, 112-113 Lougy, Cameran, 112

Luker, Kristen, 221 MacKinnon, Catharine, 129, 130 Magoon, Mary, 163 Mansfield, Belle Babb, 163 Married Women's Property Acts, 32 Marshall, Thurgood, 110, 140-141, 143, 196, 197, 230, 2 3 1 , 2 3 2 , 258 Martinez, Bob, 253 Miller, Samuel, 8 Minow, Martha, 195 Morella, Constance, 264 Mott, Lucretia, 6, 7 National Abortion Rights Action League, 255 National Collegiate Athletic Association, 49 National Federation of Independent Businesses, 209 National Organization for Women (NOW), 40, 192, 196, 199, 208, 265, 266 National Right to Life Committee, 263 National Women's Law Center, 50 National Women's Political Caucus, 192 New Federalism, 111, 124 New York Civil Liberties Union, 40 Nineteenth Amendment, 7 Niskanen, William, 112 Nixon, Richard, 47 Norton, Eleanor Holmes, 78, 121 NOW. See National Organization for Women O'Connor, Sandra Day, 16, 29, 30-31, 44, 61, 80-81, 82, 92, 145-146, 197, 235-236, 238-239, 251-252, 257, 260, 261, 270, 275, 279 Olsen, Frances, 9 - 1 0 Operation Rescue, 264, 265, 266, 279 Paycheck Fairness Act, 121 PDA. See Pregnancy Discrimination Act Pendleton, Clarence, 112 Peterson, Esther, 106 Planned Parenthood, 227, 232, 248 Posner, Richard, 111, 119, 205 Powell, Lewis, 44, 165, 228, 229, 231, 232, 234, 235 Preate, Ernest, 260

INDEX Pregnancy Discrimination Act (PDA): and equal treatment/preferential treatment debate, 194-203, 206, 207, 212; legislative history, 192-193; legislative intent, 193, 194, 195-196, 205, 206; preemption of state laws, 195-197, 198-200; provisions, 192-193 Pregnancy policy, 20; equal treatment, 194, 200-201, 202-203, 206, 207; fetal protection, 203-206, 212; FMLA, 207-211; forced maternity leave, 186-188; preferential treatment, 194-200, 201-203, 206, 207 Private clubs, 173-177 Professional women: family responsibilities, 177-179; and private clubs, 173-177; proving discrimination, 158-159, 161-162, 166-168, 170-171, 179, 182; and Title VII of the Civil Rights Act of 1964, 77, 159-163, 164-168, 169-171, 179 Protective labor legislation, 9-10, 200, 205 Racial discrimination, 69-70, 153; and affirmative action, 89-97, 102, 103; and Civil Rights Act of 1991, 85-89; and Fourteenth Amendment, 92, 100, 102, 103; and Title VI of the Civil Rights Act of 1964, 65; and Title VII of the Civil Rights Act of 1964, 78-79, 80-84, 97, 99, 100, 102, 103 Racketeer Influenced and Corrupt Organizations Act (RICO), 265-266, 280 Reagan, Ronald, 55, 85, 90, 91, 92 Reagan administration, 53, 55, 90, 91, 95, 97, 112, 196, 221, 240, 247, 257 Redbook magazine, 129 Rehabilitation Act of 1973, 53, 67 Rehnquist, William, 15, 27, 29, 44, 92, 116-117, 139-140, 190-191, 192, 226-227, 240, 247, 249, 250, 251, 260, 261, 263, 267, 270, 275 Rehnquist Court, 23-31, 273, 276 Reynolds, William Bradford, 91, 112, 113 Rhode, Deborah, 174

315

RICO. See Racketeer Influenced and Corrupt Organizations Act Roemer, Buddy, 254 Ross, Christine, 168 Rostker, Bernard, 20 Roukema, Marge, 209 Scales, Ann, 202-203 Scalia, Antonin, 27, 29, 92, 95, 148, 196, 247, 251-252, 260, 261, 275, 276 Schroeder, Patricia, 172, 207, 208, 209 Schumer, Charles, 265 Schwartz, Felice, 178-179 Seneca Falls Convention, 6 Separate spheres ideology, 5, 8, 9, 12 Sex-plus discrimination, 74 Sexual harassment: and EEOC, 129, 135-136, 139, 140; employer liability for, 131, 132, 133, 134-136, 137-141, 148, 149-150, 151, 154; hostile environment, 130, 131, 136-137, 138, 139, 140, 141, 142, 145, 147, 149-150, 151, 152; judicial hostility to, 130-133, 151; psychological harm, 145-146, 151; quid pro quo, 130, 136, 138, 141, 142, 147, 149, 151, 152; and racial harassment, 131, 153, 154; and "reasonable person" standard, 141-143, 146, 151, 155; same-sex, 147-148, 151; in schools, 58-62, 63; and Title VII of the Civil Rights Act of 1964, 130-143, 145-146, 147-152, 154; and women of color, 129 Single-sex education, 3 9 ^ 0 , 4 1 ^ 7 , 48, 62-63 Smith, Howard, 70 Smith amendment, 70 Social Security Act, 18, 19, 231 Souter, David, 29, 150, 258, 261, 266 Specter, Arlen, 144 Stanton, Elizabeth Cady, 6, 7 Starr, Kenneth, 260, 261 Stennis, John, 231 Stevens, John Paul, 22, 28-29, 56, 83-84, 191, 196, 228, 229, 256-257, 261,269, 275 Stewart, Potter, 16, 186-187, 188-189, 228, 233 St. George, Katherine, 106

316

INDEX

Stone, Lucy, 6, 7 Sununu, John, 209 Susman, Frank, 248, 249 Tanner, Jack, 118 Terry, Randall, 264, 2 7 9 - 2 8 0 Thomas, Clarence, 29, 86, 91, 143, 144, 148, 151, 155, 258-259, 261, 275 Thomburgh, Richard, 264 Title VI of the Civil Rights Act of 1964, 48, 53, 55, 56, 57, 65, 67 Title VII of the Civil Rights Act of 1964: and affirmative action, 89, 91, 92, 93-95, 102, 103; and Bennett amendment, 114-117; and BFOQ, 78-80, 81, 82, 83, 101, 204-206; and comparable worth, 112-120, 122; disparate impact, 75, 76, 77-84, 97, 99, 100, 117-120, 122, 206; disparate treatment, 75-76, 77, 79, 80, 81, 82, 83, 97, 100, 117-120, 122, 160-161, 205, 206; and EEOC, 71-72; and EPA, 114-117, 121, 122; legislative history, 69-71, 89, 116; legislative intent, 75, 89, 116; and mixed motive cases, 76-77, 97, 170-171; and pregnancy policy, 190-192; and professional women, 77, 159-163, 164-168, 169-171, 179; and protective labor legislation, 72-75, 96; provisions, 71, 89; and racial discrimination, 78-79, 80-84, 97, 99; and sex-plus discrimination, 74; and sex-segregated advertising, 75; and sexual harassment, 88, 130-143, 145-146, 147-152, 154; and subjective employment criteria, 80-81,97 Title IX of the Education Amendments of 1972: and abortion, 54; and athletic programs, 49-50, 53, 63, 66; and Civil Rights Restoration Act, 54-55, 58; damages, 56-58, 59-60, 67; and Danforth amendment, 54, 67; and employment, 51, 52; and First Amendment, 49; and indirect aid, 52-53; legislative history, 47^48; legislative intent, 51, 52, 55, 56, 57-58; private right of action in, 55-58, 59, 61, 67; and program-

specificity, 52-55; provisions, 47-48; regulations, 48-50, 51, 52, 65, 66; and sexual harassment, 58-62, 63; and single-sex education, 48 U.S. armed forces, 13-14, 20-21, 157, 171-173, 178 U.S. Catholic Conference, 54 U.S. Chamber of Commerce, 150, 207, 208 U.S. Civil Rights Commission, 113 U.S. Congress, 20, 22; and affirmative action, 89, 95-96; and Civil Rights Act of 1991, 84-87; and EPA, 106, 108, 109, 111, 121, 122; and FACEA, 264-265; and FMLA, 207-211; and PDA, 192-193; and Title VII of the Civil Rights Act of 1964, 70-71, 75; and Title IX of the Education Amendments of 1972, 47-48, 52, 53-55, 56, 63, 67 U.S. Department of Education, 49, 52, 53; Office of Civil Rights, 40, 57, 59 U.S. Department of Health, Education, and Welfare (HEW), 49, 50, 51 U.S. Department of Justice, 24; and affirmative action, 90, 91; Civil Rights Division of, 71 U.S. Department of Labor, 157, 158; Office of Federal Contract Compliance (OFCC), 90; Office of Federal Contract Compliance Programs (OFCCP), 90, 91 U.S. Merit Systems Protection Board, 130 Virginia Military Institute (VMI), 24-27, 40, 45^47, 65 Virginia Women's Institute for Leadership (VWIL), 24-26, 45, 46 VMI. See Virginia Military Institute Voting Rights Act (VRA) of 1965, 78 VWIL. See Virginia Women's Institute for Leadership Waite, Morrison, 8 Warren, Earl, 12 Warren Court, 12 Webster, William, 248 Weddington, Sarah, 224

INDEX

Weinberger, Caspar, 47 White, Byron, 52, 57, 82-83, 196, 227, 228, 239,249, 251,260, 261 Williams, Wendy, 20, 200, 201 Women: in academia, 157, 159-163, 177, 178; in accounting, 77, 157, 168-171, 177; in business, 157, 178-179; of color, 129, 158, 164; in law, 163-168; in the military, 13-14, 20-21, 157, 171-173, 178; in the

317

workforce, 69, 96, 105, 111, 120-121, 122, 157, 185 Women's Equity Action League, 192 Women's Legal Defense Fund, 263 Women's movement, 1-3, 17 Women's suffrage, 7, 8 Woolsey, Lynn, 270 Wright, Susan Webber, 146, 147 Young Women's Leadership School, 40

About the Book

A

LL M E N MAY BE CREATED EQUAL IN THE U N I T E D STATES—BUT M O R E T H A N

thirty years after Congress approved the Equal Rights Amendment, can the same be said for women? Elusive Equality offers a clear understanding of how government institutions—the executive branch, Congress, and state legislatures, as well as the federal courts—affect the legal status of women. Surveying the public policy issues central to the identification—and protection—of women's rights, Susan Gluck Mezey traces the developing legal parameters of sex equality in the United States. From early court rulings that prohibited employment discrimination and sexual harassment through today's decisions on reproductive rights, Mezey analyzes the broader political context within which critical judicial decisions have been made. Susan Gluck Mezey is professor of political science and assistant vice president for research at Loyola University Chicago. Her publications include Pitiful Plaintiffs: Child Welfare Litigation and the Federal Courts and No Longer Disabled: The Federal Courts and the Politics of Social Security Disability.

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