Discrimination

1. Discrimination

2. Equality • The promise of equality is in the Declaration of Independence • But, what is meant of equality? • Does it mean the same treatment? Equal opportunities? • Has equality been achieved only when results are comparable among all groups? • Laws, regulations, amendments, and court cases have all been ways that the gov’t responds to inequalities

3. What is Discrimination? • discrimination occurs when people are treated differently than others • not all types of discrimination are unfair or illegal • discrimination is an unavoidable result of lawmaking • as long as the classifications are reasonable, they usually don’t violate the 14th Amendment’s equal protection clause

4. Discrimination • Plessy v. Ferguson (1896) • made segregation of public facilities permissible so long as they were “separate but equal” • Jim Crow laws  those that enforced segregation • Brown v. Board of Education (1954) • ordered that schools be integrated “with all deliberate speed” • held that States were to start “a prompt and reasonable start” to end segregation and the federal district courts were to supervise • De jure segregationv. De facto segregation

5. Discrimination • Civil Rights Act of 1964 and Civil Rights Act of 1968 • prohibited discrimination based on race, religion, sex, and national origin in employment and housing • provided that no person could be denied access to “public accommodation” • upheld in Heart of Atlanta Motel v. U.S. (1964) • Lester Maddox, future governor of GA, refused to seat blacks in his Pickwick Restaurant prior to 1965; he closed it rather than integrate • Alexander v. Holmes County Board of Education (1969) • ruled that time for “all deliberate speed” from Brown had ended and segregated schools would no longer be allowed

6. Tests Used for Supreme Court Cases Involving Discrimination • rational basis test • used in most discrimination cases • e.g., regulating age to get married (it is rational to suspect that older individuals are more responsible and more ready to marry) • strict scrutiny test • used when certain laws discriminate based on race, national origin, citizenship status, or some fundamental right set out in the Constitution (i.e., freedom of religion) • laws will be found unconstitutional unless the state can show a compelling interest and that there is no less discriminating way to satisfy that interest • substantial relationship test • used in gender discrimination cases • there must be a close connection—not just a rational relationship—b/n the law or practice and its purpose • must serve an important governmental purpose • e.g., a state law prohibited sale of alcohol to males 18-20, but not to females b/c more males were arrested for drunk driving; although it served an important gov’t purpose, it was unconstitutional b/c there was not a close connection b/n the classification and purpose (females could buy the alcohol for males and give it to them)

7. Discrimination: Reasonable or Unreasonable? A. B. Reasonable Unreasonable B. A. B. A. B. A., b/c it is based on actuarial data B. An airline requires its pilots to retire at age 60 A business refuses to hire a man with good typing skills for a secretarial position People who have AIDS cannot be hired as phone operators People under age 18 are not allowed into theaters showing X-rated movies A child with a disability is not permitted to play at a public playground In selecting applicants for gov’t jobs, preference is given to veterans Girls are not allowed to try out for positions on an all-boy baseball team at a public high school Auto insurance rates are higher for young, unmarried drivers In order to project a classy image, an expensive seafood restaurant requires that its servers wear tuxedos. The restaurant hires only male wait staff.

8. Discrimination Based on Race • America is becoming an increasingly diverse society, and by 2050, we will probably be a minority-majority nation • Problem is the question that by protecting the minority, does it protect the majority as well? Must the disadvantaged be treated differently in order to be treated equally? Should minorities be provided collective rights?

9. Discrimination Based on Race • Today, discrimination is more subtle • E.g., a town denying a request to rezone land to build townhouses for low- and moderate-income tenants • E.g., redrawing of school district lines where one is mostly Black and the other mostly White • Of course, not all “reasonable people” can agree as to what constitutes discrimination • Reasonable people also disagree as to what constitutes a fair and effective remedy

10. Discrimination in Education • public school segregation declared unconstitutional by Brown • however, many schools remained racially segregated (de facto) • busing was attempted • Failure, caused feelings of inferiority • caused “White Flight” • patronizing to think that a minority student must sit next to a white student to learn • in the late 1990s, courts, parents, and schools declared busing a “noble but failed social experiment”

11. Discrimination in Education • Affirmative action • Idea: Of what real help to a person, who did not get a decent education and therefore cannot get a good job, are those laws that make illegal today what was done years ago?—thus, affirmative action • steps to remedy past and current discrimination in employment and education • some view it as form of reverse discrimination; special treatment for some results in discrimination of others • Affirmative action comes in the form of quotas, goals, and preferences

12. Discrimination in Education • Reverse discrimination • affirmative action demands that preference be given to females and/or nonwhite males solely on the basis of race or gender • critics claim that the Constitution requires policies to be “color blind” • Regents of the University of California v. Bakke(1978) • university attempted to increase the enrollment of minorities and a white man was rejected b/c of this • they reserved 16 of 100 seats for minorities • Court ruled these special admissions policies unconstitutional • Race could be considered if it was an attempt to diversify the student body

13. Discrimination in Education • Grutter v. Bollinger; Gratz v. Bollinger (2003) • Barbara Grutter applied to the University of Michigan Law School and even though having an impeccable record was denied in favor of a minority student; the university claimed that its process was flexible and didn’t base its decisions solely on race • Jennifer Gratz applied as an undergraduate to the University of Michigan and then though she met the admissions standards, she was denied and beat out by a minority student b/c in the scoring system used to determine admission, the minority received 20 pts. just for being a minority • applied strict scrutiny test (state had to show compelling interest) • Court found that student body diversity is a compelling state interest, but ruled the Gruttercase was not a quota and thus constitutional; in the Gratzcase, the Court did find the points system unconstitutional (diversity programs must be individualized, not mechanized)

14. Discrimination Based on Race • in 1996, California voters overwhelmingly approved Proposition 209, a measure that eliminated nearly all affirmative action programs conducted there and added it as an amendment to the Constitution • Clarence Thomas’s view of affirmative action • “Affirmative action programs stamp minorities with a badge of inferiority” • quoted Frederick Douglass in Gruttercase: “In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us . . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . . And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . Your interference is doing him positive injury”

15. Discrimination in Employment • Civil Rights Act of 1964 • Title VII of this act prohibits discrimination in employment based on race, color, sex, religion, or national origin by businesses with more than 15 employees or by labor unions • extended protection to included discrimination by private employers • It does permit discrimination if it is a necessary qualification for the job (theater companies can hire only female actors for female parts) • Steelworkers v. Weber (1979) • plant implemented plan that reserved 50% of training slots for advancement to blacks, and would continue until the number of blacks in management was proportionate to their percentage in the local workforce • Weber was passed over for the program several times by less-tenured blacks b/c he was white • Court upheld the program, mostly b/c it was voluntary and temporary

16. Discrimination in Employment • Affirmative action employment measures have come up attack recently • publicly funded projects must set aside a certain number of jobs to be filled by minority-owned companies or that companies working on public jobs must have employees representative of the local population working for them • Fullilovev. Klutznick(1980) • allowed quotas when handing out gov’t contracts or “minority set-asides” • attempt to overcome the effects of “blatant and longstanding bias in the construction industry” • However, quotas can only be used if past discrimination can be shown (Richmond v. Croson, 1989) • gov’tshave to show compelling gov’t interest and often lose in court • Today, there is a push for race-neutral programs

17. Article • “Have We Overcome?”

18. Discrimination in Voting Rights • Voting has been found by the Court to be a constitutional right b/c it protects all the other rights in a democracy • After the 15th Amendment, states could no longer exclude blacks from general elections, but since the parties run the primaries, they could • The Texas Democratic Party established all-white primaries and since the Democrat always won the general election, this inadvertently kept blacks votes from counting • Smith v. Allwright(1944) made this practice unconstitutional • 24thAmendment (1964) • abolished poll tax, which targeted poorer minorities • Voting Rights Act of 1965 • along with the 15th Amendment protects the rights of minorities of color to vote

19. Discrimination in Voting Rights • Gerrymandering • traditional way to strengthen voting power by redrawing district lines to favor one party over another • packing v. cracking  traditionally used to dilute the voting strength of a minority group

20. Gerrymandering Examples

30. Oklahoma

33. Discrimination in Voting Rights • Gomillionv. Lightfoot (1960) • laws that try to disenfranchise blacks through redistricting are unconstitutional • Gerrymandering can also be used to insure that the minority group is represented by electing one who represents their interests • Shaw v. Reno (1993) said redistricting could not be based on race • Easley v. Cromartie (2001) • Court ruled that NC district drawing was not racial, but based on voting b/c blacks typically vote Democrat and they wanted to have an even representation of GOP to Dems in Congress

35. Discrimination Based on National Origin and Citizenship Status • Collective Rights • belief that American focus is too much on the individual and that the only way to guarantee minority rights is to move toward a more community-oriented direction • Problem with these laws is that they treat people as members of a group instead of an individual • Congress has the exclusive power to regulate immigration • ChaeChan Ping v. U.S. (1889) • the power to exclude aliens from its territory . . . is not open to controversy” and the States are excluded from this power • today, the ceiling is set at 675K immigrants per year • highly skilled occupational talents are preferred • “excludable aliens” include criminals, diseased persons, drug abusers, illiterates, and the mentally disturbed • issue of illegal noncitizens is controversial today • states must educate the child of illegal immigrants (issue this legislative session in GA was concerning higher education)

36. Discrimination Based on Gender • Women are a majority group in the U.S., but often receive fewer rights than men of minority groups • although they represent 51% of the population, only a fraction of 1% have held leadership positions in the nation’s top public offices since 1789 • 15% of Congress, 20% of State legislatures today • Women make up less than 20% of the nation’s doctors, lawyers, professors, etc. • After 19th Amendment was passed, it took another 50 yrs. for the courts to find a policy based on gender unconstitutional • Reed v. Reed (1971) • struck down Idaho law that preferred fathers to mothers in the administration of children’s estates • Classification by sex is not in and of itself unconstitutional, but laws that treat men and women differently will be overturned unless they intend to serve an “important gov’t objective” and are substantially related” to achieving that goal • e.g., the draft (since women are excluded from combat, they can be excluded from the draft)

37. Discrimination Based on Gender • Equal Pay Act (1963) • made it illegal to pay women less than men for the same job • still, women make 80 cents on the dollar to men • reasons: men are typically more educated and more experienced; “Mommy track”; “glass ceiling” • 3/4 of all jobs held by women are in low-paying clerical or service occupations • So, do women really make less than men? (http://www.cleanvideosearch.com/media/action/yt/watch?videoId=EwogDPh-Sow) • Equal Rights Amendment (ERA) • died in 1982 after falling three states short of ratification • 16 states have added equal rights amendments to their state constitutions

38. Discrimination Based on Gender • U.S. v. Virginia (1996) • VMI, a public university, did not admit women and its men were put through extreme rigor in their program (“adversative method”); in the early 1990s, VMI was forced to admit women, so they opened up a college for women, VWMI, which employed the cooperative method over the adversative method; they were sued again, and in this case, they were forced to admit women and put them through the same rigors • Johnson v. Transportation Agency of Santa Clara County (1987) • first case decided on preferential treatment based on sex • females can be preferred to males, even if they score lower on a qualifying exam

39. Based on your knowledge of gender discrimination law, analyze each of the following situations and decide whether illegal gender discrimination is occurring: A. Yes No A. A. B. A state-supported nursing school does not accept applications from men A man applies for a job as a used car salesman, but the woman who owns the business does not hire him. The reason she gives is that “he is not good looking enough to entice young women who come here looking for a car to buy one.” A state government provides three months of paid leave to women who become mothers. Paid disability leave for state-employed men is limited to four weeks. Women in the military are not allowed to fight in the infantry alongside men in the front line of battle.

40. Sexual Harassment • Definition: • “unwelcome sexual advances, requests for favors, and other verbal or physical conduct of a sexual nature” • Two types of sexual harassment: • Quid pro quo sexual harassment (“this for that”) • promotion will be given if sexual favors given in return • Hostile Work Environment • Harris v. Forklift Systems, Inc. (1993) • Court found that Title VII is violated when a hostile or abusive work environment has been created and the victim only has to show that he or she was offended by the conduct in question and that a reasonable person would find the conduct abusive as well • defined hostile work environment as unwelcome conduct of a sexual nature that is so severe or pervasive as to change the conditions of employment

41. Sexual Harassment • Meritor Savings Bank v. Vinson (1986) • A woman who started her career as a bank teller trainee was continually promoted. She consented to a sexual relationship with her supervisor after he repeatedly sexually harassed her during a four-year period. The promotions were based on merit alone ­ she had proved to be a stellar employee in the four years she worked at the bank. The relationship started immediately after her first promotion, he invited her out to dinner then asked her to go to a motel to have sex. At first she refused then out of fear of losing her job, she agreed to have sex with him. During this time, he fondled her in front of other employees, followed her to the ladies' room, exposed himself to her and forcibly raped her on several occasions. She never reported the harassment because she was afraid of him. • SCTOUS ruled this to be sexual harassment; Set precedent for hostile work environment where the victim suffers no tangible or economic loss. • Importance of power – consent does not negate a claim of sexual harassment.

42. Sexual Harrassment • Lehmann v. Toy ‘R’ Us, Inc. (1993) • A female employee was hired and promoted on several occasions. The supervisor who sexually harassed her was hired four years after she joined the company. The harassment started approximately 14 months later. He told her to show her breasts to a male employee and his male boss. He would comment on her figure in a vulgar manner. He lifted her skirt in front of his office window because he wanted the employees outside to get a "show". She complained to his direct supervisor and was told to handle it herself and not to mention it to the vice president of their department. She met with the manager of employee relations to discuss her complaint along with another female employee's complaint. She was assured that management would speak with her supervisor but the harassment continued. She finally took her complaints to the vice president of the department. During this time she was offered two transfers and refused both. When she resigned she was again offered a transfer and refused it. She left the company without working her final two-week notice. The company concluded the supervisor did not harass her and terminated its investigation. • Introduced the “reasonable woman” or “reasonable man” standard to replace “reasonable person” standard • SCOTUS found this to be sexual harassment under this new standard

43. Sexual Harassment • Oncalev. Sundowner Offshore Services Inc. (1998) • While working on an offshore oil rig in an all-male environment, a male claimed he was sexually harassed when he was subjected to sex-related sexual actions and was told by one on the crew that he was going to rape him • Court held that Title VII also protected against same sex (male-on-male) sexual harassment

44. Sexual Harassment • Burlington Industries v. Ellerth(1998) • Kimberly Ellerth quit her job after 15 months as a salesperson, allegedly because she had been subjected to constant sexual harassment by one of her supervisors. Her supervisor was a mid-level manager who had authority to hire and promote employees, subject to higher approval. The supervisor made repeated boorish and offensive remarks and gestures. Ellerth alleged that three of these incidents could be construed as threats to deny her tangible job benefits. Ellerth refused all of Slowik's advances, yet suffered no tangible retaliation and was, in fact, promoted once. Moreover, she never informed anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. • SCOUTS ruled that an employer will be held liable for its employees’ sexual harassment unless it can prove it took reasonable steps to prevent harassment and that the alleged victim failed to take advantage of the preventative measures • Faragherv. City of Boca Raton (1998) • Same type of case except this dealt with a lifeguard at a public pool. • Same outcome

45. Sexual Harassment in Schools • Studies show that a high percentage of boys and girls are subject to harassment in a school setting • Court has ruled that a public school system can be sued for failing to respond to known acts of student-to-student harassment that were severe and pervasive

46. The following statements illustrate the legal interpretations of sexual harassment as illegal employment discrimination based on sex. Decide if they are true or false. Sexual Harassment Exercise

47. Statement 1 • A male as well as a female may be the victim of sexual harassment and a female as well as a male may be the harasser.

48. True A male or female may be the harasser or the victim

49. Statement 2 • The victim of sexual harassment does not have to be someone of the opposite sex of the harasser.

50. True • The harasser and the victim may be of the same sex.