Crim C113 - Midterm Material
Crim C113 - Midterm Material Crm/Law C113
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This 48 page Study Guide was uploaded by Edward Avakian on Wednesday April 20, 2016. The Study Guide belongs to Crm/Law C113 at University of California - Irvine taught by Hillary Berk in Winter 2016. Since its upload, it has received 84 views. For similar materials see Gender and Social Control in Criminology and Criminal Justice at University of California - Irvine.
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Date Created: 04/20/16
Crim C113 Midterm Review 04/19/2016 ▯ Midterm Review Session ▯ ▯ Midterm = written exam Identification section: Pick 5 out of 7 o Bullet points are sufficient for answers as long as you provide the answer Essay section: Just 1 essay *Substance matters; who we’re talking about is an important part about what we’re talking about; if you don’t necessarily know the specific case name, describe the person and the events that occurred to get points wherever you can ▯ ▯ Briefly state the meaning and context of 5 of the following 7 terms or phrases Define term and state and key scholars/perspectives ▯ ▯ Genderless job holder assumption Invisibility of gender; everybody is the same Part of this thinking that workplaces have structures and those structures have built in discrimination; if we presume that workplaces, men and women are treated equally, Joan Williams (UC Hastings); invisibility of gender hides the dominance, the power that exists in the structure Solution = paid family leave ▯ ▯ Separate spheres jurisprudence Men in work field Women in private life Separate spheres = women belong to a separate sphere of social life; that that sphere is in private life, family life, private sphere Integration jurisprudence = getting passed that ideology that it’s natural that women belong in the home and not in the public but instead they should be integrated into workplaces, but how = 14 th amendment (1 wave), Civil rights act 1964 and Equal rights amendment (2 ndwave) ▯ ▯ 1 wave = 1848-1920 ▯ Levels of scrutiny (how will a court evaluate if there’s discrimination) Strict o Race and religion; “suspect classification”; “compelling” st th th reason (1 amendment, 13 -15 amendments) Middle o Craig v Boren o Brought the level of scrutiny from ordinary to middle o It was a man who brought the case that made it special o “substantial” justification Ordinary ▯ ▯ Why can’t we put gender under strict scrutiny? There’s no equal rights amendment ▯ ▯ Lucy Stone Social movements can sometimes be splintered Woman movement wasn’t one solid thing people agreed on She and her husband were really into getting women’s rights on the table Focused on getting African Americans rights first, then talked about women Wanted baby steps ▯ ▯ Susan B Anthony, Elizabeth Katie Stanton Time is now ▯ ▯ Formal equality model Why would you treat men and women differently because in almost every aspect they are the same The differences between them are more social than natural and should be treated the same ▯ ▯ If you make gender invisible, problems ensue ▯ ▯ Pricewaterhouse case Court made major declaration that subtle forms of discrimination (walk this way, put on jewelry, etc. to get a promotion) = gender- based discrimination Burden of proof = wasn’t based on gender-based discrimination ▯ ▯ CEDAW 187 countries that are signatories to the international treaty that respects fundamental rights of women USA is not one of those countries Global rights amendment If we had an equal rights amendment, courts wouldn’t have this discretion in having the different levels of scrutiny ▯ ▯ Levels of scrutiny refer to the analysis taken Ordinary = state can discriminate if they have a legitimate reason for doing so ▯ ▯ Hoyt v Florida Woman kills husband after being battered saying she has an all male jury was not fair It matters that the jury pool represents some women on the case There is no legitimate reason for this law Being jurors is not natural for women = what the state said o “it would cause an administrative burden” Ordinary scrutiny standard = cost and administrative burden ▯ ▯ ▯ ▯ Levit/Verchick Notes 03/28/2016 ▯ Feminist Legal Theory (Pages 11-15) ▯ The development of feminist legal theory was intertwined with the growth of feminism generally Many of the first rights the women’s movement fought for were political rights, like the right to vote Feminist legal action preceded feminist legal theory Feminist legal theories share two things 1) an observation o Feminists recognize that the world has been shaped by men, who for this reason posses larger shares of power and privilege 2) an aspiration o all feminists believe that women and men should have political, social, and economic equality ▯ ▯ Equal Treatment Theory The first wave of feminist legal theory began in the early 1960s with the emergence of the equal treatment theory (also referred to as “liberal” or “sameness” feminism) Based on the principle of formal equality that inspired the suffrage movement, namely, that women are entitled to the same rights as men Drew from liberal ideals in philosophy and political theory that endorse equal citizenship, equal opportunities in the public arena, individualism, and rationality Equal treatment principles: the law should not treat a woman differently from a similarly situated man; also the law should not base decisions about individual women on generalizations about women as a group ▯ ▯ Early efforts to attain equal treatment for women pursued two goals: 1) to obtain equivalent social and political opportunities, such as equal wages, equal employment, and equal access to government benefits 2) to do away with legislation intended to protect women by isolating them from the public sphere o Examples) limiting women’s career options or employment hours ▯ ▯ Reed v Reed (1971) The WRP (Women’s Rights Project) made by the American Civil Liberties Union (ACLU) persuaded the Supreme Court that men and women were equally qualified to administer estates, so a law that preferred male relatives over female relatives as administrators of a decedent’s estate was unconstitutional ▯ ▯ Frontiero v Richardson (1973) WRP argued in an amicus brief that female members of the military deserved the same family benefits as male service members Supreme Court held unconstitutional a benefits policy in the military that presumed that all wives of serviceman were financially dependent on their husbands but did not make the same presumption in the case of husbands of service women ▯ ▯ The Court struck down a law that prohibited the sale of low-alcohol beer to females under the age of eighteen and males under the age of twenty-one, basing its decision on the supposedly greater traffic-safety risks posed by underage males The state presented week empirical evidence of a correlation between gender and driving drunk (0.18 percent of females and 0.2 percent of males between 18 and 21 were arrested for driving under the influence) The Court rejected the stereotype that men were more reckless than young women ▯ ▯ Social norms prescribed different roles for men and women according to Ginsburg; she argued that if biological differences distinguished the sexes, discrimination based on these immutable differences justified a higher level of judicial scrutiny ▯ ▯ Equal treatment theory accepts male experience as the reference point or norm Women attain equality only to the extent that they are similarly situated with men ▯ ▯ Levit/Verchick Notes 03/28/2016 ▯ Feminist Legal Theory (Pages 3-7) ▯ ▯ A Brief History of Women’s Rights and Early Concepts of Equality The rights to vote, make contracts, and own property first appeared in social and political tracts Battle for suffrage saw women speaking in public for the first time in American history Early strategies for women’s suffrage were tied to the abolitionist movement and racial enfranchisement Elizabeth Cady Stanton and Lucretia Mott o Female representatives of antislavery societies o Denied admission as delegates to the World Anti-Slavery Convention in London in 1840 o Organized the first women’s rights convention o 1848 = Meeting held in Seneca Falls, New York with three hundred or so women and men o Developed the Declaration of Sentiments, a manifesto modeled after the Declaration of Independence Declaration listed “injuries and usurpations… on the part of man toward woman” Claimed women’s natural rights to equality in political, religious, social, and public spheres, including the right to vote Most radical and controversial provision = demand for women’s suffrage ▯ ▯ The Seneca Falls Convention marked the beginning of the first wave of the women’s rights movement ▯ ▯ Sojourner Truth = former slave and gifted orator who drew parallels between the enslavement of blacks and the servitude of women in her speech “Ain’t I a Woman?” ▯ ▯ Under the common law, the doctrine of coverture said that wives had no independent legal existence from their husbands—upon marriage, the woman’s legal identity merged with that of her husband Husbands had control of their wives’ property, wages, and children They could physically discipline their wives ▯ ▯ Beginning in the mid-nineteenth century, states began to enact statutes, called Married Woman’s Property Acts, to allow women to make contracts, execute wills, sue and be sued, own their wages, and control their real and personal property ▯ ▯ Bradwell v Illinois (1872) th Supreme Court heart several claims that the recently enacted 14 amendment (1868) prohibited discrimination against women The Fourteenth Amendment provides that no state shall deprive any person of the “equal protection of the laws” or of the “privileges and immunities” of federal citizenship Myra Bradwell had applied for admission to the bar and was rejected by the Illinois Supreme Court on the basis of an Illinois state law that made no provision for admitting women to practice Bradwell appealed to the US Supreme Court and argued that one of these guaranteed privileges was the right to practice a profession Holding: right to practice law was not a privilege of federal citizenship Justice Bradley’s concurring opinion: vision of men’s and women’s “separate spheres” – o Man is, or should be, woman’s protector and defender o The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life o Domestic sphere properly belongs to the domain and functions of womanhood o Paramount destiny and mission of woman = fulfill the noble and benign offices of wife and mother ▯ ▯ Minor v Happersett (1875) Supreme Court determined that the 14 amendment did not extend voting rights to women Just as the right to practice a profession was not a privilege of federal citizenship, neither was universal suffrage ▯ ▯ The Equal Rights Amendment In 1923, three years after ratification of the Nineteenth Amendment, Alice Paul, of the National Woman’s Party, first proposed an Equal Rights Amendment to Congress The ERA was proposed in Congress every year for the next fifty years until the last version of it finally passed both chambers in 1972 However, the ERA failed to achieve the constitutionally required ratification by three-fourths of the states; only thirty-five of the necessary thirty-eight states ratified the ERA during its seven-year deadline The amendment lapsed in 1982 ▯ America witnessed the expansion of women’s educational and employment rights with the passage of Title VII in 1964 (second wave of the women’s rights movement) ▯ ▯ Levit/Verchick Notes 03/28/2016 ▯ Feminist Legal Theory (pages 75-80) ▯ ▯ <<Chapter 3: Workplace, wages, and welfare>> ▯ ▯ --Occupational Segregation and Equal Pay— ▯ ▯ As of 2010, despite obtaining postsecondary education in greater numbers than men, women constituted less than half (47%) of the workforce in this country, and jobs currently remain sharply segregated by sex ▯ ▯ In 2011, more than seventy occupations (including electricians, auto mechanics, plumbers, roofers, carpenters, firefighters, and airplane pilots) were at least 95% male, while ten (including secretaries, dental assistants, and preschool and kindergarten teachers) were 95% female ▯ ▯ Most career choices are probably the result of a complex set of factors Traditional explanations for the phenomenon of occupational segregation by sex focus on supply-side reasons—that men and women enter the labor market with different education, training, and preferences Some occupational aspirations are formed early, as boys and girls are channeled educationally into or away from math or science Social expectations may stake out appropriate career territories for men and women, and people may make vocational choices on the basis of traditional social roles ▯ ▯ Segregation by sex persists not only horizontally across occupations but also vertically within workplaces ▯ ▯ In the business sector, only 4.2% of CEOs of Fortune 500 and Fortune 1000 companies are female ▯ ▯ Limits on women’s or men’s entrance into a profession and success in a career that has traditionally been identified with the other sex present one dilemma of formal equality: Informal barriers create impediments and construct “glass ceilings” that foil substantive equality These artificial barriers to advancement include gender stereotypes about roles, abilities, and leadership styles; exclusion of women from informal networks of communication; a lack of company commitment to the advancement of women; and the absence of mentors ▯ ▯ “Choice” theory = that women make independent decisions to work in female- dominated industries because they like the work, or forgo promotions to stay in jobs that allow more time for family responsibilities Choice theory battles structuralist theories (that attitudinal bias, discriminatory employer practices, and organizational structures without family-supportive plans such as flexible hours hinder women’s advancement) ▯ ▯ The division of labor by sex relates directly to the gender wage gap ▯ ▯ While occupational segregation is tied to wage discrimination, the way current discrimination laws are structured, they cannot reach wage inequalities caused by job segregation based on sex The Title VII discrimination model is best for individual instances of similarly situated men and women being treated differently ▯ ▯ The other main federal statute to attack sex-based wage discrimination is the Equal Pay Act The Equal Pay Act requires that men and women receive equal pay for equal work in jobs within a given establishment that require “equal skill, effort and responsibility, and which are performed under similar working conditions” The equal pay mandate is not triggered unless the jobs compared are “substantially equal” ▯ ▯ In the early 1980s, theorists concerned with substantive, not just formal, equality developed the concept of “comparable worth,” the idea that Title VII’s prohibition on wage discrimination should extend beyond the Equal Pay Act’s minimum requirement of equal pay for substantially equal work It was an effort to address a portion of the wage gap attributable to occupational segregation, something the Equal Pay Act would never reach, because that law only requires equal pay for men and women when their jobs are substantially equal in content Comparable worth theory says “that work perceived as women’s work has been downgraded and that the value of work performed in predominantly female jobs—by male and female workers alike—is systematically underrated, given the relative skill, effort, and responsibility involved Comparable worth proposes that jobs that are comparable—but not substantially equal—in their value to the employer should command equal pay ▯ ▯ Phyllis Schlafly argues that comparable worth would undermine job desegregation because it would eliminate the economic incentive for women to enter traditionally male fields ▯ ▯ Levit/Verchick Notes 03/28/2016 ▯ Feminist Legal Theory (pages 67-75) ▯ ▯ <<Chapter 3: Workplace, wages, and welfare>> ▯ ▯ --Sexual Harassment— ▯ ▯ The law of sexual harassment represents one of the most direct translations of legal theory into legal doctrine ▯ ▯ In 1979, the dominance theorist Catharine MacKinnon wrote a landmark book, Sexual Harassment of Working Women: A Case of Sex Discrimination She began with women’s stories about the practices of sexual harassment She told him of an 18 year old file clerk whose employer routinely told her about the intimacies of his marriage and asked her opinions about various sexual positions Another story described the secretary who was asked to accompany her boss on an out-of-town trip; the hotel accommodations he made had are staying in the same room with them and what she refuse have sex with them upon their return he deprived her of some job responsibilities In another case the first female to work as a janitor for a company was assigned to clean men’s bathrooms on the night shift where she was repeatedly propositioned for sex and suffered extreme stress These episodes told a collective story of how sexually charged behavior from the boorish to the bellicose alternate working conditions nationwide for women MacKinnon argued that than existing employment, contract, and tort laws did not provide adequate remedies for certain types of gender based indignities women suffer that work She concluded that “the unwanted position of sexual requirements in the context of a relationship of unequal power” should be considered discrimination on the basis of sex under Title VII. MacKinnon coined the ideas of “quid pro quo” harassment— conditioning employment benefits on an explicit request for sexual favors—and “sexually hostile environment”—where the working conditions include gender-based intimidation or hostilities that create an abusive environment Her book prompted the EEOC the very next year to revise its guidelines on discrimination because of sex to include both quid pro quo and hostile-environment harassment as sex discrimination in violation of Title VII ▯ ▯ Meritor Bank v Vinson (1986) The Supreme Court recognized both types of sexual harassment in this case The Supreme Court even said that evidence of “a complainant’s sexually provocative speech or dress … is obviously relevant” ▯ ▯ Quid pro quo harassment is more straightforward It occurs when a supervisor makes an unwelcome sexual advance a term or condition of employment (something for something or this for that) ▯ ▯ The proof required in a hostile-environment case is more complicated The harassment must be both unwelcome and sufficiently severe or pervasive “to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive” and one that the victim subjectively perceives as abusive as well Typically, the plaintiff must show that the workplace “is permeated with discriminatory intimidation, ridicule, and insult” The plaintiff does not have to show a tangible or economic injury ▯ ▯ Whether a plaintiff has solicited or invited harassment often turns into an investigation of the alleged victim’s behavior, habits, appearance, character, or lifestyle ▯ ▯ Carr v General Motors Mary Carr in 1984 became the first female tinsmith apprentice to work in the gas turbine division at General Motors All of Mary’s coworkers were male and resented her presence Over a period of five years, her coworkers continually harassed Mary Her coworkers painted “cunt” on her toolbox; left sexual graffiti and nude pin-ups in her work areas; told her that they “won’t work with any cunt”; referred to her as “whore,” “cunt,” and “split tail”; cut the seat out of her overalls; and stripped to their underwear in front of her on several occasions One coworker even exposed himself to her twice; and a coworker urinated off of the roof of the building in front of her; and a coworker suggested “that if he ever fell from a dangerous height in the shop she would have to give him ‘mouth to dick’ resuscitation” US District court of Indiana dismissed Mary’s claim for sexual harassment because she had “invited it” o The trial court had found evidence that Mary had used the “F” word, told dirty jokes, used vulgar language, engaged in a shouting match with a male coworker, touched the thigh of another male coworker, and pointed out the clitoris depicted in a pornographic picture when coworkers asked her to do so o Trial judge found that she had “provoked” them by engaging in “unladylike” behavior Court of appeals reversed the trial court ▯ ▯ Some circuits approve a “blue collar” –environment defense to crude language or offensive behavior for rough, working-class jobs ▯ ▯ The law of sexual harassment requires not only that the plaintiff subjectively perceive the working environment to be abusive but also that an objective, reasonable person in the plaintiff’s position would reach the same conclusion ▯ ▯ <Reasonable person vs reasonable woman standard> ▯ ▯ Beginning in the late 1980s and early 1990s, several federal appellate courts and a number of state courts accepted the reasonable woman standard. Still, most federal and state appellate courts continue to use the reasonable person standard ▯ ▯ Levit Verchick Notes 03/28/2016 ▯ Pages 1-2 ▯ ▯ Feminism and Law: What is feminism? It’s the idea that women and men should have equal political, economic, and social rights For some, feminism suggests that many dramatic examples of women organizing for justice or thwarting social convention Modern heroes: o Catharine MacKinnon, who reshaped the law of sexual harassment to help workers avoid unwanted sexual advances and belittlement o Oprah Winfrey, the first woman to launch her own television network, reaching out to confront issues, such as domestic violence, previously unaddressed on television o Tina Fey, dubbed the “involuntary heroine” of feminism, for writing her character “Liz Lemon” for NBC’s 30 Rock For others, feminism is not an isolated movement but one that by necessity is intersectional and multifaceted Feminism is an extremely powerful political and social force It is also an influential legal force At its roots, feminism is about equal rights ▯ ▯ A Brief history of women’s rights and early concepts of equality Some of the earliest arguments for equal legal treatment include the rights to vote, make contracts, and own property The battle for suffrage saw women speaking in public for the first time in American history Early strategies for women’s suffrage were tied to the abolitionist movement and racial enfranchisement Declaration of Sentiments was a manifesto modeled after the Declaration of Independence by a group of three hundred or so women and men who gathered in Seneca Falls, New York o This listed “injuries and usurpations . . . on the part of man toward woman” o Claimed women’s natural rights to equality in political, religious, social, and public spheres, including the right to vote o Most radical and controversial provision of the Declaration: demand for women’s suffrage The Seneca Falls Convention = beginning of the first wave of the women’s rights movement ▯ ▯ Levit/Verchick Notes 03/28/2016 ▯ Feminist Legal Theory (pages 51-67) ▯ ▯ <<Chapter 3: Workplace, wages, and welfare>> ▯ ▯ In 2012, the Government Accountability Office (GAO) examined the salaries of full-time managers across various industries over the preceding decade In no industry did female mangers earn the same as men On average, women earned only eighty-one cents for every dollar made by an equally qualified male ▯ ▯ The lifetime gender earnings gap is enormous: on average, women lose $434,000 over forty years of work when compared to men in similar occupations (this ranges from $270,000 for women who did not obtain a high school diploma to more than $713,000 for women with a college degree or higher) ▯ ▯ --Defining Workplace Discrimination— ▯ ▯ The History of Title VII Title VII of the Civil Rights Act of 1964 is the main federal statute addressing employment discrimination based on sex The statute provides that “[i]t shall be an unlawful employment practice for an employer … 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” When Title VII first came into force in the summer of 1963, it did not include a prohibition of discrimination based on sex ▯ ▯ In the 1970s, discrimination lawsuits mainly involved hiring questions Could a woman be a construction worker, a prison guard, a cop? Could a man become a nurse, a flight attendant, a receptionist? ▯ ▯ The 1980s saw a shift to lawsuits charging discrimination in promotion and firing ▯ In the 1990s and early 2000s, workplace lawsuits began to address conditions of employment, and this included an explosion of suits regarding sexual harassment ▯ ▯ Suing under Title VII Title VII addresses two forms of discrimination: o 1) disparate treatment The plaintiff must demonstrate that the employer intentionally treated him or her less favorably than coworkers because of sex The plaintiff can show the discriminatory motive through evidence that is either direct (the boss refuses to hire young women, saying “they’ll start having babies and miss work”) or circumstantial (a qualified woman is turned down for a job as a “longshoreman” even though the employer has an available position and continues to seek applications) An employer can defend by demonstrating that sex is a “bona fide occupational qualification,” what lawyers call BFOQ A BFOQ must be more than a flimsy excuse and “is valid only when the essence of the business operation would be undermined” EXAMPLE) airport security workers who pat down female travelers be women, or that male characters in a drama be played by men o 2) disparate impact plaintiffs show that a facially neutral employment practice disproportionately harms a protected group no proof of intent is required for disparate impact suits, but plaintiffs must demonstrate that this neutral employment practice has discriminatory effects—a statistically significant disparity in the way the practice affects the plaintiff class EXAMPLE) a plaintiff class might show that an employer’s minimum height or weight requirement disproportionately excludes women from job opportunities An employer can defend by showing that the offending neutral practice is a “business necessity,” related to successful job performance. ▯ ▯ UAW v. Johnson Controls The Supreme Court decided that a battery manufacturer could not exclude fertile women from certain areas of its plant out of concerns that lead exposure might damage fetal development The Court reasoned that fertile and infertile workers were equally capable of producing batteries and that the “fetal protection policy” was not a legitimate reason to bar all fertile women from lead exposure jobs ▯ ▯ State and federal employers are generally required to make compensation data publicly available, but most private employers are not An individual may never know she is earning less than her coworkers ▯ ▯ Lilly Ledbetter and the Lilly Ledbetter Fair Pay Act (2009) Worked as a supervisor at a Goodyear Tire plant in Gadsen, Alabama, from 1979 until her retirement in 1998 When she was first hired, her pay was in line with the salaries of men with similar responsibilities Over time, her pay began to slip in relation to her male colleagues The problem was that she had no knowledge of this discrepancy at the time Following her retirement, Ledbetter sued for discrimination under Title VII Her lawsuit eventually reached the Supreme Court, which found that her claim was barred by a 180-day period of limitations contained in the act It did not matter that Ledbetter had lacked knowledge of the discrimination before that period; nor did it matter that the earlier gaps in pay were effectively baked into her most recent paychecks The decision became a topic in the 2008 presidential race In 2009, Congress passed and President Obama signed the Lilly Ledbetter Fair Pay Act, which revised Title VII to allow plaintiffs to incorporate acts of discrimination that occurred before the 180-day period of limitations as long as they are related to more recent gaps in pay or other unfairness ▯ ▯ <Pregnancy, Maternity Leave, and the Work-Family Contract> A major barrier to workforce integration involves the way we handle the physical and cultural differences between the sexes Women and men of course, are different in some ways Physically = only women carry and bear offspring On average, adult women also tend to be physically smaller than adult men (though exceptions abound) On the cultural side, women continue to bear the lion’s share of childcare and house-keeping responsibilities ▯ ▯ Working mothers earn less in terms of base compensation because more of their salary is paid in benefits rather than wages ▯ ▯ Women in the workplace not only hit a “glass ceiling”; they also run into the “maternal wall” ▯ ▯ <Feminist Legal Theory in the Courtroom> ▯ What were formerly thought to be biological differences between men and women were really socially scripted gender roles ▯ ▯ Price Waterhouse v Hopkins A landmark case from the US Supreme Court that highlights the role of stereotyping in employment decisions Ann Hopkins was denied partnership by the accounting giant Price Waterhouse Despite her being one of the best “rainmakers” at the firm, several reviewing partners criticized her dress and demeanor One stated that she was too “macho,” was “overly aggressive,” and needed to take a “course at charm school” Another was concerned that Hopkins was “a lady using foul language” A supporter advised her to “walk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” Holding: Supreme Court said that Price Waterhouse violated Title VII in its use of gendered comments to deny Hopkins partnership, recognizing for the first time that sex stereotyping could be a form of sex discrimination ▯ ▯ Employers can enforce sex-specific dress and grooming codes (for instance, requiring women to wear make-up or limiting hair length for men) that promote the employer’s business image ▯ ▯ Jesperson v Harrah’s Operating Co One of the most famous dress-code gender discrimination cases A female bartender was fired for failing to comply with her employer’s grooming policy, which required her to style her hair, wear nail polish, and apply make-up (“foundation/concealer and/or face powder, as well as blush and mascara and lip color at all times”) every day, despite the fact that doing so made her uncomfortable The court found that she was not entitled to relief because “an employer’s sex-differentiated regulation of dress, cosmetic or grooming practices, which do not discriminate on the basis of immutable characteristics does not fall within the purview of Title VII when the grooming burden is applied evenhandedly to both sexes The court applied an “unequal burden” test and determined that the burden imposed on claimant was not a more significant burden than the one her employer imposed on men because men had to shave and keep their hair above their shoulders, which women did not have to do Judge Kozinski’s dissented ▯ ▯ Courts seem to view grooming codes as less about equality of opportunity in the workplace and more about an employer’s rights to run a business ▯ ▯ Crim C113 Lecture 2 Week 1 03/30/2016 ▯ Sex, Gender, and Inequality: a socio-legal primer ▯ ▯ This Sunday = first discussion post Post has to reference to at least one reading; doesn’t have to be long (quality > quantity) ▯ ▯ Difference between “sex” and “gender” Sex = biological or anatomical “apparatus” – physical traits, sex organs, chromosomes, chemicals/hormones (male/female) Gender = cultural meanings attached to those differences (masculinity/femininity) ▯ ▯ “Gender is a matter of culture” Gender refers to the social classification masculine vs feminine and the characteristics that are affiliated with those categories. Tasks that are either of the two vary considerably to the society that is being studied EX) Beliefs about women’s delicate nature (covered and protected, etc) kept them from playing sports; in our culture, people like Serena Williams or other female athletes—they are biologically capable of strength and endurance EX) Socially constructed beliefs about men not being suitable parents or not being primary parents of children == deprived fathers of having sole or joint custody; fathers are capable of raising healthy children ▯ According to Michael Kimmel, what are two ways that we can explain gender difference and gender inequality? Nature vs nurture “From the moment of birth, males and females are treated differently. Gradually we acquire the traits, behaviors, and attitudes that our culture defines as ‘masculine’ or ‘feminine.’ We are not necessarily born different. We become different through this process of socialization” (Kimmel, p. 4). ▯ ▯ “Doing Gender” West and Zimmerman Gender is performed From a law and society perspective, gender is less a component of identity or a fixed state, something that is constant (I am a woman, I am a man), but it is something that is performed Gender isn’t something one is, it is something that one does through interactions with others We enact the traits prescribed for us (sex roles) We are “sorted” into distinct institutional and social arrangements that naturalize differences based on sex (EX: males with visible genitalia will be classified into one area, females into another) Primary sex characteristics that are present at birth can be deceiving (genitalia) Secondary sex characteristics = hair, voice, growth, hormones (generally perceivable during puberty) The presentation of self = how someone dresses, moves, talks signals to other people as to how they see themselves as male, female, androgynous, or something of the like There is a range of female to maleness = female have androgens, male have estrogen Intersex individuals aka hermaphrodites = interrogates the assumption that genitalia should be a determining factor in gender identity Gender = all the differences between men and women whether they’re individual differences, societal roles, or cultural representations ▯ Is gender inequality the inevitable product of gender differences? Michael Kimmel states that “gender difference is the product of gender inequality*, the outcome of domination, and legitimated through the dichotomy male/female” o *i.e., gender inequality is not the product of “difference” Gender is an important form of identity ▯ ▯ Gender stereotypes Men are more aggressive Females are more passive Females are more vulnerable than men Sexual promiscuity is deemed different among men and women ▯ ▯ “Essentialism” “Men” and “women” are not a homogenous, fixed group with common characteristics o Some men are more emotional than women o Some women have a more prestigious job than men Ignores other hierarchies and forms of oppression Privilege and subordination o Focused on working class women, women with color, poor, lesbian, etc. ▯ ▯ Why are generalizations vital? (Zinn) How can you create social change if all individuals are totally unique and different? Empirical data provides evidence of patterns of inequality based on gender Carefully ask: Which women? Which men? Creating categories is politically important ▯ ▯ The invisibility of masculinity promotes the illusion of gender neutrality and objectivity – How? (Kimmel) Invisibility of masculinity = gender criteria are held up as the norm but they appear to be neutral Illusion of neutrality = men can … Genderless jobholder = how men and women behave has to do with the structure of organizations Mommy track = phenomenon that women who graduate from law school but to become successful are measured by standards held by men (i.e. glass ceiling); women are much more likely to have part time work if they choose to be parents and not full-time work ▯ ▯ Gender is not a matter of two opposite categories of people; it is also a range of social relations ▯ ▯ How is gender “relational”? Gender inequality results from people’s use of sex (male/female) and gender (expectations associated with male/female) together as a primary frame for organizing their relations with others… embedded assumptions are carried out through social relationships – Cecilia Ridgeway ▯ ▯ Progress is not parity – Deborah Rhode The fact that women are entering occupations once reserved for men is taken as evidence that the gender “problem” has been solved The perception that some progress = resolution is itself a problem ▯ ▯ On every major measure of wealth, power, and status, women are still significantly worse off than men 86% of corporate executives are male (CNN – Fortune 500 2015) Congress is 80% male, 80% white, and 92% Christian (Washington Post 2015) Sexual violence against women is stable and pervasive (National Coalition Against Domestic Violence) ▯ ▯ Why did gender equality stall according to Coontz? Structural impediments prevent people from acting on their egalitarian values Women are men are forced into accommodations and into fallback positions Values stretch ▯ ▯ Crim C113 Lecture 3 Week 2 04/04/2016 ▯ Stephanie Coontz and equality and why there’s been a stall in equality today despite the very strong women’s movement If equality isn’t present, families would revert to making choices based on fallback positions The woman in a heterosexual partnership would revert to domestic responsibilities = THE VALUE STRETCH o Watering down your original values and expectations for equality; can be problematic; make choices based on what you’ve got to do to survive, to get by, not necessarily based off ideals o It persists for institutional and structural reasons; become reinforced by US laws = socioeconomic reasoning ▯ ▯ The “Woman” Movement 1848 – 1920 Referred to as the first wave of reform when it comes to gender equality 1848 = year for Women’s rights movements in Seneca Falls 1920 = the right to vote (suffrage) = 19 amendment th The passage of the Post-reconstruction amendments (13-15 amendments) Seeking equality of citizenship = mutual efforts that were happening in order to have reform of the American legal system Lucretia Mott, Elizabeth Cady Stanton, Grimke sisters = important figures in women’s movement Division in 1850s and 1860s = should we take as primary the right of African American males in the US to have the right to vote? Women to vote? Or both? Elizabeth Cady Stanton = part of more radical group; National Women’s Suffrage Association More moderate group = American Woman Suffrage Association = started by Henry Blackwell and Lucy Stone o “Coverature” = once a woman marries, her civil life “dies” o Doctrine stating women had no independent legal existence from their husbands o They become one person; law only recognizes one person, husband, for all public and civil matters o Upon marriage, become one person in law the husband o Wife would assume husband’s name o Women could not entire into contracts, own property, receive her wages, or have custody of children upon separation o All of her personal property would be managed by husband o She could contract debts for items of necessity from general stores o She would lose custody if she chose to exit the marriage The Married Women’s property acts = set of laws happening at the state level that attempted to remedy that civil death of women to allow women to inherit and control their own property and to enter into contracts o There are still ways to show as if you’re acting legally -> judicial interpretation; equality in form instead of equality in fact o Despite it being passed with no issues there were still issues, outcomes weren’t produced Declaration of Sentiments = presented at Women’s Rights convention in Seneca Falls, NY o List of grievances and suggested resolutions to those grievances o Modeled after Declaration of Independence o Much more radical o Made revolutionary statement on fundamental principles of equality = they’re not just requesting rights and privileges, they want the duties of citizens, the right to get arrested, etc. Frederick Douglass = “In our eyes, the rights of woman and the rights of man are identical – we ask no rights, we advocate no rights for ourselves, which we would not ask and advocate for woman. Whatever may be said as to a division of duties and avocations, the rights of man and the rights of women are one and inseparable…” – Women’s rights convention Worcester, MA 1851 Ida B. Wells = anti-lynching movement was led by her o Black men were hung on allegations of having sexual contact with white women How does reform happen? Commonality occurs Key concerns that African-American women and some of the white women leaders shared? Some grievances they could agree upon? o Sexual submission (harassment by person who controls wages at advance of spouse of partner) o Right to custody over children o Experience of subordination through wife-beating and control (domestic violence was a space on which women as a whole could gather round and go to courts and state that this is an experience they share) o Economic control o Black women seemed more concerned with child care, the minimum wage, controls about the length of the work day and work week 1865 = passage of post-Civil War amendments (between 1865- 1870) o 13 amendment = Abolition of slavery o 14 amendment = Due process clause (deprivation without due process of law – right of liberty, happiness), equal protection clause; declaration that we have a natural, unified government acknowledging full citizenship to everyone in the US; creates a national identity for us o 15 amendment = The right to vote shall not be denied on account of race, color, or servitude 1865 = end of Civil War; cessation of southern states Susan B. Anthony = arrested for registering to vote in 1872; tries to vote; refused her to testify ▯ ▯ Separate Spheres vs. Integration Jurisprudence Both legal convention and social convention define women as belonging to a separate sphere than men belong Legal debate placed people into camps = judges = get to decide that become precedent and get to govern other peoples’ lives Separate sphere = naturalized argument as viewing women as gentle graces, tender susceptibility, purity/moral, natural inclination towards subordination o Chief Justice Ryan = stated that women were designed for domestic life Integration jurisprudence = integrate women into public life; don’t keep them in private, separate sphere of domesticity by slowly integrating them into it Lavinia Goodell, 1875, was denied admission to law school due to “law of nature” that she belonged in separate sphere of house to bear children Chief Justice Ryan thought it would emasculate women and make them want the right to vote, etc. ▯ ▯ Minor v Happersett (1875) – challenges women’s right to vote and goes all the way up to Supreme Court; husband and wife team = Francis and Virginia Minor; instead of having to argue that we need to pass a new amendment, we want to rely on the existing language on what’s in the Constitution; argue for a very specific statement Question for the court: Is voting one of the privileges and immunities of the 14 amendment’s grant of national citizenship? o I.e., are all citizens voters? Holding = voting is not one of the privileges and immunities ▯ ▯ Myra Bradwell’s case – she wanted to be a lawyer; cites the 14 th amendment; already a trained lawyer by her husband, already had been doing the work; she beat out a ton of other people, men, and passed her exams, she met all the requirements on the paper, she and her husband established Chicago Legal News Petitions in 1869 for admission to Illinois BAR Only issue is whether a women should be disqualified from being admitted based off of sex Is the practice of your chosen profession a privilege and immunity th afforded by the 14 amendment of the Constitution? Found her with a disability because she was married (coverture) Does the 14 amendment provide equal protection of the law to Myra, i.e., equal right to pursue a profession? Agency = attorneys are agents who enter into contracts on behalf of their clients The sex of the applicant independent of coverture is sufficient reason; legislature did not intend for such woman to hold offices God designed sexes to occupy different spheres of actions ▯ ▯ 1971 National Women’s Suffrage Assoc Delegates ▯ ▯ Muller v Oregon (1908) Several people working at a laundry facility Laundry owner was fined because owner was letting workers work longer than 10 hour shifts Limiting women’s work hours is a reasonable exercise of police power – to protect women’s health and safety – eventhf it doesn’t treat everyone “equally” under the 14 Amendment ▯ ▯ Sojourner Truth – Ain’t I a woman passage ▯ ▯ Crim C113 Lecture 1 Week 1 03/28/2016 ▯ Crim C113: Gender and Social Control ▯ ▯ Professor Berk ▯ email@example.com ▯ Office 2363 SE II ▯ Office hours: Wednesdays 1-3pm, or by appointment ▯ ▯ Feminism/Feminist Values: social justice, equality No single, unitary perspective Acknowledges troubled past as a white woman’s movement Feminism is simply the idea that women and men should have equal political, economic, and social rights Theory and practice of social justice/empowerment ▯ ▯ Relationship between Gender, Law & Society Interdisciplinary approach Legal status of women in the US Sexual orientation and the construction of masculinity Individuals have multiple and intersectional identities Gender as shared experience Fundamental rights, statutes, core concepts o Privacy, autonomy, consent, etc. Central goal: complete class knowing the basics Understand how to do a legal analysis through the lens of gender studies Scholarly and critical analysis, data, news ▯ ▯ Key Questions Is everyone equal under the law, or does the law provide more resources to some more than to others? In which contexts, and for whom? Why? How and when is law a vehicle for social change and justice? o Does law cause social change? How does it maintain gender inequality through systems of power? What happens when fundamental rights are in conflict? o Ex) Hobby Lobby case, right to provide contraception to employees Why is race equality treated differently than gender equality? Overall, what is the difference between the law “on the books” and in practice when it comes to gender? ▯ ▯ Assessment Short Essay / Discussion Memo (4-5 pages) = 20% Midterm Exam = 25% Final Exam = 35% Participation and Attendance = 20% o In-class presence and participation o Reading reflections discussion forum Https://canvas.eee.uci.edu/courses/1575 ▯ ▯ Extra credit opportunities (only need one to get the credit) Group film screenings Independently attended, pre-approved program + reaction paper ▯ ▯ ▯ ▯ Crim C113 Lecture 4 Week 2 04/06/2016 ▯ Equality and the Constitution First wave of reform = woman’s movement ▯ ▯ Agenda Formal Equality Model Equal Rights Amendment (ERA) th 14 Amendment Levels of Scrutiny Cases ▯ ▯ Sociolegal Questions What are the guarantees for equality provided in the Constitution? Should men and women be treated the same? Are there appropriate circumstances to treat them differently, and if so, what are they? Should we consider the impact of laws, and not just the plain language of laws? Is an Equal Rights Amendment (ERA) necessary to achieve gender equality? ▯ ▯ Legal Strategies for achieving gender equality Promoting an equal rights amendment (ERA) Using the existing Constitution to seek gender equality (using a variety of strategies in the language and what has already been passed on in paper) ▯ Formal equality model Are men and women similarly situated? According to Levitt and Verchick, what is the formal equality model? o People having equal opportunity o The actual practice of putting the laws into place o The law should not treat a woman differently from a similarly situated man o We don’t want to make generalizations, stereotypes about women Liberal or Sameness feminism, i.e., men and women should be treated the same Our Constitution does not provide an equal rights amendment US is one of 7 countries in the world that has rejected the idea of signing a no discrimination against woman act Most people do believe that we should have an ERA th Within the Constitution, there is the 14 amendment ▯ ▯ 14 amendment’s three relevant clauses: 1) Privileges and Immunities clause o no state can make laws that abridge the privileges and immunities of the citizens of the United States o which privileges and immunities are given to women? 2) Due Process clause o requires individuals to be provided certain legal procedures due process before they are deprived of their lives (punishment for crimes), their liberty (imprisonment), or their property (taking of their land) 3) Equal protection clause o no person may be denied equal protection of the law (all people must be treated equally under the law) ▯ ▯ Equal rights amendment Fears of creating ERA o Worried that divorce rates would increase o Negative effect on society if women increase in the work force o Women would be in the military, forced conscription (draft) o Worried gays would want rights, same sex marriage o Work day Society has already incorporated these things; what are the arguments now against an ERA Phyllis Schlafly was a lawyer, but wanted other women to remain in the “private” sphere In 1963, President Kennedy called together the first commission on the status of women and women’s rights Alice Paul = belonging in the Republican party = wrote the first ERA Key turn in policy = the commission that convened by President Kennedy; they thought we don’t even know if we need an ERA to promote sex equality within the United States; in Kennedy’s report, he encouraged social movement actors, interest groups, and a variety of legal organizations to bring individual cases to their state courts and to the US Supreme Court to let the courts interpret the principles of equality as provided in the 14 amendment Primary face of the movement to bring specific cases to Supreme Court in an activist way? = Ruth Bader Ginsburg = first very active practicing women lawyers; in favor of equality Courts allowed states to treat people differently as long as unequal treatment wasn’t arbitrary Constitution isn’t okay with irrational discrimination ▯ ▯ Goesaert v Cleary (1948) Supreme Court held that it was okay to ban women as bartenders It’s in the general welfare to keep women from bartending despite any discriminatory effect Justice Douglas (Dissent): The M
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