Week 3 Lecture Notes
Week 3 Lecture Notes Crm/Law C113
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This 9 page Class Notes was uploaded by Edward Avakian on Wednesday April 13, 2016. The Class Notes belongs to Crm/Law C113 at University of California - Irvine taught by Hillary Berk in Winter 2016. Since its upload, it has received 13 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: 04/13/16
Crim C113 Lecture 5 Week 3 04/11/2016 Sex Discrimination ▯ Middle level scrutiny: Does the sex classification bear a substantial relationship to an important government interest? ▯ Sex discrimination, Legal strategies: Adopt an ERA (equal rights amendment) to the Constitution Usethhe existing Constitution (the language; primarily through the 14 amendment; equal protection clause) Enact statutes (another way) ▯ Civil rights act of 1964 Intended to enforce the constitutional right to vote and provide relief from discrimination (by private employers, not just state actors) ▯ Table of contents of Civil rights act of 1964 Title I: voting rights Title II: relief from discrimination in public accommodations Title III: desegregation of pubic facilities Title IV: desegregation of public education Title V: establish the Commission on Civil Rights Title VI: Nondiscrimination in federally assisted programs Title VII: Employment discrimination… ▯ Title VII: Equal employment opportunity Discrimination because of race, color, religion, sex, or national origin 1) Forbids discrimination: o “With respect to… compensation, terms, conditions, or privileges of employment because of [an] individual’s race, color, religion, sex, or national origin” 2) makes it unlawful to: o “classify…employees…in any way which would deprive or tend to deprive any individual of equal employment opportunities because of such individual’s race…sex, etc.” ▯ Two forms of discrimination under Title VII Disparate Treatment – the employer intentionally treated him or her less favorably “because of sex” o Do this through direct sexist statements in the job, or circumstantial evidence Disparate Impact – a neutral employment practice disproportionately harms a protected group (i.e., women) o No proof of intention, ill-will or bad intent is required here, but the employee has certain burdens, and when you bring the case, you have to prove some things o In their burden of proof, you have to show discriminatory effects in the way classes are treated (bring evidence to table and show significant disparity) o Defendant can bring some defenses to plaintiff ▯ Discrimination was happening now against a particular woman; and that woman not behaving “femininely enough” ▯ ▯ Price Waterhouse v. Hopkins (US Sup Ct. 1988) 1- What type of conduct violates Title VII? 2- What is a plaintiff required to prove to show a violation of the law? 3- What is an employer required to prove, if anything? Facts: Who is Anne Hopkins and why is she suing her boss? o She applied for the promotion and didn’t get it Legal issue: her promotion was opposed by what the court notes are legitimate and illegitimate reasons Legitimate reasons: sex stereotypes; she used profanity that was not ladylike; women shouldn’t be seriously concerned as candidates for the higher promotion status “walk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry” – Mr. Beyer, Head Partner Lower courts said (procedural posture of case): she made a substantial showing that sex stereotyping played an important role in the decision for her not to be in the promotion (middle level scrutiny) “gender must be irrelevant to employment decisions…” –Title VII whether or not gender was a factor in the employment decision when it was made Court holds that Title VII was meant to include decisions based off mixed motives Employment decision based on a mix of both legitimate, “non- sexist” concerns, as well as sex stereotypes, but… A “substantial” showing of sex stereotyping here! ▯ ▯ Q: Was gender a factor in the employment decision? Sex stereotyping is a form of sex discrimination: it is evidence gender played a part in the decision (i.e., because she was a woman) = violation of Title VII ▯ ▯ Jesperson v Harrah’s (2006) What if female servers are required to wear makeup in order to work in a casino, but male servers do not? Is getting fired for refusal to do so gender-nonconforming sex discrimination? Facts: Darlene Jesperson was a bartender aka a server at the sports bar in Harrah’s casino. Working there for 20 years; outstanding employee. Supervisors commented, “She was highly effective, consistently made positive effect on customers, customers came back because she provided excellent service.” Although Darlene tried wearing makeup, she didn’t wear it because it made her feel sick and violated and made her feel dolled up like a sexual object. What do they mean by appearance standards? All servers must look appealing to the eye; not a sex-based classification; women are required to wear stockings, colored nail polish, and each employee is given an image consultation; appearance measurement tool; required applicants to put on makeup (mascara, blush, lipstick) Q: Does Harrah’s Casino’s “personal best policy” violate Title VII protection against sex discrimination in employment? Is it an undue burden on women vs men? Holding: it’s just a grooming standard, and men have them too; no violation of Title VII Dissent: what about the additional costs in terms of time, money, and emotional effort required of women versus men? Aren’t the burdens of makeup unequal? Darlene failed to conform ▯ ▯ Schroer v. Billington (D.C. 2008) Who is Diane Schroer and why is she suing the Library of Congress? Applying for a federal job at the Library of Congress; she is a male to female transsexual and has female gender identity In 2004, before she changed her name and presentation, she applied as David as a specialist position housed within Library of Congress; she was well-qualified She already had the highest level of security clearance in her previous job; graduated two master’s degrees; was in special forces and special ops; director of highly classified operations; specialist when it came to terrorism At the time, David tells Charlotte (hiring person) that he was working with professionals on a medically appropriate plan from transitioning from male to female (after interviews) Highest interview score among applicants OFFERED and accepted the job “Significantly better than the other candidates” Charlotte asked why in the world would you want to do that? (become a female); “I thought she looked like a man dressed in woman’s clothing” Rescinds the job offer Q: Is the Library of Congress’ revocation of the offer of employment unlawful sex discrimination, in violation of Title VII? o 1) failure to conform to sex stereotypes? o 2) Gender identity discrimination “because of sex”? Sex stereotyping and Discrimination “because of sex,” (even though transgender individuals are not protected under Title VII) Violates Title VII in this particular case ▯ ▯ UAW v. Johnson Controls (1991) Title VII says that an employer may discriminate on the basis of “religion, sex, or national origin” in certain circumstances… when it is a bona fide occupational qualification necessary to the normal operation of the job ▯ ▯ Crim C113 Lecture 6 Week 3 04/13/2016 ▯ Sex Discrimination: Pay Inequality ▯ ▯ Midterm = 50 points (25% of course grade) st 1 part = identification / short answer / art = briefly state the meaning and context of the term or phrase; define it, talk about relevance in context of what we’ve been learning about; scholar or historical figure; particular case decision; couple of sentences will be enough to get full credit nd 2 part = essay = worth more than identification portion of exam = will be a specific prompt; offer a quotation from reading to analyze; fact scenario; will be some narrative and a question that will be posed to you and you are supposed to answer those; specify relevant course material and key terms that support your argument (include case or historical figure or scholar or idea or some word of art and some may be on identification section; meaningfully integrate course material into our answer) ▯ ▯ Review session for midterm Monday, April 18 @ 5:30-6:50pm SSL 290 Semi-structured = provided with overview of information and some of the ways ideas were presented; mainly driven by our questions ▯ ▯ UAW v. Johnson Controls Title VII says that an employer may discriminate on the basis of “religion, sex, or national origin” in certain circumstances… o When there’s a bona fide occupational qualification (something that tells us it’s reasonably necessary to the normal operation of the business) o EX) religion = hiring priest who has to be Christian in a Baptist church o EX) flight attendant = 8 months pregnant woman; flight safety Focuses on different section of Title VII Facts: You can’t get a transfer, promotion, be on a floor if you can’t prove you’re sterile (work with lead); manufacture lead batteries; their policy was to protect unborn children; women exposed to lead are at risk for higher rates of abortion; required at first that any woman who wanted to be considered for employment that they have seen the warning; they changed the warning policy to a total prohibition on any non-sterile women employees A group of employees sued with the united auto workers backing them up; two women (one of them got sterilized in order to keep the job at the plant due to economic necessity) a man sued also because he wasn’t allowed a leave of absence since he was on a high exposure job; he wanted to get his wife pregnant but couldn’t due to the lead in his system Supreme court pointed out there was evidence of harm on the male reproduction system too; Johnson only required women to prove sterility; discrimination on its face (prema facie) Key question: Is being sterile or male a bona fide occupational qualification (BFOQ) (defense employers use) necessary to the “essence” or “central mission” of the business? Fetuses are not customers/clients who purchase lead batteries; safety exception is limited to circumstances where gender or pregnancy interferes with the job assigned at Johnson; unless pregnant or fertile employees differ in their ability/inability to work, they must be treated the same under Title VII of the Civil rights act Women are as capable at doing their job as male counterparts; can’t be forced to choose between having a child or working the job Holding: There is no BFOQ here, because fertile women are capable of performing the job Duty to warn ▯ ▯ What is the most important part of employment? Getting paid ▯ ▯ Occupational segregation and pay inequality 1- Sex segregation across occupations 2- Sex segregation within workplaces 3- The feminization of fields/social valuation o affect how certain types of work are valued 4- Gender wage gap and “equal” pay 5- Why the wage gap persists? ▯ ▯ Statistics Jobs remain largely segregated within workplaces o 70 occupations were 95% male o 10 occupations were 95% female feminization of certain fields = correlation between sex of worker and their status and their pay o 97% of admin positions are held by women o lower status, lower pay, high turnover = associated with admin positions o flight affect = more women start entering field, men start to realize that valuation of work is declining so they flee Female professors only half as likely to get tenure (security, more pay, status) o Only 15% of women lawyers achieve partner status o 70% are women staff attorneys ▯ ▯ Wage Gap Women with high school diploma: $700,000 less than a man Women with college degree: $1,200,000 less than a man with a college degree Professional degree: $2,000,000 less than a lifetime ▯ ▯ Women on average work $0.77 for every dollar a man earns ▯ ▯ US figures show women make up only 26% of highly paid chief executives but 71% of low pay ▯ ▯ By gender and race: Even when we control for race, women make less than men ▯ ▯ Legal tools for addressing pay inequality th 14 amendment, US Constitution o equal protection clause; we can’t just take middle level scrutiny because of the limitation (difference between private and public) Title VII of the civil rights act o Prohibits discrimination by private employers who have at least 15 employees o Anne Hopkins not getting promotion Equal Pay Act of 1963 Lilly Ledbetter Fair Pay Act of 2009 (Paycheck Fairness Act… proposed, but not yet law) ▯ ▯ Equal Pay Act of 1963 Prohibits sex-based wage discrimination between men and women in the same workplace …For people who perform jobs that require substantially equal skill or work under similar working conditions (substantially the same) ▯ ▯ Equal Pay Act of 1963: “Substantially” the same Not equal, not identical Q: What are the actual job duties? o Same skill o Same level of effort o Same responsibility Substantially the same ▯ ▯ It depends if a college degree is required for the job; if a degree is not part of the requirements, you cannot use someone else’s degree for increased wages ▯ ▯ Employer defenses & the vicious circle Bona fide occupational qualification (BFOQ) Some defenses include: o Different salaries o Different abilities o Seniority o Productivity o Prior salary o Physical ability Kuba v Allstate ▯ ▯ Dukes v. Wal-Mart (2011) Why having laws on the books don’t necessarily translate to justice and practice 2001 = Betty and some other women representatives sued on a class action based on 1.5 million women who work currently or had worked at a certain time at Walmart since 1998 Substantive issue: Sued on the grounds that Walmart violated Title VII in two ways o 1) by paying males more than females for the same work? o 2) by promoting men faster and further than women? Procedural issue: o Can Betty and others bring a class action on behalf of 1.5 million female employees? o Deal with systematic sex discrimination within one organization for all and not one ▯ ▯ The Wal-Mart Way! Betty and class representatives identified a measurable culture called the Wal-Mart Way o Allowed discrimination against women to flourish not just in one store, but across thousands of stores and within that in each store (almost 3,500 stores) Betty worked for Wal-Mart in California where she got a job as a cashier getting paid $5/hour; worked 20 years at Safeway She made it corporate service manager in a few years; advancement starts getting harder and harder for Betty Advancement is not getting harder for her male coworkers; went to 7 managers to complain; ongoing battle which led to a demotion back to cashier with 5% cut Stephanie was a Wal-Mart manager; worked at 9 stores within 8 years in 3 different states; found out one male colleague earned $10,000 more than she did per year; he has a wife and kids to take care of Betty Dukes in addition to being woman is African-American; documenting the actual experiences of women who worked at Wal- Mart showed that biological characteristics influence the stories they tell about working at Wal-Mart Employees targeted for mistreatment = sexual harassment, sexist remarks, pointed racist remarks, stereotyping EX) manager called an employee “my little Mexican princess” No investigation of complaint, she got fired Pervasive culture across geographic stores + failure to control managerial discretion = pervasive sex discrimination in pay and promotion Walmart did nothing to control what local managers did ▯ ▯ ▯