Women Changing the Law for Women
The year 1970 is a marker of meaningful change in the advancement of
women's legal rights. By 1980, a decade later, gender discrimination
law in the United States had been transformed completely. This outline
traces that path and the accomplishments that followed, honoring the
central and ground-breaking contributions of three advocates for the
advancement of women's legal rights:
- Justice Ruth Bader Ginsburg, then Professor, as Director of the Women's
Rights Project of the American Civil Liberties Union, established in
1971 to achieve gender equality in the law through litigation.
- NOW Legal Defense and Education Fund ( now called Legal Momentum
), founded in 1970 as a national organization separate from the National
Organization for Women, to focus on legal advocacy for women.
- The National Judicial Education Program, established in 1980 by NOW
Legal Defense and co-sponsored by the National Association of Women
Judges, to promote equality for women and men in the courts.
A. Earlier Years
- The 1970's saw a rebirth of the women's rights movement that began
over 150 years ago with Elizabeth Cady Stanton and Lucretia Mott's
first women's rights convention in Seneca Falls, NY in 1848 and continued
slowly through the twentieth century.
- The Declaration of the Rights of Women adopted at the Seneca Falls
Convention in 1848 detailed the laws that discriminated against women
starting with the most important discrimination: women had no right
to vote. Finally, in 1920, after a ceaseless and bitter struggle led
until her death by Susan B. Anthony, the passage of the Nineteenth
Amendment gave women the right to vote.
- However, laws that prohibited women from engaging in many occupations
and professions, including the practice of law in many states, continued.
A married woman continued to be deprived of legal rights relating to
civil rights, money, property and children because her husband legally
was her "master." Workplace "protections" hindered
women's ability to progress. In short, the law as it existed until
the 1960's was generally a source of oppression against women.
- The first woman lawyer in America, Margaret Brent, came to the Maryland
colony in 1648. The ABA's Commission on Women in the Profession (founded
in 1987) recognizes her achievements by annually presenting The Margaret
Brent Women Lawyers of Achievement Awards. The Brent Awards recognize
and celebrate the accomplishments of women lawyers across the country
who have achieved professional excellence in their area of specialty
and have paved the way to success for other women lawyers. Justice
Ginsburg has received the Brent Award, as have our Symposium speakers
Hon. Margaret H. Marshall, Professor Judith Resnik and Lynn Hecht Schafran.
- In 1920, there were 1,738 women lawyers and judges in the United
States, representing 0.014% of total lawyers. Only a few law schools
admitted women. By 1960, there were 4,954 women lawyers and judges,
2.4% of total lawyers. Women by and large practiced in only a few select
areas of the law, including family, juvenile and legal aid work. Men
tended to be more accepting of women who practiced in those areas because
the women were viewed as fulfilling their "prescribed role" in
society to help the family and community. Women were often prohibited
from entering courtrooms, or ridiculed once they were there.
B. The 1960's - The 1960's marked a slow path toward change.
- In 1961, President John F. Kennedy created the President's Commission
on the Status of Women, which was intended to serve the dual purposes
of analyzing women's progress and proposing reforms where progress
was deemed necessary. Eleanor Roosevelt was the Commission's first
- In 1963, Congress passed the Equal Pay Act, the first federal law
to prohibit wage discrimination on the basis of, among other categories,
sex. The Equal Pay Act required "equal pay for equal work," a
simple statement but one enacted with legal distinctions that have
hampered meaningful enforcement.
- The Civil Rights Act of 1964 was passed in President Johnson's administration,
containing Title VII that prohibits employers from making employment
decisions on the basis of race, color, religion, sex, or national origin.
Ironically, the provision prohibiting discrimination on the basis of
sex was added by opponents of the legislation at the last minute on
the floor of the House in the hope that the addition would doom enactment.
Title VII also created an enforcement mechanism, the Equal Employment
Opportunity Commission, to enforce the law through conciliation and
C. Important Cases of the 1960's
- 1965 - Griswold v. Connecticut, 381 U.S. 479. The Supreme
Court held that a Connecticut statute forbidding even married couples
from obtaining contraceptives was unconstitutional.
a. This decision established a constitutional "right to privacy" which
created a basis in subsequent decisions to expand access to birth
control to unmarried persons and minors, and to eventually allow
women to terminate their pregnancies.
- 1969 - Weeks v. Southern Bell, 408 F.2d 228 (5th Cir.). This
case marked the first of several victories over protective labor laws
premised on discriminatory stereotypes of women in the workplace.
a. When Southern Bell promoted a less senior male over a female
for a position requiring "strenuous" labor, the trial
court found against the female employee.
b. The Fifth Circuit on appeal criticized Southern Bell for largely
premising its legal arguments on stereotypes about men and women's
abilities and desires. In response to the argument that the unpleasant
aspects of the job should be used to ban women, the court stated, "Title
VII rejects just this type of romantic paternalism as unduly Victorian
and instead vests individual women with the power to decide if
they should take on unromantic tasks." Id. at 231.
c. However, at a post-appeal meeting to determine the plaintiff's
remedy, the judge was overtly dismayed at the notion of a woman
becoming a switchman. It was only when the plaintiff's attorney
informed the judge that her client's husband was an engineer and,
in the judge's mind, the Blackstone principle took over (i.e.,
upon marriage the two became one - the husband - and he would tell
her what to do) that the meeting moved forward.
- 1969 - Bowe v. Colgate-Palmolive, 416 F.2d 711 (7th Cir.).
Companies were prohibited from using job classification systems that
discriminate on the basis of gender.
a. The court ruled that Colgate-Palmolive must eliminate the segregated
seniority systems it established for men and women, and extend
the existing women's weight-lifting limit to apply to men as well.
b. All employees (regardless of sex) now have the opportunity
to prove their suitability for the more physically demanding jobs.
This decision enabled women to work in jobs that had previously
been for men only, provided that the females could meet the physical
III. 1970's - PROFESSOR RUTH BADER GINSBURG'S LEGAL ADVOCACY AT THE
- In 1971, the American Civil Liberties Union established the Women's
Rights Project, and Professor Ruth Bader Ginsburg, who had that same
year been appointed to Columbia Law School from Rutgers Law School,
became its Director.
- From 1971 to 1979, Professor Ginsburg authored or coauthored briefs
in nine cases before the Supreme Court. She argued six of these cases
and won five. She also wrote fifteen amicus briefs. Taken together,
these ground-breaking cases established the foundation for the gender
discrimination law that protects women's rights today.
- Her litigation strategy was to convince the Supreme Court that all
laws that discriminated between men and women, even those laws intended
to benefit women, should be deemed discriminatory. She believed that
such laws were harmful regardless of their intended purpose because
they were likely to perpetuate traditional stereotypes. Her legal approach
was to sometimes bring cases on behalf of male plaintiffs, in order
to show that men and women alike suffered from potentially harmful
- While on the D.C. Circuit Court of Appeals, Judge Ginsburg reflected
on this strategy in 1988 in the Keynote Address for The University
of Chicago Legal Forum Symposium (prepared in collaboration with Professor
"The 1970s cases in which I participated under ACLU auspices all rested
on the same fundamental premise: that the law's differential treatment of men
and women, typically rationalized as reflecting 'natural' differences between
the sexes, historically had tended to contribute to women's subordination - their
confined 'place' in man's world
.The arguments addressed to the courts were
designed to reveal and to challenge the assumptions underpinning traditional
sex-specific rules, and to move the Supreme Court in the direction of a constitutional
principle that would provide for heightened, thoughtful review of gender classifications."
Hon. Ruth Bader Ginsburg and Barbara Flagg, Some Reflections
on the Feminist Legal Thought of the 1970s, 1989 University of
Chicago Legal Forum 9,11. (See reprint included in these materials.)
B. Highlights of Professor Ruth Bader Ginsburg's Groundbreaking Cases
of the 1970's (to be discussed in more detail infra)
- 1971 - Reed v. Reed, 404 U.S.71. This is the first case Professor
Ruth Bader Ginsburg brought to the Supreme Court and the first case
in which the Supreme Court applied the Fourteenth Amendment to hold
unconstitutional a law that discriminated against women. The Court
ruled unanimously that a state statute that provided that males must
be preferred to females in estate administration denied females equal
- 1973 - Frontiero v. Richardson, 411 U.S. 677. In her first
argument to the Supreme Court, Professor Ginsburg convinced the Court
to declare unconstitutional (as a violation of Due Process) a federal
statute that automatically granted male members of the uniformed forces
housing and benefits for their wives, but required female members to
demonstrate the "actual dependency" of their husbands before
granting the same benefit. She persuaded four justices (one vote short
of a majority) that laws differentiating by sex were inherently suspect
and subject to strict judicial scrutiny as were those by race.
- 1975 - Weinberger v. Weisenfeld, 420 U.S. 636. Professor Ginsburg
persuaded the Court to invalidate as unconstitutional a provision of
the Social Security Act that provided for gender-based distinctions
in the award of social security benefits, building on the groundwork
laid in the Reed and Frontiero cases.
- 1976 - Craig v. Boren, 429 U.S. 190. Professor Ginsburg's
amicus brief helped to establish the legal standard of review used
to evaluate sex discrimination in effect today, not the "strict
scrutiny" argued for in Frontiero, but "heightened scrutiny" under
which a gender-based distinction must bear a substantial relationship
to an important governmental interest.
IV. 1970 - FOUNDING OF NOW LEGAL DEFENSE AND EDUCATION FUND
||In 1970, NOW Legal Defense and Education Fund was established
as the litigating arm of the women's rights community. It has taken
the lead in establishing innovative legal, legislative and educational
strategies designed to secure equality and justice for women across
||As a direct outcome of NOW Legal Defense's legal advocacy, the
law has evolved to include clear protections for women's rights in
employment, education and other critical areas.
||As important as these laws are, NOW Legal Defense's mission goes
further. It wants to ensure that equality for women is firmly established
not only in law and policy, but in the actual practices, attitudes
and behaviors that shape women's everyday existence.
||Today, NOW Legal Defense pursues that mission in many ways: Litigation,
the core of its successful track record, remains a central focus
of its work. Many critical legal protections remain poorly enforced.
Other hard-won rights are under legal attack. In some spheres, additional
laws are still needed to eliminate systemic barriers to equality.
NOW Legal Defense's highly trained legal staff - with the assistance
of a network of cooperating attorneys around the country - brings
high-impact lawsuits on behalf of individuals and classes. NOW Legal
Defense also provides information, advice and referrals to thousands
of women who seek its legal assistance each year.
V. CHANGING THE LAW
A. The 1970's
- There were rapid legal changes throughout the decade, each case building
on the one before it, and each contributing to overwhelming progress
in the law for women.
- In 1972, Congress approved the Equal Rights Amendment (ERA) to the
U.S. Constitution. President Nixon signed it and sent it to the states
for ratification. First proposed in 1923, the ERA had been long dormant,
but the rebirth of the women's rights movement in 1970 accomplished
its revival. The ERA failed by a small margin to gain ratification
by the necessary 38 states and was declared defeated in June 1982.
However, at least 18 states now have state constitutional provisions
that prohibit sex discrimination.
- Even without the ERA, by the end of the 1970's, gender discrimination
law had been completely changed in the courts and legislatures.
a. The women's rights movement and consequent changes in women's
role in society had resulted in the removal of gender discrimination
provisions in old laws and the enactment of new laws to outlaw
sex discrimination in housing, credit, employment and education.
b. Through the work of Professor Ginsburg at the ACLU Women's Rights Project,
NOW Legal Defense and others, the Supreme Court had reexamined and changed
its interpretation of the Constitution with respect to gender equality.
- In 1972, Congress passed Title IX of the Educational Amendments Act.
Title IX was aimed at eradicating discrimination based on sex in the
higher education environment, and prohibits such discrimination in
schools and educational programs that receive federal funds. Title
IX and the resurgent women's movement led to a steadily-increasing
admission of women to law schools.
- In 1978, Congress passed the Pregnancy Discrimination Act, in response
to several cases that failed to protect pregnant women on the rationale
that pregnancy is not a disability. The Act made it illegal for employers
to discriminate because of pregnancy, childbirth, or pregnancy-related
conditions and required employers to treat pregnancy as any other disability.
B. Milestone Cases of the 1970's:
- 1971 - Reed v. Reed, 404 U.S.71. This is the first case that
then Professor Ginsburg argued to the Supreme Court and the
first case in which the Supreme Court applied the Fourteenth Amendment
to prohibit gender discrimination.
a. An Idaho statute governing the appointment of administrators
of estates required that "of several persons claiming and
equally entitled to administer, males must be preferred to females
a teenaged boy died without a will, his parents, who were separated,
each filed an application to act as administrator of his estate.
The probate court appointed the father as administrator in accordance
with the preference specified in the statute. The Idaho Supreme
Court upheld the statute, concluding that eliminating females
was " 'neither illogical nor arbitrary'" because it
eliminated an area of controversy.
b. The Supreme Court unanimously held that the provision violated
the Equal Protection Clause of the Fourteenth Amendment:"
may be said as to the positive values of avoiding intrafamily
controversy, the choice in this context may not lawfully be mandated
solely on the basis of sex." Id. at 76-77.
- 1971 - Phillips v. Martin Marietta, 400 U.S. 542. The Supreme
Court ruled that it was contrary to Title VII for an employer to refuse
to hire women with pre-schoolage children while hiring men similarly-situated.
a. This case was a partial victory in the struggle against anti-motherhood
- 1971 - United States v. Libbey-Owens-Ford, 1971 U.S.Dist.Lexis
14770 (Northern District of Ohio). For the first time, the U.S. Department
of Justice sued a company for sex discrimination under Title VII.
a. A wide-ranging consent order to remedy past gender discrimination
was entered governing seniority, lines of promotion, transfer rights,
training, hiring, recruitment, and notice requirements for female
hourly paid employees at the defendant's Toledo manufacturing plants.
- 1971 - Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir.).
The court held that the airline's no-marriage rule for stewardesses
discriminated on the basis of sex and was not justified as a bona fide
occupational qualification under Title VII.
a. The airline's justification was that it had imposed the no-marriage
requirement "after it had received complaints from husbands
about their wives' working schedules and the irregularity of their
working hours." The court noted that "complaints of spouses
do not suffice as an indicator of employee competence," nor
would passenger preference for single stewardesses be a valid reason.
Id. at 1199.
b. NOW Legal Defense filed an amicus brief in this case, as well
as numerous other cases in the 1970's involving barriers to women
- 1972 - Eisenstadt v. Baird, 405 U.S. 438. The Supreme Court
invalidated a law prohibiting the provision of birth control devices
to unmarried persons.
a. The decision extended the "right of privacy" established
in Griswold to all individuals, regardless of marital status. It
granted individuals the right "to be free from unwarranted
governmental intrusion into matters so fundamentally affecting
a person as the decision whether to bear or beget a child." Id.
b. This decision laid the legal foundation for Roe v. Wade.
- 1973 - Frontiero v. Richardson, 411 U.S. 677. In the next
Supreme Term after Reed, Professor Ginsburg argued on behalf
of the Frontieros, a married Air Force Lieutenant and her full-time
college student husband, that sex discrimination, like discrimination
based on race, religion, or national origin, is inherently suspect
and thus should be subject to strict judicial scrutiny.
a. The Frontieros challenged a federal statute that automatically
granted male members of the armed forces housing and benefits
for their wives, but required female members to demonstrate the "actual
dependency" of their husbands before granting the same benefit.
The statute was premised upon the assumption that since the husband
is generally the "breadwinner," it would be administratively
cost-effective for the government to presume wives, but not husbands,
to be financially dependent.
b. The Court overturned the statute, with only Justice Rehnquist
dissenting, as a violation of the Due Process Clause. Justice
Brennan eloquently supported women's rights in his majority opinion:
"There can be no doubt that our Nation has had a long and
unfortunate history of sex discrimination. Traditionally, such
discrimination was rationalized by an attitude of 'romantic paternalism'
which, in practical effect, put women, not on a pedestal, but
in a cage
As a result of notions such as these, our statute
books gradually became laden with gross, stereotyped distinctions
between the sexes
.As a result, statutory distinctions between
the sexes often have the effect of invidiously relegating the
entire class of females to inferior legal status without regard
to the actual capabilities of its individual members." Id.
at 684-87. (Footnotes omitted.)
c. Only four Justices, however, agreed that laws that discriminated
because of sex were inherently suspect and subject to strict
judicial scrutiny, similarities between race and sex discrimination
notwithstanding. Although Professor Ginsburg failed by one vote
to win "strict scrutiny"in sex discrimination cases,
in 1976, with her help in Craig v. Boren, a compromise "heightened" scrutiny
standard was established.
- 1973 - Roe v. Wade, 410 U.S. 113. The Supreme Court extended
the right of privacy to encompass a woman's decision to terminate her
pregnancy and thereby established a woman's right to obtain an abortion.
a. The Court held that restricting women's access to abortions
during the first trimester was impermissible, but permitted states
to regulate abortions during the second trimester in ways that
were "reasonably related to maternal health."
- 1973 - Pittsburgh Press v. Pittsburgh Commission on Human Relations, 413
U.S. 376. NOW Legal Defense argued this case for which Professor
Ginsburg co-authored an amicus brief. The Supreme Court held that
employers' use of sex-segregated "Male Help Wanted" and "Female
Help Wanted" columns and newspapers' publication of them was illegal
because sex-segregated columns enabled employers to express unlawful
a. The decision opened the way for women to apply for jobs that
were previously only available to men, thus affording women greater
opportunity for upward mobility and higher pay.
- 1973 - Bowe v. Colgate-Palmolive, 489 F.2d 896 (7th Cir.). NOW
Legal Defense assisted the plaintiff in this case as part of
its effort to prohibit companies from using job classification systems
that discriminated on the basis of gender. The court of appeals remanded
the case to the district court to create a system in which seniority
and other disputes were handled fairly, concluding that Title VII
suits were meant to end discrimination and to compensate the victims.
- 1974 - Boylan v. New York Times, U.S. Dist. LEXIS 17243 (S.D.N.Y.). Harriet
Rabb represented a class of women who filed a sex discrimination
suit against The New York Times. The aggrieved women first organized
in 1972 and formed a group they called the "Women's Caucus."
a. The organizers were appalled by the low status of women in
The New York Times organization. Women were almost entirely absent
from management levels and a large wage disparity between men
and women in equal jobs existed. Moreover, the women were angered
that the newspaper reflected only a white male voice while failing
to reflect America's diversity and the woman's voice.
b. After providing management with a list of demands, the Women's
Caucus in 1973 chose Professor Harriet Rabb of Columbia
Law School's Employment Rights Project to advocate their
cause. Professor Rabb meticulously documented statistical evidence
that discrimination permeated the Times. She deposed numerous
executives, some of whom were belittling and condescending toward
her. She also helped to inspire the plaintiffs to believe in,
and proceed with, their cause.
c. Ultimately, Professor Rabb helped to reach a settlement with
the Times, including promotion goals and a monetary package.
The Times agreed to an affirmative action plan that placed a
woman in one of every eight corporate management positions during
the four-year life of the settlement.
- 1974 - Kohn v. Royall, Koegel & Wells, 496 F.2d 1094 (2d
Cir.). Harriet Rabb again represented a class of women alleging
sex discrimination in employment practices, this time on behalf of
a Columbia Law graduate and others similarly situated who alleged discrimination
in a large New York City law firm's hiring and internal employment
practices. A settlement was reached that ultimately opened the doors
of law firms in New York and elsewhere to women lawyers in a meaningful
- 1974 - Geduldig v. Aiello 417 U.S. 484. Professor Ginsburg co-authored
an amicus brief that argued for constitutional equal protection analysis
in the context of pregnancy. Although the Supreme Court did for the
first time analyze pregnancy in Fourteenth Amendment terms, it held
that denying pregnant women disability benefits was not unconstitutional.
a. The Court upheld a California disability insurance program
that denied benefits for employment disabilities resulting from
pregnancy because it did not invidiously discriminate on the basis
of gender under the Equal Protection Clause.
b. The Court ruled that unlike the Reed and Frontiero cases, the
government program did not involve discrimination based upon gender "as
such," noting that "[w]hile it is true that only women
can become pregnant it does not follow that every legislative classification
concerning pregnancy is a sex-based classification
divides potential recipients into two groups - pregnant women and
nonpregnant persons." Id. at 497 fn.21.
c. Geduldig was law until 1978 when Congress amended Title VII
with the Pregnancy Discrimination Act of 1978 which provides that
employment discrimination based on pregnancy, childbirth and related
medical conditions is illegal sex discrimination
- 1974 - Kahn v. Shevin, 416 U.S. 351. In the only instance
when Professor Ginsburg argued in front of the Supreme Court
and lost, the Court held that Florida's statute granting widows, but
not widowers, an annual five hundred dollar exemption from property
taxes was constitutional.
a. The purpose of the statute was to close the gap between men's
and women's economic situation.
b. The Court found that there was a fair and substantial relationship
between the exemption itself and the purpose of the statute.
- 1974 - Cleveland Board of Education v. LaFleur, 414 U.S. 632.
The Supreme Court, with Professor Ginsburg as co-author of an amicus
brief, ended a widespread practice by government entities of requiring
women to take unpaid maternity leaves after the first trimester of
pregnancy because of a conclusive presumption that pregnant women were
no longer able to work.
a. Rather than citing gender discrimination, the Court grounded
its decision on preserving freedom of choice in marriage and family
life as a liberty protected by the Due Process Clause under Roe
v. Wade. The Court found that mandatory maternity leaves based
on unwarranted conclusive presumptions unduly penalized a woman
for asserting her protected constitutional right to bear a child.
- 1974 - Corning Glass Works v. Brennan, 417 U.S. 188. Professor
Ginsburg co-authored an amicus brief in this case in which the Supreme
Court for the first time considered an Equal Pay Act violation charge
for discrimination in paying women less than men for the same work.
The Court determined that the wage difference between Corning's female
day and male night inspectors violated the Equal Pay Act.
- 1975 - Taylor v. Louisiana, 419 U.S. 522. The Supreme Court
invalidated a Louisiana statute that allowed women to serve as jurors
only when they expressly volunteered, in the process repudiating a
1961 Supreme Court decision that had held that excluding women from
jury service unless they volunteered was constitutional.
a. The practical effect of the Louisiana statute was to almost
entirely eliminate women from juries. The Supreme Court held that
this excluded women as a class from juries and violated the rights
of a male defendant even though he was not a member of the excluded
b. The decision guaranteed that states would call women and men
to jury service on an equal basis: "If it was ever the case
that women were unqualified to sit on juries or were so situated
that none of them should be required to perform jury service, that
time has long since passed." Id. at 538.
- 1975 - Stanton v. Stanton, 421 U.S. 7. In a dispute over child
support, the Supreme Court ruled that a law which set the age of majority
for women at eighteen and for men at twenty-one was unconstitutional
as sex discrimination.
a. The law was premised on the assumption that women needed less
education and preparation for adulthood than did men.
b. The Court dispelled these stereotypes and asserted that "[n]o
longer is the female destined solely for the home and the rearing
of the family, and only the male for the marketplace and world
of ideas." Id. at 15.
- 1975 - Weinberger v. Wiesenfeld, 420 U.S. 636. In another
of the six occasions when Professor Ginsburg argued in front of the
Supreme Court, she successfully persuaded the Court to invalidate a
provision in the Social Security Act that provided for gender-based
distinctions in the award of social security child-in-care benefits
to widows and widowers. The complainant was father of a child whose
wife, a teacher, had died in childbirth and was denied child-in-care
a. A widower with a minor child was not eligible to receive child-in-care
benefits. The provision was intended to allow women to devote themselves
to raising their children rather than to working. A surviving widow
whose husband had paid social security taxes would receive benefits,
whereas a surviving widower similarly situated would receive nothing.
b. Professor Ginsburg argued that the provision discriminated
against both men and women. The government justified the provision
on the ground that it was implemented as an attempt to offset the
adverse economic situation of women by providing widows, but not
widowers, with additional income to substitute for or supplement
c. The Court rejected the government's argument and dispelled
two stereotypes that were entrenched in society - that women's
earnings were not as vital to the support of a family as men's,
and that women would choose to forego work in order to rear a family
while men would not: "
the Constitution forbids gender-based
differentiation that results in efforts of female workers required
to pay social security taxes producing less protection for their
families than is produced by efforts of men." Id. at 645.
d. Reflecting on the Reed, Frontiero and Wiesenfeld cases while
on the D.C. Circuit Court of Appeals, Judge Ginsburg characterized
Reed and Frontiero as "ideal way pavers" because "[b]oth
presented gender distinctions rooted in sex-role stereotypes, distinctions
defended solely on grounds of administrative convenience
majority of Justices considered Wiesenfeld, like Frontiero, dominantly
as an equal pay case: Paula's gainful employment netted the family
less than a man's work. The Court also saw the law as discriminating
against Stephen, who wanted to be a caring parent. Each of these
views accurately described a facet of the case." Ginsburg
and Flagg, Some Reflections on the Feminist Legal Thought of the
1970s, 1989 University of Chicago Legal Forum 9,16. (See reprint
included in these materials.)
- 1976 - Craig v. Boren, 429 U.S. 190. Professor Ginsburg played
a central role as an adviser to the plaintiffs' attorney, and as amicus,
arguing that an Oklahoma statute violated plaintiffs' Fourteenth Amendment
right to equal protection.
a. The statute forbade the sale of 3.2% beer to males under the
age of twenty-one and females under the age of eighteen. The state's
interest in this statute derived from the assumption that young
men who drank alcoholic beverages caused more traffic accidents
than did women who drank. Therefore, the statute was intended to
further a state interest in improving traffic safety.
b. Professor Ginsburg had been working since Reed in 1971 to attain
strict judicial scrutiny for sex-based classifications. Craig marked
an opportunity for this goal to be accomplished, and the case was
an important partial victory.
c. The standard that courts had been applying since Reed was the
lowest standard, the "rational relationship" test, permitting
a law to stand where it bore a rational relationship to a legitimate
state interest. While Professor Ginsburg had argued for application
of a strict scrutiny test in Craig, the compromise test that the
Court ultimately applied nevertheless marked an improvement over
the rational relationship test.
d. Under the new heightened, intermediate scrutiny standard, a
law using gender-based classifications could stand only if it bore
a substantial relationship to an important governmental interest.
The Craig "heightened scrutiny" standard continues to
be the standard that governs the evaluation of sex discrimination
- 1976 - Regents of the University of California v. Bakke, 429
U.S. 953. Professor Ginsburg co-authored an amicus brief to the Court
defending affirmative action, as did NOW Legal Defense. The
Court ruled that affirmative action was permissible where a category
was treated as a "plus," but the Court rejected the use of
a quota system.
- 1976 - General Electric Co. v. Gilbert, 429 U.S.125. Professor
Ginsburg, in her amicus brief to the Court, challenged the exclusion
of pregnancy from a disability statute. The Court again used the
reasoning employed in Geduldig to uphold a similar disability plan
that permitted private employers to exclude pregnancy from their
medical disability plans.
a. The Court reaffirmed once again the view that pregnancy-based
discrimination is not sex discrimination.
b. Congress responded in 1978 by passing the Pregnancy Discrimination
Act, which amended Title VII explicitly to prohibit discrimination
on the basis of pregnancy, childbirth, and related medical conditions. NOW
Legal Defense co-organized a campaign in 1976 to support
enactment of this Act.
- 1977 - Coker v. Georgia, 433 U.S. 584. Professor Ginsburg co-authored
an amicus brief to the Supreme Court to oppose the imposition of the
death penalty on a convicted rapist. The Supreme Court held that Georgia's
statute allowing a sentence of death for a convicted rapist was cruel
and unusual punishment in violation of the Eighth Amendment.
a. While the Court's plurality opinion was premised upon the distinction
between the severity of the crimes of rape and murder in order
to justify the death penalty for murder but not for rape, Professor
Ginsburg's argument was quite different.
b. She believed that imposing the death penalty on a convicted
rapist could have harmful ramifications for women. Historically,
convicted rapists were sentenced to death because of the notion
that a woman was a man's property. If a woman was raped, she would
be treated as "damaged goods" by her father or husband.
The crime of rape was thus historically punishable by death, not
because of the harm done to the woman, but rather, because of the
affront to a man's property resulting from the rape of his woman.
c. A secondary undesired effect of punishing rape by death was
that oftentimes, because of the severity of the sentence, the crime
went unpunished entirely because police refused to prosecute or
juries refused to convict.
- 1977 - Carey v. Population Service, 431 U.S. 678. The Supreme
Court ruled, citing Eisenstadt for support, that states could not prohibit
the distribution of contraceptives to unmarried minors.
- 1977 - Dothard v. Rawlinson, 433 U.S. 321. Professor Ginsburg
co-authored an amicus brief challenging an Alabama employment rule
for penitentiaries imposing a height and weight requirement as well
as a requirement that only men fill contact positions.
a. The Supreme Court invalidated an Alabama provision that required
women to be of a certain height and weight in order to serve as
correction counselors. The Court found that the requirements had
a discriminatory effect on women and thus constituted sex discrimination,
without any demonstration that the requirement was a bona fide
b. Because the state failed to administer non-discriminatory strength
tests to all applicants, the Court struck the height and weight
c. This case also challenged Alabama's regulation barring women
from working in "contact" positions in all-male maximum
security facilities. The effect of the regulation was that 75 percent
of the system's total correctional positions were open only to
d. The Court upheld this regulation, asserting that its reason
was not one of romantic paternalism but rather because, "[a]
woman's relative ability to maintain order in a male, maximum security
be directly reduced by her womanhood." Id. at 336.
- 1978 - Los Angeles Department of Water and Power v. Marie Manhart, 577
F.2d 98 (9th Cir.) Professor Ginsburg co-authored an amicus brief for
this case in which the Supreme Court held that requiring female workers
to make larger pension fund contributions than their male counterparts
violated Title VII.
a. The contribution disparity was defended on the grounds that
while women may have received less compensation during their working
years, by and large they would get more monthly pension checks
than male employees because men, on average, lived shorter lives.
b. The Court ruled that the sex-based differential contravened
a primary purpose of Title VII: to prevent employers from basing
personnel policies on assumptions about men and women. However,
the Court did not award restitution for overpayment.
- 1979 - Duren v. Missouri, 439 U.S. 357. Professor Ginsburg argued,
and the Supreme Court agreed, that a state statute exempting women
from jury duty upon request violated a defendant's Sixth and Fourteenth
a. The statute failed to ensure that criminal case jurors were
drawn from a fair cross-section of the community. Women were not
fairly represented in the pools from which jurors were drawn.
- 1979 - Orr v. Orr, 440 U.S. 268. Professor Ginsburg wrote
an amicus brief for this case which decided whether alimony statutes
may provide that husbands, but not wives, be required to pay alimony
upon divorce. The Supreme Court rejected such statutes in favor of
gender-neutral ones, and thereby cast off the assumption that married
women are necessarily dependent upon their husbands for financial support
but never the reverse.
a. Justice Brennan criticized legislation that assigned benefits
and burdens on the basis of gender. He warned that even where such
statutes are designed to compensate for past discrimination, they
could unintentionally perpetuate undesired stereotypes of women,
such as their need for special protection.
b. This decision is significant for changing the "legal core" of
marriage. Whereas a man was traditionally responsible for providing
financial support in a marriage and a woman was responsible for
domestic and sexual services, this decision reversed these assumptions.
- 1979 - Califano v. Westcott, 443 U.S. 76. Professor Ginsburg and NOW
Legal Defense, as amici curiae, helped to persuade the Supreme
Court to invalidate a program for unemployment benefits under the
Aid to Families with Dependent Children. The program provided benefits
to families with unemployed fathers, but not to those with unemployed
mothers, and the Court ruled it was therefore unconstitutional.
a. The Court invalidated the provision because "Congress,
with an image of the 'traditional family' in mind, simply assumed
that the father would be the family breadwinner, and the mother's
employment role, if any, would be secondary
.There is little
to suggest that the gender qualification had anything to do with
reducing the father's incentive to desert." Id. at 89. (Footnote
b. The decision officially eliminated courts' willingness to accept
the traditional stereotype that men support the family while women
work for "play money."
- 1979 - Personnel Administrator of Massachusetts v. Feeney,
442 U.S. 256. In a challenge to legislation that unquestionably burdened
women disproportionately to men by providing for a lifetime employment
preference to veterans, who were overwhelmingly male, the Court agreed
that the statute was not gender neutral, but nevertheless decided that
such preference did not advance a "discriminatory purpose" because
the statute was passed "in spite of" rather than "because
of" its harmful effect on women. NOW Legal Defense filed an amicus
C. The 1980's
- During the 1980s, women's voices continued to emerge in the field
of law, making an unprecedented mark in history.
a. In 1980, Ruth Bader Ginsburg was nominated by President Carter
to the U.S. Court of Appeals for the District of Columbia Circuit
and began serving in June, 1980.
b. In 1980, NOW Legal Defense and Education Fund, with co-sponsorship
by the National Association of Women Judges, established the National
Judicial Education Program to Promote Equality of Women and Men
in the Courts (NJEP) to identify and eliminate gender bias in the
c. In 1981, Sandra Day O'Connor became the first woman appointed
to the Supreme Court. Also that year, Arnette Hubbard became the
first female president of the National Bar Association.
d. In 1984, Geraldine Ferraro became the first woman to be nominated
for Vice President. The New Jersey Supreme Court Task Force on
Women and the Court issued the first task force report on gender
bias in the courts with the assistance of NJEP.
e. In 1986, the Supreme Court ruled that sexual harassment is
a form of sex discrimination under Title VII of the Civil Rights
Act of 1964.
f. In 1988, Juanita Kidd Stout became the first African American
woman judge to sit on a state high court.
g. When Roe v. Wade was reconsidered in 1989 in Webster v. Reproductive
Health Services, the Supreme Court upheld the core of its prior
ruling that a woman has a right to an abortion. However, Missouri's
restrictions on a woman's access to abortion were also upheld.
D. Milestone Cases of the 1980's:
- 1981 - Kirchberg v. Feenstra, 450 U.S. 455. This was the first
Supreme Court case to invalidate a law that gave a husband the right
to control marital property without his wife's consent. NOW Legal
Defense wrote an amicus brief for this landmark case.
a. Joan Feenstra's husband signed a promissory note mortgaging
their marital home to his attorney without telling her. When
the attorney sought to foreclose the home, Feenstra fought back.
But a Louisiana statute gave her husband the exlusive right to
dispose of community property. The law stated that "the
husband is the head and master of the partnership or community
of gains; he administers its effects, disposes of the revenues
which they produce, and may alienate them
without the consent
and permission of his wife." Id. at 457 fn.1.
b. The Supreme Court overturned the Louisiana law as an abridgement
of married women's constitutional rights under the Equal Protection
Clause of the Fourteenth Amendment.
- 1982 - Mississippi University for Women v. Hogan, 458 U.S.
718. The Supreme Court adopted the analysis in NOW Legal Defense's
amicus brief, ruling that sex-segregated public nursing schools are
a. When Joe Hogan applied for admission to the School of Nursing
of Mississippi University for Women, the oldest women-only government-funded
institution, he was rejected on the basis of his sex. Hogan claimed
that his Fourteenth Amendment constitutional rights had been violated.
The majority agreed, applying the "heightened scrutiny" test
as to whether the discrimination was "substantially related
to an important governmental interest." The Supreme Court
found that just because women traditionally dominated the nursing
profession, there was no important governmental interest in perpetuating
b. This decision had a significant impact on the ruling in United
States v. Virginia in 1996, which required the last two publicly
funded male-only colleges to admit women.
- 1984 - Grove City College v. Bell, 465 U.S. 555. NOW Legal
Defense provided assistance to amici for respondent in this case which
asked whether a college that accepted no direct federal assistance
was nevertheless subject to the provisions of Title IX of the Higher
Education Act, which prohibits educational programs that receive federal
funds from discriminating on the basis of sex.
a. The Supreme Court found that participation by some of the school's
students in federal financial aid programs did not trigger institutional
coverage but did require the school to comply with Title IX in
its financial aid program.
b. Four years later, Congress passed the Civil Rights Restoration
Act of 1988 requiring that Title IX be applied to an entire institution
if any program within the institution received federal assistance.
- 1984 - Roberts v. United States Jaycees, 468 U.S. 609. NOW
Legal Defense worked closely with the Minnesota Attorney General on
two amicus briefs, the first to the Minnesota Supreme Court, the second
to the U.S. Supreme Court. The latter brief urged the Supreme Court
to affirm the state decision to strike down the exclusionary membership
policies of the United States Jaycees.
a. The Court held that Jaycees was not an organization within
the scope of protection contemplated by the right to free speech
and association and that Minnesota had a compelling state interest
in ending sex discrimination.
- 1984 - Hishon v. King & Spalding, 467 U.S. 69. The Supreme
Court found that partnerships, such as the respondent Atlanta law firm,
were considered "employers" subject to Title VII's prohibition
against sex discrimination.
a. Ms. Hishon began at the firm as an associate attorney in
1972; her employment was terminated in 1979 after the firm decided
not to invite her to become a partner. The only other female
attorney was a long-time associate. Ms. Hishon alleged that the
firm represented that advancement to partnership was a "matter
of course" for associates who received "satisfactory
evaluations" and that partnership decisions were made "on
a fair and equal basis."
b. The Court held that Title VII would bind the law firm to
consider women for partnership if promise of partnership was
a term, condition, or privilege of employment.
- 1986 - Meritor Savings Bank v. Vinson, 477 U.S. 57. NOW
Legal Defense was amicus in persuading the Supreme Court to find
that a claim of hostile environment sexual harassment is a form of
sex discrimination actionable under Title VII.
a. Ms. Vinson was an employee of the bank for four years when
she took an indefinite sick leave. When she was fired for excessive
use of that leave, Ms. Vinson sued her supervisor, Sidney Taylor,
and the bank for having been constantly subjected to sexual harassment
by Taylor during her tenure.
b. The district court found that even if there had been a sexual
relationship between Vinson and Taylor, it was "voluntary" and
in any event had no economic impact on her employment. It held
that Title VII had not been violated and that the bank was not
responsible because it was without notice.
c. However, the Court of Appeals for the District of Columbia
reversed the lower court's decision. Following the Equal Employment
Opportunity Commission's Guidelines on Discrimination Because
of Sex (1985), the Court of Appeals stated that sex discrimination
under Title VII could be found in either of two types of sexual
harassment: one involving the conditioning of concrete employment
benefits on sexual favors; the other being sexual harassment
that creates a intimidating, hostile or offensive work environment,
regardless of its effect on economic benefits. The Court also
held that an employer is absolutely liable for sexual harassment
by supervisory personnel, whether or not the employer knew or
should have known about it.
d. The Supreme Court agreed that a claim of "hostile environment" is
a form of sex discrimination that is actionable under Title VII
and does not depend on a showing of economic harm.
e. However, on the issue of "voluntariness," the Court
disagreed with the Court of Appeals' ruling that testimony about
Ms. Vinson's "dress and personal fantasies" should
not have been admitted at trial because "it had no place
in this litigation." Id. at 69. Instead, Justice Rehnquist,
writing for the majority, found that evidence of complainant's
sexually provocative speech or dress was not per se inadmissible
on the issue of whether particular sexual advances are unwelcome.
The Court also overruled the appellate court on the employer's
absolute liability for supervisors, holding instead that the
circumstances of the situation have to be examined using agency
- 1986 - Thornburgh v. American Coll. Of Obst. & Gyn., 476
U.S. 747. NOW Legal Defense was amicus in this case, challenging
Pennsylvania's Abortion Control Act that attempted to regulate in minute
detail abortion procedures, physicians and clinics. The Court invalidated
six key provisions on informed consent, printed information, reporting
requirements, viability determinations, degree of care and physicians,
ruling that the provisions "wholly subordinate constitutional
privacy interests and concerns for maternal health in an effort to
deter a woman from making a decision that, with her physician, is hers
to make." Id. at 760.
- 1989 - Webster v. Reproductive Health Services, 492 U.S.
490. NOW Legal Defense filed an amicus brief entitled "Women's
Voices" documenting the experiences of thousands of American women
with abortion (legal and illegal) and making an eloquent case for reproductive
a. Missouri's legislation, inter alia, prohibited the use of
public facilities for abortion and required that a physician
rigorously examine a pregnant woman seeking an abortion if the
physician thought that the woman's pregnancy was over twenty
weeks. The medical tests were to determine "the gestational
age, weight, and lung maturity of the unborn child." Id.
b. Reproductive Health Services, Planned Parenthood of Kansas
City and five medical providers challenged the act and successfully
persuaded the US District Court for the Western District of Missouri
to declare the act unconstitutional.
c. The Court of Appeals for the Eighth Circuit upheld the lower
court decision. When Missouri appealed to the U.S. Supreme Court,
President Bush's administration joined the appeal through the
Solicitor General seeking a complete overturn of Roe v. Wade.
Although Roe was not overturned, five of the nine justices agreed
that restrictions such as Missouri's prohibition on the use of
public facilities and funds for abortions and its required tests
to determine viability do not burden procreational choice and
E. The 1990's
- 1. During the last decade of the 20th century, women continued to
effectively use the law as a tool for progress.
- In 1990, the ABA Model Code of Judicial Conduct was revised to include
sexual harassment in the courtroom as misconduct. Judges also were
prohibited from belonging to any discriminatory organizations.
- In 1991, Minnesota became the first state with a female majority
on its highest court. That year, Anita Hill testified in the Senate
Judiciary Committee's confirmation hearing on Judge Clarence Thomas
regarding past sexual harassment.
- 1992 became known as the "Year of the Woman," with women
elected to federal, state, and local offices in unprecedented numbers.
- In 1993, Ruth Bader Ginsburg was sworn in as the 107th Supreme
Court Justice and the second woman. The speech she gave at the White
House upon her nomination by President Clinton reflected on the progress
of the previous twenty years:
.The announcement the President just made is significant,
I believe, because it contributes to the end of the days when
women, at least half the talent pool in our society, appear in
high places only as one-at-a-time performers. Recall that when
President Carter took office in 1976, no woman ever served on
the Supreme Court, and only one woman, Shirley Hufstedler of
California, then served at the next Federal court level, the
United States Court of Appeals.
Today, Justice Sandra Day O'Connor graces the Supreme Court
bench, and close to 25 women serve at the Federal Court of Appeals
level, two as chief judges. I am confident that more will soon
join them. That seems to me inevitable, given the change in law
I am indebted to so many for this extraordinary chance and challenge:
to a revived women's movement in the 1970's that opened doors
for people like me, to the civil rights movement of the 1960's
from which the women's movement drew inspiration, to my teaching
colleagues at Rutgers and Columbia and for 13 years my D.C. Circuit
colleagues who shaped and heightened my appreciation of the value
The New York Times, June 15, 1993, p.6.
Justice Ginsburg also gave a tribute to her mother, "the
bravest and strongest person I have known," who had died at
a young age: "I pray that I may be all that she would have
been had she lived in an age when women could aspire and achieve
and daughters are cherished as much as sons." Id.
- In 1993, the federal Family and Medical Leave Act became law. That
year, Janet Reno was appointed as the first woman U.S. attorney general.
- In 1994, the Violence Against Women Act (VAWA) and its historic civil
rights provision for gender-motivated crimes was enacted as part of
the nation's crime bill. Since 1990, NOW Legal Defense has been
the principal technical adviser to Congress on VAWA and mobilized a
1,000-member national task force to support the bill.
- In 1995, Roberta Cooper Ramo became the first woman president of
the American Bar Association.
- In 1996, the Supreme Court ruled in the VMI case that under the Equal
Protection Clause of the Fourteenth Amendment, state funded institutions
were required to admit women.
- In 1997, the U.S. Supreme Court decided four cases dealing with issues
of what constitutes sexual harassment and when employers are liable. NOW
Legal Defense was involved in all four cases.
B. Milestone Cases of the 1990's:
- 1991 - United Auto Workers v. Johnson Controls, 499 U.S.
187. NOW Legal Defense as amicus helped persuade the Supreme
Court to allow women to make their own decisions about pregnancy and
a. Johnson Controls had a fetal-protection policy barring all
women, except those whose infertility was medically documented,
from jobs involving actual or potential lead exposure exceeding
government standards. Several unions filed class-action lawsuits
claiming that Johnson's fetal-protection policy constituted sex
b. The Court of Appeals for the Seventh Circuit held that the
employer could exclude women under the bona fide occupational qualification
(BFOQ) exemption of Title VII because its fetal-protection policy
was reasonably necessary to further the industrial safety concerns
essential to its business.
c. The Supreme Court disagreed, stating that the policy created
a facial classification based on gender that explicitly discriminated
against women under Title VII. Moreover, a BFOQ is limited to the
ability of a woman to perform the duties of her job; concerns about
the welfare of future children are for the parents, not the employer,
to consider and evaluate.
- 1992 - Planned Parenthood of Southestern Pennsylvania v. Casey, 505
U.S. 833. The Court upheld the essential holding in Roe v. Wade on
the legality of abortion while narrowing Roe to permit a state to regulate
abortions as long as the regulations would not unduly burden women.
a. Pennsylvania enacted an Abortion Control Act which required
that women seeking abortions sign a statement twenty-four hours
before the procedure giving an informed consent. The statute required
that, unless it was a special case, a parent must also give an
informed consent for a minor child. Another section of the statute
required a wife to sign a statement that she had notified her husband
that she intended to get an abortion.
b. Relying on the doctrine of stare decisis, the Supreme Court
did not overrule the legality of abortions premised in Roe v. Wade.
However, the Court upheld the Abortion Control Act except for the
spousal notification provision, which was found to impose an undue
burden and was therefore unconstitutional.
- 1993 - Harris v. Forklift Systems, 510 U.S. 17. NOW Legal
Defense filed an amicus brief in this case in which the Supreme
Court held that a person does not have to prove psychological damage
in order to prevail in a sexual harassment suit. NOW Legal Defense was
also co-counsel at the trial level.
a. Teresa Harris' manager often insulted her because of her
gender and often made her the target of unwanted sexual innuendos.
When she complained to him, he apologized and stopped, but then
renewed the conduct. She quit and sued the employer claiming
that her manager had created an abusive work environment because
of her gender.
b. The lower court stated that the manager's comments were offensive,
but held that the conduct did not seriously affect her psychological
well-being or cause her injury, as was legally required.
c. The Supreme Court, however, held that Title VII not only
bars conduct that seriously affects a reasonable person's psychological
well-being, but also prohibits conduct that would reasonably
be perceived as hostile and sexually abusive, regardless of whether
such conduct is proven to be psychologically damaging.
- 1994 - Madsen v. Women's Health Center, 512 U.S. 1277. NOW
Legal Defense filed an amicus brief supporting the constitutionality
of injunctions to stop clinic blockades.
a. The Supreme Court balanced the freedom of pro-life activists
to protest in front of an abortion clinic with the safety of
the clinic's employees and patients. The Court held that the
Aware Woman Center for Choice (AWCC) needed protection from the
disruption of services, which included obstruction of entrances
and physical abuse by Operation Rescue. However, a three-hundred-foot
ban around the clinic, for example, was too limiting to freedom
b. This case is considered a victory for abortion rights advocates
because it is used to prevent anti-abortion violence. The Supreme
Court set guidelines for courts to follow in protecting abortion
- 1995 - Doe v. Petaluma City School District, 53 F.3rd 1447
(9th Cir.). NOW Legal Defense successfully argued this case.
Petaluma was the first case to recognize a federal cause of action
for peer sexual harassment in the schools under Title IX of the Education
Amendments of 1972.
- 1995 - Robinson v. Jacksonville Shipyards, 760 F. Supp.1486. NOW
Legal Defense's landmark case was successfully concluded when
the court held that pornography in the workplace constitutes a hostile
work environment under Title VII.
- Ireland v. Smith, 451 Mich. 457, 547 N.W. 2d. NOW Legal Defense
filed an amicus brief on behalf of a young woman who lost custody to
her child's father because she was a full-time college student who
put her child in day care.
a. The Michigan Court of Appeals ruled that the trial judge committed "clear
legal error" when he considered the parties' child care arrangements
in evaluating the stability of the custodial home and remanded
for re-evaluation of the stability factor. It also ruled that the
remand must be heard by a different judge because of the trial
judge's possible bias.
b. The Michigan Supreme Court, on appeal by the father, affirmed
the Court of Appeals' decision, but stated that child care arrangements
are a proper consideration in a custody dispute. The Court noted,
however, that the trial judge had been swayed by the fact that
the father's mother, with whom he lived, would care for the child
during the day. Since the father could not live in his parents'
home indefinitely, a custody award should reflect who would be
the better custodial parent over the long term.
- 1996 - United States v. Virginia, 518 U.S. 515. Justice
Ginsburg delivered the opinion of the court, ruling that the
all-male Virginia Military Institute's (VMI) admissions policy violated
women's constitutional right to equal protection and ordering the
school to admit women or forfeit its government funding. Participating
as amicus, NOW Legal Defense was a key player in crafting
the legal arguments on behalf of women's education rights.
a. In 1990, the U.S. Department of Justice sued VMI for violating
the equal protection clause of the Fourteenth Amendment. VMI
contended that its "adversative" method and training
were unique to men.
b. The district court ruled in favor of VMI, stating that the
institution served a legitimate state interest through "diversity
in education." The court ruled that women could be excluded
and the United States appealed.
c. The circuit court held that the equal protection clause would
be violated only if women did not have the opportunity to develop
their leadership skills in a similar fashion as men. VMI had
three options. It could admit women and adjust the program, establish
a parallel institution or program for women, or relinquish the
state support it received and become a private institution. Virginia
and VMI chose the second and established a so-called military
program at Mary Baldwin College. In 1995, the military program
was approved by the federal court. The Clinton administration
d. The Supreme Court ruled seven to one that VMI had only two
options - forgo its state funding or admit women. Justice
Ginsburg, who had actively sought a strict scrutiny standard
for sex discrimination, reaffirmed the standard that sex discrimination
must at least "serve important governmental objectives" and
be"substantially related to the achievement of those objectives." Here,
VMI's policies did neither.
- 1996 - M.L.B v. S.L.J., 519 U.S. 102. In this case, the Supreme
Court held that a state may not deny a parent the right to appeal termination
of parental rights because poverty prevents her paying for the record;
the state must supply the record itself.
a. A Mississippi Chancery Court had terminated M.L.B.'s parental
rights, permitting her former husband's new wife to adopt the children
instead. When M.L.B. sought to appeal this ruling, she could not
pay the cost of the record on appeal - $2,352.36 - and faced losing
the custody of her children forever.
b. In announcing the Court's 6-3 decision from the bench, Justice
Ginsburg stated: "No ties are more precious than those binding
parent and children, and
few decrees are so grave in their
consequences as a court order permanently severing the parent-child
Mississippi may not deny M.L.B., because of her poverty,
appellate review of the sufficiency of the evidence on which the
trial court found her unfit to remain a parent
Savage, "People's Court," ABA Journal, Mar. 1997 at 41,42.
- 1998 - Gebser v. Lago Vista Independent School District, 524
U.S. 274. NOW Legal Defense filed an amicus brief in this case,
which clarified the standard for holding schools liable for damages
under Title IX for sexual harassment of a student by a teacher.
a. In a 5 to 4 ruling, Justice Sandra Day O'Connor wrote for
the Court that schools are liable for damages when a school official
with authority to take corrective action actually knew about
the sexual harassment and acted with deliberate indifference.
b. The Court's decision raises questions about the practical
ability to successfully bring Title IX sexual harassment claims.
Subsequent decisions determining who qualifies as an official
authority to take corrective action (e.g., a teacher vs. a member
of the school board), and what qualifies as deliberate indifference
will have a marked impact on the success of future claims.
- 1998 - Oncale v. Sundowner Offshore Services, 523 U.S. 75. NOW
Legal Defense was amicus in this sexual harassment case in which
the Supreme Court unanimously held that the federal law banning sex
discrimination in the workplace covers same-sex sexual harassment.
a. This case involved a male offshore oil rig worker who was subjected
to sex-related humiliating actions by male co-workers and physically
assaulted in a sexual manner by two male co-workers and a supervisor.
His complaints to supervisory personnel produced no corrective
action. The worker quit his job and filed suit claiming a violation
of Title VII.
b. The lower courts held that as a male he had no cause of action
under Title VII for workplace harassment by other men.
c. The Court, reversing, held that Title VII, which prohibits
of sex," protects men as
well as women and therefore same-sex harassment that creates an
abusive working environment is actionable.
d. Kathy Rodgers, President of NOW Legal Defense, in a statement
published March 4, 1998 noted that "[T]his decision has broad
implications for women, who are the principal targets of sexual
harassment, and for all workers who may be targeted because they
do not conform to traditional gender role expectations."
- 1998 - Faragher v. City of Boca Raton, 524 U.S. 775. NOW
Legal Defense was co-counsel in this case involving sexual harassment
in employment. In an historic decision, the Supreme Court adopted
a new liability standard for sexual harassment by supervisors.
a. Beth Ann Faragher brought an action against the City of Boca
Raton and her immediate supervisors for creating a "sexually
hostile environment" at the city beach where she worked
as a lifeguard. She and other female lifeguards were repeatedly
subjected to uninvited and offensive touching, lewd remarks,
and offensive remarks about women by their male supervisors.
As a lifeguard, Faragher had no significant contact with higher
City officials. The City had never disseminated its sexual harassment
policy to her work location. Although she had told one of her
supervisors about the others' behavior, he did not report the
behavior to any city official. Faragher never complained to higher
management during her employment.
b. The lower courts held that the male supervisors were not
acting within the scope of their employment by engaging in harassing
conduct, that the knowledge of the supervisor Faragher told couldn't
be imputed to the City, and that the City wasn't negligent in
failing to prevent the harassment.
c. The Court reversed and held that the City was vicariously
liable for the hostile work environment created by Faragher's
supervisors and that when a harassing supervisor with authority
over an employee takes a "tangible employment action" against
such employee, the employer will be strictly liable for the supervisor's
action under Title VII.
d. However, if no such "tangible employment action" has
taken place, the employer may then raise as an affirmative defense
that it exercised reasonable care to prevent and correct promptly
any sexually harassing behavior and that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer.
- 1998 - Burlington Industries v. Ellerth, 524 U.S. 742. In
this companion case to Farragher, NOW Legal Defense, as amicus,
was again at the forefront of the fight against sexual harassment in
a. In this case, Kimberly Ellerth was repeatedly propositioned
and sexually harassed by her higher-level manager. She also testified
as to three incidents that could be construed as threats to deny
her job benefits. However, she never suffered any tangible adverse
employment consequences and never informed anyone in authority
about the manager's conduct, although she was aware of the employer's
policy against sexual harassment.
b. As in Faragher, the Court found that an employer is automatically
subject to vicarious liability for an actionable hostile environment
created by a supervisor when tangible employment action is taken.
Again, the Court found that even in cases without tangible employment
action, employers are liable unless they can show both that they
exercised reasonable care to prevent sexual harassment and the
employee unreasonably failed to take advantage of the employer's
policies or to otherwise avoid harm.
- 1999 - Saenz v. Roe, 119 S. Ct. 1518. NOW Legal Defense was
co-counsel in this successful challenge to the constitutionality of
California's one-year residency requirement before new Californians
could receive full welfare benefits. In a groundbreaking decision,
the Court ruled 7-2 that California's law violated plaintiffs'right
to travel, as protected by the Privileges or Immunities Clause of the
Fourteenth Amendment. According to the Court, '[c]itizens of the United
States, whether rich or poor, have the right to choose to be citizens
of the State wherein they reside." Id. at 1530. NOW Legal Defense
brought into the case the perspective of battered women who must flee
their abusers across state lines.
- 2000 - United States v. Morrison, 120 S. Ct. 1740. NOW
Legal Defense represented Christy Brzonkala, a woman who alleged
that she was raped on campus by two football players. Brzonkala brought
claims in federal district court under Title IX against the university
for its improper response to her complaints. She also brought claims
under the federal Violence Against Women Act (VAWA) and state law
against the two men.
a. The Civil Rights Remedy provision of the VAWA permitted victims
of gender-motivated violence to sue their attackers under federal
b. The Supreme Court ultimately held 5-4 that: (1) the Commerce
Clause did not provide Congress with authority to enact the civil
rights remedy provision of VAWA because while violence against
women affects commerce, Congress' power under the Commerce Clause
did not extend to non-economic, violent conduct based solely
on that conduct's aggregate effect on interstate commerce, and
(2) the enforcement clause of the Fourteenth Amendment did not
provide Congress with the authority to enact the provision.
c. Even though evidence had been presented that state officials
were biased in their handling of gender-based crimes, as documented,
inter alia, in reports from state task forces on gender bias
in the courts submitted to Congress, the Court held that the
enforcement clause did not authorize a private right of action
against private individuals. (The gender bias task forces are
discussed further in these materials in the section on The National
Judicial Education Program.)