Women Changing the Law for Women

I. INTRODUCTION

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.

II. BACKGROUND

A. Earlier Years

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

1. 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 chairperson.
2. 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.
3. 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 litigation.

C. Important Cases of the 1960's

1. 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.

2. 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.

3. 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 requirements.

III. 1970's - PROFESSOR RUTH BADER GINSBURG'S LEGAL ADVOCACY AT THE SUPREME COURT

A. Background

1. 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.
   
   
2. 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.
   
   
3. 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 stereotypes.
   
   
4. 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 Barbara Flagg):
   
   
   "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)

1. 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 protection.
   
   
2. 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.
   
   
3. 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.
   
   
4. 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

V. CHANGING THE LAW

A. The 1970's

1. 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.
2. 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.
3. 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.

4. 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.
5. 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:

1. 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…" When 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:"….whatever 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.



2. 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 bias.

3. 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.
   




4. 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 in employment.

5. 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. at 451.

   b. This decision laid the legal foundation for Roe v. Wade.

6. 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.

7. 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."

8. 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 gender preferences.

   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.

9. 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.
10. 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.

11. 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 way.
12. 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….The program 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

13. 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.

14. 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.

15. 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.
16. 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 class.

    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.

17. 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.

18. 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 benefits.

    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 their salaries.

    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….The 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.)

19. 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 claims today.

20. 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.
21. 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.

22. 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.

23. 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.
24. 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 occupational requirement.

    b. Because the state failed to administer non-discriminatory strength tests to all applicants, the Court struck the height and weight requirements.

    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 men.

    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 …penitentiary… could be directly reduced by her womanhood." Id. at 336.

25. 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.

26. 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 Amendment rights.

    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.

27. 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.

28. 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 omitted.)

    b. The decision officially eliminated courts' willingness to accept the traditional stereotype that men support the family while women work for "play money."

29. 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 brief.

C. The 1980's

1. 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 courts.

   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:

1. 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.

2. 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 unconstitutional.

   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 the domination.

   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.

3. 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.

4. 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.

5. 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.

6. 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 principles.

7. 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.
8. 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 freedom.

   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. at 512.

   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 are constitutional.

E. The 1990's

1. 1. During the last decade of the 20th century, women continued to effectively use the law as a tool for progress.
2. 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.
3. 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.
4. 1992 became known as the "Year of the Woman," with women elected to federal, state, and local offices in unprecedented numbers.
5. 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 school enrollment….

   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 of collegiality."

   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.

6. 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.
7. 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.
8. In 1995, Roberta Cooper Ramo became the first woman president of the American Bar Association.
9. 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.
10. 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:

1. 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 dangerous work.

   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 discrimination.

   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.

2. 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.

3. 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.

4. 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 of speech.

   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 clinics.

5. 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.
6. 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.
7. 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.

8. 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 appealed.

   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.

9. 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 bond…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…" David Savage, "People's Court," ABA Journal, Mar. 1997 at 41,42.

10. 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.

11. 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 discrimination "because…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."

12. 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.

13. 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 employment.

    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.

14. 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.
15. 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 law.

    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.)