Chapter 2 Substantive Equality
pp. 113-239
Formal equality useful only to the
extent that women and men are
similarly situated. What about when
they are not?
Formal equality
“levels playing field” for exceptional “nonaverage” woman who can compete with men on
equal terms (strength, etc.)
When should “differences” be taken into
account?
When is focus on gender equity outcome
appropriate? Risks?
A. Remedying the Effects of Past
Discrimination
pp. 114-133
1. Sex-Specific Public Benefits to Remedy Past
Societal Discrimination
Kahn v. Shevin (1974)(Fla. Property tax gave
$500 exemption for widows but not widowers)
Douglas, J. for maj.: upheld, using Reed standard
“fair & substantial relation to object of
legislation”
Brennan, Marshall, dissent:
Benign Classifications Favoring Women
p. 117
• Why did ACLU WRP bring suit?
• In retrospect, was this a case it should not
have brought? Clicker: yes/no
– Glick & Fiske: hostile & benevolent sexism linked
& together serve as better predictors of gender
inequality than either alone.
– Policy implications?
• MacKinnon critique of both formal equality &
“special benefit” approaches?
2. “Affirmative Action” in Employment
• Johnson v. Transportation Agency (1987)(upheld
voluntary preference to promote women construction
workers to integrate workforce, even though no proven
history of illegal discrimination)
• Ricci v. DeStefano (2009)(City voluntarily set aside
objective test for firefighter promotion solely b/c
produced racially disparate results; absent strong
evidentiary basis of likely Title VII liability for those
disparate results, voluntary action itself constitutes
actionable Title VII reverse discrimination)
Executive Order 11246
p. 126
• Presidential actions: Johnson approved (‘65)
Nixon strengthened, Clinton modified.
• Requires covered federal contractors &
subcontractors & federally assisted (>$10K)
employ targeted groups in % roughly
proportional to representation in applicant pool.
• If segments of population underrepresented in
applicant pool, must develop corrective plan, g.f.
efforts to implement, may be “set-asides” for
minority & women owned businesses.
Race-based minority set-aside
programs & strict scrutiny
P. 127, fn. 9 at p. 233
City of Richmond v. J.A. Croson Co. (1989)
Adarand Constructors v. Pena (1995)
(voluntary race-based minority-set aside
programs, strict scrutiny not satisfied
except to correct proven instances of past
discrimination).
2. Affirm. Action & Gender: Separate
Standard?
• Voluntary affirmative action plans for gender:
should they be treated more leniently than
race-based?
– Gender & intermediate scrutiny (VMI: exceedingly
persuasive justification)
– Normative: perverse to be more lenient on
gender than race?
– Public opinion: should it matter?
– Strategy: Promote “Diversity” vs. “preferences”
Notwithstanding Title VII, formal
equality ….
• Work force still remains sex-segregated.
– Women are 90% of nurses, secretaries,
administrative assistants, child-care workers,
preschool & kindergarten teachers
– Men at least 80% in farming, agriculture, fishing,
construction, architecture & engineering
– Although women are majority of professional
workers, not at highest levels
Text at 129,
http:/www.bls.gov/cps/cpswom2006.pdf
http://www.bls.gov/opub/ted/2009/te
d_20090807.htm
Women and men in management, professional,
and related occupations, 2008
Women working in full-time management,
business, and financial operations jobs had median
weekly earnings of $941 in 2008, more than women
earned in any other major occupational category.
The second-highest paying job group was
professional and related occupations, in which
women earned $867 per week.
Bureau of Labor Statistics
n. 7 “Positive Action” in European Law
E.U.: tax breaks for hiring women in
traditionally male-dominated jobs, other
positive action?
Pushback from those disadvantaged by positive
action?
Job segregation continues … why?
n. 9 Pay Equity & Women’s Choices
p. 131
• Self-selection reflecting different priorities, life
style choices? If so, no problem.
• To what extent do women lawyers make
career choices based on their priorities, life
style choices? Same question, men lawyers?
B. Eliminating The Disadvantages of
Women’s Differences
1. Pregnancy
Cleveland Bd. Of Ed’n v. LaFleur (1974)(EPC violated by
mandatory maternity leave at 4th month of pregnancy
until child 3 months old; no conclusive presumption that
unable to work)
Geduldig v. Aiello (1974)(upheld exclusion of pregnancy
from state disability plan; all neither disparate treatment
nor disparate impact where statute creates 2 categories:
“pregnant women and nonpregnant persons”)
Gilbert v. General Electric (1976)(same reasoning, no
Title VII violation from pregnancy discrimination)
Pregnancy Discrimination Act of 1978
Congress legislatively overruled Gilbert. See
lang., text p. 134
“because of sex” . . . include(s) . . . Pregnancy,
childbirth, or related medical conditions; and
women [so] . . . affected . . . Shall be treated the
same for all employment-related purposes,
including receipt of benefits under fringe benefit
programs . . .
Cal. Fed’l S & L v. Guerra (1987)
pp. 135-38
Cal. Statute required employers to provide 4 up to
months(unpaid) pregnancy leave and
reinstatement.
Who sued & why?
I: pre-empted by Title VII, PDA?
SCOTUS holding?
Clicker Q: is PREGNANCY A DISABILITY? (yes/no)
Identify split among feminist lawyers?
N. 1, pp. 149-52
“Equal” vs. “Special treatment”
Herma Hill Kay, pregnancy not itself a disability
p. 150 quote
UAW v. Johnson Controls, Inc. (1991)
pp. 142-49
Who were π class representatives?
Claim re “fetal protection policy” as Title VII violation?
SCOTUS, Blackmun, J.
III. Policy classifies on gender + childbearing capacity > Title
VII violation unless Δ can show BFOQ.
IV. & V. Safety justification only BFOQ where reproductive
potential prevents individual from performing job safely
& efficiently, not here.
VI. Incremental costs of hiring women c/n justify
discrimination (re potential tort liability, precautionary
costs)
VII. Remember Muller v. Oregon (historical justification for
excluding women from desirable jobs)
Concurring opinions
• White, et al.: Majority’s narrow interpretation
of BFOQ unnecessary & “cramped” reading
belied by legis. history. Pp. 147-48, n. 8. Error below
in granting summary judgment b/c genuine
dispute of material fact, re risk of harm to
offspring of male employees by workplace
exposure to lead.
Motherhood Penalty?
P. 151, text accompanying n. 38.
• Should such evidence be admissible?
• How else might it help prevent workplace
bias?
European Community Law: more favorable to
claims of pregnant women, greater
accommodation
Impact? Consistent?
n. 2, p. 151
Good news, bad news
☺Census bureau: 51% working women who had
their first birth between 2006-08 received paid
leave (maternity or sick leave, vacation time) up
from 42% between 1996-2000, & 37% between
1986-90
☺42% received unpaid leave, 10% took disability
BAD NEWS: Pregnancy discrimination complaints
are on the rise. Ironically, employers using
ineligibility for FMLA as basis for adverse treatment
based on pregnancy leave!
2. Work and Family
Joan Williams (1998)
• Domesticity
pp. 155-56
– “ideal worker”
– Marginalizes caregivers
• Marketplace perpetuates economic vulnerability
• Mothers & everyone else (like pregnant persons &
nonpregnant persons?)
• Domesticity mutated. Q: do women still bear
disproportionate caretaking responsibilities?
Key to happiness? Pondering
Valentine’s Day
• Clicker questions
Is key to happiness # 1 equal split?
Or
# 2: understanding & supportive, quality time?
Agree w/ Naomi Cahn that wives’ take
responsibility for disproportionate caregiving &
home-tending is way of “performing gender”? (Y/N)
“opt-out”
• Empirical data: substantial gender differences
in # of high achieving women vs. men who
voluntarily leave workforce for caregiving.
• Do you see it happening today?
• Would you make that choice for yourself?
Why/why not?
N. 3 Are Policies an Accommodation
vs. Discrimination?
• Accommodation for special needs?
• Vs. necessary component of nondiscriminatory workplace? (substantive
equality)
FMLA 1993
• Up to 3 months unpaid leave for newborn or
sick family member or self-care; strict
requirements for eligibility.
• Underutilized because employees can’t afford
unpaid leave
• And because well founded concerns for
informal retaliation & blacklisting
– “mommy track”
– Men’s special concerns: job security
Nevada v. Hibbs (2003)
Male state employee sought & denied leave to
care for dying wife and maintain household with
children.
S.Ct., Rehnquist, J.: expansive language re long
history of sex discrimination against women
caregivers, notorious discrimination against
male caregivers.
N.B. He learned empathy because of daughter’s
experience.
Pp. 159-69
Pending Coleman v. Court of App. Of
Md., No. 10-1016
• Oral arguments to Supreme Court 1/12/12
• Issue: whether 11th Amendment abrogated
from FMLA’s “self-care” provision
• Male state employee allegedly fired for taking
leave because of his own illness
• Oral arguments re impact of self-care would
give employer incentive to discriminate
against women.
C. Recognizing Sex-Linked Average
Differences
1. Education
a. Sex-Segregated Schools
Women started entering college only in late 19th century.
E.g., ΚΑΘ formed 1870
Clickers:
Did your grandmothers go to college? Y/N
Your mothers? Y/N
Mothers’ reasons for going to college?
a. Prepare for work
b. Prepare for marriage & family, be interesting
c. Mrs. Degree, have something to fall back on if needed
Have you attended a single sex. . .
1.
2.
3.
4.
elementary school?
middle school?
High school?
College?
If yes to any, how was it different from the
mixed male & female schools you attended?
Miss. Univ. for Women v. Hogan (1982)
Single sex nursing school, denied admission to
men. Male plaintiff challenged.
7-2, O’Connor, J. opinion, Powell & Rehnquist
dissent
H: Exclusion of men reflected stereotypical
views of nursing as exclusively female
occupation. (natural extension caregiving role at
home)
Basis for Powell & Rehnquist dissent?
Time-honored tradition
Values to women of sex-segregated schools
Explain.
Clicker: Agree/disagree/ambivalent?
U.S. v. Virginia (1996)
VMI (1996) pp. 176-79
(7-1) Ginsburg, J. for Court, Scalia Dissent
Thomas recused (son at VMI)
*Complex procedural history demonstrates how
beloved was the state-financed school in state of
VA.
P. 167 ¶3
D. Ct. & 4th Cir. gave multiple opportunities for state
to figure out solution, avoid constitutional problem.
Mission Statement: what’s beneath
those buzzwords?
p. 166 ¶2
Founded 1839, financially supported by legis. (&
loyal alums)
“produce educated & honorable men, prepared
for varied work of civil life, …love of learning,
confident in functions & attitudes of leadership,
…high sense of public service, advocates of
…democracy & free enterprise…ready as citizensoldiers to defend country …[if] national peril”
Teaching pedagogy?
Adversative, doubting model … physical rigor,
mental stress, no privacy, minute regulation of
behavior, indoctrination…
Practically, how done?
Why would ANYONE want to attend? Benefits
of attending?
IV Standard for EPC gender challenge
pp. 168-71
¶1 “to summarize recent [cases] . . .whether the
profferred justification is ‘exceedingly persuasive.’
The burden . . . Is demanding and it rests entirely
on the state. . . [it] must show at least that the
challenged classification serves important
governmental objectives and that the
discriminatory means employed are substantially
related to the achievement of those objective . . .
Must be genuine, not hypothesized or invented
post hoc…[or] rely on overbroad generalizations…”
“does not make sex a proscribed
classification” Inherent differences . . .
2 sexes “not fungible”
Differences remain cause for celebration
. . . Not for denigration or artificial constraints
on opportunity
V. Applying standard to Va.’s proferred
justifications
1. benefits of diverse forms of education
- state’s history of excluding women
- U. Va.: ‘72 court order required admission on
equal basis
- VMI’s current lack of women “more deliberate
than anomalous”
V. Applying standard to Va.’s proferred
justifications
2. Admitting women would destroy adversative
method of training, inherently unsuitable for them.
-yes, would need adjustments (housing assignments,
physical training methodology)
- Neither raison d’etre (produce citizen soldiers) nor
methodology inherently unsuitable for women
- Can’t generalize from assumptions, even if most
would not, could not, must allow individual choice &
opportunity to try
-successes in federal academies, military forces show
unfounded fears
VI Remedial Issue
Standard: where EPC violation is categorical
exclusion from extraordinary educational
opportunity, remedy should “aim to eliminate ...
the discriminatory effects of the past” and bar
future discrimination.
VWIL
Compare VWIL to VMI using each component of
VMI mission statement
Cooperative methodology, reinforces selfesteem
Not boarding school/barracks/rigorous physical
& mental stress
Leadership training in seminars, externships,
speaker series
Compare VMI & VWIL
• $$$, endowments & expected return on
investments
• Admission standards
• Faculty credentials & pay
• Curriculum
• Facilities
****future value of degree, open doors to large
network of high level alums willing to hire grads,
mentor, assume political leadership
Separate is not Equal
Citing Sweatt v. Painter (1950)(U. Tex. Law)
But not Sipuel v. Board of Regents of University
of Oklahoma (1948 per curiam decision, Feb.
1949 denied motion for mandamus) 
Scalia’s hot dissent
pp. 174-top 75 Intro.: rejects FF of lower cts,
ignores precedents, radically revises EPC
standard for sex-based, ignores national history.
Virtue of democratic system with 1st Am.:
enables people to change laws, amend
Constitution. This course of judicial conduct
instills the counter-majoritarian preferences of
legal elite.
Scalia dissent
I: Proper judicial function & democratic process
II: misleading treatment of precedents, slips in
higher standard of scrutiny “exceedingly persuasive
justification” (epj). Heightened scrutiny
unwarranted because women are not “discrete &
insular minority”; prefers rational basis.
III. State discretion over spending; rational election
IV. “Code of a Gentleman”
Epilogue
Changed conditions at VMI
Also helped men (10 min. shower vs. 30
seconds)
Recruiting difficulties (~ 30 early on, up to 47 in
2007)
VWIL lives on, producing about 2x the number
of who go into military than VMI. Q: possible
interpretation?
2. Single-Sex Schools at the
Elementary & Secondary Level?
Public schools, taxpayer support means state
action.
Why might they be good, should be allowed?
Arguments to the contrary?
D. Substantive Equality in the Family
3. Equality in the Context of Divorce
Joan Williams, Do Wives Own Half? (1999), pp. 204-05
“Joint property theory: mandates equalization of the
standard of living in the post-divorce two households”
• Formula bottom p. 205-top 206: equalize for period of
children’s dependence, + # years to allow W to regain
ability to recover her earning potential OR save for her
future (based on 1 yr. of income sharing for each 2
years of marriage)
Q: to what extent has passage of time reduced strength
of this proposal?
D. Substantive Equality in the Family
Note 3, p. 203. Toward what economic standard
should spousal support aim? CLICKER
a. Continue standard of living achieved in
marriage
b. Rehabilitative minimal self-sufficiency
“minimalist doctrine” Riehl at 208
c. Equitable rehabilitative approach Id.
Riehl v. Riehl (N.D. 1999) pp. 206-09
Facts: 24 year marriage, 4 children; Deborah 43 (1
year college, dropped out when pregnant again),
Andrew (45, boilermaker $51K/year + benefits). 2
minor children still at home.
Law: award of spousal support requires fact-finding
that petitioner is “disadvantaged”: “foregone
opportunities or lost advantages . . . [b/c ] of
marriage & contributed during marriage to
supporting spouse’s increased earning capacity.”
Riehl v. Riehl (N.D. 1999) pp. 206-09
Goal: support for disadvantaged spouse to
balance burdens & disadvantages created by
divorce. Either:
Permanent
Or
Rehabilitative
equitable approach: education, training to
achieve adeq/approp self-support, improve
employment skills.
Riehl v. Riehl (N.D. 1999) pp. 206-09
Court: D. Ct. “clearly erroneous”
1. to award rehabilitative support only for 5
years, $800/month (actual time for training);
instead what standard?
2. To not consider permanent spousal support.
3. What next, on remand? Predict what
happened?
4. Child Custody: “best interests of the
child”
• Many factors: quality of emotional bonds,
ethical emotional & intellectual guidance of
child in formative years, moral fitness &
ability, continuity of care.
• Criticisms re subjectivity?
• Problems with “primary caretaker
presumption”? (3 states adopted, since
abandoned) Academics liked(Fineman &
Chambers)
Patricia Ann S. v. James Daniel S. (W.Va.
1993) pp. 213-222
• Exemplifies criticisms of standardless
discretionary power of trial judge, appellate court
deference to same.
• Facts per maj. opinion on who was primary
caretaker, role of testifying experts, children’s
stated preference on custody.
**Spector: procedural posture important (affirmance)
• Contrast with Chief Justice Workman’s dissent,
alternative view of factual reality.
Best interests of these children?
Impact on Jason (14 at time of W. Va. Decision)?
Impact on Justin (then 11)?
Impact on Jennifer (then 7)? Remand?
What their
futures may
hold?
N. 2, p. 225 Joint Custody Alternative
All states allow, some have statutory
presumption favoring
Okla.?
Potential risks?
n. 4, p. 227 Relocation
• Trend: Increased deference to parent with
primary custody
N. 5 p.228 Cohabitation & American
Paradox
Andrew Cherlin, The Marriage Go-Round (2009)
U.S. unique: importance of marriage & easy
escape from, contrasted with cohabitation: easy
to move in & out > “social turbulence” greater
than anywhere else!
N.B. OK common law marriage (if facts support,
divorce required)
n. 5 Unmarried Parents
pp. 230-32
OK & AR: mother gets custody of out-of-wedlock
child
SCOTUS: increased but inconsistent recognition of
father’s rights.  cases:
Stanley v. Ill. (‘72)(on Mom’s death, children not
wards of state; invalidated presumption of Dad’s
unfitness)
Caban v. Mohammed (‘79)(consent of biological
Dad w/ parenting relationship required for
stepfather adoption)
n. 5 Unmarried Parents,  Tragic Cases
pp. 230-32
Nguyen v. INS (2001)(son born to Vietnam Vet &
Vietnamese mother, lived with Dad from 6-22; pled
nolo to Tex. Sexual Assault charge (Romeo/Juliet,
Romeo/Romeo?); deportable because Dad had,
before son reached 18: legitimized, filed declaration
of paternity or obtained paternity court order.
“Romantic paternalism” Dicta, re uniqueness of
umbilical cord, maternal tie.
*Consolation prize: he could return to Vietnam,
dual citizen.
n. 5 Unmarried Parents,  Tragic Cases
pp. 230-32
Flores-Villar v. United States (2011) Aff’d by
equally divided court deportation order of son
who never had meaningful relationship with
Mexican mother. U.S. Dad only parent he ever
knew. 9th Cir. applied former sections of INS
Act 8 U.S.C. §§ 1401(a)(7) & 1409, imposing
facially disparate gender standard for U.S.
fathers, no 14th Amend. Due Process viol’n.
Tragic: decision left him stateless.