Category Archives: gender

New York State Club Assn., Inc. v. City of New York

487 U. S. 1

June 20, 1988

A statute with the Orwellian sounding name “Human Rights Law” banned certain private clubs from discriminating in membership based on race or sex. The law was limited in several respects, leaving alone clubs with less than 400 members, and clubs that were religious or benevolent in character – this based on the state’s finding that business activity was not prevalent at those organizations. A large club mounted a facial challenge to the law, based on both the First Amendment right to freedom of association, and the Equal Protection clause, given the aforementioned exemptions from the law’s reach.

The Supreme Court unanimously rejected these facial challenges. White first brushed aside one of those asinine jurisdiction challenges, because Court precedent did allow private associations to mount facial challenges. Nonetheless, in light of prior rulings in Rotary Club and Roberts v. Jaycees, White said there was little chance the New York law was invalid on its face because of the association concerns. Indeed, it seemed carefully drawn to leave most freedom of association rights intact, and could not be described as overbroad. With respect to the Equal Protection challenge, White said that New York had proffered rational reasons for exempting religious and benevolent organizations, and that no hard evidence had been offered to rebut the state’s reasoning.

O’Connor, joined by Kennedy, concurred to say that there could be an odd case where the law did violate a club’s association rights, and that the law was still vulnerable to an as-applied challenge. Scalia did not join the Equal Protection section, but concurred in judgment. He did not take the state’s reasoning at face value, but looked at the clubs classified as religious and benevolent for himself before concluding that the distinction drawn by the law was a defensible one (in case your wondering, ‘benevolent’ organization are mostly lodges like the Masons, VFW, or Knights of Columbus).

I have already given my opinion about laws like this in my Rotary Club write up, and I will not repeat it here. If you follow the principle of stare decisis, then this case was correctly decided. But I would have overruled Rotary Club, because that decision was awful, and doesn’t deserve precedential respect.


EEOC v. Commercial Office Products Co.

486 U. S. 107

May 16, 1988

After a discriminatory event, you have 300 days to file with the EEOC, provided that you first file with a state agency, and 60 days pass after that filing (unless the state agency terminates proceedings first). Suanne Leerssen filed with a Colorado agency 290 days after the alleged discriminatory event. The Colorado agency waived the 60 day waiting period to let the EEOC step in immediately. The company alleged to have discriminated against Leerssen said that the Colorado agency had not “terminated” its proceedings, and that the law dis not permit waiver of the 60 day period. Thus, since 290 plus 60 goes way past 300, the EEOC could not investigate the claim.

The Court ruled 5-3 that Leerssen’s complaint was within the EEOC’s 300 day limit (Kennedy did not participate). Marshall said that the word “terminate” was ambiguous, and that a waiver could certainly qualify as a termination. He thought it would be silly to make the 300 day limit effectively a 240 day limit, especially when the law wanted the EEOC and state agencies to work together, and allocate cases efficiently. Waivers, though not specifically provided for in the law, were a good means of helping this cooperation. Finally, Marshall was unimpressed that Leerssen’s filing was not timely under Colorado law (which had a 180 day limit). The EEOC, he said, need not care about state deadlines when figuring out its own 300 day deadline.

O’Connor joined much of Marshall’s opinion, but based her concurrence in judgment solely on the fact that the EEOC interpreted the waiver as valid. Had the EEOC not recognized the waiver, she would have deferred to that interpretation too. Stevens, joined by Rehnquist and Scalia, dissented. He contended that a waiver was not a “termination” simply as a matter of plain language. I’m not sure I agree though. I’d probably go with Marshall on this one – his opinion is certainly far closer to the spirit of the law.

Forrester v. White

484 U. S. 219

January 12, 1988

Cynthia Forrester was fired from her job as probation officer by Judge White. Forrester filed a lawsuit claiming sex discrimination, and White tried to get it dismissed on the grounds of judicial immunity. He reasoned that his judicial opinions might be affected if he thought a probation officer was incompetent, and thus he ought to have freedom to make firing decisions without worrying about lawsuits.

The Supreme Court unanimously ruled that judicial immunity did not extend so far. O’Connor explained that some immunity was necessary to isolate judges from frivolous litigation, and to allow for full judicial independence (Blackmun did not join this section). Nonetheless, immunity only existed when the action at question was adjudicatory in nature. If the action could be done by someone other than a judge, no immunity existed. Because a whole host of other state actors could potentially fire a probation officer, judge White did retain immunity.

This was a good ruling. Much as I dislike BS sex discrimination lawsuits, I dislike governmental immunity even more. No one should be above the law. We’re told that judges would have a hard time doing their job impartially if they were worried about being sued. To which I can only say: welcome to life, bubs. Lawyers, businesses, schools, and even ordinary citizens have to live their lives in constant terror of vexatious litigation. I don’t understand why judges, of all people, should be spared.

Board of Directors of Rotary Int’l v. Rotary Club of Duarte

481 U. S. 537

May 4, 1987

The Rotary Club had a strict male only policy, but one chapter in California began admitting women, arguing that they were required to by a state anti-discrimination law. The Rotary Club attempted to revoke that chapter’s membership, leading to a lawsuit in which the California courts held that the Club had to allow chapters to admit women within the state. The Rotary Club argued that this burdened its freedom of association.

Unanimously, the Court ruled that California’s anti-discrimination law could be employed against the Rotary Club. Blackmun and O’Connor did not participate, and Scalia concurred in judgment without opinion. Powell wrote for the Court, and said that Rotary Clubs were especially public and especially diverse organizations. Furthermore, he argued that none of the Rotary Club’s principal stated goals would be compromised by the admission of women. This, coupled with a state’s compelling interest in ending sex discrimination meant that the Club’s freedom of association was not unreasonably burdened.

This decision was horrible on every level. The government has no business attempting to regulate the membership of private clubs. Even worse is the government deciding for itself whether a club’s purposes and goals really require excluding a certain group. But most troubling of all is the Court’s stark denial of what everyone really knows: a certain undefinable, but very real atmosphere is irrevocably lost whenever a single gender organization is forced to open up to the opposite gender. Sororities and fraternities, for example, wouldn’t be the same if they were gender integrated, and nearly the whole world can understand this instinctively. Whether the Court admitted it or not, this decision did forever destroy the Rotary zeitgeist.

This ruling is yet another example of the Supreme Court’s rebellion against God’s design of gender. God intended for men and women to be different; gender distinctions are a gift, not a curse. America will be much better off when it stops trying to use its laws to deny and suppress the blatantly obvious.

Johnson v. Transportation Agency, Santa Clara Cty.

480 U. S. 616

March 25, 1987

The Santa Clara Transportation Agency decided that it needed an affirmative action program. There was no evidence that the agency had actually discriminated in the past, but the agency felt that the number of women in upper level transportation jobs should more closely mirror the number of women in the workforce. In 1980, Paul Johnson was passed over for a promotion in favor of the less qualified Diane Joyce, who had been chosen because of her sex. Johnson sued, arguing that the Civil Rights Act (CRA) prohibited employers from making such hiring decisions on the basis of sex.

The Court ruled 6-3 that the CRA did not prohibit hiring Joyce based on her sex. Writing for the majority, Brennan said that this result naturally followed from the 1979 Weber decision, which allowed private companies to give preferential treatment to blacks in order to remedy past discrimination. In doing so, employers need not actually prove past discrimination, since that might invite lawsuits – instead, showing a manifest imbalance in hiring statistics is enough to justify an affirmative action plan. The Agency’s plan was flexible, not quota-based, and geared only at attaining rather than maintaining greater gender balance. Furthermore, Joyce was still well qualified for the position she was given. For all those reasons, Brennan found that the Agency’s preferential treatment of Joyce was allowable.

Stevens joined the majority opinion, and wrote a concurring one of his own. He suggested that Weber was probably wrongly decided, but followed it anyway in the interest of stare decisis. He also suggested that, given the precedents now on the books, an employer might be allowed to favor minorities even without an imbalance in the agency’s workforce. O’Connor concurred in judgment. Like Stevens, she delicately hinted that Weber was perhaps incorrect, but decided to follow it anyway. Unlike the majority, O’Connor thought an employer would have to show a reasonably firm basis for believing prior discrimination occurred before instituting an affirmative action program. The total lack of women in upper level positions was enough for her to conclude that such a basis existed in this case.

Scalia dissented, and was joined by Rehnquist and White. This dissent may properly be called his first true masterpiece. Scalia showed that the agency was not trying to remedy past discrimination, but rather to make the transportation agency more representative of the general labor force. Such a goal, he argued, was flatly prohibited by the CRA as interpreted in prior precedent. He also faulted the majority for failing to distinguish between the private employer in Weber and the public employer in Johnson. Finally, Scalia said that Weber should be overruled, and eviscerated the majority’s argument that Congressional inaction in response to Weber was a reason for keeping it (White did not join this discussion of Weber, but published a one paragraph dissent agreeing that the case should be overruled). Scalia concluded by showing how the Court’s decisions in the realm of affirmative action practically made it certain that companies would adopt such policies out of self-interest. Parenthetically, I can’t help but wonder after reading this dissent why the heck Scalia joined the majority in Guerra.

This decision was terrible, and I concur with Scalia that it contradicts the plain text of the Civil Rights Act. I also detest it when Justices hide behind stare decisis rather than overturn a flawed ruling, as Stevens and O’Connor did. But my disagreement with Johnson goes far deeper than that. I despise racial discrimination in all its forms, but I feel differently about sex discrimination. Race did not exist before the fall, but gender certainly did – “male and female He created them.” And from the beginning, God gave each gender different strengths, roles, and attributes. It’s a rebellion against God to deny these differences, and to claim that both genders ought be represented equally in certain fields of employment, like road work here.

Scalia’s closing: “The only losers in the process are the Johnsons of the country, for whom Title VII has been not merely repealed, but actually inverted. The irony is that these individuals — predominantly unknown, unaffluent, unorganized — suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.”

Wimberly v. Labor and Industrial Relations Comm’n of Mo.

479 U. S. 511

January 21, 1987

Wimberly quit her job at J. C. Penney because of her pregnancy. After giving birth, the store was unable to reinstate her, and she applied for unemployment compensation. Missouri law provides that unemployment compensation can only be given when an employee leaves for reasons directly and causally related to their work or employer, and so Wimberly’s claim was denied. A federal law mandated that no state could deny unemployment compensation “solely on the basis of pregnancy.” Wimberly sued on the basis of that law.

Unanimously, the Supreme Court rejected her claim (Blackmun did not participate). O’Connor wrote that the federal law did not mandate preferential treatment on the basis of pregnancy, and that if compensation was denied for a neutral reason, like Missouri’s direct relation to work standard, no pregnancy discrimination had occurred. Anyone who quit for medical reasons was denied compensation, so pregnancy in and of itself was not the basis for denial. As usual, the majority opinion buttressed its case with resort to legislative history and agency practice.

Shockingly, Brennan and Marshall did not dissent. They could have made a decent argument too, even though I think O’Connor was correct. What bemuses me most is how dissonant this decision is from Guerra, which had been decided just eight days earlier. Technically, Guerra was only about a federal statute allowing preferential treatment, while Wimberly is about a federal statute potentially mandating it. Still, it is kind of bizarre to see the Court issue two decisions so thematically divergent on the same subject.

California Fed. Sav. & Loan Assn. v. Guerra

479 U. S. 272

January 13, 1987

And we enter 1987! In the year’s first case, a California law mandated that employers provide pregnant workers (and no one else) unpaid leave with guaranteed reinstatement. On its face, this law, by giving pregnant women a right not given to other employees with need for medical leave, appeared to conflict with the federal Pregnancy Discrimination Act, which disallowed disparate treatment by employers on the basis of pregnancy. If the laws conflicted, the California law would have to give way. But in a 6-3 decision, the Supreme Court ruled that the two laws were not in fatal conflict.

Marshall wrote the majority opinion. First, he made clear that the Pregnancy Discrimination Act (PDA) would not preempt the California law on the basis of anything other than direct conflict (Stevens declined to join this one section of the opinion). Next he contended, on the basis of some sketchy and inconclusive legislative history, that the PDA was intended only to provide a floor of treatment, not a ceiling, and that Congress had no purpose of preventing preferential treatment based on pregnancy. Finally, Marshall argued that an employer could decline to afford pregnant women special treatment, and still easily comply with both laws. This could be done by offering the same guarantee of reinstatement to any other employees taking medical leave.

Stevens wrote a concurrence which mainly emphasized that the case followed the same logic as the precedent of Steelworkers v. Weber, which approved of similar preferential treatment on the basis of race. Scalia did not join Marshall’s opinion, but concurred in judgment. He penned a singularly unpersuasive argument that, because it did not actively tell employers to give only pregnant women preferential treatment, the California law did not “purpor[t] to require or permit the doing of any act which would be an unlawful employment practice,” and thus could not be preempted by the PDA.

Justice White dissented, and he was joined by Rehnquist and Powell. He totally demolished Marshall’s argument that the legislative history and intent of Congress condoned the possibility of preferential treatment, showing that, in fact, both emphatically pointed in the opposite direction. In some decisions, I can see merit in more than one opinion, but in this case, I feel very strongly that White was right, and the other Justices were simply wrong.

I am rather amused by Marshall’s statement in one footnote that “a State could not mandate special treatment of pregnant workers based on stereotypes or generalizations about their needs and abilities.” If the California law was not an example of precisely that, then I have no idea what is. On a more serious note, it does sadden me a lot to see pregnancy referred to as a “disability” throughout all of the opinions. It breaks my heart that children are so often seen as impediments to a career. Law or no law, I wish far more mothers would make the choice to stay home and raise their children. I know this isn’t always possible due to financial situations, but I can think of no work of more important for the future, nor any work more beautiful and rewarding for both parent and child.