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                                                         89-500 A
                                          CRS Report for Congress
          Congressional Research Service, The Library of Congress


                       Sex Discrimination 
              and the United States Supreme Court 
                     Developments in the Law

                         Karen J. Lewis 
                      Legislative Attorney 
                      American Law Division

                      Revised and Updated 
                         August 22, 1989



                       SEX DISCRIMINATION 
              AND THE UNITED STATES SUPREME COURT: 
                     DEVELOPMENTS IN THE LAW


SUMMARY

The United States Supreme Court's treatment of gender-based
discrimination over the past eighteen years reveals the Court's
attempt to clarify what has been an uncertain and rapidly changing
area of the law. Challenges in the sex discrimination context have
been based on statutory and constitutional grounds.

The constitutional challenges alleging sex discrimination are based
on the equal protection guarantees of the fourteenth amendment or
the equal protection component of the fifth amendment. These
constitutional provisions apply only to governmental action--the
fourteenth amendment prohibits discriminatory actions by the
states, while the fifth amendment forbids the federal government
from denying persons equal protection of the law. In the process of
hearing and determining cases under the equal protection clause,
the Supreme Court has developed different standards of review. With
respect to gender-based classifications, the Court has applied an
intermediate standard of review which has led to unpredictable
results. Over the years the Court has also had to define the burden
of proof in the equal protection context required of the party
contending that the government has discriminated. In the facially
neutral/discriminatory impact situation, the Court has had to
decide whether the classification was invalid simply because it
affected a greater proportion of one sex than the other or only
where the government intentionally chose a particular course of
action in part because of its adverse effects on a particular
group.

In recent years the Supreme Court has decided another gender
discrimination issue in the context of the first amendment rights
of freedom of association and expression. In a series of three
cases, the Court has balanced the rights of members in private
clubs with the interests of women and minorities in not being
discriminated against for membership in these business-oriented
service type organizations. The Court has basically concluded that
state and local governments have the authority to regulate the
membership criteria of these private clubs. The test rests on
determining to what extent these entities are more public than
private.

The Supreme Court has also decided many gender discrimination
challenges based upon statutory violations, predominantly under
Title VII of the 1964 Civil Rights Act, as amended, and Title IX of
the Education Amendments of 1972, which focus on discrimination in
employment and education respectively. When the Court is faced with
a case that involves a specific statute, its review of the facts is
in accordance with the wording and the legislative history of the
statute which has allegedly been violated. The Court has also said
that Title VII specifically is not coextensive with the
Constitution, meaning that they are not to be interpreted as having
the same effect. 


                       TABLE OF CONTENTS 

   INTRODUCTION

I. EXAMINATION OF EQUAL PROTECTION CASES 

     A. Explanation of the U.S. Supreme Court's Constitutional
     Standards of Review

     B. Analysis of Specific Cases Under the Equal Protection

II. ANALYSIS OF SPECIFIC CASES UNDER STATUTES 

     A. Title VII of the 1964 Civil Rights Act, as Amended
          1.  Scope of Coverage of Title VII
          2.  Burden of Proof under Title VII: Intent and Impact
          3.  Analysis of Specific Cases Dealing With Equal Pay   
          Under Title VII
          4.  Specific Cases in the Pension and Insurance Area of 
          Title VII Litigation 
          5. Specific Cases Involving Title VII and Pregnancy 
     
     B. Other Title VII Cases 
          1.  Affirmative Action
          2.  Sexual Harassment
     
     C. Title IX of the Education Amendments of 1972
     
     D. Cases Decided Under Miscellaneous Statutes  

     CONCLUSION 

A SELECTIVE BIBLIOGRAPHY

     A. Leading U.S. Supreme Court Decisions on Sex Discrimination

     B. Law Review Articles