This file was prepared for electronic distribution by the inforM staff. Questions or comments should be directed to inform-editor@umail.umd.edu. 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 SEX DISCRIMINATION AND THE UNITED STATES SUPREME COURT: DEVELOPMENTS IN THE LAW INTRODUCTION The United States Supreme Court's treatment of gender-based discrimination from 1971 to the present 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. Cases heard and decided by the Supreme Court involving constitutional challenges under the equal protection clause of the fourteenth amendment and the equal protection component of the fifth amendment have, over time, led to a clarification of the level of judicial review applied by the Court in this area, and the nature of proof required to establish a violation. 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, have provided the primary statutory bases for sex discrimination questions heard by the Supreme Court. The Court itself has indicated that the Constitution and statutes like Title VII are not to be interpreted as having the same effect. An examination of the Court's decisions with regard to gender discrimination during this eighteen year period, in terms of both constitutional and statutory analysis, illustrates how the Supreme Court has progressed in developing and clarifying this aspect of the law. In order to present a clear picture of the development of the law in the sex discrimination area, this review of pertinent Supreme Court cases is primarily presented chronologically. However, in certain instances, chronological order has been disregarded and cases analyzed by subject matter to facilitate an understanding of trends in the Court's analysis.(1) I. EXAMINATION OF EQUAL PROTECTION CASES 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.(2) In the process of hearing and determining cases under the equal protection clause, the Supreme Court has developed different standards of review. In order to understand the significance of the level of review chosen for sex discrimination cases, an overview of all standards of review in equal protection analysis is necessary. Another consideration in addition to the standard of review applied to a governmental classification is the type of proof required by the Court to make out one's case alleging sex discrimination in violation of the Constitution. Challenges can and do arise in two situations: (1) where the classification is allegedly clearly discriminatory, i.e. shows preference for one sex over the other sex and (2) where the classification is neutral on its face, but has a discriminatory impact on an identifiable group. Over the years, the Court has had to define the burden of proof in the equal protection context required of the party contending that the government 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. A. Explanation of the U.S. Supreme Court's Constitutional Standards of Review The Fourteenth Amendment to the Constitution provides that: ...No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; _nor deny to any person within its jurisdiction the equal protection of the laws._ U. S. Constitution, Fourteenth Amendment. (Emphasis added.) "The Fourteenth Amendment enjoins 'the equal protection of the laws,' and laws are not abstract propositions," Justice Frankfurter once wrote. "They do not relate to abstract units, A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Tigner v. Texas, 310 U.S. 141, 147 (1940). The mere fact of classification will not void legislation, then, because in the exercise of its powers a legislature has considerable discretion in recognizing the differences between and among persons and situations. "Class legislation, discriminating among some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment." Barbier v. Connolly, 113 U.S. 27, 32 (1885). Or, more succinctly, "statutes create many classifications which do not deny equal protection; it is only 'invidious discrimination' which offends the Constitution." Ferguson v. Skrupa, 372 U.S. 726, 732 (1963). Recognition of the fact that equal protection does not preclude classification, however, leads to the more difficult question of how it is that a court may determine whether a classification is proper or improper. In other words, to state it in traditional terms, does a particular classification constitute invidious discrimination? Key to this determination is the usual presumption of constitutionality which a court accords to legislative and administrative action, especially the deference a court owes to the legislative branch. To determine the propriety of a classification the Supreme Court has adopted three different levels of review. The Court has, in certain areas, employed a permissive view known as the rational basis test. This least active form of judicial review allows a classification to survive an equal protection challenge as long as the classification is rationally related to some legitimate or permissible governmental interest. Lindsley u. Natural Carbonic Gas Co., 220 U.S. 61 (1911); Royster Guano Co. u. Virginia, 253 U.S. 412 (1920); San Antonio School District u. Rodriguez, 411 U.S. 1 (1973); Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976); Maher v. Roe, 432 U.S. 464 (1977). Most classifications reviewed under this standard have survived constitutional challenge. A more active form of judicial review has also been employed by the Supreme Court. This form of review, known as strict scrutiny, has been applied in situations where there is a suspect classification (e.g. race) or a fundamental interest (e.g. marriage). E.g., Loving v. Virginia, 388 U.S. 1 (1967). In these cases the government must show there is a compelling interest necessitating that action and that the distinctions or classifications are necessary to reach the purpose sought to be furthered. See San Antonio Independent School District u. Rodriguez, 411 U.S. 1(1973). Most statutory classifications subject to strict scrutiny have been invalidated. However, even when a racial classification is used, there may be the requisite showing to sustain it. Lee v. Washington, 390 U.S. 333 (1968) (preservation of discipline and order in a jail might justify racial segregation if shown to be necessary). The Supreme Court has also adopted an intermediate level of review. This judicial review is less deferential than rational basis review and less strict and less fatal than strict scrutiny. In order to withstand constitutional challenge under this standard, a classification must "serve important governmental objectives and must be substantially related to achievement of those objectives." Craig v. Boren, 429 U.S. 190, 197 (1976). One further point needs to be made concerning the Supreme Court's standard review analysis for challenges under the equal protection clause of the fourteenth amendment. That is, the party contending that the government discriminated has the burden of proving that there was a pretext or intent for the discrimination. The intent requirement of equal protection litigation is applicable in sex classification cases. In other words, a law which is neutral on its face and which serves ends within the power of government to pursue is not invalid simply because it may affect a greater proportion of one sex than of the other. It must be established that the decision maker selected or reaffirmed a particular course of action, at least in part because of, not merely in spite of, its adverse effects on an identifiable group. In Geduldig v. Aiello, 417 U.S. 484 (1974), the Court rejected a claim that a California income insurance plan, which excluded disability resulting from normal pregnancy, was unconstitutional because it violated the equal protection clause of the Constitution. The Court concluded that the exclusion of pregnancy was a permissible means for achieving the legitimate state purpose of maintaining a low-cost, employee supported insurance plan. The Court found that the California plan's exclusion did not amount to sex discrimination absent a showing that it was a pretext for invidious discrimination. The Supreme Court's most recent decisions interpreting Title VII of the 1964 Civil Rights Act indicates that proving intent is also required now when proving discrimination in a facially neutral context. B. Analysis of Specific Cases Under the Equal Protection Clause Between 1971 and 1976, the Supreme Court employed a number of different standards of review when it evaluated sex discrimination claims under the equal protection clause. See, e.g., Reed v. Reed, 404 U.S. 71 (1971), Frontiero v. Richardson, 411 U.S. 677 (1973), Kahn v. Shevin, 416 U.S. 351 (1974), Schlesinger v. Ballard, 419 U.S. 498 (1974), Geduldig v. Aiello, 417 U.S. 484 (1974). In 1976 the Court attempted to clear the confusion these decisions created by holding that an intermediate level of review would be used in sex discrimination cases. The Court in Craig v. Boren, 429 U.S. 190 (1976), declared unconstitutional an Oklahoma statute which involved an age-sex differentiation in the sale of 3.2 percent beer. In this case, the Court articulated the middle-tier standard of review in which the government would have to demonstrate a substantial relationship between the classification used and the goal to be achieved in order to withstand constitutional scrutiny. Thus, after Craig, there appears to be little question as to what the level of review is in the sex discrimination context. All subsequent cases heard by the Court in this area have been attempts to further redefine and clarify the middle-tier analysis. In March of 1977, the Court decided Califano v. Goldfarb, 430 U.S. 199 (1977). This case was a direct appeal from a final judgment of a three judge district court declaring 42 U.S.C. 402(f)(1)(D) unconstitutional insofar as this provision discriminated against female individuals insured under the Social Security Act and their spouses on the basis of sex. Under the Social Security Act, survivors' benefits based on the earnings of a deceased husband covered by the Act were payable to his widow regardless of dependency, but under 42 U.S.C. 402(f)(1)(D) such benefits of a deceased wife covered by the Act were payable to her widower only if he was actually receiving at least half of his support from her. In affirming the decision of the three judge district court, the Supreme Court held that the different treatment of men and women required by section 402(f)(1)(D) constituted invidious discrimination against female wage earners by affording them less protection for their surviving spouses than it provided to male employees. Justice Brennan writing the main opinion for the Court declared, ...that the gender-based differentiation created by section 402 (f) (1) (D)--that results in the efforts of female workers required to pay social security taxes producing less protection for their spouses than is produced by the efforts of men--is forbidden by the Constitution, at least when supported by no more substantial justification than "archaic and overbroad" generalizations...or "old notions"...that are more consistent with "the role-typing society has long imposed,"...than with contemporary reality. Thus section 402 (f) (1) (D) "[b]y providing dissimilar treatment for men and women who are similarly situated...violates the [Fifth Amendment]..." Goldfarb, 430 U.S. at 206-207. (citations omitted.) In Califano v. Silbowitz, 430 U.S. 924 (1977), and Califano v. Jablon, 430 U.S. 924 (1977), the Supreme Court summarily held invalid, on authority of Goldfarb, identical husbands' insurance benefit provisions in the Social Security Act also premised on one-half support requirements. The Court, also on authority of Goldfarb, summarily held invalid an identical provision of the Railroad Retirement Act in Railroad Retirement Board v. Kalina, 431 U.S. 909 (1977). These cases construing sections of the Social Security Act or identical provisions elsewhere illustrate some of the Court's first attempts to clarify the intermediate level approach to gender discrimination. In these cases the Court analyzed the legislative history to ascertain whether the stated purpose of the legislation was achieved by the means provided. For example, in Goldfarb the Court examined to a great extent the legislative history of the statute being challenged and concluded that, The only conceivable justification for writing the presumption of wives' dependency into the statute is the assumption, not verified...but based simply on "archaic and overbroad" generalizations...that it would save the Government time, money, and effort simply to pay benefits to all widows, rather than to require proof of dependency of both sexes. We...hold again here, that such assumptions do not suffice to justify a gender-based discrimination in the distribution of employment-related benefits. Id. at 217. (citations omitted.) The approach taken by the Court in Goldfarb is illustrative of the degree of scrutiny adopted by the Court in its early confrontations with gender discrimination and its intermediate review. After Califano v. Webster, 430 U.S. 313 (1977), it became apparent that some gender-based classifications could survive a constitutional challenge. In Webster, the Court held in a per curiam opinion that a former section of the Social Security Act under which retired men were treated less favorably than women in determining their old age insurance benefits was constitutional. The law challenged was 42 U.S.C. 415. Under this section of the Act, old-age insurance benefits were computed on the basis of the wage earner's "average monthly wage" earned during his "benefit computation years" which were the "elapsed years" (reduced by five) during which the wage earner's covered wages were highest. Prior to 1972 when the law was amended, "elapsed years" depended upon the sex of the wage earner. Then in 1972 Congress changed the formula to be used and specifically provided that equal treatment for the sexes be phased in over the next three years. Congress, however, chose not to make the amendment retroactive. Therefore, people who reached retirement age before the various effective dates of the changes were subject to the old formulas. As a consequence, there are still people today who are covered by the former section of the Social Security Act under which retired men received less favorable treatment than women in determining their old age insurance benefits. The Court in Webster found that the old formulas as provided for in law before 1972 were constitutional, reasoning that the disparate treatment had been purposely enacted by Congress "to compensate for particular economic disabilities suffered by women." Webster, 430 U.S. at 320. The Webster decision was significant because it revealed that the Court was still upholding gender-based differentiations in statutes if they, in fact, existed for the purpose of benefiting women who had suffered in the past from economic discrimination. The Court's opinion in Webster drew a sharp distinction between the type of male-female disparity in old age insurance benefits (Webster) and the type in the survivor's benefits dependency requirement case (Goldfarb). In the first instance, the Court felt that the purpose of the distinction was based upon outmoded stereotyping of women, e.g. the assumption that women are in fact dependent. Thus, despite the Court's intolerance of classifications based on traditional stereotypes, Webster illustrated that the Court might still accept a sex-based classification if it had been adopted by the legislature for remedial reasons.(3) In 1979, the Court continued to clarify its position on gender discrimination analysis under the equal protection clause. In Orr v. Orr, 440 U.S. 268 (1979), it declared unconstitutional an Alabama statute which imposed alimony obligations on husbands but not wives. The Court found that this impermissible sex-based classification was not remedial in nature but rather was based on traditional stereotypes. Orr reinforced the Court's position stated two years previously in Webster which prohibited any type of discrimination based on traditional stereotypes.4 Furthermore, the Court stated that if "...the state's compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the state cannot be permitted to classify on the basis of sex." Orr, 440 U.S. at 283. After Orr, it appears clear that the intermediate standard of review is the same regardless of whether women or men are disadvantaged by the classification. Id. at 279. Tangentially related to the standard of review applied in gender-based discrimination cases are those cases concerned with illegitimacy.(5) For the purposes of this report, two Supreme Court cases dealing with illegitimacy are relevant because the fathers of illegitimate children challenged statutes treating them differently from the mothers of such children. The decisions are significant because they illustrate the difficulty the Court has faced in arriving at predictable results when applying the intermediate standard of review. In Caban v. Mohammed, 441 U.S. 380 (1979), the Court invalidated a statute because it was based on traditional sexual stereotypes. The Court found that a New York statute which required the consent of a mother, but not a father, to the adoption of an illegitimate child was based upon the traditional premise that a mother is closer to a child than a father. In a case decided on the same day, Parham v. Hughes, 441 U.S. 347 (1979), the Court upheld a Georgia statute which precluded a father who had not legitimated his child from bringing a wrongful death action on the illegitimate child's behalf. The statute did not have such a preclusion for the natural mother of an illegitimate child. The two statutory differentiations between unwed mothers and unwed fathers received different treatment because of the Court's perception of the justifications and presumptions underlying each. In Caban, a New York law permitted the unwed mother but not the unwed father of an illegitimate child to block adoption by withholding consent. Acting in the situation of one who acknowledges his parenthood and had maintained a close relationship with the child over the years, the Court could not find a substantial relationship to some important governmental interest for the classification. Promotion of adoption of the illegitimates and their consequent legitimation was important, but the Court concluded that the assumption that all unwed fathers either stood in a different relationship to their children than did the unwed mother or that the difficulty of finding the fathers would unreasonably burden the adoption process was overbroad, as the facts of the case revealed. The Court asserted that nothing prevented the State from dispensing with consent when the father was unknown or his location unknown, but disqualification of all unwed fathers could not be used as a short-cut for that step. On the other hand, in Parham, the Court upheld the Georgia law permitting the mother of an illegitimate child to sue for the wrongful death of the child but which allowed the father to sue only if he has legitimated the child and there was no mother. Discernible from the array of justices' views in Parham was that the State's objective, the avoidance of difficulties in proving paternity, was an important one which was advanced in this case by the governmental classification. The plurality opinion determined that the law did not invidiously discriminate against men as a class. Justice Powell found the statute valid because the gender-based classification was substantially related to the objective of avoiding problems of proof in verifying paternity. When a sex-specific characteristic is not an issue, the Court has reiterated its position stated in Orr. In Califano v. Wescott, 443 U.S. 76 (1979), the Court invalidated a social security provision extending benefits to families whose dependent children have been deprived of parental support because of the unemployment of the father, but not granting the same benefits when the mother becomes unemployed. The Court found that the statute was once again based on a traditional idea of women's dependence on men for support. Justice Blackmun writing for the majority asserted that the statute was, ...not substantially related to the attainment of any important and valid statutory goals. It is rather part of the baggage of sexual stereotypes...that presumes the father has the 'primary responsibility to provide a home and its essentials,'...while the other is the 'center of home and family life.' Id. at 89. (citations omitted.) The Court left little doubt that the middle-tier substantial relationship test would not tolerate any law which is based on traditional sexual stereotypes. The Court also settled another aspect of gender discrimination during 1979. In Massachusetts Personnel Administrator v. Feeney, 442 U.S. 256 (1979), the Court refused to strike down a facially neutral law which had a discriminatory effect upon women, thus revealing that the intent requirement of equal protection litigation in other areas would be equally applicable in sex classification cases. That is, a law which is neutral on its face and which serves ends within the power of government to pursue is not invalid simply because it may affect a greater proportion of one sex than of the other. Discriminatory purpose, motive, or intent must be shown. Thus, a veterans' preference law which benefitted largely but not exclusively men and which had a severe impact mostly but not exclusively upon women was held valid under the equal protection clause. Id. In Feeney, the complaining party did not show that the government intended to discriminate against women. After Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142 (1980), the Supreme Court appeared to "reach a stable ground" in its treatment of gender discrimination.(6) In Wengler, the Court invalidated a Missouri workers' compensation law denying a widower benefits on his wife's work-related death unless he was mentally or physically incapacitated or proved dependency on her earnings, but granting a widow death benefits regardless of her dependency. A majority of the Court recognized the "double-edged discrimination" against female wage earners and male beneficiaries and in doing so made it clear that, despite suggestions to the contrary in earlier cases, benign classifications (i.e. classifications benefiting women) would be subject to the same level of scrutiny as any other classification. Id. at 444. The clear language of Wengler and its firm position that the substantial relationship test should be applied in all gender discrimination cases added a degree of predictability to disputes in this area which was not present before this time. Id. During the 1980 term the Court decided three cases in the gender discrimination area. In Kirchberg v. Feenstra, 450 U.S. 455 (1981), the Supreme Court invalidated a state law giving husbands a unilateral right to dispose of jointly owned community property without a spouse's consent. Justice Marshall in a unanimous opinion applied the intermediate level substantial relationship test and found that the classification did not serve to further an important governmental interest. Id. at 461. The Court did not find appellant's argument persuasive that the woman claiming to be discriminated against could have taken some actions, such as making a "declaration by authentic act" prohibiting her husband from executing a mortgage on her home without her consent, to prevent the discriminatory treatment. Id. at 460-461. In Michael M. v. Superior Court, 450 U.S. 464 (1981), a California statute which provided for the prosecution of men but not women who engaged in sexual intercourse with a nonspousal partner under the age of eighteen was upheld after being challenged by a male. Although the statute on its face discriminated on the basis of sex, it was not invalidated because the Court ruled that in this respect males and females are not similarly situated. The Court found that since only women can become pregnant, they are deterred from sexual intercourse in a way in which men are not. It was this difference that led the Court to its decision that men could be deterred by a law applicable only to them. Also during the 1980 term, the Court decided Rostker v. Goldberg, 453 U.S. 57 (1981). In Rostker, a male challenged the Selective Service Act's exclusion of women from registration for the draft, and the Court upheld this law requiring only men to register. Again the Court found that the sexes were not similarly situated. Since the military policy of using only men in combat was not challenged, and the purpose of draft and registration was to raise a force of men for combat, the Court ruled that limiting registration to men was a valid way to serve that policy. It should also be noted that the Court has traditionally shown great deference to Congress on military matters. Rostker is an illustration of this reluctance to invalidate a decision of Congress on a military subject. Thus, while not dispositive, the military nature of the issue in Rostker may have had some impact on the Court's decision to uphold the statute. During the next term, the Court decided Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), in which it invalidated the policy of a state supported university to limit admission to its nursing school to women. In a five to four decision with the majority opinion written by Justice O'Connor, the Court applied the substantial relationship test and found unpersuasive Mississippi's claim that the purpose of the admission's policy was to compensate women for past discrimination. The Hogan Court stated that a remedial purpose would only be valid if the gender benefitted by this action was actually disadvantaged by this classification in the past. Id. at 728. Because nurses as a group had not been discriminated against, the purpose recited by Mississippi was impermissible. Id. Thus, the Hogan decision emphasizes the distinction between statutes which purport to remedy past discrimination and those which invalidly use a benign purpose as a pretext to reinforce traditional stereotypes.(7) "By reaffirming that intermediate scrutiny must be rigorously applied to all discriminatory classifications regardless of their asserted motivation, Hogan at least temporarily ensures that the language of benign discrimination cannot be used to perpetuate traditional stereotypes.(8) It is also important to note that certain language in the Hogan decision suggests that the possibility still exists that gender may be considered a suspect class. Justice O'Connor's statement that "...we need not decide whether classifications based upon gender are inherently suspect," Hogan, 458 U.S. at 724 n.9, and the language that the "exceedingly persuasive justification needed to sustain gender-based classification," Id. at 731, have opened the possibility that the Court might in the future find sex a suspect class. If this possibility were to materialize, sex discrimination cases would require the heightened strict scrutiny standard of review currently used in race cases. At the date of this writing, Hogan was the last gender discrimination case based on equal protection ruled on by the Court.(9) However during the 1983-84 term, the Supreme Court decided another gender discrimination issue in the context of the first amendment rights of freedom of association and expression. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court affirmed a Minnesota Supreme Court determination that the state's law banning discrimination in public accommodations makes it illegal for local Jaycee chapters to exclude women from full membership. The Minnesota Jaycees had claimed that forcing them to admit women would violate their first amendment rights. The Court in a unanimous decision held that under the Minnesota statute, the Jaycees would be considered a public accommodation because they were a large group which was generally not selective with respect to membership. In Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987), the Court held that a California statute did not violate the first amendment by requiring California Rotary Clubs to admit women. The reasoning in this case followed that used in the Court's earlier ruling in Jaycees. Id. at 544-545. Using the same test, the Court stated that, "In determining whether a particular association is sufficiently personal or private to warrant constitutional protection, we consider factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship." Id. at 546. Thus, the evidence needs to be weighed on a case-by-case basis. Most recently, the Supreme Court held in New York State Club Assn., Inc. v. City of New York, 108 S.Ct. 2225 (1988), that the New York City ordinance which barred business-oriented clubs from discriminating against women and minorities was not unconstitutional on its face. As in Jaycees and Rotary Club, the Court was unanimous in concluding that the law did not violate club members' first amendment right to freedom of association by forcing them to admit women or minorities. The New York City ordinance had three prongs providing that clubs are not "distinctly private" and thus are "public accommodations" if 1) they have more than 400 members; 2) they provide regular meal service; and 3) they regularly "receive payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business." Exempted from the ordinance are benevolent orders and religious corporations. The Court applied the same rationale in the New York State Club Assn.,Inc. case as it used in its two earlier decisions. This decision, however, is especially significant because numerous other cities have laws similar to the one in New York City. Because the New York law was challenged by the New York State Club Association as written and before it was actually applied in a particular instance, this recent ruling does leave some questions open. While the Court upheld the law in this facial challenge, it stated that there could be situations where the law could not be enforced against a particular private club without violating its members' first amendment right of freedom of association. Thus, the issue of how "private" a club actually is will still have to be determined on a case-by-case basis. The ruling in New York State Club Assn., Inc. did make clear that state and local governments have the authority to regulate private clubs. This decision is the Court's third in four years unanimously upholding such local government curbs against discrimination by private clubs. This survey of Supreme Court cases demonstrates the Court's attempts to clarify the analysis necessary for gender discrimination questions brought under the equal protection clause. To a certain degree, the Court has provided some predictability. For example, it is apparent that proof of intent is essential to establish a case under the equal protection clause. However, the constitutional review in the gender discrimination area is far from being completely settled. The Court likely will continue to refine and develop its middle-tier analysis in subsequent cases. Even at this time, it can still be argued that it is an open question whether the Court will accord sex the same status as race, i.e., a suspect classification, thus warranting application of the heightened standard of review, strict scrutiny, in the future. It is also evident after the Jaycees, Rotary Club, and New York State Club Assn., Inc. cases that the Court is beginning to examine gender discrimination in different constitutional contexts, thus providing new avenues for sex discrimination suits. II. ANALYSIS OF SPECIFIC CASES UNDER STATUTES 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, 42 U.S.C. 2000e et seq., and Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., which focus on discrimination in employment and education respectively. As shown earlier in the constitutional context, the Supreme Court will apply a particular standard of review depending on the facts of the case, the classification involved and the nature of the discrimination. 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. Thus, a review of gender discrimination cases based on statutory grounds will reflect a different approach from that used in decisions under the equal protection clause. A. Title VII of the 1964 Civil Rights Act, as Amended Title VII prohibits employment discrimination on the basis of any of several classifications, including sex. The statute states that it is an unlawful employment practice for an employer: (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2 (a) (1), -2 (a) (2). Sex discrimination cases under Title VII have generally involved pregnancy related questions, disputes involving pensions and insurance, and conflicts dealing with the problem of unequal wage differentials. Underlying all these cases are questions regarding the scope of coverage and standard of proof necessary to successfully litigate a Title VII claim. A review of Title VII cases necessitates a departure from chronological analysis in order to understand trends in the Court's decisions. However, in order to place all these cases in their proper perspective, this examination of Supreme Court decisions will be preceded by a discussion of the scope of coverage of Title VII, followed by an explanation of the standard of proof required in this area. 1. Scope of Coverage of Title VII In 1984, the U.S. Supreme Court handed down its decision in Hishon v. King and Spalding, 467 U.S. 69, holding that Title VII covers the selection process in partnership situations. Under the facts in Hishon, petitioner worked as an associate in a large Atlanta law firm. She was reviewed for and denied partnership twice. Thereafter, she was notified to seek employment elsewhere. Petitioner filed a charge with the Equal Employment Opportunity Commission (EEOC) claiming that the law firm had discriminated against her on the basis of her sex in violation of Title VII. When the case reached the district court it dismissed the complaint on the ground that Title VII did not apply to the selection of partners by a partnership. On appeal, a divided panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed. 678 F.2d 1022 (1982). The Supreme Court reversed, ruling that petitioner's allegations stated a claim under Title VII, and that she was entitled to a trial to prove them. The case was thus remanded to the district court for further proceedings consistent with this opinion. In Hishon, the Court based its conclusion that Title VII covered the selection of partners by a partnership in part on the fact that once a contractual relationship of employment is established, Title VII's provisions apply. The contract could be written or oral, formal or informal. The Court wrote: "The contractual relationship of employment triggers the provision of Title VII governing 'terms, conditions, or privileges of employment.' Title VII in turn forbids discrimination on the bases of 'race, color, religion, sex, or national origin.'" 467 U.S. 69, 74. According to the Court, when the underlying employment relationship is contractual, the "terms, conditions, or privileges of employment" include benefits that are part of an employment contract. In Hishon, the petitioner argued that the law firm made a contract to consider her for partnership. The Court observed: Indeed, this promise was allegedly a key contractual provision which induced her to accept employment. If the evidence at trial establishes that the parties contracted to have petitioner considered for partnership, that promise clearly was a term, condition, or privilege of her employment. Title VII would then bind respondent to consider petitioner for partnership as the statute provides, i.e., without regard to petitioner's sex. Id. at 75. Aside from the claim that a contract was made, there were other allegations in the petitioner's complaint that would also support a valid cause of action under Title VII. An employer can provide its employees with many benefits that it is under no contractual obligation to furnish. Such benefits may qualify as a "privilege" of employment under Title VII. Such benefits cannot be dispensed in a discriminatory manner in violation of Title VII. The Court wrote: Several allegations in petitioner's complaint would support the conclusion that the opportunity to become a partner was part and parcel of an associate's status as an employee at respondent's firm....Thus, the benefit of partnership consideration was allegedly linked directly with an associate's status as an employee, and this linkage was far more than coincidental: petitioner alleges that respondent explicitly used the prospect of ultimate partnership to induce young lawyers to join the firm. Indeed, the importance of the partnership decision to a lawyer's status as an associate is underscored by the allegation that associates' employment is terminated if they are not elected to become partners. These allegations, if proved at trial, would suffice to show that partnership consideration was a term, condition, or privilege of an associate's employment at respondent's firm, and accordingly that partnership consideration must be without regard to sex. Id. at 76. Finally, the Court rejected the law firm's contention that the application of Title VII to the decision whether to admit petitioner to the firm implicated the constitutional right to association. The allegation by petitioner was that the firm as an employer was obligated to consider her for partnership on equal terms without regard to sex. The Court ruled that to enforce this obligation did not violate the firm's right of association. As such, there was no interference with the management of the law firm by it partners. In sum, the Court in Hishon was simply holding that a person who alleges that he or she was not considered for partnership on a "fair and equal basis" is entitled to bring suit under Title VII of the 1964 Civil Rights Act. 2. Burden of Proof under Title VII: Intent and Impact When the Court is faced with a case that involves a specific statute like Title VII of the 1964 Civil Rights Act, as amended, its review of the facts conforms to the specifics of the statute which has allegedly been violated and, until recently, where the challenged action was facially neutral, a showing of disproportionate impact, at least in the Title VII situation, was sufficient to make out a case of discrimination. Thus, in the past, given a factual context where discrimination existed because of the effects of an employer's practices, it had been easier to prove sex discrimination under Title VII because complainants only had to show impact and did not have to establish intent as required when bringing a case alleging sex discrimination under the equal protection clause of the Constitution. The Supreme Court's recent decision in Wards Cove Packing Co., Inc. v. Atonio, 109 S. Ct. 2115 (1989), however, has changed this because in that case the Court appears to have melded Title VII disparate treatment, for which the plaintiff must prove discriminatory intent, and the disparate impact theory, traditionally thought not to require such proof. Because of Wards Cove, it is now just as difficult to make out a case of discrimination under Title VII as it is under the equal protection clause of the Constitution. In order to understand the complexity and significance of Wards Cove, the following discussion lays out the background and the cases leading up to that decision.(10) The effects test or disproportionate impact analysis was first articulated by the Court in Griggs v. Duke Power Co., 401 U. S. 424 (1971). In Griggs, the company had practiced overt racial discrimination prior to the enactment of Title VII, but abandoned the policy after the law's adoption. In its place, the company developed a new policy of requiring completion of high school and satisfactory performance on a general intelligence test as a condition to placement in higher paying jobs. In striking down this policy, the Chief Justice noted that Whites fared better than Blacks and attributed this "consequence" to the "inferior education in segregated schools" received by minority groups. The Court went on to define permissible types of employment criteria in terms of their effects on protected classes under the Act, holding that requirements which are facially neutral but operate in a discriminatory fashion are barred unless justified by business necessity. Title VII was designed to "achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of...employees over other employees. Under this Act, practices, procedures, or tests neutral on their face, and neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." Id. at 429-30. The diploma and testing requirements in Griggs were infirm because they were not shown to be job-related and had the effect of perpetuating the company's pre-Act discrimination. The critical aspect of Griggs was its apparent rejection of discriminatory intent as a prerequisite to relief under the Act. "Congress directed the thrust of the Act to the consequences of employment discrimination, not simply the motivation." Id. at 432. The policy in Griggs could not stand, regardless of the motive behind its adoption, because it had a disproportionate adverse impact on minority employees and could not be justified on grounds of business necessity. Thus, Griggs advanced a concept of discrimination based on adverse effects that challenged practices have on the employment opportunities of those protected by the Act. Subsequent to Griggs, in Washington v. Davis, 426 U. S. 229 (1976), the Supreme Court reiterated the distinction between proving a discrimination claim under the Constitution and under a statute like Title VII. In Davis, the Court said that when the plaintiff alleges a statutory violation and the questionable practice has a substantially disproportionate effect upon a protected minority, discriminatory purpose need not be proved. For example, when employment discrimination under Title VII of the 1964 Civil Rights Act, as amended, is the allegation, once the Title VII plaintiff established a prima facie case of discrimination under this disproportionate impact analysis, then the burden shifted to the employer to prove that the disqualifying employment practice was related to the employment in question. While the test under Title VII was one of impact, the test under the equal protection clause of the Fourteenth Amendment was one of intent. It is more difficult to prove intent or a discriminatory animus than it is to show disproportionate impact. When a plaintiffs challenge rests on constitutional grounds, he or she must show that the discrimination was purposeful; however, evidence of disproportionate impact is relevant to the question of intent. Thus prior to Wards Cove, significant legal consequences followed depending upon whether a plaintiffs cause of action derived from the statutory proscription against discrimination or the constitutional guarantee of equal protection. As will be shown below, this was true in the gender context as well as in the race area. In Dothard v. Rawlinson, 433 U. S. 321 (1977), the plaintiff challenged the statutory height and weight requirements for prison guards as well as a regulation which essentially barred women from "contact" positions in maximum security, all-male penitentiaries, on the ground that both violated Title VII of the Civil Rights Act of 1964. The thrust of the plaintiff's claim in Dothard was that the statutory height (5 ft. 2 in. minimum) and weight (120 lbs. minimum) requirements, while facially neutral, had a disproportionate impact upon women, i.e. excluded women from eligibility for employment by the Alabama Board of Corrections. There was no assertion of purposeful discriminatory motive. The Supreme Court held that employment requirements for height and weight discriminate illegally against women when statistics show a disproportionate impact upon women and when employers fail to demonstrate that the tests have some real relation to the ability to handle the job. The Court supported its ruling by relying on two of its earlier decisions, Griggs v. Duke Power Co., supra, and Albermarle Paper Co. v. Moody, 442 U.S. 405 (1975). In the latter two cases, the Court dealt with similar allegations that facially neutral employment standards disproportionately excluded Blacks from employment. The Dothard decision was significant because the Court relied upon Griggs and Albermarle, two race discrimination cases, in its analysis of the statutory height and weight standards. The Court applied the same disproportionate impact analysis in the gender-based context as it did in those two race discrimination cases. Thus, Dothard made it clear that when plaintiffs allege sex discrimination in violation of Title VII, they can make out their prima facie case by showing disproportionate impact. In sum, the Griggs model of proof was followed in both sex and race contexts. It involved two basic steps. The plaintiff carried the initial burden of proving, most often in practice by the use of statistical evidence, the disproportionate or adverse impact of a given policy or practice on protected class members as compared to other employee or applicant groups. Subsequent cases then suggested that the burden was on the defendant to rebut plaintiff's prima facie case with proof of an affirmative defense of "business necessity" for the challenged practice. (Dothard, supra; Albermarle Paper Co., supra.) Motivation was not an explicit element of impact analysis. Moreover, the defendant employer's burden appeared to be the weightier one of persuading the court of a "manifest relationship" between the challenged practice and business purposes. (Griggs, supra.) The plaintiff could then reshift the burden back to the defendant by showing the availability of "lesser discriminatory alternatives" responsive to employer needs. (E.g., EEOC v. Rath Packing Co., 787 F. 2d 318 (8th Cir. 1986); Contreras v. Los Angeles, 656 F. 2d 1267 (9th Cir. 1981)). The Court's most recent rulings, however, seem to blur traditional distinctions between disparate treatment and adverse impact approaches, possibly reducing the defendant's burden for proving business necessity in the latter context. In Watson v. Fort Worth Bank & Trust, 108 S. Ct. 2777 (1988), the Court resolved that disparate impact analysis is applicable in challenges to subjective or discretionary hiring and promotion standards. The Court specifically stated that an employee complaining of subjective decisions does not need to prove that the employer intended to discriminate. Thus, this holding, in the important area of evidence in employment discrimination cases, extended to subjective decisions the same legal concept that the Supreme Court applied in 1971 in Griggs, supra, to objective employment decisions. Objective employment decisions are those involving standardized tests for hiring or promotion, or setting specific requirements for a job. Subjective decisions, on the other hand, are those based on interviews, recommendations, and past job evaluations. The Watson decision was unanimous with respect to ruling that bias in subjective employment decisions may be proven by statistical evidence showing that the employer's practices have had a discriminatory effect. However, the Court was split concerning the follow-up question of what are the proper evidentiary standards, i.e. what happens after an employee has proven statistically that an employer's decisions had a disproportionate impact? The plurality stated that the burden of proof always remains with the plaintiff, and that after an employer presents evidence that the employment decisions were based on necessary business judgments, then the employee has to prove that nondiscriminatory alternatives existed that would serve the company's business goals. Justices Blackmun, Brennan and Marshall objected and contended instead that once a case of discriminatory impact is made out, the employee wins unless the employer can show that the actions taken were a necessary business practice. Justice Stevens said that the Court should not try to resolve the issue now, but instead should wait for a future case. The matter of how an employer may defend against a statistical showing of disparate impact was resolved when the Court decided Wards Cove Packing Co. v. Atonio, supra. With the ascendancy of Justice Kennedy to the High Court, the plurality view in Watson appears to have become the majority rule in Wards Cove. By a 5 to 4 vote, the Court held that while employers bear the burden of producing evidence of a "legitimate business justification" for any practice that has a racially disparate impact, the "burden of persuasion" remains with the plaintiff who must ultimately disprove any asserted employer justification. While Wards Cove involved allegations of discrimination against minorities, the rationale used by the Court and its articulation of the standards for burden of proof also pertain in the gender discrimination context. Justice White wrote for the majority in Wards Cove and examined two important issues: causation and the business necessity defense. The majority followed the Watson plurality by requiring employees asserting disparate impact claims to prove "specific causation" as part of their prima facie case. Statistical evidence of racial imbalance, allegedly caused by the aggregate operation of multiple employer practices, as in Wards Cove, would not satisfy the plaintiffs' burden. Instead, the focus of the disparate impact analysis is on "the impact of particular hiring practices on employment opportunities for minorities." Therefore, Title VII plaintiffs have to prove "that the disparity they complain of is the result of one or more of the employment practices they are attacking and "specifically show that each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites." The dissenting justices in Wards Cove were critical of what they perceived as an "apparent redefinition of the employees' burden in a disparate impact case", and they would have instead allowed Title VII plaintiffs to make out their prima facie case based on proof of the cumulative effect of "numerous questionable employment practices." Wards Cove is also significant in terms of how the Court articulated the employer's burden. It essentially recast the business necessity doctrine in Griggs from an affirmative defense for which the employer carries the burden of persuasion to a "business justification" subject only to "reasoned review" and for which the latter need meet a "burden of production." The result of the Court's determination in Wards Cove is that the "ultimate burden" remains "at all times" with the plaintiff employee. The Court also melded the disparate treatment analysis, for which the plaintiff must prove discriminatory intent, and the disparate impact theory, traditionally thought not to require such proof. Thus, for purposes of making out a case of race or sex discrimination, it is now more difficult for a plaintiff to prove that he or she was discriminated against under Title VII. In instances where the facts illustrate discrimination resulting from the effects of a particular policy which may be neutral on its face, in the future it will be just as difficult for a plaintiff to establish his or her case under Title VII as it is under the equal protection clause of the Constitution. The disparate impact analysis as articulated in Griggs has been discredited, and the plaintiff now has to attack the employer's asserted business justification by showing that it is a "pretext" for discrimination. During its 1988-1989 Term the Court also decided a sex discrimination case which involved a "mixed motive" situation and the burden of proof under Title VII, Price Waterhouse v. Hopkins, 109 S. Ct. 1775. The plaintiff was a female senior manager being considered for partnership by the accounting firm, Price Waterhouse. Pursuant to the firm's established peer review system, she was evaluated by the firm's partners. Some praised her for "outstanding performance" and productivity while others criticized her for her "aggressiveness", her "macho" and "abrasive" manner, and a general lack of "interpersonal skills." After her candidacy was held over for reconsideration and two partners withdrew their support, she resigned and filed a Title VII charge for sex discrimination. The Supreme Court's decision in Price Waterhouse resolved a conflict among the federal circuit courts concerning the appropriate standard of proof in "mixed motive" cases, i.e. where an alleged intentional act of discrimination may be partially the product of both lawful and unlawful employer motivation. The decision was splintered with a plurality of four Justices led by Justice Brennan articulating a rule of causation which states that once the plaintiff establishes that impermissible factors play a role or were "a" motivating factor, the employer then must prove by a "preponderance of the evidence" that it would have made the same decision absent that factor. Thus, the "burden of persuasion" rests with the employer to show as an ''affirmative defense" the exact causal roles played by both legitimate and illegitimate considerations, i.e. establishing that the same employment decision was dictated by only legitimate factors. The plurality indicated as well that "in most cases" employers "should" rely on "some objective evidence" instead of "the employer's own testimony" to meet this burden; however, the plurality did reject the "clear and convincing evidence" standard which had been applied by the court of appeals. Justice White partially concurred with the plurality's "same decision" rule, but he would allow employers broader evidentiary latitude. Justice O'Connor rounded out the majority for the same rule, but she disagreed with the plurality's causation standard and allocation of the burden of proof in the "mixed motive" cases. Unlike the plurality which required that the plaintiff show that discrimination was "a" motivating factor, Justice O'Connor would instead mandate that illicit motivation be a "substantial" factor before requiring the employer to assume the same decision burden. In addition, she would restrict the plurality's burden-shifting rule to cases where there is actually "direct evidence" of illegitimate motive that does not depend on statistics or other indirect inference. 3. Analysis of Specific Cases Dealing With Equal Pay Under Title VII The doctrine of equal pay for work of comparable value has varied meanings and the implementation of it in the workplace is subject to much controversy. In 1981, the National Academy of Sciences (NAS) issued a report prepared under contract to the Equal Employment Opportunity Commission (EEOC) stating that: On the basis of the evidence, our judgment is that there is substantial discrimination in pay. Specific instances of discrimination are neither easily identified nor easily remedied, because the widespread concentration of women and minorities into low-paying jobs makes it difficult to distinguish discriminatory from nondiscriminatory components of compensation. One approach, which needs further development but shows some promise is to use existing job evaluation plans as a standard for comparing the relative worth of jobs.... [W]e have not been able to make any assessment of what the social and economic consequences may be of implementing wage policies based on the principle of equal pay for jobs of equal worth. This is an extremely complex question, with no clear answers, which goes well beyond the charge to the committee...(11) The Supreme Court in County of Washington v. Gunther, 452 U.S. 161 (1981), attempted to remedy some of the complexities in the equal pay area. In a five to four decision the Court in Gunther held that Title VII was not limited to claims of "equal pay for equal work," the standard required under the Equal Pay Act of 1963. Justice Brennan wrote the opinion for the majority and indicated that women who are paid less than men are entitled to sue their employer under Title VII, regardless of whether the jobs performed by the two sexes are identical. The Gunther case involved a dispute in which the sheriff of the county jail ordered four jail matrons to be laid off. The women claimed that their jobs were being terminated because they had been making equal pay demands. They charged that prior to being laid off, the county had refused to pay them equal pay for work substantially equal to that performed by higher paid male workers. In addition, they contended that even if their work was not comparable to that of their male co-workers, some element of the wage disparity was attributable to discrimination on the basis of sex alone. The latter allegation stemmed from a claim that because of intentional discrimination, the county set the pay scale for the female jail matrons, but not for the male guards, at a level lower than that warranted by the county's own survey of outside job markets and the worth of jobs. The jail matrons pointed to the fact that as a result of that market survey, the county on its own concluded that the women should be paid approximately 95% as much as the male correctional officers; however, the county then went ahead and paid them only 70% as much, while paying the male officers the full evaluated worth of their jobs. It was precisely this failure to meet the results of the market survey to pay women the 95% that led them to charge the county with intentional sex discrimination. The precise issue before the Court was actually the narrow one of whether section 703 (h) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e-2 (h), restricted Title VII's prohibition of sex-based wage discrimination to claims of "equal pay for equal work," the standard required by the 1963 Equal Pay Act, 29 U.S.C. 206 (d). In reaching the conclusion that section 703 (h) of Title VII did not limit Title VII to that standard, the Court basically ruled that Title VII was broader in its coverage than the Equal Pay Act. The Court emphasized the narrowness of the question before it. Justice Brennan, author of the Court's opinion, wrote: Respondents' claim is not based on the controversial concept of "comparable worth," under which plaintiffs might claim increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community. Rather, respondents seek to prove, by direct evidence, that their wages were depressed because of intentional sex discrimination, consisting of setting the wage scale for female guards, but not for male guards, at a lower level than its own survey of outside markets and the worth of the jobs warranted. Gunther, 452 U.S. at 166 (footnote citation omitted). The Court emphasized that it was not considering the comparable worth theory, which involves an analysis of the value of specific jobs in terms of their worth to the employer. The county was arguing that the jail matrons were asking the Court to deal with that question, and if it should follow the approach of the court of appeals, the "the pay structure of virtually every employer and the entire economy [would be] ... at risk and subject to scrutiny by the federal courts." Id. at 180. (Footnote citation omitted). The Court did rule on the overlap of Title VII and the Equal Pay Act. It examined the question of whether Title VII was broader than the Equal Pay Act with respect to bringing sex discrimination suits. The pertinent provision in Title VII is section 703 (h), more commonly referred to as the Bennett Amendment, which specifically provides: It shall not be an unlawful employment practice under this subchapter for an employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206 (d), of title 29. 42 U.S.C. 2000e-2 (h). The Equal Pay Act, provides in pertinent part, No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. 29 U.S.C. 206 (d) (1). The question before the Supreme Court was whether the word "authorized" used in the Bennett Amendment in Title VII only incorporated the Equal Pay Act's four defenses or whether in addition it included the "equal work" requirement of that Act. The majority held that the former was the case. Justice Brennan wrote that limiting the Bennett Amendment to only those sex-based wage discrimination claims that meet the Equal Pay Act's standard of"equal pay for equal work" would mean "that a woman who is discriminatorily underpaid could obtain no relief--no matter how egregious the discrimination might be--unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay." Id. at 178. The impact and general significance of the Court's decision in Gunther are difficult to assess at this time. On its face, the holding is a narrow one. Justice Brennan emphasized this fact in the decision itself when he stressed that the ruling was not one concerning the broader concept of "comparable worth." The dissent also pointed to the narrowness of the holding. In fact, Justice Rehnquist described the opinion in the following specific terms: All we know is that Title VII provides a remedy when as here, plaintiffs seek to show by direct evidence that their employer _intentionally_ depressed their wages. And, for reasons that go largely unexplained, we also know that a Title VII remedy may not be available to plaintiffs who allege theories different than that alleged here, such as the so-called 'comparable worth' theory. One has the sense that the decision today will be treated like a restricted railroad ticket, "good for this day and train only." Id. at 183. (Emphasis in dissenting opinion.) From Gunther, it is clear that the Court has endorsed claims of sex-based wage discrimination without equal work; however, this determination was made in a factual context of intentional discrimination on the part of the employer. It remains to be seen what courts will do where the reasons for women's lower wages are not attributed to intentional discrimination. In other words, the question after Gunther is not whether sex-based wage discrimination is illegal, but what is required to prove such discrimination.(12) 4. Specific Cases in the Pension and Insurance Area of Title VII Litigation The U.S. Supreme Court in City of Los Angeles, Department of Water and Power v. Manhart, 435 U.S. 702 (1978), invalidated a pension plan administered by the department that required female employees to make substantially larger contributions than similarly situated male employees to obtain equivalent periodic benefits upon retirement. The department's principal defense was that the unequal contributions were based on a longevity factor, rather than sex. Empirical data, reinforced by sex-segregated mortality tables, suggested that female employees outlived department males by an average of five years. Indeed, neither party in Manhart disputed the actuarial premise that females as a class enjoy a greater life expectancy than males. Nonetheless, the Court concluded that the department had predicated its longevity determination solely on sex, a practice prohibited by Title VII. In brief, the Court reasoned that all individuals of a class do not share the characteristics of the class as a whole and that Title VII prohibits treatment of individuals as a mere component of a class. The Manhart decision thus established that mandatory unequal pension contributions distinguished by the sex of employees to an employer sponsored or administered retirement program violated Title VII. Left for future judicial resolution, however, were several other issues related to the operation of sex distinctions in employee benefit plans. First was the question whether the Manhart principle applied to the more common pension industry practice of requiring equal contributions from both sexes but providing larger annuity benefits to retired male rather than female employees. It was also unclear what the implications of Manhart would be for pension plans administered by private insurers rather than by the employers themselves. Finally, Manhart involved a mandatory employee retirement program and did not address the status of sex distinctions in a similar plan where participation by the employees was voluntary. After Manhart, it became clear that the test for Title VII discrimination was whether the evidence showed treatment of a person in a manner which "but for that person's sex would be different." Id. at 711. The Court reaffirmed this approach in Arizona Governing Committee v. Norris, 463 U.S. 1073 (1983), striking down as violative of Title VII an Arizona deferred compensation plan under which women received smaller annuity payments than men because of the use of sex-based tables. The Arizona case involved a voluntary plan funded entirely by participating employees with no employer contribution. Employees could defer compensation and elect to receive it in a lump sum, in a fixed monthly amount over a specified period of time, or in the form of a lifetime annuity, with monthly payments made by an independent insurance company. The district court found that the State of Arizona violated Title VII, despite the state's claims that all the insurance companies available to provide the life annuities used sex-based mortality tables. The Ninth Circuit affirmed that ruling. On appeal to the U.S. Supreme Court, the State of Arizona argued that it was not liable because it did not administer the sex-based actuarial tables at issue, but instead simply purchased contracts from private insurance companies in order to provide its employees with a life annuity option if they chose to exercise it. The Court approached the question in basically two steps. It first examined the issue of whether the state would have violated Title VII if it had run the entire deferred compensation plan itself, without the participation of any insurance companies. The Court answered this question affirmatively, relying almost exclusively on its earlier holding in Manhart. The Court in Norris stated: We have no hesitation in holding, as have all but one of the lower courts that have considered the question, that the classification of employees on the basis of sex is no more permissible at the pay-out stage of a retirement plan than at the pay-in-stage. We reject petitioners' contention that the Arizona plan does not discriminate on the basis of sex because a woman and man who defer the same amount of compensation will obtain upon retirement annuity policies having approximately the same present actuarial value. Arizona has simply offered its employees a choice among different levels of annuity benefits, any one of which, if offered alone, would be equivalent to the plan at issue in Manhart.... The fact that Arizona has offered a range of discriminatory benefit levels, rather than only one such level, obviously provides no basis whatsoever for distinguishing Manhart. Norris, 463 U.S. 1082-1083. (Footnote omitted). In addition, the Court found it to be irrelevant that the plan in Manhart was mandatory, whereas the one in Norris was voluntary. It noted: ...Title VII forbids all discrimination concerning "compensation, terms, conditions or privileges of employment," not just discrimination concerning those aspects of the employment relationship as to which the employee has no choice...An employer that offers one fringe benefit on a discriminatory basis cannot escape liability because he also offers other benefits on a nondiscriminatory basis.... Id. at n.10. In its rationale, the Court emphasized that Title VII required that employers treat employees as individuals. It specifically rejected the class concept. In so doing, Justice Marshall indicated that, since racial classifications would be prohibited, so would sex-based classifications: ...We continue to believe that "a statute that was designed to make race irrelevant in the employment market,"...could not reasonably be construed to permit such a racial classification. And if it would be unlawful to use race-based actuarial tables, it must also be unlawful to use sex-based tables, for under Title VII a distinction based on sex stands on the same footing as a distinction based on race unless it falls within one of few narrow exceptions that are plainly inapplicable here. Id. at 1084. After concluding that the State of Arizona would have violated Title VII if it had run the entire deferred compensation plan by itself, the Court next turned to the second part of its analysis, inquiring whether the state's conduct was beyond the reach of the civil rights statute because the insurance companies chosen by it to participate in the plan were the ones which actually calculated and paid the retirement benefits. The Court wrote: It is no defense that all annuities immediately available in the open market may have been based on sex-segregated actuarial tables. In context it is reasonably clear that the stipulation on which petitioners rely means only that all the tables used by the companies taking part in the Arizona plan are based on sex, but our conclusion does not depend upon whether petitioner's construction of the stipulation is accurate or rejected. It is irrelevant whether any other insurers offered annuities on a sex-neutral basis, since the State did not simply set aside retirement contributions and let employees purchase annuities on the open market. On the contrary, the State provided the opportunity to obtain an annuity as part of its own deferred compensation plan. It invited insurance companies to submit bids outlining the terms on which they would supply retirement benefits and selected the companies that were permitted to participate in the plan. Once the State selected these companies, it entered into contracts with them governing the terms on which benefits were to be provided to employees. Employees enrolling in the plan could obtain retirement benefits only from one of those companies, and no employee could be contacted by a company except as permitted by the State.... Id. at 1088-1089. Thus, the Court felt there was no doubt that the State of Arizona was legally liable for the discriminatory terms on which the annuities were offered to its employees. The State of Arizona had specifically selected the companies offering the various plans to the workers. Therefore, the Court ruled that "the State cannot disclaim responsibility for the discriminatory features of the insurers' options." Id. at 1089. It did not matter that third parties, i.e. the insurance companies, were involved in the discrimination. The State of Arizona had itself entered into contracts concerning the annuities to be offered by the companies, and "it is well established that both parties to a discriminatory contract are liable for any discriminatory provisions the contract contains, regardless of which party initially suggested inclusion of the discriminatory provisions." Id. at 16. The Court also pointed out that if an employer cannot find a third party who can provide a fringe benefit plan on a nondiscriminatory basis, the employer must either supply the plan himself or not provide it at all; to do otherwise would constitute a violation of Title VII as occurred in the Norris case. Manhart and Norris made it clear that Title VII prohibited broad-based sex classifications and that the individual must be considered when determining insurance rates in the employer-sponsored pension and retirement context. Moreover, employers could no longer disclaim responsibility for the discrimination on the theory that the insurance companies were the ones actually using the sex-based tables. Employers covered by Title VII are required to provide nondiscriminatory plans for their employees. In its 1988 Term, the Court ruled 5 to 4 in Florida v. Long, 108 S.Ct. 2354 (1988), that employers are not required to pay the differences between pension benefits that were given to men and women before the 1983 decision in Manhart because the cost to employers for such retroactive correction of benefits would be prohibitive. The Court ruled that Norris, and not Manhart, sets the proper date for beginning liability for employer-operated pension plans that offered discriminatory payment options. The Court reasoned that Manhart did not put the employer, which adopted an optional unisex pension plan after that ruling, on notice that maintenance of other plans offering sex-based benefits violated Title VII. In Florida the Court also pointed out that retroactive awards are not generally permissible in the pension context so pre- Norris retirees were not entitled to either back compensatory payments or to increased future payments. 5. Specific Cases Involving Title VII and Pregnancy Congress in 1978 enacted the Pregnancy Discrimination Act (PDA) as Section 701 (k) of Title VII, 42 U.S.C. 2000e (k). Section 701 (k) provides: The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions, and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703 (h) of this title shall be interpreted to permit otherwise.... Congress was prompted to enact this amendment after the Supreme Court decisions in General Electric Co. v. Gilbert, 429 U.S. 135 (1976), and Nashville Gas Co. v. Satty, 434 U.S. 136 (1977). In Gilbert, the Court effectively overruled the unanimous conclusion of six courts of appeals by holding that the exclusion of pregnancy related disability from an otherwise comprehensive, privately funded, employee disability benefits plan did not constitute sex discrimination prohibited by Title VII. A majority of the Justices concluded in Gilbert that discrimination against pregnancy is "not a gender-based discrimination at all." Gilbert, 429 U.S. at 136. It was rather a distinction between pregnant women and non-pregnant women. Id. In Satty, the Court invalidated an employer's requirement that women forfeit all seniority for competitive bidding purposes upon return from maternity leave. The Court distinguished Gilbert by reasoning that women were not simply denied a benefit but were burdened in a manner "that men need not suffer." Satty, 434 U.S. 142. It was evident after Gilbert and Satty that the Court did not include pregnancy classifications within the prohibition of sex discrimination. This is true even though the result in Satty was favorable to women. Thus, Congress passed the Pregnancy Discrimination Act to clarify its intent to include pregnancy within the definition of sex in Title VII. During the 1982-83 term, the Court for the first time interpreted the pregnancy discrimination prohibition of the 1978 Amendment to Title VII. Newport News Shipbuilding & Dry Dock Co. v. Equal Employment Opportunity Commission, 462 U.S. 669 (1983). In the Newport News case, a male employee filed a complaint against the company with the EEOC. The company had a $500 reimbursement limit for hospital costs related to the pregnancy of an employee's wife, while placing no such limits on hospital care for employees' husbands. The company then filed a pre-emptive lawsuit for an interpretation of the law, and it was successful in the federal district court, which held that the 1978 Act protected only pregnant workers themselves. The court of appeals reversed that ruling and gave the statute a more expansive interpretation. The Supreme Court basically upheld the appeals court decision. Writing for the majority, Justice Stevens noted: Male as well as female employees are protected against discrimination. Thus, if a private employer were to provide complete health insurance coverage for the dependents of its female employees, and no coverage at all for the dependents of its male employees, it would violate Title VII... By making clear that an employer could not discriminate on the basis of an employee's pregnancy, Congress did not erase the original prohibition against discrimination on the basis of an employee's sex. In short, Congress' rejection of the premises of General Electric v. Gilbert forecloses any claim that an insurance program excluding pregnancy coverage for female beneficiaries and providing complete coverage to similarly situated male beneficiaries does not discriminate on the basis of sex. Petitioner's plan is the mirror image of the plan at issue in Gilbert. The pregnancy limitation in this case violates Title VII by discriminating against male employees. Id. at 682-683. The significance of this ruling, however, may be in the implication that the disproportionate impact analysis may not be relevant in the pregnancy discrimination context with respect to women alone. In the constitutional context, Geduldig v. Arello, supra, the Court held that showing intent was critical to establishing one's case of sex discrimination based on pregnancy. The Court indicated in its Newport News opinion that the Title VII proscription applied to both male and female employees who are discriminated against in employment. Specifically, the Supreme Court held in Newport News that company medical plans must cover the pregnancies of employees' wives to the same extent that they cover all other dependents' medical expenses. Failure to provide comparable coverage for dependents' pregnancies constituted illegal sex discrimination against male employees. Justice Stevens wrote the opinion for the Court and stated that an employer who limits pregnancy coverage for employees' wives "unlawfully gives married male employees a benefit package for their dependents that is less inclusive than the dependency coverage provided to married female employees." Id. at 685. Thus, the Court cleared up the confusion over what the Pregnancy Discrimination Act of 1978 means with respect to dependents' health coverage. The Supreme Court's next interpretation of the Pregnancy Discrimination Act (PDA) arose in the context of its review during the 1987 Term of a California State statute which requires employers to grant pregnant employees unpaid disability leave for up to four months with a right to reinstatement to the same or similar job at the end of that period. The California law is similar to that of some eight other states which mandate minimum leave and reinstatement rights for pregnant employees. The issue presented by California Federal Savings and Loan Ass'n. v. Guerra, 479 U.S. 272 (1987), was whether the preferential treatment under California law for female employees disabled by pregnancy, childbirth, or related medical conditions was inconsistent with, and therefore preempted by the PDA. By a vote of 6 to 3, the Supreme Court voted to uphold the California statute. Justice Marshall, writing for himself and four other Justices, noted first that Congress had by express provision severely limited the preemptive effect of Title VII to those state laws that "actually conflict" with federal law. To determine whether such conflict existed here, the Court examined both the legislative history and the historical context of the PDA. Justice Marshall found the former "devoid of any discussion of preferential treatment of pregnancy, beyond acknowledgment of the existence of state statutes providing for such preferential treatment." This was significant, in the majority's view, because, while aware of state laws similar to California's, including statutes in Connecticut and Montana, Congress "failed to evince the requisite 'clear and manifest purpose' to supersede them." Moreover, the historical context demonstrated that the PDA and California law "share a common goal" of "remov[ing] barriers" to full female participation in the workforce, an objective fostered by the preferential treatment of pregnancy. Finally, the state law was not invalid under Title VII because it "does not compel California employers to treat pregnant workers better than other disabled employees," Justice Marshall said. "[It] merely establishes benefits that employers must, at a minimum, provide to pregnant workers. Employers are free to give comparable benefits to other disabled employees...." Justices Brennan, Blackmun, O'Connor, and Stevens joined wholly or partially in Justice Marshall's opinion of the Court and his conclusion that Congress severely limited the preemptive effect of the federal law by leaving state fair employment laws where they were before Title VII was enacted. In a separate concurring statement, Justice Stevens added that he could not read the PDA to mandate absolute neutrality with respect to pregnancy. Justice Scalia also concurred in the judgment, concluding that the California law does not purport to require or permit any act that would be an unlawful employment practice under the PDA. Justice Marshall's opinion for the Court stressed the limited character of the benefits conferred by the California law as militating against a finding of invalidity. "The statute is narrowly drawn to cover only the period of actual physical disability on account of pregnancy, childbirth, or related medical conditions. Accordingly, unlike the protective labor legislation prevalent earlier in this century, it does not reflect archaic or stereotypical notions about pregnancy and the abilities of pregnant workers." Also relevant, perhaps, was the fact the state law provided only for unpaid leave, so that employers do not bear the far heavier burden of compensating female workers for the period of time they are disabled by pregnancy, childbirth, or related medical conditions. Note that the Court in Guerra did not read the PDA to impose a mandatory maternity leave requirement on employers, or otherwise to afford special or preferential treatment for pregnant workers. Rather, it held that Congress had in effect deferred to state authority to make policy in this area, subject only to the PDA ban on discriminatory treatment. Similarly, in Wimberly v. Labor and Industrial Relations Commission, 479 U.S. 511(1987), the Court was unwilling to read a preferential treatment mandate into a 1976 amendment to the Federal Unemployment Tax Act (FUTA), which prohibits state unemployment compensation laws that discriminate "solely on the basis of pregnancy or termination of pregnancy." 26 U.S.C. 3304 (a) (12). Involved there was a Missouri law under which all persons who leave work for reasons not causally connected to the work or the employer are disqualified from receiving benefits. A former cashier at a J.C. Penney store was denied unemployment compensation after the company refused to reinstate her upon return from pregnancy leave. In her suit, she claimed that the denial of benefits to her was illegal because it was based solely on pregnancy. The state countered, however, that she was treated the same as all other persons who voluntarily leave their jobs without "good cause attributable to the work or the employer," and that she was entitled to no special treatment under the FUTA amendment. By an 8 to O vote, the U.S. Supreme Court agreed that the Missouri practice does not discriminate on the basis of pregnancy. Justice O'Connor, writing for the Court, reasoned that, if anyone leaves his or her job for a medical reason, and the job becomes unavailable, then he or she is ineligible for benefits. Congress only intended to ensure equality of treatment for female workers unemployed because of pregnancy and did not intend to prevent the states from applying "neutral" eligibility criteria which may result in denial of benefits to pregnant women as well as other applicants. "[T]he state cannot single out pregnancy for disadvantageous treatment, but it is not compelled to afford preferential treatment," Justice O'Connor wrote for the Court. In reviewing the legislative history, the Court found no evidence that Congress intended to disqualify Missouri and other states with similar practices, but that the FUTA amendment was meant to outlaw provisions, like that in Utah, disqualifying a woman for twelve weeks prior to the expected date of childbirth, and for six weeks thereafter. In short, the Justices accepted the position of the state and the Reagan Administration that the amendment permits neutral rules, even if their impact excludes pregnant women. All members of the Court joined in the opinion, except Justice Blackmun, who took no part in the decision of the case. In summary, Title VII has provided both men and women with an important avenue for challenging sex discrimination in employment. With the emergence of more and more women in the workforce, problems stemming from the differences between men and women were inevitable, but these problems have in most cases been effectively resolved by the Court's interpreting Title VII. However, since Title VII, i.e. the PDA, only guarantees benefits to pregnant workers if similar benefits are already made available by the employer to other workers, there still remain gaps in protection of pregnancy and maternity under the law. For example, women who go out on maternity leave, like employees who take sick leave, are not necessarily guaranteed job protection and reinstatement when they return to work. This situation has led to the recent debate over whether pregnancy should be accorded special treatment under the law because equal treatment arguably affords insufficient protection of pregnant workers' rights.(13) The U.S. Supreme Court addressed this problem in the Guerra case, supra, and upheld the California statute, finding no conflict with the federal law, the PDA, which requires only equal treatment. B. Other Title VII Cases 1. Affirmative Action In Johnson v. Santa Clara County Transportation Agency, 480 U.S. 616 (1987), the Supreme Court held that a county did not violate Title VII when it considered sex among other factors in promoting a woman under a voluntary affirmative action plan. Although the plan was designed to increase the number of women and minorities in jobs where they had traditionally been underrepresented, rather than to remedy past discriminatory practices, the Court upheld the plan as a remedy for "manifest imbalance" in a "traditionally segregated job category." In 1978, the county agency had adopted a voluntary affirmative action plan that permitted consideration of the sex of a candidate for promotion within traditionally segregated job categories. Women were significantly underrepresented in the county's labor force as a whole and in five of seven job categories, including skilled crafts, where all 238 employees were men. The plan's long range goal was proportional representation, but because of the small number of positions and low turnover, actual implementation was based on short term goals which were adjusted annually and took account of qualified minority and female availability. No specific numerical goals or quotas were used. The male respondent had been one of seven candidates for promotion to road dispatcher who had been passed over in favor of a female county employee with a marginally lower overall qualification rating. The agency head testified that he had based his final selection on the "whole picture," including affirmative action concerns. In his majority opinion, Justice Brennan decided that Title VII was not coextensive with the Constitution, which means that they are not to be interpreted as having the same effect. Therefore, United Steelworkers v. Weber, 443 U.S. 193 (1979), was controlling. The Court in Weber upheld a voluntary affirmative action plan by a private employer which included a minority quota for a craft training program to remedy "manifest racial imbalance in traditionally segregated jog categories." In Johnson, the Court guided by its earlier decision and rationale in Weber, adopted a "manifest imbalance" standard that was different from the Title VII standard for proof of a "prima facie" case of discrimination. To require the employer to compile evidence that could lead to a reverse discrimination lawsuit would only be a disincentive to voluntary compliance favored by the statute. Accordingly, to justify voluntary affirmative action, the employer may rely on statistics that demonstrate a "disparity" between its minority and female workforce participation when compared to the general county labor force. To rectify the obvious pattern of female underrepresentation presented by this case, Justice Brennan emphasized, the county had established both long and short range goals that took account of the "practicalities," including the availability of jobs and qualified female candidates, rather than having adhered to "blind hiring by the numbers." Therefore, Justice Brennan concluded that because sex was "but one of numerous factors" in the promotion equation, and no qualified candidates were excluded nor unqualified advanced, there was no Title VII violation. Justice Stevens concurred that the plan was consistent with Weber, and Justice O'Connor, in a separate concurrence, provided a sixth vote for the judgment. In her opinion, however, to support a voluntary affirmative action plan, there should be "a statistical disparity sufficient to support a prima facie claim under Title VII by the employee beneficiaries of the affirmative action plan of a pattern or practice claim of discrimination." Equal Protection standards, not Title VII, should govern public employer cases, she said, and she chided the majority approach for giving too little guidance as to the requisite statistical imbalance standard. But because there were no women in skilled craft positions, and sex was only a "plus" factor, either standard was satisfied here. 2. Sexual Harassment While the problem of sexual harassment of working women has always existed, it has only been within the past decade that it has been given greater attention, and that lawsuits have been filed against employers. As more and more women enter the workplace, the matter of sexual harassment will likely receive even more attention. Since 1976, when a federal court first recognized sexual harassment as a cause of action under Title VII,(14) lower courts permitted plaintiffs two distinctly different avenues within which to make their legal challenges. The first approach required the plaintiff to show that her supervisor conditioned the granting or denial of economic benefits on the receipt of sexual favors.(15) Under the second approach, the plaintiff had to prove she was compelled to suffer "sexually stereotyped insults and demeaning propositions" in an environment dominated by hostile sexual innuendo and behavior.(16) This latter approach has been referred to as the "hostile environment" approach. In 1986, the U.S. Supreme Court held in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, that both of the aforementioned forms of sexual harassment violated Title VII. With respect to two related issues, however, the Court weakened its seemingly broad interpretation of sexual harassment. It ruled that employers in a hostile environment are not strictly liable for the harassment caused by their supervisors. The Court also held that evidence concerning the plaintiff's speech and dress was relevant to ascertaining whether the alleged sexual advances were unwelcome. Justice Rehnquist wrote the opinion for the Court. The Court rejected the bank's argument that sexual harassment cases should focus on the "tangible, economic barriers erected by discrimination." Id. at 64. Justice Rehnquist stated: First, the language of Title VII is not limited to "economic" or "tangible" discrimination. The phrase "terms, conditions, or privileges of employment" evinces a congressional intent "'to strike at the entire spectrum of disparate treatment of men and women'" in employment. Id . In addition, the Court pointed to EEOC's guidelines specifying that "sexual harassment" is a form of sex discrimination prohibited by Title VII. Justice Rehnquist noted further that "The EEOC guidelines fully support the view that harassment leading to noneconomic injury can violate Title VII." Id. at 65. The Court found that the EEOC's guidelines were well supported by and consistent with existing caselaw. The Court next discussed the elements of what constituted a valid claim of sexual harassment. Justice Rehnquist explained that, "The gravamen of any sexual harassment claim is that the alleged sexual advances were 'unwelcome'." Id. at 68. The correct inquiry thus was whether the alleged sexual advances were "unwelcome," not that the woman's "actual participation in sexual intercourse was voluntary." Id. However, Justice Rehnquist did say that a "complainant's sexually provocative speech or dress" is relevant to determining "whether he or she found particular sexual advances unwelcome." Id. at 69. Thus, the Court held there was no per se rule against the admissibility into evidence of such factors. Another defense accepted by the Court as being valid for an employer to rely on was that employers are not always automatically liable for sexual harassment by their supervisors. Thus, employers do not have to abide by a standard of strict liability, i.e. liability without notice. Justice Rehnquist specifically wrote: This debate over the appropriate standard for employer liability has a rather abstract quality about it... We...decline...to issue a definitive rule on employer liability, but we do agree with the EEOC that Congress wanted courts to look to agency principles for guidance in this area. While such common-law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer...surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. Id. at 72. In sum, Meritor was the Supreme Court's first and thus far only ruling on sexual harassment. It is significant because the Court did hold that a claim of "hostile environment" sex discrimination could be brought under Title VII.(17) The impact of the ruling is difficult to assess at this time because the Court also held that (1) Title VII did not require strict liability on the part of the employer and (2) that employers could refer to the female workers' dress, speech and the like as a defense to the sexual harassment charges. These two aspects of the Court's Meritor decision tend to weaken its initial condemnation of sexual harassment under Title VII. C. Title IX of the Education Amendments of 1972 Title IX of the Education Amendments of 1972 provides in pertinent part: "No person in the United States shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. 1681 (a). It was patterned after Title VI of the Civil Rights Act of 1964 (which prohibits discrimination on the basis of race, color or national origin in federally assisted programs or activities), 42 U.S.C. 2000d et seq., except that Title IX does not have a provision similar to section 604 of Title VI, which excludes employment from the coverage of the statute. 42 U.S.C. 2000d-3. Several issues are relevant to an analysis of Title IX and gender discrimination, such as exactly what constitutes federal assistance and whether Title IX covers programs or institutions. The Court has also had to consider whether Title IX covers employment and certain questions which have arisen over the enforcement of this statute. An examination of pertinent Supreme Court cases in this area will illustrate how the Court has interpreted Title IX with regard to these particular issues. One question that has arisen concerning the enforcement of Title IX is whether there exists an implied private right of action for vindicating violations of the statute, i.e. whether an individual may sue the institution on his or her own in order to obtain relief for being discriminated against on the basis of sex. The U.S. Supreme Court addressed this matter in Cannon v. University of Chicago, 441 U.S. 667 (1979). In Cannon, the Court held that a private right of action could be implied under Title IX. In writing for the six to three majority, Justice Stevens emphasized that the Title IX administrative remedy, the termination of federal assistance, was actually too severe to help the individual person claiming to be a victim of sex discrimination. Therefore, in order that the victim be given adequate relief, it only made sense to award individual relief to a private litigant who had prosecuted his or her own suit. A matter left open by Cannon is whether Title B also implies a private damages remedy. This question was answered in the negative by the U.S. Court of Appeals for the Seventh Circuit in Lieberman v. University of Chicago, 660 F. 2d 1185 (7th Cir. 1981). The Seventh Circuit decided that if Congress intended a damages remedy under Title IX it should have stated so explicitly in the statute itself. Since Title IX was part of a bill designed to alleviate the financial squeeze on institutions of higher education, the court said it must be deemed to be an exercise of the Congress' spending power. Spending power legislation is in the nature of a contract, and therefore, in return for federal funds, the states agree to comply with federally imposed conditions. The Supreme Court in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1(1981), held that, in order to ensure a "meeting of the minds," the conditions to be imposed by Congress must be stated in unambiguous terms. The implication of a damages remedy would impose a potentially massive financial liability upon the very institutions whose "acute financial distress" triggered the 1972 Education Amendments. Therefore, the Seventh Circuit concluded that it must assume that if Congress had intended to create a remedy for damages, it would have done so expressly. The Supreme Court ruled in North Haven Board of Education v. Bell, 456 U.S. 512 (1982), that Title IX applies to employees as well as to students. This holding resolved the uncertainty that had existed for the prior several years concerning the scope of the statute's coverage. In the North Haven case, the school received federal funds for its education programs and activities and was thus subject to Title IX's prohibition against gender-based discrimination. A tenured teacher in that school system filed a complaint that the school system had violated Title IX by refusing to rehire her after she had been out on a one-year maternity leave. HEW began to investigate the matter and tried to obtain information concerning the school board's employment practices. The board refused to cooperate on the ground that the agency lacked authority to regulate employment practices under this statute. When HEW announced that it was considering administrative enforcement proceedings, i.e. cutting off the federal assistance, the school board filed suit in U.S. district court in Connecticut. The district court invalidated the employment regulations, the Second Circuit reversed, and the Supreme Court affirmed the reversal. Justice Blackmun wrote the opinion for the Court in North Haven. The Court first examined the language of the statute. It found that Title IX's "broad directive that 'no person' may be discriminated against on the basis of gender appears, on its face, to include employees as well as students." Id. at 520. The opinion continued: Because [sec.] 901 (a) neither expressly nor impliedly excludes employees from its reach, we should interpret the provision as covering and protecting these 'persons' unless other considerations counsel to the contrary. After all, Congress easily could have substituted 'student' or 'beneficiary' for the word 'person' if it had wished to restrict the scope of [sec.] 901 (a). Id. at 521. Even though the statutory language appeared to favor the inclusion of employees in its coverage, the Court found it necessary to examine the legislative history in search of evidence whether Congress in any way meant to limit the seeming expansive language of the statute. It found no such evidence. In fact, the Court pointed to the various attempts in the early 1970's to pass legislation that explicitly banned discrimination against women in education, noting: "Although unsuccessful, these efforts included prohibitions against discriminatory employment practices." Id. at 523. While the Supreme Court in North Haven agreed with the Second Circuit's conclusion that Title IX proscribed employment discrimination in federally funded education programs, it found that the court of appeals had not paid enough attention to the "program-specific" nature of the statute. Id. at 536. The Court stressed that the agency's authority was very limited in the sense that the funding termination provision and the power to promulgate regulations thereunder were program-specific. The opinion pointed out that the legislative history of Title IX supported this interpretation. Thus, the Court concluded that "an agency's authority under Title IX both to promulgate regulations and to terminate funds is subject to the program-specific limitation of Section 901 and 902." Id. at 538. In North Haven, the Court found that the regulation was consistent with the Act's program- specificity requirement. The Supreme Court's decision in North Haven also did not resolve the question of what constituted a "program" under Title B. In fact, it specifically left the matter open for determination in a future case. Id. at 540. The decision is significant, however, in the sense that it clarified that Title IX provides a remedy for employment discrimination based upon sex. It also became clear that suing under Title IX is easier than suing under Title VII of the 1964 Civil Rights Act. The latter requires investigatory and administrative processing by the Equal Employment Opportunity Commission (EEOC) in each individual case; whereas, under Title IX, the process is faster and the enforcement mechanism potentially more effective, i.e. the institution can have its federal funding terminated. During the 1983-84 term, the U.S. Supreme Court held that (1) a private college which receives no direct federal financial assistance, but some of whose students receive federal financial aid in the form of Basic Educational Opportunity Grants (BEOGs), is subject to Title IX of the Education Amendments of 1972 which prohibits sex discrimination in "any education program or activity receiving federal financial assistance," 20 U.S.C. 1681; (2) the students' receipt of the BEOGs, either directly from the government or through the college that receives the grant from the government for that purpose, subjects only the college's financial aid program to Title IX regulation, not the entire institution; (3) the federal government may end the federal aid to the students if the college refuses to sign the proper assurance of compliance form stating that it will conduct the financial aid program in accordance with Title IX and its regulations, even though there has been no proof of actual discrimination; and (4) the college had to comply with Title IX's prohibition against discrimination as a condition for its continued eligibility to participate in the BEOG and that such requirements did not constitute an infringement of first amendment rights. Grove City College v. Bell, 465 U.S. 555 (1984). In Grove City, the Court had been confronted with two issues concerning Title IX coverage and the enforcement provision in 20 U.S.C. 1682. The first coverage-related issue was whether the receipt of federal financial assistance by students was sufficient to subject the college or university attended to Title IX. The Court answered this affirmatively and next addressed the second issue pertaining to coverage and enforcement--whether the entire institution would thus be made subject to Title IX or only a more narrowly defined part of the institution, such as its financial aid program. The Court chose the latter and held that the cutoff of federal financial assistance would be program-specific and not institution-wide. Thus, the Supreme Court applied a very narrow reading of Title IX to the Grove City College situation. It decided in this case that this law did not bar sex discrimination by the college as a whole; instead, this law affected only the department that received the federal aid, the financial aid office. In short, Title IX's compliance requirement reached only the specific program or activity receiving the federal funds and allegedly discriminating. The Court set forth this part of its holding in Part m of its decision. Justice White, writing for the majority, remarked: .. Although the legislative history contains isolated suggestions that entire institutions are subject to the nondiscrimination provision whenever one of their programs receive federal assistance, see 1975 Hearings 178 (Sen. Bayh), we cannot accept the Court of Appeals' conclusion that in the circumstances present here Grove City itself is a "program or activity" that may be regulated in its entirety. 465 U.S. 555 at 570-571. The Court also rejected the Third Circuit's assumption that Title IX applied to programs that received a larger share of the college's own resources because the federal money was earmarked for use elsewhere within the school. It rejected this theory because it was "inconsistent with the program-specific nature" of Title IX. Justice White wrote: ...Most federal educational assistance has economic ripple effects throughout the aided institution, and it would be difficult, if not impossible, to determine which programs or activities derive such indirect benefits. Under the Court of Appeals' theory, an entire school would be subject to Title IX merely because one of its students received a small BEOG or because one of its departments received an earmarked federal grant. This result cannot be squared with Congress' intent. Id. at 572-573. The Court noted further that it found "no persuasive evidence" revealing that Congress intended the enforcing agency's regulatory authority to "follow federally aided students from classroom to classroom, building to building, or activity to activity." Id. at 573. The Court concluded that, "In purpose and effect, BEOGs represent federal financial assistance to the College's own financial aid program, and it is that program that may properly be regulated under Title IX." Id. at 573-574 (emphasis added). By narrowly construing "program or activity" as used in Title IX, the Grove City Court rejected the institution-wide approach where categorical or earmarked federal assistance is involved. Unresolved by that case, however, was the status of institution-wide civil rights coverage where general unrestricted federal financial assistance to a grant recipient, as under revenue-sharing for example, is involved. Nor did Grove City provide much practical guidance as to how the "purpose and effect" standard should be applied to determine which programs and activities are receiving federal financial assistance and are thus subject to regulation under Title IX and the other program-specific civil rights statutes.(18) D. Cases Decided Under Miscellaneous Statutes In June 1981, the Supreme Court ruled that, under present federal law, the former spouse of a military service member or retiree is not entitled to any share of that member or retiree's military pension as part of a divorce property settlement in a community property state. McCarty v. McCarty, 453 U.S. 210 (1981). The McCarty Court recognized "that the plight of an ex-spouse of a retired service member is often a serious one," McCarty, 453 U.S. at 235, and invited Congress to legislatively change the situation if it so decided. Congress has now done so, with the adoption of the "Uniformed Services Former Spouses' Protection Act," Title 10 of P.L. 97-252, the Department of Defense Authorization Act. 10 U.S.C. 1401 et seq.(19) Under this Act, state courts are authorized to divide military pensions in accordance with state law; and those former spouses who were married over ten years of covered military service can have the decree directly enforced by the military. Certain former spouses who were married over twenty years of creditable service will retain certain medical, commissary, and post exchange benefits. Former spouses can also receive survivor annuities under certain circumstances. Although this Act is related to sex discrimination, it is very narrow in scope and only applicable in the situation of a military spouse seeking part of the other spouse's military pension in a divorce settlement. Thus its contribution to the evolution of gender discrimination analysis is limited. In 1984 the Supreme Court decided Heckler v. Mathews, 465 U.S. 728, and Equal Employment Opportunity Commission v. Shell Oil Co., 466 U.S. 54. These two cases are significant because of their holdings with regard to the procedural aspects of bringing a gender discrimination suit rather than for their substantive contribution. In Heckler, the Supreme Court held that the gender-based classification of the Social Security Act's pension offset exception is constitutional. Justice Brennan, delivering the opinion for a unanimous court, addressed the standing question to some extent.(20) Justice Brennan's discussion seemed to be significant because it appeared to expand an earlier Supreme Court holding which established very stringent standing requirements. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976). However, the Heckler ruling may not be as significant as originally contemplated because of the more recent decision, Allen v. Wright, 468 U.S. 737 (1984). In Wright, the Court reiterated its narrow view of standing. In this case, parents of black children attending public school claimed their children were discriminated against by being excluded from private schools. These parents did not assert that their children suffered direct harm but rather that they were harmed by the fact that federal financial aid was extended to private schools that were discriminatory, and that federal tax exemptions to such schools in their communities impaired their ability to have public schools desegregated. The Court found that these parents did not have standing to sue to force the Internal Revenue Service to adopt a more stringent procedure. Thus the importance of Justice Brennan's hint in Heckler of a more expansive view of standing is diminished in light of the Court's more recent ruling in Wright. Shell also involved a procedural requirement that was a prerequisite to Title VII litigation. This case involved a charge made by the EEOC that Shell, the employer, had violated and continues to violate Sections 703 and 707 of the Civil Rights Act of 1964, as amended by discriminating against Blacks and females on the basis of race and sex with respect to recruitment, hiring, selection, job assignment training, testing, promotion, and terms and conditions of employment. 466 U.S. 54 at 57. Subsequently, the charge was amended to allege that Shell "had engaged in the identified unlawful employment practices on a continuing basis from at least July 2, 1965, until the present." Id. at 59. However, Shell contended that the EEOC's charge was not enforceable and refused to relinquish records requested by the EEOC, even after the Commission subpoenaed them. The Supreme Court ruled that the charge was sufficient despite Shell's contention that the charge did not meet the requirements of 706 (b) of Title VII because it was "not supportable by the facts." Id. at 57. Justice Marshall, writing the opinion for the Court, formulated guidelines for cases involving patterns of discrimination, such as this one, to ensure that the requirements of Title VII are satisfactorily met. He stated in part: Insofar as he is able, the Commissioner should identify the groups of persons that he has reason to believe have been discriminated against, the categories of employment positions from which they have been excluded, the methods by which the discrimination may have been effected and the periods of time in which he suspects the discrimination to have been practiced. Id. at 73. The Court also emphasized that the purpose behind the regulations issued under 706 (b), which governs the form and content of a charge of discrimination, is to afford the employer "fair notice of the existence and nature of allegations against them," and not to inhibit the EEOC's investigatory powers. Id. at 77. With these considerations noted, the Court found that the charge in Shell met all the necessary requirements of Title VII, thus requiring Shell to provide the subpoenaed information. Shell illustrates the Court's willingness to allow suits against employers when the evidence of discrimination is not an isolated incident but rather a pattern or practice that has occurred over time. Thus the Court has chosen to leave another avenue open for gender discrimination claims. CONCLUSION During the eighteen year period between 1971 and the present, progress has been made toward achieving clarity and consistency in the area of sex discrimination law. Under the equal protection clause, the Court has done much to eliminate the division that pervaded the Court before Craig v. Boren, between those who thought sex was a suspect class, similar to race, and those who believed it should be accorded a lesser standard of review. Thus, Craig was a landmark decision for the Court in the area of equal protection and gender discrimination, as it clarified the Court's position that sex classifications would be subject to an intermediate level of scrutiny. However, it is arguable that some uncertainty may still exist on the Court, as Justice O'Connor suggested in Hogan six years after the Craig decision that the Court may yet declare sex a suspect classification. At this writing, there has been no indication that the Court will do so, thus leaving the intermediate standard of Craig intact. After Craig, the Court attempted to clarify the analysis necessary under the intermediate substantial relationship test. Early cases involving gender discrimination and the Social Security Act are relevant to the two concepts of upholding ameliorative legislation, and rejecting legislation based on outmoded stereotypes. Webster and Goldfarb, two Social Security decisions, are significant because of the way the Court viewed the disparate treatment in each case. In Webster, the Court held that where there is disparate treatment of the sexes as a result of legislation directly addressing discrimination (which also serves to remedy it) such a provision is constitutional at least as an interim measure. In Goldfarb, because the disparate treatment of the sexes was regarded by the Court to be the by-product of traditional stereotypes and was not specifically aimed at redressing past injustices, the Court regarded such unequal treatment based on sex to be unconstitutional. After Webster and Goldfarb, it was clear that the Court was reluctant to uphold any gender classification unless its purpose was ameliorative. Orr v. Orr reinforced the Court's position stated in Webster. The holding in Orr prohibited discrimination based on traditional stereotypes in the context of alimony obligations upon divorce. Because the Court in Orr would not allow alimony obligations to be imposed on husbands and not wives, it demonstrated that the intermediate standard of review was the same regardless of whether women or men were disadvantaged by the classification. Also in the family law context, the Court decided Caban and Parham, illustrating the difficulty the Court has faced in arriving at predictable results when applying the intermediate standard of review. Statutory differentiation between unwed mothers and fathers received different treatment through the Court's perception of the justifications and presumptions underlying each. The Court settled one aspect of gender discrimination law during 1979. In Feeney, it refused to strike down a facially neutral law which had a discriminatory effect on women because discriminatory motive or intent was not shown. The Court held that discriminatory motive or intent must be shown in sex discrimination cases, as it must in other areas under the equal protection clause, in order to establish a prima facie case. Up until 1980, the Court had at times implied that benign classifications (i.e. classifications benefiting women) would be subject to lesser scrutiny than other classifications. However, in Wengler the Court took a firm position that the substantial relationship test should be used in all gender discrimination cases without regard to whom the classification benefits. Thus, after Wengler the Court had reached a certain level of stability in the gender discrimination area under the equal protection clause. The decisions during the next term seemed to retreat from the firm position taken in Wengler. The Court used language during the 1980 Term that did not have the strength and force of that used in the Wengler case. In Michael M. and Rostker, it ruled that the males and females involved were not similarly situated, thus it did not invalidate the statutory classifications in either instance. The Court in 1982 decided Hogan, the last gender discrimination decision based on equal protection grounds at the time of this writing. In Hogan, the Court was concerned with the use of a benign or remedial purpose as a pretext, while actually reinforcing traditional stereotypes. In an attempt to remedy this problem, the Court held that a remedial purpose is only valid if persons of the gender benefitted by this action were actually disadvantaged by the classification in the past. Hogan illustrates the Court's constant awareness of the different ways in which traditional stereotypes were still perpetuated. The gender discrimination cases decided under Title VII of the Civil Rights Act of 1964 underwent a different analysis from that used under the equal protection clause. The Court in Griggs decided for the first time that adverse impact was enough to make out a prima facie case under Title VII. In Dothard, it indicated that the ruling in Griggs pertained to gender as well as race. In Watson the Court concluded that a disparate impact analysis was sufficient to establish one's case of discrimination when the employer used subjective standards. Watson was thus an extension of Griggs which applied in situations where the employer based his decision on objective standards. However, in its 1988-89 Term in Wards Cove the Court discredited the Griggs decision and rationale respecting the disproportionate impact analysis. Therefore, now there may be few if any operational advantages for Title VII plaintiffs under the disparate impact approach. As discussed earlier, Wards Cove may have effected a de facto merger of disparate treatment (intentional discrimination) and disparate impact (effects discrimination) so that now some showing of discriminatory intent may be required in all Title VII cases. Significant decisions under Title VII have been rendered with respect to equal pay, pensions and pregnancy. In the equal pay area Gunther made it clear that valid claims of sex-based wage discrimination could be made despite the fact that males and females involved had different jobs if there was evidence of intentional discrimination. However, the Supreme Court has yet to address the question whether a cause of action could be stated when one sex's lower wages were not attributable to intentional discrimination. In the contexts of pension and insurance, the Court examined a situation in which women had to contribute more than similarly situated males to obtain the same benefits upon retirement (Manhart) and another situation in which women received smaller annuity payments than men in a deferred compensation plan (Norris). The Manhart decision established that mandatory unequal pension contributions by employees to an employer sponsored or administered retirement program violated Title VII. In Norris, the Court required employers to treat employees as individuals, specifically rejecting generalizations based on group experiences. Moreover, employers could not escape liability for discrimination on the theory that the insurance companies were the actual users of the sex-based tables. The Court also found it irrelevant whether a plan was voluntary or mandatory. The thrust of Norris and Manhart was that employers must consider employees on an individual basis and therefore were not permitted to use sex-based actuarial tables in the pension or insurance contexts. The Florida case made it clear that employees who retired after Manhart but before Norris are not entitled to have their pensions adjusted upward to the level that would have existed if the employer had remedied its plan at the time of Manhart. The Court specifically noted that retroactive awards are generally not allowed in the pension context. In the pregnancy area, there have been three Supreme Court decisions since the adoption of the Pregnancy Discrimination Act of 1978. The first case, Newport News Shipbuilding, is significant because of its interpretation that the Pregnancy Discrimination Act applies to the dependents of both male and female employees who are discriminated against. In the second decision, Guerra, the Court concluded that the California law which gave women job reinstatement rights did not conflict with Title VII and therefore was not preempted by the federal law. The majority did not see the California statute as giving women preferential treatment. Similarly, in Wimberly, the Court upheld a Missouri law which refused special treatment to pregnant women in the unemployment compensation context. The Court in interpreting Title IX of the Education Amendments of 1972 has clarified many issues associated with this avenue for gender discrimination litigation. After Cannon, there was no question that a private right of action could be implied under Title IX, and North Haven Board of Education removed any doubt that Title IX covered employees as well as students of a school. The most significant case in the Title IX area recently was Grove City. The Court in Grove City applied a narrow reading of Title IX's enforcement mechanism. The Court specifically held that the termination of federal money as a means of enforcing Title IX reached only the specific program or activity receiving the federal funds and not the entire institution. The impact of this decision has essentially been mooted by the 100th Congress' passage of the Civil Rights Restoration Act of 1987, P. L. 100-259. This legislation is designed to "restore the...broad institution-wide application" of certain federal civil rights laws, and thus, effectively overturns the Grove City decision. Two cases decided by the Supreme Court in 1984, Shell and Heckler, are significant because of their holdings with regard to the procedural aspects of bringing a Title VII gender discrimination suit. These two cases illustrate the Court's intention to keep access to the courts clear from procedural barriers placed in the way of worthwhile claims in the sex discrimination context. The Court recently handed down important rulings with respect to public accommodation, affirmative action, and sexual harassment. All of these decisions for the most part are favored by those who support women's achievement of equality. In the Rotary case, the Court held that a California law requiring the admission of women into Rotary Clubs in the state did not violate the first amendment. The New York State Club Assn., Inc. case clarified that state and local governments have the authority to regulate the membership practices of private business-oriented service clubs. With respect to affirmative action, the Court ruled in Johnson that a county could consider gender among other factors in promoting a woman under a voluntary affirmative action plan, even where there was a man arguably better qualified for the position. Finally, in the sexual harassment context, in Vinson, the Supreme Court recognized that sexual harassment was a valid cause of action under Title VII. The Vinson case was qualified, however, by the fact that the Court ruled that 1) employers could not be held strictly liable for the harassment actions of their supervisors and 2) evidence regarding the employee's speech and dress was relevant for determining whether the alleged sexual advances were unwelcome. In summary, over the last eighteen years the Supreme Court has rendered significant decisions in the area of gender discrimination. The Court will also be hearing and deciding more cases in the future. While the Court has resolved numerous questions concerning gender-based discrimination law in the past, there are still problems awaiting future consideration, e.g. whether the Court's interpretation of"comparable worth" presents a cognizable cause of action under Title VII absent proof of intent to discriminate. The consideration of this and other issues in the future will add to the body of law that has been developing with respect to sex-based discrimination. [signature] Karen J. Lewis Legislative Attorney American Law Division ENDNOTES 1. Karen Crump, a Legislative Research Assistant, assisted in the updating of this report. 2. The fourteenth amendment provides, in pertinent part: "No state shall...deny to any person within its jurisdiction the equal protection of the laws." The fifth amendment prohibits Congress from depriving any person of "life, liberty, or property, without due process of law." "Although the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process.'" Johnson v. Robison, 415 U.S. 361, 364 n.4 (1974). 3. Shull, Reinforcement of Middle Level Review Regarding Gender Classifications: Mississippi University for Women v. Hogan, 11 Pepperdine L. Rev. 421, 431(1984). 4. Shull, supra. 5. During its 1988-89 Term, the Court decided a case involving the rights of a biological father. Michael H. v. Gerald D., 109 S.Ct. 2333 (1989). The Court held that a California statute containing a presumption that a child born to a married woman living with her husband is a child of the marriage, and allowing rebuttal only by the husband or wife, does not deny the biological father due process by preventing him from establishing paternity. The Court's decision was based on due process and not equal protection; however, there were allegations of violation of equal protection made in the briefs submitted. The decision is significant because it indicates that a majority of the Court recognizes a "liberty" clause substantively protects. The justices, however, are divided concerning the method of identifying protectable "liberty" interests. 6. Comment, Wengler v. Druggists Mutual Insurance Co.--However the Discrimination is Described, If Gender Based, the Test Applies, 1981 Utah L. Rev. 431 (1981). 7. Shull, supra, at 438. 8. The Supreme Court 1981 Term, 96 Harv. L. Rev. 62, 120 (1982). 9. But c.f. Forrester v. White, 484 U. S. 219 (1988), which was a constitutional challenge brought by a female probation officer alleging that she was demoted and discharged on account of her sex in violation of the equal protection clause of the fourteenth amendment; however, this case was brought under 42 U. S. C. 1983. The Court held that a state court judge does not have absolute immunity from a damages suit under section 1983 for his decision to demote and dismiss a court employee. 10. For a more complete discussion of burden of proof under Title VII, see CRS Report 89-439 A, Dale, Federal Civil Rights Decisions of the U.S. Supreme Court during the 1988-89 Term, July 28, 1989. 11. Women, Work, and Wages: Equal Pay for Jobs of Equal Value, Committee on Occupation Classification and Analysis, Assembly of Behavioral and Social Sciences, National Research Council, 91-2 (1981). 12. The U.S. Ninth Circuit Court of Appeals, in a pair of decisions, has roundly rejected a theory of Title VII liability predicated on a public employer's failure to pay equal wages to male and female employees alleged to be performing duties of "comparable worth." AFSCME v. State of Washington, 770 F. 2d 1401 (9th Cir. 1985); Spaulding v. University of Washington, 740 F. 2d 686 (9th Cir. 1984). The court in both instances rejected the use of the "disparate impact" theory in a comparable worth case and recognized the importance which the market plays in the wage setting process. With respect to the "disparate treatment" or intent aspect of discrimination, the Ninth Circuit concluded in both cases that the evidence was such that it did not rise to the level of making out a prima facie case of discrimination under Title VII. In American Nurses' Association v. State of Illinois, 783 F. 2d 716 (7th Cir. 1986), the Seventh Circuit held that the Nurses' Association had no cause of action against the State of Illinois based strictly on a "comparable worth" study. It remanded the case, however, to give the plaintiffs an opportunity to try to prove intentional discrimination, i.e. showing that the overpaying of workers in predominantly male jobs because most of those workers were male was caused by intentional discrimination on the part of the employer. 13. Williams, "Equality's Riddle: Pregnancy and the Equal Treatment/ Special Treatment Debate," N.Y.U. Review of Law and Social Change, Vol. XIII, No. 2, 325 (1984-1985). 14. Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976), rev'd on other grounds sub nom. Williams v. Bell, 587 F. 2d 1240 (D.C. Cir. 1978). 15 Barnes v. Costle, 561 F. 2d 983 (D.C. Cir. 1977). 16. Bundy v. Jackson, 641 F. 2d 934, 944 (D.C. Cir 1981). 17. In 1988, the U.S. district court, District of Columbia, followed the Supreme Court ruling in Meritor and upheld a "hostile environment" sex discrimination claim under Title VII. Broderick v. Ruder, 685 F. Supp. 1269 (D.D.C. 1988). 18. Over President Reagan's veto, the 100th Congress approved the Civil Rights Restoration Act of 1987, P.L. 100-259, which effectively overturns the Court's holding and rationale in Grove City. Congress declared in findings portion of this legislation that: "(1) certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon the broad application of Title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and title VI of the Civil Rights Act of 1964; and (2) legislative action is necessary to restore the prior consistent and long-standing executive branch interpretation and broad, institution-wide application of those laws as previously administered." P. L. 100-259, Section 2. 19. The Supreme Court recently interpreted this law in Mansell v. Mansell, 109 S.Ct. 2023 (1989). It held that the plain language of the Former Spouses Protection Act prevents state courts from treating as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans' disability benefits. The Act grants to state courts the authority to divide disposable retired pay as excluding amounts waived in order to receive disability payments. 20. Standing is an element of the cases and controversies requirement in the US Constitution, Art III, section 2, cl.1. It requires that a party seeking relief in federal court have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which a court 80 largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204 (1962). The requirement of a "personal stake" has been refined further by the Supreme Court to require both a "distinct and palpable injury" to the plaintiff, Warth v. Seldin, 422 U.S. 490, 501 (1975), and a "fairly traceable" causal connection between the claimed injury and the challenged conduct. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261(1977). See also Simon v. Eastern Ky. Welfare Rights Org, 426 U.S. 26, 41-42 (1976), and Duke Power Co. v. Caroline Environmental Study Group, Inc., 438 U.S. 59, 72 (1978). A SELECTIVE BIBLIOGRAPHY A. Leading U.S Supreme Court Decisions on Sex Discrimination Anderson v. Bessemer City, North Carolina, 470 U.S. 564 (1985). Arizona Governing Committee v. Norris, 463 U.S. 1073 (1983) Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987). Caban v. Mohammed, 441 U.S. 380 (1979). Califano v. Goldfarb, 430 U.S. 199 (1977). Califano v. Jablon, 430 U.S. 924 (1977). Califano v. Silbowitz, 430 U.S. 924 (1977). Califano v Webster, 430 U.S. 313 (1977). Califano v. Westcott, 443 U.S. 76 (1979). California Federal Savings and Loan Ass'n. v. Guerra, 479 U. S. 272 (1987). Cannon v. University of Chicago, 441 U.S. 667 (1979). City of Los Angeles, Department of Water and Power v. Manhart, 435 U.S. 702 (1978). Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974). County of Washington, Oregon v. Gunther, 452 U.S. 161 (1981). Craig v. Boren, 429 U.S. 190 (1976). Dothard v. Rawlinson, 433 U.S. 321 (1977). Equal Employment Opportunity Commission v. Shell Oil Co., 466 U.S. 54 (1984). Florida v. Long, 108 S.Ct. 2354 (1988). Forrester v. White, 484 U. S. 219 (1988). 728 (1984). Frontiero v. Richardson, 411 U.S. 677 (1973). Geduldig v. Aiello, 417 U.S. 484 (1974). General Electric Co. v. Gilbert, 429 U.S. 135 (1976). Grove City College v. Bell, 465 U.S. 555 (1984). Heckler Secretary of Health and Human Services v. Mathews, 465 U.S. 728 (1984). Hishon v. King and Spalding, 467 U.S. 69 (1984). Johnson v. Transportation Agency, Santa Clara County, California, 480 U. S. 616 (1987). Kahn v. Shevin, 416 U.S. 351 (1974). Kirchberg v. Feenstra, 450 U.S. 455 (1981). Massachusetts Personnel Administrator v. Feeney, 442 U.S. 256 (1979). Mathews v. DeCastro, 429 U.S. 181 (1976). McCarty v. McCarty, 453 U.S. 210 (1981). Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986). Michael M. v. Superior Court, 450 U.S. 464 (1981). Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). Nashville Gas Co. v. Satty, 434 U.S. 136 (1977). Newport News Shipbuilding and Dry Dock Co. v. Equal Employment Opportunity Commission, 462 U.S. 669 (1983). New York State Club Assn., Inc. v. City of New York, 108 S.Ct. 2225 (1988). North Haven Board of Education v. Bell, Secretary of Education, 456 U.S. 512 (1982). Orr v. Orr, 440 U.S. 268 (1979). Parham v. Hughes, 441 U.S. 347 (1979). (1987). Price Waterhouse v. Hopkins, 109 S.Ct. 1775 (1989). Railroad Retirement Board v. Kalina, 431 U.S. 909 (1977). Reed v. Reed, 404 U.S. 71 (1971). Roberts v. U.S. Jaycees, 468 U.S. 609 (1984). Rostker v. Goldberg, 453 U.S. 57 (1981). Schlesinger v. Ballard, 419 U.S. 498 (1974). Stanton v. Stanton, 421 U.S. 7 (1975). Wards Cove Parking Co. v. Atonio, 109 S.Ct. 2115 (1989). Watson v. Fort Worth Bank & Trust, 108 S.Ct. 2777 (1988). Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142 (1980). Wimberly v. Labor and Industrial Relations Commission. 479 U. S. 511 (1987). United Air Lines Inc. v. Evans, 431 U.S. 553 (1977). B. Law Review Articles Abrams, The State of the Union: Civil Rights: Gender Discrimination and the Transformation of Workplace Norms, 42 VANDERBILT L. REV. 1183 (1989). Chamallas, Exploring the "Entire Spectrum" of Disparate Treatment Under Title VII: Rules Governing Predominantly Female Jobs, 1984 UNIVERSITY OF ILLINOIS L. REV. 1 (1984). Comment, Board of Directors of Rotary International v. Rotary Club of Duarte: Prying Open the Doors of the All-Male Club, 11 HARVARD WOMEN'S L. J. 117 (Spring 1988). Comment, Obscuring the Struggle: Sex Discrimination, Social Security, and Stone, Seidman, Sunstein & Tushnet's Constitutional Law, 89 COLUMBIA L. REV. 264 (1989). Comment, Sex Discrimination and the Fourteenth Amendment: Lost History, 97 YALE L.J. 1153 (1988). Comment, Wengler v. Druggists Mutual Insurance Co. -- However the Discrimination is Described, If Gender Based, the Test Applies, 1981 UTAH L. REV. 431 (1981). Dow, Sexual Equality, The ERA and the Court-- A Tale of Two Failures, 13 NEW MEXICO L. REV. 53 (1983). Freedman, Sex Equality, Sex Differences and the Supreme Court, 92 YALE L. J. 913 (1983). Kelley, Roberts v. United States Jaycees: How Much Help for Women?, 8 HARVARD WOMEN'S L. J. 215 (Spring 1985). Law, Rethinking Sex and the Constitution, 132 UNIVERSITY OF PENNSYLVANIA L. REV. 955 (1984). Loudon, Applying Disparate Impact to Title VII Comparable Worth Claims: An Incomparable Task, 61 INDIANA L. J. 165 (Spring 1986). Note, Clarifying the Standards of Hostile Working Environment Sexual Harassment, 25 HOUSTON L. REV. 441 (1988). Note, Clearing the Mixed-Motive Smokescreen: An Approach to Disparate Treatment under Title VII, 87 MICHIGAN L. REV. 863 (1989). Note, Getting Women Work That Isn't Women's Work: Challenging Gender Biases in the Workplace Under Title VII, 97 YALE L. J. 1397 (1988). Note, His Honor, the Employer -- No Longer Absolutely Immune For Hiring Decision: Forrester v. White, 57 UNIVERSITY OF CINCINNATI L. REV. 1141 (1989). Note, Pregnancy and Employment: Three Approaches to Equal Opportunity, 68 BOSTON UNIVERSITY L. REV. 1019 (1988). Note, Title VII: Application of Impact Analysis to Subjective Employment Criteria, 24 HARVARD CIVIL RIGHTS-CIVIL LIBERTIES L. REV. 264 (1989). Note, Transportation Agency: Affirmative Action Expanded Under Title VII, 18 GOLDEN GATE UNIVERSITY L. REV. 567 (1988). Note, The United States Supreme Court Weighs Statistical Imbalance in Favor of Affirmative Action, 21 JOHN MARSHALL L. REV. 593 (1988). Note, Voluntary Affirmative Action Plan Authorizing Sex Based Preferences in Promotions for Positions in Which Women are Significantly Underrepresented does not Violate Title VII, 65 UNIVERSITY OF DETROIT L. REV. 861 (1988). Note, Watson v. Fort Worth Bank and Trust: A Plurality's Proposal to Alter the Evidentiary Burdens in Title VII Disparate Impact Cases, 67 NORTH CAROLINA L. REV. 725 (1989). Olsen, A Step Toward Insurance Equity: Arizona Governing Committee v. Norris. 7 HARVARD WOMEN'S L. J. 251 (Spring 1984). Radford, Wimberly and Beyond: Analyzing the Refusal to Award Unemployment Compensation to Women Who Terminate Prior Employment Due to Pregnancy, 63 NEW YORK UNIVERSITY REV. 532 (1988). Selden, Employer Liability for "Hostile Environment" Sexual Harassment, Meritor Savings Bank, FSB v. Vinson, 31 HOWARD L. J. 51 (1988). Shull, Reinforcement of Middle Level Review Regarding Gender Classifications: Mississippi University for Women v. Hogan, 11 PEPPERDINE L. REV. 421 (1984). Vaughan, The Reciprocity of Legal Rights and Responsibilities: Refocusing the Craig Test in Evaluating Gender-Based Discrimination Under the Equal Protection Clause, 23 SANTA CLARA L. REV. 237 (1983). Weinzweig, Discriminatory Impact and Intent Under the Equal Protection Clause: The Supreme Court and The Mind-Body Problem, 1 LAW & INEQUALITY 277 n.2 (November 1983).