Social forces and legal doctrines
10 Recognize enduring vestiges of historical and economic discrimination ( in
employment, voting, women as chattel, MWPA,
professional exclusion, etc.).Traditional notions of women and their roles
persist and are supported by most major social institutions, schools, churches,
families, the media; women are defined by motherhood and economic dependency;
stereotypes continue of women as fragile, domestic and less capable workers.
Poverty, which also encompasses a lack of power and voice, is cyclical.
5 Women often make career sacrifices during marriage; women are more often the
primary caregivers for children; and domestic labor is unpaid
5 Women are disproportionately represented in low wage
“women’s”occupations (jobs that accommodate family life); sex bias, wage
discrimination, glass ceiling, and subtle forms of exclusion exist in the
marketplace. Price Waterhouse.
5 Some women—lesbians—are denied economic benefits of marriage (inheritance,
Social Security, taxes, insurance, etc.), Defense of Marriage Act, and domestic
partnership legislation, which is only available in some municipalities and
Vermont, does not afford equivalent benefits.
10 At divorce, judges economically
penalize sexual misconduct of women, women sacrifice economic resources for
custody; women usually receive only temporary and inadequate rehabilitative
alimony; and following divorce, women’s standard of living declines
(approximately 30% while men’s increases about 10%) in part because they are
awarded custody more often and in part because they have not been advancing
their careers. Holden & Smock. Nonpayment of child support is common.
5 Domestic violence affects women’s standard of living, Congressional findings
in VAWA, but in United States v. Morrison, in striking down of the civil
remedy provision of VAWA, the Court denied the impact of violence against women
5 Welfare (AFDC/TANF) presumptions regarding nuclear families; Social Security
amounts are based on work lives; although Pregnancy Discrimination Act is
helpful, states can constitutionally deny pregnancy benefits, Geduldig.
5 Abortion restrictions, such as 24 hour waiting period, Casey, and no
public funding for medically necessary abortions, Harris v. McCrae, force
women into maternal roles and impair earning capacity.
5 Women are flatly denied some employment opportunities and subtly denied others
(e.g., Dothard v. Rawlinson, women can’t be prison guards because they
are vulnerable; Omaha Girls Club, single pregnant (employed) women are
bad role models; Feeney, veterans’ preference; Bruno v. City of
Crown Point, employer questions about family responsibilities acceptable).
5 EEOC v. Sears: the theory that women choose economic disadvantage is
widely accepted; Judge v. Marsh assumes women cannot be economically
marginalized by more than two (protected category) facets of their identities
5 Courts refuse to use comparable worth theories, AFSCME and Gunther,
and no federal comparable worth statute exists. Equal Pay Act and Title VII cannot reach occupational sex
Feminist legal theory tools for addressing
5 MacKinnon’s dominance theory translated concepts of sexual harassment into
tools to remedy workplace discrimination; the focus on power inequities and call
for institutional changes holds promise to redress economic imbalances.
5 Consciousness raising (and addressing the problem of false consciousness) as a
methodology to raise awareness of female poverty.
5 Theories of cultural feminism may, in the long run, cause an emphasis on and
valuing of caregiving and nurturing, and some adaptation of workplaces, but in
the shorter term, they may overly connect women and caregiving. Robin West.
Difference theorists may argue successfully for specific compensatory economic
provisions, such as pregnancy benefits or adaptive work schedules.
5 Equal treatment theory focuses on precisely the same benefits for men and
women; query whether the male standard is bad for women in the economic realm?
5 Precepts of pragmatic feminism—that truth is plural and avoiding single or
universal or fixed solutions to complex economic problems—may offer flexible
5 While many women share conditions of economic oppression, Cain and Harris
caution about anti-essentialism and urge recognition of heterosexist and ethnic
subtexts: the interplay of race, gender, orientation, and class (e.g., white
women earning 76 cents on the dollar, while black women and Latinas earn 57 and
43 cents respectively).
5 Specific tying of theorists to poverty question.
5 Weak to no quid pro quo case. Single solicitation of a date by Ballard, but
nothing job-related conditioned on its acceptance, no retributive treatment.
Never directly complained about quid pro quo
5 Hostile environment claim (define: unwelcome, sufficiently severe and
pervasive, on the basis of sex, creates intimidating, offensive or hostile
5 Bitches = hostility based on sex, although swearing may be equal opportunity;
hot comment, bumping backside, compliments, and date request = sexual object,
but these factually may be he said/she said and not publicly verifiable.
10 Is the pattern of conduct
sufficiently severe or pervasive to alter the conditions of Galloway’s
employment and create an abusive work environment? Over two years,
pattern—referred to women as bitches, used the “F” word, comment on hot,
bumped her backside with a box, looked at her chest, told her she was beautiful,
asked about her personal life, and once asked her out on a date. Ballard would
argue the events were innocuous, isolated in time, not a pattern, no alteration
of working conditions.
5 Was it unwelcome? Meritor Bank
v. Vinson. Galloway herself
used swear words, but employee participation in some banter is not consent to
improper touching or gender-specific foul language. Any evidence that she
indicated she found the comments offensive?
5 Oncale: “Title VII is not a civility code”; could these be
considered roughhousing, teasing, and horseplay, just good-natured fun in an
automotive parts plant?
5 Were her working conditions affected? Galloway
claims the swearing made her “extremely uncomfortable” and the extra
attention made her nervous. The harassment need not cause tangible economic or
psychological injury, Harris v. Forklift.
5 Query what standard would be applied: reasonable person or reasonable woman, Ellison
v. Brady (minority position)
5 GM Company liability. Ellerth
v. Burlington Industries. Vicarious liability for a hostile environment
created by a supervisor. But if no tangible job consequences (and on the hostile
environment claim there was no significant change in employment status nor any
direct economic harm) GM can raise the affirmative defense.
10 GM affirmative defense: it exercised reasonable care to prevent (the posted
SH policy) and correct promptly. DeAngelis arguably exercised reasonable care to
investigate (by interviewing Ballard and the other supervisors) and take
immediate and appropriate corrective action (meeting with supervisors, reference
to SH policy, explicitly stated he would not tolerate any more complaints, and
report back to Galloway). Intlekofer
v. Turnage. These actions were reasonably calculated to end the reported
harassment and they did. What more
could the company have done? The real question for a viable affirmative defense
is whether Galloway unreasonably failed to take advantage of any preventive or
corrective opportunities or otherwise avoid harm (and facts do not indicate that
she has yet reported retaliative behavior). “And” or “or”?
10 Retaliation claim. Retaliation
by co-workers who shunned her and gave her menial jobs. Need to show a causal
link between Galloway’s action and the retaliation. Are there any other,
perhaps performance-based explanations for assignment of menial tasks to her?
Also need to show an “adverse employment action.”
The Circuits have different standards for this (5th & 8th
Circuits have a narrow definition: only ultimate employment decisions, such as
discharges, will support; the 10th Circuit asks whether the action
“materially affects terms, conditions or privileges”; the EEOC says “any
adverse treatment, if it is based on a retaliatory motive”).
5 Several angry glances/cold treatment by Ballard probably insufficient. One
question is whether the co-worker retaliation was prompted by Ballard, since,
according to Kessler, he made comments about the situation to several male
5 Company liability on retaliation claim. The retribution is by co-workers, so
company liability will depend on a negligence standard: whether GM knew or
should have known of retaliative behavior and did nothing to stop it.
No facts on whether company knew or had the opportunity to cure
5 Need more information before proceeding; advise her to report retaliation
behaviors and Kessler’s comments tracing the retaliation to Ballard.
5 Possible tort claims not subject to TVII’s aff def or compensatory damages
10 Innovative arguments/thorough analysis