The Civil Rights Act of 1964 is a landmark piece of legislation in the United States of America constitution that outlaws any form of discrimination. It is divided into ten titles each covering a particular area of discrimination ranging from the barring of unequal voter registration in Title I to establishment of Community Relations Service to assist in solving community disputes pertaining discrimination to people of color in Title X.
Title VII of the act comprehensively offers protection against all forms of employment discriminations it has got four core purposes; to end employment discrimination based on a number of criteria including sex, color, race, religion, and national origin; it covers most cadres’ of employers, labor unions, employment agencies and entities providing apprenticeship and training programs; it exempts small employers (who has few than 15 employees), as well as small agencies, unions, etc. and to some extend religious organizations are also exempted. It also offers a comprehensive list of discriminatory practices including retaliatory behavior that employers may practice on their employees for taking part in any of the Title VII proceedings.
According to the act, three theories of discrimination are emphasized: 1) Facial discrimination – that is explicitly based on sex distinction: 2) Disparate Treatment, and: 3) Disparate Impact. Under the disparate treatment theory, employers are given a room to argue a Bona Fide Occupational Qualification (BFOQ) defense even if a plaintiff may prove discrimination.
One such case involving BFOQ is that of Wyman & Rights LLP, a law firm launched in 1980 that specializes in women’s rights litigation. The firm has got 20 partners and 40 associates, all women. Despite men making 20% of the total yearly job applications none has ever been hired by the firm. A graduate of a prestigious law school, Mr. G. I. Joe has sought to file a claim based on Title VII of the Civil Rights Act of 1964 challenging the firms hiring practices. In retaliation, the managing director contends that the firms hiring practices are purely within the provisions of Title VII, theory of Disparate Treatments BFOQ clause.
Mr. Joe’s case has got a strong backing from Title VII of the Civil Rights Act of 1964, since Wyman & Rights does not fall in any category of the Titles exemptions. Though, the title gives an employer a chance to challenge plaintiffs’ accusations of discrimination using the theory number one of the title. According the theory some discriminatory cases can be disputed especially if they do not meet the Bona Fide Occupation Qualification (BFOQ) that provides that an employer can discriminate based on the nature of work in question. However, for a claim to qualify BFOQ defense a rigorous requirements have to be met, which are what gives Mr. Joe a LIFELINE in his case.
The court will most likely view both parties as having grounds for their arguments, Wyman & Rights discriminative hiring practices are guided by the fact that it deals with women litigations ONLY which is not unlawful based on BFOQ clause 703 (e) that states, “it shall not be unlawful employment practice for an employer to hire and employ employees… on the basis of his or her sex…in those certain instance where…sex…is a bona fide occupational qualification reasonably necessary to the normal operation of that business or enterprise.”
However, going by section 703(a) (1) of the Title VII the court may rule the case in favor of Joe, as was in UAW v. Johnson Contraction, Inc., the court found Johnson’s policy of barring women except those whose fertility was medically documented from doing in lead emitting sections of the firms’ battery manufacturing. This was based on the “essence of the business” that led to the conclusion that sex was not a BFOQ reasonably necessary to the normal operation of the particular business.
Joe’s case is prototype to City of Los Angeles v. Manhart where the Los Angeles Department of Water and Power passed a policy that required women workers to make larger contributions to its pension scheme because research indicated that women tend to live longer than men; further, it (Department pension scheme) argued that the policy was pegged on longevity rather than sex. Their argument was found to be immaterial by the Court; the judges asserted that, “they found no other factor other than sex” and therefore concluded that the Department pension scheme policy was in contravention of 703(a) (1) of the Title VII.
On the other hand, an interpretation of Dothard v. Rawlinson case that was based on sexual discrimination indicates that Joe v. Wyman & Rights could be ruled in favor of Joe. In that case, the plaintiff’s (Rawlinson – a woman) application for the post of a “correctional counselor” (prison guard) in Alabama was rejected based on Alabama statutes which restricted potential applicants to be over 5 feet 2 inches in height and 120 pounds. In the ruling the court challenged the regulation as not permissive under
Title VII and that it was based on stereotyped characterizations of sex, and, rejected appellants “bona fide occupational qualification” defense which was based under section 703(e) of Title VII, and argued that in pursuant to section 7003(a) (1) (2) being a male was not a BFOQ for the job of a ‘correctional counselor’. In regards to Diaz v.
Pan Am (Diaz Test), the Court in pursuant to section 7003(a) (1) faulted what it deemed as customer preferences; “that customer preferences did not outweigh the non-discriminatory objective”. Pan Am Airlines had declined hiring Diaz, (a man) on grounds that only women were best suited for the post of in-flight attendance as they were better placed to perform non-mechanical tasks better than men. This is what the court argued in conclusion,
“The primary function of the airline is to transport of passengers from one to place to another. While a pleasant environment, enhanced by obvious cosmetic effect that female stewardesses provide as well as… their apparent ability to perform the non-mechanical functions of the job in a more effective manner than most men, may all be important, they are tangential to the essence of the business involved. No one has suggested that having male stewards will so seriously affect the operation of an airline as to jeopardize or even minimize its ability to provide safe transportation from one place to another.”
NB: this case is very similar to Joe’s case, since just as Pan Am argued, Wyman & Rights law firm seems to base its arguments on the same (customer preferences).
In Weeks v. Southern Bell Tel. & Tel. (Weeks Test) the court contended that, “The wisdom of the premise of Title VII (703 (a) (1) demands that an employer should not judge the ability of a person based the characteristics of a group but should consider individual capabilities.” also gives Joe’s case legal backing as Wyman & Rights as it was held by Court, will have to prove factually (not on assumptive or stereotype basis) that Joe and other men cannot substantially perform safely and efficiently the duties of the job involved.
In a similar case, Rosenfeld v. Southern Pacific Co. (Rosenfeld Test) that was concluded in pursuant of section 706 (f) of the Title II of the Civil Rights Act of 1964, Joe’s case has a strong likelihood of being concluded in his favor. Rosenfeld, a woman was denied a position of an agent-telegrapher by Southern Pacific Company on the basis that the post was too demanding (it involved many work-hours and involved lifting of heavy things) and therefore ‘only men’ could fit the position.
The Court in pursuant of section 703 (a) (1) of the Title II of the Civil Rights Act of 1964, that asserts, “Sexual characteristics, rather than characteristics that might, to one degree or another, correlate with a particular sex, must be the basis for the application of the BFOQ exception,” as was in the ruling of Dothard v. Rawlinson found South pacific Co. arguments short of alleging such a basis. In Dothard v. Rawlinson the court found the 5 feet 2 inches in height and 120 pounds to favor men and therefore declared the policy a contravention to 703(a) of Title VII. As was in City of Los Angeles v.
Manhart where the Los Angeles Department of Water and Power passed a policy that required women workers to make larger contributions to its pension scheme because research indicated that women tend to live longer than men, the judges found that the Department’s pension scheme had violated section 703(a) (1) of the Title VII. The Department pension scheme defense argued that the policy was pegged on longevity rather than sex; however, the Court found no other factor other than sex and hence concluded that the policy was unconstitutional.
The case will be concluded on the basis of comparison between BFOQ 703(e) and the three Test clauses. The court will weigh the weight of the arguments from both sides and the cases mentioned in this paper. As it stands, obviously the three Test clauses carries more weight relative to the nature of the job that Wyman & Rights – there is no reasonable justification for the application of the BFOQ 703(e) of the Title VII; Wyman & Rights bases their arguments on stereotyped characterizations.
My opinion however, is; based on Diaz v. Pan Am the court will definitely find Wyman & Rights hiring decision not worthy a BFOQ defense and based on customers preferences, rather than non-discriminative objective. The reasons are obvious Joe v. Wyman &Rights and Diaz v. Pan Am are similar in all perspectives; they both involve discrimination against men whereby the employer holds that women are more suitable in the performance of the core duties. However, there is no room for demonstration of one’s personal abilities, and therefore not an issue of “essence of business” but discrimination that is based on (group) sex stereotyping.
2. Roe v. Wade
Before 1970, when attorneys Linda Coffee and Sarah Waddington on behalf of Norma L. McCorvey (Jane Roe), filed suit in the US district court of Texas, all the 50 state statutes outlawed abortion. The suit was based on the fact that McCorvey had got pregnant as a result of rape. The defendant in the case was Dallas County District Attorney Henry Wade, representing the State of Texas.
The case was not concluded until 1993 by the United States Supreme Court. According to the cases concluding decision most laws against abortion in the US violated a constitutional right to privacy under the Due Process Clause of the Fourteenth Amendment. The decision overturned all the state and federals outlawing or restricting abortion that were incompatible with its holdings, and hence the historic legal and political controversy that it continue to wield.
In its ruling the Supreme Court held that a mother may abort her pregnancy for any reason, up until the “point at which the fetus becomes ‘viable.’” The Court definition of viable was “potentially able to live outside the mothers womb”, although with artificial aid. They therefore placed the viability stage at around seven months (28 weeks). The court also ruled that abortion after viability must be available when needed to protect a woman’s health. Apparently the Courts decision was subject to country wide debate that seems never to end.
The Texas State Court on the one hand, primarily decided the case based on the provisions of the ninth amendment but failed to give an injunction against the laws barring abortion. The court decision was that the ninth amendment protected a person’s right to privacy, it states by part, “the enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
On the other hand, the Supreme Court through Justice Harry Blackmun based its arguments to the fourteenth amendment, he asserted, “the right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of the right of the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Abortion in the US was made a crime in 1821 when in Connecticut a statute was enacted barring it, other states followed suit and by 1900 abortion was barred in every state. In ruling of the Roe v. Wade, Blackmun analyzed several historical accounts of abortion including those of Greek empire, Hippocratic Oath, Persian Empire, Roman era, the common law, American Medical Association, English statutory law, American bar Association, and the American Public Health Association.
All this did not yield what the court deemed a sufficient historical basis to justify the Texas statute, and therefore concluded that the state cannot restrict the abortion during the first trimester of a pregnancy. Legally and politically the US constitution does not unambiguously mention any right of privacy, the court found a basis to lay its claims in many provisions of the Bill of Rights, the Penumbras, and the Fourteenth Amendment. But, in contrast to what it had done with the Griswold v.
Connecticut (used penumbras and the bill of rights), the court did not use either the bill of rights or the penumbras, it majored its arguments primarily on the Fourteenth Amendment to assert that “the right of personal privacy encompassed abortion decision.”
Again, on the argument of the viability of the fetus, the court reasoned that there was no consensus among the medical fraternity on when life began , and hence the court was no better in speculating either, therefore in regards to the Fourteenth Amendment of 1868 context, the fetus was not defined as a person and thus did not qualify to enjoy the rights to life, after all the original intent of the constitution at the time of the enactment of the Fourteenth Amendment in 1868 did not require the protection of the unborn.
Roe v. Wade gathered almost equal numbers of proponents and opponents. Members of the bench were as divided as the public, each drawing support for his/her decision either legally, politically, or morally. The then seating president, Ronald Reagan was one such man, he opposed Roe v. Wade decision. Acting on his powers of federal judicial appointments he served to increase the opposition to Roe on the bench.
Critics argued that he appointed judges on basis of the stand on Roe v. Wade – only those who opposed Roe qualified the appointments, however, he denied this but acknowledged that he only acted within his powers to appoint judges who were qualified to read and interpret the law but not to write it, adding that previously there were such judges who legislated in the courts.
The appointment of Sandra Day O’Connor is a case in point; she immediately began denting holes to the Roe trimester based analysis, by terming it unworkable and with others began drawing a roadmap to abortion cases. In Planned Parenthood v. Casey sitting together with Justice Kennedy and Justice Souter, Justice O’Connor revisited Roe’s decision and concluded that three parts used in the conclusion be retained;
1) a recognition of a woman’s right to choose to have an abortion before fetal viability and obtain it without undue interference from the state; 2) a confirmation of the states power to restrict abortion after viability, if the law contains exceptions for pregnancies endangering a woman’s life or health, and; 3) the principle that the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
The case pitted five abortion clinicians, a physician, and doctors who provide abortions against five Pennsylvania Abortion Control Act of 1982 regulations that required a woman to give an informed consent prior to an abortion, to be given specific information 24 hours prior to abortion, in cases of minors their parents t provide consent, while for married people to have their husbands signed consents. The District Court ruled that the five regulations were unconstitutional and permanently enjoined their enforcement.
Later, the Court of Appeal ruled out the husbands’ notification clause on grounds it was burdening to the pregnant mother, but reinstated the parental consent, informed consent, and 24-hour waiting period were constitutionally validated – ULTIMATELY rendering Roe v. Wade decision inconsequential.
The Reagan’s presidency and the subsequent appointment of anti-Roe judges meant that benefits/freedom granted by Roe v. were now undermined. This was seen in the final verdict given by the Court in the Planned Parenthood v. Casey case - more restrictions were imposed such as parental consent, informed consent, and 24-hour waiting period. Initially, Roe made it possible for women to carryout abortions at will during the first trimester of the pregnancy a decision which was overturned by Planned Parenthood v. Casey. Therefore Reagan’s presidency meant that Roe’s freedom to abort was highly encroached i.e. to fulfill all those restrictions was not an easy thing.
Roe v. Wade gave Roe (women) the freedom to carry out abortion during the first trimester of the pregnancy without any restrictions; it also set stage for regulations to be followed if abortion was to be carried out in the other two trimesters. However, Planned Parenthood v.
Casey undermined the freedom that Roe v. Wade extended to women, and as a result many states adopted more strict measures that sought to make the procurement of an abortion more difficult. In Nebraska, et al v. Cahart, the Supreme Court found Nebraska law that barred partial-birth abortion illegal, without providing exceptions to preserve a woman’s health to be in violation of the Due Process Clause and therefore declared it unconstitutional.
Civil Rights Acts of 1864, accessed on March 17, 2009
Roe v. Wade, 410 U.S. 113 (1973), accessed on March 17, 2009 Planned Parenthood v. Casey, (91-744), 505 U.S. 833 (1992), accessed on March 17, 2009 UAW v. Johnson Controls, Inc. - 499 U.S. 187 (1991), accessed on March 17, 2009 LAWWP v. Manhart – 435 U.S. 702 (1978), accessed on March 17, 2009 Nebraska, et al v. Cahart, 530 U.S 914 (2000), accessed on March 17, 2009 Griswold v. Connecticut, 381 U.S 479 (1965), accessed on March 17, 2009 Diaz v. Pan Am Airlines, 442 F.2d 385 (5th Cir. 1971), accessed on March 17, 2009 Rosenfeld v. South Pacific Co.444 F.2d1219 (9th Cir. 1971), accessed on March 17, 2009 Weeks v. Southern Bell Tel. & Tel. 408 F.2d 228, 236 (5th Cir 1969), accessed on March 17, 2009 NB; IGNORE THE OTHER PAPER THAT I SENT SOME MINUTES AGO, IT HAD SOME GRAMMATICAL ERRORS, I RECCOMEMND THAT YOU USE THIS ONE as I also made some additions. THANKS.