POSC 130g 1st Edition Lecture 17 Current Lecture Logic of Cal Fed Justice Marshall held Acceptable for state law to favor pregnant women No inconsistency necessarily between state and federal law Sexual Harassment Recognition phenomenon in 1970s in the United States Change in law began with Diane Williams case District court found Williams had been harassed based on sex without meaning of Title VII There is a class bias in women s rights There is a political bias in the field quid pro quo asked to do something otherwise wouldn t get paid Meritor Savings Bank v Vinson types of sexual harassment quid pro quo could be a different type of sexual harassment know as hostile work environment She and her co worker had a relationship but eventually she wanted to break up but her supervisors insisted that she continue the relationship She claimed she had been a victim of sexual harassment The district court thought that the bank should be held responsible in a civil lawsuit because the bank had not been notified that there was a problem with the supervisors conduct The case went to appeal at the federal court to the federal court of appeals The federal court said there was a thing called hostile work environment but because she hadn t been threatened with wages firing etc The federal court of appeals thought they had no business considering her appearance of whether she had been sexually harassed At the US Supreme Court the US Supreme Court concluded that there is such a thing called hostile work environment The courts aren t automatically liable Key Issues New type of sexual harassment Non Economic injury Employers not automatically liable Voluntariness whether advance were welcome Relevant evidence speech dress demeanor Grievance mechanism if she had a problem she is supposed to notify the supervisor Yet she couldn t use that mechanism because the person who is causing the problem is in fact the person that she was supposed to make the complaint to Elison v Brady Kelly Elison one of her coworkers kept sending her emails that talked about sex and love and he acted as thought they had a relationship He was transferred but made it back to the same office From who s point of view do you consider that it is sexual harassment The court said it is important to look at the victim s point of view The court said that a reasonable woman would have the same reaction Children on school buses claim they were sexually harassed A girl said the boys were using naughty language and it made her uncomfortable Is that sexual harassment Does age matter as to if someone is a victim of sexual harassment Effect in the workplace people will be scared to hug each other or talk to each other Effect on civil liberties May promote a victim mentality perhaps the law should be a last resort There might be problems for letting people sue so often for such a case Subsequent cases Harris v Forklift Systems 1993 US Supreme Court held analysis must consider all circumstances Sexual harassment in schools Oncale v Sundowner Offshore Services 1998 Same sex sexual harassment What kinds of people deserve protection from discrimination If is it immutable the law protects the person of having that characteristic or trait beyond their control Is sexual orientation a choice or immutable Legal Protection People get protection if they have a characteristic that they can t change immutable characteristic The law uses immutability to decide what groups are protected Advocacy groups For Lambda Legal The Human Rights Campaign Against National Organization for Marriage Family Research Council Sexuality Is someone s identify deviant Overview of Gay and Lesbian rights Normalcy as culturally relative Ruth Benedict our own intuitions about what kinds of things are normal is a reflection of how we were brought up or socialized Hijras In India they are men who live as women in India They bring good luck This is socially accepted there Legislating Morality Punishing sexual minorities as deviants Two Phrases of the Social Movement 1 Decriminalization a Countries India 2009 Delhi High Court ruling b Countries still punishing homosexuals Uganda bill calling for the death penalty Murder of David Kato Saudi Arabia gay asylum case Diplomat said his life was in danger What should the state claim is moral 2 Protection of basic human rights a privacy b non discrimination c equal protection d right to marry States in the US Constitutional Law private intimate conduct The right to privacy extended but not to gays lesbians Bowers v Hardwick 1986 right to privacy the case never went to trial when the police arrested two men for engaging in sexual harassment that would result in a 20 year prison sentence the Supreme Court ruled that there was no right to privacy for gays and lesbiansconsidered a fundamental right even thought it is not written in the Constitution or Bill of Rights cases that protected right of privacy to married couples unmarried couples and minors The right to privacy was used in Roe v Wade to apply to the right to abortion Same sex couples don t have a right to privacy The Dred Scott for gays and lesbians Reconsideration Reversal of Bowers right to privacy does apply Lawrence v Texas decriminalization of homosexual acts Controversy over influence of European human rights law Question Should US Courts refer to foreign law Equal Protection Romer v Evans 1996 Question whether initiative Amendment 2 could rescind protections against employment discrimination for homosexuals Supreme Court held it violated equal protection and was unconstitutional using the lower standard of review used rational basis test Equal Protection Marriage Marriage equality sex discrimination Baehr v Lewin 1993 Hawaii Supreme Court denying same sex couples a marriage license violates the Hawaii Constitution and equal protection said it was sex discrimination not sexual orientation Sex discrimination not sexual orientation Backlash States Legalizing same sex marriage Several states Goodridge v MA 2004 validated right to same sex marriage violates equal protection on a state basis Federal reaction Defense of Marriage Act DOMA