POSC 130g 1st Edition Lecture 17 Current LectureLogic of Cal FedJustice Marshall held: Acceptable for state law to favor pregnant women. No inconsistency necessarily between state and federal law. Sexual HarassmentRecognition phenomenon in 1970s in the United StatesChange in law began with Diane Williams’ caseDistrict court found Williams had been harassed based on “sex” without meaning of Title VIIThere is a class bias in women’s rights. There is a political bias in the fieldquid pro quo: asked to do something otherwise wouldn’t get paidMeritor Savings Bank v. Vinsontypes of sexual harassmentquid pro quo: could be a different type of sexual harassment, know as hostile work environmentShe 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 liableKey IssuesNew type of sexual harassment- Non Economic injuryEmployers not automatically liableVoluntariness whether advance were welcomeRelevant evidence- speech, dress, demeanorGrievance 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 BradyKelly Elison: one of her coworkers kept sending her emails that talked about sex and love and heacted 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 otherEffect on civil libertiesMay promote a victim mentality- perhaps the law should be a last resortThere might be problems for letting people sue so often for such a caseSubsequent casesHarris v. Forklift Systems (1993) US Supreme Court held analysis must consider all circumstancesSexual harassment in schoolsOncale v. Sundowner Offshore Services (1998) Same sex sexual harassmentWhat 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 CampaignAgainst: National Organization for Marriage, Family Research CouncilSexualityIs someone’s identify deviant? Overview of Gay and Lesbian rights“Normalcy” as culturally relativeRuth Benedict: our own intuitions about what kinds of things are normal is a reflection of how we were brought up or socializedHijras: In India, they are men who live as women in India. They bring good luck. This is socially accepted there. Legislating MoralityPunishing sexual minorities as deviantsTwo Phrases of the Social Movement1. Decriminalizationa. Countries India (2009); Delhi High Court rulingb. 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 rightsa. privacyb. non-discriminationc. equal protectiond. right to marryStates in the US Constitutional Lawprivate intimate conduct: The right to privacy extended but not to gays/lesbiansBowers 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 lesbians- considered 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 lesbiansReconsiderationReversal of Bowers- right to privacy does applyLawrence v. Texas: decriminalization of homosexual actsControversy over influence of European human rights lawQuestion: Should US Courts refer to “foreign law’?Equal ProtectionRomer v. Evans (1996): Question whether initiative, Amendment 2, could rescind protections against employment discrimination for homosexualsSupreme Court held it violated equal protection and was unconstitutional using the lower standard of review- used rational basis testEqual Protection: MarriageMarriage equality- sex discriminationBaehr 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 orientationSex discrimination, not sexual orientationBacklashStatesLegalizing same sex marriageSeveral statesGoodridge v. MA (2004): validated right to same sex marriage; violates equal protection on a state basisFederal reaction: Defense of Marriage Act;