Test 3 Outline

8/18/2019 Test 3 Outline

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Test 3

Non-subordination Theory AKA-Dominance Theory – Shifts the focus of attention from sex-

based difference to sex-based subordination; i.e. the imbalance of poer btn men and omen.- This theory focuses on the imbalance of poer beteen men and omen. !t loo"s at

hether a practice is subordinatin# omen to men.

Sexual $arassment in the %or"place

&. Title ' – This applies only in the or"place. !t is seen as discrimination on the basis of

sex. !t can be (iolated by both economic and non-economic in)ury. Sexual harassment isthe unanted imposition of sexual re*uirements in the context of a relationship of

une*ual poer. +sin# the poer to le(el benefits or impose depri(ations is common.

a. Title ' is (iolated hen the or"place is permeated ,discriminatory

intimidation ridicule and insult that is sufficiently se(ere or per(asi(e to alter thecondition of the (ictims employment and create an abusi(e or"in#

en(ironment.

b. Title ' prohibits offensi(e physical sexual conduct ithout re#ard to hether the

perpetrator and the (ictim are the same or different #enders and ithout re#ard tothe sexual orientation – real or percei(ed – of the (ictim.

c. /ere utterance of a remar" that offends an employee doesnt tri##er Title ' 0bc itdoesnt sufficiently affect the conditions of employment.1

2 types of sexual harassment under Title '&. uid 4ro uo – Needs to involve a supervisor . %here sexual contact or a fa(or is

re*uired as a condition of employment or ad(ancement. /ust in(ol(e a trade-off of some

sort of sexual fa(or for some sort of term condition or pri(ile#e of employment. This

can be an employment opportunity to #et a )ob promotion pay rate or some type of benefit.

a. /ust in(ol(e a supervisor . They are the only ones ho ha(e the poer to #i(ethe economic ad(anta#e. b. /ust be a trade-off in(ol(ed.

c. 4laintiff needs to establish that submission to the unwanted sexual advances of a

super(isor as an express or implied condition for recei(in# )ob benefits or herrefusal to submit resulted in tan#ible )ob detriment. !f this is established there is

no defense for the employer.

d. !t is actionable even if the victim did not submit to the proposition.

2. $ostile 5n(ironment – The plaintiff must ha(e been actually offended and the offense

taken must have been reasonable hich is to be )ud#ed from a reasonable person in the

plaintiffs position considerin# all the circumstances. The plaintiff must also prove that

the conduct was unelcome – most ob(ious ay for an employee to si#nal this is tocomplain about it. Conditions are creating an intimidating, hostile, or offensive

working environment .

- %hether an en(ironment is hostile or abusi(e can be determined only by loo"in# at allthe circumstances hich may include the fre*uency of discriminatory conduct its

se(erity hether it is physically threatenin# or humiliatin# or a mere offensi(e utterance

and hether it unreasonably interferes ,an employees or" performance.


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a. Against Supervisor – 5mployee suffered an ad(erse employment action such as

dischar#e demotion or undesirable resi#nation

i. !s the claim sufficiently se(ere or per(erse to alter the conditions of the(ictims employment and create an abusive working environment 6 +se a

reasonable person standard .

ii. 5stablish the sub)ecti(e and ob)ecti(e components. 0i1 Subective7 As"hether or not the conduct was unwelcome6 8oluntary is not a defense. !t

has to be unelcome. 9ou do not ha(e to be ha(in# psycholo#ical

problems. 0ii1 !bective7 As" hether considerin# totality ofcircumstances the working environment is established as sufficiently

abusive. :oo" at the number nature totality of instances and beha(ior of

both parties. !f the employee dressed pro(ocati(ely that beha(ior is ta"en

into context ith the beha(ior of the accused.iii. !f plaintiff establishes this then


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i. 5mployee must pro(e that employer "ne or should ha(e "non of the conduct.

!f the employee ne(er says anythin# and employer ne(er itnessed it there is no

case.ii. 5mployer bears


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i. 5stablish that the motive of the accused was sexual desire. This re*uires

loo"in# at the accused sexual orientation. !f they deny their sexual

orientation you ont in under this example unless you pro(e otherise.ii. !f the discrimination is nastier to the same sex than the opposite sex you

ha(e a co#ni?able claim. 5x. !f a female (ictim is harassed in such sex-

specific and dero#atory terms by another oman as to ma"e it clear thatthe harasser is moti(ated by #eneral hostility to the presence of omen in

the or"place. !t is called the *ueen bee syndrome. !f the remar"s are

laced ith sexual references that do not occur in the remar"s made to theopposite sex you ha(e a claim.

iii. A same-sex harassment plaintiff may also of course offer direct

comparati(e e(idence about ho the alle#ed harasser treated members of

both sexes in a mixed-sex or"place.

4rocess

- &st 'uestion7 Are there more than &( employees6 !f yes continue to step 2.

- )

nd

'uestion7 Do they fall under an exception6 0!ndi#enous tribe employers 4ri(ate clubsand @eli#ious employers hen the )ob has ministerial positions1 !f no continue to step 3.

- *rd 'uestion7 Are they a member of a protected class6 !t ill be yes. Sho that they erea (ictim of sexual harassment.

- +th 'uestion7 %hat is the nature of the complaint 6 uid 4ro uo or $ostile en(ironment

- (th 'uestion7 affirmati(e defense for hostile en(ironment claim.

Sexual harassment in the educational context – Title ! of the 5ducational Amendments of &B'2

prohibits both *uid pro *uo and hostile en(ironment discrimination.

- School :iability – Schools are not liable for harassment of a student by an employee

unless officials had actual notice of the specific misconduct and responded wdeliberateindifference. !t does not matter if the school lac"s ade*uate harassment policies.

- %ith re#ard to harassment btwn peers a school districts deliberate indifference to"non acts of harassment by students could #i(e rise to liability but only hen the

district exercises substantial control o(er the harasser and the context in hich the "non

harassment occurs and the conduct is so se(ere per(asi(e and ob)ecti(ely offensi(e thatit can be said to depri(e the (ictims of access to the educational opportunities or benefits

pro(ided by the school.

- Speech C >onduct >odes to 4re(ent $arassment – %hen such codes ha(e been used

a#ainst classroom beha(ior by professors courts ha(e been similarly protecti(e of &st Amendment concerns.

- aculty-Student Datin# – /ost campus enforcement structures address only those

faculty-student sexual relationships that meet con(entional definitions of sexualharassment.

irst uestion7 Does the school ta"e title B money6

eacher to student 7

&.1 %as there actual notice to an official with authority to act 6

2.1 %as there failure to respond in a manner that amounts to deliberate indifference6


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custody determination unless harm to the child is affirmati(ely demonstrated in a

particular case. +nder this standard real or ima#ined sti#ma from ha(in# a homosexual

parent is insufficient.- 5mployment Discrimination – Title ' only includes discrimination on the basis of #ender.

!t does not protect sexual preference such as homosexuality. They tried to ma"e it a sub-

cate#ory of sex sayin# discrimination a#ainst homosexuals disproportionately affects menand therefore is discrimination on the basis of sex. >ourt said no.

- Law or ordinance passed dealin# ith sexual orientation must still pass the rational basis

test hich is that it has to serve a compelling state interest and the employer must

ustify that discrimination in terms of some government purpose.

- Employment context 7 She ar#ued it (iolated their ri#ht to intimate association or the ri#ht

to expressi(e association. The court said these ri#hts are not absolute.

- alancin# test7 balance constitutional ri#hts of complainant a#ainst the ri#ht of employersto conduct his business ithout disruption.

- They seldom pre(ail o(er employers.

- 4rocedure7

a. !s it an employment *uestion6 !f yes b. !s employer public or pri(ate6 !f public pay attention to the call of the *uestion.

!t can say address all pri(ate causes of action.c. !f employer is pri(ate +se title ' cases li"e /F/ 0pri(ate employer1 and


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for the other hich they are connected. They e(en loo" at biolo#ical differences as a

source of stren#th and di(ersity. They feel if society does not ha(e this they ill lose

moral inte#rity and cohesion to society. !t also includes the idea that hen you see dan#er you help out and dont thin" of the potential liability.

- /en are seen to lean toards on ethic of )ustice.

- 5x. >ase is here the oman as disbarred for ta"in# the exam for her husband.Disbarment as re*uired unless the most compellin# miti#atin# circumstances clearly

predominated. Dissent loo"ed at her characteristics. !f they had used an ethics of care

analysis they could ha(e ar#ued that she as tryin# to protect her family and thin"in# ofha(in# a father for her baby and preser(in# her marria#e. Also loo" at the fact that she

as in bad health because of diabetes. 9ou can ar#ue for other punishment because she

can be rehabilitated and e(en thou#h she hurt society it as not her fault because her

husband pressured her into it.

Non-essentialism

- @e)ects the concept of biolo#y as destiny and the attribution of sex based beha(iors to

biolo#y. !t re-contextuali?es any #i(en situation on multiple le(els. They seecircumstances throu#h multiple prisms that include race ethnic bac"#round class a#e

national ori#in.

Non-essentialists see many problems ith essentialism7

&.1 They see male,female essentialism as o(er inclusi(e. They feel that essentialist to oftenassume characteristics that may be true for some omen but not all and this is causin#

problems. They dont see all omen as nurturers and can see men as nurturers also.

2.1 5ssentialists loo" at innate traits from their on culture ithout reali?in#. They dont

reali?e not e(eryone ants to be li"e their culture. or example hen they try toliberali?e omen in other cultures that so not ant to be liberali?ed.

3.1 Naturalist error is also a problem. They feel that essentialist inaccurately assume that the

sex,#ender system is ine(itable and biolo#ically determined. They challen#e the fact that people say omens differences are biolo#ical.

=.1 >ate#ori?ation is also a problem because it is easy to cate#ori?e people based on the

ob(ious. %e anticipate hat someone ill do or explain hat they do on the basis of#ender and non-essentialist say this is to easy.

I.1 4ost modernism-cuts ordinary assumptions about truth and poer. !t see"s to undermine

ordinary assumptions about truth and poer by emphasi?in# the interrelationship

beteen the to. They feel e ha(e our on indi(idual truth not a uni(ersal truth.

iolo#ical differences 0transsexual1>on#ress has not ruled on title ' and sexual identity.

Kantara v. Kantara

/ichael as born a oman but chan#ed himself into a man. $e #ot married and then filed fordi(orce and custody of their 2 children. The ife ar#ued the marria#e as (oid because the la

does not allo same-sex marria#e. %hat approach does this court ta"e6 $o did they define

male and female6 Immutable traits determined at birth. This is an essentialist approach.

They are the ones ho belie(e e ha(e immutable traits that e cannot chan#e. ut hat are


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the immutable traits determined at birth6 They dont loo" at chromosomes they loo" at #enitals.

They said /ichael as a male and therefore the marria#e as in(alid. They said alloin# the

marria#e ould (iolate state statutes and polices.Does :ittleton ta"e an essentialist approach 0(ideo from class16 She belie(es she as born that

ay therefore that is an essentialist approach.

There has one case in Ne Jersey here they ac"noled#ed that medical ad(ances and practiceshould be ac"noled#ed so the marria#e as held (alid. !f they are fully functionin# as the re-

assi#ned sex they can le#ally marry.

%hat happens if you are born intersex6 No one has addressed this yet.Smith v. Salem

$is co-or"ers ere tellin# him he as actin# too femininely. $e alerted his employer of his

plans to chan#e his sex so that it can be explained to the co-or"ers and they tried firin# him.

$e brou#ht suit and said that the employer as actin# li"e this because he as failin# to conformto sex stereotypes li"e ha(in# a female mannerism and appearance. This is a sex stereotype case

and they said it as li"e Price Waterhouse. Does title ' protect these indi(iduals6 $e as

critici?ed for bein# insufficiently masculine. !f it prohibits discrimination a#ainst omen for not

bein# sufficiently feminine it should or" the re(erse ay. This as held to be sexdiscrimination.

Another example7 $e as hired until he told them he as in the process of chan#in# his #ender.>ourts ha(e held it is sex discrimination not sex stereotypin#. She as bac"in# aay from

hirin# because he as becomin# a female. The decision as on the basis of the sex.

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