title IX and gender identity and sexual orientation

I'll clean this up soon.

- Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.

- Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria For Male and Female Athletic Teams.

From Virtual Tourist: WARNINGS AND DANGERS IN HOUSTON Areas to Avoid / Crime

Looks a lot like the redlining map discussed in a previous post.

- Click here for the article.

- Click here for the post on redlining.

The Supreme Court narrows the meaning of "supervisor"

Which makes it more difficult for harrassed employees to sue for discrimination.

In two decisions issued on Monday, the Supreme Court effectively made it harder for workers to prove that they had suffered employment discrimination.

One ruling narrows the definition of what constitutes a supervisor in racial and sexual harassment cases, while the other adopts a tougher standard for workers to prove that they had faced illegal retaliation for complaining about employment discrimination.

In both cases, the rulings were decided by a 5-to-4 majority, with the dissenting justices, the court’s four most liberal members, calling on Congress to fix what they said were overly restrictive rulings.

In Vance v. Ball State University, in which an African-American worker accused her supervisor of racial harassment, the court held that the person she accused was a co-worker and not a supervisor — a distinction that requires a higher burden of proof for the plaintiff’s employer to be found liable.

The majority decision, written by Justice Samuel A. Alito Jr., rejected the definition of “supervisor” advanced by the Equal Employment Opportunity Commission as someone authorized to take “tangible employment actions” or direct the employee’s daily work activities.

Click here for ScotusBlog material on Vance v. Ball State University.

In the Supreme Court today: Hollingsworth vs. Perry

As we discussed previously, this case is about the constitutionality of California's Proposition 8, which was an initiative passed by the California electorate in November 2008 that stated that "only marriage between a man and a woman is valid or recognized in California."

This was overturned in August 2010 by a U.S. District Judge that found the proposition to violate the 14th Amendment's guarantee of equal protection. The case went through the 9th Circuit Court for a couple years before it was determined that the District Court decision should be upheld, but the decision was not unanimous.

- Click here for a brief description of the process the case went through on its way to the Supreme Court.
- And click here for the process thus far in the Supreme Court.

According to ScotusBlog, these are the two questions the Supreme Court is charged with considering: (1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case.

A quick word on "Hollingsworth" and "Perry."

Dennis Hollingsworth is the named petitioner. He, along with a few others, is the person who lost the previous cases and asked for the Supreme Court to review the case by requesting the court file a writ of certiorari. He and the others were affiliated with the groups that helped organize the original inititiatve. The question of standing resulted because the state of California has decided to not argue in favor of the law in court, so it is not clear that the petitioners have suffered a harm that allows them to take a case to the court.

This helps solve some confusion regarding the court case because two others - Perry v. Schwarzenegger and Perry v. Brown - were batted around for a while. Each refers to one of California's recent governors, but since neither decided to pursue the case, they were each dropped, but Holingsworth and Company were allowed to pick it up.

Kristen Perry is the named defendant who was married to her partner in 2004 when San Francisco briefly recognized them prior to the 2008 ballot inititiative. Aftee they received their license they were informed that the marriage had been voided. After passage of Proposition 8 they joined a challenge to it organized by the American Foundation for Equal Rights.

- Click here for a look at these and other players in the case.
In 2305, we've mentioned several times that the equal protection clause has yet to be used, by the Supreme Court, to resolve disputes over unequal treatment due to sexual orientation. They've done their best to avoid it, but no longer. This could easily turn into one the courts more important decisions, depending on what they rule and how expansively they make their decision. Will it only affect California? Or only the states that have ruled in favor of same sex marriage? Or possibly all the states?

Stay tuned.

Do ZIP Codes allow for illegal discrimination?

Possibly:

Today, our ZIP code determines how we are read by policy-makers, politicians, statisticians, pollsters, insurers, businesses, organizers, and marketers. Governments use ZIP codes to determine who gets what—and this, in turn, stokes our political divisions. Private companies use ZIP code information to determine if they will, or will not, move into our communities. Retailers collect ZIP codes from customers, which can protect against fraud, but also helps a consumer database marketer collect personal information on us without our permission.

ZIP codes, in other words, have evolved from finding where we are to defining who we are—far beyond our mailbox. "Organizations—business, government—can look at the mass of people we've become and break us down into usable points," says Nancy Pope, curator at the Smithsonian's National Postal Museum. "While it was designed to help our letters travel faster, it's become like an ID system we all agree to and all use."

Is the Voting Rights Act still necessary?

That cuts to the heart of the challenge to the act presented in Shelby v Holder. Is there evidence that election laws passed in the state subject to pre-clearance because of past discriminatory acts, still discriminate based on race, meaning pre-clearance is still necessary?

Here's an argument that there are political incentives for majorities in the states to discriminate, regardless of whether it is done due to racial animosity. The argument reminds me of points made in 2305 about factions in Federalist #10:

. . . regardless of whether white political leaders in these states hold racist views, they have substantial political incentives for engaging in actions to suppress or dilute the minority vote. 

In addition to a history of racial discrimination, the states covered by Section 5 are characterized by an exceptionally high degree of racial polarization in voting up to the present day. Whites and nonwhites in these states are deeply divided in their political preferences, resulting in a two-party system in which one party depends overwhelmingly on votes from whites and the other party depends overwhelmingly on votes from African Americans and other nonwhites. This racial polarization continues to provide a powerful incentive for leaders of the party that depends overwhelmingly on white votes to suppress or dilute the votes of African Americans and other minorities.

Party identification is more polarized along racial lines in states covered under Section 5 than those that are not:

We can assume that minority votes will be suppressed in these states because it makes electoral sense to do so.

Heightened Scrutiny

One of the more important parts of the section on civil rights concerns the different tests used to determine whether the equal protection clause applies to a given discriminatory act. In some areas - drinking ages for example (and as you well know) - discriminatory decisions can be made and enforced. The question is always whether there is a justifiable reason why a particular distinction can be made between individuals based on race, gender, age or whatever.

As the notes show, standards vary. It is easier to for the law to discriminate based on age than gender, and gender than race. Each is covered, respectively, by rational basis review, intermediate scrutiny, and strict scrutiny. The controversy with gay marriage will require the courts - I believe for the first time, though I do not know for certain - to determine what standard would apply to sexual orientation. The lower courts have used intermediate scrutiny, bu the term "heightened scrutiny" has also been used to refer to this level of review. There seems to be a debate over whether intermediate and heightened review are the same thing.

Assuming they are, then the courts may determine that laws that impose a difference between people on the basis of sexual orientation "must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest."

So what is the interest the bans on same sex marriage promote?

For further reading:

- Will the Supreme Court be left behind on Gay Marriage?

Did "We the People" apply to African- Americans at the time of the founding?

A great question.

Justice Clarence Thomas is not certain that it did:

“There was always this underlying belief that we were entitled to be a full participant in ‘we the people,’ ” Thomas told a crowd at the National Archives last week.
“That’s the way we grew up. It was the way the nuns, who were all immigrants, would explain it to us — that we were entitled, as citizens of this country, to be full participants. There was never any doubt that we were inherently equal. It said so in the Declaration of Independence.”

Click here for the video of an interview with Thomas.

Catch up on commentary here, and here.

Some critics of originalism have argued that the original Constitution was illegitimate because it excluded blacks. There is little doubt that the original Constitution tolerated severe racial injustices, most notably slavery. But there is nonetheless a difference between a Constitution that left slavery and other injustices alone (in part because abolition was politically impossible at the time), and one that categorically denied all blacks any “rights which the white man was bound to respect,” as [Roger] Taney put it.

Does "stop and frisk" violate the principle of equal treatment before the law?

This story allows us to look ahead to our discussion of the 14th Amendment and the equal protection clause. Young black and Latino males tend to be stopped and searched far more than other people. Does this pose a constitutional problem?

- Wikipedia: Frisking.
- Legal Definition from the Free Dictionary.
- Comments from Legal Zoom.

Are civil rights policies working?

This author says they are not, and we need to transform how discrimination is addressed.

CIVIL rights have transformed American society, and made it fairer and less divided, by outlawing overt racial discrimination and making bigotry socially unacceptable. That success has inspired a host of social groups to press for new civil rights.

But civil rights have barely made a dent in today’s most severe and persistent social injustices, such as the disproportionate incarceration of African-Americans, the glass ceiling that blocks career advancement for many women and high unemployment among the elderly; in fact, some of these problems have gotten worse despite civil rights laws intended to address them. Today’s most pressing injustices require comprehensive changes in the practices of the police, schools and employers — not simply responses to individual injuries.
The author questions the use of lawsuits as a vehicle for handling civil rights complaints (notice the discussion of Brown and the Seattle Supreme Court decisions). 2301 students should be aware of this policy after discussing civil rights in class. 2302 students should read this because it points out the role the Supreme Court has played in promoting civil rights at one point, and being more skeptical of them recently.

- In a related story: Female Wal-Mart Employees File New Bias Case.

Obescity and Discrimination

This post is a bit late. In one 2301 class we had a great discussion on whether discrimination against the obese violated the equal protection clause. I promised some posts on this - see below. This could be a good short answer topic later this semester.

- Bias, Discrimination, and Obescity.
- Obescity Action Coalition.
- Obesity Discrimination.
- Obesity and Weight Discrimination in the Retail Workplace.
- Fat chance: It's not easy for obese workers.

From The Dish: Legal Protections For Ugly People?

Before we dig into civil rights in a few weeks, here's an early hint of an area where discrimination surely exists, but its difficult to determine whether and/or how that discrimination can be easily addressed.

In addition to whatever personal pleasure it gives you, being attractive also helps you earn more money, find a higher-earning spouse (and one who looks better, too!) and get better deals on mortgages. Each of these facts has been demonstrated over the past 20 years by many economists and other researchers. The effects are not small: one study showed that an American worker who was among the bottom one-seventh in looks, as assessed by randomly chosen observers, earned 10 to 15 percent less per year than a similar worker whose looks were assessed in the top one-third — a lifetime difference, in a typical case, of about $230,000.
A discussion question: If it leads to material differences, why can't it be addressed by legal measures?        

Unemployment Discrimination

Apparently applicants are being denied consideration for jobs due to being unemployed. The question is whether this is type of discrimination is a civil rights violation subject to redress.

- Manpower Blog: Unemployment Discrimination?
- EEOC Holds Public Hearing on Unemployment Discrimination.

- FAQ: The Employment Non-Discrimination Act.
- Discriminating Against the Unemployed.

A Big Business Friendly Term

Commentators seem to agree (here's an exception) that the recent Supreme Court term was great for big business in the United States. Dahlia Lithwick complains that their decisions have given corporations a guide book for how to discriminate among their employees and lie to customers and investors. Much of this is achieved by limiting the ability of people to take cases to the judiciary.

She highlights three specific cases:

- Wal-Mart v. Dukes
- AT&T Mobility v. Concepcion
- Janus Capital Group, Inc. v. First Derivative Traders

For 2302, her article highlights points we've raised the about the court narrowing "standing" and making it more difficult for people to actually take cases to court. For 2301 this is a great example of the ability of a well financed, cohesive small group to win out over a larger, less cohesive group in the political process.

Ugly, Therefore Guilty

Speaking of civil rights and equal protection under the law.

The Consequences of Rand Paul's Win in Kentucky

A couple of thoughts some pundits are offering after (the other) Dr. Paul's victory over the Republican establishment's candidate in the Kentucky Primary:

1 - The establishment is in trouble and the activists are moving the party further to the right and forcing out the heretics. Paul may be too conservative for Dick Cheney.

2 - Paul's objections to civil rights, including questions about the wisdom of the Civil Rights Act of 1964, have introduced new questions into the upcoming elections. Do private businesses have a right to discriminate?

Does this Put a Twist on the Ricci Decision?

From the chron: 2 female firefighters worried for safety

Is there a reason for minority and women firefighters to be worried about discrimination?