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Models of Equality
Herma Hill Kay
Berkeley Law
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Herma Hill Kay, Models of Equality, 1985 U. Ill. L. Rev. 39 (1985),
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MODELS OF EQUALITYt
Herma Hill Kay*
I.
INTRODUCTION
The movement to secure equality under the law for women and
men, despite failing to obtain ratification of the Equal Rights Amendment,' has achieved many successes. Advocates of sexual equality woke
the United States Supreme Court from nearly a century of insensitivity to
women's capabilities outside the home,2 stimulated it to consider men's
capacity for nurturance,? and persuaded the Court to adopt a heightened
scrutiny for laws drawing classifications based on sex. The Court now
requires that sex-based classifications "must serve important governmental objectives and must be substantially related to achievement of those
objectives." 4 When the Court had difficulty linking classifications concerning pregnancy with discrimination based on sex,- Congress made its
intent explicit and, through a statutory amendment, instructed the Court
that it intended the term sex to include "pregnancy."6
Despite Congress's explicit instruction, today a specific disagreet An abbreviated version of this article was delivered at the University of Illinois College of
Law, September 17, 1984. as the second 1983-84 lecture of the David C. Baum Memorial Lectures on
Civil Liberties and Civil Rightx
* Professor ofLaw, University of California at Berkeley. B.A. 1956, Southern Methodist University; J.D. 1959, University of Chicago. I am grateful to Katharine Bartlett, Jesse Choper, Ruth
Bader Ginsburg, Patricia King, Jean Love, Robert Post, Deborah Rhode, Marorie Shultz Michael
Smith, Steven Sugarman, Karen Tokarz, Stephanie Wildman, and Wendy Williams for reading this
paper and offering suggestions for its improvement. The views expressed here are my own.
1. The extended deadline for ratification of the Equal Rights Amendment expired on June 30,
1982. See generally Rhode, Equal Rights in Retrospect, 1 LAW & INEQUALITY 1 (1983).
2. Compare Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873) (rejecting a woman's challenge
to her sex-based exclusion from the legal profession) with Reed v. Reed, 404 U.S. 71 (1971) (upholding a woman's challenge to her sex-based exclusion from serving as an estate administrator).
3. See, e.g., Caban v. Mohammed, 441 U.S. 380 (1979) (invalidating a New York statute
requiring the biological mother's, but not the father's, consent to an illegitimate child's adoption).
4. Craig v. Boren, 429 U.S. 190, 197 (1976). Justice Sandra Day O'Connor's instructions for
how this test is to be applied, formulated in Mississippi Univ. for Women v. Hogan, 458 U.S. 718,
724-25 (1982), have become part of the test, Heckler v. Mathews, 104 S. Ct. 1387, 1397-98 (1984),
and, if heeded by her colleagues, may increase its stringency.
5. General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) (holding that exclusion of normal pregnancy coverage from General Electric's disability plan was not sex-based discrimination in employment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e--(2)(a)(l)); Geduldig v.
Aiello, 417 U.S. 484 (1974) (holding that exclusion of normal pregnancy coverage from the state of
California's disability plan did not violate the equal protection clause of the fourteenth amendment).
6. The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (1978), amending Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e(k). The Act could not, of course, affect Geduldig v.
Aiello, 417 U.S. 484 (1974), which rested on constitutional, rather than statutory, grounds. But in
the statutory context, the Court received the message. Newport News Shipbuilding & Dry Dock Co.
v. EEOC, 103 S. Ct. 2622 (1983).
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ment that raises basic questions about the meaning of equality between
men and women centers on how the Pregnancy Discrimination Act applies to state laws creating pregnancy leaves for women only.7 In this
article, I do not intend to discuss the specific dispute over statutory interpretation.8 Instead, I examine the broader theoretical framework in
which the dispute occurs.
The participants in the pregnancy leave debate have invoked two
models of equality to justify their competing views. One position identifies itself as the "equality model" 9 because it wishes to minimize the significance of reproductive differences between men and women. I refer to
this position as the "assimilationist view"' because it implies that the
law should treat women and men as if they were interchangeable. The
alternative position is conceptualized as the "positive action approach,"1 1
or the "pluralist view,"1 2 because it acknowledges that the capacity to
become pregnant is one of the few immutable sex differences that distinguish women from men. Moreover, this position seeks to build a model
of equality that will accommodate women's fertility and thereby neutralize it as a barrier to personal achievement. 3
7. Compare Krieger & Cooney, The Miller-Wohl Controversy: Equal Treatment, Positive Action and the Meaning of Women's Equality, 13 GOLDEN GATE U.L. REV. 513 (1983) with Williams,
The Equality Crisis: Some Reflections on Culture, Courts, and Feminism, 7 WOMEN'S RTS. L. REP.
175 (1982). A popular account of the controversy, quoting both Krieger and Williams, appears in
Lewin, Maternity Leave: Is It Leave, Indeed?, N.Y. Times, July 22, 1984, at 1-F, col. 2, and in
Gorney, Justice and the Price of Pregnancy, Wash. Post, Apr. 5, 1984, at Dl, col. 1 (quoting Williams and Christine Curtis). The subject was televised on 60 Minutes, December 2, 1984. Williams
rejects "special treatment" for women, believing instead that in the long run women will be benefited
by an approach that insists on adequate medical coverage as part of the fringe benefit package for all
workers. Williams, supra, at 196. Krieger, on the other hand, argues that "positive action" is necessary to enable women to cope with the disabilities of pregnancy that only they must face. Kreiger &
Cooney, supra, at 516-17.
8. I generally agree with the interpretation of the Pregnancy Discrimination Act suggested in
Note, Sexual Equality Under the Pregnancy Discrimination Act, 83 COLUM. L. REV. 690, 709-26
(1983), and with the position taken in the Brief of Equal Rights Advocates, Inc., at 7-9, as amicus
curiae in California Fed. Say. & Loan Ass'n v. Guerra, No. C-83-4927-R (C.D. Cal. Mar. 21, 1984),
appealfiled, Nos. 84-5843 & 84-5844 (9th Cir. 1984), in support of the California pregnancy leave
statute, CAL. GOV'T CODE § 12945(b)(2) (West 1980). The Ninth Circuit adopted a similar interpretation in CaliforniaFed., slip. op., at 11-13 (Apr. 16, 1985).
9. Williams, supra note 7, at 196 (contrasting "the equality approach" with "the special treatment model").
10. Compare Wasserstrom, Racism, Sexism, and Preferential Treatment: An Approach to the
Topics, 24 U.C.L.A. L. REV. 581, 603-15 (1977) (describing the assimilationist model) with Jaggar,
On Sexual Equality, 84 ETHICS 275 (1974) (noting that "social equality does not mean that individuals of different sexes should be physically indistinguishable from each other"); see also Note, supra
note 8, at 704-07.
11. See Krieger & Cooney, supra note 7, at 515. I prefer to call this approach the "equal
opportunity" model. Although this terminology may have drawbacks when used to describe a general theory of equality, see Schaar, Equality of Opportunity,and Beyond, in NOMOS IX: EQUALITY
228, 236-41 (1967), it does capture the notion that competitors should be placed on the same footing
so that each may have the same advantages. Id. at 243.
12. See Note, supra note 8, at 707-09.
13. I do not mean, by the use of the term neutralize in this context, to convey, as have others,
e.g., S. FIRESTONE, THE DIALECTIC OF SEX 196-200 (1970), that pregnancy should be eliminated in
favor of artificial technology. Rather, I mean to suggest that reliance on the employed woman's
reproductive capacities be eliminated as a source of job discrimination. See Scales, Towards a Femi-
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The specific dispute about pregnancy cannot be isolated from the
broader theoretical framework in which it occurs. The two models of
equality called upon to justify the competing views-the assimilationist
model and the pluralist model-are alternative ways of describing how
groups of people with differences and similarities ought to view each
other in a just society. 4 Scholars have used these models to analyze the
normative behavior in such a society of groups consisting of different
races, 15 religions,' 6 and sexes,' 7 as well as groups characterized by varying degrees of physical handicap.' 8
In this article, I examine the usefulness of the assimilationist model
as a way of thinking about legal equality between women and men. 19 My
thesis is that the model of equality that the assimilationist view presupposes is more appropriately applied in the context of another movement
for legal equality: that between blacks2 0 and whites in America. I will
show that, although the model of racial equality is a compelling and useful one for sexual equality in those many areas where sex differences are
irrelevant, it is an inadequate model for those few situations where the
law must confront immutable sexual reproductive differences. When
those differences are encountered, another model of equality, based on a
pluralist view, must be developed if we hope to end the discrimination
between men and women. The task of this article is not to offer a fully
developed alternative model, but rather to begin work toward that end by
clarifying the shortcomings of the assimilationist model in dealing with
immutable sex differences.
II.
DEVELOPMENT OF THE ASSIMILATIONIST MODEL: RACE AS A
"SUSPECT CLASSIFICATION"
A. HistoricalBackground
Equality is a deeply-held yet elusive ideal in American legal and
political theory. Our Declaration of Independence numbered among its
self-evident truths that all men are created equal. Yet, even at the time
nist Jurisprudence, 56 IND. L.J. 375, 435-37 (1981) (urging the adoption of an "incorporationist
approach" to in utero pregnancy and breastfeeding).
14. See Note, supra note 8, at 704-09.
15. See Wasserstrom, supra note 10, at 604.
16. Id. at 604-05.
17. E. WOLGAST, EQUALITY AND THE RIGHTS OF WOMEN 18-36 (1980); Wasserstrom, supra
note 10, at 605-06.
18. See E. WOLGAST, supra note 17, at 51.
19. See also Rutherglen, Sexual Equality in Fringe-BenefitPlans, 65 VA. L. REV. 199, 205-16
(1979).
20. My discussion of the legal significance of race is limited to blacks. The legal principles
developed in the context of race discrimination against blacks may, of course, apply to members of
other minority groups as well. See infra note 72. But as Justice Marshall observed in Regents of
Univ. of Cal. v. Bakke, 438 U.S. 265, 400 (1978) (separate opinion of Justice Marshall), "[t]he experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic
groups." I therefore focus on the model of racial equality fashioned in the context of relations
between blacks and whites in America.
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those words were written, the nation's founders did not comprehend that
the generic term men might also include women as full participating
members of the body politic.2" Nor did "men" refer to blacks,2 2 for the
African slave traders repudiated the idea that blacks could be legally persons rather than property. 3 A civil war finally created the political conditions necessary to amend the United States Constitution to abolish
slavery24 and to create the prerequisite for an assimilationist view of racial equality: that the newly-freed blacks were human beings entitled to
the equal protection of the laws.2" But in the years following the Civil
War, the pervasive practice of segregation allowed Americans to avoid
treating the former slaves and their descendants as persons entitled to
equal dignity and respect.2 6 Instead, the United States Supreme Court
endorsed a formal equality based on the separation of the races and premised on the provision of physically equal accommodations.2 7
The unsettling impact of another war-World War II-was a crucial factor in releasing the social and political forces that dismantled legal
segregation by race in the United States. 2' That war also enabled the
Supreme Court to crystalize its views about the degree of judicial scrutiny appropriate for laws discriminating on the basis of race by confronting that issue in a context that involved Japanese-Americans rather
than blacks.29 Upholding by a narrow majority the intentional exclusion
of Japanese-Americans from their West Coast homes, Justice Black laid
the foundation for the doctrine of strict scrutiny 30 that later embodied
the assimilationist ideal in cases challenging race discrimination against
blacks. 3 1 Thereafter, others who claimed to be disadvantaged in ways
21.
22.
23.
See 2 A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 222-23 (Vintage ed. 1954).
Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 410 (1856).
Id. at 407-08.
24.
U.S. CONST. amend. XIII. See J. BAER, EQUALITY UNDER THE CONSTITUTION 57-72
(1983).
25.
26.
U.S. CONST. amend. XIV. See J. BAER, supra note 24, at 73-104.
See, e.g., Civil Rights Cases, 109 U.S. 3 (1883) (rejecting challenges to the exclusion of
blacks from public accommodations including hotels, theaters, and ladies' railroad coaches in five
states under the Civil Rights Act of 1875). See generally G. MYRDAL, AN AMERICAN DILEMMA
573-663 (20th Anniv. ed. 1962).
27. See, e.g., Plessy v. Ferguson, 163 U.S. 537 (1896) (sustaining Louisiana's law requiring
"separate but equal" passenger coach accommodations for blacks and whites on intrastate railroads).
28. See W. CHAFE, WOMEN AND EQUALITY 84-87 (1977); G. MYRDAL, supra note 26, at 9971024.
29. American military authorities subjected Japanese-Americans residing on the West Coast to
curfew laws, see Hirabayashi v. United States, 320 U.S. 81 (1943), and residence restrictions, see
Korematsu v. United States, 323 U.S. 214 (1944), because the military feared a Japanese attack on
the Pacific Coast aided by internal espionage and sabotage. See generally J. TENBROEK, E. BARNHART & F. MATSON, PREJUDICE, WAR AND THE CONSTITUTION (1954).
Korematsu recently se-
cured a writ of coram nobis vacating his conviction on the grounds of governmental misconduct.
Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) (Marilyn Patel, J.).
30. Korematsu, 323 U.S. at 216 (the vote was 6 to 3). See J. BAER, supra note 24, at 112-13.
31. See infra text following note 109. The word suspect was first juxtaposed with a classification affecting blacks in Bolling v. Sharpe, 347 U.S. 497 (1954) (challenging segregation in the public
schools of the District of Columbia). Boiling was a companion case to Brown v. Board of Educ., 347
U.S. 483 (1954). The Bolling Court said, "[c]lassifications based solely upon race must be scruti-
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analogous to the deprivations suffered by blacks, sought the greater protection of a presumption against classifications based on traits arguably
similar to the immutable characteristic of race, such as alienage,32 illegitimacy, 33 or sex. 34 Few claimants have successfully brought themselves
within the ambit of strict judicial scrutiny, 35 however, and distinctions
based on race continue to provide the paradigm for suspect
classifications.3 6
Still, the legal victories that black litigants secured during their long
struggle to implement the fourteenth amendment's promise of racial
equality 37 continue to inspire other disadvantaged groups. The hope that
social, political, and economic gains will follow the legal victories lends
an added human importance to the litigation strategy. That hope, too,
has inspired others to turn to the courts to build the legal foundations of
their visions of a just society.
The judicial response to these varied initiatives reflects and shapes
the changing content of the concept of equality outside, as well as inside,
the courtroom. Because the aspirations of so many people depend on the
outcome and reasoning of these cases, the court opinions take on a moral
dimension that transcends their technical significance as legal precedents.
In this atmosphere, the law becomes the object of struggle as both sides
of a particular controversy seek to have the rule of law reflect their own
conception of justice. To study these cases, therefore, is to reflect upon a
legal microcosm of the struggle for social justice.
nized with particular care, since they are contrary to our traditions and hence constitutionally suspect." 347 U.S. at 499 (citing Korematsu and Hiraboyashi). By the time of Loving v. Virginia, 388
U.S. 1 (1967), the doctrine of strict scrutiny of all racial classifications was firmly established.
See J. BAER, supra note 24, at 113-18; Developments in the Law--Equal Protection, 82 HARV.
L. REV. 1065, 1077-87 (1969). The application of strict scrutiny to racial discrimination against
whites was debated, but not resolved, in Bakke, discussed infra text accompanying notes 151-54.
32. E.g., Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948). See generally L. TRIBE,
AMERICAN CONSTITUTIONAL LAW 1052-56 (1978) (concluding that although alienage is not an
unalterable trait, it is properly treated as a suspect classification). See also J. ELY, DEMOCRACY AND
DISTRUST 148-50 (1980) (pointing out some shortcomings in using the "immutability" concept as a
test of suspect classifications).
33. Eg., Mathews v. Lucas, 427 U.S. 495 (1976) (rejecting the argument that classifications
based on illegitimacy are suspect and require strict scrutiny). See infra note 35.
34. Eg., Frontiero v. Richardson, 411 U.S. 677 (1973) (only four members of the Court accepted the argument that classifications based on sex are suspect and require strict scrutiny). See
generally L. TRIBE, supra note 32, at 1063-66. See infra note 35.
35. The Court has not extended strict scrutiny to classifications based on illegitimacy, see L.
TRIBE, supra note 32, at 1057-60, or sex, id. at 1063-66. See generally J. ELY, supra note 32, at 14570.
36. See Fiss, Groupsand the Equal ProtectionClause, 5 PHIL. & PUB. AFF. 107, 147-48 (1975).
37. See generally R. KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN v BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (1976). I do not mean to suggest that
racial equality has been fully achieved, in concrete terms or otherwise, in American society. See
generally Bell, A Hurdle Too High: Class-BasedRoadblocks to Racial Remediation, 33 BUFFALO L.
REV. 1 (1984). Indeed, current governmental policies seem designed to retard equality for blacks.
See, e.g., Days III, Turning Back the Clock- The Reagan Administration and Civil Rights, 19 HARV.
C.R.-C.L. L. REV. 309 (1984); Barnett, The New Federalism and the Unfinished Civil Rights
Agenda, 8 BLACK L.J. 375 (1983).
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B.
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Theoretical Analysis and Approach
In this article, I treat a group of selected cases as social indicators3 8
of American progress towards a society in which racial and sexual equality is the legal norm. I first examine the case law produced by litigants
attacking discrimination based on race from the perspective of its tendency to empower the disadvantaged group, thereby enabling group
members to improve their economic, political, and social position. I then
compare the race cases with the case law produced by litigants attacking
discrimination based on sex. Despite the efforts of the sex discrimination
claimants to use the race discrimination cases as a legal precedent, the
emerging patterns of power exchange from the sex and race cases are
sufficiently different to confirm an underlying divergence in the relative
social and legal status of the two groups. This variance in distribution of
power suggests that differentiation by sex is a phenomenon at once more
accepted and more difficult to change than differentiation by race.
Drawing on this analysis, I argue that the concept of racial equality
differs significantly from the concept of sexual equality. In a just society,
the assimilationist view39 holds that racial differences-primarily skin
color-ultimately can be dismissed as irrelevant. The assimilationist
view, however, must be modified in the case of sexual equality, for dismissing sex differences as irrelevant would not lead to a just society. Instead, a just society needs to recognize and accommodate sex differences
in order to neutralize them as barriers to equal opportunity for personal
achievement.
1.
The First Step
My argument proceeds as follows. First, I briefly review cases chal-
38. For a doctrinal analysis of the sex antidiscrimination and reverse discrimination cases
brought on both constitutional and statutory grounds, as well as the statutory race cases, see H.
KAY, TExT, CASES AND MATERIALS ON SEx-BASED DISCRIMINATION (2d ed. 1981 & Supp. 1983).
See also Freedman, Sex Equality, Sex Differencesx and the Supreme Court, 92 YALE L.J. 913 (1983)
(analyzing the antidiscrimination and reverse discrimination sex cases, primarily those brought on
constitutional grounds). The race antidiscrimination and reverse discrimination cases brought on
constitutional grounds are discussed in L. TRIBE, supra note 32.
As a methodological tool, my use of Supreme Court cases as indicators of social patterns is
subject to certain limitations. The Supreme Court controls the major portion of its docket through
its discretionary power to grant or deny the writ of certiorari. My universe of data, therefore, is not
only restricted but may also be biased by the Justices' priorities in selecting cases for review. Half of
the cases discussed in this article, however, came to the Court by way of appeal. And a contrast as
striking as the one identified infra notes 42-43 and accompanying text, that appears even in this
rarified universe-namely, the difference between the one-way pattern of desired access shown in the
race cases and the two-way pattern exhibited in the sex cases---indicates a pervasive difference in
social patterns of power distribution that transcends these methodological limitations.
39. See Wasserstrom, supra note 10, at 604; Jaggar, supra note 10, at 275 (both describing the
assimilationist ideal). On the question whether skin color is always irrelevant, see Kaplan, Equal
Justice in an Unequal World: Equalityfor the Negro-The Problem of Special Treatment, 61 Nw.
U.L. REv. 363, 383 (1966) (discussing the constitutionality of a hypothetical state law defining as
negligent a person whose skin is darker than a specified shade and who walks on a road at night
without wearing some light-colored item of clothing).
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lenging race and sex discrimination in the United States Supreme Court
on both constitutional' and statutory4" grounds. I distinguish two subsets of cases: antidiscrimination cases, and benign or reverse discrimination cases. Antidiscrimination cases are brought by members of a group
who perceive themselves to be disadvantaged. These litigants seek to remove racial or sexual barriers that prevent access by the disadvantaged
group to rights or opportunities enjoyed by the privileged group. Reverse
discrimination describes cases brought by members of the advantaged
group who seek to neutralize (in race cases) or extend (in sex cases) a
preference thought to be benign that has been made available to the
otherwise disadvantaged group.
Examined from this perspective, the race and sex cases present different models of legal change designed to secure social justice. The antidiscrimination race cases show a one-way model of desired access:
black litigants asking to be treated like whites in specified circumstances.4 2 The antidiscrimination sex cases, however, show a two-way
model of desired access: women asking to be treated like men in the
public sphere and men asking to be treated like women, primarily in the
private sphere.4 3 Thus, while empowerment in the successful race cases
40. I discuss primarily those cases arising under the following constitutional provisions: the
due process clause of the fifth amendment; the thirteenth amendment; the privileges and immunities,
and equal protection clauses of the fourteenth amendment; and the fifteenth amendment.
41. I discuss primarily those cases arising under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e (1982) (as amended in 1972 and 1978), although some cases arising under Title VI of
the Act, as well as others arising under the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1964), and
the Civil War Civil Rights Acts, 42 U.S.C. § 1971 (1982), are also included.
42. The text focuses on cases in which blacks sought first to remove the legal barriers imposed
by segregation, and, more recently, to overcome the continuing effects of segregation and past racial
discrimination. In recent cases, whites and other minority group plaintiffs who work or study in
black-dominated educational institutions have complained of racial discrimination against them by
blacks. See, e.g., Dybczak v. Tuskegee Inst., 737 F.2d 1524 (11 th Cir. 1984) (white male, formerly
employed as Dean of Engineering at Tuskegee, fails to prove race discrimination in his non-reappointment); Williams v. Howard Univ., 528 F.2d 658, 660 (D.C. Cir. 1976) (white male student
seeking readmission to Howard University Medical College fails to prove race discrimination);
Turgeon v. Howard Univ., 571 F. Supp. 679, 686-87 (D.D.C. 1983) (white woman of French ancestry proves in Title VII suit that she was discharged from her position as a teacher of Romance
languages at Howard University because of her race; reinstatement ordered); Sanford v. Howard
Univ., 415 F. Supp. 23, 27-28 (D.D.C. 1976) (American Indian woman failed to prove that she was
suspended from the Howard University School of Social Work because of her race). To the extent
that these and other similar cases indicate the beginning of a two-way model in the race discrimination cases, they are a welcome indication that blacks have acquired power and privilege in American
society that whites and other minority group members seek to share. But the cases do not refute the
earlier and continuing contrast between the race and sex cases shown in the text, nor do they dispel
the fact that blacks as a group are disadvantaged in our society when compared to whites as a group.
43. This alignment of the cases reflects the traditional separation of the sexes into different
spheres of authority: women supposedly in control in the home, men in power in the external world.
See, e.g., J. ELSHTAIN, PUBLIC MAN, PRIVATE WOMAN (1981); E. JANEWAY, MAN'S WORLD,
WOMAN'S PLACE (1971); Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983). I do not advocate continuing this traditional division. See
infra text accompanying notes 227-29. Nor do I wish to suggest that these cases imply that we are
moving toward an androgynous society. The contrast between the one-way model of access characteristic of the race antidiscrimination cases and the two-way model that appears in the sex cases,
however, seems to confirm the perception that many people in our society continue to value sex
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moves only from the privileged white group to the disadvantaged black
one, in the successful sex cases empowerment flows in both directions:
from women to men, primarily in the family context, as well as from men
to women, primarily in the commercial setting.
The benign or reverse discrimination race cases also present a oneway model: white litigants seeking to eliminate a particular limited opportunity made available to blacks. Unlike the antidiscrimination cases,
whites in the reverse discrimination cases do not merely claim that they
are excluded because of their race, but rather that they are excluded because of a priority based on the race of the otherwise disadvantaged
group. The white plaintiffs assert that if the preference for blacks were
removed, the plaintiffs could obtain the opportunity they seek.
I find that the benign or reverse discrimination sex cases are strikingly different. Since 1971, in the sex cases that the Supreme Court has
identified as examples of permissible benign discrimination, the plaintiffs
are men who seek to preserve and extend to themselves the preference
designed for women. Thus, the cases confirm the two-way pattern of
desired access to power shown in the sex antidiscrimination cases. Only
in those instances in which white males attack hiring or promotional
preferences favoring women does the pattern of the race reverse discrimination cases appear. Preferences for blacks and other minority group
members are frequently at issue there as well. I conclude, therefore, that
the category of benign discrimination sex cases is ultimately not distinguishable from the larger group of sex antidiscrimination cases.
Moreover, commentators and judges have generally considered the
use of benign preferential treatment in the race cases, if limited in scope
and duration, beneficial to blacks as a group because the preference is
designed to further their legal assimilation with whites." But the benign
discrimination upheld for women was initially justified on the basis of the
"different functions in life which they perform." 4 5 Because physical
childbearing cannot be exchanged between men and women and social
childrearing functions traditionally have not been so exchanged, commentators have rejected as harmful to women as a group the preferences
roles, but not race roles. See Rutherglen, supranote 19, at 205-12. The sex antidiscrimination cases
brought by men are largely, but not exclusively, directed at the private sphere. See infra text accompanying notes 219-21.
44. See generally Wasserstrom, supra note 10, at 615-22; Edwards, PreferentialRemedies and
Affirmative Action in Employment in the Wake of Bakke, 1979 WASH. U.L.Q. 113, 122-36. The cost
of such preferences for blacks has been identified by Bell, Bakke, Minority Admissions, and the Usual
Price of Racial Remedies, 67 CALIF. L. REV. 3 (1979); and by Kaplan, supra note 39, at 369-80
(discussing a hypothetical governmental requirement that private employers grant employment preferences to blacks). For a recent summary of the arguments justifying affirmative action, see Segers,
Justifying Affirmative Action, in ELUSIVE EQUALITY: LIBERALISM, AFFIRMATIVE ACTION, AND
SOCIAL CHANGE IN AMERICA 75 (1982) [hereinafter cited as ELUSIVE EQUALITY].
45. Muller v. Oregon, 208 U.S. 412, 423 (1908) (upholding an Oregon statute prohibiting the
employment of women "in any mechanical establishment, or factory, or laundry" for more than 10
hours per day). See generally J.BAER, CHAINS OF PROTECTION (1978).
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granted to women on that basis.4 6
Based upon this analysis of the race and sex cases, I contend that the
sex discrimination model is more firmly embedded in American law than
the race discrimination model because the former both confers power
and imposes disadvantages upon both groups of litigants rather than one.
Therefore, the eradication of sex discrimination will require a more fundamental alteration of the existing legal and social order than the elimination of race discrimination has been thought to demand, because it
requires the surrender of power by both groups rather than by one. But
if both groups can perceive this mutual surrender as an exchange that
will be mutually beneficial, some of the formidable psychological barriers
to social restructuring along cross-sexual lines may be lessened. In that
case, both sexes might discover a shared incentive for change that would
help minimize the realization that men may be called upon initially to
surrender gains that are more highly prized by a paternalistic society
than those that women must relinquish.
2.
The Second Step
After analyzing race and sex cases, I also examine a subgroup of the
sex antidiscrimination cases in which the courts initially rejected the
claim that sex discrimination had occurred. These cases all share a common trait: some members of one sex were treated differently than other
members of that same sex according to whether they exhibited a particular feature, such as marital status, age, facial hair, weight, or pregnancy.
But no members of the other sex were present for comparison, or, if present, were not available for direct comparison about the feature at issue.
Under these circumstances, the judges held that the discrimination complained of was not based on sex, but on the distinguishing feature. I
believe that these cases mark the limits of the capacity of the antidiscrimination strategy to achieve its goal of unrestricted access, for if there
is no readily identifiable member of the opposite sex to use as the standard of comparison, the claim of discrimination fails.4 7
I also believe that these cases disclose a weakness in the analogy
between the model of racial equality and the model of sexual equality.
The ideal of racial equality is premised on a society's ability to ignore
race as a salient characteristic, but an adequate model of sexual equality
will always confront sexual reproductive differences.4" An equality
model designed to overcome the disadvantages that are the contemporary legacy of an irrational prejudice focusing on the superficial characteristic of skin color is an inadequate blueprint for a society that must
46. See, e.g., Kanowitz, "Benign" Sex Discrimination: Its Troubles and Their Cure, 31 HAsTINGS L.J. 1379 (1980); Ginsburg, Some Thoughts on Benign Classification in the Context ofSex, 10
CONN. L. REv. 813 (1978).
47. See Wildman, The Legitimation of Sex Discrimination: A Critical Response to Supreme
Court Jurisprudence,63 OR. L. REV. 265, 270-72 (1984).
48. See Law, Rethinking Sex and the Constitution, 132 U. PA. L. REv. 955, 965-66 (1984).
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eliminate its stereotypical attitudes toward both sexes while accommodating their different physical functions.
III.
APPLYING THE ASSIMILATIONIST MODEL IN RACE AND SEX
LITIGATION
A. Race Discrimination
The claim that the race antidiscrimination cases display only a oneway model of desired access-that of disadvantaged blacks seeking admittance on equal terms to the rights and opportunities available to privileged whites-should not be a surprising one. Viewed as indicators of
social progress toward equality rather than as sources of constitutional
doctrine, the race discrimination cases amply confirm Richard Wasserstrom's judgment that "[t]o be black [in American society] is to be a
member of what was a despised minority and what is still a disliked and
oppressed one."4 9 What is surprising in historical context is that an assimilationist model has ultimately been applied as the legal basis for racial equality.
1. AntidiscriminationLitigation
At the close of the Civil War, the rights granted to the emancipated
slaves were briefly protected during the Reconstruction period.5 ° The
compromises surrounding Rutherford B. Hayes's selection as President
in 1877,51 however, permitted the South to reestablish white supremacy.
Conforming with the prevailing national mood, the United States
Supreme Court invalidated52 or significantly narrowed"
federal laws
which the Reconstruction Congress enacted to safeguard the freedmen
from their former owners. By 1883, even if one could no longer say,
following Chief Justice Taney's earlier dictum, that a black man "had no
rights which the white man was bound to respect,'' 5 ' one could conclude
safely that blacks did not enjoy legal privileges denied to whites. On the
49. Wasserstrom, supra note 10, at 586.
50. See, e.g., E. BARRETT & W. COHEN, CASES AND MATERIALS ON CONSTITUTIONAL LAW
1005 (7th ed. 1985) (reporting that there were 1271 prosecutions under the criminal provisions of the
Civil Rights Acts in the southern federal courts in the peak year of 1873, but that the number had
dropped to 25 by 1878). See also G. MYRDAL, supra note 26, at 446-48. See generally 6 C. FAIRMAN, HISTORY OF THE SUPREME COURT OF THE UNITED STATES 89-117 (1971).
51. See generally C. WOODWARD, REUNION AND REACTION 221-34 (1956). The history of
this period is recounted briefly by Justice Marshall's separate opinion in Bakke, 438 U.S. at 390-94.
52. E.g., Civil Rights Cases, 109 U.S. at 3 (invalidating public accommodations provisions of
the Civil Rights Act of 1875); United States v. Harris, 106 U.S. 629 (1882) (invalidating the antilynching provisions of the Civil Rights Act of 1871); United States v. Reese, 92 U.S. 214 (1875)
(invalidating voting rights provisions of the Civil Rights Act of 1870). See R. KLUGER, supra note
37, at 60.
53. E.g., United States v. Cruikshank, 92 U.S. 542 (1875) (indictment against members of a
lynch mob accused of killing two blacks held not an offense under the Civil Rights Act of 1870). See
R. KLUGER, supra note 37, at 60-61.
54. Dred Scott v. Sandford, 60 U.S. (19 How.) at 407.
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contrary, in a criminal case"5 the Supreme Court already had laid the
foundation for the later approval of a doctrine56 that secured for whites
privileges denied to blacks in the name of equality.
a.
Constitutional Cases
One might reasonably assume that the chief constitutional source
for the assimilationist model of racial equality is the equal protection
clause of the fourteenth amendment, 7 which first placed those words in
the Constitution. But the clause is not limited to race,5" and the concept
of equality it embodies, like that included in the Declaration of Independence, 59 owes more to natural law concepts of the inherent equality of all
men' than to a considered belief that blacks were equal to whites on any
scale of measurement.6 1 Still, as the Supreme Court recognized in its
initial discussion6 2 of the Civil War amendments, the intended benefi55. Pace v. Alabama, 106 U.S. 583, 585 (1882). The case involved prosecution for interracial
sexual intercourse between a black man and a white woman. The Court reasoned that since "[t]he
punishment of each offending person, whether black or white, is the same," there had been no denial
of equal protection to the black defendant. The miscegenation cases are not inconsistent with the
one-way pattern of access in the race cases. Interracial assimilation through sexual relations was
publicly denounced as debasing the purity of the white race. Myrdal reports that although illicit
sexual relations between white men and black women were condoned, "[a] white woman's relation
with a Negro man is met by the full fury of anti-amalgamation sanctions." G. MYRDAL, supra note
26, at 56. See also id. at 60 (reporting that the bar against intermarriage and sexual intercourse
between black men and white women was given highest priority on the Southern white man's rank
order of discrimination). A white woman who sought to marry a black man was not, therefore,
seeking access to a position of power held by him. Rather, she was renouncing her own privileged
position as a respected member of the white race.
56. The Supreme Court approved the so-called "separate but equal" doctrine that permitted
racial segregation if the "separate" facilities and accommodations provided for blacks were "equal"
to those available to whites in Plessy v. Ferguson, 163 U.S. 537 (1896) (upholding a Louisiana statute requiring separate but equal passenger accommodations on railroad trains). See also McCabe v.
Atchison, Topeka & Santa Fe Ry. Co., 235 U.S. 151 (1914) (invalidating that portion of Oklahoma's
Separate Coach Law which allowed the provision of sleeping cars, dining cars, and chair cars for the
use of white passengers without providing similar accommodations for black travelers). The Jim
Crow laws typically also provided for sex separation: women needed to have separate coaches so
that they might be spared the company of men who wished to smoke, drink, or engage in other
manly conduct. See Tindall, The Color Line, in THE ORIGINS OF SEGREGATION 6, 12-14 (J. Wil-
liamson ed. 1968). See also Civil Rights Cases, 109 U.S. at 5 (includes a complaint of a black man
and his wife that she was excluded from the ladies' car); Bass v. Chicago Nw. Ry. Co., 36 Wis. 450
(1874) (complaint of man who was forcibly ejected from the ladies' car).
57. See L. TRIBE, supra note 32, at 992. See also J. BAER, supra note 24, at 77-79 (tracing the
origin of the phrase "equal protection").
58. J. BAER, supra note 24, at 87-94 (discussing debate in the Thirty-Ninth Congress over the
application of the fourteenth amendment to Orientals and women).
59. See J. TENBROEK, EQUAL UNDER LAW 116-19 (rev. ed. 1965); see also J. BAER, supra
note 24, at 80-87.
60. See, e.g., J. BAER, supra note 24, at 44-46 (discussing the influence of John Locke); Foster,
The Roots ofAmerican Notions About Equality, in ELUSIVE EQUALITY, supra note 44, at 11 (discussing the influence of John Locke and Thomas Hobbes).
61. J. BAER, supra note 24, at 80-87, 102.
62. Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873). The Court said that:
on the most casual examination of the language of these amendments, no one can fail to be
impressed with the one pervading purpose found in them all, lying at the foundation of each,
and without which none of them would have been even suggested; we mean the freedom of the
slave race, the security and firm establishment of that freedom, and the protection of the newly-
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ciaries were the freed slaves. The Court repeated this observation and
relied on the antidiscriminatory purpose of the fourteenth amendment to
invalidate, under the equal protection clause, a statute discriminating on
the basis of color in the selection of jurors.6 3 The Court later held, however, that private discrimination based on color was not prohibited by
that clause."r Far from embodying an assimilationist view of racial
equality, the Supreme Court initially held the equal protection clause
compatible with a society based on governmentally enforced racial
separation.6 5
Moreover, the Court's endorsement of the "separate but equal" doctrine of racial justice not only implicitly rejected the assimilationist
model, which assumes that racial differences are irrelevant, 66 but also
enshrined in the Constitution the express judicial acceptance of the validity of racial differences. Because the Court perceived these racial differences as natural ones, a majority of the Justices thought the law was
made freemen and citizen from the oppressions of those who had formerly exercised unlimited
dominion over him.
Id. at 71. See generally C. FAIRMAN, supra note 50, at 1301-88.
63. Strauder v. West Virginia, 100 U.S. 303 (1880). The Court said:
The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race, the right to exemption
from unfriendly legislation against them, distinctively as colored, exemption from legal discriminations, implying inferiority in civil society, lessening the security of their employment of the
rights which others enjoy, and discriminations which are steps toward reducing them to the
condition of a subject race.
IL at 307-08.
64. Civil Rights Cases, 109 U.S. at 21-25 (denial of access because of color to public accommodations offered to whites by private businesses held not to violate the fourteenth amendment because
no "state action" was involved). The litigation consolidated five cases. Mr. Stanley in Kansas and
Mr. Nichols in Missouri were denied hotel accommodations; Mr. Ryan was refused a seat in the
dress circle in Maguire's theater in San Francisco; Mr. Singleton was denied access to the Grand
Opera House in New York, and Mrs. Robinson was not allowed to sit in the ladies' coach on the
Memphis and Charleston Railroad.
Nor did this private conduct amount to the reimposition of slavery forbidden by the thirteenth
amendment. Justice Bradley's opinion for the Court on the thirteenth amendment issue clearly disclosed that he preferred a social model of racial separation to an assimilationist ideal:
There were thousands of free colored people in this country before the abolition of slavery,
enjoying all the essential rights of life, liberty and property the same as white citizens; yet no
one, at that time, thought that it was any invasion of his personal status as a freeman because he
was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to
discriminations in the enjoyment of accommodations in inns, public conveyances and places of
amusement. Mere discriminations on account of race or color were not regarded as badges of
slavery.
Id at 25.
65. Plessy v. Ferguson, 163 U.S. at 544, where the Court said:
The object of the amendment was undoubtedly to enforce the absolute equality of the two
races before the law, but in the nature of things, it could not have been intended to abolish
distinctions based upon color, or to enforce social, as distinguished from political equality, or a
commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even
requiring, their separation in places where they are liable to be brought into contact do not
necessarily imply the inferiority of either race to the other, and have been generally, if not
universally, recognized as within the competency of the state legislatures in the exercise of their
police power.
66. See Wasserstrom, supra note 10, at 604.
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powerless to alter them.6 7 Thus, American institutional racial segregation was built on the factual ground of perceived racial differences and on
the legal bedrock of judicial denial that classifications based on those differences constituted prohibited discrimination. So rigid and pervasive
did that institution become that, in 1942, Gunnar Myrdal was able to
describe it as a caste system.6" He observed that the caste line "will remain fixed until it becomes possible for a person to pass legitimately from
the lower caste to the higher caste without misrepresentation of his origin."6 9 That possibility, in turn, could not be realized until one could
overcome the obstacles posed by the belief that racial differences were
significant.7 0 Nothing short of an assimilationist model of racial justice
could serve as an adequate legal strategy for attacking segregation. Paradoxically, the equal protection clause would prove to be the best constitutional source for that arduous task.7 1
Although other racial minority groups availed themselves of the
protections of the fourteenth amendment and significantly enlarged its
interpretive scope, 72 black litigants, and primarily the National Associa67. 163 U.S. at 551 ("Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the
difficulties of the present situation."). For a discussion of racial differences as perceived by American whites, see G. MYRDAL, supra note 26, at 113-53. Cf Morgan v. Virginia, 328 U.S. 373 (1946)
(invalidating under the commerce clause a Virginia statute requiring racial separation on interstate
and intrastate motor buses for lack of a uniform standard by which to identify the race of
passengers).
68. G. MYRDAL, supra note 26, at 667-69.
69. Id. at 668.
70. Recall Wasserstrom's telling point that in a culture in which race is an unimportant characteristic of individuals, "it would literally make no sense to say of a person that he or she was
Ipassing'." Wasserstrom, supra note 10, at 585. I speak here only of physical differences. I do not
mean to suggest that there are not significant differences between the cultural heritages of blacks and
whites in America. Indeed, white culture in the south prior to the Civil War was shaped in important ways by black culture. See J. WILLIAMSON, THE CRUCIBLE OF RACE: BLACK-WHITE RELATIONS IN THE AMERICAN SOUTH DURING EMANCIPATION 35-43 (1984).
71. The irony of this point was not lost upon Gunnar Myrdal:
[T]he legal adherence to the principle of equality gives the Southern liberal a vantage point in
his work to improve the status of the Negroes and race relations. . . . it gives the Negro people
a firm legal basis for their fight against social segregation and discrimination. Since the two are
inseparable, the fight against inequality challenges the whole segregation system. The National
Association for the Advancement of Colored People has had, from the very beginning, the
constitutional provisions for equality as its sword and shield.
G. MYRDAL, supra note 26, at 581.
72. Orientals, whose claim to the protection of the fourteenth amendment had been debated by
the Thirty-Ninth Congress, see J. BAER, supra note 24, at 89-90, were brought within its terms in
Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (discriminatory application of a facially neutral
ordinance to Chinese laundry owners violates equal protection). Although the curfew and location
restrictions imposed on Americans of Japanese descent were upheld in Hirabayashiand Korematsu
against claims that they violated the equal protection clause, the Court first enunciated its strict
scrutiny standard for racial classifications in Korematsu, 323 U.S. at 216. See supra text accompanying note 29.
Mexican-Americans subsequently proved themselves to constitute "a distinct class ...
single[d] out. . . for different treatment not based on some reasonable classification" in Hernandez v.
Texas, 347 U.S. 475, 478 (1954). The Court held that the exclusion of persons of Mexican descent
from service as jury commissioners, and grand and petit jurors, denied equal protection to a Mexican-American defendant on trial for murder. The Court noted that "It]he Fourteenth Amendment
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tion for the Advancement of Colored People (NAACP), bore the chief
legal offensive against segregation.73 From its inception, the NAACP
waged an important part of its battle for equality in the courts. Given
the widespread social separation of the black and white races, the very
appearance of outstanding black lawyers who presented the cases in
court was a powerful argument for the assimilationist view of racial
equality.74
Black litigants in the early antidiscrimination cases sought various
specific objectives. One objective was to invalidate state-imposed restrictions on their exercise of the right to vote-such as grandfather clauses
which, when used with literacy tests, effectively limited access to the ballot to white voters; 7" the exclusion of black voters from the white primary elections of the Texas Democratic Party;7 6 the refusal to count the
ballots of black voters;7 7 and the poll tax.78 A further objective was to
is not directed solely against discrimination due to a 'two-class theory'-that is, based upon differences between 'white' and Negro." Id. at 478. See generally Delgado & Palacios, Mexican-Americans as a Legally Cognizable Class Under Rule 23 and the Equal Protection Clause, 50 NOTRE DAME
LAW. 393 (1975).
73. See G. MYRDAL, supra note 26, at 819-36. See generally M. FINCH, THE NAACP: ITS
FIGHT FOR JUSTICE (1981); R. KLUGER, supra note 37.
74. See R. KLUGER, supra note 37, at 149-50 (Charles Houston), 186-92 (Thurgood Marshall).
The personal cost of serving as a de facto representative of one's race may be quite high. See Matthews, In Black And White, N.Y. Times, Aug. 23, 1984, at 31-Y, col. 2.
75. Eg., Guinn v. United States, 238 U.S. 347 (1915) (invalidating Oklahoma's literacy test for
voters and its "grandfather" clause that exempted most white voters). Guinn was the first class-wide
case taken on by the NAACP, which appeared as amicus curiae in the case at the Supreme Court
level. See R. KLUGER, supra note 37, at 102-04. Oklahoma subsequently attempted to evade the
Guinn holding by setting a registration period limited to two weeks for those voters (Le., blacks) who
were not registered to vote in the election of 1914. This evasionary practice was challenged successfully under the fifteenth amendment in Lane v. Wilson, 307 U.S. 268 (1939). Justice Frankfurter
observed for the Court that "[t]he Amendment nullifies sophisticated as well as simple-minded
modes of discrimination." Id at 275.
76. The "white primary" was invalidated initially only when it resulted from state action. See
Nixon v. Herndon, 273 U.S. 536 (1927) (holding that a Texas statute declaring "a negro" ineligible
to vote in a Democratic primary party election violates the fourteenth amendment; unnecessary to
consider application of fifteenth amendment); Nixon v. Condon, 286 U.S. 73 (1932) (striking down
exclusion of black voter from Democratic party primary election by state executive committee whose
powers were drawn not from the state Democratic convention, but from a delegation of power by the
Texas legislature). The white primary was acceptable when the party was careful to limit its membership without relying on state power. See Grovey v. Townsend, 295 U.S. 45 (1935) (holding that
there was no state action or official involvement in a resolution of the state Democratic convention
limiting party membership to white citizens of Texas eligible to vote). After the Court held in
United States v. Classic, 313 U.S. 299 (1941) that the primary election was part of the general
election, and, as such, controlled by the United States Constitution, Grovey was overruled. See Smith
v. Allwright, 321 U.S. 649 (1944) (resolution of state convention was state action which violated the
fifteenth amendment). Accord Terry v. Adams, 345 U.S. 461 (1953) (exclusion of blacks from elections held by the Jaybird Democratic Association violated the fifteenth amendment). See L. TRIBE,
supra note 32, at 787-90. See also G. MYRDAL, supra note 26, at 479-81.
77. United States v. Classic, 313 U.S. 299 (right to vote in Louisiana primary and to have
ballots counted protected by U.S. CONST. art. I, §§ 2 & 4).
78. Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) (invalidating a poll tax on
the grounds that basing voter qualification upon wealth constituted an invidious discrimination).
Harperdid not deal, however, with the use of the poll tax as a device to prevent blacks from voting.
See G. MYRDAL, supra note 26, at 481-83. See also J. ELY, supra note 32, at 116-25 (discussing the
propriety of judicial intervention to protect voting rights).
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end the all-white jury by getting blacks on jury selection lists for both
grand and petit juries.79 In addition, the litigants wanted to acquire and
occupy residential property in locations of their choice.8 0
Stimulated by a 1929 foundation grant," however, the NAACP
chose segregation in the public schools as its primary legal target.8 2 The
campaign began at a weak point in the fortress of separate but equal
education-professional schools, in particular, law schools. 83 A series of
cases8 4 established that separate law schools for black applicants either
did not exist 8 5 or, where they were hastily thrown together under the
pressure of litigation, 6 were not equal. The defenders of separate but
equal schooling in Oklahoma tried to minimize their defeat in the final
case of the series: 7 they grudgingly admitted a black applicant to the
graduate division of the University of Oklahoma, only to segregate him
from his classmates in the lecture hall, the library, and the classroom. 8
Faced with this dogged and petty insistence on legal form, the Supreme
Court acknowledged the underlying reality: classifications in graduate
education based on skin color were not harmless to those whose skin
color was black. 9
Five years later, the Court, speaking unanimously through Chief
79. Eg., Hill v. Texas, 316 U.S. 400 (1942) (reversing conviction of black man convicted of
rape where blacks were systematically excluded from grand jury); Smith v. Texas, 311 U.S. 128
(1940) (same). But see Akins v. Texas, 325 U.S. 398, 407 (1945) (Court was "unconvinced that the
commissioners deliberately and intentionally limited the number of Negroes on the grand jury list"
to one black man). A statute excluding blacks from petit juries had been held invalid in Strauder v.
West Virginia, 100 U.S. 303 (1880).
80. Eg., Shelley v. Kraemer, 334 U.S. 1 (1948) (invalidating racially restrictive covenants
when enforced by state courts; voluntary compliance by private property owners not reachable by
fourteenth amendment); Harmon v. Tyler, 273 U.S. 668 (1927) (invalidating ordinance forbidding
racial "crossing" except by written consent of a majority of occupants of the opposite race);
Buchanan v. Warley, 245 U.S. 60 (1917) (invalidating ordinance prohibiting blacks from occupying
residential property in white neighborhoods).
81. See M. FINCH, supra note 73, at 84-90 (discussing the Garland Fund grant); see also R.
KLUGER, supra note 37, at 132-33.
82. R. KLUGER, supra note 37, at 133-36.
83. Id. at 187.
84. Eg., Sweatt v. Painter, 339 U.S. 629, 633-34 (1950) (University of Texas law school found
"superior" in terms of "number of faculty, variety of courses and opportunity for specialization, size
of the student body, scope of the library, availability of law review and similar activities," to the
newly-created law schools for Negroes); Sipuel v. Board of Regents, 332 U.S. 631, 632-33 (1948)
(University of Oklahoma required to provide a legal education for concededly qualified black woman
applicant "as soon as it does for applicants of any other group"); Missouri ex rel. Gaines v. Canada,
305 U.S. 337, 349-50 (1938) (State University of Missouri's offer to pay tuition for black applicant to
attend law school in another state "does not remove the discrimination" inherent in denying him
training made available to other groups within the state). See also Pearson v. Murray, 169 Md. 478,
182 A. 590 (1936) (black student ordered admitted to law school at University of Maryland). See
generally R. KLUGER, supra note 37, at 186-94, 202-04, 212-13, 258-66.
85. Eg., Sipuel, 332 U.S. at 632-33; Canada, 305 U.S. at 342.
86. Eg., Sweatt, 339 U.S. at 633-34.
87. McLaurin v. Oklahoma, 339 U.S. 637 (1950).
88. 339 U.S. at 640-41. See R. KLUGER, supra note 37, at 268-69.
89. 339 U.S. at 641.
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Justice Warren in Brown v. Board of Education,9" applied its new insight
to black students attending segregated grammar and high schools. They,
too, were placed at risk of permanent psychological damage9 by their
enforced separation from white students. The conclusion followed:
"[s]eparate educational facilities are inherently unequal." 92 The Court
withdrew the legal support for racial separation, imposed in Plessy v. Ferguson93 in the context
of accommodations for railroad travelers, in the
94
schoolroom setting.
The legal significance of both decisions reached across the entire social fabric of America. 95 In the wake of Brown, while resistance to its full
implementation in the schools was beginning, 96 the Court extended
Brown's mandate ending segregation to other public settings, including
recreational facilities 97 and transportation."
Although some observers
have questioned whether Brown's implicit requirement of integrated
schooling is always the best educational choice for black students, 99
90. 347 U.S. 483 (1954). See also Boiling v. Sharpe, 347 U.S. 497 (1954) (segregated public
schools in the District of Columbia violated the due process clause of the fifth amendment).
91. Brown, 347 U.S. at 494. See generally The Courts, Social Science, and School Desegregation, 39 LAW & CONTEMP. PROBS. 1 (1975) (symposium).
92. Brown, 347 U.S. at 495. See generally Lawrence, "One More River to Cross"-Recognizing
the Real Injury in Brown: A Prerequisiteto Shaping New Remedies, in SHADES OF BROWN: NEW
PERSPECTIVES ON SCHOOL DESEGREGATION 49 (D. Bell ed. 1980) [hereinafter cited as SHADES OF
BROWN] (pointing out that the Court's emphasis on the effects of segregated schooling on black
children allowed it to ignore the overriding purpose of American-style segregation to stigmatize
blacks as inferior).
93. 163 U.S. 537 (1896).
94. Brown, 347 U.S. at 495; Bolling, 347 U.S. at 500.
95. Fg., J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 91-95
(1980); Carter, The Warren Court and Desegregation,67 MICH. L. REv. 237, 246-47 (1968) [hereinafter cited as Carter, The Warren Court]. See also R. KLUGER, supra note 37, at 748-50; Carter, A
Reassessment of Brown v. Board, in SHADES OF BROWN, supra note 92, at 21 [hereinafter cited as
Carter, Reassessment].
96. See, e.g., R. KLUGER, supra note 37, at 751-78; Ravitch, Desegregation: Varietiesof Meaning, in SHADES OF BROWN, supra note 92, at 31. See generally Bell, Waiting on the Promise of
Brown, 39 LAW & CONTEMP. PROBS. 341 (1975); Read, Judicial Evolution of the Law of School
Integration Since Brown v. Board of Education, 39 LAW & CONTEMP. PROBS. 7 (1975).
97. E.g., Holmes v. City of Atlanta, 350 U.S. 879 (1955) (municipal golf course); Dawson v.
Mayor of Baltimore, 220 F.2d 386 (4th Cir.), aff'd, 350 U.S. 877 (1955) (bathing beaches and public
recreation facilities); New Orleans City Park Improvement Ass'n v. Detiege, 252 F.2d 122 (5th Cir.),
aff'd, 358 U.S. 54 (1958) (golf course and city park facilities). Compare Watson v. City of Memphis,
373 U.S. 526 (1963) (delayed implementation of order to desegregate schools permitted by Brown v.
Board of Educ. II, 349 U.S. 294 (1955) (not applicable to order to desegregate public parks and
municipal recreation facilities) with Palmer v. Thompson, 403 U.S. 217 (1971) (closing of all public
swimming pools in Jackson, Mississippi, following desegregation order did not violate fourteenth
amendment).
98. E.g., Gayle v. Browder, 352 U.S. 903 (1956) (city busses in Montgomery, Alabama).
99. See, e.g., Bell, A Model Desegregation Plan, in SHADES OF BROWN, supra note 92, at 125;
Edmonds, Effective Educationfor Minority Pupils: Brown Confounded or Confirmed, in SHADES OF
Brown, supra note 92, at 109; Bell, Serving Two Masters: Integration Ideals and Client Interests in
School DesegregationLitigation, 85 YALE L.J. 470 (1976) (describing the conflict between civil rights
attorneys and parents of black children in post-Brown litigation). Cf.Devins, School Desegregation
Law in the 1980's. The Courts'Abandonment of Brown v. Board ofEducation, 26 WM. & MARY L.
REV. 7 (1984) (arguing that, if a school board can overcome a presumption favoring busing as a
preferred initial remedy in desegregation suits by a showing of its ineffectiveness, the board should
then be permitted to explore other means of eliminating racial discrimination in the school system).
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Brown's abiding significance for improving race relations in America cannot be doubted. By rejecting racial separation as constitutionally tolerable, Brown affirmed the humanity of black Americans and cleared the
way for the legal ascendency of an assimilationist view of racial equality.
One of the most deeply-held beliefs of the proponents of racial separation in America was that amalgamation of the two races never should
occur.oo The legal mandate that reflected this belief was the prohibition
against miscegenation, which the Supreme Court had upheld in 188301
and had relied upon to support its 1896 holding in Plessy. 0 2 Reexamined in the light of Brown, however, laws against miscegenation could not
endure. In its opinions striking down criminal sanctions for interracial
sexual intercourse in McLaughlin v. Florida13 in 1964 and intermarriage
in Loving v. Virginia" in 1967, the Court clearly applied strict judicial
scrutiny to suspect racial classifications for the first time.'1 5 Moreover,
the Court also expressly embraced the assimilationist view that skin color
was irrelevant in criminal cases.' 0 6 One year after Loving, under the
leadership of Justice Stewart, the Court read its newly-formed view of
racial equality into the moribund statutory descendant of the Civil
Rights Act of 1866,107 thereby confounding legislative history1 18 in its
100. See G. MYRDAL, supra note 26, at 53-67.
101. Pace v. Alabama, 106 U.S. 583 (1883). See supra note 55.
102. 163 U.S. at 545.
103. 379 U.S. 184 (1964).
104. 388 U.S. 1 (1967).
105. The strict scrutiny doctrine was enunciated, but not applied, to strike down a racial classification, in Korematsu v. United States, 323 U.S. 214 (1944). The Court applied the doctrine in a
school desegregation case in Boiling v. Sharpe, 347 U.S. 497 (1954). Combining these statements,
the Court thus phrased the standard in McLaughlin:
[W]e deal here with a classification based upon the race of the participants, which must be
viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was
to eliminate racial discrimination emanating from official sources in the States. This strong
policy renders racial classifications "constitutionally suspect," Boiling v. Sharpe, 347 U.S. 497,
499; and subject to the "most rigid scrutiny," Korematsu v. United States, 323 U.S. 214, 216;
and "in most circumstances irrelevant" to any constitutionally acceptable legislative purpose,
Hirabayashiv. United States, 320 U.S. 81, 100.
379 U.S. at 191-92. Compare the statement in Loving:
At the very least, the Equal Protection Clause demands that racial classifications, especially
suspect in criminal statutes, be subjected to the "most rigid scrutiny," Korematsu v. United
States, 323 U.S. 214, 216 (1944), and, if they are ever to be upheld, they must be shown to be
necessary to the accomplishment of some permissible state objective, independent of the racial
discrimination which it was the object of the Fourteenth Amendment to eliminate.
388 U.S. at 11.
106. In Loving, the majority opinion said: "Indeed, two members of this Court have already
stated that they 'cannot conceive of a valid legislative purpose . . . which makes the color of a
person's skin the test of whether his conduct is a criminal offense.' " 388 U.S. at 11 (quoting 379
U.S. at 198). In McLaughlin, 379 U.S. at 188, the Court had repudiated Pace: "Pace... represents
a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent
decisions of this Court."
107. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). The Court interpreted 42 U.S.C.
§ 1982 to bar "all racial discrimination, private as well as public, in the sale or rental of property."
392 U.S. at 413 (emphasis in original). It also held that the statute, as construed, is a valid exercise
of congressional power under the thirteenth amendment: "[a]nd when racial discrimination herds
men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is
a relic of slavery." Id. at 442-43. Cf General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375
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understandable zeal "to rid the law of any tolerance of race
discrimination." 109
One may view the maturation of the doctrine of strict judicial scrutiny of suspect racial classifications in the school desegregation and miscegenation cases as the judicial embodiment of an assimilationist view of
racial equality. By creating a standard that presumes racial classifications are unconstitutional and puts the burden of showing their validity
on the official seeking to have them upheld, the Court has declared race
to be legally irrelevant for virtually all public purposes.
Indeed, the strict scrutiny doctrine has afforded black litigants considerable protection. As constitutional law scholars have pointed out,' °
after Korematsu v. United States,"' no case applying that doctrine has
upheld a challenged express racial classification. But the range of cases
to which the Court will apply the doctrine is limited to those involving
state action 1 2 where the race discrimination, if not overt, is shown to be
intentional." 3 At a time when few classifications are drawn expressly on
the basis of race, 4 the latter restriction has deflected constitutional argument in the antidiscrimination cases into an often fruitless search for
official motivation.'
The debate about the validity of classifications
(1982), holding intentional discrimination necessary to impose liability under 42 U.S.C. § 1981 in the
employment context. See also infra note 113.
108. See C. FAIRMAN, supra note 50, at 1207-60. See also Fiss, The Fate of An Idea Whose
Time Has Come: AntidiscriminationLaw in the Second Decade After Brown v. Board of Education,
41 U. CHI. L. REV. 742, 747-48 (1974) (arguing that the Court decided Jones on statutory grounds
to avoid the question of whether the fourteenth amendment prohibited private discrimination in
housing).
109. C. FAIRMAN, supra note 50, at 1258.
110. See L. TRIBE, supranote 32, at 1000; Gunther, The Supreme Court, 1971 Term-Foreword:
In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86
HARV. L. REv. 1, 8 (1972).
111. 323 U.S. 214 (1944). See supra note 29.
112. See L. TRIBE, supra note 32, at 1147.49.
113. In Washington v. Davis, 426 U.S. 229 (1976), the Court held that the use of an employment personnel test by the District of Columbia Metropolitan Police Department that excluded four
times as many black applicants as white applicants did not involve unconstitutional racial discrimination in the absence of a showing of discriminatory purpose. "But our cases have not embraced the
proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact." Id. at 239
(emphasis in original). In General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375 (1982),
the Court held intentional discrimination was necessary to violate 42 U.S.C. § 1981, the statutory
successor to the Civil Rights Act of 1866, in the context of employment discrimination.
114. When such overt antidiscrimination cases turn up, of course, the Court has little difficulty
in resolving them. See, e.g., Palmore v. Sidoti, 104 S.Ct. 1879 (1984) where the Court held that a
change of custody of white child from mother to father because of mother's marriage to black man
violates the fourteenth amendment: "(tihe effects of racial prejudice, however real, cannot justify a
racial classification removing an infant child from the custody of its natural mother found to be an
appropriate person to have such custody." Id. at 1882.
115. See, e.g., Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256 (1979) (challenge to preferential treatment of veterans on sex discrimination grounds); Arlington Heights v. Metropolitan Hous.
Dev. Corp., 429 U.S. 252 (1977) (challenge to refusal by village to grant a rezoning request that had
a disproportionate impact on prospective black occupants of low and moderate income housing).
Compare Rogers v. Lodge, 458 U.S. 613 (1982) (system of at-large elections in Burke County, Georgia, was maintained for invidious purpose of discriminating against black voters) with City of Mobile
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based on race now has shifted from the antidiscrimination cases to the
reverse discrimination cases. 1 6 Meanwhile, the on-going effort to secure
access for blacks to the rights and opportunities available to whites is
now being conducted primarily under federal statutes, in particular, the
Civil Rights Act of 1964.117
b.
Statutory Litigation Under Title VII
Like the constitutional race antidiscrimination litigation, the statutory race antidiscrimination cases brought under Title VII also display a
one-way model of blacks"' seeking access to employment opportunities
previously available only to whites. Although the Supreme Court decided that the Constitution permits challenges only to express or intentional discrimination in the public sector," 9 Title VII allows black
litigants to confront job discrimination in the private 20 as well as public 2 sectors. These claims may be based on the effects of past discrimination1 22 as well as present, purposeful discrimination. 23 Thus, in
Griggs v. Duke Power Co.,124 one of its first cases interpreting Title
VII, 2 5 the Supreme Court rejected lower court views 126 that the statute
was limited to cases where a discriminatory animus against blacks motivated the employment decision. Rather, the Court held that Title VII
v. Bolden, 446 U.S. 55 (1980) (at-large municipal elections in Mobile, Alabama, not shown to have
been conceived or operated as a purposeful device to dilute the voting strength of blacks).
116. See infra text accompanying notes 141-60.
117. 28 U.S.C. § 1447j; 42 U.S.C. §§ 1971, 1975a-d, 2000h-6 (1982); 42 U.S.C. § 2000a (1964).
I discuss only cases arising under Title VII of that Act. 42 U.S.C. § 2000e-17 (1982). The Voting
Rights Act of 1965, 42 U.S.C. §§ 1971, 1973-1973p (1982), and litigation under its provisions, is not
included here. See generally U.S. Comm'n on Civil Rights, The Voting Rights Act: Unfulfilled
Goals (1981); S. LAWSON, BLACK BALLOTS: VOTING RIGHTS IN THE SOUTH 1944-1969 (1976); see
also Days III, supra note 37, at 330-39.
118. The statutory prohibition against discrimination based on race is not limited to blacks;
indeed, it has been applied to protect whites who claimed they were discharged for misappropriating
property from their employer under circumstances where a black employee similarly charged was
not dismissed. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976). But I continue to
adhere in this article to my primary focus on blacks, rather than other minority groups, as the
paradigmatic victims of race discrimination. See supra note 20.
119. See supra notes 112-13 and accompanying text.
120. Title VII was enacted pursuant to the congressional power to regulate interstate commerce
and § 5 of the fourteenth amendment. Congress intended Title VII to redress the economic disadvantage to blacks caused by discrimination against them in private employment. See, e.g., Developments in the Law: Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84
HARV. L. REv. 1109, 1113-14 (1971) [hereinafter cited as Developments: Employment].
121. Congress amended Title VII in 1972 to cover public employment. See Equal Employment
Opportunity Act, Pub. L. No. 92-261, 86 Stat. 103 (1972).
122. E.g., Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971) ("Under the Act, practices,
procedures, or tests, neutral on their face, and even neutral in terms of intent, cannot be maintained
if they operate to 'freeze' the status quo of prior discriminatory employment practices."). See also
infra text accompanying notes 124-26.
123. See Developments: Employment, supra note 120, at 1111.
124. 401 U.S. 424 (1971).
125. The first Title VII case to reach the Supreme Court involved sex discrimination. See Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).
126. Griggs v. Duke Power Co., 420 F.2d 1225, 1231-35 (4th Cir. 1970), rev'd, 401 U.S. 424
(1971).
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was intended to prohibit "not only overt discrimination but also practices
that are fair in form, but discriminatory in operation." 12' 7
The Griggs holding, which some observers read as an expansion of
Title VII, 2 ' took on added significance as the "whites only need apply"
signs started coming down, and outright refusal to hire blacks gave way
to more subtle forms of discrimination. 129 In McDonnell Douglas Corp.
v. Green, 13 0 decided one year after Griggs, the Court provided an alternative method of proceeding under Title VII when the employer's conduct
towards the plaintiff may be open to varying interpretations. McDonnell
Douglas created an evidentiary framework that permits the plaintiff to
make out a prima facie case with relative ease, then shifts the burden of
production to the employer, and finally affords the plaintiff a final opportunity to prove
that the employer engaged in intentional
31
discrimination. 1
127. 401 U.S. at 431.
128. See Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co., and the Concept of Employment Discrimination, 71 MIcH. L. REv. 59 (1972).
129. See, e.g., Bartholet, Application of Title VII to Jobs in High Places, 95 HARV. L. REV. 947
(1982). For an assessment of Title VII's effectiveness in combatting race discrimination, see Blumrosen, The Law TransmissionSystem and the Southern Jurisprudenceof Employment Discrimination,
6 INDUS. REL. L.J. 313 (1984).
130. 411 U.S. 792 (1972).
131. The Griggs "disparate impact" method of proving employment discrimination is commonly contrasted with the "disparate treatment" mode associated with McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1972). See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335
n. 15 (1977). Whereas an employment discrimination plaintiff can make a prima facie case under the
Griggs standard simply by showing that the challenged practice, although facially neutral, has a
disproportionate impact on blacks, under the McDonnell Douglastest, a four-step procedure is mandated. The complainant must initially show:
(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which
the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and
(iv) that, after his rejection, the position remained open and the employer continued to seek
applicants from persons of complainant's qualifications.
411 U.S. at 802. The Court subsequently explained that a prima facie case under the McDonnell
Douglas standard "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors."
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).
If plaintiff makes a prima facie case under either standard, the burden of production shifts to
the employer. Under the Griggs standard, the employer meets that burden by showing that the
challenged practice is job-related or justified by business necessity. 401 U.S. at 431. See generally
Note, Business Necessity Under Title VII of the Civil Rights Act of 1964: A No-Alternative Approach,
84 YALE L.J. 98 (1974); Comment, The Business Necessity Defense to Disparate-ImpactLiability
Under Title VII, 46 U. CHI. L. REV.911 (1979). As the Court subsequently made clear, under the
McDonnell Douglas test, "[t]he burden that shifts to the [employer] is to rebut the presumption of
discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred,
for a legitimate, nondiscriminatory reason." Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248, 254 (1980). Accord Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 n.2
(1978) ("the employer's burden is satisfied if he simply 'explains what he has done' or 'produc[es]
evidence of legitimate nondiscriminatory reasons.' "); Furno Constr. Corp. v. Waters, 438 U.S. 567,
578 (1978) ("To dispel the adverse inference from a prima facie showing under McDonnell Douglas,
the employer need only 'articulate some legitimate, nondiscriminatory reason for the employee's
rejection.' ").
In proceeding under either Griggs or McDonnell Douglas, the plaintiff retains the ultimate burden of persuasion, but there is a significant difference in the content of that burden. The Griggs test
does not require a showing of intentional discrimination; instead, it permits the plaintiff to reply to
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Black litigants have used successfully both the disparate impact theory of discrimination announced in Griggs and the disparate treatment
theory created in McDonnell Douglas. Griggs has been commonly used
to challenge an employer's use of tests 132 or credentials 33 unrelated to
the job that exclude disproportionate numbers of blacks. Statistical disparities between the racial composition of the employer's work force and
134
the relevant labor pool suggest discrimination under either theory.
Courts have found intentional discrimination, for instance, in the persistent failure of municipal police 135 or fire 1 36 departments to hire or promote blacks. Discrimination in higher-level jobs is more difficult to
prove because of the discretionary nature of the selection process. 137
Even in that context, however, black applicants have used Title VII to
establish that they need not prove that their own qualifications were su38
perior to those of other candidates in order to establish discrimination.
Despite well-founded fears that the Supreme Court may be moving away
the defense of job-relatedness or business necessity by showing that an employment practice that
imposes less disadvantage on blacks would also serve the employer's needs.
The McDonnell Douglas test, in contrast, requires the plaintiff to prove that the employer's
articulated nondiscriminatory reason is a pretext for intentional discrimination. Burdine, 450 U.S.
at 256. Despite fears that the Supreme Court might require plaintiffs in Title VII cases to show
intentional discrimination as part of the prima facie case (see Bartholet, Proof of Discriminatory
Intent Under Title VII: United States PostalService Boardof Governors v. Aikens, 70 CALIF. L. REV.
1201 (1982)), as yet no such obligation need be satisfied until the final stage of the litigation arguing
pretext. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983) (reaffirming
McDonnell Douglas framework for proving Title VII case).
Both the Griggs and McDonnell Douglasstandards apply to all groups covered by Title VII, not
only to those alleging race discrimination. See, eg., Dothard v. Rawlinson, 433 U.S. 321 (1977)
(applying disparate impact theory in sex discrimination cases); Sweeney v. Board of Trustees of
Keene State College, 604 F.2d 106 (1st Cir. 1979), cert. denied, 444 U.S. 1045 (1980) (applying
disparate treatment theory in sex discrimination case).
132. See, e.g., Connecticut v. Teal, 457 U.S. 440 (1982). A written test used as part of the
selection process for position of Welfare Eligibility Supervisor had a disproportionate impact on
blacks. The Court rejected the employer's suggestion of a "bottom line" defense, i e., an attempt to
compensate for a discriminatory pass-fail barrier by hiring or promoting a sufficient number of black
employees to reach a nondiscriminatory total. See also Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) (general ability tests); Griggs, 401 U.S. 424 (standardized general intelligence test).
133. See, e.g., Griggs, 401 U.S. at 424 (high school diploma).
134. See, e.g., International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977); cf. Hazelwood School Dist. v. United States, 433 U.S. 299 (1977) (statistical proof necessary to establish
"pattern and practice" of discrimination against black teachers). See generally Shoben, Probing the
DiscriminatoryEffects of Employee Selection Procedures With DisparateImpact Analysis Under Title
VII, 56 TEX. L. REV. 1 (1977); Comment, The Numbers Game Is the Only Game in Town, 20 How.
L.J. 374 (1977).
135. See, e.g., United States v. City of Chicago, 549 F.2d 415 (7th Cir.), cert. denied, 434 U.S.
875 (1977) (upholding hiring and promotional quotas imposed on Chicago Police Department in
favor of blacks, Hispanics, and women).
136. See, e.g., Association Against Discrimination in Employment, Inc. v. City of Bridgeport,
647 F.2d 256 (2d Cir. 1981), cert. denied, 455 U.S. 988 (1982) (distinguishing between "hiring goals"
and "quotas" and upholding imposition of the former where defendant's discrimination against
blacks and Hispanics had been found by the trial court to be clear-cut, long-continued, and
egregious).
137. See Bartholet, supra note 129. For an early proposal to integrate higher level jobs, see
Galbraith, Kuh & Thurow, The Galbraith Plan to Promote the Minorities, N.Y. Times Mag., Aug.
22, 1971, at 9.
138. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983).
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from Griggs,I3 9 and amid warnings that plaintiffs would find it difficult to
meet a potential intent requirement as part of the prima facie case under
McDonnell Douglas,"0 during the twenty years of its existence Title VII
has proved an effective tool for removing racial barriers to employment
opportunities.
2. Benign or Reverse DiscriminationCases
In many cases the mere removal of racial barriers has been ineffective in bringing blacks into employment settings from which they were
previously excluded. 14 ' When a court has found intentional exclusion,
preferential hiring or promotion orders have been made part of the relief.'4 2 Litigants have challenged the validity of such preferential remedies on statutory grounds 14 3 and, where the employer is a public agency,
on constitutional grounds as well.'" A Presidential order now requires
employers who contract with the federal government to adopt affirmative
action to ensure nondiscrimination in the work force regardless of
whether the employers have discriminated in the past. 145
The appearance of voluntary, rather than court-ordered, preferential
treatment for blacks stimulated the first so-called "reverse discrimination" suits by white litigants who sought to invalidate the preferences in
order to secure the opportunities for themselves.146 These cases posed a
sharp challenge to the assimilationist view of racial equality by suggesting that the color-blind ideal it embodies can be abandoned when the
disadvantaged individuals are white. 14 In this article, I do not intend to
139. See Freeman, Legitimizing RacialDiscrimination Through AntidiscriminationLaw: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REv. 1049, 1093-99, 1114-19 (1978) (discussing
Griggs and Washington v. Davis).
140. See Bartholet, supra note 131.
141. See, e.g., Thornberry, Affirmative Action: History ofAn Attempt to Realize GreaterEquality, in ELUSIVE EQUALITY, supra note 44, at 48.
142. See, e.g., cases cited supra notes 135 & 136. In the wake of such cases, many consent
decrees involving police and fire departments included hiring and promotional orders. Subsequent
fiscal constraints led many cities to lay off employees, thus creating a conflict between the consent
decrees and the typical "last-hired, first-fired" seniority provisions. The conflict was resolved on
statutory rather than constitutional grounds in favor of the seniority provisions. Firefighters Local
Union No. 1784 v. Stotts, 104 S. Ct. 2576 (1984) (consent decree affecting the Memphis fire
department).
143. See, e.g., United States v. Wood, Wire & Metal Lathers Int'l Union, Local 46, 471 F.2d
408, 411-13 (2d Cir.), cert. denied, 412 U.S. 939 (1973) (upholding order that union immediately
issue 100 work permits to minority applicants and, over a four-year period, issue work permits to
minority and white applicants on a one-for-one basis).
144. See, e.g., Carter v. Gallagher, 452 F.2d 315, 327 (8th Cir. 1971) (en banc), cert. denied, 406
U.S. 950 (1972) (upholding quota hiring remedy imposed on municipal employer on constitutional
grounds prior to 1972 amendment extending Title VII to public agencies).
145. Executive Order 11,246, 3 C.F.R. 339 (1965), reprinted in 42 U.S.C. § 2000e app. at 28-31
(1982).
146. Preferences for minority workers imposed under Executive Order 11,246 previously had
been challenged and upheld. See, e.g., Contractors Ass'n v. Secretary of Labor, 442 F.2d 159 (3d
Cir.), cert. denied, 404 U.S. 854 (1971).
147. Perhaps the best-remembered critique is Professor Alexander Bickel's:
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canvass the vast literature discussing preferential treatment. 4 For my
purposes, the reverse discrimination race cases are relevant only because
they confirm the one-way model of desired access established in the antidiscrimination race cases.' 4 9
The first race reverse discrimination cases appeared in the educational, rather than the employment, setting. The first such case that the
United State Supreme Court decided on the merits,' Regents of the
University of California v. Bakke, 5 ' raised both constitutional claims
under the equal protection clause and statutory claims under Title VI of
the Civil Rights Act.' 2 Allan Bakke, a white male, applied for admission
to the medical school at the University of California, Davis campus, in
1973 and 1974. The medical school rejected him both times. In both
years, the school admitted other applicants, through a special admissions
program for disadvantaged students, who had grade point averages,
Medical College Admissions Test (MCAT) scores, and benchmark scores
significantly lower than Bakke's. The trial court found that the special
program operated as a racial quota because the school evaluated these
minority applicants only against each other, not against applicants as a
whole. Moreover, the school reserved sixteen places in the entering class
of one hundred for these applicants. 5 3 Bakke argued that, but for the
existence of the special program, he would have been admitted as a student. Bakke did not ask, in other words, that the racial preferences acThe lesson of the great decisions of the Supreme Court and the lesson of contemporary
history have been the same for at least a generation: discrimination on the basis of race is
illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.
Now this is to be unlearned and we are told that this is not a matter of fundamental principle
but only a matter of whose ox is gored. Those for whom racial equality was demanded are to be
more equal than others. Having found support in the Constitution for equality, they now claim
support for inequality under the same Constitution.
A. BICKEL, THE MORALITY OF CONSENT 33 (1975) (published posthumously). But see J. BAER,
supra note 24, at 137-39 (arguing that Bickel's statement ignores principled distinctions between
traditional and reverse discrimination).
148. For a brief summary of the arguments, pro and con, about racial preferences, see Segers,
Justifying Affirmative Action, in ELUSIVE EQUALITY, supra note 44, at 75-87. See also sources cited
infra note 160.
149. See supra text accompanying notes 49-140. I do not mean to suggest that these cases do
not fit within the antidiscrimination model, but rather that courts have found the discrimination
justified for reasons similar to those discussed by the commentators cited infra note 160.
150. The United States Supreme Court dismissed as moot the first case to raise the issue.
DeFunis v. Odegaard, 416 U.S. 312 (1974).
151. 438 U.S. 265 (1978). See generally Symposium: Regents of the University of California v.
Bakke, 67 CALIF. L. REV. 1 (1979).
152. Bakke, 438 U.S. at 270. Four members of the Court, Chief Justice Burger and Justices
Stewart, Rehnquist, and Stevens, would have rested the holding that the university unlawfully rejected Bakke on statutory grounds, citing Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d
(1982). Four other members of the Court, Justices Brennan, White, Marshall, and Blackmun, would
have held that the equal protection clause permitted the university to exclude Bakke under the
circumstances shown. Mr. Justice Powell agreed with the former group that Bakke had been excluded unlawfully and that the special admissions program was invalid, but he agreed with the latter
group that the Constitution permits the use of race as a factor in admissions under specified
circumstances.
153. Bakke, 438 U.S. at 278-79.
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corded by the special program be extended to him. Instead, he asked
that he not be barred, because of his race, from competing for any of the
one hundred places in the class. Because the University of California was
unable to demonstrate that Bakke would not have been admitted even in
the absence of the special admissions program, a burden imposed by the
California Supreme Court,"5 4 the United States Supreme Court ordered
the University to admit him.
One year after Bakke was decided, the Supreme Court considered a
claim that Title VII forbade private employers and unions from voluntarily agreeing upon an affirmative action plan that accorded racial preferences to blacks to increase their entry into craftwork positions in the
employer's plant.1 5 Like Allan Bakke, the plaintiff Brian Weber contended that in the absence of any racial preference the employer would
have admitted him on the basis of seniority to a place in the in-plant craft
training program. Because the plan did not involve state action, no constitutional claim was possible. 5 6 Weber could, however, and did, claim
that he had been discriminated against on the basis of his race in violation of Title VII.15 7 Unlike Bakke, Weber did not succeed, for a majority
of the Supreme Court held that Congress did not intend to prohibit the
private sector from undertaking voluntary, race-conscious affirmative action efforts.' 5 8
The reverse discrimination race cases, then, do not identify a preserve of black power that whites seek to share. Rather, these cases constitute an effort by some whites to appeal to an ideal of color-blindness in
order to secure for themselves-despite threatened black encroachment-the privileged positions held by other whites partly as the result
of prior discrimination against blacks in education or employment. 5 9
154. Id. at 280-81.
155. United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979).
156. Id. at 200.
157. Id. at 200-01.
158. Id. at 207. Chief Justice Burger and Justice Rehnquist dissented. Justice Rehnquist's dissenting opinion disputes the majority's account of the legislative history of Title VII on this point.
See id. at 230-52. See also Fullilove v. Klutznick, 448 U.S. 448 (1980) (upholding a congressionallymandated 10% set-aside for minority-owned or controlled business enterprises in projects funded
under the Public Works Employment Act of 1977, 42 U.S.C. §§ 6701, 6705-08, 6710 (1982)).
159. See Blumrosen, The Duty of Fair Recruitment Under the Civil Rights Act of 1964, 22
RUTGERS L. REV. 465 (1968), pointing out that the use of recruitment procedures such as word-ofmouth solicitation by white employees and walk-in applications, when used after the enactment of
Title VII by employers with virtually all-white labor forces prior to the effective date of the Act, had
ensured a segregated work force. Id at 476-79. On reverse discrimination claims, Blumrosen observes that:
[t]he issue is, of course, a red herring designed to distract attention from the fact that the employer involved has been discriminating and that this discrimination has denied to the minority
employment opportunities over substantial periods of time, which, in many cases have gone to
members of the "white community" only. The "discrimination in reverse" argument, in effect,
reflects a desire to maintain the privileged sanctuary for white employees which the employer
has established by his past discriminatory practices.
Id. at 489. But see Scalia, The Disease as Cure, 1979 WASH. U.L.Q. 147, 152-54, arguing that the
ethnic whites against whom reverse discrimination exists are not the same whites who gained their
privileged position at the expense of blacks.
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The model of desired access remains that of blacks seeking entry, this
time with the help of special preferences, to opportunities traditionally
available to whites. In that context, the arguments of the white litigants
ignore the major difference between the stigmatizing impact of laws that
once treated all blacks as inferior and the merely personal disadvantages
1
imposed on some whites by the distribution of limited opportunities. 60
B.
Sex Discrimination
1. AntidiscriminationLitigation
Reflection upon the sex discrimination cases that women have
brought in the Supreme Court prompts the observation 16 1 that to be female in American society is to be a member of what was an oppressed
and silenced majority, and what still is an undervalued and exploited
one. In contrast to black litigants, however, women seeking to rely on
the newly-adopted fourteenth amendment could not claim that it was
intended for their benefit.162 Nor could they easily adapt other constitutional provisions to fit their complaints.
a.
Constitutional Cases
The Supreme Court, having announced its decision narrowly limiting the scope of the national privileges and immunities clause in the
Slaughter-House Cases,16 1 was not ready a day later to expand that clause
to encompass a woman's plea to gain admission to the Illinois bar as a
lawyer.'
Instead, Justice Bradley's long-remembered concurring opinion in Bradwell v. Illinois'65 set the tone for judicial acceptance of sex as a
natural, hence appropriate, basis for legislative classification. If the racial differences thought to exist between blacks and whites hindered the
Court from conceiving of an assimilationist view of racial equality, 1 66 the
sex differences known to exist between men and women were so great as
160. See, e.g., R. DWORKIN, TAKING RIGHTS SERIOUSLY 223-39 (1977); Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REv. 723 (1974). Blacks rarely appear as
litigants in reverse discrimination cases, and their point of view is seldom represented. See Comment, The Case for Minority Participationin Reverse DiscriminationLitigation, 67 CALIF. L. REv.
191 (1979).
161. Cf Wasserstrom, supra note 10, at 586 (observation about blacks), quoted supra text accompanying note 49.
162. See J. BAER, supra note 24, at 90-92 (discussing the debate in the Thirty-Ninth Congress
concerning the application of the fourteenth amendment to women). See also Ginsburg, Sexual
Equality Under the Fourteenth and Equal Rights Amendments, 1979 WASH. U.L.Q. 161.
163. 83 U.S. (16 Wall.) 36 (1873). See C. FAIRMAN, supra note 50, at 1364 n.166.
164. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873). The equal protection clause was not
invoked. Fairman notes that Myra Bradwell's "serious effort to win recognition as a lawyer was
commonly treated [by Chicago lawyers] as somewhat whimsical."
C. FAIRMAN, supra note 50, at
1365.
165. Bradwell, 83 U.S. (16 Wall.) at 139-42 ("the civil law, as well as nature herself, has always
recognized a wide difference in the respective spheres and destinies of man and woman." Id. at 141
(Bradley, J., concurring)).
166. See supra text accompanying notes 66-70.
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to stifle any intimation of an assimilationist view of sexual equality.1 67
For nearly a century after Bradwell, 6 s while black litigants were rescuing the equal protection clause from oblivion and shaping its words into a
powerful constitutional weapon for achieving racial equality, 169 the
Supreme Court was content to uphold classifications based on sex with
170
only the most minimal scrutiny.
The Court's heightened awareness of discrimination against women,
which first became evident in 1971 " l like its growing receptivity to the
equal protection arguments of black litigants,"7 2 did not happen spontaneously. The heightened awareness may have been ignited by an acci-
dent-the addition to Title VII of "sex" ' 3 as a prohibited basis of
employment discrimination along with race, color, religion, and national
origin. 174 Title VII forced a comparison between the treatment of women and men,175 as well as blacks and whites, in the employment setting,
and implicitly suggested a parallel between the disadvantaged positions
of blacks and women. 7 6 The Supreme Court's first Title VII case in-
volved sex discrimination.' 7 7 While the majority's brief per curiam deci-
sion revealed its failure to appreciate the danger of stereotypical thinking
about sex roles,' 78 Justice Marshall's concurring opinion
79
identified the
167. Bradwell, 83 U.S. (16 Wall.) at 141-42. In a concurring opinion, Justice Bradley noted:
It is true that many women are unmarried and not affected by any of the duties, complications,
and incapacities arising out of the married state, but these are exceptions to the general rule.
The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife
and mother. This is the law of the Creator. And the rules of civil society must be adapted to
the general constitution of things, and cannot be based upon exceptional cases.
Id.
168. The Court decided the case identified as the turning point in the Court's attitude toward
constitutional claims of sex discrimination in 1971. Reed v. Reed, 404 U.S. 71 (1971).
169. See supra text accompanying notes 72-109.
170. See, e.g., Hoyt v. Florida, 368 U.S. 57 (1961) (upholding exemption from jury duty for
women); Goesaert v. Cleary, 335 U.S. 464 (1948) (upholding statute providing that no female may
be licensed as a bartender unless she is the wife or daughter of a male owner); Quong Wing v.
Kirkendall, 223 U.S. 59 (1912) (upholding statute imposing a license fee on all persons engaged in
hand laundry except where no more than two women are so employed); In re Lockwood, 154 U.S.
116 (1894) (letting stand Virginia's refusal to admit Belva Lockwood to practice law because of her
sex); Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874) (not a denial of privileges and immunities to
limit the right to vote to men). Cf United States v. Dege, 364 U.S. 51 (1960) (rejecting doctrine that
husband and wife cannot conspire in violation of 18 U.S.C. § 371); Muller v. Oregon, 208 U.S. 412
(1908) (upholding hours limitation for women employees only).
171. Reed v. Reed, 404 U.S. 71 (1971).
172. See supra text accompanying notes 72-109.
173.
See C. BIRD, BORN FEMALE 1-15 (1969), for an account of how the word "sex" was added
to Title
174.
175.
176.
VII.
42 U.S.C. § 2000e-2 (1964).
See Developments.: Employment, supra note 120, at 1166-86.
Murray & Eastwood, Jane Crow and the Law: Sex Discriminationand Title VII, 34 GEO.
WASH. L. REV. 232, 233-35 (1965).
The parallel was anticipated by Myrdal. See G. MYRDAL,
supra note 26, at 1073-78 (discussing the "striking similarities" between the condition of women and
blacks in America). See also W. CHAFE, supra note 28, at 81-113 (comparing the processes of social
change utilized by blacks and women in America).
177. Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).
178. Although the case was tried on the theory that an employer's refusal to hire mothers of
pre-school age children was a per se violation of the Act, see Chief Judge Brown's famous dissent
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problem with precision and clarity.' ° Ten months later,' the Court
decided Reed v. Reed,'8 2 and took its first step toward a heightened level
of scrutiny in constitutional sex antidiscrimination litigation." 3
While the legal campaign for sexual equality lacked the institutional
control over strategy that the NAACP's leadership gave to the constitutional race antidiscrimination cases,'8 4 the involvement of the Women's
Rights Project of the American Civil Liberties Union' 8 5 provided a degree of coherence at the Supreme Court level. Under the initial guidance
of Ruth Bader Ginsburg,' 8 6 the ACLU's original strategy was to argue
for extension of race discrimination precedent to sex discrimination
cases. The ACLU briefs urged the Court to accord women litigants the
advantage won by black litigants of strict judicial scrutiny of racial classifications. 8' 7 Although the analogy comparing the disadvantaged position
of American women to that of blacks was urged upon the Court in Frontiero v. Richardson,'8 8 no more than four Justices ever accepted the analogy.' 8 9 Instead, in 1976, the Court settled upon an intermediate level of
scrutiny for classifications drawn along sex lines.' 9 0 Commentators have
from the Fifth Circuit's refusal to grant rehearing en banc, Phillips v. Martin Marietta Corp., 416
F.2d 1257, 1258-62 (5th Cir. 1969) (Brown, C.J., dissenting), the Supreme Court gratuitously suggested that the employer might invoke the statutory bona fide occupational qualification defense
because "[t]he existence of such conflicting family obligations, if demonstrably more relevant to job
performance for a woman than for a man, could arguably be a basis for distinction under § 703(e) of
the Act." Phillips v. Martin Marietta Corp., 400 U.S. at 544.
179. Phillips, 400 U.S. at 544-47 (Marshall, J., concurring).
180. Id. at 545 ("I fear that in this case, where the issue is not squarely before us, the Court has
fallen into the trap of assuming that the Act permits ancient canards about the proper role of women
to be a basis for discrimination."). In his former position as Special Counsel for the NAACP, and
later as Director of the NAACP Legal Defense and Educational Fund, Inc., Justice Marshall had
argued many of the race cases discussed earlier in this paper. See R. KLUGER, supra note 37, at 21438.
181. The Court decided Phillips on January 25, 1971, and handed down Reed on November 22,
1971.
182. 404 U.S. 71 (1971).
183. Professor Gunther was among the earliest observers to spot the new trend. See Gunther,
supra note 110, at 34.
184. See supra note 74.
185. See Ginsburg, supra note 46, at 819 n.39.
186. As a founder of the ACLU Women's Rights Project, Judge Ginsburg, then a Professor of
Law, participated in the briefing and argument of the constitutional sex discrimination cases discussed in this section. For a perspective on Ginsburg's strategy, see Cole, Strategies of Difference:
Litigatingfor Women's Rights in a Man's World, 2 LAW & INEQUALITY 33, 53-85 (1984).
187. See, e.g., Brief of ACLU as Amicus Curiae at 24-44, Frontiero v. Richardson, 411 U.S. 677
(1973) [hereinafter cited as ACLU Briefi.
188. 411 U.S. 677 (1973). See also ACLU Brief, supra note 187, at 14-18.
189. Those Justices who accepted the analogy are Justices Brennan, Douglas, White, and Marshall. Frontiero,411 U.S. at 678-91 (plurality opinion). See also Kahn v. Shevin, 416 U.S. 351, 35760 (1974) (Brennan & Marshall, J.J., dissenting). The California Supreme Court had adopted a
strict scrutiny standard for sex discrimination cases before Frontiero. See Sail'er Inn, Inc. v. Kirby, 5
Cal. 3d 1, 485 P.2d 529, 95 Cal. Rptr. 329 (1971); but compare Michael M. v. Superior Court, 25
Cal. 3d 608, 601 P.2d 572, 159 Cal. Rptr. 340 (1979), aff'd, 450 U.S. 464 (1981). The ACLU brief
quoted Sail'er Inn extensively. See ACLU Brief, supra note 187, at 28-30.
190. Craig v. Boren, 429 U.S. 190, 197 (1976) ("To withstand constitutional challenge, previous
cases establish that classifications by gender must serve important governmental objectives and must
be substantially related to achievement of those objectives.").
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criticized the Court's continued adherence 9'" to a less stringent standard
of review for governmental actions affecting women 192 than it accords to
actions affecting blacks. 193 Some commentators view the Court's distinction as an admission that sex discrimination 1is
94 less important as a matter
of public concern than race discrimination.
I recognize that three-tiered equal protection review has its critics,
even among the present membership of the Supreme Court, 195 and I
agree that courts generally have been less sensitive in perceiving sex dis196
crimination than they have been in identifying race discrimination.
But, as I have tried to show in this article,' 97 the Court applied the strict
scrutiny standard for racial classifications to the claims of black litigants
during a period of growing awareness that such classifications did not
reflect significant racial differences. Rather, the Court recognized that
the classifications were intended to stigmatize a group identified primarily by the superficial difference of skin color. Because the tendency of
racial classifications to stigmatize is so overwhelming, the insight captured by the most stringent standard-that such classifications are always suspect-is appropriate. 198 Sex-based classifications, however, can
be, even if they rarely have been, drawn to conform to physical reproductive sex differences and, if drawn in such a way as to expand, rather than
to limit, women's and men's opportunities, need not be stigmatizing.' 99
191. See Heckler v. Mathews, 104 S. Ct. 1387, 1397-98 (1984); Mississippi Univ. for Women v.
Hogan, 458 U.S. 718, 724-26 (1982). See supra note 4.
192. The Court's use of the intermediate level of review in sex discrimination cases varies among
the Justices and the type of case under consideration. For a comparison of the "Brennan-Marshall"
approach and the "Rehnquist-Stewart" approach to cases involving "real" sex differences, see Freedman, supra note 38, at 922-60.
193. See supra text following note 109, and text accompanying notes 110-15.
194. See Wildman, supra note 47, at 286.
195. See, e.g., Craig, 429 U.S. at 210 (Powell, J., concurring); id. at 211-12 (Stevens, J., concurring). But see J. ELY, supra note 32, at 31 (arguing that "we need at least two standards under the
Equal Protection Clause, maybe more").
196. See Johnson & Knapp, Sex Discrimination by Law: A Study in Judicial Perspective, 46
N.Y.U. L. REv. 675 (1971).
197. See supra text accompanying notes 66-117. See also Stimpson, "Thy Neighbor's Wife, Thy
Neighbor's Servants" Women's Liberation and Black Civil Rights, in WOMEN IN SEXIST SOCIETY
622 (V. Gornick & B. Moran eds. 1971).
198. See J. ELY, supra note 32, at 160-61. The point is developed more fully in Ely, supra note
160, at 730-36.
199. J. ELY, supra note 32, at 168-70. Justice Powell suggested a distinction in Bakke between
the level of scrutiny applied to race and sex classification: "the perception of racial classifications as
inherently odious stems from a lengthy and tragic history that gender-based classifications do not
share. In sum, the Court has never viewed such classifications as inherently suspect or as comparable to racial or ethnic classifications for the purpose of equal-protection analysis." Bakke, 438 U.S.
at 303.
Speaking for himself and Justices White, Marshall, and Blackmun, Justice Brennan proposed in
Bakke that the intermediate standard of review developed in the sex discrimination cases be applied
to test the constitutionality of racial classifications designed to further remedial purposes. See id. at
358-62. Justice Brennan stressed that both race and gender classifications have been used "to stereotype and stigmatize politically powerless segments of society." Id. at 360 (quoting the dissenting
opinion in Kahn, 416 U.S. at 357 (Brennan, J., dissenting)).
More recently, Justice Brennan, speaking for the Court in Roberts v. United States Jaycees, 104
S. Ct. 3244, 3254 (1984), again noted "[t]hat stigmatizing injury, and the denial of equal opportuni-
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By refusing to extend the strict scrutiny standard of review to constitutional sex antidiscrimination cases, then, the Supreme Court may be recognizing a difference in kind, rather than of degree, between race cases
and sex cases.
In my view, a pattern as significant as the levels of judicial review
has emerged from thirteen years of constitutional sex antidiscrimination
litigation at the Supreme Court level: the sex antidiscrimination cases, in
contrast to the race cases, display a two-way model of access in which
power is exchanged between both sex groups. This model contrasts with
a one-way model in which a disadvantaged racial group seeks to wrest
power from a privileged and dominant racial group.
From its 1970 term through its 1983 term, the United States
Supreme Court has handed down opinions in twenty-seven cases 2oo that I
ties that accompanies it, is surely felt as strongly by persons suffering discrimination on the basis of
their sex as by those treated differently because of their race." Justice Brennan authored the plurality opinion in Frontierowhich accepted the argument that sex should be a suspect classification. See
supra note 189.
Justice O'Connor did not join in the part of the Court's opinion in Roberts containing the
quoted sentence. See 104 S. Ct. at 3257 (O'Connor, J., concurring). In her confirmation hearings,
Justice O'Connor said that she did not disagree with the view that federal judges should not belong
to professional organizations or private clubs which discriminate on the basis of race, but she did not
make a similar statement about exclusions based on sex. Instead, she testified that she belonged to
several women's clubs-the Soroptimist Club of Phoenix, the Charter 100, and the Junior League of
Phoenix-which she characterized as "organizations that have devoted themselves to bettering the
community" and which "do not discriminate on the basis of race or national origin but have no male
members ....
" She added that "[i]t is not my feeling that those memberships should necessarily
be dropped because of going on the Federal bench." Hearings on the Nomination of Sandra Day
O'ConnorBefore the Senate Comm. on Judiciary, 97th Cong., 1st Sess. 142 (1981), reprinted in R.
MERSKY & J. JACOBSTEIN, THE SUPREME COURT OF THE UNITED STATES NOMINATIONS 107-533
(1981). Justice O'Connor did not reveal her views about clubs that exclude women on the basis of
sex. It seems fair to conclude from her testimony, however, that, unlike Justice Brennan, she does
not find such exclusionary clubs as stigmatizing as race exclusionary clubs.
I do not mean to suggest that sex-based classifications generally are not stigmatizing. Too easily
one may expand the argument from physical sex differences to claimed tempermental and biological
sex differences, and conclude that sex classifications are presumptively appropriate in settings ranging from the combat exemption for women in the military to the preference for mothers in child
custody cases. See Browne, Biology, Equality, and the Law: The Legal Significance of BiologicalSex
Differences, 38 Sw. L.J. 617 (1984). I claim only that classifications based on reproductive sex differences can be drawn in such a way as to neutralize physical disadvantages, and, when so drawn, are
not inherently stigmatizing. The implications of my position for the Equal Rights Amendment must
be reserved for treatment in a later paper.
200. Roberts v. United States Jaycees, 104 S. Ct. 3244 (1984); Lehr v. Robertson, 103 S. Ct.
2985 (1983); Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982); Rostker v. Goldberg, 453
U.S. 57 (1981); Michael M. v. Superior Court, 450 U.S. 464 (1981); Kirchberg v. Feenstra, 450 U.S.
455 (1981); Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142 (1980); Califano v. Westcott, 443 U.S.
76 (1979); Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256 (1979); Davis v. Passman, 442 U.S.
228 (1979); Caban v. Mohammed, 441 U.S. 380 (1979); Parham v. Hughes, 441 U.S. 347 (1979); Orr
v. Orr, 440 U.S. 268 (1979); Quilloin v. Walcott, 434 U.S. 246 (1978); Fiallo v. Bell, 430 U.S. 787
(1977); Califano v. Goldfarb, 430 U.S. 199 (1977); Craig v. Boren, 429 U.S. 190 (1976); Turner v.
Department of Employment Sec., 423 U.S. 44 (1975); Stanton v. Stanton, 421 U.S. 7 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Geduldig v. Aiello, 417 U.S. 484 (1974); Cleveland Bd. of
Educ. v. La Fleur, 414 U.S. 632 (1974) (two cases; consolidated and reversed Cohen v. Chesterfield
County School Bd., 474 F.2d 395 (4th Cir. 1973) (en banc)); Pittsburgh Press Co. v. Pittsburgh
Comm'n on Human Relations, 413 U.S. 376 (1973); Frontiero v. Richardson, 411 U.S. 677 (1973);
Stanley v. Illinois, 405 U.S. 645 (1972); Reed v. Reed, 404 U.S. 71 (1971). I do not include one case
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classify as constitutional sex antidiscrimination cases.20 1 In thirteen of
these cases, women sought to be treated like men in the public arena of
business and finance.20 2 The cases involve women who sued to gain access to positions of authority in estate administration or property management; 20 3 to obtain equal pay in military employment; 2 4 to be relieved
of forced unpaid or uninsured absence from the job when able to work; 20 5
to be covered by insurance extended to other employees for disabilities
requiring temporary absence from work;20 6 to be free of explicit rejection
for employment or civic activities because of sex;20 to be eligible for pub28
lic financial protection for their families in the event of unemployment;
and to enjoy parental support for the same period as male siblings.20 9
in which the Supreme Court affirmed the judgment by an equally divided vote, Vorchheimer v.
School Dist., 400 F. Supp. 326 (E.D. Pa. 1975), rev'd, 532 F.2d 880 (3d Cir. 1976), affd by an
equally divided court, 430 U.S. 703 (1977) (female high school student seeking admission to maleonly academic high school). I also do not include another case that the Court remanded as moot,
Struck v. Secretary of Defense, 460 F.2d 1372 (9th Cir.), vacated and remanded, 409 U.S. 1071
(1972) (challenge to Air Force practice requiring the discharge of pregnant officers). Three other
groups of cases that were not litigated on an antidiscrimination theory are discussed infra note 29 1.
If, as I argue infra text accompanying notes 268-78, the four cases classified as benign discrimination cases are indistinguishable from these twenty-seven cases, the number of sex antidiscrimination cases decided by the Supreme Court during this period totals thirty-one.
201. The Court has classified four other cases decided during this period on constitutional
grounds as "benign" or reverse discrimination rather than antidiscrimination because they involve
male challenges to a preference accorded women ostensibly to overcome past discrimination. They
are: Heckler v. Mathews, 104 S. Ct. 1387 (1984); Califano v. Webster, 430 U.S. 313 (1977); Schlesinger v. Ballard, 419 U.S. 498 (1975); and Kahn v. Shevin, 416 U.S. 351 (1974). Cf. Minnick v.
California Dep't of Corrections, 452 U.S. 105 (198 1) (dismissing writ of certiorari granted to review
95 Cal. App. 3d 506, 157 Cal. Rptr. 260(1979)). My own conclusion is that, except for Minnick, the
pattern of these cases is indistinguishable from that of the antidiscrimination cases. See infra text
accompanying notes 268-78.
202. Roberts v. United States Jaycees, 104 S. Ct. 3244 (1984); Kirchberg v. Feenstra, 450 U.S.
455 (1981); Califano v. Westcott, 443 U.S. 76 (1979); Personnel Adm'r of Mass. v. Feeney, 442 U.S.
256 (1979); Davis v. Passman, 442 U.S. 228 (1979); Turner v. Department of Employment Sec., 423
U.S. 44 (1975); Stanton v. Stanton, 421 U.S. 7 (1975); Geduldig v. Aiello, 417 U.S. 636 (1974);
Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632 (1974) (two cases); Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973); Frontiero v. Richardson, 411 U.S. 677
(1973); Reed v. Reed, 404 U.S. 71 (1971).
203. Kirchberg v. Feenstra, 450 U.S. 455 (1981); (management of community property); Reed
v. Reed, 404 U.S. 71 (1971) (administration of decedents' estates).
204. Frontiero v. Richardson, 411 U.S. 677 (1973) (fringe benefits for spouses of military service
personnel, including quarters allowance and medical and dental benefits).
205. Turner v. Department of Employment Sec., 423 U.S. 44 (1975) (unemployment compensation for pregnant women able to work); Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632 (1974)
(two cases) (mandatory maternity leave for pregnant school teachers). 206. Geduldig v. Aiello, 417 U.S. 484 (1974) (coverage for disabilities accompanying normal
pregnancy and childbirth).
207. Roberts v. United States Jaycees, 104 S. Ct. 3244 (1983) (women protected by Minnesota
Human Rights Act against exclusion from Jaycees because of sex; first amendment defense rejected);
Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256 (1979) (woman barred from civil service position
because of veteran's preference); Davis v. Passman, 442 U.S. 228 (1979) (woman rejected as congressman's aide because of her sex); Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973) (sex-designated help-wanted advertisements could be prohibited by
Pittsburgh ordinance; first amendment defense rejected).
208. Quilloin v. Westcott, 443 U.S. 76 (1978) (Aid to Families with Dependent Children, Unemployed Father program).
209. Stanton v. Stanton, 421 U.S. 7 (1975) (daughter seeking child support to age 21).
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Men brought eleven cases on their own behalf seeking to be treated
like women; 2 10 in all but four, 21 1 the plaintiffs sought access to female
power in the family setting. All but one 2 12 of the seven family law cases
consisted of male challenges to the sole parental control that women exercised over illegitimate children. 213 The cases include instances in
which men sued to be formally considered as possible custodians of their
illegitimate children; 214 to gain favorable immigrant status for their illegitimate children; 215 to be allowed to object to the adoption of their illegitimate children; 21 6 and to be permitted to sue for the wrongful death of
a deceased illegitimate child. 2 17 The seventh family law case challenged
a law limiting the award of alimony only to women.2 18
Four other cases arose outside the family setting. In two cases men
sought to avoid public responsibilities not imposed on women; 21 9 in a
third case men sought access to educational opportunities available to
22 1
women; 220 and a fourth case involved consumer purchasing.
In the remaining three of the twenty-seven cases, 222 men sought to
secure benefits resulting from the employment of their deceased wives.
They argued that their deceased wives had not been accorded the same
treatment as male co-workers because the surviving husbands did not
receive the financial protection that surviving wives of male workers received. Two of these cases involved death benefits for surviving
210. Lehr v. Robertson, 103 S. Ct. 2985 (1983); Mississippi Univ. for Women v. Hogan, 458
U.S. 718 (1982); Rostker v. Goldberg, 453 U.S. 57 (1981); Michael M. v. Superior Court, 450 U.S.
464 (1981); Caban v. Mohammed, 441 U.S. 380 (1979); Parham v. Hughes, 441 U.S. 347 (1979); Orr
v. Orr, 440 U.S. 268 (1979); Quilloin v. Walcott, 434 U.S. 246 (1978); Fiallo v. Bell, 430 U.S. 787
(1977); Craig v. Boren, 429 U.S. 190 (1976); Stanley v. Illinois, 405 U.S. 645 (1972).
211. Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982); Rostker v. Goldberg, 453
U.S. 57 (1981); Michael M. v. Superior Court, 450 U.S. 464 (1981); Craig v. Boren, 429 U.S. 190
(1976). See infra text accompanying notes 219-21.
212. Orr v. Orr, 440 U.S. 268 (1979). See infra note 218.
213.
See H. KAY, TEXT, CASES AND MATERIALS ON SEX-BASED DISCRIMINATION 371-79 (2d
ed. 1981).
214. Stanley v. Illinois, 405 U.S. 645 (1972) (decided on due process grounds).
215. Fiallo v. Bell, 430 U.S. 787 (1977).
216. Lehr v. Robertson, 103 S. Ct. 2985 (1983) (notice of adoption not required for natural
father who was not a putative father as defined by New York law); Caban v. Mohammed, 441 U.S.,
380 (1979) (children who have lived in parent-child relationship with their natural father may not be
adopted without his consent); Quilloin v. Walcott, 434 U.S. 246 (1978) (natural father who had
never lived with his I 1-year old son not entitled to object to son's adoption by step-father).
217. Parham v. Hughes, 441 U.S. 347 (1979).
218. Orr v. Orr, 440 U.S. 268 (1979). Mr. Orr did not seek alimony for himself, but rather
attempted to invalidate the statute allowing courts to order alimony only for wives.
219. Rostker v. Goldberg, 453 U.S. 57 (1981) (compulsory registration for military service required only of males); Michael M. v. Superior Court, 450 U.S. 464 (1981) (statutory rape law punishing only males).
220. Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (nursing school open only to
women students). Hogan also provides an example of a male seeking to prepare himself for employment in a traditionally female occupation. See infra text accompanying notes 259-61.
221. Craig v. Boren, 429 U.S. 190 (1976) (purchase of "near beer" permitted to females, but not
males, aged 18-20).
222. See supra note 200.
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spouses,2 2 3 while the third involved mother's benefits for the surviving
parent of an infant. 224 The first two cases illustrate a cooperative approach to power exchange characteristic of dual worker families. 225 In
the third case, 226 however, the family life-style was a modification of
traditional sex-roles in which the male is the chief breadwinner while the
female is the homemaker.
The pattern that emerges from these twenty-seven cases reflects the
traditional division of authority by sex that has allocated the public
sphere of government and finance to men, the private sphere of home and
family to women.227 Crippling as this division has been to women-and
it has been crippling for many 22 -- it has imposed limitations on both
sexes. 229 Not surprisingly, men as well as women have taken advantage
of the loosening of sex-role stereotypes to explore the domain formerly
reserved to the other sex. Nor should it be surprising that women would
resist the encroachment by men upon their authority in the family,2 30
just as men have defended their public territory against women.2 a1
That this social pattern of two-way power exchange is mirrored even
223. Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142 (1980) (state workers' compensation
death benefit); Califano v. Goldfarb, 430 U.S. 199 (1977) (social security survivor's benefits).
224. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).
225. See, e.g., Kay, Legal and Social Impediments to Dual Career Marriages, 12 U.C.D. L.
REV. 207 (1979); Prager, Sharing Principlesand the Future of MaritalPropertyLaw, 25 U.C.L.A. L.
REV. 1 (1977).
226. See Cole, supra note 186, at 74.
227. See supra note 43. Some commentators have argued that women hold no real power in the
family apart from that which men permit them to exercise. See, e.g., Polatnick, Why Men Don't
Rear Children: A Power Analysis, in MOTHERING: ESSAYS IN FEMINIST THEORY 21, 30-33 (J.
Trebilcot ed. 1984). But this analysis does not consider the legal priority of mothers as custodians of
children when family breakup occurs, or the superior rights formerly granted to mothers over fathers of illegitimate children. See H. KAY, supra note 213, at 299-311 (custody), 371-74 (illegitimate
children).
Men have recorded their disappointing experiences with child custody laws and decisions. Eg.,
M. ROMAN & W. HADDAD, THE DISPOSABLE PARENT: THE CASE FOR JOINT CUSTODY (1978).
They also have been active in developing joint custody legislation. See, e.g., Cook, California'sJoint
Custody Statute, in JOINT CUSTODY AND SHARED PARENTING 168 (J. Folberg ed. 1984). Women
generally have resisted joint custody legislation. See, e.g., Schulmann & Pitt, Second Thoughts on
Joint Child Custody: Analysis of Legislation and Its Implicationsfor Women and Children, in JOINT
CUSTODY AND SHARED PARENTING, supra, at 209-22. "The current joint custody trend is, in effect,
an attack on women who have been and wish to continue to be, the primary caretakers of their
children." Id. at 222. See also Lemon, Joint Custody As a Statutory Presumption: California'sNew
Civil Code Sections 4600 and 4600.5, 11 GOLDEN GATE U.L. REV. 485, 527-31 (1981).
I do not mean to suggest that society values equally the respective spheres of power held by men
and women. Indeed, there is reason to believe that women's power in the family has been discounted
by both sexes. Even so, that men have chosen to use legal means to force their entry into those
aspects of the family sphere formerly denied to them is a social indicator of its value and importance
to them.
228. See generally J. BERNARD, THE FUTURE OF MARRIAGE (1972); B. FRIEDAN, THE FEMININE MYSTIQUE (1963); S. DEBEAUVOIR, THE SECOND SEX (1961).
229. See Kanowitz, The Male Stake in Women's Liberation, 8 CAL. W.L. REV. 424 (1972).
230. See, e.g., Uviller, Father'sRights and Feminism: The Maternal Presumption Revisited, I
HARV. WOMAN'S L.J. 107 (1978). See also Polikoff, Why Are Mothers Losing: A Brief Analysis of
Criteria Used in Child Custody Determinations, 7 WOMEN'S RTs. L. REP. 235 (1982); see also
sources cited supra note 227.
231. See, e.g., M. CUNNINGHAM, POWERPLAY: WHAT REALLY HAPPENED AT BENDIX
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in Supreme Court cases confirms its pervasiveness. It also suggests that
both sexes have a stake in eradicating some legal barriers to sexual equality while retaining others. For example, no women contested the limitation of military registration to men,2 32 and only recently have women
thought it worthwhile to challenge the restrictions that eliminate them
from military jobs designated as "combat" duty. 233 Conversely, the re-
fusal of male blue-collar workers to perform "women's jobs" on the night
shift unless a hefty pay premium was provided was once so widespread
that it gave rise to an equal pay suit brought on behalf of women who
held the jobs on the day shift but could not command the men's
premium. 234
These phenomena suggest that legal differentiation based on sex is
more deeply embedded in our culture than differentiation based on
race.2 35 As Myrdal noted,2 36 even at its height in the years before Brown,
racial segregation was a one-sided institution: it operated to exclude
blacks from white society, but blacks-who, by and large, did not at that
time desire separation 2 3 -- did not seek to impose a similar bar against
whites. Sexual dispersion in our society has a different pattern because
our tendency to live in sexual pairs has served both to give women the
238
private access to men that allowed a measure of interpersonal power,
and to isolate women from each other in the home.2 39 Scholars are only
beginning to rediscover the existence of female support systems formed
(1984); N. MAILER, THE PRISONER OF SEX (1971); Fasteau, Male Fears of Equality, in IMPACT
ERA: LIMITATIONS AND POSSIBILITIES 247 (1976) (Cal. Comm'n on Status of Women).
232. Rostker, 453 U.S. at 61-62; the National Organization for Women, and a collection of
women's groups including the Women's Equity Action League and Business and Professional Women, however, filed amicus briefs urging affirmance. See Williams, supra note 7, at 189 & n.76.
Karst notes in passing that "[no woman would have had standing to challenge the law excluding
women from the draft ..
" Karst, Woman's Constitution, 1984 DUKE L.J. 447, 471, presumably
because women can volunteer for military service. Id. at 470. But the compulsory registration law
considered in Rostker excluded all women regardless of whether any male was drafted pursuant to
its terms: the damage thus done to women's status as citizens would seemingly be susceptible to
redress in court upon the petition of an aggrieved female.
233. See generally Kornblum, Women Warriers in a Men's World: The Combat Exclusion, 2
LAW & INEQUALITY 351 (1984); Ruddick, Pacifying the Forces: Drafting Women in the Interests of
Peace, 8 SIGNS 471 (1983).
234. See Coming Glass Works v. Brennan, 417 U.S. 188, 191 n.3 (1974).
235. Compare Rutherglen, supra note 19, at 207-09.
236. G. MYRDAL, supra note 26, at 575-77.
237. But see id. at 746-50 (discussing the Garvey movement for a return to Africa, and subsequent efforts by Communist organizers to form a Black Belt in the United States). See also J. WILLIAMSON, supra note 70, at 249-58 (discussing the physical and cultural separation of the black and
white races during the period when segregation legislation was at its height, roughly between 1890
and 1915). The attitudes of many black Americans changed during the 1960's, however, as the
emergence of the black power movement put a premium on black culture and identity. See generally
THE BLACK REVOLT: THE CIVIL RIGHTS MOVEMENT, GHETTO UPRISINGS AND SEPARATISM (J.
Geschwender ed. 1971).
238.
See Olsen, supra note 43, at 1500. See generally E. JANEWAY, POWERS OF THE WEAK
(1981).
239.
See, e.g., B. FRIEDAN, supra note 228. Only now are we beginning to learn of the dangers
of this isolation for women in terms of its potential for spousal abuse. See generally Breines &
Gordon, The New Scholarship on Family Violence, 8 SIGNS 490 (1983).
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as a means of coping with this isolation.2" Both sexes, however, at times
apparently have desired sexual separation. Such separation is still prized
in some contexts so long as it is perceived to be freely chosen, rather than
imposed by the other sex.2 4'
The continuation of these separate spheres is giving way under the
pressure of cultural change as well as litigation 242 and statutory enactment,243 but contemporary opposition to their elimination may be seen in
the defeat of the Equal Rights Amendment (ERA) in 1982.2' To the
extent that the public took the ERA to be the legal embodiment of an
assimilationist view of sexual equality,2 45 the debate over its ratification
disclosed the determined dissent of the more conservative sections of the
nation 24 6-those
in which traditional sex roles are highly prized. 247 The
two-way exchange of power between men and women in American society has not yet reached equilibrium, either in the culture or in the
courtroom.
b.
Statutory Cases
Title VII of the Civil Rights Act of 1964 prohibits discrimination in
employment. As the pattern that emerges from the constitutional sex
antidiscrimination cases suggests, women are the primary litigants who
use Title VII to get access to job opportunities available to males.2 48 The
Supreme Court's Title VII cases bear out this expectation: women workers brought fourteen of the fifteen cases2 49 alleging discrimination based
240. See, e.g., Smith-Rosenberg, The Female World of Love and Ritual: Relations Between Women in Nineteenth-CenturyAmerica, 1 SIGNS 1 (1975).
241. See, eg., Kaplan, Women's Education: The Case for the Single-Sex College, in THE
HIGHER EDUCATION OF WOMEN: ESSAYS IN HONOR OF ROSEMARY PARK 53 (H. Austin & W.
Hirsch eds. 1978). See also A. JAGGAR, FEMINIST POLrrIcs AND HUMAN NATURE 270-86 (1983)
(discussing the desire of many radical feminists for a "womanspace" free from male intrusion, in
which to create a "womanculture"). The desire for a measure of separation is not, of course, limited
to women. See, e.g., L. TIGER, MEN IN GROUPS (1969) (discussing male bonding); J. WILLIAMSON,
supra note 70, at 399-413 (discussing the thought of W.E.B. DuBois concerning racial separation).
Tiger's version of exclusivity may, however, be perceived by women as exclusion.
242. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (male seeking admittance to nursing school).
243. See, e.g., Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (1982).
244. See also Freund, The Equal Rights Amendment is Not the Way, 6 HARV. C.R.-C.L. L.
REv. 234 (1971). See generally Rhode, supra note 1.
245. See, e.g., Hacker, ER.A.-R.LP., HARPER'S, Sept. 1980, at 10; Kanowitz, The ERA: The
Task Ahead, 6 HAST. CONST. L.Q. 637 (1979).
246. The states that did not ratify the ERA were primarily in the deep south (Alabama, Arkansas, Georgia, Florida, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia), the
Mormon west (Arizona, Nevada, and Utah), and three geographically disparate states (Illinois, Missouri, and Oklahoma). See Rhode, supra note 1, at 10 n.33.
247. See, e.g., Browne, supra note 199, at 689-98; MacKinnon, Excerpt From MacKinnon/Schlafley Debate, I LAW & INEQUALrrY 341 (1983); see also B. Smith, The Mormon Woman
Looks at ERA (unpublished address delivered by Barbara B. Smith, General President, Relief Society, at Weber State Institute on Apr. 20, 1978) (copy on file in Professor Kay's office).
248. See supra text accompanying note 202.
249. Sex antidiscrimination cases involving women are: Hishon v. King & Spaulding, 104 S. Ct.
2229 (1984); Shaw v. Delta Airlines, Inc., 103 S. Ct. 2890 (1983); Arizona Governing Comm'n v.
Norris, 103 S. Ct. 3492 (1983); Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982); Ford Motor
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on sex.2 5° These cases include a woman rejected for a job because she
was the mother of a pre-school aged child;25 ' women seeking to obtain
insurance extended to other employees for disabilities requiring temporary absence from work; 252 women attempting to retain their seniority
after having been away from work; 253 women seeking pension coverage
on the same basis as male workers; 254 women desiring promotion to supervisory or professional positions; 255 women seeking positions in nontraditional employment; 256 women trying to prevent the intentional
depression of their wages compared to those paid to men;257 and women
Co. v. EEOC, 458 U.S. 219 (1982); County of Washington v. Gunther, 452 U.S. 161 (1981); Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Sweeney v. Board of Trustees of Keene
State College, 439 U.S. 24 (1978), on remand, 604 F.2d 106 (1st Cir. 1979), cert. denied, 444 U.S.
1045 (1980); City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977); United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977);
General Elec. Co. v. Gilbert, 429 U.S. 125 (1976); Phillips v. Martin Marietta Corp., 400 U.S. 542
(1971). The single sex antidiscrimination case brought under Title VII by men in the Supreme Court
is Newport News Shipbuilding & Dry Dock Co. v. EEOC, 103 S. Ct. 2622 (1983).
Four other Title VII cases alleging sex discrimination against women reached the Supreme
Court, but the decisions considered procedural questions unrelated to the merits of the charge. See,
e.g., EEOC v. Shell Oil Co., 104 S. Ct. 1621 (1984) (information that must be included in Commissioner's charge to employer in order to support judicial enforcement of administrative subpoena);
Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176 (1982) (treaty as a defense to Title VII
charge); General Tel. Co. v. EEOC, 446 U.S. 318 (1980) (EEOC enforcement of Title VII allowed
without compliance with FED. R. Civ. P. 23); United Air Lines, Inc. v. McDonald, 432 U.S. 385
(1977) (timely intervention under FED. R. Civ. P. 24). See also Lehman v. Trout, 104 S. Ct. 1404
(1984) (vacating and remanding judgment in Title VII sex discrimination case involving women for
reconsideration in light of other cases).
250. Not all of the 14 cases were decided on the merits; some established significant points about
the burden of proof in Title VII litigation. Eg., Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248 (1981); Sweeney v. Board of Trustees of Keene State College, 439 U.S. 24 (1978). See supra
note 131. One case, Shaw v. Delta Airlines, Inc., 103 S. Ct. 2890 (1983), did not include women as
litigants, although the case dealt with the inclusion of pregnancy in temporary disability plans governed by New York's Human Rights Law.
251. Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).
252. Nashville Gas Co. v. Satty, 434 U.S. 136 (1977); General Elec. Co. v. Gilbert, 429 U.S. 125
(1976). Cf Shaw v. Delta Airlines, Inc., 103 S. Ct. 2890 (1983) (employer brought litigation challenging the application of the New York Human Rights Law to require inclusion of pregnancy in
temporary disability plans).
253. Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) (women seeking reinstatement
with seniority after having been discharged as airline flight attendants for violating airline's "no
motherhood" rule); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) (women returning from pregnancy leave challenged employer rule requiring them to forfeit accumulated seniority). Cf United
Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) (upon being rehired as a new employee in 1972, an
airline flight attendant fired in 1968 because of airline's "no marriage" rule challenged the forfeiture
of her previously accumulated seniority because of the requirement of continuous service).
254. Arizona Governing Comm'n v. Norris, 103 S. Ct. 3492 (1983) (women challenged employer's practice of requiring employees to choose among several pension plans, all of which paid a
woman lower monthly benefits than a man when both had made the same contributions); City of Los
Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978) (women challenged employer's
practice of requiring women to pay more than men in order to receive the same monthly benefits
under retirement plan).
255. Hishon v. King & Spaulding, 104 S. Ct. 2229 (1984) (law partner); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) (project director); Sweeney v. Board of Trustees of
Keene State College, 439 U.S. 24 (1978) (professor).
256. Dothard v. Rawlinson, 433 U.S. 321 (1977) (guard in men's maximum security prison).
257. County of Washington v. Gunther, 452 U.S. 161 (1981) (clarifying the relation between
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asking for back pay to the date of their rejection as a remedy for intentional exclusion from certain job classifications. 25 8 The single statutory
sex discrimination case brought to the Supreme Court by men was a response to the Pregnancy Discrimination Act. That case held that the
dependents of male employees were entitled to the same coverage for
pregnancy available under the employer's plan for female employees and
their dependents.2 59
The Title VII cases considered as a whole, however, support the
two-way model of power exchange that emerged from the Supreme
Court's constitutional cases. Men have appeared more frequently as
plaintiffs in Title VII sex antidiscrimination cases at lower court levels.
These cases highlight the very few areas of the employment market
where men have sought access to traditional "women's" jobs. 2 1 Thus,
men have sued to work as airline ffight attendants 261 and as nurses. 262 In
an unsuccessful bid to broaden Title VII's prohibition against sex discrimination to include discrimination based on sex stereotypes, men have
sued to wear long hair on the job,2 63 and to be free of neckties at work. 26
The litigants compared both claims with female grooming and attire. 265
In individual cases, a man may complain of sex discrimination if an employer gives to a woman a job a man seeks.266 By and large, however,
more267women than men bring sex antidiscrimination litigation under Title
VII,
a legal datum that confirms women's relative lack of power in
Title VII and the Equal Pay Act by interpreting the Bennett Amendment as incorporating only the
affirmative defenses of the Act, not its equal work requirement, into Title VII).
258. Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) (employer originally rejected plaintiffs
because of their sex for the position of "picker-packers" in automobile parts warehouse, then offered
plaintiffs positions without seniority retroactive to the date of rejection; the plaintiffs declined the
offer and brought suit for back pay).
259. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 103 S.Ct. 2632 (1983). Cf.Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (deciding eleventh amendment challenge to relief granted in a
Title VII sex discrimination suit brought by men).
260.
See C. SCHREIBER, CHANGING PLACES: MEN AND WOMEN IN TRANSITIONAL OCCUPA-
TIONS 22-25 (1981).
261. See, e.g., Diaz v. Pan Am. World Airways, 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S.
950 (1971).
262. See, e.g., Fesel v. Masonic Home of Del., Inc., 447 F. Supp. 1346 (D. Del. 1978), aff'd
mer., 591 F.2d 1334 (3d Cir. 1979) (nursing home rejected a male nurse's aide for a position in the
home because of his sex). See generally Moskowitz, Pay Equity and American Nurses: A Legal
Analysis, 27 ST. Louis U.L.J. 801 (1983).
263. See, e.g., Willingham v. Macon Tel. Publishing Co., 507 F.2d 1084 (5th Cir. 1975) (male
rejected for position of newspaper display or copy layout artist because of his long hair).
264. See, e.g., Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir. 1977) (male clerk challenging employer requirement that he wear a necktie).
265. Fountain, 555 F.2d at 755-56 (plaintiff also complained of the employer's inconsistent enforcement of its grooming code, in that the employer had changed its rules to permit women to wear
pants instead of skirts to work); Willingham, 507 F.2d at 1088.
266. See, e.g., Rogers v. McCall, 488 F. Supp. 689 (D.D.C. 1980) (white male alleges sex discrimination when employer promoted white female instead of plaintiff to position as Correctional
Treatment Specialist); cf Womack v. Shell Chem. Co., 514 F. Supp. 1062 (S.D. Ala. 1981) (black
male alleges race, but not sex, discrimination when employer promoted a white female, but not
plaintiff, from position of Accountant Grade 5 to Financial Accountant Grade 6).
267. A similar observation may be made of litigation under the Equal Pay Act of 1963, 29
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employment.
2
Benign or Reverse DiscriminationCases
The preferential benign discrimination programs for blacks stimulated reverse discrimination suits by whites that began to appear on the
Supreme Court's docket in 1974.268 In contrast, the so-called benign
discrimination thought to favor women is a practice as old as
America.26 9 The first male challenge to a female prerogative claimed the
high Court's attention in 1937; the claim failed.270 During the past ten
years, the Court handed down four more cases justifying a regulatory or
statutory distinction ostensibly favoring women on grounds of benign
discrimination.2 7 1
The four modem sex benign-discrimination cases, unlike the race
reverse-discrimination cases, do not differ from the previously discussed
pattern of the sex antidiscrimination cases brought by men.2 72 In the
race reverse-discrimination cases, the plaintiffs were whites who sought
to eliminate a preference for blacks so that they could obtain the soughtfor position. In the sex benign-discrimination cases, however, the plaintiffs sought to be treated like women and asked the Court to extend the
preferential policy to men. Thus, widowers have sued to be treated like
U.S.C. § 206(d) (1964). Congress intended the Act to prevent employers from paying women lower
wages than men for equal work. See generally Murphy, Female Wage Discrimination: A Study of
the Equal Pay Act 1963-1970, 39 U. CIN. L. REV. 615 (1970). While its language is sex-neutral, the
complaints it has generated, including one that appeared on the docket of the United States Supreme
Court (Coming Glass Works v. Brennan, 417 U.S. 188 (1974)), are primarily brought by women.
268. See supra notes 150-51.
269. See supra note 21.
270. Breedlove v. Suttles, 302 U.S. 177 (1937). A white male over 21 challenged, on the
grounds of sex discrimination, a Georgia statute imposing a poll tax on all male citizens between the
ages of 21 and 60 eligible to vote, but exempting, among others, women who did not register to vote.
The Court justified a hypothetical exemption for all women on the basis of their duties as mothers,
which were presumably more important than civic responsibilities. It reasoned that "women may be
exempted on the basis of special considerations to which they are naturally entitled. In view of
burdens necessarily borne by them for the preservation of the race, the state reasonably may exempt
them from poll taxes." Id. at 282 (citing, as an analogous case supporting this proposition, Muller v.
Oregon, 208 U.S. 412 (1908), which upheld protective labor laws for women). The Court spurned as
"fanciful" the appellant's suggestion "that the Georgia law is a mere disguise under which to deny or
abridge the right of men to vote on account of their sex." Id. at 284. See generally Ginsburg, supra
note 46.
271. Heckler v. Mathews, 104 S. Ct. 1387 (1984); Califano v. Webster, 430 U.S. 313 (1977);
Schlesinger v. Ballard, 419 U.S. 498 (1975); Kahn v. Shevin, 416 U.S. 351 (1974). I do not classify
three other cases, in which husbands sought fringe benefits arising from their wives' employment, as
reverse discrimination cases: Califano v. Goldfarb, 430 U.S. 199 (1977); Weinberger v. Wiesenfeld,
420 U.S. 636 (1975); Frontiero v. Richardson, 411 U.S. 677 (1973). Instead, I view these cases as
part of the group in which women seek access to employment opportunities, including fringe benefits, available to men. See supra text accompanying notes 222-26. For an analysis of the significance
of the use of male plaintiffs in these three cases, see Cole, supra note 186, at 58-65 (Frontiero),71-78
(Weinberger and Goldfarb).
The first of the modern "benign" discrimination cases, Kahn, was argued before the United
States Supreme Court on the morning before the Court heard oral argument in DeFunis v. Odegaard, 416 U.S. 312 (1974). Judge Ginsburg, who participated in Kahn, has noted the implications
arising from the juxtaposition of the two cases. See Ginsburg, supra note 46, at 817.
272. See supra text accompanying notes 210-21.
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widows in claiming a tax advantage; 7 3 a male Naval officer sought to
gain the extended period of time available to female officers for promotion;2 74 male pensioners asked to drop the same number of low earning
years as women from old age insurance benefit calculations; 275 and nondependent husbands wanted to take advantage of a statutory phase-in
period created for nondependent wives during the transition from one
statutory pattern that treated the sexes differently with regard to dependency to another that treated them alike.2 76
The factor commonly relied upon to distinguish these four cases
from the other eleven sex antidiscrimination cases brought by men is the
Supreme Court's holding that a policy of benign discrimination designed
to help women overcome past disadvantages justified the differential
treatment accorded male plaintiffs. Commentators have had mixed reactions to the Court's rationale.2 7 From this article's analytical perspective, however, the pattern of these four cases is indistinguishable from
that of the other eleven cases brought by men. The four cases confirm
the two-way model of desired access established by women and men
plaintiffs, and they also exhibit men's desires to claim privileges granted
to women in the family setting. In two of the four cases, the preferential
tax or financial treatment applied to women as widows or as wives, not to
women in general.2 78 If one adds these four cases to the list of twentyseven constitutional sex antidiscrimination cases discussed earlier, the
tally totals thirty-one cases. Women brought thirteen cases seeking to be
treated like men, while men brought fifteen cases seeking to be treated
like women. The remaining three cases consisted of husbands seeking to
derive benefits from their wives' employment.
One can accurately characterize as a sex reverse-discrimination case
Minnick v. California Department of Corrections,2 79 which reached the
Supreme Court's docket only to be dismissed for lack of finality. As in
the race reverse-discrimination cases, in Minnick white males challenged
a preferential hiring order requiring a public agency to increase its em273. Kahn v. Shevin, 416 U.S. 351 (1974) (upholding real property tax exemption available to
widows, but not widowers).
274. Schlesinger v. Ballard, 419 U.S. 498 (1975) (upholding Navy practice applying "up or out"
system to male naval officers passed over twice for promotion, while allowing female officers 13 years
to attain promotion).
275. Califano v. Webster, 430 U.S. 313 (1977) (women allowed to drop three more low-earning
years than men between 1956 and 1972).
276. Heckler v. Mathews, 104 S. Ct. 1387 (1984) (nondependent wives, but not nondependent
husbands, have three years prior to the effective date of statute amending social security survivor's
benefits to eliminate an unconstitutional statutory scheme that distinguished between nondependent
spouses on the basis of sex).
277. See Ginsburg, supra note 46, at 818 (criticizing Kahn and Ballard), and at 822-23 (approving Webster); Kanowitz, supra note 46, at 1380-81 (urging that the Court abandon the benign discrimination doctrine in sex bias cases).
278. Heckler v. Mathews, 104 S. Ct. 1387 (1984); Kahn v. Shevin, 416 U.S. 351 (1974).
279. 452 U.S. 105 (1981) (writ of certiorari dismissed in suit challenging preferential hiring
orders favoring women and blacks in public agency).
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ployment of women and blacks. As in the race cases, the relief sought
was the elimination of the hiring preference.
C.
Summary
An assimilationist model of racial equality, embodied in the presumption against racial classification that is at the core of the strict scrutiny doctrine, and in the statutory prohibition contained in Title VII, can
be seen at work in the race antidiscrimination cases. The model's ultimate goal is eradicating the use of racial differences as the basis for all
public and most private decisions. The case law developed with the help
of this model shows a single tendency: black litigants seeking to be
treated as equals put pressure on white-controlled institutions. The
struggle is far from over, but its direction is clear. Although current
efforts to limit preferential relief to identifiable victims of past discrimination 280 may delay progress in race reverse discrimination cases, the moral
strength of blacks' claims for justice is as compelling today as it was
when Myrdal deliniated it so clearly in 1942.281
The assimilationist model works well, up to a point, to explain the
two-way pattern that emerges from the sex antidiscrimination cases.
There, an intermediate level of scrutiny reflects the Court's belief that
some sex classifications are based on "real" sex differences and that these
classifications must be examined in each case to determine whether they
are inherently stigmatizing.2 82 The Court most often correctly decides
that question in cases that present no factual differences in ability or capacity between women and men.2 83 The Court is least successful when
immutable reproductive sex differences are involved.2 84
The two-way exchange of power exhibited in the sex cases shows
that men as well as women believe that traditional sex classifications have
excluded them from desirable opportunities available to the other sex.
When the legal barriers that deny or restrict access to these opportunities
have been removed, the two-way tendency will encourage cross-sex assimilation to occur. But even when those opportunities have been fully
redistributed without regard to sex-a task that may occupy several generations of feminists-so that the members of both sexes are free from
280. See Firefighters Local Union No. 1784 v. Stotts, 104 S.Ct. 2576, 2588-90 (1984) (contrasting the make-whole relief granted to actual victims of past discrimination with the more limited
relief available to correct societal discrimination).
281. See G. MYRDAL, supra note 26.
282. See supra text accompanying notes 195-99. See also Freedman, supra note 38, at 943-49
(offering a critique of the concept of "real" sex differences as reflected in the opinions of Justices
Rehnquist and Stewart).
283. Eg., Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (male applicant for female nursing school); Kirchberg v. Feenstra, 450 U.S. 455 (1981) (female wishing to manage community property on same basis as male managers); Reed v. Reed, 404 U.S. 71 (1971) (female
applicant for letters of administration).
284. Eg., Geduldig v. Aiello, 417 U.S. 484 (1974) (exclusion of pregnancy from state-sponsored
temporary disability plan).
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and do not assert restrictive role demands on each other, 2 5 there will
still remain a small category of physical reproductive functions that cannot be shared. The Supreme Court has encountered its greatest analytical difficulty when it examines laws affecting reproductive functions.
This difficulty is understandable, because the Court's chosen tool, the
assimilationist model of equality, offers no guidance as to how either society or the law should view reproductive functions unique to one sex.
To decide those questions, another model of equality must be developed
that is capable of recognizing and accommodating immutable sex differences to ensure equal opportunity for both men and women.
IV.
THE LIMITS OF THE ANTIDISCRIMINATION PRINCIPLE
The antidiscrimination and benign or reverse discrimination cases
previously considered draw upon the antidiscrimination principle, defined in Paul Brest's words as "the general principle disfavoring classifications and other decisions and practices that depend on the race (or
ethnic origin) of the parties affected."' 286 Brest went on to note that,
while the principle "can be and has been extended to encompass a variety
of other traits, including alienage, illegitimacy, and sex," he had not undertaken "the inquiries necessary to evaluate such extensions."2'8 7 Earlier in this article, I began such an inquiry by comparing the application
of the antidiscrimination principle to race and sex cases. I concluded
that the assimilationist model of equality developed for and applied in
the race discrimination context could appropriately be extended to the
sex discrimination context when no immutable sexual reproductive differences are involved. The assimilationist model fails, however, to recognize and account for physical reproductive differences between women
and men.
I now continue the inquiry by examining more closely some of the
sex discrimination cases in which the courts sustained the challenged
classification.28 8 These cases suggest that the antidiscrimination principle embodied in the assimilationist view of equality cannot identify sex
discrimination in the absence of comparable men and women whose
treatment along a given dimension differs because of sex.2 89 This failure
is a serious obstacle to the use of the antidiscrimination principle in sex
discrimination cases. The existence of physical sexual reproductive differences and the pervasive social system of ascribed sexual characteristics
285. On the question whether sex roles are inherently oppressive, compare Wasserstrom, supra
note 10, at 613-15 (probably yes), with Rutherglen, supra note 19, at 209-11 (probably not), and E.
WOLGAST, supra note 17, at 103-37 (no).
286. Brest, The Supreme Court, 1975 Term-Foreword: In Defense of the Antidiscrimination
Principle, 90 HARV. L. REV. 1 (1976).
287. Id. at 5.
288. I am concerned only with those cases in which the court rejected the claim of sex discrimination for conceptual reasons, not with those in which plaintiff failed to meet the burden of proof.
289. See also Wildman, supra note 47, at 288; Note, Toward a Redefinition of Sexual Equality,
95 HARV. L. REV. 487, 499-507 (1981).
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derived from those differences 290 frequently makes cross-sex comparisons
impossible or inaccurate. The result has been that courts and litigants
have distorted seriously some sex discrimination cases to bring them
within the antidiscrimination principle, while entirely omitting other
groups of cases. 29
The cases in which the antidiscrimination principle fails to identify
sex discrimination because of the absence of a member of the other sex to
use as a comparison fall into two categories. The first category appeared
early in the interpretative development of Title VII, when some job classifications were still limited to members of one sex. Many of these cases
arose in the context of the airline industry and involved restrictions concerning martial status, age, and weight imposed on women flight attendants.29 2 As long as the courts did not question that the job was limited to
women, the antidiscrimination principle did not identify these cases imposing job restrictions on women as ones involving sex discrimination.2 9 a
290. See, e.g., Browne, supra note 199.
291. The Supreme Court has not treated three groups of cases affecting women as raising issues
of equality. The most significant group consists of abortion cases, which the Court decided on due
process grounds of privacy. See Law, supra note 48, at 980-87, discussing Roe v. Wade, 410 U.S.
113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). The subsequent abortion funding cases did raise
equal protection issues, but the classification complained of was indigency, not sex. See Harris v.
McRae, 448 U.S. 297, 321-26 (1980); Maher v. Roe, 432 U.S. 464, 469-80 (1977).
A second group consists of the jury cases. The first case brought by a woman defendant challenging a "volunteers only" provision for women jurors, Hoyt v. Florida, 368 U.S. 57 (1961), was
decided against her claim on equal protection grounds. However, the later cases that effectively
overruled Hoyt were decided on sixth amendment grounds, and Hoyt was carefully distinguished as
not having involved that amendment. See Duren v. Missouri, 439 U.S. 357 (1979); Taylor v. Louisiana, 419 U.S. 522 (1975). Justice Rehnquist, dissenting in Duren, challenged the majority either to
"insist that women be treated identically to men for purposes of jury selection . . . or [to] discover
some peculiar magic in the number 15 that will enable it to distinguish between such a percentage
and higher percentages less than 50." 439 U.S. at 374 (Rehnquist, J., dissenting). The Duren majority invalidated on sixth amendment grounds a Missouri statute that permitted women to opt out of
jury service and that had produced jury venires averaging less than 15% female.
A third group of cases that involved equal protection challenges to classifications based on birth
status does not affect women as directly as the first two groups of cases, but suggests that children
affiliated only to mothers rather than to fathers are treated unequally. Some of these cases include
sex discrimination claims. E.g., Trimble v. Gordon, 430 U.S. 762, 765-66 (1977) (invalidating Illinois statute that allowed illegitimate children to inherit from mothers, but not fathers; sex discrimination claim not resolved). But most cases did not include such claims. Eg., Lalli v. Lalli, 439 U.S.
259 (1978) (upholding a New York statute limiting inheritance rights from father to illegitimate
children in whose favor an affiliation order had been entered during the father's lifetime); Labine v.
Vincent, 401 U.S. 532 (1971) (sustaining a Louisiana statute allowing only acknowledged illegitimate
children to inherit from their fathers); Levy v. Louisiana, 391 U.S. 68 (1968) (recognizing the right
of illegitimate children to sue for wrongful deaths of their mothers).
292. See, e.g., Binder, Sex Discrimination in the Airline Industry: Title VII Flying High, 59
CALIF. L. REV. 1091, 1101-11 (1971) (discussing restrictions based on marital status and age);
Gerdom v. Continental Airlines, Inc., 648 F.2d 1223 (9th Cir. 1981) (panel opinion holding that
weight restrictions imposed on female flight attendants did not discriminate against them on the
basis of sex), rev'd en banc, 692 F.2d 602 (9th Cir. 1982), cert. dismissed, 460 U.S. 1040 (1983)
(discussed infra note 295).
293. See, e.g., Stroud v. Delta Air Lines, Inc., 544 F.2d 892, (5th Cir.), reh'gdenied en banc, 548
F.2d 356, cert. denied, 434 U.S. 844 (1977) (upholding marriage restriction imposed on women
only-"[a]s one of the all-female group of flight attendants employed by Delta, plaintiff suffered a
discrimination, but it was based on marriage and not sex." 544 F.2d at 893); accordCooper v. Delta
Air Lines, Inc., 274 F. Supp. 781 (E.D. La. 1967).
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As soon as a man successfully won the right to work as a flight attendant, 294 however, a basis for comparison existed and the courts could easily apply the antidiscrimination principle to such restrictions. 295 But
even before that resolution of the problem had occurred, a few courts
read Title VII expansively to eliminate job impediments for women based
on sex stereotypes, such as that requiring flight attendants to be young,
attractive, and unmarried women, without regard to whether a man
would be similarly restricted.2 96 The courts did not fully develop this
alternate analysis, 297 however, because the entry of males into the job
category, followed by the reintroduction of the more familiar antidiscrimination principle, made it unnecessary.
Two other groups of cases posed potential analytical difficulties for
applying the antidiscrimination principle and ultimately were brought
within that principle by redefining the nature of the respective claims.
These cases included claims by men against employer practices requiring
them to wear short hair at work 298 and claims by women of sexual harassment on the job.29 9 In the hair length cases, the courts achieved
equality of treatment by subjecting the members of both sexes to grooming codes that enforced different and sex-appropriate standards of appearance. 3° ° In the sexual harassment cases, the courts finally
recognized the activity complained of to be work-related, rather than
purely personal, conduct 30 ' and, however infrequent in practice, 3 2 capa294. Diaz v. Pan Am. World Airways, 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950
(1971).
295. See, e.g., Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982) (en banc),
cert. dismissed, 460 U.S. 1040 (1983) (weight restrictions applied to female flight attendants but not
to male in-flight directors of passenger service constituted sex discrimination under Title VII; panel
decision relying on Stroud repudiated).
296. See, e.g., Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir.), cert. denied, 404
U.S. 991 (1971) (challenge by female flight attendants to the no-marriage rule). The Court said:
"The scope of Section 703(a)(1) is not confined to explicit discriminations based 'solely' on sex. In
forbidding employers to discriminate against individuals because of their sex, Congress intended to
strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." The case is notable for a concurring opinion by Justice Stevens, then sitting as a circuit
judge. He observed in part that:
[i]f, except for his sex, plaintiff's husband had precisely the same job qualifications as plaintiff,
he would not have been eligible for employment as her replacement. United's requirements for
employment as a flight cabin attendant simultaneously discriminated against Mr. Sprogis because of his sex and against Mrs. Sprogis because of her sex.
Since there are only two sexes, a reading of § 703(a)(1) of the Civil Rights Act of 1964
which leads to such an anomalous result cannot be correct.
Id. at 1202.
297. Such an analysis, however, was perceptively developed in Taub, Keeping Women in Their
Place: Sex Stereotyping Per Se as a Form of Employment Discrimination, 21 B.C.L. REv. 345
(1980). See also C. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN 174-92 (1979).
298. See, e.g., Willingham v. Macon Tel. Publishing Co., 507 F.2d 1084 (5th Cir. 1975) (en
banc).
299. See, e.g., Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977); Taub, supra note 297, at 361-87.
300. See generally Note, Employer Dress and Appearance Codes and Title VII of the Civil Rights
Act of 1964, 46 S. CAL. L. REV. 965 (1973).
301. See, e.g., Henson v. City of Dundee, 682 F.2d 897 (1 1th Cir. 1982); Note, Sexual Harassment Claims of Abusive Work Environment Under Title VII, 97 HARV. L. REV. 1449 (1984); see
generally C. MAcKINNON, supra note 297.
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ble of affecting men as well as women.3 °a This group of cases stimulated
feminist scholars to develop alternative approaches that focus more directly on the harm done to women by stigmatizing and stereotypical classifications. These approaches continue to be refined to avoid the
restrictions inherent in using the treatment of men as a basis for
comparison. 3°
The second category of cases is more intractable. It includes
some,3 °5 but not all,30 6 of the cases that Wendy Williams has described as
"hard cases" because she believes that they test the limits of what our
culture is willing to accept as appropriate behavior.30 7 Courts using the
antidiscrimination principle in this group of cases have rejected the
claims of both men and women. The claims include litigation involving
immutable physical sex differences-primarily pregnancy 308 in women
and the capacity to commit forcible rape" in men. These cases can
never satisfy the comparability standard inherent in the antidiscrimination principle for, by definition, there are no similarly situated pregnant
men or female rapists. Accordingly, courts using that analysis have denied that the exclusion of pregnancy from a temporary disability plan for
all workers constitutes sex discrimination,3 10 and have upheld statutes
302. See C. MACKINNON, supra note 297, at 202.
303. See, e.g., Huebschen v. Department of Health & Social Serv., 547 F. Supp. 1168 (W.D.
Wis. 1982) (sexual favors demanded of male employee by female boss).
304. See, e.g., Law, supra note 48, at 1007-13; Wildman, supra note 47, at 304-07.
305. See Williams, supra note 7, at 180 and n.36. I agree that the pregnancy cases are "hard"
ones for any court using an antidiscrimination standard and attempting to apply the assimilationist
model of racial equality to sex discrimination cases.
306. See, e.g., Rostker v. Goldberg, 453 U.S. 57 (1981), discussed in Williams, supra note 7, at
181-85. I believe that Rostker was wrongly decided, but I do not find it a "hard case." A successful
challenge to the combat restriction will resolve any difficulty in applying the antidiscrimination principle to military litigation. See Kornblum, supra note 233, at 430-43.
307. Williams, supra note 7, at 180, 182-83, 190-91.
308. Eg., Nashville Gas Co. v. Satty, 434 U.S. 136 (1977); General Elec. Co. v. Gilbert, 429
U.S. 125 (1976); Geduldig v. Aiello, 417 U.S. 484 (1974). Other physical differences characteristic of
women include breastfeeding and menstruation. See, e.g., Chavkin, Walking a Tightrope: Pregnancy, Parenting,and Work, in DOUBLE EXPOSURE: WOMEN'S HEALTH HAZARDS ON THE JOB
AND AT HOME 196, 205 (W. Chavkin ed. 1984) [hereinafter cited as DOUBLE EXPOSURE] (discussing work-related problems of nursing mothers).
309. See Comment, Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 YALE L.J. 55, 55 n.2 (1952) (pointing out that no published cases
were found in which a woman was convicted as a principal defendant in a rape case). But see People
v. Liberta, 64 N.Y.2d 152, 485 N.Y.S. 207 (1984), holding invalid, as a sex-based discrimination
against men, a forcible rape statute that defined rape, in part, as "sexual intercourse with a female
[by] forcible compulsion" (N.Y. PENAL LAW § 130.35 (McKinney 1975)), and defined sexual intercourse as "penetration, however slight" (id § 130.00(1)). The Court reasoned that the degree of
contact required could be achieved without a male being aroused and thus without his consent.
Under this technical interpretation a woman may be guilty of the crime of rape, even though, I
would argue, she cannot perform the physical act of rape in the same way as a man. Statutory
definitions aside, there are still no female rapists in that realistic sense.
Michael M. v. Superior Court, 450 U.S. 464 (1981), classed by Williams as a "hard case" (see
Williams, supra note 7, at 180 n.36), seems to me wrongly decided and "hard" only because of the
Court's willingness to accept California's argument that the statute was designed to prevent pregnancy in teenage females.
310. General Elec. Co. v. Gilbert, 429 U.S. 125 (1976); Geduldig v. Aiello, 417 U.S. 484 (1974).
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defining forcible rape as a crime that only men can commit. 31 1
Efforts were undertaken to change the results in both sets of cases;
in both situations, the chosen approach brought the problem within the
antidiscrimination principle. In the context of forcible rape, feminists
were joined by other groups interested in crime control and in codifying
state criminal laws. These groups proposed sex-neutral sexual assault
laws, rape victim shield laws, and the elimination or modification of the
corroboration requirement.31 2 These evidentiary reforms are desirable,
and the sex-neutral laws clarified that women as well as men can commit
sexual assault. But changing the name of the offense has not altered the
reality that, while men can rape other men 3 11 and women, women are
still the primary victims of forcible rape.31 4
The Supreme Court decided the pregnancy disability cases on both
constitutional31 5 and statutory 31 6 grounds. While only a change of attitude by the Supreme Court Justices could overturn the constitutional
holding, the statutory interpretation could be and was reversed by congressional amendment of Title VII.3 17 The congressional approach, however, was not to prohibit employment discrimination based on
pregnancy, but to define discrimination based on sex as including discrimination based on pregnancy.3 1 8 Under one reading of the pregnancy
discrimination amendment, this legislative strategy brought the pregnancy disability cases under the antidiscrimination principle. 3 9 This interpretation would require courts to compare the coverage afforded to
men and women: if men are not protected against temporary disabilities
at work, neither are pregnant women. Under another reading, however,
the amendment does not prohibit, even if it does not require, practices
designed to accogimodate pregnant workers that have no counterpart for
non-pregnant workers. 32' Litigants have submitted these competing interpretations of the Pregnancy Discrimination Act to the courts for
resolution.3 2'
311. Eg., Lamar v. State, 243 Ga. 2d 401, 254 S.E.2d 353 (1979); State v. Witt, 310 Minn. 211,
245 N.W.2d 612 (1976). But see People v. Liberta, 64 N.Y.2d 152, 485 N.Y.S. 207 (1984).
312. See generally Berger, Man's Trial, Woman's Tribulation. Rape Cases in the Courtroom, 77
COLUM. L. REV. 1 (1977).
313.
See, e.g., Withers v. Levine, 615 F.2d 158 (4th Cir. 1980).
314.
315.
See generally S. BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975).
Geduldig v. Aiello, 417 U.S. 484 (1974) (equal protection).
316. General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) (Title VII).
317. See supra note 6.
318. See Williams, supra note 7, at 193-94.
319. See Note, supra note 8, at 694-95; Williams, supra note 7, at 193. See also Chavkin, supra
note 308, at 202-06 (arguing that the Pregnancy Discrimination Act, if interpreted to afford pregnant
women only the same rights as those available to medically disabled men, does not adequately cover
women for prenatal care, childbirth leave, and breastfeeding).
320. See Note, supra note 8, at 695-96; see also Brief of Equal Rights Advocates, Inc., supra note
8. Reference to sex-specific diseases in men, such as prostate gland disorders, does not solve the
problem of comparison with pregnancy. The female analogue to the prostatectomy is the hysterectomy or the mastectomy. Pregnancy, however, is not a disease. Rather, it is a normal physical
sexual reproductive function that has no male analogue.
321. The Supreme Court of Montana has upheld (against a claim of preemption under Title
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Legal issues concerning pregnancy, of course, are not limited to
temporary disability plans or reasonable maternity leaves. The existing
cases include those in which pregnant airline flight attendants have been
grounded at various stages of pregnancy;3 22 those in which pregnant 323 or even fertile 324 _women are excluded from the work place to prevent
exposure to toxic hazards that potentially affect both sexes; 325 and those
in which indigent women giving birth have been threatened with sterilization.3 26 Moreover, Congress recently enacted legislation requiring that
specific warnings to pregnant women against the use of tobacco be
printed on cigarette packages.32 7 Cases on the legal horizon include
those in which judges may impose a diet or avoidance behavior on pregnant women to safeguard fetal development against maternal neglect. 328
Pregnancy cases also include a woman's claim of access to abortion as a
way of terminating a pregnancy.32 9
As an alternative to constructing a comparative framework between
pregnancy and other conditions in order to bring these cases within the
antidiscrimination model, a different approach should be considered.
VII) a Montana statute (MONT. CODE ANN. §§ 49-2-310, 49-2-311 (1983)) requiring employers to
give leaves of absence to pregnant employees. Miller-Wohi Co. v. Commissioner of Labor & Indus.,
692 P.2d 1243 (Mont. 1984), appeal docketed, 53 U.S.L.W. 3718 (U.S. Apr. 9, 1985) (No. 84-1545).
The Ninth Circuit also upheld a California statute requiring up to four months pregnancy disability
leave. California Fed. Sav. & Loan Ass'n v. Guerra, No. C-83-4927-R (C.D. Cal. Mar. 21, 1984),
appealfiled, Nos. 84-5843 & 84-5844 (9th Cir. 1984) (slip opinion filed Apr. 16, 1985). See supra
note 8.
322. See, e.g., Harriss v. Pan Am. World Airways, 649 F.2d 670 (9th Cir. 1980) (upholding
airline's policy of grounding pregnant flight attendants upon learning of pregnancy); Burwell v. Eastern Airlines, Inc., 633 F.2d 361 (4th Cir. 1980) (en banc), cert. denied, 450 U.S. 965 (1981)
(mandatory grounding permissible after first trimester of pregnancy).
323. Eg., Hayes v. Shelby Mem. Hosp., 726 F.2d 1543 (11th Cir. 1984).
324. E.g., Oil, Chem. & Atomic Workers v. American Cyanamid Co., 741 F.2d 444 (D.C. Cir.
1984);' Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982), on remand, 585 F. Supp. 1447
(W.D.N.C. 1984).
325. See Williams, Firingthe Woman to Protectthe Fetus:"The Reconciliation of FetalProtection
with Employment Opportunity Goals Under Title VII, 69 GEO. L.J. 641 (1981); cf. Furnish, Prenatal
Exposure to Fetally Toxic Work Environments. The Dilemma of the 1978 PregnancyAmendment to
Title VII of the Civil Rights Act of 1964, 66 IOWA L. REV. 63 (1980). See generally DOUBLE ExPoSURE, supra note 308.
326. See, e.g., Relf v. Weinberger, 372 F. Supp. 1196 (D.D.C. 1974) (suit by National Welfare
Rights Organization on behalf of its 125,000 members and five individual women challenging authority of Secretary of Health, Education, and Welfare to issue regulations governing human sterilization under its funded programs and projects), dismissed as moot, 565 F.2d 722 (D.C. Cir. 1977)
(agency had withdrawn the regulations); Walker v. Pierce, 560 F.2d 609 (4th Cir. 1977) (reversing
judgment under 42 U.S.C. §§ 1981, 1983 & 1985(3) against obstetrician who allegedly required his
Medicaid patients giving birth to a third child to submit to sterilization or find another doctor).
327. N.Y. Times, Sept. 27, 1984, at l-Y, col. 5. The text of the warning, which is one among
four to be printed on a rotating basis on cigarette packages, reads: "SURGEON GENERAL'S
WARNING: Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low
Birth Weight." Id. at 16-Y, col. 3.
328. A physician asked a juvenile court in Baltimore, Maryland, to order a pregnant woman to
immediately stop taking drugs-including Quaalude, Valium, cocaine, and morphine-not prescribed by a medical doctor. N.Y. Times, Apr. 27, 1983, at I l-Y, col. 4. See generally Lenow, The
Fetus as a Patient: Emerging Rights as a Person?, 9 Am. J.L. & MED. 1 (1983); Comment, The Fetal
Patient and the Unwilling Mother: A Standardfor JudicialIntervention, 14 PAC. L.J. 1065 (1983).
329. See Law, supra note 48, at 1016-28.
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Such an approach should recognize that the capacity to become pregnant
is one of the few immutable sex differences between women and men, and
should provide a legal structure to accommodate pregnancy without regard to the antidiscrimination principle and its limiting requirement of
comparison to male standards.
Several writers have recently begun the task of designing such an
alternative legal structure. Sylvia Law, for example, has proposed bringing laws regulating reproductive biology within the fourteenth amendment's guarantee of equal protection. Such laws would not be subjected
to the antidiscrimination principle.33 ° A two-step test would first scrutinize a law to determine whether it has a significant impact in perpetuating either "the oppression of women or culturally imposed sex-role
constraints on individual freedom." 3 3 ' If so, the test would then use a
strict scrutiny standard of review to determine whether the law serves a
compelling state interest.332 Her proposed test is limited to laws governing reproductive biology: she would continue to apply the antidiscrimination principle to laws that make explicit sex classifications.3 3 3
Professor Law's two-step test is a valuable suggestion that deserves
serious consideration. The initial focus on women is perhaps explained
by the test's overall limitation to laws regulating reproductive biology.
One cannot easily imagine a law explicitly governing male reproductive
biology, let alone one that has an oppressive impact on men.3 34 But the
330. Id. at 1008-09.
331. Id.
332. Id at 1010-11.
333. Id. at 1011-12.
334. Castration as a treatment for male sexual offenders may be an appropriate illustration.
Castration is the removal of the testes. When used as a medical treatment for sex offenders, "[t]he
goal is to decrease hormone production with a hoped-for concomitant lowering of the sexual drive
and a resultant lessening of criminal, sexually assaultive tendencies." GROUP FOR THE ADVANCEMENT OF PSYCHIATRY, PSYCHIATRY AND SEX PSYCHOPATH LEGISLATION: THE 30s TO THE 80s,
at 903 (Pub. No. 98, Apr. 1977). Reports on the use of castration in Europe during the 1920's and
30's appear in the medical literature. See, e.g., M. GUTTMACHER, SEX OFFENSES: THE PROBLEM,
CAUSES AND PREVENTION 105-07 (1951); Heim & Hursch, Castrationfor Sex Offenders: Treatment
or Punishment? A Review and Critique of Recent European Literature, 8 ARCHIVES SEXUAL
BEHAv. 281 (1979); Bowman, The Problem of Castrationas a Treatment of Sex Criminals, in CAL.
DEVIATION RESEARCH 123-27 (Dep't of Mental Hygiene, The Langley Porter Clinic, Jan. 1953).
Castration has had its defenders in the United States as well. See M. GUTTMACHER, supra, at 10809 (discussing the views of Dr. C.C. Hawke, Medical Director of the State School for Mental Defectives at Winfield, Kansas, and reporting that 330 persons had been castrated there between 1894 and
1951).
More recent observers note, however, that "[t]he acceptance of castration for sexual offenders in
the United States is quite low among both professionals and the general public." GROUP FOR THE
ADVANCEMENT OF PSYCHIATRY, supra, at 905-06. It is not difficult to see why this might be so. A
major objection to the practice is that the voluntariness of the patient's consent to the procedure is
questionable when the alternative is imprisonment. See id. at 906-07. See also Sadoff, Sex and the
Law, in THE SEXUAL EXPERIENCE 567 (1976). Sadoff noted that, although many sex offenders
would prefer to be castrated than to be locked up for the rest of their lives, . . . the American
Civil Liberties Union and other civil rights groups have questioned whether it is appropriate for
these men to have to make such a choice and whether their freedom to give informed consent to
the procedure is abrogated by undue coercion by virtue of their indefinite or indeterminate
sentence.
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black lung33 5 and agent orange 3 36 cases dramatically illustrate work
place hazards that indirectly affect children of workers in two occupations-mining and military service--traditionally dominated by men.33
For many feminists, the preferred solution to the problem of toxic
hazards at work is to protect all workers against reproductive dangers.33 8
A new legal standard that focuses on reproductive biology should be able
to identify laws oppressive to either sex without needing to compare the
sexes as part of the inquiry. Nor is it clear why physical characteristics
unique to men should be omitted from Law's test, although I can appreciate her reasons for wanting to construct her model as narrowly as possible. 339 As the former infliction of the death penalty in rape cases
shows,340 males, too, have been subjected to oppressive laws regulating
conduct associated with their physical sex characteristics. 4 1
Stephanie Wildman has proposed discarding the comparison between men and women inherent in the antidiscrimination principle because she believes that it perpetuates sex discrimination. 342 Noting that
"[w]omen, not men, are the victims of sex discrimination, just as blacks
and not whites are the victims of race discrimination, 3 43 she sets out a
Id. at 571. The Supreme Court of South Carolina has held that a criminal sentence allowing a rapist
to choose between castration or 30 years in prison constitutes cruel and unusual punishment under
the state constitution. Brown v. State, 36 Crim. L. Rep. 2463 (S.C. Feb. 13, 1985) (see also N.Y.
Times, Feb. 14, 1985, at 8-Y, col. 6).
335. See, e.g., Lapp, Black Lung Symposium: A Lawyer's Medical Guide to Black Lung Litigation, 83 W. VA. L. REV. 721 (1981).
336. See, e.g., In re "Agent Orange" Prod. Liab. Litig., 635 F.2d 987 (2d Cir. 1980), cert. denied
sub nom. Chapman v. Dow, 454 U.S. 1128 (1981) (holding that plaintiffs, several hundred Vietnam
veterans from the United States, Australia, and New Zealand-as well as their spouses, parents, and
children-who claimed to have suffered damages as a result of their or a family member's exposure
to Agent Orange, failed to state a cause of action under federal common law). The case proceeded
under diversity jurisdiction, (see In re "Agent Orange" Prod. Liab. Litig., 580 F. Supp. 690
(E.D.N.Y. 1984) (opinion on choice of law)), and was recently settled with the manufacturers' creation of a $180 million fund for the benefit of the plaintiffs. See N.Y. Times, Sept. 26, 1984, at 16-Y,
col. 1.
337. Women constituted 1.9% of the United States armed services in 1972; 5% in 1976; and
estimates projected that the figure would rise to 7% by 1982. See M. BINKIN & S. BACH, WOMEN
AND THE MILITARY (1977). Women constituted 10% of the armed services in 1983. THE WORLD
ALMANAC & BOOK OF FACTS, 1985, at 334-38 (1984). Women constituted 6% of the total mine
work force, including clerical workers, in 1968; but, under pressure from governmental agencies and
private litigation, employers are now hiring women to work as miners in greater numbers. See
Barnard & Clark, Clementine in the 1980's (EEO and the Woman Miner), 82 W. VA. L. REv. 899
(1980).
338. See Williams, supra note 325.
339. See Law, supra note 48, at 1011-13.
340. See Coker v. Georgia, 433 U.S. 584 (1977) (holding that the imposition of the death penalty for the rape of an adult woman constituted cruel and unusual punishment in violation of the
eighth amendment). The American Civil Liberties Union, the Center for Constitutional Rights, the
National Organization for Women Legal Defense and Education Fund, the Women's Law Project,
and Equal Rights Advocates, Inc. jointly filed an amicus curiae brief in support of this position. The
rape laws were a common tool used by whites to keep black men under control. See, e.g., Wriggins,
Rape, Racism, and the Law, 6 HARV. WOMEN'S L.J. 103, 104-16 (1983); R. KLUGER, supra note 37,
at 144-54 (discussing the case of the Scottsboro boys and that of George Crawford).
341. See also supra note 334.
342. Wildman, supra note 47, at 306.
343. Id. at 304. Wildman qualifies the statement quoted in the text by pointing out that "[o]f
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"participatory perspective" 3 " to eliminate sex discrimination against women by ensuring full societal participation.3 45 I agree with Wildman that
women are victims of sex discrimination, but, as I have shown in this
article, so are men. The differences I have identified between the patterns
that have emerged in the race antidiscrimination cases and the sex antidiscrimination cases show that men believe themselves to be victims of
sex discrimination in a way that whites did not believe themselves to be
victims of race discrimination before preferential programs for blacks.
Feminists should not discount that male perception, for it is the shared
realization that both sexes are limited by social or legal restrictions imposed on either which will permit men and women to join together to
restructure a society that currently oppresses both sexes in different
ways.346 If feminists fully accept Wildman's proposal, we might be required to abandon the equality model in sex discrimination cases, rather
than simply to modify it to permit courts and legislators to recognize and
accommodate sex differences.
Other writers347 have also proposed analytical models that would
transcend the limits of the antidiscrimination principle in the context of
sex discrimination. Feminists should explore all of these suggestions
while seeking to create a jurisprudence more reflective of our own
concerns.
In my view, however, we should not abandon either the ideal of
equality as a model for sexual justice, or, in all cases, an antidiscrimination principle as the normal standard of measurement. The concept of
equality, pared to its descriptive nub, measures different objects or qualities to determine whether they are alike or different.34 8 Without any
comparison between women and men, descriptive statements about their
similarities and differences are not possible. Peter Westen 349 has asserted
that statements about prescriptive equality-whether two persons ought
to be treated as equals-are meaningless or tautological. This argument
has a superficial appeal when considered in the context of sex discrimination, for it seemingly suggests that women and men could be released
course, men may be discriminated against on the basis of sex. A man who wants a leave from work
to raise children will be viewed as odd; a man who wants to work in a 'woman's job' like nursing will
be looked at askance." Id. at 304-05.
344. Id. at 306-07. Wildman credits Professor Kathryn Powers with this expression. Id. at 269
n. 14. See Powers, Sex Segregation and the Ambivalent Directions of Sex DiscriminationLaw, 1979
Wis. L. REV. 55, 102.
345. Wildman, supra note 47, at 306-07.
346. See, e.g., B. FRIEDAN, THE SECOND STAGE 125-61 (1981); Ehrensaft, When Women and
Men Mother, in MOTHERING: ESSAYS IN FEMINIST THEORY 41 (J. Trebilcot ed. 1984); Rossi, Gender and Parenthood,49 AM. SOCIOLOGICAL REV. 1 (1984); Project, Law Firms and Lawyers with
Children: An EmpiricalAnalysis of Family/Work Conflict, 34 STAN. L. REV. 1263 (1982).
347. See, e.g., Freedman, supra note 38, at 960-68; Note, supra note 289, at 499-507.
348. See generally E. WOLGAST, supra note 17, at 37-55; Westen, The Meaning of Equality in
Law, Science, Math and Morals: A Reply, 81 MICH. L. REV. 604, 607-14 (1983).
349. Westen, The Empty Idea of Equality, 95 HARV. L. REv. 537 (1982).
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MODELS OF EQUALITY
from the limitations imposed by deriving individual rights from comparisons with those held by members of the opposite sex.
I take it that Wildman, Law, and I agree that the antidiscrimination
principle currently used in sex discrimination analysis does not adequately solve the legal problems raised by reproductive differences, primarily because the comparison between men and women does not fit
those cases. Law and I, but not Wildman, agree that the comparison
inherent in the antidiscrimination principle can be retained in cases
where reproductive sex differences are not at issue-where one can compare women and men without distortion. I am not convinced, however,
that the concepts of oppression, stigma, and sex stereotyping that Law,
Wildman, and others350 use in their own approaches eliminate the need
for comparison. I do not see how we can conclude that a person is oppressed or stigmatized except by contrasting the treatment he or she receives with the more favorable treatment given to another person who is
not oppressed or stigmatized. If the argument is that all women are oppressed or stigmatized, then an implicit comparison with men seems built
into the standard. Nor does resort to the concept of sex stereotypes help
the argument, for sex roles are, by definition, complementary for each
sex. Comparison seems to be unavoidable, then, but its use need not
limit either sex if the model we choose for sexual equality avoids the
assimilationist view of minimizing sex differences.
Dworkin's well-known distinction between the right to equal treatment and the right to be treated as an equal35 ' is helpful here. We can
insist that men and women be treated equally in those many areas where
no sex differences are relevant, while demanding that they be treated as
equals in those few cases directly involving immutable biological reproductive differences. In this way, we can retain the ideal of equality,
which, as Westen's critics have shown,352 has independent substantive
value, in structuring a just society for both sexes.
V.
CONCLUSION
Women and men are alike in many ways, including the largely untested capacity to develop their own potential free of sex stereotypes. But
they are different in a few immutable traits, chief among them reproductive capacity and function. The experience of all known human societies
has demonstrated a universal tendency to define the life options of both
353
men and women by reference to those differing reproductive traits.
For the first time in the history of any human society, reliable scientific
control of the reproductive process is now at hand. Yet, far from de350. See, e.g., Freedman, supra note 38, at 965-68; Note, supra note 289, at 499-507.
351. See R. DWORKIN, supra note 160, at 227.
352. See, e.g., Greenawalt, How Empty Is the Idea of Equality?, 83 COLUM. L. REV. 1167
(1983); Karst, Why Equality Matters, 17 GA. L. REV. 245 (1983).
353. See M. MEAD, MALE AND FEMALE 7-8 (1949).
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creasing the importance of sex differences, these scientific discoveries
have intensified public debate over basic issues such as birth control,
abortion, pregnancy, and the role of women in both public and private
life. More muted, but present, is a questioning of values associated with
the traditional role of men 35 4 and an exploration of their newly-defined
position in family life. Holding a crucial place in this discussion is the
current dispute over how pregnancy fits within a model of sexual
equality.3 55
This article argues that continued adherence to the assimilationist
model of racial equality and persistent efforts to draw from it an adequate model of sexual equality founder on the inescapable fact of sexual
reproductive difference. We should desist from further fruitless attempts
to deny that which cannot be changed and instead direct our energies to
devising ways to accommodate and neutralize the impact of those differences on the lives of women and men.
354. See, e.g., Ruddick, supra note 233, at 476-85; D.
DINNERSTEIN, THE MERMAID AND THE
MINOTAUR: SEXUAL ARRANGEMENTS AND HUMAN MALAISE
(1976).
355. I address this dispute directly elsewhere. Kay, Equalityand Difference: The Case of Pregnancy, 1 BERKELEY WOMEN'S L.J. (forthcoming 1985).
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