Test 3

Non-subordination Theory AKA-Dominance Theory Shifts the focus of attention from sexbased difference to sex-based subordination; i.e. the imbalance of power btwn men and women.
- This theory focuses on the imbalance of power between men and women. It looks at
whether a practice is subordinating women to men.
Sexual Harassment in the Workplace
1. Title 7 This applies only in the workplace. It is seen as discrimination on the basis of
sex. It can be violated by both economic and non-economic injury. Sexual harassment is
the unwanted imposition of sexual requirements in the context of a relationship of
unequal power. Using the power to level benefits or impose deprivations is common.
a. Title 7 is violated when the workplace is permeated w/discriminatory
intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the
condition of the victims employment and create an abusive working
environment.
b. Title 7 prohibits offensive physical sexual conduct without regard to whether the
perpetrator and the victim are the same or different genders, and without regard to
the sexual orientation real or perceived of the victim.
c. Mere utterance of a remark that offends an employee doesnt trigger Title 7 (bc it
doesnt sufficiently affect the conditions of employment.)
2 types of sexual harassment under Title 7
1. Quid Pro Quo Needs to involve a supervisor. Where sexual contact or a favor is
required as a condition of employment or advancement. Must involve a trade-off of some
sort of sexual favor for some sort of term, condition, or privilege of employment. This
can be an employment opportunity to get a job, promotion, pay rate, or some type of
benefit.
a. Must involve a supervisor. They are the only ones who have the power to give
the economic advantage.
b. Must be a trade-off involved.
c. Plaintiff needs to establish that submission to the unwanted sexual advances of a
supervisor was an express or implied condition for receiving job benefits or her
refusal to submit resulted in tangible job detriment. If this is established there is
no defense for the employer.
d. It is actionable even if the victim did not submit to the proposition.
2. Hostile Environment The plaintiff must have been actually offended, and the offense
taken must have been reasonable, which is to be judged from a reasonable person in the
plaintiffs position, considering all the circumstances. The plaintiff must also prove that
the conduct was unwelcome most obvious way for an employee to signal this is to
complain about it. Conditions are creating an intimidating, hostile, or offensive
working environment.
- Whether an environment is hostile or abusive can be determined only by looking at all
the circumstances, which may include the frequency of discriminatory conduct, its
severity, whether it is physically threatening or humiliating, or a mere offensive utterance,
and whether it unreasonably interferes w/an employees work performance.

a. Against Supervisor Employee suffered an adverse employment action such as

discharge, demotion, or undesirable resignation
i. Is the claim sufficiently severe or perverse to alter the conditions of the
victims employment and create an abusive working environment? Use a
reasonable person standard.
ii. Establish the subjective and objective components. (i) Subjective: Ask
whether or not the conduct was unwelcome? Voluntary is not a defense. It
has to be unwelcome. You do not have to be having psychological
problems. (ii) Objective: Ask whether, considering totality of
circumstances the working environment is established as sufficiently
abusive. Look at the number, nature, totality of instances and behavior of
both parties. If the employee dressed provocatively that behavior is taken
into context with the behavior of the accused.
iii. If plaintiff establishes this then BOP shifts to employer. Employer needs
to meet the two prong affirmative defense:
1. Employer exercised reasonable care to prevent and promptly
correct any sexually harassing behavior, and
2. Employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or
to avoid harm otherwise by taking other feasible steps to avoid
harm.
a. Where an employee resigns as a result of conditions that
have become intolerable, the employer may avoid liability
by showing that there was an effective remedial process
that the employee unreasonably failed to use.
b. The affirmative defense is basically looking at the nature of employers policy,
extent to which policy is available and enforceable. And the extent to which the
complainant failed to take advantage of the policy or otherwise avoided it.
c. The employer is required to have a policy and distribute it. Employer will lose if
they have not distributed it. If the policy is flawed they will not meet prong one.
If they have a policy but fail to correct it promptly they do not meet part one of
the affirmative defense.
d. The victim cannot dictate results do if the company does not respond the way the
victim wanted them to that does not necessarily mean they dont meet prong 1.
But if they take remedial action that punishes the victim the employer can lose.
Ex. Transferring the victim instead of the accused. Another way employer can
lose is if they complain and employer investigates and they tell the accuser they
will solve the problem and then they bring in the accused and say this is what
youve done so stop doing it. Then the accused goes out and starts harassing
again. This is not responding in a manner that corrects promptly. There needs to
be some form of punishment but not to the extreme such as firing. Over-response
will cause the employer to lose.
c. Against a Co-Worker Plaintiff must show that she is a member of a protected class, and
show she is being discriminated by being subjected to unwelcome sexual harassment. P
must also show that the workplace was sufficiently abusive based on the totality of the
circumstances.

i. Employee must prove that employer knew or should have known of the conduct.
If the employee never says anything and employer never witnessed it there is no
case.
ii. Employer bears BOP to show they corrected the conduct. Then burden shifts to
employee to show that they didnt correct it.
iii. Does the employer have a policy that is readily available and easily usable by an
employee?
iv. There is no definitive rule when it is co-worker to co-worker. But the courts
have said you must give notice to the workplace.
v. The employer can avoid liability by showing they have a complaint system that
works and they made prompt and thorough investigations and took remedial
actions reasonably calculated to prevent further harassment and to protect the
complainant. Employers may be able to avoid liability if they transfer
complainants out of range of the harasser unless that involves a less desirable
assignment.
vi. Title VII does not work to hold a person individually liable that is why you look
at whether the employer is liable.
3. Constructive Discharge This means an employee has resigned. If a reasonable person
believed there was no other alternative it constitutes constructive discharge. Ex)
Employee has complained about sexual harassment and employer has tried but failed to
alleviate the problem. The options were exhausted so the employee resigned.
a. Even if there is a constructive discharge an employer can still use prong 2 of the
affirmative defense unless it was caused by an adverse action by the employer
officially changing the employees status or situation such as by demotion, loss in
pay, or reassignment to a position where the complainant would face unbearable
working conditions. If the employer cant satisfy prong 2 they lose automatically.
4. Same Sex Sexual Harassment This is a claim under Title 7 an employees sexual
orientation is irrelevant for purposes of Title 7 and it neither provides nor precludes a c/a
for sexual harassment. Title 7 prohibits offensive physical conduct of a sexual nature
when that conduct is sufficiently severe or pervasive. It prohibits such conduct without
regard to whether the perpetrator and victim are of the same or different genders, and it
prohibits such conduct without regard to the sexual orientation real or perceived of
the victim. The Rene case points out that it does not matter if the man is gay is gay or not
in order to establish the claim. The discrimination must be because of sex and not sexual
orientation. Same title VII analysis as above for questions 1, 2, and 3.
a. Was there severe or perverse unwelcome physical conduct of a sexual nature?
The employee does not need to show that he or she is being treated worse than
members of the opposite sex. It is enough to show that a man is suffering
discrimination in comparison to other men.
b. Look at the totality of circumstances and the working environment. Ex is a
football player being smacked in the behind by his coach is not severely
pervasive.
c. In the Oncale case the S.C. set forth 3 examples of how plaintiff can establish
harassment was because of sex. The examples have becomes important because
the lower courts see them as the only possible ways to prove this.

i. Establish that the motive of the accused was sexual desire. This requires
looking at the accused sexual orientation. If they deny their sexual
orientation you wont win under this example unless you prove otherwise.
ii. If the discrimination is nastier to the same sex than the opposite sex you
have a cognizable claim. Ex. If a female victim is harassed in such sexspecific and derogatory terms by another woman as to make it clear that
the harasser is motivated by general hostility to the presence of women in
the workplace. It is called the queen bee syndrome. If the remarks are
laced with sexual references that do not occur in the remarks made to the
opposite sex you have a claim.
iii. A same-sex harassment plaintiff may also, of course, offer direct
comparative evidence about how the alleged harasser treated members of
both sexes in a mixed-sex workplace.
Process
- 1st question: Are there more than 15 employees? If yes, continue to step 2.
- 2nd question: Do they fall under an exception? (Indigenous tribe employers, Private clubs
and Religious employers when the job has ministerial positions) If no, continue to step 3.
- 3rd question: Are they a member of a protected class? It will be yes. Show that they were
a victim of sexual harassment.
- 4th question: What is the nature of the complaint? Quid Pro Quo or Hostile environment
- 5th question: affirmative defense for hostile environment claim.
Sexual harassment in the educational context Title IX of the Educational Amendments of 1972
prohibits both quid pro quo and hostile environment discrimination.
- School Liability Schools are not liable for harassment of a student by an employee
unless officials had actual notice of the specific misconduct and responded w/deliberate
indifference. It does not matter if the school lacks adequate harassment policies.
- With regard to harassment btwn peers, a school districts deliberate indifference to
known acts of harassment by students could give rise to liability, but only when the
district exercises substantial control over the harasser and the context in which the known
harassment occurs and the conduct is so severe, pervasive, and objectively offensive that
it can be said to deprive the victims of access to the educational opportunities or benefits
provided by the school.
- Speech & Conduct Codes to Prevent Harassment When such codes have been used
against classroom behavior by professors, courts have been similarly protective of 1st
Amendment concerns.
- Faculty-Student Dating Most campus enforcement structures address only those
faculty-student sexual relationships that meet conventional definitions of sexual
harassment.
First Question: Does the school take title 9 money?
Teacher to student:
1.) Was there actual notice to an official with authority to act?
2.) Was there failure to respond in a manner that amounts to deliberate indifference?

-It does not matter if the school lacks adequate harassment policies.
-This raises questions about who has authority to act. Courts are split on this. A school
teacher has no authority to affect anyone elses employment. Some courts have held that
even school principals lack authority to act.
Student to Student:
1.) Was there notice to an official with authority to act? The principal will be the person
with authority.
2.) Was there deliberate indifference by school district to known acts of harassment?
Deliberate indifference can give rise to liability, but only when the school district
exercises substantial control over the harasser, and the context in which the known
harassment occurs. Look at the extent of the schools conduct and its own behavior
rather than the behavior of the accused student; and
3.) The conduct is so severe, pervasive, and objectively offensive that it deprives the victims
of access to the educational opportunities or benefits provided by the school. Ex. of
severe and perverse criminal offense might be enough, but name calling not so much.
A mere drop in grades is inefficient to establish deprivation of education; there has to be
more but courts are not specific about what more means. If it is foreclosing access to
opportunities that is a lot closer to deprivation.
Employer to employer
This is a Title 7 complaint.
Employers are liable for supervisors harassment even if they lacked specific knowledge of the
abuse unless they had adequate policies that the worker unreasonably failed to use.
Does title 9 contemplate sexual harassment of the same sex? Yes.
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Pornography The government is permitted to ban material if, under contemporary community
standards, the work as a whole appeals to the prurient interest, depicts sex in a patently offensive
way, and lacks serious literary, artistic, political, or scientific value.
Pornography and the non-subordination theory
- It reinforced an imbalance of power.
- This involves the First Amendment and the protection of free speech. The Supreme
Court has said that obscene speech is unprotected. Some states have enacted their own
ordinances. The court can choose to balance the value of speech against the cost of
restricting it but does so by category, not by the content of the speech. Therefore, the
ordinance cannot restrict by content.
- You need to figure out if it violates free speech rights so you need to look at how the
ordinance operates.
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Sexual Orientation Discrimination The dominant legal view is that discrimination based on
sexual orientation is not discrimination based on sex bc it affects both men and women equally.
- Same Sex Marriage
- Sexual Orientation & Custody Disputes The emerging rule in a growing number of
jurisdictions is that the sexual orientation of a parent may not be taken into account in a

custody determination unless harm to the child is affirmatively demonstrated in a

particular case. Under this standard, real or imagined stigma from having a homosexual
parent is insufficient.
Employment Discrimination Title 7 only includes discrimination on the basis of gender.
It does not protect sexual preference such as homosexuality. They tried to make it a subcategory of sex saying discrimination against homosexuals disproportionately affects men
and therefore is discrimination on the basis of sex. Court said no.
Law or ordinance passed dealing with sexual orientation must still pass the rational basis
test which is that it has to serve a compelling state interest and the employer must
justify that discrimination in terms of some government purpose.
Employment context: She argued it violated their right to intimate association or the right
to expressive association. The court said these rights are not absolute.
Balancing test: balance constitutional rights of complainant against the right of employers
to conduct his business without disruption.
They seldom prevail over employers.
Procedure:
a. Is it an employment question? If yes
b. Is employer public or private? If public, pay attention to the call of the question.
It can say address all private causes of action.
c. If employer is private Use title 7 cases like MGM (private employer) and
Oncale. MGM said that Title 7 forbids severe or pervasive same-sex offensive
sexual touching. MGM also said that offensive sexual touching is actionable
discrimination even in a same-sex workforce. Oncale said that discrimination is a
necessary predicate to every Title 7 claim. Ds conduct must not merely bc bc of
sex, it must be discrimination bc of sex (which can occur entirely among men,
where some men are subjected to offensive sexual touching and some are not.)
d. If employer is public then use the constitutional approach. (1st and 14th
amendment so you use the balancing test) or title 7 (which does not see sexual
orientation as a protected class.)
e. Non employment context Use Romer or Lawrence standard. This is the 14th
amendment or Substantive due process test.

Essentialism AKA-Difference Theory (also called cultural feminism and the ethic of care)
- There are many differences between men and women apart from biological. This theory
sees at least some of the differences not as problems but as potentially valuable resources
that might provide a better social and legal model than male characteristics and values.
- The differences are embraced, which is different from formal equality.
- The basic case for difference theory women have distinctive traits and values, which
should be affirmatively valued in the public as well as the private realm of private
relationships and family.
- Ethics of care analysis: Women are said to have a greater sense of inter connectiveness
than men and to place a greater value on relationships than on individual rights. Women
are said to favor the ethic of care over justice or right of morality.
- Connection thesis says women are actually or potentially materially connected to other
human life (pregnancy, heterosexual penetration, menstruation, breast feeding) than men.
Therefore, women value intimacy, develop a capacity for nurturance and an ethic of care

for the other which they are connected. They even look at biological differences as a
source of strength and diversity. They feel if society does not have this they will lose
moral integrity and cohesion to society. It also includes the idea that when you see danger
you help out and dont think of the potential liability.
Men are seen to lean towards on ethic of justice.
Ex. Case is where the woman was disbarred for taking the exam for her husband.
Disbarment was required unless the most compelling mitigating circumstances clearly
predominated. Dissent looked at her characteristics. If they had used an ethics of care
analysis they could have argued that she was trying to protect her family and thinking of
having a father for her baby and preserving her marriage. Also, look at the fact that she
was in bad health because of diabetes. You can argue for other punishment because she
can be rehabilitated and even though she hurt society it was not her fault because her
husband pressured her into it.

Non-essentialism
- Rejects the concept of biology as destiny and the attribution of sex based behaviors to
biology. It re-contextualizes any given situation on multiple levels. They see
circumstances through multiple prisms that include race, ethnic background, class, age,
national origin.
Non-essentialists see many problems with essentialism:
1.) They see male/female essentialism as over inclusive. They feel that essentialist to often
assume characteristics that may be true for some women, but not all and this is causing
problems. They dont see all women as nurturers and can see men as nurturers also.
2.) Essentialists look at innate traits from their own culture without realizing. They dont
realize not everyone wants to be like their culture. For example, when they try to
liberalize women in other cultures that so not want to be liberalized.
3.) Naturalist error is also a problem. They feel that essentialist inaccurately assume that the
sex/gender system is inevitable and biologically determined. They challenge the fact that
people say womens differences are biological.
4.) Categorization is also a problem because it is easy to categorize people based on the
obvious. We anticipate what someone will do or explain what they do on the basis of
gender and non-essentialist say this is to easy.
5.) Post modernism-cuts ordinary assumptions about truth and power. It seeks to undermine
ordinary assumptions about truth and power by emphasizing the interrelationship
between the two. They feel we have our own individual truth, not a universal truth.
Biological differences (transsexual)
Congress has not ruled on title 7 and sexual identity.
Kantara v. Kantara
Michael was born a woman but changed himself into a man. He got married and then filed for
divorce and custody of their 2 children. The wife argued the marriage was void because the law
does not allow same-sex marriage. What approach does this court take? How did they define
male and female? Immutable traits determined at birth. This is an essentialist approach.
They are the ones who believe we have immutable traits that we cannot change. But what are

the immutable traits determined at birth? They dont look at chromosomes, they look at genitals.
They said Michael was a male and therefore the marriage was invalid. They said allowing the
marriage would violate state statutes and polices.
Does Littleton take an essentialist approach (video from class)? She believes she was born that
way therefore that is an essentialist approach.
There has one case in New Jersey where they acknowledged that medical advances and practice
should be acknowledged so the marriage was held valid. If they are fully functioning as the reassigned sex they can legally marry.
What happens if you are born intersex? No one has addressed this yet.
Smith v. Salem
His co-workers were telling him he was acting too femininely. He alerted his employer of his
plans to change his sex so that it can be explained to the co-workers and they tried firing him.
He brought suit and said that the employer was acting like this because he was failing to conform
to sex stereotypes like having a female mannerism and appearance. This is a sex stereotype case
and they said it was like Price Waterhouse. Does title 7 protect these individuals? He was
criticized for being insufficiently masculine. If it prohibits discrimination against women for not
being sufficiently feminine it should work the reverse way. This was held to be sex
discrimination.
Another example: He was hired until he told them he was in the process of changing his gender.
Courts have held it is sex discrimination not sex stereotyping. She was backing away from
hiring because he was becoming a female. The decision was on the basis of the sex.