Sex Discrimination and the United States Supreme Court: Developments in the Law

Sex Discrimination and the
United States Supreme Court:
Developments in the Law
Updated October 31, 2008
Jody Feder
Legislative Attorney
American Law Division

Sex Discrimination and the
United States Supreme Court:
Developments in the Law
In its sex discrimination decisions, the United States Supreme Court not only
has defined the applicability of the equal protection guarantees of the Constitution
and the nondiscriminatory policies of federal statutes, but also has rejected the use
of gender stereotypes and has continued to recognize the discriminatory effect of
gender hostility in the workplace and in schools. This report focuses on recent sex
discrimination challenges based on: the equal protection guarantees of the Fourteenth
and Fifth Amendments; the prohibition against employment discrimination contained
in Title VII of the Civil Rights Act of 1964; and the prohibition against sex
discrimination in education contained in Title IX of the Education Amendments of
1972. Although this report focuses on recent legal developments in each of these
areas, this report also provides historical context by discussing selected landmark sex
discrimination cases.
Despite the fact that the Court’s analysis of sex discrimination challenges under
the Constitution differs from its analysis of sex discrimination under the two federal
statutes discussed in this report, it is apparent that the Court is willing to refine its
standards of review under both schemes to accommodate the novel claims presented
by these cases. The Court’s decisions in cases involving Title VII and Title IX are
particularly noteworthy because they illustrate the Court’s recognition of sexual
harassment in both the workplace and the classroom. During the current 2008-2009
term, the Court is expected to rule in two different sex discrimination cases, one
involving allegations of pregnancy discrimination (AT&T v. Hulteen) and the other
involving a retaliation claim (Crawford v. Metropolitan Government of Nashville and
Davidson County).

Equal Protection Cases.............................................1
Title VII of the Civil Rights Act of 1964................................7
Disparate Treatment and Disparate Impact..........................8
Pregnancy Discrimination.......................................9
Gender Stereotypes...........................................10
Mixed Motives...............................................10
Sexual Harassment............................................11
Same-Sex Sexual Harassment...................................12
Employer Liability............................................12
Retaliation ..................................................15
Title IX of the Education Amendments of 1972.........................16

Sex Discrimination and the
United States Supreme Court:
Developments in the Law
In its sex discrimination decisions, the United States Supreme Court not only
has defined the applicability of the equal protection guarantees of the Constitution
and the nondiscriminatory policies of federal statutes, but also has rejected the use
of gender stereotypes and has continued to recognize the discriminatory effect of
gender hostility in the workplace and in schools. This report focuses on recent sex
discrimination challenges based on: the equal protection guarantees of the Fourteenth
and Fifth Amendments;1 the prohibition against employment discrimination2
contained in Title VII of the Civil Rights Act of 1964; and the prohibition against
sex discrimination in education contained in Title IX of the Education Amendments3
of 1972. Although this report focuses on recent legal developments in each of these
areas, this report also provides historical context by discussing selected landmark sex
discrimination cases.
Equal Protection Cases
Constitutional challenges that allege discrimination on the basis of sex are
premised either on the equal protection guarantees of the Fourteenth Amendment or
the equal protection component of the Fifth Amendment. To maintain an equal
protection challenge, government action must be established; that is, it must be
shown that the government, and not a private actor, has acted in a discriminatory
manner. While the Fourteenth Amendment prohibits discriminatory conduct by the
states, the Fifth Amendment forbids such action by the federal government.
The Fourteenth Amendment provides, in relevant part:
No state shall make or enforce any law which shall abridge the privileges or
immunities of the citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any4

person within its jurisdiction the equal protection of the laws.
1 U.S. Const. amend. V; U.S. Const. amend. XIV, § 1.
2 42 U.S.C. §§ 2000e et seq.
3 20 U.S.C. §§ 1681 et seq.
4 U.S. Const. amend. XIV, § 1 (emphasis added).

Although the Fourteenth Amendment requires equal protection, it does not
preclude the classification of individuals. The Court has noted that the Constitution
does not require things which are “different in fact or opinion to be treated in law as
though they were the same.”5 A classification will not offend the Constitution unless
it is characterized by invidious discrimination.6 The Court has adopted three levels
of review to establish the presence of invidious discrimination:
1. Strict scrutiny. This most active form of judicial review has been applied where
there is either a suspect classification, such as race, national origin, or alienage, or a
burdening of a fundamental interest such as privacy or marriage. A classification will
survive strict scrutiny if the government can show that it is necessary to achieving
a compelling interest.7 Generally, statutory classifications subject to strict scrutiny are

2. Intermediate scrutiny. This level of review is not as rigorous as strict scrutiny.

A classification will survive intermediate scrutiny if it is substantially related to
achieving an important government objective.8 Sex classifications are subject to
intermediate scrutiny.
3. Rational basis review. This least active form of judicial review allows a
classification to survive an equal protection challenge if the classification is9
rationally related to a legitimate government interest. This level of review is
characterized by its deference to legislative judgment. Most economic regulations are
subject to rational basis review.
The Court’s adoption of intermediate scrutiny for sex classifications did not
occur until 1976. In Craig v. Boren, the Court declared unconstitutional an Oklahoma
statute that prohibited the sale of “nonintoxicating” 3.2% beer to males under the age
of 21 and to females under the age of 18.10 Females between the ages of 18 and 21,
however, were allowed to purchase beer. Although the Court agreed with the state’s
argument that the protection of public health and safety is an important government
interest, it found that the gender classification employed by the statute was not
substantially related to achieving that goal. The statistical evidence presented by the
state to show that more 18 to 20-year-old males were arrested for drunk driving and

5 Tigner v. Texas, 310 U.S. 141, 147 (1940).
6 See Ferguson v. Skrupa, 372 U.S. 726, 732 (1963).
7 See San Antonio Independent School District v. Rodriquez, 411 U.S. 1 (1973).
8 See Craig v. Boren, 429 U.S. 190, 197 (1976). In U.S. v. Virginia, the Court required the
State of Virginia to provide an “exceedingly persuasive justification” for its policy of
maintaining an all-male military academy. 518 U.S. 515 (1996). It is unclear whether this
standard differs from the intermediate scrutiny standard of review. See infra text
accompanying notes 16-34.
9 See Lindsley v. National Carbonic Gas Co., 220 U.S. 61 (1911); Royster Guano Co. v.
Virginia, 253 U.S. 412 (1920); San Antonio School District v. Rodriguez, 411 U.S. 1
(1973); Mass Bd. of Retirement v. Murgia, 427 U.S. 307 (1976); Maher v. Roe, 432 U.S.

464 (1977).

10 429 U.S. 190 (1976).

that males between the ages of 17 and 21 were overrepresented among those injured
in traffic accidents could not establish that the statute’s gender classification was
substantially related to ensuring public health and safety.
In establishing an intermediate level of review for sex classifications, the Craig
Court identified what has been a common theme in sex discrimination cases under
the Fourteenth Amendment: stereotypes and generalizations about the sexes.11 In
Craig, the Court acknowledged its previous invalidation of statutes that premised
their classifications on misconceptions concerning the role of females. The Court’s
rejection of the use of stereotypes may be seen in many of the cases in this area.12 The
Court’s more recent decisions similarly allude to the use of stereotypes and
generaliz ations.
For example, in J.E.B. v. Alabama, the Court determined that the state could not
use its peremptory challenges to exclude male jurors in a paternity and child support
action.13 In reaching its conclusion, the Court reviewed the historical exclusion of
women from juries because of the belief that women were “too fragile and virginal
to withstand the polluted courtroom atmosphere.”14 In J.E.B., the Court questioned
the state’s generalizations of male jurors being more sympathetic to the arguments
of a father in a paternity action and female jurors being more receptive to the mother.
The Court maintained that state actors who exercise peremptory challenges in
reliance on gender stereotypes “ratify and reinforce prejudicial views of the relative
abilities of men and women.”15 The Court feared that this discriminatory use of
peremptory challenges not only would raise questions about the fairness of the entire
proceeding, but also would create the impression that the judicial system had
acquiesced in the denial of participation by one gender.
In U.S. v. Virginia, the Court conducted a more searching form of intermediate
scrutiny to find unconstitutional the exclusion of women from the Virginia Military
Institute (VMI).16 Although the Court reiterated that a classification must be

11 Id. at 198.
12 See, e.g., Califano v. Goldfarb, 430 U.S. 199 (1977) (invalidating section of the Social
Security Act that permitted survivors’ benefits for widowers only if they were receiving half
of their support from their wives); Orr v. Orr, 440 U.S. 268 (1979) (invalidating Alabama
statute that imposed alimony obligations on husbands, but not wives); Caban v. Mohammed,

441 U.S. 380 (1979) (invalidating New York statute that required the consent of the mother,

but not the father, to permit the adoption of an illegitimate child); Mississippi University for
Women v. Hogan, 458 U.S. 718 (1982) (invalidating policy of a state-supported university
that limited admission to its nursing school to women on the grounds that it reinforced
traditional stereotypes).
13 511 U.S. 127 (1994).
14 Id. at 133.
15 Id. at 141.
16 518 U.S. 515 (1996).

substantially related to an important government interest, the Court also required the
state to establish an “exceedingly persuasive justification” for its actions.17
Virginia advanced two arguments in support of VMI’s exclusion of women:
first, the single-sex education offered by VMI contributed to a diversity of
educational approaches in Virginia; second, VMI employed a unique adversative
method of training that would be destroyed if women were admitted.
After reviewing the history of Virginia’s educational system, the Court
concluded that VMI was not established or maintained to promote educational
diversity. In fact, VMI’s “historic and constant plan” was to offer a unique
educational benefit to only men,18 rather than to complement other Virginia
institutions by providing a single-sex educational option. Further, the Court
recognized Virginia’s historic reluctance to allow women to pursue higher education.
Any interest Virginia had in maintaining educational diversity seemed to be
“proffered in response to litigation.”19
In addressing Virginia’s second argument, the Court expressed concern over the
exclusion of women from VMI because of generalizations about their ability. While
acknowledging that most women would probably not choose the adversative method,
the Court maintained that some women had the will and capacity to succeed at VMI.
Following J.E.B., the Court cautioned state actors not to rely on overbroad
generalizations to perpetuate patterns of discrimination. While the Court believed
that the adversative method did promote important goals, it concluded that the
exclusion of women was not substantially related to achieving those goals.
After determining that VMI’s exclusion of women violated the Fourteenth
Amendment, the Court reviewed the state’s remedy, a separate program for women.
Virginia established the Virginia Women’s Institute for Leadership (VWIL)
following the adverse decision of the court of appeals. Unlike VMI, VWIL did not
use the adversative method because it was believed to be inappropriate for most
women,20 and VWIL lacked the faculty, facilities, and course offerings available at
VMI. Because VWIL was not a comparable single-sex institution for women, the
Court concluded that it was an inadequate remedy for the state’s equal protection
violations. VMI subsequently became coeducational.
The Court’s most recent pronouncements with respect to sex discrimination
both involved immigration issues. In Miller v. Albright, the Court considered a
challenge to § 309 of the Immigration and Nationality Act.21 The petitioner, the child
of an American father and a Filipino mother, contended that § 309 imposed
additional requirements for establishing American citizenship when a child is

17 Id.
18 Id. at 540.
19 Id. at 533.
20 Id. at 549.
21 523 U.S. 420 (1998).

fathered by an American citizen outside of the United States.22 For children born of
a citizen mother and an alien father, citizenship is established at birth. However, for
children born of a citizen father and an alien mother, citizenship is not established
until the father or the child takes affirmative steps to confirm their relationship by the
child’s eighteenth birthday. In this case, the petitioner’s father did not attempt to
establish his relationship with his daughter until after her eighteenth birthday. Thus,
the petitioner’s application for citizenship was denied.
The case produced five different opinions. While six justices agreed that the
petitioner’s complaint should be dismissed, they provided different reasons for this
conclusion. Justices Stevens and Rehnquist contended that the petitioner’s complaint
lacked merit, maintaining that § 309’s distinction between “illegitimate” children of
U.S. citizen mothers and “illegitimate” children of U.S. citizen fathers is permissible
under heightened scrutiny because it is “eminently reasonable and justified by
important Government policies.”23 Justices O’Connor and Kennedy contended,
however, that the distinction could withstand only rational basis review and should
not satisfy the kind of heightened scrutiny Justice Stevens seemed to conduct. Setting
aside the issue of § 309’s constitutionality, Justices O’Connor and Kennedy believed
that the petitioner lacked the standing necessary to even pursue her claim. Finally,
Justices Scalia and Thomas contended that the petitioner’s complaint should be
dismissed because the Court lacks the power to confer citizenship. Having
acknowledged that Congress has the exclusive authority to grant citizenship, Justices
Scalia and Thomas believed that there was no need to address the constitutionality
of § 309. Justices Ginsburg, Breyer, and Souter dissented in opinions written by
Justices Ginsburg and Breyer.
In their separate opinions, Justices Stevens, O’Connor, Ginsburg, and Breyer
each addressed the petitioner’s argument that § 309 invokes gender stereotypes. The
petitioner contended that § 309 relies on the belief that an American father “remains
aloof from day-to-day child rearing duties,” and will not be as close to his child.24
Justice Stevens, however, maintained that the statute has a non-stereotypical purpose
of ensuring the existence of a blood relationship between father and child. Justice
Stevens recognized that the distinction is reasonable because mothers have the
opportunity to establish parentage at birth, while fathers do not always have that
opportunity. Further, he contended that the distinction encourages the development
of a healthy relationship between the citizen father and the foreign-born child, and
fosters ties between the child and the United States. Thus, § 309’s additional
requirements are appropriate for fathers, but unnecessary for mothers.
In their dissenting opinions, Justices Ginsburg and Breyer contended that § 309
relies on generalizations about men and women and the ties they maintain with their
children. Justice Ginsburg argued that § 309’s goals of assuring ties between the
citizen father and the foreign-born child, and between the child and the United States
can be achieved without reference to gender, while Justice Breyer argued similarly,

22 8 U.S.C. § 1409.
23 Miller, 523 U.S. at 441.
24 Id. at 443.

positing a distinction between caretaker and non-caretaker parents, rather than mother
and father.
In Nguyen v. INS, the Court considered a second challenge to § 309.25 The facts
in Nguyen closely resembled those in Miller. Nguyen, the child of a citizen father and
a non-citizen mother, born out of wedlock, challenged § 309 on the grounds that its
differing requirements for acquiring citizenship, based on the sex of the citizen
parent, violated the Fifth Amendment’s guarantee of equal protection.
A majority of the Court concluded that § 309’s differing requirements were
justified by two important government objectives. First, the Court found that the
government has an important interest in assuring that a biological parent-child
relationship exists.26 While a mother’s relationship to a child may be established at
birth or from hospital records, a father may not be present at the birth and may not
be included on such records. In this way, the Court maintained, fathers and mothers
are not similarly situated with regard to establishing biological parenthood.27 Thus,
a “different set of rules ... is neither surprising nor troublesome from a constitutional
perspect i v e.”28
Second, the Court found that the government has an important government
interest in ensuring that the child and the citizen parent have some demonstrated
opportunity or potential to develop a relationship “that consists of the real, everyday
ties that provide a connection between child and citizen parent and, in turn, the
United States.”29 The opportunity for a meaningful relationship is presented to the
mother at birth. However, the father is not assured of a similar opportunity. The
Court concluded that § 309 ensures that an opportunity for a meaningful relationship
is presented to the father before citizenship is conferred upon his child.
As a result, the Court found that § 309’s differing requirements were
substantially related to the important government interests. The Court noted that by
linking citizenship to the child’s youth, Congress promoted an opportunity for a
parent-child relationship during the formative years of the child’s life.30 Alluding to
its decision in VMI, the Court maintained that the fit between the § 309 requirements
and the important government interests was “exceedingly persuasive.”31
Like the petitioner in Miller, Nguyen argued that § 309 embodied a gender-
based stereotype. However, the Court found that § 309 addresses an “undeniable

25 533 U.S. 53 (2001).
26 Id. at 62.
27 Id. at 63.
28 Id.
29 Id. at 65.
30 Id. at 68-69.
31 Id. at 70.

difference in the circumstance of the parents at the time a child is born.”32 This
difference is not the result of a stereotype or “a frame of mind resulting from
irrational or uncritical analysis.”33 Rather, § 309 recognizes simply that at the
moment of birth, the mother’s knowledge of the child is established in a way not
guaranteed to the unwed father.
While the Court’s recent decisions involving sex and equal protection illustrate
that it is concerned with the stereotyping of men and women, it is unclear whether
it will continue to subject sex classifications and any related stereotypes to a
traditional form of intermediate scrutiny. The Court’s requirement of an “exceedingly
persuasive justification” in VMI suggests that it may be interested in conducting a
more exacting form of judicial review for sex classifications. In his Miller dissent,
Justice Breyer emphasized the need to apply the standard established in VMI.
However, in Nguyen, both the majority and the dissenting justices, in discussing an
“exceeding persuasive justification,” simply reiterated the traditional test that is used
when applying intermediate scrutiny.34 Thus, it is not clear whether sex
classifications in future cases will be subject to a traditional form of intermediate
scrutiny or some form of heightened scrutiny.
Title VII of the Civil Rights Act of 1964
Title VII prohibits an employer from discriminating against any individual with
respect to hiring or the terms and conditions of employment because of such
individual’s race, color, religion, sex, or national origin.35 Title VII applies to a broad
range of employment practices, including discrimination because of sex in hiring,
placement, promotion, demotion, transfer, termination, and discipline. Because the
statute prohibits sex discrimination with respect to all terms and conditions of
employment, discrimination regarding salary, leave, and other benefits may also
violate the act. In addition, the statute prohibits discrimination in referrals by

32 Id. at 68.
33 Id.
34 See, e.g., id. at 70 (“We have explained that an ‘exceedingly persuasive justification’ is
established ‘by showing at least that the classification serves ‘important governmental
objectives and that the discriminatory means employed’ are ‘substantially related to the
achievement of those objectives.’‘”); id. at 74 (“Because the Immigration and Naturalization
Service (INS) has not shown an exceedingly persuasive justification for the sex based
classification embodied in 8 U.S.C. § 1409(a)(4) — i.e., because it has failed to establish
at least that the classification substantially relates to the achievement of important
governmental objectives — I would reverse the judgment of the Court of Appeals.”).
35 Title VII provides, in relevant part, that it is an unlawful employment practice for an
employer “to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or national
origin; or to limit, segregate, or classify his employees or applicants for employment in any
way which would deprive or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2.

employment agencies, actions by unions, and retaliation against employees for filing
or participating in a Title VII claim or for opposing an employer’s discriminatory
practices. Title VII contains several exceptions to the prohibition against sex
discrimination, the most important of which permits otherwise discriminatory
conduct that satisfies a bona fide occupational qualification (BFOQ). Under §

703(e)(1) of Title VII, an employer may discriminate on the basis of “religion, sex,

or national origin in those certain instances where religion, sex, or national origin is
a bona fide occupational qualification reasonably necessary to the normal operation
of that particular business or enterprise.”36
Although a wide variety of Title VII sex discrimination claims have been
litigated in the courts, the major Supreme Court sex discrimination cases under Title
VII have primarily focused on the following issues: pregnancy discrimination, gender
stereotypes, mixed motives, sexual harassment, employer liability, and retaliation.
These issues, as well as a discussion of the two different types of discrimination
recognized under Title VII, are described below. This report, however, does not
address pay discrimination claims brought under Title VII or the Equal Pay Act. For
more information on pay discrimination issues, see CRS Report RL31867, Pay
Equity Legislation in the 110th Congress, by Jody Feder and Linda Levine.
Disparate Treatment and Disparate Impact
The Court has developed two principal models for proving claims of
employment discrimination. The “disparate treatment” model focuses on an
employer’s intent to discriminate. Alternately, the “disparate impact” model is
concerned with the adverse effects of an employer’s practices on a protected class.
Under disparate impact analysis, a facially neutral employment practice may violate
Title VII even if there is no evidence of an employer’s intent to discriminate. To
succeed, a plaintiff must demonstrate that the application of a specific employment
practice has had a different effect on a particular group of employees.37
Both disparate treatment and disparate impact analysis involve a system of
evidentiary burden shifting. Both models require the plaintiff to establish a prima
facie case of discrimination.38 If such a case can be established, the burden shifts to
the employer to articulate a defense for its actions. For example, the employer may
produce evidence showing that its actions are justified because of the needs of its
business. Ultimately, however, the plaintiff retains the burden of persuasion; that is,
the plaintiff must establish that the employer’s assertion of a legitimate,
nondiscriminatory reason for its actions was a pretext to obscure unlawful

36 42 U.S.C. § 2000e-2(e)(1).
37 See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
38 A prima facie case is a case that contains elements that are sufficient to establish a claim
unless disproved.
39 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973).

Pregnancy Discrimination
In recent years, the Court has addressed Title VII and sex discrimination most
frequently in the context of sexual harassment. In UAW v. Johnson Controls,
however, the Court considered whether an employer may discriminate against fertile
women because of its interest in protecting potential fetuses.40
Johnson Controls, a battery manufacturer, implemented a policy that excluded
“women who are pregnant or who are capable of bearing children” from jobs that
exposed them to lead,41 which was the primary ingredient in the manufacturing
process at Johnson Controls. Although fertile women were excluded from
employment, fertile men were still permitted to work.
The Court found that Johnson Controls’ policy was facially discriminatory
because it did not apply to the reproductive capacity of the company’s male
employees in the same way it applied to that of female employees. The Court’s
conclusion was bolstered by the Pregnancy Discrimination Act of 1978 (PDA), which
provides that discrimination “on the basis of sex” for purposes of violating Title VII
includes discrimination “because of or on the basis of pregnancy, childbirth, or
related medical conditions.”42
Although Johnson Controls asserted that sex was a BFOQ for protecting fetal
safety, the Court maintained that discrimination on the basis of sex for safety
concerns is allowed only in narrow circumstances.43 The Court stressed that to
qualify as a BFOQ, an employment practice must relate to the essence or central
mission of the employer’s business.44 Because reproductive capacity does not
interfere with a woman’s ability to perform work related to battery manufacturing,
the Court rejected Johnson Controls’ BFOQ defense.
Recently, the Supreme Court granted review in AT&T v. Hulteen,45 a pregnancy
discrimination case that involves questions about whether women who took
maternity leave before the PDA went into effect are entitled to protection. The
plaintiffs claim that, for purposes of calculating their current retirement and other
benefits, they are entitled to retroactive credit for the time they spent on maternity
leave, while the employer argues that they are not required to account for leave that

40 499 U.S. 187 (1991).
41 Id. at 192.
42 42 U.S.C. § 2000e(k).
43 Johnson Controls, 499 U.S. at 202.
44 See, e.g., Dothard v. Rawlinson, 433 U.S. 321 (1977) (finding sex to be a BFOQ because
the employment of a female guard in a maximum-security male penitentiary could create a
risk of violence and jeopardize the safety of inmates); Western Airlines, Inc. v. Criswell,
472 U.S. 400 (1985) (finding age to be a BFOQ in an ADEA case because the employment
of an older flight engineer could cause a safety emergency and jeopardize the safety of
45 128 S. Ct. 2957 (2008).

took place before the act went into effect. The Court is expected to issue a decision
during its 2008-2009 term.
Gender Stereotypes
The Supreme Court has also ruled that employment decisions made on the basis
of gender stereotypes may constitute unlawful sex discrimination. In Price
Waterhouse v. Hopkins,46 the plaintiff, a woman who was denied partnership in the
accounting firm where she worked, was apparently rejected because of concerns
about her interpersonal skills. Some of these concerns, however, appeared to reflect
gender stereotypes. For example, one male partner referred to the plaintiff as
“macho,” and another informed her that she could improve her chances of making
partner if she learned to “walk more femininely, talk more femininely, dress more
femininely, wear make-up, have her hair styled, and wear jewelry.”47 Reasoning that
sex stereotyping is a form of discrimination on the basis of sex, the Court found that
employment decisions that result from sex stereotypes may violate Title VII.48
Although the decision was in part a victory for employees who have been
victims of employment actions based on gender stereotypes, another aspect of the
Hopkins ruling favored employers by requiring a lower standard of proof when
employers defend their actions in mixed motive cases. In mixed-motive cases such
as Hopkins, there are both legitimate and illegitimate reasons for an employer’s
adverse employment action. In such cases, the Court held that plaintiffs must present
direct, rather than circumstantial, evidence that discrimination was a “motivating
factor” in the adverse action and that employers could rebut that evidence by proving
that they would have made the same decision even if discrimination had not been a
factor. Both of these holdings made it easier for employers to defend against
discrimination lawsuits by their employees.
Mixed Motives
As noted above, a mixed motive employment discrimination case is a case in
which the employer has both legitimate and illegitimate reasons for taking the
challenged employment action. Several years after the Supreme Court ruled in the
Hopkins case, Congress passed Title VII amendments that partially overturned the
decision. In the amendments, Congress added a provision that defined unlawful
employment actions to include situations in which discrimination is “a motivating
factor for any employment practice, even though other factors also motivated the
practice.”49 If an employer violates this provision but establishes that it would have
taken the same employment action absent the illegitimate motive, the amendments
specify that courts may grant the plaintiff declaratory and injunctive relief, as well as

46 490 U.S. 228 (U.S. 1989).
47 Id. at 234-35.
48 Id. at 250-51.
49 42 U.S.C. § 2000e-2(m).

attorneys’ fees, although plaintiffs are not entitled to damages, hiring, reinstatement,
or promotion.50
The Title VII amendments, however, did not address certain questions regarding
the evidentiary burden of proof in mixed motive cases. In 2003, the Supreme Court
addressed the issue, ruling in Desert Palace v. Costa that direct evidence of
discrimination is not required in mixed-motive cases.51 By allowing plaintiffs to
present circumstantial evidence of discrimination, the decision made it easier for
employees to win in mixed motive cases.
Sexual Harassment
Courts have recognized two forms of sexual harassment under Title VII. The
first, quid pro quo sexual harassment, occurs when submission to unwelcome sexual
advances or other conduct of a sexual nature is made a condition of an individual’s
employment or is otherwise used as the basis for employment decisions. The second
form of harassment involves conduct that has the purpose or effect of interfering
unreasonably with an individual’s work performance or of creating a hostile or
offensive working environment. This second form of sexual harassment, which the
Court first recognized as a cognizable claim in Meritor Savings Bank, FSB v.
Vinson,52 is referred to as “hostile environment” sexual harassment.
In Harris v. Forklift Systems, Inc., the Court sought to define when a workplace
was sufficiently “hostile” for purposes of maintaining a claim under Title VII.53 The
petitioner, a female manager at an equipment rental company, alleged that the
company’s president created a hostile environment by repeatedly insulting her
because of her gender and making her the target of unwanted sexual innuendos.
The Court determined that an employee does not need to suffer injury to assert
a hostile environment claim under Title VII: “So long as the environment would
reasonably be perceived, and is perceived, as hostile or abusive ... there is no need for
it also to be psychologically injurious.”54 The Court identified four factors that should
be considered to determine whether a hostile environment exists: (1) the frequency
of the discriminatory conduct; (2) the severity of such conduct; (3) whether the
conduct is physically threatening or humiliating; and (4) whether the conduct
interferes unreasonably with an employee’s work performance.55 Although the Court
recognized these factors as those to be considered in identifying a hostile
environment, it emphasized that no single factor is determinative.

50 Id. at § 2000e-5(g)(2).
51 Desert Palace, Inc. v. Costa, 539 U.S. 90 (U.S. 2003).
52 477 U.S. 57 (U.S. 1986).
53 510 U.S. 17 (1993).
54 Id. at 22.
55 Id. at 23.

Same-Sex Sexual Harassment
In 1998, the Court interpreted Title VII’s prohibition against discrimination
“because of ... sex” to include harassment involving a plaintiff and defendant of the
same sex.56 The petitioner in Oncale v. Sundowner Offshore Services, Inc. alleged
that he was physically assaulted in a sexual manner and was threatened with rape by
three male co-workers.57 Two of the co-workers had supervisory authority over the
Although the Court acknowledged that Congress was “assuredly” not concerned
with male-on-male sexual harassment when it enacted Title VII, it found no
justification in the statutory language or the Court’s precedents for excluding same-
sex harassment claims from the coverage of Title VII.58 At the same time, the Court
stated that inquiries in same-sex harassment cases require careful consideration of the
social context in which particular behavior occurs and is experienced by the claimant.
For example, the Court distinguished a football player being patted on the butt in a
locker room from similar behavior occurring in an office. The Court contended that
this kind of consideration would prevent Title VII from becoming a “general civility
code” for the American workplace.59
Employer Liability
The Court continued its examination of hostile environment sexual harassment
in two cases involving vicarious liability. In Faragher v. City of Boca Raton, the
Court found that an employer is vicariously liable for actionable discrimination
caused by a supervisor, subject to an affirmative defense that must consider the
reasonableness of the employer’s conduct, as well as the conduct of the employee.60
The petitioner, a former lifeguard for the Marine Safety Section of Boca Raton’s
Parks and Recreation Department, alleged that she was subject to an environment
characterized by lewd remarks, gender-biased speech, and uninvited and offensive
touching by her former supervisors.
Recognizing that the authority conferred as a result of a supervisor’s relationship
with the employer allows the supervisor greater ability to act inappropriately, the
Court concluded that an employer could be vicariously liable when a supervisor
misuses that authority. As the Court noted, “When a person with supervisory
authority discriminates in the terms and conditions of subordinates’ employment, his
actions necessarily draw upon his superior position over the people who report to him

56 42 U.S.C. § 2000e-2.
57 523 U.S. 75, 77 (1998).
58 Id. at 79.
59 Id. at 80.
60 524 U.S. 775 (1998).

... whereas an employee generally cannot check a supervisor’s abusive conduct the
same way that she might deal with abuse from a co-worker.”61
While the Court recognized that there could be vicarious liability for the misuse
of supervisory authority, it established the availability of an affirmative defense for
employers. Under this affirmative defense, an employer could assert that it exercised
reasonable care to prevent and correct any sexually harassing behavior or establish
that the employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer. The Court believed that the
employer’s ability to assert such an affirmative defense was consistent with Title
VII’s objective of encouraging employers to prevent sexual harassment from
After applying its new rules to the case at bar, the Court concluded that the city
did not exercise reasonable care to prevent the supervisors’ harassing conduct.
Although the city maintained a policy against sexual harassment, it failed to
disseminate that policy to beach employees. Further, the city made no attempt to
monitor the conduct of the supervisors or assure employees that they could bypass
harassing supervisors to register complaints.
The Court revisited the issue of vicarious liability for employers in Burlington
Industries v. Ellerth, a companion case to Faragher.63 In Ellerth, the Court
maintained that an employer may be found vicariously liable for harassment by a
supervisor even if the employee suffers no adverse, tangible job consequences.
The petitioner in Ellerth alleged that she was subjected to repeated offensive
remarks and gestures by a mid-level manager who supervised the petitioner’s
immediate supervisor. On three occasions, the manager made remarks that could be
construed as threats to deny the petitioner job benefits. For example, the manager
encouraged the petitioner to “loosen up” because he “could make [her] life very hard
or very easy at Burlington.”64 Although Burlington maintained a policy against sexual
harassment, the petitioner did not inform anyone in authority about the manager’s
misconduct. Instead, the petitioner resigned from her position, providing reasons
unrelated to the harassment. Three weeks after her resignation, the petitioner
informed Burlington of her true reasons for leaving.
While the manager’s threats suggested that the claim should be analyzed as a
quid pro quo claim, the Court categorized it as a hostile environment claim because
it involved only unfulfilled threats. After reviewing the petitioner’s claim in terms
similar to Faragher, the Court determined that the manager at Burlington also
misused his supervisory authority. The Court concluded that Burlington should be
given the opportunity to assert and prove an affirmative defense to liability.

61 Id. at 803.
62 Id. at 805.
63 524 U.S. 742 (1998).
64 Id. at 748.

The Court has also addressed the availability of punitive damages for violations
of Title VII. In Kolstad v. American Dental Association,65 the Court continued to
build on its holdings in Faragher and Ellerth by concluding that although an
employer may be vicariously liable for the misconduct of its supervisory employees,
it will not be subject to punitive damages if it has made good faith efforts to comply
with Title VII. The Court noted that subjecting employers that adopt
antidiscrimination policies to punitive damages would undermine Title VII’s
objective of encouraging employers to prevent discrimination in the workplace.
In 2004, the Supreme Court considered the defenses, if any, that may be
available to an employer against an employee’s claim that she was forced to resign
because of “intolerable” sexual harassment at the hands of a supervisor. As noted
above, an employer may generally assert an affirmative defense to supervisory
harassment under the Court’s 1998 rulings in Faragher and Ellerth. The defense is
not available, however, if the harassment includes a “tangible employment
action,”such as discharge or demotion. In Pennsylvania State Police v. Suders,66 the
plaintiff claimed the tangible adverse action was supervisory harassment so severe
that it drove the employee to quit, a constructive discharge in effect. The Court, in
an opinion by Justice Ginsburg, only Justice Thomas dissenting, accepted the theory
of a constructive discharge as a tangible employment action, but it also set conditions
under which the employer could assert an affirmative defense and avoid strict
liability under Title VII of the 1964 Civil Rights Act.67 The issue was key to
determining the scope of employers’ vicarious liability in “supervisory” sexual
harassment cases alleging a hostile work environment.
In Faragher and Ellerth , the Court had sought to clarify the nature and scope
of an employer’s legal liability for the discriminatory and harassing conduct of its
supervisors in Title VII cases. It held employers strictly liable for a sexually hostile
work environment created by a supervisor, when the challenged discrimination or
harassment results in a “tangible employment action.”68 But in the absence of such
a “company act” the employer may raise an affirmative defense based on its having
in place a reasonable remedial process and on the employee’s failure to take
advantage of it. Thus, the Ellerth/Faragher defense has two components: “(a) that
the employer exercised reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee unreasonably failed to take
advantage of any preventative or corrective opportunities provided by the employer
or to avoid harm otherwise.”69
The Supreme Court defined a “tangible employment action” categorically to
mean any “significant change in employment status,” that may — but not always —
result in economic harm. Specifically, the term includes “hiring, firing, failing to

65 527 U.S. 526 (1999).
66 542 U.S. 129 (2004).
67 42 U.S.C. §§ 2000e et seq.
68 524 U.S. 742, 765 (1998); 524 U.S. 775, 807 (1998).
69 Pa. State Police v. Suders, 542 U.S. 129, 137-38 (2004).

promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits”70 However, a “constructive discharge,”
where the employee quits, claiming that conditions are so intolerable that he or she
was effectively “fired,” presented an unresolved issue. Could an employer, faced with
a claim of constructive discharge, still assert the Ellerth/Faragher defense?
Ultimately, the Court held that Title VII encompasses employer liability for
constructive discharge claims attributable to a supervisor, but ruled that an “employer
does not have recourse to the Ellerth/Faragher affirmative defense when a
supervisor’s official act precipitates the constructive discharge; absent such a
‘tangible employment action,’ however, the defense is available to the employer
whose supervisors are charged with harassment.”71 In recognizing hostile
environment constructive discharge claims, Suders enhanced Title VII protection for
employees who quit their jobs over intense sexual harassment by a supervisor. But
the decision also makes it easier for an employer to defend against such claims by
showing that it has reasonable procedures for reporting and correcting harassment of
which the employee failed to avail herself. Only “if the plaintiff quits in reasonable
response to an employer-sanctioned adverse action officially changing her
employment status or situation, for example, a humiliating demotion, extreme cut in
pay, or transfer to a position in which she would face unbearable working condition,”
is the employer made strictly liable for monetary damages or other Title VII relief.72
Moreover, even where there has been a tangible employment action, coupled
with a constructive discharge or resignation, the employer may have defenses
available. First, the employer may argue that the harassing conduct did not occur as
alleged, or was not sufficiently severe, pervasive, or unwelcome to meet standards
for a Title VII violation. Second, if the tangible employment action is shown to be
unrelated to the alleged harassment, or is taken for legitimate non-discriminatory
reasons — particularly, if by persons other than the alleged harasser — the employer
might escape liability. Finally, the employer might be able to demonstrate that,
whatever form the underlying supervisory harassment may take, it did not meet the
standard for constructive discharge: “so intolerable that a reasonable person would
have felt compelled to resign.” But Suders also makes it more difficult to obtain
summary judgment and avoid jury trials in sexual harassment cases involving
constructive discharge claims. Under the decision, if there is any real dispute about
whether the employee suffered a tangible employment action, the employer may not
rely on the affirmative defense to obtain summary judgment.
In 2006, the Supreme Court issued its decision in Burlington Northern and
Santa Fe Railway Co. v. White,73 a case that involved questions about the scope of
the retaliation provision under Title VII. In a 9-0 decision with one justice

70 Ellerth, 524 U.S. at 761.
71 Suders, 542 U.S. at 140-141.
72 Id. at 209.
73 548 U.S. 53 (2006).

concurring, the Court held that the statute’s retaliation provision encompasses any
employer action that “would have been materially adverse to a reasonable employee
or job applicant.”74 This standard, which is much broader than a standard that would
have confined the retaliation provision to actions that affect only the terms and
conditions of employment, generally makes it easier to sue employers if they retaliate
against workers who complain about discrimination. Under the Court’s
interpretation, employees must establish only that the employer’s actions might
dissuade a worker from making a charge of discrimination. This means that an
employee may successfully sue an employer for retaliation even if the employer’s
action does not actually result in an adverse employment action, such as being fired
or losing wages.
Recently, the Supreme Court agreed to review Crawford v. Metropolitan
Government of Nashville and Davidson County,75 a case in which the plaintiff alleges
that her participation in a sexual harassment investigation against her supervisor
resulted in her termination. Although the plaintiff cooperated in the investigation and
provided testimony regarding explicit comments and actions made by her boss, the
fact that she had not filed the sexual harassment complaint or other charges with the
(Equal Employment Opportunity Commission) EEOC led the lower court to rule that
she was not covered under Title VII’s retaliation provision. The Supreme Court is
expected to issue a decision in the case during its 2008-2009 term.
Title IX of the Education Amendments of 1972
Title IX of the Education Amendments of 1972 prohibits discrimination on the
basis of sex in educational programs and activities that receive federal funding. Until
recently, Title IX claims have been most common among women and girls
challenging inequities in sports programs,76 but Title IX also provides a basis for
challenging sexual harassment in classrooms and on campuses.
Title IX provides, in relevant part, that “[n]o person in the United States shall,
on the basis of sex, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or activity receiving
Federal financial assistance....”77 The Court’s recent decisions involving Title IX
address various issues, including the availability of damages, the parties that are
subject to liability, and the scope of retaliation claims.
In an early Title IX case, the Supreme Court held that the statute provides
student victims with an avenue of judicial relief. In Cannon v. University of

74 Id. at 2408.
75 128 S. Ct. 1118 (2008).
76 See CRS Report RL31709, Title IX, Sex Discrimination, and Intercollegiate Athletics: A
Legal Overview, by Jody Feder.
77 20 U.S.C. § 1681(a).

Chicago,78 the Court ruled that an implied right of action exists under Title IX for
student victims of sex discrimination who need not exhaust their administrative
remedies before filing suit. However, the availability of monetary damages under
Title IX remained uncertain until Franklin v. Gwinnett County Public Schools.79 In
Franklin, a female high school student brought an action for damages under Title IX
against her school district alleging that she had been subjected to sexual harassment
and abuse by a teacher. Although the harassment became known and an investigation
was conducted, teachers and administrators did not act and the petitioner was
subsequently discouraged from pressing charges. The Court, which found that sexual
harassment by a teacher constituted discrimination on the basis of sex, held that
damages were available to the sexual harassment victim if she could prove that the
school district had intentionally violated Title IX.
After Franklin, it was clear that sexual harassment by a teacher constituted sex
discrimination, but the extent to which school districts could be held liable for
misconduct by its employees was less clear. The appropriate standard for measuring
a school district’s liability for sexual abuse of a student by a teacher remained
unsettled until the Supreme Court ruling in Gebser v. Lago Vista Independent School
District.80 In Gebser, the Court determined that a school district will not be held
liable under Title IX for a teacher’s sexual harassment of a student if the school
district did not have actual notice of the harassment and did not exhibit deliberate
indifference to the misconduct.81 The petitioner, a female high school student, was
involved in a sexual relationship with one of her teachers. Unlike the situation in
Franklin, the school district did not have actual notice of any sexual relationship
between the petitioner and the teacher until they were discovered by a police officer.
The principal of the petitioner’s school did learn of inappropriate comments made by
the teacher prior to the discovery, but he cautioned the teacher about such comments.
After the sexual relationship became known, the school district quickly terminated
the teacher. Despite the school district’s actions, the petitioner argued that the school
district should be found liable on the basis of vicarious liability or constructive
not i ce. 82
In requiring the school district to have actual notice of the harassment, the Court
discussed the absence of an express cause of action under Title IX. Unlike Title VII,
Title IX does not address damages or the particular situations in which damages are
available.83 While Title IX does address a denial of funds for noncompliance with its

78 441 U.S. 677 (1979).
79 503 U.S. 60 (1992).
80 524 U.S. 274 (1998).
81 Id.
82 Under a theory of constructive notice, liability would be established on the grounds that
the school district knew or should have known about the harassment, but failed to discover
and eliminate it.
83 Gebser, 24 U.S. at 283-84.

provisions, it does not provide for a private right of action. Instead, a private right of
action has been judicially implied.84
Because Title IX does not contain any reference to the recovery of damages in
private actions, the Court reasoned that its recognition of theories of vicarious
liability and constructive notice would allow an unlimited recovery where Congress
has not spoken.85 Stated differently, the Court was reluctant to expand the availability
of damages for such theories when Title IX failed to provide initially for a private
cause of action. In this way, the Court sought to refine its holding in Franklin and
limit those situations in which a remedy for damages would lie.
The Court believed that Title IX’s remedial scheme would be undermined if it
did not require that a school district have actual notice of a teacher’s sexual
harassment. Under Title IX, financial assistance will not be denied until the
“appropriate person or persons” have been advised of the discrimination and have
failed to end the discrimination voluntarily.86 An “appropriate person” is an official
of the entity receiving funds who has the authority to take corrective action.87
Because the school district in Gebser did not have actual notice of the sexual
relationship, it could not have taken any steps to end the alleged discrimination.
In addition, the Court stated that damages will not be available unless it is
shown that a response exhibits a deliberate indifference to the discrimination; that is,
there must be “an official decision by the recipient not to remedy the violation.”88 In
Gebser, the school district responded to the situation by first cautioning the teacher,
and then terminating him once the relationship was discovered. Thus, the Court
concluded that the school district did not act with deliberate indifference.
Davis v. Monroe County Board of Education, decided in 1999, addressed the
standard of liability that should be imposed on school districts to remedy student-on-
student harassment.89 The plaintiff in Davis alleged that her fifth-grade daughter had
been harassed by another student over a prolonged period — a fact reported to
teachers on several occasions — but that school officials had failed to take corrective
action. Justice O’Connor, writing for a sharply divided court, determined that the
plaintiff had stated a Title IX claim. Because the statute restricts the actions of federal
grant recipients, however, and not the conduct of third parties, the Court again
refused to impose vicarious liability on the school district. Instead, “a recipient of

84 See Cannon v. University of Chicago, 441 U.S. 677 (1979). A private right of action
allows an individual to sue in court for violations under a statute rather than wait for a
federal agency to pursue a complaint administratively.
85 Gebser, 524 U.S. at 286.
86 20 U.S.C. § 1682.
87 Gebser, 524 U.S. at 290.
88 Id.
89 526 U.S. 629 (U.S. 1999).

federal funds may be liable in damages under Title IX only for its own misconduct.”90
School authorities’ own “deliberate indifference” to student-on-student harassment
could violate Title IX in certain cases. Thus, the Court held, where officials have
“actual knowledge” of the harassment, where the “harasser is under the school’s
disciplinary authority,” and where the harassment is so severe “that it can be said to
deprive the victims of access to the educational opportunities or benefits provided by
the school,” the district may be held liable for damages under Title IX.91
While the development of sex discrimination law under Title IX owes much to
Title VII, the Davis Court’s recognition of student-on-student harassment highlights
dramatic differences between the two statutes. Indeed, in qualifying the Davis
standard, the Court suggested that student harassment may be far more difficult to
prove than sexual harassment in employment. Beyond requiring “actual knowledge,”
Justice O’Connor cautioned that “schools are unlike adult workplaces” and
disciplinary decisions of school administrators are not to be “second guess[ed]” by
lower courts unless “clearly unreasonable” under the circumstances. Additionally, the
majority emphasized that “damages are not available for simple acts of teasing and
name-calling among school children, even where these comments target differences
in gender.”92 In effect, Davis left to school administrators the task of drawing the line
between innocent teasing and actionable sexual harassment — a difficult and legally
perilous task at best.
In a separate decision the same year, the Court found that a private organization
is not subject to Title IX simply because it receives payments from entities that
receive federal financial assistance. In National Collegiate Athletic Association v.
Smith,93 the respondent, a female graduate student, alleged that the National
Collegiate Athletic Association (NCAA) discriminated against her on the basis of sex
by denying her permission to play intercollegiate volleyball at two federally assisted
institutions. Under NCAA rules, a graduate student is permitted to participate in
intercollegiate athletics only at the institution that awarded her undergraduate degree.
The respondent, who was enrolled at two different universities for her graduate
degree, argued that the NCAA granted more waivers from eligibility restrictions to
male graduate students than to female graduate students.
The Court concluded that the NCAA was not a recipient of Title IX funds
because the NCAA did not receive federal assistance either directly or through an
intermediary. Instead, it received dues payments from member institutions. The Court
stated, “[a]t most, the Association’s receipt of dues demonstrates that it indirectly
benefits from the federal assistance afforded its members. This showing, without
more, is insufficient to trigger Title IX coverage.”94 Because the Court found that the

90 Id. at 640.
91 Id. at 650.
92 Id. at 648-52.
93 525 U.S. 459 (1999).
94 Id. at 468.

NCAA was not amenable to suit, it did not address the respondent’s substantive
allegations of discrimination.
More recently, the Court handed down its decision in Jackson v. Birmingham
Board of Education.95 In this case, which involved a girl’s basketball coach who
claimed that he was removed from his coaching position in retaliation for his
complaints about unequal treatment of the girl’s team, the Court held that Title IX
not only encompasses retaliation claims, but also is available to individuals who
complain about sex discrimination, even if such individuals themselves are not the
direct victims of sex discrimination.96 Reasoning that “Title IX’s enforcement scheme
would unravel” “if retaliation were not prohibited,”97 the Court concluded that “when
a funding recipient retaliates against a person because he complains of sex
discrimination, this constitutes intentional discrimination on the basis of sex in
violation of Title IX.”98

95 544 U.S. 167 (2005).
96 Id. at 171.
97 Id. at 180.
98 Id. at 174 (internal quotations omitted).