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Models the structure and content for the five following jurisdiction-specific chapters, pointing out that the separation of church and state was established as an explicit requirement and explains the context that gave rise to the free exercise and anti-establishment clauses. Explores the policy background, outlines the contemporary relevant legal framework, as governed by statutory and constitutional provisions, noting the extent to which the country is a signatory state to relevant international law. Considers the genesis of the state neutrality principle in the anti-establishment clause as confirmed by decisions of the US Supreme Court. It delves into the religion-related case law to identify the principle’s bearing on the rights to freedom of religion, of conscience, expression and association, examines how it relates to equality law. It focuses on the various tests successively applied by the USSC in its efforts to police the church–state boundary. It identifies and discuses some different academic views, including the Habermas argument that “the principle of separation of Church and State demands that the institution of the State operates with strict impartiality”.
Chapter 1 demonstrates that employment discrimination law is not neutral or objective, favoring employers’ interests over those of employees as victims. It introduces fifteen US federal cases, rewritten using feminist perspectives and techniques, as well as only information available at the time of the original opinions. Commentaries accompany each opinion, explaining differences from the original and differences the rewritten opinion would have made to employment discrimination law. The chapter summarizes these cases and argues that the opinions, as rewritten: better narrate victims’ stories; improve the law around proving discrimination; diminish appearance regulation and encourage diversity in workplaces; eliminate the “double bind”; recognize LGBTQ+ rights in the workplace; prevent sex- and gender-based harassment; offer insight into intersectional approaches; and recognize the implicit bias and stereotypes that cause discrimination. This chapter also briefly examines the issues in employment discrimination law that this book does not discuss in depth, such as age and disability discrimination, predispute arbitration clauses, and discrimination by religious employers.
Chapter 7’s four rewritten cases deal with proof of systemic disparate treatment and impact discrimination. The rewritten Sears opinion rejects expert testimony that blamed women’s lack of interest in commission-based sales for the dearth of women employed in those jobs, characterizes this testimony as sex stereotyping, and holds that courts may not rebut strong statistical showing by plaintiffs in pattern or practice cases with sex stereotypes. Rewritten AFSCME exposes implicit bias in the market forces causing a pay gap between men and women, and narrates the real-life stories of the women whose pay was substantially lower in jobs of equal value to those of male colleagues. Rewritten Ricci holds that white plaintiffs who challenge an employer’s failure to use a test with a disparate impact on black and Latino employees must show that the employer lacked an actual and reasonable belief that it would be subject to liability for disparate impact if it used the test. Rewritten Wal-Mart certifies a large class of female employees, and holds that a showing of intent is not necessary when the statistics demonstrate discriminatory outcomes and the employer fails to rectify the problem.
Chapter 6 concludes that discrimination based on sexual orientation, gender identity, or gender expression is sex discrimination under Title VII. In Etsitty v. Utah Transit Authority, the Tenth Circuit held that a bus company did not violate Title VII when it fired a transgender driver for using women’s restrooms along her route. The court concluded that discrimination based on transgender status does not violate Title VII’s prohibition of discrimination “because of sex,” and that the plaintiff was fired because of bathroom use, not discrimination. The rewritten opinion reverses course: the employer’s behavior violated both Title VII and the Equal Protection Clause. Hively v. Ivy Tech Community College held that discrimination based on sexual orientation is illegal sex discrimination. The rewritten opinion arrives at the same conclusion, but offers a more humanistic lens through which to view the legal question posed. The rewritten opinion relies on several legal theories to support its conclusion, including but-for causation, sex stereotyping, sex-plus, associational (or relationship) discrimination, and a unique use of the motivating factor provision in Title VII.
Chapter 3 rewrites two cases that deal with pregnancy discrimination: International Union, UAW v. Johnson Controls, and Young v. United Parcel Service, Inc. The original Johnson Controls case struck down a broad fetal protection policy forbidding women of childbearing age from working in jobs with lead exposure, but the Court failed to acknowledge the hardships of the individual women excluded, ignored evidence that men’s offspring also suffer harm from excess lead exposure, and failed to suggest cleaning up workplaces with toxic substances, rather than excluding employees from valuable jobs. The rewritten opinion cures these omissions and disavows the stereotypes of a policy assuming that all women are potentially mothers. The feminist judgment in Young holds that an employer providing accommodations for employees with physical restrictions similar to those of pregnancy must provide the same accommodations to a pregnant employee. It highlights the history of discrimination against pregnant women – a significant cause of women’s subordination in the workplace, with many women forced to quit as a consequence of employers’ shortcomings.
Chapter 2 demonstrates how the US Supreme Court could have used the feminist technique of storytelling by rewriting Desert Palace v. Costa from the perspective of the plaintiff, who received a jury verdict in her favor in the district court. The feminist judgment corrects the Supreme Court’s willingness to allow the defendant to write the plaintiff’s story by detailing the egregious facts in the case that shed light on the gendered treatment she suffered – treatment that included repeated severely hostile behaviors among her coworkers and differential treatment by her supervisors. The rewritten opinion gives the reader a significantly different view of the case from that offered by the original opinion. The rewritten opinion demonstrates that the feminist method of storytelling illuminates the ways in which the facts occurred in the real world, and in doing so creates a counterbalance to the supposedly “neutral” and “objective” view that the Court originally presented.
This chapter investigates whether there is a general right to conscientious exemption in US law. The chapter concludes that there is, albeit its scope varies geographically. There are at least five rules of law which ground the right. These are: (1) the Free Exercise Clause of the First Amendment under federal constitutional law as interpreted by the USSC in Smith (albeit this is now very narrow), and the Free Exercise clauses of some state constitutions which did not interpret their own constitutions according to Smith; (2) The Religious Freedom Restoration Act (RFRA) which applies to the federal government and similar state legislation that applies in the states which have enacted them; (3) the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) which applies mainly to state governments in the context of land regulation, zoning laws and prisoners; (4) Title VII of the Civil Rights Act of 1964 (and similar state level legislation) which requires certain categories of employers to accommodate the religious beliefs of their employees in performing their employment duties; and (5) the constitutional requirements of Church Autonomy.
Shortly after its adoption, progressive reformers recognized substantial shortcomings of Title VII of the Civil Rights Act of 1964 governing employment discrimination. To overcome these limitation, members of the Democratic Party worked with aligned justices on the Supreme Court to develop evolving understandings of Title VII to support racial minorities seeking to access the federal judiciary and to reduce the evidentiary burdens necessary to prevail at trail. These progressives also supported willing employers' efforts by protecting affirmative action. Conservatives on the bench and in the elected branches aligned with the Republican Party worked in a deliberative fashion to counter these efforts. But, as is true for both coalitions, when justices introduced novel positions that went beyond the interests of their elected counterparts, they relinquished their novel doctrinal positions, which is consistent with the deliberative partnership thesis.
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