Gender Discrimination and Sexual Harassment
| Author | Daniel Brannen, Richard Hanes, Elizabeth Shaw |
| Pages | 613-620 |
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Gender discrimination, or sex discrimination, may be described as the unfair treatment of a person because of that person's sex. Historically, females have been discriminated against in the United States based solely on their gender. The Supreme Court did not consider women under the Fourteenth Amendment's guarantee of "equal protection of the laws" until the 1970s. By the late twentieth century, civil rights laws prohibiting sex discrimination were being applied to the protection of males as well.
Paternalism is defined as the protective behavior of a father toward his child. Like the general public's view toward women at the time, the Supreme Court's attitude toward women and their role in American society in the nineteenth century was one of paternalism. Women, they believed, belonged at home to care for their families and were much too delicate to have occupations or deal with issues outside of the home. This philosophy was used repeatedly from the 1870s until the 1960s to justify ignoring the Fourteenth Amendment's "equal protection of the laws" when issues concerning
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unfair treatment of women arose. Equal protection was intended to be a constitutional guarantee that no person or persons would be denied protection of the laws that is enjoyed by other persons or groups.
An early example of this disregard for the Fourteenth Amendment came in Bradwell v. Illinois (1873). Based completely on gender, a state refused to issue a woman a license to practice law, an apparent clear violation of "equal protection of the laws." However, the Court agreed with the state and justified their decision with a paternalistic explanation. Justice Joseph P. Bradley wrote that women's "natural . . . delicacy" made them unfit "for many of the occupations of civil life [such as being a lawyer]." Continuing, he observed that "divine ordinance [God's laws]" and the very "nature of things" indicated that a woman must remain within her home circle.
Likewise, the Court ruled in Minor v. Happersett (1875), that the Fourteenth Amendment did not require state governments to allow women to vote. The Minor decision was not erased until 1920, when the Nineteenth Amendment to the U.S. Constitution giving women the right to vote was adopted. Concerning jury duty, the Court in Strauder v. West Virginia (1880) decided that state governments could prohibit women from serving on juries. Concerned about women's health and morals, the Court in Cronin v. Adams (1904) upheld a Denver law barring the sale of liquor to women and prohibiting them to work in bars or stores where liquor was sold. The Court with the same fatherly attitude also addressed and upheld state laws setting maximum working hours for women in Muller v. Oregon (1908). However, for men, setting similar limitations on working hours was considered a violation of their right to work. This protective attitude was still alive in 1961 with the ruling in Hoyt v. Florida. In that case, the Court again upheld an exemption (free of a duty) for women from jury duty commenting, "Woman is still regarded as the center of home and family life."
Despite paternalistic views, the mid-twentieth century found many women working outside the home to support themselves and their families. Because women had traditionally been expected to remain at home with limited access to colleges, they were less educated, and thus, left with only low paying, low skill jobs. Women frequently received less pay than a man for the same job. This was based on the idea that women's earnings were less important than a man's when looking at support of families.
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The civil rights movement of the 1950s and 1960s made more people aware of all types of discrimination, including gender...
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