v. Hardwick (1986) Ruled that same-sex
partners are not included in the
"zone of privacy" that protects
Constitution does not confer a fundamental right
upon homosexuals to engage in sodomy. None of the
fundamental rights announced in this Court's prior
cases involving family relationships, marriage, or
procreation bear any resemblance to the right
asserted in this case. And any claim that those
cases stand for the proposition that any kind of
private sexual conduct between consenting adults
is constitutionally insulated from state
proscription is unsupportable. -Justice Byron
case is no more about "a fundamental right to
engage in homosexual sodomy," as the Court
purports to declare, ante, at 191, than Stanley v.
U.S. 557 (1969), was about a fundamental right
to watch obscene movies, or Katz v. United States,
U.S. 347 (1967), was about a fundamental right
to place interstate bets from a telephone booth.
Rather, this case is about "the most
comprehensive of rights and the right most valued
by civilized men," namely, "the right to
be let alone." Olmstead v. United States, 277
U.S. 438, 478 (1928) (Brandeis, J., dissenting) - JUSTICE BLACKMUN,
with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join,
of Gay Rights in the U.S.
1. A claim of "hostile environment" sexual harassment is a form of
sex discrimination that is actionable under Title VII. Pp. 63-69.
(a) The language of Title VII is not limited to "economic" or
"tangible" discrimination. Equal Employment Opportunity Commission
Guidelines fully support the view that sexual harassment leading to [477
U.S. 57, 58] non-economic injury can violate Title VII.
Here, respondent's allegations were sufficient to state a claim for
"hostile environment" sexual harassment. Pp. 63-67.
(b) The District Court's findings were insufficient to dispose of respondent's
"hostile environment" claim. The District Court apparently
erroneously believed that a sexual harassment claim will not lie absent an
economic effect on the complainant's employment, and erroneously focused on
the "voluntariness" of respondent's participation in the claimed
sexual episodes. The correct inquiry is whether respondent by her conduct
indicated that the alleged sexual advances were unwelcome, not whether her
participation in them was voluntary. Pp. 67-68.
(c) The District Court did not err in admitting evidence of respondent's
sexually provocative speech and dress. While "voluntariness" in the
sense of consent is no defense to a sexual harassment claim, it does not
follow that such evidence is irrelevant as a matter of law in determining
whether the complainant found particular sexual advances unwelcome. Pp. 68-69.
2. The Court of Appeals erred in concluding that employers are always
automatically liable for sexual harassment by their supervisors. While
common-law agency principles may not be transferable in all their particulars
to Title VII, Congress' decision to define "employer" to include any
"agent" of an employer evinces an intent to place some limits on the
acts of employees for which employers under Title VII are to be held
responsible. In this case, however, the mere existence of a grievance
procedure in the bank and the bank's policy against discrimination, coupled
with respondent's failure to invoke that procedure, do not necessarily
insulate the bank from liability. Pp. 69-73.
sum, we hold that a claim of "hostile environment" sex
discrimination is actionable under Title VII, that the District Court's
findings were insufficient to dispose of respondent's hostile environment
claim, and that the District Court did not err in admitting testimony about
respondent's sexually provocative speech and dress. As to employer liability,
we conclude that the Court of Appeals was wrong to entirely disregard agency
principles and impose absolute liability on employers for the acts of their
supervisors, regardless of the circumstances of a particular case.
supervisor's responsibilities do not begin and end with the power to hire,
fire, and discipline employees, or with the power to recommend such actions.
Rather, a supervisor is charged with the day-to-day supervision of the work
environment and with ensuring a safe, productive workplace. There is no reason
why abuse of the latter authority should have different consequences than
abuse of the former. In both cases it is the authority
U.S. 57, 77] vested in the supervisor by the employer
that enables him to commit the wrong: it is precisely because the supervisor
is understood to be clothed with the employer's authority that he is able to
impose unwelcome sexual conduct on subordinates. There is therefore no
justification for a special rule, to be applied only in "hostile
environment" cases, that sexual harassment does not create employer
liability until the employee suffering the discrimination notifies other
supervisors. No such requirement appears in the statute, and no such
requirement can coherently be drawn from the law of agency. --Justice Stevens,
The Equal Protection Clause prohibits discrimination in jury
selection on the basis of gender, or on the assumption that an individual will
be biased in a particular case solely because that person happens to be a
woman or a man. Respondent's gender-based peremptory challenges cannot survive
the heightened equal protection scrutiny that this Court affords distinctions
based on gender. Respondent's rationale - that its decision to strike
virtually all males in this case may reasonably have been based on the
perception, supported by history, that men otherwise totally qualified to
serve as jurors might be more sympathetic and receptive to the arguments of a
man charged in a paternity action, while women equally qualified might be more
sympathetic and receptive to the arguments of the child's mother - is
virtually unsupported and is based on the very stereotypes the law condemns.
-- Justice Blackmun
We know that, like race, gender matters...one need not be a sexist to share
the intuition that, in certain cases, a person's gender and resulting life
experience will be relevant to his or her view of the case. "`Jurors are
not expected to come into the jury box and leave behind all that their human
experience has taught them.'" Beck v. Alabama, 447
U.S. 625, 642 (1980). Individuals are not expected to ignore as jurors
what they know as men - or women.
Today's decision severely limits a litigant's ability to act on this
intuition, for the import of our holding is that any correlation between a
juror's gender and attitudes is irrelevant as a matter of constitutional law.
But to say that gender makes no difference as a matter of law is not to say
that gender makes no difference as a matter of fact. I previously have said
with regard to Batson: "That the Court will not tolerate prosecutors'
racially discriminatory use of the peremptory challenge, in effect, is a
special rule of relevance, a statement about what this Nation stands for,
rather than a statement of fact. Brown v. North Carolina, 479
U.S. 940, 941 -942 (1986) (O'CONNOR, J., concurring in denial of
certiorari). Today's decision is a statement that, in an effort to eliminate
the potential discriminatory use of the peremptory, see Batson, 476
U.S., at 102 (Marshall, J., concurring), gender is now governed by the
special rule of relevance formerly reserved for race. Though we gain much from
this statement, we cannot ignore what we lose. In extending Batson to gender,
we have added an additional burden to the state and federal trial process,
taken a step closer to eliminating the peremptory challenge, and diminished
the ability of litigants to act on sometimes accurate gender-based assumptions
about juror attitudes. --Justice O'Connor, concurring
and Law in American History
v. Evans (1996) Struck
down “special treatment” statutes aimed at gays and lesbians.
The Fourteenth Amendment's promise that no person shall be denied the equal
protection of the laws must co-exist with the practical necessity that most
legislation classifies for one purpose or another, with resulting disadvantage
to various groups or persons...We have attempted to reconcile the principle
with the reality by stating that, if a law neither burdens a fundamental right
nor targets a suspect class, we will uphold the legislative classification.
Amendment 2 fails, indeed defies, even this conventional inquiry. First,
the amendment has the peculiar property of imposing a broad and
undifferentiated disability on a single named group, an exceptional and, as we
shall explain, invalid form of legislation. Second, its sheer breadth is so
discontinuous with the reasons offered for it that the amendment seems
inexplicable by anything but animus toward the class that it affects; it lacks
a rational relationship to legitimate state interests.
Taking the first point, even in the ordinary equal protection case calling
for the most deferential of standards, we insist on knowing the relation
between the classification adopted and the object to be attained. The search
for the link between classification and objective gives substance to the Equal
Protection Clause; it provides guidance and discipline for the legislature,
which is entitled to know what sorts of laws it can pass; and it marks the
limits of our own authority. In the ordinary case, a law will be sustained if
it can be said to advance a legitimate government interest, even if the law
seems unwise or works to the disadvantage of a particular group, or if the
rationale for it seems tenuous...By requiring that the classification bear a
rational relationship to an independent and legitimate legislative end, we
ensure that classifications are not drawn for the purpose of disadvantaging
the group burdened by the law.
Amendment 2 confounds this normal process of judicial review. It is at once
too narrow and too broad. It identifies persons by a single trait and then
denies them protection across the board. The resulting disqualification of a
class of persons from the right to seek specific protection from the law is
unprecedented in our jurisprudence...
It is not within our constitutional tradition to enact laws of this sort.
Central both to the idea of the rule of law and to our own Constitution's
guarantee of equal protection is the principle that government and each of its
parts remain open on impartial terms to all who seek its assistance.
"`Equal protection of the laws is not achieved through indiscriminate
imposition of inequalities.'" Sweatt v. Painter,
U.S. 629, 635 (1950) (quoting Shelley v. Kraemer,
U.S. 1, 22 (1948)). Respect for this principle explains why laws singling
out a certain class of citizens for disfavored legal status or general
hardships are rare. A law declaring that in general it shall be more difficult
for one group of citizens than for all others to seek aid from the government
is itself a denial of equal protection of the laws in the most literal sense.
The Court has mistaken a Kulturkampf for a fit of spite. The constitutional
amendment before us here is not the manifestation of a "`bare . . .
desire to harm'" homosexuals, ante, at 13, but is rather a modest attempt
by seemingly tolerant Coloradans to preserve traditional sexual mores against
the efforts of a politically powerful minority to revise those mores through
use of the laws. That objective, and the means chosen to achieve it, are not
only unimpeachable under any constitutional doctrine hitherto pronounced
(hence the opinion's heavy reliance upon principles of righteousness rather
than judicial holdings); they have been specifically approved by the Congress
of the United States and by this Court.
In holding that homosexuality cannot be singled out for disfavorable
treatment, the Court contradicts a decision, unchallenged here, pronounced
only 10 years ago, see Bowers v. Hardwick,
U.S. 186 (1986), and places the prestige of this institution behind the
proposition that opposition to homosexuality is as reprehensible as racial or
religious bias. Whether it is or not is precisely the cultural debate that
gave rise to the Colorado constitutional amendment (and to the preferential
laws against which the amendment was directed). Since the Constitution of the
United States says nothing about this subject, it is left to be resolved by
normal democratic means, including the democratic adoption of provisions in
state constitutions. This Court has no business imposing upon all Americans
the resolution favored by the elite class from which the Members of this
institution are selected, pronouncing that "animosity" toward
homosexuality, ante, at 13, is evil. I vigorously dissent. --Justice Scalia