1. Agenda for 6th Class Handouts Slides Readings packet
Catherine MacKinnon, Sexual Harassment of Working Women (1979)
Meritor Savings Bank v Vinson (1986)
Stapled together
Name plates
Lunch sign up
Wednesday 1-2PM
Dean’s Conference Room, Law School 4th Floor, Rm. 431, SE corner
Benjamin Reinach (TA) will join
Review of Last Class
Weber (continued)
Theories of Statutory Interpretation

2. Assignment for Next Class
Review any questions from today’s assignment that we don’t discuss in class
Read “Sexual Harassment” handout
Catherine MacKinnon, Sexual Harassment of Working Women (1979)
Meritor Savings Bank v Vinson (1986)
5 Blackboard questions on Harassment
Questions to think about / Short papers
Everyone should be prepared to discuss all the questions on the last two pages of the Sexual Harassment handout
Mandatory writing
Group 1. Q4 & Q8
Group 2. Q3 & Q7
Group 3. Q2 & Q6
Group 4. Q1 & Q5
Optional writing -- All questions that are not mandatory
1st Longer Writing Assignment
Due Thursday, January 31 at 5PM
Questions?

3. Review of Last Class I Griggs v Duke Power
Might appear to be narrow opinion about tests
In fact, dramatically broadens scope of Title VII
“Disparate Impact” theory
If employment practice has “disparate impact,” employer must justify it as “business necessity”
“Disparate impact” means that it statistically disadvantages a group based on race, sex, or some other protected category
Business necessity
Proof informally or by statistics
Non intent to discriminate required
Applies to tests, educational requirements (e.g. high school graduation requirements), selection methods (e.g. interviews), or selection criteria/factors (e.g. no criminal record).
“Disparate Treatment” theory
Intentional discrimination
Class list for preferences and sign in
Digital voice recorder
Nameplates and marker
Handouts of PowerPoint slides
IP chart

4. Review of Last Class II Weber
Both majority and dissent use legislative history
But careful reading of quotes they rely upon suggest that legislative history was much more ambiguous
Legislative history focused on
Goal of improving African American economic conditions
Not requiring affirmative action
Because it had been required under federal contractor executive order
Not much attention to voluntary affirmative action
Not really imaginable in 1964
Problem was getting employers not to discriminate against African Americans
No one really imagined much less feared that employers would voluntarily start discriminating against whites
Class list for preferences and sign in
Digital voice recorder
Nameplates and marker
Handouts of PowerPoint slides
IP chart

5. BFOQ
703(e). “Notwithstanding any other provision of this title, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees …. on the basis of his 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…”
BFOQ means situations were religion, sex or national origin is itself a job qualification
Catholicism for priest
Italian to infiltrate Sicilian organized crime family
Woman to play Ellie Woods in Legally Blonde
BFOQ does not mean legally valid job requirement
Law degree for law firm
Experience with cars for auto mechanic
Knowledge of accounting for accountant
Class list for preferences and sign in
Digital voice recorder
Nameplates and marker
Handouts of PowerPoint slides
IP chart

6. United Steelworkers v. Weber
Historically, African-Americans were excluded from Steelworkers union
Union and Kaiser Aluminum entered into agreement with quota
50% of craft trainees must be black, even if whites had more seniority
White passed over sued, alleging violation of Title VII of Civil Rights Act
Issue: Does voluntary quota in favor of group that had been subject to prior discrimination violate Title VII?
Holding: No. Voluntary quota in favor of group that had been subject to prior discrimination does not violate Title VII.
Brennan for majority
Blackmun concurrence
Rehnquist dissent

7. Questions For each quote, answer the following questions:
(a) does the quote directly address the key issue in the case, whether voluntary affirmative action violates Title VII?
(b) if the quote is in the majority opinion, how would the dissenters argue that the quote is consistent with their interpretation of Title VII and its legislative history? If the quote is in the dissenting opinion, how would the justices in the majority argue that the quote is consistent with their interpretation of Title VII and its legislative history?
(c) Do you think the quote is more consistent with the idea that voluntary affirmative action is allowed by Title VII or forbidden by Title VII, or do you think the quote is irrelevant to the legality of voluntary affirmative action?
4. Even [a] court could not order that any preference be given to any particular race, religion or other group, but would be limited to ordering an end of discrimination. The statement that a Federal inspector could order the employment and promotion only of members of a specific racial or religious group is therefore patently erroneous…… The Bill would do no more than prevent employers from discriminating against or in favor of workers because of their race, religion, or national origin.

8. Questions
5. It is likewise not true that the Equal Employment Opportunity Commission would have power to rectify existing ‘racial or religious imbalance’ in employment by requiring the hiring of certain people without regard to their qualifications simply because they are of a given race or religion. Only actual discrimination could be stopped.
6. Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective. Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when the title comes into effect the employer's obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged-- or indeed permitted--to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier. (emphasis added)
7. Justice Blackmun’s concurring opinion does not discuss the legislative history or text of the Act. Why not? Why does he think voluntary affirmative action is legal? Do you think his argument is persuasive? How do you think Justice Rehnquist would respond to Justice Blackmun’s arguments?

9. Questions
8. Ronald Dworkin is one of the most influential contemporary legal thinkers. This is what he wrote about Weber:
How does a court choose between two justifications for statute, each of which fits the statute and finds a basis in political opinion? … In most hard cases testing whether a statute applies in controversial circumstances, when there are two justifications available that point in opposite directions, both justifications will fit well enough both the text of the statute and the political climate of the day… Weber was such a case. In these cases I see no procedure for decision—no theory of legislation—other than this: … judges must decide which of the two competing justifications is superior as a matter of political morality, and apply the statute so as to further that justification.  
Do you agree with Dworkin's analysis? Why or why not? Do you agree that in Weber, both the idea that voluntary affirmative action violates Title VII and the idea that it does not, are equally consistent with the text and legislative history? Do you agree that where text and legislative history are equally consistent with two interpretations, a judge has no choice but to choose the interpretation that is “superior as a matter of political morality”?

10. Questions
8. Ronald Dworkin is one of the most influential contemporary legal thinkers. This is what he wrote about Weber:
How does a court choose between two justifications for statute, each of which fits the statute and finds a basis in political opinion? … In most hard cases testing whether a statute applies in controversial circumstances, when there are two justifications available that point in opposite directions, both justifications will fit well enough both the text of the statute and the political climate of the day… Weber was such a case. In these cases I see no procedure for decision—no theory of legislation—other than this: … judges must decide which of the two competing justifications is superior as a matter of political morality, and apply the statute so as to further that justification.  
Do you agree with Dworkin's analysis? Why or why not? Do you agree that in Weber, both the idea that voluntary affirmative action violates Title VII and the idea that it does not, are equally consistent with the text and legislative history? Do you agree that where text and legislative history are equally consistent with two interpretations, a judge has no choice but to choose the interpretation that is “superior as a matter of political morality”?

11. Methods of Statutory Interpretation I
Textualism – Courts should look only at text of statute
Should not look at legislative history or purpose
Intentionalism – Courts should try to figure out what the legislature intended
Should look at legislative history, where informative
Purposivism – Courts should try to figure out the purpose of the statute and then interpret ambiguous parts of the statute to further that purposes
Purpose may be inferred from text, legislative history, or other sources
What problem was statute trying to address?
Purposivism is sometimes a variant of intentionalism and textualism
Purposivism is distinct if judges infer purpose from sources other than text or legislative history
Purpose may be public good, even if statute is actually just interest group deal 11 11

12. Methods of Statutory Interpretation II
Pragmatic interpretation -- Judges should take into account real-world consequences
In practice, use all methods
Good lawyers and judges try to show how all methods point to same conclusion
But sometimes methods point to contradictory conclusions 12 12

13. Methods of Statutory Interpretation
1. Which method of statutory interpretation is most consistent with democracy?
2. Which method of statutory interpretation is most likely to result in interpretations that promote social goals such as justice, efficiency, or fairness?
3. Which method of statutory interpretation is most likely to constrain judges so that a judge’s ideology or policy preferences have the least effect on judicial decisions?
4. Which method of statutory interpretation is likely to give citizens and corporations the clearest notice of their obligations?
5. Which method of statutory interpretation is likely to give legislators the best incentives to draft statutes carefully? 13 13

14. Methods of Statutory Interpretation
6. Consider the following drastic simplification of the debate over Title VII. Congress was composed of three groups. 35% were Southern Democrats. They were racists who opposed equal treatment for African Americans. They would vote against any civil rights bill. 35% were Northern Democrats. They were ardent advocates of civil rights, who favored not only equal treatment, but affirmative action, quotas, and other means of swiftly integrating African Americans into the mainstream of American life. Although ardent advocates of civil rights would favor a bill which allowed affirmative action, they would support a bill which required only equal treatment. 30% were Republicans. They were moderates who favored color-blind decisionmaking and equality of opportunity, but who opposed (and would vote against any bill that permitted or required) affirmative action or quotas… So, according to the theory that statutes should be interpreted in accordance with the intentions of the pivotal lawmakers, Title VII should have been interpreted to forbid affirmative in United Steelworkers v, Weber. Does it make sense to interpret Title VII this way, even though most of those who supported the statute would have favored a contrary outcome? 14 14

15. Methods of Statutory Interpretation
7. In what way is the simplification of the debate over Title VII in question 6 accurate? In what way is it inaccurate?
8. Which method of statutory interpretation would you adopt if you were a judge? 15 15