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an individual’s life. “[T]he concept of privacy embodies the

‘moral fact that a person belongs to himself and not others

nor to society as a whole.’” And so we protect the decision

whether to marry precisely because marriage “is an associ-

ation that promotes a way of life, not causes; a harmony in

living, not political faiths; a bilateral loyalty, not commer-

cial or social projects.” We protect the decision whether to

have a child because parenthood alters so dramatically an

individual’s self-definition, not because of demographic

considerations or the Bible’s command to be fruitful and

multiply. And we protect the family because it contributes

so powerfully to the happiness of individuals, not because

of a preference for stereotypical households. The Court

recognized in Roberts, 468 U.S., at 619, 104 S.Ct., at 3250,

that the “ability independently to define one’s identity that

is central to any concept of liberty” cannot truly be exer-

cised in a vacuum; we all depend on the “emotional enrich-

ment from close ties with others.”

Only the most willful blindness could obscure the fact

that sexual intimacy is “a sensitive, key relationship of

human existence, central to family life, community wel-

fare, and the development of human personality.” The fact

that individuals define themselves in a significant way

through their intimate sexual relationships with others sug-

gests, in a Nation as diverse as ours, that there may be

many “right” ways of conducting those relationships, and

that much of the richness of a relationship will come from

the freedom an individual has to choose the form and

nature of these intensely personal bonds.

In a variety of circumstances we have recognized that

a necessary corollary of giving individuals freedom to

choose how to conduct their lives is acceptance of the fact

that different individuals will make different choices. For

example, in holding that the clearly important state inter-

est in public education should give way to a competing

claim by the Amish to the effect that extended formal

schooling threatened their way of life, the Court declared:

“There can be no assumption that today’s majority is ‘right’

and the Amish and others like them are ‘wrong.’ A way of

life that is odd or even erratic but interferes no rights or

interests of others is not to be condemned because it is dif-

ferent.” The Court claims that its decision today merely

refuses to recognize a fundamental right to engage in

homosexual sodomy; what the Court really has refused to

recognize is the fundamental interest all individuals have

in controlling the nature of their intimate associations with

others.

The behavior for which Hardwick faces prosecution

occurred in his own home, a place to which the Fourth

Amendment attaches special significance. The Court’s

treatment of this aspect of the case is symptomatic of its

overall refusal to consider the broad principles that have

informed our treatment of privacy in specific cases. Just as

the right to privacy is more than the mere aggregation of a

number of entitlements to engage in specific behavior, so

too, protecting the physical integrity of the home is more

than merely a means of protecting specific activities that

often take place there. Even when our understanding of

the contours of the right to privacy depends on “reference

to a ‘place,’” “the essence of a Fourth Amendment viola-

tion is ‘not the breaking of [a person’s] doors, and the rum-

maging of his drawers,’ but rather is ‘the invasion of his

indefeasible right of personal security, personal liberty and

private property.’”

The Court’s interpretation of the pivotal case of Stan-

ley v. Georgia (1969), is entirely unconvincing. Stanley

held that Georgia’s undoubted power to punish the public

distribution of constitutionally unprotected, obscene

material did not permit the State to punish the private pos-

session of such material. According to the majority here,

Stanley relied entirely on the First Amendment, and thus,

it is claimed, sheds no light on cases not involving printed

materials. Ante, at 2846. But that is not what Stanley said.

Rather, the Stanley Court anchored its holding in the

Fourth Amendment’s special protection for the individual

in his home:

“The makers of our Constitution undertook to secure

conditions favorable to the pursuit of happiness. They rec-

ognized the significance of man’s spiritual nature, of his

feelings and of his intellect. They knew that only a part of

the pain, pleasure and satisfactions of life are to be found

in material things. They sought to protect Americans in

their beliefs, their thoughts, their emotions and their sen-

sations.’

“These are the rights that appellant is asserting in the

case before us. He is asserting the right to read or observe

what he pleases—the right to satisfy his intellectual and

emotional needs in the privacy of his own home.”

The central place that Stanley gives Justice Brandeis’

dissent in Olmstead, a case raising no First Amendment

claim, shows that Stanley rested as much on the Court’s

understanding of the Fourth Amendment as it did on the

First. Indeed, in Paris Adult Theater I v. Slaton (1973) the

Court suggested that reliance on the Fourth Amendment

not only supported the Court’s outcome in Stanley but

actually was necessary to it: “If obscene material unpro-

tected by the First Amendment in itself carried with it a

‘penumbra’ of constitutionally protected privacy, this

Court would not have found it necessary to decide Stanley

on the narrow basis of the ‘privacy of the home,’ which was

hardly more than a reaffirmation that ‘a man’s home is his

castle.’” “The right of the people to be secure in their . . .

houses,” expressly guaranteed by the Fourth Amendment,

is perhaps the most “textual” of the various constitutional

1752 ERA 10: Contemporary United States

provisions that inform our understanding of the right to

privacy, and thus I cannot agree with the Court’s statement

that “[t]he right pressed upon us here has no . . . support

in the text of the Constitution,” ante, at 2846. Indeed, the

right of an individual to conduct intimate relationships in

the intimacy of his or her own home seems to me to be the

heart of the Constitution’s protection of privacy.

III

The Court’s failure to comprehend the magnitude of the

liberty interests at stake in this case leads it to slight the

question whether petitioner, on behalf of the State, has

justified Georgia’s infringement on these interests. I

believe that neither of the two general justifications for

Section 16-6-2 that petitioner has advanced warrants dis-

missing respondent’s challenge for failure to state a claim.

First, petitioner asserts that the acts made criminal by

the statute may have serious adverse consequences for

“the general public health and welfare,” such as spreading

communicable diseases or fostering other criminal activity.

Brief for Petitioner 37. Inasmuch as this case was dis-

missed by the District Court on the pleadings, it is not sur-

prising that the record before us is barren of any evidence

to support petitioner’s claim. In light of the state of the

record, I see no justification for the Court’s attempt to

equate the private, consensual sexual activity at issue here

with the “possession in the home of drugs, firearms, or

stolen goods,” ante, at 2846, to which Stanley refused to

extend its protection. None of the behavior so mentioned

in Stanley can properly be viewed as “[v]ictimless,” drugs

and weapons are inherently dangerous and for property to

be “stolen,” someone must have been wrongfully deprived

of it. Nothing in the record before the Court provides any

justification for finding the activity forbidden by Section

16-6-2 to be physically dangerous, either to the persons

engaged in it or to others.

The core of petitioner’s defense of Section 16-6-2,

however, is that respondent and others who engage in the

conduct prohibited by Section 16-6-2 interfere with Geor-

gia’s exercise of the “right of the Nation and of the States

to maintain a decent society.” Essentially, petitioner ar-

gues, and the Court agrees, that the fact that the acts

described in Section 16-6-2 “for hundreds of years, it not

thousands, have been uniformly condemned as immoral”

is a sufficient reason to permit a State to ban them today.

I cannot agree that either the length of time a major-

ity has held its convictions or the passions with which it

defends them can withdraw legislation from this Court’s

scrutiny. As Justice Jackson wrote so eloquently for the

Court in West Virginia Board of Education v. Barnette

(1943), “we apply the limitations of the Constitution with

no fear that freedom to be intellectually and spiritually

diverse or even contrary will disintegrate the social organi-

zation . . . [F]reedom to differ is not limited to things that

do not matter much. That would be a mere shadow of free-

dom. The test of its substance is the right to differ as to

things that touch the heart of the existing order.” It is pre-

cisely because the issue raised by this case touches the

heart of what makes individuals what they are that we

should be especially sensitive to the rights of those whose

choices upset the majority.

The assertion that “traditional Judeo-Christian values

proscribe” the conduct involved, Brief for Petitioner 20,

cannot provide an adequate justification for Section 16-6-

2. That certain, but by no means all, religious groups con-

demn the behavior at issue gives the State no license to

impose their judgments on the entire citizenry. The legiti-

macy of secular legislation depends instead on whether the

State can advance some justification for its law beyond its

conformity to religious doctrine. Thus, far from buttress-

ing his case, petitioner’s invocation of Leviticus, Romans,

St. Thomas Aquinas, and sodomy’s heretical status during

the Middle Ages undermines his suggestion that Section

16-6-2 represents a legitimate use of secular coercive

power. A State can no more punish private behavior

because of religious intolerance than it can punish such

behavior because of racial animus. “The Constitution can-

not control such prejudices, but neither can it tolerate

them. Private biases may be outside the reach of the law,

but the law cannot, directly or indirectly, give them effect.”

No matter how uncomfortable a certain group may make

the majority of this court, we have held that “[m]ere pub-

lic intolerance or animosity cannot constitutionally justify

the deprivation of a person’s physical liberty.”

Nor can Section 16-6-2 be justified as a “morally neu-

tral” exercise of Georgia’s power to “protect the public

environment,” Certainly, some private behavior can affect

the fabric of society as a whole. Reasonable people may

differ about whether particular sexual acts are moral or

immoral, but “we have ample evidence for believing that

people will not abandon morality, will not think any better

of murder, cruelty and dishonesty, merely because some

private sexual practice which they abominate is not pun-

ished by the law.” Petitioner and the Court fail to see the

difference between laws that protect public sensibilities

and those that enforce private morality. Statutes banning

public sexual activity are entirely consistent with protect-

ing the individual’s liberty interest in decisions concerning

sexual relations: the same recognition that those decisions

are intensely private which justifies protecting them from

governmental interference can justify protecting individu-

als from unwilling exposure to the sexual activities of oth-

ers. But the mere fact that intimate behavior may be

punished when it takes place in public cannot dictate how

States can regulate intimate behavior that occurs in inti-

mate places.

Social Developments 1753

This case involves no real interference with the rights

of others, for the mere knowledge that other individuals do

not adhere to one’s value system cannot be a legally cog-

nizable interest let alone an interest that can justify invad-

ing the houses, hearts, and minds of citizens who choose to

live their lives differently.

It took but three years for the Court to see the error in its

analysis in Minersville School District v. Gobitis (1940),

and to recognize that the threat to national cohesion posed

by a refusal to salute the flag was vastly outweighed by the

threat to those same values posed by compelling such a

salute. See West Virginia Board of Education v. Barnette

(1943). I can only hope that here, too, the Court soon will

reconsider its analysis and conclude that depriving individ-

uals of the right to choose for themselves how to conduct

their intimate relationships poses a far greater threat to the

values most deeply rooted in our Nation’s history than tol-

erance of nonconformity could ever do. Because I think

the Court today betrays those values, I dissent.

Source:

Supreme Court Reporter, Vol. 106, pp. 2,841–2,859.

Immigration Reform

and Control Act, 1986

Legislation signed into law November 6, 1986, liberalizing

regulations for persons residing illegally in the United States

and seeking amnesty. It provided a process for legalizing the

status of many illegal aliens who entered the United States

before January 1, 1982. Under the new law, qualified alien

applicants could receive temporary resident status and then,

after residing in the United States for 18 months, apply for per-

manent resident status. The act also imposed civil and crimi-

nal penalties on employers who knowingly hire or help aliens

not allowed to work in the United States. Among the many

other provisions of the act were the categorization of tempo-

rary workers into two groups (agricultural laborers and all oth-

ers), antidiscrimination rules, and some increases in

emigration from colonies of foreign nations.

________________________

_______________________

An Act

To amend the Immigration and Nationality Act to revise and

reform the immigration laws, and for other purposes.

Be it enacted by the Senate and House of Represen-

tatives of the United States of America in Congress assem-

bled,

Section 1. Short Title; References in Act.

(a) Short Title.—This Act may be cited as the “Immi-

gration Reform and Control Act of 1986.”

(b) Amendments to Immigration and Nationality

Act.—Except as otherwise specifically provided in this Act,

whenever in this Act an amendment or repeal is expressed

as an amendment to, or repeal of, a provision, the refer-

ence shall be deemed to be made to the Immigration and

Nationality Act.

* * *

Title I—Control of Illegal Immigration

Part A—Employment

Sec. 101. Control of Unlawful Employment of Aliens.

(a) In General.—

* * *

“Unlawful Employment of Aliens

“Sec. 274A. (a) Making Employment of Unauthorized

Aliens Unlawful.—

“(1) In general.—It is unlawful for a person or other

entity to hire, or to recruit or refer for a fee, for employ-

ment in the United States—

“(A) an alien knowing the alien is an unauthorized

alien . . . with respect to such employment….

* * *

“(2) Continuing employment.—It is unlawful for a

person or other entity, after hiring an alien for employ-

ment in accordance with paragraph (1), to continue to

employ the alien in the United States knowing the alien is

(or has become) an unauthorized alien with respect to such

employment.

“(3) Defense.—A person or entity that establishes that

it has complied in good faith with the requirements of sub-

section (b) with respect to the hiring, recruiting, or refer-

ral for employment of an alien in the United States has

established an affirmative defense that the person or entity

has not violated paragraph (1)(A) with respect to such hir-

ing, recruiting, or referral.

“(4) Use of labor through contract.—For purposes of

this section, a person or other entity who uses a contract,

subcontract, or exchange, entered into, renegotiated, or

extended after the date of the enactment of this section, to

obtain the labor of an alien in the United States knowing

that the alien is an unauthorized alien . . . with respect to

performing such labor, shall be considered to have hired

the alien for employment in the United States in violation

of paragraph (1)(A).

“(5) Use of state employment agency documenta-

tion—… a person or entity shall be deemed to have com-

plied with the requirements . . . with respect to the hiring

of an individual who was referred for such employment by

a State employment agency (as defined by the Attorney

1754 ERA 10: Contemporary United States

General), if the person or entity has and . . . appropriate

documentation of such referral by that agency, which

documentation certifies that the agency has complied

with the procedures . . . with respect to the individual’s

referral.

“(b) Employment Verification System.—The require-

ments . . . are, in the case of a person or other entity hir-

ing, recruiting, or referring an individual for employment

in the United States, the requirements specified in the fol-

lowing three paragraphs:

“(1)Attestation after examination of documentation.

* * *

“Unfair Immigration-Related Employment Practices

“Sec. 274B. (a) Prohibition of Discrimination Based

on National Origin or Citizenship Status.—

“(1) General rule.—It is an unfair immigration-related

employment practice for a person or other entity to dis-

criminate against any individual (other than an unautho-

rized alien) with respect to the hiring, or recruitment or

referral for a fee, of the individual for employment or the

discharging of the individual from employment—

“(A) because of such individual’s national origin, or

“(B) in the case of a citizen or intending citizen . . .

because of such individual’s citizenship status.

“(2) Exceptions.—Paragraph (1) shall not apply to—

“(A) a person or other entity that employs three or

fewer employees,

“(B) a person’s or entity’s discrimination because of an

individual’s national origin if the discrimination with

respect to that person or entity and that individual is cov-

ered under section 703 of the Civil Rights Act of 1964, or

“(C) discrimination because of citizenship status

which is otherwise required in order to comply with law,

regulation, or executive order, or required by Federal,

State, or local government contract, or which the Attorney

General determines to be essential for an employer to do

business with an agency or department of the Federal,

State, or local government.

“(3) Definition of citizen or intending citizen.— . . .

the term ‘citizen or intending citizen’ means an individual

who—

“(A) is a citizen or national of the United States, or

“(B) is an alien who.—

“(i) is lawfully admitted for permanent residence, is

granted the status of an alien lawfully admitted for tempo-

rary residence . . . , is admitted as a refugee under section

207, or is granted asylum under section 208, and

“(ii) evidence an intention to become a citizen of the

United States through completing a declaration of inten-

tion to become a citizen;

but does not include (I) an alien who fails to apply for

naturalization within six months of the date the alien first

becomes eligible (by virtue of period of lawful permanent

residence) to apply for naturalization or, if later, within six

months after the date of the enactment of this section and

(II) an alien who has applied on a timely basis, but has not

been naturalized as a citizen within 2 years after the date

of the application, unless the alien can establish that the

alien is actively pursuing naturalization, except that time

consumed in the Service’s processing the application shall

not be counted toward the 2-year period.

“(4) Additional exception providing right to prefer

equally qualified citizens.—Notwithstanding any other

provision of this section, it is not an unfair immigration-

related employment practice for a person or other entity to

prefer to hire, recruit, or refer an individual who is a citi-

zen or national of the United States over another individ-

ual who is an alien if the two individuals are equally

qualified.

“(b) Charges of Violations.—

“(1) In general.—Except as provided in paragraph (2),

any person alleging that the person is adversely affected

directly by an unfair immigration-related employment

practice (or a person on that person’s behalf) or an officer

of the Service alleging that an unfair immigration-related

employment practice has occurred or is occurring may file

a charge respecting such practice or violation with the Spe-

cial Counsel (appointed under subsection (c)). Charges

shall be in writing under oath or affirmation and shall con-

tain such information as the Attorney General requires.

The Special Counsel by certified mail shall serve a notice

of the charge (including the date. . . .

* * *

Sec. 1546. Fraud and misuse of visas, permits, and other

documents”;

* * *

“(b) Whoever uses—

“(1) an identification document, knowing (or having

reason to know) that the document was not issued lawfully

for the use of the possessor,

“(2) an identification document knowing (or having

reason to know) that the document is false, or

“(3) a false attestation,

for the purpose of satisfying a requirement . . . of the

Immigration and Nationality Act, shall be fined in accor-

dance with this title, or imprisoned. . . .

“(c) This section does not prohibit any lawfully

authorized investigative, protective, or intelligence activ-

ity of a law enforcement agency of the United States, a

State, or a subdivision of a State, or of an intelligence

agency of the United States, or any activity authorized

under title V of the Organized Crime Control Act of

1970.

Social Developments 1755

* * *

Part B—Improvement of Enforcement and Services

Sec. 111. Authorization of Appropriations for En-

forcement and Service Activities of the Immigration and

Naturalization Service.

(a) Two Essential Elements.—It is the sense of

Congress that two essential elements of the program of

immigration control established by this Act are—

(1) an increase in the border patrol and other inspec-

tion and enforcement activities of the Immigration and

Naturalization Service and of other appropriate Federal

agencies in order to prevent and deter the illegal entry of

aliens into the United States and the violation of the terms

of their entry, and

(2) an increase in examinations and other service

activities of the Immigration and Naturalization Service

and other appropriate Federal agencies in order to ensure

prompt and efficient adjudication of petitions and applica-

tions provided for under the Immigration and Nationality

Act.

(b) Increased Authorization of Appropriations for INS

and EOIR.—In addition to any other amounts authorized

to be appropriated, in order to carry out this Act there

are authorized to be appropriated to the Department of

Justice

* * *

Sec. 112. Unlawful Transportation of Aliens to the United

States.

(a) Criminal Penalties.—Subsection (a) of section 274

(8 U.S.C. 1324) is amended to read as follows:

“(a) Criminal Penalties.—(1) Any person who—

“(A) knowing that a person is an alien, brings to or

attempts to bring to the United States in any manner what-

soever such person at a place other than a designated port

of entry, or place other than as designated by the Commis-

sioner, regardless of whether such alien has received prior

official authorization to come to, enter, or reside in the

United States and regardless of any future official action

which may be taken with respect to such alien;

“(B) knowing or in reckless disregard of the fact that

an alien has come to, entered, or remains in the United

States in violation of law, transports, or moves or attempts

to transport or move such alien within the United States by

means of transportation or otherwise, in furtherance of

such violation of law;

“(C) knowing or in reckless disregard of the fact that

an alien has come to, entered, or remains in the United

States in violation of law, conceals, harbors, or shields from

detection, or attempts to conceal, harbor, or shield from

detection, such alien in any place, including any building

or any means of transportation; or

“(D) encourages or induces an alien to come to, enter,

or reside in the United States, knowing or in reckless dis-

regard of the fact that such coming to, entry, or residence

is or will be in violation of law,

shall be fined in accordance with title 18, United

States Code, imprisoned not more than five years, or both,

for each alien in respect to whom any violation of this sub-

section occurs.

“(2) Any person who, knowing or in reckless disregard

of the fact that an alien has not received prior official

authorization to come to, enter, or reside in the United

States, brings to or attempts to bring to the United States

in any manner whatsoever, such alien, regardless of any

official action which may later be taken with respect to

such alien shall, for each transaction constituting a viola-

tion of this paragraph, regardless of the number of aliens

involved—

“(A) be fined in accordance with title 18, United

States Code, or imprisoned not more than one year, or

both; or

“(B) in the case of—

“(i) a second or subsequent offense,

“(ii) an offense done for the purpose of commercial

advantage or private financial gain, or

“(iii) an offense in which the alien is not upon arrival

immediately brought and presented to an appropriate

immigration officer at a designated port of entry, be fined

in accordance with title 18, United States Code, or impris-

oned not more than five years, or both.”

* * *

Sec. 115. Enforcement of the Immigration Laws of the

United States.

It is the sense of the Congress that—

(1) the immigration laws of the United States should

be enforced vigorously and uniformly, and

(2) in the enforcement of such laws, the Attorney

General shall take due and deliberate actions necessary to

safeguard the constitutional rights, personal safety, and

human dignity of United States citizens and aliens.

Sec. 116. Restricting Warrantless Entry in the Case of

Outdoor Agricultural Operations.

* * *

(a), an officer or employee of the Service may not

enter without the consent of the owner (or agent thereof)

or a properly executed warrant onto the premises of a farm

or other outdoor agricultural operation for the purpose of

interrogating a person believed to be an alien as to the per-

son’s right to be or to remain in the United States.”

* * *

Approved November 6, 1986.

1756 ERA 10: Contemporary United States

Source:

Statutes at Large, 1986, Vol. 100, pp. 3,359–3,445.

Equal Employment Opportunity

Commission, Guidelines on

Discrimination Because of Sex, 1990

In a 1990 update of its guidelines, the Equal Employment

Opportunity Commission defined sexual harassment as “un-

welcome sexual advances, requests for sexual favors, and

other verbal or physical conduct of a sexual nature.” Behav-

ior is considered harassment when submission to sexual

advances is made a condition of employment, or when job

decisions, such as promotion or demotion, are based on

the acceptance or rejection of such advances. Harassment

may also result from behavior that “unreasonably” interferes

with work performance, or creates a “hostile working envi-

ronment.”

The guidelines held that employers are responsible for

the actions of any of their agents or supervisors, as well as

non-employees, who come into contact with employees on a

regular basis. Regardless of whether employers allow or for-

bid the behavior, or if “the employer knew or should have

known” about the offending behavior, those employers are

held responsible unless they can prove that they took “imme-

diate” steps to correct the offense. In addition, if other em-

ployees have been passed over for benefits or promotions in

favor of an individual who granted sexual favors to an em-

ployer, those employees denied benefits may hold the em-

ployer responsible.

The Commission urged employers to educate their work-

ers about what constitutes sexual harassment and what to do

if they are confronted with such behavior. This last directive

led to the establishment of training programs and the imple-

mentation of grievance procedures across the country.

These guidelines reached the Supreme Court in two

1998 cases,

Burlington Industries v. Ellerth

(524 U.S. 722)

and

Faragher v. City of Boca Raton

(524 U.S. 775). On June

26, 1998 the U.S. Supreme Court in

Burlington Industries v.

Ellerth

(524 U.S. 722) and

Faragher v. City of Boca Raton

(524 U.S. 775) clarified the conditions for sexual harassment

liability in the workplace. Kimberly Ellerth, a former

employee of Burlington Industries, had allegedly received

unsolicited sexual advances from her supervisor. In October

1994 Ellerth filed a sexual harassment suit against Burlington

Industries that led the Court to address the issue of “whether

. . . an employee who refuses the unwelcome and threaten-

ing sexual advances of a supervisor, yet suffers no adverse,

tangible job consequences, can recover against the

employer.” The majority opinion ruled in favor of the plain-

tiff, stating that the harassment Ellerth experienced amounted

to gender discrimination as defined by Title VII of the Civil

Rights Act of 1964.

Faragher

also dealt with inadequate supervision regarding

sexual harassment. Beth Ann Faragher, a former lifeguard

employed by the Boca Raton Parks and Recreation Depart-

ment, was sexually harassed by her supervisor. Faragher’s case

forced the Court to examine the specific question of whether

an employer may be held liable “for the acts of a supervisory

employee whose sexual harassment of subordinates has cre-

ated a hostile work environment amounting to employment

discrimination.” In his majority opinion, Justice David Souter

stated that, under Title VII of the Civil Rights Act of 1964, sex-

ual harassment amounts to discrimination and that the city

had not done an adequate job disseminating its sexual harass-

ment policy among its employees. Furthermore, the city had

failed to sufficiently monitor the conduct of its supervisors.

Souter summarized the ruling by saying, “We hold that an

employer is vicariously liable for actionable discrimination

caused by a supervisor, but subject to an affirmative defense

looking to the reasonableness of the employer’s conduct as

well as that of a plaintiff victim.” Title VII would not apply if

the defense could prove that the employer had addressed an

employee’s sexual harassment accusation.

________________________

_______________________

a) Harassment on the basis of sex is a violation of Sec.

703 of Title VII.

Unwelcome sexual advances, requests for

sexual favors, and other verbal or physical conduct of a sex-

ual nature constitute sexual harassment when (1) submis-

sion to such conduct is made either explicitly or implicitly

a term or condition of an individual’s employment, (2) sub-

mission to or rejection of such conduct by an individual is

used as the basis for employment decisions affecting such

individual, or (3) such conduct has the purpose or effect of

unreasonably interfering with an individual’s work perfor-

mance or creating an intimidating, hostile, or offensive

working environment.

(b) In determining whether alleged conduct consti-

tutes sexual harassment, the Commission will look at the

record as a whole and at the totality of the circumstances,

such as the nature of the sexual advances and the context

in which the alleged incidents occurred. The determina-

tion of the legality of a particular action will be made from

the facts, on a case by case basis.

employer, employment agency, joint apprenticeship com-

mittee or labor organization (hereinafter collectively

referred to as “employer”) is responsible for its acts and

those of its agents and supervisory employees with

respect to sexual harassment regardless of whether the

specific acts complained of were authorized or even for-

bidden by the employer and regardless of whether the

Social Developments 1757

employer knew or should have known of their occur-

rence. The Commission will examine the circumstances

of the particular employment relationship and the job

functions performed by the individual in determining

whether an individual acts in either a supervisory or

agency capacity.

(d) With respect to conduct between fellow employ-

ees, an employer is responsible for acts of sexual harass-

ment in the workplace where the employer (or its agents

or supervisory employees) knows or should have known of

the conduct, unless it can show that it took immediate cor-

rective action.

(e) An employer may also be responsible for the acts

of nonemployees, with respect to sexual harassment of

employees in the workplace, where the employer (or its

agents or supervisory employees) knows or should have

known of the conduct and fails to take immediately and

appropriate corrective action. In reviewing these cases the

Commission will consider the extent of the employer’s

control and any other legal responsibility which the

employer may have with respect to the conduct of such

non-employees.

(f) Prevention is the best tool for the elimination of

sexual harassment. An employer should take all steps nec-

essary to prevent sexual harassment from occurring, such

as affirmatively raising the subject, expressing strong dis-

approval, developing appropriate sanctions, informing

employees of their right to raise and how to raise the issue

of harassment under Title VII, and developing methods to

sensitize all concerned.

(g) Other related practices: Where employment

opportunities or benefits are granted because of an indi-

vidual’s submission to the employer’s sexual advances or

request for sexual favors, the employer may be held liable

for unlawful sex discrimination against other persons who

were qualified for but denied that employment opportu-

nity or benefit.

The principles involved here continue to apply to race, color,

religion or national origin.

Source:

U.S. Equal Employment Opportunity Commission. Available on-

line. URL: www.eeoc.gov/policy/index.html. Accessed

December 2003.

President George H. W. Bush’s Remarks on

the Americans with Disabilities Act, 1990

The Americans with Disabilities Act (ADA), prohibiting dis-

crimination in employment, public accommodations, or trans-

portation against people with a physical or mental disability,

was enacted July 26, 1990. It defined disability as any condi-

tion that “substantially limits” a major life activity such as see-

ing or walking. It applied to alcoholics and drug users who

were undergoing treatment for their addictions and by a 1998

Supreme Court decision, it included AIDS. Employers were

forbidden to refuse to hire or promote a disabled job applicant

or worker and were required to make “reasonable accommo-

dations” for all disabled employees. Exemptions would be

permitted only if an employer could show that the require-

ments would impose an “undue hardship.” Telecommunica-

tions companies and all transit carriers—railroads, bus lines,

mass transit systems, and school buses—were required to

make their services accessible to the disabled. Newly con-

structed or renovated buildings were also required to be ac-

cessible by the disabled. Existing buildings were exempt from

making any modifications that were not “readily achievable.”

Albertson v. Kirkingburg

(527 U.S. 555), one of three

June 1999 decisions limiting the scope of ADA, the U.S.

Supreme Court ruled unanimously in favor of the employer of

a truck driver, Hallie Kirkingburg, who was dismissed from his

job because he had limited vision in one eye but had been

certified erroneously as meeting federal requirements for com-

mercial driving. When his employer discovered Kirkingburg’s

true visual capacity, he was fired. The Court’s decision nar-

rowed the circumstances in which an employee’s dismissal

could be called discriminatory, subject to protection under the

ADA. Moreover, it outlined the Court’s definition of disability.

In his majority opinion, Justice David Souter asserted that the

ADA did not require the company to relax its adherence to

federal safety standards in order to employ Kirkingburg as a

driver.

________________________

_______________________

* * *

This is an immensely important day, a day that belongs to

all of you. Everywhere I look, I see people who have ded-

icated themselves to making sure that this day would come

to pass: my friends from Congress, as I say, who worked so

diligently with the best interest of all at heart, Democrats

and Republicans; members of this administration—and

I’m pleased to see so many top officials and members of

my Cabinet here today who brought their caring and

expertise to this fight; and then, the organizations—so

many dedicated organizations for people with disabilities,

who gave their time and their strength; and perhaps most

of all, everyone out there and others—across the breadth

of this nation are 43 million Americans with disabilities.

You have made this happen. All of you have made this hap-

pen. To all of you, I just want to say your triumph is that

your bill will now be law, and that this day belongs to you.

On behalf of our nation, thank you very, very much.

1758 ERA 10: Contemporary United States

Three weeks ago we celebrated our nation’s Indepen-

dence Day. Today we’re here to rejoice in and celebrate

another “Independence Day,” one that is long overdue.

With today’s signing of the landmark Americans for Dis-

abilities Act, every man, woman, and child with a disability

can now pass through once-closed doors into a bright new

era of equality, independence and freedom. As I look

around at all these joyous faces, I remember clearly how

many years of dedicated commitment have gone into mak-

ing this historic new civil rights act a reality. It’s been the

work of a true coalition, a strong and inspiring coalition of

people who have shared both a dream and a passionate

determination to make that dream come true. It’s been a

coalition in the finest spirit: a joining of Democrats and

Republicans, of the legislative and the executive branches,

of Federal and State agencies, of public officials and pri-

vate citizens, of people with disabilities and without.

This historic act is the world’s first comprehensive

declaration of equality for people with disabilities—the

first. Its passage has made the United States the interna-

tional leader on this human rights issue. Already, leaders of

several other countries, including Sweden, Japan, the

Soviet Union, and all 12 members of the EEC (European

Economic Community), have announced that they hope to

enact now similar legislation.

Our success with this act proves that we are keeping

faith with the spirit of our courageous forefathers who

wrote in the Declaration of Independence: “We hold these

truths to be self-evident, that all men are created equal,

that they are endowed by their Creator with certain

unalienable rights.” These words have been our guide for

more than two centuries as we’ve labored to form our

more perfect union. But tragically, for too many Ameri-

cans, the blessings of liberty have been limited or even

denied. The Civil Rights Act of ‘64 took a bold step

towards righting that wrong. But the stark fact remained

that people with disabilities were still victims of segrega-

tion and discrimination, and this was intolerable. Today’s

legislation brings us closer to that day when no Americans

will ever again be deprived of their basic guarantee of life,

liberty, and the pursuit of happiness.

This act is powerful in its simplicity. It will ensure that

people with disabilities are given the basic guarantees for

which they have worked so long and so hard: indepen-

dence, freedom of choice, control of their lives, the

opportunity to blend fully and equally into the rich mosaic

of the American mainstream. Legally, it will provide our

disabled community with a powerful expansion of protec-

tions and then basic civil rights. It will guarantee fair and

just access to the fruits of American life which we all must

be able to enjoy. And then, specifically, first the ADA

ensures that employers covered by the act cannot dis-

criminate against qualified individuals with disabilities.

Second, the ADA ensures access to public accommoda-

tions such as restaurants, hotels, shopping centers and

offices. And third, the ADA ensures expanded access to

transportation services. And fourth, the ADA ensures

equivalent telephone services for people with speech or

hearing impediments.

These provisions mean so much to so many. To one

brave girl in particular, they will mean the world. Lisa Carl,

a young Washington State woman with cerebral palsy, who

I’m told is with us today, now will always be admitted to

her hometown theater. Lisa, you might not have been wel-

come at your theater, but I’ll tell you—welcome to the

White House. We’re glad you’re here. The ADA is a dra-

matic renewal not only for those with disabilities but for all

of us, because along with the precious privilege of being an

American comes a sacred duty to ensure that every other

American’s rights are also guaranteed.

Together, we must remove the physical barriers we

have created and the social barriers that we have accepted.

For ours will never be a truly prosperous nation until all

within it prosper. For inspiration, we need look no further

than our own neighbors. With us in that wonderful crowd

out there are people representing 18 of the daily Points of

Light that I’ve named for their extraordinary involvement

with the disabled community. We applaud you and your

shining example. Thank you for your leadership for all that

are here today.

Now, let me just tell you a wonderful story, a story

about children already working in the spirit of the ADA—

a story that really touched me. Across the Nation, some

10,000 youngsters with disabilities are part of Little

League’s Challenger Division. Their teams play just like

others, but—and this is the most remarkable part—as they

play, at their sides are volunteer buddies from conven-

tional Little League teams. All of these players work

together. They team up to wheel around the bases and to

field grounders together and, most of all, just to play and

become friends. We must let these children be our guides

and inspiration.

I also want to say a special word to our friends in the

business community. You have in your hands the key to the

success of this act, for you can unlock a splendid resource

of untapped human potential that, when freed, will enrich

us all. I know there have been concerns that the ADA may

be vague or costly, or may lead endlessly to litigation. But

I want to reassure you right now that my administration

and the United States Congress have carefully crafted this

Act. We’ve all been determined to ensure that it gives flex-

ibility, particularly in terms of the timetable of implemen-

tation, and we’ve been committed to containing the costs

that may be incurred.

Social Developments 1759

This act does something important for American busi-

ness, though—and remember this: You’ve called for new

sources of workers. Well, many of our fellow citizens with

disabilities are unemployed. They want to work, and they

can work, and this is a tremendous pool of people. And

remember, this is a tremendous pool of people who will

bring to jobs diversity, loyalty, proven low turnover rate,

and only one request: the chance to prove themselves. And

when you add together Federal, State, local, and private

funds, it costs almost $200 billion annually to support

Americans with disabilities—in effect, to keep them inde-

pendent. Well, when given the opportunity to be indepen-

dent, they will move proudly into the economic

mainstream of American life, and that’s what this legisla-

tion is all about.

Our problems are large, but our unified heart is

larger. Our challenges are great, but our will is greater.

And in our America, the most generous, optimistic nation

on the face of the Earth, we must not and will not rest

until every man and woman with a dream has the means

to achieve it.

And today, America welcomes into the mainstream of

life all of our fellow citizens with disabilities. We embrace

you for your abilities and for your disabilities, for our sim-

ilarities and indeed for our differences, for your past

courage and your future dreams. Last year, we celebrated

a victory of international freedom. Even the strongest per-

son couldn’t scale the Berlin Wall to gain the elusive

promise of independence that lay just beyond. And so,

together we rejoiced when that barrier fell.

And now I sign legislation which takes a sledgeham-

mer to another wall, one which has for too many genera-

tions separated Americans with disabilities from the

freedom they could glimpse, but not grasp. Once again, we

rejoice as this barrier falls for claiming together we will not

accept, we will not excuse, we will not tolerate discrimina-

tion in America.

With, again, great thanks to the Members of the

United States Senate, leaders of whom are here today, and

those who worked so tirelessly for this legislation on both

sides of the aisles. And to those Members of the House of

Representatives with us here today, Democrats and

Republicans as well, I salute you. And on your behalf, as

well as the behalf of this entire country, I now lift my pen

to sign this Americans with Disabilities Act and say: Let

the shameful wall of exclusion finally come tumbling

down. God bless you all.

Source:

Public Papers of the Presidents of the United States: George H. W.

Bush, 1990. Washington, D.C.: Government Printing

Office, 1992.

Family and Medical Leave Act, 1993

Most industrial countries give regular paid leave for months,

even years, to handle such events as the birth of a child.

Congress objected to such provisions as socialistic. However,

on February 5, 1993, President Bill Clinton signed this law

requiring businesses that employ 50 or more people to grant

their employees up to 12 weeks of unpaid leave annually for

family and medical emergencies. The family leave issue had

gained momentum during the 1992 presidential election sea-

son, when Democrat Bill Clinton reminded voters that Presi-

dent George H. W. Bush had vetoed Democrat-sponsored

family leave bills. An employer would have to continue to fur-

nish health care coverage during the leave. Moreover, the

company must guarantee an employee the same job or an

equivalent position when he or she returned to work. The leg-

islation included a section on “Findings and Purposes,” in

which lawmakers outlined the rationale for federal action to

balance workplace demands with the needs of families.

________________________

_______________________

AN ACT

To grant family and temporary medical leave under certain

circumstances.

Title I—General Requirements for Leave

Sec. 102. Leave Requirement.

(a) In General.—

(1) Entitlement to leave. . . . An eligible employee

shall be entitled to a total of 12 workweeks of leave during

any 12-month period for one or more of the following:

(A) Because of the birth of a son or daughter of the

employee and in order to care for such son or daughter.

(B) Because of the placement of a son or daughter

with the employee for adoption or foster care.

or parent, of the employee, if such spouse, son, daughter,

or parent has a serious health condition.

(D) Because of a serious health condition that makes

the employee unable to perform the functions of the posi-

tion of such employee.

(2) Expiration of entitlement. The entitlement to

leave under subparagraphs (A) and (B) of paragraph (1) for

a birth or placement of a son or daughter shall expire at the

end of the 12-month period beginning on the date of such

birth or placement.

(b) Leave Taken Intermittently or on a Reduced

Leave Schedule.—

(1) In general. Leave under subparagraph (A) and (B)

of subsection (a)(1) shall not be taken by an employee inter-

mittently or on a reduced leave schedule unless the

employee and the employer of the employee agree other-

wise. Subject to paragraph (2), subsection (e)(2), and section

1760 ERA 10: Contemporary United States

103(b)(5), leave under subparagraph (C) or (D) of subsec-

tion (a)(1) may be taken intermittently or on a reduced leave

schedule when medically necessary. The taking of leave

intermittently or on a reduced leave schedule pursuant to

this paragraph shall not result in a reduction in the total

amount of leave to which the employee is entitled under

subsection (a) beyond the amount of leave actually taken.

(2) Alternative position. If an employee requests inter-

mittent leave, or leave on a reduced leave schedule, under

subparagraph (C) and (D) of subsection (a)(1), that is fore-

seeable based on planned medical treatment, the

employer may require such employee to transfer tem-

porarily to an available alternative position offered by the

employer for which the employee is qualified and that—

(A) has equivalent pay and benefits; and

(B) better accommodates recurring periods of leave

than the regular employment position of the employee.

subsection (d), leave granted under subsection (a) may

consist of unpaid leave. Where an employee is otherwise

exempt under regulations issued by the Secretary pursuant

to section 13(a)(1) of the Fair Labor Standards Act of 1938

(29 U.S.C. 213(a)(1)), the compliance of an employer with

this title by providing unpaid leave shall not affect the

exempt status of the employee under such section.

(d) Relationship to Paid Leave.—

(1) Unpaid leave. If an employer provides paid leave

for fewer than 12 workweeks, the additional weeks of leave

necessary to attain the 12 workweeks of leave required

under this title may be provided without compensation.

(2) Substitution of paid leave.—

(A) In general. An eligible employee may elect, or an

employer may require the employee, to substitute any of

the accrued paid vacation leave, personal leave, or family

leave of the employee for leave provided under subpara-

graph (A), (B), or (C) of subsection (a)(1) for any part of

the 12-week period of such leave under such subsection.

(B) Serious health condition. An eligible employee

may elect, or an employer may require the employee, to

substitute any of the accrued paid vacation leave, personal

leave, or medical or sick leave of the employee for leave

provided under subparagraph (C) or (D) of subsection

(a)(1) for any part of the 12-week period of such leave

under such subsection, except that nothing in this title

shall require an employer to provide paid sick leave or paid

medical leave in any situation in which such employer

would not normally provide any such paid leave.

(e) Foreseeable Leave.—

(1) Requirement of notice. In any case in which the

necessity for leave under subparagraph (A) or (B) of sub-

section (a)(1) is foreseeable based on an expected birth or

placement, the employee shall provide the employer with

not less than 30 days’ notice, before the date the leave is to

begin, of the employee’s intention to take leave under such

subparagraph, except that if the date of the birth or place-

ment requires leave to begin in less than 30 days, the

employee shall provide such notice as is practicable.

(2) Duties of employee. In any case in which the

necessity for leave under subparagraph (C) or (D) of sub-

section (a)(1) is foreseeable based on planned medical

treatment, the employee—

(A) shall make a reasonable effort to schedule the

treatment so as not to disrupt unduly the operations of the

employer, subject to the approval of the health care

provider of the employee or the health care provider of the

son, daughter, spouse, or parent of the employee, as appro-

priate; and

(B) shall provide the employer with not less than 30

days’ notice, before the date the leave is to begin, of the

employee’s intention to take leave under such subpara-

graph, except that if the date of the treatment requires

leave to begin in less than 30 days, the employee shall pro-

vide such notice as is practicable.

(f) Spouses Employed by the Same Employer. In any

case in which a husband and wife entitled to leave under

subsection (a) are employed by the same employer, the

aggregate number of workweeks of leave to which both

may be entitled may be limited to 12 workweeks during

any 12-month period, if such leave is taken—

(1) under subparagraph (A) or (B) of subsection (a)(1);

(2) to care for a sick parent under subparagraph (C) of

such subsection.

* * *

Sec. 104. Employment and Benefits Protection.

(a) Restoration to Position.—

(1) In general. Except as provided in subsection (b),

any eligible employee who takes leave under section 102

for the intended purpose of the leave shall be entitled, on

return from such leave—

(A) to be restored by the employer to the position of

employment held by the employee when the leave com-

menced; or

(B) to be restored to an equivalent position with

equivalent employment benefits, pay, and other terms and

conditions of employment.

(2) Loss of benefits. The taking of leave under section

102 shall not result in the loss of any employment benefit

accrued prior to the date on which the leave commenced.

(3) Limitations. Nothing in this section shall be con-

strued to entitle any restored employee to—

(A) the accrual of any seniority or employment bene-

fits during any period of leave; or

Social Developments 1761