Also known as: facial discrimination · facially discriminate · facially discriminates · facially discriminated
Written by attorneys — see sources below.
A statute, regulation, or policy that on its face draws an explicit distinction between groups based on a prohibited characteristic or criterion.
Floyd Franklin, an out-of-state supplier, challenged State A's complete prohibition on importing live baitfish from other states. The statute applied only to out-of-state shipments and left local trappers unregulated. The court upheld the ban after finding it served a legitimate ecological interest with no adequate nondiscriminatory alternative.
Frank Fisher, a plant manager at Fairfield Bank, enforced a rule barring only fertile female employees from lead-exposure areas. Male employees faced no comparable restriction despite similar reproductive risks. The policy's text created an express sex-based classification that triggered strict scrutiny under Title VII.
Johnson Controls, Inc. manufactures batteries. The manufacturing process uses lead as a primary ingredient. Occupational exposure to lead creates health risks, including potential harm to a fetus carried by a female employee. Before the Civil Rights Act of 1964, the company employed no women in battery-manufacturing jobs. In June 1977, Johnson Controls announced its first official policy on employment of women in lead-exposure work. The policy stated that protection of the health of the unborn child is the responsibility of prospective parents. It also stated that it would be illegal discrimination to treat all women capable of pregnancy as though they will become pregnant. The 1977 policy required a woman seeking consideration for employment to sign a statement. The statement acknowledged evidence that women exposed to lead have a higher rate of abortion. It advised that it was medically good sense not to run that risk if she wanted children. Five years later in 1982, after eight employees became pregnant between 1979 and 1983 while maintaining blood lead levels in excess of 30 micrograms per deciliter, Johnson Controls adopted a new policy. The new policy excluded women who were pregnant or capable of bearing children from jobs involving lead exposure. It also excluded them from jobs that could expose them through bidding, bumping, transfer or promotion rights. The 1982 policy defined women capable of bearing children as all women except those whose inability to bear children is medically documented. It applied to any work station where an employee had recorded a blood lead level over 30 micrograms per deciliter. It also applied where the site had yielded an air sample exceeding 30 micrograms per cubic meter over the past year. In April 1984, the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America and individual plaintiffs filed a class action. The plaintiffs included Mary Craig, who chose sterilization to avoid losing her job. Elsie Nason was a 50-year-old divorcee transferred out of a lead-exposed job with loss of compensation. Donald Penney was denied a leave of absence to lower his lead level because he intended to become a father. The suit was filed in the United States District Court for the Eastern District of Wisconsin. The District Court certified a class of all past, present and future production and maintenance employees in UAW bargaining units at nine Johnson Controls plants. The class consisted of those who have been and continue to be affected by the 1982 Fetal Protection Policy. The District Court granted summary judgment for Johnson Controls. The Court of Appeals for the Seventh Circuit, sitting en banc, affirmed the summary judgment by a 7-to-4 vote. The Supreme Court granted certiorari in 1990.
View caseFarid Farahani, a civil litigant, objected when the opposing party used peremptory challenges to remove all prospective jurors of one race. The strikes rested on the jurors' race alone and required no further justification under the governing rule. The court found the explicit racial criterion violated equal protection.
Thaddeus Donald Edmonson, a black construction worker, was injured in a jobsite accident at Fort Polk, Louisiana, a federal enclave, when a Leesville Concrete Company employee permitted one of the company's trucks to roll backward and pin him against some construction equipment. Edmonson sued Leesville Concrete Company for negligence in the United States District Court for the Western District of Louisiana and invoked his Seventh Amendment right to a trial by jury. During voir dire, Leesville used two of its three peremptory challenges authorized by statute to remove black persons from the prospective jury. Edmonson, who is himself black, requested that the District Court require Leesville to articulate a race-neutral explanation for striking the two jurors, but the District Court denied the request on the ground that Batson does not apply in civil proceedings. As empaneled, the jury included 11 white persons and 1 black person. The jury rendered a verdict for Edmonson, assessing his total damages at $90,000, but attributed 80% of the fault to Edmonson's contributory negligence and awarded him the sum of $18,000. Edmonson appealed, and a divided panel of the Court of Appeals for the Fifth Circuit reversed, holding that Batson applies to private litigants in civil trials. The full court then ordered rehearing en banc and affirmed the judgment of the District Court, holding that a private litigant in a civil case can exercise peremptory challenges without accountability for alleged racial classifications. The Supreme Court granted certiorari to resolve the issue.
View caseFiona Foster's religious group sought to perform animal sacrifices required by its faith. A city ordinance banned the practice while permitting every other form of animal killing. The text singled out the group's religious conduct for prohibition, rendering the law facially discriminatory.
In April 1987 the Church of the Lukumi Babalu Aye, Inc., a not-for-profit corporation organized under Florida law in 1973 whose president is Ernesto Pichardo, leased land in Hialeah, Florida, and announced plans to build a house of worship, school, cultural center, and museum at which members would practice Santeria. Santeria originated in nineteenth-century Cuba as a fusion of Yoruba traditions and Roman Catholicism. It centers on animal sacrifice performed by cutting the carotid arteries, after which the animals are usually cooked and eaten except in healing and death rituals. The announcement prompted the Hialeah City Council to convene an emergency public session on June 9, 1987. At that session residents and council members voiced strong opposition to Santeria practices. The council then adopted Resolution 87-66 declaring opposition to religious acts inconsistent with public morals, peace, or safety and passed Ordinance 87-40 incorporating Florida's animal-cruelty statute that criminalizes unnecessary or cruel killing of animals. After the Florida attorney general issued an opinion that ritual animal sacrifice other than for food consumption violated state law, the council in August 1987 adopted Resolution 87-90 opposing ritual animal sacrifice. In September 1987 the council enacted three further ordinances. Ordinance 87-52 barred possession of animals with intent to use them for ritual sacrifice except by licensed food establishments. Ordinance 87-71 directly prohibited any person from sacrificing an animal within city limits. Ordinance 87-72 restricted slaughter of animals to properly zoned slaughterhouse premises while exempting small-scale commercial hog and cattle operations. The Church and Pichardo filed suit against the city and its officials in the United States District Court for the Southern District of Florida under 42 U.S.C. § 1983. They alleged that the ordinances violated their rights under the Free Exercise Clause. After granting summary judgment to the individual defendants on immunity grounds, the district court conducted a nine-day bench trial on the remaining claims and entered judgment for the city. The Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph per curiam opinion. The Supreme Court granted certiorari.
View caseFinn Fletcher applied for state playground resurfacing funds on behalf of his church. The program awarded grants to all nonprofit applicants except those affiliated with religious entities. The eligibility rule expressly disqualified religious organizations on the basis of their religious status.
The Trinity Lutheran Church Child Learning Center is a preschool and daycare center open year-round in Boone County, Missouri. It was established as a nonprofit in 1980. The Center merged with Trinity Lutheran Church in 1985 and operates on church property. It admits students of any religion with an enrollment of about ninety children ages two to five. In 2012 the Center applied to Missouri’s Scrap Tire Program. The program is run by the Department of Natural Resources. It offers competitive reimbursement grants to qualifying nonprofits for installing playground surfaces made from recycled tires. The Center sought funds to replace its coarse pea gravel surface with a pour-in-place rubber surface. The Center disclosed in its application that it was a ministry of the Church whose mission included allowing a child to grow spiritually. The Center ranked fifth among forty-four applicants. The Department maintained a strict policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity. The Department rejected the application in a letter explaining that Article I, Section 7 of the Missouri Constitution barred providing financial assistance directly to a church. The Department ultimately awarded fourteen grants that year. Trinity Lutheran Church sued the Director of the Department in federal district court. It alleged that the denial of the grant solely because of the applicant’s religious status violated the Free Exercise Clause of the First Amendment. Trinity Lutheran sought declaratory and injunctive relief. The district court granted the Department’s motion to dismiss. It likened the case to Locke v. Davey. The court held that the Free Exercise Clause did not require the State to make funds available under the Scrap Tire Program to religious institutions. A divided panel of the Eighth Circuit affirmed. The court concluded that the State could rely on an applicant’s religious status to deny the application even though awarding the grant would not violate the federal Establishment Clause. Judge Gruender dissented on the ground that Locke did not leave states with unfettered discretion to exclude the religious from generally available public benefits. Rehearing en banc was denied by an equally divided court. The Supreme Court granted certiorari sub nom. Trinity Lutheran Church of Columbia, Inc. v. Pauley.
View caseFarah Fox requested family leave under her state's policy after adopting a child. The statute granted twelve weeks of leave to biological mothers but only six weeks to fathers and adoptive parents. The text created an express sex-based distinction in the amount of protected leave.
William Hibbs worked for the Nevada Department of Human Resources Welfare Division. In April and May 1997, Hibbs sought leave under the FMLA to care for his ailing wife who was recovering from a car accident and neck surgery. The Department granted his request for the full 12 weeks of FMLA leave and authorized him to use the leave intermittently as needed between May and December 1997. Hibbs used the leave until August 5, 1997. In October 1997, the Department informed Hibbs that he had exhausted his FMLA leave, that no further leave would be granted, and that he must report to work by November 12, 1997. Hibbs failed to return to work by that date and was terminated. Hibbs sued the Nevada Department of Human Resources and two of its officers in the United States District Court seeking damages and injunctive and declaratory relief for violations of the FMLA. The District Court awarded summary judgment to the defendants on the grounds that the FMLA claim was barred by the Eleventh Amendment. Hibbs appealed and the United States intervened to defend the validity of the FMLA's application to the States. The Ninth Circuit reversed the District Court's judgment. When it enacted the FMLA, Congress considered evidence including a 1990 Bureau of Labor Statistics survey showing that 37 percent of surveyed private-sector employees were covered by maternity leave policies while only 18 percent were covered by paternity leave policies. Congress also heard testimony that parental leave for fathers is rare and that men receive discriminatory treatment in requests for such leave. A 50-state survey demonstrated that the proportion and construction of leave policies available to public sector employees differs little from those offered private sector employees. Many States offered women extended maternity leave that far exceeded the typical period of physical disability due to pregnancy and childbirth but very few States granted men a parallel benefit. The Supreme Court granted certiorari to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in federal court for violation of the FMLA's family-care provision.
View caseA facially discriminatory measure contains explicit language that distinguishes between groups on a prohibited basis. A facially neutral measure uses criteria that appear evenhanded yet produce unequal effects on protected groups. Courts apply heightened scrutiny to the former and require proof of discriminatory purpose for the latter.
Yes, when the law serves a legitimate non-economic local interest such as protecting ecological resources and no reasonable nondiscriminatory alternatives exist. The state must demonstrate both the importance of the interest and the absence of less restrictive options.
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No. A policy that expressly classifies employees by sex or pregnancy remains facially discriminatory regardless of the employer's asserted protective purpose. Title VII prohibits the facial distinction itself.
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Strict scrutiny applies because the law singles out religious conduct or status for unfavorable treatment. The government must show a compelling interest and narrow tailoring that cannot be achieved by neutral alternatives.
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…common to many by erecting a barrier against the movement of interstate trade. The appellees argue that not all laws which facially discriminate against out-of-state commerce are forbidden protectionist regulations. In particular, they point to quarantine laws, which this Court has repeatedly upheld even though they appear to single…