Also known as:facially discriminatory · facially discriminate · discrimination on its face
Written by attorneys — see sources below.
Explicit classification appearing in the language of a statute, regulation, or policy that distinguishes between groups on a prohibited basis. The distinction triggers the applicable standard of review without need for further proof of intent or effect.
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How its tested
Common Examples
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Baitfish Import Ban Upheld
Harbor State enacted a statute that forbids commercial fishing companies from importing any live baitfish from other states. Atlantic Netters, an interstate fishing company, sued alleging a Dormant Commerce Clause violation. The agency produced studies showing that nonnative bait species could become invasive and that inspections and sterilization were not reliable alternatives. The court upheld the statute because the explicit import prohibition served a legitimate non-economic ecological interest with no workable nondiscriminatory substitute.
Fertile Women Barred from Lead Work
Johnson Controls adopted a policy excluding all fertile women from jobs involving lead exposure. Female employees challenged the policy under Title VII. The company defended the rule as necessary to protect potential fetuses. The Court held the policy facially discriminatory because its text created an explicit sex-based classification regardless of the asserted protective purpose.
International Union, UAW v. Johnson Controls, Inc.499 U.S. 187, 203–04 (1991)
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.
Washington offered college scholarships to qualified students but excluded those pursuing degrees in theology. Davey, a student denied funding for a pastoral studies program, sued claiming religious discrimination. The state defended the exclusion as consistent with its interest in not funding religious instruction. The Court analyzed the explicit textual restriction on theology degrees as facial discrimination subject to review under the Free Exercise Clause.
Locke v. Davey540 U.S. 712 (2004)
The State of Washington established the Promise Scholarship Program in 1999 to assist academically gifted students with postsecondary education expenses. The scholarships are funded through the State's general fund and vary in amount each year, such as $1,125 for the 1999-2000 academic year and $1,542 for 2000-2001.
To qualify, a student must graduate from a Washington high school in the top 15 percent of the class or achieve high standardized test scores, have family income less than 135 percent of the state median, and enroll at least half time in an eligible postsecondary institution in the state.
The program bars students from using the scholarship to pursue a degree in devotional theology, as required by the Washington Constitution. Eligible institutions include accredited private colleges, including religiously affiliated ones, and the institution certifies the student's enrollment and that the student is not pursuing a devotional theology degree. The State does not define the term but interprets it to cover degrees devotional in nature or designed to induce religious faith.
Joshua Davey received a Promise Scholarship and enrolled at Northwest College, a private Christian college affiliated with the Assemblies of God denomination. He planned to pursue a double major in pastoral ministries and business management, a course of study that includes a devotional theology component. After being informed he could not receive the scholarship while pursuing that major, Davey refused to sign a certification form and did not receive the funds.
Davey sued state officials in the United States District Court for the Western District of Washington under 42 U.S.C. § 1983, alleging violations of the Free Exercise, Establishment, Free Speech, and Equal Protection Clauses. The District Court granted summary judgment to the defendants. The Ninth Circuit reversed, and the Supreme Court granted certiorari to review the case.
Abortion Counseling Bar in Federally Funded Clinics
Federal regulations prohibited Title X clinics from providing abortion counseling or referrals. Providers challenged the rules as violating patients' rights to information. The government argued the restrictions merely defined the scope of funded programs. The Court examined the explicit textual prohibition on abortion-related speech as facial discrimination within the funded program.
Rust v. Sullivan500 U.S. 173 (1991)
In 1970, Congress enacted Title X of the Public Health Service Act, 42 U.S.C. §§ 300–300a–6, authorizing the Secretary of Health and Human Services to make grants to public or nonprofit private entities for the establishment and operation of voluntary family planning projects offering a broad range of acceptable and effective family planning methods and services.
After eighteen years of administration, the Secretary in 1988 promulgated new regulations that prohibit Title X projects from engaging in counseling concerning, referrals for, or activities advocating abortion as a method of family planning. The regulations also require such projects to maintain physical and financial separation from any abortion activities. They further forbid the use of project funds for abortion-related activities even if separately funded.
Petitioners, who are Title X grantees and physicians who supervise Title X funds suing on behalf of themselves and their patients, filed two separate actions in federal district court. The actions were later consolidated. Petitioners challenged the facial validity of the regulations and sought declaratory and injunctive relief before the regulations had been applied.
The district court rejected petitioners' statutory and constitutional challenges and granted summary judgment in favor of the Secretary. The Court of Appeals for the Second Circuit affirmed. The Supreme Court granted certiorari to resolve a split among the courts of appeals.
Hialeah enacted ordinances that banned animal sacrifice while permitting other forms of animal killing. The Church of the Lukumi Babalu Aye, whose practices required ritual sacrifice, sued under the Free Exercise Clause. The city claimed the rules addressed public health and cruelty concerns. The Court found the ordinances facially discriminatory because their text singled out religious conduct for prohibition.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993)
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.
Nevada granted family-care leave only to female employees. Male employees denied leave sued under the Equal Protection Clause. The state defended the sex-based limitation as reflecting traditional caregiving roles. The Court treated the statute's explicit gender classification as facial discrimination requiring heightened scrutiny.
Nevada Department of Human Resources v. Hibbs538 U.S. 721 (2003)
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.
How does facial discrimination differ from discriminatory application?
Facial discrimination exists when the statute's own text draws an explicit classification. Discriminatory application occurs when a facially neutral law is enforced in a way that targets a protected group. Courts apply the appropriate level of scrutiny once facial discrimination is identified without further inquiry into motive.
What standard of review applies once facial discrimination is shown?
The classification on the face of the law determines the standard. Racial classifications trigger strict scrutiny. Gender classifications trigger intermediate scrutiny. Other classifications receive rational basis review unless a fundamental right is involved.
Can a facially discriminatory law survive Dormant Commerce Clause review?
Yes, but only if the state proves the law serves a legitimate and important non-economic local interest and no reasonable nondiscriminatory alternatives exist. Protection of ecological resources has been accepted as such an interest when inspections and sterilization prove ineffective.
Supporting sources
Does a benign purpose excuse facial discrimination under Title VII?
No. A policy that explicitly excludes women from certain jobs is facially discriminatory even if adopted to protect fetuses. The employer must satisfy the narrow BFOQ defense rather than the more lenient business necessity test.
facial discrimination
against religion. The Court's holding is limited to training the clergy, but its logic is readily extendible. If the public's freedom of conscience can be invoked to justify denial of…