Nomination Watch

Eighth Circuit: Doctor’s office is no place for politics

In a 2-1 ruling, the Eighth Circuit has protected the free speech rights of doctors and the right to choose of their patients by halting the enforcement of a South Dakota law that would have commandeered the doctor-patient relationship in the service of an ideological agenda. The 2005 law requires doctors performing abortions to tell their patients that the procedure will “terminate the life of a whole, separate, unique, living human being” and that the patient has “an existing relationship with that unborn human being.” Doctors who refuse to make these “disclosures” could face criminal prosecution. After Planned Parenthood brought suit, the district court issued a preliminary injunction against the law, saying that the state cannot require doctors to “espouse the state’s theology.”

Reviewing the district court’s injunction, Eighth Circuit Judges Diana Murphy (appointed by President Clinton) and Michael Molloy (appointed by President G.W. Bush) agreed that the doctors were likely to succeed in proving that the law violated their First Amendment rights against compelled speech.  The Court stated that the law “does little to promote independent decision making and may actually exacerbate any adverse psychological consequences of the procedure.” Judge Raymond Gruender (also appointed by President G.W. Bush) dissented, actually stating that the disclosure was truthful, non-misleading and non-ideological on its face. Fortunately, Judge Gruender’s version of the truth didn’t carry the day in this case.

Victory in the 6th Circuit: something to cheer about in Michigan

Today, the 6th Circuit Court of Appeals reaffirmed a decision finding that the Michigan High School Athletic Association (MHSAA) discriminates against female high school athletes by scheduling only their sports in nontraditional and less advantageous seasons, in violation of the U.S. Constitution and Title IX.  The National Women's Law Center’s Co-President Marcia Greenberger had this to say about the ruling, “After eight long years, Michigan girls can finally cheer. The court has once again ruled that the facts and the law are on the side of Michigan high school girls.  MHSAA must stop forcing these girls to play second string and instead ensure that they have the athletic opportunities they deserve.” To read the full press release go here.

Fourth Circuit: sticks and stones may break your bones, but hearing African Americans called “black monkeys” is no big deal – and if you complain about it, you can be fired!

This week, a divided panel of the Fourth Circuit reaffirmed its previous decision throwing out a case brought by an African American employee of IBM who was fired after complaining to his supervisors that a co-worker, in the office, had referred to African Americans as “black monkeys.”  The court of appeals originally decided the case in May, then vacated its ruling and granted rehearing by the same panel in July, causing some observers (like us!) to hope that it had had a change of heart and would allow the claim to go forward.  No such luck.  The same majority, over the same vigorous dissent, has now reaffirmed the dismissal of the case.

Here’s what the plaintiff alleged in Jordan v. Alternative Resources Corporation.  Robert Jordan, an African-American employee, was watching a news report on the office television about the capture of the two alleged Washington, DC-area snipers when a fellow employee exclaimed, “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f-k them.”  He also learned that the same co-worker had made similar comments to other employees on many occasions in the past.  Not surprisingly, Jordan was offended and complained to his supervisors.  He was then given a less desirable work shift and had his workload increased, and – less than a month later after complaining – he was fired.  Jordan sued under Title VII of the Civil Rights Act, which prohibits not only race and sex discrimination in the workplace, but also retaliation by an employer for complaining of discrimination.   But two of three members of the Fourth Circuit panel (Judges Neimeyer and Widener) ruled that his claim could not even go forward to a jury.

To win on a retaliation claim, a plaintiff has to show only that he or she reasonably believed that the conduct complained of violates Title VII – in this case, because there was a racially hostile environment in the workplace.  The majority opined that no objectively reasonable person could have believed that a hostile work environment existed or might develop if unchecked.  In contrast, dissenting Judge Robert King understood the deep bigotry the comments in question would convey to a reasonable African American listener, and concluded that it was “entirely reasonable for Jordan to believe that, in reporting the racially charged ‘black monkeys’ comment to his employers, he was opposing a racially hostile work environment.”  Judge King also criticized the majority for ignoring the Supreme Court’s recent directive in Burlington Northern v. White that Title VII’s anti-retaliation provision be broadly construed.

As Judge King noted, the ramifications of the Fourth Circuit’s opinion in this case will extend far beyond Robert Jordan.  This ruling means that employees (in the Fourth Circuit states) who confront harassing conduct – not only racial harassment, as in this case, but also sexual harassment or other discrimination – have to decide between reporting the offensive incidents to their supervisors and thereby risking retaliation (as Jordan did), or keeping quiet and enduring an abusive or degrading workplace.   As Judge King put it, they have to choose between “their livelihoods and their dignity.”  No one should have to put up with such an untenable choice.  Moreover, to the extent this ruling deters employees from complaining about early signs of a hostile environment, it will make it harder for management to act quickly and prevent escalation of the problem.  Too bad that even after rehearing, these basic principles were lost on the majority of this Fourth Circuit panel.

Judge to domestic violence victim: Get out of my courtroom or I'll deport you!

Any domestic violence victim who goes to court for a restraining order against her batterer is in a dangerous situation, and victims who also happen to be immigrants have even more at risk, especially if they are depending on an abusive spouse to obtain legal residency.  The last thing a woman in this position needs is to be threatened with deportation by the court she turns to for help.  But this is exactly what happened to Aurora Gonzalez when she entered the courtroom of Los Angeles Superior Court Judge Pro Tem Bruce Fink on July 14.

As reported in the Los Angeles Times, Ms. Gonzalez, who had moved into a domestic violence shelter, went to court for protection from the abuse of her husband.  Judge Fink’s response?  He asked if she was a legal immigrant, and when she said no, he warned her to either leave his courtroom by the time he counted to 20 or risk arrest and deportation to Mexico.  Then he started counting!  Ms. Gonzalez left the courtroom and her case was dismissed.  Two days later, the LA Times – noting that experts said Fink had no authority as a state judge to order an arrest for violation of federal immigration law -- reported that Fink, a family law attorney, was dropped from the roster of lawyers who can be used as substitute judges.  Fink has not acknowledged that he did anything wrong and said that all he “saw was nothing more than some yelling and screaming between a husband and wife…[and] that they really didn’t want to not be together anymore.” Thankfully, Aurora Gonzalez resubmitted her request for a restraining order and it was granted.

Supreme Court to review Eleventh Circuit decision giving the ok to employers who underpay working women

At the tail end of its Term, the Supreme Court announced that it will review a ruling of the Eleventh Circuit in Ledbetter v. Goodyear Tire & Rubber Co., Inc., in which the court of appeals threw out a jury verdict in favor of a woman who alleged sex discrimination under Title VII because she was paid less than her male counterparts.  Lilly Ledbetter worked at a Goodyear tire manufacturing plant in Alabama for about 19 years – one of only three women managers at the plant during that whole time.  While she worked at the plant, Ledbetter was told that “the plant did not need women” and that women “caused problems.”  All three women were paid less than the male managers, and at the end of her time at the plant, Ledbetter’s salary was more than 20 percent lower than the lowest-paid male with equivalent experience in her job position.  This was enough for a jury to find that Goodyear discriminated against Ledbetter on the basis of sex, but not for a panel of the Eleventh Circuit, including the controversial Bush appointee William Pryor.

Contrary to a 1986 Supreme Court decision finding that each discriminatory paycheck is unlawful regardless of when the discrimination began – and the rulings of several other Circuit Courts as well -- the Eleventh Circuit panel ruled that a court could look no further into the past than the employer’s most recent pay decision.  While the court did not question that Ms. Ledbetter’s lower salary was the result of earlier sex discrimination, it concluded that the evidence was not sufficient to show that her most recent denials of a raise had been based on her sex.  And because Ms. Ledbetter had missed the deadline for filing a complaint with the EEOC on the earlier discrimination, the court wiped out the jury verdict.

On the one hand, the Supreme Court’s decision to hear this case is good news because it is an opportunity to reverse a bad Eleventh Circuit decision. On the other hand, it is worrisome if the newly constituted Court, with Chief Justice Roberts and Justice Alito, decides to revisit the Court’s 1986 decision in favor of victims of discriminatory pay disparities and finds a way to disregard or undermine that precedent.  Stay tuned for more on this case as it’s briefed and argued in the Supreme Court Term that begins in October.

A Sobering Lesson from Burlington Northern: the Power of the Lower Courts

Although we are pleased with the Supreme Court’s decision in Burlington Northern v. White, the decision is also a harsh reminder of the power of the lower courts, and the irrevocable damage they can cause before the Supreme Court straightens them out on the correct legal standard – when it does.

In Burlington Northern, the Supreme Court held that an employee can win if she shows that in retaliation for her complaint of discrimination, her employer took some action against her that might deter a reasonable employee from complaining of discrimination.  The employer’s action doesn’t have to be as extreme as firing her. For example, the Court said depending on the circumstances, it could be a schedule change that would matter enormously to a young mother with school age children.  But before the Supreme Court ruled, two Courts of Appeals (the Fifth and the Eighth Circuits) applied a more restrictive standard.  They held that an employee could bring a successful retaliation claim only if, after complaining of discrimination, the employee suffered an “ultimate employment action,” such as firing or a change in pay.  In the states where that standard has been applied, countless employees who have suffered retaliation by their employers have been left without a remedy.  In fact, Sheila White’s brief in the Supreme Court has an appendix of about 40 cases in which sexual harassment victims complained and were retaliated against, but received no relief under the “ultimate employment action” standard, and there are undoubtedly many more victims as well.

To give just one example, in a case called Mattern v. Eastman Kodak Company, Jean Mattern, an employee who was enrolled in the company’s mechanic apprenticeship program, complained of sexual harassment, and her employer retaliated.  A supervisor threatened to fire her, she was reprimanded for not being at her assigned work station when she was meeting with the human resources department to discuss her complaint, she missed a pay increase, and she was placed on “final warning.”  The jury awarded Mattern $50,000 in damages.  Nonetheless, the Fifth Circuit held that all of this was not enough for Jean Mattern to win her retaliation case, and it overturned the jury’s award. 

So while Burlington Northern is a huge victory for employees in these circumstances in the future, it will not undo the harm suffered by women like Jean Mattern, who lost their cases in the lower courts for many years before the Supreme Court ruled.

Burlington Northern v. White 

Fourth Circuit agrees to rehear sexual harassment case against UNC

We reported in May on a decision by a panel of the Fourth Circuit to throw out the Title IX claim of students at the University of North Carolina on the women’s soccer team who alleged that they had been subjected to ongoing sexual harassment by their coach.  Now it turns out we were not alone in questioning this ruling; some members of the Fourth Circuit itself apparently have their doubts about it.  On June 8, the Fourth Circuit granted rehearing en banc – that is, re-argument of the case before all 12 judges on the court.  This means the panel decision is no longer binding, so that’s very good news.  But while it takes a majority of the active judges on the court to vote for rehearing, we won’t know what they think about the merits of the case until they issue an en banc decision.  In our view – and that of the dissenting judge the first time around -- the plaintiffs should have been given a chance to convince a jury that the coach took advantage of his position of power and created a sexually hostile environment in violation of Title IX.  We will be watching closely to see if a majority of the Fourth Circuit agrees.

Watching the Courts: New Line-up on Supreme Court Is Making Its Mark

The “new” Supreme Court – with John Roberts at the helm as Chief Justice and Samuel Alito in place of Sandra Day O’Connor -- is issuing important decisions as its 2005-06 Term winds down.  We’re seeing some troubling decisions and ominous warning flags, interspersed with occasional good news.

• Good news for victims of discrimination in the workplace who are penalized for complaining, and for victims of domestic violence.  Burlington Northern & Santa Fe Railway v. Sheila White was brought by a forklift operator in a railroad yard who was transferred to less desirable job duties and suspended without pay after she complained of sexual harassment. The Court unanimously ruled that this kind of retaliation is prohibited by Title VII, the federal law against discrimination on the job.  All the Justices except Alito rejected the argument of the railroad and the Bush Administration for a more limited protection against retaliation – a standard that, as NWLC Co-President Marcia Greenberger put it, “would have created a hole in civil rights protections large enough to drive a forklift through.”  In another case, the Court ruled unanimously that a domestic violence victim’s 911 call can be admitted into evidence at trial even if the victim is not present for cross-examination, recognizing that women are often afraid to appear in court in these cases because of intimidation from their abusers – although it did not extend that principle to victim statements to police when there is no emergency in progress.
• But new conservative block rears its head, showing impact of Justice O’Connor’s departure.  In other important cases, a solid block of four conservative votes has been sticking together: Justices Scalia, Thomas, Alito and Roberts.  When Justice Kennedy, also a conservative, joins them to make a majority, the court’s rulings can look very different from its decisions when Justice O’Connor was on the court.  One example is Hudson v. Michigan, in which the Court ruled 5-4 (opinion by Scalia, with Kennedy joining the hard core four) that even though the Constitution requires police with a search warrant to “knock and announce” themselves before entering someone’s home, when they fail to do so the evidence they obtain may nonetheless be used in court.  The four dissenters (Breyer, Stevens, Souter, Ginsburg) called this a “significant departure” from past precedent, and suggested that it may be the beginning of the end of the longstanding “exclusionary rule” whereby evidence obtained in violation of constitutional rights must be excluded from trial.  The press noted that it was clear Justice Alito cast the decisive vote because the Court was evenly split after Justice O’Connor retired, and the case had to be re-argued to break the tie once Justice Alito took her place.
  
  One editorial said this ruling “means that while the Constitution is on your side, the Supreme Court isn’t.”  We’ll find out all too soon whether it means the same thing with respect to the right to choose and affirmative action in particular, since the Court has agreed to hear cases involving those issues next fall.
  
  
• Federal power to protect the environment, and other national concerns, at risk.  A case involving the scope of the Clean Water Act is another example of how extreme the four-vote block of conservatives can be.  In Rapanos v. United States, Justices Scalia, Thomas, Alito and Roberts went too far even for Justice Kennedy, when they took a shockingly narrow view of the application of the Clean Water Act to the nation’s wetlands and waterways.  Justice Kennedy broke ranks with them – although he did not join the more expansive reading of the law offered by Justice Stevens and the other three dissenters, either.  He offered his own approach, which is now the governing one since neither of the others commanded five votes. 
  
  Following these decisions, one scholar commented: “This is what everybody expected when O’Connor left the court. . . . Roberts and Alito push[ing] the court to the right. . .“  Time will tell just how profound and extensive their impact will be.

What the courts are up to: not always a pretty sight

Practically every day, little-noticed rulings are handed down by federal courts across the country that affect the vitality and strength of rights and principles women rely on.  To illustrate why the courts – and battles over nominations – matter so much to women, we are preparing periodic reports on noteworthy decisions addressing women’s legal rights.   

To read about four interesting – and for the most part, troubling - decisions issued last month, click here. Very briefly, here’s what they involved:

• Fourth Circuit throws out college athlete’s claim challenging coach’s sexual harassment.  Melissa Jennings alleged that she and her teammates were subjected to ongoing sexual harassment by their soccer coach for over two years.  He regularly made crude sexual comments to his players, and the school took no action when Jennings complained.  We agree with the dissenting judge, who concluded that Jennings should have been given a chance to convince a jury that the coach took advantage of his position of power and created a sexually hostile environment.   
  Jennings v. University of North Carolina
• Ninth Circuit rejects challenge to employer’s makeup mandate.  In this case, the court rejected the claim of a casino worker in Reno who was fired, after 20 years in the job, when she refused to comply with the company’s policy requiring her to wear a full complement of makeup on the job. A dissenting judge pointed out that “a rule that all judges wear face powder, blush, mascara, and lipstick while on the bench” would be considered burdensome and demeaning.  Like the dissenters in this 7-4 decision, we do not think it was right to throw out this case.  Jespersen v. Harrah’s Operating Co. 
• Eighth Circuit says no hostile environment when supervisor spies on women’s restroom.  In this case, the court dismissed a case brought by two female bookkeepers whose boss had surreptitiously installed a two-way mirror and peephole into the women’s restroom and then regularly spied on them for four years when they went to the bathroom.   Although the man ultimately pleaded guilty to a felony charge for invasion of privacy, the court concluded that the women’s claims of a hostile environment in the workplace could not even get to a jury.  It shouldn’t surprise you to learn that the only woman on the panel dissented – or that we agree with her.  Cottrill v. MFA, Inc.
• District court upholds the right to medical privacy, but case now on appeal. A federal court in Kansas blocked enforcement of a legal opinion by the Kansas Attorney General requiring health care professionals, social workers, and school counselors to report to authorities any indication that a teen younger than 16 is sexually active.  Medical experts feared the policy would discourage teenagers from seeking health care and counseling, including for sexually-transmitted diseases or birth control, and thereby jeopardize their health.  A District Court struck down the Attorney General’s position as contrary to the plain language of the state law and an infringement of the Constitutional right to privacy concerning sexual or health-related information.  While this decision is a victory for adolescent health and medical privacy, it is now on appeal to the Tenth Circuit, which already reversed a court order temporarily blocking the Attorney General’s position at an earlier stage of this case.  Aid for Women v. Foulston

Stay tuned as we monitor the courts around the country and report on what they’re doing that’s of particular interest to women.