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NAWL AMICUS BRIEFS |
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NAWL’s Amicus Committee had a successful year in 2004-2005. Below is a list of briefs where the NAWL was amicus:
This statue provides no exception to this requirement except in cases where the minor faces imminent death. The statute does not provide any exception, as required in earlier discussions of the United States Supreme Court, for situations in which, in the opinion of the girl’s doctor, an abortion is necessary to protect the mother’s health. NAWL joined 31 other organizations in arguing that the Court should strike down the New Hampshire statute as unconstitutional because it fails to include an exception to protect the health of the mother. As amica curiae, NAWL also argued that the standard of review for cases on the right to privacy and woman’s right to choose should be the “undue burden” standard articulated in Casey rather than the weaker standard articulated in non-abortion cases, which allows a statute to stand if there is any reading of the statute that would render it constitutional. The brief was filed on October 12, 2005, and the case is set for oral argument on November 30. To view a copy of NAWL’s brief, click here. Counsel for NAWL: Petitioner Roderick Jackson, a coach of a girls’ high school team, was fired when he complained that the girls’ basketball team he coached received unequal treatment. He began coaching at Ensley High School, a school in the Birmingham, Alabama school district, in August 1999. Beginning in December 2001, he complained to supervisors that the girls’ team did not receive funding or access to athletic equipment or facilities equal to that provided to the boys. Mr. Jackson then began receiving negative evaluations and eventually lost his coaching job and the overtime pay associated with it. Lower courts rejected his arguments that his demotion was in retaliation for his complaints and, thus, in violation of the statute commonly known as Title IX, 20 U.S.C. § 1681. The trial court dismissed Mr. Jackson’s complaint, and the United States Court of Appeals for the Eleventh Circuit affirmed, finding no language in Title IX explicitly banning retaliation. NAWL joined an amicus curiae brief supporting Coach Jackson’s position in the United States Supreme Court. NAWL argued that protection from retaliation is a necessary component of the protections promised by Title IX. NAWL and its sister amici argued that retaliation is not only a form of discrimination itself, it also intensifies and prolongs the harm to those who already have suffered discrimination, and deters and discourages those who witness and would report such practices. Moreover, NAWL argued that retaliation promotes discrimination by impending informal resolution of violations and by sending the message that inequities are tolerated, but speaking up is not. NAWL’s brief relied upon law developed in the context of sexual harassment claims, in which the institution must have actual knowledge of the violation before monetary damages may be assessed; in these cases courts have found that it would be unfair to leave the victim of harassment open to retaliation for notifying the institution of the harassment. NAWL argued: In order to continue the progress towards Title IX’s promise of equal educational opportunity, those individuals who experience or witness discrimination must remain free from retaliation so they can report what they see, express their concerns, and register their complaints . . . . . To accept retaliation is to accept, even invite, inequality. Title IX, properly construed, must protect those individuals who bring violations of the statute to light. The Supreme Court agreed, in a decision entered March 29, 2005, 125 S. Ct. 1497 (2005). The Supreme Court overruled the Eleventh Circuit, finding that Title IX’s cause of action for retaliation is implied, as opposed to that in Title VII’s, which is express. In the majority opinion, Justice O’Connor stated that it would be very difficult to achieve the purposes of Title IX if teachers or coaches were loathe to report alleged violations for fear of retaliation. She stated that ". . . if retaliation were not prohibited, Title IX’s enforcement scheme would unravel." To view a copy of NAWL’s brief, click here. Counsel for NAWL: Dominique Gantt had obtained an Order for Protection against her ex-boyfriend, Gary Sheppard because he had assaulted her, harassed her in attempts to re-establish their sexual relationship, and threatened her life. The restraining order was issued to protect and otherwise prevent Sheppard from having any contact with Gantt, at her home, place of employment or any other place. The Order for Protection specifically ordered that Sheppard "stay away from" Gantt’s place of employment, as well her home and not to communicate with her by telephone or in any other manner. Gantt provided her employer with a copy of the Order for Protection for the purpose of putting her employer, Security USA, Inc. ("Security USA"), on notice of Sheppard's threatened harassment and threats of bodily harm to her in the workplace. Security USA contracted with the United States government to provide security in federal buildings in various regions of the United States, including an Internal Revenue Service office building owned and operated by the United States Government located in Maryland, the site where Gantt was employed. Security USA supervisors notified all personnel that Gantt was not to be assigned to an outside post due to the threat posed by Sheppard. Despite this order and the knowledge of the Order of Protection, a supervisor who worked with Sheppard at another security company and who was also friends with Sheppard arranged for Sheppard to have access to Gantt at the workplace, using her authority as a supervisor to ensure the contact took place. As a result of this access, Sheppard assaulted, kidnapped, raped, and tortured Gantt. Further, while Sheppard forcibly removed Gantt from the Security USA worksite, Security USA supervisors and employees did nothing. As a result of the abduction and rape, Gantt experienced recurring nightmares, physical anxiety attacks and other physical and mental health issues. Gantt filed both constitutional and statutory claims against Security USA due to the above actions. The lower court granted summary judgment to Security USA on all of Gantt’s claims. A divided three-judge panel of the United States Circuit Court of Appeals for the Fourth Circuit concluded that Gantt’s supervisor’s intentional acts were an exception to the Maryland Workers’ Compensation Act thus allowing Security USA to be held liable. However, the Court of Appeals limited that liability to the emotional distress suffered by Gantt while she was waiting in fear at the guard booth. The Fourth Circuit also ruled that the abduction and rape did not fall under the "intent to injure" exception of the Act, since the supervisor did not specifically intend for Gantt to be kidnapped and raped. Finally, the Fourth Circuit held that Gantt’s Fourteenth Amendment equal protection clause claim failed because Gantt raised only a Fifth Amendment equal protection clause claim in the lower court and Gantt did not provide sufficient evidence that Security USA was a "state actor." NAWL drafted and joined in an amicus curiae brief supporting Gantt’s position, but addressed only the narrow issue of whether Security USA could be held liable for the supervisor’s actions, applying well-recognized principles of employer liability for sexual harassment of an employee by a non-employee under Title VII. NAWL argued that Security USA unquestionably knew (or should have known) of the strong likelihood that Gantt would be the victim of such a shocking assault. Gantt herself informed Respondent of the protective order and of her fears about Sheppard. Gantt’s supervisor who arranged Sheppard’s access to Gantt knew of the protective order and knew the harm Sheppard was capable of inflicting. Despite this clear knowledge, Gantt was affirmatively placed in a situation where she was accessible to Sheppard through the affirmative acts of her own supervisor. The Supreme Court ultimately denied certiorari, and the case returned to the trial court for a jury trial on the remaining issue in the case. In February 2005, a jury returned a $2.25 million verdict in Gantt’s favor for the fear that Gantt suffered prior to the attack, the sole issue on remand. The jury had not been informed of Gantt’s rape or abduction as a result of the Fourth Circuit’s decision. To view a copy of NAWL’s brief, click here. Counsel for NAWL: This case involved the tragic death of Jessica Gonzales’s three daughters who were murdered by Mrs. Gonzales’s estranged husband. Mrs. Gonzales sued the Town of Castle Rock under 42 U.S.C. § 1983 for failing to enforce a protection order against Mr. Gonzales; Mrs. Gonzales asserted a property interest in the protection order under a Colorado statute mandating enforcement of such orders entered to protect victims of domestic violence. The United States Court of Appeals for the Tenth Circuit found that Mrs. Gonzales had an enforceable property interest in the Order and, thus, the Town’s failure to enforce the protection order gave her a cause of action under § 1983. The Town appealed, and the United States Supreme Court granted certiorari. NAWL submitted a brief supporting Mrs. Gonzales’s right to sue in federal court, in part because of the lack of an effective tort remedy against certain Defendant-Appellants, given Colorado’s potentially broad immunity for state entities. NAWL argued, "The failure by police to undertake the enforcement promised by mandatory arrest statutes inevitably compounds the magnitude of domestic violence and helps ensure its repetition. The costs of this violence are real and manifold." NAWL pointed to the state’s failure to provide the procedural due process guaranteed by the United States Constitution when Castle Rock police failed to act in response to Mrs. Gonzales’s repeated entreaties to enforce the protection order against her estranged husband on the afternoon, evening, and night – that Mr. Gonzales absconded with the children in violation of the Order. Among other things, "the police could have provided Respondent with an informal ‘hearing’" to determine whether her husband was in violation of the Order. NAWL cited a 1972 Supreme Court case holding that "no later hearing and no damage award can undo the fact that [an action] that was subject to the right of procedural due process has already occurred. This Court has not embraced the general proposition that a wrong may be done if it may be undone." In a National Law Journal article, NAWL counsel and Amicus Chair Lorelie S. Masters stated that "people feel very strongly that the system is not working for women." She explained that civil remedies for deprivation of one’s protected property interest without due process, like the one Ms. Gonzales is seeking, is "a way historically to provide a remedy for situations where violence was continuing in states because local legal regimes were not doing their jobs." The Supreme Court rejected Mrs. Gonzales’s position, 7-2. To view a copy of NAWL’s brief, click here. Counsel for NAWL: To view a copy of NAWL’s brief, click here. Counsel for NAWL: To view a copy of NAWL’s brief, click here. Counsel for NAWL: To view a copy of NAWL’s brief, click here. Counsel for NAWL |
National Association of Women Lawyers
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