Sunday, October 12, 2008

Supreme Court Hears Harassment Case « AAUW Dialog

Supreme Court of the United StatesTwo important cases are on the Supreme Court docket this session. Like the Lilly Ledbetter case, they underscore how important the Supreme Court is when it comes to issues that are central to women's safety, economic security, and equity.
Supreme Court Hears Harassment Case « AAUW Dialog: "Vicky Crawford, an employee of the Nashville Metro School District, was asked by her employers to cooperate with an internal investigation of sexual harassment allegations made against her boss. Crawford was later fired and believes she was terminated in retaliation for substantiating the sexual harassment allegations under investigation. While Title VII of the Civil Rights Act of 1964 contains an anti-retaliation provision, two lower courts narrowly interpreted the law and found that an internal investigation is not protected by Title VII."
And, from Alexis A. Moore, President & Founder, Survivors In Action
Another important case coming up for cert with the US Supreme Court is Martin v. Howard University. Attorney Dawn V. Martin is seeking justice. While Martin was employed at Howard U as a law professor she became the target of a campus stalker and was later fired when she asked Howard U to implement there security measures.
As 'leciaimbery' points out in her AAUW Dialog post, so many recent cases have been decided by 5-4 rulings that we cannot underestimate the importance of each high court justice. Our elected officials nominate and appoint them.
The confirmation of extremist, activist judges to the federal bench undermines a fair and balanced judiciary and could turn back the clock on decades of progress for women and girls. You can read AAUW’s position paper on federal judicial nominations and visit AAUW’s Legal Advocacy Fund Resource Library for more information.
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2 comments:

Dawn V. Martin said...

Thank you for your support of my efforts in my case, Martin v. Howard Univ. and Alice Gresham Bullock, U.S. Sup. Ct. No. 08-204. I wanted to update your readers on its status. On November 17, 2008, the Supreme Court declined to review my case, but that's not the last word on it. On December 12, 2008, I filed a Petition for Rehearing, pursuant to Supreme Court Rule 44, asking the Court to reconsider, in light of its pending review of Crawford v. Metropolitan Government of Nashville and Davidson County, another case similarly alleging sexual harassment and retaliation for reporting sexual harassment.

The National Organization for Women (NOW) and the National Association of Women Lawyers (NAWL), joined by other women's advocacy and anti-violence groups, filed an Amicus Curiae (friend of the Court) Brief supporting my original Petition, but the Court denied the Amici’s motion to late file it, so their arguments were not considered. I have petitioned the Court to consider their arguments and also to reconsider, in light of its pending review of Crawford v. Metropolitan Government of Nashville and Davidson County, another case similarly alleging sexual harassment and retaliation for reporting sexual harassment. See http://www.dvmartinlaw.com/MartinvHowardU.html.

I filed my case under Title VII of the Civil Rights Act of 1964, which prohibits harassment that is “sexual in nature” or based on gender. I argued that: 1) since 78% of stalking victims are women, stalking constitutes harassment on the basis of gender; 2) when the stalker uses “gender specific” language and criteria to select his victim, the stalking is harassment based on gender; and 3) where a stalker pursues a woman to make her his “wife,” the harassment is stalking “sexual in nature.” I am asking the Court to apply Title VII to protect women from workplace stalking and from employer retaliation for reporting stalking. Women who are doing nothing more than “working while female” should not have to choose between their jobs and their safety.

In 1999, I set precedent in federal district court, for the D.C. Circuit, in Martin by adopting the EEOC Regulation 29 CFR 1604.11(e), holding that an employer can be held liable for the sexual harassment of an employee, by a non-employee, if the employer knew or should have known of the harassment and failed to take reasonable steps to end it. Martin v. Howard University and Alice Gresham Bullock, 1999 U.S. Dist. LEXIS 19516, 1999 WL 1295339, 81 FEP Cases 964 (BNA), 15 IER Cases 1587 (D.D.C. 1999). Judge Hogan identified the jury questions as: 1) whether Harrison’s harassment was severe and pervasive enough to constitute a hostile work environment; and 2) whether Howard took reasonable steps to end it. The jury agreed with me that Harrison’s harassment did create a “hostile work environment” for me and that Howard did not take reasonable steps to end it; yet the verdict was for Howard. With insufficient legal instruction from the judge, the confused jurors found that the harassment was not based on sex – and therefore, that my complaints were not “protected activity” under Title VII of the Civil Rights Act.

Many people have asked me how the jury could possibly have concluded that a man who pursued me to be his “wife” did not pursue me based on my gender – after all, he would not have pursued me to be his “wife” – defined as a “married woman” – if I were a male professor at Howard. He also would not have “profiled” me as “Geneva Crenshaw” if I were male, since “Geneva” is a female character. So, this issue was supposed to be the threshold, “no-brainer” that Judge Hogan had already resolved, as a matter of law, based on the undisputed facts, in his 1999 decision. Judge Hogan did not allow us to question the jury after the trial, but I believe that the determining factor was that Howard repeatedly told the jury that my claim must be defeated because I entitled her memos to then Law School Dean Alice Gresham Bullock “Security Problem on Campus” rather than “Sexual Harassment.” The case law specifically holds that a plaintiff does not need to have used the words “sexual harassment” to invoke Title VII. (I actually did initially use that term, but, as I explained at trial, after the D.C. Metropolitan Police Department characterized Harrison as a “stalker,” that is the term that I used to describe him, since the word “stalking” is, by definition, repeated and serious harassment. I asked Judge Hogan to instruct the jury that it is not necessary to use the precise words “sexual harassment” to invoke Title VII protection, using his own words from his 999 decision, but he flatly refused to provide it. Numerous courts have recognized that stalking is one of the most egregious forms of sexual harassment. Judge Hogan also refused to provide the jury with the D.C. stalking statute, which defines “stalking” as repeated harassment. Without the proper legal framework for analyzing harassment based on sex, jurors were confused into accepting Howard University’s argument that the stalker’s harassment was not sexual in nature or based on sex and that my complaints did not constitute “protected activity.”

I believe that the Court should consider my case along with Crawford. Both Ms. Crawford and I lost their jobs shortly after reporting the harassment to our respective employers. Both of us deprived of the opportunity to prove that we lost their jobs due to retaliation for reporting the harassment. In both Crawford and Martin, the respective Circuit Courts held that we did not engage in “protected activity” because of how we reported the sexual harassment to our employers. The Supreme Court’s decision in Crawford would control the outcome of Martin. If Martin is considered as a companion case to Crawford, or supplements Crawford, the Supreme Court would provide lower courts with a more comprehensive definition of “protected activity,” whether the harasser is an employee or a non-employee in the workplace.

As you well know, January is National Stalking Awareness Month -- so it is particularly appropriate that, on January 9, 2009, the Supreme Court will consider reviewing a workplace stalking case. Coincidentally, it is also during Stalking Awareness Month that Sky Radio will be broadcasting an interview with me about the case on American Airlines, from December 16, 2008 through January 31, 2009, as one of the women highlighted in its series entitled “Salute to Women in Leadership,” featured in Time Magazine. I am also currently featured as one of "American’s Premier Lawyers,” in “The Law Business Insider which includes another radio interview discussing the case.

In an recent interview with Barbara Walters, Paula Abdul directed public attention to the issue of workplace stalking, as a result of the recent suicide of a woman stalking her. Ms. Abdul alleged that her employer, American Idol, allowed the stalker on the show -- her workplace --for "entertainment value." A videotaped audition shows another contestant singing a song he had written about his desire to "stalk" Ms. Abdul. This is only the most recent publicised example of workplace stalking that is simply not taken seriously. These incidents also highlight the fact that there is no federal statute that expressly protects stalking victims against employer retaliation for complaining about stalking -- or that obligates employers to take reasonable steps to keep known stalkers out of the workplace.

Dawn V. Martin said...

PRESS RELEASE:

Law Offices of Dawn V. Martin, LLC e-mail: dvmartinlaw@yahoo.com

(202) 408-7040; (703) 642-0207 website: www.dvmartinlaw.com



Watch TV Documentary on Federal Case Holding that a Woman can be Fired for being Stalked by a Stranger in her Workplace, or “Working while Female”



– Martin v. and Alice Gresham Supreme Court No. 08-204. WATCH a new television documentary, featuring esteemed leaders such as Kim Gandy (President of NOW), renowned civil rights Professor Derrick Bell and a former Howard University Security Officer, Dr. Amos Sirleaf, who all strongly support former Howard Law School Professor, Dawn Martin in her efforts to protect stalking victims against employer retaliation. Insider Exclusive website, with producer/host Steve Murphy, at http://insiderexclusive.com/martin.htm (For clearest digital viewing, download Apple quicktime 7.6 version.) Ms. Martin has also been featured on Sky Radio as part of its series on “Salute to Women in Leadership,” noted in Time Magazine and numerous radio shows.


Martin is the first case to present the issue of "gender profiling" in the employment context -- or the "working while female" factor. The National Organization for Women (NOW) and the National Association of Women Lawyers (NAWL), joined by additional women’s and victims’ advocacy groups, filed an Amicus Brief in this case, stressing the need to protect stalking victims from employer retaliation. Prof. Dawn Martin was stalked taught at by a delusional, homeless, serial stalker of African-American female professors, Leonard Harrison. was searching for the physical embodiment of his "fantasy" wife -- a fictional female character in a book, written by the renowned civil rights Professor, Derrick Bell. Instead of following its own security procedures to ban from campus, Howard responded to Prof. Martin’s requests for protection by refusing to renew her teaching contract. She sued Howard, under Title VII of the Civil Rights Act of 1964, which prohibits discrimination and harassment, on the basis of sex/gender. Prof. Martin alleged that Howard permitted the stalker to harass her on the basis of her gender in her workplace. 78% of stalking victims are women. 54% of female murder victims reported their stalkers to the police before being killed by them. Prof. Martin further alleged that Howard retaliated against her by refusing to renew her teaching contract because she asked for protection from on campus.



In 1999, the federal district court set precedent in Martin, adopting the EEOC Regulation 29 CFR 1604.11(e), holding that an employer can be held liable for the sexual harassment of an employee, by a non-employee, if the employer knew or should have known of the harassment and failed to take reasonable steps to stop it. In 2006, after a trial, the jury agreed with Prof. Martin that ’s harassment did create a “hostile work environment” for her and that that Howard did not take reasonable steps to end it; yet, the jury verdict was for Howard. With insufficient legal instruction from the Court, the confused jurors found that the harassment was not based on sex; Prof. Martin’s complaints were not therefore not “protected activity” under Title VII. The Supreme Court initially declined to review Martin, but nine days later, it decided Crawford v . Crawford clarified that “protected activity” under Title VII is a question of law for the Court, not a factual question for a jury. On February 9, 2009, therefore, Ms. Martin filed a motion to supplement her Petition for Rehearing, to include the law set by Crawford. Under Crawford, the jury should never have been required to decide this legal question. The Supreme Court has never addressed the issue of workplace stalking. The application of “gender profiling” to sexual harassment cases will also set precedent for racial, ethnic, religious groups in profiling harassment cases under Title VII and other EEO statutes. For more details and links to other cites discussing the case, see www.dvmartinlaw.com/MartinvHowardU.