Amicus Curiae Brief — Martin v. Howard University (No. 08-204)

SUPREME COURT OF THE UNITED STATES

DAWN V. MARTIN, ESQUIRE

Petitioner

Vv,

o

HOWARD UNIVERSITY,

HOWARD UNIVERSITY LAW SCHOOL

and

ALICE GRESHAM BULLOCK, ESQUIRE

Respondent.

ON PETITION FOR WRIT OF CERTTORIARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE D.C. CIRCUIT

AMICUS BRIEF OF THE NATIONAL

ORGANIZATION FOR WOMEN (NOW),

ETAL, IN SUPPORT OF PETITIONER

Roberta Y. Wright, Esquire

Law Office of Roberta Y. Wright

111] 14% Street, NW, Suite 820

Washington, D.C. 20004-5503

(301) 526-0474

Counsel for Amici Curiae,

National Organization for Women (NOW),

The National Association of Women Lawyers, et al.

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF OUT OF TIME

Amici, The National Organization for Women

(NOW), The National Association of Women Lawyers

(““NAWL”), Peace at Work and additional Amici

listed in the Appendix, file this motion for leave to

file Amicus Curiae Brief out of time. While amicus

briefs were due September 16, 2008, counsel for

Amici became ill and temporarily unable to complete

the Brief in time to circulate it to the various Amici

for comment and revisions. Despite counsel’s best

efforts, given the work involved in preparing the

brief, as well as commitments in counsel's regular

practice, amici were unable to file unti] this date.

The amici have the full support and consent of

Petitioner's counsel, and do not believe that any

prejudice will result to Respondent from this delay.

The amici all share a common interest in protecting

the rights of stalking victims, who are predominately

women, and in ensuring that the employers of these

victims fulfill their obligations to provide a safe,

productive work environment that is free from

threats of stalking and retaliation against stalking

victims.

Through this brief, the Amici illustrate, within the

bounds of applicable law, an employer's

responsibility for the actions of those whose conduct

creates a patently unsafe, hostile working

environment resulting in both psychological and

physica! assaults of disastrous proportions. Absent

such responsibility, stalking victims will have little

to no recourse for such blatant retaliation for doing

nothing more than “working while female” and being

stalked.

Respectfully submitted,

Roberta Y. Wright, Esquire

Law Office of Roberta Y. Wright

1111 14% Street, NW, Suite 820

Washington, D.C. 20004-5503

(301) 526-0474

Counsel for Amici Curiae

TABLE OF CONTENTS

Motion to File the Amicus Curiae Brief

out of Time

Table of Contents

Table of Authorities

The Interests of Amici Curiae

1) The National Organization of

3) St-.tement regarding Additional Amici

Introduction

Summary of Argument

Fcc tacthaebnreintabecessetaecetecingossanesuenteenss m

I. Harrison's Stalking of Prof. Martin

Constituted Harassment Based on

Sex/Gender, thereby Invoking Title VII

A. Stalking Has Been Recognized as a Severe

Form of Sexual Harassment against

B. A Serial Stalker’s Lone Confrontation with

a Man Does Not Affect the Sex-Based

Element of His Stalking of Women ..........6

C. Title VII Protection Should Not Depend

Upon the Employer's Subjective Concept of

What Conduct Constitutes Sexual

Harassment

D. Where Gender Specific Language is Used to

Identify and Target the Harassment

Victim(s), the Harassment is "Based on

OT isis shttnaieae

E. "Gender Profiling" as a “Sex-Plus”

Factor in Sex Discrimination

F. Where a Gender Specific Character is Used

to Identify the Harassment Victim, the

Harassment Constitutes “Gender

. A Sexual Harassment Claim Does Not

Require that the WHarasser Sexually

Assault the Victim or Expressly Solicit

Sexual Acts

. Pursuant to the Disparate Impact Theory,

Stalking Constitutes Harassment on the

Basis of Sex

. The Dismissal of Prof. Martin's Retaliation

Claims Violates belninesiad Northern ov.

White. . vevdelnes . Suceas a fs

Ill. The Tort of “Wrongful Discharge” Should Be

Applied Where Employees Are Fired for

ial — and Other Violent

Crime.. Siaie sid saupiehiatecinaainlarisaita an

IV.Taxing Defendants’ Costs to Appellant Will

Have a Chilling Effect on Title VII

Plaintiffs

RUNG TMB oss i bsetcevacenesex caves Sia tadea ua peadodeue tenes ae

List of Additional Amici Curiae

TABLE OF AUTHORITIES

CASES

Abraham v. Graphic Arts International Union, 660

F.2d 811 (D.C. Cir. 1981)

Angeles-Sanchez v. Alvarado, 1993 U.S. App. LEXIS

10509 (ist Cir. 1993)... 6

Baez v. the United States, 684 F. od 999 (D. C. Cr.

Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103 (8"

Cir. 1998) .. isehniihiiatan chin

Bowie v. Ashcroft, 283 F. ‘Supe. Od 25

(D.D.C. 2003)

Burlington Northern vu. White,

545 U.S. 53 (2006).. .....................3, 5, 15, 16, 17, 19

Carter v. University of Toledo, 349 F.3d 269 (6th

Cir. 2003)

—" Johnson v. Powell, 440 F.3d 484 (D.C. Cir.

2006)... a .17

Chontos v. . Rhea and indions ‘CUniverdity, 29 F. Supp.

931 (N_.Dist. Ind. 1998)

County of Suffolk v. Secretary, 76 F.R.D. 469

(E.D.N.Y. 1977)

Crawford Fitting Co. v. Gibbons, 482 U.S. 437

Crist v. Focus Homes, 122 F.3d 1107

(8* Cir. 1997)

Crowley v. L.L. Bean, 303 F.3d 387 (D. Me. 2002)...

Day v. South Park Independent School District, se

F.2d 696 (5th Cir. 1985)

Delaware State College v. Ricks, 449 U.S. 250

Dolman v. Williamette University, 2001 U.S. Dist.

LEXIS 7772 (D. Or. 2001).................... vee 6

Dual v. Cleland, 79 F.R.D. 696 (D.D.C 1978) . .21

Ellison v. Brady, 924 F. 2d 872

(9th Cir. 1991)

Fekade v. Lincoln University, 167 F.Supp. 2d 731,

739 (E.D.Pa.2001)

Franklin v. Monadnock Co., 151 Cal. App. 4th 252

(Cal. 2007)

Frazier v. Delco Electronics Corporation, 263 F.3d

663 (7th Cir. 2001)

Fuller v. City of Oakland, 473 F.3d 1523 (9th Cir.

Griffin v. Board of Regents of Regency Universities,

795 F.2d 1281 (7th Cir. 1986)

Guinan v. Roman Catholic Archdiocese

Indianapolis, 50 F.Supp. 2d 845 (S.D-.Ind. 1999). 19

Holcomb v. Powell, 433 F.3d 889 (D.C. Cir. 2006).. 16

Judge v. Marsh, 649 F. Supp. 770 (D.D.C. 1980).... 12

Ledbetter v. Goodyear Tire & Rubber Co. Inc., 127

S. Ct. 2162 (2007)

Lindblom v. Challenger Day Program, Ltd., 37 F.

Supp. 2d 1109 (N.D. Il. 1999)

Martin v. Howard University, 1999 LEXIS 19516

(D.C.D.C. 3999) 9, 14, 16

Martin v. Howard University-2006 WL

2850656 (D.C.D.C. 2006)

Mastro v. Potomic Electric Power Company, 447 F.3d

843 (D.C. Cir. 2006)

Minshall v. McGraw Hili Broadcasting, Inc., 323

F.3d 1273 (10th Cir.2003)

Mintz v. District of Columbia, 2006 U.S. Dist. LEXIS

34446 (D.C. Cir. 2006)

Pannonia Farms v. RE/ Max International, Inc, 2005

WL 3262902 (D.D.C. 20085)... in 21

Phillips v. Martin Marietta Corp. 400 U. S. “642

Ramirez v. New York Presbyterian pecanianan 129 F

Supp. 2d 676 (S.D.N.Y. 2001)... sisapainrivlecid a

vi

Rochon vu. Gonzales, 438 F.3d 1211

(D.C. Cir. 2006)

Ruggieri v. Merit Systems Protection Board,

455 F.3d 1323 (Fed. Cir. 2006)

Silk v. City of Chicago, 194 F.3d 788 (7th Cir.

1999)... “ 19

Spina v. Forest Preserve District of Cook County, 207

F. Supp. 764 (D. Il. 2002)

Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir.

1971) cert. denied, 404 U.S. 991...

Summit vu. Technology. Inc 495 F.3d li

Trejo v. Shoben, 319 F.3d 878 (7th Cir.2003)

Turnbull vs. Topeka State Hospital, 255 F 3d 1238

(10% Cir. 2001)

Walker v. Board of Regents of University of

Wisconsin System, 300 F. Supp. 2d 836 (W.D Wis.

Whitmore v. O'Connor Management, Inc., 156 F.3d

796 (8th Cir. 1998)

STATUTES

Title VII of the Civil Rights Act of 1964, 42 U.S.C,

§2000(e), et seq......,3, 4, 5, 8, 9, 10, 12, 13, 16, 18,

19, 20, 21,

Title [IX of the Civil — Act of 1964, 42 U.S.C,

< 000{d), et seq... ined deiisiadina ...20

The Age Discrimination in Employment Act (ADEA)

29 U.S.C. § 621-634, et seg

D.C. Anti-Stalking Statute,

DC ST § 22-404(b)..

This Brief is filed in support of Petitioner,

Dawn V. Martin, Esquire.

THE INTERESTS OF AMICI CURIAE

The National Organization for Women (NOW) '

The National Organization fer Women (NOW)

ie the Largesi, mosi comprehensive feminist advocacy

group in the United States. NOW’s purpose is to

take action to bring women into full participation in

society — sharing equal rights, responsibilities and

opportunities with men, while living free from

discrimination. NOW has an interest in promoting

safety of women in the workplace and in eliminating

gender-based discrimination.

The National Association of Women Lawyers

(NAWL)

The National Association of Women Lawyers

(NAWL) is the oldest women’s bar association in the

United States. NAWL works to advance the rights

of women and to end discrimination and violence

against women. NAWL acts as Amicus Curiae,

and advises legislators and policymakers. NAWL

members serve as delegates and liaisons to national

and international organizations in its pursuit of

justice for women. NAWL has an interest in

promoting safety of women in the workplace and in

eliminating gender based discrimination.

‘ As required by Rule 37.6 of this Court, counsel for Amici

submits the following: no party or party's counsel authored thia

brief in whole or in part; no person or entity other than Amici,

their members, or their counsel, have made a monetary

contribution to the preparation or submiasian of this brief.

Petitioner Dawn Martin consents to the filing of this Brief.

Respondents have not provided written consent to the filing of

this Brief, but have not indicated that they oppose its filing

1

Additional Amici: see Appendix

INTRODUCTION

The record herein establishes the following

facts:

1) Prof. Dawn Martin was stalked in her

workplace, Howard University Law School, by

Leonard Harrison, a delusional serial campus

stalker, with a history of violence.

2) Harrison pursued Prof. Martin to be his

“wife,” based on his assertion that she bore

professional and physica! similarities to a fictional

character in a book written by renowned Prof

Derrick Bell;

3) Prof. Martin reported Harrison's conduct to

the law school administration, the D.C. Metropolitan

Police Department and campus security, asking for

protection on campus;

4) Lew School Dean Bullock assured Prof

Martin in writing that she was discussing the matter

with the Director of Carnpus security, but never did

so, nor did she take any action to prevent Harrison

from entering the law school premises;

5) Howard University failed to follow its own

procedures for addressing stalking on campus, so

that the stalker freely reached Prof. Martin's office;

6) Lese than a month after Prof. Martin

reported the harassment, Howard's administration

decided not to renew her teaching contract,

7) Howard continued to reject Prof. Martin

from any position, permanent or visiting, for the

remaining six months of her tenure at Howard,

although there were three vacant positions for which

Prof. Martin was well qualified; and

8) Dean Bullock concealed vacancies from the

2

Appointments Committee, even when a member of

that committee specifically asked whether there was

any vacancy for which Prof. Mariin could be

considered.

On April 18, 2006, the jury found, as Prof

Martin alleged, that Harrison's actions did create a

“hostile work environment” for her. The jury further

concluded that Howard failed to take reasonable

steps to end it. Despite these findings, Martin was

denied recovery because the jury concluded that

Harrison's harassment was not “sexual” in nature

nor based on Prof. Martin's gender, so her

complainta were not “protected activity” within the

meaning of Title VII of the Civil Rights Act of 1964,

et seq. So even if Howard retaliated against her for

reporting the stalking, Prof. Martin was deprived of

her cause of action

Such a result leaves women in thie

jurisdiction with no clear remedy at law for

harassment by a stalker in their workplaces nor for

being terminated in retaliation for complaining

about it.*

For this reason, this Brief concurs with Prof

Martin's argument that the dismissal of her

retaliation claims requires restoration pursuant to

Burlington Northern v. White, 548 U.S. 53 (2006),

and that she is entitled to judgment on her sexua!

harassment and rotaliation claims

The arguments below detail the impact of a

decision adverse to Prof. Martin on the broader

issues- of sexual harassment and retaliation

confronting women in their workplaces and

* Although Prof. Martin was stalked by « stranger, this

Court's decision will also affect victims of domestic violence

Domestic violence does not necessarily stop at the front door

but often overflows into the workplace

3

campuses.

SUMMARY OF ARGUMENT

Leonard Harrison's stalking of Prof. Martin

constituted harassment based on sex/gender, thereby

invoking Title VII. Title VII prohibits harassment

based on sex or gender. Oncale v. Sundowner

Offshore Services, 523 U.S. 76, 118 S. Ct. 998, 1001,

140 L.Ed. 2d 201 (1998).

Stalking has been recognized as a severe form of

sexual harassment. Turnbull v. Topeka State

Hospital, 255 F 3d 1238 (10" Cir. 2001). A

supervisors subjective determination that stalking

is not sexual in nature or based on sex ignores the

fundamental nature thereof. P. Mullen and M.

Pathe, Stalking, 29 Crime 272 (2002).

Employers are obligated to understand their

duties under Title VII. If a supervisor can simply

claim that he or she did not realize that the conduct

complained of constituted sexual harassment, it will

be in the employers’ interests not to educate its

managers regarding conduct that constitutes sexual

harassment so they can all claim “ignorance” when a

woman files a sexual harassment charge.

A single act of accosting a man should not

insulate a harasser (or the employer) from a claim

that subsequent gender-specific harassing behavior

toward a woman is in fact gender-based. DC ST §22-

404(b). Nor does the serial stalker's lone

confrontation with a man affect the sex-based nature

of his stalking of Prof. Martin

A harasser’s use of gender-specific criteria to

select the target of his stalking establishes that the

harassment is “based on sex." By analogy to “sex-

plus discrimination” cases, this kind of gender

profiling violates Title VII. Abraham vu. Graphic Arts

4

International Union, 212 U.S. App. D.C. 412, 660 F.

2d 811 (D.C. Cir 1981). The use of a gender- specific

character to locate a victim is based on sex.

Sexual assault or express solicitation of sexual

acts need not be shown to establish hostile

environment sexual harassment. Ellison v. Brady,

924 F 2d 872, 880 (9th Cir. 1991).

Adverse action that affects future employment

opportunities is actionable retaliation under

Burlington Northern v. White, 126 S. Ct. 2405 (2006)

and its progeny.

The clear public policy interest in preventing

crime argues for a theory of protection for victims of

workplace violence. Franklin v. Monadnock Co., 151

Cal. App. 4” 252 (Cal.2007).

The imposition of Court costs on good faith

claimants chills the pursuit of the objectives of Title

VII. Ledbetter v. Goodyear Tire & Rubber Co. Inc.,

127 S. Ct. 2162 (2007).

ARGUMENT

I. Harrison’s Stalking of Prof. Martin

Constituted Harar- ment Based on Sex/Gender,

Thereby Invoking «itle VII

A. Stalking Has Been Recognized as a

Severe Form of Sexual Harassment

against Women

Courts have long recognized that stalking is

one of the most egregious forms of sexual

harassment. Crowley v. L.L. Bean, 303 F.3d 387,

396, 401-403 (D. Me. 2002) (plaintiff identified the

harasser’s conduct as “stalking” and had therefore

met her burden of demonstrating that she perceived

the harasser to have created a “hostile or abusive

environment”); Frazier vu. Delco Electronics

Corporation, 263 F.3d 663, 668 (7“ Cir. 2001)

5

(stalking recognized as creating a hostile work

environment); Whitmore v. O'Connor Management,

Inc., 156 F3d 796, 798 (8™ Cir. 1998) (sexual

harassment was so severe that co-worker would

“almost cal) it stalking”); Bales v. Wal-Mart Stores,

Inc., 143 F.3d 1103, 1108 (8 Cir. 1998) (plaintiff felt

that her co-worker “was harassing her, actually,

stalking her”), Angeles-Sanchez v. Alvarado, 1993

U.S. App. LEXUS 10509 (1* Cir. 1993) (sexual

harassment/hostile work environment included

“stalking”); Spina v. Forest Preserve District of Cook

County, 207 F. Supp. 764, 772 (D. Ill. 2002)

(“stalking” listed as one of the more severe

allegations of sexual harassment); Ramirez v. New

York Presbyterian Hospital, 129 F. Supp. 2d 676, 678

(S.D.N.Y. 2001) (plaintiff used “stalking” to describe

acts of sexual harassment/hostile work

environment), Dolman v. Williamette University,

2001 U.S. Dist. LEXIS 7772 (D. Or. 2001) (professor

stalked by a former student was sexually harassed);

Chontos uv. Rhea and Indiana University, 29 F. Supp.

931, 937 (N. Dist. Ind. 1998) (“stalking” was one of

the most “disturbing” acts of sexual harassment).

B. A Serial] Stalker's Lone Confrontation

with a Man Does Not Affect the Sex-Based

Element of His Stalking of Women

Judge Hogan's October 4, 2006 decision justified the

jury's finding that the stalking was not gender-based

by referring to Harrison's single confrontation seven

years earlier with a renowned African-American

male professor, Prof. Derrick Bell, at Harvard

University Law School. (See 2006 WL 2850656 at

* This lawsuit was filed against University under Title [X,

rather than Title VII of the Civil Rights Act of 1964

6

*4, (Pet. A-146). However, neither Howard's

administrators nor Prof. Martin even knew that

Harrison confronted Derrick Bell until 1999 - a year

after Prof. Martin left Howard.

Harrison's one-time confrontation of Prof. Bell

in 1990, therefore, should not serve as evidence that

Howard's officials believed that Harrison was an

equal threat to men and women, or an “equal

opportunity harasser.” Harrison was not an

ongoing threat to Bell. Harrison only confronted

Prof. Bell as a means of locating his next female

stalking victim. Significantly, Harrison's

confrontation of Prof. Bell cannot be considered

stalking by any definition, as a pattern of behavior is

a necessary requirement of stalking.‘

In 1997-1998, when Prof. Martin was

complaining of Harrison's stalking, neither Howard

nor Prof. Martin had any reason to believe that

Harrison had harassed any man, at any time. In fact,

Harrison’s letters expressly identified numerous

women that he had targeted, over a period of years, to

be his “wife.” It is not possible, then, that Howard

could have perceived Harrison as an “equal

opportunity harasser* at the time Prof. Martin

requested protection from him. To argue that one

who commits ongoing acts of female gender based

harassment would never commit an aggressive act

against a man is as ludicrous as it is irrelevant.

* DC ST § 22-404 (b) states that “Any person who on more

than one occasion engages in conduct with the intent to cause

emotional distress to another person or places another person

in reasonable fear of death or bodily injury by willfully,

maliciously, and repeatedly following or harassing that person,

or who, without a legal purpose, willfully, maliciously, and

repeatedly follows or harasses another person, is guilty of the

crime of stalking.”

7

Harrison's confrontation with Bel] was not a

gender-based act against Bell although his purpose

was gender-based: to locate a woman to be

Harrison's “wife” based upon Bell’s fictional] character

of Geneva Crenshaw. —

Under the rationale set forth by the district

court, an employer can invalidate a woman’s Title VII

protections by producing evidence that the sexual

harasser demonstrated violent or threatening

behavior toward any male, at any time in his life.

The broad implications of this new legal] edict could

seriously thwart future sexual harassment claims.

For example, one could argue that, since John

Hinkley shot at President Ronald Reagan — a male --

on March 31, 1981, his stalking of actress Jodie

Foster while she was an undergraduate student at

Yale University was not based on sex, although he

professed his “love” for her in letters and phone calls

— as did Harrison in letters and phone calls to Prof.

Martin.

A sexual harasser may have exhibited violent

or other threatening behavior at some point in his

life. This prior act neither diminishes nor negates

sex-based harassment, such as stalking.

C. Title VII Protection Should Not

Depend Upen the Employer's Subjective

Belief of What Conduct Constitutes Sexual

Harassment

In 1999, Judge Hogan concluded:

In this case, it is clear that Plaintiff was

only the object of Mr Harrison's attention

~ because she was a female. Therefore, the

alleged stalking activities do appear to

have been “because of sex" even if they

were not inherently sexual in nature.

Martin, 1999 U.S. Dist. LEXIS 19516 at *11. (Pet.

A-27)

On October 4, 2006, however, Judge Hogan

held that he had not concluded, in 1999, that

Harrison’s harassment was “sexual in nature” or

“based on sex.”

[Tyhis Court never found that Mr.

Harrison's conduct was sexual in

nature or because of Plaintiff's gender,

but left this as a question for the jury.

The jury verdict did not, therefore,

contradict the Court's 1999 decision.

Martin, 2006 WL 2850656 at *3 (D.D.C.). (Pet. A-

146)§

The only evidence before the jury indicating

that Harrison’s conduct was not sexual in nature

was the testimony of Dean Alice Gresham Bullock

stating that she did not perceive Harrison's conduct

to be based on sex or sexual in nature. Employers

should not be permitted to escape liability for Title

VII retaljation by claiming “ignorance of the law” —

which would not even be a valid excuse in criminal

proceedings.

The district court’s 2006 decision and the

jury’s verdict make it possible for an employer to

* Prof. Martin's Petition characterizes the District Court's

submission of whether Harrison's harassment was based on sex

to the jury as violating “the law of the cnase.”

* But see Ms. Martin's Petition, explaining that, in a Memo to

Howard's General Counsel, Dean Bullock stated to the

contrary

escape Title VII liability simply by stating that the

employer's officials did not understand that the

reported conduct constituted sexual harassment.

Employers cannot ignore stalking harassment

of women as a gender based activity by simply

disregarding the fundamental nature of stalking as

a tool to control women. While stalking can affect

men, the vast majority of stalking victims are

female.’ At least eighty percent of stalking victims

are female* Ninety-four percent of the female

stalking victims identified their stalkers as being

male.®

Employers are obligated to understand their

duties under Title VII. If a supervisor can simply

claim that he or she did not realize that the conduct

complained of constituted sexual harassment, it will

be in the employers’ interest not td educate its

managers regarding conduct that constitutes sexual

harassment so they can all claim “ignorance” when a

woman files a sexual harassment charge. Whether

or not a woman is protected from termination by

Title VII must not depend upon the purported level

of knowledge of any particular supervisor.

7 P. Tjaden and N. Thoennes, Research in Brief, National

Institute of Justice Centers for Disease Control and Prevention,

(April 1998)

"Id

* Id.

10

D. Where Gender Specific Language is

Used to Identify and Target the

Harassment Victim(s), the Harassment is

“Based on Sex”

Where a harasser targets a woman because he

fantasizes that she is related to him in sex-specific

terms, such as “wife,” “mother,” “sister,” “aunt,”

“grandmother,” the target can only be a woman. The

very words used by Harrison clearly identified his

victims in terms that required them to be female.

The jury recognized this, but were clearly

confused by the jury verdict form question ic, which

asked the jurors whether Harrison's conduct was

sexual in nature or because of plaintiff's gender. The

jury sent out a question:

“Wives are typically female. Is Ic an

automatic ‘yes’ just because plaintiff is female." The

court's reply was "No, it is not an automatic ‘yes.’

You must base your decision on the evidence

presented to you." Thus it appears that the jury was

led to believe that Harrison's pursuit of Prof. Martin

as his “wife” was insufficient standing alone to

establish the gender-based nature of the stalking,

and that they needed additional proof of that

element. Indeed this was the only element on which

the jury did not find for Prof. Martin.

From the evidence, Harrison’s harassment

was clearly based on sex. The contrary finding by

the jury, which disregards critical evidence, deprived

the plaintiff of a remedy, and also offends the

struggle of women to be safe in the workplace.

E. “Gender Profiling’ as a ‘“Sex-Plus”

Factor in Sex Discrimination

Amici urge the adoption of a “gender profiling”

analysis as part of employment law “Gender

11

profiling” is closely related to the long recognized

doctrine of “sex plus” employment discrimination.

Prior to Martin, Judge Hogan had recognized

that “sex-plus” basis discrimination violates Title

VI:

Disparate treatment of subclasses of women,

based on an immutable characteristic or the

exercise of a fundamental right, has been held

unlawful under Title VII; eg. Abraham ov.

Graphic Arts International Union, 212 US.

App. D.C. 412, 660 F.2d 811 (D.C. Cir. 1981)

(leave policy did not accommodate pregnancy

and hence was unlawful gender discrimination

under Title VII). Judge v. Marsh, 649 F.

Supp. 770, 779-780 (D.D.C. 1980).

In a “sex-plus” case, an employer does not

discriminate against a protected class as a whole;

rather it treats a subclass within a protected class

disparately. Phillips v. Martin Marietta Corp., 400

U.S. 542 (1971) (employer treated women with

children of preschool age differently than men in

similar circumstances); Sprogis v. United Air Lines,

444 F.2d 1194 (7th Cir. 1971) cert. denied, 404 U.S.

991 (sex plus marriage violated Title VII, where

airline hired married male flight attendants but not

married female flight attendants).

Most sexual harassers have personal

preferences and do not harass every woman they

meet. In this case, Leonard Harrison targeted

women based on their profession - particularly

female academics addressing civil rights issues.

Harrison did not similarly pursue male civil rights

professors to be his “wife.”

12

F. Where a Gender Specific Character is

Used to Identify the Harassment Victim,

the Harassment Constitutes “Gender

Profiling”

Only a woman could be “Geneva Crenshaw.”

Where the harasser selects the victim based on his

obsession with a female character, real or imagined,

the harasser has selected the victim based on the

basis of her gender. Although the harasser may

need to see additional qualities in particular women

in order for him to cast her in the role he has chosen

for her, one constant requirement for the role is that

she be female. The harassment is, therefore,

necessarily based on sex and invokes Title VII.*°

G. A Sexual Harassment Claim Does Not

Require that the Harasser Sexually

Assault the Victim or Expresaly Solicit

Sexual Acts

Judge Hogan offered a rationale for the jury's

failure to conclude Harrison's harassment was based

on gender:

The jury did not hear or see evidence

that Mr. Harrison’s conduct involved

conduct typical of sexual harassment

such as groping, touching or making

sexual advances.

Martin v. Howard University, 2006 WL 2850656 at

*4 (Pet. A-146)

© As discussed in the Martin Petition, harassment based on

“cheracter profiling” could just es easily be based on raciel

profiling, or on the basis of national origin, color, religion, age

or disability.

13

Amici contend that the enunciation of such a

standard ignores the increased understanding of

sexual harassment, and the gains made by working

women during the past several decades. As

established herein, stalking is a form of sexual

harassment, and a plaintiff is not required to prove

that she was “touched,” “groped,” or sexually

assulted to establish a sexual harassment claim.

Even intended compliments can constitute

sexual harassment—a fact that Judge Hogan

explicitly acknowledged in his 1999 decision. See,

Martin, 1999 LEXIS 19516 at *12-13. (Pet. A-29)

Accord, Ellison v. Brady, 924 F. 2d 872, 880 (9th

Cir. 1991), wherein a male subordinate wrote love

letters strikingly similar to those Harrison wrote to

Prof. Martin and the Court held that the fear of

receiving a “bizarre note from...a person she barely

knew...” and “not knowing what this mentally

unstable person would do next,” was enough to

create a hostile work environment for the plaintiff.

See also, Fuller v. City of Oakland, 473 F.3d

1523 (9“ Cir. 1995), wherein a female police officer

trainee was harassed by her ex-boyfriend, a more

senior police officer. The sexua! harasser did not

touch plaintiff or threaten her; nor did he say

anything to her that was overtly sexual; however,

the context of the conduct and the history of the

relationship indicated that the harasser wanted the

plaintiff to be his girlfriend again. The court

therefore defined the conduct as sexual harassment.

If harassment is “sexual in nature” where the

harasser wants the victim to be his “girlfriend,” then

it must also be sexual in nature in the instant case,

where the harasser takes it a step further, targeting

the victim to be his “wife.”

i4

H. Pursuant to the Disparate Impact

Theory, Stalking Constitutes Harassment

on the Basis of Sex

Even when conduct might affect both men and

women, the conduct may constitute harassment on

the basis of if it disproportionately affects

women. Turnbull, 255 F.3d at 1244; see also Crist v.

Focus Homes, 122 F.3d 1107, 1111 (8 Cir. 1997).

Statistics compiled by the U.S. Department of

Justice reflect that women are disproportionately

affected by workplace violence, such as sexual

assault and stalking. See Bureau of Justice

Statistics, National Crime Victimization Survey,

Violence in the Workplace, 1993-1999 (December

2001), at www.oip.usdoj.gov/bis/pub/pdfivw99.pdf.

Not only are at least Eighty (80%) percent of

stalking victims female’ Ud, Tjaden and Thoennes)

but, according to the U.S. Department of Justice, 1

in 12 females versus 1 in 45 males will be stalked. .

Where a woman is stalked in her workplace,

the disparate impact analysis should be used in

determining if the harassment is based on sex.

ll. The Dismissal of Prof. Martin’s Retaliation

Claims Violates Burlington Northerr v. White

Prof. Martin alleged that her employer failed

to renew her teaching contract and cancelled,

withdrew and/or concealed several vacant and

'' Some of the targeted men are actually the boyfriends of

women who are the rea) focus of the stalker; thus, the stalking

of the man is simply part and parcel of the stalker’s

harassment of the woman. Even where a woman stalks a man,

the stalking is generally “sexual in nature” or based on her

desire to have or continue a gerual or romantic relationship

with him. Thus, nearly all stalking is either “sexual in nature”

or based on sex.

15

advertised faculty positions in order to remove her

from the faculty because she asked for reasonable

steps to be taken to stop a delusiona! stalker from

pursuing her, in her workplace. In 1999, Judge

Hogan refused to dismiss these retaliation claims,"

but on October 20, 2003, Magistrate Judge Facciola

dismissed them, holding:

Title VII applies only to ultimate

employment decisions such as hiring or

discharging....

Martin, 2003 U.S. Dist. LEXIS 18501 at *°31-32

(D.D.C, 2003) (Pet. A-31).

In June of 2006, this high Court decided

Burlington Northern v. White, 126 S. Ct. 2405

(2006). Burlington expressly rejected the analysis

set forth by MJ Facciola, who limited actionable

retaliation to “ultimate employment decisions.” 548

U.S. 63 (2006). Instead, the Court held:

..the proper formulation requires a

retaliation plaintiff to show that the

challenged action “well might have

‘dissuaded a reasonable worker from

making or supporting a charge of

discrimination.”

548 US. at 64.

Even before Burlington, the D.C. Circuit

decided a stream of cases elucidating the definition

of “adverse action” within the meaning of Title VII.

Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir

2006) held that adverse actions included acts that

'? 1999 U.S. Dist. LEXIS 19516.

16

affected future employment opportunities. Rochon v.

Gonzales, 438 F.3d 1211 (D.C. Cir. 2006), held that

Title VII makes unlawful any act of retaliation by an

employer that might dissuade a reasonable employee

from making or supporting a charge of

discrimination pursuant to Title VII — whether it is

related to current employment opportunities, future

employment opportunities, or even potentially

adverse consequences completely unrelated to

employment. Burlington expressly adopted the

standard for proving actionable retaliation set forth

in Rochon. 26 S. Ct. at 2411, 2413, 2415.

Chappelle-Johnson v. Powell, 440 F.3d 484

(D.C. Cir. 2006), held that it is not necessary that

the plaintiff “show that the position remained open

and that the employer continued to seek

applicants." It was enough that the plaintiff alleged

that the employer "denied her an opportunity for

advancement." Mastro v. Potomac Electric Power

Company, 447 F.3d 843, 855 (D.C. Cir. 2006), held

that the failure to permanently fill a vacancy could

violate Title VII if the position was eliminated for

discriminatory reasons. This Court’s decisions were

consistent with Terry v. Gallegos, 926 F. Supp. 679,

710 (W.D. Tenn. 1996), holding that a vacancy

cancellation constituted actionable retaliation under

Title VII."

In Bowie v. Ashcroft, 283 F. Supp, 2d 25

(D.D.C. 2003), the same magistrate who dismissed

Ms. Martin's claims only a month !ater actually cited

Terry with approval, holding that:

' Accord, Ruggieri v. Merit Systems Protection Board, 455

P.3d 1323 (Fed. Cir. 2006) (“Whistleblower Act” retaliation

claim upheld where employer cancelied a vecancy in order to

prevent the plaintiff from being promoted into it)

17

no particular type of personnel action

{is} automatically excluded from

serving as the basis of a cause of

action under [Title VII.”

In Mintz v. District of Columbia, 2006 U.S.

Dist. LEXIS 34446 at *12-13 (D.D. C. 2006) the same

court, via a different judge, upheld a plaintiff's Title

VII retaliation claim where he alleged that his

employer failed to convert his temporary status to a

permanent employee status, in retaliation for his

support of the original plaintiff. The district court

decisions in Mintz and Martin are inconsistent, and

will therefore cause confusion within the D.C.

Circuit if not reconciled.

Mintz is consistent with all other circuit and

district court decisions that have considered whether

a non-renewal is actionable under Title VII. Walker

v. Board of Regents of University of Wisconsin

System, 300 F. Supp. 2d 836, 853 (W.D Wis. 2004), a

case, like Martin, against a University with

employees holding temporary and/or renewable

contracts, held:

Whether this action is considered a

termination or a refusal to rehire, I

conclude that it is a cognizable injury

for the purpose of § 1981, § 1983 and

Title VIl. Being denied a renewed

contract is not a “minor or trivial”

action. Silk v. City of Chicago, 194

F.3d 788, 800 (7th Cir.1999)."*

‘“ Walker relied on the unanimous consensus of other

jurisdictions on this issue, including Carter ». University of

Toledo, 349 F.3d 269 (6th Cir.2003); Fekade v. Lincoln

University, 167 F.Supp.2d 731, 739 (E.D.Pa.2001), Lindblom

18

If this high Court does not correct the errors of

the D.C. Circuit court in this case, Burlington and

even the D.C. Circuit's own pre-Burlington definition

of actionable retaliation, will be substantially

eviscerated.

Ill. The Tort of “Wrongful Discharge” Should

Be Applied Where Employees Are Fired for

Reporting Stalking and Other Violent Crimes

Amici expressly adopt Ms. Martin's argument

in her Petition, at 36, relying on _ recent

developments in the law of wrongful discharge. In

Franklin v. Monadnock Co., 151 Cal.App.4th 252

{Cal. 2007), the plaintiff alleged that he was fired for

telling his employer and police that a co-worker who

assaulted him threatened to have him and others

killed. The Court found that the state’s public policy

interest in preventing crime, as well as violence in

the workplace, created a wrongful discharge claim.

Franklin provides encouraging precedent for

relief for stalking victims, in their workplaces and on

campuses, in cases that do not meet the Title VII or

Title IX" definitions of sex discrimination. Amici

v. Challenger Day Program, Ltd., 37 F.Supp.2d 1109, 1116

(N.D.11.1999); Delaware State College v. Ricks, 449 U.S. 250

(1980); Trejo v. Shoben, 319 F.3d 878 (7th Cir.2003), Griffin

v. Board of Regents of Regency Universities, 795 F.2d 1281

(7th Cir.1986). Minsholl v. McGraw Hill Broadcasting, Inc.,

323 F.3d 1273, 1280 (10th Cir.2003) (ADEA); Day v. South

Park Independent School District, 768 F.2d 696 (5th Cir.1985)

(§ 1983); Guinan wv. Roman Catholic Archdiacese of

Indianapolis, 50 F.Supp.2d 845, 851 (S.D.Ind. 1999) (ADEA).

% Title IX of the Civil Rights Act of 1964 prohibits sex

discrimination in education, paralleling Title VII, which

prevents discrimination on the basis of sex, race, national

origin and religion in employment.

19

urge the court to apply the Franklin rationale to the

case at bar to provide an alternative theory of

protection for victims of workplace and campus

violence, violating both the ADEA and Title VII.

IV.Taxing Defendants’ Costs to Appellant Will

Have a Chilling Effect on Title VII Plaintiffs.

Amici urge this Court to reverse the district

court’s taxation of Howard University’s costs to Prof.

Martin. NOW has campaigned against the

imposition of costs on good-faith civil rights

plaintiffs’* for the same reasons that costs should not

be imposed upon Ms. Martin.

A woman who acts as a “private attorney

general,” in good faith, to eliminate sexual

harassment in the workplace, should not be forced to

pay the unpredictable litigation costs of a wealthy

defendant simply because the court did not adopt her

reasonable and well-grounded legal arguments.

This Court and others have said that trial

judges must exercise restraint in assessing whether

costs should be assessed against a non-prevailing

party in “public law litigation” cases such as Title

VII of the Civil Rights Act of 1964. Crawford

Fitting Co. v. Gibbons, 482 U.S. 437 (1987); Baez v.

the United States, 684 F.2d 999, 1003-1004, 1007

(D.C. Cir. 1982); Pannonia Farms v. RE/Max

International, Inc, 2005 WL 3262902 at * 3 (D.D.C.

2005); Summit v. Technology, Inc. 435 F.3d 1371,

1374 (Fed. Cir. 2006); Dual v. Cleland, 79 F.R.D.

696, 697 (D.D.C. 1978). Theee courts were unwilling

to “chill” the pursuit of the objectives of Title VII by

** NOW responded to the Eleventh Circuit's imposition of costs

on plaintiff Lilly Ledbetter, after she lost her case on the merits

before this high Court. See Ledbetier v. Goodyear Tire &

Rubber Co., Inc., 127 S. Ct. 2162 (2007).

20

individuals who believed they were injured by illegal

discrimination.

NOW and its sister Amici now urge this high

Court to expressly adopt the criteria offered by other

jurisdictions to prevent the unjust result imposed on

Ms. Martin by the district court. In County of

Suffolk v. Secretary, 76 F.R.D. 469 (E.D.N.Y. 1977),

the court set forth factors to be considered in

determining whether costs should be assessed

against plaintiff in public law litigation:

1) whether the action was brought and carried

forward in good faith; 2) whether the prosecution of

the action provided direct benefits to the public; 3)

whether the action resulted in direct or indirect

benefit to the defendant; 4) whether novel and

substantial issues of law or fact were resolved; 5)

whether costs were required to reimburse needy

defendants; 6) whether costs would unduly burden

non-affluent plaintiffs; and 7) whether the

imposition of costs would unduly inhibit future

similar challenges.

The jury's factual findings in Prof. Martin’s

favor demonstrate her good faith in instituting and

maintaining this lawsuit. The Amici’s participation

further demonstrates that the issues she raised in

this case are important issues of public policy. The

district court’s decision to impose Howard’s costs on

Prof. Martin sets precedent that unfairly burdens

Title VII plaintiffs and chills the exercise of civil

rights protections, and should be reversed.

CONCLUSION

Amici Curiae respectfully join Ms. Martin's

Petition for Certiorari.

Respectfully Submitted,

Roberta Y. Wright, Esq.

Counsel for Amici Curiae

Law Office of Roberta Y. Wright

1111 14% Street, NW, Suite 820

Washington, DC 20004

(301) 526-0474

APPENDIX

Additional Amici

1) Peace at Work

P.O. Box. 41214

Raleigh, NC 27629

2) The Arizona Coalition against Domestic Violence

301 E. Bethar.y Home Road, Ste. C194

Phoenix, AZ 85012

3) Iowa Coalition against Domestic Violence

515 28" Street

Des Moines, IA 50312

4) Survivors in Action

P.O. Box 4584

El! Dorado Hills, CA 95762

5) The Weaker Vessel

P.O. Box 2603

Gary, Indiana 46403

6) After the Trauma, Inc.

P.O. Box 1533

Clinton, MD 20735

7) California Protective Parents’ Association

P.O. Box 15284

Sacramento, CA 95851