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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1237%3A4. Public record. Not legal advice.