Women and Justice: Keywords

Domestic Case Law

Allegheny County v. Wilcox Pennsylvania Commonwealth Court (1983)

Gender discrimination

The defendant-appellant, the Court of Common Pleas, appealed a ruling by the Pennsylvania Human Relations Commission (“PHRC”).  The PHRC had ruled that the defendant discriminated against female secretaries with respect to compensation and directed them to upgrade the secretaries’ wages and to pay them back pay.  The defendant argued that the PHRC could not require it to increase the wages and also that it was not considered an “employer” under 43 P.S. § 954(b).  The defendant argued that the definition of employers does not include a reference to courts and that any application of the Pennsylvania Human Relations Act violates the doctrine of separation of powers by allowing the executive and legislative branches to interfere upon the judicial branch. The court found that the defendant failed to show how its authority was encumbered by the Human Relations Act.  The court also found that compelling the upgrade or equalization of pay was proper where, inversely, a court could compel a legislative body to spend money that is reasonably necessary for the body’s proper operation and administration.  Thus, the court affirmed the PHRC’s finding and ruled that the PHRC could require the defendant to increase the female secretaries’ wages and order back pay.



Nearing v. Weaver Oregon Supreme Court (1983)

Domestic and intimate partner violence

Here, plaintiffs Henrietta Nearing and her two children appealed the order of the Court of Appeals, which affirmed a grant of summary judgment to respondents city and police officers for failure to follow the mandatory arrest provisions of Or. Rev. Stat. § 133.310(3) for violation of a domestic protective order. Plaintiff Henrietta Nearing was separated from her husband and received a restraining order against him after he was arrested and charged with assault for entering her home without permission and striking her. Plaintiff reported her husband’s subsequent multiple returns to her home, damaging the premises and the property of her friend, threats of physical violence to her friend, and attempts to remove the children. Despite these complaints, defendant officers took no action to restrain plaintiff’s husband. Two days after plaintiff’s last report, her husband telephoned her and threatened to kill her friend and subsequently assaulted the friend in front of plaintiff’s home. The Supreme Court of Oregon reversed the summary judgment and held that plaintiff’s complaint alleged facts that, if proved, obliged the St. Helen’s police officers to respond to plaintiff’s call for protection against the exact kind of harassment proscribed by the statute. The duty was not an ordinary common law duty of due care, but a specific duty imposed by statute for the benefit of individuals previously identified by a judicial order. The court ruled that plaintiffs could recover for either psychic and emotional injuries, or physical injuries that were caused by the police officers’ failure to comply with a mandatory arrest statute.



State v. Felton Wisconsin Supreme Court (1983)

Domestic and intimate partner violence

The court held that lawyer’s representation of domestic violence victim/ criminal defendant constituted ineffective assistance of counsel where lawyer failed to inform himself of statutes regarding heat-of-passion manslaughter defense to first-degree murder charge and failed to consider the defense of not-guilty due to mental disease or defect, or make meaningful investigation into facts that would support the defense.  The defendant was married to her husband for twenty-three years; during that time her husband severely abused her and her children.  Defendant shot and killed her husband while he was asleep.  Her counsel used the “battered spouse” defense, claiming that she acted in self-defense.  The jury received instructions on first degree murder, second degree murder and manslaughter and on the privilege of self defense.  However, “there was no request for instruction on heat-of-passion manslaughter.”  After her conviction by a jury of second degree murder, appellate counsel brought a post-conviction motion arguing trial counsel was ineffective.  The trial attorney admitted that he was not “well-versed in criminal law.”  Although he practiced for three years, his practice had not been in Wisconsin and he never “handled an entire felony case.”  He acknowledged that he was probably incompetent to handle a case of this magnitude.”  The court held that “counsel’s conduct did not rise to the standard expected of a prudent lawyer reasonably skilled and versed in the criminal law.”  It also found that the “conduct of counsel prejudiced the defendant by depriving her of important defenses.”  Therefore, it held counsel was ineffective.  It reversed the portion of the court of appeals decision which found defendant guilty and affirmed the part which ordered a new trial on the “question of criminal responsibility.” 



Garner v. State Commission on Ethics Florida 2nd District Court of Appeal (1983)

Sexual harassment

Complaints were filed with Florida Commission on Ethics against Garner alleging that he attempted to use his position as president of Hillsborough Community College to sexually harass or obtain sexual favors from various female personnel. Following a hearing on the complaints the Commission on Ethics suspended Garner from office for three months. Garner appealed based on Florida Statutes Section 112.313 which provides that “no public officer or employee of an agency shall corruptly use or attempt to use his official position … to secure a special privilege, benefit or exemption for himself or others …” The section defines “corruptly” as “done with a wrongful intent and for the purpose of obtaining ... any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.” Garner claimed that this statute did not provide adequate notice that 13 was prohibited and that it was intended to cover only economic benefits. In addition, Garner claimed that there were no adverse job-related effects upon employees subject to his conduct. This Court held that since the charges against Garner included his obtaining sexual favors, Garner was “benefited” and that his actions were consistent with the definition of “corrupt” as being inconsistent with the performance of his official duties. Furthermore the Court indicated that it could find no legislative intent to restrict the reach of the statute to economic benefits and that there is no requirement in the statute that as a result of the public officer’s efforts to obtain a benefit from an employee that employee will necessarily be impacted in any particular way. As such, the Court upheld Garner’s suspension.



Melani v. Bd. of Higher Educ., United States United States District Court for the Southern District of New York (1983)

Gender discrimination

Plaintiffs sued the board of trustees of the City University of New York (“CUNY”), alleging that CUNY discriminated against its female professors because it paid them less than its male professors, pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. section 2000e (“Title VII”). As evidence, Plaintiffs provided statistics about the faculty’s pay that demonstrated that the female professors were paid less. Defendant argued in response that the female staff were paid less based on merit, specifically because women devoted more time to child-rearing, had fewer publications, and worked in academic fields for which the market demand was less. The court found that Defendant failed to successfully counter Plaintiffs’ claim because its testimony was little more than generalizations: its evidence did not relate to the CUNY female faculty and did not explain the salary disparity between the male and female faculty. Thus, the court found that Defendant violated Title VII by paying Plaintiffs a lower salary because of their sex.