Women and Justice: Keywords

Domestic Case Law

Ettner v. City of Medford Oregon Court of Appeals (2001)

Employment discrimination, Gender discrimination

Although plaintiff had satisfactorily completed her firefighter-training year and had been highly recommended for advancement, she was found to have allegedly failed five final task tests and her employment was terminated shortly thereafter. Plaintiff filed an action against defendant City of Medford for unlawful employment practice alleging she was unlawfully discharged as a firefighter on the bases of gender and of perceived impairment in violation of ORS 659.030 which provides, in pertinent part, “(1) It is an unlawful employment practice: (a) For an employer, because of an individual's . . . sex, . . . to . . . discharge from employment such individual. However, discrimination is not an unlawful employment practice if such discrimination results from a bona fide occupational requirement reasonably necessary to the normal operation of the employer's business.” Plaintiff was required to prove only that she was treated less favorably than male candidates because of sex, which is sufficient to establish a discriminatory motive. The Circuit Court found for the employee on the gender discrimination claim, and the appellate court affirmed. Here, the grading was unfair to plaintiff because it was highly subjective and allowed for too much internal bias. Furthermore, because two of the evaluators were officers who had previously expressed reservations regarding a gender-integrated department on behalf of other firefighters, it was a permissible inference that those evaluators attempted to give effect to the line firefighters' animus by giving plaintiff lower scores than she deserved. These testing problems existed within a context, revealing a general animosity toward female firefighters as firemen had told plaintiff that they were having problems with their wives over the hiring of a woman and had expressed concerns about plaintiff’s ability to ably assist the other firefighters during a fire despite plaintiff’s proven physical ability. Finally, plaintiff's success as a firefighter before and after her experience in Medford provided circumstantial evidence of discriminatory treatment. Thus, the appellate court affirmed the judgment, concluding that plaintiff satisfied her burden in proving that gender was a substantial and impermissible factor in the city's decision to discharge her.



Cuddyer v. Stop & Shop Supermarket Co. Supreme Judicial Court of Massachusetts (2001)

Employment discrimination, Sexual harassment

Here, the plaintiff worked for the defendant as a worker on production lines.  Since the first day she was sexually harassed by her supervisor and two foremen, as were other women workers. Although plaintiff reported some of the incidents, she did not report all because she was afraid the supervisor would make her work harder if she complained. Complaints to management were followed by periods of relief, but the sexual harassment would restart or would turn into a hostile work environment. Similar occurrences continued and the plaintiff filed the suit against the defendant for a hostile work environment. Gen. Law. C. 151B, § 5 requires a plaintiff to file a complaint with the Massachusetts Commission against Discrimination (“MCAD”) within six months of the occurrence of the discrimination to allow the MCAD an opportunity to investigate the claim and to provide the defendant with notice of potential liability. However, this requirement does not exist where the discrimination is of a continuing nature and where there is a discrete violation within the six-month period to anchor the earlier claims. Here, the plaintiff did not file a complaint with the MCAD within six months of the first occurrence. The defendant argued that the continuing violation doctrine does not apply here because the plaintiff admitted in her deposition that she considered the discrimination by other employees at the time the acts occurred. A continuing violation claim will fail if the plaintiff should have been aware that she was being discriminated against while the earlier acts which are now untimely, were taking place. Id. at 534-35. The court found though that a plaintiff may not be able to appreciate the true character of the discriminatory environment until after it has continued for some time. Further, a hostile work environment constitutes a pattern of sexual harassment, which by definition, has to take place over time. The court found the plaintiff’s claims were thus timely and not barred by the six-month requirement.



Schuster v. Derocili Delaware Superior Court (2001)

Employment discrimination, Sexual harassment

Here, the plaintiff was an at-will employee whose contract could be terminated by either party giving thirty days written notice. The plaintiff mainly worked for the defendant, who was the president and controlling shareholder of the company. The plaintiff alleged the defendant made sexual comments and advances towards her a few weeks after she commenced work and also touched her inappropriately. The plaintiff told the defendant his behavior made her uncomfortable but he did not stop. Subsequently, the plaintiff began recording the defendant’s conduct in a journal and rejecting his advances more forcefully. The defendant subsequently fired the plaintiff for substandard job performance. Under 19 Del. C. § 711, an employer may not discriminate against an employee based upon gender. The defendant argued that there could be no common law cause of action for employment discrimination because there was already a statutory scheme, and the plaintiff was required to abide by the specific procedures of that statute to bring such a claim. Specifically, the defendant argued that judicial review is only available after the Delaware Department of Labor Review Board hears the matter. Plaintiff based her theory on a breach of the implied covenant of good faith and fair dealing derived from the employment contract and as such, her claim did not arise directly from § 711. The court found that the plaintiff had a common law cause of action and she could bring her claim.



Okun v. Misiewicz Connecticut Superior Court (2001)

Gender discrimination

Here, the plaintiff filed a claim of sexual harassment against the defendant under Gen. Stat. § 46a-60, alleging that the harassment caused low self esteem, damage to the plaintiff’s career and reputation, lost wages, lost insurance, lost fringe benefits, and physical and mental pain and suffering. The defendant argued that the plaintiff could not bring a claim for a hostile working environment because under § 46a-82, the plaintiff was required to exhaust administrative remedies prior to seeking redress in court. Id. at *1. Specifically, the plaintiff was required to file a complaint with the Commission on Human Rights and Opportunities and obtain a release from the Commission to file an action in court. Id. at *2. The plaintiff failed to do either of these and claimed she was exempt; she claimed the Commission’s remedies were inadequate because the Commission has no authority to award compensatory and punitive damages, both of which the plaintiff sought. Id. The court dismissed the plaintiff’s complaint as it found that the Commission’s authority is not based upon a plaintiff’s preferred remedy; she must still file a complaint with the Commission and obtain a release to bring an action in court. Id. at *4.



Griffin v. City of Opa-Locka United States Court of Appeals for the Eleventh Circuit (2001)

Sexual harassment, Sexual violence and rape

A. Griffin was employed as a billing clerk in the City of Opa-Locka’s water department in 1993. Shortly after hiring Griffin, the city hired Earnie Neal as its City Manager. After taking office, Neal immediately began sexually harassing Griffin. He called her derogatory names, aggressively pursued her, and made inappropriate advances. He performed some of these acts in front of the Mayor and City Commissioner. Griffin continually resisted his advances and attempted to go on with her daily routines in fear of being fired. Eventually, Neal raped Griffin in her apartment after insisting he drive her home after an event put on by the city. Griffin waited several months to come forward about the rape, and the lawsuit ensued. Griffin sought damages against the City for 13 and sexual assault under Title VII; the Florida Civil Rights Act; 42 U.S.C. § 1983, and state tort law. She also alleged claims against Neal. At trial, a jury found that Neal sexually harassed Griffin, that the harassment was a custom or policy of the City, Neal raped Griffin under color of law, the City was deliberately indifferent in hiring Neal, and found against Neal on all tort claims. The subsequent damage award amounted to $2 million dollars. On appeal, the Eleventh Circuit agreed with the district court that Neal was acting under the color of law and that 13 was the on-going, accepted practice at the City and that the City Commissioner, Mayor, and other high ranking City officials knew of, ignored, and tolerated 13. But because the record did not establish that the jury below found the City had a custom or policy of allowing rape or that the rape incident was part of the custom or pattern of 13, the court found that the suit lacked all essential aspects of a § 1983 case against the City. As such, the verdict and judgment against the City for rape under § 1983 was vacated. All other charges against the City were affirmed. The $1.5 million dollar verdict against the City was reversed. The City was still found liable for 13 due to the hostile work environment it fostered, as well as deliberate indifference in the hiring of Neal.



Gregory v. Daly United States Court of Appeals for the Second Circuit (2001)

Gender discrimination

Plaintiff alleged that she was subjected to a hostile work environment and that when she complained, her employer fired her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Plaintiff argued that her executive director subjected her to sexual ridicule, advances, and intimidation. He also intensified his harassment in response to her complaints, deprived her of work responsibilities, undermined her ability to do her job, and ultimately fired her. The lower court dismissed her case. On appeal, however, the Second Circuit Court of Appeal reversed that decision. It found that Plaintiff could reasonably have found her workplace to be both physically and sexually threatening, based on her allegations about the executive director. It reasoned that the alleged environment could have hurt Plaintiff’s job performance, discouraged her from remaining on the job, or kept her from advancing in her career. Thus, the court concluded, the conduct alleged was contrary to Title VII’s objective of promoting workplace equality. The appeals court also found that Plaintiff could proceed with her case against her employer for retaliation because he fired her after she complained about his behavior.



Luque, Guillermo Daniel y Tula, Luis Raúl s/ homicidio preterintencional Supreme Court of Argentina (2001)

Sexual violence and rape

Defendant was convicted as accomplice in a rape and murder while under the influence of narcotics. The regional appellate court affirmed the trial court's ruling, but the national Supreme Court, while upholding the conviction, held that Article 13 of Law 23.737, which calls for heavier sentences when crimes are committed under the influence of narcotics, was not applicable in this case. The case was remanded to the regional appellate court.

El acusado fue condenado como cómplice en una violación y asesinato bajo la influencia de narcóticos. El tribunal de apelación regional confirmó la decisión del tribunal de primera instancia, pero el Tribunal Supremo nacional, aunque confirmó la condena, sostuvo que el artículo 13 de la Ley 23.737, que exige penas más severas cuando los delitos se cometen bajo la influencia de narcóticos, no era aplicable en este caso . El caso fue remitido a la corte de apelaciones regional.



Ministerio Público c/ Julián Cachiqui Da Costa Sala Penal (2001)

Sexual violence and rape

Defendant was accused of aggravated rape of his 11-year old daughter, in violation of Art. 308 and 310-2 of the Penal Code. The defendant admitted to the rape, explaining it was an irresistible impulse. The trial court held that there was sufficient evidence not only to prove that the Defendant had raped his daughter, but that he had used force and threats of force to do so. Defendant was sentenced to 12 years in jail, and fined punitive damages. On appeal, the appellate court held that the appropriate sentence was 13 years, and that the penal code did not allow for the punitive damages. The Supreme Court affirmed.