Women and Justice: Keywords

Domestic Case Law

2001 (Ju) No. 1066 Supreme Court of Japan (2003)

Employment discrimination

The plaintiff exercised her right under Japanese law to reduce her working hours to spend time taking care of her child. The internal policy of her employer stated that employees who did not attend work for 90% or more of work days are ineligible for a bonus. The plaintiff’s employer counted the plaintiff’s shortened working days as absences and refused to pay her a bonus. The plaintiff sued her company for a bonus. The Supreme Court determined that the employer’s internal policy violated public policy and the employer should have counted actual working hours when calculating attendance rate.



State v. Bruneau Rhode Island Supreme Court (2003)

Domestic and intimate partner violence

Defendant appealed a conviction of violating a no-contact order, resulting in imprisonment for thirty months. The defendant’s ex-wife had obtained a protective order, which the defendant violated. Specifically, the defendant called his ex-wife to arrange to visit their daughter. Suspecting that he was drunk, she asked that he call the next day, but the defendant arrived ten to fifteen minutes later and was let into the house from the ex-wife’s roommate’s daughter. The ex-wife did not see the defendant in the house but heard his voice, and called the police. The defendant contested his conviction on the basis that his violation took place after the temporary restraining order expired. However, because a permanent order was in place at that time, directed towards the same conduct as the temporary order, this argument could not stand. The defendant then argued that he did not have actual notice of the order because it was mailed to him and was not personally served. The court rejected this argument also and found that service by mail was proper. The court affirmed the conviction.



Ex parte Alabama Department of Youth Services Supreme Court of Alabama (2003)

Custodial violence, Sexual harassment, Sexual violence and rape

Jane Doe 1 and Jane Doe 2, female minor children in the custody of Alabama’s Department of Youth Service (“DYS”), brought an action against DYS and its executive director, alleging federal claims of sexual harassment and abuse under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”) and 42 U.S.C. § 1983, and state claims of intentional infliction of emotional distress, negligent hiring and supervision of DYS employees, and intentional misrepresentation. Defendants’ filed a motion to dismiss the claims based on various arguments for immunity, which the trial court denied. Defendants filed a petition for writ of mandamus directing the Circuit Court to dismiss the complaint. In ruling on Defendants’ petition, the Supreme Court considered each claim for immunity. First, DYS claimed it was immune from liability under the Eleventh Amendment. The Court, however, held that, because Congress enacted Title IX not only pursuant to its Article I powers, but also pursuant to its Fourteenth Amendment, § 5, power, Congress successfully abrogated the Eleventh Amendment immunity of the states from suits in federal and state courts for violations of Title IX. Second, the executive director argued he was entitled to federal qualified immunity from the § 1983 claim, since he was a government official. The Court disagreed, citing law holding that there is no state interest in protecting government officials accused of sexually molesting a child. Because the plaintiffs alleged that the executive director failed to protect them from harm even after he received notice of the sexual harassment and abuse, he did not have a clear legal right to dismissal of plaintiffs’ § 1983 claim on the ground of federal qualified immunity. Third, the Court found that, based on the sovereign immunity provision of the Alabama constitution, dismissal of plaintiffs’ state-law claims against the executive director in his official capacity was proper. However, the Court found that the doctrine of state-agent immunity did not warrant dismissal of plaintiffs’ state law claims against the executive director in his individual capacity.



Thames Talent, Ltd. v. Com'n on Human Rights and Opportunities Connecticut Supreme Court (2003)

Employment discrimination, Sexual harassment

Plaintiff was hired as a bookkeeper and secretary for the defendant company, and worked exclusively for the company’s president. The president subjected plaintiff to comments about the her clothing and body, quizzed her about intimate details of her sex life, purchased underwear for her, and showed her pictures of naked women. Some of this behavior was done in front of other employees. In response, plaintiff began wearing baggy clothing to work and told the president that his behavior made her uncomfortable. Subsequently, in a discussion about plaintiff’s work performance, the president told plaintiff that he was happy with her work and that she may receive a raise if her performance continued. Two days after this discussion, plaintiff met with the president again to discuss her discomfort at work due to his comments. Several days later, the president terminated plaintiff’s employment. Plaintiff sought back pay and reimbursement to the state for unemployment compensation benefits. The trial court granted back pay but did not order reimbursement. Defendant appealed against having to provide back pay, arguing that under Gen. Stat. § 46a-86, an order of reinstatement to the employment position is a prerequisite for back pay or reimbursement, and the court had not ordered reinstatement. The court rejected this argument and found it could order back pay and reimbursement even though reinstatement to the position was not ordered by the trial court.



Madeja v. MPB Corp. New Hampshire Supreme Court (2003)

Sexual harassment

Here, the plaintiff worked for the defendant, who manufactured ball bearings. After commencing work, the plaintiff’s trainer told a supervisor that he could not work around the plaintiff due to her attitude. The plaintiff responded that the trainer had been engaging in sexually harassing behavior. The supervisor warned the trainer, following which the trainer did not bother the plaintiff again, but was hostile towards her. Soon thereafter, another trainer, friend of the previous trainer, started making complaints about plaintiff. After this new complaint, the supervisor inspected the plaintiff’s work and concluded she was unproductive. The supervisor then spoke with the senior shift supervisor about the plaintiff’s low productivity. The shift supervisor did not know about the plaintiff’s complaint against the trainer and recommended that the supervisor terminate the plaintiff. The plaintiff was subsequently terminated and then sued the defendant for sexual harassment. The jury during the trial found the defendant was guilty for a hostile work environment under N.H. Rev. Stat. § 354-A. The defendant argued that the judge’s jury instructions were improper because they would hold the defendant liable for a merely negligent response to the sexual harassment, which should be insufficient to find liability. The court noted that under N.H. Rev. Stat. § 354-A, an employer is liable for sexual harassment committed by a co-worker of the plaintiff if the employer knew or should have known about the harassment and failed to take prompt, effective remedial action to end the harassment. The court further noted that an employer may be liable for an employee’s sexual harassment based on the employer’s negligence to remedy the situation.


T.L. v. W.L. Delaware Family Court (2003)

Domestic and intimate partner violence

Here, the plaintiff sought a protection order from a Delaware court.  The defendant argued that a Delaware court had no jurisdiction over him, as the alleged abuse did not occur in Delaware, and he was a non-resident.  Further, the plaintiff and her children were present in Delaware only for two days upon filing the petition.  Id. at 508.  The court noted that Delaware enacted the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, which allows courts to register and enforce valid protection orders from other states.  Id. at 513.  The court found that because Delaware would recognize any protection order, the wife should have more appropriately requested the order in Ohio, as the defendant’s due process rights outweighed Delaware’s interests to protect its residents from domestic violence.



B.C. v. Rhodes Court of Appeals of Texas – Austin District (2003)

Domestic and intimate partner violence, Sexual violence and rape

T.L.R. was an eighth-grader at the Texas School for the Deaf and was dating B.C., also an eighth-grader at the School. After about two months of dating, B.C. approached T.L.R. and told her he wanted to have sex with her; she responded “no” twice and tried to get away from him by entering the girls’ restroom. B.C. followed her into the restroom. T.L.R. told him “I don’t want this” but B.C. took her clothes off, took his clothes off, told her to lie down on the floor, and penetrated her. T.L.R.’s father sought and obtained a protective order against B.C. on behalf of his daughter. B.C. argued that, because T.L.R. was a minor, the court was without jurisdiction to issue the protective order, claiming that only an adult member of a dating relationship is entitled to seek a protective order for dating violence. The court held that, under sections 71.004 and 82.002 of the Texas Family Code, any adult may apply for a family violence protective order to protect a child from “dating violence.” Moreover, the evidence was legally and factually sufficient to support the protective order: T.L.R. twice told B.C. “no” and did not help him undress her, and, B.C. sent a hostile message to her.



Menefee v. McCaw Court of Appeals of Texas – Dallas Division (2003)

Gender discrimination

Sherri Menefee filed an employment sex discrimination and retaliation case against her employer, McCaw Cellular.  Sherri was hired as the manager of the IT department for the company’s southwestern region.  She alleged that her boss discriminated against her and that she was subjected to a less favorable environment based on her sex and was terminated shortly after complaining about the discrimination.  Under the Texas Commission on Human Rights Act (Texas Labor Code § 21.051(1)), an employer commits an unlawful employment practice if, because of sex, the employer discriminates in any manner against an individual in connection with compensation or the terms, conditions, or privileges of employment.  The Act is modeled after the federal Title VII and therefore Texas courts may look not only to cases involving the state statute but also to cases interpreting the analogous federal provisions.  In discrimination cases based upon circumstantial evidence, the plaintiff must first establish a prima facie case by showing: (1) she was a member of the protected class, (2) she was qualified for the position she held, (3) she was discharged or suffered an adverse employment action, and (4) she was replaced with a person who is not a member of the protected class or she was otherwise treated differently from persons outside the protected class.  Once the plaintiff makes this “minimal” showing, the burden of production shifts to the employer to produce evidence that the plaintiff was terminated for a legitimate, nondiscriminatory reason.  Then the plaintiff must establish that the legitimate reason was a “pretext” by showing that a discriminatory motive move likely motivated the employer’s decision, such as through evidence of disparate treatment or that the employer’s explanation is unworthy of credence.  In this case, Sherri established a prima facie case, and McCaw met its burden by producing evidence that Sherri was fired because she was not a “good fit” for her team.  Sherri sufficiently evidenced that this reason for her termination was a pretext because the reason she could not create a cohesive team was due to the discriminatory conduct and disruptive behavior of her boss and the failure of her supervisors to take action when she complained; moreover, she presented evidence that she had been told she was doing a good job.  Thus, Sherri sufficiently raised a factual issue to survive summary judgment.



J.Y. Interpretation No.559 (2003)

Domestic and intimate partner violence

In the case of protection orders involving monetary payment, the Domestic Violence Prevention Act explicitly authorizes the agency empowered to execute such orders and sets forth procedures and methods or doing so, in keeping with Constitutional requirements.  However, for protection orders not involving monetary payment, the Act provides only general authorization of police agencies without procedures and methods, so the Act must be amended to fulfill the Constitutional requirement of specific and explicit authorization by law.



International Case Law

K.L. v. Peru Human Rights Committee (2003)

Gender-based violence in general

HRC held that Peruvian government violated Article 7 (the right to be free from cruel, inhumane and degrading treatment), Article 17 (the right to privacy) and Article 24 (special protection of the rights of a minor) when it denied 17 year-old the right to a legal therapeutic abortion.



Democratic Republic of Congo v. Republics of Burundi, Rwanda, and Uganda African Commission on Human and Peoples' Rights (2003)

Sexual violence and rape, Gender violence in conflict

The armed forces of Burundi, Rwanda, and Uganda engaged in systematic violence against the people of the Democratic Republic of Congo (the DRC). As part of that violence, approximately 2,000 HIV-positive Rwandan and Ugandan soldiers raped Congolese women and young girls in order to spread AIDS to the Congolese population. The DRC brought the complaint asserting, among other things, that the mass rape and deliberate infection of women and girls with HIV constituted a violation of human rights under the African Charter. The respondents did not deny the occurrence of mass rape and infection, but responded that "there is never group responsibility for violations" like rape. The Commission noted that the mass rape of women and girls as a tool of systematic violence violated article 76 of the first Protocol Additional to the Geneva Conventions of 1949, which provides that "[w]omen shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other forms of indecent assault" and also "offend[ed] the African Charter and the Convention on the Elimination of All Forms of Discrimination Against Women." It therefore held that this offense violated articles 60 and 61 of the African Charter, which enable the African Commission to draw inspiration from international law on human and peoples' rights and take into consideration general principles of law, such as the humanitarian law principles contained in the Geneva Conventions. The Commission urged the respondent states to abide by their obligations under the African Charter and other applicable international and regional law and immediately withdraw their armed forces from the DRC. The Commission also requested that adequate reparations be paid to the DRC for and on behalf of the victims of the human rights violations.