This memorandum compiles international and regional best practices guidelines, model laws, and progressive practices of domestic courts to protect adult and child victim-witnesses before, during, and after trials.
Women and Justice: Keywords
In 2008, Tanzania adopted the Anti-Trafficking in Persons Act (ATPA) to combat human trafficking, mandate stricter investigation and prosecution, and afford protection to victims of trafficking. This report: explains and evaluates the ATPA, including the effectiveness of its implementation since its enactment in 2008; describes similar acts around the world, including an evaluation of those laws’ implementation and effectiveness; offers specific recommendations for Tanzania to enhance the effectiveness of its anti-trafficking law.
This memorandum examines the definition of cohabitation and its effect upon agreements between cohabitants in Louisiana, U.S.A.
This memorandum briefly outlines the history and structure of problem-solving courts in New York state, with a special focus on New York's Integrated Domestic Violence Court System.
This paper explores some of the ways in which violence against women relates to the imprisonment of women. It focuses on the role of gender-based violence as a pathway to and consequence of women’s incarceration, as these connections have generally received less attention than violence against women as a prison condition. The paper also considers how these pathways and consequences implicate states’ international law responsibility to eliminate violence against women and offer suggestions for how states might more effectively realize that obligation.
Domestic Case Law
Myra Bradwell petitioned to be admitted to the bar and to be allowed to practice law, but was denied by the Supreme Court of Illinois. The United States Supreme Court upheld this decision, noting that a woman’s freedom to pursue the occupation of a lawyer was not a “privilege and immunity” of Untied States citizenship that was protected from state restriction by the 14th amendment to the United States Constitution. Thus the court found that excluding women from the bar did not violate the U.S. Constitution.
In Goodell, the Supreme Court of Wisconsin refused to include women within the construction of the word “person” and denied Goodell admission to the bar because she was a woman. Judge Ryan noted that that extending the meaning of “person” to include females as well could result in perverse interpretations of the law, and provided examples of the ridiculous results he foresaw, including the “prosecution [of a woman] for the paternity of a bastard…” In support of his conclusion that a gender-neutral statute did not mean that women could be admitted to the bar, Judge Ryan also maintained that the admission of women to the bar was not something contemplated by the state legislators who enacted of the legislation in question; thus he found “no statutory authority for the admission of females to the bar of any court of [Wisconsin].”
The Supreme Court stated that a woman could not be admitted to the bar because she was under a common law disability: she did not have the right to enter into contracts with third persons without the permission of her husband.
Here, claimant sought judicial review of an order of the Employment Appeals Board that denied her claim for unemployment insurance benefits after finding that claimant failed to establish that her belief that further stalking by a fellow employee would occur was reasonable. Claimant argued that the Appeals Board erred in concluding that she quit her job without good cause after being stalked by a co-worker for several months. Under ORS 657.176(12), an individual could not be disqualified from receiving benefits under subsection (2)(c) if: (a) [t]he individual is a victim, or is the parent or guardian of a minor child who is a victim, of domestic violence, stalking, or sexual assault; (b) [t]he individual leaves work . . . to protect the individual or the minor child from further domestic violence, stalking or sexual assault that the individual reasonably believes will occur at the workplace or elsewhere.” The Court of Appeals of Oregon reversed and remanded for further proceedings, finding that claimant’s belief that further stalking would occur was reasonable, in light of her stalker ignoring warnings from the police to leave claimant alone, disregarding some of the restrictions that employer instituted after the first temporary stalking protective order (SPO) was issued and in light of his conduct escalating and becoming increasingly alarming.
Littell worked as a paralegal for Allstate in 1996. Aakhus, Littell’s supervisor, regularly told demeaning jokes, touched women inappropriately, commented about other employees’ sexual preferences, and tolerated similar behaviors by other coworkers. After Littell anonymously reported Aakhus to Allstate headquarters, Aakhus started to belittle her in public, disciplined her for pretextual reasons, and became more aggressive in general. Littell eventually left her job after Aakhus denied her leave to deal with a “family crisis.” Aakhus was discharged after Littell left Allstate. Littell subsequently sued Allstate, alleging, among other things, sexual harassment and retaliatory discharge. The jury reached a verdict in favor of Littell, awarding her $360,000 in compensatory damages and $1 million in punitive damages. Allstate appealed.
Plaintiff worked for the defendant and sold cars. Following termination of her employment, she filed a complaint with the Humans Rights Commission. The Commission found she was entitled to back pay, fringe benefits, interest, and that the defendant was to cease and desist its unlawful employment practices. In response to defendant’s appeal, the court found that the plaintiff’s testimony that she was never confronted for unsatisfactory work performance, and she neither received formal evaluations, nor written or oral warnings was credible. Notwithstanding her positive performance, the plaintiff was terminated. The defendant argued that she was “laid-off,” and that the Commission failed to take into account that the defendant did not hire a male replacement for the plaintiff’s position. However, the defendant did hire a male employee a day before it fired the plaintiff. The court found that the Commission was entitled to reject the defendant’s testimony and find that it was clear that the plaintiff was replaced by a male employee. Thus, the Commission’s finding of liability was affirmed.
Here, appellants, the State and the children, sought review of a judgment from the circuit court, which found in favor of respondents, a mother and father, in the State’s action to terminate their parental rights. The Court of Appeals of Oregon reversed and remanded with instructions to enter judgment terminating the parental rights of father and mother. With reference to ORS 419B.504, the Court of Appeals of Oregon terminated the father’s parental rights with regard to his own daughter, because he was convicted for sexually abusing the mother’s daughter from previous marriage and had sexually abused his own daughter. In addition, integration of the children into his home was unlikely in the foreseeable future. In keeping with ORS 419B.504, the Court of Appeals of Oregon terminated the mother’s parental rights, because the children were subjected to severe sexual abuse while in her care, but she had neither recognized the signs of sexual abuse nor protected them. Furthermore, the evidence also demonstrated that mother would not be able to adjust her behavior to protect the children in the future, most importantly because she continuously denied the possibility that father subjected the children to sexual abuse.
Ocana worked for the Santa Fe store of the American Furniture Co. (“AFC”) from July, 1997 to November 1998.On January 10, 2000, Ocana, acting pro se, filed a complaint in a trial court, charging AFC with, among other things, sexual harassment in violation of the NMHRA.In particular, Ocana claimed that the store manager touched himself in suggestive ways, stared at her breasts, and parked next to her even when he had a different, dedicated parking spot.AFC moved for summary judgment. The trial court granted summary judgment in favor of AFC, reasoning that “there was no evidence corroborating Ocana’s claims of sexual harassment; there were no witnesses and no evidence that she complained about the harassment until after she was fired; and she had been disciplined for as many as 14 major mistakes.”Ocana appealed.The Supreme Court of New Mexico reversed, holding that genuine issues of material fact precluded summary judgment on employee’s sexual harassment claims under the New Mexico Human Rights Act (“NMHRA”).
Defendant appealed a judgment of the District Court, convicting him of one count of assault and battery on a household member. Defendant argued, among other things, that the trial court abused its discretion in allowing the testimony of a convenience store clerk concerning statements the victim made to the clerk under the excited utterance exception to the hearsay rule. Defendant had gone to a bar with his friends and returned around 2:00 a.m. to the residence he shared with his girlfriend and their children, and entered into an argument with his girlfriend, at which time she slapped him and he hit her in the nose. The girlfriend took the children and left the house, driving to a nearby convenience store, where the convenience clerk called the police. At trial, the girlfriend testified that she did not remember whether or not she talked to the clerk about what happened. The clerk, however, testified that she told him that defendant hit her. The Supreme Court of Wyoming affirmed the judgment of the District Court, noting that the excited utterance exception applied to the circumstances and that the girlfriend’s statement to the sales clerk was spontaneous and not the result of reflection, deliberation, or fabrication. In affirming, the court specified five factors the trial court should consider in determining whether the excited utterance exception applies: 1) the nature of the startling event; 2) the declarant’s physical manifestation of excitement; 3) the declarant’s age; 4) the lapse of time between the event and the hearsay statement: and 5) whether the statement was made in response to an inquiry.
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.
Appellant-employer filed an appeal from a decision of the Court of Appeals, which reversed a ruling entered in the Superior Court, granting appellant’s motion for partial summary judgment and dismissing appellee-employee’s wrongful discharge claim. The Supreme Court of Washington affirmed the appellate court’s decision, holding that appellee properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment. When appellee was on unpaid maternity leave, appellant discharged appellee, claiming that the position was no longer available due to a business slowdown. Appellant re-advertized the position one year later, but when appellee applied she was refused reemployment. Appellee claims the reason given for her discharge (i.e., economic slowdown) was pretextual, whereas the real reason for her discharge was that she was pregnant. Appellee filed a claim for common law wrongful discharge in violation of the public policy against sex discrimination. Although an indefinite employment contract is generally terminable at will, an exception to the at-will rule exists in the form of a common law cause of action in tort for wrongful discharge of an employee where the discharge contravenes a clear mandate of public policy. In this case, public policy against gender discrimination is grounded in the constitution, statute, and prior court decisions. Therefore, the Supreme Court of Washington affirmed the judgment of the Court of Appeals, as appellee properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment.
Sabella worked for Manor Care, Inc. (“Manor”) from 1989 to 1990. Sabella claimed that her supervisor sexually harassed her and retaliated against her rejections by assigning her to less desirable jobs. On February 8, 1990, Sabella filed a grievance with the Equal Employment Opportunity Commission (the “EEOC”), but not with the New Mexico Human Rights Division (the “NMHRD”). While the investigation was pending, Sabella filed a claim for workers’ compensation benefits, claimed injuries such as bruised breast and emotional trauma due to sexual assaults. Sabella and Manor eventually settled the workers’ compensation claim. She signed an agreement that discharged Manor all current and future liabilities under the Workers’ Compensation Act. On August 24, 1993, Sabella received an order of non-determination from the NMHRD. Sabella appealed the order to the trial court. Manor filed a motion to dismiss, claiming that Sabella had not exhausted her administrative remedies as required by the NMHRA. Id. at 902-03. Manor specifically pointed out that Sabella had not filed her grievance with the NMHRD. Id. The trial court granted Manor’s motion to dismiss. Sabella appealed.
Appellant-father appealed the judgment of the District Court that terminated his parental rights. The Supreme Court of Wyoming affirmed, as the record contained clear and convincing evidence of abuse and neglect over the child’s lifetime, including evidence that the father caused the child to witness repeated episodes of domestic violence. Termination of parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iii) requires the establishment of three elements: (1) abusive treatment or neglect by the parent; (2) unsuccessful efforts to rehabilitate the family; and (3) the child’s health and safety would be seriously jeopardized by remaining with or returning to the parent. Abuse and neglect are defined in Wyo. Stat. Ann. § 14-3-202(a)(ii): (ii) “Abuse” means inflicting or causing physical or mental injury, harm or imminent danger to the physical or mental health or welfare of a child other than by accidental means, including abandonment, unless the abandonment is a relinquishment substantially in accordance with W.S. 14-11-101 through 14-11-109, excessive or unreasonable corporal punishment, malnutrition or substantial risk thereof by reason of intentional or unintentional neglect, and the commission or allowing the commission of a sexual offense against a child as defined by law. The Court concluded that the father had subjected the child to abusive treatment and neglect by causing the child to repeatedly witness domestic violence between him and the child’s mother.
Plaintiff was denied unemployment benefits by the Employment Security Board because prior to quitting her job, she did not notify her business manager that she was being sexually harassed by her supervisor. The plaintiff appealed. Plaintiff worked as a secretary for housekeeping and maintenance. For several months during her employment, the plaintiff’s supervisor made repeated sexual advances towards her by grabbing her, kissing her, and apologizing thereafter. Plaintiff complained once, but otherwise never complained to anyone other than her supervisor, and eventually quit her job out of fear of further unwanted sexual advances. She testified that she had never received a personnel policy, never knew of the existence of such a policy, and believed that she was to complain to her immediate supervisor. Notwithstanding, the Board found the plaintiff did not show that she had “good cause” to quit her job, since her business manager had no knowledge of the harassment. Under 21 V.S.A. § 1344(a)(2)(A), a party may not receive unemployment benefits where she quits voluntarily unless she shows she quit with “good cause.” On appeal, the court found that if there were a personnel policy in effect, there was no evidence that it was ever made known or available to the defendant’s employees. The court found that the plaintiff could not adhere to a policy (to notify a manager) that is not “sufficiently disseminated by the employer to employees.” Thus, the court reversed the Board’s conclusion and remanded the matter.
Plaintiff-ex-employee challenged the jury instruction given by the Superior Court, which directed the jury to find in plaintiff’s favor in a discrimination case brought pursuant to Wash. Rev. Code § 49.60.180(2), only if it concluded, inter alia, that gender was the determining factor in the decision by defendant ex-employer to discharge plaintiff. RCW 49.60.180(2) provides that “[i]t is an unfair practice for any employer . . . (2) [t]o discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained guide dog or service dog by a disabled person.” The Supreme Court of Washington declined to read the “because of” language of the statute, as requiring proof that one of the attributes enumerated in RCW 49.60.180(2) was a “determining factor” in the employer’s adverse employment decision. Rather, the Supreme Court reversed the lower court’s decision, holding that in order to prevail on a discrimination claim brought pursuant to RCW 49.60.180(2), plaintiff only needed to prove that her gender was a “substantial factor” in defendant’s decision to terminate her employment.
On July 15, 1994, a domestic violence protective order involving Gonzales and Wife was entered. The order contained a “stay away” provision, one that prohibited Gonzales from visiting Wife’s workplace. Five days later, on July 15, 1994, Gonzales was arrested for being at Wife’s workplace. The trial court found that Gonzales had violated the protective order in contempt and sentenced him to jail. Five days later, on July 25, 1994, Gonzales was again charged, this time for criminal false imprisonment, battery, stalking, and harassment. The July 25 charges were based on the same encounter as the July 20 conviction. Gonzales filed a motion to dismiss on the charges of stalking and harassment. He argued that the July 20 conviction for contempt should preclude a successive prosecution on stalking and harassment. Following this “double jeopardy” theory, the trial court dismissed the sexual harassment and stalking claims. The state appealed.
Appellants, two minor children, appealed the District Court’s grant of summary judgment for intentional infliction of emotional distress. The Supreme Court of Wyoming reversed, holding that genuine issues of material fact precluded the grant of summary judgment on the claims for intentional infliction of emotional distress. The claim for intentional infliction of emotional distress stemmed from a domestic violence incident, which involved appellee beating, kicking, punching, dragging by the hair and choking the mother of two children while screaming that he wanted to kill her. Although the Supreme Court of Wyoming agreed with the District Court that not every domestic violence altercation constitutes an extreme and outrageous conduct or results in sufficiently severe emotional impact to support a third party claim for intentional infliction of emotional distress, it also noted that appellee’s alleged conduct in this case amounted to conduct beyond mere insults, indignities and petty oppressions. If proved, it could be construed as outrageous, atrocious and utterly intolerable in a civilized community. Therefore, the grant of summary judgment was improper, as the jury should have been able to determine whether appellee’s conduct was sufficiently extreme and outrageous to result in liability.
Plaintiff worked for the defendant as a police officer. During training where plaintiff was one of three women amongst twenty-four participants, plaintiff started to feel that she could never raise complaints because of her gender as a result of comments such as how the male troopers had better “watch out” or she would charge them with sexual harassment, or about another female trooper whose sex discrimination complaint had been dismissed by the Board. Plaintiff also received lewd and sexually inappropriate comments from a male officer in training who also attacked her in a kick-boxing fashion, and ridiculed her when she protested. After completing training, plaintiff was the only female full-time officer in her department and continued to experience more harassment, including exposure to openly-displayed pictures of semi-nude women, an officer telling his girlfriend that plaintiff was his sex slave, personnel and supervisors frequently discussing plaintiff’s marital difficulties, and interfering with her personal relationship with a former police officer. During the plaintiff’s first evaluation, she received a good score for her work performance but her overall score was lowered due to comments from others. Further, when it was a male colleague’s birthday, he demanded the plaintiff kiss him and when she refused, he made fun of her appearance. When plaintiff’s supervisor did not respond to her complaints regarding these incidents, she met with the Commissioner, setting forth her sexual harassment claims. She was offered an unfeasible transfer far from her home and children as the only alternative. When the plaintiff failed to report to the transfer location, she was terminated. Plaintiff subsequently filed claims for sexual harassment and hostile work environment with the Board. The Board found there was discrimination and ordered her reinstatement and reimbursement of back pay. In response to the state’s appeal, the court agreed with the Board and found that the plaintiff’s work environment, characterized by her colleagues’ and supervisor’s attitudes towards her as a woman, established that she was judged more harshly than her male colleagues. The court found the evidence supported the Board’s conclusion that there existed a hostile work environment and that the plaintiff was sexually harassed.
While she was working at Laidlaw, plaintiff and her five children experienced ongoing domestic violence at the hands of her husband. Plaintiff requested time off to remove herself and her children from the abusive situation, was refused, and was subsequently given paid time off for 15 days, in which she availed of police, legal, and advocacy assistance. Shortly after returning to work, defendant first demoted plaintiff and subsequently terminated plaintiff’s employment stating as a reason falsification of payroll records. Plaintiff filed her complaint against defendant, alleging that Laidlaw terminated her employment in violation of public policy and Washington's Law Against Discrimination, RCW 49.60. Absent a contract to the contrary, Washington employees are generally terminable “at will,” with a narrow exception for the common law tort of wrongful discharge, which applies when an employer terminates an employee for reasons that contravene a clearly mandated public policy. As one element of this tort, the plaintiff needed to establish “the existence of a clear public policy (the clarity element).” The Supreme Court of Washington reformulated the certified question from the District Court as follows: Has Washington established a clear mandate of public policy of protecting domestic violence survivors and their families and holding their abusers accountable? The Supreme Court of Washington answered the question in the affirmative, holding that plaintiff had satisfied the “clarity” element of wrongful discharge in violation of public policy, because Washington unequivocally established, through legislative, judicial, constitutional, and executive expressions, a clear mandate of public policy of protecting domestic violence survivor and their families and holding abusers accountable. On remand, the Supreme Court of Washington instructed the District Court to determine whether employee satisfied the jeopardy element of the tort by showing that the time she took off from work was the only available adequate means to prevent domestic violence against herself or her children by evaluating the nature of the danger, the particular actions she undertook, and the details of her work schedule.
Appellant-mother challenged the order of the District Court, awarding child custody to appellee-father and giving her the same visitation rights that appellee had when appellant had custody. The Supreme Court of Wyoming affirmed the order because domestic violence suffered by appellant at the hands of a boyfriend in front of the children was a change in circumstances that warranted a change in custody to protect the parties’ children. Wyo. Stat. Ann. § 20-2-113(a) provides that “the court shall consider evidence of spousal abuse or child abuse as being contrary to the best interest of the child.” Although the abuse of mother was not technically “spousal” abuse because they were not married, the Supreme Court of Wyoming agreed with the District Court that the statute applied to non-marital domestic relationships. Therefore, domestic violence experienced by the mother warranted a change in custody to protect the children from potential abuse and was in their best interest.
Here, the parties lived together for approximately six years. Following a separation, plaintiff moved out, and the parties disputed personal property ownership. On one occasion, the plaintiff went to the defendant’s house for dinner and the parties got into an argument. The plaintiff picked up the defendant’s small dog and took it with her to leave. This led to the defendant kicking the plaintiff’s car door and using physical force against the plaintiff in an attempt to recover the dog. The plaintiff obtained a temporary abuse order. At the hearing for that order to be made permanent, the defendant chased the plaintiff, grabbed her, kicked the door of her car, and hit her in the face. The defendant also began to call the plaintiff and monitor her. The family court found this warranted the plaintiff to be in fear of further harm. The defendant argued that he was justified in using force to protect his dog, as it was his personal property. The court rejected this argument and found that the common-law defense of property is irrelevant in the determination of whether a victim needs protection from abuse.
One of the parties’ children accused petitioner of sexual assault, including improper touching of her breasts and vaginal area on multiple occasions. During an interview with Child Protective Services (CPS), the child denied any improper touching, but subsequently stated that petitioner had cautioned her against disclosing any information about the improper touching. Additionally, in a written declaration, petitioner had admitted to rubbing aloe vera on the naked body of the child. As a result, respondent sought and received a domestic violence protection order against petitioner under Wash. Rev. Code 26.50 , prohibiting contact between petitioner and respondent and their three children. Petitioner appealed, arguing that, in granting the petition for protection order, the commissioner improperly considered hearsay evidence and violated his due process rights when he refused to allow cross-examination of the child, who made the accusation. The Supreme Court of Washington held that the rules of evidence need not be applied in ex parte protection order proceedings and, therefore, the commissioner did not err when he considered hearsay evidence in issuing the protection order. Furthermore, denial to allow cross-examination of the child did not violate petitioner’s due process rights, because nothing in the statutory scheme explicitly requires allowing respondent in a domestic violence protection order proceeding to cross-examine a minor who accused him of sexual abuse.
This is a proceeding for the disciplining of Schwartz, a trial court judge. Judge Robert Schwartz initiated a romantic relationship with an assistant public defender with cases before him. The assistant public defender informed her supervisor of Judge Schwartz’s planned recusal via a voice message. In the following days, Judge Schwartz provided dishonest reasons for his recusal from some cases involving the assistant public defender, and entered rulings in some other cases involving the assistant public defender.
Defendant appealed a judgment of the District Court that convicted him of two counts of third-degree sexual assault under Wyo. Stat. Ann. § 6-2-304(a)(ii) (2005) for sexual improprieties involving his 10-year-old daughter, arguing that the evidence was insufficient to support his convictions and that the district court erred in imposing sentence. The Supreme Court of Wyoming affirmed defendant’s conviction, but reversed and remanded the case to the District Court for further proceedings on other grounds. The Supreme Court of Wyoming held that, where a statute criminalizing sexual contact contains an element of sexual gratification, it is not enough to establish that the defendant merely touched the sexual or intimate parts of an individual. The law at issue requires the presence of intent of sexual arousal, gratification, or abuse. However, an oral expression of intent is not required to establish a defendant’s intent, but may be established through defendant’s conduct and circumstances of physical contact. Intent of sexual gratification may be inferred from touching the complainant on more than one occasion, and committing the act after no adults were remaining in the house. In this case, defendant’s intent could be inferred from his “massaging” the clothed victim on two occasions, during which he touched her on her “legs, arms, boobs, privates, butt, and girl spot.”
Plaintiff, who was employed for fourteen months by defendant as a part-time receptionist, alleged that she was subjected to repeated acts of sexual harassment by several male employees. Plaintiff also alleged that her employment was terminated in part as retaliation for reporting this sexual harassment to management. Plaintiff brought a wrongful termination action against the employer, alleging claims of sexual harassment under Or. Rev. Stat. § 659A.030(1)(a), retaliation under Or. Rev. Stat. § 659A.030(1)(f), wrongful discharge, battery, and intentional infliction of emotional distress. The trial court denied defendant's petition to abate the proceeding pending arbitration, ruling that the arbitration clause contained in plaintiff's employment contract with defendant was unenforceable because it constituted an unconscionable contract of adhesion. The appellate court found that the employee did not show that the contract formation carried indicia of procedural and substantive unconscionability other than an unequal bargaining power. Consequently, the Court of Appeals of Oregon reversed and remanded the case.
Defendant was charged with assault stemming from a domestic violence incident. At his arraignment, the court entered a no-contact order, forbidding defendant to have any contact with his victim for a period of one year. Defendant was found guilty of the assault. He resumed cohabitation with the victim, although both were aware that the no-contact order remained in effect. Two months later, the police department received a hang-up 911 call from the apartment shared by defendant and the victim. The state charged defendant with violation of domestic violence no-contact order (pre-conviction). Defendant contended that the no-contact order had expired upon Schultz's conviction. The Supreme Court of Washington held that a no-contact order entered at arraignment under RCW 10.99.040(3) does not expire upon a finding of guilt in a domestic violence prosecution but remains in effect until the defendant's sentencing. As a sentencing condition, pursuant to RCW 10.99.050(1), the trial court may issue a new no-contact order, or it may extend the existing order by clearly indicating on the judgment and sentence that the order is to remain in effect. Here, the no-contact order entered under RCW 10.99.040(3) at defendant’s arraignment was permissibly extended as a sentencing condition and thus remained in effect until its stated expiration date.
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.
After pleading guilty, appellant-father was convicted of several counts of sexually abusing his daughter. Appellee-mother filed a petition to terminate father’s parental rights to the daughter, and the District Court terminated his parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iii) and (a)(iv). The Supreme Court of Wyoming upheld the decision. In terminating appellant-father’s parental rights, the Supreme Court held that the fact of incarceration, by itself, is not per se evidence of unfitness. However, incarceration is a reality that severely impacts the parent-child relationship and, therefore, cannot be ignored. The length of appellant’s incarceration of 47 years makes it extremely improbable that appellant would ever be able to care for the ongoing physical, mental or emotional needs of the daughter. Most importantly, appellant was convicted on several counts of sexually abusing his daughter, and there can be nothing that makes a parent more intrinsically unfit than abusing his child.
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.
Defendant appealed the trial court’s determination that he could not have the return of his firearms after a second domestic violence complaint. Upon appeal the appellate division reversed. The State appealed, and the Supreme Court of New Jersey found that the defendant was not entitled to the return of his firearms if the court were to find he posed a threat to public health, safety or welfare under the Prevention of Domestic Violence Act. Before the plaintiff and the defendant divorced, the plaintiff filed two domestic violence complaints. During the first complaint, the police confiscated the defendant’s guns and firearms purchaser identification card. The defendant ultimately obtained his firearms back. Subsequently, as the parties’ divorce action was pending, the second complaint arose when the plaintiff went to pick up their son from the defendant’s house. The police once again confiscated the defendant’s weapons. In addition to these confrontations, the defendant had affixed post-it notes to the windows stating, “danger, enter at your own risk,” and set up devices that appeared like booby traps. Further, during the parties’ marriage, the defendant would play music, strap on a holster and walk around the house with his gun. The plaintiff never knew if the gun was loaded on these occasions. The court found this established enough evidence to warrant denial of returning the firearms, as the defendant posed a threat to public safety and health under the Prevention to Domestic Violence Act.
Plaintiff-child and parents sued defendant-school district, principal and teacher, alleging that teacher had sexually abused the child and the district and principal were negligent in hiring and supervising the teacher. In a responsive pleading, defendant-school district and principal asserted as affirmative defense that plaintiff’s voluntary participation in the sexual relationship with defendant teacher constituted contributory fault. The trial court certified to the Supreme Court of Washington a question whether a 13-year-old victim of sexual abuse, who brought a negligence action, could have contributory fault assessed against her under the Washington Tort Reform Act. The Supreme Court of Washington held that, as a matter of law, a child under the age of 16 could not have contributory fault assessed against her for participating in sexual activities. Plaintiff lacked the capacity to consent and was under no legal duty to protect herself from sexual abuse. Societal interests embodied in the criminal laws protecting children from sexual abuse applied equally in the civil arena when harm was caused to the child by an adult perpetrator of sexual abuse or a third party in a position to control that person’s conduct. Furthermore, the idea that a student had a duty to protect herself from sexual abuse at school by her teacher conflicted with the well-established law that a school district had an enhanced and solemn duty to protect minor students in its care.
Plaintiff sought a protective order from her ex-boyfriend. The two had lived together but the plaintiff subsequently moved out to her own apartment with their three children. Plaintiff filed a petition for a protection order after her ex-boyfriend entered her apartment with her permission, became so drunk that he attempted to assault her, broke their infant son’s leg, and shoved his other son’s face against a door. The Court of Common Pleas denied plaintiff’s petition. On appeal, the Supreme Court of Pennsylvania found that the plaintiff adequately demonstrated that her ex-boyfriend attempted to physically harm her and did cause her sons bodily injury. Further, even though the parties did not live together, the defendant had legal access to the plaintiff’s apartment; permissive entry is a form of legal access. The court thus found that it could issue a protective order in this situation and it reversed the court’s ruling.
Here, petitioner, a male employer, sought review of a final order of the Commissioner of the Bureau of Labor and Industries, which found petitioner had created an intimidating, hostile and offensive working environment based on respondent’s gender, in violation of Or. Rev. Stat. § 659.030(1), which provides, “(1) [i]t is an unlawful employment practice: (B) [f]or an employer, because of an individual's . . . sex . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” The statute does not require that the unlawful employment practice be “sexual” in nature to be actionable. It requires only that the practice have occurred “because of” the employee’s sex. Furthermore, no independent corroboration of a complaining witness is required to establish an unlawful employment practice claim. Petitioner, the owner of a store selling adult toys and gifts, only referred to his employee, respondent Theresa Getman, using derogatory terms. Petitioner also frequently passed derogatory comments on the appearance of female customers and directed a number of sexually inappropriate remarks towards Getman. Additionally, petitioner frequently threatened Getman that he was going to “bitch slap” her and on several occasions slapped Getman on the top of her head and across her face. Throughout the duration of the employment, Getman was physically ill. She had a stomach ache and found herself unable to sleep because of the stress. The appellate court affirmed the finding that respondent was the victim of gender discrimination in her employment, as there was substantial evidence to support the finding that all of petitioner’s offensive conduct had occurred because respondent was a woman.
Defendant burglarized two homes several times and raped two women, one at knifepoint and one with the threat of a gun, living in them. The defendant also walked into a nursing home, dragged a female resident into a bedroom and demanded that she perform oral sex on him. The defendant subsequently entered a plea agreement involving twenty-four years in prison with a twelve-year period of parole ineligibility. During the defendant’s sentence, the New Jersey legislature enacted the Sexually Violent Predator Act (N.J.S.A. 30:4-27.26). Towards the end of the defendant’s sentence, the State filed a petition to have him civilly committed. The defendant challenged the petition and argued that he was not provided with sex offender treatment while incarcerated, and thus, commitment would violate his due process rights. Id. at 185-86. The civil commitment court rejected this challenge and found that the Sexual Violent Predator Act is not unconstitutional on its face as applied to an individual who did not receive treatment while incarcerated. The court then found the defendant was a sexually violent predator and committed him. On appeal, the defendant argued that the Act is unconstitutional because it is used as a vehicle for further punishment. The court found that the Act was not punitive and serves to deter and prevent sexual violence.
Defendant was convicted of involuntary deviate sexual intercourse, aggravated indecent assault, incest, indecent assault, indecent exposure and corruption of a minor. The defendant had sexually abused his daughter from the ages of six to nine. The nature of the defendant’s crimes required a determination if he was a sexually violent predator under Megan’s Law II (42 Pa. C.S.A. § 9792). At trial, a licensed clinical social worker and Board member assessed the defendant and concluded that he met the criteria of a sexually violent predator. The defendant’s evaluator was not a psychiatrist or psychologist, but the trial court found him qualified to testify as to the defendant’s status by his experience and training. The court found that the defendant was a sexually violent predator based upon the social worker’s conclusions. On appeal, the defendant argued that he could only be found to be a sexually violent predator by a psychiatrist or psychologist. The court noted that the criteria to assess in making the determination if a person is a sexually violent predator are: whether the offense involved multiple victims; whether the individual used excessive means to achieve the offense; the nature of the sexual contact; the relationship to the victim; the age of the victim; if the offense included any unusual cruelty; the victim’s mental capacity; and any history of prior offenses. The court found that a social worker could assess these factors; it was not necessary for a defendant to be evaluated by a psychiatrist or psychologist.
Here, the relator-wife sought the issuance of a writ of mandamus to compel defendant circuit court judge to conduct a hearing on her petition for a restraining order and to prevent abuse, pursuant to the Oregon Abuse Prevention Act, Or. Rev. Stat. §§ 107.700-107.730. The Supreme Court of Oregon issued a peremptory writ, requiring the judge to conduct forthwith a hearing on the wife’s petition for a restraining order and to prevent abuse and to determine whether there existed an immediate and present danger of abuse to the wife. Defendant-circuit court judge had refused to issue a restraining order to the benefit of the relator-wife, because she had already obtained two earlier restraining orders based upon allegations similar to those the relator presented in the present case, but had promptly dismissed them. However, the judge did not hold a hearing on the merits as contemplated by ORS 107.718(1) to determine whether the relator was in immediate and present danger of abuse by the husband. The Supreme Court of Oregon issued a peremptory writ of mandamus, finding that defendant-circuit judge had no discretion to deny relator a hearing. The Court further ordered defendant to conduct such a hearing to determine whether there is an immediate and present danger of abuse to relator, but expressed no opinion on the merits of the petition for a restraining order.
Here, the court affirmed a judgment involuntarily committing the petitioner to a Special Treatment Unit as a sexually violent predator under the Sexually Violent Predator Act (N.J.S.A. 30:4-27.24). Under this act, the state must prove by clear and convincing evidence that an alleged offender is a “sexually violent predator and currently suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence if not confined.” In this case, the defendant had been indicted for aggravated sexual assault of five pre-teen females, five counts of kidnapping, two counts of terroristic threats, two counts of robbery, two counts of unlawful possession of a weapon, and two counts of possession of a weapon for an unlawful purpose. The court found that the state’s use of expert testimony that the petitioner’s condition predisposed him to sexual violence established by clear and convincing evidence that he is a high risk to re-offend unless confined.
Here, the defendant pleaded guilty to sexual offenses, namely that he sexually assaulted two daughters of his live-in girlfriend and threatened the younger daughter that he would harm her mother if she reported the assaults. A member of the Sexual Offenders Assessment Board assessed the defendant and found him to be a sexually violent predator under Megan’s Law II (42 Pa. C.S.A. § 9795). The court found that the defendant was a pedophile and was a sexually violent predator. The Superior Court subsequently reversed this finding, reasoning that the evidence did not support the defendant’s classification, and the state appealed. On appeal, the court found that the Superior Court improperly required the diagnosis of pedophilia to require more than proof of sexual assault on children. The court reversed this and found that proof of sexual assault on children sufficed to warrant a finding of pedophilia and the defendant was properly classified as a sexually violent predator.
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.
Nava has been a police office since 1993. In 2000, according to Nava, Gallegos, one of Nava’s supervisors, harassed her almost daily. Gallegos checked on her location more than other officers, raised his voice to her, denied her many of the same privileges male officers were afforded, followed her to her house to monitor how long she took on bathroom breaks, assigned rape calls to her even when other officers were closer to the scene of the crime, and threw a file folder at her on one occasion. Nava brought a sexual harassment claim based on a hostile work environment theory under the New Mexico Human Rights Act. At trial the jury awarded Nava $285,000 in damages. The trial court subsequently reduced the amount to $90,250 on the city’s motion. Both parties appealed.
Appellant, a former dispatcher with the Cheyenne Police Department, appealed from the summary judgment which was entered in favor of police officer-appellee, also employed by the Cheyenne Police Department, on appellant’s claim of intentional infliction of emotional distress. The Wyoming Supreme Court reversed, because as a matter of law, appellant presented sufficient evidence in support of her claim of intentional infliction of emotional distress, based on inappropriate sexual conduct by a co-employee in the workplace, to survive appellee’s motion for summary judgment. The court identified several recurring factors that could be used in determining whether particular conduct in the workplace is sufficiently outrageous to survive a preliminary motion: (1) abuse of power; (2) repeated incidents and/or pattern of harassment; (3) unwelcome touching and/or offensive, non-negligible physical contact; and (4) retaliation for refusing or reporting sexually-motivated advances. The court found that conditions and circumstances alleged by appellant, including repeated incidents over a period of time and offensive, non-negligible physical contact, could lead a jury to construe appellee’s conduct as outrageous. Furthermore, appellant’s evidence was sufficient to create a jury issue on the severity of her emotional distress.
Defendant appealed a ruling that he was a sexually violent predator, suffering from an antisocial personality disorder. Defendant sexually assaulted a sixteen year-old girl and threatened to kill her if she reported the assault. He was subsequently arrested and entered a negotiated guilty plea. At the defendant’s Megan’s Law hearing and sentencing, a doctor, who was a member of the Sexual Offenders Assessment Board, found that the defendant had an antisocial personality disorder and that he was likely to engage in sexually violent activity if not confined. In response to the defendant’s appeal, the Superior Court noted that the “determination of a defendant’s SVP status may only be made following an assessment by the Board and hearing before the trial court.” The court noted that the Board member’s opinion was evidence in of itself of the defendant’s sexually violent nature, and it upheld the assessment.
Here, the defendant had pled guilty to rape of a child and assault and battery on a child. Before he was about to be released from custody at the completion of his sentences, the State filed a petition to commit him as a sexually dangerous person under Gen. L. C. 123A, §§1, 12, as someone who has been convicted of a “sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility.” Id. at 275. The trial judge dismissed the State’s petition as it found the State failed to show beyond a reasonable doubt that the defendant was likely to commit new sexual offenses unless confined. The court found that the State had to show a risk of committing a new offense of at least fifty percent, or, more likely than not. The State appealed. Here, the court was faced with defining the word “likely” as used in Gen. L. C. 123A, § 1 in defining a sexually dangerous person as someone “likely to engage in sexual offenses if not confined to a secure facility.” Id. at 274. The court noted that to determine what is “likely,” the court must consider the seriousness of the threatened harm, the relative certainty that the harm will occur, and the possibility of successful intervention to prevent the harm. Id. at 276. Further, “likely” indicates more than a mere possibility or probability, but it is not bound to a statistical definition such as “at least fifty percent.” Id. at 277. Further, the statute does not indicate it has to mean more likely than not. As such, the court found the trial court erred in its interpretation of “likely” and it remanded the case.
Here, the parties were married for two years when the plaintiff filed a domestic violence petition against the defendant. She stated that defendant punched her in the stomach and leg, choked her, threw her to the floor, fisted her in the face, and threated to drown her in the bathtub. The plaintiff did not specify the dates of the abuse. The trial court issued an ex parte domestic violence temporary order of protection. The defendant argued that the plaintiff’s petition was legally insufficient as it did not specify when the abuse occurred. The plaintiff testified to the alleged abuse without objection. Subsequent to this testimony, the court issued a final protective order. The court found that N.H. rev. Stat. § 173:B did not require the plaintiff to set forth the specific dates on which she suffered abuse. The court found that the plaintiff’s allegations were legally sufficient to withstand a motion to dismiss because they allowed a reasonable inference that the plaintiff was in immediate and present danger of abuse. Further, the fact that the plaintiff did not specify the dates of the abuse did not violate the defendant’s due process rights since he could not show he was actually prejudiced by this omission.
Court of Appeal affirmed the trial court’s grant of a domestic violence restraining order requested by plaintiff against her husband. In this case, the defendant had threatened to seek revenge on his children because they had hospitalized him. Defendant walked around the house with knives, verbally abused the children, and prevented the family from sleeping by making loud noises. While intoxicated, defendant had also previously asked his son to kill him with a hammer and knife. The court noted that Connecticut’s Gen. Stat. § 46b-15 “clearly requires a continuous threat of present physical pain or physical injury before a court can grant a domestic violence restraining order.” The court found that the above facts presented enough of a continuous threat of present physical pain or injury so that the trial court’s ruling was not an abuse of discretion, and affirmed the grant of a restraining order.
Here, the plaintiff had obtained a protective order against the defendant in Kentucky because she feared that the defendant would abuse her and the parties’ daughter. Subsequently, the defendant threatened to kill the plaintiff, and the plaintiff fled to Maine, where she filed for a protective order. The district court granted a temporary protective order. Subsequently, the plaintiff filed for custody of the parties’ daughter. The district court found that it could not grant the plaintiff custody as Maine was not the daughter’s home state. On appeal, the court noted that under 19-A M.R.S.A. §§ 1731-1783, where Maine is not the child’s home state, a Maine court does not have jurisdiction unless the child’s home state declines to exercise jurisdiction. However, where a parent and child flee their home state due threats of abuse, Maine may exercise jurisdiction over the child’s interests under § 1748. The court affirmed the district court’s denial of custody though. The court found that the court properly exercised jurisdiction to issue a protective order which would not expire until a custody hearing in Kentucky. Because the child’s interests would be protected until the matter was adjudicated, there was no need to act further to protect the child by issuing a more permanent order.
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.
Here, the plaintiff and the defendant were married and had four children. They all lived in Florida until the plaintiff left with their children and moved to New Hampshire. The parties subsequently divorced. Upon her arrival in New Hampshire, the plaintiff applied for a temporary restraining order against the defendant in Massachusetts, because he criminally threatened her and their children and he threatened her at her parents’ house in Massachusetts. Family court issued a protective order that prohibited the defendant from threatening or abusing his wife or children, contacting the plaintiff absent special authorization by court, coming within a distance of her home or work, or taking or damaging the plaintiff’s property. The family court also ordered the defendant to hand over his firearms. The husband appealed and argued that the court had no personal jurisdiction over him as he was a nonresident and the alleged abuse never occurred in New Hampshire. The court found that the family court could issue a protective order against the defendant as the purpose of New Hampshire’s domestic violence statute was to protect victims within that state, but that it could not require any affirmative act on the part of the defendant. Thus, the order could stand as it directed the defendant to refrain from seeing or contacting the plaintiff, but it could not direct him to relinquish his firearms.
Defendant appealed the trial court’s award of a restraining order. The trial court had granted the order because the plaintiff made a showing that the defendant, her ex-husband, was obsessed with her to a point where it clouded his judgment and she was afraid he would harm her. Plaintiff made this showing through evidence that after the parties were divorced, plaintiff had seen the defendant drive by her house repeatedly, she had received flowers from the defendant one day at work and later that night under the windshield wiper of her car, she was concerned that the defendant was in her driveway while they were separated, and that she was afraid because she thought the defendant went to anger management therapy and lived nearby. The parties’ daughter testified that she also believed the defendant was obsessed with the plaintiff. Under Ct. Gen. S. § 46b-15, anyone who has been subject to a continuous threat of present physical pain or physical injury by another household member or is in a dating relationship and been subjected to these threats may apply to the superior court for relief. The appellate court found the plaintiff showed sufficient evidence of a continuous threat of present physical pain or physical injury, as the defendant’s obsession with her could lead him to harm her, and affirmed the trial court’s grant of a restraining order.
Here, the appellant, Judy Frieler, sued the respondent for violating § 363A.03(43) and § 363A.08(2) of the Minnesota Human Rights Act (MHRA), “based on a hostile working environment due to sexual harassment by a supervisor.” Ms. Frieler worked part-time and was interested in a full-time position in the shipping department. She expressed her interest and was referred to Ed Janiak, the supervisor of that department. Ms. Frieler alleged that Janiak had verbally abused her and on three to four occasions lured her into a locked room, pressed himself against her and made sexual advances towards her. Ms. Frieler reported the incident to her employer (respondent) but before a full investigation could take place, Janiak resigned from his position. Janiak was made aware of the allegations just a few days before his resignation, and he denied them. Ms. Frieler subsequently sued her employer under § 363A.03(43) and § 363A.08(2). The trial court and court of appeals dismissed her sexual harassment claims for failing to raise an issue of material fact as to whether the employer knew about the harassment and whether Janiak was Ms. Frieler’s supervisor for vicarious liability purposes. The Minnesota Supreme Court reversed and remanded the court of appeals’ ruling. The court held that: 1) a plaintiff does not need to prove that his or her employer knew about the harassment in order to maintain a claim under the MHRA; 2) employers are not strictly liable for sexual harassment claims; 3) “an employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate authority over a victimized employee;” and 4) in this case, there was a material issue of fact whether Janiak was Ms. Friedler’s supervisor at the time of the harassment.
Mr. Jackson, a teacher and basketball coach, brought suit against the Birmingham Board of Education (“Board”), alleging that the Board retaliated against him because he had complained about sex discrimination in the high school’s athletic program. Specifically, Mr. Jackson complained to his supervisors that the girls’ basketball team was not receiving equal funding and equal access to athletic equipment and facilities. After the Board terminated Mr. Jackson’s coaching duties, he filed suit in the United States District Court for the Northern District of Alabama. He alleged that the Board violated Title IX by retaliating against him for protesting the discrimination of the girls’ basketball team. The district court dismissed Mr. Jackson’s complaint on the ground Title IX did not cover claims retaliation, and the Court of Appeals for the Eleventh Circuit affirmed. The Unites States Supreme Court reversed, holding: “We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.” The Court reached this conclusion, in part, because “[r]eporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished.” In response to the Board’s claim that it had no notice that Title IX prohibited retaliation, the Supreme Court held that Title IX itself supplied sufficient notice to the Board, as did previous Courts of Appeals decisions that had considered the issue.
Here, the plaintiff was issued a final protective order against the defendant. Subsequent to the issuance of this order, the plaintiff had filed a statement with the police that the defendant went to her work, called her work, and called her parents. Further, a witness observed the defendant at the plaintiff’s home, and he was seen to drive by her home on seven occasions. The defendant was convicted of violating the protective order and complied with it thereafter. Subsequently, the plaintiff requested a five-year extension to the order and the defendant requested a hearing. The trial court granted the extension and the defendant appealed. The defendant argued that the plaintiff did not have good cause to support the extension. The court considered good cause under N.H. Rev. Stat. § 633:3-a which provides that in regard to stalking, a protective order may be extended on a showing of good cause to provide for the safety and well-being of the plaintiff. The court noted that to determine good cause, it should consider the circumstances of the original stalking, the current conditions, and consider any reasonable fear by the plaintiff. The court found that the plaintiff showed good cause for an extension of the protective order; the defendant drove by the plaintiff’s house multiple times in violation of the initial protective order only fifteen months earlier and the plaintiff’s fear of the defendant was reasonable.
Defendant argued that it was unconstitutional for a court to issue a protective order that resulted in barring a person from his home as a result of an arrest for domestic violence. Under Gen. Stat. § 46b-38c, a court is authorized to issue a protective order to include “provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant including but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim; (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim; or (3) entering the family dwelling or the dwelling of the victim.” Here, the court had issued a protective order for the defendant’s wife. The defendant argued that the statute violated his substantive due process rights because he was precluded access to his home and property and became subject to enhanced criminal penalties and liabilities. The court found that even though the defendant had a due process interest, the statute was intended to protect victims and not, rather, punish defendants. The court noted that the state had a legitimate interest in providing this protection. Thus, the court found the statute to be constitutional and a court may bar a defendant from his home in a domestic violence situation.
Here, the plaintiff worked as a staff pharmacist for the defendant for ten years. At a subsequent point, she became temporary pharmacy manager. Until the plaintiff was terminated thirteen months later, she was paid at a lower rate as a pharmacy manager than her male counterparts. She was told by the defendant that she would receive the difference in pay but never did. She complained numerous times and finally received a check for the pharmacy manager bonus that others received, but never received the thirteen months’ worth of additional pay. Prior to her termination, the plaintiff was questioned about two prescriptions that were fraudulently written—one while she was on duty and the other was written while a male pharmacist was on duty. The pharmacy technician immediately admitted that she falsified the prescription from when the plaintiff was on duty. The plaintiff denied knowledge of the fraud, but she was terminated based on her failure to secure the pharmacy. The pharmacy technician was also terminated. The male pharmacist however was not fired or disciplined for failing to secure the pharmacy area. At the time of the plaintiff’s termination, twenty of the twenty-one managers above the pharmacy manager level were male and all pharmacy technicians were female. The court found that the evidence was sufficient to show that the defendant discriminated against the plaintiff in terminating her. The court reasoned that a reasonable jury could have disbelieved the defendant’s reason for terminating the plaintiff; that the plaintiff’s base wage was lower than her male counterparts, and that there was discrimination based upon the fact that the male pharmacist on duty when another prescription was falsified was not disciplined or terminated. The court found an award of compensatory damages was supported by the evidence, but that punitive damages amounting to $1 million were not warranted because the defendant’s conduct was not so outrageous or egregious.
Plaintiff alleged that her superior violated the Department of Public Safety’s sexual harassment policy to attempt to pursue a sexual relationship with her. At various times during plaintiff’s employment, her superior had allegedly engaged in sexually harassing behavior towards her. At a later date when plaintiff had received poor performance reviews, claimed that her supervisor made her believe he could save her job if internal investigations against her concerning the reviews did not go well. With this indication, the supervisor made sexual advances towards the plaintiff, who felt pressured into submitting to these advances for fear of losing her job. The court noted that Delaware courts have not yet adopted federal tests to determine a quid pro quo sexual harassment claim. However, it noted that based upon the Supreme Court’s interpretation, “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes quid pro quo sexual harassment when ‘(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual’.” The court noted that under this test, the consequences of a rejection to such advances or requests must “be sufficiently severe as to alter the harassed employee’s compensation, terms, conditions, or privileges of employment.” The court found that the plaintiff pleaded a qui pro quo claim of sexual harassment against the defendant.
Here, Mrs. Williams sought an order of protection against her husband, the respondent, who beat her numerous times. On one occasion, the respondent caused her serious bodily harm and Mrs. Williams was hospitalized for twelve days. Upon her petition for an order of protection from the court, the court held that although Mrs. Williams met all the requirements necessary to obtain relief under the Adult Abuse Act (§ 455.035 and § 455.045), she could not obtain relief because the Adult Abuse Act was unconstitutional because 1) the Act also afforded protection to children, which was not immediately apparent from the title of the act and therefore violated article II, section 23 of the Missouri Constitution; 2) an ex parte order violated defendants’ due process rights because it did not provide defendants with notice of process; and 3) the Act was too vague and therefore unconstitutional. The Missouri Supreme Court reversed the trial court’s decision and held that the Adult Abuse Act was constitutional. The court held that the “ex parte order provisions comply with due process requirements because they are reasonable means to achieve the state’s legitimate goal of preventing domestic violence, and afford adequate procedural safeguards, prior to and after any deprivation occurs.” Also, the Act is not vague because it “provides sufficient direction and guidance for the judges who must apply it. The protection orders are to issue only when an ‘immediate and present danger of abuse to the petitioner’ is found.”
Here, the plaintiff volunteered at a swap shop operated by the Town of Falmouth at its waste management facility. The defendant was the land supervisor and gatekeeper of the facility. The defendant often visited the shop and made sexual advances toward the plaintiff for three years, despite her requests that he leave her alone. The town subsequently terminated the plaintiff’s volunteer services and barred her from the facility. Id. at 572. The plaintiff sued the defendant for sexual harassment in violation of M.G.L.A. 214 § 1C. The court found that M.G.L.A. 214 § 1C states that “[a] person shall have the right to be free from sexual harassment, as defined in chapter 151B and 151C.” Id. at 577. The court then noted that the definition of sexual harassment in G. L. C. 151B and 151c does not explicitly protect volunteers from sexual harassment and instead limit conduct to academic and employment contexts. The court thus found that there is only statutory protection against sexual harassment in employment and academic contexts and there was no such protection for volunteers. Id. However, persons outside of this context, including volunteers, may pursue common law claims of sexual harassment. Id. at 580-81.
Plaintiff worked the midnight shift in a prison. One night another officer kissed her without any invitation and subsequently repeatedly referred to the incident, and made intimidating jokes about raping the plaintiff. Despite being made aware of these incidents, plaintiff’s superiors did not take any action. It was almost two years before the warden responded to plaintiff’s attempts to talk to him about the harassment, at which time plaintiff refused to file a complaint in fear for her safety. The warden later advised her again to file a complaint and issued a cease and desist letter to the officer. Eventually, the County filed disciplinary charges against the officer but dismissed the charges. Plaintiff eventually brought a lawsuit alleging a hostile work environment. Although the County had an anti-sexual harassment policy, numerous employees testified that they were never trained on the policy, and the plaintiff testified that the policy was loosely enforced. The trial court dismissed the plaintiff’s complaint, reasoning that the fact that an individual violates a policy does not render the policy wrong. The Appellate Division affirmed. The plaintiff appealed the Appellate Division decision, contending that in determining employer liability for sexual harassment, the court was required to consider (1) whether the company had mandatory training for supervisors and managers which is offered to all members of the company; and (2) effective sensing or monitoring systems to check the trustworthiness of the prevention and remedial structures for employees. The court agreed with the plaintiff; even though the policy was known to many high-ranking officials, no action was taken to address the plaintiff’s complaints, even if they were not “formal” complaints. The court found that summary judgment was improper because there were questions of fact as to the adequacy of the policy.
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.
Lacey worked at the Department of Correctional Services as a temporary employee. Lacey’s supervisor was known for “creating a fun atmosphere” by “giving each other a hard time in a joking manner.” The supervisor’s jokes and questions were often sexual in nature, including inquiring Lacey about the frequency, locations, and types of sex she and her boyfriend had. Towards the end of Lacey’s temporary placement, the jokes and questions were made daily and became increasingly vulgar. Supervisor also subjected Lacey to unwanted touching. Lacey eventually complained and the supervisor was ordered to stay away from here. Soon after, Lacey was terminated under questionable circumstances. Lacey filed a complaint against the Department of Correctional Services on June 7, 2006, alleging, among other things, sexual harassment in violations of the Nebraska Fair Employment Practice Act (NFERA). The trial court awarded Lacey $60,000 in damages for her sexual harassment claim. The State appealed.
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.
A jury found Mr. Williams guilty of burglary and sodomy in the first degree. On appeal, Mr. Williams argued, among other things, that Alabama’s forcible sodomy statute was unconstitutional because it excluded a married person from liability. In other words, under the statute, a married person could not be convicted of forcibly sodomizing his or her spouse in Alabama. The appellate court held that the statute, on its face, discriminates between married and unmarried persons, and thus looked to see whether there was, “as a minimum, some ground of difference that rationally explains the different treatment accorded married and unmarried persons under the statute.” The court considered several traditional rationales for the marital exception. First, the court considered the implied consent theory – i.e., when a women makes her marriage vows, she impliedly consents to sexual intercourse with her husband during the marriage. The court rejected this rationale, finding that a “married person has the same right to control his or her body as does an unmarried person.” Because “any implied consent notion would give one spouse control over the other spouse’s bodily integrity,” it was not a rationale basis for the marital exemption. Second, the court rejected the proposed justification for the marital exemption that it protected against governmental invasion into marital privacy. The court found that marital privacy was not designed as a shield to protect against violent sexual assaults. Third, the court found untenable the argument that elimination of the marital exemption for forcible sodomy would disrupt marriages because it would discourage reconciliation: “When a marriage relationship has deteriorated to the point of forcible and unwanted sexual contact, reconciliation seems highly unlikely. Fourth, the court found problems with proof did not provide a rationale basis for the marital exemption because the evidentiary problems concerning one spouse’s lack of consent to an act of sodomy would be no more difficult than proving lack of consent by a victim involved in a non-marital relationship. Fifth, and finally, the court rejected the argument that the assault statutes provided alternative remedies available to a victim of forcible sodomy by a spouse, finding the vast differences in punishment disproved the alternative remedy theory. The court concluded that there can be no justification for forcible sodomy upon one’s spouse, and a rule that protected unmarried persons from forcible sodomy but not married persons could not withstand constitutional scrutiny. Therefore, the court severed and removed from the statute the marital exemption for the offense of forcible sodomy.
Plaintiff was employed by defendant as a file clerk and subsequently promoted to supervisory positions. Sometime thereafter, defendant hired a new supervisor to the plaintiff. This supervisor started sexually harassing female employees, including plaintiff, through offensive sexual comments and touching. Although plaintiff immediately reported incidents to the supervisor’s boss, she was told to handle the matter herself. Upon continuing to bring incidents to the attention of the manager, plaintiff was told that she was being paranoid. Eventually plaintiff addresses the executive vice president, expressed that she felt she was being forced out of the company, and when she was offered an undesirable transfer as a solution, offered her resignation. The plaintiff sued the defendant for hostile work environment, arguing that its investigation into the harassment was inadequate. To bring a claim for hostile work environment, the plaintiff needed to show: (1) the conduct would not have occurred but for the employee’s gender; (2) the conduct was severe or pervasive enough to make a (3) reasonable woman believe (4) that the conditions of employment are altered and the working environment is hostile or abusive. The court found that even though the defendant had a written policy against sexual harassment, the manager did not keep any records about the investigation, did not document the investigation, and did not question key witnesses about events. The court found that this enabled a hostile work environment, and held the defendant liable.
Here, the defendant employer appealed the Board’s decision that the plaintiff had good cause to walk away from her employment as she was sexually harassed and her employer failed to rectify the situation. The son of the defendant-business owner and the defendant’s manager sexually harassed the plaintiff in a verbal and physical nature. The plaintiff tried to discuss the situation with the business owner but the harassment continued. Further, she was advised by the owner that all managerial responsibilities were given to his son and that the plaintiff would have to work it out with the son. The plaintiff attempted to discuss the situation again with the owner but after waiting for fifteen or twenty minutes, she left and quit without being able to speak to him. The plaintiff sued for hostile work environment, and the court found the defendant was liable. The employer appealed, arguing that the plaintiff did not make a reasonable effort to inform it about the hostile working environment and remedy the situation. The court disagreed and affirmed the Board’s decision.
Here, a female employee appealed the decision of the Commission Against Discrimination which dismissed her complaint against her employer for sexual discrimination. The Massachusetts Supreme Court affirmed the Commission’s decision. Under Gen .L. C. 151B, §4(1) (1990), employment discrimination on the basis of gender is prohibited. The Massachusetts Code defines sexual harassment as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” Gen. L. C. 151B, §1(18) (1990).
In May of 1990, Piatt represented clients A and B in their respective domestic relations actions. During his representation of client A, Piatt repeatedly asked her questions such as whether she had masturbated at the age of fourteen, and whether she had ever had sexual relationship without emotional involvement. He also made comments about the length of client A’s skirt and how “delicious” she looked. Piatt later told client A during a meeting that if she did not respond to his sexual advances, he would be forced to charge her a large sum of money for continued representation. Piatt threatened client B in substantially the same way.
Here, the defendant appealed a conviction for assault, kidnapping and rape. The defendant argued that he could not be convicted of eight separate counts of rape for one victim, as this would constitute double jeopardy. The court disagreed and affirmed the superior court’s finding that the fact that there were variations in the sexual acts, there was physical movement of the victim between acts, and there was time between each offense.
Anderson worked the night shift at FBG Service Corp (“FBG”). A review conducted in November 1988 stated that Anderson’s work was “excellent.” In early or mid-July 1989, a coworker recommended Anderson for the recently vacated job of daytime supervisor, and Anderson expressed interest. The person with hiring authority told coworkers that he preferred a man for the job as it involved heavy lifting. A month later, the firm hired a man with 21 years of experience in the military and 18 years of experience in repairing machinery for a “janitorial” position at a rate of $4 an hour.
Here, an employer appealed the superior court’s decision that it discriminated against an employee on the basis of sex. A few weeks after College-Town hired the employee, Rizzi, Rizzi’s supervisor began making sexually suggestive comments to her. Once he touched her back, and another time he put his hand over a slit in her dress and told her to fix her skirt. On one occasion, Rizzi asked her supervisor to review her performance in a meeting and he told her that she handled it well and that he “liked the way [her] tits stood out in the red shirt.” Once, he asked her if she was a good f----. Rizzi then spoke to the director of manufacturing, who told her he was “not qualified to go into these things,” and refused to talk to her. Rizzi had to wait several days before she could tell someone else at work. A College-Town executive finally spoke with the supervisor about the allegations, which were denied. A meeting was held to determine the truth of the allegations, which the supervisor and all other women in the department attended except for Rizzi. She was not asked to the meeting or notified of its occurrence. At the meeting, the supervisor explained the allegations and Rizzi’s co-workers were generally supportive of the supervisor. College-Town made no further investigation. Prior to that meeting, Rizzi sought a promotion to a position in another department. After the meeting was held, Rizzi was informed she was not qualified for the promotion and College-Town hired someone with more knowledge and experience. Soon thereafter, College-Town attempted to transfer Rizzi as tension in the office was affecting productivity and she declined. Rizzi was never told the transfer was mandatory, and within weeks of her denial, she was discharged. The trial court found that College-Town’s supervisor created a sexually harassing work environment, it failed to remedy the situation, and it retaliated against the employee in its attempt to transfer her and discharge her once she declined the transfer. Id. at 158. The Massachusetts Supreme Court affirmed the decision and found that sexual harassment may constitute discrimination under Gen. L. C. 151B, §4(1), which prohibits employment discrimination on the basis of gender.
Plaintiff Ford’s supervisor, Karl Braun, began to sexually harass Ford at a dinner on April 3, 1980, where Braun told Ford that she would regret it if she didn’t sleep with him. At a company picnic a month later, Braun said to Ford: “I want to fuck you, Leta,” and restrained her in a chokehold, from which Ford eventually escaped. Despite Ford having reported the harassment to regional management later than month and to headquarters in November, 1980, no action was taken until Braun’s employment was terminated in October, 1981, almost a year and a half after plaintiff’s original complaints. During this period Braun’s continuing threats led to Ford developing symptoms of emotional stress such as high blood pressure and chest pains.
After commencing her employment, plaintiff agreed to prepare lunches for a new co-worker in exchange for $25 a week. Plaintiff later stopped providing lunches to the co-worker who in return, became hostile towards her, commencing a pattern of sexual harassment, including lewd comments, uninvited sexual advances, and interference with her ability to work. In keeping with company policy, plaintiff addressed complaints to her supervisor. Although the supervisor met with the co-worker and issued warnings, the harassment continued. Eventually the general manager suspended the co-worker and changed his duties so he would not be working near the plaintiff. When he returned, however, the co-worker continued to harass plaintiff. Eventually, there was an incident where the two got into a physical altercation, for which both were suspended. The plaintiff sued the defendant for failing to remedy the situation and for a hostile work environment. The court found that an employer may be liable for the sexual harassment of an employee by a co-worker under a hostile environment claim if the employer knew or should have known about the harassment and failed to take immediate and appropriate steps to correct it. The court noted that in determining whether a work environment is hostile, a court should consider the frequency of the discriminatory conduct, its severity, if it is physically threatening or humiliating as opposed to a mere offensive utterance, and if it reasonably interferes with the plaintiff’s work. The court then concluded that a jury could conclude that the defendant’s response to the harassment was neither immediate nor appropriate. Specifically, the three-day suspension and warnings were insufficient given the pattern of harassment. Thus, the court vacated the trial court’s issuance of summary judgment to the defendant and remanded the case.
Doyle was subject to a domestic abuse protection order for Linda Doyle, his wife. The “no contact” provision of the order prohibited Doyle from “telephoning, contacting, or otherwise communicating with [Linda]” for a period of 1 year. After Doyle was escorted to a hospital by law enforcement on February 14, 2008, Doyle evaded the monitoring of police officers and directed a nurse to contact his wife. The call was placed and Linda was indeed reached. Linda hung up after a brief conversation with the nurse.
Here, the plaintiff was a resident of Massachusetts and she sought an abuse prevention order against her nonresident partner. The plaintiff and her partner met in Massachusetts and moved to Florida, where they had a child. The plaintiff took the child to Massachusetts on occasion but the defendant never returned. The plaintiff alleged that the defendant physically abused her and she fled to Massachusetts with her son. The plaintiff alleged that prior to her escape, the defendant accused her of cheating, called her a whore, and threatened to kill her and the child. He blocked the door when she tried to leave and when she took the phone to call the police, he ripped the phone from her hand and threw it across the room. Once the plaintiff arrived in Massachusetts, the defendant called his friends and the plaintiff’s cell phone several times a day trying to locate her. The plaintiff subsequently filed a complaint in court in Massachusetts seeking a protection order. The court issued an order which granted the plaintiff custody of the child and directed the defendant not to abuse the plaintiff or the child, not to contact them, to surrender his firearms in Florida and to compensate the plaintiff monetarily. The court found that the plaintiff was entitled to an abuse prevention order directing the defendant not to abuse her, not to contact her, to stay away from the plaintiff and her residence, granting custody of the child to the plaintiff, and ordering the defendant to stay away from the child. However, the court found that it was a violation of the defendant’s due process rights to order an affirmative obligation on him, including paying money and handing over his firearms, as the court had no personal jurisdiction over the defendant.
The appellate court affirmed a family court’s grant of sole custody to the mother of three minor children. According to Ariz. Rev. Stat. Ann. § 25-403.03, a significant history of domestic violence is sufficient to render joint custody inappropriate. In addition, Ariz. Rev. Stat. Ann. § 25-403.03.D further states, “there is a rebuttable presumption that an award of custody to the parent who committed the act of domestic violence is contrary to the child’s best interests.”
The plaintiff applied for a job to work at the defendant’s race track as a security officer. The defendant’s director of security informed the plaintiff that he normally did not hire women and instead employed her in the dispatch hour to answer telephones and complete paper work. The plaintiff had a bachelor’s degree in criminal justice and experience in security work. The plaintiff subsequently requested to work the late night security shift at the stable gate to work additional hours. Her request was denied as the director did not hire women for this position. When the general manager learned of the incident, he informed the director that he violated company policy and directed him to change his discriminatory practices. Ultimately, the plaintiff left the company due to disputes over her work assignments and she filed a complaint with the Maine Human Rights Commission and sued the defendant. The trial court determined that but for the director’s gender discrimination, the plaintiff could have worked an additional sixteen hours each week for thirty-three weeks and that she would have earned overtime. The Supreme Court of Maine held that the plaintiff was entitled to back pay for these lost wages under 5 M.R.S.A. § 4613.
Here, the plaintiff and the defendant lived together and had a son together. The defendant physically abused the plaintiff for two to four years. The plaintiff had previously obtained a protection order against the defendant under Gen. Law C. 209A, which expired. The day after the order expired, the defendant called the plaintiff and was highly agitated and threatening. The plaintiff sought a renewal of the order. Prior to the hearing regarding the extension of the order, the plaintiff stated that the defendant made several phone calls to the plaintiff attempting to reconcile and then becoming mean. Many of these calls occurred while the plaintiff was at work and caused her to lose her job. The plaintiff feared the defendant would kill her without the order. The defendant’s attorney at the hearing argued he only contacted the plaintiff to re-establish his relationship with his son. The judge refused to grant the extension, finding that the plaintiff is “clearly in fear no matter what” and providing no reasoning for the refusal. Upon appeal the court found that the plaintiff needed to make a showing similar to what is required to obtain an initial protection order, by a preponderance of the evidence. The court noted that it should consider the defendant’s violations of protective orders, ongoing child custody or other litigation likely to bring hostility, the parties’ demeanor in court, the likelihood the parties will encounter each other in their usual activities, and if there are significant changes in the parties’ circumstances. Here, the court remanded the case because the trial judge did not define the burden the plaintiff needed to meet to warrant an extension and he did not explain which part of the plaintiff’s case was insufficient to warrant the extension.
The family court abused its discretion when awarding joint custody without considering evidence of domestic violence, and when awarding Father parenting time when there was a valid order protecting the child from Father.
The plaintiff worked as an administrative assistant for the defendant, whose office was located at the home of the company’s president. The plaintiff worked in the same room as the president and he supervised the plaintiff’s work. The president asked her uncomfortable personal questions about her marriage and financially distressed situation, stating that she had options available to make money, but that he needed to speak to her in private about them. He followed this by offering to give the plaintiff money in exchange for sex. The plaintiff immediately rejected the proposal and the president told her that her position was not jeopardized but left the offer open in case the plaintiff changed her mind. The plaintiff reported the incident that day to a supervisor of the warehouse. However the president was her only supervisor so she did not report the incident to anyone else. The defendant had no policies for sexual harassment or complaint procedures. The plaintiff subsequently resigned due to the president’s comments and filed a complaint with the Human Rights Commission suing the defendant for the harassment by her supervisor under 5 M.R.S.A. § 4572 for a hostile work environment. The court found that under the Maine Human Rights Act, “employers are liable for hostile environment harassment by supervisors and co-workers if an official representing the institution knew, or in the exercise of reasonable care, should have known, of the harassment’s occurrence, unless that official can show that he or she took appropriate steps to halt it.” Here, the court found that because the president was the plaintiff’s only supervisor, she had no one else to consult, and because the defendant had no harassment policy in place, she had no avenues of relief. Any higher officials than the president were located in Belgium. Further, the president was an official representing the defendant and obviously knew of the occurrence. He could have taken steps to stop the harassment by rescinding his offer but he left it open in case the plaintiff changed her mind. Thus, the defendant could be liable for the president’s harassment.
Here, the defendant appealed an abuse prevention order that was issued against him for the benefit of his father’s girlfriend. The plaintiff and her two teenage daughters lived with the defendant’s father. The defendant lived there as well for about two years until he moved out. Once he moved out though, he still had keys to the apartment, still received mail there, took showers there, spent the night there on occasion, and had the ability to let himself inside without making prior arrangements with his father or the plaintiff. The plaintiff obtained a restraining order against the defendant because he threatened her for over a year that he would pay someone to kill her if she did not leave his father. He also came to the apartment several times uninvited and pushed the plaintiff. He also threatened and pushed her two children. The court granted an extension of a protective order as it concluded that the defendant and the plaintiff were former household members. The defendant argued that he and his father’s girlfriend were not considered “household members” under Gen. L. C. 209A, § 1, and as a result, the court could not issue a protective order against him as to his father’s girlfriend. The court disagreed and found that a household member does not have to be a family member. The court affirmed the extension.
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.
Here, the plaintiff moved to extend a protective order against the defendant, her ex-husband. The trial court granted the extension and the defendant appealed. In this case, while the parties were married, the defendant assaulted the plaintiff in their garage and attempted to suffocate her while she was knocked to the ground and she almost lost consciousness. The defendant only stopped when the parties’ daughter entered the garage and the plaintiff told her to call 911. The defendant was arrested and served six months in jail. The plaintiff also had obtained a protective order that prohibited the defendant from having direct or indirect contact with the plaintiff and their daughter for two years. The defendant violated this order by sending his daughter a Christmas card and by entering the plaintiff’s home. As the order was going to expire, the plaintiff moved to extend it. The court extended the order because the assault against her had been “extraordinarily brutal and unprovoked.” The court found that the plaintiff had a well-founded fear of vehicles that were similar to that of the defendant, especially because the defendant got a job in the town where the plaintiff worked. The defendant appealed the trial court’s finding. The court affirmed the trial court’s extension, finding there were no factual findings of clear error made by the trial court. Thus, a protective order does not have to have a time limit where a party’s fear is justified.
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.
Here, the plaintiff was hired by the defendant as an assistant professor. Throughout her employment, she was reappointed and complimented by the appointments and promotions committee. In her positions, the plaintiff taught, researched, and participated in service efforts for the defendant. Id. at 629-30. Despite that the plaintiff published several articles, taught students and supervised student research, during her tenure review in her sixth year of employment, she was denied tenure. Id. at 632-33. The tenure committee found the plaintiff was a “good teacher but not an extraordinary one,” and found her service to the school to be adequate. However the committee found her research and scholarship was inadequate, since she had only published one article in a refereed professional journal (notwithstanding that she had other publications). Id. at 634. The plaintiff claimed that the tenure process as it applied to her was discriminatory. The court noted that to establish a prima facie case of gender discrimination in the work environment, a plaintiff must show: “(1) she was a member of a protected class; (2) she was qualified for her position; (3) she was discharged; and (4) the termination occurred under circumstances giving rise to an inference of discrimination.” Id. at 225-26. The court noted to meet the fourth element, the plaintiff must show that “she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred.” Id. at 638. Once a prima facie case is established, to succeed on a gender discrimination claim, the plaintiff must go further to show that the defendant was motivated by an intent to discriminate against the plaintiff in its acts.
Here, a former correction officer claimed the Department of Correction created a hostile work environment through an officer’s sexual harassment. Prior to the plaintiff’s employment, she attended a training academy to be a correction officer. One of the plaintiff’s classmates commented that the plaintiff did not date men and that she liked women. The plaintiff warned the classmate to never make such a comment again, but she did not report the comment to a supervisor. Id. at 151. Within a few months after the plaintiff started working, inmates began making sexually obscene comments towards her. As the comments continued and took a threatening nature, i.e.--inmates threatened to assault her to determine her gender, the plaintiff reported the comments. The plaintiff was told by inmates that officers had started a rumor about her that she had a sex change operation, but was not given names. Id. at 151-52. The defendant underwent an investigation and questioned officers. It also warned all employees against sexual harassment. It offered the plaintiff aid through the employee assistance program, which the plaintiff declined. Id. at 153. The defendant continued to monitor and investigate the situation as the comments and harassment continued, and eventually offered to transfer the plaintiff to any institution of her choice within the facility, but the plaintiff declined. Id. at 159. The plaintiff then asked to go on unpaid medical leave, which was granted. The plaintiff then failed to submit the necessary medical documentation and she was considered to have resigned. Id. at 160-61. The plaintiff then sued for sexual harassment creating a hostile work environment and claimed that the defendant failed to adequately investigate and remedy the harassment. The court considered Gen. Stat. §46a-60, which prohibits discriminatory employment practices. The court then looked to federal law for guidance on whether to hold an employer liable for sexual harassment committed by the plaintiff’s co-workers. The court concluded that “once an employer has knowledge of a sexually combative atmosphere in the work-place, he or she has a duty to take reasonable steps to eliminate it.” Id. at 168 (quoting Snell v. Suffolk County, 782 F.2d 1094, 1104 (2d Cir. 1986)). The court noted that an employer’s response will be analyzed in terms of how prompt, appropriate and adequate it was. Id. The court found that the defendant did not only investigate the harassment but also made reasonable efforts to identify the inmates and officers responsible for the rumors, warned all staff that sexual harassment would not be tolerated, provided the plaintiff with access to supervisors to report any incidents to, and offered a transfer to the plaintiff which was in no way onerous, punitive or unreasonable. Id. at 171-72. The court found this was reasonable and the defendant would not be liable.
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.
While Gen. Stat. § 46b-15 allows a plaintiff to obtain a domestic restraining order, the Connecticut Supreme Court held in Putnam that such an order is an appealable final judgment. In other words, this protection is somewhat limited as a defendant is able to appeal the issuance of a restraining order. Id. at 167. Here, the defendant appealed the trial court’s grant of a domestic restraining order and the appellate court found the appeal is moot, as such an order is not appealable as it is not a final judgment. Id. The Connecticut Supreme Court disagreed and found that it is a final judgment and an appeal is permissible due to the “potentially irreparable effects of § 46b-15 restraining orders on relationships within the family unit.” Id.
Here, the defendant had a prior conviction of sexual assault in the third degree. He was sentenced to two years of prison with three years probation. Under Gen. Stat. § 54-252, the defendant was required to register as a sex offender with the sex offender registry unit of the state policy. Id. at 338. While the defendant initially registered after his release from prison, he later failed to comply with all of the registration reporting requirements. Id. Specifically, he failed to return an address verification form. The defendant had moved and six months later, contacted the registry office to send correspondence to his new address so he could update his registry. Id. The defendant since remained in compliance with registry requirements. Nonetheless, the court affirmed the trial court’s conviction that the defendant failed to comply with sex offender registration requirements.
Here, the plaintiff sued her former employer for allowing her to be subjected to sexual harassment, sexual discrimination, and sexual assault by her co-workers. The plaintiff claimed that her co-workers made sexual comments and engaged in inappropriate sexual behavior, but that she was not physically injured by the conduct. She also had no prior or subsequent contact with her co-workers outside of work. Id. at 938. The plaintiff complained to her supervisors but nothing was ever done to rectify the situation. The plaintiff subsequently elected to take a layoff from her job once the harassment continued. The defendant argued that the plaintiff had no common law right of action because any of these claims were encompassed by the Delaware Workmen’s Compensation Act (19 Del. C. § 2301). Under this Act, a plaintiff’s compensation for personal injuries is limited to compensation that is provided in the Act. The court agreed with the defendant and found that the Act did not exclude acts of a sexual nature that occurred at work, and that the plaintiff could not bring a private cause of action for sexual harassment. Id. at 939-40. Thus, any action for sexual harassment would have to be brought pursuant to 19 Del. C. § 2301.
Here, the defendant-employer appealed the decision of the Equal Employment Review Board that it had discriminated against the plaintiff because of her sex, in violation of 19 Del. C. § 711. The plaintiff was a waitress for almost four years when she requested maternity leave to the restaurant’s owner and general manager. She was granted maternity leave and told she could return to work to her previous schedule when physically able. Id. at *1. When the plaintiff attempted to return to work three months later, she was told there were no positions available, but at that time, six part-time waitresses were hired. Id. When the plaintiff applied for unemployment compensation, she was offered a position but with a reduced schedule, and which gave her less time serving on the patio, where greater tips could be yielded than inside. The plaintiff was never replaced by a male employee but did lose income as a result of her reduced schedule. Id. The Equal Employment Review Board found the defendant discriminated against the plaintiff. On appeal, the court noted that to prove a prima facie case of gender discrimination, a plaintiff must satisfy a four-prong test as articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. Under the test, the plaintiff was required to show that she “(1) was within the protected group; (2) that [she] was qualified for the position in question; (3) that despite [her] qualifications, [she] was rejected or discharged; and (4) that after [her] rejection, the employer continued to seek applicants from persons with the same qualifications, or that [she] was replaced by a person outside of the protected group.” Id. However, if at that point, the employer could show a reason for its actions that were non-discriminatory, a plaintiff may not necessarily prevail on a gender discrimination claim. The court found that the Board did not consider the employer’s rebuttal of the plaintiff’s showing of gender discrimination—testimony from five witnesses that the defendant often switched waitresses from the patio to the inside of the restaurant, and that other employees who returned after a leave of absence returned on a reduced pay arrangement. Id. Thus, the court remanded the case to the Board to more carefully review the defendant’s rebuttal.
The Court reversed the lower court and remanded to family court for entry of a protective order on behalf of petitioner. Petitioner and defendant had been in a twelve year relationship that ended. A year later, defendant made efforts to renew the relationship and began harassing petitioner with numerous phone calls, voice mail messages to her home and work phone and by making unannounced appearances at her workplace and home. Defendant arrived at her home and didn’t leave the premises for approximately two hours. During that time, he banged a three foot metal bar against her trailer. She felt trapped in her home. He routinely carried a concealed weapon, his car was blocking her driveway so that she couldn’t leave in her car and she did not have telephone service. The lower court found that the defendant did not commit domestic violence because defendant remained outside the home during this time and plaintiff was not physically restrained or confined within her home. In reversing the lower court, the Supreme Court stated that plaintiff did not have to show proof “of some overt physical exertion on the part of the alleged offender in order to justify issuance of a protective order.” It held that domestic violence defined in West Virginia Code 48-27-202(3) (2001) as “[c]reating fear of physical harm by harassment, psychological abuse or threatening acts” provides that fear of physical harm may be established with (1) proof of harassment, (2) proof of psychological abuse, or (3) proof of overt or threatening acts.”
Ira Clements lived with his elderly wife, Helen, who had been diagnosed with Alzheimer’s disease. Their daughter, Linda, believed that her father was abusing her mother. When Linda arrived at the family home with the intention of removing her mother from Ira’s home, Ira grabbed Linda by her hair and drew back his fist as though he would hit her. As Helen tried to sneak out of the house, Ira grabbed her arm and pulled her back into the house. When police officers arrived to investigate, Ira admitted to them that he grabbed Linda’s hair and stated that he “should have beat the hell out of [Linda]”; Linda was visibly nervous and shaken and reported to the officer that she feared for her life. A “family violence” protective order issued against Ira behalf of Helen, Linda, and Linda’s husband pursuant to section 71.004 of the Texas Family Code. Ira challenged the protective order on the grounds that (i) his conduct did not constitute “family violence” under the Code and (ii) there was no threat that family violence would likely occur in the future. As to Ira’s first argument, the court held that Ira’s behavior fit the definition of “family violence” even though he never actually struck his wife or daughter because he put a family member “in fear of imminent physical harm, bodily injury, [or] assault.” The protective order was legally sufficient because Linda, her sister, and two police officers testified that Ira grabbed Linda’s hair and drew back his fist as if he would hit her, and, that Ira had repeatedly threatened Helen and made her fearful—thus, there was not a complete absence of vital fact and the evidence amounted to more than a “mere scintilla.” As to Ira’s second argument, the court held that there was sufficient evidence for the finding that family violence would likely occur in the future. In so finding, the court explicitly extended to family violence protective order cases the well-settled family law principle that evidence a person has engaged in abusive or neglectful conduct permits an inference that the person will continue this behavior in the future.
Appellant argued that the court wrongly allowed the admission of victim’s statements regarding alleged battery by the defendant after defendant was convicted of domestic battery. The victim made statements to others and did not appear in court or testify at trial; therefore, appellant had no opportunity to cross-examine the victim. The court held that the victim’s statements were “improperly admitted in violation of the Confrontation Clause of the Sixth Amendment to the . . . Constitution and Article III, Section 14 of the West Virginia Constitution.” The lower court had permitted the state to introduce the victim’s statements made to two sheriff’s deputies. The West Virginia Supreme Court held that these statements were testimonial and should not have been admitted into evidence under the Confrontation Clause. Similarly, the victim’s statements to a neighbor were improperly admitted. The Court, however, noted that domestic violence cases are unique because victims rarely call the police or use the criminal justice system, and often fail to “cooperate with prosecutors because they fear retaliation.” The Court conceded that the Confrontation Clause, therefore, gives defendants a “windfall” because domestic violence victims are “notoriously susceptible to intimidation….” The Court therefore emphasized the “doctrine of forfeiture” under which “an accused who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.”
Gregory Vongontard and Misty Tippit broke up after two-and-a-half years of dating. After the break-up, Gregory began threatening Misty by backing her into walls and corners, calling her names, throwing house keys at her as she attempted to return them to him, calling her numerous times and demanding to know where she was and who she was with, and threatening to “kill the guy” she was dating. Misty also testified that Gregory had been physically violent on three occasions while they were dating (trying to hit her, pushing her against a wall, and pushing her to the ground). A “dating violence” protective order issued against Gregory pursuant to the Texas Family Code, sections 71.001 to 87.004. Gregory contended that the evidence was insufficient to show that he committed dating violence against Misty. The court held that there was “more than a scintilla” of evidence of past violence since the evidence showed that Gregory had thrice pushed Misty, putting her in fear of imminent physical harm. The court further held that the finding of future incidents of dating violence was likewise supported by sufficient evidence since Gregory had continued to threaten Misty post-break-up.
Plaintiff Marquardt took eight weeks off for maternity leave and vacation. During that time, her supervisor reorganized the division in which she worked and redefined her responsibilities. He did not inform her of these changes. Included in the reorganization was the elimination of plaintiff’s position as credit manager. The position was divided into two positions, and Marquardt’s supervisory responsibilities decreased. Her new position also involved 25% clerical work, whereas in her old position, she had no clerical work. She received the same pay and benefits and had the same office as her prior position. The Court found that the plaintiff in this case was not returned to her equivalent employment position after her return from maternity leave, which is required under the Family Medical Leave Act (FMLA). It held that although an employer may reorganize a department while an employee is on leave, and give an employee new job duties, it must still give the employee equivalent job duties. An equivalent employment position “means a position with equivalent compensation, benefits, working shift, hours of employment, job status, responsibility and authority.” It also held that the plaintiff was properly awarded back pay and that plaintiff’s “interim earnings and amounts earnable with reasonable diligence should be considered when back pay is awarded under the FMLA.”
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.
Defendant was convicted of two counts of second-degree sexual assault for assaulting his 14-year old niece by marriage. The Wisconsin Supreme Court held that the trial court correctly refused to allow a psychologist for the defense to testify that the defendant did not fit the psychological profile of incestuous sex offenders. It held that testimony regarding defendant’s sex acts against minors was admissible. It also held that testimony by an adult woman of defendant’s 13, although an error, was harmless error. The court agreed that the testimony of the two individuals regarding sex acts against minors was admissible because it showed a “general scheme or motive to obtain sexual gratification from young girls” under Wisconsin evidentiary law. It agreed that admitting the testimony of the woman who alleged 13 was error since it did not similarly show a general scheme, but that admission was harmless error since it was not possible that the error contributed to the defendant’s conviction. The court noted that the trial court applies a two step process to determine whether evidence of other crimes is admissible, looking at whether it falls into one of the exceptions listed in the applicable statute, and second determining whether prejudice outweighs the probative value of the evidence. Additionally, in sex crime cases involving children, the court noted that there is “greater latitude of proof as to other like occurrences.”
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.
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.”
Lisa Rodriguez was a patrol officer at Texas Southern University (“TSU”) who alleged that her supervisor sexually harassed her by making sexual innuendos, making inappropriate remarks, commenting on her physical attractiveness, asking about the color of her undergarments, and keeping a picture of her on his desk. Eventually, Ms. Rodriguez filed a charge form with the Texas Workforce Commission Civil Rights Division (“TWC”) alleging, among other things, 13. In the charge form, she alleged that the 13 began a week after she was hired, and had continued until as recently as four months before filing the TWC complaint. As a defense, TSU claimed Ms. Rodriguez had failed to meet the 180-day deadline for filing the complaint. In Texas, a complaint under the Texas Labor Code for 13 (a type of sex discrimination) must be filed “not later than the 180th day after the date the alleged unlawful employment practice occurred.” Tex. Lab. Code Ann. § 21.202(a). TSU argued that because Ms. Rodriguez only documented 13 at the beginning of her employment, the 180-day deadline had passed. However, the court recognized there are two types of 13—quid pro quo and hostile work environment. “Quid pro quo harassment occurs when employment benefits are conditioned on sexual favors, while a hostile work environment is the result of 13.” Since Ms. Rodriguez’s claim was of a hostile work environment, the “continuing violation doctrine” applied since the “unlawful employment practice manifest[ed] itself over time, rather than as a series of discrete acts.” Since Ms. Rodriguez alleged “a series of related acts, one or more of which [fell] within the limitations period,” the complaint was timely filed and the appellate court found that it had jurisdiction over the case.
Linett Wilkerson was the widowed third wife of James Wilkerson. Dennis Wilkerson was James’s adult son from his first marriage. After her husband died, Linett explained to Dennis that she intended to help run one of the family businesses, a golf course. Dennis became furious. told Linett that she had no business in the golf course, and instructed her to follow him outside where he pulled a gun out and shot some soda cans, telling Linett that he was “a good shot” and “I never miss” and that he “always [had] plenty of ammunition.” On another occasion he told Linett not to “get in his way” or “something would happen” to her. After Dennis repeatedly refused Linett’s attempts to obtain financial information about the business in order to probate James’s estate, Linett filed a lawsuit. Williams, a friend of Dennis’s, came to Linett’s house twice and threatened her and her children. The trial court issued a family violence protective order against Dennis on behalf of Linett and her children. Dennis asserted that it was not an appropriate case for the issuance of a family violence protective order because “Linett and Dennis have never shared a household” and their family relationship was “attenuated” since she was his father’s third wife. The court held that their relationship was one of family under section 71.004(1) of the Texas Family Code, since Linett and Dennis were related by affinity and Dennis and Linett’s children were half-siblings. In other words, step-families fall within the “family violence” provisions of the Code even where they do not share a household. Moreover, the evidence was legally and factually sufficient for issuance of the protective order.
Molly Harvill sued her fellow employee, Oscar Rogers, for sexual assault and battery and intentional infliction of emotional distress. Ms. Harvill alleged that Mr. Rogers grabbed and kissed her, shot rubber bands at her breasts, and rubbed against her at work after repeated requests for him to stop. The trial court entered summary judgment in favor of Mr. Rogers because Ms. Harvill didn’t allege damages as a result of the sexual assault. However, the appellate court reversed on this count, recognizing that no actual damages are required for an allegation of sexual assault. All that is required is that a person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Penal Code. § 22.01(a)(3). The court recognized that bodily injury is not required and damages for mental suffering are recoverable without an actual physical injury.
Rebecca Wright was a waitress at Arlington Steakhouse, Inc. for four months. She alleged that during this time, her supervisor, Christopher O’Dell, made lewd sexual comments to her, touched her in sexual ways that she found offensive, and created a hostile work environment by his 13. Specifically, Ms. Wright alleged O’Dell put his fingers down her blouse and in her pants and brushed up against her, offered to pay her for oral sex, verbally degraded her and the other waitresses, and made inappropriate comments about her physical appearance. The jury trial resulted in a verdict for Ms. Wright on all claims, finding O’Dell assaulted her, Ms. Wright was constructively discharged, and was subjected to 13. The jury award was for $175,000 in mental anguish damages for assault and $250,000 in mental anguish damages for 13. O’Dell appealed this decision on many grounds, one of which was that the award of damages was unsupported and violated the statutory cap on damages for employers with less than 500 employees. The appellate court affirmed, recognizing that mental anguish damages require a plaintiff introduce “direct evidence of the nature, duration, and severity of her mental anguish, thus establishing that there was a substantial disruption of her daily routine.” The requirement is a “high degree of mental pain and distress” and must be more than “mere worry, anxiety, vexation, embarrassment or anger.” Direct evidence must be shown of this and the evidence shown must justify the amount awarded to be affirmed on appeal. The court found Ms. Wright presented sufficient evidence at the trial since she experienced severe anxiety, clenched her jaw, held her breath, at times felt paralyzed and nauseous, and had nightmares of her attacker, O’Dell. In addition, the appellate court found the amount was fair and reasonable since the jury considered the “disruption in her life and personal toll taken by the events surrounding the assault and 13.” The court also found that the statutory cap provided in Texas Labor Code Section 21.2585 (capping damages based on the size of the employer) did not apply because the burden was on the defendant to plead and prove this defense, it was not an automatic cap.
Kathy Nieves sued her co-worker, Jeremy Cox, for sexual assault and sued her employer, East Texas Medical Center EMS (ETMC) for, among other things, 13. Ms. Nieves was an EMT and Mr. Cox a paramedic who would work shifts with Ms. Nieves. Ms. Nieves alleged sexual assault by Mr. Cox, arguing that he had subjected her to forced sexual contact at her apartment, and 13 during the work shift when Mr. Cox allegedly tried to hold her hand and have other unwanted contact while at work. Texas recognizes that a person commits assault if he (1) intentionally, knowingly or recklessly cause bodily injury to another, (2) intentionally or knowingly threaten another with imminent bodily injury, or (3) intentionally or knowingly cause physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative. The jury was instructed that “sexual assault is without the consent of the other person if (1) the actor compels the other person to submit or participate by the use of physical force or violence, (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat, or (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist.” The jury trial handed down a verdict for Ms. Nieves on all claims and substantial damages for past and future physical pain and mental anguish. Mr. Cox and ETMC both appealed the jury verdict, though ETMC ended up settling the claims against it. The appellate court affirmed the trial court’s order, recognizing the important role of the jury in determining which “side of the story” is more credible and whom to believe. In this type of case, a court must consider the “entire context, circumstances, conversations, writings, acts, and relationships between the parties” in determining whether to reverse the trial court. Here, the appellate court found there was sufficient evidence for the trial court outcome and that the jury’s verdict was not unreasonable.
An insurance agency, Walthall, Sachse & Pipes, Inc., brought suit against its former employee, Rosemary Spring, for opening a competing insurance agency in violation of her non-compete agreement. Ms. Spring then brought several counterclaims against her former employer, including claims for 13 under the Texas Labor Code and Title VIII of the Civil Rights Act of 1964 and assault by her supervisor, Mr. Sachse. She alleged that he pushed her head into his hip, thrust his buttocks into her pelvic area and grinded against her while laughing, and kissed her cheek and neck. The trial court entered summary judgment against Ms. Spring on all counts and she appealed. The appellate court held that Ms. Spring failed to plead a prima facie case for 13. To plead 13 under a hostile work environment theory, a plaintiff must establish: (1) she is a member of a protected class, (2) she was the victim of uninvited 13, (3) the harassment was based on sex, and (4) the harassment affected a “term, condition, or privilege” of her employment. The appellate court recognized that for the conduct to be actionable, she must show “the workplace was permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile or abusive working environment.” The 13 must be sufficiently severe or pervasive such that to a reasonably objective third person the conduct created an “abusive working environment.” Despite her allegations, the court looked at other similar cases where the harassment was even more severe and found that the conduct didn’t rise to “such severe or pervasive 13 that would create a hostile or abusive work environment as to affect a term, condition, or privilege of employment of a reasonable person in Spring’s position.” However, the court did reverse the entry of summary judgment on the assault claim. Conduct can be actionable as civil assault when it doesn’t rise to the level of discrimination under the Texas Labor Code and Title VII of the Civil Rights Act of 1964. To allege assault, Ms. Spring must have shown Mr. Sachse intentionally or knowingly caused physical contact with her when he knew or should have known she would regard the contact as offensive or provocative. Ms. Spring presented testimony of a co-worker who corroborated the contact in the elevator. The other two incidents both involved physical contact. Since reasonable minds could differ on whether the unsolicited physical contact was offensive or provocative, the court reversed on the assault claim.
Suter filed a petition for a temporary protective order, alleging boyfriend committed various violent acts against her. The court issued the temporary protective order and entered a final protective order five days later by consent. Stuckey, Suter’s boyfriend, later filed an appeal of the final protective order. Suter filed a motion to dismiss the appeal, arguing the appeal was time-barred, and Stuckey was estopped from appealing a consent judgment. The court held that the appeal was moot because the protective order had expired; however, it concluded that the issue was one capable of repetition yet evading review, and implicated an important public policy; it therefore examined the merits of the case. The Court held that boyfriend did not have the right to appeal a protective order entered by consent.
William and Elizabeth Mecanti were married with children. William subjected Elizabeth to a pattern of harassment that lasted months. The couple had been experiencing marital difficulties and Elizabeth had been sleeping on the couch. She slept during the daytime because she worked the night shift. William would come home from work and wake her up to argue and instigate fights. He hacked into Elizabeth’s emails and looked through her pockets, cell phone logs, purses, and car. He would follow her when she was out with friends. He wrote her pages expressing his love, his fear of losing her, and his wish to stay together forever. On one occasion William hid her house and car keys and locked her out of the house; when she was finally able to reenter the house, Elizabeth discovered that he had disconnected the telephone lines. Elizabeth sought a protection from abuse (“PFA”) order after an incident when William wanted her to sleep with him in their bedroom, even though she had told him she wanted a divorce and they had been sleeping apart for three years. When she refused to follow him to the bedroom, William told her “this is going to get ugly” and “this is just the tip of the iceberg.” Then he left the house. Elizabeth went to sleep on the couch and woke up when William returned home and turned on the television. She asked him to turn it off but he refused; after some argument he stormed out of the room after saying “you better not go to sleep. You better not even close your eyes.” Elizabeth heard a noise like the cocking of a gun (William kept guns in the house) so she called the police. After this incident she sought the order of protection, which was granted. She had not filed for divorce because she was afraid of what William might do. On appeal, William argued that the PFA should not have issued because his threats were indirect and Elizabeth never testified to a past occasion when he threatened her as he did the night of the incident. The court considered the pattern of harassment as a whole, including Elizabeth’s testimony that she had heard William cock guns in the past, and concluded that that his behavior established “abuse” under the statute.
Ms. Reynolds was fired from her job at the NYC Department of Correction (“Department”) for violating its sick leave policy. Ms. Reynolds was a victim of domestic violence. In 2002, she requested vacation time to find a home after leaving her abuser. When she did not find a home within her given vacation time, she requested more time off to continue searching for a place to live. As a result of her request, her employer put her on immediate sick leave and demanded that she provide them with an address. When Ms. Reynolds told them she was currently homeless, she was told she could not work at the Department without providing them with a current address. Faced with the threat of termination, even after she explained her homelessness, she gave her husband’s address. It was the Department’s policy to police sick leave abuse by sending monitors to a sick employee’s home for surprise visits. When a monitor appeared at Ms. Reynolds’s husband’s home to check in on her, she was not present. Ms. Reynolds was fired as a result. She brought suit against her employer for violating the law prohibiting employers from discriminating against victims of domestic violence. In 2001 New York enacted an amendment to the City’s Human Rights Law, also known as the Local Law I (the “Law”), to prevent employers from discriminating against victims of domestic violence. The stated purpose of this amendment was “to protect the economic viability of victims of domestic violence and to support their efforts to gain independence from their abusers by enabling victims of domestic violence to speak with their employers without fear of reprisal, about domestic violence incidents or about possible steps that will enhance their ability to perform their job without causing undue hardship.” The Supreme Court, New York County (a New York State trial court) found that the Department violated the Law when it did not make reasonable accommodations for Ms. Reynolds’s status as a homeless victim of domestic violence. The court reasoned, “the end result here, [Ms. Reynolds’s] loss of a job at the point when she was finally getting her living situation under control, is exactly the kind of fallout that Local Law 1 was enacted to prevent.”
Daniel Kerrigan sexually abused A.R., the 7-year-old daughter of his live-in girlfriend, for 3 years. The abuse was discovered when A.R. was diagnosed with genital warts when she was 10 years old. The court held that the transmission of HPV and genital warts satisfies the serious bodily injury requirement of the crimes of Rape of Child (Serious Bodily Injury) and Involuntary Deviate Sexual Intercourse with a Child (Serious Bodily Injury) because HPV is a permanent disease, can lead to cervical cancer, and may be transmitted to A.R.’s future sexual partners or children.
Ms. Thorpe was a victim of domestic violence. Her landlord sought to evict her from her apartment, alleging nuisance in violation of the lease. Ms. Thrope was the only person on the lease. Her landlord’s nuisance claim was based on a fight that had occurred between Ms. Thorpe and her husband. Ms. Thorpe moved for summary judgment based on the Violence Against Women and Department of Justice Reauthorization Act of 2005 (“VAWA 2005”). Under VAWA 2005, “an incident of domestic violence will not be construed to violate a public-housing or government-assisted tenancy and shall not be good cause to terminate a public-housing or government-assisted tenancy if the tenant is the victim or threatened victim of domestic violence.” Ms. Thorpe argued that because her landlord’s allegations of nuisance were based solely on acts of domestic violence committed against her, he could not terminate her government-assisted tenancy. To prove that she was a victim of domestic violence, Ms. Thorpe provided three complaint reports that she had filed with the New York Police Department, along with a protective order she obtained against her husband from the New York City Criminal Court. The court granted Ms. Thorpe’s motion for summary judgment because she was a victim of domestic violence, and as such, VAWA 2005 prohibited her landlord from terminating her lease. The court reasoned that “VAWA’s goal is to prevent a landlord from penalizing a tenant for being a victim of domestic violence,” as Ms. Thorpe was here.
Dinzel and Christine Karch were married with three children. Christine sought and was granted a protection from abuse (“PFA”) order for an incident in March wherein Dinzel placed his hands around her neck and threatened to “snap” it. Then in May, during an argument about getting divorced and child custody, Dinzel put his hands on his wife’s forehead, made a motion as if he was firing a gun, and said “there is your future.” This action made Christine’s head sore as if she had a brush burn. Dinzel argued that the court should not have credited Christine’s testimony about the injury inflicted upon her by him because she did not seek medical treatment for her injury. But neither the PFA Act nor the body of case law interpreting it requires that there be medical evidence or that the wife seek medical treatment for an injury in order for her testimony to be found credible. And in any event, verbal threats are sufficient to support the grant of a PFA; actual physical injury is not a prerequisite. Dinzel next argued that the lack of a police report filed cast doubts on Christine’s credibility because it demonstrated that the police did not believe that she had been abused and that the lack of police compliance precluded the issue of a PFA as a matter of law. The court held that it is also not required that a police report be filed in order to obtain a PFA and wished to make it “abundantly clear” that it will not infer that the failure of the police to act on a report of domestic violence means that the victim is not credible.
A court issued a warrant for the arrest of the defendant after he assaulted and injured Dorian Jones. The magistrate judge did not authorize his release after he was arrested; he was held for a hearing before the District Court Judge. The Judge set a secured bond of $10,000; a few days later, the State and defense counsel agreed to a lowered bond on the condition that the defendant would have no contact with the victim. The District Court Judge signed the order, and he was released after posting bond. About a week later, when his case was called, he moved to dismiss. He argued prosecution of the case violated the Double Jeopardy Clause of the Constitution. The court noted that in its consideration of statutes, it has held that “constitutional attacks on criminal statutes must be made on a case-by-case basis.” It found that in this case, there was no unreasonable delay in holding a post-detention hearing for the defendant. Therefore, it held that N.C.G.S. § 15A-534.1(b), which “sets forth conditions of bail and pretrial release for individuals accused of crimes of domestic violence” was constitutional as applied to the defendant.
Plaintiff sued John Haynes for intentional and negligent infliction of emotional distress and Copland, Inc. for ratification of Haynes’ conduct, negligent retention and supervision of Haynes, and imputed liability. The plaintiff alleged that Haynes intimidated and harassed her during the one year that she worked for Copland, Inc. She asked him to stop and reported the incidents to her supervisor. The supervisor reportedly told her that he was a “youngun” and to ignore him. After one incident outside of work, she complained to her supervisors. They had a meeting with the plaintiff and Haynes; Haynes was terminated, and the plaintiff was also terminated later that day. The plaintiff alleged that the harassment caused her to cry, disturbed her sleep, and gave her nightmares. She testified to a long history of sexual abuse at the hands of various individuals. Experts explained that she had a dissociative disorder and the experience of harassment caused a flashback that triggered severe mental problems. The trial court dismissed all claims except the claim “for intentional infliction of emotional distress against Haynes and the claims against Copland for ratification of Haynes’ conduct and negligent retention of Haynes.” The jury awarded monetary damages, and the Court of Appeals ordered a new trial, citing an error in the charge. The North Carolina Supreme Court considered the “thin skull” rule, which “provides that if the defendant’s misconduct amounts to a breach of duty to a person of ordinary susceptibility, he is liable for all damages suffered by the plaintiff notwithstanding the fact that these damages were unusually extensive because of the particular susceptibility of the plaintiff.” Copland argued that there was error because the jury was permitted to “consider the thin skull damages when it determined the liability issue.” Copland contends therefore that the jury was able to find liability “without finding that defendant Haynes’ action could have caused severe emotional distress in a person of ordinary susceptibility.” The court disagreed, noting that a clinical psychologist testified that a person of “ordinary sensibilities” could have been affected in a manner similar to the plaintiff in this case. It also held that there was no error in the jury instructions, and that the instructions correctly explained that the jury had to find that Haynes’ actions could have reasonably injured a person of normal sensibilities before it could hold him liable for all of the consequences of his actions. The court also did not review the Court of Appeals finding that the thin skull rule applies to mental, not just physical injury, and that the fact that the jury received instructions during the damages, rather than liability phase of the case, was not error.
Plaintiff Parker alleged that defendant Grissom, a general manager who hired her as a bookkeeper, sexually harassed her. She reported the harassment to her immediate supervisor, Link. Parker stated that she feared losing her job if she did anything, so asked that Link do nothing. The harassment continued, and Link reported it to Vinson, a member of the Utility’s Board of Commissioners. Vinson agreed that plaintiff would likely lose her job if she reported the harassment. Plaintiff later discussed the issue with Vinson, who did not assure her that she would not lose her job. Grissom voluntarily resigned in April of 1994 but was rehired in the fall, despite the fact that plaintiff notified the board of the alleged harassment. The board rehired him, but also retained counsel to conduct an independent investigation of his alleged harassment. Plaintiff filed several claims; the remaining hostile work environment/13 claim before the Court was against the Utility District under the Tennessee Human Rights Act. The Utility District filed a summary judgment motion, arguing that “it took prompt corrective action in response to plaintiff’s complaints and that the corrective action was ‘a complete defense’ to a claim for 13.” An employer has an affirmative defense to a hostile work environment claim based on 13 by a supervisor if the employer can show: (1) that employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by employer or that employee unreasonably failed to otherwise avoid the harm. The court held that Parker’s supervisor could be held vicariously liable for her hostile work environment 13 claim. There was no evidence that the District exercised reasonable care to prevent the alleged harassment, and that there was no evidence of a written anti-discrimination policy given to employees to deal with the circumstances of the case. It reversed the trial court’s grant of summary judgment to the employer, and modified a previous decision, Carr v. United Parcel Service, 955 S.W.2d 832, according to which a supervisor could be vicariously liable only for quid pro quo, and not hostile work environment 13 claims. The court modified Carr to “reflect the recently articulated standard for supervisor harassment adopted by the United States Supreme Court.”
Dupont, employed by Speedway convenience stores, sued her employer alleging a hostile work environment and 13, in violation of Florida’s Civil Rights Act. Dupont’s complaint stemmed from her interactions with a coworker, Coryell, who shared Dupont’s midday shift. Dupont had for months complained to her superiors that Coryell acted inappropriately with her, both violently and sexually. For instance, Dupont complained that Coryell had inappropriately grabbed her, made sexual comments concerning female customers, and humiliated her. Speedway, at the time, had a written 13 policy, yet no action was taken. Speedway continued to place Dupont and Coryell together on the same shift. The Court found Dupont’s claim viable, noting that Coryell’s conduct – even if not entirely sexual in nature – constituted 13 where motivated by a hostility toward women because of their gender. The Court went on to describe Florida’s policy against 13 in the workplace as strong, noting that courts should liberally construe section 760.10, Florida Statutes. Finally, the Court found an award of punitive damages appropriate, even where the jury had not found Speedway’s conduct willful, because Coryell’s conduct was clearly willful and Speedway had been at the very least negligent in failing to respond to Dupont’s complaints.
Plaintiff and Defendant were married in 1998 but entered into a separation agreement in 2007. Plaintiff and Defendant were living together. They were discussing work that needed to be done around the house when defendant husband requested that the wife look at the door sweep. The wife bent down to look and subsequently could not recall anything that took place until she woke up around 3:00 am and found herself in bed with a “terrible headache” and extreme nausea. Defendant told her that she had had a seizure and had hit her head. She went to the hospital. The doctor found that her injuries were life-threatening and consistent with domestic violence, not with a seizure. Her family members testified that at the hospital defendant acted nervous. When her son insinuated to defendant that defendant caused the injuries, defendant responded “What man would walk away from three million dollars?” Three days later plaintiff filed a complaint and motion for a domestic violence protective order. The trial court entered the protective order, finding that defendant caused the plaintiff’s severe injuries. Defendant appealed, arguing that the finding was “not supported by competent evidence” and “the findings did not support the conclusion that domestic violence had occurred.” The appellate court noted that in North Carolina, domestic violence is “the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense: (1) Attempting to cause bodily injury, or intentionally causing bodily injury.” The court reviewed the evidence and found that it supported the trial court’s finding – the defendant’s testimony was “not plausible.”
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.
Plaintiff and defendant were engaged and had one child. The trial court entered a protective order due to plaintiff’s allegation that defendant hit her during a visitation exchange. Plaintiff had a visitation exchange of infant son with defendant at plaintiff’s parents’ house. Plaintiff’s father carried their infant son towards his house. Defendant allegedly punched and kicked plaintiff’s father. When plaintiff tried to pull him away, he threw her into the railing. The court found that the trial court’s finding was supported by competent evidence, and was not persuaded by defendant’s “assertion that the trial court improperly shifted the burden of proof onto defendant in determining that defendant committed an act of domestic violence.” Because the trial court found that defendant did not “rebut plaintiff’s testimony that she received bruises on her left side as the result of being slung into the railing, . . . the trial court believed Ms. Gersch.”
Employee filed suit against her employer, the University of Tennessee, alleging sex discrimination under the Equal Pay Act and the Tennessee Human Rights Act (“THRA”). She also alleged that her employer retaliated against her for filing an EEOC charge. The Court of Appeals held that there was sufficient evidence to support the verdict that she had suffered discrimination and that her employer retaliated against her. Plaintiff was an employee of the University’s Agricultural Extension Service since 1980. She was eligible for a promotion in 1986, but was not promoted. Her co-worker, however, who started in 1979, was promoted. Plaintiff filed an EEOC charge. She then brought an action for sex discrimination under the Equal Pay Act and THRA and alleged that defendant retaliated against her for filing the EEOC charge. The Court found sufficient evidence to uphold the jury verdict granting plaintiff $13,600 on her discrimination claim, $50,000 on her retaliation claim, and $26,000 in attorney’s fees. The Court noted evidence that plaintiff’s evaluation scores were adjusted downward after she signed off on them and before they were given to the Dean who made decisions regarding pay and promotion. There was also evidence that complaints against her were taken more seriously than complaints against her peers. One of her supervisors admitted that he stopped recommending her for promotions after she filed the EEOC charge, and that management took much more time and effort over small matters that related to the plaintiff.
Defendant Megan Goff shot and killed her estranged husband. The State moved the trial court to order Goff to submit to a psychological examination, knowing that she planned to use battered women’s theory in her defense. The court held that a defendant’s right against self-incrimination is not violated when the court orders the defendant to submit to a psychiatric evaluation by a state expert in response to the defendant’s assertion of battered women’s syndrome. However, to preserve the right, the examination must be limited to information regarding battered women’s syndrome and “whether the defendant’s actions were affected by the syndrome.” In this case, the examination and testimony were not so limited; therefore, the court held that the defendant’s right against self-incrimination was violated. One of the State’s experts testified about inconsistencies in the defendant’s statements.
Mitchem filed a motion for judgment against her former employer, Counts, alleging wrongful discharge in violation of the common law following her refusal to have a sexual relationship with him, as well as several instances of 13. She argued that her discharge violated Virginia’s policy “that all persons . . . are entitled to pursue and maintain employment free of discrimination based upon gender.” The trial court held that the amendments to the Virginia Human Rights Act “eliminated the VHRA as a source of public policy to support a common law cause of action for wrongful termination. The trial court also held that Code §§ 18.2-57, -344 and -345 do not articulate public policies that support a common law action for wrongful termination. The court dismissed Mitchem’s action with prejudice, and Mitchem appealed from this judgment. On appeal, Mitchem withdrew parts of her previous claim, arguing that she was discharged from employment due, not to gender but rather, to the fact that she would not consent to her employer’s demands that she violate sections of the Virginia code prohibiting fornication, lewd and lascivious cohabitation, and was discharged for failing to “consent to commission of a battery upon her person.” The court addressed whether Code §2.1-725(D) “bars a common law action for wrongful termination based on public policies not reflected in the VHRA, when the conduct alleged in the motion for judgment also violates a public policy reflected in the VHRA.” That section states, “Causes of action based upon the public policies reflected in this chapter shall be exclusively limited to those actions, procedures and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances.” The court noted that the statute only abrogated common law causes of action for wrongful discharge based on public policies in the VHRA; common law causes of action for wrongful discharge based on public policies not in the VHRA are not prohibited by the section. The Court upheld the trial court’s dismissal of plaintiff’s wrongful discharge claim based on the public policy of “refusing to consent to commission of battery upon her person” – since if she had consented, there would have been no battery. However, it reversed the trial court’s holding as to wrongful termination based on public policy in Code §§ 18.2-344 and -345, which prohibit fornication, and lewd and lascivious behavior respectively.
The Court held that alleged 13 by police chief was not outside the scope of his employment; therefore the insurer owed the police chief a duty to defend him in a lawsuit brought by a former employee alleging 13. Plaintiff alleged that defendant used the department’s computer system to distribute pornographic images and emails and also used hidden electronic devices to record female employees in the restroom. Plaintiff filed a five-count complaint that included claims for hostile work environment due to her gender and a sex-discrimination claim. She sued him in his individual and official capacity, arguing that he acted in his official capacity as chief of police. At the time, the Ohio Government Risk Management Plan provided liability insurance coverage to Harrison, the police chief. It filed a declaratory judgment action seeking a declaration that it had no duty to provide coverage or a defense to Harrison. The court held that whether acts fall within the scope of employment will vary from case to case; however, the court would not find that 13 always lies outside the scope of employment. Whether or not acts occurred within the scope of employment “turns on the fact-finder’s perception of whether the supervisor acted, or believed himself to have acted, at least in part, in his employer’s interests.” The Court also examined the language of the policy and held that the insurer had a duty to defend.
A former employee brought an action against supervisor and employer for intentional infliction of emotional distress due to harassment. She alleged that her supervisor intentionally sought to humiliate her in front of her co-workers and made harassing, sexist, and belittling comments. Although she complained to her manager and other supervisors, they failed to intervene. The Defendant argued that her claims were barred by the exclusivity provision (Code § 65.2-307) of the Virginia Workers’ Compensation Act. The court held that her allegations of gradually incurring severe emotional distress due to harassment did not amount to “injury by accident” under the Workers’ Compensation Act; therefore the action against the employer was not barred by the exclusivity provision of the Act.
Respondent sought damages from petitioner and Irman Ahmed, who terminated Respondent’s employment. Respondent brought, inter alia, claims of negligent hiring and retention against Ruffin Corp. and intentional infliction of emotional distress by Ahmed; employment discrimination and 13 by Ruffin and retaliation by Ruffin. Gasper alleged that Ruffin hotel hired Ahmed, despite its knowledge that a number of employees had complained of his abusive behavior, behavior that included 13. She also alleged that Ahmed refused to intervene when she was harassed by another employee and that he fired her after she complained of the harassment. The court held that petitioner’s claim for negligent hiring and retention, due to her allegation that Ruffin hired an individual against whom allegations of 13 had been made, was not preempted by Title VII, the Maryland Human Relations Act, a county code provision prohibiting retaliation for complaining of 13 or the Maryland Workers’ Compensation Act. It also found that the rule prohibiting introduction of evidence of other crimes was only applicable in criminal, not civil cases; however, Gasper could not introduce evidence of harassment by Ahmed occurring prior to Ahmed’s rehire because her current allegation was against another employee.
Aida Armani worked as a hairstylist at Raya and Haig Hair Salon. One of her customers, Kadyshes, began verbally and physically sexually harassing Aida by telling sexual jokes, commenting on her breasts, telling her she would be good in bed, and touching her rear and shoulders. The Salon eventually hired Kadyshes as a business manager, and he became Aida’s direct supervisor. Aida complained on at least six occasions but no action was taken to stop Kadyshes’s conduct. Eventually Aida decided to open her own salon but before she could resign the Hair Salon learned of her plans and fired her. The Commission found that the Salon unlawfully discriminated against her by subjecting her to a hostile work environment and constructively discharging her because of her sex. The Salon challenged the decision on multiple grounds. First, it argued that Aida was not discharged because of her sex but because she opened her own salon. The court found that Aida established a prima facie claim for hostile work environment and that the evidence supported the conclusion that the Hair Salon violated the Pennsylvania Human Relations Act by allowing the existence of a hostile work environment. In order to establish a prima facie claim for hostile work environment, a complainant must prove that she (1) suffered intentional discrimination because of her race or gender; (2) the harassment was severe or persuasive and regular; (3) the harassment detrimentally affected the complainant; (4) the harassment would detrimentally affect a reasonable person of the same protected class; and (5) the harasser was a supervisory employee or agent. Constructive discharge occurs when an employer knowingly permits conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign. The fact that Aida stayed at her job did not preclude a finding of constructive discharge—she was the sole source of income for her family and she endured the treatment as long as she could take it. Second, the Salon argued that it was improper to admit testimony about Aida’s work conditions that predated the time frame for which she alleged discrimination. But the entire scope of a hostile work environment claim is permissible for assessing liability, including behavior alleged outside the statutory time period. Third, the Salon challenged the determination that Aida attempted to mitigate her damages. While a plaintiff has a duty to mitigate her damages, the burden of showing that she did not exercise reasonable diligence in seeking comparable employment lies with the employer. Aida’s self-employment constituted mitigation because she took immediate steps to open her salon after she was fired.
Plaintiff brought a hostile work environment claim, among others. She witnessed her supervisor and another employee in a compromising position. Her supervisor threatened her with the loss of employment and her license if she shared what she had witnessed. She promised to remain silent and shortly thereafter went on vacation. When she returned, her supervisor fired her, stating that he did not like the way she dressed or styled her hair. Plaintiff was an at-will employee at the time of termination. Plaintiff alleged that she “was subjected to improper and sexually explicit conduct by her superiors … thereby creating a hostile and abusive environment in violation of the West Virginia Human Rights Act.” To state a claim for 13 under the West Virginia Human Rights Act, a plaintiff must prove “(1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the … [plaintiff’s] conditions of employment and create an abusive work environment, and (4) it was imputable on some factual basis to the employer.” The Court also held that “an employee may state a claim for hostile environment 13 if unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature have the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment.” The Court held that plaintiff sufficiently pled a cause of action for hostile workplace and overturned the lower court’s grant of a motion to dismiss.
Court held that divorce obtained by husband under Islamic religious and secular Pakistani law would not be recognized and afforded comity in Maryland. Petitioner argued that because he performed “talaq,” (which under Islamic law, allows a husband to divorce his wife by stating “I divorce thee” three times) the Circuit Court for Montgomery County lacked jurisdiction “to litigate the division of the parties’ marital property.” “The trial court found that the marriage contract entered into on the day of the parties’ marriage in Pakistan specifically did not provide for the division of marital property and thus, for that reason alone, the agreement did not prohibit the Circuit Court for Montgomery County from dividing the parties’ marital property under Maryland law.” The Court of Special Appeals agreed and stated, “[t]hus, the Pakistani marriage contract in the instant matter is not to be equated with a premarital or post-marital agreement that validly relinquished, under Maryland law, rights in marital property.” It explained that the default under Pakistan law is that the wife does not have rights to marital property, while under Maryland law she does. Applying Pakistani law, according to the court, would violate Maryland public policy. The court also noted that a “procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without prior notice to the wife . . . summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife. Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.”
Defendant shot and killed her partner, Albert Hampton (“Hampton”), in their home in Fresno, California. When a police officer arrived she immediately surrendered, told him where the gun was, and admitted that she shot him. She explained, “He deserved it. I just couldn’t take it anymore. I told him to stop beating on me.” Defendant was charged with murder with personal use of a firearm. At trial, the defense asserted that Defendant shot Hampton in self-defense. They presented expert testimony on battered women’s syndrome from Dr. Lee Bowker, who stated that Defendant suffered from an extreme case of the syndrome. The court acquitted Defendant of first-degree murder and instructed the jury on second degree murder, voluntary manslaughter, involuntary manslaughter, and self-defense. The judge explained that for self-defense to be a complete or perfect defense to all charges, Defendant must have had an actual and reasonable belief that the killing was necessary. The judge further explained that an actual but unreasonable belief, imperfect self-defense, was a defense to murder but not to voluntary manslaughter. The judge instructed jurors that they could only use the battered women’s syndrome evidence to decide whether Defendant had an actual belief that the killing was necessary. The judge said the evidence could not be used to decide whether Defendant had a reasonable belief that the killing was necessary. The jury found Defendant guilty of voluntary manslaughter with personal use of a firearm. The court sentenced her to eight years in prison. The Court of Appeal affirmed the conviction. On appeal, the Supreme Court reversed the judgment. The Court held that the trial court erred when it instructed the jury that battered women’s syndrome evidence could not be used to determine whether Defendant had a reasonable belief that the killing was necessary. The Court opined that Defendant’s corroborated testimony had made a plausible case for perfect self-defense to all charges and the instruction error could have affected the verdict in a way adverse to Defendant.
Maria Elena Gonzalez (“Gonzalez”) filed for a temporary restraining order against her former partner, Maurelio Francisco Munoz (“Munoz”). She complained that Munoz violently attacked her on numerous occasions including burning her with hot grease, choking and beating her, and abusing her three-year-old daughter Flor. The trial court granted a temporary ex-parte restraining order to keep Munoz from Gonzalez and Flor. The court also issued personal conduct and stay-away orders, and granted physical and legal custody of Flor to Gonzalez with no visitation rights for Munoz. At a subsequent hearing regarding the orders, Gonzalez and Munoz both appeared without counsel and spoke through an interpreter. At the beginning of the hearing, the court told the parties it would make some “temporary orders under certain circumstances regarding custody and visitation” but could not make a paternity judgment. The court advised Gonzalez and Munoz that they would need to file a separate paternity suit to resolve issues related to custody and visitation of Flor. Munoz indicated he was not Flor’s parent but requested “reasonable visitation” on weekends. The court issued a restraining order that excluded Flor and extended for one year the portion of the prior restraining order that kept Munoz away from Gonzalez. But it did not address custody or visitation. Gonzalez then asked the court about child support, an indication she did not understand the discussion about a separate paternity proceeding. In a subsequent hearing a judge granted Munoz weekly supervised visits with Flor despite the abuse allegations. The Court of Appeal reversed the trial court and found it erred and violated Section 6340 of the California’s Domestic Violence Prevention Act (the “Act”) when it failed to issue permanent custody of Flor to Gonzalez. The Act directs the court when applying the Act to “consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought.” The Court of Appeal noted that, given Flor’s potential exposure to violence from Munoz, the trial court was charged with eliciting evidence about Flor’s parentage and whether the earlier custody and visitation orders needed to be modified or extended to “ensure the mutual safety of Gonzalez and Flor.” Also, because Munoz failed to show or to claim a parent-child relationship with Flor, the trial court should have extended the restraining order to cover Flor and entered the permanent custody order Gonzalez requested. The Court of Appeal admonished bench officers to play a “far more active role in developing the facts,” even at the expense of a particular court’s procedures, to avoid the high potential for danger to the Act’s target population—“largely unrepresented women and their minor children.” It noted the “special burden” on bench officers who “cannot rely on the propria persona litigants to know each of the procedural steps, to raise objections, and to otherwise protect their due process rights.”
Thomas Dittrich was accused of having a three-month relationship with his daughter’s thirteen-year-old classmate, the Complaintant. The relationship began when the Complaintant went to Dittrich’s house to visit his daughter, and quickly progressed into a mutual intimate relationship. When the Complaintant’s parents uncovered the relationship, they immediately intervened and a criminal suit was filed against Dittrich. At trial, Dittrich’s family, the Complaintant, and other third parties testified about his conduct with Complaintant. Dittrich’s family recounted his history of domestic violence, to which Dittrich’s attorney did not object. Dittrich also tried to examine Complaintant about her sexual history, but could not overcome Michigan’s rape shield law by offering proof as to his proposed evidence. The jury convicted Dittrich on seven counts of criminal sexual conduct, sentencing him to 95-180 months’ imprisonment. Dittrich appealed to the Michigan Court of Appeals and then to the Michigan Supreme Court, on claims that (1) he was denied effective counsel due to his attorney’s failure to object to his family’s domestic violence testimony, and (2) the court, by denying his motion to examine Complaintant about her sexual history, violated his right to confrontation. Both courts denied relief. In 2007, Dittrich petitioned for a writ of habeas corpus, alleging both ineffective assistance of counsel and a violation of his confrontation right. The district court granted the writ, holding the confrontation violation was harmless, but Dittrich did receive ineffective assistance of counsel. The state appealed that decision and Dittrich cross-appealed on the confrontation claim. The Sixth Circuit reasoned that to prove ineffective assistance of counsel, one must demonstrate that counsel’s performance was deficient, and that the deficient performance prejudiced the defense. Although the court found that Dittrich’s counsel’s performance was deficient, they ruled that the deficiency did not prejudice the defense due to the overwhelming evidence against Dittrich. As to the confrontation claim, the court reviewed Dittrich’s request based on whether the error had substantial and injurious effect or influence in determining the jury’s verdict. The court held that Dittrich’s proposed inquiries into the Complaintant’s sexual history would have been of minimal value. Thus, the court’s decision to exclude the evidence did not have a “substantial and injurious effect” on the jury’s verdict. The court reversed the district court’s grant of habeas relief on Dittrich’s ineffective-assistance claim and affirmed its rejection of his right-to-confrontation claim.
In 1987, Fatmeh Badih (“Badih”), a recent immigrant from Sierra Leone, was hired by the medical offices of Dr. Leonard Myers (“Myers”) as a medical assistant. Almost three years later, Badih told Myers she was pregnant. He immediately fired her. According to Badih, when she told Myers the news he replied, “If you told me you were going to get married and have babies, I wouldn’t have hired you in the first place. I need an office girl when I need her, not a person that has responsibilities the way you do now. . . . You’re going to have to go.” Badih filed a compliant against Myers and alleged pregnancy discrimination, among other claims. Myers denied that he fired Badih because she was pregnant. The jury found that Myers had terminated Badih because of her pregnancy, awarded her $20,226 in damages, and granted Badih’s motion for attorney fees. Myers appealed the judgment and attorney fees order. He argued that because he employed less than five people he was not subject to the pregnancy discrimination provisions of California’s Fair Employment and Housing Act (“FEHA”). He also argued that no other constitutional or statutory provisions prohibited pregnancy discrimination. The Court of Appeal affirmed the trial court’s judgment and attorney fees order. It held that pregnancy discrimination in employment was a form of sex discrimination. Because article I, section 8 of the California Constitution prohibits sex discrimination in employment regardless of the employer’s size, those who work for employers not covered by FEHA can maintain pregnancy discrimination claims under the California Constitution.
In 1991 Lesly Yajayra Perdomo (“Perdomo”), a citizen and native of Guatemala, joined her mother in the United States. In April 2003 the Immigration and Naturalization Service charged her as removable because she unlawfully entered the United States in 1991. Perdomo conceded removability but requested asylum, withholding of removal, and relief under the United Nations Convention Against Torture. Perdomo sought asylum because of her fear of future persecution as a member of a particular social group of “women in Guatemala between the ages of fourteen and forty.” Perdomo explained she was fearful because of: (1) the large number of women killed in Guatemala; (2) the failure of the Guatemalan government to respond appropriately; and (3) the lack of explanation for the killings. The immigration judge denied Perdomo’s requests. The Board of Immigration Appeals (the “BIA”) affirmed the denials and rejected the particular social group definition, “women in Guatemala between the ages of fourteen and forty” and Perdomo’s revised group definition, “all women in Guatemala,” as too broad to qualify for protection. The Ninth Circuit granted Perdomo’s petition for review and held that prior case law established that, “women in a particular country, regardless of ethnicity or clan membership, could form a particular social group.” The court noted that the size and breadth of the group, “all women in Guatemala,” did not preclude it from qualifying as a protected social group and that the BIA erred when it held to the contrary. The court remanded the case to the BIA to determine whether “all women in Guatemala” is a particular social group and, if so, whether Perdomo qualified for asylum.
Plaintiff worked as a research specialist under her supervisor, Dennis Montgomery (“Montgomery”). On several occasions during her employment Montgomery asked Plaintiff to perform oral sex on him. He also repeatedly told Plaintiff he was going to arrive at one of Plaintiff’s many jobsites to engage in sexual activity with her. Twice Montgomery masturbated in front of Plaintiff during work hours. During one of those times, Plaintiff ran from the office to her car and Montgomery followed her, grabbed her arm, tried to grab her breasts, and tried to stop her from entering her car. Plaintiff repeatedly complained to the corporation’s president and chief executive officer and others about Montgomery’s conduct. No one took action to prevent the harassment. Plaintiff took a one-month leave of absence because she suffered from severe emotional distress as a result of these incidents. Her supervisors promised her a new position when she returned. But in retaliation against Plaintiff for reporting Montgomery’s 13, they gave the position to someone else. They ultimately fired Plaintiff under the pretext that she was no longer needed. Among other claims, Plaintiff sued the corporation, the corporation’s president and chief executive officer, and Montgomery for 13, retaliation, and the creation of a sexually hostile environment that violated California’s Fair Employment and Housing Act (the “FEHA”). Montgomery demurred to these claims and argued that a supervisor cannot be held personally liable for 13 or retaliation under the FEHA. The trial court sustained the demurrer. The Court of Appeal overruled the demurrer and held that the FEHA’s clear language supports imposing personal liability to supervisors for their own acts of harassment or retaliation in employment. The Court noted that this holding worked toward the deterrence and elimination of harassment and retaliation in employment.
A group of husbands filed suit against the United States and other U.S. officials, challenging the validity of the Violence Against Women Act (VAWA). In particular, they were challenging the portion that permitted aliens who had been battered or subjected to extreme cruelty by their spouses to self-petition for legal permanent resident status. The plaintiffs claimed this created an incentive for their wives and ex-wives to file false police complaints and false applications for temporary restraining orders against them. They further argued that their reputations were harmed and that confidential information about them was being released to third parties. The United States District Court for the Southern District of New York dismissed their suit for lack of standing. Accordingly, the plaintiffs could not challenge VAWA or its self-petition provision. On appeal, the Second Circuit affirmed the district court’s decision. The court held that the plaintiffs’ injury was not fairly traceable to the defendants, but rather to independent actions of their wives or ex-wives who were not before the court. The plaintiffs further failed to state an injury-in-fact, because their claimed injuries were purely speculative. The fear of disclosing confidential information to third parties was dispelled based on the confidentiality provisions of VAWA. Thus, the plaintiffs lacked standing to sue the government and challenge VAWA.
Ms. Abankwah, a native of Ghana, was a member of a tribe that punishes women who engage in premarital sex with female genital mutilation (“FGM”). While Ms. Abankwah was away from her tribe, she had a sexual relationship. Subsequently, she learned that she would be the next Queen Mother of her tribe, a position that requires a woman to remain a virgin until marriage. She knew this meant the tribe would discover she had engaged in premarital sex and she would be punished with FGM. Ms. Abankwah fled but her tribe came after her. She decided it was unsafe for her to remain in Ghana and purchased a falsified Ghanaian passport and U.S. visa and fled to the United States. Immigration authorities arrested Ms. Abankwah when she arrived in the United States and commenced deportation proceedings against her. Ms. Abankwah sought to remain in the United States by seeking asylum. To obtain asylum, she needed to establish, among other requirements, that she was unable or unwilling to return to her native country because of a “well-founded” fear of persecution, pursuant to section 208(b)(1) of the Immigration and Nationality Act, 8 U.S.C. section 1158(a). Ms. Abankwah explained that she feared returning to Ghana because, if she did, her tribe would perform FGM on her. The immigration court denied her petition for asylum because it concluded that her fear of FGM was not objectively reasonable. On appeal, however, the court found that Ms. Abankwah was a credible witness and her fear was objectively reasonable because it was “based on her knowledge of and experience with customs of her tribe.” As such, Ms. Abankwah was granted asylum and allowed to stay in the United States.
Plaintiff Jane Doe (“Doe”) filed a lawsuit under a pseudonym and alleged 23 causes of action including human trafficking, sexual battery, forced labor and involuntary servitude against Defendants Mr. and Mrs. Penzato. Mrs. Penzato had offered Doe $1,500 per month, free room and board, and transportation to the United States in exchange for child care and housekeeping services. Doe accepted the offer and moved to San Francisco, California. Doe alleged that during her employment Defendants physically assaulted her, sexually molested her, threatened her with cancellation of her visa, and abused or exploited her in various other ways. She eventually left the Penzatos’ household and moved to a transitional housing residence for female victims of violence. Doe filed a motion for a protective order and requested permission to proceed with the lawsuit under a pseudonym. Doe argued that this was necessary to avoid additional psychological trauma due to the sensitive and personal nature of her claims. Further, she argued that the use of a pseudonym would help maintain the safety and anonymity of her fellow transitional housing residents. Defendants argued that because they were publically accused of sexual abuse, human trafficking, and forced labor, Doe should also be publicly exposed. Defendants also argued that they would be prejudiced by the extra effort they would have to take to keep her identity a secret. The court granted Doe’s motion and allowed her to proceed under a pseudonym, holding that Doe’s need to remain anonymous outweighed Defendants’ arguments and the public’s interest in knowing her identity. The court noted the strong interest in protecting sexual assault victims’ identities—to encourage them to report the assaults without fear of being stigmatized as a sexual assault victim.
Plaintiffs brought a class action lawsuit against Sweetwater Union School District (the “District”) and several individuals, alleging unequal participation opportunities for females at Castle Park High School (“CPHS”). Plaintiffs argued that Defendants violated Title IX’s provision that prohibits excluding or discriminating against anyone on the basis of sex in educational programs or activities that receive federal financial assistance. The court applied a three-part test to determine whether the District complied with Title IX which included: (1) substantially proportionate athletic opportunities for females; (2) continuing practice of program expansion for females; and (3) the accommodation of females’ interest and abilities. First, the court held that Defendants failed to provide females with substantially proportionate opportunities to participate in athletics, as the number of female students denied the opportunity to participate could have sustained several viable competitive teams. Second, the court held that there was no steady increase in female athletic participation. Even though, as Defendants argued, athletic programs for girls had expanded over the past decade and CPHS had two more teams for girls than for boys, the number of female participants, not the number of teams, determined whether programs had expanded. Third, the court held that Plaintiffs demonstrated evidence of unmet interest and of the ability of CPHS females to participate in field hockey, tennis, and water polo. Defendants’ argument that they could not obtain coaches for the teams was not a valid excuse. The court held that Defendants allowed significant gender-based disparity in violation of Title IX and found for Plaintiffs on their claim of unequal participation opportunities for females.
A grand jury indicted Defendant Gardner (“Defendant”) for alleged participation in a conspiracy to engage in the sex trafficking of a 17-year-old minor female. Defendant was allegedly involved in transporting the minor, collecting money from the minor, and housing the minor between prostitution calls. At Defendant’s detention hearing, the judge released Defendant subject to a bond and other conditions, including a curfew. Several weeks after Defendant’s release, the government sought to impose electronic monitoring as an additional condition of release and as mandated by the Adam Walsh Child and Protection Safety Act of 2006 (“the Act”). The electronic monitoring would immediately alert law enforcement if Defendant violated her curfew. Defense counsel argued that the electronic monitoring violated the Eighth Amendment, procedural due process, and the doctrine of separation of powers. The court disagreed and held that the electronic monitoring was constitutional on all three grounds. Moreover, the court concluded that the electronic monitoring furthered this interest in a way that was not excessive when compared to the risk of post-arrest criminal activity. The court noted that the Act served the valid government interest of providing additional protection for children “from sexual attacks and other violent crimes.” Decision on file with the Avon Global Center.
Ms. Ericson and Ms. Kornechuk brought an action against Syracuse University and its employees under Title IX of the Education Amendments of 1972, 20 U.S.C. section 1681 (“Title IX”) and the Violence Against Women Act, 42 U.S.C. section 13981 (“VAWA”). Plaintiffs alleged that they were sexually harassed by their tennis coach, and that the University was aware of the tennis coach’s behavior and conducted a sham investigatory proceeding to conceal the extent of the tennis coach’s misconduct, which had occurred for more than twenty years. Defendants moved to dismiss the claims. They contended that Title IX did not provide a private right of action and the VAWA claim was barred by the statue of limitations. The court held that there was a private right of action under Title IX pursuant to the U.S. Supreme Court’s decision in Gebser v. Lago Vista Indep. Sch. Dist. (1998). Erickson held that a student who has been sexually harassed by an employee of an institution may bring suit against the institution, under Title IX, for private damages if: (1) the institution has authority to institute corrective measures on its behalf; (2) has actual notice of the behavior; and (3) is deliberately indifferent to its employee’s misconduct. The court found that Plaintiffs’ complaint, on its face, satisfied that standard because it alleged the individuals who investigated the charges against the tennis coach not only had actual notice that the tennis coach had been harassing female student-athletes for twenty years but had also conspired to conduct a sham investigation to conceal the full extent of the coach’s misconduct. The court reasoned that the allegation that the institution knew of the 13 of female-athletes and did not respond adequately was sufficient to state a claim under Title IX. The court also held that the statute of limitations did not bar the Plaintiffs’ claim under the VAWA. VAWA provides a civil cause of action to victims of gender-motivated crimes of violence. It does not contain an express statute of limitations. Accordingly, the court found that it should look to the “most appropriate or analogous state statute of limitations.” The court reasoned that Congress’ stated purpose, in enacting this law, was to “protect the civil rights of victims of gender motivated violence by establishing a federal civil rights cause of action.” Because of Congress’ stated purpose, the court found that the cause of action that was most analogous to VAWA was a personal injury claim, and as such, a three-year statute of limitations should apply. Thus, Plaintiffs’ claim under VAWA was not barred by the statue of limitations because the alleged acts of violence occurred within three years from when Plaintiffs filed their complaint.
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.
Two school districts scheduled their girls’ high school soccer season in the spring and the boys’ high school soccer in the fall. The effect of that schedule was that boys but not girls were able to compete in the regional and state championship games. Parents of the female students sued the school districts pursuant to Title IX of the Education Amendment of 1972 and 20 U.S.C. section 1681 (“Title IX”), which requires schools, among others, to provide equal athletic opportunities to its male and female students. The appellate court held that the schools violated Title IX when they scheduled girls’ soccer in the spring because it denied female students an equal athletic opportunity. The court noted that because the females could not compete in championship games, it implied that the schools did not value their athletic abilities as much as it valued the boys’ athletic abilities, which is illegal.
Rowland was charged in a one-count indictment with possession of a firearm and ammunition after former conviction of a felony. One of the former convictions was sexual battery. The district court determined that the felony of sexual battery under Oklahoma law constituted a crime of violence under the Federal Sentencing Guidelines, and, as such, could be used to enhance his felon in possession of a firearm sentence. Rowland appealed his conviction, specifically contesting the characterization of his prior conviction for sexual battery as premised upon conduct constituting a crime of violence. On appeal, the circuit court noted that Oklahoma’s sexual battery statute presupposed lack of consent, which implicated serious potential risk of physical injury to another. The court then went on to explain that physical injury need not be a certainty for a crime to pose a serious risk of physical injury; the possibility that a crime may be completed without injury is irrelevant to the determination of whether it constitutes a crime of violence which can be used to increase a base offense level for firearms offense conviction. Under this analysis, the court held that sexual battery, under Oklahoma law, implicates a concomitant serious risk of physical injury, and therefore Rowland’s sexual battery conviction was a “crime of violence” that could be used to enhance his sentence.
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.
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.
Jane Doe attended University High School in Urbana, Illinois. Although University High was a public school, it was affiliated with the University of Illinois, which had the responsibility for overseeing the school’s administration. From January 1993 through May 1994, while a student at University High, Jane was a victim of an ongoing campaign of verbal and physical 13 perpetrated by a group of male students at the school. Doe and her parents complained on numerous occasions to officials of both the high school and the University of Illinois. The school officials suspended a few of the students and transferred one out of Doe’s biology class, but did nothing else to prevent further instances. Some administrators even suggested that it was Doe’s fault. In 1995, Doe and her parents filed suit against the University of Illinois and other individual officials of University High and the University of Illinois, alleging a violation of, among other things, Title IX. The United States District Court for the Central District of Illinois dismissed Doe’s Title IX claim. On appeal, the Seventh Circuit remanded the case, holding that Jane Doe alleged a valid claim under Title IX, and that a Title IX recipient may be held liable for its failure to take prompt, appropriate action in response to student-on-student 13, as was the case here. The court reasoned that Title IX prohibits discriminatory government conduct on the basis of sex when it occurs in the context of State-run, federally funded educational programs and institutions. In particular, Title IX provides that no person in the U.S. shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. Prior to this case, it was well settled that 13 of a student in a federally funded educational program or activity, if it is perpetrated by a teacher or other employee of the funding recipient, can render the recipient liable for damages under Title IX. What was less clear was whether a school can be liable for failing to take prompt, appropriate action to remedy known 13 of one student by other students. Although inconsistent with three other circuits, the court ultimately held that a Title IX fund recipient may be held liable for its failure to take prompt, appropriate action in response to student-on-student 13 that takes place while students are involved in school activities or otherwise under the supervision of school employees, provided the recipient’s responsible officials actually knew that the harassment was taking place. The failure to promptly take appropriate steps in response to known 13 is itself intentional discrimination on the basis of sex. Since Jane Doe alleged such a failure, she properly alleged the sort of intentional discrimination against which Title IX protects. Doe’s case was then remanded to the district court for further proceedings consistent with the court’s opinion.
The plaintiff sought a protection order against the defendants, a father and son, for orders of protection. The trial court awarded an order of protection against the son, but not against the father. The Court of Appeals considered whether there was a family relationship between the plaintiff and the defendants that permitted issuing an order of protection under the state law and decided that there was a family relationship because the plaintiff’s son had been married to the defendants’ daughter and sister respectively. They relied on previous case law that had found a sufficient relationship between families related by blood. Thus, the Court affirmed the order of the trial court, upholding the order of protection against the son and denying the father’s motion for sanctions.
Stephanie Livingston moved in with Richard Joslyn, her third cousin, following a breakup with her youngest son’s father. She lived with him for six months and struggled with alcohol. She learned later that Joslyn recorded a video of them engaging in sexual intercourse but has no memory of the act. Later she moved in with her mother and applied ex parte for a protective order under the Indiana Civil Protective Order Act. The court issued the order which “prohibited Joslyn from having any contact with Livingston.” A deputy served Joslyn with a copy of the order by attaching it to the door of his residence. The deputy “did not indicate on the return of service form that a copy of the order was also mailed to Joslyn’s last known address as required by Indiana Trial Rule 4.1.” Later, Livingston noted several instances in which Joslyn watched her, left notes at her mother’s front door, asked her friends about her whereabouts, crashed her friend’s vehicle, and hid in a crawl space under her home. In December, the State charged Joslyn with “class C felony stalking, four counts of class A misdemeanor invasion of privacy and a class A misdemeanor resisting law enforcement. The case went to trial by jury. The jury found Joslyn guilty of all counts, except the resisting law enforcement count. Joslyn appealed, and challenged “the sufficiency of the evidence to support his convictions, arguing the State did not prove he was properly served with the protective order.” The Court of Appeals affirmed the convictions. It found that Joslyn’s admission that he received notice left at his home was “sufficient to permit his conviction for invasion of privacy and stalking.” The court noted that the statutes defining stalking and invasion of privacy require notice of an order, but the fact that the process server may not have sent a copy to his house by first class mail as required under Indiana Trial Rules is insufficient to overturn his convictions. The court noted that the purpose of the Indiana Civil Protection Order Act is to “promote the protection and safety of all victims of domestic violence and prevent future incidents.” It found that overturning a conviction due to an error in civil process, even when the court had issued the order and defendant had actual notice of the order, would be contrary to that purpose.
The court upheld an elected clerk’s three-year suspension from the practice of law for various acts, including sexual advances toward female employees in the clerk’s office. Six female employees made allegations that he sexually harassed them. Respondent attempted to argue that his actions toward the employees did not meet the standard for “13” as defined by the EEOC. The Court found that it did not need to rely on a federal agency’s definition to “find that the respondent’s creation and perpetuation of a work environment infected with inappropriate and unwelcome sexual advances violated Prof. Cond. R. 8.4(d).” It found that his acts were “prejudicial to the administration of justice,” whether or not they met a legal definition of 13. Furthermore, he did not testify at the hearing or otherwise rebut the evidence, but merely contended that the allegations by former employees were untrue. It therefore suspended him from the practice of law for three years.
The Court examined whether the Commerce Clause or the Fourteenth Amendment gave Congress the authority to enact portions of the Violence Against Women Act ("VAWA") of 1994. In a 5-4 decision, the Court held that Congress lacked the authority to enact portions of the Act that allowed victims of gender-based violence to sue their attackers in federal court rather than state court. The Court held that Congress could not draw on the Commerce Clause for authority because violence against women was not an activity that substantially affected interstate commerce. The Court also held that the Act did not redress harm caused by state action and therefore did not fall under Congress's 14th amendment power. In his dissent, Justice Souter argued there was sufficient evidence to establish the effect of violence against women on interstate commerce.
The Court was asked to determine the constitutionality of Virginia's decision to only admit men to the Virginia Military Institute (VMI), asking women to instead enroll at the all-women Virginia Women's Institute for Leadership (VWIL). In a 7-1 decision, the Court held that banning women from VMI was in violation of the 14th amendment. The Court held that Virginia had failed to give adequate reasoning for its decision to not admit women, and that women would not receive the same level of instruction at VWIL that they would receive at VMI.
A jury convicted Matthew Dowd of violating the federal interstate domestic violence law. The events giving rise to the conviction occurred over an 8-month period between May and December 2002. During that time, Dowd forced his former girlfriend, Danna Johnson, to travel throughout Montana, Colorado, and Utah with him while he was fleeing authorities. During the forced excursion, Dowd repeatedly subjected Ms. Johnson to physical and psychological abuse, including rape, choking, and death threats. Dowd contested the conviction, arguing that the jury did not have sufficient evidence that he forced or coerced Ms. Johnson to cross state lines, as the statute required. The court reasoned that to convict a defendant of violating the federal interstate domestic violence statute by causing a spouse or intimate partner to travel in interstate or foreign commerce by force, coercion, duress, or fraud, the government must show that the spouse or intimate partner was a non-consenting participant in the interstate travel. Despite evidence that there were various occasions during the several-months-long interstate journey where Ms. Johnson was outside of Dowd’s presence and did not seek assistance from others or attempt to escape, the court found that Ms. Johnson was not a willing participant in the extended journey, and that sufficient evidence supported a finding that Dowd violated the federal statute. That evidence included Dowd’s persistent actual and threatened physical, sexual, and psychological abuse, and threats of retribution against Ms. Johnson’s family if she left him. Accordingly, Dowd’s conviction was upheld.
International Case Law
State duty to enforce court-ordered protective order. Jessica Gonzales' three children were killed when local police failed to enforced a restraining order against her estranged husband. The Supreme Court of the United States ruled that no affirmative duty exists on the part of the government to enforce a protective order.