Womenstake

Senator Kennedy: A Champion for Education

by Neena Chaudhry, Senior Counsel, 
and Dina Lassow, Senior Counsel, 
National Women’s Law Center 

Along with others across the world, we mourn the passing of a legend today.  Senator Kennedy championed many causes, including the right to equal educational opportunities for all, regardless of race, sex, family income, language barriers, or disability.  One of his causes that is particularly near and dear to our hearts is Title IX. 

In addition to being a key supporter for passage of Title IX, Senator Kennedy led the fight to ensure that the reach of the law was as broad as originally intended.  In 1984, the Supreme Court ruled in Grove City College v. Bell that Title IX’s protection against discrimination was limited to the specific programs within a school that received federal funds.  This decision had devastating consequences because it meant that athletics programs, for example, would not be covered unless they received federal funds, which they typically did not.  It also meant that students were only protected against sexual harassment if the harassment took place in a dormitory or classroom that happened to have been built with federal aid – not one across the street.  Senator Kennedy came to the rescue and was the leading author of the Civil Rights Restoration Act of 1988, which overturned the Supreme Court’s Grove City decision and required recipients of federal funds to comply with civil rights laws in all areas, not just in a particular program or activity that receives federal funding.

The Supreme Court Got the Message – Kind Of

by Dina Lassow, Senior Counsel, 
National Women's Law Center 

Today, the Supreme Court held 8-1 that a school’s strip search of a 13 year-old girl who was suspected of having prescription-strength ibuprofen violated her constitutional rights. In Safford Unified School District #1 v. Redding, the Court seems to have taken to heart Justice Ginsburg’s comments in response to some of the questions her colleagues asked at oral argument. She told USA Today that “They have never been a 13-year-old girl. It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”

Justice Souter, writing the opinion for the Court, got the message. He wrote that the student’s “expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating,” and that her experience was consistent with research showing that “adolescent vulnerability intensified the patent intrusiveness of the exposure.” However, only two members of the Court, Justices Stevens and Ginsburg, thought that the assistant principal who ordered the search should be liable for damages. The other Justices thought that the law was not clear enough for such liability, but Justice Ginsburg stated that the assistant principal’s treatment of the student “was abusive and it was not reasonable for him to believe that the law permitted it.” Justice Thomas was the lone dissenter from the holding that the search violated the Fourth Amendment. He doesn’t want the courts to interfere in school disciplinary matters.

Age Discrimination Has Become Harder to Prove

by Dina Lassow, Senior Counsel,  
National Women's Law Center 

The other day, the Supreme Court issued a decision in Gross v. Financial Services that will make it harder for employees to prove discrimination on the basis of age. The Court, in a 5-4 decision written by Justice Thomas on behalf of the usual group – Chief Justice Roberts and Justices Scalia, Kennedy and Alito – went beyond the narrow question presented for its review – about what kind of evidence must be presented by a plaintiff - and held that in cases brought under the Age Discrimination in Employment Act (ADEA), employees must prove that “but for” their age, they would not have been laid off, not promoted, or subjected to some other adverse action. In cases for other kinds of discrimination – those challenging race or sex discrimination, for example – employees can obtain some relief even if the employer had “mixed motives.” In these cases, in other words, employees can recover if their race, color, religion, sex or national origin was at least one of the reasons for the adverse action, even if there were other reasons that also motivated the action. The Court has thus carved out a very different – and more demanding – standard for individuals subject to age discrimination in employment.  

Justice Stevens, in dissent, was sharply critical, complaining that the Court “is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae.” (The National Women’s Law Center was one of those amici.) It also criticized “the majority’s utter disregard of our precedent...” However, while Justice Stevens’ dissent, which was joined by the retiring Justice Souter and Justices Ginsburg and Breyer, may make us feel better, it won’t help victims of age discrimination – and will make it more complicated for women who suffer both age and sex discrimination to prove their case. In these cases, the difficulty of applying two different standards to what will essentially be one set of facts about what happened to the employee may mean that the more demanding standard for age discrimination will also end up being applied to sex discrimination claims.

The Supreme Court Makes it Harder to File a Lawsuit

by Dina Lassow, Senior Counsel, 
National Women's Law Center 

On Monday, the same day that the Supreme Court issued the decision in AT&T v. Hulteen that forces women to live with lower pension benefits for the rest of their lives because they took pregnancy leave prior to the passage of the Pregnancy Discrimination Act of 1978, the Court issued another decision that makes it harder for all plaintiffs to have their claims heard, especially if those claims are brought against high government officials.

In Ashcroft v. Iqbal, a 5-4 decision written by Justice Kennedy, the Court abandoned the standard that has governed for many years and heightened the requirements plaintiffs must meet to show that they have a claim. The Court used its new, stricter standard to reject the plaintiff’s claim that then-Attorney General Ashcroft and FBI Director Mueller violated his constitutional rights by subjecting him to harsh conditions on the basis of his race, religion and/or national origin (Iqbal is a Pakistani Muslim) when he was rounded up and detained after the events of September 11, 2001. Iqbal claimed that the two high officials were key to the design and implementation of the unconstitutional detention policies. The Court found that the complaint did not contain enough facts for the claims to cross the line from “possible” to “plausible.” It also held that to be liable for damages, a government official must intend to discriminate – even actual knowledge of the discriminatory intent of the employees he/she supervises is not enough. 

This is a deeply disappointing decision that is likely to have ramifications in numerous other contexts.  The new standard for allowing a case to proceed in federal court may well make it harder for plaintiffs in all kinds of discrimination cases to have their cases heard.

Let’s hope bad news doesn’t come in threes.  Two bad decisions are enough for one week. 

The Court Doesn't Get It

by Dina Lassow, Senior Counsel,
National Women's Law Center 

Just as it did in the now infamous case of Ledbetter v. Goodyear Tire & Rubber, the Supreme Court has once again ignored the realities of the workplace and the intent of Congress, and ruled against female workers.  In yesterday's case, AT&T Corp. v. Hulteen, Justice Ginsburg was once again forced to write a strong dissent, in which she stated that the Court was allowing the employer to pay women “for the rest of their lives, lower pension benefits than colleagues who worked for AT&T no longer than they did.” The majority of the Justices simply do not understand the barriers women faced and continue to face in the workplace.

The named plaintiff in the case, Noreen Hulteen, is one of four women who sued AT&T after learning that their pension benefits were lower than they would have been if they had received credit for pregnancy leave that they took before the passage of the Pregnancy Discrimination Act of 1978 (PDA).  AT&T continued to deny them that credit when it set their pension benefits many years later.

The Court found that the women’s service credits were determined as part of a “bona fide” seniority system, and thus could not be challenged under Title VII of the Civil Rights Act of 1964.  For the same reason, the Court held that AT&T’s decision could not be challenged under the Lilly Ledbetter Fair Pay Act that was enacted in January 2009 to overrule Ledbetter. In doing so, however, the Court ignored the fact that – as Justice Ginsburg recognized - AT&T’s seniority system was not really “bona fide” because it discriminated on the basis of pregnancy.

By authorizing AT&T to treat women differently today based on pregnancy leaves they took before the PDA, the Court is undermining Congress’s intent in passing the PDA and allowing the perpetuation of pregnancy discrimination.

Women's Professional Soccer is Back!

by Dina Lassow, Senior Counsel
National Women's Law Center

A new women’s soccer league, called Women’s Professional Soccer, is starting soon!  There will be teams in the Bay Area, Boston, Chicago, Los Angeles, New York/New Jersey, St. Louis and Washington, DC.  Teams are planned for next spring in Atlanta, Dallas and Philadelphia.  The players come from all over the world, and the official games begin on March 29, 2009.  So, check out the schedule for your area (there are some pre-season games) here and show your support by going to the games!

Stay Informed! Our Rights Are on the Line

by Dina Lassow, Senior Counsel
and Rachel Rebouche, Public Policy Fellow
National Women’s Law Center

Many key Supreme Court cases that have a huge impact on women’s rights – including  recent decisions restricting the right to abortion and the right to challenge pay discrimination – were decided by narrow 5-4 margins. Some of the cases that got the most attention in the Supreme Court term that just ended, like those on gun control, the death penalty and the rights of those held at Guantanamo Bay, were also decided on 5-4 votes. All these cases remind us – as newspaper editorials and articles have pointed out - that we must pay attention to the Supreme Court, because it is treading on our hard-won rights, and is “on the brink” of doing even more serious harm.

It is highly likely that the new President will get to nominate at least one new justice, if not more, to the Supreme Court. With even one more justice in the mold of Chief Justice Roberts and Justices Alito, Scalia and Thomas, there would be five justices – a solid majority – who would undermine long-established and cherished legal rights. That majority could decimate women’s right to privacy, including Roe v. Wade, basic health and safety, and freedom from discrimination in the workplace and in school. With a new justice who comes to the Court with respect for the legal rights of women, as does Justice Ginsburg, at a minimum the current balance would be maintained, and beyond that, long-standing protections for important civil rights, including women’s rights, at least stand a fighting chance. 

We all need to stay informed about what is happening in our country, and make sure that the next person appointed to the Supreme Court understands what’s on the line for women’s rights – and all our rights.

Another Chance for the Supreme Court to Limit or Protect Women's Rights

by Dina Lassow, Senior Counsel
National Women’s Law Center

In the term that just ended, women dodged the bullet in several Supreme Court cases involving their rights as employees. But, the fight to preserve women’s rights is far from over. Among other cases you will be hearing about, the Court recently agreed to review a case next term that could limit the constitutional rights of women and girls who face discrimination in education.
   
You have heard a lot about Title IX here – the law that bars discrimination in schools that receive federal funds. Students and teachers in public schools and universities also have rights under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, which prohibits treating the sexes differently unless the school has – in plain English - an awfully good reason for doing so and does it in a careful and considered way. 

In the case the Court will hear, Fitzgerald v. Barnstable School Committee, a kindergarten girl claimed that a third grade boy regularly made her pull up her skirt, pull down her underwear and spread her legs on the school bus. Because of the extremely difficult standard for proving sexual harassment under Title IX, the lower courts did not even let her case go to trial. The Court of Appeals for the First Circuit also said that Congress intended the remedies under Title IX to be the only ones she could pursue, and therefore upheld the dismissal of her claims under the Constitution. 

Other Courts of Appeals have reached the opposite conclusion – and held that Title IX does not preclude constitutional claims. The only question that was raised before the Supreme Court is which of the Circuits got it right. The National Women’s Law Center will do all it can to help persuade the Court to safeguard women’s and girls’ rights by allowing them to pursue remedies under both Title IX and the Constitution. In some circumstances, the Constitution provides important protections and remedies that are not available under Title IX. And even if there is a little overlap in some situations, that’s never a bad thing in fighting against discrimination. 

7 Questions with NWLC's Dina Lassow

by Jessica Lauredan, Outreach Intern
National Women’s Law Center

This post is part of a weekly series profiling our blog authors.

Dina Lassow is Senior Counsel for Education and Employment at NWLC.

Q: Sex discrimination and the wage gap are still very real for women in America, despite being unconstitutional and illegal. Do you believe the psyche of America must change rather than the laws?

Dina: I don’t see them as necessarily being two different questions. Through the enforcement of sex discrimination laws, you hopefully change the psyche of the workplace — so that women know their rights and those rights are respected. Both factors must work together for there to be change.

Q: More than 35 years after Title IX was passed, plaintiffs are still fighting for its enforcement. Why has Title IX proven so difficult to execute?

Dina: Well, most civil rights legislation is hard to enforce, so I don’t think Title IX is all that different. There is still a lot of discrimination of all forms in the world. However, Title IX has drawn more backlash than many other laws. Title IX has become an easy target for those who are upset about cuts in certain men’s teams, such as wrestling. But men’s participation in sports overall is not decreasing. If certain teams are cut, the culprit is a school’s decision on how to allocate its resources — often with huge sums going to football — not Title IX.

No Need for More Litigation — CU Settles Sexual Harassment Case

by Dina Lassow, Senior Counsel
National Women’s Law Center

After five years, Lisa Simpson, a young woman who filed a major sexual harassment suit against the University of Colorado, is finally getting the justice and closure she deserves. The Center participated in the case, and we are very excited about the settlement.

Under the settlement, the university will pay Lisa Simpson $2.5 million, hire a new counselor for its Office of Victim’s Assistance, and appoint an independent, outside Title IX advisor who will be available to all individuals reporting sexual harassment or assault. The advisor will also make recommendations to the university regarding reforms to university programs to prevent future sexual harassment.

For the Center, this is what such legal battles are all about. Not only did Ms. Simpson get long-overdue justice, but the terms of the settlement should make the university a safer place for all its students, and should be a wake-up call for other schools to take claims of sexual harassment seriously.

As we have described before, Ms. Simpson and another student sued the University of Colorado under Title IX, charging that they were raped at a football recruiting party in December 2001. They claimed that the university had ignored many incidents of sexual harassment in its football program over the years.

This historic settlement was reached soon after the entire Court of Appeals for the Tenth Circuit refused the university’s request that it review the great decision of the court’s panel finding that Ms. Simpson and her co-plaintiff were entitled to present their case to a jury.

We salute Lisa Simpson for her courageous persistence and the university for its willingness to undertake structural reforms of its programs. The settlement is a victory not only for Lisa, but for all students who can take heart from the message of this case: the law means what it says and schools must take the steps necessary to protect their students from sexual harassment and assault.