Womenstake

Massachusetts Court Finds DOMA Denies Equal Protection!

by Dina Lassow, Senior Counsel,
and Tiffany Wynn, Intern,
National Women's Law Center

In a recent pair of rulings that represent a victory for civil rights, Judge Tauro, a federal district judge in Massachusetts who was appointed by Richard Nixon, held that a key provision of the Defense of Marriage Act ("DOMA") defining "marriage" as the union of one man and one woman is unconstitutional. In the first case, Massachusetts v. U.S. Dept. of Health and Human Services, brought by the Commonwealth of Massachusetts, the court held that DOMA encroached upon the state’s authority to define marriage. In the second case, Gill v. Office of Personnel Management, which was brought by several same-sex couples, the court found that DOMA denied them their constitutional right to equal protection of the law. It demolished Congress’ stated rationale for enacting the law, stating that its only real purpose was "to disadvantage a group of which it disapproves."

The court noted that a study conducted by the federal government found that 1,138 federal laws tie benefits, rights, responsibilities or protections to marital status. For example, the plaintiffs in Gill were denied the federal health benefits available to heterosexual spouses, could not receive certain social security benefits, and could not file joint income tax returns.

2009-2010 Supreme Court Term: Some Rights Preserved, Some Setbacks for Women

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

The Supreme Court handed down the last decisions of the 2009-2010 Term this week. This has been a remarkable term, with much attention being paid to cases involving campaign finance reform, protections for criminal defendants, and Second Amendment rights. 

However, there are also a number of crucial decisions from this term that demonstrate the impact of the Supreme Court on women's rights. For example, the Court's decision in Lewis v. Chicago upheld hard-fought legal protections against discrimination in the workplace. The Court's decision in Perdue v. Kenny A. preserved the possibility of enhancements to awards of attorney's fees but only in the narrowest of circumstances, thereby not making it even harder for plaintiffs to find legal representation. And an important legal tool for victims of domestic violence remained intact after the Court dismissed Robertson ex rel. Watson after oral argument.

But, in Rent-A-Center v. Jackson, the conservative majority of the Court continued a troubling line of decisions that enable companies to force employees and consumers into private arbitration. These decisions, like other recent and narrowly decided cases, restrict the ability of employees to vindicate their rights in court, including their right to be free from discrimination whether in pay or by harassment on the basis of age, sex, and race.

For more information about these cases, check out our factsheet. For more information about the Supreme Court and why its decisions matter to women, visit our website.

The Sex Discrimination Case Against Wal-Mart Can Go Forward!

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

After years of litigation over Wal-Mart’s efforts to get rid of the case, a sharply divided Court of Appeals for the Ninth Circuit ruled on Monday that the claim that Wal-Mart discriminates against women by paying them less than similarly situated men and failing to promote them can proceed as a nation-wide class action. The National Women’s Law Center joined with other civil rights groups in filing an amicus brief supporting the women employees.

Wal-Mart, the nation’s largest private employer, was essentially arguing that it was too big to be sued in a class action—the process by which a few named plaintiffs can sue on behalf of others with common claims. In this case, millions of women employed at any Wal-Mart in the United States since Dec. 26, 1998 who claim that they were subject to discriminatory pay and promotions are potentially members of the class. Fortunately, the full Court rejected Wal-Mart’s argument and held that it was not too large to be bound by the rules. 

Equal Pay Day: A Serious Reminder of How Much Needs to Be Done to End Pay Discrimination

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

Cross-posted from ACSblog

April 20 marks Equal Pay Day, recognizing that women today still earn, on average, only 77 cents for every dollar paid to men, which has been well publicized. The selection of April 20 as Equal Pay Day highlights the meaning of this wage gap - it is the day in 2010 when the average woman's wages catch up to her male counterpart's salary from the prior year. In other words, the average woman working full-time has to work almost four months more to make the same amount as the average man. The situation is even worse for women of color when race and gender are considered together. In 2008, African American women working full-time earned only 61 percent of the wages of white, non-Hispanic men, and Hispanic women earned just 52 percent of the wages of white, non-Hispanic men.

Read the full post. 

A Legal Victory for Women in Sports

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

The Ninth Circuit recently issued a great opinion reversing a district court decision that would have greatly complicated Title IX athletics cases by imposing new requirements on athletes who file lawsuits challenging discrimination.

In the case, Mansourian v. UC Davis, the Court of Appeals reinstated the claims of women wrestlers who had sued the university for violations of Title IX, the federal law that bars sex discrimination in schools that receive federal funding, after they were barred from wrestling. The district court judge, who clearly did not understand the Title IX athletics policies, applied a burdensome standard from Title IX sexual harassment cases, and held that the women first had to provide appropriate university officials with notice of their discrimination and an opportunity to fix it. The district court then dismissed the case based on its finding that the women wrestlers had not met that standard. 

The Ninth Circuit – relying on an amicus brief filed by the National Women’s Law Center - emphatically rejected the finding that the sexual harassment standard was applicable. In so doing, the Court recognized that decisions about participation opportunities and how to allocate resources between male and female teams are official policy decisions made by the institution, so that the school does not need to be informed about its decisions by the athletes. Thank goodness the court realized that women and girls do not need any more barriers to equity. 

The Title IX Athletics Policies Survive Another Attack

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

On December 30, 2009, the federal district court in western Virginia dismissed an attack on Title IX by a group called Equity in Athletics (EIA), and joined courts across the country in holding that the Department of Education’s (DOE) “three-part test” for evaluating whether female students are being provided with equal sports participation opportunities is lawful. 

Groups like EIA, who do not believe that girls and women are as interested in playing sports as boys and men, have been suing DOE since 2002, unsuccessfully claiming that the three-part test is unfair to male athletes. Under the first prong of that test, the focus of the lawsuit, a school can show that it is in compliance with Title IX (the federal law that bars sex discrimination in schools that receive federal funds) if the proportion of female athletes is substantially equal to the proportion of female students in the school.

Nationwide, while the number of female students playing sports has vastly increased since Title IX was enacted in 1972, a large gap remains. In high schools, girls are 49% of the student population, but only 41% of the athletes. In colleges and universities, they are 57% of the students, but only 43% of the athletes.

EIA had filed suit against DOE and James Madison University (JMU) after JMU announced in September 2006 that it was cutting seven men’s teams and three women’s teams in order to achieve Title IX compliance. First, the court rejected EIA’s efforts to immediately make the school reinstate the teams because the three-part test was unlawful. EIA unsuccessfully appealed that decision to the Fourth Circuit Court of Appeals. Refusing to give up, EIA once again asked the district court to throw out the three-part test. Once again, the court refused to do so, with a 39-page decision rejecting all of EIA’s arguments. The court reaffirmed the importance of Title IX in combating stereotypes about women, and found no discrimination against men. Its decision supporting Title IX allows the much-needed work of enforcing the law to continue.

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.