NOW Foundation Asks Supreme Court to Protect Stalking Victims Against Employment Discrimination

December 8, 2011

NOW Foundation recently filed an amicus curiae ("friend of the court") brief supporting a former Howard Law School professor's petition for certiorari, asking the Supreme Court to hear the case of Martin v. Howard University. Civil rights attorney and former law professor Dawn V. Martin calls on the high court to hold that Title VII of the Civil Rights Act of 1964 protects a woman from being stalked in her workplace and from being terminated for reporting it. This case is particularly timely in light of recent attention to sexual attacks on college campuses.

Martin was stalked on the campus of Howard University Law School by Leonard Harrison, a delusional, homeless, serial campus stalker. Harrison was searching for the physical embodiment of his "fantasy" wife -- a fictional female character in a book. Howard University authorities did not ban the stalker from the Law School building, despite being advised to do so by the D.C. Metropolitan Police Department and contrary to its own established Campus Police banning procedures. Instead, Howard refused to renew Martin's teaching contract.

Martin sued, alleging sexual harassment/hostile work environment and retaliation. In 1999, the U.S. District Court for D.C. set precedent in Martin, holding that an employer can be held liable for the sexual harassment of an employee by a non-employee, if the employer knew or should have known of the harassment and failed to take reasonable steps to stop it. The court held that Martin's claims could therefore proceed to trial (Martin v. Howard University, 1999 U.S. Dist. LEXIS 19516 [D.C. 1999]).

At trial in 2006, a jury agreed with Martin that Harrison's harassment did create a "hostile work environment" for her and that Howard did not take reasonable steps to end it. However, the jury asked for a clearer legal definition of "sexual harassment," which the judge refused to provide. Confused about the legal definition and Title VII coverage, jurors concluded that Harrison's harassment of Martin was not based on her sex or sexual in nature. This meant that she was not protected by Title VII.

Martin is appealing District Court Judge Hogan's Oct. 8, 2010, decision refusing to vacate the jury's verdict. Martin is relying primarily on the Supreme Court's Jan. 26, 2009, decision in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., 129 S. Ct. 846, 853 (2009), for her argument that the interpretation of "protected activity" is a question of law for the court -- not a question of fact for the jury.

Seventy-eight percent of stalking victims are women; 54 percent of female murder victims reported their stalkers to the police before being killed by them. "Many stalking victims are afraid to let their employers know that they are being stalked," Martin said. "They are afraid of being fired. No woman should have to choose between her job and her safety."

In a 2009 documentary about the case, Kim Gandy, then-president of NOW Foundation, explained why the organization took the lead in the amicus brief filed in an earlier appeal in this case. Gandy said: "We've had situations like this, where women, stalked in the workplace, were fired, or let go, because they were stalked." See video.

Current NOW Foundation President Terry O'Neill wrote: "We believe the Supreme Court's recent decision in Crawford v. Nashville supports the principle that it is up to the courts, not a jury, to say whether particular behavior is protected or prohibited by Title VII." Martin and NOW Foundation are also urging an amendment to Title VII that would expressly protect victims of stalking and domestic violence against employment discrimination and retaliation for reporting stalking in the workplace.

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