Women's Rights in the Courts

With Bush's disapproval rating at an all-time high, Karl Rove possibly on his way out, new reports about illegal wiretapping and continued chaos in Iraq, the following stories often slip through the cracks. This is from the National Women's Law Center:

Controversial lower court nominations are back on center stage. At the same time, practically every day, little-noticed rulings are handed down by federal courts across the country that affect the vitality and strength of rights and principles women rely on. To illustrate why the courts - and battles over nominations - matter so much to women, the National Women's Law Center will give periodic reports on noteworthy decisions addressing women's legal rights. Here are brief summaries of four recent decisions.

Sexual harassment of college student-athletes by their coach

Last month, in Jennings v. University of North Carolina, the Fourth Circuit tossed out a case brought by a young woman on the University of North Carolina soccer team who alleged that she and her teammates were subjected to ongoing sexual harassment by their coach. According to Melissa Jennings and her teammates, over a period of two years the coach regularly made crude sexual comments to the players, and even asked her, alone in his dark hotel room, who she was "f. . .ing." Jennings was only 17 at the time, and the coach's behavior made her feel "uncomfortable, filthy and humiliated" and put her in "constant fear" of him. When Jennings complained, no action was taken. In a 2-1 decision, the court ruled that what occurred was nothing more than harmless sexual banter, and ignored the fact that the coach was a nationally-renowned figure with tremendous power over the young players - their playing time, team membership, and scholarship eligibility. As the dissenting judge concluded, Jennings should have been allowed a chance to convince a jury that the coach took advantage of his position of power and created a sexually hostile environment in violation of Title IX. If what happened to Melissa Jennings' case is a sign of things to come when students challenge sexual harassment by their coaches or teachers, Title IX's protections will be a mere shadow of what they are meant to be.

Workplace requirements based on sex stereotyping: a makeup mandate

In another case decided last month, Jespersen v. Harrah's Operating Co., Darlene Jespersen, a bartender at Harrah's Casino in Reno, Nevada, was fired -- after 20 years in the job -- when she refused to comply with the casino's policy requiring female bartenders to wear foundation, blush, mascara and lipstick, and even to meet with professional image consultants who dictated where and how the makeup had to be applied. Jespersen claimed a violation of her rights under Title VII of the Civil Rights Act, which prohibits sex discrimination in the workplace, arguing that the makeup mandate placed an unequal burden on women and forced casino employees to conform to sex stereotypes. The Ninth Circuit, in a 7-4 decision, rejected her arguments and threw out her case. A dissenting judge pointed out that "a rule that all judges wear face powder, blush, mascara, and lipstick while on the bench" would be considered burdensome and demeaning, and concluded that such a rule should not be imposed on women like Jesperson who don't wish to wear makeup on the job. The court did reaffirm its prior holding that employment conditions cannot be based on sex stereotypes, but as another dissenting judge noted, the court in this case, by rejecting Jesperson's claims, endorsed the stereotype that women's faces are unprofessional without makeup.

Spying on the women's restroom at work - not a hostile environment?

In Cottrill v. MFA, Inc., in a 2-1 ruling, the Eighth Circuit threw out a case brought by two female bookkeepers in a Missouri company whose boss had surreptiously installed a two-way mirror and peephole into the women's restroom and then regularly spied on them for four years when they went to the bathroom. That evidence was undisputed, and there was also clear evidence that he had placed a substance on the toilet seat that gave one of the women, Jill Cottrill, a rash. When the peephole was discovered, Cottrill was so upset she became physically ill. Yet instead of confronting the man or firing him immediately, the company had Cottrill expose herself to him again four times, so that he could be caught peeping on videotape - an experience she found devastating. Although the man ultimately pleaded guilty to a felony charge for invasion of privacy, the court concluded that the women's claims of a hostile environment in the workplace could not even get to a jury. One judge dissented, finding that the jury could have found that a reasonable person would find this situation to be hostile or abusive in violation of Title VII. It may not surprise you to learn that the dissenting judge was a woman.

The right to privacy for sexual and health-related information

In Aid for Women v. Foulston, a federal court in Kansas blocked enforcement of a legal opinion by Kansas Attorney General Phill Kline requiring health care professionals, social workers, and school counselors to report to authorities any indication that a teen younger than 16 is sexually active. The Kline opinion was so broad it would require reporting of 15 year olds who were involved in any kind of consensual, voluntary sexual activity. Major medical organizations opposed Kline's interpretation because it would discourage teenagers from seeking health care and counseling, including for sexually-transmitted diseases or birth control, and thereby jeopardize their health. District Court Judge J. Thomas Marten found that Kline's opinion was contrary to the plain language of the state law, which allows providers to determine, on a case-by-case basis, whether there is reason to suspect a minor involved in sexual activities was injured as a result of sexual abuse. (No one disputed the obligation to report incest, adult sexual abuse of a child, or sexual activity involving a child under 12.) The court also ruled that the Constitution protects the right to privacy concerning sexual or health-related information, and that minors have a limited right to avoid disclosure of such matters to the government. This decision is a victory for adolescent health and medical privacy - but it could be temporary. Attorney General Kline has appealed to the Tenth Circuit, which already reversed a court order temporarily blocking the Kline position at an earlier stage of this case.