By Tiffanie Benfer, Esq.
January is National Stalking Awareness Month. I think it is quite poetic that on January 9, 2009, the Supreme Court considered Ms. Dawn Martin’s Petition for rehearing, which asks the Court to reconsider whether her termination for reporting a stalker in the workplace falls within the scope of the anti-retaliation provision of Title VII. Ms. Martin was stalked in her workplace, and then was subsequently fired for asking her employer to implement existing security procedures to keep the stalker out of the workplace. If the lower court’s decision is not reversed, women like Ms. Martin will be forced to choose between their safety and their job. The Court previously denied Ms. Martin’s Petition for Certiorari in 2008.
Ms. Martin asks that the Court reconsider her work place stalking case in light of the Court’s consideration of Crawford v. Metropolitan Government of Nashville and Davidson County. http://www.oyez.org/cases/2000-2009/2008/2008_06_1595/ Oral argument in the Crawford matter took place on October 8, 2008, the Court considered: “Does the anti-retaliation provision of Title VII of the Civil Rights Act apply to employees fired for participating in an internal investigation of sexual harassment?”


Ms. Martin asks that the Court reconsider her work place stalking case in light of the Court’s consideration of Crawford v. Metropolitan Government of Nashville and Davidson County. http://www.oyez.org/cases/2000-2009/2008/2008_06_1595/ Oral argument in the Crawford matter took place on October 8, 2008, the Court considered: “Does the anti-retaliation provision of Title VII of the Civil Rights Act apply to employees fired for participating in an internal investigation of sexual harassment?”
Both Ms. Martin and Ms. Crawford experienced harassment at the workplace, and then were terminated shortly after reporting the harassment to their employers. Both women challenge the lower courts’ interpretation of the anti-retaliation provision in Title VII and assert that a broader interpretation is necessary and was intended by the legislature. In both cases, the women were barred from presenting the argument that they were fired because they reported the harassment. The lower courts held that the women did not engage in “protected activity” because of the way in which they reported the sexual harassment to their respective employers.
Specifically, Ms. Martin was stalked at work by a man seeking the physical embodiment of his “fantasy,” or ideal “wife”. Ms. Martin requested that her employer Howard University provide her with protection. Instead of implementing the University’s Campus Security procedures already in place, the University refused to renew her teaching contract. Ms. Martin brought suit against her employer for sexual harassment/hostile work environment and retaliation for reporting sexual harassment, in violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex/gender and other protected class. With regards to retaliation claims Ms. Crawford specifically ask the Court to consider:
Where a woman is sexually harassed in her workplace by a non-employee, what “magic words” must she use in order to be protected from retaliation, as guided by EEOC Regulation 29 CFR § 1604.11(e)?
Where an employer cancels an advertised job vacancy, and leaves additional vacancies unfilled to avoid consideration of an applicant/employee who has complained of sexual harassment, does this conduct constitute actionable retaliation under Title VII, as defined by Burlington Northern v. White, 548 U.S. 53 (2006)?
Her petition also asks the Court to consider:
Since 80% of stalking victims are women, should a disparate impact theory of discrimination be applied to find that workplace/campus stalking constitutes sexual harassment, pursuant to Title VII of the Civil Rights Act of 1964?
Must a plaintiff prove that she was “groped” or “touched” to prevail on a claim of sexual harassment?
Is harassment “based on sex” when the harasser uses gender-specific language, referring to the victim as his “wife?”
Where a stalker selects his female victim because she fits the “profile” of a fictitious female character, is the harassment “gender profiling,” using a “sex-plus” analysis?
Ms. Martin is the first to present the issue of “gender profiling” or “working while female” in the employment context. This issue has been skirted by the lower courts, but may at last been given a more definitive answer should the Supreme Court decide to hear her petition.
As for Ms. Crawford, she cooperated in her employer’s internal investigation of sexual harassment. Consequently, she was terminated for alleged embezzlement and drug use, allegations which were found to be untrue. Ms Crawford brought suit against her employer for retaliation for reporting sexual harassment. Her employer asserted that her actions did not constitute “protected activity” because she reported the sexual harassment during an internal investigation. As previously stated, Ms. Crawford ask the Court to consider: “ Does the anti-retaliation provision of Title VII of the Civil Rights Act apply to employees fired for participating in an internal investigation of sexual harassment?”
Both women have asked the Court to consider the scope of the anti-retaliation provision of Title VII. In 2006, the Court recognized the practical importance of a broad interpretation of the anti-retaliation provision of Title VII, in Burlington Northern & Santa Fe Rwy. Co. v. White. The Court articulated a broad standard for determining the type of conduct that may constitute retaliation under Title VII of the 1964 Civil Rights Act. The question is whether the Court will also provide a broad interpretation of the anti-retaliation provision of Title VII.
Until the case is decided, employers are well advised not to retaliate against an employee for reporting discrimination/harassment of a protected class, even if there has not yet been an EEOC investigation.