Jane Roe v. U.S. (U.S. Court of Appeals for the Fourth Circuit)
The WBA signed on to a brief drafted on behalf of amici curiae in support of Plaintiff-Appellant, who is a former assistant federal defender forced to resign after facing sex-based harassment, discrimination, and retaliation. The brief, supported by Legal Momentum, the National Women’s Law Center, and The Purple Campaign, argues that the District Court erroneously dismissed Ms. Roe’s Equal Protection claim for sex-based discrimination. The brief also highlights that the Judiciary has a history of, and continues to have, inadequate safeguards and processes to prevent sexual harassment in the workplace. The brief promotes adequate protections for the federal judiciary’s workforce from sex-based harassment and discrimination. This is important to the WBA and its members, as this issue directly and indirectly affects our industry and trustworthiness in the legal system.
This case involves a former research and writing attorney for a federal public defender’s office, Jane Roe, who was subjected to sexual harassment and retaliation between 2017 and 2019. She was subjected to harassment by the First Assistant to the Public Defender, who paid excessive and unwelcomed attention to her, singled her out to be his mentee, assigned her almost exclusively to his cases, stalked her, recruited other employees to eavesdrop on her, made demeaning jokes about her, and sent her harassing emails. Ms. Roe first reported the harassment to the Public Defender and then to the Administrative Office Fair Employment Opportunity Officer, following both the informal and formal avenues pursuant to the Fourth Circuit’s internal complaint process called the Consolidated Equal Employment Opportunity and Employment Dispute Resolution (“EDR”) Plan. The Public Defender mishandled Ms. Roe’s complaint, however, evidenced by the First Assistant’s knowledge that Ms. Roe had filed a complaint and resulting in retaliation. Retaliatory actions included continued harassment, Ms. Roe’s placement on administrative leave for six months while the investigation into her complaint remained outstanding, movement to a utility closet converted into an office, and denied promotions and transfers. After no adequate remedy to protect Ms. Roe from further harassment and retaliation was offered through the EDR Plan, Ms. Roe resigned.
Ms. Roe filed an action in the U.S. District Court for the Western District of North Carolina in March 2020, naming defendants (i.e., those who participated in the EDR Plan) in their individual and official capacities. Ms. Roe’s complaint alleged four counts—violation of the Fifth Amendment Due Process Clause, violation of the Fifth Amendment Equal Protection Clause, conspiracy to violate civil rights under 42 U.S.C § 1985, and neglect to prevent conspiracy to violate civil rights under 42 U.S.C. § 1986.
Ms. Roe’s Equal Protection Clause claim presented a matter of first impression for the Fourth Circuit. Specifically, the Fourth Circuit was deciding for the first time whether a Title VII theory of discrimination on the basis of sex states a claim for discrimination on the basis of sex under the Fifth Amendment Equal Protection Clause. The Fourth Circuit held that it does not, and this holding is the focus of the brief, as explained below.
The District Court dismissed all four counts, granting both the individual capacity defendants’ and official capacity defendants’ motions to dismiss, and entered judgment for defendants. Ms. Roe then filed a motion for reconsideration, which was also denied. Ms. Roe filed a notice of appeal to the Fourth Circuit in March 2021.
Crisitello v. St. Theresa School (Supreme Court of New Jersey)
The WBA signed on to a brief prepared by Lowenstein Sandler on behalf of the National Women’s Law Center (NWLC) in support of Plaintiff-Respondent.
The facts underlying this case involve Plaintiff-Respondent, Victoria Crisitello, whose employment as an art teacher was terminated by her religious employer, St. Theresa School, a Catholic elementary school within the Archdiocese of Newark, because she became pregnant while not married. The School’s principal learned that Ms. Crisitello was pregnant after the principal asked Ms. Crisitello to teach more art classes, and Ms. Crisitello said she would do so only if she received a pay increase because she was pregnant. Two weeks later, the principal terminated Ms. Crisitello’s employment and explained that it was because she was pregnant and unmarried, which she claimed was in violation of the School’s policies.
Ms. Crisitello thereafter filed a claim under the New Jersey Law Against Discrimination (“LAD”) for discrimination based on pregnancy and marital status. The School has defended itself by invoking the ministerial exception to excuse its employment action against Ms. Crisitello’s. Specifically, the School relies on its Faculty Handbook and related policies that view all its teachers, regardless of whether they engage in religious instruction, as “assist[ing] schoolchildren develop spiritually and morally,” which the School reasons makes all employees “ministers.”
The Superior Court of New Jersey for Union County twice granted the School’s motions for summary judgment, and the Appellate Division reversed each of these decision on appeal. The Appellate Division’s most recent decision found that the ministerial exception did not apply because Ms. Crisitello’s core duties as a lay teacher were not comparable to that of a religious institution’s “ministers.” The School filed a Petition, which the Supreme Court of New Jersey granted. The amicus brief supports Ms. Crisitello.
The brief explains that the ministerial exception, as applied in both federal and state courts, is narrowly interpreted due to its incongruity with governmental and societal interests in eradicating discrimination and protecting historically vulnerable employees from harm.