THE STATUTORY AND COMMON LAW CLAIMS IN MS. MARTIN'S LAWSUIT
Title VII: Sexual Harssment/Hostile Work Environment
As explained in the overview of the case of Martin v. Howard University, 1999 U.S. Dist.
LEXIS 19516 (D.C. 1999) at MartinvHowardU and the facts detailed at
MartinvHowardUBizarreFacts, Ms. Martin sued Howard under Title VII of the Civil Rights
Act of 1964 and the D.C. Human Rights Act, which prohibit discrimination on the basis of
sex/gender. The Supreme Court has held that Title VII prohibits sexual harassment when the
harassment is based on sex. This means that harassment that is directed at women, but not
men, or vice-versa, is illegal under Title VII. (Title VII also prohibits discrimination on the
basis of race, color, national origin, and religion.) Sexual harassment occurs then
harassment is based on sex/gender (or is sexual in nature) and it is severe and pervasive,
rising to the level of creating a hostile work environment for the employee.
The precedent set in this case adds to the legal definition of sexual harassment. Although the
Appellate Panel stated that its ruling against Ms. Martin does not mean that stalking can never
constitute sexual harassment, it is difficult to imagine a case that would meet the Panel's
standards, based on its ruling in Martin. In this case, Prof. Martin did not know her stalker.
He was a complete stranger and a serial stalker, roaming through the law school. There is
no way that the employer could "blame the victim" for bringing the stalker to the law school.
How much more difficult will it be for victims of domestic violence and women whose
stalkers are ex-husbands or ex-boyfriends to seek protection from the courts when they are
fired for being stalking victims? In fact, at oral argument, Howard's attorney, Brian L.
Schwalb, specifically argued that ruling in Ms. Martin's favor "would sweep into Title 7
analysis and discrimination analysis anytime ... a woman is the subject of a stalking or a
domestic violence issue .... " See Transcript of Oral Argument, page 16, lines 1-12.
Of course, neither Ms. Martin nor Amicus Curiae, the National Association of Women
Lawyers, ever argued that the employer should be held responsible for domestic violence
issues or stalking outside of he workplace. They only argued that Title VII requires the
employer to take reasonable steps to end stalking against women in the workplace and
prohibits the employer from firing or otherwise retaliating against the woman who is being
stalked. They argued that a woman should not have to choose between her job and her
safety. They also pointed out that, if a woman can be fired for informing her employer that
she is being stalked, then women will be afraid to report it -- and the employer will not be
prepared to prevent violence in the workplace or harm to that employees or others who may
become "collateral damage" in a workplace attack on the intended victim.
Title VII: Retaliation.
Title VII includes an anti-retaliation provision that prohibits an employer from taking any
adverse action against an employee for asserting their rights under Title VII. Even in
"employment at will" jurisdictions, Title VII and other anti-discrimination employment laws
(such as the Age Discrimination in Employment Act and the Americans with Disabilities Act)
prohibits an employer from firing a person who has complained about discrimination,
including sexual harassment. In order to be protected against retaliation, the employee's
complaint had to be about conduct that constituted sexual harassment or at least that the
employee, in good faith, believed was sexual harassment or other discriminatory behavior
prohibited by Title VII. The Court of Appeals held:
"The District Court limited Ms. Martin's retaliation claims to two alleged harms-the
decision of Howard Law not to hire her for a tenure-track position in equal employment
opportunity law and her expulsion from her office. Any challenge to these alleged harms
is now moot. Because the jury reasonably found that Ms. Martin had not engaged in
protected activity, the necessary predicate for her claims of retaliation is missing."
March 31, 2008 U.S. Court of Appeals Decision, page 4. In other words, since the jury
concluded that, although Leonard Harrison stalked Prof. Martin in her workplace, the
evidence did not prove that Harrison targeted her because she was a woman, there was no
statutory protection against any type of retaliation that Howard might have taken against her
for being stalked in her workplace. Since the Court determined that Harrison's stalking of
Prof. Martin did not constitute sexual harassment within the meaning of Title VII, Howard
was free to fire her, decline to renew her contract, fail to promote her, reject her for a tenure-
track faculty position or even a renewed visiting contract for a year. The precedent set for
all stalking victims, then, is not even about the specific type of retaliation that Howard took
against Prof. Martin, but rather, the question of whether the employer is permitted, by law,
to retaliate against stalking victims. If so, that retaliation can take any form at all, including
immediate termination.
State Common Law Claims. In addition to her federal and D.C. Statutory anti-
discrimination law claims under Title VII and the D.C. Human Rights Act, Ms. Martin raised
three common law state claims, intentional infliction of emotional distress, wrongful
discharge and breach of contract. These claims are completely separate and distinct from
her Title VII claims. The outcome of one does not affect the outcome of the other, as a
matter of law.
Wrongful Termination.
Ms. Martin and NAWL argued that, if Ms. Martin's "non-renewal" is not prohibited by the
retaliation provisions of Title VII or the D.C. Human Rights Act, then it should be prohibited
under the common law doctrine of "wrongful termination" as violating public policy. Some
jurisdictions, including the District of Columbia, recognize "wrongful termination" as an
exception to the "at will employment" doctrine. Ms. Martin and NAWL argued that it
violates public policy to fire a woman because she was stalked in her workplace by a
delusional, serial stalker who only knew of her existence because of where she worked. The
Appellate Panel ignored this argument.
Intentional Infliction of Emotional Distress.
The District Court dismissed Ms. Martin's intentional infliction of emotional distress claim in
1999. Martin v. Howard University and Alice Gresham Bullock, 1999 U.S. Dist. LEXIS
19516, 81 FEP Cases 964 (BNA), 15 IER Cases 1587 (D.D.C. 1999). The Court held that
no reasonable jury could find Dean Bullock's conduct -- which included subjecting her to a
dangerous serial stalker on campus, without protection, and then taking away her career and
livelihood by ensuring that her contract would not be renewed by the Appointments
Committee -- "outrageous" enough to justify a claim of Intentional Infliction of Emotional
Distress . The jury therefore never heard this claim. The Panel affirmed this holding, with
virtually no discussion of her arguments. Ms. Martin will raise this claim again before the
Supreme Court.
Breach of contract.
Although Ms. Martin is raising the evidentiary errors at the Supreme Court level, she does
not need to prevail on her breach of contract claim to prevail on her Title VII claims. The
breach of contract claim is simply an alternative, separate legal theory under which she seeks
redress. In fact, if she prevails on her Title VII retaliation claim, she will be entitled to all
remedies also available to her under a breach of contract claim, which would arguably make
her breach of contract claim moot.
Ms. Martin's breach of contract claim was based on her hiring negotiations with
Appointments Committee Vice Chair Andrew Taslitz, who recruited her from her tenure-
track teaching position at Cleveland-Marshall College of Law to come to Howard. This claim
was the most difficult to prove because the burden was on Ms. Martin to prove that Prof.
Taslitz made certain promises and representations to her, that if she accepted a visitorship,
guaranteed in writing for at least two years, Howard would "slide" her into a tenure-track
position as soon as one became available.
Ms. Martin's claims were supported by circumstantial evidence that Howard had a pattern
and practice of treating its visiting professors like tenure-track professors, renewing them
for as long as even ten years, and converting them to tenure-track or even tenured positions
when they became available.
The Howard University Faculty Grievance Committee, in its Report on Prof. Martin's
Grievance, found that "Professor Dawn V. Martin was not given due process" and that "her
academic freedom, rights and privileges may have been violated." The Committee also found
Prof. Martin's breach of contract claim "has merit:"
Professor Martin stated ... that Professor Andrew Taslitz negotiated with her on the
position to which she was appointed and told her that the position would become a
tenure track position. Her position has merit because she left a tenure track position
to come to Howard University. It also appears that the Law School changed job
descriptions several times in order to avoid offering a slot to Professor Martin. Finally
the September 17, 1999, Association of Law Schools Placement Bulletin (AALS
Placement bulletin, September 17, 1999), has a position listed for Howard University
Law School that appears to be appropriate for Professor Dawn Martin, except the
position announcement appears to want a person without experience.
Howard University Law School refused to recognize the jurisdiction of its own University's
Grievance Committee and refused to participate in the Grievance process. Rather then
continue the fight within the University, and to preserve her procedural rights to sue on her
federal claims, Prof. Martin filed her lawsuit in federal court. The trial judge refused to
admit the University Grievance Committee's Report into evidence, so the jury never saw it or
knew of its conclusion. The jury found that Ms. Martin did not carry her burden of
convincing them on this issue; however, as she argued in her Brief, the trial judge excluded
evidence that further supported her allegations and admitted evidence that was irrelevant and
prejudicial, while excluding Ms. Martin's rebuttal evidence. Ms. Martin argued that these
evidentiary rulings, and other prejudicial conduct of the trial judge, unduly prejudiced her
case on this issue. This issue was not addressed by NAWL, since this claim is primarily
fact specific and does not establish legal precedent that is likely to impact upon women as a
group.
For information about how these legal issues were addressed -- or not addressed -- at the
trial and appellate court levels, see MartinvHowardUTrialand Verdict and
MartinvHowardUAppeals.
Title VII: Sexual Harssment/Hostile Work Environment
As explained in the overview of the case of Martin v. Howard University, 1999 U.S. Dist.
LEXIS 19516 (D.C. 1999) at MartinvHowardU and the facts detailed at
MartinvHowardUBizarreFacts, Ms. Martin sued Howard under Title VII of the Civil Rights
Act of 1964 and the D.C. Human Rights Act, which prohibit discrimination on the basis of
sex/gender. The Supreme Court has held that Title VII prohibits sexual harassment when the
harassment is based on sex. This means that harassment that is directed at women, but not
men, or vice-versa, is illegal under Title VII. (Title VII also prohibits discrimination on the
basis of race, color, national origin, and religion.) Sexual harassment occurs then
harassment is based on sex/gender (or is sexual in nature) and it is severe and pervasive,
rising to the level of creating a hostile work environment for the employee.
The precedent set in this case adds to the legal definition of sexual harassment. Although the
Appellate Panel stated that its ruling against Ms. Martin does not mean that stalking can never
constitute sexual harassment, it is difficult to imagine a case that would meet the Panel's
standards, based on its ruling in Martin. In this case, Prof. Martin did not know her stalker.
He was a complete stranger and a serial stalker, roaming through the law school. There is
no way that the employer could "blame the victim" for bringing the stalker to the law school.
How much more difficult will it be for victims of domestic violence and women whose
stalkers are ex-husbands or ex-boyfriends to seek protection from the courts when they are
fired for being stalking victims? In fact, at oral argument, Howard's attorney, Brian L.
Schwalb, specifically argued that ruling in Ms. Martin's favor "would sweep into Title 7
analysis and discrimination analysis anytime ... a woman is the subject of a stalking or a
domestic violence issue .... " See Transcript of Oral Argument, page 16, lines 1-12.
Of course, neither Ms. Martin nor Amicus Curiae, the National Association of Women
Lawyers, ever argued that the employer should be held responsible for domestic violence
issues or stalking outside of he workplace. They only argued that Title VII requires the
employer to take reasonable steps to end stalking against women in the workplace and
prohibits the employer from firing or otherwise retaliating against the woman who is being
stalked. They argued that a woman should not have to choose between her job and her
safety. They also pointed out that, if a woman can be fired for informing her employer that
she is being stalked, then women will be afraid to report it -- and the employer will not be
prepared to prevent violence in the workplace or harm to that employees or others who may
become "collateral damage" in a workplace attack on the intended victim.
Title VII: Retaliation.
Title VII includes an anti-retaliation provision that prohibits an employer from taking any
adverse action against an employee for asserting their rights under Title VII. Even in
"employment at will" jurisdictions, Title VII and other anti-discrimination employment laws
(such as the Age Discrimination in Employment Act and the Americans with Disabilities Act)
prohibits an employer from firing a person who has complained about discrimination,
including sexual harassment. In order to be protected against retaliation, the employee's
complaint had to be about conduct that constituted sexual harassment or at least that the
employee, in good faith, believed was sexual harassment or other discriminatory behavior
prohibited by Title VII. The Court of Appeals held:
"The District Court limited Ms. Martin's retaliation claims to two alleged harms-the
decision of Howard Law not to hire her for a tenure-track position in equal employment
opportunity law and her expulsion from her office. Any challenge to these alleged harms
is now moot. Because the jury reasonably found that Ms. Martin had not engaged in
protected activity, the necessary predicate for her claims of retaliation is missing."
March 31, 2008 U.S. Court of Appeals Decision, page 4. In other words, since the jury
concluded that, although Leonard Harrison stalked Prof. Martin in her workplace, the
evidence did not prove that Harrison targeted her because she was a woman, there was no
statutory protection against any type of retaliation that Howard might have taken against her
for being stalked in her workplace. Since the Court determined that Harrison's stalking of
Prof. Martin did not constitute sexual harassment within the meaning of Title VII, Howard
was free to fire her, decline to renew her contract, fail to promote her, reject her for a tenure-
track faculty position or even a renewed visiting contract for a year. The precedent set for
all stalking victims, then, is not even about the specific type of retaliation that Howard took
against Prof. Martin, but rather, the question of whether the employer is permitted, by law,
to retaliate against stalking victims. If so, that retaliation can take any form at all, including
immediate termination.
State Common Law Claims. In addition to her federal and D.C. Statutory anti-
discrimination law claims under Title VII and the D.C. Human Rights Act, Ms. Martin raised
three common law state claims, intentional infliction of emotional distress, wrongful
discharge and breach of contract. These claims are completely separate and distinct from
her Title VII claims. The outcome of one does not affect the outcome of the other, as a
matter of law.
Wrongful Termination.
Ms. Martin and NAWL argued that, if Ms. Martin's "non-renewal" is not prohibited by the
retaliation provisions of Title VII or the D.C. Human Rights Act, then it should be prohibited
under the common law doctrine of "wrongful termination" as violating public policy. Some
jurisdictions, including the District of Columbia, recognize "wrongful termination" as an
exception to the "at will employment" doctrine. Ms. Martin and NAWL argued that it
violates public policy to fire a woman because she was stalked in her workplace by a
delusional, serial stalker who only knew of her existence because of where she worked. The
Appellate Panel ignored this argument.
Intentional Infliction of Emotional Distress.
The District Court dismissed Ms. Martin's intentional infliction of emotional distress claim in
1999. Martin v. Howard University and Alice Gresham Bullock, 1999 U.S. Dist. LEXIS
19516, 81 FEP Cases 964 (BNA), 15 IER Cases 1587 (D.D.C. 1999). The Court held that
no reasonable jury could find Dean Bullock's conduct -- which included subjecting her to a
dangerous serial stalker on campus, without protection, and then taking away her career and
livelihood by ensuring that her contract would not be renewed by the Appointments
Committee -- "outrageous" enough to justify a claim of Intentional Infliction of Emotional
Distress . The jury therefore never heard this claim. The Panel affirmed this holding, with
virtually no discussion of her arguments. Ms. Martin will raise this claim again before the
Supreme Court.
Breach of contract.
Although Ms. Martin is raising the evidentiary errors at the Supreme Court level, she does
not need to prevail on her breach of contract claim to prevail on her Title VII claims. The
breach of contract claim is simply an alternative, separate legal theory under which she seeks
redress. In fact, if she prevails on her Title VII retaliation claim, she will be entitled to all
remedies also available to her under a breach of contract claim, which would arguably make
her breach of contract claim moot.
Ms. Martin's breach of contract claim was based on her hiring negotiations with
Appointments Committee Vice Chair Andrew Taslitz, who recruited her from her tenure-
track teaching position at Cleveland-Marshall College of Law to come to Howard. This claim
was the most difficult to prove because the burden was on Ms. Martin to prove that Prof.
Taslitz made certain promises and representations to her, that if she accepted a visitorship,
guaranteed in writing for at least two years, Howard would "slide" her into a tenure-track
position as soon as one became available.
Ms. Martin's claims were supported by circumstantial evidence that Howard had a pattern
and practice of treating its visiting professors like tenure-track professors, renewing them
for as long as even ten years, and converting them to tenure-track or even tenured positions
when they became available.
The Howard University Faculty Grievance Committee, in its Report on Prof. Martin's
Grievance, found that "Professor Dawn V. Martin was not given due process" and that "her
academic freedom, rights and privileges may have been violated." The Committee also found
Prof. Martin's breach of contract claim "has merit:"
Professor Martin stated ... that Professor Andrew Taslitz negotiated with her on the
position to which she was appointed and told her that the position would become a
tenure track position. Her position has merit because she left a tenure track position
to come to Howard University. It also appears that the Law School changed job
descriptions several times in order to avoid offering a slot to Professor Martin. Finally
the September 17, 1999, Association of Law Schools Placement Bulletin (AALS
Placement bulletin, September 17, 1999), has a position listed for Howard University
Law School that appears to be appropriate for Professor Dawn Martin, except the
position announcement appears to want a person without experience.
Howard University Law School refused to recognize the jurisdiction of its own University's
Grievance Committee and refused to participate in the Grievance process. Rather then
continue the fight within the University, and to preserve her procedural rights to sue on her
federal claims, Prof. Martin filed her lawsuit in federal court. The trial judge refused to
admit the University Grievance Committee's Report into evidence, so the jury never saw it or
knew of its conclusion. The jury found that Ms. Martin did not carry her burden of
convincing them on this issue; however, as she argued in her Brief, the trial judge excluded
evidence that further supported her allegations and admitted evidence that was irrelevant and
prejudicial, while excluding Ms. Martin's rebuttal evidence. Ms. Martin argued that these
evidentiary rulings, and other prejudicial conduct of the trial judge, unduly prejudiced her
case on this issue. This issue was not addressed by NAWL, since this claim is primarily
fact specific and does not establish legal precedent that is likely to impact upon women as a
group.
For information about how these legal issues were addressed -- or not addressed -- at the
trial and appellate court levels, see MartinvHowardUTrialand Verdict and
MartinvHowardUAppeals.
Law Offices of Dawn V. Martin, LLC
Martin v. Howard University,
The Legal Claims against Howard
Martin v. Howard University,
The Legal Claims against Howard
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