Amici curiae The Impact Fund, Equal Rights Advocates, Women‟s Employment Rights Clinic at Golden Gate University School of Law, Asian Law Caucus, and Lawyers‟ Committee for Civil Rights of the San Francisco Bay Area, request leave to file the proposed joint brief in support of Appellant„s Petition for Panel Rehearing and Suggestion for Rehearing En Banc. Amici bring this motion pursuant to the Federal Rules of Appellate Procedure, Rule 29(a). I. STATEMENTS OF INTEREST A. The Impact Fund The Impact Fund is a nonprofit foundation that supports complex public interest litigation through grants, training, technical assistance, amicus representation and co-counseling. It has engaged in all of these activities for cases brought under the Fair Employment and Housing Act (“FEHA”), and has represented amici and argued such cases before the California Supreme Court and California Court of Appeal. Its executive director, Brad Seligman, is a well-known employment expert who has taught employment discrimination law at Hastings College of the Law and Golden Gate University Law School, and has written extensively on employment law. He is a contributing editor to the California Employment Law Reporter. At the Ninth Circuit's request, he addressed law clerks on employment law in a recent orientation. B. Equal Rights Advocates Equal Rights Advocates (ERA) is one of the oldest public interest law firms specializing in litigation and advocacy efforts to eliminate gender discrimination and secure equal rights for women. Begun in 1974 as a teaching law firm focused on sex-based discrimination, ERA litigates high-impact cases and gives advice and counseling to individuals who have experienced discrimination in employment,
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public accommodations and education. A major focus of ERA has been in the area of gender equality in the workplace, since economic equality is fundamental to women‟s ability to achieve equality in other spheres of society. ERA has litigated and advocated in the areas of pay equity, sexual harassment in the workplace and in schools, pregnancy discrimination, and affirmative action. A cornerstone of ERA‟s efforts to ensure full equality for women in the workplace has been the fight against sexual harassment. ERA represented the plaintiff in the first case in the Ninth Circuit to find sexual harassment a violation of Title VII (Miller v. Bank of America, 600 F.2d. 211 (9th Cir. 1979)) and continues to represent women who have been sexually harassed. ERA has also appeared as amicus curiae in numerous California and federal court cases including Commodore Home Systems, Inc. v. Superior Court, 32 Cal.3d 211; 649 P.2d 912; 185 Cal. Rptr. 270 (1982); Dyna-Med v. FEHC, 43 Cal.3d 1379, 743 P.2d 1323; 241 Cal. Rptr. 67 (1987); Rojo v. Kliger, 52 Cal.3d 65, 801 P.2d 373, 276 Cal. Rptr. 130 (1990); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986); Harris v. Forklift Systems, Inc., 1994 U.S. Dist. LEXIS 19928; 66 Fair Empl. Prac. Cas. (BNA) 1886 (M.D. Tenn. 1994); Faragher v. Boca Raton, 522 U.S. 1105 (1998); and Burlington Indus. v. Ellerth, 524 U.S. 742 (1998). C. Women‟s Employment Rights Clinic at Golden Gate University School of Law The Women‟s Employment Rights Clinic (WERC) provides free and low cost legal services, and advises, counsels and represents clients in a variety of employment-related matters. WERC has represented hundreds of workers in workplace harassment cases in state and federal court, as well as in administrative proceedings. WERC represented the lead plaintiff in a pattern and practice case
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prosecuted by the Equal Employment Opportunity Commission addressing classwide sexual harassment of female farm workers in EEOC v. Tanimura & Antle, C 99-20088 JW (N.D. Cal. 1999). The matter resulted in a consent decree, which included comprehensive injunctive relief, and $1.85 million in monetary relief. WERC also published Know Your Rights: A Guide to Employment Law for California Workers. D. Asian Law Caucus Established in 1972, the Asian Law Caucus (ALC) is the oldest civil rights and public interest legal organization in the country serving the Asian Pacific American (APA) community. The ALC represents primarily low-income, monolingual Asian Pacific Islanders in the areas of employment/labor, immigration, housing/community development, and civil rights. It has represented APA workers in numerous civil rights cases, such as Truong et al. v. San Francisco Housing Authority (1998) 164 F.3d 631, a class action based on the failure of the Housing Authority to address and prevent racial harassment of Asian residents. ALC has represented and provided legal counseling to numerous workers in employment-related matters, including sexual harassment, in both federal and state courts. E. Lawyers‟ Committee for Civil Rights of the San Francisco Bay Area The Lawyers‟ Committee for Civil Rights of the San Francisco Bay Area (Lawyers‟ Committee) is a civil rights and legal services organization devoted to advancing the rights of people of color, low income individuals, immigrants and refugees, and other underrepresented persons. The Lawyers‟ Committee is affiliated with the Lawyers‟ Committee for Civil Rights Under Law in Washington D.C., which was created at the behest of President Kennedy in 1963. In 1968, the
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Lawyers‟ Committee was established by leading members of the private bar in San Francisco. Throughout its history, the Lawyers‟ Committee has dedicated itself to ensuring access of women and minority groups to an employment environment free from discrimination and harassment. The decision of the panel would thwart the achievement of this important goal.
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RELEVANCE AND DESIRABILITY OF AMICUS BRIEF The brief of Amici Curiae, submitted by some of this state‟s leading civil
rights organizations, addresses California‟s specific and comprehensive statutory and regulatory scheme for protecting workers from harassment, and how it fundamentally differs from the more general prohibitions against discrimination provided by federal law. Amici, who regularly represent significant numbers of workers in harassment cases, believe that the Kohler decision wrongly interprets California law. If the decision stands, it will create conflicting standards for determination of liability in FEHA harassment cases depending on whether the case is filed in state or federal court. As the court recognized in Wu v. Pacifica Hotel Co., No. C–002059-SI, 2001 U.S.Dist. LEXIS 6048 at *18 (N.D. Cal. April 25, 2001), state courts are not bound to follow the Kohler decision. The resulting chaos in the court system will lead to undue incentive for forum-shopping, removal, and other venue maneuvers. California‟s worker protections go far beyond those established through Title VII jurisprudence. The California legislature decided, as a matter of state policy, to hold employers strictly accountable for harassment by supervisors, and
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not subject to a “reasonable care” type defense. This key statutory provision has been strengthened in the years since its inception, without any indication of legislative intent to permit the type of affirmative defense spelled out in Faragher and Ellerth, supra. Grafting on an affirmative defense created by cases interpreting federal law would undermine the state‟s statutory intent, and would essentially rewrite the FEHA. Amici discuss issues not included in the Appellant‟s Petition for Rehearing, and Amici believe consideration of those additional issues will benefit the court. Amici discuss how a refusal to apply the federal Faragher/Ellerth affirmative defense to California‟s FEHA would be consistent with the decisions of state and federal courts interpreting other state laws. Where states have crafted antiharassment laws that deviate from the Title VII model, courts have refused to apply Faragher and Ellerth to those state laws. Where state anti-harassment law is harmonious with Title VII, courts have applied the affirmative defense. Amici also address in detail the manner in which the California legislature has explicitly identified defenses when it has intended them to apply to FEHA claims, and how the legislature has declined to include affirmative defenses in FEHA‟s harassment provision relating to supervisors. Amici believe that the panel‟s decision is inconsistent with a coherent and long-standing body of California statutes, regulations, and state court interpretations. For this reason, the matter is particularly suited for reconsideration.
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Amici respectfully move that this Court grant leave to file the brief of amici curiae supporting the Petition for Panel Rehearing and Suggestion for Rehearing En Banc.
Dated: May 24, 2001
Respectfully submitted, Joseph Grodin
________________________ Marci Seville Donna Ryu
_________________________ Judith E. Kurtz Attorneys for Amici Curiae The Impact Fund Equal Rights Advocates Women‟s Employment Rights Clinic of Golden Gate University School of Law Asian Law Caucus Lawyers‟ Committee for Civil Rights of the San Francisco Bay Area
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