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PJC Amicus Brief Fights Sexual Harassment & Retaliation in the Workplace

On October 16, 2009, the Public Justice Center (PJC) filed a friend-of-the-court (amicus) brief in the case of Prince of Peace Lutheran Church et al v. Linklater, No. 66, Sept. Term 2009 in the Maryland Court of Appeals.

Mary Linklater worked as a choir director for Prince of Peace Lutheran Church.  According to her complaint, two years into her employment, one of the church’s most influential congregants and later its pastor began to make sexual advances towards her.  When she rebuffed their advances and later reported their behavior to church leaders, both men became hostile towards her.  The pastor, for example, repeatedly reprimanded her for insubordination in front of the congregation, required her to play the organ with a broken wrist, openly mocked her when she was in distress, referred to her using foul and inflammatory language, and publicly accused her of extorting from the church.  These episodes occurred over the span of three years.  Ms. Linklater ultimately filed claims for sexual harassment, gender discrimination, and retaliation under the Montgomery County Code, but the Circuit Court treated these claims as untimely because they were partially based upon incidents that took place prior to the relevant limitations period.  During appeals before the Court of Special Appeals and the Court of Appeals, the parties vigorously contested the validity of the limitations defense.

The amicus brief drafted by Murnaghan Appellate Advocacy Fellow Monisha Cherayil drew upon case law, legal scholarship, and social science research to explain why Ms. Linklater’s claims should be treated as timely.  First, the brief illustrated how employer retaliation against those who oppose workplace harassment or discrimination can, like the harassing or discriminatory acts themselves, occur incrementally over a period of time rather than through discrete, easily-identifiable employer actions such as termination or demotion.  Accordingly, the brief urged, the well-established “continuing violation” doctrine should apply to render timely retaliation claims based upon the accumulation of multiple acts.  Second, in response to the misinformed view of some courts that sexual harassment is wholly distinct from retaliation against those who complain of such harassment, the brief exposed the frequent overlap between harassing and retaliatory conduct.  Specifically, the brief highlighted scholarship establishing that harassment and retaliation comprise a vicious cycle and that both types of misconduct can stem from a desire to marginalize less powerful employees.  It cautioned, therefore, that the Court of Appeals should not ground its limitations analysis in a rigid and artificial attempt to categorize certain acts as harassing and others as retaliatory.  The PJC’s amicus brief, in taking these positions, pressed the Court of Appeals to abandon some of its own outdated case law and, consistent with Supreme Court precedent, take a real-world view of how sexual harassment and retaliation play out in the workplace.

In addition to submitting its own brief, the PJC collaborated with other amici, the People for the American Way, the Metropolitan Washington Employment Law Association, and the Maryland Employment Law Association, on a coordinated approach to amicus briefing on other significant issues presented in the case, including the scope of the ministerial exception to church liability for discrimination, personal liability of individual harassers, and authority for a Maryland county to legislate its own remedies for civil rights violations.

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