Amicus Briefs 101: The End Result
Previously in this blog post series we discussed what amicus briefs are, how and why they are used as tools for advocacy, and the recent amicus briefs the Purple Campaign has filed on behalf of important anti-harassment issues. Part I and part II defined the core role of an amicus brief as a way to make policy arguments that explain how rendering a particular decision will benefit or harm those who are not before the court, such as other litigants and society as a whole. These policy arguments fill in necessary pieces of the legal puzzle and help shed light on nuances of a case that the party’s brief may not be able to address. Thus, effective amicus briefs educate courts about practical considerations and nuanced policy concerns which, in turn, may be factored into the final legal analysis.
Such was the case in three recent decisions that the Purple Campaign is celebrating: one out of the Illinois Supreme Court, one out of the New York Supreme Court, and one out of the U.S. Court of Appeals for the Fourth Circuit. In each case, our amicus advocacy served to highlight the potentially harmful effects that could befall current and future litigants in similar situations if the higher courts were to uphold the decisions of the lower courts. Our amicus briefs were accepted by each of the courts and were utilized in their ultimate decision overruling – either partially or in their entirety – the decisions of the courts below.
We applaud the rulings made by each court and are excited to highlight these recent advocacy wins below:
Caryn Devins Strickland v. United States et. al
Last week, the Fourth Circuit issued an opinion in Caryn Devins Strickland v. United States et. al, (formerly known as Jane Roe v. United States et. al.), a case in which the Purple Campaign supported Ms. Strickland in her claims of pervasive sex discrimination, including sexual harassment, and retaliation to which she was subjected. Our amicus brief, led by the Purple Campaign, the National Women’s Law Center, and Legal Momentum, and in partnership with our pro bono counsel at Willkie Farr & Gallagher, urged the Fourth Circuit to reverse the lower court’s decision and determine instead that it should find a Constitutional guarantee of the right to work in an environment free from sexual harassment and other workplace discrimination.
In a landmark ruling, the Fourth Circuit recognized, for the first time, the Constitutional right of federal judiciary employees to work in an environment free from sexual harassment. The Court agreed with the argument presented in our amicus brief that the more than 30,000 employees of the federal judiciary currently lack federal statutory protections against workplace harassment and discrimination. As such, the Court concured that there is a need to recognize such rights under the Constitution, emphasizing Ms. Strickland’s constitutional “right to redress injuries caused by workplace discrimination, a right that is fundamentally equivalent to a cause of action and one that is vitally important considering the lack of alternative means of seeking relief for employees of the federal judiciary.”
As our brief also highlighted, the facts of Ms. Strickland’s case underscored the importance of ensuring that equal protection claims survive in situations like hers. The panel of judges concurred, writing that the Fifth Amendment’s equal protection clause “secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.”
The ruling sends the case back to the district court, where Ms. Strickland’s claims now can be considered at trial or negotiated with the Justice Department, which is representing the government defendants.
Dent v. Constellation
Last year, the Illinois Appellate Court issued a troubling decision that would make it easier for alleged harassers to bring retaliatory defamation lawsuits – arguing that a certain statement(s) injured their reputation – against those who reported or investigated claims of sexual harassment or other workplace discrimination.
On appeal to the Illinois Supreme Court, the case asked the justices to weigh the right of a person to know the identity of their accuser against the right of a harassment survivor to anonymously report an incident to their employer. In the amicus brief drafted by National Women’s Law Center, Women Employed, the ACLU of Illinois, and DLA Piper, and signed onto by the Purple Campaign and 28 other advocacy organizations, amici urged the Illinois Supreme Court to reverse the lower court’s decision. Amici reasoned that upholding it would only serve to increase the already high levels of retaliation faced by so many who come forward and that any other contrary position would have a serious chilling effect on reporting.
On April 21st, the Illinois Supreme Court reversed the Illinois Appellate Court and held that the employer in this case could not be forced to reveal the identities of a survivor who reported sexual harassment. As such, Dent won’t be able to learn the names of the people who accused him of sexual harassment. This decision constitutes a big win for survivors reporting sexual harassment and employers who seek to do the right thing by investigating complaints. Our team at the Purple Campaign applauds the court’s decision to protect employees from retaliatory lawsuits alleging defamation.
Dent’s team plans to file a petition asking the Illinois Supreme court to revisit the decision, alleging it misunderstood or overlooked facts, and the Purple Campaign will remain engaged to ensure that future proceedings don’t undermine this important holding.
Tirschwell v. TCW
In March 2021, the Purple Campaign filed an amicus brief in support of Appellant Sara Tirschwell, a former Portfolio Manager in the financial services industry. The brief argued that the lower court had issued an erroneous decision on Ms. Tirschwell’s case that would have harmful effects on future employees subjected to harassment and discrimination if affirmed by the higher courts. Significantly, we urged the Court to consider the nuances of unconscious gender bias that permeates male-dominated industries, the coercive nature of supervisor-employee relationships, and the New York City Human Rights Law’s intention to address these types of issues by offering sweeping protections for those who are subjected to sexual harassment.
The Supreme Court of New York formally accepted our Amicus Brief and issued a decision in the case, finding that issues of fact existed as to whether Ms. Tirschwell was subjected to sexual harassment, gender-based discrimination, and retaliation at work, as well as whether there was a causal connection between the HR complaint she made and her employer’s decision to fire her only nine days later. Contrary to the lower court’s decision, this ruling now allows Ms. Tirschwell to sue TCW (her employer) and TCW President and Chief Executive David Lippman for damages.
The case, which was delayed for three years because of litigation and a 14-month pandemic-related hiatus in the New York court system, now awaits a jury trial. A trial is expected to begin sometime this year and will decide whether Ms. Tirschwell is awarded up to $30 million in lost compensation, along with punitive damages that could reach $270 million.