Women's Issues
Judge Sotomayor’s record indicates that she takes seriously claims concerning gender discrimination, reproductive rights and other issues that have a significant impact on women’s lives. As in all other areas, she is dedicated to the rule of law and judicial restraint.
When women have alleged workplace sexual harassment, Judge Sotomayor has taken those claims seriously and been thoughtful about whether a jury trial is warranted based on the particular facts of the case. In Zveiter v. Brazilian National Superintendancy of Merchant Marine, 833 F. Supp. 1089 (S.D.N.Y. 1993), and 841 F. Supp. 111 (S.D.N.Y. 1993), Judge Sotomayor considered sexual harassment claims brought by a woman against her former employer and denied the employer’s motion for summary judgment. The plaintiff’s central allegations were that her supervisor had touched her buttocks, suggested that she wear apparel that would compliment the physical appearance of her legs, attempted to touch her legs, and invited her to go out for cocktails on multiple occasions. Judge Sotomayor found that while the incidents alleged may have been few in number, the seriousness of the incidents was sufficient for a jury to conclude that they amounted to a hostile work environment, observing that a “female employee need not subject herself to an extended period of demeaning and degrading provocation before being entitled to remedies for sexual harassment.” Judge Sotomayor also made clear her strict adherence to the rule of law: “All that I conclude is what is required to deny the motion for summary judgment: a factfinder could reasonably find that the abuse to which plaintiff was subjected constituted a hostile working environment, and such a conclusion would not be wrong as a matter of law.”
In Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001), Judge Sotomayor wrote an opinion for a unanimous panel ruling that the plaintiff, a police officer, was entitled to proceed to trial on her sex discrimination claims. The plaintiff alleged that that she was subjected to extensive gender-based verbal abuse and mistreatment at the precinct where she was stationed. The “record disclose[d] that within the space of two and one half years time, [the plaintiff] was subjected to offensive sex-based remarks, disproportionately burdensome work assignment, workplace sabotage, and one serious public threat of physical harm by [her supervisor]” and Judge Sotomayor allowed the case to proceed because the evidence was sufficient for a reasonable jury to conclude that the plaintiff was subjected to a hostile work environment.
Judge Sotomayor does not rule reflexively, but carefully reviews the record with regard to each question before her. For example, in Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000), a woman alleged that she had been subjected to a hostile work environment due to racial and sexual harassment. Carefully reviewing the record, Judge Sotomayor wrote a unanimous opinion that dismissed some sex discrimination claims, but allowed the hostile work environment claims to proceed to trial. In particular, she noted that the plaintiff’s allegations that her supervisor had acted in a “physically threatening” manner supported the plaintiff’s sexual harassment claims, and that “[g]iven the evidence of both race-based and sex-based hostility, a jury could find that [the supervisor’s] racial harassment exacerbated the effect of his sexually threatening behavior and vice versa.”
And Judge Sotomayor’s record demonstrates that she takes all of the facts of each case into account, appreciating the real-world context in which those facts arise. In N.G. v. Connecticut, 382 F.3d 225 (2d Cir. 2004), Judge Sotomayor wrote a powerful dissent disagreeing with a majority opinion to uphold strip searches of adolescent girls during the intake process at a state juvenile detention facility where there was no reasonable suspicion that the girls had contraband. The girls, who were not facing criminal charges and were frequently victims of sexual abuse, were required to disrobe, and then were inspected front and back, required to lift their breasts and spread out folds of fat, and finally squat and cough. Applying the law relevant to strip searches, Judge Sotomayor recognized that the particular vulnerability of the population at issue was a relevant fact: “Our caselaw consistently has recognized the severely intrusive nature of strip searches and has placed strict limits on their use. The concerns animating our prior rulings in this area should only be heightened when the privacy interests of emotionally troubled children are at stake. Here, the government has failed to demonstrate that its special needs should overcome these concerns and allow for strip searches, in the absence of individualized suspicion, of adolescents who have never been charged with a crime.”
Judge Sotomayor has also shown her commitment to following the law when reproductive rights are at issue. In Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), a domestic reproductive rights advocacy organization appealed from a judgment that dismissed their constitutional challenges to the “Mexico City Policy,” under which the United States refused to provide funds to foreign non-governmental organizations that performed or promoted abortion. Judge Sotomayor’s opinion for the court applied controlling Supreme Court and Second Circuit precedent to reject the plaintiffs’ claims. The court held that the plaintiffs’ primary First Amendment claim was squarely foreclosed by precedent, and affirmed the dismissal of their due process and equal protection claims.
In addition, Judge Sotomayor has carefully examined allegations of gender-related persecution in the context of cases concerning asylum applications. In several cases, Judge Sotomayor granted petitions for review in cases where immigration judges rejected asylum applications filed by Chinese women based on the forced insertion of intrauterine devices (Lin v. Gonzales, 445 F.3d 127 (2d Cir. 2006); Zheng v. Gonzales, 497 F.3d 201 (2d Cir. 2007); Jiang v. Bureau of Citizenship and Immigration Services, 520 F.3d 132 (2d Cir. 2008)). Her opinions in this area also demonstrate an awareness of both the profound effects that repressive reproductive policies have on women and the limits on the judicial role. In Lin v. U.S. Department of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc), a majority of Second Circuit judges determined that spouses and unmarried partners of women who had undergone forced abortions or sterilizations were not automatically eligible for asylum. Citing Supreme Court precedent, Judge Sotomayor’s separate concurring opinion argued that because the case before the court concerned only unmarried partners of women and not spouses, the majority’s extension of its holding to spouses “marks an extraordinary and unwarranted departure from our longstanding principles of deference and judicial restraint.” That issue, she said, was “unbriefed, unargued, and unnecessary to resolve this appeal.” She further explained that in extending its holding to spouses, the majority did not appropriately consider that in a country with a coercive population control program, the state’s interference with a married couple’s ability to have a child necessarily affects both spouses and may have devastating effects for both husband and wife.
In sum, Judge Sotomayor’s record demonstrates that she is attentive to women’s real world experiences while always respecting judicial precedent.