Earlier this week, PBS aired the documentary Perpetuating Stigma about the ongoing criminalization of women with HIV. Through the stories of several women impacted by HIV criminalization — the use of criminal law to target people diagnosed with HIV for prosecutions and imprisonment — the documentary movingly illustrates how such laws dehumanize and stigmatize women living with HIV. But because of the opposition of the Alabama Department of Corrections, the producers of “Perpetuating Stigma” never got to tell the story of Dana Harley.

Dana Harley is a prisoner in the segregated unit for women with HIV at the Tutwiler Prison for Women in Wetumpka, Alabama. When women first arrive at Tutwiler, they are tested for HIV. If a woman’s test results come back positive, she is placed in solitary confinement — sometimes for weeks — and eventually transferred to permanent housing in a segregated unit reserved for prisoners with HIV. Until she is released from Tutwiler, she will never again be housed with prisoners who do not have HIV. This HIV segregation policy, which has remained in place since the mid-1980s, stigmatizes people like Dana and denies them the same access to programs available to other prisoners. Along with South Carolina, Alabama is one of only two states left in the nation that still maintain such HIV segregation policies. Dana is one of nine people with HIV who, with the assistance of the ACLU, are challenging this discriminatory policy. The producers of Perpetuating Stigma attempted to interview Dana about her story, but the Commissioner of Corrections refused to permit the PBS producers to visit her, citing “ongoing litigation.” Even if the Commissioner will not allow Dana to speak for herself, the ACLU will continue to fight for her rights against unfair discrimination.

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This year marks the 40th anniversary of Title IX, the groundbreaking federal law passed in 1972 to eliminate sex discrimination in educational institutions that receive federal funding. However, after four decades, its mandate continues to be ignored.

Today, the U.S. Court of Appeals for the Second Circuit heard arguments in a case in which one university continues to employ some disingenuous, if rather creative, strategies to achieve compliance with Title IX. In March 2009, Quinnipiac, a private university in Connecticut, announced it was terminating its women’s volleyball program, despite the fact that it already failed to provide women with equal athletic opportunities. Eliminating the women’s volleyball team would put Quinnipiac even further out of compliance with Title IX.

When Quinnipiac refused to reconsider its decision to terminate women’s volleyball, the team — represented by the ACLU of Connecticut, Equity Legal, and the law firm Pullman & Comley — filed a lawsuit on behalf of all women athletes.

Quinnipiac then attempted Title IX compliance by designating a new varsity sport of "competitive cheer" and by triple-counting female cross country runners who were also on the rosters of the women's indoor and outdoor track teams -- even if they did not actually compete. *

On July 22, 2011, the district court ruled that Quinnipiac had violated Title IX and prevented the university from eliminating any women’s athletic teams until it properly complies with the law. Arguments in Quinnipiac’s appeal were held today.

“It’s shameful that Quinnipiac University insists on maintaining dishonest rosters just so it can deny young women the same opportunities as men,” said Andrew Schneider, executive director of the ACLU of Connecticut. “Legitimate student athletes should not have to suffer because their school doesn’t want to play by the rules.”

“Title IX is clear that colleges have to provide female athletes with the same meaningful equal athletic opportunities that are available to men,” said Galen Sherwin, staff attorney with the ACLU Women’s Rights Project. “Schools can’t get around this requirement by offering inadequate programs like ‘competitive cheer’ that simply don’t meet accepted standards for varsity sports, no matter how much athleticism they may entail.”

As we celebrate the anniversary of Title IX, we hope the appellate court will reaffirm educational institutions’ obligations to comply with Title IX’s mandate for gender equality in athletics, without gaming the system.

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CORRECTION: A correction was made for greater accuracy. The fourth paragraph originally read: "Quinnipiac then attempted Title IX compliance by designating a new sport of "competitive cheer" and triple-counting runners on the cross-country and indoor and outdoor track teams — who were required to compete on all three teams — even if they did not actually compete."

Today, the United States Court of Appeals for the Sixth Circuit hears oral argument in Davis v. Cintas, one of the first nationwide class action discrimination cases to be argued since the Supreme Court issued its decision in Wal-Mart Stores v. Dukes last June. The court will decide whether women around the country who applied to be sales representatives at Cintas — a company that rents uniforms and supplies to businesses — can bring a class action to challenge what they claim are Cintas’s discriminatory hiring practices.

The women point to the fact that more than 90 percent of the sales representatives hired during the years in question were men, as were more than 90 percent of the hiring managers. They also argue that managers at Cintas based their hiring on stereotypes — like evidence that the CEO acknowledged a “myth” at the company that women could not be sales representatives, and statements by managers that women could not handle the job and their husbands would not like them working mostly with men. But the trial court found that the women who were rejected for the position did not have enough in common to proceed as a class.

The stakes are high — not only for the thousands of women in the class, but for all workers who need to band together to use class actions to challenge discriminatory workplace practices. Under the rules governing class actions, a group of people challenging discrimination can be certified as a class if they have questions of law or fact in common. Class actions allow people whose individual cases might not be worth much to band together to challenge broad, systemic discriminatory practices. Class actions are especially important for challenging workplace discrimination, like the hiring discrimination in Cintas, because workers often point to a pattern of discriminatory decision making that might go undetected, or be hard to prove, in the context of an individual decision not to hire someone.

In Wal-Mart, women workers brought a class action claiming that Wal-Mart promoted men over women and paid men more, using subjective practices that allowed local managers to rely on gender stereotypes in making decisions — like the stereotype that men need larger salaries because they are working to support their families. The Supreme Court, however, held in a 5-4 decision that there was no evidence of a company-wide policy to discriminate, but only one that allowed managers to hire and promote based on their individual discretion. In the wake of the decision, the women of Wal-Mart continue to push their case in smaller lawsuits, but they were forced to divide and conquer.

Cintas is one the first cases to consider the effect of the Wal-Mart decision on women’s ability to challenge discriminatory practices as a group. The ACLU wrote an amicus brief, along with the ACLU of Michigan and the Impact Fund, arguing that a class action is often appropriate where employees are trying to show that discrimination was the company’s standard operating procedure. Without a way to band together as a class, women will bring fewer sex-based employment discrimination claims, and without the fear of legal repercussions, companies will continue to discriminate against women on the job.

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Today the Supreme Court heard oral argument in the most significant case about the Family and Medical Leave Act of 1993 (FMLA) and sex discrimination in employment since the landmark 2003 case Nevada Dep’t of Human Resources v. Hibbs. The case is Coleman v. Maryland Court of Appeals and, like Hibbs, it concerns the constitutionality of a provision of the FMLA, signed by President Clinton in his first act in office in 1993.

The FMLA contains a “self-care” provision that provides job security to eligible employees, including public sector workers, who may take 12 weeks of unpaid leave each year to recover from their own serious health conditions. The issue before the Supreme Court is whether state employees may sue their employers the same way employees of private companies can, if they are improperly denied FMLA leave to recover from an illness. Generally, states have heightened immunity from lawsuits, but the Constitution allows Congress to pass laws permitting suits against the government where necessary to protect constitutional rights — like the right to be free from sex discrimination. In Hibbs, the Supreme Court held that the family care provisions of the FMLA — which allow workers to take time off to care for a new baby or sick family member — are an appropriate congressional response to a long, sorry history of states engaging in unconstitutional sex discrimination by limiting women’s employment opportunities based on the stereotype that women should stay home and care for children, rather than engage in paid work.

At first blush, the issue of the validity of the FMLA’s self-care doesn’t appear to be about sex discrimination. Mr. Coleman sought to take leave to recover from his own serious medical condition. The history of the FMLA, however, reveals that the self-care provision was passed with the express purpose of providing job security for women who take unpaid leave to recover from childbirth. For example, the Senate report on the bill confirms that the self-care provision “would ensure that new mothers don’t lose their jobs when they temporarily cannot work due to pregnancy- and childbirth-related disability.” Congress passed the FMLA to address decades of discrimination by employers, including public employers, against pregnant workers. The ACLU and ACLU of Maryland joined an amicus brief explaining this history.

Maryland argues that the self-care provision has nothing to do with sex discrimination, and it points to the use of gender-neutral language in the law for support. But Congress made the provision gender-neutral to discourage employers from discriminating against women of childbearing age in hiring and promotion based on the assumption that they would get pregnant and use pregnancy leave.

So what’s at stake here? An unfavorable ruling would disproportionately affect women state employees. Women make up more than half of the public sector at the state and local level. It’s no secret that the recession has made job security even more important than before. In this environment, it is crucial that women workers know that if their employer violates their right to job security, they have recourse in the courts, whether the boss is a company or a state. The FMLA self-care provision is an important step toward eliminating sex discrimination — let’s keep moving forward, not taking steps back.

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