Holding that the rights of women to equal employment were never considered, the U.S. 9th Circuit Court of Appeals on Thursday overturned a San Diego federal court's ban on women government observers on tuna-fishing boats.
The ban came in the form of preliminary injunctions granted in February and March, 1987, by U.S. District Judge William B. Enright, who upheld arguments by the tuna industry that allowing women observers on the boats would constitute an invasion of privacy for all-male crew members who go to the bathroom and change clothes in front of each other while on board.
But the 9th Circuit in San Francisco overturned that injunction, claiming Enright committed a "reversible error" by failing to balance the tuna industry's assertions against the rights of the government and the public to guarantee equal employment opportunities for women.
"This omission fatally undermines the district court's conclusion that the balance of hardships tips decidedly in favor of the owners and crew," the appellate decision reads.
Although declining to rule on the constitutionality of the industry's arguments, the appellate judges observed that tuna operators never proved to Enright that having a woman on board would be so disruptive to the fishing operations that they would suffer "irreparable" economic harm, a condition for granting such an injunction.
They felt the same way about industry arguments that tuna-boat operators were risking a criminal liability because the woman observers could sue if male crew members sexually assaulted or harassed them during fishing expeditions, which sometimes last up to three months.
"The owners offered no evidence that female observers would interfere with fishing operations on their vessels," the opinion reads. "Instead, the owners simply stated that their employees would respond negatively to a female observer and that this subjective response might cost the owners money."
Asst. U.S. Atty. Karen M. Shichman said Thursday's ruling effectively restores the government's "legal authority to place women on the vessels."
How soon that will happen, she added, is now up to the National Marine Fisheries Services, the federal agency in charge of placing the observers under the Marine Mammal Protection Act.
But Keith Zakarin, an attorney for Caroline M. Corp., a tuna-boat operator involved in the San Diego case, characterized the appellate court's decision as a narrow technical ruling that constituted only a "minor setback" in the industry's legal campaign to keep women observers off the boats.
Zakarin predicted that the industry's arguments about invasion of privacy will prevail when the case moves to full trial. Otherwise, he warned, local tuna boats will go to sea under foreign flags to get around carrying the women observers.
"The government's actions are short-sighted here," Zakarin said. "It is going to drive these vessels into taking up foreign flags, under which they will not have to take on an observer at all."
The San Diego court fight ignited after the federal government decided in 1986 to admit women to the ranks of observers who ride along with tuna crews to collect scientific data and count the number of porpoises that are inadvertently killed in the purse seiner nets.
The nets trap the mammals along with the tuna and prevent them from surfacing to breathe. The federal government has limited the tuna industry to killing 20,500 porpoises a year.
In the past, male government observers have been lodged in the cramped bunk quarters with the all-male crew. Permitting women to join the ranks would mean they could witness the intimate bodily functions of crew members who share bunk rooms and common toilets, as well as urinate over the side of the boats and shower on deck, the industry has argued.
Such a disruption could further harm an industry that's on the financial ropes, tuna operators assert. And it could invite criminal liability if crew members--out at sea for as many as 100 days--sexually harassed a woman observer, the industry has argued.
The federal government, however, claims that the presence of women observers is a mere inconvenience for the tuna industry. Keeping women from serving as observers would amount to job discrimination, the government has argued.
So far, two women observers have been allowed on San Diego tuna boats. Both trips were conducted without incident, said Shichman, who argued on behalf of the women observers before Enright.
But two San Diego companies filed suit in federal court after they were informed they would be required to take on women observers.
Caribbean Marine Services was informed in December, 1986, that it would take on a woman observer on the Mariner and several other tuna seiners owned by the company; the Caroline M. Corp. was told in January, 1987, that it would have a woman observer on its vessel, the Apure.
Caribbean Marine won the February, 1987, injunction and the Caroline M. Corp. won the March, 1987, injunction from Enright.
A spokesman for the American Tunaboat Assn. said Thursday that 34 tuna boats based in San Diego could be affected by the appellate court's ruling.