Appeals Court Sails Into Case of Women Tuna Boat Observers

Making a rare appearance in San Diego, the 9th U.S. Circuit Court of Appeals on Wednesday heard arguments in a controversial case involving the federal government’s efforts to force tuna boat operators to carry female observers aboard during fishing expeditions.

During a morning hearing before a packed courtroom, a three-justice panel listened intently to attorneys for the government and the tuna industry and sharply questioned each side about the sensitive issues at stake.

At the heart of the case is a new policy by the National Marine Fisheries Service that allows women to join the ranks of observers who ride tuna boats to monitor the number of porpoises killed by the fishermen, whose nets ensnare the mammals and prevent them from surfacing to breathe. The observers are assigned to gather scientific data and ensure that the fishermen do not exceed their annual quota of 20,500 porpoise kills a year.

The beleaguered tuna industry, buffeted by increased foreign competition and higher costs, has fought the placement of women on their boats, contending that their presence constitutes an invasion of privacy and would create conflict on the cramped vessels.

Career Advancement

But the U.S. attorney’s office maintains that the assignment is important for career advancement and that denying women access to the opportunity represents job discrimination. Attorneys for the government argue that the tuna boat operators have resisted the policy in a veiled attempt to prevent integration of the all-male environment that has typified the industry.

The question before 9th Circuit Justices Clifford J. Wallace, William Norris and David Thompson is whether a District Court judge erred earlier this year when he issued a preliminary injunction barring federal officials from requiring the boats to carry the women observers. In separate rulings in February and March, District Judge William Enright agreed with the tuna industry that the practice raises serious questions about the crew’s right to privacy.

At the time, Enright expressed concerns that there were no accommodations “for protecting the privacy and dignity of the crew” or the female observer and argued that requiring boat operators to make such accommodations might provide the coup de grace to an industry that is under pressure on other fronts.

On Tuesday, attorneys for the government said the industry’s resistance is based on a desire to preserve “a pristine male organization.”

“What this lawsuit is about is the recalcitrance of the tuna boat operators to adopt reasonable measures to accommodate female observers,” said Peter R. Steenland Jr., a Department of Justice attorney from Washington who argued the case for the government. He said the heart of the case centers not on a right to privacy issue but on the industry’s claim “that they are entitled by a matter of constitutional law to have an all-male workplace.”

Countering nightmarish scenarios presented by the tuna boat operators industry, Steenland said the experience of one San Diego woman who spent almost three months on a vessel recently proved an uneventful one, free of the harassment and other problems the boat captains had forecast. In a sworn affidavit, Wendy Townsend--who set sail before Enright barred the practice--said she had “a friendly working relationship” with the crew and that fishermen “wore a towel wrapped around them” when walking from their rooms to the bathroom.

“The boat didn’t sink,” Steenland said. “They caught all the fish they wanted to catch. The men didn’t run amok like sexual fiends.”

Countering the government’s position, attorneys representing the fishermen cited the rape of a woman who was stationed aboard a Korean fishing boat to illustrate the potentially explosive setting created by placing women among the crew.

Right to Privacy

More to the point, they also argued that the crews are entitled to a right to privacy similar to that previously granted in cases involving prisoners forced to shower nude in front of female guards.

“There is simply no way to divide the home life from the work situation on the vessel,” attorney Keith Zakarin said. “Whether (the woman) is quartered in a private room or not, she is going to be on deck and the fishermen are still going to be changing on the deck and urinating off the side. That’s the way a tuna boat operates.”

In written briefs, Zakarin also argued that placing women on board will anger captains and other crew members, who may quit and further damage the economic health of the local tuna fishing industry.

Although they asked pointed questions of each side, at least one justice appeared to be unconvinced by the fishermen’s arguments. Justice Norris, addressing Zakarin, at one point likened the tuna industry’s argument to that of all-white businesses attempting to bar black employees in a bygone era.

“It sounds a little deja vu of the argument that the workplace should remain all white because of antagonisms that white employees would feel toward blacks, doesn’t it, counsel?” Norris said.

A written decision in the case, which is being watched widely and considered to have strong precedental value, is expected from the court within the coming weeks. The American Civil Liberties Union has filed a brief supporting the government’s position in the case.