Employee Rights Short Takes: Supreme Court Hears Equal Protection Case, Firing For Facebook Posts May Be Illegal & More

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict. 

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns....

 The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about  the new rules and how to lawfully comply with them read here.

Continue Reading...

Employee Rights Short Takes: Hostile Work Environment, GINA, FMLA And More

Here are a few Short Takes worth sharing:

Sex Bias Case Ends With Huge Punitive Damages Award

The drug maker Novartis was hit with $250 million in punitive damages last week because of discrimination against thousands of female sales representatives. Issues involved discrimination in pay, promotion and pregnancy. The punitive damages award represented 2.6 of the company’s 2009 $9.5 billion revenue. Earlier in the week, the jury awarded $3.3 million dollars in compensatory damages to 12 of the women who testified. The case is reported to be the largest discrimination verdict ever.  

Genetics Discrimination

Complaints were filed against MX Energy, a Connecticut natural gas retailer, under Title II of  Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment. The new federal law took effect on November 21, 2009.

GINA prohibits discrimination against employees or applicants because of genetic information. GINA also restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The charging party Pamela Fink, claims that her employer fired her, despite years of glowing evaluations, after learning she tested positive for the breast cancer gene. Fink filed complaints against her employer with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission. About 90 GINA-related complaints have been filed nationwide since the law went into effect. This should be an interesting case to follow. For more about genetic discrimination, read here.

Rights Of Undocumented Workers

With all the talk about illegal immigration, one might wonder what the rights are of the over eight million undocumented workers in this country. Carolina Nunez, a law professor at Brigham Young University's Reuben Clark Law School, wrote an interesting article about the topic which you can read here.  The piece appeared in the Spring 2010 issue  of the Clark Memorandum, a publication of BYU's J. Reuben Clark Law School.

Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? It is no surprise that the answers are less than clear.

Recent Cases Of Interest From The Circuits

Plaintiff Wins FMLA Appeal: In Goelzer v. Sheboygan County, Wisconsin  Dorothy Goelzer was fired from her administrative job with the county government after 20 years. Her supervisor told her about the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act.

Goelzer had taken a significant amount of authorized FMLA during the four preceding years to deal with her own health issues as well as those of her husband and mother. The defendants claimed she was fired because they wanted to hire someone with a “greater skill set.” The district court granted judgment against Goelzer.

The Seventh Circuit Court of Appeals reversed this month stating that comments suggesting frustration with her use of leave, Goelzer’s favorable performance reviews, and the timing of her termination could lead a jury to conclude that Goelzer was fired because she exercised her right to take FMLA. This is a very good case for those who are claiming an interference or retaliation claim under the FMLA.

Employers Liable For Third Party Harassment: In Beckford v. Department of Corrections, Melanie Beckford, and thirteen other female employees, claimed that the Florida Department of Corrections failed to remedy the sexually offensive conduct of inmates  -- including the frequent use of gender-specific abusive language and pervasive gunning, the notorious practice of inmates openly masturbating toward female staff. The jury found in favor the plaintiffs and awarded each $45,000 in damages.

The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said:

It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.

Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.

images: www.hivplusmag.com      charityrisk.squarespace.com

Pope Speaks Out on Genetic Discrimination

An article by the Associated Press  about Pope Benedict XVI's remarks on Saturday regarding the danger of genetic discrimination has generated a good deal of comment. What is genetic discrimination?

In sum, there are now more than 1,000 genetic tests for various disorders. These tests assess risk for illness ranging from prenatal tests for Down syndrome and birth defects to tests given to individuals with a family history of colon cancer, ovarian cancer and Huntington's disease to name a few. The medical community  strongly advocates the use of testing to help prevent disease and illness. Genetic discrimination refers to adverse decisions which are made as a result of those test results.

According to the Associated Press, Pope Benedict XVI said Saturday that any type of discrimination based on genetic factors,  such as a risk for cancer or other ailments, is an attack against all of humanity:

One's biological, psychological and cultural development and health can never become an element for discrimination.

The article went on to point out that the Pope's comments  were made in reference to to a screening mechanism for embryos created for testing prior to in-vitro fertilization. It comes as no surprise that the Vatican is strongly opposed to the practice.

The issues surrounding genetic discrimination however are far broader particularly as they relate to employment. I did a television interview about this topic last spring. Here's the problem.

Continue Reading...