Employee Rights Short Takes: Sexual Harassment, Medical Marijuana & More

Here are a few employee rights Short Takes worth noting:

Will Record Of Discrimination Block Bid For Baseball Team ?

The New York Times ran an interesting story  about Jim Crane, and a potential wrinkle in his efforts to buy the Houston Astros.  Crane, a former college pitcher, runs a Texas freight company called Eagle Global Logistics. In 2000, the EEOC investigated Eagle and found that Eagle failed to promote blacks, Hispanics and women in to managerial positions, It also found that Eagle demoted women from managerial positions, maintained a hostile workplace, paid blacks, Hispanics and women less than male and white counterparts, and shredded important documents.

The EEOC report included other serious findings of civil rights violations. It stated that Crane told his managers not to hire blacks because “once you hire blacks, you can never fire them.” Witnesses also said that Crane did not permit Eagle to advertise job openings because he did not want to build up files of applications by qualified job-seekers.

Needless to say these findings expose an abysmal civil rights record -- so the New York Times posed the question – will the EEOC findings hamper Crane’s bid for the Astros in light of baseball’s troubled history of race discrimination? 

According to the Times, baseball’s commissioner Bud Selig called Crane “unaprovable” when Crane tried to buy the Dallas Mavericks last August.

Not so, according to MSNBC   on Tuesday which reported that the deal is full steam ahead.  For more, read here. and here.  It will be interesting to see if the NAACP chimes in again.

Whopping $10.6 Sexual Harassment Verdict Against UBS

UBS Financial Services was hit  with a jury verdict of almost $10.6 million in a case brought by a former sales assistant who said she was sexually harassed by a supervisor in Missouri and then fired for complaining about it.

Carla Ingraham, who worked in UBS’s Kansas City office, claimed that the company began investigating her after she complained of sexual harassment in December of 2008. The investigation culminated in her discharge in July of 2009.

The jury awarded  Ingraham $10 million in punitive damages, $350,000 for sexual harassment, and $242,000 for retaliation. The punitive damages will be capped at five times the final judgment.

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment and retaliation for complaining about it.

ACLU Appeals Medical Marijuana Case on Behalf Of Wal-Mart Cancer Victim

I ran across this interesting ACLU case about a Wal-Mart cancer victim fired for using medical marijuana. The case was brought on behalf of Joseph Casias who suffered for more than a decade with sinus cancer and a brain tumor in the back of his head  --  a source of constant pain. After Michigan voters passed the Michigan Marihuana Act, his oncologist recommended he try marijuana as a way to cope with his symptoms. The marijuana dramatically reduced his symptoms and caused “according to reports by the ACLU.  

Wal-Mart fired Casias, a manager and 10 year employee,  when he tested positive for marijuana. He sued, but in February, 2011, his case was dismissed by a U.S. District Judge who ruled that Michigan’s law only protects patients from arrest, but fails to regulate private companies’ drug policies.

The ACLU appealed. In its brief filed in late April with the United States Court of Appeals for the Sixth Circuit, the ACLU argued that its case should be reinstated, both because the case belonged in Michigan state court where the ACLU originally filed it, and because the lower court ignored the text of the state’s medical marijuana law prohibiting companies like Wal-Mart from firing patients like Casias who use marijuana in accordance with state law.

This certainly will be an important case to follow on this cutting edge issue. Casias, was named Associate of the Year at Wal-Mart in 2008, and is one of roughly 20,000 legal medical marijuana patients in Michigan. Sixteen states have medical marijuana laws so the rights of millions of employees are in play. For more, read here.

images: www.glogster.com/media  michiganmessenger.com

Odd Bedfellows Agree on Dumping "Conscience Rule"

It's rare that you see the Society for Human Resource Managers ("SHRM") and the ACLU on the same side of an issue -- but that's what's going on with their opposition to the federal regulation called the "conscience rule."

The "conscience rule,"  enforced by the Department of Health and Human Services, is the most  recent and thankfully one of  the last vestiges of the fundamentalist appeasing Bush Administration.

The regulation prohibits employment discrimination against health care workers who refuse certain services based on "religious beliefs" or  "moral objections"  -- such as providing abortions or birth control.

The final rule, entitled Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, was published in the Federal Register on December 19, 2008.

The Department of Health and Human Service served notice a couple of weeks ago that it intends to rescind the regulation which went into effect on January 20th, the day President Obama took office.

There were many opponents of  the regulation when it was proposed last fall as reported in a recent article in the New York Times about Obama's plan "to undo the rule," The American Medical Association and Planned Parenthood, for example, said the rule could void state laws requiring insurance plans to cover contraceptives and requiring hospitals to offer emergency contraception to rape victims. It could also allow drugstore employees to refuse to fill prescriptions for contraceptives.

According to the  same New York Times  article  several states have filed legal challenges against the December 19th regulation:

Attorney General Richard Blumentahal of Connecticut sued in federal court on behalf of his state and several others. He issued a statement at the end of February  saying that his suit will continue until the rule 'is finally stopped.'

The American College of Gynecologists and Obstetricians made this announcement when the rule when it went into effect:

Today's regulation issued by the Department of Health and Human Services (HHS), under the guise of 'protecting' the conscience of health care providers, is yet another reminder of the outgoing administration's implicit contempt for women's right to accurate and complete reproductive health information and legal medical procedures.

In addition to concerns for women's health, opponents of the regulation correctly point out that  the Civil Rights Act of 1964 already offers broad protection against discrimination based on religion. Title VII requires that an employer must make reasonable accommodations for an employee’s religious practices and beliefs.

Both the ACLU and SHRM (the Society for Human Resource Management) filed comments  in September with the Health and Human Services Department  in opposition to the regulation which raised these issues (among others):    As stated by SHRM:

The proposed rule makes no reference to Title VII of the Civil Rights Act of 1964 ... which prohibits employment discrimination on the basis of religious beliefs and requires employers to reasonably accommodate employees' religious beliefs unless doing so would cause the employer undue hardship. SHRM is concerned that this proposed regulation will create unnecessary confusion and conflict with current religious protections.  

The New York ACLU made the same point: 

The primary problem is the failure to define discrimination or to explain how the regulation interacts with existing laws protecting employees from discrimination on the basis of religion . . Title VII prohibits religious discrimination in employment and requires employers to attempt to accommodate employees religious beliefs. 

However, it also requires a careful evaluation of whether the accommodation proposed is reasonable and whether granting such an accommodation would cause "undue hardship" to the employer. 

Without any guidance as to how this prohibition interacts with current legal understandings of the rights and obligations of employers with respect to employees religious objections, employers across the health care system may feel constrained to accommodate employees religious objections at any cost.

It looks like just about everyone except George Bush, John Boehner and friends, and the Catholic Church think this regulation is either improper, unnecessary, illegal, dangerous, or all of the above.

The bottom line is that the so called "conscience rule" is inconsistent  with long standing federal laws we have in place which prohibit religious discrimination in the workplace.  It  creates anxiety, confusion and uncertainty  for employers.  More important, the regulation places the health and safety of women at risk.

It's also quite obvious that any government regulation which attempts to impose morality and religion is a bad idea, un-American,  and needs to go.

Image: orgs.uww.edu/shrm

Image: webspace.utexas.edu