|
The Court held that, while the search of the student's backpack
and outer garments did not
violate her Fourth
Amendment rights against
unreasonable
searches, the strip search did because the school lacked
reasons to suspect either that the drugs presented a danger or
that
they were concealed in an intimate place. The Court
affirmed that school searches merely require "reasonable
suspicion" for them to be constitutional
under the Fourth Amendment. However, the Court held
that a strip search such as this must be supported
by more than another student’s accusation.
PRACTICAL
TIP:
Keep in mind that any search as actually conducted
must be reasonably related in scope to the circumstances
which justified the interference in the first place, i.e.,
the search should not be excessively intrusive in light
of the age and sex of the student, the nature of the infraction,
including the extent of danger of the contraband in question,
and the strength of the reasoning the contraband would be
hidden in an intimate place.
Employment
Law
How
to Make a Bad Situation Worse
A jury in California
has awarded $18.4 million to a male Vons Grocery Store employee
for his claims of harassment and retaliation. The
award was reduced on appeal to $2.4 million. In Stevens
v. Vons, 2009 Cal.App. Unpub. LEXIS 1306, the employee
filed a complaint claiming that his female manager had been
making sexually harassing comments to him and to others
concerning him. After the employee complained to a
supervisor, the manager allegedly began telling others in
the work place that the plaintiff was calling her at home
and described him as a “pervert.”
The plaintiff then went to the HR department advising of
the manager’s retaliatory conduct and also told HR
that he had been gathering evidence and conducting his own
investigation of his claim.
The HR department investigated the plaintiff’s complaint
and confirmed by way of interviews that the manager had
in fact made inappropriate remarks in the workplace about
the plaintiff, as well as sexually inappropriate comments
concerning others.
At this point you may be wondering, so what’s the
problem? Well, the HR department concluded that the
plaintiff’s allegations against his manager were “unsubstantiated”
(problem #1) and recommended that they both be transferred.
HR also criticized the plaintiff for conducting his own
investigation (problem #2). Ultimately, the plaintiff
was transferred but the supervisor was not (problem #3),
and the supervisor was never disciplined (problem #4).
Shortly after his transfer, the plaintiff was fired (problem
# 5).
We wonder whether anyone in charge took a step back and
looked at the big picture. Since witnesses confirmed
that the supervisor had made sexually inappropriate remarks,
not only to the plaintiff but to others, at minimum the
supervisor should have been disciplined. Moreover,
if anyone should have been transferred it should have been
the supervisor and not the victim of the inappropriate conduct.
Not only is this bad policy, but it can be considered retaliation
for having made the complaint in the first place.
What should be learned here? First, don’t ever
discipline or modify the working conditions of an employee
who files or makes a complaint. Second, do not in
any way, shape or form, tolerate a supervisor’s sexually
inappropriate comments. Third, don’t take actions
which could be viewed as discouraging employees from asserting
their rights in the work place.
Family
Responsibility Discrimination - Do You Know What It Is?
The
federal Equal Employment Opportunity Commission (EEOC) has
issued a list of practices that employers should implement
in order to avoid family responsibility discrimination, “FRD”
for short. You can find this information at www.eeoc.gov/policy/docs/caregiverbest-practices.html#1.
FRD is not yet recognized as a separate category, although
it is likely it will be at some point in the near future.
It is instead a subset of other forms of sexual discrimination.
In particular, it is discrimination in which an employee is
treated differently, and worse, because of his or her responsibilities
to care for children, parents or other relatives.
For example, not providing male employees with the same leave
benefits given to female employees with children can be considered
family responsibility discrimination, as can terminating or
laying off a female employee after being advised that she
is pregnant. Other examples would be limiting modified
work schedules to male employees and denying them to female
employees, asking female job applicants about their child
bearing plans but not asking the same of male employees, or
not hiring or promoting women who plan to have children.
PRACTICAL
TIP:
It is important to train your supervisors and managers
to not ASSUME. Do not assume that caregiving responsibilities
of a female employee will interfere with her ability to perform
her job functions. Do not assume that your male employees
do not have caregiving responsibilities. Do not assume
that female employees would prefer to spend time at home with
their families rather than at work. Resignation
Due to Anticipated Termination Is Not a "Constructive Termination"
and Did Not Deprive Employee of Due Process.
In
Knappenberger v. City of Phoenix, the Plaintiff
was being investigated for allegations of sexual misconduct
by his employer, the Phoenix Police Department. He decided
to retire when he learned that, if the police department
terminated him, he would lose his lifetime health insurance
coverage but if he retired early he could retain the same
benefits. After retiring, he filed a 42 U.S.C.
§1983 claim, alleging that his employer
unconstitutionally deprived him of property and liberty
interests without due process of the law. The Court of Appeal
held that the Plaintiff failed to show his retirement was
either the result of intolerable and discriminatory working
conditions or the result of coercive intent (i.e. "constructive
termination"). The court reasoned that the Plaintiff only
anticipated he would be terminated but his employer never
requested his resignation or retirement, or pressured him
into a decision to retire.
PRACTICAL
TIP: lt
is important during an investigation of employee misconduct
to insure that nothing suggests that pressure or coercion
is being used to push an employee to retire or separate.
Where
Employer Lacked Knoweldge of Disability, No Liability for
Disability Discrimination.
An
HIV-positive former instructor at the Art Institute
of California (AIC) had his employment reduced from full-time
to part-time and consequently brought a claim for discrimination
under the California Fair Employment and Housing Act (FEHA).
The court granted summary judgment because the evidence
failed to show the adverse employment decision was for false
or pretexual reasons, and there was no causal link between
his HIV positive status and the adverse employment decision.
Plaintiff’s employment was decreased after he failed
to attain a graduate degree in accordance with accreditation
requirements for upper division course instructors.
PRACTICAL
TIP: Although employers cannot ignore an employee's
apparent disability even if no specific claim is being made
for accomodation, an employer can still defend an adverse
employment action if the employer had no knowledge of the
disability at that time.
Public
Entities
A
Public Entity's Computer Policy May Create a Reasonable
Expectation of Privacy.
A
school district's computer policy may increase an employee’s
expectation of privacy when the policy provides that individual
searches of computer records are limited to certain situations.
Brown-Crisculo v. Wolfe involved a
superintendent reviewing a principal’s email while
she was out of town, and forwarding to the superintendant's
personal email accout a message that the principal
wrote to her attorney concerning work-related problems.
The Plaintiff filed a Fourth Amendment claim and the court
held that it was an issue for the jury to decide whether
the superintendant’s search of the principal’s
email files violated her privacy rights. The court
found that Fourth Amendment claims involving a public employer
depend on the employees’ reasonable expectation of
privacy.
The
court considered the following factors: (1) Does the
employer maintain a policy banning personal or other objectionable
use; (2) Does the employer monitor the use of the employee’s
computer or email; (3) Do third parties have a right of
access to the computer or emails; and (4) Did the employer
notify the employee, or was the employee aware, of the computer
use and monitoring polices? Here, the court determined that
it was not the duty of the superintendant to monitor the
computer system, and there was no evidence to suggest the
search took place because there was a reasonable suspicion
the principal had violated the computer policy.
PRACTICAL
TIP: Generally,
there is a limited expectation of privacy in the use of
an employee's business computer. However, that expectation
can be legitimately increased by an employer's own policy
statements that describe the circumstances under which an
employee's email can be accessed by the employer.
|
