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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.
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