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Legal Report February 2008


The U.S. Supreme Court has agreed to consider dozens of cases in its 2007-2008 session. However, it declined to hear more than 2,500 of those submitted. This means that cases not granted review by the Court remain unchanged. Some of the cases the Court rejected have implications for security professionals and managers in general. Following are a few of these decisions on topics including the ADA, hostile workplace, campus safety, and retaliation.

ADA. A federal appeals court ruled that a company violated the Americans with Disabilities Act (ADA) when it refused to let an employee return to work after he had a seizure.

Edwin Taylor was employed as a truck driver and dock worker for USF-Red Star Express, Inc., when he suffered two seizures in March 2001. Over the course of 18 months, Taylor saw various doctors and was told that he had epilepsy. Some of these doctors cleared Taylor to continue working and driving, while others felt he would be a danger to his coworkers if he operated heavy machinery. Taylor asked to be reassigned to accommodate his epilepsy. His supervisor would not allow Taylor to return to work until he had been cleared by his doctors.

In October 2002, doctors referred Taylor to an epilepsy center. Specialists there determined that Taylor did not have epilepsy after all and cleared him to return to work, which he did.

In 2003, Taylor filed a lawsuit against the company, claiming that his return to work had been delayed because his employer considered him disabled without accommodating the disability in violation of the ADA. The company argued that it was Taylor who insisted he was disabled when he was not. A trial court agreed with Taylor and awarded him $160,000 in back pay and $290,000 in attorney’s fees.

The appeals court upheld the trial verdict, ruling that the company had acted as if Taylor was disabled yet failed to accommodate that disability. The fact that the diagnosis was in error did not matter. (Taylor v. USF-Red Star Express, Inc., U.S. Court of Appeals for the Third Circuit, No. 05-2063, 2006)

HOSTILE WORKPLACE. A woman who sued her employer for allowing a hostile workplace cannot pursue her claim based on two separate incidents where she accidentally saw pornography that her male coworkers were viewing on company computers. However, the court ruled that she could pursue a claim based on the overall environment in which women were continually denigrated, called names, and placed in sexual situations.

The two instances where Carol Isaacs saw her coworkers looking at pornography were not sufficient to support a claim of a hostile work environment. However, Isaacs repeatedly complained to her supervisors about the treatment she received at the hands of her male coworkers. Isaacs was subjected to repeated sexual comments in person and over the loudspeaker. When Isaacs complained, she was told to “get over it.”

After filing repeated complaints, Isaacs was subjected to retaliation. Her car was vandalized, and another employee ran into her with a forklift and then told her to “see what could happen” to her if she continued complaining.

The court argued that far from being a case about glimpsed pornography, the lawsuit was a clear case of harassment. In the written opinion of the case, the court noted that: “Doing nothing after receiving multiple complaints about serious conditions is a straight road to liability.” (Isaacs v. Hill’s Pet Nutrition, Inc., U.S. Court of Appeals for the Seventh Circuit, No. 06-2201, 2007)

CAMPUS SAFETY. A federal appeals court has ruled that a university cannot be held liable for an accident that killed 12 students and injured 27 others. The school, ruled the court, is protected from such lawsuits by qualified immunity—a legal theory that prevents government officials from being sued except in cases where a person’s constitutional rights are knowingly violated.

In November 1999, a bonfire collapsed at Texas A&M University in College Station, Texas. The families of those killed sued the school, claiming that the university should be liable for the deaths because it allowed unqualified students to build the bonfire without adequate supervision from school officials. The families argued that this created a dangerous environment and that the school was deliberately indifferent to the safety of the students.

The court held that the school was protected under the theory of qualified immunity because it did not knowingly violate the constitutional protection against infliction of bodily harm. In the written opinion of the case, the court noted that “while it is clear that individuals have a substantive due process right to be free from state-occasioned bodily harm, it is equally clear that the Constitution does not, as a general matter, impose upon state officials a duty of care to protect individuals from any and all private harms.”

The court noted that it did recognize the theory of “state-created danger” under which a government entity could be held liable for creating a dangerous situation even if it does not violate the constitutional rights of individuals. However, the ruling validating the theory was handed down after the bonfire incident so the defendants in this case could not use that theory against the university. (Breen v. Texas A&M University, U.S. Court of Appeals for the Fifth Circuit, 2007)

RETALIATION. A woman who was fired after giving negative information about a coworker during an internal investigation cannot pursue a sexual harassment retaliation claim against her employer. According to a federal court, the woman has no grounds to sue since she was only a participant in the investigation, not the party that requested the investigation.

In May 2002, an employee with the city of Nashville, Tennessee, filed a sexual harassment claim against her boss, Gene Hughes. Because Hughes was the director of employee relations and would usually handle sexual harassment investigations, the issue was turned over to the city’s legal department. As part of the investigation, the city called Vicky Crawford, who had worked with Hughes for several years, for an interview.

Crawford told investigators that Hughes had sexually harassed her and other employees. Two other employees also claimed that Hughes had harassed them. The investigators found that Hughes had harassed his employees but did not take any disciplinary action against him. Instead, the city mandated sexual harassment training and education for the entire staff.

After the sexual harassment investigation was complete, the city launched investigations of the three people who claimed that Hughes had harassed them. All three were fired. Crawford was terminated in January 2003 after 30 years of service. She was accused of embezzlement and drug use, charges which were later found to be false.

Crawford filed a retaliation suit against the city, claiming that she was fired in retaliation for her role in the sexual harassment investigation. The city requested summary judgment—a hearing based on the facts of a case, without a trial—arguing that Crawford did not bring the harassment charges. The court granted the summary judgment.

On appeal, a federal court upheld the ruling. The court noted that employees involved in internal investigations into wrongdoing are protected from adverse employment actions if they oppose that wrongdoing. The court found that Crawford did not bring a sexual harassment claim against Hughes nor did she pursue the matter during or after the investigation. (Crawford v. Nashville, U.S. Court of Appeals for the Sixth Circuit, 2006)


CYBERCRIME. A bill (S. 2168) introduced by Sen. Patrick Leahy (D-VT) that would increase penalties for identity theft and fraud has been approved by the Senate. The House of Representatives has not announced whether it will take up the measure.

The bill would allow consumers to sue identity thieves and recover damages based on the time and money spent recovering from the theft. The measure would also make it a felony to use spyware or keyloggers to damage ten or more computers regardless of the amount of damage caused by the hacker.

Under existing law, losses from a cybercrime incident must exceed $5,000 to be a crime. S. 2168 would change the law so that such crimes are prosecuted as misdemeanors. The definition of cybercrime would also be expanded to include demanding money to prevent damage to a protected computer.

IMMIGRATION. A bill (H.R. 4201) introduced by Rep. Charlie Dent (R-PA) would require that state and local law enforcement agencies determine the immigration status of anyone arrested for a felony. If the accused is in the country illegally, he or she would be detained without the possibility of bail and would undergo federal deportation proceedings.

The bill is an attempt to end the policies of so-called “sanctuary cities,” where law enforcement officials do not check the immigration status of those detained by the police. These policies arose as law enforcement attempted to gain intelligence from immigrant communities already wary of police. (For more information, “Are Cities Sapping Immigration Laws?” September 2007)

H.R. 4201 has 23 cosponsors and has been referred to the House Judiciary Committee.



DATA SECURITY. A new Arizona law (formerly S.B. 1042) amends existing data security statutes to include breaches of data maintained by law enforcement agencies. Prior to S.B. 1042, which requires that businesses in the state conduct an investigation after a breach of data security and notify those customers affected by the incident, law enforcement agencies were exempt. Under the new law, the state department of public safety, county sheriff’s offices, and municipal police departments must develop notification procedures in case of a data breach.


SCHOOL SAFETY. A new Arkansas law (formerly H.B. 1041) requires that courts notify school districts when a student has been ordered to stay away from another student. Schools will also be notified when such restrictions are lifted.

The school must keep the information confidential and may not disclose it to institutions of higher learning. Similarly, schools are prohibited from giving the information to the student’s past, present, or future employers. When the student is no longer in the school district, the records must be destroyed.

This column should not be construed as legal or legislative advice.