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Legal Report June 2008


DISCRIMINATION. The U.S. Supreme Court has ruled that the admissibility of testimony given by those in a situation similar to that of the plaintiff, also known as “me-too evidence,” must be decided on a case-by-case basis. In the lawsuit at issue, a woman suing her employer for age discrimination sought to bring in other employees who also felt the company had discriminated against them.

Ellen Mendelsohn began working for Sprint in its business development group in 1989. In 2002, when Mendelsohn was 51, she was fired as part of a companywide downsizing. She sued Sprint, claiming that the company had discriminated against her because of her age.

As part of her lawsuit, Mendelsohn requested that other employees, all of whom also felt they had been discriminated against, be allowed to testify on her behalf.

The other employees claimed to have heard company supervisors make disparaging comments about older workers and to have seen spreadsheets suggesting that managers had considered age when laying off employees. They also said that they had been counseled by senior managers to get permission before hiring anyone over the age of 40. None of the proposed witnesses worked in the same division as Mendelsohn or worked for the supervisors named in the suit.

Sprint requested that the witnesses be barred from providing testimony in the case. The company argued that such testimony would only be relevant if the other employees worked in the same department, had the same supervisors as Mendelsohn, and could offer evidence related specifically to her suit. A district court agreed with Sprint, ruling that the employees would not be allowed to provide their me-too testimony. Mendelsohn appealed the decision.

The U.S. Court of Appeals for the Tenth Circuit overturned the ruling, finding that the witness testimony would be relevant in a discrimination case. The court noted that if the case centered on a single discriminatory incident, the witnesses should be barred. But Mendelsohn was attempting to prove that her firing was based on a companywide policy of discrimination. Thus, evidence of discrimination across the company was pertinent to Mendelsohn’s case. Sprint appealed the decision.

The U.S. Supreme Court found that the appeals court had ruled on the general admissibility of me-too evidence while the district court ruling was based on the facts of the case. The Court determined that the district court’s approach was correct. In the written opinion of the case, the Court noted that “the question of whether evidence of discrimination by other supervisors is relevant in an individual [age discrimination] case is fact-based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case…[and] also requires a fact-intensive, context-specific inquiry. ” (Sprint v. Mendelsohn, U.S. Supreme Court, No. 06-1221, 2008)

DRUG TESTING. A federal appeals court has ruled that a city’s drug testing policy is unconstitutional as applied to a library worker. The court determined that the city failed to make its case that it had a sound reason to conduct a suspicionless, preemployment drug test on the applicant. In February 2004, Janet Lanier applied for a position as a page at the Woodburn Public Library in Woodburn, Oregon. As a page, Lanier’s responsibilities would have included gathering books from the book drop and shelving them, as well as staffing the information desk in the youth services area of the library.

Lanier was offered the position contingent upon the completion of a background check and drug and alcohol screening. The City of Woodburn had implemented the policy in 2002 to deter the use of drugs and alcohol by city workers. The policy also included a more “extensive” background check for employees in sensitive security positions. The page positions were included in this category because pages supervised juveniles while staffing the information desk in the youth services section.

Though Lanier wanted to accept the position, she refused to submit to the drug and alcohol test. Woodburn retracted its offer of employment. Lanier sued the city, arguing that its suspicionless drug testing policy was unconstitutional because it violated her Fourth Amendment rights to be free of unreasonable search and seizure.

The U.S. District Court for the District of Oregon found in favor of Lanier, ruling that the city’s policy was unconstitutional because it was not supported by any need that outweighed an employee’s reasonable expectation of privacy. The city appealed the decision.

The appeals court ruled that, while the entire drug-testing policy was not unconstitutional—for example, to the extent that it did apply to some employees, such as school teachers, who had direct supervision over children—it was unconstitutional as applied to Lanier. The court found that the library had employed only one worker with a drug problem over the previous 23 years. Further, in the written opinion of the case, the court noted “the City has an obvious interest in protecting children, yet the link that Woodburn identifies between that interest and a position as a part-time library page is tenuous at best.” (Lanier v. City of Woodburn, U.S. Court of Appeals for the Ninth Circuit, No. 06-35262, 2008)


BORDER SECURITY. A bill (H.R. 3916) introduced by Rep. Ralph Hall (R-TX) that would encourage the development of new border security technology—especially with regard to unmanned aerial vehicles, tunnel detection, and anticounterfeiting programs—has been approved by the House Homeland Security Committee. The House of Representatives must take up the measure for it to proceed.

Under the bill, the Department of Homeland Security (DHS) would be required to spell out the requirements, expected use, and operational concept of any new border or maritime security technology. The measure would also require that the National Research Council conduct an assessment of the basic needs in border and maritime security.

INTELLECTUAL PROPERTY. A bill (H.R. 4279) introduced by Rep. John Conyers (D-MI) that would increase penalties for theft of intellectual property has been approved by the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property. The measure will now be taken up by the full committee, which Conyers chairs.

The bill would enhance criminal penalties for dealing in counterfeit labels or packaging. It would also enhance penalties for causing serious bodily harm or death while dealing in counterfeit goods or services.

In addition, the bill would require that courts seal records in lawsuits concerning intellectual property theft to encourage more companies to report such incidents. The measure would require that grant programs to fund studies of computer crime include copyright infringement conducted over the Internet.

DISCRIMINATION. A bill (H.R. 1424) designed to require insurance companies to provide more comprehensive mental health coverage includes a provision that would make it illegal for insurance providers to discriminate based on genetic information. The bill has been approved by the House of Representatives. The Senate has agreed to consider the measure.

Similar to another bill (H.R. 493) pending in the Senate, H.R. 1424 would make it illegal to request or require genetic testing either as a prerequisite for enrollment in an insurance plan or as the basis for setting premiums. The bill would also extend medical privacy and confidentiality rules to include disclosure of genetic information.

HOMELAND SECURITY. A bill (H.R. 5552) introduced by Rep. Gabrielle Giffords (D-AZ) would require DHS to issue reports to Congress on its efforts to improve homeland security by tightening U.S. borders.

The bill would require that DHS set out all of its directives, programs, and strategies and then provide detailed information on the status of those projects. Reports would also be required on the apprehension, detention, and deportation rates of those captured attempting to infiltrate the United States at the border. Another report would assess training programs for all personnel working in border protection. H.R. 5552 has 20 cosponsors and has been referred to the House Homeland Security Committee.

IDENTITY THEFT. A bill (H.R. 5405) introduced by Rep. Mark Kirk (R-IL) would require that Social Security cards be made of tamperproof and wear-resistant materials and include a digital photo of the cardholder. Under the measure, the card would be encrypted, machine-readable, and contain some sort of biometric identifier.

The bill has one cosponsor and has been referred to the House Ways and Means Committee.



DISCRIMINATION. Lawmakers in the Wisconsin legislature are considering a bill (A.B. 260) that would make it legal to refuse to hire someone convicted of a sex crime regardless of whether the offense is related to the person’s job. Under existing state law, employers must show that a crime is substantially related to the job being sought before refusing to hire someone based on crimes uncovered in a background check.

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