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Legal Report April 2009


RETALIATION. A woman who was fired after giving negative information about a coworker during an internal investigation can pursue a sexual harassment retaliation claim against her employer, according to a recent decision by the U.S. Supreme Court. According to the Court, the woman may sue even though 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 the city did not take any disciplinary action against him. Instead, it 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 lawsuit 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, however, that Crawford did not bring a sexual harassment claim against Hughes nor did she pursue the matter during or after the investigation.

The U.S. Supreme Court disagreed with the lower court’s ruling, finding that Crawford need not bring a formal sexual harassment claim to be protected from retaliation. In the written opinion of the case, the Court noted that “nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not [protecting] one who reports the same discrimination in the same words when asked a question.” (Crawford v. Nashville, U.S. Supreme Court, No. 06-1595, 2009)

DISCRIMINATION. A federal appeals court has ruled that a Muslim employee who was fired after 9-11 may sue his employer for discrimination. The court found that the evidence of discrimination, though circumstantial, must be brought before a jury.

Zafar Hasan, a Muslim of Indian descent, joined the Chicago office of Foley and Lardner LLP in October 2000. The firm was originally pleased with Hasan’s performance and praised his hard work and positive attitude. The senior partners agreed that Hasan met or exceeded expectations and wrote in his review that he “was on track for advancement.” Hasan had also billed more hours than anyone in his department.

Circumstances changed after 9-11. A Foley and Lardner employee overheard one of the partners, George Simon, speaking about Muslims and saying that “those people don’t belong here…we should kick them out.”

Hasan responded to the tragedy by publishing articles and appearing on television to defend Islam as a peaceful religion. When Hasan attempted to post some of his articles in the office, one partner warned him to be careful.

By the end of 2001, Hasan’s billable hours had dropped to the lowest in his department and the firm did not renew his assignment to his biggest client. Though Hasan repeatedly requested more work, the firm did not increase his workload.

Hasan’s May 2002 evaluation was not as positive as previous reviews. While the partners praised his intelligence, they noted that Hasan’s technical skills and efficiency were lacking. Hasan was given a warning and a six-month window to improve his performance.

At the next evaluation, the partner with whom Hasan worked most frequently, Peter Schaafsma, gave him high marks. However, those with little contact found him lacking and noted that “for various reasons, a number of partners seem to have lost confidence in” Hasan.

The head of the department contacted Shaafsma and asked him to defend his review. Shaafsma was surprised and believed he was being pressured to retract his praise of Hasan.

Edwin Mason, head of Hasan’s department, e-mailed a national manager, Stan Jaspan, writing that he planned to fire Hasan. However, Mason requested a telephone call with Jaspan to discuss the issue. During the phone call, according to evidence later given by Jaspan, Mason said that Hasan was a Muslim and that he (Mason) was concerned about a possible lawsuit. Despite these concerns, Jaspan gave Mason permission to fire Hasan.

According to evidence later presented at trial, Jaspan began searching for a job for Hasan at other Foley and Lardner offices around the country. This was highly unusual, given that the law firm had decided to fire Hasan for his poor performance.

Unable to procure another position, Jaspan fired Hasan but allowed him to stay at Foley and Lardner for six months while he looked for a job elsewhere. Hasan left the firm in September 2002.

During the same time frame, only two other Muslims worked in Hasan’s department. One was transferred, and the other was fired. There was another Muslim employee working in the Chicago office who was promoted, but he worked in a different department.

Two weeks after Hasan left the firm, the senior partners sent a memo to everyone in the Chicago office, stating that the financial outlook was rosy and that the year’s profits were up 25 percent over the previous year.

Hasan filed a lawsuit with the Equal Employment Opportunity Commission (EEOC), claiming that he had been discriminated against because of his religion and national origin. Foley and Lardner requested summary judgment, arguing that Hasan’s claims were circumstantial and did not prove discrimination.

The U.S. District Court for the Northern District of Illinois agreed with the firm and granted the summary judgment. Hasan appealed the decision.

The U.S. Court of Appeals for the Seventh Circuit overturned the verdict. The court ruled that Hasan could proceed with the lawsuit. Though individual pieces of evidence were weak, noted the court, when taken together, they could convince a jury that Hasan was discriminated against.

For example, noted the court, even though the partner who made the comment about “kicking Muslims out” was not Hasan’s direct supervisor, the partner was involved in the termination and could have influenced other partners. The court also noted that Mason’s attempt to convince Schaafsma to alter his review and the department’s attitude toward other Muslims could both support an inference of discrimination.

Similarly, the law firm’s shifting justifications for the firing could be seen as suspicious, according to the court. After Hasan filed his lawsuit, the firm claimed that his work had always been substandard and that his performance evaluations had been lost. However, when the firm located the evaluations, which were mostly positive, the company claimed that Hasan had not been fired for poor performance but because the firm’s workload had decreased. But according to the internal memos, the department had plenty of work when it fired Hasan. (Hasan v. Foley and Lardner LLP, U.S. Court of Appeals for the Seventh Circuit, No. 07-3205, 2008)


PRIVACY. A bill (S. 141) introduced by Sen. Dianne Feinstein (D-CA) would make it illegal to display, sell, or purchase Social Security numbers without the consent of the owner. Under the bill, the government would no longer be allowed to print Social Security numbers on checks, and businesses could not require customers to provide Social Security numbers when purchasing goods or services.

The bill provides an exception for public records but would require the government to study the use of Social Security numbers in such records. Based on this information, the government would then issue regulations clarifying what uses are permitted.

S. 141 has two cosponsors and has been referred to the Senate Judiciary Committee.  A companion bill (H.R. 122) introduced by Rep. Rodney Frelinghuysen (R-NJ) has no cosponsors and has been referred to the House Judiciary Committee and the House Ways and Means Committee.

FIREARMS. A bill (S. 205) introduced by Sen. Jeff Bingaman (D-NM) would establish a government program—Project Gunrunner—under the Bureau of Alcohol, Tobacco, Firearms, and Explosives. The initiative would be charged with investigating and prosecuting those involved in the trafficking of firearms across the border between the United States and Mexico.

Under the bill, the government would work with officials in Mexico to conduct investigations, provide equipment, and train Mexican law enforcement officers. The measure calls for $24.5 million in funding each year through 2011.

S. 205 has five cosponsors and has been referred to the Senate Judiciary Committee. A companion bill (H.R. 495) introduced by Rep. Ciro D. Rodriguez (D-TX) has four cosponsors and has been referred to the House Judiciary Committee and the House Foreign Affairs Committee.

COMMUNICATIONS. A bill (S. 251) introduced by Sen. Kay Bailey Hutchison (RTX) and designed to prohibit prisoners from using smuggled cell phones would allow corrections officials to petition the government to use wireless jamming devices. (Currently, any interference with wireless services is illegal.) In deciding whether to grant a petition, the government must consider whether the jamming device would interfere with the work of local first responders or other public safety or emergency personnel.

The bill has one cosponsor and has been referred to the Senate Commerce, Science, and Transportation Committee. An identical bill (H.R. 560) introduced by Rep. Kevin Brady (R-TX) has three cosponsors and has been referred to the House Energy and Commerce Committee and the House Judiciary Committee.



CYBERBULLYING. Lawmakers in Washington have enacted a new law (formerly S.B. 5288) requiring school districts in the state to implement policies to prevent and punish cyberbullying. The state will appoint an advisory committee to develop a model policy prohibiting harassment, intimidation, or bullying conducted by electronic means. The committee will also prepare sample materials for students and instructions on setting up hotlines or other means of reporting cyberbullying.


BACKGROUND SCREENING. A bill (H.B. 2031) introduced in the Arizona House of Representatives would require that third-party contractors, subcontractors, and vendors working in public schools submit to background screening and a federal fingerprint check before being allowed to work on school property. Those who pass the background screening would be required to carry a fingerprint clearance card while on school grounds.

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