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Legal Report May 2010


RETALIATION. After a protracted legal battle, a woman has been awarded $1.5 million by a Tennessee jury. The case had gone all the way to the U.S. Supreme Court, which had remanded it back to the Tennessee lower court for retrial, and it’s that retrial that has resulted in this award. The jury found that Vicky Crawford’s employer wrongfully terminated her after she provided investigators with negative information when asked about a co-worker who was the subject of an internal investigation into a sexual harassment allegation.

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 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 management 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 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; however, Crawford did not fall into that category, the court found, because she did not bring a sexual harassment claim against Hughes nor did she pursue the matter during or after the investigation.

The Supreme Court, however, overturned that decision in January 2009 (Crawford v. Nashville, U.S. Supreme Court, No. 06-1595, 2009), finding that Crawford need not have brought 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.” It sent the case to the lower court for retrial.

In last week’s verdict, the jury awarded Crawford $420,000 in compensatory damages, more than $408,000 in back pay, and more than $727,000 in reimbursement for future pay.

PRIVACY. A Pennsylvania couple, Michael and Holly Robbins, has filed a lawsuit against the Lower Merion School District on behalf of their teenage son, Blake. According to the complaint, the school district spied on students using a two-way Webcam that was incorporated into school-issued laptops.

Students in Lower Merion High School were issued the laptops as part of a new learning initiative designed to allow students to have constant access to school resources and work on projects at school and at home. The materials accompanying the laptop did not reveal that the school could remotely activate the embedded Webcam and obtain images of anyone or anything in range of the Webcam at any time.

Blake Robbins became aware of the school’s ability when he was contacted by the assistant principal. The official accused Blake of engaging in “improper behavior” in his home. As evidence of the wrongdoing, the school produced a photograph from the Webcam embedded in Blake’s school-issued laptop.

Michael Robbins then verified that the school could remotely activate the Webcam and view and capture any images within the view of the Webcam, even if the student was not using the computer at the time.

The complaint alleges that the school invaded Blake’s privacy. The suit also charges that the school violated the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, and the Fourth Amendment to the U.S. Constitution. (Robbins v. Lower Merion School District, U.S. District Court for the Eastern District of Pennsylvania, 2010)


CRUISE SHIP SECURITY. A bill (H.R. 3360) that would enhance security aboard cruise ships has been approved by the House of Representatives. The Senate has announced that it will consider the measure.

The bill would require that each stateroom on cruise ships be equipped with security latches and electronic keys that would be able to provide times and dates of entries. Ships would also be required to install and maintain a video surveillance system and provide information from that surveillance to law enforcement upon request. Cruise ship owners would be required to establish and enforce policies on crew-member access to passenger rooms.

H.R. 3360 would also require that ships maintain rape kits and ensure that medical staff members be trained to administer such kits and treat assault victims. Security personnel and the crew would be trained to detect and preserve evidence from any crime that occurs on board the ship.

Ship owners would be required to track incidents of rape and other crimes reported on board and keep a log of those crimes. The log would be available to the FBI, the U.S. Coast Guard, and any law enforcement officer investigating a reported crime. If a serious crime—homicide, suspicious death, disappearance, kidnapping, or assault—occurred on board, ship operators would be required to report the incident to the nearest FBI field office immediately. The government would be required to keep statistics on crimes that occurred on cruise ships. This information would be available via a dedicated Web site.

The bill is almost identical to another measure (S. 588) that is currently awaiting a vote by the full Senate. However, H.R. 3360 requires that the government’s Web site be updated quarterly and that crimes be listed by cruise line, including information regarding whether the crime in question was committed by a passenger or a crew member. Cruise lines would be required to include a link to the Web site from their home pages.

COMMUNICATIONS. A bill (S. 1755) that would require the Department of Homeland Security (DHS) to study the use of amateur radio operations during emergencies has been approved by the Senate and is now pending in the House Energy and Commerce Committee.

The bill would require that DHS report to Congress on the use of amateur radio communications in emergencies. The report would include an analysis of the use of such radio communications to further the homeland security mission during disasters, severe weather, and other threats. The report would include strategies for deploying amateur radio operators and how those operators could be integrated into DHS initiatives.

AIRPORT SECURITY. A bill (S. 2940) introduced by Sen. Frank Lautenberg (DNJ) would increase the use of security cameras at airports. Under the bill, airports would be required to install security cameras at all screening locations and all points where passengers exit sterile areas of the airport. The government would establish requirements for the use, maintenance, and testing of the cameras. Transportation Security Administration (TSA) employees would have access to the cameras and the data or recordings they generate.

S. 2940 also requires the TSA to submit a report to Congress regarding how cameras can best be deployed at security checkpoints and recommendations for further improving security at the checkpoints, such as adding more personnel or new technology.

The bill has no cosponsors and has been referred to the Senate Commerce, Science, and Transportation Committee.


New Hampshire

BIOMETRICS. Lawmakers in New Hampshire have voted down legislation (H.B. 1409) that would have made it illegal for government agencies or private businesses in the state to issue cards, other than employee IDs, containing any type of biometrics. The bill would have prohibited the use of fingerprint recognition, facial recognition, handwriting, voice data, keystroke analysis, hand geometry, and iris and retinal scans. The proposal would also have made it illegal for state government or businesses to request biometric data from employees, patrons, or contractors.


FIREARMS. A new Indiana law (formerly S.B. 25) signed by Governor Mitch Daniels makes it illegal for a company to prohibit employees from keeping firearms locked in their cars on company property. The bill would also apply to contract employees. Exemptions are provided for schools, penal institutions, childcare facilities, and domestic violence shelters.  Companies that violate the law could face liability in a civil court. However, the bill stipulates that if employers comply with the law, they cannot be held liable for injuries or damage resulting from the policy.

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