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Legal Report November 2010


HOSTILE WORK ENVIRONMENT. A black nursing assistant can pursue a hostile work environment lawsuit against her employer for acceding to the preferences of racially biased patients. Certain patients in the facility refused to be treated by black nurses so the facility forbade those nurses from assisting or entering the rooms of the biased patients.

Brenda Chaney, a black nursing assistant, was hired by Plainfield Healthcare Center to monitor nursing home patients, respond to their requests for service, and generally assist with their daily needs. However, Chaney was prohibited from helping one patient in her unit, Marjorie Latshaw. In her nursing instructions, Latshaw noted that she “prefers no black” nursing assistants.

Plainfield honored Latshaw’s request and each day printed the instructions in Chaney’s schedule. Two other residents from other units had made similar requests. One refused Chaney’s help in the shower and asked for a white nursing assistant instead.

The policy of allowing patients to dictate racial preference led to inappropriate comments from other employees. Two of Chaney’s coworkers made comments about her race and called her names. Chaney reported the behavior and, while the name-calling stopped, one coworker continually reminded Chaney that she could not enter certain rooms or help certain patients because she was black.

After three months of employment, Chaney was fired for cursing in front of a patient. When Chaney’s misconduct was reported, the unit supervisor Loretta Askew was skeptical of the allegation because she had never heard Chaney curse at work. When Askew investigated the complaint, she found that witnesses to the event did not hear Chaney curse. Though he was given the results of the investigation, John Reyes, the director of nursing, fired Chaney. The reason for the firing subsequently changed from use of profanity to ignoring a call light to refusing a shift change.

Chaney sued Plainfield for creating a hostile work environment by catering to the racial biases of patients. She also sued for racial discrimination, claiming that she was fired because she was black.

Plainfield requested summary judgment—a hearing based on the facts of a case, without a trial. The U.S. District Court for the Southern District of Indiana granted the summary judgment, finding that Plainfield responded to the specific complaints made by Chaney about her coworkers. The court also found that Plainfield acted in good faith in regards to patient preferences. The court found that the company believed that ignoring patient wishes would have violated Indiana patient-rights laws, which allow patients to choose providers. In respect to Chaney’s firing, the court found that there was no evidence that the firing was motivated by race. Chaney appealed the decision.

The U.S. Court of Appeals for the Seventh Circuit overturned the lower court’s decision on both counts. The court ruled that the policy of bowing to the racial biases of residents is unlawful and that, combined with the racial animosity from other employees, it could have created a hostile work environment for Chaney.

The court was unconvinced by Plainfield’s good-faith defense—that it was forced to uphold the racial bias of patients because of state law. The regulations in question, ruled the court, require that Plainfield allow residents access to the healthcare providers of their choice. The court explained that if a resident chose to employ an aide, Plainfield would have to allow reasonable access to that aide. According to the court, “The regulations do not say that a patient’s preference for white aids that Plainfield employs trumps Plainfield’s duty to its employees to abstain from race-based work assignments.”

The court acknowledged that Plainfield addressed Chaney’s complaints of racial harassment by coworkers but it said that these actions did not go far enough. The court wrote that “Plainfield never corrected the principal source of the racial hostility in the workplace—its willingness to accede to a patient’s racial preferences. The hostility that Chaney described came from daily reminders that Plainfield was employing her on materially different terms than her white coworkers.”

The court also ruled that Chaney could proceed with her racial discrimination claim. The results of the internal investigation along with the shifting reasons for the termination could point to an unlawful motive, according to the court. (Chaney v. Plainfield Healthcare Center, U.S. Court of Appeals for the Seventh Circuit, No. 09-3661, 2010)

SEARCHES. A federal appeals court has ruled that police may not use a global positioning satellite (GPS) unit to track a person’s movements for a long period of time without a warrant. Doing so violates a person’s Fourth Amendment right to be free of unreasonable search and seizure.

In the case, Washington D.C. police were investigating Antoine Jones on suspicion of distributing cocaine. Police attached a GPS unit to Jones’s car and tracked his movements continuously for a month. Based on this information, police arrested Jones and convicted him on several drug charges.

Jones, along with his co-conspirator Lawrence Maynard, filed a lawsuit against the city arguing that the GPS information was obtained illegally. The city argued that it relied on case law established in U.S. v. Knotts, a 1982 case in which the court ruled that the police did not commit a search when it placed a beeper in a container to track a suspect’s movements from one place to another. In that case, the court ruled that a warrant was unnecessary.

In the current case, the court ruled that the Knotts case does not apply. According to the court, the limited information obtained by determining a suspect’s movements from one point to another in public is not the same as using a GPS to track every trip a suspect makes and then aggregating that data. Prolonged surveillance, ruled the court, requires a warrant.

In the written opinion of the case, the court noted that “repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit…a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.”

The case against Jones, ruled the court, used the pattern of the suspect’s movements to establish guilt. Because such information was obtained in violation of the Fourth Amendment, the court ruled that the case must be thrown out. (U.S. v. Maynard, U.S. Court of Appeals for the District of Columbia, No. 08 3030, 2010)


CHEMICAL FACILITIES. A bill (H.R. 2868) intended to increase security at chemical facilities has been approved by the Senate Homeland Security Committee. The measure must now go before the Senate for a vote.

The Senate replaced H.R. 2868 with a new version of the bill. The version passed by the Senate committee is identical to the House version in some respects. It would extend existing law, and maintain current Department of Homeland Security (DHS) regulations on the subject, by establishing standards and procedures for security vulnerability assessments and site security plans.

The Senate and House versions differ with regard to inherently safer technologies. Under existing law, chemical facilities may consider inherently safer technologies but DHS cannot approve or reject a site security plan based on whether the facility includes these technologies. The House version of the bill would encourage the use of such technologies but would not allow DHS to mandate their use. Instead, before DHS could require such changes, it would first have to notify Congress of the ramifications of making the switch. Changes would be prohibited in cases where using inherently safer technologies would require the facility to cut production or fire employees. However, the Senate version of the bill would only extend current law and does not encourage the use of inherently safer technologies.

WORKPLACE SAFETY. A bill (H.R. 5663) that would revise federal workplace safety rules has been approved by the House of Representatives. The Senate has not announced whether it will take up the measure.

The main portion of the bill is focused on mine safety issues. However, the bill also addresses workplace safety in general. H.R. 5663 would increase the penalties for willful or repeat violations of safety rules. Penalties for such violations would rise from a minimum of $5,000 and a maximum of $70,000 to a minimum of $8,000 and a maximum of $250,000. These penalties increase when a violation causes or contributes to an employee’s death.

The government could impose criminal penalties against employers as well as any officer or director of a company when those individuals knowingly contribute to an employee’s death or serious bodily injury. The maximum fine for this violation would be $500,000 and the sentence could be up to 20 years in prison.

H.R. 5663 would also expand whistleblower rights. Employers would be prohibited from discriminating against an employee for reporting workplace safety violations.

BORDER SECURITY. A bill (S. 3243) designed to reduce corruption among border guards has been approved by the Senate Homeland Security and Governmental Affairs Committee. The Senate has not announced whether it will consider the bill.

Under the measure, all applicants for law enforcement positions with U.S. Customs and Border Protection would be required to pass a polygraph examination before being hired. All existing law enforcement personnel would undergo periodic background investigations while employed by the agency.

HOMELAND SECURITY GRANTS. A bill (H.R. 5562) that would amend the use of homeland security grants has been approved by the House Homeland Security Committee. The bill must now face a vote in the House of Representatives.

Under the bill, the government could not require that grants issued under the Urban Area Security Initiative be used for specific purposes. Also, H.R. 5562 would require that the government study the costs of administering the grants to determine whether the grantees should be awarded a greater percentage of funds to be used for management and administration of the grant award.

DISASTER MANAGEMENT. A bill (S. 3249) that would renew a grant program designed to help state and local governments prepare for disasters has been approved by the Senate. The House of Representatives will consider the measure.

The competitive grant program would provide grants to state and local governments for projects that mitigate damage from natural disasters such as hurricanes and floods. A 2007 study on the program by the Congressional Budget Office found that the program was successful. For every $1 spent on the program, the federal government saved $3.



CREDIT CHECKS. A new Illinois law (formerly H.B. 4658) makes it illegal for employers in the state to conduct credit checks on applicants for most jobs. Though employers may still conduct background checks, they may not inquire about an applicant’s credit history or obtain a copy of their credit report.

Employers may obtain credit information when hiring for positions where a credit check is required by federal or state law and when hiring for positions where the person would oversee more than $2,500 in assets or have signatory power over assets of more than $100. Credit checks are also allowed for managerial positions where the person controls the business, is involved in setting the direction of the business, or has access to personal or confidential information, financial data, trade secrets, or national security data.


BACKGROUND CHECKS. A bill (H.B. 275) pending in the Massachusetts General Court would require that employers conduct criminal history checks on employees who work as security staff in bars, clubs, or other establishments that serve alcohol. In the bill, “security staff” is defined as bouncers, doormen, floor staff, or other workers performing duties related to the admission of patrons or maintaining safety and order. The background check should focus on “violent criminal history or other incidents that are strictly related to the duties of the position,” according to the bill.

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