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Legal Report February 2011


DISCRIMINATION. In the first case filed under the Lilly Ledbetter Fair Pay Act of 2009 (FPA), an appeals court has ruled that the law applies only to discrimination in compensation. The law does not apply to other types of discrimination claims, such as failure to promote.

In 1990, Emmanuel Noel, a black Haitian national, was hired by Boeing to work as a sheet metal assembler. In 2002, Noel was assigned to a facility in Amarillo, Texas. Over the course of the assignment, Noel’s grade level was raised from grade seven to grade eight. Two of Noel’s coworkers, Chris Carlin and Gary Newman, were also assigned to the Amarillo facility. They too were promoted from grade seven to eight. However, as the assignment progressed, Carlin and Newman each received another promotion, to grade 11. Noel remained at grade eight.

In 2003, Noel complained to his managers about the promotions. He alleged that he had been discriminated against based on race and national origin. In 2005, Noel filed a formal grievance with the U.S. Equal Employment Opportunity Commission (EEOC). In 2006, he filed a lawsuit against Boeing for discrimination.

The U.S. District Court for the Eastern District of Pennsylvania found in favor of Boeing, ruling that Noel’s lawsuit was not filed in a timely manner. Noel did not file his grievance with the EEOC for two years after the incident, far outside the 300-day time limit.

Noel appealed the decision to the U.S. Court of Appeals for the Third Circuit under the FPA. Noel argued that because of Boeing’s discrimination, he was not promoted and received less pay than his white coworkers. Thus, under the FPA, the discrimination occurred each time Noel was paid at a lower rate and the suit was not time-barred.

The appeals court ruled that the FPA applies only to discrimination in wages and not to other types of discrimination, including failure-to-promote claims. The court explained that “compensation decisions are often cloaked in secrecy, and an employee may not know how much his or her coworkers earn.” Other employment acts are readily apparent since a person will know that he or she has been hired, fired, or promoted. (Noel v. The Boeing Company, U.S. Court of Appeals for the Third Circuit, No. 08-3877, 2010)

FALSE ARREST. A school teacher who was indicted and arrested for having a sexual relationship with her student may proceed with a lawsuit against the school due to a potentially biased investigation but may not sue the individuals involved.

In 2004, rumors began circulating at Hall High School District in Spring Valley, Illinois, that teacher Gina Purvis was having a sexual relationship with her 15- year-old student, inferred to in the case as “M.R.” Both parties denied the allegations when they were questioned by Principal Patricia Lunn. However, the rumors continued and Daniel Oest, superintendent of schools, ordered an investigation. Oest put Gary Vicini, dean of students, in charge of the investigation.

However, Vicini had been accused of sexually harassing a female student the previous year. Vicini was aware that his accuser had been Purvis. Lunn was aware of this conflict but Oest was not.

In November 2004, Oest and Vicini interviewed M.R., who continued to deny a relationship with Purvis. Evidence presented in the subsequent lawsuit suggests that Vicini threatened M.R. with expulsion and possible imprisonment if he did not admit to the relationship. After being assured that the interview would remain confidential, M.R. recounted a detailed and lengthy sexual relationship with Purvis.

After the interview was over, Oest attempted to call Purvis, but she did not answer her cell phone. Next, Oest called the local police and told a police officer, Douglas Bernabei, about the incident. Bernabei called the Illinois Department of Child and Family Services (DCFS). Neither Bernabei nor DCFS were informed of Vicini’s conflict of interest in the case. Nor were they told of Vicini’s threats to M.R.

Bernabei conducted his own investigation and interviews. He brought the evidence to a grand jury, which indicted Purvis. She was arrested on October 20, 2005. Purvis waived her right to a jury trial, and her case was heard by a judge on October 31, 2005. She was acquitted of all charges.

Purvis then filed a lawsuit for false arrest and deprivation of due process against Bernabei, Lunn, Oest, and Vicini. All the defendants requested summary judgment—a hearing based on the facts of a case, without a trial. The defendants claimed that they could not be held responsible because, as public-sector employees, they had qualified immunity from liability. (Under the doctrine of qualified immunity, those individuals who act on behalf of the government, including teachers and law enforcement personnel, are shielded from liability unless their conduct violates another’s constitutional rights.)

The U.S. District Court for the Central District of Illinois ruled that none of the defendants was entitled to qualified immunity. It also ruled that a jury would have to determine whether the defendants violated the law by giving Vicini a leading role in the investigation. The defendants appealed the decision.

The U.S. Court of Appeals for the Seventh Circuit overturned the district court’s decision and granted the summary judgment to the defendants, finding that they were entitled to qualified immunity. However, the court upheld the other part of the district court’s decision, finding that a jury must determine whether the school is liable for false arrest and violation of Purvis’s due process rights.

The appeals court ruled that the defendants may not be sued individually because they are entitled to qualified immunity. Oest, the official who reported Purvis to law enforcement, was not aware of Vicini’s conflict of interest. Lunn and Vicini, though aware, did not have the authority to report Purvis. Bernabei, ruled the court, had probable cause to arrest Purvis and is, therefore, also protected by qualified immunity.

The appeals court ruled that a jury must decide whether the investigation against Purvis was biased because of Vicini’s involvement. Oest, noted the court, reported the school’s findings to the police. The police then notified the DCFS. Those two agencies, in turn, conducted independent investigations. However, a question remains, ruled the court, as to whether the initial investigation corrupted the subsequent investigations conducted by outside agencies. (Purvis v. Oest et al., U.S. Court of Appeals for the Seventh Circuit, No. 09-1098, 2010)


GENETIC DISCRIMINATION. The U.S. Equal Employment Opportunity Commission (EEOC) has issued a final rule implementing the federal Genetic Information Nondiscrimination Act (GINA) of 2008. The law makes it illegal for employers to collect genetic information on employees or to discriminate against employees or prospective employees on the basis of genetic data or family medical history. While many of the law’s provisions apply to health insurance providers, the EEOC rule addresses the use of genetic information in the workplace.

The final rule answers questions posed by commenters on the interim rule. For example, the final rule contains clarification on the “inadvertent request” portion of the law. Under GINA, employers do not violate the law if they inadvertently gain genetic information about an employer through casual conversation about health matters or through overhearing employees discussing such matters. However, the EEOC warns that asking probing follow-up questions or eavesdropping to obtain genetic information is prohibited under the law.

Similarly, the rule clarifies that employers do not violate GINA by learning about an employee’s genetic history via a social networking site. According to the EEOC, the inadvertent exception applies to information posted on Facebook or other social networking platforms. However, an employer may not conduct an Internet search on an employee or prospective employee to obtain genetic information.

Commenters were also concerned over information disclosed while attempting to reach accommodation under the Americans with Disabilities Act or the Family and Medical Leave Act. The EEOC noted that such discussions could lead to disclosure of protected genetic information. The agency has provided sample language that employers can use to warn employees against disclosing genetic data. So long as an employer has provided this warning, any disclosure would be considered inadvertent.



BACKGROUND CHECKS. A new law (formerly H.B. 690) in Virginia will require that those who work with public transit services undergo a criminal background check. The law applies to employees hired directly by the government as well as those working through an independent contractor.


DATA SECURITY. A new Mississippi law (formerly H.B. 583) requires that companies notify customers of any data security breach if the company reasonably believes that information has been compromised. The bill includes an exception allowing notification to be delayed if it would impede a criminal investigation or harm national security.

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