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Legal Report September 2013


WORKPLACE VIOLENCE. A federal appeals court has ruled that a company did not violate the Americans with Disabilities Act (ADA) when it required an employee to undergo a psychological evaluation. The company, ruled the court, had legitimate concerns after the employee made threats to a supervisor.

In 1999, Franklin Owusu-Ansah was hired by Coca-Cola as a customer service representative. He was promoted three times and was serving as a quality assurance specialist in 2007 when he participated in a routine meeting with his supervisor. During the meeting, Owusu-Ansah complained that he was mistreated and harassed by coworkers and supervisors because he was from Ghana. Owusu-Ansah became upset during the meeting and, banging his hand on the table, said that someone was “going to pay for this.”

Owusu-Ansah’s supervisor consulted an HR manager, who in turn consulted a security manager. The security manager suggested that Owusu-Ansah speak to a consulting psychologist who specialized in crisis management and threat assessments.

A senior HR manager then met with Owusu-Ansah, asking him to detail the concerns he voiced to his supervisor. The HR manager then introduced Owusu-Ansah to the psychologist. After meeting with Owusu-Ansah, the psychologist expressed concern over the mental stability of Owusu-Ansah and noted that there was a “strong possibility that he was delusional.” The psychologist suggested that Owusu-Ansah be placed on leave until the situation was fully evaluated. Coca-Cola followed the psychologist’s advice.

After several appointments with mental health professionals, Owusu-Ansah refused to discuss his employment issues further. Coca-Cola insisted that Owusu-Ansah complete his assessment or he would be terminated. Owusu-Ansah complied and was eventually declared fit for work. However, after he returned, Owusu-Ansah filed a lawsuit against Coca-Cola claiming that the company violated the ADA when it required him to undergo a psychological evaluation.

Coca-Cola requested summary judgment—a hearing based on the facts of a case without a trial—arguing that the evaluation was permissible because it was job-related and consistent with business necessity. The U.S. District Court for the Northern District of Georgia granted the summary judgment. Owusu-Ansah appealed the decision.

The U.S. Court of Appeals for the Eleventh Circuit affirmed the lower court’s ruling. The appellate court ruled that Coca-Cola’s actions were permissible under the ADA. The court noted that “Coca-Cola had a reasonable, objective concern about Mr. Owusu-Ansah’s mental state, which affected job performance and potentially threatened the safety of its other employees.” (Owusu-Ansah v. Coca-Cola, U.S. Court of Appeals for the Eleventh Circuit, No. 11-13663, 2013)

DNA. The U.S. Supreme Court has upheld a Maryland law that allows police to collect DNA from those arrested on serious charges and to enter that DNA into the national database.

In 2009, Alonzo Jay King, Jr., was arrested on assault charges in Wicomico County, Maryland. When King was booked, corrections personnel took a DNA sample via cheek swab as required under Maryland law. King’s DNA was matched to an unsolved rape from 2003. The DNA match was presented to a grand jury, which indicted King. A second DNA sample was taken from King after the indictment. This sample was also a match.

Attorneys for King moved to suppress the DNA evidence, claiming that Maryland’s DNA collection law violated the Fourth Amendment. A circuit court upheld the law, and King was convicted and sentenced to life in prison without the possibility of parole.

King appealed the decision to the Maryland Court of Appeals, the state’s highest court. The court struck down the portion of the law that required collection of DNA from those arrested on felony charges. The appeals court ruled that the DNA swab was an unreasonable search because King’s expectation of privacy outweighed the “state’s purported interest in using King’s DNA to identify him.” Maryland appealed the decision to the U.S. Supreme Court, which held oral arguments in February.

The Supreme Court overturned the lower court’s decision, ruling that taking a DNA sample after a felony arrest is reasonable under the Fourth Amendment and should be considered on par with other booking procedures such as fingerprinting and photographing. The Court determined that the additional intrusion of a check swab is minimal and is “markedly more accurate” than fingerprinting in identifying individuals.

In the written opinion of the case, the Court wrote that “the government interest is not outweighed by respondent’s privacy interests.” Further, the Court noted: “By comparison to the substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is minimal. Reasonableness must be considered in the context of an individual’s legitimate privacy expectations, which necessarily diminish when he is taken into police custody.”

Justice Antonin Scalia wrote a dissenting opinion on behalf of himself, Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan. Scalia argued that the Maryland law does violate the Fourth Amendment, which “forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence.” Scalia noted that the majority opinion found the Maryland law constitutional because the DNA evidence collected was being used to identify those in custody. Crime detection, not identification, is the goal, according to Scalia. “It is obvious that no such noninvestigative motive exists in this case,” he wrote.

Further, Scalia argued that the decision opens the door to widespread DNA collection. Even though the Maryland law limits the collection of DNA to those arrested on “serious offenses,” Scalia warned that the distinction may not hold in the future. Scalia wrote: “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are arrested, rightly or wrongly, and for whatever reason.” (Maryland v. King, U.S. Supreme Court, No. 12-207, 2013)


DEFENSE. The 2014 Defense Authorization Act (H.R. 1960), which has been approved by the House of Representatives, includes amendments addressing sexual assault in the military, indefinite detention, the use of drones, and the resilience of the military supply chain. H.R. 1960 has several provisions dealing with sexual assault in the military. One such provision would establish mandatory sentences for certain offenses and another would require that the Armed Services submit an annual report to Congress detailing the steps taken to retain evidence and records in sexual assault cases. H.R. 1960 also contains a measure that would require that those held by the United States in indefinite detention be immediately provided a trial. The bill would also prohibit the use of unmanned aircraft against U.S. citizens on U.S. soil. A measure that questions the resilience of the supply chain would require that the Department of Defense submit a report to Congress on the sole source suppliers of military components. The report is aimed at ensuring that the supply chain is protected against vulnerability.

PRIVACY. A bill (H.R. 1312) introduced by Rep. Jason Chaffetz (R-UT) would prohibit anyone from intentionally intercepting another person’s geolocation information, disclosing such information to any other person, or using the information. The bill would also make it illegal to disclose geolocation information obtained as part of a criminal investigation.

The bill provides exceptions for information acquired by a provider of electronic communications or geolocation services during the normal course of businesses. Also exempted from the bill would be federal officers conducting foreign surveillance. Such data could be intercepted in emergencies and cases of theft.
The bill has 15 cosponsors and has been referred to the House Judiciary Committee’s Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.

BORDER SECURITY. A bill (H.R. 1417) designed to improve border security has been approved by the House Homeland Security Committee. The bill now goes before the full House of Representatives for a vote.

The bill would require that the Department of Homeland Security (DHS) develop a comprehensive strategy to improve border security, including plans for effective deployment of human resources and the use of advanced technology that would enable situational awareness. The strategy would also have to include the collection of metrics, such as the number of apprehensions, to define the program’s progress.

The bill would require that the DHS develop the strategy within 120 days and implement it within 60 days after that. The DHS must have “operational control” of the border within two years of the strategy’s implementation as verified by an independent audit.

TERRORISM. A bill (H.R. 1073) that would amend federal maritime law has been approved by the House of Representatives and is now pending in the Senate Judiciary Committee.

The bill would make it an act of terrorism to use or attempt to use explosive or radioactive material; a biological, chemical, or nuclear weapon; or other nuclear explosive device aboard a ship with the intent to intimidate a population or compel a government or international organization to behave in a certain way. The bill would apply to actions committed against or aboard a U.S. vessel or a vessel subject to U.S. jurisdiction. The bill also establishes procedures for delivering a person suspected of committing such crimes to the authorities of a country that is party to international conventions preventing acts of aggression against maritime vessels.


FIREARMS. A new law (formerly S.B. 286) in Alabama prohibits employers from banning the storage of firearms in private vehicles while those vehicles are parked in company parking lots. However, employers can still ban firearms from company buildings. Alabama is the 19th state to pass such a law.

PRIVACY. Governor Rick Perry has signed a bill into law (formerly H.B. 2268) requiring law enforcement agencies to obtain a warrant for all e-mails, no matter how old the communication. This law sets a higher standard than the federal Electronic Communication Privacy Act (ECPA), which only requires warrants for recent e-mails.

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