Legal Report February 2017
U.S. JUDICIAL DECISIONS
DISCRIMINATION. A federal court ruled that sexual orientation discrimination is a form of sex discrimination prohibited by federal law and denied a motion to dismiss a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).
The EEOC filed the first U.S. government sex discrimination lawsuit based on sexual orientation on March 1, 2016, against Scott Medical Health Center of Pittsburgh, Pennsylvania. The EEOC charged that a gay male health center employee was subjected to discrimination in the form of “harassment because of his sexual orientation and then forced to quit his job rather than endure further harassment.”
The EEOC filed suit on behalf of the former employee, and the health center filed a motion to have the case dismissed.
The U.S. District Court, however, declined to dismiss the case. Instead, it found that sexual orientation discrimination is a type of discrimination because of sex, which is barred by Title VII of the Civil Rights Act of 1964.
“There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality,” wrote U.S. District Judge Cathy Bisson for the court. “That someone can be subjected to a barrage of insults, humiliation, hostility, and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.”
The decision means that sexual orientation discrimination is a form of sex discrimination; however, it did not decide whether the former employee was discriminated against. Instead, the EEOC’s case against the health center will move forward to determine if discrimination did occur. (EEOC v. Scott Medical Health Center, U.S. District Court for the Western District of Pennsylvania, No. 2:16-cv-00225-CB, 2016)
DEFAMATION. Rolling Stone defamed a former University of Virginia administrator in a magazine article about sexual assault on campus, a jury decided.
In 2014, Rolling Stone published the article “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA” by Contributing Editor Sabrina Rubin Erdely about a woman, called Jackie, who said she was gang-raped by a university fraternity and reported the assault to the university, which attempted to cover it up. The article depicted the University of Virginia (UVA) as indifferent to rape on campus and as more concerned with protecting its reputation than assisting victims of sexual assault.
The article also cast Associate Dean Nicole Eramo, who oversaw sexual violence cases at the time of the article’s publication, as the “chief villain of the story,” according to the suit. “Erdely and Rolling Stone claimed—both in the article and in a slew of media appearances and interviews designed to increase publicity for the article—that Dean Eramo intentionally tried to coddle Jackie to persuade her not to report her rape.”
The article also claimed that Eramo was indifferent to Jackie’s allegations, that she discouraged her from sharing her story with others, and that she did not report Jackie’s alleged rape to the police, among other actions.
These claims, however, were proven to be false after the story was published and Jackie’s allegations were debunked, causing Rolling Stone to issue a retraction.
Eramo then filed suit against Erdely, Rolling Stone, and its parent company, Wenner Media, for defamation, and asked for $7.5 million in damages.
The defendants contended that the magazine had acknowledged its mistakes and had not acted with actual malice—which is required to win a defamation case for individuals considered public figures.
A jury sided with Eramo and found that Erdely acted with actual malice when she published the statements about Eramo; meaning Erdely knew—or should have known—that the statements about Eramo were inaccurate. The jury did not, however, decide what damages Eramo will be entitled to. (Eramo v. Rolling Stone, Sabrina Erdely, and Wenner Media, LLC, Circuit Court for the City of Charlottesville, No. 3:15-cv-00023, 2016)
CYBERSECURITY. China enacted a controversial cybersecurity law that effectively makes it illegal for users to go online anonymously, among other provisions.
The Cybersecurity Law requires companies to verify users’ identities by collecting users’ real names and personal information. The law further bans Internet users from publishing an array of information, including data that damages China’s “national honor,” disturbs economic or social order, or attempts to overthrow the socialist system.
It also requires that companies that provide online services in the country provide “technical support and help” to public security organizations investigating crimes, and that critical information infrastructure operators store users’ personal information and other business data in China.
“The final draft narrows the scope to only data that is related to a firm’s China operations, but the term ‘important business data’ is undefined, and companies must still submit to a security assessment if they want to transfer data outside the country,” Human Rights Watch said in a statement.
SURVEILLANCE. Queen Elizabeth II gave Royal Assent to legislation dubbed the “Snooper’s Charter,” granting the U.K. government widespread powers to spy on citizens and limit the use of encryption.
The Investigatory Powers Act authorizes state actors to hack—in bulk—devices, networks, and services; to maintain databases of U.K. citizens’ personal information; and to force companies to decrypt data on request, limiting the use of end-to-end encryption.
Additionally, the act requires communications service providers to maintain ongoing logs of all digital services their users connect to for a full year. The data will be collected on all citizens and there is no way to opt out of the requirement.
Privacy and civil liberties advocates and technology companies, including Apple, have criticized the act and warned that such databases of lucrative data could become prime hacking targets.
“This unprecedented level of micro-surveillance is accompanied by a machine to make sense of the mass data, called a ‘Filter,’ but is in essence, a search engine,” wrote Open Rights Group’s Jim Killock in Newsweek. “It can match these ICRs [Internet Connection Records] with your mobile phone location data and call histories. It can, we believe, be used to profile the social relationships and the sexual and political activities of every UK citizen.”
Prime Minister Theresa May introduced the act when she was the nation’s home secretary and was instrumental to its passage.
MARIJUANA. Nevada, California, Massachusetts, and Maine legalized the recreational use of marijuana through a series of ballot measures. They now join four states and Washington, D.C., in legalizing the recreational use of the drug, which is still illegal under federal law. All of the measures allow adults 21 or older to purchase or possess marijuana.
Nevada’s measure makes it legal for adults to possess up to 1 ounce of marijuana and legalizes the sale of marijuana for recreational use. It also allows individuals who live further than 25 miles from a marijuana retailer to grow up to six marijuana plants in their home. The state will be responsible for regulating the industry and imposing a 15 percent excise tax on cultivators.
California’s measure also makes it legal for adults to possess up to 1 ounce of marijuana and to grow up to six marijuana plants per household, and it legalizes the retail sale of marijuana for recreational use. The California Department of Consumer Affairs will regulate the industry, impose a 15 percent excise tax on sales, and impose a cultivation tax of $9.25 per ounce for flowers and $2.75 per ounce for leaves.
Massachusetts’s measure makes it legal for adults to possess up to 1 ounce of marijuana, grow up to 12 marijuana plants per household, and purchase marijuana for recreational use. It also creates an agency like the state’s Beverage Control Commission to regulate the industry and impose a 3.75 percent excise tax on sales.
Maine’s measure makes it legal for adults to possess up to 2.5 ounces of marijuana; grow up to six flowering marijuana plants, 12 immature plants, and unlimited seedlings per residence; and purchase marijuana for recreational use. The Maine Department of Agriculture, Conservation, and Forestry will regulate the industry and enforce a 10 percent sales tax.
Additionally, legislators in North Dakota, Florida, and Arkansas approved ballot measures legalizing medical marijuana.
AMMUNITION. California voters approved a provision to expand background checks and place restrictions on ammunition magazines.
Voters approved the measure (63 percent to 37 percent) to prohibit possession of ammunition magazines that hold more than 10 rounds and require individuals to pass a background check to buy ammunition.
Now individuals who want to purchase ammunition in California must obtain a permit, which dealers must check before selling ammunition to the individual. The ballot measure also requires the California Department of Justice to participate in the U.S. National Instant Criminal Background Check System.
The proposition is designed to reduce gun violence by “preventing violent felons, domestic abusers, and the dangerously mentally ill from obtaining and using deadly weapons and ammo,” according to the California secretary of state’s website.
The proposal is one of three that voters at the state level recently approved; Nevada voters approved a measure that requires private firearm transfers to go through a licensed gun dealer, and Washington voters approved a measure that authorizes courts to issue extreme risk protection orders to remove an individual’s access to firearms.
ELSEWHERE IN THE COURTS
The United Kingdom agreed to extradite a British man—Lauri Love—to the United States to face trial on hacking charges. Love is accused of stealing data from U.S. government agencies, including the Federal Reserve, the Army, and the Department of Defense, in a series of cyberattacks in 2012 and 2013. Love allegedly collected confidential data, including personally identifiable information, from within these compromised networks and exfiltrated it, causing millions of dollars in damage. If convicted, Love could face up to 99 years in U.S. federal prison. (U.S. v. Love, U.S. District Court for the District of New Jersey, No. 2:13-cr-00712-SDW, 2016)
Georgia Power Company will pay $1.5 million to settle a class disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The company allegedly violated federal law by refusing to hire applicants and firing employees based on their disabilities or perceived disabilities. In some cases, “Georgia Power disregarded the opinions of treating physicians who supported the employees’ and applicants’ ability to work,” according to the complaint. “Rather than independently evaluating each employee or applicant, Georgia Power simply refused to hire disabled applicants or return employees to work following a medically related absence.” In addition to paying monetary relief, the company agreed to change its policies to ensure compliance with the Americans with Disabilities Act; to provide equal employment opportunity training to employees; and post antidiscrimination notices at its facilities, along with other measures. (EEOC v. Georgia Power, U.S. District Court for the Northern District of Georgia, No. 1:13-cv-03225-AT, 2016)
A U.S. appellate court decided that a rule requiring electronic logging devices to monitor truck driver compliance doesn’t violate the Fourth Amendment. The decision comes from a case brought by the Owner-Operator Independent Drivers Association (OOIDA) against the U.S. Department of Transportation over a 2015 rule by the Federal Motor Carrier Safety Administration. The rule requires electronic logging devices, instead of traditional paper logs, in trucks to track compliance on whether the engine is running, the time, and the vehicle’s approximate location. OOIDA argued that the rule did not consider confidentiality protections for drivers and that it instituted an unconstitutional search or seizure on truck drivers. (OOIDA v. U.S. Department of Transportation, U.S. Court of Appeals for the Seventh Circuit, No. 15-3756, 2016)