August 2019 Legal Report
Former U.S. Department of State employee Candace Marie Claiborne pled guilty to conspiracy to defraud the United States. Claiborne was accused of lying to law enforcement and background investigators, as well as hiding extensive contact with and gifts worth tens of thousands of dollars from two Chinese agents, in exchange for providing them with internal department documents.
According to the plea, Claiborne began working for the State Department in 1999, serving in various posts, including embassies and consulates in Iraq, Sudan, and Beijing and Shanghai, China. Claiborne maintained a top-secret clearance, as required for her job, and was also meant to report contact with anyone suspected of having ties to a foreign intelligence agency, plus any gifts from foreign sources that were worth more than a certain amount.
Nevertheless, she failed to report repeated contact with two intelligence agents of the People's Republic of China, even though they provided gifts and benefits to Claiborne and her family for more than five years. According to the U.S. Department of Justice, the gifts and benefits, worth tens of thousands of dollars, included cash wired to Claiborne's USAA account, Chinese New Year's gifts, international travel and vacations, tuition for a Chinese fashion school, a fully furnished apartment, a monthly stipend, and numerous cash payments. Claiborne estimated that in exchange for providing the agents with copies of internal State Department documents on certain topics—including U.S. economic strategies, visits by dignitaries between the two countries, and analyses on a U.S.-Sino strategic economic dialogue—she could earn $20,000 within a year. (United States v. Candace Claiborne, U.S. District Court for the District of Columbia, No. 17-cr-69, 2019)
The U.S. Department of Justice (DOJ) agreed to a $600,000 settlement with Robert Hatfield over a lawsuit alleging violations of the Fair Housing Act and the Equal Credit Opportunity Act. Hatfield was accused of subjecting 17 prospective and actual female residents of homes he owned in North Carolina to sexual harassment for more than 10 years.
The settlement includes $550,000 in monetary damages to the women and a $50,000 civil penalty; it permanently bans Hatfield from involvement in renting, selling, or financing residential properties; and requires he forfeit ownership interest in all such properties.
In 2017, Hatfield was accused of sexually harassing female residents and housing applicants of the homes he managed, including making unwanted sexual advances and comments; groping or touching them without consent; offering to reduce or eliminate down payments, rent, and loan obligations in exchange for sexual favors; and taking or threatening adverse action against residents who rejected or protested his advances. (United States v. Robert Neal Hatfield, U.S. District Court for the Western District of North Carolina, No. 5:17-cv-00121, 2019)
In a ruling dealing with a bus company, a New Jersey appeals court supported established law that, on its own, obesity is not protected by the state's Law Against Discrimination (NJLAD).
In 2005, Corey Dickson started working for Community Bus Lines as a bus driver. One of the requirements for employment was maintaining a valid commercial driver's license (CDL), which in turn required him to pass a medical examination every two years, proving employees are fit to drive. In 2015, Dickson's doctors determined he needed additional testing. His supervisors placed him "out of service" until he was retested, which was eventually changed to an extended leave of absence. Dickson sued Community in February 2016, while still on leave, alleging the employer discriminated against him by seeing him as disabled because of his obesity. During the appeal, Dickson relied on a hostile work environment claim that stemmed from the perceived disability.
The appellate court, unanimously supporting the trial court's judgment, ruled that there was a lack of direct or circumstantial proof that Community perceived the defendant as disabled because of his obesity. The Appellate Division also agreed with the lower court that Dickson could not establish a hostile work environment claim because he was not part of a protected class. The court upheld the state's precedent that obesity that is not the result of a birth defect, a bodily injury, or illness is not considered a disability under the NJLAD. (Dickson v. Community Bus Lines, Superior Court of New Jersey Appellate Division, No. A-3857-17T3, 2019).
A U.S. Tucson fire paramedic was awarded $3.8 million in a settlement with the city after the department deprived her of an appropriate and private lactation space.
A U.S. federal jury ruled in favor of Carrie Clark, who sued the City of Tucson, Arizona, in 2014, claiming the fire department and city human-resources staff denied her requests for a transfer to a station amenable to her need to pump breast milk. After informing the city that the department might have breached federal labor laws in this instance, Clark said city officials retaliated and harassed her. According to the Arizona Daily Star, department and city officials said Clark did not deserve special accommodations and questioned her lactation frequency; retaliation also included involuntarily transferring her and giving her training for being discordant with others.
The U.S. Department of Labor states that employers must provide break time for employees to pump breast milk for one year after giving birth and also provide a private place that is not a bathroom for employees to pump. The jury found the city had violated Clark's rights under the Fair Labor Standards Act and Title VII.
Tucson is considering filing an appeal, according to the Star. (Carrie Ferrara Clark v. City of Tucson, U.S. District Court for the District of Arizona, No. 4:14-cv-02543-TUC-CKJ, 2019)
The U.S. Department of Health and Human Services (HHS) issued a new rule that allows hospitals, healthcare staff, and religious hospitals to exercise religious or conscientious objections against certain services, including abortion, sterilization, vaccinations, or assisted suicide.
The rule, which became effective 30 July, allows any healthcare employee—including those in hospitals and pharmacies—the ability to deny certain care to a patient if the worker has a religious or conscientious objection to the procedure.
According to the HHS, this rule, issued under the department's Office for Civil Rights (OCR), ensures "vigorous enforcement of federal conscience and anti-discrimination laws."
In a written statement, OCR Director Roger Severino said that the new rule also protects healthcare facilities and staff from peer discrimination or bullying. "Protecting conscience and religious freedom not only fosters greater diversity in healthcare, it's the law," Severino said.
The department cited various precedents and laws supporting the protection of healthcare individuals and entities with such objections and convictions.
Speaking with NPR, the American Civil Liberties Union's Deputy Legal Director Louise Melling said the rule protects healthcare personnel who have an indirect involvement to procedures related to reproductive care, including abortions, emergency abortions to protect the life or health of the mother, sterilizations, and administration of birth control. Such involvement in these procedures could be as tangential as taking a patient's blood pressure, according to Melling.
The U.S. Department of Labor Wage and Hour Division published a notice for a new rule that, if enacted, will revise the overtime exemptions for white-collar workers, replacing an Obama administration proposal.
The new regulation for the Fair Labor Standards Act would set the minimum salary threshold for overtime exemption at $35,308 annually, or $679 weekly, an increase from the current $23,660 annually, or $455 weekly threshold. Employees earning less than the threshold will automatically qualify for overtime pay if they work more than 40 hours within a week.
The proposed rule would also regularly raise the salary threshold every four years.
If implemented, the new regulation would extend overtime pay eligibility to an additional 1 million employees.
The department's rule is expected to take effect in January 2020.
Maine became the eighth U.S. state to prohibit private employers from inquiring about job applicants' salary histories.
Maine Governor Janet Mills signed the bill, L.D. 278, which explicitly bans employers from asking about such information until after a job offer has been negotiated and offered to prospective employees. Making such inquiries prior to the offer would be considered evidence of unlawful employment discrimination.
Under the law, if an applicant voluntarily (and without prodding) discloses salary history then the employer can confirm the information. Employers can also request salary history under any federal or state law that specifically requires the information for employment purposes.
Besides amending the state's Human Rights Act and equal pay law, the new legislation also introduces wage transparency language. When done to enforce employees' rights, this additional provision restricts an employer from forbidding employees from divulging their own wages or asking about other employees' earnings.
Other states that already have similar bans in place include California, Connecticut, Delaware, Hawaii, Massachusetts, Oregon, and Vermont.
Under a new law, Kentucky employers must now provide an appropriate environment to any workers limited by pregnancy, childbirth, or related medical conditions.
The Kentucky Pregnant Workers Act, S.B. 18, effective 27 June 2019, is only limited if providing such accommodations would result in extreme hardship for the employer. The new legislation, which amends the Kentucky Civil Rights Act (KCRA) and also applies to an employer's agents or contractors, includes employers that have at least 15 workers for at least 20 calendar weeks per calendar year. The amendment expands the purview of the law, requiring employers to provide accommodations not only for disabled workers but also those who are limited under the Americans with Disabilities Act Amendments Act or KCRA; "limited" is not defined in the new law.
Under the act, which was signed into law by Governor Matt Bevin, such medical conditions include lactation and the need to pump breast milk for a nursing child. Examples of feasible accommodations an employer can provide include more frequent or longer breaks, a private space separate from a bathroom for pumping breast milk, modified schedules, additional time off to recover from childbirth, or a temporary transfer. The new law does not stipulate how long an employer must accommodate a nursing mother.
Employers are also required to provide written notice of the law to employees. It also mandates timely conversations between employers and employees about accommodations under the law.
Elsewhere in the Courts
The U.S. Department of Justice (DOJ) charged Chinese-based hackers for a series of computer intrusions, including a 2015 data breach of health insurer Anthem that impacted more than 78 million people. A federal grand jury charged Fujie Wang and John Doe with conspiracy to commit fraud and related activity in relation to computers and identity theft, conspiracy to commit wire fraud, and two counts of intentional damage to a protected computer. The DOJ alleged the group targeted four large U.S. businesses, hacked into their computer networks, and installed malware and tools on the compromised systems. (United States v. Fujie Wang, John Doe, Defendants, U.S. District Court for the Southern District of Indiana, No. 1:19-cr-00153-JRD-MJD, 2019)
A U.S. appellate court decided a plaintiff with post-traumatic stress disorder (PTSD) is not disabled under the American with Disabilities Act (ADA). Those filing an ADA complaint must show that they have a physical or mental impairment that substantially limits significant life activities, according to the ruling. Cindy Tinsley filed complaints in 2015 against her employer, Caterpillar, alleging her supervisor created a hostile work environment. Although she was granted leave after being diagnosed with PTSD, her employers would not reassign her to a new manager. The court determined that Tinsley was not disabled under the ADA because she was not substantially limited in a major life activity. (Tinsley v. Caterpillar Fin. Servs., Corp., U.S. Court of Appeals for the Sixth Circuit, No. 18-5303, 2019)
SEXUAL ORIENTATION BIAS
The Eighth Circuit Court is considering if a man who married his husband in Illinois is facing discrimination from a Missouri employer. Mark Horton claimed that Midwest Geriatric Management rescinded a job offer after discovering his sexual orientation. Of the two U.S. states, only Illinois outlines a clear route for him to sue for discrimination. The court will examine where individuals can file sexual orientation discrimination claims under federal law, an argument that already received different conclusions from appeals courts, federal agencies, and others. (Horton v. Midwest Geriatric Mgmt., U.S. Court of Appeals for the 8th Circuit, No. 18-1104, 2019)