Denial of IVF Treatments Not Disability Discrimination

Employers buy health insurance policies for their employees every day. One employer, the Hayward Unified School District, was sued by one of its employees because it offered a policy that excluded a treatment from coverage. The treatment was for infertility. The employee’s wife sought I.V.F.(in vitro fertilization) treatments through the policy, and a number of these kinds of treatments were covered and paid for. One especially expensive treatment was however excluded. This treatment was used by the employee’s wife, and she conceived and delivered. Her husband then sued for disability discrimination.

• What: The Court ruled for the Employer
• Why: The policy didn’t discriminate:
• The policy excluded all persons equally under the plan
• The exclusion was “treatment” based, not “disability” based.

The confusion: The exclusion had a greater affect on persons with a disability
The clarification: All health policies have this incidental affect.
The finding: An exclusion of a treatment in a policy universally applied is not discriminatory.
The Case: Knight v. Hayward Unified School District (August 2005) (1st App. Dist.)



"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

The coke must be from my shampoo

Who: Eight African American Boston cops

The claim: The Boston PD's current testing of hair strands to detect drug use violates the plaintiffs' civil rights and constitutes racial discrimination because the hair texture and hair care products used by black people tend to produce false positive results of cocaine in the system. One of the plaintiffs took another independent test which had negative results, which the PD rejected.

Says Psychemedics Corp. (interpretor of the test) Vice President and General Counsel William Thistle: "People do not spontaneously create cocaine in their urine, blood or hair," He added that the assays have been verified by tens of thousands of test results that show no bias based on race.

None of the plaintiffs signed the BPD's rehabilitation agreement and were thereupon discharged. The plaintiffs chose not to sign claiming that the agreement required admission of illegal drug use, drug treatment, placement in an administrative position and submission to follow-up random drug testing for three years after the positive results.

What the plaintiffs are asking for: 1) Reinstatement with back pay 2) front pay 3) all benefits and seniority ranking 4) compensatory and punitive damages 5) a declaration that the BPD's drug-testing policies violate the Massachusetts and U.S. constitutions and a permanent injunction barring the use of the hair test and any other procedures that are racially biased.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

OPEN MIKE -- ANY COMMENTS

Let the blogsophere know your dispair, your passion, or the probing of your mind. Use the microphone (pardon me, the comment button) below.


"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Some tips on employee blogging

Almost everyone has or knows someone that has a blog these days. With the increasing number of blogs and the discrepancy in expectation of privacy of an employee’s blog between the employee and the employer, more and more employees are being terminated based on the content in their weblogs. So if you are about to put suggestive photographs on your blog or are considering blogging about work issues, you might want to know your rights:

~ Examine your employment agreement, union contract, employee handbook, etc which may address electronic privacy and computer use issues.

~ Restrict access to your blog and/or post anonymously! If you restrict access to your blog and your employer attempts to access it, they will probably be in violation of the law. You may want to think twice about blogging using your work computer or network (even after hours) because doing so will provide your employer with a much stronger claim to legally read your blog even if you restrict access to it.

~ Government employees are favored by their right to the First Amendment freedom of speech and are thus allowed more blogging rights especially if the content is of public concern and does not disrupt the workplace.

~ Some states prevent employers from interfering with legal activity outside the workplace (blogging has not been specifically included, but may provide a good argument).

~ Your employer typically cannot fire you for blogging about workplace issues that relate to terms and conditions of employment (wages, hours, etc) or unionization. Be sure to make a formal written complaint before you blog about the issue to help you prove that your employer is retaliating against you. Of course, there are exceptions to the retaliation rule: 1) You cannot blog about false or defamatory statements, statements that disclose an employer's trade secrets, and similarly unlawful statements 2) Independent contractors, supervisors, public employees (in some states), and other categories of employees are not included.

Check out the following links if you would like more information on blogging:

Blogger's FAQ
How to Blog Safely

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

The Workplace Religious Freedom Act

Currently, employers must "reasonably accommodate" an employee’s request for religious accommodation, unless doing so would cause “undue hardship” on the company. Even a minimal cost or difficulty can be considered "undue hardship." Therefore, many employers make little effort to accommodate religious workers.

The proposed Workplace Religious Freedom Act would raise the “undue hardship” standard and require employers to accommodate employees’ religious requests unless doing so would involve "significant difficulty or expense." The Act has been backed by Right and Left political groups and has been said to prevent employees from being forced "to choose between dedication to the principles of their faith and losing their job because their employers refuse to accommodate certain needs."

Sounds great, but what about those employees who aren’t religious or who are attacked by religious groups? Would these employees be at a great disadvantage? For example, take into consideration the recent firing of a born-again Christian man named Matt Barber by Allstate after Barber wrote an essay against homosexuals, apparently using his work computer to write the essay. Unfortunately for Barber, he did not quote any Biblical scriptures in his essay, thus probably weakening his religious argument. However, even if he had done so, under the current law Allstate may rightfully claim that Barber’s minimal use of his work computer and time at work was an undue hardship on the company. Under the WRFA, Barber could probably be allowed to regularly write anti-homosexual articles during work as long as it did not incur "significant difficulty or expense” on the company. Barber could also opt under the Act to not work with a gay or lesbian employee because of his religious beliefs.

So would the WRFA unjustly favor religious employees? Would the Act be unfair to atheists or agnostics who would be denied opportunities that only religious employees may take advantage of, such as being able to use their work time for religious purposes or having their position reassigned due to their religious beliefs?

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Dancing to the Little Guy Blues.

Have you ever lost your keys, misplaced your glasses, forgotten your billfold or purse, or left home without the grocery list? These errors I’m convinced are built into our human DNA.

Well, what if you’re a big Corporation? Have you ever misplaced that smoking gun memo that will cost you millions if it falls into the hands of the Plaintiff’s attorney? Have you ever accidentally cleaned up your electronic storage system so that numerous documents that would hurt your defense of a case unfortunately are lost forever? Or have you ever accidentally turned over a secret document that reflects your conversations with your attorneys during which they and you bemoan that you’ve been caught red handed breaking civil and criminal statutes? These errors I’m convinced are built into our corporate DNA.

Now, before your eyes glaze over, I want to quickly inform you that an effort of good intentions is underway and nearly completed, to create rules in the federal courts that address this corporate DNA problem. The rules have to do with one side (usually the little guy) getting numerous, voluminous, gargantuan amounts of electronically stored documents from the other guy (usually the “big guy”). Why should you care? You don’t practice law (or maybe you do, but don’t care anyway). Well, in an age where the dirt is stored electronically, using an archaic system of digging based on 20th Century discovery rules may not dig up much at all, and that may mean a lot to you. If you’re driving a vehicle, or taking a medication, or incurring a bank charge, or buying a baby crib, or virtually anything, you may find you (and your consumer rights lawyer) cannot make the case for a whole class of people without getting detailed, voluminous records related to the product or service in question.

The bottom line: the proposed federal E-Discovery Rules define the limits of how much searching, retrieving, and storing a corporation has to do to satisfy a “discovery” request. Basically, the Rules are heavily influenced by a Defense lobby that would allow Corporations to “take back” a privileged document accidentally included in a turn over of a large amount of electronic data. The rules also state the search effort is limited to electronic data that is “reasonably accessible” and then provide a loose definition of that phrase. And, of most popularity with the “big guy” is that there is a “safe harbor” from sanctions if data is “accidentally” destroyed. Some “big guys” are more accident prone than others, I suspect.

OK, I know you're on the edge of your seat with this titillating story-line. Maybe the story is really a bit philosophical. Technology has created new dance steps in the business of litigation, but the “big feet” keep “stepping on the toes” of the “little guy”. I know I sound a bit cynical, but maybe I’ve just got the “little guy” blues. The Golden Rule of the law, some cynics contend, is that the one with the gold rules.

"No can do, Mamdouh!"

If your name is Lakshminarayan Subrahmaniam but your boss insists over your repeated objections on calling you “Luke”, tell him in the name of El-Hakem that you no longer have to put up with it!

The case of El-Hakem v. BJY Inc. et al., Nos. 03-35514, 03-35544 and 03-35063, 2005 WL 1692470 (9th Cir. July 21, 2005) involved a CEO who continuously refused to call an Arab employee by his given name, Mamdouh El-Hakem. Instead, the CEO chose to lovingly call him by the more Westernized name “Manny”. The CEO, Gregg Young, claimed that he called El-Hakem "Manny" to better his chances of advancement and to make him "more acceptable" to the company’s clientele. Even though El-Hakem objected numerous times, Young left him only with the alternative of calling El-Hakem “Hank”. The 9th circuit ordered $30,000 in damages to be paid both by the CEO and by the company, holding that the company was liable for race discrimination.

The Court held that because "names are often a proxy for race and ethnicity," Young’s repeated intentional failure to address El-Hakem by his given name created a hostile environment that would have been offensive to a reasonable Arab. The Court found that the frequency and severity of the Young’s conduct, which were consistent and lasted for almost a year, was enough to support the verdict in favor of the plaintiff. Because Young was acting in the course and scope of his employment whenever he called El-Hakem "Manny", the Court held that the company could be held vicariously liable for Young's actions.

"If the pink slip doesn't fit,
get redressed!"
Link to see my wardrobe of remedies.

Should Domestic Partners be Handicapped?

The nation is at a cultural and ethical crossroads (again).  Multiple states are struggling with the question of “same sex marriage”.  Courts have shown a readiness to uphold these marriages as rights of equal protection of the laws under various state constitutions.  The idea is that marriage partners should not be denied the equal protection of the laws on the basis of gender.  

This conclusion has a hollow ring to it, I believe, because a society can legitimately define “marriage” as a unique relation having a gender based purpose:  the procreation and nurturing of children by the influence of male and female personalities.  While it may be politically incorrect, I think kids need a dad and a mom because each brings a type of nurturing and guidance that is gender influenced.  Both parents are needed to raise healthy, well-adjusted kids.  (Of course, anyone can cite numerous failed examples, but the idea is not to encourage the exception, but to advance the general principle for the best overall outcome).  

An adage of consequence is that “the law teaches”.  That is, people conclude that a behavior is acceptable because the law says it is.  The truth of course is that the law may permit an act that is ethically wrong.  Therefore, bad laws teach bad lessons, and encourage, at least indirectly, bad behavior.  Everyone suffers.  

Our California Supreme Court recently has acted as an ethical and philosophical arbiter on the question of marriage rights and obligations. Yes, the decision is of course a legal one, but one having obvious and profound impact on how persons will be “taught by the law” to view the morality of active homosexuality.   The Court was required to decide the enforceability of California’s Domestic Partner Act of 2003, which prohibits businesses from treating “registered domestic partners” (in this case Lesbians) differently than married couples.  

Basically, the case was brought by a Lesbian golf club member against the Golf Club because the Club denied her “domestic partner” free unlimited rounds of golf it granted by contract to the spouses of heterosexual married members.  The case was based on gender and “marital status” discrimination.  

The trial court had granted summary judgment for the Golf Club.  The Court of Appeal held that the particular form of marital status discrimination was legal, but ruled that there was a question of fact of whether the policy was enforced even-handedly (for example, were heterosexual “live-ins” given the privileges of heterosexual marriage partners?).  The Supreme Court hit the long ball.  It interpreted the 1959 Unruh Civil Rights Act (prohibiting discrimination by businesses on the basis of gender) together with the new 2003 Domestic Partners Rights Act.  Read together, the Court held, the Clubs practice was “marital status” discrimination.  Here’s the Court’s holding:  for purposes of the Unruh Civil Rights Act, a “domestic partner” is the equivalent of a “spouse”.    

The Case:  Koebke v. Bernardo Heights Country Club, 2005 DJDAR 9214 (Cal. Aug. 1, 2005).  

So, where do you “weigh in” on the question of “domestic partnerships”?  Did the 2003 “Domestic Partner Rights Act” snub the will of the electorate  who years earlier defined marriage to be exclusively between “one man and one woman”.  (Referendum of 1970s)?  Has the Court taught the “wrong lesson” or the “right lesson” by this decision?  Has this decision made it more likely the Court will uphold as constitutional the eventual enactment by our state legislature of a law that grants the title of “marriage” to same sex couples?  {The 2003 Act virtually grants all the legal privileges and benefits of marriage to homosexual domestic partners granted to “married” people}.