Law and Justice

Posts Tagged ‘Ruling’

On June 28, the Supreme Court ruled that the Second Amendment, which gives citizens the right to bear arms, is not limited by state and local laws. This means that states do not have the power to pass laws that put a limit on the amendment and an individual’s right to carry a weapon.

The controversial topic of gun control is not new to the United States. In fact, it is an issue the country has faced since the days of the Revolutionary War, Prohibition, and even the hippie era.

The following timeline highlights some important landmarks in the history of gun control that lead up to the recent Supreme Court case.

1775: As American try to gain independence, the British limit the amount of gun powder shipped to the colonies. Paul Revere is caught by British on their way to take U.S. weapons at an arsenal.

1822: Bliss v. Commonwealth solidifies peoples’ rights to bear arms to defend themselves. The right to bear arms is seen as an individual right.

1842: State v. Buzzard changes opinion and the right to bear arms is now seen as a political right, not an individual right. The case sends the country into decades of debate over whether the right to bear arms is an individual or collective right.

1856: The well known case of Dred Scott v. Sandford gives African Americans the right to bear arms.

1868: Amid worries that the Southern states were attempting to disarm former slaves, the 14th Amendment is enacted, stating that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

1934: Soon after the repeal of Prohibition and the violent gang related Saint Valentine’s Day massacre, the National Firearms Act is passed, requiring the registration of firearms.

1968: The Gun Control Act makes it illegal for anyone except licensed manufacturers, dealers, and importers to participate in interstate firearms transfers.

1974: The National Coalition to Ban Handguns is founded. It includes labor, religious, and nonprofit groups who support gun owner licensing, firearm registration, and the ban of privately-owned handguns (with a few exceptions) to fight gun-related crime.

1990: The National Coalition to Ban Handguns is renamed the Coalition to Stop Gun Violence.

1993: The Brady Act requires federal background checks to purchase guns in the United Sates.

1994: It becomes illegal to sell assault weapons to civilians, according to the Assault Weapons Ban.

2007: Background check requirements are added to by the NICS Improvement Amendments Act.

2008: The Supreme Court rules, in District of Columbia v. Heller, that the 2nd Amendment allows individuals to cary firearms in federal enclaves. The ruling does not make it clear whether the decision also applies to states.

2010: The Supreme Court rules that the 2nd Amendment is not limited by state and local laws and that individuals have the right to bear arms.

This summary is only the beginning. The history of American government and laws is very interesting, in depth, and pertinent to today’s rulings. Both the criminal justice and legal industries are full of exciting information and opportunities.

EMPLOYMENT LAW BASICS FOR HAWAII EMPLOYERS:  ILLINOIS RULING HIGHLIGHTS THE IMPORTANCE OF POLICIES AND TRAINING TO HAWAII EMPLOYERS  

It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.”  However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.  

Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence.  Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.

Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378.  State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors. 

While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.

The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation.  Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.

I.          The Importance of Having an Effective Harassment Policy

A.                The Faragher/Ellerth Defense

Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (“Faragher”) and Burlington Industries v. Ellerth, 523 U.S. 742 (1998) (“Ellerth”). 

Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.  “A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”  Ellerth, supra.

The importance of the Faragher/Ellerth defense was significantly increased by the U.S. Supreme Court’s decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

A zero-tolerance harassment policy must fit the environment and employees.  The Ellerth court stated:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.  The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.

Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense. 

B.        Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure. 

(1)               Write in simple English.

(2)               Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.

(3)               State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,

(4)               Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company. 

(5)               Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders. 

(6)               Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.

(7)               State that employees who report prohibited conduct will be protected from retaliation.

(8)               State that the employer will promptly investigate the matter in an objective and discrete manner.

(9)               Provide the form of disciplinary action to which offenders can expect to be subjected.

(10)           State that the employer will also take remedial action.

(11)           Train your management employees and line employees on the policy and procedure. 

(12)           Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy. 

C.        The Faragher/Ellerth Defense and Hawaii Law

Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment.  However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense. 

Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:

§12-46-109 Sexual harassment.

(a)        Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:

(1)        Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or

(2)        Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or

(3)        That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

(b)        In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

(c)        An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.

(d)       With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.

D.        Problem Areas for Employers

* Inadequate complaint procedure

* Failure to disseminate policy

* Employer on notice of harassment

 * Failure to promptly investigate

 * Failure to take appropriate disciplinary action

 * Failure to apply it even-handedly

 * Failure to review and revise when necessary

 * Failure to provide training

E.         Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?

In Sangamon Cty Sheriff’s Dep’t v. The Illinois Human Rights Comm’n, Nos. 105517, 105518 cons. (Ill. Apr. 16, 2009), decided on April 16, 2009, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.

The Sangamon decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”

In that case employee Feleccia filed a sexual harassment claim against employer Sangamon County Sheriff’s Department and Ron Yanor, who was a supervisor, but was not Feleccia’s direct supervisor.  The Illinois Human Rights Commission ruled that the Sheriff’s Department was strictly liable for Yanor’s conduct under the Act because Yanor was a supervisor. The Illinois appellate court reversed, and Feleccia and the Commission appealed to the Illinois Supreme Court.

The Illinois Supreme Court reversed and confirmed the Commission’s decision. In a 4-2 ruling, the Illinois Supreme Court agreed that the Sheriff’s Department could be held strictly liable in such circumstances.  The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard.  As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.”  The Court rejected the employer’s argument that federal case law should apply to the case.

II.        The Importance of Conducting EEO Training

Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment.  Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward. 

Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant.  Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace.  Training should include the consequences of violating company policy.

Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment.  See Arquero v. Hilton Hawaiian Village, 104 Hawai’i 423, 91 P.3d 505 (2004) (coworker pinched buttocks of the plaintiff on two occasions); Nelson v. University of Hawai’i, 97 Hawai’i 376, 38 P.3d 95 (2001) (verbal harassment).

Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.

Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.

A.        Training as a Tool for Prevention

The EEOC’s Policy Guidance on Sexual Harassment states:

An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result.  Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment.  Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.”  §12-46-109(g).

As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.

In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention.  Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival. 

Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge.  Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.

Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law—especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.

B.                 Training and the Faragher/Ellerth Defense

Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense.  The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.

C.        Training and Damages Issues Under Hawaii Law

Generally, individuals cannot be found liable for violations under federal law.  Under Hawaii law, however, courts may award unlimited punitive and compensatory damages. 

Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act.  See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”); Schefke v. Reliable Collection Agency, 96 Hawai’i 408; 32 P.3d 52, 93-94 (2001) (holding individuals may be found liable under Hawai’i Employment Practices law).

Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.

D.        Training to Reduce Exposure to Punitive Damages

In Kolstad v. American Dental Association, the Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’”  Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.

Roman Amaguin, Esq.; http://www.virtualhawaiiemploymentlawyer.com; http://www.amaguinlaw.com

 

 

 

 

 

 

Whether you’re a CEO of a company or a guy who sweeps floors for a living, the Ohio Supreme Court has put its stamp of approval on a law that could have devastating consequences for you if you’re seriously injured in an accident.

In a major opinion issued last month, the court showed contempt for its past decisions, disrespect for the Ohio Constitution, and disdain for the men and women who serve on juries.

The court, in a case called Arbino vs. Johnson & Johnson, said for the first time in Ohio history that it’s constitutional to disregard the findings of a jury if the jury decides to award more than $250,000 to someone injured in an accident to compensate for the person’s pain – even if that pain may last a lifetime.

The court reached this landmark decision despite clear precedent that such a law is unconstitutional. Essentially what the court says this time around is that the Ohio General Assembly really, really, really, really wants to limit damages for insurance companies, so who are we to stand in their way?

Look at what the Ohio Constitution says, then you decide whether what the court has done makes any sense. The relevant part of Article I, Section 5 states, “The right of trial by jury shall be inviolate …”

In Ohio, the constitutional right to trial by jury has always been interpreted to mean that judges and the government won’t be able to invade the jury’s fact-finding function.

That’s why jurors are there, right? To hear the facts of each individual case and decide what they think is fair. Now, though, jurors can spend days or weeks hearing the facts of a case, reach a difficult decision that the injured person should be awarded a sum to compensate for the pain an accident has caused, only to have that decision gutted by a judge if the sum exceeds $250,000.

How does the right to a trial by jury remain inviolate if a law requires judges to violate the decisions a jury reaches? We should probably now read the constitution to say: The right to a jury shall be inviolate, provided it doesn’t cost an insurance company too much money.

The right to have a jury determine the facts of a case has been the backbone of our legal system for hundreds of years. It serves as a check against a judge who might be corrupt or for some reason influenced by one side or the other. It’s a concept as old as our country and traces its roots to the Magna Carta. As the court’s majority notes, Thomas Jefferson viewed jury trials as “the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.”

If the court really believes those words, shouldn’t there be a much more compelling reason to upend the jury system than the desire to save insurance companies money? In the interest of full disclosure, I am a personal injury attorney and I work hard to help people who have been injured in accidents get a fair shake from insurance companies. And, yes, this decision has the potential to hurt my wallet in certain cases. The real impact on my practice likely will be minimal because most people aren’t hurt so seriously that the cap will apply. Regardless of my personal stake, this is simply a matter of right and wrong, and I don’t think people realize the impact of what’s actually taken place.

Everyone has heard about the infamous McDonald’s scalding hot coffee case. It’s a complete oddity, but insurance company lobbyists always trot it out as if it’s the norm. The caps enacted in Ohio are far more likely to affect the average man or woman unfortunate enough to get into an auto accident.

Here’s the nightmare situation that could happen to you or a family member. You’re driving to work when a guy driving a delivery truck takes his mind off the road while talking on a cell phone and plows into your car. Your head hits the window, your ankle is crushed when your car’s frame crumples, and your body is snapped back and forth like a rag doll, and your life has been altered forever.

The head trauma leaves you plagued by headaches. Your ankle injury means that every step causes pain to shoot through your leg. Your back hurts so much that getting a real night’s sleep is impossible. You can’t play ball with your kids anymore or even mow the yard. And the pain doesn’t go away after a week, or a month, or even a year. In fact, by the time you get to trial years have gone by and the docs are telling you you’ll never run again and your pain will always be with you.

A jury hears your case and awards you the cost of your medical bills that may have to be repaid, and lost wages, and decides – after hearing your testimony, your doctor’s testimony, your spouse’s testimony, the defense doctor’s testimony, and the defense attorney’s arguments – that your lifelong pain is worth $500,000. Or $1 million. Or $2 million. Whatever it is, it’s not enough to compensate you for what this accident has done to your life and no one – no one – in that courtroom would change positions with you for any amount of money.

That’s the point where the judge steps in and reduces the jury’s pain and suffering award to $250,000 because that’s what the law requires. The jurors heard the facts and struggled to come to a fair decision, only to have their legs cut out from them by a General Assembly that knew nothing about the facts of your case or the impact the accident has had on your life.

And our Supreme Court just blessed this system.

It blessed a system where a jury can hear the specifics of an individual case only to have the decision wiped out by an arbitrary cap the state Legislature’s Republican majority came up with to satisfy their chamber of commerce and insurance company campaign contributors.

The court justifies its decision on the thinnest of rationales. See if you can follow its logic: When judges reduce jury awards for pain and suffering, they aren’t interfering with a jury’s fact-finding function, they’re simply applying the law.

What?

Spin that around your head for a while. It never gets any clearer. So, the jurors can do their cute little dance, and we’ll pretend to care about what they have to say. But the second they award any money to someone that could actually make an insurance company pay fair compensation, well something simply must be done. Apparently, the right to trial by jury is inviolate, but only up to a point.

And there is nothing in the Supreme Court’s opinion that would stop the legislature from capping pain and suffering damages at $1 or $5. The amount of the cap isn’t the point. Caps are wrong at $1 million and wrong at $1. Jurors are in the best position to determine what someone deserves for the pain caused by an accident.

The caps can be lifted in extreme cases such as when someone loses a limb or can no longer independently care for himself and perform life-sustaining activities. But the caps apply to more common cases like I described above, even if the person will experience a lifetime of pain.

To their credit, Justices Terrence O’Donnell and Paul Pfeifer dissented from this badly reasoned and disheartening opinion.

I understand that the General Assembly desperately wanted to do the bidding of the business interests that have pumped millions of dollars into GOP campaign coffers. (Incidentally, those same interests also have contributed millions to Republican candidates on the all-Republican Supreme Court.)

Legislators, whether Republicans or Democrats, can get into all sorts of mischief when big money is thrown their way.

That’s why we have a right to expect that the Ohio Supreme Court will do more than justify its decisions by paying fawning deference to the legislature.

We have a right to expect someone in Columbus to stand up for the people of this state. And most importantly, we have a right to expect the court to apply Ohio’s Constitution and legal precedent, especially when we’re talking about something as cherished and revered as the jury system.

Laboratory analysts must now appear in court and submit themselves to cross-examination if their reports are admitted into evidence, according to a brand new ruling by the United States Supreme Court.

Last week’s 5-4 ruling in Melendez-Diaz v. Massachusetts mandates forensic analysts must appear in court under the Sixth Amendment Confrontation Clause which gives criminal defendants the right to confront witnesses.

Crime lab analysts previously were rarely subpoenaed to testify about their reports.

Justice Scalia questioned the reliability of forensic science as a whole, mentioning a recent National Academy of Science report which raised a number of issues.

Rejecting the Prosecutor’s position that forensic reports, as scientific findings, are neutral facts rather than accusatory testimony, he opined:

“Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences. & Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials.”

“Like expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination.”

Each state is left to establish a procedure for contesting lab reports and calling analysts to court, so it is too soon to tell what the ruling’s full consequences are.

This decision means a significant, future financial impact on crime labs by requiring analysts also to appear.  It usually takes twelve to twenty-four months to hire and train a new analyst, even if one’s budget supports new hirings.

Even considering that approximately 9 & 1/2 out of 10 cases end in a plea bargain, rights must be protected in that 5% that go to trial!

“The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause–like those other constitutional provisions– is binding, and we may not disregard it at our convenience.”