Supreme Court Affirms Whistleblower Protections

This morning, the Supreme Court released its opinion in Department of Homeland Security v. MacLean (Case No. 13-894).  The facts of the case were quite simple:
Robert J. MacLean was an air marshall with the TSA.  In July 2003, the TSA briefed all federal air marshals—including MacLean—about a potential plot to hijack passenger flights. A few days after the briefing, MacLean received from the TSA a text message cancelling all overnight missions from Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous and illegal. He therefore contacted a reporter and told him about the TSA’s decision to cancel the missions. After discovering that MacLean was the source of the disclosure, the TSA fired him for disclosing sensitive security information without authorization. 

MacLean argued that his disclosure was "whistleblowing activity" under a law that protects employees who disclose information revealing “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.”  That law's protections, however, do not extend to disclosures that are "specifically prohibited by law.”  The TSA felt that MacLean's disclosures were "specifically prohibited" by by the TSA’s regulations on sensitive security information, and therefore not protected by the whistleblower law.  

After a long series of legal battles and appeals, the case finally wound up at the U.S. Supreme Court.  This morning, the Justices ruled that MacLean's disclosures were protected, because the TSA’s regulations do not count as "law."  Remember - the only exception to the whistleblower protection is for disclosures "specifically prohibited by law” - not "specifically prohibited by regulations,” or "specifically prohibited by rules.”  Since the TSA regulations are not "law," MacLean's disclosure to the press was protected, said the Court.

This was a tricky case for the Justices - they had to balance individual rights, and the public's "right to know" against issues of national security.  In this case, they tipped the balance in favor of the whistleblower.  What do you think?  Did they get it right?

Texas Bill Targets Gender Identity, Sexual Orientation Bias

A Texas representative this week introduced a proposal that would ban discrimination by state contractors on the basis of sexual orientation or gender identity, the latest of a handful of bills seeking to expand equal rights protections.

H.B. 582, filed Monday by Rep. Chris Turner, D-Grand Prairie, would prohibit contractors hired by any state agency from denying employment or firing an individual based on sexual orientation or gender identity and require contractors to adopt a policy prohibiting discrimination on those grounds. 

No "Magic Words" Needed to Trigger FMLA

When an employee requests leave, the employer's responsibilities under the Family & Medical Leave Act ("FMLA") are triggered if it has "knowledge that an employee's leave may be for an FMLA-qualifying reason."  29 CFR 825.300(b)(1).  Once it has that information, it must provide the employee with an FMLA Eligibility Notice within five business days.  Id.  The key word is "may" - the employer must provide the notice if the request leave "may" be for an FMLA-qualifying reason.  The employee need not prove that the reason is FMLA-qualifying, or use any special words to trigger the law's protection.  Employers should err on the side of caution.  If an employee mentions illness or injury as the reason for an absence, then the absence "may" be FMLA-qualifying, and the notice should be provided.

This year, a court in Pennsylvania affirmed that point.  In Munoz v. Nutrisystem, Case No. 13-4416 (E.D. Pa. July 30, 2014), Ms. Munoz requested a day off work, explaining that she had "an infection and [her] neck was out."  The employer moved to dismiss the case, arguing Munoz's request was insufficient to trigger its obligations under the FMLA.  The court disagreed.  It held that Munoz's request (alluding to her neck as a reason for being out) was sufficient to put the employer on notice that her leave "may" have been FMLA-qualifying.  It noted that a jury might also conclude the company should have inquired further, to find out for sure whether FMLA leave was needed.

American Lawyer says the case "emphasizes to counsel and clients that every absence should be looked at carefully in relation to disability or FMLA claims," and "if there is ever a question...the "tie" should always go to the employee."

When are Your Coworkers "Similarly Situated" to You?

Employees commonly rest their discrimination cases on a showing that "similarly situated" coworkers were treated more favorably.  For example: an employee with an age discrimination claim might argue that he was disciplined for being late, while his younger coworkers were not.  That fact doesn't matter in court, however, unless he can show that the younger coworkers were "similarly situated" to him - i.e., that they all had the same work
responsibilities, supervisors, and the like.  Stated another way, the coworkers' infractions must have taken place  “under nearly identical circumstances.”

Today, the 5th Circuit issued an opinion re-affirming this standard:  Harvey Hoffman v. Baylor Healthcare System, Case No. 14-10258 (5th Cir., Jan. 6, 2015).  Mr. Hoffman sued his employer, claiming that he was fired because of his age.  Hoffman was employed as an MRI Technician, and he admitted that he “clearly had culpability in the breakdown of the MRI process." He claimed, however, that other younger employees were not held to the same standards that he was.  He identified to younger coworkers who got away with similar misconduct without being disciplined, and claimed they were "similarly situated" to him, except for the fact that they were younger.  The trial court dismissed his case, and the Fifth Circuit upheld the dismissal.  The problem was that the younger coworkers "did not share the same supervisor as
Hoffman," worked "in entirely different departments of the hospital," were not MRI Technicians, and thus "were not subject to the requirements of Hoffman’s job description," and unlike Hoffman, did not have discipline histories.  In short, the coworkers were "insufficiently similar" to support a claim of differential treatment.

This is a good lesson on the type of evidence necessary to support a claim of discrimination.  To show that you were treated less favorably than your coworkers, the coworkers you're comparing yourself to must be "similarly situated" to you.

Saks Fifth Avenue Says Trans Identity Is Not Protected

Leyth Jamal, a transgender female, filed a federal lawsuit against Saks Fifth Avenue, claiming she was exposed to a hostile work environment when she was employed there.  On December 29, 2014, Saks filed a motion to dismiss the case, arguing that trans identity is not protected under the law.  The Department of Justice has recently taken the stance that anti-trans discrimination illegal under Title VII of the Civil Rights Act.  In 2012, the EEOC also held that transgender discrimination (also known as gender identity discrimination) is unlawful.  See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).  Those agency rulings, however, are not necessarily binding on the court.  This case will be one to watch.