Domestic partners of federal government workers now qualify for enrollment in dependent benefits under certain federal employee benefit plans but not federal health and pension benefits under a presidential memorandum signed by President Obama June 17, 2009.   The memorandum also signals that President Obama anticipates extending other federal benefits to same-sex domestic partners later this year.

The presidential memorandum calls for allowing the domestic partners of federal employees to be added to the long-term care insurance program and permitting employees to use their sick leave to take care of domestic partners and non-biological, non-adopted children.   However, the presidential memorandum did not extend federal health and pension benefits to same-sex domestic partners.  Instead, the presidential memorandum:

• Orders all federal agencies and departments within the next 90 days to assess their other existing benefits to determine their authority to extend other existing benefits to same-sex domestic partners of their Federal employees and
• Directs the Office of Personnel Management to issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, rules, and regulations, including 5 U.S.C. 2302(b)(10), which make it unlawful to discriminate against Federal employees or applicants for Federal employment on the basis of factors not related to job performance.

You can read the presidential memorandum here.

Over the past decade, public and private employers increasingly have extended the availability of domestic partner benefits.  This trend is picking up more speed as various states have begun recognizing same-sex marriages or other official domestic partnership relationships and/or prohibiting discrimination in employment and other business transactions on the basis of sexual relationship.   The provision of these benefits continues to raise many tax and other operational issues, however.   Accordingly, businesses should seek the advice of competent legal counsel concerning these obligations.

Additional Resources & Information

We hope that this information is useful to you.  If your organization needs assistance with monitoring, assessing, or responding to these or other health care, employee benefit or human resources reforms,  please contact Ms. Stamer via e-mail here, or by calling (214) 270-2402.   For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here. 

For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here.

©2009 Cynthia Marcotte Stamer. All rights reserved.

A federal Fair Housing Act lawsuit recently filed by the U.S. Justice Department against a large Dallas-based construction and development company  and a series of its other releases signal that Department of Justice is gearing up for stepped up enforcement of the Public Accommodations and other provisions of the Americans With Disabilities Act.  To defend against this risk, all U.S. businesses should evaluate the adequacy of their existing business practices. 

On Tuesday, March 10, 2009, JPI Construction L.P. (JPI) and six JPI-affiliated companies in U.S. District Court in Dallas for failing to provide accessible features allegedly required by the Fair Housing Act and the Americans with Disabilities Act at multi-family housing developments in Texas and other states. Today, the Justice Department followed up by

 The Justice Department’s proclamation in its announcement of its filing of the suit against JPI that “Fighting illegal housing discrimination is a top priority” affirms this commitment under the Fair Housing Act. See “Justice Department Sues Large Multi-Family Housing Developer Alleging Disability-Based Housing Discrimination, U.S. Justice Department (March 10, 2009) at http://www.usdoj.gov/opa/pr/2009/March/09-crt-187.html.  According to the complaint, the JPI defendants failed to design and construct accessible dwelling units and public and common use areas at Jefferson Center Apartments in Austin, Texas; Jefferson at Mission Gate Apartments in Plano, Texas; and additional multi-family housing complexes in other states. The complaint alleges certain complexes designed and constructed by the JPI defendants have inaccessible steps and curbs leading to units, steeply sloped routes leading to units, and no accessible routes to site amenities, including inaccessible trash facilities, barbeque grills and cookout tables. In addition, certain housing units have narrow doors and hallways; kitchens that lack accessible clear floor space at the sinks, ranges and refrigerators; bathrooms that lack accessible clear floor space at the toilets and tubs; and thermostats that are mounted too high to be accessible to a person using a wheelchair. The Justice Department complaint asks the court to order monetary damages to victims of the alleged discrimination, to issue a court order requiring the defendants to modify the complexes to bring them into compliance with federal law, to prohibit future discrimination by the JPI defendants, and to assess civil penalties.

In a March 19, 2009 ruling, the U.S. District Court for the Northern District of Texas recently recognized that the Texas Whistleblower Act prohibits health care organizations run by the State of Texas from retaliating against employees for making good faith complaints of violations of the Privacy Rules of the Health Insurance Portability Act (“HIPAA”). Nevertheless, the court dismissed the wrongful discharge lawsuit brought by a former Terrell State Hospital security guard who alleged he was wrongfully fired for complaining to the U.S. Department of Health and Human Services Office of Civil Rights (“OCR”) that the Hospital violated the HIPAA Privacy Rules because the plaintiff had failed to present sufficient proof that he was terminated in retaliation for filing a HIPAA complaint.

Illustrative of a growing number of state law retaliatory discharge claims brought be employees claiming to have been retaliated against for complaining about alleged violations of HIPAA’s Privacy Rules, Faulkner v. Department of State Health Servs., 2009 U.S. Dist. LEXIS 22419 (N.D. Tex. Mar. 19, 2009), involved claims made by plaintiff Anthony Faulkner (“Faulkner”) that the Texas Department of State Health Services (“DSHS”); Terrell State Hospital; Texas DSHS Commissioner David L. Lakey, M.D.; Terrell State Hospital Superintendent Fred Hale; and Terrell State Hospital Risk Management Coordinator Clent Holmes, R.N. violated the Whistleblower Act and the First and Fourteenth Amendments by firing him seven days after he complained to OCR that Terrell State Hospital violated the HIPAA Privacy Rule by leaving admissions logs containing patient names and admission dates in a public area.

The Texas Whistleblower Act generally prohibits a state or local governmental entity from terminating or taking any other adverse personnel action against a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority. See Tex. Gov’t Code § 554.002(a). While the Court affirmed that the Texas Whistleblower Act permits a public employee of the State of Texas discharged or otherwise retaliated against for complaining in good faith to OCR that his public employer or its employee violated the HIPAA Privacy Rules, the Court nevertheless granted summary judgment to the defendants.

According to the court, Faulkner’s failure to introduce evidence rebutting defendant’s affidavit that he was terminated for repeatedly violating rules requiring him to report suspected abuse of patients precluded him from proving his termination was in retaliation for his filing of the HIPAA complaint. Meanwhile, the court also ruled that Faulkner’s claims against the individual defendants should be dismissed as the Whistleblower Act only creates a cause of action against governmental entities and not their employees. Having found Faulkner’s constitutional claims also without merit, the District Court granted the defendant’s motion for summary judgment.

While the defendants were able to overcome Faulkner’s retaliatory discharge claim, the decision highlights the need for health care providers and other HIPAA covered entities to take appropriate precautions to defend against potential wrongful discharge, retaliation or other claims by employees or other service providers for complaining of possible HIPAA violations or for attempting to exercise other HIPAA-protected rights. HIPAA covered entities now should avoid engaging in actions that might unnecessarily fuel claims of retaliation.  They also should carefully document and preserve evidence necessary to demonstrate the legitimacy of their disciplinary actions on an ongoing basis.

We hope you found this information helpful. If your organization needs assistance with understanding or managing its responsibilities or liabilities under HIPAA or other health care or employment laws or wishes to inquire about HIPAA training or other services and experience of Cynthia Marcotte Stamer, please contact Ms. Stamer via e-mail at Cstamer@Solutionslawyer.net or by telephoning Ms. Stamer at 469.767.8872. You also can review other helpful resources and register to receive other updates at CynthiaStamer.com.

©2009 Cynthia Marcotte Stamer.

Businesses that fire or discipline employees increasingly face retaliation claims by disgruntled workers.  A host of federal and state employment and other laws prohibit businesses from retaliating against employees for reporting possible prohibited conduct or seeking to exercise certain rights legally protected rights.  The U.S. Supreme Court’s recent decision in Crawford v. Metropolitan Gov’t of Nashville and Davidson County, No. 06-1595, highlights the need for employers to exercise constant viligence to potential retaliation claims and the need to act to avoid retaliating, or appearing to retaliate against employees when conducting internal investigations, terminations, promotions or other workforce management activities.

In its February 2, 2009 unanimous Crawford decision, the Supreme Court ruled that the anti-retaliation provisions of Title VII protect employees against retaliation for giving a “disapproving account” of unlawful behavior when responding to questions asked during the employer’s investigation of a sexual harassment discrimination, even if the employee took no further overt action to complain about, seek to remedy or stop the misconduct..

Vicky Crawford sued the employer under Title VII’s anti-retaliation provision, which prohibits an employer from terminating a worker because she “has opposed any practice made an unlawful employment practice” under Title VII.   The Crawford case arose from statements Ms. Crawford made in response questions addressed to her as part of her employer’s investigation of sexual harassment rumors.  Asked if she’d witnessed any inappropriate behavior by a supervisor, Ms. Crawford answered told the employer about a series of harassing acts by the supervisor toward herself.  Besides reporting her experience in reply to employer questions during the investigation, however, Ms. Crawford did not file a sexual harassment complaint or otherwise report her alleged sexual harassment experience to the employer.  Following the interview, the employer did not discipline the supervisor.  However, the employer subsequently fired Ms. Crawford and two other employees who also reported being harassed by the supervisor.  As part of its defense, the employer argued that Ms. Crawford’s report during the course of the investigation did not qualify as “opposition” prohibited under Title VII.   

The question before the Supreme Court was whether simply disclosing an act of harassment in answer to a question constitutes “oppos[ing]” an unlawful practice, or whether – as the court of appeals had held – opposition within the meaning of the provisions requires something more assertive.

Applying the ordinary meaning of “oppose,” the Supreme Court unanimously found that “When an employee communicates to her employer a belief that the employer has engaged in . . . employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.”  Accordingly, the Supreme Court ruled that protected opposition under Title VII includes giving a “disapproving account” of unlawful behavior, even if the employee takes no further action on her own to seek to stop or remedy the conduct.

In explaining its conclusions the Supreme Court stated that a contrary rule that would require a worker to engage in “active, consistent” behavior in order to engage in protected opposition would be inconsistent with common usage.  For example, the Court explained, one can “oppose capital punishment” without doing anything active to end it.  The Supreme Court rejected as “freakish” an interpretation of “opposition” that would protect an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”

While concurring in the unanimous opinion, Justices Alito and Thomas cautioned against reading that opinion too broadly. Their opinion clarifies that in their view, covered opposition must be “active and purposive” to qualify as protected.  Consequently, they warned that the Court’s opinion should not be read to suggest that Title VII protects merely opposing a practice in principle (like opposing capital punishment) without taking any action at all to express that opposition.

Although the report by Ms. Crawford involved her notification to the employer that she too may have been sexually harassed, the implications of the Crawford decision reach more broadly.  The decision illustrates the need for businesses not to overlook the potential significance of the statements and conduct by employees involved in any internal investigation, performance, or other activity that might later form the basis of a retaliation complaint.  Businesses should listen carefully when conducting investigations, employee counseling and discipline meetings, and exit interviews with an eye out for the need to investigate potential legal violations, defend against retaliation charges, or both.    Although businesses should continue to require employees to report known or suspected discrimination or other prohibited conduct in accordance with a specified formal procedure,  the Crawford decision reminds businesses not to overestimate the protection afforded by the establishment of formal reporting procedures.  It also illustrates the need for businesses to be careful to investigate and properly respond to new charges of discrimination or other potential legal or policy violations that may be uncovered in the course of an investigation, disciplinary meeting or exist interview.    At the same time, businesses also must evaluate the potential implications of their dealings with employees who previously have made charges, participated in investigations, or claimed other protected rights such as taking a protected leave or the like.