August 2018 Legal Report

Strategic Security
August 2018 Legal Report
 

​Judicial Decisions

PREVENTION. The Supreme Judicial Court of Massachusetts ruled that a college and its professors are not responsible for a student's suicide but held that a duty to prevent suicide may exist in some instances.

Han Duy Nguyen was a graduate student at the Massachusetts Institute of Technology's (MIT's) Sloan School of Management and lived off campus. After his first two years at MIT, Nguyen contacted Sloan's program coordinator for assistance with test-taking. He explained that he was failing his classes because he did not know how to take exams, according to court documents.

The coordinator referred Nguyen to an MIT student disability services office coordinator. After two meetings in July 2007, however, Nguyen told the program coordinator that the disability services office coordinator meetings were "absolutely no use," the lawsuit said. The program coordinator then referred Nguyen to MIT's mental health and counseling service.

After meeting with a psychologist who attempted to provide him with information on test anxiety, Nguyen initially refused services because he did not want to be stigmatized for doing so.

Nguyen went back to meeting with the psychologist, however, where he disclosed a history of depression and two prior suicide attempts during college. Roughly a month later in August 2007, Nguyen declined to meet with the MIT psychologist saying that he had made other arrangements for treatment with a local psychiatrist.

In September of that year, Nguyen emailed an assistant dean in the student support office asking for help taking exams and seeking counseling services that taught study skills. In a subsequent meeting, Nguyen disclosed to the assistant dean his history of mental health issues and depression, and that he was seeing a psychiatrist off campus.

Nguyen later met with the assistant dean again and shared that he'd been having frequent suicidal thoughts, but that he was seeing his psychiatrist and had an appointment with a therapist in Rhode Island. Nguyen also gave the assistant dean permission to contact the psychologist, the psychiatrist, and the therapist.

After the dean reached out to the psychiatrist and left a voicemail, however, Nguyen revoked his permission to contact the psychiatrist. According to court documents, Nguyen emailed the assistant dean that he would "like to keep the fact of my depression separate from my academic problems. I'd prefer that we not any further discuss the depression, that my academic problems can be framed in terms of a deficit in study skills instead."

Nguyen continued to see a variety of professionals for treatment, and in 2009 he met with an MIT professor who told him an email he sent was unprofessional and rude. Immediately after the meeting, Nguyen committed suicide by jumping off a bridge.

Nguyen's family sued MIT, charging that the university and the professor had a duty to care for Nguyen and prevent his suicide because they were aware of his mental health problems.

MIT argued that Nguyen's mental health issues predated his enrollment at the university and that he had refused to use MIT's support services, opting to receive treatment from other professionals.

A district court dismissed Nguyen's family's case, which reached the Supreme Judicial Court of Massachusetts on appeal.

That court also dismissed the case, explaining that the university did not have a duty to prevent him from committing suicide and that "a 25-year-old graduate student's right to privacy, autonomy, and self-determination were properly respected."

Despite the dismissal, however, the court said that colleges could have a duty to protect their students if they know of a previous suicide attempt while the student was enrolled, or if he or she communicated an intention to commit suicide.

The court wrote that "…failing to act to intervene to save a young person's life, when it was within the university's knowledge and power to do so" would carry "moral blameworthiness" for the university and those with that knowledge. (Nguyen v. MIT, Supreme Judicial Court of Massachusetts, No. SJC-12329, 2018)

 

RETENTION. A former CIA contractor pleaded guilty to illegally retaining classified materials during his em­ployment.

Reynaldo B. Regis, 53, was assigned to the CIA as a contract worker between August 2006 and November 2016. During that time frame, he used classified CIA databases to conduct unauthorized searches and copied classified information into notebooks for his personal use. Regis then took those notebooks home without authorization, according to the U.S. Department of Justice (DOJ).

"When initially interviewed by federal law enforcement, Regis lied about having done so," the DOJ said. "During a search of his home, FBI agents recovered approximately 60 notebooks containing classified information. The classified information contained in the notebooks included information relating to highly sensitive intelligence reports, disclosure of which could cause serious damage to the national security."

Regis could face up to a maximum of five years in U.S. federal prison for his crimes. His sentencing is scheduled for September 21, 2018. (U.S. v. Regis, U.S. District Court for the District of Virginia, No. 1:18-cr-209, 2018)

 

AIRPORT SECURITY. Three Muslim-American men will be allowed to move forward with a case against FBI agents for detaining them at airports, a U.S. court of appeals ruled.

Muhammad Tanvir, Jameel Algibah, and Naveed Shinwari were all born abroad and legally immigrated to the United States early in their lives. All three were approached by U.S. federal agents and asked to serve as informants for the FBI.

"Specifically, plaintiffs were asked to gather information on members of Muslim communities and report that information to the FBI," according to court documents. "In some instances, the FBI's request was accompanied with severe pressure, including threats of deportation or arrest; in others, the request was accompanied by promises of financial and other assistance."

All three plaintiffs refused to participate, based in part on their religious beliefs. In response, according to their lawsuit, the agents put the plaintiffs on the national "No Fly List," despite never having posed, or being accused of posing, a threat to aviation safety.

These actions, the plaintiffs said, forced them into an "impermissible choice" between following their religious beliefs and being placed on the "No Fly List." They alleged it "placed a substantial burden on their exercise of religion," court documents said.

Being placed on the "No Fly List" also caused the plaintiffs to allegedly suffer emotional distress, reputational harm, and economic loss, in addition to prohibiting them from flying for several years.

In response, Tanvir, Algibah, and Shinwari filed suit against senior U.S. law enforcement officials and others, alleging that for refusing to serve as informants they had been placed on the "No Fly List"—a violation of their First Amendment and Religious Freedom Restoration Act (RFRA) rights.

The plaintiffs sought injunctive and declaratory relief against the defendants in their official capacities, and compensatory and punitive damages from U.S. federal law enforcement officers in their individual capacities for violations under the First Amendment and the RFRA.

The plaintiffs and defendants agreed to stay the official capacity claims, and a district court dismissed the individual capacity claims because it held that "RFRA does not permit the recovery of money damages against federal officers sued in their individual capacities," according to court documents.

The plaintiffs appealed the decision, and the U.S. Court of Appeals for the Second Circuit reversed the district court's decision. The appellate court concluded that the RFRA does authorize individual capacity claims against U.S. federal officers, allowing the plaintiffs' suit to move forward.

"…we hold that RFRA…authorizes a plaintiff to bring individual capacity claims against federal officers or other 'person[s] acting under color of [federal] law,'" the court explained.

The appellate court also said that the RFRA allows plaintiffs to obtain relief against the government, including in the form of money damages from U.S. federal officers sued in their individual capacities.

The appellate court reversed the district court's decision and remanded the case. (Tanvir v. Tanzin, U.S. Court of Appeals for the Second Circuit, No. 16-1176, 2018)

 

Regulations

DRESS CODES. New guidelines from the United Kingdom's Government Equalities Office prohibit employers from singling out women in dress codes.

The guidance is designed to prevent sexism in the workplace and will require employers to have similar dress standards for men and women at work.

"It is best to avoid gender specific prescriptive requirements, for example the requirement to wear high heels," the guidance said. "Any requirement to wear make-up, skirts, have manicured nails, certain hairstyles, or specific types of hosiery is likely to be unlawful."

The guidance also says that transgender employees should be allowed to dress in the manner that reflects their gender identity, including being provided a staff uniform that matches their gender identity.

Additionally, the guidance says employers should "be flexible and not set dress codes which prohibit religious symbols that do not interfere with an employee's work."

 

INFORMATION TECHNOLOGY. U.S. President Donald Trump issued an executive order to empower government agency chief information officers (CIOs) to ensure system security, efficiency, accessibility, and effectiveness.

"Enhancing the effectiveness of agency CIOs will better position agencies to modernize their IT systems, execute IT programs more efficiently, reduce cybersecurity risks, and serve the American people well," the order said.

Under this executive order, CIOs will report directly to the agency head, serve as the primary strategic advisor to the agency head on the use of IT, have a role in annual and multiyear planning related to IT, and approve the appointment of any component CIO within that agency.

 

Legislation

Georgia

BACKGROUND CHECKS. Georgia Governor Nathan Deal signed legislation into law that requires nursing homes and long-term care facilities to run extensive background checks on employees.

The "Georgia Long-Term Care Background Check Program" requires employers with workers that provide "direct access" to seniors in long-term care facilities to conduct national background checks on those employees. The law applies to businesses that provide personal home care, assisted living communities, private home care, home health agency, hospice care, nursing home care, skilled nursing facility, or adult day care.

The law, however, excludes physicians, dentists, nurses, and pharmacists who are licensed by the state of Georgia. It also excludes individuals that are contracted with an organization but do not provide direct care to patients, such as accounting staff.

This requirement goes into effect on October 1, 2019. It was passed in response to a rise in elder abuse in Georgia.

 

New York

HARASSMENT. New York City Mayor Bill de Blasio signed legislation into law designed to protect employees from sexual harassment.

The Stop Sexual Harassment in NYC Act requires employers with 15 or more employees to conduct a yearly interactive anti-sexual harassment training that meets certain requirements, including descriptions and practical examples of sexual harassment, internal complaint processes available, and the importance of bystander intervention.

The law also requires supervisors and managers to receive additional training, including on their responsibilities to prevent sexual harassment and retaliation.

Additionally, the law extends the statute of limitations for filing claims under the New York City Human Rights Law from one year to three years after the alleged conduct occurred.

Elsewhere in the Courts​

Harassment. Goodwill Industries of the East Bay Area and its affiliate, Calidad Industries Inc., will pay $850,000 to settle a sexual harassment and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The suit alleged that six female janitors on the night shift employed by Goodwill were subjected to routine sexual harassment by their supervisor, such as putting his arms around them. The employees reported the harassment to two managers, who were disciplined in retaliation for supporting their claims. (EEOC v. Goodwill Industries, U.S. District Court for the Northern District of California, No. 4:16-CV-07093, 2018)

Discrimination. Restaurant chain Seasons 52 will pay $2.85 million and other relief to settle a class age discrimination lawsuit brought by the EEOC. In litigation, 135 individuals under sworn testimony said that Seasons 52 managers asked them their age during interviews or made age-related comments, such as "Seasons 52 girls are younger and fresh," according to the EEOC. Under the consent decree, Seasons 52 will compensate affected individuals 40 and older who applied to work at the restaurant chain but were denied positions because of their age. (EEOC v. Seasons 52, U.S. District Court for the Southern District of Florida, No. 15-cv-20561-JAL, 2018)

Gambling. The U.S. Supreme Court struck down a U.S. law that prevented states from legalizing sports gambling. The law in question was the Professional and Amateur Sports Protection Act of 1992 (PASPA), which Congress promulgated to protect the integrity of sports, according to its sponsors. The law permitted live sports betting only in Nevada casinos. This ruling paves the way for other states to establish their own regulated sports betting. Writing for the majority, Justice Samuel Alito wrote that the law was a violation of the anti-commandeering doctrine—a provision of the 10th Amendment that says if the Constitution does not give a power to the U.S. federal government or keep it from U.S. states, it is reserved for the states or the people. (Murphy v. National Collegiate Athletic Association, U.S. Supreme Court, No. 16-476, 2018)