July 2018 Legal Report

Strategic Security

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July 2018 Legal Report
 

​Judicial Decisions

WAGES. Employers cannot use prior salary to justify pay discrepancies between men and women hired for the same position, a U.S. federal court of appeals ruled.

"The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex," wrote Circuit Judge Stephen Reinhardt in his opinion for the court. "The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history, and purpose of the Equal Pay Act, the answer is clear: No."

The ruling stems from a case brought by Aileen Rizo, who was hired as a math consultant by the Fresno County Office of Education in October 2009. Rizo's previous employer paid her a salary of $50,630 for 206 working days as a middle and high school math teacher, along with an educational stipend of $1,200 per year for her master's degrees.

As a Fresno County employee, Rizo was paid a salary of $62,133 for 196 days of work with a master's degree stipend of $600. Her salary was determined using the county's standard operating procedure (SOP) of 10 stepped salary levels, with a new hire's salary determined by adding 5 percent to his or her previous salary and placing the individual in the corresponding step. The SOP did not consider experience.

In 2012, Rizo learned that her male colleagues were hired at higher salary steps—meaning their salaries were more than hers because their previous salaries were higher. She filed a complaint with the county, which said all salaries were determined using the SOP.

Rizo filed suit against Jim Yovino, the superintendent of the Fresno County Office of Education, in February 2014, alleging that the county had violated the Equal Pay Act, engaged in sex discrimination, and failed to prevent discrimination under California state law.

Fresno County argued that setting Rizo's salary at a level lower than her colleagues was legal because it used the same SOP to set all employees' salaries. It filed a motion to dismiss the suit, arguing that it was not a violation of the Equal Pay Act to use previous salary to set employees' salaries.

Rizo's case reached the U.S. Court of Appeals for the Ninth Circuit, which took up the case to clarify the law.

"We now hold that prior salary alone or in combination with other factors cannot justify a wage differential," Reinhardt wrote. "To hold otherwise—to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum—would be contrary to the text and history of the Equal Pay Act and would vitiate the very purpose for which the Act stands."

The wage gap between men and women has improved since the act was passed, Reinhardt added, but it continues today, sending the message that women are not worth as much as men.

"Allowing prior salary to justify a wage differential perpetuates this message, entrenching in salary systems...the very discrimination that the Act was designed to prohibit and rectify," Reinhardt wrote, remanding the case to a district court to determine if the county engaged in discrimination. (Rizo v. Yovino, U.S. Court of Appeals for the Ninth Circuit, No. 16-15372, 2018)

 

SCHOOL SECURITY. Universities have a duty to protect and warn students if they are aware of a threat or foreseeable violence towards students, the California Supreme Court ruled.

In fall 2008, Damon Thompson transferred to the University of California Los Angeles (UCLA) and started having problems with his fellow students in his classes and residence hall. Thompson emailed a history professor complaining about other students' behavior and saying that he'd heard the professor call him "troubled" and "crazy," according to court documents.

The professor, who had not said such things to the student, forwarded the email to his department chair and was told to encourage Thompson to visit the university's counseling services. Thompson then sent a letter to the dean of students, complaining about "unwelcomed sexual advances" and other offensive behaviors perpetrated by other students. Thompson said if the university did not discipline those responsible, the matter would escalate.

The university moved Thompson into a new dormitory, but Thompson continued to make complaints to professors that his fellow students were making offensive comments about him. Another professor encouraged Thompson to visit the counseling center, but he refused, while another professor forwarded Thompson's complaints—which reached the university's Consultation and Response Team.

Thompson continued to experience problems on campus and underwent a psychiatric evaluation after an incident where he claimed he'd spoken to his father about shooting people on campus. He was diagnosed with possible schizophrenia and major depressive disorder and agreed to take medication. The Response Team also began to discuss Thompson at its weekly meetings and later moved him to a single room on campus.

Thompson, however, began to experience auditory hallucinations while in class—especially in his chemistry lab. He began to accuse fellow student Katherine Rosen of "calling him stupid," but the professor did not witness any harassment.

The professor alerted the Response Team to Thompson's behavior, and it expressed concern that he had identified Rosen as a tormentor. The team scheduled a meeting to discuss Thompson's behavior and decided to investigate if he was having similar difficulties in other classes.

The next day during his chemistry lab, however, Thompson stabbed Rosen in the chest and neck with a kitchen knife. Thompson pleaded not guilty for the attack by reason of insanity and was later diagnosed with paranoid schizophrenia.

Rosen survived the attack and filed suit against Thompson, the regents of the University of California, and UCLA employees.

She alleged that UCLA was negligent because the university had a duty "to take reasonable protective measures to ensure her safety against violent attacks and otherwise protect her from reasonable foreseeable criminal conduct, to warn her as to such reasonable foreseeable criminal conduct on its campus and in its buildings, and/or to control the reasonably foreseeable wrongful acts of third parties/other students," according to the lawsuit. UCLA had failed to do this, Rosen said, because it did not warn her, attempt to protect her, or control Thompson's foreseeable violent conduct.

UCLA moved to have the case dismissed because it claimed it did not have a duty to protect students from criminal acts, that if it did have such a duty it was not breached in this incident, and that UCLA was immune from liability under government provisions.

The case reached the California Supreme Court, which reversed a lower court decision and remanded the case for further proceedings. The court ruled in Rosen's favor due to the special relationship universities have with their enrolled students.

"We conclude that violence against students in the classroom or during curricular activities, while rare, is a foreseeable consequence, and considerations of public policy do not justify categorically barring an injured student's claims against the university," the court wrote.

The court explained its ruling, saying that the focus was not on whether UCLA could predict that Thompson would stab Rosen, but if it could foresee that its failure to control a violent student or warn students he'd complained about could result in harm to them.

The court's ruling, however, was not a blanket decision mandating that universities prevent all violence against students.

"Such a duty could be impossible to discharge in many circumstances," the court said. "Rather, the school's duty is to take reasonable steps to protect students when it becomes aware of a foreseeable threat to their safety." (Regents of the University of California v. Superior Court of Los Angeles County, Supreme Court of California, No. S230568, 2018)​

Legislation

Honduras

SPEECH. The Honduran Congress is considering legislation that would require that Internet service providers (ISPs) block or remove "illegal content" from their platforms.

The bill would require ISPs to delete illegal content within 24 hours after a complaint is filed about the content. ISPs would have an additional seven days to complete the deletion if the extension is deemed "duly justified."

Content can be considered illegal if it is designed to incite discrimination, harms dignity, incites or is an expression of hate, or promotes discourse with discriminatory connotations, according to the legislation.

Critics, including Human Rights Watch, have called the legislation an attempt to censor free speech.

United States.

SCHOOL SECURITY. Maryland Governor Larry Hogan signed legislation into law that creates new standards for school safety.

The Maryland Safe to Learn Act (formerly S.B. 1265) requires each local school system to designate a school safety coordinator and develop and submit to the Maryland Police Training and Standards Commission a curriculum for use in training school resource officers.

The law also requires local school systems and local law enforcement agencies to collaborate to establish policies for responding to an emergency at each public school, and mandates that school systems conduct safety evaluations regularly.

Additionally, the law instructs schools to update their school emergency plans, which must be submitted to the Maryland Center for School Safety for review to correct identified weaknesses within them.

Maryland enacted the law after a student opened fire at his school, targeting his ex-girlfriend. The gunman committed suicide after being confronted by an armed school resource officer.

Elsewhere in the Courts​

Discrimination

Target will pay $3.7 million to settle charges that its criminal background check process was biased against African American and Latino applicants. As part of the settlement, which is still subject to court approval, Target would be required to prioritize hiring applicants that were discriminated against during the background check process.

Target has since changed its background check process, such as asking if an applicant has a criminal record at the end of the hiring process. (Times v. Target, U.S. District Court for the Southern District of New York, No. 1:18-cv-02993, 2018)

Harassment

A Florida wealth investment management and trust services company will pay $180,000 and provide additional relief to settle a sexual harassment and retaliation suit filed by the U.S. Equal Employment Opportunity Commission (EEOC). In its lawsuit, the EEOC alleged that a female executive assistant and marketing officer was subjected to a hostile work environment—including verbal and physical harassment—and retaliated against after she complained.

As part of the settlement, the company must provide the executive assistant with a positive job reference, revise its policy on sex discrimination, and provide individual training to the company's chief wealth advisor. (EEOC v. Coral Gables Trust Company, U.S. District Court for the Southern District of Florida Miami Division, No. 1:18cv21148-JAL/JJO, 2018)​

Trade Secrets

Chinese scientist Weiqiang Zhang, 51, was sentenced to 121 months in a U.S. federal prison for conspiring to steal samples of rice seeds from a biopharmaceutical research facility. Zhang was convicted on one count of conspiracy to steal trade secrets, one count of conspiracy to commit interstate transportation of stolen property, and one count of interstate transportation of stolen property after stealing hundreds of rice seeds from the facility in Kansas and storing them at his residence in Manhattan. U.S. Customs and Border Protection officers discovered the seeds in Zhang's luggage when he attempted to take them to China. (U.S. v. Zhang, U.S. District Court for the District of Kansas, No. 13-20134, 2018)