October 2018 Legal Report

Strategic Security

Photo by Antonino Visal​li​

October 2018 Legal Report
 

​Judicial Decisions

HARASSMENT. Employees who do not report sexual harassment at work due to fear of retaliation may still sue their employer, a U.S. federal appeals court ruled.

Sheri Minarsky was a part-time secretary at the Susquehanna County (Pennsylvania) Department of Veterans Affairs and had a daughter who had cancer. On Fridays, she worked for Director Thomas Yadlosky in an area of the office separated from other county employees.

In court documents, Minarsky said that Yadlosky began to sexually harass her shortly after the two began working together, including attempting to kiss her, approaching her from behind and embracing her, massaging her shoulders, and touching her face.

Yadlosky also allegedly questioned Minarsky about where she went during her lunch break and who she ate with, called her at home to ask her personal questions and became hostile if she did not answer the phone, and sent sexually explicit emails to her using the county's email system.

 Minarsky said she told Yadlosky to stop the harassment when it first began, but he persisted.

Minarsky claimed that "Yadlosky knew that her young daughter was ill and thus knew Minarsky depended on her employment to pay medical bills," according to court documents. "She states that she feared speaking up to him in any context, let alone to protest his harassment, because he would react and sometimes become 'nasty.'"

Yadlosky's supervisor, Chief County Clerk Sylvia Beamer, became aware of his similar behavior towards two other women and verbally reprimanded him. The county commissioner also observed Yadlosky embracing a female employee and admonished him. However, there was no further action taken and neither Beamer nor the commissioner reported Yadlosky's behavior.

Minarsky later became aware of the reprimands from a fellow coworker and learned that other women had had similar encounters with Yadlosky. She did not report Yadlosky, per county policy, because he had told her not to trust the county commissioners and that they might terminate her position.

"These warnings, Minarsky contends, along with the fact that Yadlosky had been reprimanded unsuccessfully for his inappropriate advances toward others, prevented her from reporting Yadlosky," according to court documents.

Minarsky told her doctor about the harassment in April 2013. The doctor advised her to email Yadlosky about his conduct. She emailed Yadlosky on July 10, 2013, writing that his behavior made her uncomfortable and that she would like him to stop because she did not want to report him.

Yadlosky responded to the email, saying he was unaware his conduct bothered her, he would change his behavior, and that he was disturbed that she felt the need to email him instead of talking about it in person. Yadlosky also confronted Minarsky in the office about the email.

Minarsky confided in a friend and coworker about the incident. The coworker's supervisor overheard the conversation and reported Yadlosky to Beamer, who interviewed Minarsky about Yadlosky's conduct.

Beamer then interviewed Yadlosky—who admitted to the allegations and was put on paid administrative leave. He was later fired. Minarsky quit her part-time position a few years later, alleging she was uncomfortable remaining on staff because her workload increased, and her new supervisor routinely asked her who else she had caused to be fired.

Minarsky then filed suit against Susquehanna County and Yadlosky, claiming gender discrimination, sexual harassment through a hostile work environment, and quid pro quo sexual harassment—violations of Title VII of the Civil Rights Act; gender discrimination under the Pennsylvania Human Relations Act; and negligent hiring and retention under Pennsylvania state law.

A district court said the county acted reasonably, and that Minarsky's failure to report the harassment was "unreasonable" and was not "sufficient to excuse her failure to report," according to court documents. The lower court dismissed her case.

Minarsky appealed, and her case reached the U.S. Court of Appeals for the Third Circuit. It determined that there was enough dispute in material fact as to whether the county's sexual harassment policy was in place and effective that a jury should determine if the county "exercised reasonable care to prevent and correct promptly any sexually harassing behavior."

The appellate court also explained that considering the #MeToo movement, a jury could find that Minarsky did not act unreasonably in choosing not to report Yadlosky.

"…there may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it," the court explained. "Victims do not always view it in this way. Instead, they anticipate negative consequences or fear that the harassers will face no reprimand; thus, more often than not, victims choose not to report the harassment." (Minarsky v. Susquehanna County, U.S. Court of Appeals for the Third Circuit, No. 17-2646, 2018)            

HATE CRIME. A U.S. federal jury convicted a man of a hate crime for burning a mosque in Victoria, Texas, in 2017.

Marq Vincent Perez, 26, was found guilty of a hate crime for burning the Victoria Islamic Center on January 28, 2017, and guilty of using fire to commit a felony. He was also convicted for having an unregistered destructive device used in a prior incident.

"Hate crimes are not only an attack on a specific victim, they threaten the cornerstone of diversity that America was built upon," said FBI Special Agent in Charge Perrye K. Turner in a statement on the conviction. "Perpetrators of hate crimes, like Perez, aim to chip away at our nation's foundations by instilling fear into entire communities with violence."

Court testimony revealed that Perez planned the event by doing reconnaissance of the mosque before January 28. Items from the mosque were also found at Perez's home, which were traced back to two prior burglaries.

Perez faces up to 20 years in federal prison for the hate crime conviction, up to 10 years in prison for possessing an unregistered destructive device, and a minimum of 10 years in prison for using fire to commit a felony. (U.S. v. Perez, U.S. District Court for the Southern District of Texas Corpus Christi Division, No. 4:17-165, 2018)​

Regulations

DATA TRANSFER. Japan and the European Union (EU) signed an agreement to allow data to flow between the two entities in the spirit of EU privacy standards.

As part of the agreement, Japan will implement several safeguards, including creating rules to provide EU individuals whose data is transferred to Japan with safeguards to strengthen the protection of sensitive data, conditions under which Japan can transfer that data to a third country, and individual rights to access and rectification to data.

Japan must also create a "complaint-handling mechanism to investigate and resolve complaints from Europeans" about their data, according to the European Commission.

"Data is the fuel of global economy and this agreement will allow for data to travel safely between us to the benefit of both our citizens and our economies," said Věra Jourová, EU commissioner for justice, consumers, and gender equality, in a statement. "At the same time, we reaffirm our commitment to shared values concerning the protection of personal data. This is why I am fully confident that by working together, we can shape the global standards for data protection and show common leadership in this important area."​

Legislation

SURVEILLANCE

The U.S. House of Representatives passed legislation designed to protect diplomats from surveillance by consumer devices.

The bill (H.R. 4989) directs the U.S. Department of State to create a policy on the use of location-tracking devices at U.S. diplomatic and consular facilities. Government employees, staff, contractors, and members of other agencies working at those facilities would be subject to the policy.

The legislation was introduced in response to revelations that a fitness app used by U.S. military personnel revealed sensitive information about base locations and troop movements.

"Given press reporting about the risk posed by fitness location-tracking devices, we must evolve the ways in which we protect our diplomats to new and evolving technologies," said U.S. Representatives Joaquin Castro (D-TX) and Michael McCaul (R-TX), chair of the House Homeland Security Committee, and cosponsors of the bill. "As lawmakers, we must continue accounting for evolving technology that poses new threats, so we can protect those who risk their lives to serve our nation."

The bill now moves to the U.S. Senate Committee on Foreign Relations for consideration.​

INCARCERATION. California Governor Edmund G. Brown, Jr., signed legislation into law that abolishes the state's system of collecting bail from suspects awaiting trial.

Under the California Money Bail Reform Act (formerly S.B. 10), a new system will be created to determine whether defendants should be held in custody while awaiting trial. This decision will be made using an algorithm that assesses the defendant's risk to public safety and probability of missing his or her court date.

Defendants charged with misdemeanor crimes will be booked and released without undergoing a risk assessment, except for under certain circumstances. Victims of crimes must also be notified and given an opportunity to be heard on the defendant's custody status. "Our path to a more just criminal justice system is not complete, but today it made a transformational shift away from valuing private wealth and toward protecting public safety," said California Senator Robert Hertzberg, one of the bill's authors, in a statement on its signing.

Elsewhere in the Courts

Hacking.

The U.S. Department of Justice (DOJ) charged 12 Russian nationals for allegedly acting to interfere with the 2016 U.S. presidential election. The nationals—all members of a Russian Federation intelligence agency—were charged on 11 counts, including criminal conspiracy to commit an offense against the United States through cyber operations, aggravated identity theft to commit computer fraud, and conspiracy to attempt to hack into the computers of state boards of elections, secretaries of state, and U.S. companies that supplied technology to administer elections. (U.S. v. Netyksho, U.S. District Court for the District of Columbia, No. 18, 2, 371, 1030, 1028A, 1956, and 3551, 2018).

Spying.

The U.S. Department of Justice (DOJ) unsealed allegations against Maria Butina, 29, a Russian citizen living in Washington, D.C., charging her with conspiracy to act as an agent of the Russian Federation in the United States without notifying the U.S. attorney general. The DOJ claims that Butina developed relationships with Americans and infiltrated influential organizations, such as the National Rifle Association, to advance Russian interests. (U.S. v. Butina, U.S. District Court for the District of Columbia, No. 18:18-cr-00218-TSC, 2018).

Discrimination.

Estée Lauder will pay $1.1 million and other relief to settle charges of sex discrimination against male employees. The U.S. Equal Employment Opportunity Commission (EEOC) alleged that the company provided less paid leave to male employees who were new fathers than female employees who were new mothers. "The EEOC also alleged that the company unlawfully denied new fathers return-to-work benefits provided to new mothers, such as temporary modified work schedules, to ease the transition to work after the arrival of a new child and exhaustion of paid parental leave," according to the EEOC. (EEOC v. Estée Lauder, U.S. District Court for the Eastern District of Pennsylvania, No. 2:17-cv-03897-JP, 2018).​