Friday, February 20, 2004

Can male nurses be excluded from the obstetrical department?

The case of Slivka v. Camden-Clark Memorial Hosp., No. 31404 (February 19, 2004) involves a clash between discrimination laws and privacy interests. The plaintiff is a male nurse who applied for a position as a staff RN in the obstetrical department of Camden-Clark Hospital in Parkersburg. He was denied employment in that particular department pursuant to a hospital policy of hiring only female nurses to work there. The reason for the policy was privacy concerns of the hospital's patients and their families. The hospital advanced the affirmative defense that being female was a bona fide occupational qualification (BFOQ) for the position of OB nurse, and the circuit court granted summary judgment in the hosptial's favor.

There is precedent in this state for allowing a BFOQ defense in sex discrimination cases where privacy concerns are raised. In the syllabus of St. John's Home for Children v. West Virginia Human Rights Commission, 180 W.Va. 137, 375 S.E.2d 769 (1988), the State Supreme Court held that being male was a BFOQ for the position of child care worker at a residential facility for violently aggressive, emotionally disturbed adolescent males. This conclusion was reached after finding: (1) the existence of a high risk of sexual assault and serious physical injury for female workers based on past experience at the facility, and (2) the likelihood that residents would be embarrassed by a member of the opposite sex fulfilling the necessary supervisory duties of observing the boys â??in various stages of undress, showering, or attending to their bodily functions." Id. at 139, 375 S.E.2d at 771. The rarely-invoked BFOQ defense is a standard part of nearly all civil rights statutes that prohibit sex discrimination.

The opinion cites several other cases outside of West Virginia in which hospitals excluding male nurses from obstetrical departments were found not to have discriminated unlawfully. However, the Court found that the record on appeal contained inadequate evidence to decide the present case. "Without knowing the magnitude of the resistance to male nurses being part of the obstetrical staff, it is difficult to fathom how Camden-Clark could persuasively establish that the essence of its business of patient care would be undermined if it hired male nurses in the obstetrics department." The Court wanted more evidence from patients, and it reversed the judgment and remanded the case for further development.

The Court did offer the following new syllabus point for guidance in future BFOQ cases that involve privacy interests:

4. Where an employer asserts that privacy interests justify gender being a bona fide occupational qualification under West Virginia Code § 5-11-9 (1998), in order to prevail an employer must prove: (1) how the essence or central mission of the business would be undermined by hiring members of both sexes; (2) the factual basis for the employer's belief that all or substantially all members of one gender could not perform the essential duties of the job in question without intruding on legitimate privacy concerns of its patrons; and (3) why alternatives to the gender-excluding policy would be impossible or impractical to achieve.

This case raises a complex issue. Good points can be made on both sides. On one hand, you have a patient base that is exclusively female, and contact with these patients in a state of undress is absolutely unavoidable. Even in this modern age, we all unquestioningly obey the the bathroom signage that keeps males and females in separate areas. Somehow, we expect women to "turn off" their innate privacy concerns when they are having a baby. On the other hand, there are plenty of medical doctors practicing in the OB/GYN arena who are male (I would guess at least half are male, but I'm not positive of that). If a woman has chosen a male doctor, how can she refuse a male nurse? I'm sure the women out there reading this will have something to say on this issue. It will be interesting to see what happens with this case on remand.

Monday, February 16, 2004

Is gay marriage impossible in West Virginia?

This article in today's Daily Mail claims that "[i]n socially conservative West Virginia, [the gay marriage issue] is a moot point" because in 2000, the West Virginia Legislature passed a Defense of Marriage Act defining marriage as "a loving and lifelong union between a woman and a man."

The article does not mention the possibility that the West Virginia Supreme Court of Appeals might delare the Act unconstitutional. The Legislature could define marriage as "a loving relationship between a Christian man and a Christian woman," but it obviously would not withstand constitutional scrutiny. My guess is, this issue is far from dead.

Wednesday, February 11, 2004

Pornographer to Sell Whitehouse Web Site

Probably the most infamous example of the problem with cybersquatting is Daniel Parisi's registration of The site, as you probably know, is a pornography site, and thousands of youngsters every year surfing the net without supervision hit the site thinking they are hitting

According to this article, the pornographer is surrendering the site. Ironically, his reason for giving it up is that he is worried that his now school-age son's classmates "might taunt him about the family's business." In other words, Mr. Parisi wants to protect his own child from harm caused by his web site.

Sunday, February 08, 2004

Rule Amendment Permits Carry-Over of MCLE Credits

Rory Perry notes here that attorneys may now carry over up to six MCLE credit-hours to the next reporting period under the amended rule. The carryover credits can't be applied to the legal ethics, office management, substance abuse requirement and/or elimination of bias in the legal profession, so don't go overboard on those all at once thinking you can carry them over.

Friday, February 06, 2004

What's worse: A tired nurse, or no nurse at all?

We may soon find out. This article in the Charleston Gazette notes that "senators unanimously passed legislation Thursday banning forced overtime for nurses who work in private hospitals." The bill is also expected to pass the house. The article also notes that "[s]tate officials estimate registered nurse vacancies will hit 7,000 by 2008."

So let me get this straight. There is an overall shortage of nurses in the state, and the nurses we presently have will be working fewer hours. How, exactly, is this supposed to improve the quality of healthcare?

Thursday, February 05, 2004

Learning from the clerks

People say you can learn a lot from clerking for a federal judge. You can also learn a lot from reading the blogs of former clerks of federal judges. Check out Ernie the Attorney's blog, especially his posts on clerking. He has some great insights into the views and habits of federal judges.

Wednesday, February 04, 2004

Fourth Circuit allows IIED claim against employer who allowed employee to be assaulted and raped

In Gantt v. Security USA, Inc., No. 03-1033 (4th Cir., decided January 23, 2004), the Fourth Circuit held that an employee who was kidnapped from her workplace and raped could sue her employer for intentional infliction of emotional distress.

Dominique Gantt informed her employer (ironically, a private security company) that she had obtained a protective order barring her former boyfriend from any contact with her. Gantt’s supervisor, a mutual friend of both Gantt and her boyfriend, believed that the estranged couple “should talk,” and permitted the boyfriend access to Gantt at the workplace. The boyfriend then, at gunpoint, kidnapped Gantt from her workplace and held her captive for six (6) hours, assaulting and raping her.

Gantt sued her employer, seeking damages resulting from severe emotional and mental distress. She claimed her employer violated its Fifth Amendment duty to prevent sexual harassment in the workplace, and that it intentionally inflicted emotional distress upon her. The District Court dismissed both claims, and on appeal, the Fourth Circuit reversed as to the intentional infliction of emotional distress claim.

Sexual harassment. Gantt’s sexual harassment claims were brought under the Fifth Amendment, Title VII of the Civil Rights Act of 1964, and Article 49B of the Maryland Annotated Code. The District Court dismissed the statutory claims, reasoning that Gantt failed to exhaust her administrative remedies, a prerequisite for a Title VII claim, and that Article 49B does not create a prior cause of action for sexual harassment. Regarding her Fifth Amendment claim, the Fourth Circuit held that “indisputably, Security USA is a private entity; therefore no … claim lies against the company.”

Intentional infliction of emotional distress. Gantt’s intentional infliction of emotional distress claim presented a more complicated question for the Court. The claim was divided into two components: distress arising from the employer’s refusal to relocate plaintiff to a safe post on the night of the abduction, and distress arising from the abduction and rape itself.

The majority (opinion authored by Judge Motz) held that the District Court erred in dismissing the intentional infliction claim outright because Gantt had substantial evidence that could have led a jury to believe that her supervisor’s failure to assign her to a more secure post led to her emotional distress. The Court reached a different conclusion with regard to the second component of the claim. It found that Gantt did not present evidence from which a reasonable jury could find that her supervisor acted with an “actual, specific and deliberate intent” to cause, and with a “desire to bring about,” the assault, battery, rape and emotional distress resulting from them. Without such evidence, Ms. Gantt would be unable to overcome the exclusivity of remedy provision of the Maryland Workers’ Compensation Act. (Unlike West Virginia, Maryland requires true “intent” to injure rather than reckless disregard of safety.)

Judge Niemeyer concurred in the part of the majority opinion affirming dismissal of the sexual harassment claims, but would have granted complete dismissal of the intentional infliction of emotional distress claim under the exclusivity provision of the Maryland Workers’ Compensation Act.

At the opposite end of the spectrum was Judge Luttig, who would have allowed both components of the intentional infliction of emotional distress claim to go to the jury. Judge Luttig found that the jury could have reasonably inferred that the supervisor intended to cause not only the emotional distress resulting from the reassignment to an unsecured post, but the emotional distress arising from the abduction, assault and rape. Because of the supervisor’s relationship with both the assailant and the victim, Judge Luttig felt that a juror could reasonably conclude that the supervisor failed to reassign Ms. Gantt to a secure post in order to allow the assailant to contact her and assault her.
This opinion is interesting because it gives three different spins on the same case.

No accommodation of "hurtful" anti-gay religious speech in the workplace

In Peterson v. Hewlett-Packard Company, No. 01-35795 (9th Cir., decided January 6, 2004), the Ninth Circuit held that a private company did not violate Title VII by firing an employee for refusing to remove anti-gay Biblical scriptures from his work area.

Richard D. Peterson was a twenty-one (21) year employee of Hewlett-Packard at its Boise, Idaho office. As part of a workplace diversity campaign, the company began displaying a series of “diversity posters.” Peterson, who described himself as a “devout Christian” objected the posters because they advocated tolerance of homosexuals. In response, Peterson posted two Biblical scriptures on an overhead bin in his work cubicle: 2 Corinthians 10:12, Isaiah 3:9, and Leviticus 20:13. Peterson’s direct supervisor ordered him to remove the scriptural passages, citing Hewlett-Packard’s harassment policy.

At a meeting with Hewlett-Packard managers, Peterson explained that he meant the passages to communicate a message condemning “gay behavior.” Most importantly, he told them he intended the passages to be hurtful. After refusing to remove the passages, Peterson was terminated for insubordination and he filed a complaint alleging disparate treatment religious discrimination and failure to accommodate in violation of Title VII and the Idaho Human Rights Act. The District Court granted Hewlett-Packard’s Motion for Summary Judgment and Peterson appealed, and the Court of Appeals for the Ninth Circuit affirmed.

Disparate treatment. The Court noted that the diversity campaign’s stated goal was to increase tolerance of diversity, and even though it devoted special attention to combating prejudice against homosexuality, such an emphasis was not unlawful. Peterson compared his actions to those of the employees who hung the diversity posters. He claimed they intended “to make people uncomfortable so they would think again about diversity and change their actions to be more positive.” He alleged that these similarly-situated employees were treated differently from him because his message was a religious message.

The Court disagreed for two reasons: (1) It found that the employees who hung the diversity posters were simply communicating the views of Hewlett-Packard as they were directed to do by management; and (2) unlike Peterson’s postings, the company’s workplace diversity campaign did not attack any group of employees on account of race, religion, or any other important individual characteristics. The Court concluded that Peterson was discharged, not because of his religious beliefs, but because he violated the company’s harassment policies by attempting to generate a hostile and intolerant work environment and because he was insubordinate.

Failure to accommodate. The Court also refused Peterson’s failure to accommodate claim, finding that the accommodations he sought created an undue burden on Hewlett-Packard. Peterson only offered two options for accommodation: (1) that both the diversity posters and the anti-gay scriptures remain, or (2) that both the posters and the scriptures be removed. The Court found that the first proposed accommodation would have compelled Hewlett-Packard to permit an employee to post messages intended to demean and harass co-workers. The second proposed accommodation would have forced the company to exclude sexual orientation from its workplace diversity program. Either choice would have created an undue hardship for Hewlett-Packard because it would have inhibited its efforts to attract and retain a qualified, diverse workforce, which the company reasonably viewed as vital to its commercial success.

This case presents an unusual situation where the employee seeking protected status under Title VII is the perpetrator of harassment. The key fact in this case is that the Bible scriptures (especially Leviticus 20:13) were posted by the Plaintiff with the intent to hurt others.

Tuesday, February 03, 2004

Online education in the Mountain State

There are two articles in the news today concerning higher education online.

The Charleston Gazette reports that "[a] controversial Virginia university won't be relocating to West Virginia after all." The for-profit online University of Fairfax, which had planned to move to Jefferson County, has abandoned its plans. The article makes it sound like the our Higher Education Policy Commission forced the university to abandon its plans by asking tough questions like who, exactly, is on your faculty.

The Bluefield Daily Telegraph (which has a new web site located at runs this article about the online instruction of Salem International University in Harrison County (formerly Salem College and Salem-Teikyo University). SIU is a bricks and mortar school that has been around for many years, and the article notes that it is pushing its online classes to help reach more students and increase revenue for the cash-strapped institution. Master's degree students currently attend class once a month, then work online for the remainder of their course work, according to the article.

I've not tried online instruction, but I did take a self-paced course in my undergraduate days at WVU. Ten years later, I can say that I retained as much information from my self-paced course as I did from many of my traditional classes. (I mean that in a good way.) I think SIU has the right idea--cyberspace classes have to be combined with some meatspace instruction in order to work. Face-to-face contact with professors at some point is still necessary in order for the course to seem "real."

Legislative Update

The Hagerstown Herald-Mail provides this update for the West Virginia Legislature:

- All-terrain vehicles: As passed by the Senate Monday, the governor's bill (HB4022), would require safety classes for children and helmets for riders under 18, ban child passengers and attempt to restrict road travel. Differs from House-passed and original versions. Competing proposals introduced in both chambers.

[This article in the Gazette notes that "the Senate ... amendments to the bill (HB 4022) ... taken together, appear to prohibit ATVs from operating on paved roads." Some speculate in the article that such strong amendments may kill the bill again this year.]

- Budget: (HB4000/SB133) $3.08 billion in general revenue spending. Pending in House and Senate finance committees.

- Cigarette tax: (HB4100/SB255) Would increase the per-pack cigarette tax from 55 cents to 75 cents. Pending in committees.

- Drunken driving: Joint House-Senate committee working out differences in versions of bill (SB166) to lower the minimum blood alcohol level from 0.10 to 0.08 for DUI. Senate passed governor's proposal Jan. 16. House added offense and mandatory treatment program for severe cases before passing Jan. 22.

- Health insurance for small business: (HB4007/SB143) Senate version advanced from banking and insurance to finance committees on Thursday; House version pending in committee.

- Insurance fraud: House passed governor's bill (HB4004) Jan. 23. It sets up fraud unit within insurance commissioner's office; Senate version (SB145) advanced through first of three committees on Jan. 22.

- Nurse overtime: (HB4122/SB251) Would bar forced overtime in most cases. Senate version slated for Wednesday vote.

- Prescription drugs: House passed HB4084 on Jan. 22 that would adopt a federal discount prescription drug price list for state programs and residents. Pending in Senate committees.

- Tobacco securitization: (HB4036/SB168) Would sell $630 million bond funded by future tobacco settlement payments to retire pension debts and other uses. Pending in committees.

- Water use: (HB4026/SB163) Would survey large water withdrawals and declare state stewardship of states waters. Senate version slated for Wednesday vote.