Legal Briefs

Union Questions Confidentiality Obligations Under ADA

The Americans With Disabilities Act provides that an employer must treat medical information about its employees confidentially. In a lawsuit pending in federal court in Manhattan, the Equal Employment Opportunity Commission is suing Teamsters Local 804, claiming the union has a similar confidentiality requirement that was breached when a union official allegedly revealed that a United Parcel Service employee represented by the union has AIDS, information the union allegedly obtained while dealing with the employee’s request for a workplace accommodation to his condition.

According to an April 12 opinion by District Judge Paul A. Crotty, “John Doe” had kept his sero- status a secret, and did not reveal he was being treated for HIV until his condition caused him to request a job transfer. UPS could not grant the transfer unilaterally because of union work rules. The EEOC claims that UPS told the union that Doe had AIDS while obtaining union approval for the transfer. The union denies this. The EEOC also claims that several years after the transfer, a union official, “in the course of a conversation with a disgruntled employee, stated—perhaps negligently, but certainly not intentionally or malevolently—that Mr. Doe had AIDS.” Doe filed charges with the EEOC, claiming a breach of confidentiality by the union. The union argues that if its official made the statement charged, it was based on information he acquired elsewhere and not from UPS or the union.

Rejecting a motion for summary judgment by the union, Crotty found that there is no precedent yet on the question whether a union is bound by the ADA’s confidentiality requirements under such circumstances, and that it would be premature to decide the issue before basic factual disputes are settled. Crotty urged the EEOC and the union to enter into settlement negotiations.


Court Orders Equal Access for Gay Student Group

U.S. District Judge Joan N. Ericksen issued a preliminary injunction on April 4, ruling that Maple Grove Senior High School in Minnesota must provide equal access to a student organization called Straights & Gays for Equality (SAGE).

The Maple Grove school administration classifies the 60 student organizations into two categories, curricular and non-curricular. Curricular groups, related to the school’s academic program, are officially sponsored, have access to the public address system, the yearbook, and an electronic scrolling information screen, and can raise funds and take field trips. By contrast, non-curricular groups are limited to placing posters on a community bulletin board and outside their meeting space.

The school classified SAGE as a non-curricular group, limiting its communication abilities and range of activities. The group claimed a violation of the Equal Access Act, a federal law that requires schools receiving federal aid not to discriminate among student groups based on their viewpoints. The EAA has been the main vehicle for high school Gay Straight Alliances to sue for equal treatment at school. The EAA essentially requires that schools treat all curricular groups alike and all non-curricular groups alike.

SAGE argued it was more like many of the curricular groups than the non-curricular groups, and should be afforded broader rights. Ericksen agreed, finding that several questionable groups, such as the cheerleading club, had been given curricular status. Refusing to dismiss SAGE’s suit, she ordered that the group be extended curricular group privileges until a final ruling after trial.


Court Reverses N.J. Priest’s Child Molestation Conviction

A three-judge panel of the New Jersey Appellate Division has reversed an aggravated criminal sexual contact conviction of a Catholic priest, referred to in court papers as Michael F., on the ground that the jury was improperly exposed to testimony about his sexual orientation. Michael was arrested in 2001, on charges that he had sexually abused the teenage son of a parishioner, in social situations in which the boy claimed sexual physical contact, but which the priest said were innocuous.

The jury convicted Michael, who claimed several trial errors on appeal, among them that the trial judge should have excluded from evidence a statement he made to the police upon his arrest that he is homosexual and struggling with his identity.

The appeals panel agreed that it was inappropriate to admit this evidence, writing, “The balance between probative value and undue prejudice to the accused tipped in favor of defendant… The admission of this statement injected into this case the specter of a jury deciding defendant’s guilt on the unfounded association between homosexuality and pedophilia.” The appellate court noted that the trial judge reminded the jury that Michael is gay.

The case has been sent back to Bergen County Superior Court for retrial.


Confidentiality Debated in Harassment Trial

U.S. Magistrate Judge Daniel E. Knowles, III, in a same-sex harassment case, ruled on April 7 that the plaintiff could not require his alleged harasser, his workplace supervisor, to answer two broadly worded discovery requests related to the supervisor’s sexuality and activities, and that any answers to more narrowly framed questions would have to be placed under seal to protect the supervisor’s confidentiality.

The plaintiff, Mark Vaughan, is the assistant principal at Slidell High School in St. Tammany Parish, Louisiana. He claims to have been subjected to sexual harassment by his former boss, retired principal Joseph Buccaran. In the 1998 Supreme Court ruling that established precedent for same-sex harassment case, Justice Antonin Scalia noted lower court decisions holding that one way a plaintiff might prove a harasser’s motivation is by showing that the harasser is gay.

Vaughan demanded written responses from Buccaran about whether he ever desired to have sex with him and whether he had sex with any other man while employed—for 40 years—by the school. Knowles characterized these questions as seeking “an admission or declaration from Buccaran that he was a homosexual.” Buccaran argued that his “desires” were irrelevant to the case, as was the question about his having sex with other men. He also argued that any responses about sexual matters he was required to give should be filed under seal.

Knowles agreed with Buccaran that this kind of information should be protected from public dissemination and found that the two proposed questions were too broadly worded and vague. “This would not be the first court to recognize that equating status or propensity with prohibited conduct/acts is problematic,” wrote Knowles, quoting from a Supreme Court opinion that characterized as “particularly obnoxious” any “punishment for a status. “Without question, an individual’s thoughts and fantasies ‘are his own and beyond the reach of the government.’”

Knowles, however, fully reserved the plaintiff’s right to tailor a more specific discovery request, under the proviso that “any response to such question shall be made the subject of a protective order.”


Ugandan Man Loses Asylum Appeal

Robert Kibuuka arrived in the United States on a student visa in January 2000, intending to study at Troy State University in Alabama. When the Immigration Service learned in March 2001 that he had left the school, it scheduled a hearing about his deportation, which took place in August 2003. By that time, INS had been folded into the Homeland Security Department and Kibuuka had filed a petition for asylum, withholding of removal, and relief under the Convention Against Torture, as a gay man fearful of persecution and serious harm if returned to Uganda.

Kibuuka, however, had missed the 12-month deadline for filing an asylum petition after arrival. There is no such time limit on applications for relief under the international Convention Against Torture.

Kibuuka testified that he attended a same-sex wedding in Uganda in 1999 that was raided by the police, where he was beaten and after which he went into hiding in his parents’ home. He said that upon arriving in the U.S. money problems prevented him from enrolling at Troy State right away, but that he eventually attended for one semester, but kept his gay identity secret because he had not met many other gay people there. After dropping out of school, he moved to Boston and worked as a furniture mover.

Kibuuka offered a written report from a psychologist, who said he suffered from a major depressive disorder as a result of the treatment he had experienced in Uganda, a condition that improved a bit in the U.S. but made him “unable to apply for asylum based on his homosexuality during [the] first year of his U.S. residence.” At the end of Kibuuka’s testimony, the judge asked if he were involved in a romantic relationship with a man, and he said no.

The Immigration Judge doubted Kibuuka’s credibility due to contradictions between his testimony and the psychologist’s report and said the asylum petition was time-barred despite the psychological testimony. The Judge also concluded that Kibuuka had failed to prove he had actually attended a same-sex wedding or was a “member of the gay community.” Kibuuka appealed to the Board of Immigration Appeals, claiming he had denied being in a relationship when he actually was because he did not understand that was relevant to the question of whether he is gay. Following the BIA’s established practice during the Bush administration, it summarily affirmed the original judgment without writing an opinion.

The U.S. Court of Appeals for the 1st Circuit, in Boston, rejected Kibuuka’s appeal, noting that its scope for review was limited as long as the Immigration Judge had considered the evidence presented. The court specifically rejected Kibuuka’s argument regarding his failure to respond truthfully about his gay relationship writing, “A witness obviously is not entitled to prevaricate simply because he deems a question irrelevant” and finding that his lack of romantic involvement was not a linchpin in the original decision in any event. Of the BIA upholding the Immigration Judge’s finding, the court wrote, “There was no abuse of discretion in denying Kibuuka’s motion to reopen.”