Monday, June 25, 2012

You Boss May Be Monitoring Your Personal E-Mail

Yes, your employer can monitor your e-mail - even your personal e-mail account - if you access it through your employer’s computer. For private sector employers, there is no law preventing this behavior. For the federal government, the same appears to be the case. On June 20, 2012, the Office of Management and Budget issued a memo to all agency chief information officers and general counsels warning federal agencies that monitoring their employees’ personal e-mail communications could violate the law if the intent is to retaliate against whistleblowers. See “Agencies Cautioned on E-mail Monitoring,” Washington Post, June 22 2012, p. B4. Left unsaid is the apparent fact that agencies may monitor employees’ personal e-mail for other purposes, such as to see how much time employee are spending on non-work tasks. According to the article, “It is unclear how widespread the practice of e-mail monitoring is.”

The issue arose after U.S. Special Counsel Carolyn Lerner issued guidelines that encourage agencies to ensure that their monitoring policies and practices do not interfere with or discourage employees from disclosing wrongdoing, including whistleblowing to the Office of Special Counsel or an agency Inspector General. The memo notes that while lawful agency monitoring of employee communications may serve a legitimate purpose, it must not chill employees from disclosing wrongdoing. See

Lerner was focusing on a potentially unconstitutional practice by the Food and Drug Administration (FDA), in which the agency secretly monitored the personal G-mail accounts of a group of scientists who had warned members of Congress that the agency was approving medical devices that they considered dangerous to patients. screening and other purposes. Copies of the e-mails show that, for a two year period of time, the FDA intercepted communications with congressional staffers and draft versions of whistleblower complaints complete with editing notes in the margins. The agency also took electronic snapshots of the computer desktops of the FDA employees and reviewed documents they saved on the hard drives of their government computers.

Six of the employees have filed suit alleging not that their privacy was violated, but that the FDA violated the due process clause of the Fifth Amendment by taking their private property - the emails - without their consent. See Hardy et al v. Shuren, Civil Action No. 1:11-cv-01739-RBW (District Court for the District of Columbia).

-- This entry was written by partner Elizabeth L. Newman

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Friday, June 8, 2012

EEOC Rules: Discrimination Against the Transgendered is Illegal

Although there still is no federal law barring discrimination against employees based on their sexual orientation, the United States Equal Employment Opportunity Commission recently moved one step closer to securing equal protection under the law for all employees in this country, regardless of sexual orientation.  On April 20, 2012, the Commission held that complaints of discrimination based on “gender identity, change of sex, and/or transgender status” form cognizable claims of discrimination under Title VII of the Civil Rights Act.  The case is Mia Macy, Complainant, v. Eric Holder, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms, and Explosives), Agency. 

The Complainant, Mia Macy, was a transgender woman and police detective who was trained and certified as a National Integrated Ballistic Information Network operator and BrassTrax ballistics investigator.  In approximately December 2010, while she was still presenting as a man, she applied for a position at a crime laboratory operated by the Agency, the Bureau of Alcohol, Tobacco, Firearms, and Explosives.  After a series of conversations with the Director of the Laboratory, she was told that she would be hired for the position, pending completion of a background check.  On approximately April 3, 2011, the Agency learned of Ms. Macy’s impending name and gender change from Complainant’s contractor.  Just 5 days after the Agency learned of this, they informed the contractor that she would not be hired for the position due to federal budget cuts. 

Based on the quick change in position after learning of her name and gender change, Ms. Macy contacted the Agency Equal Employment Opportunity Office, alleging that she was denied the position in part because of her transgender status.  The Agency initially countered by saying, in contradiction to its previously cited reason, that the position was filled by another employee because that employee was further along in the clearance process.  Unfortunately, even with the shifting reasons, the Agency EEO office still chose to dismiss her claim, stating that the EEOC could not adjudicate claims of discrimination based on transgender status.  After overcoming assorted procedural hurdles, Ms. Macy appealed the matter directly to the EEOC. 

On Appeal, the EEOC overturned the dismissal and remanded the case for investigation.  It held that Title VII, the federal law prohibiting sex discrimination, “proscribes gender discrimination, and not just discrimination on the basis of biological sex... [.]”  They further held that when an employer discriminates against a person because that person is transgendered, the employer has engaged in disparate treatment related to the sex of the victim.  Based on this reasoning, and a string of cases supporting its position, the Commission ultimately held that discrimination against a transgendered individual because that person is transgender is discrimination barred by Title VII. 

We at Kalijarvi, Chuzi, Newman & Fitch, P.C., applaud the EEOC for making such a courageous decision in this case.  Ms. Macy is entitled to equal opportunity in employment under the law, regardless of her race, sex, creed, or sexual orientation, and this decision brings her one step closer to ultimately reaching that goal.

Thanks to associate Stephen Fung for writing this month's blog entry.