Archive for the 'Personal Injury' Category

The Times Are Changing: Kicked Out of School Because of Your DNA

The Civil Rights Movement has encouraged Americans not to judge people by appearance alone. To limit a person’s potential due to an immutable characteristic goes against the American Dream.

Discrimination is usually based on outward, physical appearances. However, advancements in science, like sequencing a person’s DNA, have created new forms of discrimination. A person’s genetic information is a road map of their biological past and future. From cancer to eye color, a person’s DNA can reveal more about a person than the person knows about him or herself.

What can be done when a person’s DNA opens them to discrimination? What if the reason for discrimination is based on a medical reason? If the discriminatory act is to protect others around them, is it still illegal?

Discrimination for an Illness You Don’t Have (Yet)

In 2012, a 6th grade student in California was asked to leave his school because he carried the DNA markers for cystic fibrosis. His school already had two students, siblings, that had cystic fibrosis. Due to Double Helixthe nature of the condition, there cannot be too many students with cystic fibrosis. The students will likely expose each other to debilitating infections.

Colman Chadam does not have cystic fibrosis now. His DNA carries the genetic markers of cystic fibrosis, but he does not have the condition. His parents mentioned his genetic markers in a school medical form. But a teacher revealed the information to the parents of two students with cystic fibrosis. Soon, the two parents demanded Colman leave school for the safety for their children

If Colman Has Cystic Fibrosis, It Is a Genuine Danger to Other Children with Cystic Fibrosis

The parents of the other two students have good reason to be afraid. Individuals with cystic fibrosis are isolated from other individuals with cystic fibrosis. Deadly strains of common bacteria lives in the lungs of 80% of individuals with cystic fibrosis. One strain can be managed in the lungs of one individual. But a different strain that grew resistant and adapted in the lungs of another individual can be fatal.

The two other students at Colman’s school are siblings, so they are familiar and resistant to the same strains. Introducing a new strain into the school environment can hospitalize and/or kill their children.

It is not difficult to understand the parents’ fear. It is standard practice to keep children with cystic fibrosis apart. When they hear a student has the genetic markers for cystic fibrosis, all they could think is how their children are now at risk.

But the reality is that he does not have cystic fibrosis. So where can Colman go from here?

Genetic Discrimination Is Not Protected Against By Law

Colman has the genetic markers, but he does not have cystic fibrosis. He never developed it. In fact, he eventually returned to school after missing a few weeks. But Colman’s DNA tells physicians, geneticists, and society that Colman could/should have cystic fibrosis.

In 2008, the Genetic Information Nondiscrimination Act of 2008 (GINA) was passed. Its goal is to prevent genetic discrimination in the workplace. It prohibits employers from refusing to hire or discriminating employees based on genetic information. Information like a person’s family medical history or the chance a person will develop a disease or condition.

But how does this help Colman? It doesn’t. GINA does not cover any type of non-employment discrimination. Colman needs to rely on the Americans with Disabilities Act (ADA). But Colman does not have a disability. So his best chance is to depend on the part that protects individuals with a “perceived disability.” But perceived disability has only been used in the case of employment discrimination.

Perceived disabilities are also visually apparent. In previous cases, individuals won on the basis of appearing to have a disability that is easily noticed. The individual used a cane or had massive scarring, but did not request any accommodation(s).

Colman’s case is not like other perceived disability cases. He does not have an apparent disability that is seen with the naked eye. But most importantly, Colman is not an employee. In fact, because Colman’s school is a public school district, his argument would need to be based out of Title II of the ADA.

Colman’s case is unlike anything ever presented. It does not seem to fall under protection of the ADA or GINA. At best, it is a long shot. A question like this has never been answered, because a situation like this never occurred. A case like this is uncharted waters for the judicial system.

Is Genetic Discrimination Here To Stay?

It is uncertain if Colman will succeed. It was dismissed from lower federal courts. It is to be heard only after the Department of Education and Department of Justice encouraged the federal courts to examine the case.

Today, DNA tests are sold on the drugstore shelf. The government needs to update their approach to genetic discrimination. They are not keeping up with the rapid advances in science. Something must be done; so with bated breath, we will wait and see.

Flint Water Crisis: Where Can They Go From Here?

Before 2016, a large part of America never heard of Flint, Michigan. The city was one of the largest manufacturers of cars. It was once the base for the company GM and made most of the company’s Buick and Chevrolet models. But eventually the factory closed, and soon Flint became better known for its high crime and poverty.

Now, Flint is the city where the water supply is contaminated from the old lead pipes directing water to the public. An estimated 6,000 to 12,000 citizens are severely poisoned with toxic levels of lead in their blood.

A simple financial choice to switch to a cheaper water supply left so many of its residents severely ill or disabled. What can the residents do now? Is there any legal action they can take?

Can the Citizens of Flint Take Legal Action?

Yes, they can, and they did. Twice.

A class action suit filed on November 13, 2015. It claims that 14 city officials are responsible for replacing the safe water with “dangerous…and…inadequately treated” water. They ask for injunctive and declaratory relief as well as monetary damages.

The November Class Action claims that the 14 city officials violated the citizen’s substantive due process by removing safe water while under authority from the law.  Lead Water

A second class action suit was filed on January 27, 2016 against city officials. It asks the court to order city officials to replace all lead pipes in the city and follow federal requirements for drinking water. They also ask for equitable relief to help with health and medical care due to the contaminated water.

There are now two class action suits filed because of the Flint Water Crisis. But will they succeed?

They May Win, But Filing A Class Action Is Only The Beginning And May Not Be Enough.

In order for a class action suit to go forward, the class must be certified, or approved, by the judge. The judge can refuse to certify the class for many reasons. It may take at least a year or more for a class to be certified, or the class may never be certified.

A class action may take years to resolve and cost hundreds of thousands of dollars. Most class actions end with a settlement. Attorney’s fees may reduce the amount the class will receive, depending on the nature of the settlement.

Despite the limits of a class action suit, it is the best option for the citizens of Flint. If the classes are certified, then the class action suits will probably settle. The class will receive whatever they requested for relief and any monetary relief must be spread among the entire class.

But the class may have upwards to 12,000 individuals. So each class member may receive a substantially smaller amount than if they pursued a claim individually. But even if they wanted to, the people of Flint cannot sue the state. Government officials are immune to torts stemming from negligence due to sovereign immunity.

If It Feels Unsatisfying, It’s Because It Is

Its good public policy to protect lawmakers and government officials from lawsuits arising from best intentions.

The decision to switch the city’s water supply was in good faith. But what unsettles the nation is how officials waited and ignored the lethal amount of lead. It was only addressed when its damaging effects were undeniable. Now, an estimated 6,000 to 12,000 children are affected by the contaminated water. They will need comprehensive treatment and may face a lifetime of behavioral and cognitive disorders.

For the people of Flint, whatever amount they receive does not change the fact that effects of the Water Crisis will live on in its children. Even after 20 years, the impact will be evident in its residents.

Monetary damages can be awarded based on loss of future earnings and the cost of living with a disability. They look at the victim’s age, extent of injuries, earning capacity, loss of income, and impact on the life of the victim. But for compensation in a class action, the court will not be able to examine each effected resident. Instead, each resident may be treated as more or less suffering the same amount of damages.

In the end, the residents of Flint will need to rely on the government that has failed them. They must wait and hope that the City of Flint, Genesee County, and the State of Michigan will help them recover from a fatal error.

The Price For Privacy

Privacy has been a growing concern for everyone online. A recent Pew Research study found that 93% of the adults they surveyed said that being in control of who can get information about them is important.

However, most companies sell user data to third parties, who then use that data to create targeted ads. Although companies disclose that they engage in this practice in their privacy policies, most users are unaware of what specific groups have access to their information.

One remedy that companies may start using is the pay for privacy model. Since companies are paid by third parties for this data, the pay for privacy model would reimburse a company for the approximate difference if the company didn’t sell the consumer’s data. Consumers would instead pay a subscription fee for websites to ensure that companies won’t sell their information.

What Is Behavioral Targeting?

Many of the ads we see online today are placed through a technique called behavioral targeting. Advertisers work with companies to use technologies like clear gifs and cookies to track your web surfing behaviors online.  Chained Laptop

The data that is collected for behavioral targeting is not necessarily personally identifiable data such as your name or social security number. Instead, behavioral targeting focuses on data like the news articles you click on or the specific product you stare at while shopping on Amazon. The advertisers can then take this information and direct specific ads to you as an individual.

Would Paying for Privacy Work?

In early 2015, AT&T attempted to roll out a pay for privacy program with its high speed gigabit internet service. Users could either receive individually targeted ads or pay an extra $29 per month for a service with ads that don’t use behavioral targeting.

AT&T went under heavy criticism for this option, but it is not illegal. They make no promises that the number of ads would be reduced regardless of what choice consumers make. Moreover, to avoid liability of any state or federal privacy laws, AT&T’s website makes clear exactly what users are paying for if they choose to sign up for the premium option. AT&T continues to offer this option to their GigaPower subscribers.

Some consumers found a workaround through the use of other technologies like Virtual Private Networks. Others argue that as long as companies are transparent regarding their use of data, consumers are willing to make such exchanges for their data privacy.

In 2014, performance artist Risa Puno showed that people were willing to provide her with personal information like their social security number in exchange for a homemade cinnamon cookie.

Although many people have concerns over who has access to their private information, they may be more than willing to trade it for goods or services if presented the opportunity.

Should Companies Use the Pay for Privacy Model?

Pay for privacy models are new for social media websites, but exchanging your personal data for a benefit has been around for a long time. For example, grocery membership cards provide consumers a discount in exchange for personal information. In addition to the information you entered to sign up for the membership, grocery stores can also track and sell your purchase data to provide you with targeted ads at the checkout line.

When companies are earning additional revenue through the sale of consumer data (as well as the resulting targeted ads), pay for privacy may be the only solution companies are willing to try. With low subscription fees or an exchange of goods or services, consumers can agree to pay for their privacy now.

However, the slippery slope of pay for privacy is that privacy may become a luxury that can only be afforded by people who are able to pay. Consumers who are not able to afford an additional $29 per month charge to ensure their informational privacy may be stuck with directed advertisements and other intrusions into their privacy.

How Is Sexual Orientation Becoming A Protected Class?

Before the Civil Rights Act (CRA) became law, individuals faced discrimination based on race, sex, religion, and national origin. At first, the word “sex” was added to focus on discrimination against women.

Yet over the years, sex discrimination extended to gender discrimination. However, with the recent progression in LGBT rights, some courts interpret the protection to cover discrimination based on sexual orientation. Now, the courts are beginning to place LGBT individuals in a protected class.

But what if the CRA is not amended to prohibit sexual orientation discrimination? What basis can the courts use to extend protection? Can the courts extend protections in a state that does not enact protections for sexual orientation?

Why Is It Important To Be Considered A Protected Class and How Do You Become Protected?

A protected class is a group of individuals that have stronger legal protection against discrimination or retaliation. The right was hard earned over many years with violence and discourse.   Supreme Court

In the beginning, race and color were the only protected classes. Over time, women, the elderly, individuals with disabilities, and a slew of other classes gained protected. But, they were not all protected through the CRA. Groups such veterans, pregnant individuals, and disability became protected through other types of legislation without amending the CRA.

So, do you really need to amend the CRA?

There Is No Need For An Explicit Law. But To Begin, the First Step Was Basis Extend the Protection for Transgender Individuals.

The Equal Employment Opportunity Commission (EEOC) established Title VII of the CRA. It prohibits discrimination because of the individual’s sex. To discriminate because someone identifies as a gender other than assigned at birth, is to discriminate because of their sex. Discrimination against a transgender is gender identity discrimination and so is prohibited under Title VII.

The EEOC focuses on the precise wording of Title VII. The law “prohibits employers from discriminating against employees on the basis of sex….”. The conditional words are what the EEOC and the courts focus on for the basis of extending protection.

The courts applied the same reasoning used in sex discrimination cases involving heterosexual women. The courts found a demand for a female employee to “dress more femininely” to be “sex stereotyping.” The act of stereotyping because of sex violates Title VII.

Extending protection to transgender individuals was a first step in protecting sexual orientation as a class. Soon the courts applied “because of” and “sex stereotyping” to their reasoning.

Applying “Sex Stereotype” And “Because Of” Reasoning to Sexual Orientation Discrimination.

Due to the evolving and growing understanding of sex and gender, the courts apply the concept of “non-conforming gender behavior.” Describing situations like a heterosexual female employee who dresses in a masculine way to a male employee who exclusively dates other men.

Our understanding of sex and gender are evolving. Now, some courts apply the concept of “non-conforming gender behavior.” Like situations like a heterosexual female employee who dresses in a masculine way.  A male employee who exclusively dates other men.

If the employee faced discrimination because of the sex stereotype that women should wear feminine clothing and men should only date women, then they were discriminated because of their sex. If the female employee was male, then she would not have faced discrimination. The same logic applies to the male employee.

The majority of cases deciding that sexual orientation discrimination violates Title VII came in recent years. It was a long awaited step towards equality for individuals who have lived as second class citizens based upon who they love or what they feel.

In the End, the Courts Applied the Same Logic To Sexual Orientation Discrimination.

In 2015, the Supreme Court held that same-sex marriage is a constitutional right. The legal system filled with cases of individuals seeking protection from sexual orientation discrimination.

Since the Supreme Court found legal and statutory basis for same-sex marriage, the lower courts could find a basis for sexual orientation discrimination in Title VII. However, there is no federal statutory law that explicitly states there is a protected right for same-sex marriage. Due to the slow legislative process in Congress, it will may take years, or decades, before it becomes law.

Many argue that the CRA must be amended to make sexual orientation a protected class. But many accepted protected classes only reached that level after social acceptance. In the end, it is only a matter of time before sexual orientation becomes a protected class.

Child Spanking In the Modern Age

Doctor Spock was a pediatrician famous for his book on child care. He once said “If we are ever to turn toward a kindlier society and a safer world, a revulsion against the physical punishment of children is a good place to start.”

It often feels like every person has a strong opinion on child spanking. Words like “abuse”, “discipline”, or “firm hand” appear when magazines discuss “proper” parenting. The reasons behind spanking range from biblical to stating that the parents were once spanked and they turned out fine, so what is the harm?

Child spanking creates discourse everywhere, from talk shows to the dinner table. But what is absent from the discussion is what the law says about spanking.

Entering the Home

From the beginning of the American legal system, lawmakers did not want laws that affected how a man runs his home.  Spanking

But things have changed over the years. A woman may work, own property, vote, and is no longer considered her husband or father’s property. Children have gained some rights in school and can be removed from the home due to abuse. These changes came about after a long period of time and hard work from those who advocated for it. But the courts’ hesitation remains.

Abuse is Determined On a Case By Case Basis

In a recent decision by the California Court of Appeals, the Court decided that spanking a child was not abuse by the mother. They examined the mother’s motive, the necessity of her punishment, and the reasonableness of the severity.

The mother hit her children on their behind with her bare hand or a sandal. The spanking did not leave any bruise, welts, or lasting pain and discomfort. So the Court decided that the spanking was not “serious physical harm” and not abuse.

The Court stated that a parent has a right to “reasonably discipline” their child and “give reasonable punishment.” But where did this right come from?

The Legal Status and Rights of Children

Children, or minors, often live in a legal limbo. Their status as a minor protects them from entering bad contracts, being tried as an adult, and protected from sexual predators. The policies come from the judicial view that minors do not understand the consequence of their actions and cannot make the right choices. However, minors vary in maturity, intellect, emotional strength, and life experience. So it can result in a wide variety of outcomes for similar cases.

Parents or legal guardians of the minors are responsible for their minors’ actions. When parents/guardians assume legal responsibility they also decide how to raise their child. Parents and guardians make decisions about housing, dress, diet, and schooling. They can also decide how to discipline and what kind of healthcare should be provided.

While the ability to make these choices for their children make sense at the moment, the truth is that children will grow up. They will reach the age of majority and will make decisions for themselves. But sometimes the choices made by their guardians affect them into adulthood. This reality is why parenting is one of the most difficult tasks a person can undertake.

Should the Law Revisit Child Spanking?

There are things the legal system cannot regulate and decide. The government entrusts parents and guardians to raise future citizens in a safe and protected environment.

The legal system’s view on child spanking is simple: parents can spank their children. But they do not ask why or question the morality of spanking. They do not look at psychological research or studies on the benefits or damages of spanking. Instead, they base their view on the fact that parents have spanked their children for years. So they have the right to continue to do so.

The legal system does not exist to offer parenting advice. But it does exist to protect its citizens and this includes minors. The question still remains if spanking hurts children in the long term. It is a question the legal system is hesitant to decide.

But when hitting a dog is animal abuse, then how does hitting a child turn into spanking and a parent’s right? There are inconsistencies in the law that must be addressed despite the legal system’s fear of entering the home.