Unlawful treatment of employees with caregiving responsibilities

The U.S. Equal Employment Opportunity Commission (“EEOC”) last year issued an enforcement guidance regarding discriminatory conduct toward employees with caregiving responsibilities. The guidance, which is used by EEOC investigators, provides data regarding workplace demographic changes and scenario examples of conduct that might be discriminatory.

Although the status of being a caregiver (whether to a child, adult, or a disabled relation) alone is not a protected classification, discriminatory conduct toward a caregiver can violate anti-discrimination laws when the conduct is related to the caregiver’s otherwise protected status. For example, refusing to grant tenure to a female professor who tool a leave of absence to care for a child. Like this example, a number of the scenarios and underlying case-law citation involve educational institutions. 

Proposed changes to FERPA regulations

On March 24, 2008 the U.S. Department of Education published proposed changes to the Family Educational Rights and Privacy Act (known as FERPA) regulations.  The changes are needed because of various statutory acts like the USA Patriot Act, two U.S. Supreme court cases, technology changes, and events like the Virginia Tech tragedy. The Department seeks comment and input on the proposal.

The proposed regulations offer definitional changes (clarifying that cyber-students “attend” a school; that social security numbers, student ID numbers, and unique electronic identifiers are not disclosable directory information, and more). Another proposal would permit a school receiving a record, such as a transcript to provide the record to the creating institution in order to verify the record as accurate and not falsified. “Personally identifiable information” is also changed to include information that, alone or in conjunction with other information, can lead to private student information (such as mother’s maiden name and information). 

Of particular interest in the higher education area, the proposal addresses concerns raised in the wake of the Virginia Tech tragedy and attempts to provide better guidance and assurance on disclosing information in health and safety situations. For students 18 and over, the proposal clarifies certain circumstances in which information can be disclosed to parents without consent, for example: when the student is a federal tax dependent of the parents; when necessary for health and safety; and when a student under age 21 violates substance abuse policies. 

The proposal also clarifies the means by which outside parties, such as contractors, may receive records without prior consent. Other matters address disclosure of “de-identified” information, verifying the identity of the person requesting records, among other items.

The Department will receive comments up to May 8, 2008. The link information explains how to submit comments.

Protect your right to the ADA religious exemption

Religiously-affiliated independent schools and colleges need to take certain steps to have the protection offered by the religious exemption in the Americans With Disabilities Act, which states: “The provisions of this subchapter shall not apply to . . . religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187. Whether an institution is entitled to the exemption is a factual question. A summary of factors is at the end of this entry.  

The Third Circuit “touched” on the issue of ADA’s religious exemption as applied to private schools in Doe v. Abington Friends School, 480 F.3d 252 (3d Cir. 2007). The plaintiffs claimed Abington Friends School (“AFS”) discriminated against their son, a student with disabilities (ADHD and learning disabled) attending the school. Among other things, the plaintiffs claimed AFS used improper discipline and failed to accommodate him.   Continue Reading...