Ruling a Victory for Workers’ Rights

In an 8-0 decision, the U.S. Supreme Court in January sided with NASW in ruling [Thompson v. North American Stainless ] that Eric Thompson should be able to sue his former employer, North American Stainless, for firing him in retaliation for his then-fiancée and co-worker Miriam Relagado filing a workplace discrimination claim with the federal Equal Employment Opportunity Commission.

The decision reverses a lower court ruling that anti-retaliation protections afforded by Title VII of the 1964 Civil Rights Act, which prohibits workplace bias, apply only to employees personally engaged in a protected activity — in this case, the filing of the workplace discrimination claim.

Supreme Court Justice Antonin Scalia wrote the opinion. “We have little difficulty concluding that if the facts Thompson alleges are true, then [North American Stainless’] firing of Thompson violated Title VII,” he wrote, noting that the court has previously ruled that Title VII’s anti-retaliation provision must be construed to cover a broad range of employer conduct.

“We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired,” Scalia also said.

NASW agreed. “Because such [third-party] victims have suffered tangible employment injury, they are ‘persons aggrieved,’” the association said in a friend-of-the-court brief.

NASW had warned that limiting Title VII anti-retaliation protections “chills protected activity because workers considering such activity cannot be confident that their friends and family will be protected from reprisal.”

The association also pointed out that discrimination in the workplace remains a significant issue of national concern. “Workers — especially women in traditionally male jobs — continue to suffer discrimination and face substantial pressures to remain silent rather than report such discrimination,” the brief stated.

“NASW is pleased that this decision follows the trend of Supreme Court employment cases supported by NASW amicus briefs that have articulated an expansive view of employment non-discrimination rights,” said Sherri Morgan, NASW associate counsel. “The court has signaled that discrimination against those in close relationships to individuals cannot be used as an indirect means of retaliation against those the law is intended to protect.”

Child abuse investigations: Requiring investigators of child abuse to obtain parental consent or a warrant before interviewing potential victims, as the U.S. Court of Appeals for the Ninth Circuit has ordered in the matter of Camreta v. Greene, “would adversely impact both the daily work of social workers, and the children and families that they have a duty to protect,” NASW and its Oregon Chapter warned in an amicus brief recently filed with the U.S. Supreme Court.

The nine-justice panel agreed in October to add the case to its docket after attorneys for social worker Bob Camreta and Deschutes County Deputy Sheriff James Alford, as well as 27 state attorneys general, appealed the circuit court’s ruling.

In December 2009, the Ninth Circuit held that Camreta, a caseworker for the Oregon Department of Human Services, and Alford violated Sarah Greene’s daughter’s Fourth Amendment right to unreasonable search and seizure when they interviewed her at school about allegations of abuse by her father, away from her parents and without their consent, a warrant or probable cause.

NASW explained in its brief that “following a credible report of potential child abuse, the child’s safety is promptly assessed,” which “generally requires an interview with the child by a person specially trained to conduct such interviews.” It continued: “The protective benefits of the assessment process are undermined by the Ninth Circuit’s decision to treat assessment interviews of potential child victims as criminal proceedings.”

By blurring the distinction between the “child protective system” and the “justice system,” the circuit court’s opinion goes against the legislative intent of the 1974 Child Abuse Prevention and Treatment Act by making it harder for authorities to promptly protect children from abuse, NASW noted in its brief.

“The requirement also hinders the ability of the states to develop guidelines, best practices, and individualized responses geared towards preventing and minimizing harm to children,” the brief said.

Aside from the major implications of how the Supreme Court will rule, Camreta v. Greene is fraught with emotion, as is the case when child safety and family integrity is at issue, Morgan said.

“Fears that children can be randomly interrogated, regardless of parental consent, are overblown and based on misinformation about the child protection process,” Morgan told NASW News. “Social workers may have an opportunity here to educate the public about children’s rights to safety in all settings and the significant strides made to protect children in the decades since CAPTA was passed.”

Pro bono attorneys from Foley & Lardner LLP prepared NASW’s amicus brief, which members can read online.

The NASW LDF Legal Issue of the Month for January 2011 was Social Workers and Child Protection Investigations. Each monthly issue, which provides an overview of specific legal topics of relevance to social workers from the perspective of a particular legal decision..

Legal Defense Fund: The NASW Legal Defense Fund provided a total of $13,500 in fiscal year 2010 to support four association members involved in legal matters. It also approved $30,000 for amicus briefs. Because pro bono legal services were made available by various law firms, it was not necessary to spend the funds. In addition, the LDF authorized funding for several educational programs and projects affecting the social work profession — all detailed in its annual report presented to the NASW Board at its January meeting.

At its October meeting, the LDF Board approved $5,000 in legal aid for an NASW Virginia Chapter member to defend against a licensure board complaint filed by a father who was involved in a highly contested child custody case.

In evaluating the child, the social worker filed a mandatory child abuse report, testified at a protective order hearing and completed the evaluation of the child upon order of the court. In order to resolve the matter without continuing to add attorney’s fees and expenses, the member agreed to accept a reprimand for documentation irregularities at the conclusion of lengthy disciplinary board proceedings. The member had been supported by her chapter and by multiple social work experts who testified on her behalf.

The fact that the case arose around the social worker complying with her duty to report child abuse particularly influenced the LDF Board in its decision.

According to Morgan, LDF Board members expressed concern that social workers become targets of legal and disciplinary complaints when they treat children of parents who are in custody or visitation disputes and that state licensure boards need to develop protocols to deter retaliation against social workers for accepting high-risk cases.

For more on the NASW LDF, go to the Amicus Brief Database.