Ninth Circuit's Standing Committee on Federal Public Defenders Finds DOMA and Oregon's Measure 36 to be Unconstitutional
A single Ninth Circuit judge, in his capacity as chair of the Circuit’s Standing Committee on Federal Public Defenders (“the Standing Committee”), recently ruled in the unpublished decision of In the Matter of Alison Clark that the federal Defense of Marriage Act (“DOMA”) and Oregon’s Measure 36 violate the United States and Oregon Constitutions by unlawfully discriminating against same-sex couples.
Alison Clark, a federal public defender in Oregon, married Anna Campbell in Canada in 2012. Clark’s marriage was not recognized in Oregon, due to Measure 36, a ballot initiative passed in 2004 that defined marriage as between only a man and a woman. In addition, the federal government did not recognize Clark’s marriage, as DOMA similarly defines marriage as a legal union between one man and one woman.
Shortly after her marriage, Clark applied for benefits for Campbell under the Federal Employees Health Care Benefits (“FEHB”) program. After Clark’s application was denied, Clark filed suit, alleging discrimination on the basis of her sexual orientation.
The Standing Committee ruled that Clark was entitled to receive benefits for Campbell under FEHB. First, the Standing Committee found that Clark’s rights under the Employment Dispute Resolution Plan for federal public defenders were violated, because the Plan prohibits discrimination against employees based on sexual orientation. Second, the Standing Committee held that Measure 36 violates the Equal Protection and Due Process Clauses of the Oregon Constitution, concluding that Oregon’s prohibition of same-sex marriage bears no rational relation to any legitimate governmental purpose. Finally, the Standing Committee held that DOMA violates the U.S. Constitution for similar reasons. The Standing Committee rejected proffered justifications for Measure 36 and DOMA such as “encourag[ing] responsible procreation,” “ensur[ing] that children will be raised in stable and enduring families,” and “defending heterosexual marriage,” stating “I can see no objective that is rationally related to banning same-sex marriages, other than the objective of denigrating homosexual relationships. This objective amounts to a desire to harm a minority group and is therefore impermissible . . ..”
While this unpublished decision of the Standing Committee does not have precedential value, its reasoning is particularly interesting in light of the U.S. Supreme Court’s current consideration of the constitutionality of DOMA. The decision may also signal movement in the federal courts towards greater recognition of issues associated with sexual orientation in the workplace.
In 2014, Washington health care employers will be required to comply with the Department of Labor and Industries’ (“L&I’s”) new Hazardous Drugs Rule. While today that may seem like the distant future, savvy employers will take time in 2013 to implement measures in compliance with the new rule before the deadline to do so creeps up.
What is the Hazardous Drugs Rule?
The Hazardous Drugs Rule is designed to protect employees of health care facilities in Washington from occupational exposure to hazardous drugs. For purposes of the Rule, the term “health care facilities” includes not only hospitals and clinics, but also pharmacies, nursing homes, home health care agencies, veterinary practices, and some research laboratories. The Rule’s protections extend beyond medical providers, pharmacists, and the like to encompass all employees who may be exposed to hazardous drugs. For example, a janitorial employee’s duties may include disposal of discarded medications or similar exposure to hazardous drugs.
Hazardous drugs include any drug identified by the National Institute for Occupational Safety (“NIOSH”) in its list of antineoplastic and other hazardous drugs in health care settings, which can be found at: http://www.cdc.gov/niosh/docs/2012-150/. In addition, hazardous drugs can include any other drug that can damage DNA or cause cancer, birth defects, fertility problems, or organ toxicity at low doses. Common examples of drugs considered to be hazardous under the Rule are chemotherapy drugs, birth control pills, and certain anti-depressants.Continue Reading...
WISHA Amendment Impacts Washington Employers' Obligations to Correct Serious Safety Violations During Appeals
Under the current version of the statute, the requirement to correct a safety violation is stayed when the employer files a notice of appeal of the citation with the Department of Labor and Industries (“L&I”). Pursuant to the new amendment, an appeal of a citation involving a violation classified as “serious, willful, repeated serious violation, or failure to abate a serious violation” will no longer automatically stay the requirement to correct the underlying hazard. Instead, an employer who desires a stay under such circumstances must file a specific request for a stay of abatement requirements in connection with its notice of appeal.
In cases where L&I issues a redetermination decision regarding the substance of the appeal, it will simultaneously issue a decision regarding any request for a stay. L&I may grant the request unless it determines that the preliminary evidence shows a substantial probability of death or serious physical harm to workers if a stay is permitted.
Denial by L&I of an employer’s request for a stay can be appealed to the Board of Industrial Insurance Appeals (“BIIA”), which will employ an expedited review process regarding the request. Affected employees and their representatives will have the right to participate in that process. As with L&I’s redetermination decision, the BIIA will be statutorily required to deny the request if the preliminary evidence shows that it is more likely than not that a stay would result in death or serious physical harm to employees.
Employers appealing less serious safety citations will still be entitled to an automatic stay of abatement requirements during the appeal process, although many employers choose to voluntarily correct cited safety issues prior to resolution of an appeal. The amendment is scheduled to go into effect 90 days after the close of the legislative session.