Amon Fire and B.A. Ware have been hunting buddies since high school and have hunted with each other many times.  The two men head out one crisp November day to go turkey hunting, as they are bound and determined that this year’s Thanksgiving bird will not come from the local grocery store.  Fire and Ware quickly spot a flock of toms in a draw and hatch a plan.  Ware will remain at his truck on the rise and will shoot at any birds that are flushed out of the woods, while Fire will circle around on foot and shoot at any birds spotted in the woods.  As was their custom, if the plan were to change, Ware was to honk the truck’s horn.  Fire begins his stalk through the woods and spots the flock 60 yards ahead.  Fire estimates that Ware’s truck, according to their plan, should be at least 400 yards to the right of the line of fire.  However, unbeknownst to Fire, Ware has changed position and is hiding in a tree, obscured by foliage, waiting for the turkeys to be flushed.  Fire squeezes the Beretta’s trigger and immediately hears a human cry for help.  Fire runs to investigate and finds that he has shot, and seriously injured, Ware.  Ware subsequently sues Fire claiming that he did not use ordinary care to ascertain that his hunting companion was positioned in the brush behind the turkey.  Does Ware have a claim?

Probably not.  A hunter found to negligently use a weapon, will be liable for injuries proximately caused by his negligence.  Fire must exercise reasonable care and must not only be sure he is shooting a turkey, but also that no one is in his line of fire.  If Fire can show that Ware deviated from their hunting plan – by not signaling that the plan had changed and by moving into the trees – it would not be foreseeable to Fire that Ware would be in the line of fire and therefore Fire would not be negligent.  Now compare a scenario where Fire shoots at the bird, misses, and his stray bullet hits a person in a house which was obscured through the trees.  In such a case, Fire could likely be civilly and criminally liable even though he was unaware that a residence was located behind the foliage.

Tilting the Scales in Your Favor.

Pay attention to the Rules Hunters Can Live By[1] . . . Ten Commandments of Shooting Safety offered by the Texas Parks & Wildlife Department

1. Always point the muzzle in a safe direction. Do not point a firearm or bow at anything you do not intend to shoot. Keep your finger out of the trigger guard until the instant you are ready to fire.

2. Treat every firearm or bow with the same respect you would show a loaded gun or nocked arrow. When picking up a firearm, the first thing is point the muzzle in a safe direction and check to see if it is loaded. Read your instruction manual carefully before you handle new firearms or bows.

3. Be sure of your target and what is in front of and beyond your target. Before pulling the trigger you must properly identify game animals. Since you do not know what is on the other side, never take a shot at any animals on top of ridges or hillsides. Know how far bullets, arrows and pellets can travel. Never shoot at flat, hard surfaces, such as water, rocks or steel because of ricochets.

4. Unload firearms and unstring conventional bows when not in use. Leave actions open, and store sporting arms in cases and under lock and key when traveling to and from shooting areas. Take bolts out or break down shotguns if necessary.

5. Handle firearms, arrows and ammunition carefully. Avoid horseplay. Never jump a ditch, climb a fence, a tree or a ladder with a loaded firearm or bow and arrows. Never face or look down the barrel from the muzzle end. Be sure the only ammunition you carry correctly matches the gauge or caliber you are shooting. If you fall, disassemble the gun and check the barrel for obstructions. Carry a field cleaning kit.

6. Know your safe zone-of-fire and stick to it.  Your safe zone-of-fire is that area or direction in which you can safely fire a shot. It is “down range” at a shooting facility. In the field it is that mental image you draw in your mind with every step you take. Be sure you know where your companions are at all times. Never swing your gun or bow out of your safe zone-of-fire. If in doubt, never take a shot.

7. Control your emotions. If you lose control of your emotions you may do something carelessly. If you just shot a target or animal, in your excitement you may turn with a loaded firearm back toward your friends or you might run with a loaded firearm toward a downed animal. You may, in anger, lose control of your emotions. Show discipline.

8. Wear hearing and eye protection. Firearms are loud and can create noises damaging to hearing. Wear glasses to protect your eyes from escaping gases, burnt powder and other debris.

9. Don’t drink alcohol or take drugs before or while handling firearms or bow and arrows.Alcohol and drugs impair normal physical and mental body functions  and affect emotions, making it easier to lose control.

10. Use Common Sense to be aware of circumstances requiring added caution.

For additional analysis, Google the Texas case of Thompson vs. Gaar, upon which this fact pattern is loosely based.

Wanting to comply with the latest edict of the Equal Employment Opportunity Commission and give a recently released felon a break, Awft N. Cawssius ignored Pa Roll’s answer of “yes” to whether he had been convicted of a crime in the last five years and hired Pa to work as an armed security guard at Awft’s convenience store. When Pa Roll assaulted and shot a suspiciously acting John Q. Shopper, Shopper sued, alleging that Cawssius knew or in the exercise of reasonable care should have known that Pa Roll was unfit to be a security guard and created an unreasonable risk of danger to the other convenience store patrons. Is Cawssius liable to Shopper? Does the EEOC edict minimize his liability?

EEOC Guidance / Negligent Hiring

The EEOC’s updated Enforcement Guidance on the “Consideration of Arrest and Conviction Records in Employment DecisionsUnder Title VII of the Civil Rights Act of 1964” directs that an employer that uses criminal history to make employment decisions may violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964. The April 2012 Guidance summarizes the EEOC’s long-held position that employers’ reliance on arrest and conviction records may have a disparate impact on individuals because of their race or national origin and mandates significant changes in certain areas that are important to most employers. However, for employers, enforcement of the April 2012 Guidance may increase employer tort claim risk.

This month the State of Texas sued the EEOC in federal court in Lubbock seeking relief from the 2012 arrest and conviction guidance and complaining that the EEOC did not have the authority to implement hiring guidelines that prohibit Texas and its agencies from categorically excluding convicted felons for certain jobs. Texas state law allows for blanket, no-felons policies at certain state agencies, including the Department of Public Safety, the Department of Aging and Disability Services, the General Land Office, the Juvenile Justice Department, the Lottery Commission, the Parks and Wildlife Department and the public school system.

Yes, Awft N. Cawssius is probably liable either way – for negligent hiring of Pa Roll, or for violating the EEOC had he not hired Pa Roll. No, for those employers in Texas and most states who hire a convicted felon, the EEOC edict does not reduce liability. Three states (Colorado, Massachusetts, and North Carolina) adopted laws, in conjunction with other reforms, to limit the liability of employers who hire people with criminal records.

Tilting the Scales in Your Favor 

How Can Employers Legally Conduct Criminal-Background Checks? Several tips to assist employers from the Texas Workforce Commission:

  • Audit. Routinely audit applicant/hire files to determine whether your criminal-background-check policy disparately impacts any group.
  • Criminal Background / Credit. Review current criminal-background-check policies for consistency with the “business necessity” requirement and the EEOC position. Employers may perform criminal background checks themselves, but must give written notice that a credit or background check will be done and get written authorization for the check per the Fair Credit Reporting Act. If turned down, the employer must tell the applicant why, give the applicant a copy of the report, and let them know the name and address of the service that furnished the information.
  • Customer’s Homes. Texas requires in-home service and residential delivery companies to perform a complete criminal history background check on employees sent into customers’ homes (including attached garages or construction areas next to homes). Doing so gives Awft N. Cawssius the upper hand to argue that he did not act negligently in hiring. See the Texas Civil Practice and Remedies Code, Sections 145.002-145.004.
  • Convictions, Not Arrests. Unless required by law, Awft should ask only about  convictions and pleas of guilty or no contest, not arrests, and be prepared to show how the criminal record was relevant to the job in question, i.e., the security guard will be carrying a gun, or otherwise created an unreasonable risk of possible harm to people or property. More EEOC information HERE.
  • Polygraph. Never ask an applicant to take a polygraph exam, unless your organization is statutorily required to do so – that would be a violation of the Employee Polygraph Protection Act of 1988, a federal law.

 

With Halloween less than a week away, Bill Hatfield and his neighbor Randy McCoy are at it again. This time, it’s over McCoy’s pumpkin orange 38-foot recreational vehicle parked in front of his house.  Hatfield demands McCoy remove the eyesore.  When McCoy refuses, Hatfield successfully recruits other neighbors who together spearhead passage of a local ordinance prohibiting such nuisances. 

After the ordinance is enacted, an irate McCoy exacts his revenge by constructing a miniature graveyard in his front yard. Each tombstone, bearing the name of a meddling, petition-signing neighbor, is inscribed with doggerel verse and a fictitious demise date.  For example, “Betty was not ready, but here she lies, ever since that night she died, 12 feet deep in this trench, still wasn’t deep enough for that wench’s stench! October 25, 2013.” 

Upset, the neighbors called the police who arrived to mediate. Instead, McCoy was ordered to take down his graveyard or face arrest.  Begrudgingly, McCoy complied and later sued to assert his First Amendment right to free speech. Did the police officer violate McCoy’s First Amendment rights?

Yes.  Similar facts really occurred in the haunting case of Purtell v. Mason.  At trial, the officer argued that the tombstone inscriptions were not constitutionally protected speech because they were “fighting words,” an exception to the First Amendment.  The fighting words doctrine has its origin in Chaplinsky v. State of New Hampshire (1942).  In that case, Chaplinsky, a Jehovah’s Witness, was convicted of disturbing the peace for yelling at a local sheriff, “You are a God-damned racketeer” and “a damned Fascist,” and argued that his was protected speech.  Upholding Chaplinsky’s conviction, that Supreme Court created the “fighting words” limitation finding that his speech was so abusive that its mere utterance was likely to inflict injury or tended to incite an immediate breach of the peace; and, therefore, his words fell outside the constitutional protection of the First Amendment.  Applying that reasoning, the Court in Purtell found that the embarrassment, anger, resentment and fear caused by the tombstones were simply not enough to reach the level of “fighting words.” The police officer’s order for McCoy to remove his mock graveyard was a violation of his constitutionally protected First Amendment right of free speech.

Tilting the Scales in Your Favor?

The fighting words doctrine remains a highly contentions area of litigation and courts have struggled to determine whether certain epithets warrant constitutional protection. So, choose your words carefully. Personally insulting words accompanied by some sort of threatening conduct will often not enjoy the benefits of constitutional protection.

Out for a sunny ride on a lazy Sunday afternoon Izzy Skeerd and his family suddenly found themselves surrounded by motorcycles in front, behind and on either side of their sport utility vehicle. One motorcyclist was wearing a GoPro camera that later showed EZ Ryder “brake-checking” Izzy’s SUV. When Izzy tapped EZ’s rear tire and stopped, the bikers started to beat his car with their helmets and slashed his SUV’s tires. Fearing for his life and that of his family, Izzy punched the gas and left the scene, seriously injuring EZ and hitting two other bikers. Later other motorcyclists ripped Izzy from the SUV and beat him requiring medical treatment. Is Izzy liable for running over EZ? What about leaving the scene?

Justified Force

Because he was in fear of his life and reasonably believed that force was immediately necessary because EZ Ryder and his gang were attempting to enter his vehicle, it’s not likely that Izzy would be found guilty of any criminal conduct in Texas. Equally as important, Texas statutes protect Izzy by giving him civil immunity from personal injury lawsuits from EZ Ryder and his motorcyclist friends. Some argue such statutes improperly shift the burden by requiring prosecutors to prove that the use of deadly force was not in self defense. For a list of which states have “Stand Your Ground Laws” (like Texas) and which have “Castle Doctrine” laws, click HERE.

What About Leaving the Accident Scene? 

Is Izzy criminally liable for fleeing the scene of an injury accident? Wanting to close a loophole in the law that effectively encouraged intoxicated hit and run drivers to flee the scene of a crash, the Texas Legislature recently approved a tougher hit-and-run law raising failure to stop and render aid to the same penalty level as intoxication manslaughter – a second degree felony. Former assistant district attorney Alex Fuller in our office advises that under the Texas Penal Code, Izzy is justified in leaving the scene if he believes it is immediately necessary to avoid imminent harm and that Izzy’s avoiding the harm clearly outweighs the harm of Izzy fleeing the scene.

Tilting the Scales in Your Favor

If you used deadly force when someone forcibly entered or attempted to enter your occupied habitation, vehicle or place of business or employment 

  • Ensure that it is safe to do so, and then –
  • Dial 9-1-1 and ask for an ambulance and the police – be honest and explain what happened
  • Contact your attorney prior to providing a statement to the police

Your responsibilities after a car accident, if it is safe to do so –

  • If personal injury or death – Stop or immediately return to render aid, provide personal information, and show driver’s license if requested;
  • If damage to occupied vehicle – Stop as close as possible without obstructing traffic, render aid, provide personal information, and show driver’s license if requested;
  • If damage to unattended vehicle – Stop and locate the driver or owner and provide contact information, or leave conspicuous note providing information and circumstances;
  • If damage to fixtures or highway landscaping – Stop and take “reasonable steps” to find the property owner or person in charge, provide contact information, and show driver’s license if requested. If more than $1,000, file a report with law enforcement.

In the aftermath of her failed relationship with Mortie Fyed, Ima Riled did the unthinkable: She uploaded sexually explicit photos and videos of Mortie online – photos Mortie sent Ima in confidence. Ima allegedly posted them to scores of revenge porn sites, online hubs where scorned exes publish intimate photos without their former lovers’ consent. Mortie says she attached his name, email address and a screenshot of his Facebook profile to the nude photos along with vulgar commentary about him. Knowing that he was a teaching assistant at a local university, Riled allegedly uploaded a video of Fyed with the title “Sex 201 by Professor Mortie.” There’s gotta be a law against it, right?

Only in New Jersey. Called “revenge porn,” or the less-salacious “cyber revenge,” the trend has been around for years, spawning entire websites that profit from these images. To date, only New Jersey’s makes it illegal for anyone to “disclose any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure.” Not living in New Jersey, Mortie Fyed sued his ex for invasion of privacy, public disclosure of private facts and intentional infliction of emotional distress. Sixteen women in Texas filed a class action lawsuit against their revenge porn exes seeking to have the photographs removed from the websites. Many proprietors of revenge porn websites claim they are protected under Section 230 of the Communications Decency Act, which states that websites are not liable for content submitted by users.

California Attempts to Criminalize. A California bill passed the Senate making revenge porn a misdemeanor akin to disorderly conduct, but had to weather an ACLU claim: If you take a photo of someone with their permission, you’re the copyright holder and legally should be able to do with the photo as you please! Moreover, many contend that there are plenty of existing laws available to protect against revenge porn – child pornography, anti-harassment and anti-stalking laws, to name a few.

Sexting. Revenge porn is really no different from sexting. While they were dating, if Mortie sent Ima a personal pornographic photo, that was subsequently distributed (perhaps multiple times), was a law violated?  Worse yet, what about holding responsible the next person who distributes the photo? For example if Mortie sends a photo to Ima who then forwards it to her best friend Ed without telling him the background, should Ed be held liable for distributing the picture? I suspect only if Mortie was under 18.

Tilting the Scales in Your Favor. Like a secret that is something “not meant to be known as such by others,” intimate photographs which are shared with anyone are no longer secret. The obvious answer is don’t. But wait, there’s more! Check out SnapChat, a mobile app that allows the photographer to take a picture or video and, just like Mr. Phelps on Mission Impossible, the recording will self-destruct in a designated one to ten seconds – but it does not stop the recipient from taking a screenshot!

Jeff Leach (LRM associate and Texas House Representative), helped us recap 5 bills of critical interest to you and your business passed in the last Session.

DRUG TESTING FOR UNEMPLOYMENT BENEFITS (SB 21)

Drug testing required to receive unemployment benefits IF employer required pre-employment drug screening.

The legislation, effective September 1, mandates if someone submits an initial claim for unemployment benefits, they must submit to a drug-screening assessment, consisting of a written questionnaire, by the TWC if their occupation required pre-employment drug testing. If a reasonable likelihood of drug use is found, the applicant will have to pass a drug test to be eligible for unemployment benefits. Seven other states have passed similar measures.

BUSINESS TAX CUTS (HB 500)

Improving Texas’ positive business climate.

House Bill 500 offers over $700 million in business tax relief and makes the $1 million small business tax exemption permanent.  HB 500 also provides for a franchise tax deduction for businesses that are relocating to Texas.

SCHOOL DRIVING LAWS STRENGTHENED (HB 347)

Statewide ban on handheld cell phone use on school property.

Unless the vehicle is stopped or the driver is using a hands-free device, House Bill 347 prohibits someone from using a wireless communication device while on public or private elementary or middle school property.

EDUCATION (HB 5)

Reforms: A new accountability system, new end of semester exams, and academic planning flexibility.

We must not only teach our students how to pass tests and graduate high school, but we must also train them and prepare them for the jobs of tomorrow. With House Bill 5, the Legislature instituted sweeping reforms to Texas public education.  HB 5 institutes a new standard course of study for high school students and substantially reduces the number of end-of-course exams public high school students must pass to graduate, from 15 to 5. HB 5 also establishes a new accountability ratings system evaluating schools on academic performance, financial performance, and community and student engagement.  Finally, HB 5 changes how students who do not wish to attend college can enroll in vocational, career and technology-related courses.

WATER (HB 5, HB 1025 & SJR 1)

Water: Long-term, affordable and sustainable water supply projects.

Water, not oil, is the foundation upon which the Texas economy is built.  The 2012 State Water Plan says the total needs are projected to increase by an astounding 130% over the next 50 years.  A series of bills (H.B. 4, H.B. 1025 and S.J.R. 1), creates long-term financing assistance for water supply projects. Two billion dollars from the state’s “Rainy Day Fund” will pay for the water plan via a new State Water Implementation Fund for Texas (SWIFT), a special fund outside of the state treasury to implement the new plan.  Texas voters must approve the funding structure via a constitutional referendum. 

After their respective divorces Anita Will married Shelby A. Reck in Oklahoma. At the time each had a child and an Oklahoma home from their former marriages. Following the blissful event each adopted the other’s child, they moved to Texas, bought a house in Shelby’s name and had a baby. Before he died last year Shelby used an internet site to prepare his will in which he gave all of his assets to his Oklahoma child and failed to mention Anita’s child, their Texas child or Anita. Can Shelby’s wishes in his Last Will and Testament be honored?

While the predictable answer is “it depends,” the likely answer is “Probably Not.” Under some limited circumstances internet sites like LegalZoom.com might be sufficient. Even assuming that Shelby satisfied internet site checklists of the legal formalities of age, capacity, signature, witnesses, writing and beneficiaries, probating a will consistent with the intended distribution of personal assets becomes complicated by Texas community property issues, children (both biological and adopted), ownership of real property out of state and perhaps by prior marriages.

If you are looking to do your own will, the internet is chock full of sites, including LegalZoom.com and a plethora of others. Although you would expect for lawyers to say it’s a bad idea, finding the lawyer sites that tell you why internet wills are a bad idea are few. I did find one lawyer on Practice Blawg who claimed to purchase a “Standard Will” and the troubles he encountered. Even if you use a “Standard Will” and it works for your circumstances, it is equally likely that, for those limited circumstances, there are even better solutions that present fewer complications and headaches.

Tilting the Scales in Your Favor

You can legally write your own will. However, you need to know your state’s legal requirements. Create your own will only if family issues, finances and legal matters are not complicated. Livestrong Cancer Navigation Services recommends that you consider writing your own will only if you:

  • Have limited assets registered in your name;
  • Are unmarried and have no children;
  • Want to leave your assets to only one or two people; and
  • Have no major tax concerns to consider.

Another criteria for Texans would be to own real property only in the state of Texas. An attorney who specializes in estate planning will know what Texas law requires. Tax attorneys, accountants and certified financial planners can also help with estate planning. If a family member challenges your will, it could be declared as not valid. If this happens, Texas might not follow your intentions. Property could then be distributed according to Texas probate laws. A will prepared by an attorney is more likely to withstand legal challenges.

In 2011, Milwaukee Brewers star Ryan Braun became the first MLB player to successfully challenge, and evade, a 50-game suspension for suspected use of performance enhancing drugs (PEDs).  Coincidentally, that same year, Braun went on to win the National League MVP award.  Although many thought that Braun escaped on a technicality, Braun was not without his vocal defenders, most notably his good friend, and fellow Wisconsin superstar, Green Bay Packers’ QB Aaron Rodgers.  In 2012, Rodgers was quick to come to Braun’s defense when Todd Sutton, a flight nurse from Denver, tweeted that Rodgers was “delusional” in blindly believing that Braun was clean.  In response, Rodgers brazenly tweeted “I’d put my salary next year on it.”  This Twitter exchange would certainly have gone unnoticed but for the fact that, in 2013, Braun was suspended by MLB for 65 games for violating the league’s PED policy and to eliminate any lingering doubt, Braun publicly admitted to making “mistakes” and accepting “the consequences of those actions.”  Given these events, can Sutton expect to supplement his nurse’s salary with an $8.5 million payday?

Doubtful.  While courts will not enforce bets involving prohibited gambling games, it is arguable that this bet did not constitute a prohibited gambling activity so presumably the bet may be enforced if it was an otherwise enforceable contract.  For there to be such an agreement, there must be consideration.  Consideration is something of value given by both parties that induces them to enter into the agreement to exchange mutual performances.  Without consideration, there’s no contract.  Here, Rodgers has seemingly promised next year’s salary if Braun was using PEDs.  The problem for Sutton, is that he has promised nothing in return and provided no consideration.  Compounding the problem for Sutton is the fact that Rodgers statement seems conditional.  He states he “would” put his salary on it.  As worded, Rodgers has arguably left open material terms and conditions of his promise and therefore a court would likely choose not to enforce.  Reportedly, Sutton has taken the whole exchange in stride and suggested a compromise of a single game check.  Good luck.

Tilting the Scales in Your Favor

            The essential elements necessary to form a binding contract are typically described as an offer, an acceptance (in strict compliance with the offer or it will be considered a counteroffer), a legal purpose, a meeting of the minds as to the parties’ obligations, consideration and competent parties.

U. Hyde Meah’s employer required him to agree contractually that top secret information he reviewed as a technical contractor for the United States government would not be disclosed. Later Hyde leaked details of several top-secret mass surveillance programs to the press. Hyde sees himself as a hero and a whistleblower. The U.S. government views him as a common thief who stole U.S. property knowingly to use against the government, and intends to prosecute Hyde for espionage and, less likely, treason. Claiming that deportation to the U.S. would certainly result in his torture and execution, U. Hyde Meah is actively seeking asylum outside the U.S. Can Hyde avoid extradition if he secures asylum? Is he likely to get asylum?

Political Asylum

The good news for Hyde? If a country does grant him asylum status he will be protected from being extradited. The bad news? Although each country determines for itself whether he qualifies, it’s likely that he does not satisfy the internationally recognized benchmark legal requirements for asylum. Moreover, Hyde is a political hot potato with not much to offer.

Punishable Crime or Political Opinion?

Asylum is not as simple as landing in a foreign country and asking for special status and permanent residency just because you did something that was a crime at home but is legal elsewhere. If so, Canada would be overflowing with American drug users seeking to escape criminal charges. If Hyde is being persecuted for his political opinion, then the principle of non-refoulement established by the 1951 United Nations Convention Relating to the Status of Refugees governs him as a refugee. Ratified by most countries, including the United States, the principle expressly forbids a country from expelling or returning “a refugee…to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, or membership in  a particular social group or political opinion.”

Was Hyde’s conduct a crime – theft of property, espionage or treason – or just being a whistleblower complaining about conduct (invasion of privacy) that qualifies Meah as “membership of a particular social group or political opinion”? Plain old garden variety crime, or political opinion? Prosecution or persecution? Whistleblowers must prove that they are being persecuted, and prosecution for disclosing classified information is not, by definition, persecution. While opinion may have truly motivated Hyde, at the trial of his criminal case the prosecutor would argue that the information leaks, not his personal beliefs, drove his conduct. (Put another way, if someone sabotaged a U.S. drone base and was indicted for destruction of property, claiming persecution because of an opposition to drones would not likely prevail.)

Yet, distinguishing between a prosecution motivated by legitimate government interests in maintaining state secrets and one that simply seeks to retaliate against someone who has exposed wrongdoing is a challenge. Maybe the real question is whether the electronic eavesdropping programs that Hyde Meah revealed do indeed look like a gross abuse of human rights.  Many think so. Accordingly, if one accepts the premise that Hyde brought to light some very serious government misconduct, then his asylum claim might look more like persecution for a political opinion.

Nowhere to Hide

The bottom line? U. Hyde Meah is neither sympathetic nor politically appealing. Countries are free to grant residence, citizenship, and other forms of protection to anyone they want, for whatever reason they want, and political reasons can play a role. So even if Hyde Meah does not qualify for asylum under the normal rules, countries could give him asylum if they wanted to. Hyde’s problem is that these countries wouldn’t gain anything by giving him asylum. He presumably already revealed everything he knows or is planning to soon. Foreign governments can benefit from Hyde’s disclosures without doing anything in return. U. Hyde Meah is a political hot potato that is too hot.

Tilting the Scales in Your Favor. If you plan to put a bullseye on your back by revealing top secret government information, plan for a variety of outcomes and strategies to navigate them. Specifically, be aware of whether you have information that makes you valuable to others. As they say at the poker table, don’t show your whole card if you plan to bet the house.

Ellen Tabby, an African-American, has worked for Binge and Purr, a cat food manufacturing company, for several years.  Tabby reports to Stephanie Schnauzer, who is white. Tabby and Schnauzer argue like cats and dogs. Tabby is convinced that Schnauzer’s poor attitude toward her is rooted in the fact that Tabby is African-American.   Although Schnauzer directs Tabby’s daily work, she does not have the power to take tangible employment actions (e.g. hire, fire, demote, promote, transfer, etc.).  Initially a scaredy-cat about discussing the matter, Tabby decided last month to let the cat out of the bag. She complained to HR that Schnauzer gives her a “hard time” by providing her with bad assignments, glaring at her, slamming equipment around her and generally intimidating her.  Tabby sued Binge and Purr claiming discrimination under Title VII and alleging that Schnauzer created a racially hostile work environment.  Can Binge and Purr be held vicariously liable for Schnauzer’s actions?

Probably not.  Title VII makes it easier to hold a company vicariously liable for the actions of its employees, if the harasser is considered a “supervisor” as a supervisor is thought to be an extension of management.  Recently the U.S. Supreme Court held that if an employee like Schnauzer has no authority to impose tangible employment actions, the employee cannot be considered a “supervisor.” Therefore, Binge and Purr is not vicariously liable for alleged harassment.  The Supremes specifically rejected the EEOC’s current definition of “supervisor” as someone merely with the ability to exercise significant direction over another’s daily work.  Although the Court’s ruling was hailed as very favorable to employers, Tabby can still claim Binge and Purr was negligent in handling her complaint about Schnauzer’s harassing behavior (e.g. that Binge and Purr knew or should have known that unlawful harassment was occurring but failed to take appropriate action).[1]

Tilting the Scales in Your Favor:

The Vance definition of supervisor can readily be applied to benefit businesses that carefully review and revise job descriptions to ensure that only key personnel have the ability to take tangible employment actions.  Limiting the number of “supervisors” will reduce the likelihood that a company will be held vicariously liable.  Businesses, however, must remain vigilant in investigating, auditing and taking action to ensure claims of discrimination, harassment and retaliation are appropriately handled.

[1] Vance v. Ball State University, 646 F. 3d 461, http://www.law.cornell.edu/supremecourt/text/11-556,