March 2001 Vol. 7 No. 3 ISSN 1087-6219
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In This Issue

• Napster injunction affirmed
• Prison warden may bar delivery of downloaded e-mail
• Medical transcriptionist with obsessive compulsive disorder may pursue failure to accommodate claim
• California age discrimination statute does not protect against refusal of benefits
• Intolerable conditions following protected conduct support retaliatory constructive discharge claim
• UPDATES

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Napster injunction affirmed

The Ninth Circuit has substantially upheld a lower court ruling that Napster, operator of the well-known Internet music file sharing service, may not allow users to download files that are known to have been pirated. Napster is liable for both contributory and vicarious copyright infringement.

Napster facilitates the exchange of files in a digital format called MP3 among its users. Users of the Napster service create libraries of MP3 files on their own computers, and transmit lists of the files in their library to Napster. Napster software connects users looking for particular MP3 files directly to the individual computers where the files reside. Napster does not keep copies of the MP3 files on its own servers.

Napster cannot be secondarily liable for copyright infringement unless its users are directly liable. The users are directly infringing the copyright holders' exclusive rights to reproduction and distribution, and are not entitled to a fair use defense. Their use is commercial because there was evidence of repeated and exploitative copying to save the expense of purchasing authorized copies, which had a deleterious effect on the present and future digital download market.

Although contributory infringement requires more than proof that the defendant's technology allows for infringing uses, here there was evidence that Napster had actual knowledge of the infringing uses. Napster was also vicariously liable for its users' infringement because it had a financial interest in the customer draw created by the infringing material and failed to police its system to bar infringing material.

The Ninth Circuit did find that the District Court's injunction was overbroad, because it placed on Napster the entire burden of ensuring that there was no copying or distributing of copyrighted works on its system. It is only responsible for the copying and distribution of files that it knows are protected. Therefore, the District Court must modify the injunction in recognition of the fact that Napster's system does not allow it direct access to the MP3 files.

A&M Records, Inc. v. Napster, Inc., 2001 WL 115033 (9th Cir. Feb. 12, 2001).

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Prison warden may bar delivery of downloaded e-mail

The First District Court of Appeal in San Francisco has upheld the Pelican Bay State Prison warden's direction that materials downloaded from the Internet would not be accepted by the prison mailroom. The ban was reasonably related to legitimate penological interests.

INMATE Classified publishes personal Web pages for prison inmates who subscribe to its service. Aaron Collins, a Pelican Bay inmate, is one of its subscribers. Pelican Bay inmates do not have direct access to the Internet through computer terminals at the prison.

The personal Web pages that INMATE Classified provides include the inmate's prison mail address and an individual e-mail address. Prospective correspondents who would like a response from the inmate must include a return mail address because the inmate cannot send e-mail. Once a week INMATE Classified downloads and prints any e-mail messages received by an inmate, and sends the messages to the inmate by regular mail.

Although prison walls neither separate inmates from constitutional protections nor bar free citizens from exercising their own constitutional rights by reaching out to prisoners, the courts are ill equipped to deal with prison administration problems. Therefore, prison regulations that impinge on inmates' constitutional rights are still valid so long as they are reasonably related to legitimate penological interests.

In deciding whether a prison regulation is valid, a court should look at the following factors:

1. whether there is a valid, rational connection between the regulation and a legitimate governmental objective,
2. whether alternative means of exercising the right remain open to the inmates,
3. the impact that recognition of the rights would have on the prison, and
4. whether there are ready alternatives to the regulation.

In this case, the warden had a legitimate concern about prison security in light of the possibility that e-mail would be used for inappropriate purposes, and that the administration would be overwhelmed by a huge volume of such correspondence. There were alternative ways for prisoners and those outside to communicate through regular mail. The warden's policy passed the reasonably related test.

In re Aaron Collins, 2001 WL 96741 (Cal. Ct. App. Feb. 6, 2001).

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Medical transcriptionist with obsessive compulsive disorder may pursue failure to accommodate claim

The Ninth Circuit has ruled that disputed factual issues preclude summary judgment for an employer that fired a medical transcriptionist with obsessive compulsive disorder. The employer did not establish that it had made sufficient efforts to accommodate the employee's disability.

Although Carolyn Humphrey was an excellent medical transcriptionist, she engaged in a series of obsessive rituals that hindered her ability to arrive at work on time. Washing and preparing her hair could take up to three hours. She dressed very slowly. She felt compelled to pull out strands of her hair and examine them closely because she felt that something was crawling on her scalp.

Once Humphrey realized that her behaviors were going to make her late, she would panic and become embarrassed. That made it even more difficult for her to leave the house and get to work.

After giving Humphrey a Level I and then a Level III disciplinary warning for tardiness and absenteeism, her employer sent Humphrey to a psychiatrist that it paid for through its employee assistance program. The psychiatrist diagnosed her as having obsessive compulsive disorder, and said that it could be treated. He also said that treatment might take a while, and that he would like to see her continue to work.

A month after the psychiatrist gave his diagnosis, the employer offered Humphrey a flexible start-time arrangement, under which she could begin work at any time within a 24-hour period on the days she was scheduled to work. After three unsatisfactory months under that arrangement, Humphrey asked to be allowed to work from home. Although the employer allowed other transcriptionists to work from home, it denied Humphrey's request on the ground that she had been disciplined.

Humphrey missed work two more times after she requested to be allowed to work at home. Her employer fired her a month after the request. Upon learning of the decision to fire her, Humphrey asked for a leave of absence as an alternative. The employer denied the request.

Humphrey was a qualified individual with a disability. Her obsessive compulsive disorder constituted a disability. Her skill as a transcriptionist made her qualified.

Although regular and predictable performance was a job requirement, her latenesses and absences did not make Humphrey unqualified. There was sufficient evidence to raise a triable issue as to whether a reasonable accommodation would have allowed her to render such performance. Either working from home or taking a leave of absence might have allowed Humphrey to keep her job.

At a minimum, Humphrey's employer should have responded to her request to work at home with more than a summary rejection. When an employer becomes aware of a need for accommodation, it must engage in an interactive process to identify and implement appropriate accommodations. That is not a one-time obligation. The employer has a continuing obligation to reassess the accommodation issue.

Humphrey v. Memorial Hospitals Ass'n, 2001 WL 118432 (9th Cir. Feb. 13, 2001).

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California age discrimination statute does not protect against refusal of benefits

The Santa Ana division of the Fourth District Court of Appeal has ruled that the portion of the Fair Employment and Housing Act (FEHA) that bans age discrimination does not apply to the terms and conditions of employment.

Dan Esberg went to work for Union Oil in 1980, when he was already over 40 years old. In 1991, Esberg enrolled in a bachelor's degree program at the University of Redlands. Union Oil footed the $16,000 bill. When he asked for financial assistance in obtaining a master's degree in 1994, a supervisor turned him down, stating: “You are too old to invest in.” The trial court dismissed his claims for violation of FEHA and for tortious violation of public policy.

Government Code section 12941, the FEHA provision that bans age discrimination differs from section 12940, the provision that bans discrimination based on other protected categories. Section 12941 does not include section 12940's express ban on discrimination “in compensation or in terms, conditions, or privileges of employment.” Therefore, the Legislature did not intend to protect against the kind of discrimination that Esberg suffered.

Although the California Supreme Court recognized a claim for wrongful termination in violation of public policy based on age in Stevenson v. Superior Court, 16 Cal. 4th 880 (1997), that case did not involve a claim for discriminatory denial of employment benefits. Esberg did not identify any other statutory or constitutional basis for his public policy claim.

Esberg v. Union Oil Co. of California, 2001 WL 190666 (Cal. Ct. App. Feb. 27, 2001).

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Intolerable conditions following protected conduct support retaliatory constructive discharge claim

The Fifth District Court of Appeal in Fresno has affirmed a jury verdict that awarded $340,000 to an employee who claimed that she was constructively discharged in retaliation for asserting her rights under the Fair Employment and Housing Act (FEHA).

In 1994, Rosie Thompson, the director of human resources at Tracor's Mojave facility, raised questions about some employment actions that she thought might violate FEHA. According to her testimony, after she did so, the general manager of the facility yelled and screamed at her, accused her of not being on management's side, and glared at her. She suffered, headaches, stomach problems, nose bleeds and insomnia. When the manager attacked her again in the course of a conference call with the home office, Thompson quit.

An employer is liable for constructive discharge when it either intentionally creates or knowingly permits intolerable conditions. Working conditions are intolerable if they are so unusually adverse that a reasonable employee in plaintiff's position would have felt compelled to resign.

The jury was entitled to credit Thompson's account of the way that she was treated. That account met the standards for constructive discharge.

Thompson v. Tracor Flight Sys., Inc., 2001 WL 114452 (Cal Ct. App. Feb. 2, 2001).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Headwaters Forest Defense v. County of Humboldt (May 2000 issue), amended on denial of rehearing (Jan. 31, 2001).

Hooks v. Clark County School Dist. (January 2001 issue), petition for certiorari filed (Jan. 31, 2001).

Mabe v. San Bernardino County (February 2001 issue) now reported at 237 F.3d 1101 (9th Cir. 2001).

Streit v. County of Los Angeles (February 2001 issue), now reported at 236 F.3d 552 (9th Cir. 2001).

Washington Legal Foundation v., Legal Foundation of Washington (February 2001 issue), now reported at 236 F.3d 1097 (9th Cir. 2001).

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