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Tuesday, September 15, 2015
ACLU Scores Big Wins for Panhandlers and Potheads
By News Release @ 2:45 AM :: 10990 Views :: Hawaii County , First Amendment, Homelessness, Labor, Drugs

Hawai‘i County Settles Lawsuit Over Pre-Employment Medical Testing

County will no longer force workers to submit to urinalysis, reveal private medical history

News Release from ACLU, September 14, 2015

Read the settlement agreement: 59 Stipulation and Order

Honolulu – The American Civil Liberties Union of Hawai‘i Foundation and the law firm of Peiffer Rosca Wolf Abdullah Kane & Carr today announced settlement of a lawsuit against Hawai‘i County over its practice of urinalyses and other invasive medical screenings as a condition of employment. The County will cease the practice, except for the approximately 3% of employees defined as “safety-sensitive” workers (such as police officers).

The federal lawsuit was filed March 9 on behalf of Rebekah Taylor-Failor, a Kailua-Kona woman who was about to begin working for the County as a Legal Clerk II (an administrative position). After giving Taylor-Failor a conditional job offer, the County required her to complete a detailed, personal questionnaire about her medical history, and then demanded she give a urine sample for analysis – just as the County required of all its prospective employees. Taylor-Failor asked the Court to allow her to start working without submitting to a urinalysis; on March 13, the Court granted that request, ruling that “the urinalysis would violate Taylor-Failor’s Fourth Amendment rights[.]”

The lawsuit challenged the County’s requirement that all prospective employees submit to urinalysis and answer questions about their medical histories, regardless of the physical duties the applicant would perform on the job. The ACLU argued that urinalysis testing reveals highly sensitive private medical information – such as whether an individual is diabetic, pregnant, is biologically male or female, has high cholesterol, or has a sexually transmitted disease – and that the tests were not related to actual job requirements of a particular occupation.

The ACLU’s attempts to resolve these problems without litigation (in 2013) were rebuffed by Hawai‘i County, so the ACLU and co-counsel Adam Wolf filed the lawsuit asking the Court for a Temporary Restraining Order to prevent the County from violating Taylor-Failor’s constitutional rights to privacy.

The Court granted the request, noting in its order that “the County has proffered no explanation as to why it is entitled to search Taylor-Failor’s urine before she may begin employment in her light duty, clerical, non-safety-sensitive position…. Employment requirements cannot stand where they violate rights of a constitutional dimension.”

As part of the settlement agreement, the County will suspend the urinalysis and medical screening requirement for all prospective County employees, with the exception of a very small percentage of County employees, like police officers, who perform “safety-sensitive” tasks. The County has also agreed to pay $115,000 in attorneys’ fees and costs.

Mr. Wolf said, “The Constitution protects government employees from invasive medical examinations, and the County has no need to demand that its clerks reveal what medical conditions they have. Today’s settlement ensures that the County will respect its employees’ privacy for many years to come.”

Rebekah Taylor-Failor began working for the County as scheduled in March, and continues to do so. She said, “I am grateful that I was able to begin working for the County without having to sacrifice the privacy of my medical information. I will proudly continue to work hard every day on behalf of the people of Hawai‘i County.”

ACLU of Hawai‘i Legal Director Daniel Gluck said, “Medical data is some of our most privately held information, and it is critical that we protect it from government overreach. The government has no right to perform invasive searches of bodily fluids to determine whether an office worker can perform his/her job.”

The ACLU has shared a copy of the settlement agreement in this case with Maui County and Kauai County, both of which have had similar pre-employment medical examination requirements.

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Settlement in Hawai‘i County Free Speech Case

Unconstitutional ordinances revised as a result of First Amendment lawsuit

News Release from ACLU, September 14, 2015

HONOLULU, HAWAI‘I – The American Civil Liberties Union of Hawai‘i Foundation and the law firm of Davis Levin Livingston today announced a settlement of a lawsuit that challenged Hawai‘i County’s laws prohibiting individuals from holding signs asking for help. As a result of the settlement agreement, the Hawai‘i County Council amended seven different subsections of the Hawai‘i County Code (Hawai‘i County Code §§ 14-74, 14-75, 15-9, 15-20, 15-21, 15-35, and 15-37), including laws that had unconstitutionally restricted “solicitation” (a form of speech protected by the First Amendment).

Attorney Matthew Winter of Davis Levin Livingston, said: “The right of free speech applies with equal force to an unsheltered person asking for help as it does to a politician asking for votes.  The government cannot suppress speech it does not like – the ability to freely express oneself is the heart of our democracy. Today’s settlement is a victory for all residents of and visitors to Hawai‘i County, because it is a victory for the most fundamental of our civil liberties.”

In late 2014, United States District Court Judge Susan Oki Mollway entered a temporary restraining order against Hawai‘i County prohibiting Hawai‘i County from interfering with Plaintiff Justin Guy’s right to hold a sign by the side of the road. In ruling that Hawai‘i County Code § 14-75 ran afoul of the right to free speech, Judge Mollway wrote that “it is unclear why public safety cannot be addressed with less restriction than section 14-75 imposes.”

On June 3, 2014, Mr. Guy held his sign saying “Homeless Please Help” while standing to the side of Kaiwi Street in Kailua-Kona. A Hawai‘i County Police Department (“HCPD”) officer cited Mr. Guy for violating Hawai‘i County Code § 14-75, which prohibited solicitation for money in a wide range of public places in the County. The criminal charges against Mr. Guy were eventually dismissed, and the lawsuit was brought to protect the constitutionally guaranteed free speech rights of people in Hawai‘i County. As part of the settlement of the case, Hawai‘i County repealed multiple Code provisions that criminalized solicitation and begging, and will pay $80,000 in attorneys’ fees, costs, and damages. The County also fixed several other Code provisions dealing with free speech and protests, so that now:

small groups (smaller than 75 people) no longer need a permit to hold free speech activities in County parks;

larger groups (larger than 75 people) wishing to hold free speech activities in County parks on short notice (for example, in response to a breaking news story) may do so without having to obtain a permit 20 days in advance. Instead, the group can simply notify the County of the planned demonstration;

“offensive” speech, by itself, is no longer a crime (unless the speech is “likely to provoke a violent response” – which is not protected by the First Amendment.).

solicitation of support and donations is no longer a crime.

Plaintiff Justin Guy said, “The County of Hawai‘i should treat homeless people with dignity, and recognize that we have constitutional rights – including the right to free speech – just like everyone else.”

ACLU Legal Director Daniel Gluck said: “This lawsuit and settlement are important, because they show that the law must be applied equally to everyone. When a politician or police officer can wave a sign on the road asking for the public’s support, but a poor person faces criminal charges for the exact same conduct, that is wrong.  The Constitution protects everyone equally, and the ACLU will continue to fight to ensure that everyone is treated equally under the law regardless of their economic status”


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