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Employers Vulnerable to Associational Discrimination Claims

Most employers are aware of the employee protections found in Title VII of the Civil Rights Act of 1964. Employers may not discriminate against employees on the basis of race, color, religion, sex or national origin. Also, they may not retaliate against employees who have protested against an illegal employment practice or who participated in an investigation or other activities against the employer for an illegal practice.

Further, recent court decisions have applied Title VII’s protections to an employee’s association with another person whose characteristics fall under those protections. The U.S. Supreme Court held in 2006 that employers cannot discriminate against someone closely related to or associated with a person who is exercising protections under Title VII. Two federal courts earlier this year ruled that employers violated the law by discriminating based on association. One allegedly fired a white basketball coach because his wife was African-American; the other allegedly fired an employee whose coworker’s fiancé filed a complaint with the Equal Employment Opportunity Commission.

All employers are vulnerable to these types of accusations, even those who strive to obey the law. Employment practices liability insurance (EPLI) policies cover many types of losses resulting from employee claims. How will they respond to association discrimination claims?

EPLI policies vary somewhat from one insurance company to another, but most provide coverage for acts such as discrimination, wrongful termination, harassment, retaliation, and inappropriate employment conduct. A typical policy covers discrimination against an employee for termination of the employment relationship, demotion, failure to promote, denial of an employment benefit or other adverse action based on a number of characteristics such as color, race, sex, ethnicity, age and religion. It also covers retaliation claims if the employee engaged in a protected activity, the employee suffered an adverse action, and the protected activity caused the adverse action. Because they specifically apply to employees who have these characteristics or who perform protected activities, these policy provisions do not appear to cover actions against employees because of their association with others.

However, the policies usually also cover “inappropriate employment conduct.” Among the acts that may fall within this category are coercion, wrongful demotion, wrongful discipline, retaliatory treatment, and others. The definition of “inappropriate employment conduct” will be different from one policy to another. One insurance company may cover association discrimination while another may not. As such, employers should discuss specific terms of coverage with their insurance agent.

The policies might cover the employer, but not the employee alleged to have committed the act, if a court determines the employee deliberately acted illegally or with intent to harm the other employee. For example, if a court ruled that a supervisor was acting maliciously when he fired an employee for marrying someone of a different race, the insurance might pay for the employer’s defense and liability but not for that of the supervisor.

In this era where job cuts and lawsuits are common, employers face a real exposure to actions against them for the decisions they make. Lawsuits can be costly even if they are groundless; the costs of defending them can mount rapidly. EPLI provided by a financially solid company is an important part of every employer’s risk management program.

EPLI, coupled with a well-executed loss prevention program, will help any employer survive employee accusations.

Using Airbags Without Seat Belts Increases Risk of Spinal Cord Injury

The National Safety Council reports that significant cervical spine injuries can result from car crashes occurring at speeds as low as 5 miles an hour and that result in little or no damage to the car itself. According to a recent study conducted by the University of Pittsburgh, the risk of injury increases when airbags are deployed during a crash and the driver and passengers aren’t wearing seat belts.

The cervical spine is the seven vertebrae of the spinal cord that comprise the neck. It can be damaged when it is compressed against the shoulders during a collision or when the head is violently jerked either backwards or forwards, causing injuries to the muscles and ligaments of the neck. The resulting neck sprain is commonly referred to as whiplash.

The research team, lead by Dr. William F. Donaldson III, used data gathered from a Pennsylvania trauma database to identify crashes resulting in spinal cord injuries from 1990 to 2002. They examined approximately 12,700 spinal injury patient records and of these, 5,500 were identified as either drivers or passengers who experienced fractures of the cervical spine.

After studying the cervical spine injury records, researchers found that drivers who were not wearing a seatbelt had a 54 percent rate of cervical spine fractures. However, drivers who used both an airbag and seatbelt had only a 42 percent rate of injury. After adjusting for other factors, the relative risk of cervical spine fracture was 70 percent higher for drivers using an airbag alone compared to drivers who used an airbag and seat belt.

The risk of cervical fracture was approximately seven times higher for passengers who used only an airbag. For both drivers and passengers, men were more likely than women to be injured when using an airbag alone.

Another important discovery the researchers made was that drivers and passengers who used an airbag alone were more severely injured than those who used both. They also spent more time in the intensive care unit and more total time in the hospital.

The results of the study indicate that drivers and passengers who use airbags without seatbelts have a higher rate of cervical spine fractures and have more severe injuries, including injuries to the chest, abdomen, and head. Dr. Donaldson and his team concluded that using a seatbelt with an airbag and maintaining at least 10 inches between the steering column and the sternum may decrease the severity of injuries in general, in addition to reducing the instances of airbag induced cervical spine injuries.