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Editor: Mitchell H. Rubinstein
New York Law School

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Wednesday, August 27, 2008

10th holds disclosure of medical records was protected, but nurse's aid was properly fired

10thcir Vaughn v. Epworth, ___F.3d___(10th Cir. Aug. 19, 2008) is an important Title VII case. The 10th holds that even though a African-American nurse's aid engaged in protected activity under Title VII's anti-retaliation provision when she sent copies of a patient's unredacted, private medical records to the EEOC in order to substantiate her disparate treatment claims, the employer was entitled to summary judgement. The court held that the aid violated her employer's policy regarding confidentiality when she provided the medical records to the federal agency. The aid alleged she was disciplined based on her age and race for "making errors with respect to a patient's medical records, while a younger, white employee was not disciplined for making the same errors." To show the disparity, the aid provided the EEOC with "medication sheets" supposedly containing errors by the other employee similar to those for which she had been disciplined. After the employer learned the aid disclosed the records, she was fired. Disclosing the medical records to the EEOC constituted protected activity under the participation clause, the appeals court held, rejecting the district court's belief that the participation clause places an "obligation to resort only to honest and loyal conduct in advancing a claim unless the employee proves that it is necessary to resort to other means." Nonetheless, the employer's discharge was supported by legitimate, non-retaliatory reasons: In addition to violating the company's policy regarding confidentiality of medical records, and perhaps Oklahoma law, the employee may have violated HIPAA.

Mitchell H. Rubinstein 

http://lawprofessors.typepad.com/adjunctprofs/2008/08/10th-holds-disc.html

Employment Discrimination | Permalink

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Comments

There can be no dispute that protecting patient privacy is a legitimate matter that employers should be able to terminate employees without being subject to litigation. Of course, employees need a way of establishing unfair treatment compared to other employees. There should be some middle ground that ensures patient privacy, while still allowing nurses in situations such as these to be able to show disparate treatement for similar actions by other nurses.

What is that middle ground? "That is above my pay grade."

Posted by: Sujan Vasavada | Aug 28, 2008 6:24:47 AM

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