Dive Brief:

• An African American healthcare employee was fired for disclosing patients' confidential medical information, not due to illegal bias or retaliation (Newson v. Aurora Health Care, Inc., No. 19-2722 (7th Cir. Feb. 26, 2020)).
• The employee, a loss prevention officer, was responsible for ensuring the security of hospital property, employees, patients and visitors. As part of her job, she received annual training on HIPAA and the required safeguards for protected health information (PHI). When she was denied a promotion, she filed a bias complaint and she eventually filed a rebuttal submission to the hospital's position statement that included PHI in some of the documents she submitted to support her allegations. Following an internal investigation, the employee was fired. 
• The 7th U.S. Circuit Court of Appeals upheld a summary judgment ruling in favor of the employer: "Aurora provided evidence that it fired Newson for a nondiscriminatory, nonretaliatory reason — her disclosure of PHI — and Newson did not raise a factual dispute about whether an unlawful consideration was the real cause." The court said the employee had "only her own speculation" that she was fired for an impermissible reason, which was insufficient.

Dive Insight:

Employees often get suspicious when they are discharged or disciplined close in time to engaging in a protected activity, though it's unusual (as here) for the protected activity to directly involve the infraction that led to the discipline. Nonetheless, thorough investigations and strong documentation can help protect employers from allegations of wrongdoing.

Regular training is also important. In this case, the employee claimed (unsuccessfully) that she had received insufficient HIPAA training and had not knowingly disclosed PHI. It is much easier for an employer to argue that an employee failed to live up to expectations when those expectations are clear and regularly reinforced.

Finally, consistency is important. Similar infractions should be dealt with in a similar way. The 1st Circuit recently found the U.S. Postal Service liable for retaliation in a case involving an Asian American employee who fell asleep on the job. She was fired six months after making a discrimination complaint, but two white employees who also allegedly fell asleep on the job were allowed to retire instead.

Similarly, national origin bias allegations brought by a Whole Foods employee who claimed he was the only worker fired for a single instance of overstaying a break survived summary judgment. And, in another case, the 3rd Circuit affirmed a jury's $258,000 award to a terminated 57-year-old GNC manager who claimed that younger co-workers with similarly poor performance evaluations were treated better than he was.