Wednesday, December 03, 2014

Screening Questions to Give Blood

OK, here is the second new (and third overall) example on rules.  These are the first two here and here. 

Since the 1980s, the Red Cross has had a question in their screening questionnaire for males “Have you had sexual contact with another man since 1977, even once?”  The question came about during the AIDS crisis.  And it has never been removed.  There is also a question for males that asks about risky behaviors such as having unprotected sex or sharing needles.  But that one only asks about “in the past year?” 

Why am I questioning these rules?  There are many homosexual men in committed monogamous relationships who are just as sure as anyone else, probably even more, that they don’t have HIV.  Definitely more than a heterosexual male who has engaged in these risky behaviors more than one year earlier.  There are 10 million gay men who are screened out of giving blood unless they lie on the questionnaire (which is why I bring it up in a post about breaking rules).  There is currently a movement to eliminate the question, or at least change it to also be “in the past year?” 

My Take

It seems that we have learned a lot about HIV since the mid 1980s and smarter questions are not too hard to figure out.  The movement to get the screener changed makes a lot of sense to me.

Your Turn

What do you think?  Change the rule?  Ask gay men who are confident in their non-HIV-status to lie on the form?  Or continue to screen them out?  Or some other option I haven’t thought of?  Please chime in.

Gender Discrimination or Not?

My last post on breaking rules generated a huge buzz on three different Linked In groups.  That is always very rewarding, althoughI suspect it is more the controversial topic rather than my riveting eloquence. 

And then karma struck and two big cases revolving around inappropriate rules hit the news cycle, giving me a chance to strike again, while the iron is still hot.

The first one is a simple rule at UPS.  Drivers need to be able to lift up to 70 lbs.  While ergonomists may dispute the weight limit for safety reasons, this is a very common rule for manual laborers in industry.  I have seen similar rules in factories, hospitality, and plenty of other industries.  Workers Comp laws mandate that if a person is injured on the job, they have to be accommodated until they heal.  But if something happens outside of work and they can no longer lift that much, they can be let go.  UPS has previous fired employees who were hurt in non-work car crashes, sports injuries, and similar kinds of episodes. 

But in this case, a pregnant worker has a note from her doctor that she shouldn’t lift more than 20 pounds.  Pregnancy is clearly an outside of work cause.  So she was let go.  She sued, claiming that this was gender discrimination.  Obviously, men can’t get pregnant.  And furthermore, her job only requires lifting more than 20 pounds a few times a month and a co-worker offered to help in these cases.

But UPS countered that the rule doesn’t target pregnant workers, it targets all incidents and therefore both genders.  Pregnancy just happens to get caught up in the rule.  This is not gender discrimination at all.  And to allow an exception just because a co-worker offered to help sets a bad precedent for future cases so they can’t let that change their decision.  The Supreme Court has been asked to decide.

My Take

IMHO, it is stupid that UPS has this rule in the first place.  It is much cheaper to accommodate workers with short term limitations than it is to hire and train a new worker. Even more so because a co-worker offered to help, so the accommodation is already figured out.  But there is no law against stupidity so that doesn’t apply to the Supreme Court’s deliberations.  There is also some precedent that if a lifting minimum doesn’t legitimately apply to the job, it shouldn’t be allowed.  But that would have been litigated in the previous episodes so that doesn’t seem to apply here either.  Given these two factors, I think UPS has the better legal case, even though they are making a bad business decision.

Your Turn

Since this has already gone long, I will save the second example for my next post.  For now, I am interested to hear other opinions.  Am I missing a legal justification for the pregnant plaintiff to win?