An Update for Federal, State, and Private Prison Contractors      Vol. 2, Issue 7  September/October 2001


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A R T I C L E S




LEGISLATIVE UPDATE
Legislators Seek UNICOR Reform

Labor Law

Federal Courts Recognize Claims for Disability-Based Harassment

In previous issues of the Corrections Contractor, we have discussed the need for private prison employers to implement and disseminate policies addressing harassment based on sex, gender, race and other protected classifications.

In recent months, two federal Courts of Appeal have, for the first time, recognized claims for harassment based on disabilities under the Americans with Disabilities Act ("ADA"). These cases further illustrate the need for employers to ensure that their anti-harassment policies are up-to-date, and that appropriate remedial action is taken in response to complaints of harassment.

The following is a brief discussion of the Court decisions in these two cases. The Courts -- the Fourth Circuit, which governs Virginia, Maryland, West Virginia and the Carolinas and the Fifth Circuit, which governs Texas, Louisiana and Mississippi - are generally regarded as two of the most conservative courts of appeal in the system.

In the first decision, Flowers v. Southern Regional Physician Services, (5th Cir., 2001), the plaintiff disclosed to her employer that she had the human immunodeficiency virus. Soon after the employee made this disclosure, her supervisor became hostile. The supervisor, who had been friendly with the plaintiff, stopped socializing with her, began intercepting her telephone calls and eavesdropped on her conversations. In addition, the president of the company, who had also been friendly, refused to shake her hand and began avoiding her. The plaintiff was subjected to increased random drug tests and her job performance was criticized. Ultimately, her employment was terminated for poor performance. The plaintiff sued, alleging that she was harassed because of her disability, and a jury awarded her a six-figure judgment.

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Federal Privatization

Supreme Court Ruling Could Affect Private Prison Providers

A recent Supreme Court decision could have a significant impact on private prison corporations that house aliens within their facilities. The Court's June 28, 2000 decision in Zadvydas v. Davis limits the right of the federal government to detain aliens subject to removal from the United States. The Court's decision could lead to a lower amount of aliens eligible for detention in private prison facilities.

Under federal law, when an alien has been found to be unlawfully present in the United States and an order to remove is issued, the government typically secures the removal of the alien within 90 days to do so. The alien is kept in custody during this period. If removal has not been secured after 90 days, the government must release the alien. However, under certain circumstances the government may exceed the 90-day limit if it determines that the alien is: (1) inadmissible to another country; (2) removable as a result of certain violations, such as violations of criminal law; or (3) if the Attorney General determines the individual to be a risk to the community or unlikely to comply with the order of removal. Under these circumstances, the individual may be detained, and if released shall be subject to supervision.

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Legislative Update

Legislators Seek UNICOR Reform

In recent years, government agencies have increasingly relied on products manufactured by UNICOR, a government-owned corporation that trains and employs inmates confined in Federal Bureau of Prisons' ("FBI") facilities. To many legislators, this reliance adversely impacts business and labor interests. As a result, legislators have introduced several bills aimed at eliminating certain of UNICOR's advantages in the marketplace. This article analyzes major legislation introduced in the 107th Congress relating to UNICOR.

By way of background, goods produced by UNICOR can only be sold to the federal government where the goods enjoy a "mandatory source status." If a federal agency needs a particular product, it is under a mandate to purchase it from UNICOR if UNICOR can provide the product on time and at a "competitive price."

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