Tuesday, March 29, 2016

Giving up Rights

The news hit recently that a tragic plane crash in 2015 might have been avoided. This was not some tragic accident. The co-pilot of a Germanwings airliner apparently intentionally flew it into the side of a mountain last year, killing all aboard. The pundits have prognosticated for months about his mental state. 

Investigators eventually concluded that his actions were an intentional suicide; the result was an additional 149 homicides in the process. More recently, we learned from PBS.org that a "private doctor had recommended that the 27 year-old co-pilot, Andreas Lubitz, be admitted to a hospital for symptoms suggesting a psychotic depressive episode."

The story is resurfacing this spring, as there are calls for relaxing "pilot confidentiality." BBC.com reports that "French investigators have called for medical confidentiality to be relaxed for pilots" as a result of these facts. Though Lubitz was apparently "suffering from severe depression," and the physicians made their recommendations for him, they could not disclose his illness to the airline because of the medical privacy issues. The French are suggesting that there should be limits to such privacy. 

There are conflicts in rights. In Rights Collide I discuss how various individual rights we might cherish are not always compatible with the rights that others might cherish. Our individual rights are in constantly challenged by the powers of government, seeking to impose a majority will upon us all. Your right to have a party in your apartment might impair my right to sleep quietly in mine. These conflicts among us are the undeniable reason that the rule of law is critical in America. Without the law, such disputes are settled by fisticuffs or worse. 

In the month leading up to the fatal suicide, Mr. Lubitz was provided multiple medical work-excuses, from four different doctors. These total about 35 days excused from work, and include a referral to outpatient psychiatric care and psychiatric hospital care. It is not clear how many days of work he was actually scheduled, and thus how aware of these excuses Germanwings may have been. But, The conclusions seems to be that there was "writing on the wall." But even if that is not the conclusion, i.e. it was not "obvious," was this information important? Should such clues of difficulty be available to the employer. 

Recently, I wrote about efforts to allow job applicants to conceal their criminal past. Some might question whether this is or is not the same argument. But, in this instance, the employer, Germanwings, will likely ultimately be responsible for millions in damages. Should Germanwings have the opportunity to know that their employee was "suffering from severe depression?" Should an employer have the opportunity to know that someone applying to work for them has such a history, or a criminal history?

One reaction to this question would be absolutely not, patients are entitled to their privacy and should not be subjected to discrimination because of their medical condition. In all likelihood, Germanwings would have grounded this pilot had they known of his psychiatric condition. On one side of this, one might conclude such a grounding might well have saved 149 people. If an airline was advised of such a condition today (with the images of the smoldering crash-site impressed on their memory) such a grounding would likely be a certainty. 



The French contend that "confidentiality had to be balanced with the risk an individual might pose to public safety." The report suggests inhibiting "pilots being able to make self-declarations about their health, which allowed them to hide any illnesses." In other words, the French believe that the medical situation should be assessed and described to the employer by a physician(s).

In American, we are careful to protect workers' privacy rights in a variety of settings. But there are contexts in which our individual rights yield to societal requirements. One that is not well known regards political speech. Americans' right to freedom of expression is protected by the First Amendment to the United States Constitution, and a variety of state constitutions and laws. However, the Codes of Judicial Conduct (also mentioned recently in Forgiveness in the Employment Process) can limit the right of a judge to freely express thoughts or opinions. 

In fact, the Codes have been interpreted to even prevent judges from attending certain events. Political rallies or fundraiser events for politicians are common in America. I recently attended a professional gathering for attorneys. Multiple attendees excused themselves early, explaining that they had multiple such political events to attend that evening. Judges cannot attend such events. To do so might "lend the prestige of judicial office" to the candidate or cause, which violates the Code. I had to explain this to a few attorneys who did not understand why I could not accompany them to these gatherings. 

I know judges who lament this prohibition on their activities. I have been in conversations where these limitations are bitterly derided. A judge cannot even put a candidate's sticker on her/his vehicle. But in the end, most of us simply note that we knew of these restrictions on our rights when we sought the bench. We accepted that we give up some rights enjoyed by other citizens, as a condition of our own decision to assume this role. The good of the judicial system, and the protection of the honor of judges generally, outweighs our own individual right to speech or association in this context.

The analysis might be similar in the pilot analysis. Perhaps we can continue to revere privacy rights in the broad context just as we do freedom of speech and association. But, in the narrow context of pilots, in whose hands our lives are placed for safekeeping, perhaps a condition of that great responsibility has to be some compromise of their rights to absolute privacy? 


This will be a debate, and an interesting one. I have known a few pilots. I remember how bitterly they complained about going through airport security following 9/11. Some saw themselves above this measure; were insulted by this procedure. In time, their arguments took root, and today as we everyday citizens stand in line for our inspection, x-ray and occasional pat-down we see flight crews breeze through a special security lane. 

They are trusted more than the general public. As an aside, one of these crew members recently attempted to smuggle some 60+ pounds of cocaine through a crew-security checkpoint - allegedly. Another recently allegedly tried to "fly under the influence."

So there is privilege and trust afforded to flight crews, and that may be misplaced or not. Perhaps there will also be burdens such as privacy compromise that come with that privilege and with the great responsibility of the job? Perhaps this will be required to prevent episodes such as the Germanwings tragedy? Maybe affording employers access to information about employees and applicants could prevent tragedy?


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