Answer Man: Do presidents have to abide by anti-discrimination labor laws?

Today’s batch of burning questions, my smart-aleck answers and the real deal:

Question: My husband and I enjoy discussing your column over a cold beer in the evening (which I think you would approve of). Husband has most answers but this one he does not, so I come to you! When it comes to politics, why is the federal rule prohibiting hiring based on gender or race excluded for considerations for government positions? It was very clear that choosing a person based on skills was not the case when Biden stated he would choose a woman and probably one of color, and other statements made by both parties. Just wondering why the law doesn't start with them? Also, it seems HIPAA laws don't apply to government officials? As a business, we are not allowed to disclose a person’s name that gets COVID. On the news nightly, we hear the names of people in the White House who contracts COVID. Just seems the rule makers don't have to play by the same rules.

My answer: The only thing that could've made that question even better is if they'd said "morning" instead of "evening" in reference to beer drinking.

Real answer: For this answer, I went to two expert sources, Western Carolina University political scientist Chris Cooper; and employment law expert Jonathan Yarbrough. I'll note that Cooper first said he approves of "giving the edge up to all beer-drinking readers and letter-writers."

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Secondly, he offered an explanation of how all this works.

"Presidential appointees don’t follow the normal guidelines for federal employment," Cooper said. "If they have to be approved by the Senate, they are known as Political Appointees requiring Senate Approval (PAS), and if they are political appointees, but do not have to be approved by the Senate they area categorized as 'PA.' And the bottom line for both is that the president doesn’t have to show any sort of process, accept traditional applications, or do anything else that we normally associate with hiring in the public or for-profit sectors."

For traditional government officers, a hiring manager would have to follow the traditional guidelines, Cooper notes.

Yarbrough, a partner with the Asheville law firm of Constangy, Brooks, Smith & Prophete LLP, delved into the nuts and bolts of employment law — with some fun references to the "Cocoon" movies.

"Under Title VII of the Civil Rights Act of 1964, private employers with 15 or more employees cannot discriminate in hiring due to a person’s race, color, religion, sex (including LGBTQ status), or national origin," Yarbrough said. "Other employment laws provide protection on the basis of age for example. So, if you are over 40 you may well be protected by age discrimination laws, as the government determined you are an 'older worker.'"

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Buckle up, 'cause we're heading deeper in the legal canon.

"Anyway, a person’s sex, or age among other protected classes is rarely a Bona Fide Occupational Qualification for a job," Yarbrough said. "If someone decided it was a wise idea to make 'Cocoon III' and needed  to hire the next Wilfred Brimley, maybe age could be a BFOQ (but with the wonders of Hollywood make up unlikely)."

Age is often a BFOQ for airline pilots and air traffic controllers, although it's clearly not for presidential candidates, as Yarbrough pointed out. Biden is 78, Trump 74.  

Also, gender could be a BFOQ in hiring for a women’s prison, as they would want female guards. Race, Yarbrough said, is never a BFOQ.

"The law does apply to federal government employment, although it has a different enforcement mechanism than in private employment," Yarbrough continued. "But, the law does not apply to a presidential candidate setting out what he or she is looking for in a vice president, as the candidate is not an employer. Nor would it apply to a president selecting members of his or her cabinet."

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Now, about the HIPAA element the reader mentioned. First of all, a quick explainer on HIPAA, from the Centers for Disease Control website: "The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient's consent or knowledge."

"The basic rule of HIPAA is that your healthcare provider, and other covered entities, cannot disclose protected health information about your health without your permission," Yarbrough said. "There are some exceptions to this rule, such as providing some protected health information to first responders or to state or local health departments in a pandemic."

And the law does not prevent you, as a patient, from disclosing whatever you want.

"For example, when President Trump was diagnosed with COVID-19, he told the world about it but refused to provide details," Yarbrough said. "That was his prerogative, and as much as the public wanted more detail, it would not have been forthcoming from his doctors due to HIPAA."

Regarding Trump's Chief of Staff, Mark Meadows, who also had COVID, Yarbrough pointed out it was "two senior administration officials” who confirmed his diagnosis, not Meadows or his physician.

"Hard for HIPAA to cover a good old fashioned news leak," Yarbrough said.

Cooper stressed he has no expertise on HIPPA law, but he too suggested the information likely came from a news leak.

Daggum' snooping reporters!

This is the opinion of John Boyle. To submit a question, contact him at 232-5847 or jboyle@citizen-times.com.