EEOC Rules That Title VII Protects Sexual Orientation

 On July 15, 2015, the Equal Employment Opportunity Commission ("EEOC") significantly advanced the rights and protections of LGBT working persons in the United States by ruling that Title VII of the Civil Rights Act of 1964 bars discrimination based on sexual orientation.

The decision came in response to a complaint filed by a Florida-based air traffic control specialist against the Transportation Security Administration. In its decision, the EEOC explained that “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex." However, as the Washington Post explained, the EEOC's decision conflicts with rulings of most federal courts, which have found that Title VII does not protect against sexual orientation discrimination. The EEOC found those rulings to be "dated." The EEOC's decision will apply to all federal employees’ claims filed at the EEOC, although federal courts often given deference to EEOC decisions although such decisions are not binding.

The Massachusetts employment non-discrimination statute, Chapter 151B, already protects against discrimination on the basis of sexual orientation. Still, the EEOC's decision will have far-reaching implications throughout other parts of the country and in state and federal courts in Massachusetts when addressing claims under Title VII.

MCAD finds Boston College discriminated against Chemistry professor

The Massachusetts Commission Against Discrimination ("MCAD") ordered Boston College to pay $125,000 in emotional distress damages and at least 12 years of backpay after finding that the College retaliated against a tenured associate professor after the professor complained about hostile treatment by fellow faculty members related to his mental illness. Hearing Officer Betty Waxman found that after Professor William Armstrong returned from a  leave of absence for due to mental health issues,  the College and Chemistry Department members took adverse actions by "systematically isolating him from the Chemistry Department." Armstrong and the College had an agreement designed to integrate him back into the College and Department after his leave, and Waxman found that his efforts to implement this agreement constituted protected activity since the agreement itself was an accommodation to his disability. When Armstrong complained to the Faculty Grievance Committee, which Waxman found to be protected activity, the reactions of administrative and faculty members turned further hostile. As Waxman explained, “[T]he Chemistry Department, in effect, punished Complainant for seeking to enforce the terms of the reintegration agreements which constituted an accommodation to his disability. Such action, in my opinion, constitutes retaliation."

 Cecilie Gromada, an incoming First-Year student at Boston University Law School and part-time paralegal, contributed to this report.

Class action alleges Boston Scientific discriminated agains female sales executives

A class action lawsuit filed against Boston Scientific alleges that the company systematically discriminated against female executive by assigning them to less profitable geographic areas and denying equal compensation. The lawsuit seeks $50 million in damages.

According to the plaintiffs' attorneys, the company "maintains an unfair system of gender-stratified compensation" through its geographic assignments. The attorneys claim that "in effect, [Boston Scientific] bars female employees from better and higher-paying positions that have traditionally been held by male employees."

In a statement, Boston Scientific said: "We believe this case lacks merit and is led by a law firm known for filing many similar complaints against companies." The plaintiffs are represented by Sanford Heisler Kimpel, LLP, which has filed similar class action lawsuits against other large companies.

Federal court rules that CBA does not block employee from pursuing discrimination claim

A broadly-worded arbitration clause in a collective bargaining agreement did not preclude an employee from bringing an employment discrimination claim against her employer, a federal judge has ruled. The employee did not exhaust her grievance procedures, as the CBA expressly required, before filing her claim of retaliation and failure to promote. The employer argued that the CBA required the employee to proceed through the grievance and arbitration process before pursuing her claim in court or, in the alternative, that her claim was preempted by the federal Labor Management Relations Act ("LMRA"), which seeks to establish uniform interpretation of collective bargaining agreements. According to the Massachusetts Lawyers Weekly, newly-appointed United States District Court Judge Mark Mastrioanni ruled against the employer on both arguments. Judge Mastrioanni found that the CBA did not contain a “clear and unmistakable” waiver of the plaintiff’s rights under Chapter 151B, the state's employment non-discrimination statute. On the preemption argument, Judge Mastrioanni found that the employee's claim only required consultation with the CBA, not interpretation of the CBA. Therefore, the LMRA did not preempt the employee's claim.

Associatonal discrimination claim allowed to proceed

Federal Judge Nathaniel Gorton allowed a claim of associational discrimination to proceed based on an allegation that the plaintiff's employer discrimination against the plaintiff due to his wife's disability. Judge Gorton ruled that such a claim is permitted under the Massachusetts employment non-discrimination statute and the American with Disabilities Act. However, Judge Gorton also ruled that a claim by the Plaintiff that he was denied an accommodation based on his wife's disability would not be viable.

Denial of ADA claim affirmed based on employee's failure to negotiate

In a 2-1 decision, the First Circuit Court of Appeals affirmed the decision of a federal judge in Maine to dismiss a claim of disability discrimination brought by a diabetic department store employee because the employee quit in the middle of negotiating a reasonable accommodation. The decision sparked a strong dissent by Judge William Kayatta, who asserted that the decision demanded "too much resilience and persistence" by a disabled employee and improperly took away the fact-finding responsibility from the jury. For an understanding of the decision and the basis of the dissent, a brief description of the facts is required.

The employee, Pamela Manning,  was a Type I diabetic employed at Kohl's department store. To treat her diabetics and prevent complications, she needed to self-administer five insulin injections each day timed with her food intake. Prior to requesting her accommodation, she had been required to work an unpredictable schedule as other employees were. This required some night shifts, some day shifts, and sometimes required her to close the store the night before working an early morning shift -- a so-called "swing shift." She obtained a note from her doctor stating that the unpredictable schedule made it difficult for her to monitor her blood sugar and that a predictable schedule would allow her to smooth her blood sugar levels and prevent serious complications. Manning brought the note to her supervisor, who spoke with human resources and was then told that the company could not promise a predictable work schedule, but it could promise no more "swing shifts." The supervisor then met with Manning and told her that the store could not provide her requested accommodation because it would need to offer the same flexibility to all employees. Manning then left the meeting and said she had no choice but to quit. Her supervisor chased after her and asked her not to quite and to keep talking, but did not offer any specific accommodation.

The Court affirmed the decision of the District of Maine, which granted summary judgment to Kohl's on the failure to accommodate claim and a related claim of constructive discharge. The Court, in an opinion written by Judge Juan Torruella, found that Manning was at fault for quitting in the middle of the negotiation regarding her requested accommodation, and that no reasonable jury could find that Kohl's failed to engage in a good faith interactive process to determine a reasonable accommodation for Manning, as required by the American with Disabilities Act. (Perhaps surprisingly, Judge O. Rogeriee Thompson, an Obama appointee, joined the Reagan appointee's decision). Judge Kayatta's dissent argued that the evidence could easily allow a jury to conclude that Kohl's negotiated in bad faith, as evidenced by its failure to offer any accommodation at all even though its human resources department had authorized the supervisor to offer Manning the accommodation of no "swing shifts".

In unusually strong terms, Kayatta closed his dissent by stating: "As far as I can tell, this is the first time that any circuit court has held that an employer can reject an accommodation request backed up by a doctor's note, refuse to offer an accommodation that it has determined in can make, falsely claim that any accommodation must be offered to all workers whether disabled or not, and then declare the employee's ADA rights forfeited when she gives up." If Judge Kayatta is correct, then the Manning decision is a troubling development in the area of ADA case law. The only saving grace is that the majority decision expressly stated that its holding was limited to the unique facts of the case, although such a sentiment is often expressed in controversial decisions. Only future courts can determine whether the limitation holds true.

"Get naked" comment not enough for sexual harassment

It is never easy to predict what conduct a court will consider serious enough to constitute sexual harassment, but telling a subordinate to "get naked" is apparently not enough. A judge of the United States District Court in Boston decided last week that a single comment by a supervisor for a subordinate to "get naked" when he was about to tell her bad news did not rise to the level of sexual harassment. The court explained that while a single incident or comment can sometimes create a sexually hostile work environment, this particular comment was not sufficiently egregious considering the context. The plaintiff continued to speak with the supervisor after the comment was made in a supportive manner.

 While it is usually a jury question - and not appropriate for a court to decide prior to trial - whether conduct amounts to sexual harassment, this decision illustrates that there will always be instances when allegations simply are not serious enough. As I tell all of my clients, no one is guaranteed a hassle-free, sanitized workplace. For harassment to be illegal, it must 1) be based on a protected status (gender/sexual, race, ethnicity, etc.), 2) be serious or pervasive, and 3) alter the conditions of employment. A single comment can make a case, but it has to be something outrageous. The outcome of this case does not surprise me at all. (A retaliation claim brought by the same plaintiff in this case was not dismissed.)