Sunday, November 9, 2014

"Get naked" comment not enough for sexul 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.)

Tuesday, November 4, 2014

Supreme Court to decide pregnancy discrimination rule

The Supreme Court of the United States is set to hear arguments on December 3 on whether employers must treatment pregnancy-related disabilities on par with non-pregnancy related disabilities under federal law. While the issue may seem significant only to legal scholars , it has far-reaching practical effects. The plaintiff, Peggy Young, needed a break from heavy lifting at her UPS job due to her pregnancy, according to her doctor. In response, UPS placed Young on unpaid leave, rather than give her light duty, which is an accommodation it gave to workers who suffered on-the-job injuries. The issue now before the Supreme Court is whether UPS violated the law by treating Young's need for accommodation differently than it would have had she needed the accommodation due to an on-the-job injury. The Pregnancy Discrimination Act of 1978 requires employers to treat employee with work limitations due to pregnancy the same as similarly-abled employees with limitations due to other reasons.

Many employers, including UPS, have revised their internal policies to require equal treatment of pregnancy-related requests for accommodations. But the issue is one that is likely to recur for many pregnant women and the case should result in a uniform rule. The Supreme Court should decide the case by June.

Tuesday, October 28, 2014

MCAD Gets Flak For Massive Backlog

The Massachusetts Commission Against Discrimination is overwhelmed with cases. While that fact has long been known to lawyers who practice at the Commission, it was only recently publicized in a WBZ-TV news story. As part of the news segment, WVZ interviewed Commissioner Jamie Williamson, who chairs the Commission, and even she acknowledged that the workload does not allow the Commission to fulfill its mission.

In this writer's opinion, the truth is much worse than what the story reported. While WBZ noted that cases can take three to four years to reach completion,  cases that proceed to a full hearing ake  much longer. I have had cases where the MCAD took over three years just to issue a probable cause finding. This delay results in egregious injustice when the decision is a lack of probable cause, because Chapter 151B -- the state anti-discrimination statute -- has a three year statute of limitations, which means that after three years from date of the discriminatory action, the employee can no longer file a lawsuit. This is true even if the employee has already filed at the MCAD. A lack of probable cause issued three years later means the employee is prevented from going to court by a decision written often by a legal intern.

Transgender federal employee subjected to discrimination

Last Thursday, the U.S. Office of Special Counsel determined that the Army discriminated against a male to female transgender employee by consistently referring to her with male pronouns, restricting her bathroom use, and refusing to give her work. The Washington Post reports that Tamara Lusardi, a veteran and civilian Army software specialist, was reportedly called "he" and "it" after she transitioned from male to female in 2010 and . Regarding the restriction on her use of the bathroom, the Army contended that other female employees felt uncomfortable with her presence in the bathroom. The Office of Special Counsel responded that co-worker preference cannot alone justify workplace discrimination.

The decision is another example of how transgender persons are finding increasing protection in employment anti-discrimination laws.  The decision is also remarkable for another reason: Army officials appear to have at least attempted to treat Ms. Lusardi's transition respectfully. According to the report, one official told her to mindful that some employees did not understand what she had gone through and why she used female restrooms; this same official, while expressing concern for the comfort of co-workers, consistently expressed a desire for Ms. Lusardi to be treated with fairness and respect. As this case shows, the good intentions of an employer are not enough. Discrimination does not require evil intent; it simply requires treating an employee differently on the basis of a protected characteristic. Even when employers do this for benign reasons, they still violate the law.

Saturday, April 26, 2014

Harvard professor alleging retaliation for supporting students

A professor at Harvard University has filed a charge of discrimination with the Massachusetts Commission Against Discrimination alleging that the university retaliated against her for supporting female students who had complained about Harvard's response to sexual assaults on campus. Kimberly Theidon, an associate professor of anthropology, alleges that she was denied tenure, despite being previously described as a strong candidate, after she posted comments in March 2013 in response to a Harvard Crimson article about sexual assaults. In the comments, Theidon defended the anonymous victims of sexual assault who were quoted in The Crimson, and argued against self-identified “men’s rights” activists commenting on the story.

The complaint was filed in late March 2014. Typically investigations into charges of discrimination at the Commission take anywhere from nine months to two years until a finding of probable cause or lack of probable cause is made.  

Monday, November 25, 2013

Lincoln agrees to pay former Metco director $315,000 to settle retaliation case

The Lincoln Public Schools District has agreed to pay $315,000 a claim brought by its former Metco director who alleged that the District retaliated against her by eliminating her position against after she protested unfair discipline meted out to two students of color. The employee Christina Horner alleged that she complained to Superintendent Michael Brandmeyer after two black students were punished more harshly for pulling down each other's pants than a white student was for the same conduct. The Massachusetts Commission Against Discrimination reportedly found probable cause for the allegations in July. 

The large settlement is yet another lesson for employers about the dangers of retaliating against an employee - or taking any action that appears to retaliatory - who protests a policy or practice that the employee believes is discriminatory. Such retaliation claims are far easier to prove than traditional discrimination claims because there is no need to prove that the employer had "discriminatory animus" - i.e. ill-will toward a protected class - but only that the employer was upset against about an employee who complained about something that he or she believed was discriminatory, and the employer and took action as a result. Juries seem to understand and believe that employers engage in this this type of retaliation more readily that they believe employers have actual ill-will toward a particular race, gender, religion, etc. 

Saturday, November 16, 2013

Federal court denies claim of associational discrimination

Earlier this year, the Massachusetts Supreme Judicial Court ruled in Flagg v. Alimed, Incthat an employee could pursue a claim of disability discrimination on the theory that he was terminated due to a family member's disability. The Flagg decision was the first time that an "associational discrimination" claim based on disability was recognized under state law in Massachusetts. 

Last week, a federal judge in Boston refused to extend Flagg and the associational discrimination to claims involving advocacy on behalf of disabled persons. The plaintiff in Perez v. Greater New Bedford Vocational Technical School District was a special education teacher who alleged that she was terminated due to her support for her disabled students.  Judge Dennis Saylor reasoned that associational discrimination cases like Flagg generally involved a familial relation between the plaintiff and handicapped person. Moreover, Judge Saylor explained that the plaintiff claimed that she was terminated due to her advocacy, but not did not claim that she was subjected to the same "prejudices, stereotypes, and unfounded fear" that marks discrimination against disabled persons.