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.  

Tuesday, October 15, 2013

Federal court says unpaid intern cannot sue for discrimination

In a case of apparent first impression, a federal court in New York ruled last week that an unpaid intern could not sue for workplace sexual harassment because she did not qualify as an employee under the state's employment discrimination law.  The court reasoned that because the intern did not recent compensation, a fundamental aspect of the employee-employer relationship was missing. The ruling leaves open the question of what protection an unpaid intern has against workplace discrimination if not under employment discrimination laws. If other courts adopt the same reasoning, particularly in a case under Title VII, the federal employment discrimination law under the Civil Rights Act of 1964, the ruling will have a far reaching effect.

Saturday, October 5, 2013

Federal court OKs refusal to hire based on headscarf

On October 1, 2013, the U.S. Court of Appeals for the Tenth Circuit ruled that Abercrombie & Fitch did not violate anti-discrimination laws when it refused to hire a female Muslim applicant because her religious headscarf violated its "Look Policy" on employee dress. The Court based its decision, which both reversed a lower court's ruling in favor of the Equal Employment Opportunity Commission ("EEOC") on the applicant's behalf and ordered the lower court to issue a decision in the company's favor, on the fact that the applicant did not expressly notify the store that she wore the headscarf ("hijab") for religious reasons and needed an accommodation of its dress policy. Therefore, the Court reasoned, the company did not know of its need to accommodate her religious beliefs and the EEOC could not, as a matter of law, prove its case.

The decision, in this writer's opinion, is a catastrophic failure to apply Title VII law to effect its remedial purpose. The intent of anti-discrimination laws is to prohibit, or prevent as much as possible, discrimination based on certain statuses, one of which is an individual's religious beliefs and practices. In this case, Abercrombie had every reason to know that this applicant wore the headscarf for religious reasons. The decision itself states that the company officials who interviewed the applicant and reviewed her candidacy assumed that she was Muslim and wore the scarf for religious reasons. To allow a company who has that knowledge to nonetheless refuse to hire someone simply because the candidate did not affirmatively announce her need for an accommodation undermines the entire purpose of the statute. It epitomizes form over substance. It encourages companies not to accommodate and to act before a prospective employee has the opportunity to request an accommodation.  I hope that the decision gets appealed to the full appeals court en banc and is reversed.