Too hot for your boss? Too bad.

Employment lawyers are always telling potential clients that they can be fired for virtually any reason, even for something that's not their fault or that they didn't even do. What employers cannot do is fire an employee because of his or her race, gender, religion, or other protected status.

In another example of the wide latitude employers enjoy in personnel decisions, a state judge in Iowa ruled that a dentist did not violate antidiscrimination laws when he fired a female staff member for being too attractive. According to Slate.com, the dentist fired the irrestible staffer after 10 years of employment when his wife discovered some innocent but personal text messages between the dentist and the female staff member.  The court ruled that the termination did not amount to gender discrimination, because the dentist did not terminate the employee on the basis of her gender but for the purpose of saving his marriage. In fact, he replaced the employee with another woman.

As the writer for Slate.com reasoned, the dentist is not a sympathetic employer, and his actions are deplorable. He fired an employee because of his own personal failings - i.e. the inability to control his male urges. He did not, however, fire her because of her gender.

Court worker claims sexual harassment complaint ignored

A female employee at the Concord District Court has filed a sexual harassment lawsuit against the Trial Court, alleging that the Trial Court did nothing in response to her repeated complaints that a probation officer was sexually harassing her. As reported by Massachusetts Lawyers Weekly (subscription required), Susan Ahern filed the complaint originally at the Massachusetts Commission Against Discrimination, claiming that the Trial Court aided and better the sexual harassment and, as a result, created a hostile work environment. She alleges that Probation Officer Ricky Speller sexually assaulted her, wrote her sexually explicit notes, showed her photographs of nude women, and engaged in other sexual harassment, and yet no disciplinary action was taken even after she reported the behavior to her supervisor and the Trial Court's general counsel. The MCAD found probable cause for her claim, and Ahern removed the complaint to Superior Court. The Trial Court has not yet responded to the complaint.

Minority police officers can sue state for interfering with their equal employment rights

On Friday, the Massachusetts Supreme Judicial Court ruled that the state's employment discrimination statute, Chapter 151B, authorizes minority police officers to pursue a discrimination lawsuit against the state agency that develops their promotional examination. The ruling overturned a Superior Court decision that dismissed the officers' lawsuit on the grounds that the state's Human Resources Division ("HRD") is not the officer's employer under Chapter 151B. [Full disclosure: Joseph Sulman was co-counsel for the plaintiffs at the Superior Court.] In overturning the lower court's ruling, the SJC agreed that HRD did not qualify as an employer under the statute, but found that the officers could pursue a claim against the agency for interfering with their rights under the statute.

As the decision explains, Chapter 151B not only provides a claim against an employer for discrimination, but also provides a claim against any "person" for interference with rights protected by the statute. Because the interference provision applies to any "person," HRD does not need to be the officers' employer to be sued under that provision.

The case involves a class action complaint alleging that the civil service examination for promotion to sergeant has a discriminatory impact against black and Hispanic police officers. Although the law authorizes municipalities to develop their own promotional examinations, HRD has developed the sergeant examination used by virtually every municipality with a civil service police department.

First Circuit reduces emotional distress award, upholds front pay in retaliation claim

A $500,000 emotional distress award was reduced to $200,000, but the First Circuit Court of Appeals otherwise affirmed a verdict in favor of an retaliation claim that awarded the plaintiff $2.5 million in combined lost wages and punitive damages.  The figure will become $2.9 million assuming the plaintiff does not challenge the new emotional distress calculation, which will become doubled due to the punitive damages.

Trainor v. HEI Hospitality, LLC  is a good example of the importance of bringing multiple claims: the plaintiff lost the underlying age discrimination claim, but succeeded on the retaliation claim. The plaintiff in brought the claims under federal and state law against his employer arising out of a planned restructuring of his position. When he objected to the restructuring and alleged age discrimination as the motivating factor, he was terminated. The jury found for the employer on the underlying claim of discrimination, but ruled for the plaintiff on retaliation and awarded $500,000 in backpay, $750,000 in front-pay, and $1 million for emotional distress. The judgment was doubled upon the finding that the employer acted wilfully. The judge then reduced the emotional distress award to $500,000.

On appeal, the First Circuit upheld the verdict in all respects except for the emotional distress award, which it further reduced to $200,000. The Court reasoned that the award was excessive since the plaintiff only offered his and his wife's testimony on the emotional distress, but he did not receive treatment or counseling from a physician or therapist.

In addition, the appeals court rejected the Defendant's argument that the front pay award was duplicative of the doubling of the damages, since front pay was intended to compensate the plaintiff for lost future earnings and the doubling of damages was a punitive measure targeting the employer.

The decision is noteworthy for at least points of law: First, this is a so-called "garden variety" emotional distress claim since no evidence of counseling or treatment of any kind supported the claim. As such, $200,000 is a sizable award, notwithstanding the reduction from the original $1 million. Second, the significant front-pay award of $750,000 is noteworthy and encouraging for other victims of retaliatory firings.

Haitian employees at Logan Airport allege discrimination

Two Haitian nationals who worked for a cleaning company at Logan Airport allege that they were terminated from their jobs for speaking Creole, according to the Boston Globe.  They have filed complaints of discrimination with the Massachusetts Commission Against Discrimination, claiming that they were singled out as opposed to other employees who spoke different foreign languages. One of the employees, Charles Pierre, told the Globe that he hears many employees speaking Spanish, and cannot understand why he and other Haitian employees cannot use their language.

While the state's anti-discrimination law does not explicitly protect the right of employees to speak the language of their choice at work, it does prohibit discrimination based on national origin or race. Punishing employees for speaking a foreign language, unless speaking English is necessary for the job, may be evidence of discrimination based on national origin or race.

Supreme Judicial Court Applies Ministerial Exception Broadly in Temple Emanuel Decision

Teachers at supplemental religious schools in Massachusetts cannot bring workplace discrimination claims against their employers. The United States Supreme Court in it's Hosanna-Tabor Lutheran Church and School v. EEOC ruling recognized, for the first time, the "ministerial exception" grounded in the First Amendment, stripping the rights conferred by workplace discrimination laws from those the Court determines to be a minister.  Last month the Supreme Judicial Court of Massachusetts held that part time teachers at a religious after school program qualified as ministers, in Temple Emanuel of Newton v. MCAD.  

Teacher Gaye Hilsenrath brought a discrimination complaint against Temple Emanuel's Rabbi Albert I. Gordon Religious School. Ms. Hilsenrath was not a rabbi.  Her claim of discrimination had nothing to do with religious beliefs.  She alleged age discrimination, that she was not rehired to her teaching position because she was too old. The Synagogue did not assert a sincerely held belief that teachers should retire at a certain age.  Instead, they argued that who they hire to teach at their religious school is none of the States business.  The court agreed.

Answering their own question in the affirmative, the Supreme Judicial Court stated "the fundamental question [in deciding if the ministerial exception applies] is whether it would infringe the free exercise of religion or cause excessive entanglement between the State and a religious group if a court were to order a religious group to hire or retain a religious teacher that the religious group did not want to employ, or to order damages for refusing to do so." The opinion gave no indication how far this "ministerial exception"would reach in the future.  But this decision is unlikely to be the last word on the topic.
 

Federal court rules that disability discrimination must be sole factor in claim against federal government

In a case of first impression, the First Circuit Court of Appeals in Palmquist v. Shinseki ruled that a federal employee's complaint of retaliation for complaining about disability discrimination must be the sole factor in an employment action to allow recovery under the Rehabilitation Act. The Rehabilitation Act, 29 U.S.C. sec. 701, et seq., protects federal employees from discrimination in employment based on disability. The employee in Palmquist argued that he should be allowed to recover damages against his employer, the Department of Veteran Affairs, where retaliation for his complaint of discrimination was a motivating factor, but not the only factor, in the denial of his promotion. The federal appeals court disagreed, ruling that the "mixed-motive" standard from Title VII did not apply to the Rehabilitation Act because the Act uses language from the American with Disabilities Act in prohibiting adverse employment actions "because" an employee opposed a practice unlawful under the Act.