Dedham restaurant and town officials settle discrimination claim

In a rare public admission of fault, the Bamboo restaurant in Dedham and town officials acknowledged wrongdoing when the restaurant refused to provide disabled patrons service over the summer and a police officer allegedly refused to intervene, according to the Daily News Transcript. The acknowledgement arose out of an incident on June 26, 2011 where the restaurant would not seat a large group of patrons that included one person in a wheelchair and several service animals. The restaurant allegedly insisted that the patrons show identification for the service animals and claimed that the local health department refused to allow the dogs near the restaurant buffet. When the patrons called the police, an officer arrived who reportedly refused to help and accused one of the patrons of "getting in his face," according to one of the patrons' affidavits. 

The state's anti-discrimination statute forbids restaurants and other places of public accommodation from requiring identification for service animals and refusing service to disabled persons based on the presence of a service animal. The restaurant's website now includes a statement of apology.

Funds to Quincy Housing Authority frozen

The Quincy Housing Authority has become ineligible for  federal funding until it addresses a current tenant's complaint of disability discrimination.  The United States Department of Housing and Urban Development froze funding for the Housing Authority after its representatives allegedly failed to respond to inquiries from the federal government regarding the discrimination complaint.  

The complaint arose after a tenant requested a transfer to another unit last year because of alleged harassment and threats from a neighbor.  With her request, the tenant allegedly submitted a letter from her doctor claiming she is disabled and is being treated for depression and anxiety. According to the Patriot Ledge, the Massachusetts Commission Against Discrimination issued a finding that the Housing Authority failed to engage in an interactive process to accommodate the tenant's disability, as required by state and federal disability law, and failed to show that accommodating the tenant's request for a transfer would create an undue hardship.  

Framingham teacher waits on discrimination complaint investigation

A 51 year old physical education teacher at Framingham High School filed an age discrimination complaint with the Massachusetts Commission Against Discrimination recently alleging that the school forced her out of her position due to her age.   Kennedy worked as an athletic trainer for 22 years when the school cut position and gave her a new job as a physical education teacher. With this position, Kennedy alleges that she was required to attend weekly meetings with her supervisor, who made “cruel and gratuitous remarks” about her performance. She also alleges that the school required her to submit lesson plans three weeks in advance of each class, while other teachers at the school only had to submit their plans three days in advance. The MCAD is currently investigating Kennedy's claims.

Update: Transgender Rights Bill Signed Into Law

On Wednesday November 23, 2011, Governor Deval Patrick signed into law "An Act Relative to Gender Identity," bringing gender identity under the protection of the state's anti-discrimiantion statute, Chapter 151B.  Massachusetts now becomes the 16th state to protect transgendered status in equal protection laws.

Update: Transgender rights bill passed by Senate

This past Wednesday, the Massachusetts state Senate passed the Transgender rights bill recently passed in the House. The bill is now headed to Governor Deval Patrick who has already said he will sign the bill. As soon as the bill becomes law, Massachusetts will become the 16th state to include transgender status under anti-discrimination laws. Derrek Shulman, the regional director of The Anti-Defamation League, New England, described the importance of the new measure: “Discrimination based on one’s gender identity or expression is just as destructive as discrimination based on those categories explicitly prohibited by current law and should receive equal and unambiguous protection.’’

Update: Transgender rights bill passed by House

Last night, the Massachusetts House of Representatives voted 95-58 to pass the recently introduced bill that aims to protect transgender people against discrimination in the workplace. The bill will now head to the Senate for another vote. The vote came two days after the removal of a section that prohibited discrimination in public accommodations. As a result of this removal, some House Republicans and other critics of the bill claimed the vote a partial win but continued their criticism of the remainder of the bill. Representative Marc Lombardo was especially vocal in his disapproval of the bill, stating "it opens the door for social change that would take away the rights of hardworking men and women and parents". Governor Deval Patrick responded by saying he would sign the bill if it reached his desk and rejected his opponents' claims. He defended the bill by stating, "I don't think fairness is bad for anyone."  


I would tell Representative Lombardo that arguing against an equal rights bill because of fear that it will hurt businesses is a dangerous position.  It opens the door to justifying all types of discrimination.  Certainly, a Southern business owner in the 1950s could claim that by allowing blacks to shop at his store, or by employing blacks, he would drive away white customers.  Today, some business owners might claim that employing an openly gay customer service employee could drive away customers.  One should always be careful before citing the potential biases of customers as a reason to deny equal opportunity in employment.

Transgender rights bill pushed forward, criticized

Massachusetts lawmakers are debating whether to add transgendered status to the list of protected classes in the state's anti-discrimination statute, Chapter 151B.  The Boston Globe reports that the bill has been advanced by Democrats while at the same receiving criticism from Republican lawmakers who say that the bill would hurt small business and take the Legislature's focus away from the economy.  They also claim the bill would spur lawsuits.  The bill is expected to come to a vote in the next few days.  The national political website Daily Kos has expressed support for the bill.  The bill does not include protection against discrimination in public accommodation.  Based on my research, it appears that a new version of the bill was introduced today that differs slightly from older versions.  None of the politicians involved has stated that the bill was changed, so it was probably just technical corrections.

Age discrimination alleged in fire department hiring

The Massachusetts Commission Against Discrimination recently found probable cause to support a Milton Deputy Fire Chief's claim of age discrimination in department hiring practices. John P. Foley, who was 59 at the time he sought the position of chief of his fire department, claims he was denied the position because of his age. According to the Boston Globe, the position was offered to Milton Deputy Chief John Grant, 49 at the time, after he and Foley where finalists for the position. While the town denies such discrimination existed, Foley claims Grant had “less extensive educational background or experience.” In addition, Foley's lawyer stated, "the selectmen made Mr. Foley’s age an unlawful barrier to his promotion by indicating that they were looking for a candidate who would be in the position for at least 10 years and whose age would not require them to go through the selection process again in several years."After an 18 month investigation, the Commission ruled in support of Foley's claim after it found that the town had “failed to provide sufficient evidence to show a credible reason why Grant was chosen."

Both sides have six months to prepare for a hearing.

Decade-old discrimination case finally settled

A discrimination case dating back to the late-1990s involving two employees of the City of Cambridge was finally settled this month, according to the Boston Globe.  The two employees, Linda Stamper and Mary Wong, had alleged racial discrimination and retaliation against the City.  They were on the verge of trial when settlement was reached.  The terms of the settlement were not announced.

A third city employee was originally involved in the lawsuit, but Malvino Monteiro's claims had already gone to trial, resulting in a multimillion dollar verdict for Monteiro which the state appeals court recently upheld. 

Discrimination in rental market: it still happens, and it can be blatant

What happened to Keisha Willis should be a wake-up call to those people, too many it seems, who think that racial discrimination is not a major problem in America anymore.  Willis, a real estate broker who is black, contacted a landlord in Newton to inquire about a listing and whether he wanted a broker.  The landlord provided some details, and then told Willis that he did not want to rent to those "Africans."  Startled, Willis asked what he meant, and the landlord, Alfred Defazio, made himself clear: he did not want any blacks in his property.

The Massachusetts Commission Against Discrimination found Defazio liable for racial discrimination in violation of the Massachusetts Anti-Discrimination Statute, Chapter 151B.  This ruling should not be surprising.  The case is particularly noteworthy, I believe, because, while the situation was obviously painful and distressing for the victim, it serves as a helpful lesson for Americans at large.  As the government has increasingly enforced laws against racial discrimination, American society has seen less overt racial discrimination.  But that does not mean, necessarily, that there are less racists, or that discrimination does not still occur.  There are people today (even in Newton, Massachusetts) who would post "no blacks allowed" signs if they could; it just happens that most of these people are smarter than this landlord, and achieve their discrimination through subtler means. 

(Apologies for the month long break between posts.  September was particularly busy.)

Woman wins gender discrimination suit against Chief Justice of Trial Court

The Massachusetts Commission Against Discrimination has awarded over $200,000 in damages to a female employee of the Trial Court of Massachusetts after she was denied a promotion due to her gender.  According to the Boston Globe, the MCAD found that Robert Mulligan, the Chief Justice of Administration and Justice for the Trial Court, refused to follow the recommendation of a three-member panel to promote Mary Jane McSweeney to the position of Operations and Maintenance Supervisor for the Plymouth District Court, instead appointing a male candidate who was the panel's third choice.  The MCAD found that Mulligan's decision resulted from an unconscious bias about a woman's ability to perform in a managerial position traditionally held by men, the Globe Reported.  McSweeney had worked for the Trial Court for over two decades, serving 14 years as a regional facilities manager for seven courthouses in Greater Boston, according to the Globe.

As of the date of this post, the decision is not yet available on the MCAD's website. 

State court affirms discrimination ruling against Cambridge

A Massachusetts Appeals Court this week affirmed a $4.5 million jury verdict for a City of Cambridge employee who alleged that her bosses retaliated against her after she filed a complaint with the Massachusetts Commission of Discrimination.  The employee, a native Cape Verdean, originally filed the complaint with the Commission in 1998, and she allegedly received systematic harassment over the next five years, and eventual termination from her position as Executive Secretary of the Police Review and Advisory Board. 

The jury verdict was strictly based on the claim of retaliation -- that is, that the City terminated her in response to her complaint of discrimination.  This is another reminder that under the state employment discrimination statute, Chapter 151B, employers may be liable for taking adverse action against their employees in response to a claim of discrimination even if the underlying claim proves unfounded (as long as the claim is not frivolous), and for the same amount of damages.  Also significant, the termination occurred five years after the employee brought her original discrimination claim. The temporal distance between the two events apparently did not persuade the jury to disbelieve the retaliation claim.  The jury awarded the employee $962,400 in lost back pay and front pay damages, $100,000 in emotional distress damages, and $3.5 million in punitive damages.  After appeal, this total ballooned to over $10 million.  

Massachusetts Appeals Court rules that state is not immune to disparate impact discirmination claims

The Massachusetts Appeals Court issued a decision this week rejecting the novel legal argument that the Commonwealth and its agencies cannot be sued for disparate impact discrimination.  In Porio v. Department of Revnue, the plaintiff, Richard Porio, alleged that the Department of Revenue discriminated against him on the basis of his age during a round of layoffs.  Porio did not claim that the DOR singled him out because of his age, but that the DOR's lay-off disproportionately affected older workers without any business justification.  This "disparate impact" theory is common in discrimination cases, particularly class actions, but no appellate court had ever expressly held that the state's employment discrimination statute, Chapter 151B, allows disparate impact claims against Massachusetts or its agencies.

The precise legal issue concerns sovereign immunity.  In general, a state is immune to civil actions brought by citizens unless it has expressly waived its sovereign immunity for the particular claim or action.  There is no doubt that the Commonwealth had waived its immunity to suit under Chapter 151B, as the state is expressly defined as an "employer" under the statute.  However, Porio argued that the Commonwealth did not expressly waive its sovereign immunity for the particular claim of "disparate impact" discrimination.  This was an unexpected argument, and while the Appeals Court did not find the argument without some logic, it soundly rejected the proposition.  The Court ruled that disparate impact and disparate treatment are not two distinct claims or causes of action, but two distinct methods of proving discrimination.  Considering that the "Legislature had plainly waived the Commonwealth's sovereign immunity to age discrimination claims" together with the "general reach" of Chapter 151B, the Court held that the Commonwealth has waived its sovereign immunity to age discrimination claims based on disparate impact.

Workplace discrimination complaints at record high

According to Business Week, the Equal Employment Opportunity Council (EEOC) received a record number of complaints last year of employment-related discrimination.  Overall, 99,922 charges were filed in fiscal year 2010 (October 1, 2009 through September 30, 2010), and 20,149 resulted in some form of resolution favorable to the employee. 

The article mentions that the weak economy may be a factor in the high number of complaints.  Based on my experience, I'm not sure I agree.  Yes, as more people are laid off, it makes intuitive sense that some will believe unlawful reasons were a factor in the decision.  But I think this does not give people enough credit for their understanding of how a business operates.  I have not had a single client come into my office claiming discrimination through a reduction in workforce.  Most people understand that a bad economy will result in lay-offs and restructuring.  Almost uniformly, the people who come to me for help share stories of a hostile work environment or a malevolent boss.  Sometimes I have to tell these people that being treated badly at work isn't itself unlawful - it is not against the law to act like a jerk. But a lot of times they have good reason to believe that their protected status was the motivating factor in their discharge.  It may be that a bad economy gives those in power more license to engage in discrimination when it comes time to choose which employees to let go. 

UMass loses bias suit, ordered to promote professor

The Massachusetts Commission Against Discrimination fined the University of Massachusetts at Dartmouth $10,000 and ordered the school to pay a professor $354,000 in damages for alleged discrimination based on gender, race and nationality.   The Commission also ordered UMass to promote the professor to full professor status, in what was described as an "unprecedented step."  The decision was issued by hearing officer Betty Waxman.  UMass may still file an appeal to the full Commission, but has not done so yet. 

How will the Supreme Court's Wal-Mart decision affect future class-actions?

Lawyers and legal commentators are buzzing this week about the Supreme Court's decision in Wal-Mart v. Duke, which held that a nationwide class-action against Wal-Mart alleging gender discrimination could not go forward because it did not meet the requirements for class treatment.  Specifically, the Court ruled that the plaintiffs' claims did not raise common issues of fact and law sufficient to meet the requirements of Rule 23 of the Federal Rules of Civil Procedure.  The result has many people asking if some companies are simply too big to be sued on a class-wide basis.  Others have pointed out the Court's apparent inconsistency in emphasizing Wal-Mart's corporate policy prohibiting gender discrimination while finding that the individual store managers had too much discretion for the plaintiffs to show any common practice or policy.  The actual effect of the decision on nationwide class-actions remains to be scene as lower courts interpret and apply the decision.  This was the second significant decision by the Supreme Court this year on class actions, the first being the AT&T case where the Court decided that state law could not be used to prohibit a company from restricting a customer's right to pursue a class-action.

Court ruling expands liability for workplace retaliation

The Massachusetts' anti-discrimination statute, M.G.L. c. 151B, clearly prohibits an employer from retaliating against an employee for exercising his or her rights under the statute or interfering with the exercise of such rights.   The Supreme Judicial Court recently ruled that this protection applies equally to former employees.  In Psy‐Ed Corp., et al. v. Klein & Schive v. Hirsch, et al., a former shareholder of a company signed an affidavit supportive of a person who had filed a charge of discrimination against the company.  Upon learning this, the company filed a lawsuit against the former shareholder which the Superior Court found to be unmerited, an abuse of process, and retaliatory.  The Supreme Judicial Court affirmed the Superior Court's ruling and held that Chapter 151B protects both current and former employees from retaliation even when the retaliatory action occurs after the employment relationship has ended. 

Discrimination for refusing to rent to families with children

It is illegal in Massachusetts to refuse to rent to someone because he or she has children or because you don't want to eliminate lead hazards for children.  This week, the Office of the Attorney General settled discrimination clams against a Lynn real estate company and other entities alleging that they violated state anti-discrimination and lead paint laws by refusing to show or rent an apartment to a pregnant woman.  The Attorney General also settled similar claims against a Chelmsford real estate company alleging that it discriminated against a prospective tenant with children.  Both complaints originated with the Massachusetts Commission Against Discrimination, which issued findings of probable cause in each case and then referred the matters to the Attorney General. 

Boston Globe publishes editorial supporting proposed ban on transgender discrimination

This is not a legal development, but it is worth noting that the Boston Globe today published an editorial today in support of proposed legislation on Beacon Hill that would ban discrimination against transgendered persons, calling such a proposal a "matter of simple justice."  As the Globe notes, the bill has been proposed in years past, but the Judiciary Committee never  brought he bill to a vote until today, when it is scheduled for a hearing.

I have noted previously that the media and lawmakers are slowly but steadily recognizing the enormous challenges and prejudices that transgendered persons face every day.  See my previous posts here and here, and developments in Nevada, Connecticut, and a report by the Center for American Progress. 

Beacon Hill considering expanding equal pay law

The Massachusetts Legislature is considering a change to its equal pay law to clarify when the law's requirement of equal pay for "comparable" work is triggered.  The law currently prohibits employers from paying different wages to women and women for "work of like or comparable character," but does not define the meaning of "comparable."  The proposed amendment to Section 105A of Chapter 149 of the Massachusetts General Laws would make work "comparable" according to an evaluation of the "skill, effort, responsibility and working conditions between employees of the opposite sex." 

Gender discrimination settlement at plant in Peabody

The Salem News reported this week that the Peabody Municipal Light Plant paid $112,500 to settle a gender discrimination complaint brought by a female plant worker.  The worker alleged that she was repeatedly passed over for promotion in favor of less qualified male plant workers.  The settlement amount includes a $65,000 payment of attorneys' fees to the plaintiff. 

House members propose bill to override Supreme Court's age discrimination ruling

Several United States congressmen have proposed legislation to address a controversial 2009 ruling by the Supreme Court on age discrimination claims.  In Gross v. FBL Financial Services, Inc., the Supreme Court made a dramatic change to the standard of proof in cases brought under the federal Age Discrimination in Employment Act of 1967 (ADEA), ruling that a claimant must show that age was the "but-for" cause of the adverse employment action.  Previously, the standard required showing that age was a "motivating factor" in the employment action.  This "motivating factor" standard is applied in Title VII cases, which the ADEA was modeled after, and thus the Supreme Court's departure from this standard in the age discrimination context seemed perplexing to many (including Justice Stevens in dissent).  Almost immediately, Democratic senators began an initiative to pass legislation to overturn the decision.  Now the effort has begun anew, this time in the House of Representatives.

Discrimination alleged at Sheriff's Department by victim of clergy sexual abuse

The Boston Globe reported today that a correction officer for the Suffolk County Sheriff's Department has filed a complaint with the Massachusetts Commission Against Discrimination alleging that he was harassed by his supervisors and co-workers for the past six years after he revealed that he had been sexually abused by a priest as a child.  The complaint includes numerous examples of alleged harassment, such as his locker being defaced with sexually graphic messages, lewd jokes made against him, and a deputy yelling at the officer to perform a sexual act on a priest.  According the Globe, the officer reported the abuse to the jail superintendent, who told him to "man up." Afterward, the harassment allegedly intensified.  The article also describes a letter from the Department to the officer in November 2010 that remarked on the officer's "sporadic attendance" record while he was receiving treatment, and warned him that the Department could not permit any more disruption to its daily operations due to such absences.

Supreme Judicial Court: heightened judicial review for discrimination against legal immigrants

Claims of discrimination by legal immigrants will now receive the strictest degree of judicial scrutiny under Massachusetts law.  This recent announcement by the Supreme Judicial Court is particularly noteworthy because the state's constitutional guarantee of equal protection does not expressly refer to immigration status.   The ruling arises out of a class action lawsuit filed by thousands of legal immigrants who allege that they were unfairly denied coverage under the state’s subsidized Commonwealth Care health plan.

Gender war in high school athletics: what role can boosters play?

Title IX requires equal funding of all educational programs, including athletics, regardless of gender.  According to the Women's Sports Foundation, the law has resulted in a 904% increase in participation by females in high school athletics and 456% increase in participation by females in college athletics.  There is also an ongoing debate about whether Title IX has the unintended consequence of hurting male athletic programs by forcing school's with budget issues to eliminate male athletic programs or teams to equalize funding. 

The Haverhill Touchdown Club, the boosters for the Haverhill, Massachusetts high school football team, had their own encounter with Title IX recently.  According to the Lawrence-Eagle Tribune, the Touchdown Club intended to donate $15,000 to help cover the athletic fees for football players, which run $275 per year (the same as other varsity fees).  The high school football team has not a won a game in three years, and according to the Tribune, far fewer students play on the team than before the fees were instituted.  The Touchdown Club discovered, however, that it would need to donate $15,000 to cover boys' fees and $15,000 to cover girls' fees to comply with Title IX.  The Club scrapped their plans for the donation and are considering other avenues to help the football team now. 

Although I do not have any experience in Title IX, this story is a good example at how laws relating to discrimination and equal opportunity can apply in surprising ways.  Whether you are an employer or an individual, it is a good practice to think broadly, even creatively, about whether your actions implicate such laws. 

Follow-up: Labor Dept. adds gender identity as protected class

On Monday, I posted about the slow but steady development in employment discrimination law that is expanding protection to transgendered individuals.  This week, the United States Department of Labor announced a revision to its discrimination policy that lists gender identity for the first time as a protected group.  Although the public statement did not emphasize the inclusion of gender identity but simply proclaimed a "renewed commitment to fair treatment and equal opportunity for all of its employees," the purpose of the announcement is apparently clear to transgendered advocates. 

Will class action decision have repercussions in employement law?

On Wednesday, the Supreme Court ruled that companies may include arbitration provisions in their standardized contracts that prohibit customers from pursuing any claim against the company as a class-action.  The ruling means, as a practical matter, that service agreements and many other types of contracts will increasingly include provisions that require all legal claims against the company to proceed on an individual basis.   The decision also nullifies, for now, the decision by the Massachusetts Supreme Judicial Court in 2009 that found a class-action waiver provision in a consumer contract unconscionable under state law.  The Supreme Court's AT&T opinion can be found here.

Mandatory arbitration provisions, through which the parties agree to pursue any dispute in arbitration rather than court, are common in all types of contracts.   The issue in AT&T is more specific and hotly contested.  Industries such as cable and wireless providers often insert provisions in their standard service agreements through which the customer agrees to bring any claim against the company in arbitration and only as an individual, not as a class.   Many courts and circuits have struck down the provisions over the past several years under state laws that prohibit unconscionable contractual arrangements.  (Full disclosure: I was part of the defense counsel in one such case.)  By a 5-4 vote, the Supreme Court held that the Federal Arbitration Act and the federal policy in favor of arbitration trumps state contract laws that prohibit such clauses.

The AT&T decision is significant for employment attorneys, as class action waivers will become more prevalent in all large contractual relationships.  Several federal decisions in Massachusetts have already struck down class action waivers in employment contexts.  The continuing authority of those decisions is now in doubt.

Federal judge applies Equal Protection Clause to sexual orientation discrimination

On Monday, a federal judge in Ohio ruled that a county worker could claim protection under the Fourteenth Amendment's Equal Protection Clause against employment discrimination based on sexual orientation.   The government argued that the plaintiff, a lesbian, could not assert an Equal Protection claim because Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination, does not include sexual orientation as a protected class.   The judge rejected this argument:

"Simply because Title VII does not include sexual orientation as a statutorily protected class does not, in this Court’s view, automatically remove all constitutional protection where a plaintiff employee claims equal protection violations based on her membership in that class.... Though sexual orientation may not be a suspect or quasi-suspect class, the Court finds that constitutional disparate treatment claims alleging sexual orientation discrimination by a public employer at least garner the bare minimum of rational basis review."

The decision in Hutchinson v. Cuyahoga County Board of County Commissioners could have far-reaching implications.  Sexual orientation is usually considered an unprotected class under federal law.   The fact that the judge ruled that sexual orientation only receives rational basis review certainly limits the practical import of the decision.  Nonetheless, it will be interesting to see the effect that this decision has on the development of case law on sexual orientation discrimination.

Protection for transgender employees slowly increasing

Although it does not seem to be receiving much attention, legislatures, courts, and politicians are increasingly providing protection for transgender employees against discrimination to the same extent as for other protected groups.   In February, Massachusetts Governor Deval Patrick issued two Executive Orders that banned discrimination against transgender employees in state government.  A few years ago, a transgender job applicant at the Library of Congress won a federal discrimination lawsuit when her job offer was rescinded after the Library discovered she was transgender.  Recently, Congressman Barney Frank (D-Mass) re-introduced the Employment Non-Discrimination Act that would provide protection to employees and job applicants against discrimination on the basis of sexual preference and gender identity.  This is the ninth time that Frank has introduced this bill, so its introduction is not significant in itself.  This time around, however, the ACLU and prominent business associations have expressed support for the bill.

Jury returns verdict in favor of fired executive claiming age discrimination

A federal jury recently returned a verdict in favor of a former executive from a national hotel chain who claimed that his termination was in retaliation for his complaint of age discrimination.  According to Massachusetts Lawyers Weekly, the plaintiff was fired in January 2009, after which time he was unable to find employment.  The plaintiff claimed that he was fired because of his age.  The jury returned a verdict for the defense on the discrimination claim, but ruled that the hotel chain retaliated against the plaintiff for bringing his age discrimination claim.  The plaintiff received damages of $500,000 in front pay, $750,000 in back pay, and $1 million in emotional distress damages.  In addition, the Court doubled the damages award under Massachusetts General Law Chapter 151B, Section 9, for a total award of $4.5 million.

This case provides a stark reminder that the provisions of Massachusetts employment and discrimination laws apply to highly-paid executives as much as they do to hourly wage earners.  In fact, the amount of damages awarded in this case exceeds the total award in many employment class-actions.