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.

Firefighter files civil rights suit after being sued for discrimination

An Attleboro firefighter filed a 33-page federal complaint this month alleging a conspiracy by his co-workers to falsely accuse him of discrimination. The firefighter, Dennis Perkins, had been the subject of a complaint at the Massachusetts Commission Against Discrimination brought by a black firefighter, Vincent Bailey, alleging racial discrimination. That complaint settled last year when the City of Attleboro paid Bailey $25,000 after the MCAD issued a finding of probable cause on Bailey's complaint of discrimination. The new federal complaint by Perkins names several members of the Fire Department as defendants, including former Chief Ronald Churchill, and alleges that these defendants conspired together to retaliate against and defame Perkins because he refused to support Churchill's bid to continue on as Fire Chief past his statutory retirement date. 

Attorney General's Office settles housing discrimination cases in Wareham

Two landlords in Wareham recently settled claims of housing discrimination with the Attorney General's Office after they published advertisements for apartments that discouraged families with young children from applying, according to Wareham Week, an online news publication. The landlords allegedly instructed families with young children not to apply for the units because of the presence of lead paint. The landlords were reportedly required to delead their apartments, pay a $3,000 penalty to the state, and attend "fair housing" training.

Massachusetts has extraordinarily strict houding discrimination laws. The law goes beyond refusal to rent or sell. A property owner may not discourage a person from applying to rent or buy property based on such person's race, religion, gender, and certain other statuses, including family status. This means that a property owner cannot advertise an available property in a way that discourages people with children from applying or inquiring about the unit. Since many units in the state have lead paint, and a property owner is not permitted to knowingly rent or sell a property with lead paint to tenants with children under six, this means that property owners often try to discourage families with children under six from applying for units with lead paint.

Is being overweight a disability?

The Montana Supreme Court says maybe. in a 4-3 decision, the state's highest court said that obesity without a physiological cause may constitute a physical impairment under state discrimination law. The decision is significant outside of Montana because the high court issued the opinion in response to a question reported by a federal court concerning whether obesity may, by itself, qualify as a disability under the American With Disabilities Act.

The significance of the decision is that obesity has previously been considered a disability only when caused by a physiological disorder or condition. The decision may cause people who are overweight without any underlying disorder or condition to claim they are disabled if they are denied employment opportunities due to being overweight.

Transgender discrimination bill takes effect

On Sunday, Massachusetts became the 16th state in the country to make discrimination on the basis of transgender status illegal in employment, housing, education and lending. The bill was signed into law last January by Governor Deval Patrick, but did not take effect until the new fiscal year which began July 1.

Is hiring "perky" women to increase business illegal?

A local coffee shop is reportedly under investigation by the federal Equal Employment Opportunity Commission for restricting its hiring to young, attractive women. The EEOC has acknowledged that it is investigating Marylou's Coffee, a chain of coffee shops on the South Shore. The coffee shop denies that it discriminates in hiring, but it does not appear to be disputed that the chain employs primarily young, pretty women. The chain's loyal customers and the Boston Herald have jumped to the defense of Marylou's, arguing that private companies should be allowed to hire whomever it wants if it helps increase business. For instance, here's what Herald columnist Michael Graham has to say:


"If you own a business, you hire people who you think will help you make the most money, period. And at Marylou’s, the business model appears to be that, if given the choice of buying coffee from a chubby, grumpy middle-aged guy vs. a cute, bubbly 20-something girl, more people will choose the latter."

The problem with Graham's argument becomes clear when you replace "cute, bubbly 20-something girl" with "white man." It is never legal for a business to discriminate because of the preference of its clientele. If that were allowed, then Jim Crow laws might still be remaining today. I'm sure many business owners in the old South, for instance, might have been fine employing black people if doing so would not have driven off business.

That being said, unattractiveness is not a protected class. If Marylou's only discriminates against people based on looks, that might not violate the law. But as attorney David Belfort told the Herald, "If you're serving coffee, I would think men could serve coffee adequately."

EEOC says federal law protects transgender status

In a precedent-setting ruling, the EEOC last week ruled unanimously that federal gender discrimination law apply to discrimination against transgender people. The ruling held that discrimination against a person based on their gender status is, in fact, sex (i.e. gender) discrimination and prohibited by Title VII of the Civil Rights of 1964. Several federal courts have previously ruled that discrimination against transgender persons amounts to gender discrimination, but the EEOC ruling is particularly significant because the federal agency prosecutes and enforces discrimination laws and thus sets a national standard for their interpretation.

In Massachusetts, the state's discrimination law was recently amended to expressly cover transgender status. The amendment goes into effect July 1, 2012.

Colleges facing increased litigation from both the accused and accusers in sexual assault cases

The Boston Globe published an interesting article on Saturday about the competing demands on institutes of higher education caused by sex-related crimes. On the one hand, institutions face liability from female victims when their policies do not sufficiently protect students from such attacks. On the other hand, accused male students are now beginning to file claims of gender discrimination based on the theory that such policies are biased against male students. This isn't an employment discrimination issue, of course, but it's indicative of the difficulties that decision-makers and employers face in balancing the rights of employees who allege harassment and discrimination versus the rights of the accused.

Iowa judge rejects implicit bias lawsuit

Back in February, I posted about a class-action discrimination lawsuit in Iowa against the state government based on the novel theory of "implicit bias." The claim asserted that the class members could recover for unconscious discrimination in the government's hiring practice and attempted to prove that claim through statistics alone. A state court judge has now rejected that theory and dismissed the case. The judge ruled that the Plaintiffs did not prove that "subjective, discretionary decision-making" caused any discriminatory hiring or promotional decisions. The judge also wrote that there was no legal precedent for the Plaintiffs' implicit bias theory.

Indefinite leave not a reasonable accommodation, federal court rules

Employers are not required to allow indefinite leaves of absence as an accommodation to disabled employees, according to a recent decision from the District of Massachusetts federal court. Whether disability discrimination laws, like the American with Disabilities Act and Massachusetts General Laws Chapter 151B, mandate leaves of absence as an accommodation has been hotly contested. Both laws require that an employer provider a "reasonable accommodation" to disabled employees, provided that the employee can perform the essential job functions with (or without) such an accommodation. What the federal court ruled is that an indefinite leave is not reasonable, and therefore not required. The ruling is supported by a previous ruling by the Massachusetts Supreme Judicial Court. However, as the federal court recognized, a limited leave of absence, and extensions on an existing leave of absence, may be reasonable accommodations under a specific factual situation where there is a definite end date to the leave.

Housing discrimination claims settled

A Cambridge real estate company and a Haverhill housing management firm recently reached separate settlements with the state for alleged violations of the state's anti-discrimination and fair housing laws.

The claim brought by the Office of the Attorney General Martha Coakley against Judson House Apartments in Haverhill alleged that it unfairly discriminated against a disabled prospective tenant when the firm refused to believe the applicant had a disability unless she was in a wheelchair.  The settlement retroactively restores the prospective tenant to the priority waiting list, which she should have been placed on, and requires employees of Judson House Apartments to complete fair housing training. 

Skyline Properties in Cambridge settled a claim that it discouraged a family with children under the age of six to rent an apartment because of the requirement to remove lead. The settlement awarded the family $5,000 and ordered Skyline to complete training and provide information to the Attorney General about future claims of discrimination.

Wisconsin bill limits recovery for victims of discrimination

The Wisconsin legislature has passed a bill that will eliminate the right of victims of discrimination to receive punitive damages or damages for emotional distress. Once the bill is passed into law, a discrimination claim will only allow the recovery of lost wages and attorneys' fees.

This bill will have a devastating effect on the right of workers to be free from discrimination. If an employee can only recover lost wages, then an employee who is discriminated at work – for instance, through sexual harassment or pervasive racial animosity – but has not been fired has no recourse in the law. Such an employee has not lost any wages. I suppose the theory of constructive discharge is still available, but that would force the employee to leave his or her job and hope that the court finds that a constructive discharge occurred.

Is discrimination based on an unconscious bias illegal? New lawsuit says yes.

In a case pending in Iowa state court, over 6,000 black state residents allege that they were denied employment opportunities by the state government due to an implicit bias in favor of white residents. The case is highly unusual because it does not claim any direct discrimination, indirect discrimination, or that a facially-neutral employment practice has resulted in a discriminatory impact on minorities.  The case, rather, theorizes that the state government can be liable for discrimination based on unconscious bias alone, because such a bias disadvantaged blacks in their opportunities for jobs, promotions, and general advancement. A decision on the state's motion to dismiss is expected in a matter of weeks.

This writer finds this unconscious bias theory both compelling and problematic. It is absolutely true that unconscious prejudices play a role in personnel decisions. Everyone, no matter how "enlightened" or progressive, has biases toward some people or group, both positive and negative. In a state that is 91% white such as Iowa, it is entirely plausible, if not expected, that unconscious bias would adversely effect black residents seeking employment with the government.

But does that mean the group of people against whom such a bias exists should have a cause of action? There are certainly many unconscious biases that infect employment decisions. Creating liability here could compel employers to consciously think about race in order to make sure that they are not unconsciously thinking about race.

Better than penalizing the entire state government for unconscious bias, the law should allow affirmative action programs to rectify such a bias. Unfortunately, the Supreme Court has taken that option away.

Is terminating an employee who asks to pump breast milk at work gender discrimination? Federal court says no.

A federal judge in Texas has ruled that a company did not discriminate against a new mother who claims she was fired after asking to pump breast milk at work. In the decision issued February 9, 2012, the judge reasoned that “firing someone because of lactation or breast-pumping is not sex discrimination.” This question has never been addressed by an appeals court, according to the Washington Post.

This writer wonders how the prohibition against gender discrimination does not cover an activity as intrinsically - indeed, biologically - female as breast-feeding. I suspect that if men were the ones who breast-fed newborns, employers would keep a ready supply of breast pumps like they do staplers. 

Federal appeals court: mixed motive analysis still OK in state age discrimination cases

The First Circuit Court of Appeals found recently that plaintiffs alleging age discrimination under state law do not need to satisfy the more onerous burden of proof established by the Supreme Court for federal age discrimination cases. In Diaz v. Jiten Hotel Management, the Court of Appeals affirmed a jury verdict in favor of a hotel worker on her state law age discrimination claim for which the district court had allowed a "mixed-motive" jury instruction. Proving discrimination based on a "mixed-motive" analysis requires showing that an unlawful consideration – here, age – was a motivating factor in the adverse employment decision. If the plaintiff establishes this, then the defendant must prove that it would have reached the same decision absent the unlawful consideration. The Supreme Court in Gross v. FBL Fin. Services has ruled that a mixed-motive analysis is not permitted under the federal Age Discrimination in Employment Act, meaning that a plaintiff under the federal statute must prove that age was the "but for" cause of the employment action. Under Chapter 151B, the state anti-discrimination statute that covers age discrimination, a mixed-motive analysis is still permitted. 

Supreme Court: Freedom of religion requires an exception to prohibition against employment discrimination

The Supreme Court weighed in this month on the conflict between the right to freedom of religion, and the corresponding right against government interference with such freedom, versus the right to freedom from employment discrimination.  The Court came down squarely on the side of religion.   In Hosanna-Tabor Church v. Equal Employment Opportunity Commission, the Supreme Court held that the First Amendment's right to freedom of religion implicitly includes  a “ministerial exception” to employment discrimination laws.  The Court explained that "churches and other religious groups must be free to choose and dismiss their leaders without government interference." 


The case was brought by Cheryl Perich, who was a former teacher in Redford, Michigan at a private school operated by the Lutheran Church-Missouri Synod. Ms. Perich was fired shortly after filing an employment discrimination claim based on a disability, narcolepsy. The school asserted she was fired for violating the religious rules of the Church by filing litigation rather than trying to resolve her dispute within the church. This would have constituted unlawful retaliation absent the religious freedom question, and the school did not contend otherwise. 

The Court ruled against Ms. Perich, ruling that "the Free Exercise Clause prevents [the government] from interfering with the freedom of religious groups to select their own." An important fact in this case was that Mr. Perich was considered a "called" teacher as opposed to a "lay" teacher, meaning that her position was considered affiliated with the religious element of the school rather than only the secular element.  

The ruling should not be very surprising, considering that most courts had recognized a ministerial exception to employment discrimination. Moreover, the Court's ruling was unanimous, signaling that the constitutional interpretation underlying the decision is accepted generally by all nine justices. 

SJC: health care law discriminated against immigrants

The Massachusetts Supreme Judicial Court recently ruled that the state violated the constitutional rights of legal immigrants by denying them access to a state-subsidized health care program. The health care program, Commonwealth Care, was created in 2006 by former governor Mitt Romney as part of his health care reform law. In 2009, the state legislature voted to block immigrants from the program to decrease costs. Governor Patrick responded to the cut by creating the Commonwealth Care Bridge for 20,000 of the immigrants excluded from the previous program. However, this substitute program drastically scaled down the benefits available to participants and increased costs. Health Law Advocates sued on behalf of the immigrants and praised the ruling. Justice Robert Cordy wrote for the court and stated, “The discrimination against legal immigrants ... violates their rights to equal protection under the Massachusetts Constitution" and that “fiscal considerations alone cannot justify a State’s invidious discrimination against aliens."