EEOC Rules That Title VII Protects Sexual Orientation

 On July 15, 2015, the Equal Employment Opportunity Commission ("EEOC") significantly advanced the rights and protections of LGBT working persons in the United States by ruling that Title VII of the Civil Rights Act of 1964 bars discrimination based on sexual orientation.

The decision came in response to a complaint filed by a Florida-based air traffic control specialist against the Transportation Security Administration. In its decision, the EEOC explained that “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex." However, as the Washington Post explained, the EEOC's decision conflicts with rulings of most federal courts, which have found that Title VII does not protect against sexual orientation discrimination. The EEOC found those rulings to be "dated." The EEOC's decision will apply to all federal employees’ claims filed at the EEOC, although federal courts often given deference to EEOC decisions although such decisions are not binding.

The Massachusetts employment non-discrimination statute, Chapter 151B, already protects against discrimination on the basis of sexual orientation. Still, the EEOC's decision will have far-reaching implications throughout other parts of the country and in state and federal courts in Massachusetts when addressing claims under Title VII.

MCAD finds Boston College discriminated against Chemistry professor

The Massachusetts Commission Against Discrimination ("MCAD") ordered Boston College to pay $125,000 in emotional distress damages and at least 12 years of backpay after finding that the College retaliated against a tenured associate professor after the professor complained about hostile treatment by fellow faculty members related to his mental illness. Hearing Officer Betty Waxman found that after Professor William Armstrong returned from a  leave of absence for due to mental health issues,  the College and Chemistry Department members took adverse actions by "systematically isolating him from the Chemistry Department." Armstrong and the College had an agreement designed to integrate him back into the College and Department after his leave, and Waxman found that his efforts to implement this agreement constituted protected activity since the agreement itself was an accommodation to his disability. When Armstrong complained to the Faculty Grievance Committee, which Waxman found to be protected activity, the reactions of administrative and faculty members turned further hostile. As Waxman explained, “[T]he Chemistry Department, in effect, punished Complainant for seeking to enforce the terms of the reintegration agreements which constituted an accommodation to his disability. Such action, in my opinion, constitutes retaliation."

 Cecilie Gromada, an incoming First-Year student at Boston University Law School and part-time paralegal, contributed to this report.

Class action alleges Boston Scientific discriminated agains female sales executives

A class action lawsuit filed against Boston Scientific alleges that the company systematically discriminated against female executive by assigning them to less profitable geographic areas and denying equal compensation. The lawsuit seeks $50 million in damages.

According to the plaintiffs' attorneys, the company "maintains an unfair system of gender-stratified compensation" through its geographic assignments. The attorneys claim that "in effect, [Boston Scientific] bars female employees from better and higher-paying positions that have traditionally been held by male employees."

In a statement, Boston Scientific said: "We believe this case lacks merit and is led by a law firm known for filing many similar complaints against companies." The plaintiffs are represented by Sanford Heisler Kimpel, LLP, which has filed similar class action lawsuits against other large companies.

Federal court rules that CBA does not block employee from pursuing discrimination claim

A broadly-worded arbitration clause in a collective bargaining agreement did not preclude an employee from bringing an employment discrimination claim against her employer, a federal judge has ruled. The employee did not exhaust her grievance procedures, as the CBA expressly required, before filing her claim of retaliation and failure to promote. The employer argued that the CBA required the employee to proceed through the grievance and arbitration process before pursuing her claim in court or, in the alternative, that her claim was preempted by the federal Labor Management Relations Act ("LMRA"), which seeks to establish uniform interpretation of collective bargaining agreements. According to the Massachusetts Lawyers Weekly, newly-appointed United States District Court Judge Mark Mastrioanni ruled against the employer on both arguments. Judge Mastrioanni found that the CBA did not contain a “clear and unmistakable” waiver of the plaintiff’s rights under Chapter 151B, the state's employment non-discrimination statute. On the preemption argument, Judge Mastrioanni found that the employee's claim only required consultation with the CBA, not interpretation of the CBA. Therefore, the LMRA did not preempt the employee's claim.

Associatonal discrimination claim allowed to proceed

Federal Judge Nathaniel Gorton allowed a claim of associational discrimination to proceed based on an allegation that the plaintiff's employer discrimination against the plaintiff due to his wife's disability. Judge Gorton ruled that such a claim is permitted under the Massachusetts employment non-discrimination statute and the American with Disabilities Act. However, Judge Gorton also ruled that a claim by the Plaintiff that he was denied an accommodation based on his wife's disability would not be viable.

Denial of ADA claim affirmed based on employee's failure to negotiate

In a 2-1 decision, the First Circuit Court of Appeals affirmed the decision of a federal judge in Maine to dismiss a claim of disability discrimination brought by a diabetic department store employee because the employee quit in the middle of negotiating a reasonable accommodation. The decision sparked a strong dissent by Judge William Kayatta, who asserted that the decision demanded "too much resilience and persistence" by a disabled employee and improperly took away the fact-finding responsibility from the jury. For an understanding of the decision and the basis of the dissent, a brief description of the facts is required.

The employee, Pamela Manning,  was a Type I diabetic employed at Kohl's department store. To treat her diabetics and prevent complications, she needed to self-administer five insulin injections each day timed with her food intake. Prior to requesting her accommodation, she had been required to work an unpredictable schedule as other employees were. This required some night shifts, some day shifts, and sometimes required her to close the store the night before working an early morning shift -- a so-called "swing shift." She obtained a note from her doctor stating that the unpredictable schedule made it difficult for her to monitor her blood sugar and that a predictable schedule would allow her to smooth her blood sugar levels and prevent serious complications. Manning brought the note to her supervisor, who spoke with human resources and was then told that the company could not promise a predictable work schedule, but it could promise no more "swing shifts." The supervisor then met with Manning and told her that the store could not provide her requested accommodation because it would need to offer the same flexibility to all employees. Manning then left the meeting and said she had no choice but to quit. Her supervisor chased after her and asked her not to quite and to keep talking, but did not offer any specific accommodation.

The Court affirmed the decision of the District of Maine, which granted summary judgment to Kohl's on the failure to accommodate claim and a related claim of constructive discharge. The Court, in an opinion written by Judge Juan Torruella, found that Manning was at fault for quitting in the middle of the negotiation regarding her requested accommodation, and that no reasonable jury could find that Kohl's failed to engage in a good faith interactive process to determine a reasonable accommodation for Manning, as required by the American with Disabilities Act. (Perhaps surprisingly, Judge O. Rogeriee Thompson, an Obama appointee, joined the Reagan appointee's decision). Judge Kayatta's dissent argued that the evidence could easily allow a jury to conclude that Kohl's negotiated in bad faith, as evidenced by its failure to offer any accommodation at all even though its human resources department had authorized the supervisor to offer Manning the accommodation of no "swing shifts".

In unusually strong terms, Kayatta closed his dissent by stating: "As far as I can tell, this is the first time that any circuit court has held that an employer can reject an accommodation request backed up by a doctor's note, refuse to offer an accommodation that it has determined in can make, falsely claim that any accommodation must be offered to all workers whether disabled or not, and then declare the employee's ADA rights forfeited when she gives up." If Judge Kayatta is correct, then the Manning decision is a troubling development in the area of ADA case law. The only saving grace is that the majority decision expressly stated that its holding was limited to the unique facts of the case, although such a sentiment is often expressed in controversial decisions. Only future courts can determine whether the limitation holds true.

"Get naked" comment not enough for sexual 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.)

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.

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.

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.  

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. 

Federal court denies claim of associational discrimination

Earlier this year, the Massachusetts Supreme Judicial Court ruled in Flagg v. Alimed, Inc. that 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.  

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.

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. 

Associational disability discrimination ruling broadens scope of Chapter 151B

In July, the Massachusetts Supreme Judicial Court issued a landmark ruling in which it decided that an employee may sue his employer for discrimination on the basis of his wife's disability. The decision in Flagg v. Alimed is the first decision recognizing a claim of associational discrimination based on disability – where the employee's claim is based on his association with a disabled person.  These claims have been recognized for association with other protected classes – such as race or gender – but never before with disability. The ruling, as commentators have said, significantly broadens the scope of Chapter 151B, the state's anti-discrimination statute. In fact, although Justice Ralph Gants issued a concurring opinion in which he asserted that the decision was limited to the situation where an employer does not want to bear the higher medical costs for an employee's family member, the full court's opinion does not include such a limitation, and appears to significantly expand the scope of the statute's protection.

Tufts health plan settles discrimination suit

Tufts Health Plan has agreed to pay 12 former employees over $370,000 after the United States Department of Justice found that it unlawfully discriminated against the employees by holding them to stricter standards than other employees. The 12 employees were hired as a result of a minority hiring plan that Tufts initiated after the Department of Justice found in 2009 that it was discriminating in its hiring. Tufts reportedly retaliated against these employees by segregating them from other employees during training and causing them not to be placed in permanent customer service positions.

The case is a reminder that employers must be careful not to treat employees any differently when they initiate or participate in a case involving discrininaton at work. Similarly, employees who have filed a claim of discrimination or participated - such as by testifying - in another employee's discrimination case should look out for any negative treatment at work that occurs after the participation. It is equally unlawful to retaliate against an employee for such participation as it is to discriminate against an employee because of his or her protected status.

Supreme Court rules for employers in two significant employment cases.

Yesterday, the Supreme Court issued sharply-divided opinions in two employment discrimination cases, both times coming out 5 to 4 in favor of the employer. In one case, University of Texas Southwestern Medical Center v. Nassar, the Court ruled that employees seeking to prove unlawful retaliation under federal discrimination law must prove that the protected conduct was the "but for" cause of the employment decision, a more employer-friendly standard than courts had been applying. And in Vance v. Ball State University, the Court narrowed the definition of a "supervisor" for purposes of evaluating a claim of sexual harassment against an employer, holding that a supervisor for purposes of sexual harassment liability must have actual authority to make changes to the employee's status, rather than merely direct the employee's work.

More to come on these decisions. 

Does release of football player due to diabetes equal discrimination?

Last week, news came out that the New England Patriots released defensive lineman Kyle Love, who had recently been diagnosed with Type 2 diabetes. There is no indication that the release was related to the diagnoses other than the timing, and this writer is not alleging that the release was due to Love's diabetes. Still, it is an interesting question whether employment discrimination laws are implicated when a sports team make personnel decisions based on a diabetes diagnoses.

Certainly, diabetes is considered a "disability" under federal and Massachusetts discrimination laws. An employer normally must offer reasonable accommodations to an employee who has a disability, such as diabetes, if doing so would allow the employee to perform the essential duties and functions of the position. For most employers, diabetes is easy to accommodate as the employee simply needs to be able to check his or her blood sugar periodically, administer insulin shots if necessary, and have access to food.

For a football team, however, it is not hard to see how such an accommodation could create significant disadvantages. A coach needs to know that a player can enter a game at a moment's notice, and remain in the game for long periods of time. (New England's coach certainly knows the importance of the latter, as its offense regularly plays a hurry-up style that does not allow for the defense to substitute its players.)

Supreme Court to hear arguments this week that could result in significant limitations on federal retaliation claims

On Wednesday, the Supreme Court is scheduled to hear arguments in University of Texas Southwestern Medical Center v. Nassar, No. 12-484, a case that could result in significant limitations on the ability of employees to prove retaliation under federal discrimination law. The case turns on the interpretation of amendments to Title VII of the Civil Rights of 1964 enacted in 1991 that established the ability of employees to prove discrimination even if the employer had a "mixed-motive" in its adverse action. Under this framework, once an employee proves that discrimination was a motivating factor in an adverse employment action, the burden shifts to the employer to show that it would have taken the same action even without the unlawful factor (i.e. that the unlawful factor was not the "but-for" cause of its decision). If the employer meets that burden, the employee can still receive a judgment if he or she shows that the discrimination was one of the motivating factors of the adverse decision. This is called a mixed-motives case. In 1989, the Supreme Court had decided that a mixed-motives case was available under Title VII.  The 1991 amendments codified this decision, but limited the available recovery for employees in such cases to his or her attorneys' fees.


In 2008, the Supreme Court decided that a mixed-motives case is not available under the Age Discrimination in Employment Act in Gross v. FBL Financial Services Inc, and that the burden of proof never shifts to the employer. This means that the employee must prove that the employer's discrimination was the "but-for" cause of the adverse action. The University of Texas Southwestern Medical Centers asserts that the Gross decision also applies to a retaliation claim under Title VII, because the 1991 amendments did not expressly refer to retaliation claims. The employee, Naiel Nassert, argues that even if this argument is true, the result would be to apply Title VII as it existed under the Supreme Court's 1989 decision, when the law did not allow an employee to win a judgment in a mixed-motives case but it still shifted the burden to the employer (once the employee established discrimination as a motivating factor) to prove that it would have been the same decision even without its discrimination.