There are a few words in the English language that most of us won’t utter in any venue, let alone at work. They are so highly charged and potentially offensive that any use of them, in almost any context, utterly fails any version of risk/reward analysis.

But not everyone, of course, understands this rather obvious point, and those who don’t have a penchant for landing their employers in extremely hot legal waters. Take, for example, the supervisor who calls his subordinate a “fucking nigger.” Though racially offensive language uttered only once would not  normally constitute illegal discrimination, a word like “nigger” is different, as the state’s Court of Appeals recently concluded. “That term inflicts such cruel injury by its very utterance. It is degrading, it is humiliating, and it is freighted with a long and shameful history of humiliation, the ugly effects of whcih continue to haunt us all. The words have no legitimate place in the working environment — indeed, they have no legitimate place — and there is no conceivable justification for their use by a workplace supervisor,” the court wrote ealier this month.

The court suggested that, although it may be among the most offensive words in the English language, “nigger” is not be the only one that, once uttered, might expose employers to substantial liability. Similar words are readily identifiable by all. Employers should make certain that all employees, particularly their supervisors, are aware that none of them may be used in the workplace under penalty of severe discipline. These and related race and sex issues should be part of the thorough anti-discrmination and anti-sexual harassment training programs that all employers are wise to implement.

In an unusual case before the Massachusetts Commission Against Discrimination, harassment by one white male employee of another has been found to violate state law. The Commission concluded that the harassment, which focused on the victim’s interracial relationship and included the use of terms such as “porch monkey lover” and others, targeted the victim because of his association with a black woman. The Commission found the conduct frequent and pervasive enough to justify an award of $60,000 in damages and fines.

The uniqueness of the facts of this case notwithstanding, its lessons for other businesses remain debatable. The Respondent in Grzych v. Amercian Reclamation Corp., et. al. was not represented by an attorney. He opted to try the case at the MCAD himself and apparently offered no testimony, a decision that may have made it easier for the MCAD to decide against him.  Whatever the respondent’s reasons for not retaining counsel, he likely regrets the decision now. The fact is that discrimination law is far too complex and the workings of the MCAD are far too idiosyncratic to be handled without an experienced employment lawyer.

Refusing to hire job applicants with criminal records just got a little trickier. As of November 2010, most employers are no longer permitted to ask criminal history questions on written job applications. The practice of reviewing such information and screening out former criminals from interviews has thus been rendered illegal. Because it is unclear whether the statutory amendments to the Criminal Offender Record Information law (CORI) also limit criminal history inquiries at the interview stage, it makes sense to avoid such questions, at least for the time being. Employers can still obtain criminal histories later on and reject applicants based on those histories.

The law’s changes will likely add costs to employers who prefer not to hire convicted felons or other persons with criminal backgrounds. In addition to forcing them to interview candidates blindly, as it were, the CORI law amendments restrict available information to felony records open during the prior 10 years and misdemeanors in the prior 5. When such records are obtained from the CORI system, employers now must show them to prospective employees before an adverse decision is made. Employees can hold employers to this obligation via new rights to obtain their own list of employers who made inquiries about them.

Employers who regularly obtain CORI records must also create policies regarding them. The policies must provide for notifying applicants, giving a copy of CORI records to subjects, and instructing subjects on how to correct any errors in those records. Policies should also provide for the destruction of CORI records within 10 years.

The Massachusetts Commission Against Discrimination (MCAD) has been dealt a blow by the state’s Supreme Judicial Court (SJC). In an August 2010 decision, the Court held that the MCAD’s written guidelines on the Massachusetts Maternity Leave Act are not binding. The ruling calls into question a slew of MCAD ’rules’ that previously were believed to carry the force of law, such as one granting maternity leave rights to men under state law.

The case involved a woman who was granted maternity leave beyond the eight weeks provided by Mass. Gen. L. ch. 149, 105D (Massachusetts Maternity Leave Act) and was not expressly informed by her employer that the statute’s job protection rights would not protect her during the extended leave period. She sued, claiming that written MCAD guidance on maternity leave required that such notice be given, and won a jury verdict of about $2.3 million. The SJC found that the MCAD’s guidance did not carry the force of law. Because neither the Maternity Leave Act nor any properly created MCAD regulation required employers to notify employees about benefits that might apply after eight weeks of leave were taken, the Act was not violated and the jury verdict was invalid. Because, however, no timely appeal of the verdict was filed, it was not overturned; the case  focused on whether counsel negligently failed to file a timely appeal. [Read more...]

The Massachusetts Commission Against Discrimination has made clear yet again the risks employers face when they tolerate even seemingly innocent forms of workplace discrimination. This time, it awarded nearly $400,000 in back wages and emotional damages to a woman who was the brunt of jokes about her age and disability.

 The illegal conduct apparently began with the company’s owner, who referred to the victim as the “old cripple.” The employee had experienced remarks like that at a prior job in which she’d worked with the owner, so it appears the comments themselves were not considered offensive. Still, the MCAD found, the owner opened the door to other, more insidious forms of discrimination. An office manager referred to the victim as an “old bag,” and younger women in the office delighted in embarrassing her by discussing their sexual escapades and viewing pornography at work. Eventually, those younger women decided they did not want to work with the victim, whom they considered too old and prudish, and she suffered from hostility that included effort to persuade her to retire.

 The lesson here is one all Massachusetts employers should have long ago learned: when it comes to age, gender, race, etc., not even jokes at work are okay, even if those participating seem to do so willingly. No such conduct should be tolerated, and managers must be trained to understand basic discrimination issues, identify potentially improper conduct, and address issues effectively.