Massachusetts Law Continues to Protect against Gender Identity Discrimination Despite Federal Pronouncment

When Attorney General Jeff Sessions recently announced that his Justice Department rejects the idea that transgender people are protected under Title VII, the federal workplace discrimination statute, it received quick condemnation from a variety of sources. Significant as the proclamation may be at the federal level, however, Massachusetts residents need not be concerned, or pleased, as the case may be. Under Mass. Gen. L. ch. 151B, transgender and gay people remain well protected against employment discrimination based on their gender identities. They can continue to file complaints based on it at both the MCAD and in state courts.

The federal action comes at a time when Mr. Sessions’ justice department has been hostile to Title VII protections of the broader LGBT community. His Justice Department has argued that civil rights laws do not protect against sexual orientation discrimination. Under Title VII, which was passed by Congress in 1964 as part of the Civil Right Act, discrimination based on “sex, ” among other things, is illegal. The Obama administration and others, including the Equal Employment Opportunity Commission (EEOC), have interpreted “sex” as covering individuals based on gender identity and sexual orientation.

Under the Massachusetts anti-discrimination statute, it’s unlawful for an employer, “because of the race, color, religious creed, national origin, sex, gender identity, sexual orientation, which shall not include persons whose sexual orientation involves minor children as the sex object, genetic information, ancestry or status as a veteran of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.”

Employees may be Free to Speak their Minds, but Employers are Free to React

Free speech is not always free. That seemingly obvious point was apparently lost on Google employee James Damore, a man making headlines recently after he was fired for writing a memo that opined women are unsuited to work as engineers. Google’s efforts to promote them, he wrote, were unfair and divisive.

So, too, was Mr. Damore’s opinion. Not surprisingly, it rankled many inside Google, which reacted by terminating Mr. Damore’s employment on August 7. Mr. Damore, supported by the likes of Juilian Assange and other political conservatives, responded by threatening legal action. “As far as I know,” he reportedly wrote, “I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does.”

There’s little question that Mr. Damore is correct. As far as he knows, he may say whatever he likes to whomever he chooses. What he doesn’t seem to know, however, is that those around him have rights, too. People who hear his views have a right to be offended. They may disassociate themselves from him if they choose. Google and other private employers have the right to decide who works for them. They are not restricted by free speech guarantees in the First Amendment to the U.S. Constitution. Like Mr. Damore, private employers have their own form of free speech rights, and it includes the right to say “you’re fired” to workers who, in their judgment, are disruptive, potentially damaging to their business, or in any other way unsuitable to remain employees.

It’s unclear whether Mr. Damore will actually file his lawsuit or how, if he does, what his legal theory might be. But he fears not, no doubt, as he garners support and job offers from those who agree with his missives about women and work. He’s now a hero of sorts at the likes of Breitbart News and reportedly has a job offer at Wikileaks. Good for Mr. Damore, if this is what he intended. If not, he has learned what he should have known all along. He is free to speak, and the world around him can react to what he says.

Reasonable Accommodation Laws Apply to Use of Medical Marijuana in Massachusetts

If there was any doubt that employers need to be careful about disciplining employees who use medical marijuana, it was ended today by the Supreme Judicial Court (SJC). It held that employees who are prescribed medical marijuana to treat their health conditions are protected under Massachusetts handicap law. Both employers and managers involved in decisions to punish workers for off-site medical marijuana use can be sued for damages caused by their conduct, the SJC held.

The case’s significance is patent. Under both Massachusetts and federal law, handicapped employees are protected against discrimination. If they can perform their jobs with or without reasonable accommodation, employers cannot take adverse action against them due to their disabilities. Massachusetts places a heavy burden on employers to consider accommodations their employees may need to continue working and to implement them if reasonable. Employers must both engage in an interactive discussion to evaluate potential accommodations and implement any that may exist unless they prove that doing so would pose an undue hardship. Proving undue hardship is quite difficult.

But state and federal laws diverge when it comes to marijuana use. In Massachusetts, such use is legal when medically prescribed. The drug can be sold in the Commonwealth, was long ago decriminalized, and is now wholly legal for personal use. At the federal level, none of this is true. Despite broad agreement among states that marijuana has valid medical uses that should be permitted under proper supervision, U.S. law continues to provide otherwise. It was on this basis that the employer in Barbuto v. Advantage Sales and Marketing, LLC believed it could summarily terminate its employee for a positive marijuana test. [Read more…]

Court Holds Individual Supervisor Liable under Family and Medical Leave Act

In a case of first impression in Massachusetts, a federal judge ruled that individual supervisors can be personally liable to employees for violations of the Family and Medical Leave Act.

The employee involved claimed he was treated differently at work and retaliated against in part because he requested medical leave. He sued both his employer and his immediate supervisor despite the fact that the FMLA requires only ‘employers’ to provide certain leave rights to workers. The supervisor’s motion to dismiss on this ground – he is not, he argued, an employer, and lawsuits against individuals are not authorized by the FMLA – was denied by the court, which cited to higher court interpretation of the Fair Labor Standards Act, a federal law whose definition of the term “employer” is almost identical to that in the FMLA.

The decision serves as a warning to managers and others to pay close attention to their companies’ conduct in cases that might implicate the FMLA. The law applies to employers of greater than 50 employees, and to workers who work at least 1250 hours in a prior year. It permits qualified employees to take unpaid leaves of absence for their own health reasons and those of certain close relatives. Massachusetts employers should also note that the Commonwealth provides similar protections to employees of smaller companies.

MCAD Decision: Employer Duty to Reasonably Accommodate Handicapped Employees is Extremely Broad

In the usual case, employers that receive reasonable accommodation requests from their employees try to help. They may adjust a work schedule, grant a leave of absence, or even modify job duties. Too often, however, those same employers fail to grasp the broad scope of their ongoing duties to accommodate. They reach what they perceive as an end point based on their own interpretations of what’s reasonable, then refuse to help workers further. Decisions like that have a high potential to lead them into hot legal waters.

A recent Massachusetts Commission Against Discrimination (MCAD) decision illustrates this point. The employer involved believed it bent over backwards, as it were, to help its employee. It gave her 12 weeks of FMLA leave, 23 weeks of part-time work, job relocation, and adjustments to avoid heavy lifting. Despite the seeming generosity of these accommodations — a fact expressly noted by the MCAD in its decision — the employer was tripped up when it refused to extend part-time work for three additional weeks so its employee could complete physical therapy and, hopefully, return to full-time work. Because the employer could not demonstrate that the continued leave would impose an undue hardship, it violated the Massachusetts anti-discrimination statute. It was ordered to pay damages to its former employee despite the fact that she did not recover sufficiently to work full-time as hoped.

The lesson for employers here is patent. Reasonable accommodation is an ongoing and fungible process that requires regular reassessment of workplace requirements and employee needs. Granting a work adjustment is not alone enough to satisfy the law, which requires an interactive engagement with employees in search of accommodations that are reasonable and appropriate under given circumstances. Employers who fail to understand that process as they seek to themselves decide what’s reasonable and what is not run the risk of lawsuits. In most cases, those suits can be avoided by careful consideration of what the law requires.

Marijuana Use Rights Arise in Employment Situations

With the enactment of two marijuana laws in Massachusetts during the past few years, there’s never been much doubt that use of it would someday become a workplace issue. Now, the Supreme Judicial Court is taking up the issue in connection with medical marijuana use. It seems likely that similar legal questions regarding recreational use of the drug will also soon arise in the wake of the 2016 legalization of marijuana in the Commonwealth.

The current case involves an employee who was fired after she failed her employer’s mandatory drug test. She sued, claiming her rights were violated because she was legally authorized to use marijuana to treat Crohn’s Disease. According to the complaint, her employer told her it did not care about her medical authorization to use marijuana because it followed federal law, under which marijuana remains illegal. After the superior court dismissed her lawsuit, the SJC opted to hear her appeal. It will reportedly consider both whether the company violated Massachusetts anti-discrimination laws and whether employees can sue their employers under the medical marijuana statute.

The case signals problems on the horizon for employers on various fronts. Drug testing has long been a problematic policy that runs headlong into individual rights of privacy. Since testing can potentially uncover drug use that occurs outside work, employers need to respond to positive tests carefully. Now that marijuana is legal for recreational use in Massachusetts, complexities with testing and in other areas of the employer/employee relationship will likely multiply. The wisest course may be for employers to treat marijuana as they commonly do alcohol — by proscribing its use only while employees are working.

EEOC Working on New Anti-Harassment Guidance

The Equal Employment Opportunity Commission (EEOC) is currently working on new guidance to help analyze and decide claims involving harassment in the workplace. The new rules promise to bolster enforcement against harassers as it follows a task force finding that the issue remains a serious problem in the American workplace. The new guidance will explain the law as interpreted by courts and serve as a reference for EEOC enforcement staff and other federal officials. It is likely to be used by courts and litigants as well.

The guidance will likely deal with harassment based on race, color, religion, sex, national origin, disability, age and genetic information. There is no current timetable for its release. The EEOC recently extended the time period for comments on it March 21, 2017. A copy of the proposal can be found at www.regulations.gov/document?D=EEOC-2016-0009-0001.

Employers must Investigate Sexual Harassment Complaints to Reduce Risk of Punitive Damages

When in doubt, investigate – carefully and thoroughly. That’s the message again delivered to employers by a recent decision of Massachusetts’ highest court. When an employee complains about sexual mistreatment or other discrimination, it’s critical that he/she be taken seriously and that appropriate remedies be implemented to address any allegation that is borne out by a fair investigation.

Lexus of Watertown learned this lesson the hard way recently. After its former employee filed suit for sexual harassment, among other things, a jury awarded her $40,000 for emotional distress and another $500,000 in punitive damages. On appeal, the Supreme Judicial Court rejected Lexus’s argument that it did not act badly enough to justify a punitive damages award, which can be used to punish employers only in cases of outrageous or egregious misconduct.  Lexus, the court found, exposed itself to a punitive damages award because it did not adequately investigate its employee’s complaints after it learned about them. Those complaints were later proved true at trial, at least to some degree.

“Where the employer is aware of a sexually hostile or offensive work environment, the potential for punitive damages against the enterprise is triggered and an inquiry into the response by the employer is warranted….The failure to do so opens the door to the potential imposition of punitive damages if the jury conclude that the employer’s failure was sufficiently outrageous and egregious,” the SJC found.

Although Lexus of Watertown in fact conducted an investigation, the court found that it was inadequate. It was conducted by a supervisor who doubted the complainant from the outset, did not include interviews of all relevant personnel, and did not involve the complaining employee. Though the investigation did not corroborate any of the complaints, a former manager had previously circulated a memo regarding the harasser’s inappropriate behavior. At trial, many of the complaints were corroborated by testimony. Other employers should learn from this case. All complaints should be investigated fairly by an impartial person. Counsel should either guide the investigation or conduct it.

Court Rejects Another Expansion of At-Will Employment Rule

Yet another attempt to expand the public policy exception to the Massachusetts at-will employment rule has fallen by the wayside. This time, the court rejected a former employee’s challenge to his firing based on a concept termed, “honest, open and accountable government.”

“The question what exactly is required by the policy of open, honest and accountable government… is both difficult to define and open to debate,” the Appeals Court wrote on August 4, 2016. “The Supreme Judicial Court…has made clear that the public policy exception must be construed narrowly in order to avoid effectively imposing a just cause requirement for termination of at will employees….”

The at-will employment rule provides that either employees or their employers are free to end their working relationship at any time, for any reason, and either with or without cause. This means that employees generally have no recourse when fired except as may be provided by particular laws. The Massachusetts anti-discrimination law and anti-retaliation language in the state’s Wage Act are examples. Absent those legal protections, employees can challenge their firings only if they can identify an exception to the at-will rule.  Exceptions are few and far between.

In Tramontozzi v. Mass. Dept. of Transportation, a former employee of the Massachusetts Transportation Department claimed he was unfairly made a scapegoat after a light fixture fell from the Central Artery Tunnel in Boston. He accused the Department of unfairly blaming him for alleged delayed disclosure of the incident in order to provide cover for higher authorities. While the Appeals Court agreed that government should be open and honest, it declined to create a public policy exception to the at-will rule on this basis.

Workplace Bullying Could Soon be Outlawed in Massachusetts

It has not become law yet and there’s no assurance it will make it through this Legislative session, but a bill that would outlaw “workplace bullying” is making progress. The fact that the current version of the proposed law, which has been considered in various forms in the past, is sponsored by more than 50 members of the House of Representatives is one sign that this time things may end differently.  Another is the positive report it received in August by the committee on Labor and Workforce Development.

The law would open employers to liability for permitting an “abusive work environment” to exist, making them liable for the acts of their employees. It defines such environments as ones where abusive conduct has caused physical or psychological harm to an employee. Repeated verbal abuse, intimidating or humiliating behaviors, and sabotaging of an employee’s work fall within the ambit of abusive conduct under the proposal’s definition. Among the possible sanctions for workplace bullying: an injunction to stop it, job reinstatement of a victim, termination of an offending party, wage losses, emotional distress and punitive damages, and legal fee awards.  Employees would have to bring a private suit for bullying within a year of the most recent workplace event.

As justification for the law’s passage, sponsors recite that one-third of all Massachusetts employees will experience “health-endangering workplace bullying”  that can cause shame, humiliation, severe anxiety, depression, and even suicidal tendencies, among other things. They note that bullying not tied to membership in a legally protected class of individuals is four times more prevalent than sexual harassment and opine that victims of it should not be shut out from relief. The proposal’s goals, its sponsors say, are to provide relief for employee victims of bullying and incentives for employers to prevent it from occurring.