As a result of legislation signed into law by Governor Deval Patrick on August 6, 2010, the Commonwealth’s Criminal Offender Record Information (“CORI”) system has undergone sweeping changes which dramatically impact employers doing business in the Commonwealth of Massachusetts. Effective November 4, 2010, the ability of most employers to inquiry about a candidate’s criminal background on an employment application will be limited.
The prohibition against inquiries on initial applications exempts from compliance certain employers, i.e., school systems and financial services companies, who are prohibited by state or federal law from hiring individuals convicted of certain types of crimes. Notably, this restriction does not prohibit criminal history inquiries points beyond the initial application process, such as during an actual interview. For example, employers could seek this information during subsequent interviews.
Effective in February of 2012, there will be further changes to an employer’s ability to inquire into a candidate’s criminal background which will ease an employer’s ability to make appropriate background inquiries. The Commonwealth will establish a new CORI database which employers can, for a fee, access to obtain information regarding an applicant’s convictions and pending charges. However, before an employer can use this information to either eliminate the candidate or question the candidate about this information, the employer will be required to provide the applicant with a copy of that CORI information. If the employer uses the information provided by the CORI database to make a hiring decision within ninety (90) days of receipt of the information, that employer will receive an additional benefit. The employer will be protected from liability from certain types of adverse claims, such as negligent hiring or failure to hire claims.
There are also new limitations on the information which employers may access from the CORI database. Records for most felony convictions will not be available from the database after ten (10) years and misdemeanor information will be restricted after five (5) years. Certain sex crimes, murder convictions, and various other crimes will remain available from the CORI database.
Any employer which conducts five or more criminal background checks per year must establish a written CORI policy which:
- Notifies the candidate of a potential adverse employment decision based upon the CORI information;
- Provides the candidate with a copy of the CORI information in the employer’s possession, together with a copy of the employer’s written CORI policy; and
- Provides the candidate with information regarding the process to correct criminal information.
The employer must retain the criminal record information for seven (7) years after the adverse decision or termination of employment, after which it is required to discard that information.
The practical implication of these changes to the CORI system is that employers must undertake immediate action to conform their employment applications to eliminate any initial inquiry into criminal background. And, in addition, employers who conduct five (5) or more criminal background checks on employees much establish a written CORI policy which complies with the law’s requirements.
Please contact me directly at (617) 330-7123, or at dmurphy@rubinrudman.com, if you have any questions or need assistance with compliance.
Imbedded among the provisions of what the Legislature declared an “emergency law” entitled “An Act Relative To Economic Development Reorganization” are major changes to the requirements of the Massachusetts Personnel Records Act, Mass. Gen. L. Ch 149, Sec 148, subsection 52C.
Under this new law, which became effective August 5, 2010, an employer must now:
1) Notify an employee within 10 days, if the employer places any information in the employee’s personnel file which either has been or will be used to negatively impact the employee’s employment with that employer. Specifically, if any of this information could be used to evaluate an employee’s performance and subject that employee to disciplinary action, adversely impact that employee’s opportunity for promotion, transfer, or additional compensation, the employer must now comply with this new law and give notice of the filing of this information into the employee’s personnel file.
2) If an employee requests, in writing, the opportunity to review his or her personnel record, the employer must provide that employee with an opportunity to review that record within 5 days of receipt of the written request. NOTE: The new law also provides that the review of the record shall take place at the employer’s place of business, during normal business hours.
3) If an employee provides a written request for a copy of his or her file, that request, as well, must be honored within 5 days of the written request for a copy of that record.
An employee may only request a review of his or her personnel file on 2 occasions within a calendar year, unless that employee has received a notification of the placement of negative information in that employee’s personnel file. This notice and the opportunity to review the file are not considered part of the 2 maximum reviews per calendar year.
These changes are significant and will tremendously impact the work of human resources professionals and management, and how they approach employee relations and personnel records.
If you have any questions about this new law, please contact me directly at dmurphy@rubinrudman.com or (617) 330-7123.
Massachusetts has enacted new anti-harassment and anti-abuse laws which will affect on the workplace. The law, which becomes effective on May 10, 2010, creates a procedure for anyone to obtain a protective order for harassment if they are the victims of three acts of intimidation, abuse, or property damage, or are they are the victims of a forceful or threatening act which causes another to involuntarily engage in sexual relations or other related crimes. The law uses definitions of “abuse” and “harassment” which are so broad that there will be significant workplace implications.
These procedures allow courts to issue Harassment Prevention Orders (“HPO’s”) against anyone who engages in these types of behaviors. Unlike the more restrictive state and federal anti-harassment laws which prohibit harassment based upon protected class status, HPO’s are not subject to administrative filing prerequisites, nor are they limited to claims based upon protected class status. HPO’s can be filed in superior court, the Boston Municipal court, or the respective divisions of any juvenile or district court in which the plaintiff resides. And, they may be filed on an emergency basis without any notice to the defendant (ex parte).
The statute defines “abuse” as “attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.” Under the HPO, if a person engages in “3 or more acts of willful and malicious conduct with the intent to cause fear, intimidation, abuse or property damage toward a specific person, and does, in fact, cause fear, intimidation, abuse or property damage to that person, the victim may obtain injunctive relief from the court, prohibiting the harasser from any contact with the victim. As a practical matter, this means that an employee who engages in this type of behavior at work can be prevented from returning to work until and unless the issue is resolved to a court’s satisfaction.
We are all aware of workplace situations in which co-workers, bosses, and even clients and customers, engage in inappropriate and unprofessional conduct at work. They yell, they scream, and they throw things around when things don’t go their way. So called “workplace bullies” are not the norm, but they do exist and create significant morale and productivity issues at work. Now, with the implementation of this new law, the possibility exists that these unrestrained individuals face far more significant consequences than disciplinary actions from their employer. While HPO’s are civil in nature, they are enforced criminally if violated.
What Should a Massachusetts Employer Do?
As a result of the new Massachusetts law, employers should undertake measures to reduce the likelihood of abuse or harassment within the workplace. Prevention of abusive behaviors and harassment should be the first goal. If reported, an immediate and appropriate response is critical. I suggest that every employer provide training, guidelines, and effective reporting procedures.
For further information regarding the implications of this new law in the workplace, please contact me directly at dmurphy@rubinrudman.com or at (617) 330-7123.
The Massachusetts Supreme Judicial Court has eliminated one of the few remaining defenses available to employers for violations of the Commonwealth’s strict liability law governing independent contractors. In Somers v. Converged Access, Inc., (August 21, 2009 SJC Docket-10347), the court found that the employer has misclassified the plaintiff as an independent contractor. The court rejected the employer’s defense that the plaintiff suffered no damages because the employer paid the plaintiff more as independent contractor than it would have paid him, had it hired him as an employee.
The plaintiff twice filed an application for employment with CAI, neither of which resulted in employment. CAI did, however, offer him a temporary position, testing CAI’s software products first for a sixty day period and then for a 90 day extension, as an independent contractor. As an independent contractor, Somers was not entitled to any benefits the company offered to its employees, including vacation pay, participation in insurance plans, or retirement benefits. When the company informed him that it would not renew his contract again and then did not consider his application for an open position, Somers filed suit, alleging, among other claims, misclassification as an independent contractor in violation of the Massachusetts wage and hour and independent contractor laws.
In its defense, the company argued, and the lower court agreed, that because the $65 per hour wage it paid Somers was substantially more than it would have paid him as an employee, he did not suffer any damages. The SJC, however, made it quite clear that this position offered no defense to Somers’ claims. In essence, the SJC reason that, because CAI misclassified him as an independent contractor, the money it paid to him for that period was his salary. It rejected CAI’s claims that it should be allowed an “offset” for the salary it would have paid had it hired him as an employee against the larger sum it paid him as an independent contractor. The court reasoned that there are no offset provisions in Mass Gen. L ch 149, section 148 (the Wage and Hour Act) of Mass. Gen. l Ch. 149, section 148B (the Independent Contractor Law).
Under Massachusetts’ Wage and Hours laws, a successful plaintiff may recover an award of treble damages, plus costs and reasonable attorney’s fees from the employer. The court remanded the case to the trial court for determination the extent of the damages due to the plaintiff.
This case serves as yet another reminder to employers of the facts that they must properly classify their employees and that an independent contractor is a rarity in Massachusetts employment relationships. Mistakes of this type are extremely costly to employers who do not follow the law.
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If you have any questions or concerns about this area of the law, please feel free to contact me.
In a recent 5-4 opinion, the United States Supreme Court made it more difficult for employees to prove age discrimination in employment cases. Prior to the ruling in Gross v. FBL Financial Services, Inc. (2009), many jurisdictions applied the two step analysis used in discrimination claims under Title VII (the federal anti-discrimination law which prohibits discrimination based on gender, race, ethnic origin, or religion,) to determine if age discrimination occurred. Under that approach, plaintiffs could prevail if they could demonstrate that age formed part of the employer’s motivation for the adverse employment action, the so called (mixed motive cases), despite evidence of a legitimate, non-discriminatory motive
In 1991, Congress amended Title VII to allow recovery for cases where discriminatory animus formed part of the employment decision in race, religion, ethnic origin, and gender cases. If a plaintiff could demonstrate that the employer, with a legitimate, non-discriminatory reason for the action, also had some type of discriminatory animus, that plaintiff could recover under the “mixed motive” theory. Since that time, federal courts grappled with the issue of whether the mixed motive approach could also be applied to age discrimination cases because Congress, at the time it amended Title VII, did not specifically include age in the group of protected classes under which the mixed motive approach could be utilized
The Gross court resolved the issue and said that the two step, mixed motive analysis does not apply to age discrimination cases. Plaintiff’s must now demonstrate that age was the sole motivating factor in employment discrimination cases. As a result, it will much more difficult for plaintiff’s to prevail in a age discrimination case.
The practical result of this ruling is that many plaintiffs’ attorneys will most likely bring age discrimination suits in state courts, rather than federal courts, where possible. That will be especially true in states which have liberal state anti-discrimination laws.
The Massachusetts Appeals Court has affirmed the principle of absolute privilege in connection with complaints of discrimination claims made to the human resources department and to the administrative agencies. Accordingly, the manager against whom the complaints were made could not countersue for libel, slander, malicious interference with advantagous business relations, or wrongful procurement of breach of employment agreement.
The underlying case was brought by a bartender, who had worked in a Marriott hotel in Cambridge, Massachusetts. After several months of working under a particular supervisor, she resigned. At the urging of a new manager at the hotel, she reapplied for the position. At her second interview for the position, she was interviewed only by her earlier supervisor, not, as she expected, by the supervisor and the manager. After the interview, she withdrew her application, and immediately complained that she had been harassed by the supervisor, and that he had behaved inappropriately.
The bartender followed up the verbal complaint with a written complaint to the general manager, to human resources, and to the legal department. She detailed her complaints against the supervisor for his harassment, and other complaints, and stated she would bring claims at the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination if her harassment claims were not promptly settled.
No settlement offer was forthcoming, so the bartender filed with the EEOC. The case was promptly settled with Marriott.
Almost a year later, the supervisor brought suit against the bartender and Marriott, claiming wrongful termination against Marriott as well as the defamation and tort claims against the bartender. The bartender’s summary judgment motion was denied, and the supervisor’s was allowed. The bartender appealed and the trial court was reversed.
The Massachusetts Appeals Court held that the letter to Marriott, in which the bartender threatened suit but offered settlement, was absolutely privileged since they related to the institution of a good faith judicial proceeding. The letter was, in fact, followed by the claim at the EEOC, based upon the same allegations. The court wrote, “Because her statements were made entirely in the confines of a protected forum, she is entitled to the defense of absolute privilege on [the defamation claims].” The exact same analysis applied to the claims of interference with employment relations.
The Lessons of This Case
Employers must understand that workers have the right to make good faith complaints. The duty on the employer is to undertake appropriate investigation and, where appropriate, corrective action.
The case is Visnick v. Caulfield, 73 Mass. App. Ct. 809 (2009)
On January 16, 2009, the Final Regulations altering the scope and breadth of the Family Medical Leave Act (“FMLA”) became effective. Under the prior version of the FMLA, eligible employees were entitled to up to twelve workweeks of unpaid leave in a single twelve-month period for certain occurrences. An eligible employee is one who:
“worked for that employer for at least twelve months; and worked at least 1,250 hours during the twelve months prior to the start of the FMLA; and worked at a location where at least fifty employees are employed at the location or within seventy-five miles of that same location.”
The situations under which an eligible employee was entitled to FMLA leave was limited to these specific categories:
- The birth of a child and to care for that newborn child; or
- Placement of a child through adoption or foster care and to care for that newly placed child; or
- To care for an immediate family member (spouse, child, or parent) with a serious health condition; or
When not able to work because of their own serious health condition.
The Final Regulations expand the protections of the FMLA in a significant manner to include two new military leave provisions. The first of these new groupings is the “Military Caregiver Leave,” which provides that eligible employees (apply the same standards for eligibility under the prior FMLA) who are family members of covered service members may take up to twenty-six work weeks of leave, in a single twelve-month period, to care for a covered service member with a serious illness or injury, incurred in the line of duty while on active duty. Note that this provision is substantially more inclusive as it is not restricted to family members, but includes “next of kin.” Next of kin is defined as the nearest blood relative who is able to care for that covered service member.
The second new grouping extends FMLA protection to eligible military family members on the basis of a “Qualifying Exigency Leave.” This new provision provides protection to eligible employees with a covered military member serving in the National Guard or Reserves. Note that this leave does not extend to members of the Regular Armed Forces. Such eligible employees may take up to twelve work weeks for any “qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation. A “qualifying exigency” may include:
- short notice deployment;
- military events and related activities;
- child care (not routine child care, but child care on an emergency basis for or time taken to seek permanent child care) and school activities;
- for financial and legal arrangements;
- counseling;
- rest and recuperation;
- pre and post-deployment activities; and
- additional activities not covered but agreed to by the employer and employee.
Important Notice Requirements
Employer’s Obligations: The employer must post notice of FMLA rights and distribute that same notice to each employee on an annual basis. Under the Final Regulations, the employer must notify an employee of FMLA eligibility within five (5) business days of its determination that the leave may be an FMLA leave by complying with the following Notice obligations:
Designation Notice: Employers must notify employees in writing that a leave is designated as an FMLA leave within five days of receiving sufficient information to determine that the leave is under the FMLA’s protection. In this notice, employers must inform the employee of the specific amount of hours, days, or weeks which will be counted as FMLA leave, as well as the time will not be counted as FMLA. Note: The Final Regulations permit an employer to retroactively designate an absence as FMLA in response to Ragsdale v. Wolverine Worldwide, Inc., 534 U.S. 81 (2002).
Employee’s Obligations: As is in all FMLA requests, an employee must provide requested certification to the employer within the time frame requested by the employer (which, at a minimum, is fifteen days after the employer’s request), unless the circumstances render it impractical or impossible. Moreover, unlike the vague requirements of the current FMLA, the new law provides that employees must follow the employer’s usual and customary call-in procedures for reporting an absence, except in unusual circumstances. Calling in “sick” without providing more information, does not constitute sufficient notice under the Final Regulations. Further, the law provides that employees have an affirmative obligation to respond to an employer’s questions regarding the potential for employee’s absence as a qualifying FMLA leave. Failure to respond to such questions may result in a denial of FMLA protection.
Medical Certification Form WH-380 provides for a more detailed exchange of medical information than contemplated under the prior law. The expanded FMLA provides for an open exchange of information by permitting direct communication between an employer and a health care provider (which, for the first time explicitly includes a Physician’s Assistant.) This direct flow of communication, however, does not permit an employer to ask for additional information beyond that which is required on the certification form. And, in deference to the HIPAA Privacy rules governing employee information, the Final Regulations restrict which representatives of the employer may contact the employee’s health care provider to either a company health care provider, a Human Resources professional, a Leave Administrator, or a Management official. Under no circumstances may the representative be the employee’s direct supervisor.
In the event that medical certification is incomplete or insufficient, the employer must specifically list which information is missing in writing. The employee has seven calendar days in which to provide the missing information.
Timing: In the event that leave is taken for the employee’s own serious medical condition, an employer may request re-certification of that ongoing condition every six months in conjunction with the employee’s continued absence.
Continuing Treatment of a Serious Health Condition
The Final Regulations require that, in order to receive the protection of the FMLA for ongoing treatment of a serious health condition, the employee must demonstrate two visits to a health care provider within thirty days of the inception of the incapacity. The first visit to the health care provider must take place within seven days of the first day of incapacity. “Periodic visits” for chronic serious health conditions requires at least two visits to a health care provider per year.
What Should Employers Do?
Comply with the law!
Post the new requirements in employee accessible areas and distribute copies of that poster notice to all employees on an annual basis;
Educate its managers and Human Resources professionals about the new requirements and obligations under the FMLA; and
Most importantly, when in doubt, contact an experienced employment attorney.
If you would like to receive regular law updates, please contact me and I will add you to my Employment Alert Mailing List.
In one of the first strokes of his pen since his election, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. The effect of this legislation was to reverse the U.S. Supreme Court decision in the case of Ledbetter v. Goodyear Tire & Rubber Co., Inc.
That case reversed a judgment in favor of Ledbetter, which she had won after discovering her employer had been giving her unequal pay for over nineteen years. Although she had been a very productive employee for those nineteen years, Goodyear paid Ledbetter less than the comparable male employees doing similar work. As she was retiring, Ledbetter was informed that this pay discrimination had been on-going for as long as she had worked for Goodyear. At trial, a jury found that Goodyear was liable for discrimination, and awarded Ledbetter damages. But the Supreme Court reversed the judgment, reasoning in its split (5-4) decision that Ledbetter should have filed her suit 180 days after the first act of discrimination.
The lower courts had consistently held that the 180 day requirement began to run only after the employee had discovered the discriminatory act (commonly known as the “discovery rule”). The Supreme Court upended the discovery rule. The Lilly Ledbetter Fair Pay Act restores the discovery rule to pay discrimination claims.
The Act also applies to race, gender, color, religious, and national origin claims under Title VII; to age discrimination claims under the Age Discrimination in Employment Act; and handicap discrimination claims under the Americans with Disabilities Act.
Two other aspects of the Act are of importance: The Act allows employees to claim back pay for a period of up to two years prior to the filing of the claim with the Equality Employment Opportunity Commission. The Act is also retroactive, with an effective date of May 28, 2007. The Act does not restore the damages awarded to Ledbetter in her case.
What Should Employers Do? Discrimination in its many forms is, of course, illegal. Each unequal paycheck will constitute a separate violation, and employees will have 180 days to file their claims once the acts are discovered. If you are in doubt about the pay practices of your company, you should promptly consult an experienced employment attorney to address those issues.
On September 25, 2008, President Bush signed a bill amending the Americans with Disabilities Act (the “ADA”). The ADA Amendment Act (“ADAAA”), as it is now known, is effective as of January 1, 2009. The non-discrimination standards articulated in the ADAAA apply to all employers with fifteen employees or more and extends the protection of these standards to a broad array of individuals.
Substantive Amendments and Related Criteria to Establish a Disability
The ADAAA set forth two lists which illustrate the non-exhaustive examples of disabilities protected by the law. The changes included in the ADAAA are sweeping. While it acknowledges the recognized “Major Life Activities” of walking and breathing, the ADAAA expanded its protection to other major life activities such as reading, bending, and communicating, thereby dramatically increasing the likelihood of claims. And, for the first time, the law acknowledges the category of “Major Bodily Functions” to which its protection extends. This list includes functions of the immune system, normal cell growth, digestive systems, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. In short, under the expanded definitions of the ADAAA, few, if any, ailments will not be protected.
The ADAAA explicitly rejects judicial attempts to narrowly define the type of disabilities protected by law and reaffirms its commitment to expand protection from discrimination. Consequently, the “Mitigating Measures” defense, first articulated by the United States Supreme Court in Sutton v. United Airlines is no longer a viable defense. Similarly, the law rejects the standard established by Toyota v. Williams which analyzed the measure of “substantial limitations” on a major life activity. To the extent that the Williams’ standard set too high a threshold of entitlement, the ADAAA lowers that threshold to extend protection. Further, the Act provides that a disability in remission or which is episodic in nature is protected, if it would be so when active.
As a result of multiple interpretations and by state and federal courts, the Act broadens the “regarded as” definition to include protection because of actual or perceived impairment, unless that impairment was transitory or minor in nature. Note that this protection extends to the broader category of impairment, which is substantially different from an actual disability. Individuals covered under the “regarded as” protection of the law are not entitled to a reasonable accommodation. They are limited to anti-discrimination damages alone.
At present, there is no interpretive guidance available despite the ADAAA’s directive to the Equal Employment Opportunity Commission (“EEOC”) to develop such guidelines. The Act specifically requires that the EEOC develop interpretive guidelines, but it did not require a timeline in which it must to complete the task. In December of 2008, the EEOC Commissioners who were tasked with developing these guidelines reached a stalemate, effectively resulting in no guidance for the implementation of the Act. Employers, therefore, should adopt a conservative approach to all claims and ensure that they strictly adhere to the procedural mandates of the ADAAA
Psychological Disabilities
The ADAAA affords protections to individuals who suffer psychological disabilities which impact major life functions. And, as with physical limitations, the ADAAA also extends the protection of the anti-discrimination law to those who possess mental impairments. Examples of psychological disabilities which affect major life activities are major depression, bipolar disorders, schizophrenia, anxiety disorders, and post-traumatic stress syndrome. In addition, the Act extends to those who are not only “regarded as” having disabilities, but also individuals “regarded as” having mental impairments, regardless of whether or not they affect any major life activities.
What Should Employers Do? On January 1, 2009, the ADAAA became law. And, because there are no guidelines currently in effect from which employers could assess their obligations and potential liability, it is reasonable to assume that the number of claims should increase dramatically. The prudent course of action in response to the dirth of guidance would be for employers to redirect their focus from determining whether or not an employee is disabled under the law. Rather, employers should focus on compliance with the obligations imposed under the ADAAA by engaging in the interactive process, attempting to provide reasonable accommodation, and developing strategies to educate its managers and Human Resources professionals to ensure consistent compliance.
Can an employee demand reasonable accomodation for his Rastafarian hair and beard in the face of his employer’s personal grooming policy which bans facial hair and long locks? The answer, of course, is it depends. But in the recent case of Brown v. F.L. Roberts & Co., Inc., the Massachusetts Supreme Judicial Court held that the employer failed to demonstrate that any exception to its grooming policy would present an undue business hardship to justify its failure to make a reasonable accomodation to its employee’s religion.
The employee also failed to sustain his burden to demonstrate that his assignment by the employer to the lower bay of its Jiffy Lube oil-changing franchise was not a reasonable accomodation as a matter of law.
The case is an excellent overview of the Massachusetts religious discimination law, G.L. c. 151B, § 4(1A). That statute provides, in part, “It shall be unlawful discriminatory practice for an employer to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate or [forgo] the practice of, his creed or religion as required by that creed or religion . . . and the employer shall make reasonable accommodation to the religious need of such individual. . . . ‘Reasonable Accommodation’, as used in this subsection shall mean such accommodation . . . as shall not cause undue hardship in the conduct of the employer’s business.”
The purpose of the statute is to prohibit discrimination against individuals for sincerely held religious beliefs. But the statute also balances the needs of employers by providing hardship provisions. The religious beliefs of an individual, even when most sincerely held, cannot excessively interfere with the employer’s business affairs.
In the case at hand, Jiffy Lube hired a consultant to advise on ways to improve business. One recommendation was to implement a personal grooming policy that required employees to be cleanly shaven and to have neatly trimmed hair. The plaintiff, however, had adhered to his Rastafarian beliefs for over a decade, and those beliefs included a prohibition against shaving or cutting of hair. The employee requested an exception for his religious beliefs. The employer apparently responded that he did not have the time to consider religious beliefs.
The plaintiff, who previously had responsibility for customer contact, was assigned to the lower bay (read “grease pit”) of the oil change facility, where he had no customer contact. The lower bay was also colder, and the plaintiff was always the last to get to breaks and lunch.
Importantly, the court held that the Massachusetts statutory scheme under G.L. c. 151B afforded more protections to employees than the Federal provisions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The court distinguished the case from Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 138 (1st Cir. 2004), cert. denied, 545 U.S. 1131 (2005), which upheld the employer’s ban on facial piercings despite the employee’s claim of religious discrimination.
The defendant could not make a blanket assertion that an exception to the hair ban would create an undue hardship on the business. The court clearly state, “an exemption from a grooming policy cannot constitute an undue hardship as a matter of law.” At a minimum, the employer was required to engage in a discussion with the employee regarding a reasonable accomodation, and to provide a reasonable accomodation unless it could demonstrate an undue hardship. On the record, the employer’s claim of undue hardship failed.
The plaintiff was unable to convince the court that his assignment to the lower bay could not be considered a reasonable accomodation. The question, the court concluded, was a factual one reserved for the jury to consider when the case was sent back to the Superior Court.
What Should An Employer Do? The Brown case demonstrates once again that Massachusetts anti-discrimination laws will be given broader reading than their Federal counterparts. Claims of discrimination can be best avoided by appropriate proactive measures when the risk arises. Claims by employees about religious beliefs or concerns about discrimination for gender, race, ethnicity, age, sexual orientation, pregnancy, marital status and veterans status must be taken extremely seriously. If you do not have strong anti-discrimination policies in place, you should consult your attorney promptly to implement them. The law requires employers to have strong written anti-discrimination policies in place. Consultation with an attorney when questions of discrimination claims arise may help prevent them from developing into expensive claims for damages.
