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Denise Murphy, Massachusetts Employment Defense Lawyer, on Money Matters Radio

Massachusetts employment defense lawyer Denise Murphy was recently a guest on Money Matters Radio for the Scottie McCall show. The station is WBNW, 1120 AM, and the appearance was on April 23, 2010.

Denise talked about recent changes to Massachusetts data privacy laws, things every employer should know about discrimination and harassment, and other topics of current interest to Massachusetts employers.

Click on the link below to hear the show! (It begins after a few moments of commercial messages.)

Denise on the Radio

Money Matters Radio is a lively talk station with three local transmitters. Tune in, or follow them from their website at

U.S. Supreme Court Makes Federal Age Discrimination Cases More Difficult to Prove

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.

Massachusetts Court Affirms Absolute Privilege in Employment Discrimination Claim

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)

Lilly Ledbetter Fair Pay Act Restores Discovery Rule to Pay Discrimination Cases

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.

Americans with Disabilities Act Update

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.

Massachusetts Religious Discrimination Statute Reviewed by Supreme Judicial Court; Claim of Discrimination by Rastafarian Considered

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.

Massachusetts Supreme Judicial Court Defines Pregnancy Discrimination Rights Against Small Employers

In an important case decided today, the Massachusetts Supreme Court has announced that the Massachusetts Equal Rights Act does allow a plaintiff who works for an employer with fewer than six employees to sue for pregnancy discrimination. The case clearly opens the door for additional pregnancy discrimination claims against Massachusetts employers.

However, preganancy discrimination claims against smaller employers still cannot be brought in the Massachusetts Commission Against Discrimination, which has jurisdiction only over employers with six or more employees. Claims against smaller employers will proceed directly to court.

Prior to this ruling, it was unclear under Massachusetts law whether employers who did not fall within the jurisdictional limitations of the Massachusetts General Laws chapter 151B (requiring 6 or more employees) could be sued for pregnancy discrimination. The SJC made it clear that these employers are not exempt from pregnancy discrimination claims.

Small employers will benefit from the fact that defending the claim will at least be less expensive than the two step process under G.L. c. 151B.

Larger employers are still required to defend pregnancy discrimination claims at the MCAD, where the claimant has the option of maintaining the claim for part of its handling, or all of its determination, as well as the option of removing the case to court. The employer does not have the option of removal.

The MCAD process is very expensive (and distracting) for any employer and the financial and business burden would have greatly impacted employers with fewer than 6 employees. From an economical and business perspective, MERA provides these employers with the right to defend claims just once, rather than duplicating their costs through the MCAD investigation process and then, if removed by the plaintiff, incur those costs and distractions once again in court.

For these smaller employers, one forum is more than enough for them to bear.

The case is THURDIN vs. SEI BOSTON, LLC.

If you would like to discuss the impact of this case on your business, please call me.

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