Boston Lawyer Blog

Beyond Sports and Sex Part 4: When Does Title IX Apply to Religious Schools?

Published on: March 7, 2018 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have not gotten as much attention in the media or political arena as have Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination. Part 2 examined how Title IX protects students from non-sexual sex-based harassment. Part 3 looked at Title IX and dress codes.

Title IX is a federal law that prohibits schools that accept federal funding from discriminating on the basis of sex. As I’ve discussed in previous pieces, this includes discrimination in providing athletic opportunities, failing to properly address sexual harassment and sexual assault, gender-based harassment and bullying, and dress codes. It is generally understood that Title IX applies in all public schools, from kindergarten through graduate programs, and also applies to most private colleges because of their participation in federal financial aid programs. But courts have held that Title IX may also apply to private (including parochial) elementary and high schools. Conversely, there are private colleges and universities that have taken steps to ensure that Title IX does not apply to them. It is important for any students or parents dealing with discrimination issues at school to understand whether Title IX may protect them. CONTINUE READING ›

Massachusetts Appeals Court explains Who’s The Boss under the Wage Act

Published on: February 21, 2018 | by Ana Muñoz

It’s not as easy as it used to be to answer the question of who’s the boss. Many employees survive on a patchwork of part-time jobs; the gig economy is growing fast enough to double in the next few years. Indeed, a recent study released by Upwork and the Freelancers Union predicts that most workers will be freelancers by the years 2020. As facts in the workplace evolve, so must the law.

That’s exactly what happened last fall in Gallagher v. Chambers, a case decided by the Massachusetts Appeals Court. There, the Court clarified the test for identifying an employer under the Massachusetts Wage Act. Previously, courts had applied a common-law set of factors that led to inconsistent results in lower courts, which in some cases dismissed corporate defendants even though those entities benefitted from a plaintiff’s work. In Gallagher, a home health aide sued to recover for unpaid overtime wages. She named as defendants both her former customer – who had overseen her work on a daily basis – and the agency that had helped her find the placement and processed her paychecks. That raised the question of whether both were really her “employers” for purposes of the Wage Act. The Appeals Court took the opportunity to refine the rule for answering that question.

SJC Exempts Sick Time From Wage Act

Published on: February 5, 2018 | by David Russcol

On January 29, the Supreme Judicial Court in Mui v. Massachusetts Port Authority held that accrued but unused sick pay is not subject to the state Wage Act, even if the employer has agreed to pay out some or all of the sick pay when an employee separates from employment. While the result may make sense on the facts of this case, and is generally consistent with the way the Wage Act is currently drafted, the Court’s decision sweeps more broadly than it needs to. It removes a powerful incentive for employers to promptly pay compensation that is due to some employees at the end of their employment.

In Mui, MassPort (the agency responsible for Logan Airport, among other things) began the process of discharging the plaintiff, a longtime employee, after he made an apparent suicide attempt that caused property damage. Before that process completed, Mui retired from MassPort, and an arbitrator later decided that MassPort could not fire him because he had already retired. MassPort had a policy of paying a portion of accrued but unused sick time to employees upon their departure, unless they were discharged for cause. MassPort at least initially refused to give Mui his sick pay (which amounted to about $47,000) because it claimed he had been discharged for cause. CONTINUE READING ›

SJC Sanctions Judges’ Consideration of Victim Sentencing Recommendations

Published on: January 31, 2018 | by Zoraida Fernandez

In the recently decided Commonwealth v. McGonagle, the Supreme Judicial Court considered whether a Massachusetts statute that allows victims of crimes to recommend a sentence violates (1) the Eighth Amendment to the U.S. Constitution and Article 26 of the Massachusetts Declaration of Rights (particularly in light of the U.S. Supreme Court’s recent decision in Bosse v. Oklahoma, 137 S. Ct. 1 (2016)); and (2) the defendant’s due process rights. The SJC concluded that consideration of a victim’s sentence recommendation in a non-capital case does not violate either the federal or Massachusetts constitutions. While victims’ accounts regarding the effect of the crime provide relevant information for a sentencing judge, allowing victims to make a specific sentence recommendation seems unfairly prejudicial to the defendant and irrelevant, and the SJC’s reasoning in this case does not go far enough in addressing these concerns.

Supreme Court Hears Arguments on Whether the Sixth Amendment Limits a Lawyer’s Strategic Decision to Concede Guilt in Death Penalty Case

Published on: January 24, 2018 | by David Duncan

Robert McCoy was convicted of murdering his estranged wife’s mother, stepfather and son by a Louisiana jury, and condemned to die. He is currently before the United States Supreme Court (McCoy v. Louisiana, No. 16-8255), which will shortly hear argument on whether his rights under the Sixth Amendment were violated when his attorney, in his opening at the trial, conceded that McCoy had committed the murders. The attorney did so over McCoy’s strenuous and repeated objections, made to the lawyer and to the judge before trial.

While there is a subsidiary issue of effective assistance of counsel, there is no question that the attorney made a considered strategic decision that making the concession was the best chance to spare McCoy the death penalty. The primary issue is whether this decision was the lawyer’s to make, or whether it was exclusively the client’s to make. CONTINUE READING ›

Massachusetts Courts Grapple with Universities’ Duties of Care Toward Their Students

Published on: January 16, 2018 | by Naomi Shatz

In news that might seem unsurprising to both lawyers and non-lawyers alike, on December 28 a judge in the Superior Court held that Endicott College was not liable for a student who got extremely drunk at a dorm party, and then assaulted three fellow students, leaving two with broken facial bones. After serving part of his four-year sentence for the assault and being paroled, the student brought suit against the college alleging that the college’s negligence caused his actions. The student argued that the college was liable in negligence for his actions under three theories: (1) social host liability (which applies to those who negligently serve alcohol to someone who later injures someone as a result of being intoxicated); (2) that the college had a “special relationship” with the student that imposed a duty of care to protect the student; and (3) that the school was negligent in supervising the student and preventing him from harming himself. The judge, assessing whether the college owed some duty of care to the student, determined that “No Massachusetts case . . . has ever determined that a special relationship exists between a college or university or its officials and its students that would impose a duty to protect students from the voluntary use of drugs or alcohol.”

The Massachusetts Legislature Should Update the Law on Evidentiary Privilege—to Protect Families

Published on: January 12, 2018 | by Ruth O'Meara-Costello

In addition to the many other changes contained in the criminal justice bills that have recently passed the Massachusetts House and Senate, criminal justice reform in the Commonwealth could include one additional significant change in the laws of evidence. The Senate’s bill includes a provision that would disqualify a parent from testifying against a minor child in most criminal cases. The effect would be to make parent/child communications generally legally private, much like confidential discussions between married people. As a lawyer who works often with families—and as a parent—I believe very strongly that this provision works a necessary change in the law and hope that the conference committee now working to create a uniform bill will include it. CONTINUE READING ›

Sessions’ New Marijuana Policy Is a Tweak, Not a Sea Change

Published on: January 8, 2018 | by David Russcol

Perhaps motivated by California’s legalization of recreational marijuana, which just became effective at the beginning of the year, Attorney General and longtime cannabis opponent Jeff Sessions recently issued a brief statement changing the Department of Justice’s approach to marijuana, even as support for marijuana legalization is hitting all-time highs. Over the course of the Obama Administration, Deputy Attorneys General David Ogden and James Cole had issued increasingly detailed and refined guidance, instructing U.S. Attorneys to take a largely hands-off approach to marijuana to the extent it was legal under state laws; federal authorities would focus on enforcing certain red lines such as sales to minors, use of weapons or violence, and interstate trafficking. With the clarity of these guidance memos, participants and investors in marijuana markets – first medicinal and, more recently in a few places, recreational – developed a comfort level that, as long as they carefully observed state requirements, the risk of federal prosecution was remote (even though there continued to be tension between state laws and the federal Controlled Substances Act). Now Attorney General Sessions has rescinded all of that guidance, sparking a blaze of consternation among industry observers. CONTINUE READING ›

Massachusetts House and Senate Agree on Some Aspects of Sweeping Criminal Justice Reform

Published on: December 27, 2017 | by David Russcol

Over the last few months, the Massachusetts Senate, and then the House, debated and passed bills that would make significant changes to the state criminal justice system, ultimately resulting in a more flexible and forgiving system, with a greater ability for those who have gone through the system but subsequently stay out of trouble to move on with their lives. Both chambers’ bills would crack down on certain specific offenses, such as increasing penalties for selling or trafficking in opioids like fentanyl, but reduce mandatory minimums and other penalties like those for non-violent drug offenses, sometimes retroactively. And both would take a less strict and punitive approach toward low-income defendants who cannot afford to post bail or to pay fines and fees. CONTINUE READING ›

Massachusetts Moves Toward New Law on College Sexual Assault

Published on: November 8, 2017 | by Naomi Shatz

On November 2, 2017, the Massachusetts Senate unanimously passed a bill that would dictate how colleges and universities in the Commonwealth must handle sexual assault allegations. As a mecca for higher education, with over 100 colleges and universities, Massachusetts could have been a leader in tackling campus sexual assault in a way that both protects the educational rights of victims of assault, and provides fair procedures to both victims and the accused. The bill that just passed, unfortunately, fails to achieve this goal.

The Senate’s final version of the bill more or less tracks the Obama-era guidance on sexual misconduct; guidance that was revoked by the U.S. Department of Education in September. Despite various individuals and groups (myself included) testifying to the Massachusetts legislature in April about the need for procedural protections for both the complainant and accused in these cases, the Senate bill focuses exclusively on the needs of complaining students, without providing procedural protections to both students that would enhance transparency and ensure that each student can adequately advocate for him/herself.