Boston Lawyer Blog

Supreme Court Expands Protection Against Religion-Based Employment Discrimination

Published on: June 8, 2015 | by David Russcol

The Supreme Court has recently been quite receptive to litigants asserting their rights to religious freedom. (For Exhibit A, see Burwell v. Hobby Lobby.) On June 1, the Court in EEOC v. Abercrombie & Fitch applied that pro-religion perspective in the employment discrimination context and took a fairly strong stand against religion-based discrimination. The Court held that employers cannot hide behind facially neutral policies where religious practices are concerned. Rather, it stated that religious practices must be given “favored treatment,” and a failure to accommodate religious practices constitutes intentional discrimination under federal law, subjecting employers to damages.

In this case, a woman named Samantha Elauf applied for a job at Abercrombie & Fitch. She is a practicing Muslim and wears a headscarf. The assistant manager who interviewed her would have hired her, but was not sure whether the headscarf would violate a store policy against wearing “caps” while on the job. The assistant manager believed (correctly) that the headscarf was religious in nature, but did not ask Elauf whether she would need an accommodation. A district manager said that any headwear, religious or not, would violate the policy, and Elauf was not hired. A lower court found this discriminatory and awarded the EEOC (on Elauf’s behalf) $20,000 in damages. The Court of Appeals reversed, holding that, to be held liable on a failure to accommodate claim, the employer must have “actual knowledge” that the employee (or prospective employee) would need a religious accommodation.

New Protections for Massachusetts Domestic Workers, Part 2

Published on: May 29, 2015 | by Monica Shah

Note: This post is Part 2 in our series of blog posts detailing protections under the Massachusetts Domestic Workers Law. Click here to return to Part 1.

What are the Employer’s Notice and Record-Keeping Obligations?

The new law and proposed regulations also impose a number of record-keeping obligations on household employers.

Domestic workers are permitted to request a written evaluation of their work within three months of their employment and every year thereafter. If an employer completes a written evaluation, the worker has the right to review it and dispute its contents under Massachusetts’ personnel record law, M.G.L. ch. 149 s. 52C. In the event of a disagreement, the personnel records law requires an employer to either amend the evaluation or include the worker’s written response with the evaluation in his or her records and in any transmission to a third party of the evaluation. M.G.L. ch. 149 s. 52C.

New Protections for Massachusetts Domestic Workers, Part 1

Published on: May 29, 2015 | by Monica Shah

Earlier this spring, the Massachusetts Domestic Workers Bill of Rights Act took effect, providing expansive new protections and rights to individuals who provide household services, including childcare, housekeeping, housecleaning, cooking, and eldercare.

In the past, domestic workers have had informal and flexible arrangements with their household employers with respect to job description and duties, hours and rate of pay, rest and vacation time, and the grievance and termination process. This has created a potential for abuse particularly in cases involving domestic workers who are vulnerable due to immigration status or who lack the ability to advocate for themselves due to limited English skills. Until the passage of the new law, domestic workers have had only limited recourse in state and federal wage and hour laws, tort, and contract law to remedy wage violations or poor working conditions.

In Da Rosa v. City of New Bedford SJC Rolls Back Access to Public Records

Published on: May 22, 2015 | by Naomi Shatz

On May 15, 2015 the Supreme Judicial Court released its opinion in DaRosa & others v. City of New Bedford, Monsanto Company & others, addressing the question of how the work-product doctrine and public records laws interact when government entities are involved in litigation. The case has negative implications for those, like our firm, who routinely litigate against public agencies in employment and other matters. It also further undercuts the effectiveness of the already-weak Massachusetts Public Records Law.

In 1999, in a case called General Electric Company v. Department of Environmental Protection, the SJC held that privileged work-product materials are subject to disclosure under the public records statute unless they fall under one of the specific statutory exemptions listed in Mass. G. L.c. 4, § 7, Twenty-sixth. The court rejected the lower court’s reasoning that there is an implied exemption in the public records statute that covers work product. It noted that although the Federal FOIA law explicitly exempts from disclosure internal documents that would not be available to parties in litigation with the government agency, the Massachusetts public records law, although modeled after FOIA, did not contain that language, indicating the legislature intended to allow work-product to be considered a public record unless otherwise exempted by statute. As a practical matter, the General Electric opinion meant that litigants engaged in suits with the government could circumvent the work-product protection and obtain government documents via public records requests that they could not obtain in the normal course of discovery.

“Your Passport and Your Laptop, Please”: A Possible Limit on the Government’s Authority to Search at the Border?

Published on: May 14, 2015 | by David Russcol

Imagine you are at the airport, either about to get on or just having gotten off an international flight. While you are minding your own business, a Customs and Border Patrol agent comes up to you and demands to look inside the laptop bag over your shoulder. Perhaps this request is more or less random. Maybe the government suspects you of criminal activity in general. Or you might have been targeted based on your political activity. In any case, the agent does not have reasonable suspicion that you have contraband such as child pornography on your laptop. Nonetheless, the agent compels you to turn on your laptop, allow the agent to poke around your files, and when you refuse to decrypt your password-protected private data, the agent seizes your computer and sends it to a cyber-specialist for forensic analysis. You only get the laptop back seven weeks later with help from the ACLU. Have your Fourth Amendment rights been violated?

Until recently, the answer was fairly uniformly “no.” The Supreme Court has held that the government has wide authority and discretion to search just about anyone and anything at the border based on its interests in securing the border and national security. The relaxed restrictions on government action have led some on both the right and the left to brand the area around the border a “Constitution-Free Zone.” (In fact, the government has established border checkpoints 100 miles from the border or even farther, asserting the authority to stop and search people arbitrarily, even far from Canada or Mexico.) For example, the government does not need to give any justification for holding an individual at the border for an hour or two while a mechanic removes the gas tank of his car to search for drugs.

EEOC’s Litigation on Behalf of Transgender Employees Reveals Reach (and Limits) of Federal Anti-Discrimination Law

Published on: May 11, 2015 | by Ruth O'Meara-Costello

In September 2014, the EEOC filed its first employment discrimination lawsuits on behalf of transgender employees. (Rachel Stroup previously wrote about those suits, and related moves by the federal government to recognize antidiscrimination protection for transgender individuals, here.) The first of those suits, against an eye clinic, has settled; the clinic agreed to pay the employee $150,000 as well as to take specified proactive actions to avoid discrimination in the future. The second, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., is a suit pending in the Eastern District of Michigan on behalf of a transgender employee, Amiee Stephens, whose employer, a funeral home, allegedly fired her when she informed it that she was undergoing a gender transition from male to female and intended to dress in appropriate business attire as a woman. That case has just survived the defendant’s motion to dismiss. The Court’s reasoning should encourage employees who believe that they are experiencing discrimination due to transgender status to stand up for their rights, but it also reveals continuing gaps in federal discrimination law that Congress should act to remedy.

Massachusetts SJC Holds Search Unlawful Absent Showing of Probable Cause that Defendant Was Not Registered for Use of Medical Marijuana

Published on: May 1, 2015 | by Ruth O'Meara-Costello

The rapid liberalization of Massachusetts marijuana policy—including decriminalization of possession of less than an ounce of marijuana and legalization of medical marijuana—has had dramatic consequences for the Massachusetts law regarding search and seizure, offering even some defendants whose conduct has not become legal an unexpected avenue of defense. We have written here before about the Supreme Judicial Court’s holdings that neither smelling marijuana (in a necessarily unknown quantity), nor seeing marijuana in an amount estimated to be less than an ounce, constitutes probable cause for a warrantless search following decriminalization of possession of less than an ounce of the drug. The SJC has now made it clear that the medical marijuana ballot initiative, too, changes the landscape for law enforcement seeking to search for and seize marijuana. The Court’s April 27, 2015 decision in Commonwealth v. Canning held that following passage of that initiative, “a search warrant affidavit setting out facts that simply establish probable cause to believe the owner is growing marijuana on the property in question, without more, is insufficient to establish probable cause to believe that the suspected cultivation is a crime.” To be entitled to a valid warrant, the officer must also establish that the person responsible is not registered to cultivate the marijuana for medical use.

What Does It Take to Challenge a University’s Wrongful Disciplinary Decision Under Title IX?

Published on: April 24, 2015 | by David Russcol

Title IX is a federal law that bans gender discrimination in educational programs that receive federal funds (e.g., almost all college and universities). The Department of Education has interpreted Title IX to require schools to take swift and decisive action in response to complaints of sexual harassment or assault by or against students. In theory, Title IX requires schools to provide a “prompt and equitable” (that is, fair) process for deciding these cases, but in practice these processes are often heavily stacked against the accused student. Although students who are accused of sexual harassment or assault have tried to use Title IX to enforce their rights to a fair disciplinary process, courts have generally not been receptive and have often dismissed them at early stages. I will take a look at a recent decision on one such case and explore why that is.

In Doe v. Columbia University, a male Columbia student calling himself John Doe alleged that he had been wrongly suspended for sexual assault, in violation of Title IX and other laws. According to his complaint (which, at the earliest stage of a lawsuit, is essentially accepted as true), he ran into a female friend (Jane Doe) while studying one night. After taking a walk for an hour, they decided to have sex, and because their roommates were home (and Jane had dated John’s roommate previously), they decided to do so in the dorm bathroom. John waited in the bathroom while Jane got a condom from her room, they had sex, and John went back to his room.

Where is the line between teaching children independence and engaging in child endangerment and neglect?

Published on: April 16, 2015 | by Naomi Shatz

A number of recent news stories have demonstrated that around the country, parents and departments of child welfare are in disagreement about what activities are appropriate for children – and the states are taking steps to enforce seemingly draconian yet undefined rules on parents who leave their children unsupervised for any period of time. Last summer a South Carolina woman was arrested and her child was taken into state custody when she let her nine-year-old play alone in a park while the mother worked her shift at McDonald’s. Recently parents subscribing to a “free range parenting” philosophy were investigated and found responsible for unsubstantiated neglect after letting their ten and six-year-olds walk home from a park together. A few months later, the children were picked up a second time and a new investigation was opened.

Not surprisingly many states do not actually have laws to guide parents as to what the state considers appropriate versus neglectful parenting. Those that do have widely varying requirements. In California, for example, no child under 6 can be left alone unsupervised in a car, but only if the car is on, the keys are in the ignition, or when there are circumstances that present a risk to the child’s health and safety. In Hawaii no child under the age of 9 can be left unsupervised in a car for five minutes or longer. States also range dramatically in the age they give as law or guidance on when a child can be left home alone: Colorado recommends children not be left alone before they are 12, Kansas thinks they are ready at 6, and Illinois prohibits by law leaving children home alone until age 14. There don’t appear to be any rules or regulations about other independent activities children might engage in, although the cases in Maryland and South Carolina indicate that state agencies and courts might apply the laws relating to leaving children alone in homes and cars to letting children do other activities without supervision.

Massachusetts’ Expanded Parental Leave Law Provides Equal Parental Leave to Men and Women and Increases Protections for Employees Who Take Leave

Published on: April 7, 2015 | by Emma Quinn-Judge

Massachusetts’ expanded parental leave law, An Act Relative to Parental Leave, goes into effect today. The revised statute makes several significant changes to state law. First, it removes any doubt about whether men are entitled to leave. The amended law is gender neutral: men and women who work for employers with six or more employees are entitled to the same parental leave. Employees who have completed an initial probationary period – as set by the employer, but not to exceed three months – are entitled to 8 weeks unpaid parental leave. An employee who intends to take leave under the statute must provide 2 weeks’ notice of his or her anticipated departure date and intention to return, or provide such notice as soon as practicable if the reason for delay in providing notice is beyond the employee’s control. An employee who takes leave under the statute must be reinstated to the same position or a similar position, meaning one that is comparable in terms of factors such as status and pay.

The second major change in the law clarifies when an employee is eligible for reinstatement. While the state law mandates at least 8 weeks of unpaid leave, many employers offer benefits that exceed the minimum provided for under the state statute. In 2010, the state’s highest court concluded that an employee who took more than the eight weeks leave provided for in the statute was not covered by the law’s reinstatement requirement. The amended parental leave act clarifies that an employee is entitled to reinstatement unless the employer informs the employee – in writing, before the start of the employee’s leave and before any subsequent extension of that leave – that taking more than 8 weeks leave will result in denial of reinstatement or the loss of other rights and benefits. In other words, the default is that employees are entitled to reinstatement and an employer who wishes to exclude an employee from this provision of the law must make its intention to do so clear.