Boston Lawyer Blog

Substantial Statistical Disparities in a Workforce Do Not Justify Gender-Based Hiring Policies

Published on: August 4, 2015 | by Emma Quinn-Judge

On Friday, the Supreme Judicial Court reminded the Boston police department (“BPD”) that it cannot give women a special hiring preference and thereby discriminate against men simply because there are woefully few women in the department. Sean Pugsley sued for discrimination after the BPD deliberately bypassed its main certification list for hiring in order to hire twenty-eight women. In Pugsley v. Police Department of Boston, the SJC struck a delicate balance, leaving intact the BPD’s hiring decision while criticizing the BPD for the manner in which it conducted its hiring. Specifically, the SJC dismissed Pugsley’s case, holding that he had no right to sue (or, to be technical, he had no standing) because he was so far down the BPD’s hiring list that he could not show anything more than a speculative injury.

The case arose from a hiring process that began around March 2010. The BPD hires candidates by considering the following groups in order. First, it may consider any qualified cadets (up to thirty-five or one-third of a Boston police academy class). Then the department turns to a “main certification” list. Top priority on the certification list goes to candidates for “reemployment” – meaning, generally, anyone who has been laid off from the police department. The next category is for those with a preferred hiring status, such as veterans. The remainder of the list ranks all other individuals based on their scores on the most recent civil service exam. Pugsley was the top candidate in this last category; however, because of the other preferences, he ranked 214 on the main certification list.

Seventh Circuit’s Blagojevich Decision Upholds Conviction, But Condemns Prosecutorial Overreach

Published on: July 23, 2015 | by Ruth O'Meara-Costello

As anyone who wasn’t living under a rock in December 2008 is aware, Rod Blagojevich, then-Governor of Illinois, was arrested in that month and charged with committing numerous federal crimes. He was ultimately convicted of 18 of those charges—1 by the jury at his first trial, which was unable to reach a verdict on the remaining charges, and 17 at his second. The case has garnered significant legal debate with many legal commentators, including ZDB’s of counsel attorney Harvey Silverglate, questioning whether he had been singled out for prosecution for political business-as-usual. On July 21, 2015 the Seventh Circuit Court of Appeals issued its decision in the case, upholding the bulk of the convictions, but vacating the guilty verdicts on certain counts because the jury instructions could have allowed the jury to convict without any evidence that Blagojevich did more than engage in ordinarily political deal-making.

The charges that received the most attention in the press are also those which consumed the bulk of the Seventh Circuit’s analysis. After Barack Obama won the presidential election in 2008, Blagojevich, as the Governor of Illinois, was entitled to appoint someone to his vacated Senate seat. As the Seventh Circuit put it, Blagojevich “viewed the opportunity to appoint a new Senator as a bonanza,” and sought favors in return for the appointment from two different groups. First, he approached Obama, suggesting that he would appoint Valerie Jarrett in exchange for an appointment to the Cabinet, for Obama’s assistance in getting a lucrative job at a foundation after his term as Governor, or for a $10 million donation to a new organization he would control. Second, he approached supporters of Jesse Jackson, Jr., and offered to appoint Jackson in exchange for a $1.5 million campaign contribution. The Seventh Circuit had no trouble concluding that this second set of negotiations violated federal law, nor in condemning various other actions that Blagojevich took, unrelated to the Senate seat, as illegal. However, it viewed the evidence regarding Blagojevich’s negotiations regarding Jarrett’s possible nomination differently, concluding that while exchanging the seat for “a private-sector job, or for funds that he could control” would be illegal, a request for a position it the Cabinet in exchange for the appointment would not violate any of the various federal statutes that prosecutors invoked.

Commonwealth v. Bastaldo: Endorsing the Use of Scientific Information on Eyewitness Identification, the SJC Wades in to the Fray on How to Define Race and Ethnicity

Published on: July 8, 2015 | by Naomi Shatz

Six months ago we wrote about the SJC’s recent cases grappling with the fallibility of eyewitness evidence in criminal cases, and the provisional jury instructions the Court had drafted on this topic. Two weeks ago, the SJC again tackled the issue of eyewitness identification in Commonwealth v. Bastaldo, and revised the provisional model instructions with respect to cross-racial identifications.

In Bastaldo, the defendant was accused of assaulting the bouncer at a nightclub. The defendant identified himself as a “dark-skinned Hispanic of Dominican descent,”[1] and the SJC determined that he had “black” skin. He was identified in court by three witnesses: two self-identified as Caucasian, and one – the victim – was of Puerto Rican and Italian descent and self-identified as Hispanic. The SJC determined that this last witness had “brown” skin. The defendant requested an instruction on cross-racial and cross-ethnic eyewitness identification. The Commonwealth opposed the motion, arguing that at most the evidence suggested the witnesses may have had different ethnic backgrounds than the defendant, and that if any instruction were given it should not apply to the victim because he, like the defendant, was Hispanic. The trial judge declined to give a cross-racial or cross-ethnic identification instruction.

The provisional model jury instructions set forth in Commonwealth v. Gomes stated that “if witness and offender are of different races” the court should instruct the jurors that “research has shown that people of all races may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race.” Because Bastaldo’s case was tried before the Gomes opinion was released, the Court determined that no cross-racial identification instruction had been required, and the trial judge had not erred in denying Bastaldo’s request for one. The Court, however, went on to modify the provisional model jury instructions set forth in Gomes to “direct that a cross-racial instruction be given unless all parties agree that there was no cross-racial identification.”

Recent Supreme Court Decision in Johnson v. United States Should Prompt Changes Beyond the ACCA

Published on: July 3, 2015 | by David Duncan

The federal Armed Career Criminal Act (ACCA) provides for an enhanced penalty, a mandatory minimum 15 year sentence, for felons possessing firearms who have previously been convicted of a combination of three serious drug offenses or “violent felonies.” Congress defined “violent felonies” in three ways: 1: crimes which have as an element use of force or the threat or attempt to use force against another; 2: arson, burglary, extortion or any crime that involves the use of explosives; and 3: any crime that “otherwise involves conduct that presents a serious potential risk of injury to another.” 81 U.S.C. § 924(c)(2). The last definition is known as the “residual clause” and it has been the subject of five Supreme Court decisions since 2007. In the most recent, Johnson v. United States, decided last week, the Court finally threw in the towel on attempting to construe this provision and held that it was unconstitutionally vague. In Johnson, the lower courts had held that Johnson’s prior conviction for possession of a sawed-off shotgun qualified as a “violent felony” under the residual clause. Initially the Supreme Court granted certiorari only to determine whether that offense qualified as an ACCA “crime of violence.” After argument on this narrow issue, however, the Court asked for supplemental briefing and argument on the constitutionality of the residual clause and eventually decided the broader, constitutional issue, holding that the clause was so vague that it violated due process.

So, as of June 26, 2015, there are only two definitions of “violent felony” that can serve as predicates for the enhanced ACCA mandatory minimum sentence: either the predicate offense must have as an element of the offense the use, threat of use or attempted use of force, or it must be arson, burglary, extortion or an offense involving explosives.

The federal Sentencing Guidelines, which provide for substantially increased sentencing ranges for so-called “Career Offenders,” may and should also be affected by Johnson’s holding. A defendant over 18 can be sentenced as a Career Offender for any two prior convictions of a “crime of violence or controlled substance offence” – a far larger population of defendants than those charged for being felons in possession of a firearm. U.S.S.G. §4B1.1(a). Because the definition for “crime of violence” is the same as the ACCA definition of “violent felony,” the First Circuit has construed them identically, such that precedent as to the ACCA definition is generally applicable to the Guidelines definition, and vice-versa. See, e.g., U.S. v. Williams, 529 F.3d 1, 4 n.3 (1st Cir. 2008) (authority interpreting one “generally persuasive” in interpreting the other); U.S. v. Almenas, 553 F.3d 27, 34 n.7 (1st Cir. 2009) (ACCA and Guidelines definitions read “in pari passu”).

Are Courts Becoming More Willing to Review Excessive Force Claims?

Published on: June 29, 2015 | by Emma Quinn-Judge

Over the last few weeks, in the midst of our ongoing national discussion about law enforcement use of force, both the Supreme Court and the Massachusetts Supreme Judicial Court (“SJC”), in Kingsley v. Hendrickson and Commonwealth v. Asher, have joined the conversation with decisions reviewing use of force incidents. While these two recent cases are very different in that they address distinct areas of the law and distinct factual contexts for the use of force, they share at least one striking similarity: in both Kingsley and Asher, the high courts give no deference to claims by law enforcement officers that their use of force was reasonable. Instead –and in contrast to the many other decisions where courts have shown a troubling willingness to rationalize even the use of deadly force by law enforcement – these recent decisions suggest that in certain cases courts may now be willing to engage in a more careful review of law enforcement action.

In Kingsley v. Hendrickson, a decision issued Monday, June 22, 2015, the Supreme Court assessed what a pretrial detainee alleging that jail officers used excessive force against him would need to show to prove that the force used was unreasonable. Michael Kingsley was arrested in Wisconsin on a drug charge and detained in a county jail pre-trial. During his detention Kingsley refused multiple requests by officers to remove a piece of paper covering the light fixture above his bed. When officers eventually came to his cell to remove the paper, Kingsley refused to comply with their directions. He was removed from his cell, handcuffed, and placed face down on a bunk with his hands behind his back. An officer then placed his knee in Kingsley’s back. According to Kingsley, that officer and another officer slammed Kingsley’s head into the concrete bunk. (The officers denied this specific allegation.) All parties agree that Kingsley – who was still handcuffed with his face on a bunk – was then stunned with a taser to the back of the head for approximately 5 seconds.

Massachusetts Appeals Court affirms free speech restrictions on harassment prevention orders

Published on: June 22, 2015 | by Ruth O'Meara-Costello

In 2010 the Massachusetts legislature made a significant change in the law when it created harassment prevention orders, restraining orders that plaintiffs can seek to protect themselves against harassing behavior regardless of their relationship to the harasser. (Before 2010, people seeking restraining orders in Massachusetts could receive protection only under an abuse prevention order, available only against abusers who are “family or household members” of the plaintiff seeking the order, a definition which includes anyone with whom the plaintiff has been in a serious dating relationship or with whom she has a child.) Because the harassment prevention law is relatively new, the state courts are still refining when these orders are and are not available. In the cases interpreting the law, it has become clear that the courts are struggling to strike a balance between protecting victims of real harassment from harm and unduly restricting free speech.

In a new decision issued this month in the case of Petriello v. Indresano, the Massachusetts Appeals Court has given courts considering whether to issue harassment prevention orders some important guidance, which should guide those seeking (or defending against) such orders going forward. The plaintiff in the case was an elderly woman’s representative acting under a power of attorney, seeking a restraining order against members of her deceased husband’s family. The plaintiff’s representative testified at the hearing, describing “constant . . . belittling, abuse.” The elderly woman had to go to the hospital due to apparent distress related to this conduct, and an outside investigation substantiated allegations of elder abuse against her. The district court issued a harassment protection order.

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.