Boston Lawyer Blog

The Gender Wage Gap Persists, But There Are Legal Solutions to Pay Inequality

Published on: March 6, 2015 | by Ruth O'Meara-Costello

At this year’s Academy Awards, Patricia Arquette used the platform she gained as a Best Supporting Actress winner to speak about pay inequality, saying, “It is our time to have wage equality once and for all and equal rights for women in the United States of America.” Persistent gender discrimination in employment is a barrier to that goal, but for women who experience pay discrimination at work, there are a variety of possible legal remedies. This post explores some of the laws available to help address wage inequality under federal and Massachusetts law and outlines some of the ways that they do–and do not–protect female workers from unfair pay.

A federal law, the Equal Pay Act of 1963, 29 U.S.C. § 206(d), forbids employers from discriminating in the payment of wages on the basis of sex by paying employees of one sex less “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Equal pay is required even for employees whose jobs are not identical, so long as they are substantially equal. There are numerous exceptions to the equal pay requirement: an employer can justify unequal wages if it can demonstrate that the difference results from “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”

Police Can’t Search Your Car Because they See a Small Amount of Marijuana

Published on: February 27, 2015 | by David Duncan

The Supreme Judicial Court today, February 27, suppressed a search that was triggered by police observing “about an ounce” of marijuana in a car they had stopped for a broken headlight (Commonwealth v. Sheridan, No. SJC-11543). Following the decriminalization of marijuana possession in small amounts (under an ounce) by the voters, the SJC had held, in two earlier cases, that the smell of burnt marijuana, even coupled with other suspicious facts (such as the stop being in a high-crime area or furtive or nervous behavior by the person stopped), did not establish probable cause to search a vehicle.

In this case, the police saw the marijuana on the floor of the defendant’s van. The SJC found no difference between smelling marijuana, which gave no clue as to the quantity they might find, and seeing marijuana that they estimated to be a non-criminal quantity. In neither case did the police have probable cause to search based on evidence of a civil infraction.

Breastfeeding-Related Discrimination Should Be Protected By Law (Even if Men Can Lactate)

Published on: February 19, 2015 | by Emma Quinn-Judge

Angela Ames resigned from her position at Nationwide Mutual Insurance Company just three hours after she returned from maternity leave. Upon her return, she sought access to the company’s lactation rooms and was informed that she would have to wait three days for permission to use a room. She was also told that since none of her work had been completed during her maternity leave, she would have to complete eight weeks worth of work during her first two weeks back or face discipline. When she asked her manager to help her find a place to pump milk, the manager told Ames, “You know, I think it’s best that you go home to be with your babies,” handed Ames a piece of paper and a pen, and dictated what she should write in her resignation letter.

Ames resigned, and both a federal trial court and a federal appeals court threw out Ames’ discrimination case. These decisions relied in large part on the fact that Ames failed to stay in her job and fight the treatment she was receiving. The trial court, however, also concluded that lactation is not a pregnancy-related condition – and therefore not protected by the Pregnancy Discrimination Act – because some men can lactate. When the Supreme Court recently refused to hear Ames’ case, it was male lactation that attracted numerous headlines. The Supreme Court, however, was not asked to weigh in on male lactation. It was asked to consider whether the appeals court correctly assessed when an employee can hold an employer liable for forcing her to quit, and – as in the vast majority of cases that come before it – the Supreme Court declined to review the case.

In July 2014, well after the trial court issued its decision in Ames’ case, the federal Equal Employment Opportunity Commission (EEOC) made clear that lactation is a pregnancy-related medical condition and that treating an employee less favorably because she is breastfeeding is therefore discrimination. Likewise, harassing an employee because of her breastfeeding is illegal if the harassment is severe or pervasive. Any workplace policy or practice that singles out breastfeeding for less favorable treatment is discrimination because, the EEOC notes, breastfeeding is a condition that only affects women. It would, for example, violate Title VII, to permit an employee to use her break time for personal reasons, but to have a policy preventing her from pumping or expressing milk during her break time.

Amid Opposition, Massachusetts to Revise Rule for Criminal Pleas

Published on: February 12, 2015 | by Monica Shah

The Massachusetts Supreme Judicial Court (“SJC”) has issued extensive revisions to the rule governing criminal pleas, which will take effect on May 11, 2015. As I explain below, while the changes address a narrow issue, they impact criminal defendants because they further constrain what little judicial discretion is left in sentencing and reinforce the false premise that the prosecution and the criminal defendant enter into a plea bargain on equal terms.

Rule 12 of the Massachusetts Rules of Criminal Procedure governs judicial procedure for accepting a guilty plea and sentencing a defendant who has pleaded guilty. A criminal defendant may plead guilty to a charged offense with or without a plea agreement with the prosecution. However, when a criminal defendant decides to “plead out” or “take a deal,” that typically refers to the defendant agreeing to plead guilty in exchange for the prosecutor reducing the charge or requesting that the judge impose a recommended sentence or type of punishment, or both. If the plea agreement contains a recommended sentence, the defendant can join in the recommendation or reserve the right to object and request a lesser sentence or a different type of punishment.

“I Think What You Did Was Illegal”: Stops and Searches Based on Mistakes of Law

Published on: January 30, 2015 | by David Russcol

The Fourth Amendment protects against “unreasonable” searches and seizures, but what the courts consider “unreasonable” has evolved and shifted over time. One overarching trend over the last few decades is that police officers have been given significant leeway, and usually the benefit of the doubt, to stop and search individuals in various ways. Under federal law, police can search people and their property under warrants that turn out to be invalid, as long as they are acting in the good faith belief that the warrants are valid. The Supreme Court has held that police can validly arrest someone under a law that is later ruled unconstitutional. And police can stop or search someone whom they suspect of illegal activity, even, in some circumstances, if the suspicion was based on inaccurate or faulty information.

One common area where Fourth Amendment rights come into play is traffic stops. The police cannot stop a driver for no reason; such a stop must generally (with narrow exceptions such as sobriety checkpoints) be based on a reasonable suspicion that the driver has violated the law. However, courts routinely uphold stops under the Fourth Amendment when an officer’s attention is drawn to a car based on a hunch (or even racial profiling). A common police tactic is to follow a car until it commits some type of traffic violation or other infraction, and then use that as the basis to stop the car and make further inquiries. Courts have routinely refused to look past this gambit, holding that it is permissible to stop someone if there is in fact a traffic violation, no matter what the officer’s “real reason” for a stop was.

Commonwealth v. Gomes: The SJC’s New Jury Instruction on Eyewitness Identification Attempts to Protect Defendants While Recognizing the Ever-Changing Nature of Scientific Evidence

Published on: January 22, 2015 | by Naomi Shatz

On January 12, 2015 the Supreme Judicial Court (“SJC”) issued an opinion in Commonwealth v. Gomes holding that from now on juries must be instructed on scientific principles regarding eyewitness identification, and drafted a provisional jury instruction for judges to give until an official model instruction is developed. The decision is not retroactive, and did not apply to Gomes’s case itself. The case followed closely after two other SJC cases highlighting the fallibility of eyewitness identification.

The provisional jury instruction requires jurors to be told of five “generally accepted” scientific principles about eyewitness identification, based on a report issued by the SJC’s Study Group on Eyewitness Evidence:

Human memory does not function like a recording, but is instead a complex, multi-stage process.
An eyewitness’s expressed certainty about the identification may not indicate the identification is accurate, particularly if the witness previously expressed less certainty
Stress can negatively impact a witness’s ability to make an accurate eyewitness identification
Information that witnesses receive before or after making an identification can influence the witness’s memory and recollection of the identification
Prior viewing of the same suspect in identification procedures may reduce the reliability of the later identification of that suspect

ZDB of-counsel attorney Elizabeth Lunt told the Boston Globe that jurors misunderstanding the accuracy of eyewitness identification has been a problem “for years and years,” and that this decision will help jurors understand the scientific principles at hand.

The Supreme Judicial Court’s Opinion in “In the Matter of a Grand Jury Investigation” Offers Fleeting Protection on a Misreading of the Supreme Court’s decision in Fisher v. United States

Published on: January 15, 2015 | by David Duncan

On January 12, the Supreme Judicial Court issued an opinion, In the Matter of a Grand Jury Investigation, which held that a grand jury subpoena, issued to a law firm for a cell phone containing text messages or other communications that the Commonwealth contended were evidence of a crime, and which had been provided to the firm by a client for the purposes of providing legal advice, must be quashed, meaning the attorneys did not have to turn the cell phone and its contents over to grand jury. Though no names were mentioned it was widely reported that the phone belonged to Aaron Hernandez and the grand jury is deciding whether to charge him with murders in Suffolk County. He was the “target” of the investigation.

Three legal issues and their interplay decided the case, but they also left open an alternative route for prosecutors to seek documentary evidence belonging to a client but held by an attorney.

US DOJ Adds its Interpretation of Title VII to List of Federal Entities Recognizing Protection for Transgender Rights

Published on: January 12, 2015 | by Rachel Stroup

The United States Justice Department (DOJ) recently announced that it will interpret Title VII of the Civil Rights Act of 1964 as protecting transgender employees from discrimination in the workplace. In a December 15, 2014 memo to U.S. Attorneys, Attorney General Eric Holder stated that he has “determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.” The memo acknowledges that this interpretation constitutes an evolution of the DOJ’s thinking on the issue; as recently as 2006 the DOJ defended the Library of Congress’ decision to refuse to hire the most qualified candidate for a position upon learning that she was transgender. This interpretation should influence all actions taken by the DOJ, both through its U.S. Attorneys, who defend the United States when it is a party in civil suits, and through its Employment Litigation Section which enforces Title VII against state and local governments.

The DOJ’s new Title VII interpretation brings it in line with various other federal entities’ recent interpretations of federal anti-discrimination law. In 2011 the Office of Personnel Management issued a notice stating that the government’s policy of non-discrimination on the basis of sex in the federal workplace includes non-discrimination based on gender identity. In 2012 the Equal Employment Opportunity Commission (EEOC) held that discrimination on the basis of gender identity is a form of discrimination on the basis of sex. Most recently, in July of 2014 President Obama issued an executive order stating that discrimination based on gender identity is prohibited for purposes of federal employment and government contracting. Previously the Department of Education and the Department of Justice had already determined that Title IX, the federal law that prohibits discrimination on the basis of sex in education, applies to gender identity claims brought by students.

Crayton & Collins: Preventing Eyewitness Misidentification in Massachusetts

Published on: January 2, 2015 | by Zoraida Fernandez

“Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in 72% of convictions overturned through DNA testing.”

—Innocence Project.

Two cases recently decided on the same day by the Supreme Judicial Court (“SJC”) have made important strides in helping prevent wrongful convictions due to misidentification. In Commonwealth v. Crayton, the SJC excluded an in-court identification of the defendant where the witnesses were never asked to identify the defendant before trial. The Court also held that the in-court identification of the defendant in Commonwealth v. Collins should have been excluded where the witness had been unable to make a positive identification prior to trial.

To examine the importance of these recent cases, we should first explore why eyewitness identification evidence, while powerful evidence to juries, can be so unreliable that it can lead to the extraordinary rate of wrongful convictions noted above.

Change in Federal Law Regarding Marijuana Enforcement is Important for Massachusetts

Published on: December 23, 2014 | by Ruth O'Meara-Costello

A new federal spending law enshrines in statutory form the policy that federal agents will no longer seek to interfere with medical marijuana retail establishments in states where they are legal. As Massachusetts law with regard to marijuana possession and use continues to evolve, this change lessens the likelihood that Massachusetts residents will find themselves federally prosecuted for the sale or possession of marijuana for medical use. However, federal prohibitions on, and penalties for, possession of marijuana remain far broader and harsher than those under Massachusetts law, and the new provision affects only medical marijuana; Massachusetts residents therefore remain vulnerable to federal prosecution for conduct that is not criminal under state law.

Massachusetts law regarding marijuana possession has undergone major changes in the last few years. First, in 2008, voters passed a ballot question (question 2) decriminalizing (but not legalizing) possession (but not distribution or possession with intent to distribute) of less than an ounce of marijuana. In 2013, a second ballot question (question 3), legalizing the medical use of marijuana, also passed. There is currently a campaign seeking to put the question of legalization of marijuana for recreational use before voters in 2016.