New MCAD bill filed

February 23, 2017:- If you are charged with discrimination and you file a motion to dismiss for lack of jurisdiction, must the Massachusetts Commission Against Discrimination (MCAD) rule on your motion before launching an investigation? No, not at present. But that will change if H. 775 becomes law.

Titled “An Act Streamlining the Investigation Process of Discrimination Complaints,” the bill would require the MCAD to adjudicate a respondent’s motion first and start its investigation only if it determines that jurisdiction is proper.

Why does this matter? The main reason is the constitutional principle of the separation of powers: an executive agency should not hale people in if the Legislature has said it should not. For example, when it enacted Chapter 151B the Legislature said that the MCAD would have no jurisdiction to investigate businesses with fewer than six employees (the small-business exemption). So when the MCAD does investigate businesses with fewer than six employees it is, in effect, exercising the legislative function by re-writing the statute.

But there are pocket-book reasons too. Defending against a charge of discrimination can prove costly, which rather stacks the deck in favor of the complainant who is represented either by a lawyer working on a contingent-fee basis or by the MCAD itself. Add to that the MCAD’s institutional bias toward early resolution (which is not necessarily a bad thing) and you have an incentive for respondents to fold faster than Superman on laundry day, as Jerry Seinfeld put it.

As things stand a respondent will be tempted to settle at a commission-mandated conciliation conference early on, even if the case should never have been on the agency’s docket in the first place. Real money is at stake here, and business owners should not have to fork over for claims that should be thrown out on jurisdictional grounds. That is not an efficient use of resources. Screening out cases like these would allow businesses to devote those resources to other purposes, e.g. improving products and services to benefit their customers and creating new jobs.

The bill has been assigned to the Joint Committee on the Judiciary. Stay tuned for updates, and click here for a previous post on this subject.

Peter Vickery, Esq.

Free speech victory for enviro bloggers

February 14, 2017:-Today the highest court in Massachusetts marked St. Valentine’s Day  by demonstrating its love for free speech.

The question was this: If bloggers accuse a scientific consulting company of fraud, questionable ethics, and intentionally manipulating findings, may the company sue the bloggers for defamation? The answer: No, not in Massachusetts, at least not if the company is providing expert testimony in high-profile litigation.

In a case connected to the Deepwater Horizon explosion and oil spill, the Supreme Judicial Court (SJC) considered the defamation complaint one of BP’s experts, Chemrisk, had brought against two environmental activists. The activists wrote that Chemrisk had engaged in fraud and “intentionally manipulated findings.” Relying on the anti-SLAPP statute, they had asked a lower court to dismiss Chemrisk’s lawsuit. The  lower court denied the motion, but the SJC essentially overturned that denial and, to boot, awarded the activists their costs and legal fees. To read the SJC decision, click here.

The anti-SLAPP statute protects defendants not only in directly petitioning governmental bodies, but also in making “any statement reasonably likely to enlist public participation” in that petitioning effort effort. According to the SJC, the activists’ blog post was “part of [their] ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and closes with an implicit call for its readers to take action.”

Today’s decision represents a very welcome victory for freedom of speech.

Peter Vickery, Esq.

Speed-up at MCAD

February 9, 2017:- Earlier this month the Massachusetts Commission Against Discrimination (MCAD) announced a significant cut in its backlog of cases.

In 2016, the agency substantially reduced the number of cases that were more than 2 years old. Of the 3,811 investigations currently open at the MCAD, just 318 remain over 2 years old, down from 1,134 in 2015, a reduction of 72%.

Approximately 3,000 new complaints are filed with the MCAD every year, so the dramatic reduction in the old cases is quite an achievement. Complainants and respondents alike should hope that the agency manages to maintain this level of efficiency.

Peter Vickery, Esq.


New harassment enforcement guidelines

February 3, 2017:- The Equal Employment Opportunity Commission (EEOC) is soliciting public comment on its proposed new Unlawful Harassment Enforcement Guidelines. You can read the guidelines and comment on them here.

One item that employers should note: Harassment of a “transgender individual ” can include “using a name or pronoun inconsistent with the individual’s gender identity in a persistent or offensive manner.”

The word “or” means that the use of the pronoun/name need only be offensive, and not necessarily persistent, in order to qualify as harassment under these enforcement guidelines.

Peter Vickery, Esq.



Hospital settles with flu vaccine refuseniks

May a hospital fire employees who refuse the flu vaccine on religious grounds? Saint Vincent Health Center in Erie, Pennsylvania, must have thought so back in 2014 when it terminated the employment of six vaccine refuseniks, but now that it has agreed to shell out $300,000 in back-pay and compensatory damages it probably realizes that the short answer is no. The Equal Employment Opportunity Commission (EEOC) press release states:

“While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer’s Title VII duty to provide reasonable accommodation for religion… In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer’s operations.”

Last year I wrote an article about Boston Children’s Hospital fending off a discrimination complaint after it fired an employee who had refused the flu vaccine on religious grounds. The judge found that the hospital had offered reasonable accommodations and the accommodation that the employee requested would have imposed an undue hardship on the hospital.

The lesson for health-care providers?  If employees object to the vaccine on religious grounds, work hard with them to devise some reasonable accommodations and document those efforts carefully and thoroughly.

Peter Vickery, Esq.

Five minutes to shake up the status quo?

President Reagan had this to say about the status quo: It’s Latin for “the mess we’re in.”

Wouldn’t it be great if we shook up the status quo here in Massachusetts by starting to roll back the regulatory state?

Representative Peter Durant (R-6th Worcester) is sponsoring a bill to do just that. It’s called “An act streamlining the investigation process of discrimination complaints” (HD 133) and it would bring a much-needed reform to the Massachusetts Commission Against Discrimination (MCAD).

And that’s the reason for this request. I am asking you to call or email your state representative and ask him/her to co-sponsor the bill. The deadline for signing on as a co-sponsor is Friday, February 3, by the way.

We’re trying to solve a real problem here. Running a small business is hard enough without having to deal with unfair charges of discrimination. But as a report by the State Auditor showed, the MCAD routinely investigates cases that are outside its statutory remit. This not only contributes to the agency’s four-year backlog, but is also fundamentally unfair to the individuals who are haled in and investigated without justification. Click here for my article on the subject in the Massachusetts Bar Association’s Lawyers Journal.

The goal of Representative Durant’s bill is simple: To ensure that the MCAD only handles cases where it actually has jurisdiction.

That’s pretty reasonable, wouldn’t you agree?

The bill would not take away anybody’s rights, and it would not make it harder for people to file discrimination complaints. It would simply require the MCAD to investigate a complaint if — and only if — it has the legal authority to do so.

The bill even puts the onus on the respondent (the person being accused of discrimination) to apply the brakes. A respondent would have to file a motion to dismiss in order to stay (i.e. pause) the investigation until the MCAD determines that it does, in fact, have jurisdiction.

That’s even more reasonable, isn’t it?

Now we need co-sponsors. Building a strong list of co-sponsors will send a message that the measure has broad support among politically engaged and active citizens — citizens like you.

So would you set aside just five minutes today to make one phone call or (if you prefer) send one email?

If you don’t know the name of your state representative, go to malegislature.gov, click “Find Your Legislators” on the left side of the page, and fill in your address. When you see your representative’s picture, click the name and the contact details will appear.

Then please call your representative’s State House number or send an email.

Tell the aide that you are a constituent and you want your representative to consider sponsoring “An act streamlining the investigation process of discrimination complaints” (HD 133) sponsored by Representative Peter Durant. Close by thanking the aide for their time and for the representative’s consideration. And that’s it!

So will you set aside five minutes to help shake up the status quo?

Thank you.

— Peter

P.S.  Just in case you want to know exactly what the bill says, here is the text in full:

“SECTION 1.  The second paragraph of section 5 of chapter 151B as appearing in the 2014 Official Edition is hereby amended by inserting after the first sentence the following:- If within 21 days of service of the complaint a respondent files a motion to dismiss for lack of jurisdiction such a motion shall act as an automatic stay of the investigation pending the adjudication of the motion.  The investigation shall not resume unless and until the commission determines that it has jurisdiction.”

Peter Vickery, Esq.