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Posts tagged ‘discrimination’

Speed-up at MCAD

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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.

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Peter Vickery, Esq.

 

OK to exclude gay men, says MCAD

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Must a charity that offers free reconstructive surgery to female victims of domestic violence also provide those services to a gay man? No, said the MCAD in a decision last September. Only two months earlier the Legislature and Governor had prohibited places of public accommodations from excluding men from women’s restrooms and locker rooms, so you might think the case would have grabbed the odd headline, but apart from this Mass Lawyers Weekly article it received surprisingly little media attention.

The respondent was the R.O.S.E (Regaining One’s Self Esteem) Fund, a non-profit that seeks to help women who are the survivors of domestic violence. In 2008 it declined to extend its services to Kevin Doran, whose male partner had assaulted him, leaving him with broken teeth and facial bones. With the support of Gay & Lesbian Advocates & Defenders (GLAD), Mr. Doran argued that the ROSE Fund is a place of public accommodation and that by turning him away it had violated the Massachusetts anti-discrimination laws.

In 2014 an MCAD hearing officer ruled in favor of the ROSE Fund, finding that the organization was not a place of public accommodation. In its appeal brief GLAD said the decision meant that “ROSE can now discriminate not only against men, but also on the basis of race, national origin, religion, sex, sexual orientation, and disability as well.”

Nevertheless the full three-member Commission upheld the 2014 decision on First Amendment grounds:

“The U.S. Supreme Court has recognized the venerable history of the public accommodation laws in Massachusetts, but when applied to expressive activity, the laws may not act to compel certain speech in violation of the First Amendment.”

For that reason, the Commission held that “a private charity set up with the express purpose of serving a narrow community may be allowed to make choices about whom to serve, based on the purpose of the organization and consistent selection criteria.”

This is a very narrow ruling. The MCAD limits its First Amendment expressive-activity exception to a thin sliver of entities: tax-exempt corporations set up to serve a “narrow community,” as opposed to regular businesses and individuals who do not have tax-exempt status and cater to the general public.  The decision sits awkwardly alongside expressive-conduct cases from other jurisdictions such as Elane Photography (photographers fined for refusing to photograph same-sex commitment ceremony) and Barronnelle Stutzman (flower arranger fined for refusing to design arrangement for her friend’s same-sex wedding). In those cases, the fact that the defendants’ businesses consisted of expressive activity did not exempt them from the legal obligation to provide their services at same-sex weddings. If those are not examples of the state “compelling certain speech” I don’t know what is.

And as for why tax-exempt corporations should have greater free-speech rights than the rest of us, that is not something the MCAD’s Doran decision addresses.

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Peter Vickery, Esq.

Tick, tock: Justice delayed

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Invidious discrimination does occur, and we are fortunate to have an agency tailor-made to address it, namely the Massachusetts Commission Against Discrimination (MCAD). But the current four-year backlog of cases at the MCAD is hurting litigants on both sides, employers and employees alike. Justice delayed is justice denied, as the saying goes. And most reasonable people would agree that the MCAD should not handle cases outside its jurisdiction.

So what should we do about the problem? Check out my article in the current edition of the Massachusetts Bar Association’s Lawyers Journal by clicking here.

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Attorney Peter Vickery

New MCAD guidance on transgender discrimination

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September 1, 2016:- Employers take note: In compliance with the Act Relative to Transgender Discrimination that Governor Baker signed into law in July, earlier today the Massachusetts Commission Against Discrimination (MCAD) filed with the Clerk of the House of Representatives its Gender Identity Guidance. Much of the document is old, a restatement of the MCAD’s 2015 Advisory, including the “best practices” e.g. “update personnel records, email systems, and other documents to reflect [an] employee’s stated name and gender identity, and ensure confidentiality of any prior documentation of an employee’s pre-transition name or gender marker.”

But the section of the Guidance regarding proof of gender identity and restrooms (Part III. D) is new. Readers will recall that the statute requires that employers allow employees and members of the public to use the restroom “consistent with their gender identity.” The Guidance states that “[r]equiring an employee to provide identification or proof of any particular medical procedure (including gender affirming surgery) in order to access gender designated facilities, may be evidence of discriminatory bias” (emphasis added).

This is important to note because an earlier part of the Guidance (III. A: Definition of Gender Identity) states that when it investigates claims of discrimination the MCAD may look at “medical records from medical or other professionals involved in the treatment or transition of the individual seeking, in the process of, or who has completed gender transition.”

In a nutshell: When an employee files a discrimination claim against the employer the MCAD can consider evidence of a medical procedure, but ahead of time — unless it wishes to invite an MCAD investigation — an employer must not ask an employee for proof of any particular medical procedure.

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Peter Vickery, Esq.

No sex please, we’re Bay Staters

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July 22, 2016:- When Governor Baker signs into law Senate Bill 2199, titled “An Act to Establish Pay Equity,” Massachusetts employment law will un-define (not merely re-define) an important word. Here is the text of the very first section of the bill:

Section 1 of chapter 149 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out the definition of “Woman”.

So, farewell “woman,” a word that the statute used to define as “a female eighteen or over” but now does not define at all.

And farewell “sex,” too. Out with the hackneyed old phrase “no employer shall discriminate in any way in the payment of wages as between the sexes,” and in with the new: “No employer shall discriminate in any way on the basis of gender in the payment of wages.”

Pondering the replacement of sex with gender, and mulling over one of the other laws enacted this session, An Act Relative to Transgender Discrimination, which prohibits discrimination in public accommodations on the basis of gender identity, I see the potential for some mischief.

Could an employer charged with discriminating on the basis of gender raise the defense that the gender of her employees is information to which she is not privy? After all, gender is a matter of identity not physiology. I know this because I just read it in the relevant statute (clause 59, if you’re curious), which tells me in pertinent part:

“Gender identity” shall mean a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.

Got that? Gender identity means “gender-related identity, appearance or behavior.” If you are not satisfied with that definition and worry about the challenges of establishing gender identity in the courtroom, fear not; the Legislature recognized the need for greater clarity as to “when and how gender identity may be evidenced” and saw the need for guidance. In addition to having a stab at it themselves (the statute says that litigants may offer any of the following: “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity”) lawmakers delegated the task of crafting said guidance to the Attorney General and the Massachusetts Commission Against Discrimination. They are due to report to the Legislature by September 1, 2016.

In the meantime, what do we know? Well, we have replaced wage discrimination on the basis of sex (a matter of physiology) with wage discrimination on the basis of gender (a matter of identity). Of course, how a person “identifies” is not always obvious, and some think it shows rather poor manners to ask. So in the inevitable litigation, I can imagine a cross-examination of an employer along these lines:

Q. Does your employee Valery earn more than your employee Valerie for comparable work?

A. Yes.

Q. What gender is Valery?

A.  I don’t know.

Q. What about Valerie?

A. No idea.

Goodbye woman, goodbye sex. Hello protracted litigation.

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Attorney Peter Vickery

 

 

 

 

 

Commission creep: discrimination agency asserts jurisdiction in late-filed cases

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July 1, 2016:-  The term “mission creep” refers to a military operation that gradually expands beyond its stated objectives. A new report provides evidence of a government commission repeatedly extending its reach beyond the parameters laid out in its statutory remit, a phenomenon I hereby dub “commission creep.”

The State Auditor has published an official report on the Massachusetts Commission Against Discrimination (MCAD) and in addition to revealing the usual, garden-variety problems that bedevil state agencies (e.g. mismanagement, inefficiency,  and poor book-keeping) it confirms a long-harbored suspicion: The MCAD asserts jurisdiction where it has none. This matters not only to the small business owners who find themselves the target of costly investigations that drag on for years, but to all citizens who expect public servants to abide by one of the bedrock principles of constitutional government, namely the separation of powers (see Article 30 of the Massachusetts Constitution).

Despite clear statutory language confining its jurisdiction to cases filed within 300 days of the last allegedly discriminatory act, the Commission investigates cases filed after the deadline. And it does so on a scale that suggests something more than ineptitude, no mere unfortunate series of oopsy daisy events.

So that readers may judge for themselves, here is the text of the statute (section 5 of chapter 151B of the General Laws) in words as clear and unambiguous as the English language permits:

Any complaint filed pursuant to this section must be so filed within 300 days after the alleged act of discrimination.

The word must falls into the category of words legislative drafters call mandatory, as opposed to precatory or hortatory. In the vernacular, it is hard not mushy.

Nevertheless, the State Auditor’s report (p. 11) reveals that in the three-year period of the audit (2012-2015) the MCAD processed at least  123 separate cases where it lacked subject matter jurisdiction because the applicable statute of limitations had run its course:

[D]uring our audit period, MCAD accepted 123 complaints beyond the 300-day timeframe for complainants to file their complaints. MCAD regulations allow for this 300-day timeframe to be extended under certain conditions, but there was no documentation in the case files to substantiate that any of these complaints met those conditions.

I cannot tell whether the auditors independently identified the 123 cases or simply made note of the instances where the MCAD itself had determined that it lacked jurisdiction on the basis of the limitation period. If the latter, then the determination would have come at the end of the MCAD’s investigative phase, the point at which the Commission issues a Lack of Probable Cause (LOPC) finding. On average that point now arrives four years — yes, four years — after the filing of the complaint. In the meantime MCAD investigators will have required the employer to devote hours responding to questions and demands for internal documents and to attending “investigative conferences” at the agency’s offices.

Either way, this is an extraordinary finding on the part of the State Auditor. The 300-day deadline is not some off-the-cuff recommendation or flexible guideline but a statutory limitation. The Legislature decided that the deadline for filing a discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD) is 300 days, and only the Legislature can amend a statute. By flouting the limitation period so often, the MCAD has arrogated to itself the power to legislate, a power the Massachusetts Constitution expressly reserves to the legislative branch.

The report bears out something I have suspected for some years, i.e. that the MCAD investigates cases where it clearly lacks jurisdiction. Because of my experience with the MCAD, after the 2014 gubernatorial election I sent the incoming Baker-Polito administration a proposal that would remedy the problem, and the associated problem of the MCAD improperly asserting jurisdiction over employers with fewer than six employees (another statutory limit on the MCAD’s jurisdiction called the “small-business exemption”). My proposal is this:

If a respondent files a motion to dismiss for lack of jurisdiction, the MCAD shall suspend its investigation until it has adjudicated the motion.

The proposal does not require action on the part of the Legislature. With a nudge from the Governor the Commissioners could make it happen via a simple amendment to the MCAD’s regulations, with proper notice and comment. Under my proposal, the MCAD would have to deal with the threshold matter of jurisdiction before putting the employer to the expense of a full-blown, years-long investigation.

I submitted this suggestion back in January 2015.  In view of the State Auditor’s findings, I shall re-send it.

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Peter Vickery, Esq.

SJC: unintentional housing discrimination unlawful

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April 13, 2016:- From now on, developers can be sued for housing discrimination in Massachusetts even if they did not intend to discriminate and complied with all applicable laws.

In a major decision, the Supreme Judicial Court (SJC) held that “a disparate impact claim is cognizable even if a defendant who is a private owner adheres to statutory, regulatory, and contractual obligations.”  The case is Burbank Apartments Tenants Association v. Kargman and it is consistent with Justice Kennedy’s majority opinion in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.  Like SCOTUS, the SJC rationalized its decision by analogizing to employment law: “[W]e conclude from our employment discrimination precedent that… [the disparate impact] theory of liability is cognizable under G.L. c. 151B, §§ 4(6), (7), and (11).”

For my earlier post on the subject, click here.

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Peter Vickery, Esq.

Older, white man wins discrimination case

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Springfield, Mass. :- It doesn’t happen every day, or very often at all for that matter, so this case merits a mention. An employer terminated a 64-year old, White, male employee in favor of hiring a “younger more aggressive sales person who spoke Spanish and understood Latino culture.”  The older White man sued for age and ethnicity discrimination and won.

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A hearing officer at the Massachusetts Commission Against Discrimination (MCAD) ordered the company to pay $11,100.00 in lost wages and $5,000.00 for emotional distress.  You can read the full decision (issued January 20, 2016) here.

Court strikes down racial segregation ordinance

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February 2016:– It was 100 years ago that the Supreme Court of the United States heard oral argument in Buchanan v. Warley, in which it struck down a Louisville, Kentucky, city ordinance that prohibited Black people from moving to city blocks where the majority of residents were White, and vice versa. The decision, written by Justice William R. Day, was unanimous. There was no dissent, not even from Chief Justice — and former Confederate officer — Edward Douglas White, who had voted with the majority in Plessy v. Ferguson. In observance of Black History Month, and in view of present-day calls for segregation on campus (strange but true), I offer a conspectus of Buchanan v. Warley, an important victory in the struggle for liberty and equality.

The case arose when Post Office employee and part-time newspaper publisher William Warley, who was Black and a leading member of the Louisville NAACP, entered a contract to buy a plot of land from real-estate agent Charles H. Buchanan, who was White. Both men opposed the city ordinance and went to court in order to test its constitutionality. To that end, their contract contained a clause that said the buyer (Warley) would only close the deal if he had the right under the laws of Kentucky and Louisville “to occupy said premises as a resident.” This condition, of course, was one that could not be met, and it provided Buchanan with a basis for asking the circuit court for specific performance, i.e. an order compelling Warley to pay for the property.

Neither the circuit court nor the Kentucky Court of Appeals would order Warley to pay for a property he could not lawfully occupy, reasoning that the ordinance gave Warley a complete defense. So the case went up to the Supreme Court of the United States, with Buchanan arguing that the ordinance could not provide Warley with a defense because it was unconstitutional. This was a situation the ordinance’s drafters had foreseen, and they had designed it with a constitutional challenge in mind.

The ordinance started out as a policy proposal from a Louisville resident by the name of W.D. Binford, who  worked as a manager at a local newspaper. He and his allies knew about the constitutional infirmities that had undone segregation ordinances in Baltimore and elsewhere, and planned a workaround.  For a detailed account of the campaign see Life Behind a Veil: Blacks in Louisville, Kentucky, 1865-1930, by George C. Wright; As Long as They Don’t Move Next Door: Segregation and Racial Conflict in American Neighborhoods, by Stephen Grant Meyer; and Race, Place, and the Law, 1836-1948, by David Delaney.

Binford pitched the enforced-segregation idea to a luncheon gathering of the city’s real-estate agents, a group called the Real Estate Exchange. He suggested a measure free of the flaws that had stymied other segregation ordinances. Perhaps because of the failure in Baltimore, Binford’s speech met with little enthusiasm. But he started organizing, and soon had enough White neighborhood associations on his side to make property-owners and politicians take notice.

So, although initially tepid, many real-estate agents came around to Binford’s suggestion. Not J.D. Wright, however, an officer of the Real Estate Exchange, who appeared alongside William Stewart of the NAACP to argue against the proposed ordinance at the city council hearing. But Wright and Stewart did not prevail. The force that they and other opponents of segregation were battling against was the political equivalent of rampant climate change.

Segregation was on the rise across much of the country, and one of its most ardent advocates, Woodrow Wilson, occupied the White House. In Louisville, Binford and his fellow activists were threatening to throw out any councilors who failed to back their proposal; they were well organized, vocal, and enjoyed the support of the local Democratic newspaper, the Times. Not surprisingly, in view of the grassroots activism, the city council voted 21:0 in favor, and on May 11, 1914, the mayor, a Democrat named John H. Bushemeyer, signed into law a measure titled,

“An ordinance to prevent conflict and ill-feeling between the white and colored races in the City of Louisville, and to preserve the public peace and promote the general welfare by making reasonable provisions requiring, as far as practicable, the use of separate blocks for residences, places of abode and places of assembly by white and colored people respectively.”

Banning Black people from living on the same block as White people was the way to “prevent ill-feeling,” the ordinance declared, so certain provisions were necessary. What sort of provisions? “Reasonable” ones. They did not appear all that reasonable to the members of the NAACP, who set in motion the test case.

When the case reached the Supreme Court, the plaintiff, Buchanan, was represented by three NAACP lawyers, including the organization’s president, Moorfield Storey. This article provides a concise description of Storey’s line of argument and the significance of the Court’s decision (scroll down to the section headed “civil rights and property rights”).

In addition to Storey’s, the NAACP filed an amicus brief written by William Ashbie Hawkins, a Black attorney with a practice in Maryland who “participated in almost every major civil rights case in Maryland during the first quarter of the Twentieth Century… [and] ran unsuccessfully as an independent candidate for the United States Senate [in 1920], a first for a black citizen of Maryland,” according to J. Clay Smith in Emancipation: The Making of the Black Lawyer, 1844-1944. It is worth remembering that Hawkins was born in 1862 in Lynchburg, Virginia — which at the time housed a prison camp for Union POWs — so, although the record is not clear, it is likely that he was born into slavery. Property rights and liberty of contract must have had a powerful import to someone the law had until recently considered to be property with no right to enter into contracts of his own.

The NAACP argued that the ordinance violated the Fourteenth Amendment’s guarantee of equal protection including “the right to acquire and possess property of every kind [and] to dispose of it and to live upon one’s own land.” In a phrase that the Court found persuasive, Storey argued that the ordinance “destroys, without due process of law, fundamental rights attached by law to the ownership of property.”

In response, the attorneys advocating for the validity of the ordinance (ironically, representing Warley) claimed that “the use of property and liberty of contract are subject to reasonable police regulations, and their enforcement does not deprive a person of property without due process of law.” Property rights are not absolute, they contended. After all, cities are free to limit the height of buildings and prohibit billboards in residential neighborhoods: The segregation ordinance was analogous to regulations of that sort, they claimed.

The Court came down on the side of the NAACP.  It acknowledged the government’s police power, noting that “legitimate business may… be regulated in the interest of the public.” But it concluded:

We think this attempt to prevent alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. That being the case the ordinance cannot stand.

This Black History Month, I tip my hat to the lawyers and litigants of the NAACP who brought about the decision in Buchanan v Warley.  In particular, I honor the memory of Attorney William Ashbie Hawkins, and William Warley, whose service to justice the Wilson administration saluted by firing from him from his job in the Post Office. May they rest in peace.

Peter Vickery July 2012

 

One major lesson from the “blind barber” case

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The recent decision from the Massachusetts Commission Against Discrimination (MCAD) in Nixon v Tony’s Barber Shop has attracted some media coverage, e.g. this story in the Boston Herald and another in the New York Daily News.  The MCAD awarded the visually-impaired Joel Nixon $100,000.00 because his employer, Tony’s Barber Shop, fired him after he tripped over a customer’s legs, a chair, and a ladder.

Perhaps the most noteworthy fact for employers is that the respondent, Tony’s Barber Shop, defaulted. At the hearing,  there was nobody to advocate for the employer (by raising the possibility of a BFOQ, for example) and the only witness was the complainant himself, Mr. Nixon. The key lesson for employers? Show up!

Two Reasons to Worry About the New Domestic Worker Law

December 31, 2014

petervickery

At a recent conference on employment law, I heard a panelist say that the new Massachusetts law on domestic workers will leave people who hire housecleaners vulnerable to lawsuits in the Massachusetts Commission Against Discrimination (MCAD). And those people need not be employers of six or more workers: Even individual homeowners will be open to suit in the MCAD. My first thought was that housecleaners have a hard enough time as it is, without having their potential clients scared away by politicians. After all, who in their right mind would engage the services of a cleaner if the deal included a possible sojourn in the MCAD? My second thought was that the panelist had to be mistaken and that I must go back to the office and read the whole statute for myself. So I did, and now I am slightly more worried than before.

The statute in question is M.G.L. c.149, s. 190 and s. 191, which you can read here and here. Its proponents (the National Domestic Workers Alliance) gave it the moniker the Domestic Workers Bill of Rights, and in their FAQs they claim that it covers “housekeepers, housecleaners, nannies, and those who care for the sick, convalescing or elderly.” Some provisions are already in force, and the law in its entirety comes into effect on April 1, 2015. I suspect that by May 1, 2015, the MCAD will have screened in at least one case of a disgruntled housecleaner suing a homeowner for harassment on the basis of sex, sexual orientation, gender identity, race, color, age, religion, national origin, disability, or some combination thereof. Of course, this will depend on how the MCAD construes the statutory definition of “domestic worker.”

So who is a “domestic worker” under the Domestic Workers Bill of Rights?  Before I tell you who is one, let me tell you who is not one. There are three categories of workers who, although they would qualify as domestic workers in ordinary common parlance, fall outside the statute’s definition of the term. First, personal care attendants. Second, people whose services “primarily consist of childcare on a casual, intermittent and irregular basis,” i.e. babysitters. Third, “an individual whose vocation is not childcare.”

Yes, according to the text of the new law, and contrary to the assertion of the National Domestic Workers Alliance, the term “domestic worker” does not include “an individual whose vocation is not childcare.” The two negatives can trip the reader up, so the exclusion merits some time and attention. Bear with me while I re-state it: The term “domestic worker” does not include “an individual whose vocation is not childcare.”

If my powers of reasoning and grasp of English are up to snuff, a domestic worker must be an individual whose vocation is childcare. In other words, if you are an individual whose vocation is childcare, you are a domestic worker; if your vocation is not childcare, you are not a domestic worker. Either the Legislature consciously and deliberately chose to limit the Domestic Workers Bill of Rights to childcare workers, or did so by accident. I am not sure which is worse.

The exemption within the definition defies one of the elementary principles of draftsmanship and rule-making, one that has been around since antiquity. I am no Latin scholar, but I feel confident that when Cicero said exceptio probat regulam in casibus non exceptis he meant that the exception confirms the rule in the cases not excepted, not that the exception should swallow the rule. Accordingly, if one of my Legislative Drafting students had submitted a draft bill containing such a poorly crafted definition, she or he would have to try again.

The meaning of the exemption is plain. Like personal care attendants and babysitters, people whose vocation is not childcare are not “domestic workers” and not, therefore, entitled to the statute’s protection. From the statutory-construction standpoint that should be an end of it. Interpretatio cessat in claris as the maxim says (interpretation comes to an end when the text is clear). But is this what the Legislature meant? I doubt it, given that the Legislature defined the term “domestic worker” to include caring for the elderly, a task not synonymous with — in fact, quite distinct from — caring for children.

What will happen when Mr. Wooster, facing the need to retrench, decides, as part of his belt-tightening, to let go of old Jeeves, his long-suffering English factotum? If Jeeves files a complaint against Wooster in the MCAD alleging harassment on the basis of — picking a couple of categories at random — age and national origin, what will the MCAD intake staffer tell him: Sorry, you lack standing to sue under Chapter 149, Section 191, because you are an individual whose vocation is not childcare? “Is that so?” Jeeves might say, eyebrow raised.

To summarize, my two reasons for worrying about this new law are (1) what it tries to do, (2) that its failure to do what it tries to do will make no difference to the construction the MCAD will put on it. The Legislature’s unintentional limitation of the law to childcare workers will not prevent the MCAD from construing the law as if the limitation did not exist. The MCAD will pretend that the Legislature had drafted it competently, and the courts will defer to the MCAD’s interpretation.

For housecleaners looking for work in Massachusetts, life may become just that bit harder in 2015.

Peter Vickery, Esq.

Peter Vickery, Esq.

Decisions, Decisions

August 26, 2014

petervickery

Here’s a link to my article in Business West about three recent decisions from the Massachusetts Commissions Against Discrimination (MCAD).

Do MCAD decisions really matter? You bet. When the full Commission interprets our commonwealth’s anti-discrimination law, Chapter 151B, judges generally defer to the MCAD’s interpretation. So take a look. And if you spot the typographical error in the second paragraph, just send me an email identifying the mistake and you might win a prize.*

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* Disclaimer: No, you won’t win a prize. But I promise to hold you in high esteem for your proofreading prowess.

Found and lost

June 11, 2014

petervickery

What does the verb “find” mean? For one litigant, it will forever be synonymous with “lost,” more precisely “$1.1 million lost.”

In a case that has important implications for employers and employees alike, the Appeals Court upheld a Superior Court judge’s decision to override the jury and allow a company to keep the $1.1 million it would otherwise have had to fork over to an ex-employee. After finding that Deborah Kiely’s former employer, Teradyne, Inc., had retaliated against her, the jury awarded Ms. Kiely $1.1 million in punitive damages. Although she prevailed on the retaliation claim, Ms. Kiely lost on the underlying claim of gender discrimination and the jury declined to award her compensatory damages. So the judge not only vacated the $1.1 million damages award but also ruled that Teradyne would not have to pay Ms. Kiely’s attorney’s fees.

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Why was this even a possibility in a place where parties traditionally bear their own costs and expenses? That, after all, is the “American rule.” But there are exceptions. Under this state’s anti-discrimination law, a successful plaintiff can obtain attorney’s fees, which creates an important incentive for attorneys to accept discrimination cases on a contingent-fee basis. Instead of agreeing to a share of the judgment amount, e.g. one-third, the lawyer can opt for legal fees, which might well be higher. The right to attorney’s fees depends on the court finding for the petitioner. Here is what the statute (M.G.L. c. 151B, S. 9) says:

If the court finds for the petitioner [plaintiff], it may award the petitioner actual and punitive damages. If the court finds for the petitioner it shall, in addition to any other relief and irrespective of the amount in controversy, award the petitioner reasonable attorney’s fees and costs unless special circumstances would render such an award unjust.

Without devoting much ink to the meaning of “finds,” and none to the words “irrespective of the amount in controversy,” the Appeals Court chose to ask a different question: Can a plaintiff in a discrimination case obtain attorney’s fees when the jury has made a finding of retaliation but declined to award compensatory damages? No, said the court in Kiely v. Teradyne, Inc., a decision it announced on June 6. A plaintiff has to obtain some kind of recovery — injunction or damages — in order to qualify for attorney’s fees. The fact that the Legislature could have chosen to include this condition, but did not, means that in terms of statutory construction the decision has, in popular parlance, some issues.

Putting to one side the question of whether the court arrived at the right destination, it is worth considering the route it took. Section 9 does not say that attorney’s fees are available “if the court finds for the petitioner and awards relief.” In fact, two simple words in the text of the statute demonstrate that the Legislature contemplated the possibility of a finding without an award.

First, the phrase “[i]f the court finds for the petitioner, it may award the petitioner actual and punitive damages” establishes that a court is free to find in the plaintiff’s favor and, if it chooses, decline to award damages of any kind.

Secondly, the provision says “[i]f the court finds for the petitioner it shall, in addition to any other relief.” Any implies the possibility of none. What the Legislature could have said — but did not — was “if the court finds for the petitioner, in addition to all other relief.”

The word “all,” unlike “any,” would have created two triggers, (1) a finding and (2) an award. Unless the court pulled both triggers, there would be no attorney’s fees.  Had the Legislature intended to create this kind of two-trigger mechanism, it would have done so.  Nevertheless, the Appeals Court went ahead and created just such a mechanism anyway, despite the plain and unambiguous language of Section 9.

It need not have done so. The last nine words of the provision (“unless special circumstances would render such an award unjust”) give judges the discretion to refuse attorney’s fees, without reading into the statute words that are not there. Rather than relying on that exception, however, the court added a requirement that the Legislature did not enact.

On a more positive note, what the decision lacks in coherence it somehow makes up for in clarity. The Appeals Court’s conclusion is, at least, unambiguous: “[W]e conclude that a finding of retaliation alone, without any form of relief or recovery, cannot support an award of attorney’s fees under G.L. c. 151B, S.9.” This is not what the statute actually says, of course, and if the disappointed Ms. Kiely takes her matter to the Supreme Judicial Court, we may end up with an interpretation of Section 9 that hews more closely to legislative intent.

Another welcome feature of the Appeals Court’s decision is its reiteration of the Supreme Judicial Court’s declaration that punitive damages warrant review on the grounds of due process in that a “grossly excessive” award constitutes an “arbitrary deprivation of property.” Not that this proposition was in any doubt, but in a decision that involves the judicial exercise of legislative powers, contra Article 30 of the Declaration of Rights, any reference to bedrock constitutional principles brings some comfort.

It is not clear whether the SJC will have an opportunity to consider this case and rule on the meaning of the word “finds” in Section 9. For the time being then, readers who celebrate due process, legal certainty, and the separation of powers may find themselves greeting Kiely v. Teradyne, Inc., with one cheer or perhaps two cheers, but probably not three.

Massachusetts recognizes associational discrimination

July 19, 2013

petervickery

July 19, 2013: Massachusetts law has long protected employees from discrimination based on their disabilities, both real and perceived. It now also protects employees who have suffered discrimination on the basis of a another person’s disability, if that person is someone with whom the employee “associates” (e.g. a spouse). That was the decision that the Supreme Judicial Court released earlier today in the case of Flagg v. Alimed (SJC-11182).

The question before the Court was whether the state’s anti-discrimination law (M.G.L. c. 151B) “bars an employer from discriminating against its employee based on the handicap of a person with whom the employee associates.”  In an unequivocal answer, which endorsed the position of the Massachusetts Commission Against Discrimination (MCAD), the Court stated: “[W]e hold that associational discrimination based on handicap is prohibited under [M.G.L. c. 151B] § 4(16).”

Although they concurred in the opinion, two of the justices (Gants and Cordy) would have found for the plaintiff employee on narrower grounds.

The case involved an employee who was “fired because the employer feared the medical expenses his spouse was likely to incur because of her handicap,” not because of any request for “reasonable accommodations,” such as taking time off to care for her.  What concerned the two Justices Gants and Cordy was the possibility that plaintiff employees might use the Flagg decision to argue that employers now have a duty to provide them with reasonable accommodations — flexible schedules for example — based on the needs of the individuals they are associated with, e.g. disabled spouses. Such a reading of Chapter 151B after Flagg would go further than the Americans with Disabilities Act (ADA), an outcome the two concurring justices would have liked to forestall.

Will the MCAD and lower courts apply associational discrimination under Chapter 151B more broadly than under the ADA, as Justices Gants and Cordy fear? I suspect they will.

For a PDF of my Briefing Paper on the implications of the Flagg decision, click this link: associational-discrimination-paper.pdf.

SCOTUS to rule on affirmative action

May 1, 2013

petervickery

Before it rises for the summer, the Supreme Court of the United States will issue its decision in Fisher v. University of Texas at Austin. The case presents an opportunity to prohibit affirmative action in university admissions, and some commentators expect the justices to do just that. Even-handed and balanced approaches to the issue are rare, but I feel comfortable recommending this one: Even while voicing its hope that affirmative action is on the way out, the current edition of The Economist describes the increasing segregation of US cities and schools, an issue familiar to readers of my recent post on Springfield, Massachusetts.

Although the case is about admissions, Fisher could have an impact well beyond college campuses, perhaps even reaching into executive branch decisions at the state level. Whatever your stand on the policy — mend it, or end it — stay tuned.

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Attorney Peter Vickery

New housing rule: one more step toward desegregation?

March 13, 2013

petervickery

Advocates of desegregation should take heart, and planners should take notice, because at last it’s official: Land-use policies that perpetuate residential segregation are illegal.  A new rule from the Department of Housing and Urban Development (HUD) clearly spells out that the Fair Housing Act prohibits practices that have a discriminatory effect (disparate impact), even if there was no intent to discriminate.

Confirming the way most federal courts had long interpreted the statute, HUD’s new rule states that “[a] practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin” 24 CFR 100.500(a), Subpart G. This applies to public and private entities alike, so it covers not only city councils and local housing authorities but also housing developers.

Federal courts generally apply a three-part burden-shifting formula to decide whether a land-use policy violates the statute’s discriminatory-effects prohibition, and this is the course that HUD decided to follow. First the plaintiff has to show that the practice “caused or predictably will cause a discriminatory effect.” The burden then shifts to the respondent to prove that the practice “is necessary to achieve one or more [of the respondent’s] substantial, legitimate, nondiscriminatory interests.” If the respondent succeeds, the burden shifts back to the plaintiff to prove that the respondent could serve those interests “by another practice that has a less discriminatory effect.”

On the one hand, this does not represent a new departure or a substantive change to the federal law. But, on the other hand, it certainly helps plaintiffs who are trying to show that a zoning decision would violate the Fair Housing Act even if the city officials had no intention of acting in a racially discriminatory way. In practice, this may encourage challenges to the planning policies that undergird the de facto segregation of the public schools in and around Springfield, Massachusetts.

Springfield: Some of the most segregated schools in the nation

As before, any ordinance, bylaw, policy, or practice is open to a courtroom attack if it “creates, increases, reinforces, or perpetuates segregated housing patterns.” Now, however, desegregation advocates will have an easier time defeating the customary motion to dismiss.

Right’s attack on NLRB continues

January 29, 2013

petervickery

Employees and small business owners alike in Western Massachusetts need to know whether the current controversy around the National Labor Relations Board (NLRB) will affect their legal rights. The source of the uncertainty is the recent decision in Noel Canning v. NLRB, which involved a dispute between a Pepsi-Cola bottling and distribution company and the union representing the plant employees, Teamsters Local 760. Filing amicus briefs in support of the company were House Speaker John Boehner, Senate Republican Leader Mitch McConnell, and the Landmark Legal Foundation.

john-boehner-mitch-mcconnell

Speaker Boehner and Leader McConnell

The NLRB ruled in favor of the union, but on appeal United States Court of Appeals reversed the decision. Why? The court said that the NLRB’s order was void because it had no quorum. And why did the court say there was no quorum? Because it held that President Obama’s three recess appointments to the NLRB were invalid. The court agreed with the Republicans leaders who had argued that when President Obama made the appointments the Senate was in session rather than in recess.

Somewhat more absorbing than the recondite issue of when a recess is not really a recess is the question of how this became a contested issue in the first place. Spoiler alert: The answer involves large amounts of money.

Many of the people who are going after the NLRB are also attacking climate science. It’s no secret that ultra-conservatives fund climate-change denialists. To its credit, the Landmark Legal Foundation is quite candid about its opposition to the “extreme environmental groups” that spread “global warming hype” and receive Environmental Protection Agency (EPA) grants. Under the moniker Greenwatch, the foundation provides a handy database for concerned conservatives that “identifies the location, leadership and membership of each profiled group.”

But if you happen to be an anti-green sleuth trying to follow the money from the EPA to the Vast Climate Change Conspiracy, don’t pin your hopes on the Greenwatch database. Its keyword search couldn’t even locate any EPA grantees with the words “green” or “climate” in their names. You’d be better offer using the EPA’s own grant site or (almost needless to say) Google.

Greenwatch’s funders include the Charles G. Koch Charitable Foundation and the Scaife Family Foundations. I learned this from Right Wing Watch, a project of People for the American Way. Presumably I could turn to Left Wing Watch or Secular Humanist Watch if I wanted to uncover the names and faces behind People for the American Way. Alternatively I could just read the organization’s Form 990, which it posts online.

But why are the Charles G. Koch Charitable Foundation and the Scaife Family Foundation helping pay for the courtroom assault on the NLRB?

Irking the people who write the checks for the Landmark Legal Foundation are decisions like Hispanics United of Buffalo. In that case, the employer fired workers who had engaged in an online discussion about their job performances. One worker had been critical, and others responded. The NLRB sided with the employees. It ruled that the workers were “taking group action to defend themselves against the  accusations they could reasonably believe [the critical employee] was going to make to management.” So in preparing to engage in mutual aid and protection, their Facebook comments constituted “concerted activity” within the meaning of the National Labor Relations Act, Section 7.

The NLRB’s Hispanics United decision set “a low threshold” for concerted activity, to the chagrin of attorneys who work on the employer side of the aisle. So the company, with help from the Republican congressional leadership plus the Koch and Scaife foundations, challenged the legitimacy of the NLRB itself. Now they and their allies contend that the Court of Appeals decision in Noel Canning casts doubt on all the NLRB’s recent decisions, which they characterize as “pro-Bog Labor rulings,” e.g. Hispanics United.

So what does all this mean for workers and small business owners in Western Massachusetts? First, it’s important to bear in mind that the National Labor Relations Act (NLRA) does not cover all workers. Non-federal public employees in Massachusetts are covered by the state equivalent of the NLRA (M.G.L. c. 150E), as are some unionized employees in the private sector (M.G.L. c. 150A). So the Hispanics United and Noel Canning decisions, which interpret federal law, do not have a direct effect on these workers.

Second, most private-sector employees in this part of the world are at-will. Union members are in the minority. Employers can fire at-will employees for no reason, so long as the underlying purpose is not discriminatory or retaliatory. For my short video on this subject, just click here.

Third, focusing on situations like Hispanics United where employees are communicating online about their rights at work, several different state laws may offer varying degrees of protection. For example, the Right-to-Know Law (M.G.L. c. 111F) protects workers who work with toxic or hazardous substances. Employers that punish employees for exercising their rights under this statute could face suit in Superior Court. If workers use Facebook to discuss whether they should refuse to work unless the employer complies with the applicable regulations (450 CMR 21.00) would the employer be free to terminate them? That would be a very risky decision on the employer’s part.

Similarly, the state’s whistleblower law (M.G.L. c. 149, S. 185) is supposed to safeguard any employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or of another employer with whom the employee’s employer has a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.” The statute also protects employees who object to policies and practices of that kind. If at-will employees organized their whistleblowing via Facebook, could their employer fire them? Again, that would be a very risky decision.

While keeping in mind that we should never post online anything we would not be happy reading on the front page of the newspaper, we should not let the Noel Canning case chill legitimate online discussions about workplace health and safety and the environment. After all, that is precisely what the people behind the Landmark Legal Foundation and Greenwatch would like.

One More Step Toward Fair Housing?

September 26, 2012

petervickery

A new federal rule that could help reduce segregation is waiting for White House approval. If the administration supports it, the rule would confirm that housing practices – including zoning decisions – that are facially neutral but discriminatory in effect violate the federal Fair Housing Act. Congressional Republicans oppose the proposal, as the Daily Kos reported in June, and used an appropriations bill to prohibit HUD from putting it into operation. Whether the federal rule gets the go-ahead or not, I hope that Massachusetts will adopt a similar measure to strengthen our state’s anti-discrimination law.

So what is disparate impact? The term describes cases where the plaintiff does not have to prove that the defendant intended to discriminate. It applies where an action that is neutral on its face has the effect of denying a racial or ethnic group its right to equal housing opportunity or of creating, perpetuating, or increasing racial segregation. Disparate impact is at the center of the Mount Holly case, which may go to the Supreme Court of the United States.  Last year the U.S. Department of Housing and Urban Development (HUD) drafted a rule that would “establish uniform standards for determining when a housing practice with a discriminatory effect violates the Fair Housing Act” but it’s not clear whether the rule will come into effect before the Supreme Court renders its decision in Mount Holly.

Readers who followed the Lyman Terrace case, in which I represented the tenants, will know that our key claim was this: demolition of Lyman Terrace would have a disparate impact on Hispanic/Latino residents. That was the basis for commencing the action in the Massachusetts Commission Against Discrimination (MCAD), as opposed to Housing Court.

Que Viva Lyman Terrace

Nobody was suggesting that the housing authority or city officials were intentionally discriminating against Hispanic/Latino residents. But the effect of their decision, I argued, was that in a city that lacks enough affordable housing, demolishing the 167 units at Lyman Terrace would force the complex’s residents, who are overwhelmingly Hispanic/Latino, out of Holyoke. So the class-action complaint asked the MCAD to use its power under Section 5 of the state’s anti-discrimination statute, Chapter 151B, and request an injunction from the Superior Court prohibiting the housing authority from moving ahead with demolition.

The housing authority had applied to HUD for permission to demolish Lyman Terrace, initially with the support of the City. Before the MCAD case even moved to the investigatory stage, Mayor Alex Morse withdrew the City’s support for the housing authority’s HUD application pending a more thorough public review of the options. With no need for an injunction, the tenants withdrew the case without prejudice (meaning they can revive it if necessary). Because of the mayor’s thoughtful and courageous decision, I did not need to persuade the MCAD that demolition would violate the state’s equivalent of the Fair Housing Act. I am confident that the precedents weighed in our favor, but the case would have been more straightforward if the state statute or regulations were clearer.

Now that we have some breathing space, I believe the MCAD should revise its regulations – or ask the Legislature to amend the statute – to confirm that housing practices that have a disparate impact do, in fact, violate Chapter 151B. Certainty is a valuable asset in many areas of law, particularly where the potential litigants have limited resources. It should not fall to low-income tenants to bear the burden of establishing that decisions by Massachusetts lessors (private and public) that have a disparate impact on communities of color are unlawful. Surely our legislators and state agencies can do that.

“Person” really does mean “Person”

June 18, 2012

petervickery

Does the term “any person” mean exactly that, or does it mean “any person in a supervisory capacity”? The former, said the United States District Court for the District of Massachusetts last month in Martin v. Irwin Industrial Tool Company.

But a recent post in Business West suggests that the court’s interpretation of the Massachusetts anti-discrimination statute was wrong. At issue are two paragraphs within section 4 of chapter 151B, which makes it unlawful for “any person” to discriminate or to “coerce, intimidate, threaten, or interfere with” another person in the enjoyment of their rights under the statute. The court’s supposed error was holding that the statute allows victims of sexual harassment to sue the harasser as an individual, even when that individual is not a supervisor. According to the post, the way the court construed the term “person” defies the intent of the Legislature and offends public policy. I disagree.

With all due respect to the attorney who wrote the post, the court’s decision is the only reasonable construction of the clear, unambiguous language of the statute. It is also consistent with the way the Massachusetts Commission Against Discrimination (MCAD) has been applying the law since 1994. The MCAD’s Sexual Harassment at Work Guidelines make this clear, citing the Commission’s 1994 decision in Carney v. Town of Falmouth Police Department.  If this was not how the Legislature intended the MCAD to apply the term “person” in the context of liability for sexual harassment, it has had 18 years to correct the situation.

As for the suggestion that in the context of sexual harassment claims “person” only means employer or an agent acting on behalf of the employer, the court pointed out that several provisions of the the statute make a distinction between individuals and employers. Paragraphs 9, 9A and 11A, for example, apply to “an employer” whereas paragraphs 4 and 4A — at issue in Martin — apply to “any person.” Excluding ordinary coworkers from the scope of paragraphs 4 and 4A would be reading into the statute an exception that the Legislature did not intend to make.

With regard to public policy, there is nothing novel, misguided, or unsettling about the way the United States District Court construed the term “person” in this case. To the contrary, over many years employers and employees alike in Massachusetts have reasonably relied on the MCAD’s consistent rulings on this issue. If the US District Court had departed from the MCAD’s decisions the outcome would have been confusion and uncertainty, neither of which constitute sound public policy.

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