This category contains 92 posts

Restrictions on genetic testing in the workplace, including GINA – Genetic Information Nondiscrimination Act

It is illegal in Massachusetts to not hire someone because of that person’s genetic information. It is illegal for an employer to insist on tests of DNA for the purpose of identifying genes or genetic abnormalities, or the presence or absence of inherited or acquires characteristics in genetic material. An employer can’t get around this […]

Guidelines about illegal harassment based on an employee’s national origin, as well as “English only” rules

It is against the law to harass employees because of their national origin. Harassment includes offensive or derogatory remarks about an employee’s national origin, accent or ethnicity. The law doesn’t prohibit simple teasing, or isolated incidents that are not very serious. Actions or comments become illegal harassment when they are so frequent or ugly that […]

What is the law on religious dress and grooming at work?

In most instances, employers are required to make exceptions to their usual rules or preferences to permit job applicants and employees to observe religious dress and grooming practices. The law prohibits retaliation based on an employee’s request for a religious accommodation. Examples of religious dress and grooming practices include: Wearing religious clothing or articles. E.g., a Muslim […]

FYI about race and color discrimination

Discrimination on the basis of an immutable physical characteristic such as skin or color violates the law. Even though race and color overlap, they are not synonymous. Thus, color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity. The Equal Employment Opportunity Commission explains color as […]

Examples of LGBT employment discrimination

Some examples that the law views as unlawful sex discrimination include: Denying an employee a promotion because the employee is gay. Discriminating in terms, conditions, or privileges of employment, such as paying a lower salary to an employee because of sexual orientation. Harassing an employee because of his or her sexual orientation, for example, by derogatory […]

Title IX prohibits discrimination in both educational programs and in employment decisions at educational institutions

The federal law known as Title IX prohibits discrimination in educational programs like the receipt of educational benefits.  The prohibition extends to discrimination in employment in a federally funded education program.  For example, if a female employee at a college faces discrimination like lower salary for work like that of her male colleagues, Title IX […]

Legal protection for employee religious beliefs, old and new, or atheist

Federal and Massachusetts law protect employees in all aspects of religious observance, practice, and belief. Religion is broadly defined to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism. It includes religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by […]

Post-employment retaliation: Negative job reference by former employer can be evidence of illegal retaliation

According to a decision from the U.S. District Court in Massachusetts in March 2017, a plaintiff’s allegation that a former employer gave a negative employment reference is sufficient evidence to lay out a claim for illegal retaliation. In Soni v. Wespiser, the plaintiff was a female, board-certified neurosurgeon of Indian descent.  She resigned from a medical center […]

Rights under the Older Workers Benefit Protection Act (OWBPA): Even if you signed a release, an employer’s failure to meet specific requirements may allow you to seek additional severance for age discrimination.

The Older Workers Benefit Protection Act (OWBPA) is designed to protect the rights and benefits of workers 40 years old and up. Congress imposed specific duties on employers who seek releases of certain claims created by statute. Congress delineated these duties with precision and without qualification: An employee does not not waive an age discrimination […]

Emojis, emoticons, GIFs, Bitmojis, discrimination and sexual harassment

There is an “emerging law of emojis.” An emoji is an actual digital image or icon that is used to convey an emotion or intention in electronic communications like texts and emails. An emoticon is used when the sender groups a collection of standard keyboard characters, like :). Bitmojis, in which the sender uses a downloaded […]

FAQs: Rights and responsibilities of employer and employee under the Massachusetts Parental Leave Act

Who is eligible for parental leave under Massachusetts law?  It is not limited to birth mothers.  An employee is entitled to 8 weeks of parental leave so long as he or she: (1) has completed the initial probationary period (not to exceed 3 months); or (2) if there is no such probationary period, has been […]

Disability discrimination: An employee’s use of medical marijuana is allowed in Massachusetts, with some restrictions

Massachusetts voters approved a referendum allowing for the use of medical marijuana. The Supreme Judicial Court recently ruled that an employer who unilaterally fires an employee who is taking medical marijuana may face a claim for illegal disability discrimination. In Barbuto v. Advantage Sales and Marketing, the employee accepted a job doing promotional work.  She told the […]

Examples of questions asked during a company sexual harassment or discrimination investigation

Once an employer is put on notice of a sexual harassment or discrimination claim, it has a legal duty to conduct a prompt investigation and, if necessary, to take corrective action. The employer should conduct an investigation even if the employee changes his or her mind about coming forward. The employer can’t “un-hear” the report […]

Starting in 2018, new law in Massachusetts makes it illegal for an employer to prohibit employees from sharing wage information with co-workers

Some employers currently prohibit employees from talking with each other about their wages, bonuses, etc. Revisions to the state’s Equal Pay Act will make that policy illegal, effective in 2018.  The Equal Pay Act is designed to ensure the free flow of wage information within the workplace. It is intended to have a gradual, long-term […]

Layoffs: An employer who selectively cleans house cannot use convenient euphemisms like “downsizing” or “streamlining” to cover up illegal discrimination

An employer, consistent with its business judgment, can dismiss an employee during a reorganization or RIF (Reduction in Force). Trimming the fat from a company’s organizational chart may be a prudent practice. The flip side of the coin is that an employer who selectively cleans house cannot hide behind convenient euphemisms such as “downsizing” or […]

Sexual orientation discrimination and harassment: Stereotypical comments about an employee’s masculinity/femininity, mannerisms, or attire are discriminatory, whether or not the employee is gay

Negative comments about an employee’s masculinity or femininity, or statements that an employee’s attire or mannerisms are “flamboyant,” are more than just offensive sexual connotations.  When these comments are frequent and pervasive, they support a claim for gender discrimination as well as sexual orientation discrimination and harassment, whether or not the employee is gay. In […]

New law will prohibit Massachusetts employers from asking applicants about their salary history

Beginning in 2018, Massachusetts becomes the first state to prohibit employers from asking job applicants about their salary history before making a job offer. The newly revised Equal Pay Act is designed to eradicate the pay disparity in jobs that are, for example, traditionally held by women versus those traditionally held by men. One reason […]

The “self help” doctrine: Employer can’t unilaterally fire an employee for gathering company documents to bolster her claim of bias

It is not unusual for a client to show me company documents in order to evaluate the merits of a claim. On more than one occasion, when I cite these documents in correspondence with defense counsel, they insist that the employee violated company policy by sharing these documents with an outside party. I, like other […]

Massachusetts passes its own equal pay law that broadens the definition of comparable work

You’ve probably heard that men are paid more than women are paid over their lifetimes. What does that mean? Are women paid less because they choose lower-paying jobs? Is it because more women work part time than men do? Or is it because women have more caregiving responsibilities? Why do women earn only 80% of […]

Punitive damages awarded to an employee whose employer failed to fully investigate an employee’s claim of relentless sexual harassment

The Massachusetts Supreme Judicial Court recently affirmed a jury’s award of $500,000 in punitive damages to a woman who was the subject of relentless sexual harassment at work. The employee was fired due to her allegedly poor relationship with co-workers. At the termination meeting, the employee told the managers that she had been subjected to […]

Employer can’t just argue that a disabled employee is unqualified because he/she can’t do a newly assigned job. The employer must agree to an interactive dialogue that considers reasonable accommodations.

The Massachusetts Commission Against Discrimination (MCAD) ruled that an employer was liable for disability discrimination after it fired an employee who had a traumatic brain injury because, it claimed, the employee could not handle new tasks that he never previously performed. Even though the employee asked for reasonable accommodations to help him meet the goals […]

An employer is liable for a worker who sexually harasses another employee, even if the harasser is not motivated by sexual interest in the victim.

An employer can’t avoid liability for sexual harassment by arguing that that the harasser was “just” a jerk and was not sexually attracted to the victim. In a recent federal court case out of Boston, the offending manager had not expressed any personal interest in the female employee.  However, there was ample evidence that the […]

Recovering drug addicts are protected from job discrimination

The law against disability discrimination extends to employees who are recovering drug addicts. Addiction is considered a disability because it affects major life activities. An employer can no more discriminate against a recovering drug addict than it can discriminate against a person who was treated for cancer. The laws against disability discrimination are designed to […]

Title IX protects school employees as well as female students and athletes

The federal law known as Title IX prohibits discrimination based on sex in education programs and activities that receive federal financial assistance.  The U.S. Department of Education gives grants of financial assistance to schools and colleges and to certain other entities, including vocational rehabilitation programs. Although Title IX is perhaps best known for its role […]

A supervisor’s favoritism of his/her girlfriend or boyfriend can support a claim for a hostile work environment

Courts have acknowledged that when supervisors give preferential treatment to their paramours, other employees can use this evidence to support a claim of a harassing work environment.  For example, if the supervisor gives his or her girlfriend or boyfriend better work assignments, salary, or benefits, this can be used as proof of a hostile work […]

Individual liability: I know an employee can sue the company for discrimination and retaliation. But can a plaintiff sue individual employees?

Yes.  Massachusetts law holds individual defendants liable for: (1) retaliating against an employee for opposing discrimination; (2) interfering with the employee’s right to be free from discrimination; and (3) aiding, abetting, inciting, coercing or compelling another person to engage in discrimination or illegal retaliation. The fact that an individual defendant is not the plaintiff’s direct […]

Disability discrimination: It is illegal for an employer to avoid engaging in an interactive dialogue with an employee who asks for an accommodation of his/her disability

Employers are duty bound to engage in an interactive dialogue with a disabled employee to identify an appropriate, reasonable accommodation that will permit the employee to continue to do his/her job.  An employee’s request for reasonable accommodation necessarily triggers a corresponding obligation on the party of the employer to engage in a significant amount of […]

Offering retirement plans to get rid of older employees can indicate age discrimination

Offering a retirement package for the purpose of getting rid of older employees may constitute evidence of age discrimination. Likewise, employers also can’t develop recruitment programs for purpose of substituting persons who were retirement age. Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 146 (1st Cir. 2012). Offering a retirement packages in order to “flatten” […]

Because direct proof of discrimination is rarely available, employees can prove discrimination by relying on evidence that their employers gave a false reason for the job action.

The Massachusetts Supreme Judicial Court recently issued important guidance on this issue in Bulwer v. Mount Auburn Hospital.  The plaintiff was a black doctor from Belize who received several favorable evaluations and some unfavorable evaluations.  Some of the unfavorable evaluations had tinges of racial code words.  The Court overturned the lower court’s grant of summary judgment […]

Disability discrimination – medical leave

In a recent federal court decision, an employer unsuccessfully moved for summary judgment against a former employee who alleged that he was terminated for taking two medical leaves of absence and temporarily shifting to a part time work schedule in order to manage his treatment for cancer. The day after the plaintiff returned from his […]

Discrimination may be found when an employer replaces a terminated employee with someone at least 5 years younger

Under Massachusetts law, it is illegal for an employer to discriminate against an employee who is 40 years of age or older.  Massachusetts courts recognize that it is not the case that all persons over 40 are equally likely to be subject to age discrimination.  A company motivated to terminate an employee based on age […]

An employer cannot refuse to employ a job applicant who previously undertook protected legal activity while employed elsewhere

It is a well established legal principle that it is illegal to retaliate against an employee who engages in legally protected conduct, e.g, complaining about discrimination, sexual harassment, unpaid wages and commissions.  This principle extends to individuals who engaged in legally protected conduct at another employer.  In other words, Employer A cannot deny employment to […]

An employer may not make a unilateral decision to instruct an employee who claims a disability to return to work without any prior communication with his doctor or with him.

The Massachusetts Commission Against Discrimination (MCAD) found in favor of an employer who, after suffering a work related injury, refused to return to light duty work because he had not yet received medical clearance.  He was capable of performing the essential functions of his job as a plumber, but only after he underwent physical therapy […]

Punitive damages are available when an employer retaliates against an employee who files an internal complaint of discrimination or illegal harassment.

Employees who raise internal complaints about illegal discrimination or harassment are engaging in legally protected activity.  Even when the employer’s investigation concludes there is no basis for the claim, it is still unlawful for the retaliate against the employee.  The employer has a duty to remove all bias and emotion from the investigation.  This may […]

In a RIF situation, what is the significance when the employer does not replace the terminated employee?

When, in the course of a RIF (Reduction in Force), the employer does not replace the terminated employee, what is the significance of the fact that the employer retained in the same position an employee outside the protected class, e.g., someone who is younger, or a different gender or race. Consider an employer with five […]

An employer’s refusal to allow an employee to return to work following his mental health related leave can constitute illegal retaliation.

In a recently reported decision, the Massachusetts Commission Against Discrimination (MCAD) found that an employer illegally retaliated against an employee, a chemistry professor, by refusing to allow him to smoothly rejoin his department following his mental health related medical leave.  Prior to going out on leave, the employee had sent several vitriolic emails about a […]

Just because a disabled employee can do his or her job without a reasonable accommodation does not allow the employer to refuse to discuss or adopt a requested accommodation.

Whether it is “possible” for a disabled employee to engage in his or her duties without an accommodation is immaterial, where he or she does not enjoy the same terms and conditions of employment as co-workers.  The Massachusetts Supreme Judicial Court has held that when a qualified handicapped individual’s disability permits him or her to […]

Court agrees anti-Muslim comments by supervisor created a hostile work environment and supported the employee’s claim of illegal retaliation

Massachusetts Lawyers Weekly recently reported an important decision about anti-Muslim employee discrimination.  At the first meeting the Muslim employee attended at his new job, the supervisor made what he claimed was a  joke that they should not worry about the employee being a terrorist.  The defendants claimed this was an isolated comment and that other […]

A hostile work environment claim is not limited to a claim of sexual harassment. Harassing employees because of their legally protected status based on age, race, sexual orientation, national origin, religion, etc., is against the law.

Occasionally, I get calls from employees who wonder if the harassment they endure at work is illegal even though it is not sexual harassment. The answer is yes if the harassment is based on an employee’s protected legal status like age, race, national origin, sexual orientation, etc.  If a supervisor ridicules an employee for any […]

What is the employer’s responsibility when it learns of illegal harassment? Should it do nothing just because the employee wants to keep it quiet?

An employer who is notified of illegal harassment in the workplace and fails to take adequate remedial action may be held liable for its inaction. The employer cannot allow a hostile work environment to continue.  Once the employer has notice of the allegedly harassing and/or discriminatory conduct, it has an affirmative obligation to remedy the […]

Employer can’t discriminate against an employee in an interracial relationship

An employee who is discriminated against because of his/her personal association with a member of a legally protected class has standing to bring a lawsuit under Massachusetts state law, even though the employee is not a member of the legally protected class.  The Massachusetts Commission Against Discrimination (MCAD) recently found in favor of a white […]

Even if direct evidence of discrimination may not exist, circumstantial evidence can be persuasive

Employers mistakenly believe that they are immune from liability unless the employee can point to direct evidence of discrimination, e.g, racist comments or symbols in the workplace, actual physical touching in a sexual harassment case.  The United States Supreme Court forcefully rejected this notion back in 2003 in Desert Palace, Inc. v. Costa, 539 U.S. 90.  “The […]

Pregnancy bias rules for employers and rights for employees

This past summer, the federal Equal Employment Opportunity Commission (EEOC) updated its guidelines for managing pregnant employees.  Some of the guidelines are familiar: It remains illegal to discriminate against an employee based pregnancy, childbirth, or related medical conditions. Other updates are important reminders.  Key points include: Although the Americans with Disabilities Act (ADA) does not […]

Can unpleasant, ambiguous remarks support a discrimination claim?

Discriminatory comments that are racist, sexist, ageist, homophobic and the like are strong evidence of discrimination. Biased comments by a decision maker bear squarely on the contested employment decision.  But what if the comments are subject to interpretation?  Typically, ambiguous remarks are insufficient, standing alone, to prove an employer’s discriminatory intent.  The law requires a […]

How employment law views the use of racial, ethnic, sexist and other slurs

Bigoted remarks show what the speaker thinks of the target.  They are meant to signal the speaker’s belief that the target is unworthy of respect and fair treatment because of immutable characteristics like age, sex, race, national origin or sexual orientation.  The use of an unambiguous epithet turns the workplace into an abusive working environment. […]

Legal issues to consider with a Reduction in Force: reorganization of work versus replacement of job

No discrimination exists when an employer, in the course of restructuring the business, terminates an employee and does not replace him or her, but arranges to have other employees absorb the work.  In LeBlanc v. Great American Insurance Co., 6 F.3d 836 (1st Cir. 1993), the plaintiff lost his job due to a reduction in force.  […]

The evidentiary significance of a corporate atmosphere of discrimination

Courts have held that proof of a general atmosphere of discrimination is not the equivalent of proof of discrimination against an individual. Nevertheless, it may be one indication that the reasons given for the employment action at issue were implicitly influenced by the fact that the plaintiff was of a given race, age, sex or religion. A […]

Sex discrimination and the “competence penalty” against women

Even when women employees have established credentials, they face the challenge of managing being liked and being competent.  The competence penalty stems from negative stereotypes about strong women.  A male executive wants to be seen as “hard-driving.”  A female employee might be asked to balance her assertiveness with some people’s perception that women managers should […]

Subtle bias is just as illegal as blatant discrimination

There are other ways of proving discrimination than getting the a manager to admit he is a bigot. The whole premise of subconscious discrimination is based on the understanding that even well intentioned people lie to themselves.  A manager can believe he is fair-minded, and yet act on negative stereotypes.  The manager may not see […]

Is it illegal to deny a pregnant employee’s request for light duty assignments?

Employer policies that provide light-duty assignments only to employees with work related injuries do not necessarily violate the Pregnancy Discrimination Act.  The employer is not required to offer light duty assignments to make it easier for pregnant women to work.  The courts allow an employer to make a distinction between giving a light duty assignment […]

Jilted co-worker causes employer to be liable to the “jilter” for sex discrimination.

Sex discrimination happens in many different circumstances. Consider a reported federal court case out of Puerto Rico where a female employee rejected a male co-worker’s sexual advances. The disgruntled man, intent on revenge, began to persistently lobby their supervisor to get rid of her.  The employer eventually fired the female employee for supposed performance issues. […]

Meow: cat’s paw evidence and proving discrimination

“Cat’s paw” claims exist where a plaintiff holds the employer liable for the intentional discrimination of an employee, usually a supervisor, who did not make—but influenced—the ultimate employment decision in question.  The courts will not accept a company’s blind reliance on a supervisor’s personnel decision.  If the discriminating employee’s influence has some relation to the […]

Different examples of subconscious employment discrimination: leniency bias, recall bias, personality bias, skill bias

Employers cannot openly use race, gender, age, sexual orientation, etc. when they make hiring, firing, promotion, or other personnel decisions. What about less blatant forms of discrimination? Discrimination can be subtle but equally insidious and wrong. Courts have held that ingrained bias is just as illegal as open bias. Here are some examples I’ve seen […]

Gender stereotypes, sex discrimination, and second generation employment discrimination

Legal scholars talk about “first generation” discrimination which involved the deliberate exclusion of women from the workplace and job advancement.   “Second generation” discrimination is the term applied to work practices that appear to be neutral, but actually show how entrenched negative gender stereotypes and sex discrimination are.  Look at how leadership is assessed.  When […]

Employers should not need to hear audiotapes of bigots like Donald Sterling to believe racism still exists in the workplace

Sadly, unless people hear a tape of a bigot like LA Clippers owner Donald Sterling spewing hateful comments, some folks prefer to believe that racism is under control.  Donald Sterling paid over $22 million to settle claims of discrimination in housing practices for his apartments, but until this tape appeared, the NBA looked the other […]

Employer liable for discrimination against gay employee who is target of slurs, shunning, and hostile work environment

Employers are liable if they knew or should have known of harassment of gay employees.  The law doesn’t tolerate willful ignorance or deliberate indifference.  Here is a real life example:  Employee is homosexual male. He does not tell his coworkers of his sexual orientation because he considers it a private matter. The employee learns that […]

When the same person who hires the employee fires the employee, the employer can raise the “same actor defense.”

There is a legal principle known as the “same actor”defense. Employers use this theory to rebut claims of illegal conduct like discrimination.   If the same person who hired the employee fired the employee, there is a rebuttable inference that the hiring person did not discriminate.  The theory is that if the hiring person is […]

It is illegal to discriminate against employees based on sexual orientation, gender identity or expression, or HIV status.

Massachusetts prohibits employment discrimination based on sexual orientation, gender identity or expression, and HIV status.  The law’s protection extends to employees who are targeted because they are gay or perceived to be gay, whether they are or not.  Employers shall not allow employees to insult, harass or demean another employee for any of these reasons. […]

When bias infects the decision-making process

Can an employer be absolved of liability for discrimination by one manager when the company has a different manager make the decision to fire an employee?  Not necessarily. If the job action is triggered by the bias of one manager, the whole decision making process is poisoned. In Zades v. Lowe’s Home Centers, Inc., 446 […]

Workplace bullying: Employees can sue for both discrimination and civil harassment

Massachusetts state law empowers an employee to sue for employment discrimination under a specific statute, Massachusetts General Law chapter 151B.  There is a separate statute that allows individuals to make a claim for harassment against a non-family member like a co-worker.   The harassment must involve a threat of physical harm or property.  It applies […]

The ministerial exception to anti-discrimination laws should not apply to the job of Food Service Director

Last week, I learned that my once beloved high school alma mater, Fontbonne Academy in Milton MA, is being sued for discrimination.  I read an on-line copy of the complaint filed at the Massachusetts Commission Against Discrimination.  The plaintiff is a legally married gay man with many years of experience in the food service industry. […]

Discrimination, diabetes, and how long does an employer have to accommodate the employee’s disability?

The Massachusetts Commission Against Discrimination (MCAD) found against an employee who suffered severe side affects from diabetes at work.  The MCAD ruled that the employer was justified in terminating the employee for safety reasons.  MCAD v. Affiliated Professional Services, (9/16/13). There is more to the story than this headline.  The MCAD acknowledged that diabetes meets the […]

Proving discrimination in the hiring process

Discrimination in the hiring process is illegal.  To prevail, a plaintiff must first prove that (1) he or she is a member of a class protected by law from discrimination (age, gender, race, national origin, disability, sexual orientation, etc.); (2) he or she applied for an open position; (3) he or she was not selected; […]

Is obesity a disability under discrimination law?

This is a developing area of the law. Historically, obese employees have had difficulty convincing judges they were disabled under federal or state laws unless they proved that their obesity was due to a physiological disorder. The courts viewed obesity as a voluntary condition. In June 2013, the American Medical Association (AMA) identified obesity beyond […]

“Associational discrimination”: Employer can’t discriminate against an employee because it did not want to cover his disabled wife’s medical expenses

In a recent decision, the Massachusetts Supreme Judicial Court ruled that an employee who claimed his employer fired him in order to avoid paying his disabled wife’s medical expenses could sue the employer for “associational discrimination.” It clears up the question of whether “associational discrimination”, which is prohibited by federal law, is also barred by […]

How much of an age difference between my replacement and me is necessary to claim age discrimination?

Employees over 40 years old are protected from age discrimination in the workplace. The employer cannot use the employee’s age as a controlling factor in a personnel decision. Since age is a relative term, the employee cannot just rely on an age disparity to prove discrimination, unless there is direct evidence of bias. E.g., frequent […]

Illegal stereotyping and discrimination can occur even when the supervisor and the employee belong to the same protected group

Occasionally, an employer will insist that a manager did not discriminate simply because the manager belongs to the same protected group as the employee. For example, an employer might argue that a 50 year old supervisor would not discriminate against another middle aged employee. Or, the employer will say that a woman would not discriminate […]

Constructive discharge: I was forced to quit my job. Is that Illegal?

Constructive discharge occurs when an employer allows illegal working conditions that are so intolerable that a reasonable person would feel forced to resign. The operative words are “illegal working conditions.” The employee’s subjective views are not relevant. The question is objective: did the employer commit some illegal act that made the employee feel he or […]

Pregnancy discrimination is illegal

Pregnancy is supposed to be a joyous time. The last thing a pregnant woman should have to deal with is getting hassled at work. If you are having problems because you are pregnant, remember the law is on your side. Be proactive and report the problem to your supervisor or Human Resources. If you are […]

Qualified disabled employee wins discrimination claim because the employer ignored his requests for a reasonable accommodation, forcing him to quit.

In a recent decision by the Massachusetts Commission Against Discrimination (MCAD), the employee successfully sued for disability discrimination after he quit his job of 30 years. The employee’s disabilities included significant knee and back arthritis that were known to the employer. The employer announced a reorganization and unilaterally assigned him to a position he could […]

What happens when the employer resists a request for a job accommodation by a qualified handicapped employee, or stops negotiating?

I’ve written frequently on this blog about how a qualified handicapped employee can initiate a request for a job accommodation from the employer. If the request is properly phrased and supported with appropriate documentation, a good employer will engage in an open discussion with the employee about different accommodation options. This interactive process requires: (1) […]

Examples of reasonable job accommodations for a qualified handicapped employee

A good employer will want to work out a reasonable accommodation for a qualified disabled employee, but it doesn’t always know where to start. The employee may not be sure what kind of accommodation he or she can request. I frequently recommend the Jobs Accommodation Network website which lists numerous options for specific disabilities. Most […]

Religious discrimination, bullying, and a hostile work environment

Discrimination against an employee based on religion:  An employer who stood by while co-workers ridiculed an employee for his religious beliefs faces liability, even though the supervisors did not actively participate in the bullying. Massachusetts Lawyers Weekly recently reported a case where the plaintiff, a born-again Christian, claimed that his religious beliefs were met with […]

What to consider during a layoff or RIF (Reduction in Force)

Everyone knows someone who was affected by a layoff. The corporate euphemism for a layoff is “RIF” which stands for Reduction in Force. Companies conduct RIF’s for legitimate reasons: financial losses, head count excess, outsourcing of business, loss of a big customer, change in business focus, merger with another company that causes redundancy in staffing. […]

I want to ask my employer for an accommodation of my disability. What should I do?

Employers are legally required to engage in an “interactive dialogue” with a qualified disabled employee to identify an appropriate, reasonable accommodation that will permit the employee to continue to do his or her job. An employee’s request for reasonable accommodation triggers a corresponding obligation on the part of the employer to engage in a significant […]

How to prove race discrimination

It is illegal for an employer to discriminate against employees because of their race. The first threshold for the employee to show is deliberately low. It is called a prima facie claim. The employee can prove a prima facie claim for race discrimination by showing that: (1) he or she performed her job acceptably; (2) […]

Illegal retaliation based on complaints about discrimination

Massachusetts law prohibits an employer from discharging or penalizing an employee who opposes discrimination in the workplace. The protection applies to employees who file formal charges of discrimination in court or an internal complaint with Human Resources or management. The person who files the complaint does not need to be the actual employee who is […]

What employers need to know about Human Resources Law

I will be a presenter at a panel on this topic at Suffolk University Law School on March 14th. Below is an overview of the seminar. Whether you have your own small law firm, or are advising a small business, do you know what employment laws apply? Do you know which laws control based on […]

Negative stereotype of female worker and unequal opportunities lead to big award for sex discrimination

The Massachusetts Commission Against Discrimination (MCAD) recently awarded a 61-year-old female employee lost pay of more than $600,000, as well as $300,000 in emotional distress damages.  The employee complained that the company operated an “old boy’s network.” Shortly after the employee complained about unequal pay and discriminatory treatment, the company instituted a restructuring that led […]

Discrimination and the “business judgment” rule

When an employee feels unfairly targeted by an employer’s personnel decision, it sometimes leads to a debate about whether the employee has a legal claim for wrongful discharge, illegal retaliation, etc.  The Courts will not second-guess management decisions unless the employee can prove illegal discrimination.   Pursuant to the “business judgment rule”, an employer can […]

When is a physical or mental impairment a protected disability under anti-discrimination laws?

Massachusetts law prohibits an employer from discriminating against an employee with a disability. What does this mean? An employer may not allow its personnel decisions to be influenced by the fact that the employee either: (1) has a physical or mental impairment that substantially limits one or more major life activities; or (2) has a […]

A delay in hiring can be evidence of discrimination

In a recent decision in federal court in Massachusetts, an employee was allowed to proceed with her claim for sex discrimination even though the employer eventually hired her.  The employee argued that a less qualified male was hired before her, resulting in a delay in her winning a job.  There was disputed evidence that the […]

Transgender workers and discrimination

The Equal Employment Opportunity Commission (EEOC) issued a potentially groundbreaking decision that grants transgendered workers the right to bring a federal lawsuit based on gender bias. Massachusetts law already prohibits employment discrimination based on sexual orientation. When Mia Macy interviewed for a job with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), she […]

Right to speedy trial for older workers in Massachusetts

If any party to a civil action is 65 years old or older when the lawsuit is filed, or turns 65 during the pendency of the lawsuit, the Court must grant a motion for a speedy trial so that the case can be heard and decided with as little delay as possible.  For older employees […]

Subconscious discrimination

There are several ways of proving discrimination. I have cases with direct evidence of discrimination, e.g., the manager made direct, negative comments about an employee’s age, gender, race, disability or sexual orientation. But even when discrimination is indirect or subtle, it is still illegal. The mere fact that the manager does not believe or acknowledge […]

Forced FMLA?

The FMLA (Family Medical Leave Act) allows for either intermittent or reduced leave up to 12 weeks per year for eligible employees.  Under what circumstances may an employer force an employee to take time off under the Family Medical Leave Act (FMLA)?  Before an employer places an employee on forced leave, it must be certain […]

Federal employment anti-discrimination laws do not apply to “ministers”

In EEOC v. Hosanna-Tabor Evangelical Lutheran Church & School, the United States Supreme Court recently approved a “ministerial exception” to federal employment anti-discriminations laws. When an employee of a religious organization sues his or her employer, the first issue to resolve is whether the plaintiff fits within the First-Amendment-based “ministerial exception.” Religious organizations must follow […]

New law about equal employment rights for transgender employees

On November 23, 2011, Massachusetts Governor Deval Patrick signed into law “An Act Relative to Transgender Equal Rights.” The new law, effective July 1, 2012, prohibits discrimination on the basis of “gender identity” in employment, education, housing, credit, and lending and makes violence against transgender individuals a hate crime. The new law is to be […]

Discrimination against working Moms

Employers cannot discriminate against employees because of their status as parents. In the simplest example, unlawful sex discrimination occurs when an employer takes a negative job action based on the stereotypical assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. Here are some […]

Great conference on employment law issues/hidden bias

Last week I attended the New England Regional Conference for the National Employment Lawyers Association. Great speakers and topical issues. One discussion I found especially interesting involved the concept of hidden bias. The “First Generation” of discrimination cases dealt with employee complaints about openly biased practices. These First Generation cases were filed because employers blatantly […]

What kind of employment actions are illegal retaliation?

Until a few years ago, there was a dispute among the state and federal courts about what kind of employment action was adverse enough to be illegal retaliation. Some courts thought the employee had to suffer some easily defined material loss like a suspension or termination, but that a negative job evaluation or a transfer […]

Employers can’t be ostriches

Employers can’t stick their proverbial heads in the sand when they hear employees complain about discrimination influencing job decisions. A proper investigation does not just ask whether the manager openly called employees racial or sexist epithets. Discrimination manifests itself in other subtle, insidious ways. So, employers need to study the pattern of behavior and look […]

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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