Employment Discrimination in Massachusetts [2 ed.] 9781683451853

Citation preview

Employment Discrimination in Massachusetts

Employment & Labor Law PRINT & EBOOKS

Employment Discrimination in Massachusetts 2nd Edition 2020

2nd Edition 2020

2140521B02 2200271B02

MCLE

Massachusetts Continuing Legal Education, Inc. Ten Winter Place, Boston, MA 02108-4651 1-800-966-6253 | www.mcle.org

MCL E

NEW ENGLAND

Keep raising the bar.®

Employment Discrimination in Massachusetts 2ND EDITION 2020

AUTHORS Richard L. Alfred Shannon M. Berube Gavriela M. Bogin-Farber Alida Bográn-Acosta Mary L. Bonauto Justine H. Brousseau Anthony S. Califano David Conforto Sherley Cruz Alexandra H. Deal Patrick J. Hannon Anne L. Josephson Nina Joan Kimball Gwen Nolan King Daniel B. Klein Arielle B. Kristan Allyson E. Kurker Jennifer L. Levi Robert S. Mantell Johanna L. Matloff Stephen T. Melnick Katherine J. Michon Julie M. Muller Sean P. O’Connor Mary E. (Beth) O’Neal Lucia A. Passanisi Dahlia C. Rudavsky Robert M. Shea Michael E. Steinberg James S. Weliky

2200271B02

© 2020 by Massachusetts Continuing Legal Education, Inc. All rights reserved. Published 2020. Permission is hereby granted for the copying of pages or portions of pages within this book by or under the direction of attorneys for use in the practice of law. No other use is permitted without prior written consent of Massachusetts Continuing Legal Education, Inc. Printed in the United States of America This publication should be cited: Employment Discrimination in Massachusetts (MCLE, Inc. 2020) Library of Congress Control Number: 2019951458 ISBN: 9781683451853 All of Massachusetts Continuing Legal Education, Inc.’s (“MCLE’s”) products, services, and communications (“MCLE Products”) are offered solely as an aid to developing and maintaining professional competence. The statements and other content in MCLE Products may not apply to your circumstances and no legal, tax, accounting, or other professional advice is being rendered by MCLE or its trustees, officers, sponsors, or staff, or by its authors, speakers, or other contributors. No attorney-client relationship is formed by the purchase, receipt, custody, or use of MCLE Products. The statements and other content in MCLE Products do not reflect a position of and are not ratified, endorsed, or verified by MCLE or its trustees, officers, sponsors, or staff. Contributors of statements and other content in MCLE Products are third-party contributors and are not agents of MCLE. No agency relationship, either express, implied, inherent or apparent, exists between MCLE and any third-party contributor to MCLE Products. Due to the rapidly changing nature of the law, the statements and other content in MCLE Products may become outdated. Attorneys using MCLE Products should research original and current sources of authority. Nonattorneys using MCLE Products are encouraged to seek the legal advice of a qualified attorney. By using MCLE Products, the user thereof agrees to the terms and conditions set forth herein, which are severable in the event that any provision is deemed unlawful, unenforceable, or void. To the fullest extent permitted by applicable law, MCLE Products are provided on an “As Is,” “As Available” basis and no warranties or representations of any kind, express or implied, with respect to MCLE Products are made by MCLE or its trustees, officers, sponsors, or staff, individually or jointly. To the fullest extent permitted by applicable law, neither MCLE nor its trustees, officers, sponsors, or staff are responsible for the statements and other content in MCLE Products or liable for any claim, loss, injury, or damages of any kind (including, without limitations, attorney fees and costs) arising from or involving the use of MCLE Products. Failure to enforce any provision of these terms and conditions will not be deemed a waiver of that provision or any other provision. These terms and conditions will be governed by the laws of the Commonwealth of Massachusetts, notwithstanding any principles of conflicts of law. These terms and conditions may be changed from time to time without notice. Continued use of MCLE Products following any such change constitutes acceptance of the change. IRS Circular 230 Notice: Any U.S. tax advice found to be included in MCLE Products (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding U.S. tax penalties or for promoting, marketing, or recommending to another party any tax-related matter or any other transaction or matter addressed therein. Massachusetts Continuing Legal Education, Inc. Ten Winter Place, Boston, MA 02108-4751 800-966-6253 | Fax 617-482-9498 | www.mcle.org

PREFACE Employment Discrimination in Massachusetts brings together a concentrated set of materials from MCLE’s comprehensive employment practice manual, Massachusetts Employment Law, into one resource focusing on discrimination in the workplace. You’ll find practical guidance and black letter law from experts representing both the employer and the employee sides of the bar so that you can find fast answers to your daily practice questions.

ACKNOWLEDGMENTS MCLE Press benefits greatly from the attorneys and judges who serve as volunteer editors and authors of our books. Their willingness to share their time and expertise is an integral part of our continuing effort to educate the bar and help enhance the quality of legal services provided to the public. Publication of the Employment Discrimination in Massachusetts was made possible by the authors and editors whose work is represented in this publication. We offer special thanks to Patrick J. Hannon, Kimberly Y. Jones, and Brian J. MacDonough for reviewing the chapters in conjunction with their dual publication in Massachusetts Employment Law. We also thank all of the authors for their time, their contributions, and their genuine commitment to the mission of continuing legal education. We also would like to acknowledge the work of dedicated MCLE staff members in producing this book. On behalf of Jack Reilly, publisher, Maryanne G. Jensen, editor-in-chief, and the MCLE Board of Trustees, our appreciation extends to all whose talent and hard work helped with this book. Alexis J. LeBlanc Publications Attorney January 2020

ABOUT THE AUTHORS RICHARD L. ALFRED is a partner in the Boston office of Seyfarth Shaw LLP. As chair of the firm’s wage and hour litigation practice group, he focuses on the defense of wage-and-hour class and collective actions under federal and state laws in jurisdictions throughout the country, including the defense of multiplaintiff class actions alleging discrimination on the basis of all protected classifications. Mr. Alfred is a fellow of the College of Labor and Employment Lawyers and a former chair of the college’s First Circuit credentials committee. He is a graduate of Harvard College and Harvard Law School. SHANNON M. BERUBE is a staff attorney with Seyfarth Shaw LLP in Boston, where she represents management in matters involving discrimination, harassment, MCLE, Inc. | 2nd Edition 2020

iii

Employment Discrimination in Massachusetts

retaliation, misclassification, wage and hour regulations, breach of contract claims, and unemployment benefits. She has successfully defended employers in state and federal courts and before administrative agencies, including the U.S. Equal Employment Opportunity Commission (EEOC), the Massachusetts Commission Against Discrimination, and the Massachusetts Department of Unemployment Assistance. Previously, she was with Littler Mendelson, PC, and worked for the Enforcement Division of the EEOC. Earlier in her career, she worked for Vice President Joseph R. Biden in his constituent relations department. Ms. Berube is a member of the Women’s Bar Association and the Massachusetts and Boston Bar Associations, and is a mentor for Running Start. She is a graduate of the University of Delaware and Suffolk University Law School. GAVRIELA M. BOGIN-FARBER is an associate attorney in the firm of Messing, Rudavsky & Weliky, PC, in Newton. Her practice focuses on representing individuals in employment discrimination cases at the Massachusetts Commission Against Discrimination and in state and federal court. She also advises clients on other labor and employment matters. Ms. Bogin-Farber is serving her second term as vice president of the Massachusetts Employment Lawyers Association and previously served as its program committee cochair. She has presented on and moderated bar association and law school panels related to labor and employment law, and was named a Super Lawyers “Rising Star” from 2016 to 2018. Prior to joining Messing, Rudavsky & Weliky in 2013, Ms. Bogin-Farber was a staff attorney and Parmet fellow at Health Law Advocates, Inc. She is a graduate of Johns Hopkins University and Northeastern University School of Law, where she was a Public Interest Law Scholar. ALIDA BOGRÁN-ACOSTA is an investigator with the Office of Equal Opportunity at Tufts University in Medford. Previously, she was of counsel at Sugarman, Rogers, Barshak & Cohen, PC, where she specialized in wage-and-hour compliance, fair employment practices, personnel manuals and workplace policies, employee relations, and negotiation of employment and severance agreements. Ms. Bográn-Acosta also developed and conducted presentations and training programs on employment law topics. She is a former commission counsel at the Massachusetts Commission Against Discrimination. Ms. Bográn-Acosta is a graduate of Boston University and Northeastern University School of Law. MARY L. BONAUTO is the civil rights project director at GLBTQ Legal Advocates & Defenders in Boston. She has litigated on discrimination issues, free speech and religious liberty, and relationship and parental rights. In 2015 Ms. Bonauto successfully argued before the U.S. Supreme Court in the historic case of Obergefell v. Hodges, which established the freedom to marry for same-sex couples nationwide. She was lead counsel in Goodridge v. Department of Public Health (2003), which made Massachusetts the first state where same-sex couples could legally marry; cocounseled in Baker v. State and Kerrigan v. Connecticut DPH; served on the 2009 and 2012 Maine ballot campaign executive committees; led GLBTQ Legal Advocates & Defenders’ Gill and Pedersen challenges to the Defense of Marriage Act; and coordinated the amici strategy in Windsor v. United States at the U.S. Supreme Court. Ms. Bonauto holds a law degree from Northeastern University School of Law, is the Shikes fellow in civil liberties and civil rights and a lecturer on law at Harvard iv

2nd Edition 2020 | MCLE, Inc.

Law School, is a 2014 MacArthur fellow, and is on an advisory board for the American Constitution Society. JUSTINE H. BROUSSEAU is a founding partner of Kimball Brousseau LLP in Boston, where she focuses on employment law, employment litigation, executive counseling, and employment coaching. She represents individuals, small businesses, and nonprofits in state and federal courts, before the U.S. Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination, in arbitration and mediation, and on appeal. She advises clients on employment contracts, executive compensation, severance/separation agreement negotiation, employment policies, noncompetition and nonsolicitation agreements, discrimination matters, disability issues, and wage-and-hour laws. Ms. Brousseau is a member of the Boston, Women’s, and Rhode Island Bar Associations. She is a graduate of Providence College and New England School of Law. ANTHONY S. CALIFANO is a partner in the labor and employment department of Seyfarth Shaw LLP in Boston. His practice includes counseling employers regarding antidiscrimination laws and defending employers against claims of discrimination, harassment, and retaliation. He also represents employers regarding wage-and-hour matters. Mr. Califano is a graduate of Saint Anselm College and New England School of Law. DAVID CONFORTO is the founder of Conforto Law Group in Boston. He dedicates his practice to employment law and exclusively represents employees. A leader in the field of executive advocacy, Mr. Conforto regularly advises senior-level professionals in complex, time-sensitive matters involving employment contract and severance negotiations; noncompetition disputes; whistle-blowing activity; and unlawful discrimination. He maintains a unique focus counseling employees as they raise discrimination concerns internally and providing advice during the investigation process. Mr. Conforto was selected by his peers for inclusion in the 2019 edition of The Best Lawyers in America, holds the highest rating of AV preeminent from Martindale-Hubbell, and has been recognized as a “Super Lawyer” by Thomson Reuters. He is a graduate of Brandeis University and Boston College Law School. SHERLEY CRUZ is an assistant professor at the University of Tennessee College of Law in Knoxville, Tennessee. Previously, she was a practitioner in residence at American University Washington College of Law in Washington, DC, and a clinical fellow at Suffolk University Law School in Boston, where she led the fair housing litigation and enforcement efforts for the Housing Discrimination Test Program and the Accelerator Practice. From December 2016 to September 2017 she served as president-elect of the Massachusetts Association of Hispanic Attorneys. Ms. Cruz is a graduate of Boston University and Boston University School of Law. ALEXANDRA H. DEAL is principal of Deal Law in West Medford, where she focuses on criminal and civil appeals, employment counseling and litigation, civil rights litigation, and student misconduct. She is also of counsel at Strang, Scott, Giroux & Young LLP, Boston, where she handles the firm’s employment counseling and employment litigation matters. Previously, she was with Burns & Levinson LLP and MCLE, Inc. | 2nd Edition 2020

v

Employment Discrimination in Massachusetts

Stern, Shapiro, Weissberg & Garin LLP. Ms. Deal is a graduate of Cornell University and Boston College Law School. PATRICK J. HANNON is a partner at Hartley Michon Robb LLP in Boston. He concentrates his practice on employment and employment-related litigation and arbitration, as well as disputes between partners and shareholders in closely held corporations. Mr. Hannon handles a wide range of matters, including wrongful termination, discrimination, and noncompete/nonsolicitation matters as well as cases involving breaches of contractual and fiduciary duties, whistle-blowing, and violations of the Wage Act. He is a graduate of Boston College and Boston College Law School. ANNE L. JOSEPHSON is a partner with Kotin, Crabtree & Strong LLP in Boston. She concentrates in employment law and litigation, including civil rights, business, real estate, and health law. Previously, she was with Nutter McClennen & Fish LLP, clerked for the Honorable Edward F. Hennessey of the Massachusetts Supreme Judicial Court, and was an assistant attorney general with the Office of the Attorney General, Commonwealth of Massachusetts. Ms. Josephson is a graduate of Smith College and Boston College Law School. NINA JOAN KIMBALL is a founding partner in Kimball Brousseau LLP in Boston. Her extensive employment practice includes advising and representing individuals, executives, nonprofit organizations, and small businesses in state and federal court and in administrative proceedings, as well as resolving disputes for her clients through negotiation, arbitration, and mediation. She has served as an outside investigator to conduct investigations into claims of discrimination and harassment. Ms. Kimball cochaired the pay equity task force of the Women’s Bar Association of Massachusetts legislative policy committee, through which she helped draft a comprehensive bill to amend the Massachusetts Equal Pay Act that was passed into law in 2016. She cochaired a bipartisan committee to draft parental leave regulations for the Massachusetts Commission Against Discrimination. In 2016, Ms. Kimball was appointed to serve as a commissioner on the Massachusetts Commission on the Status of Women, and in 2018, she was elected chair of the commission. She has been consistently recognized as a Massachusetts and New England “Super Lawyer,” and was named as one of the Top Women of Law for 2012 by Massachusetts Lawyers Weekly. Ms. Kimball is a graduate of Yale College and the George Washington University Law School, where she was editor in chief of the George Washington Law Review. GWEN NOLAN KING is counsel in the Boston firm of Sugarman, Rogers, Barshak & Cohen, PC, where she focuses her practice on complex business, employment, professional liability, real estate, and products liability litigation. She has successfully represented clients in complex commercial disputes before both federal and state judiciaries. In addition to representation in litigation, she regularly advises clients on contractual negotiations and employment issues in an effort to reduce the risk of future litigation. Ms. King is an active member of both the Boston Bar Association, where she is on the steering committee for the College & University Section, and the Women’s Bar Association of Massachusetts, where she is a member of the board. She is a graduate of Fairfield University and Cornell Law School.

vi

2nd Edition 2020 | MCLE, Inc.

DANIEL B. KLEIN is a partner in the labor and employment department and a member of the complex discrimination litigation practice group in the Boston office of Seyfarth Shaw LLP. He counsels employers on disability accommodation, family and medical leave, workplace investigations, wage-and-hour compliance, commissions disputes, performance assessment and discipline, terminations, reductions in force, training, background checks, whistle-blower claims, defamation, handbook and policy review, and trade secrets protection strategies. He defends employers in multiplaintiff discrimination lawsuits, Equal Employment Opportunity Commission pattern-or-practice cases, and collective actions under the Fair Labor Standards Act. Mr. Klein is a graduate of Colgate University and Boston College Law School. ARIELLE B. KRISTAN is an attorney with Hirsch Roberts Weinstein LLP in Boston, where she represents businesses and nonprofits in employment and business disputes. She frequently represents employers in defending claims of discrimination and retaliation before the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission. Ms. Kristan also advises and counsels clients in avoiding employee conflict, minimizing litigation risks, and compliance with federal and state employment laws. She is a member of the Boston Bar Association and the Women’s Bar Association of Massachusetts, and has served as a director of the Massachusetts LGBTQ Bar Association. She has been recognized as a “Rising Star” by Massachusetts Super Lawyers each year since 2014. Ms. Kristan is a graduate of Tufts University and Boston University School of Law. ALLYSON E. KURKER is a partner at Kurker Paget LLC in Waltham. She counsels businesses on preventive measures to avoid litigation. When litigation cannot be avoided, Ms. Kurker represents her clients in state and federal courts, as well as before administrative agencies. She is a member of the committee tasked with redrafting the Massachusetts Commission Against Discrimination’s parental leave regulations. Ms. Kurker has earned an AV preeminent peer review rating from MartindaleHubbell and has been named a Massachusetts “Super Lawyer” each year since 2013. Prior to forming Kurker Paget LLC, she was an associate in the labor and employment group at Bingham McCutchen. Ms. Kurker is a graduate of Connecticut College and Northeastern University School of Law. JENNIFER L. LEVI is director of the transgender rights project of GLBTQ Legal Advocates & Defenders in Boston. She is also a professor at Western New England University School of Law and a member of the Transgender Law and Policy Institute, the Massachusetts Transgender Political Coalition, and the legal committee of the World Professional Association for Transgender Health. She is a graduate of Wellesley College and the University of Chicago Law School. ROBERT S. MANTELL is a partner at Powers, Jodoin, Margolis & Mantell LLP in Boston. He represents employees in discrimination, harassment, and wages-benefits issues, including negotiating separation and severance agreements, obtaining unemployment benefits, and opposing the enforcement of onerous noncompetition agreements. Mr. Mantell is a member of MCLE’s Employment Law Curriculum Advisory Committee, and served a two-year term on the Massachusetts Bar Association’s Labor

MCLE, Inc. | 2nd Edition 2020

vii

Employment Discrimination in Massachusetts

& Employment Section council. Mr. Mantell is a graduate of Tufts University (B.A.), Duke University (M.A.), and Duke University School of Law (J.D.). JOHANNA L. MATLOFF is a partner at Conn Kavanaugh Rosenthal Peisch & Ford LLP in Boston, where she practices in the area of civil litigation, including employee benefits, nonprofit litigation, commercial disputes, products liability, and insurance. She counsels employers regarding employment-related policies and agreements, including noncompetition and nonsolicitation agreements, severance agreements, and employee handbooks. Ms. Matloff has been selected as a “Rising Star” by Law & Politics and the publishers of Boston magazine for each year in which she was eligible since 2005. Outside of the office, she uses her legal skills to support her community, including serving on The Jewish Journal’s executive committee and board of overseers. She also enjoys running and coaching youth soccer. Ms. Matloff is a graduate of the University of Pennsylvania and Suffolk University Law School. STEPHEN T. MELNICK is a shareholder of Littler Mendelson, PC, in Boston, where he counsels and represents employers in a broad range of employment matters. In particular, he focuses his practice on wage-and-hour law, discrimination and harassment, unfair competition and trade secrets, whistle-blowing and retaliation, and complex litigation and class actions. His clients come from a variety of industries, including health care, technology, retail, and transportation. Prior to joining Littler Mendelson, Mr. Melnick worked as a field representative for both the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination. He is a graduate of Cornell University and Boston College Law School. KATHERINE J. MICHON is a partner of Hartley Michon Robb LLP in Boston, where she focuses her practice on employment law. She is particularly well known for her work on senior executive transition matters, including change-in-control, severance, retention, retirement, and compensation agreements, as well as noncompetition covenants. She also advises small companies in sophisticated employment matters. Along with her partners, she cofounded the firm’s nationally ranked executive advocacy practice. Ms. Michon has been recognized as a top attorney in her field by Massachusetts Lawyers Weekly, Boston magazine, The Best Lawyers in America, and Chambers USA. A frequent author and speaker on cutting-edge issues in employment law, she is a coauthor of the commentary for the Massachusetts Discrimination Law Reporter and is a past cochair of the Boston Bar Association’s Labor & Employment Law Section. JULIE M. MULLER is an associate at Conn Kavanaugh Rosenthal Peisch & Ford LLP in Boston, where she practices in the area of civil litigation, including business litigation, employment litigation, and probate litigation. She also maintains a pro bono practice representing survivors of domestic violence in family law cases. Ms. Muller is a member of the Women’s Bar Association of Massachusetts and the Boston Bar Association. Prior to joining Conn Kavanaugh, she was a member of the investment management practice group at Morgan Lewis and a law clerk to the Honorable Francis X. Spina of the Massachusetts Supreme Judicial Court. She is a graduate of Allegheny College and Suffolk University Law School.

viii

2nd Edition 2020 | MCLE, Inc.

SEAN P. O’CONNOR is a partner at Morgan, Brown & Joy LLP in Boston. His practice focuses on the representation of employers in a full range of labor and employment matters, including claims of employment discrimination, retaliation, wrongful discharge, wage-and-hour disputes, misappropriation of trade secrets, restrictive covenant violations, and unfair labor practice charges. He advises clients in nonlitigation matters such as workplace investigations, employee discipline, reductions in force, separation and severance agreements, commission and bonus plans, employment policies and handbooks, employee accommodation and leave issues, as well as other issues involving state and federal labor and employment laws. Mr. O’Connor drafts and enforces employment agreements, noncompetition and nonsolicitation agreements, and nondisclosure agreements. He zealously represents his clients when their practices are challenged, including before state and federal courts, arbitrators, and administrative agencies. He has successfully defended clients in class actions, collective actions, and individual actions, including multiple appellate cases before the First Circuit Court of Appeals and the Massachusetts Appeals Court. Mr. O’Connor is a member of the bars of Maine, Massachusetts, and New York and is admitted to practice in numerous federal courts. He is a graduate of the University of Maryland and Northeastern University School of Law. MARY E. (BETH) O’NEAL is a partner with Conn Kavanaugh Rosenthal Peisch & Ford LLP in Boston. She focuses her practice on employment law and employment litigation, representing management clients and executives; business litigation; and alcoholic beverages franchise litigation and licensing. She has extensive litigation experience in state and federal courts and before administrative agencies (including the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission), defending employers in all aspects of employmentrelated matters, including wage-and-hour, discrimination, and unlawful termination claims. She advises employers on issues involving best employment practices and procedures, as well as state and federal employment laws and regulations that impact the workplace, including the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans with Disabilities Act, and numerous other state and federal laws. Ms. O’Neal also prepares employment policies for employers and conducts training for management and human resources personnel. In addition, she advises and negotiates on behalf of her clients, employers and executives alike, in the area of employment, severance, noncompetition, nonsolicitation, and change in control agreements. She is a graduate of Boston College and Suffolk University Law School. LUCIA A. PASSANISI is an associate attorney at Todd & Weld LLP in Boston. She focuses her practice in employment law, counseling clients in a variety of matters, including noncompetition and nonsolicitation issues, nonpayment of wages and Wage Act claims, breach of fiduciary duty issues, trade secret disputes, and sexual harassment and discrimination claims. Ms. Passanisi graduated summa cum laude from Boston College and received her law degree from Northeastern University School of Law. DAHLIA C. RUDAVSKY is a partner of Messing, Rudavsky & Weliky, PC, in Newton. A fellow of the College of Labor and Employment Lawyers, she concentrates her practice on the representation of individual employees and unions, with an emMCLE, Inc. | 2nd Edition 2020

ix

Employment Discrimination in Massachusetts

phasis on discrimination cases. She was the 1990 recipient of the Georgina Smith Award of the American Association of University Professors for “outstanding advocacy on behalf of academic women,” and continues to represent large numbers of university faculty in tenure, promotion, equal pay, and other discrimination cases. In 2011, Ms. Rudavsky won a victory at the Supreme Judicial Court that extended the antiretaliation provisions of the Massachusetts law against discrimination to former employees. Recognized in the 2014, 2017, and 2019 editions of The Best Lawyers in America as “Lawyer of the Year” for the Boston area in the representation of individuals in employment matters, Ms. Rudavsky was named one of Massachusetts Lawyers Weekly’s “Lawyers of the Year” for 1999 and Boston Area Lawyer of the Year in the area of union representation by The Best Lawyers in America for 2016. She has taught labor law at Harvard Law School as a lecturer in law. Ms. Rudavsky is a graduate of Yale University (magna cum laude) and the University of California at Berkeley School of Law. ROBERT M. SHEA is a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart, PC, in Boston, where he handles employment litigation and advises clients on the full range of employment law matters, including employment agreements, independent contractor agreements, and separation agreements; discipline and discharge; harassment complaints; wage-and-hour compliance; noncompetition; and workforce reductions. He also conducts workplace training and employment law audits and is an arbitrator and mediator, resolving employment contract disputes and statutory claims. Mr. Shea is a graduate of Boston College and the George Washington University National Law Center. MICHAEL E. STEINBERG is an associate in the labor and employment department of Seyfarth Shaw LLP in Boston. His practice includes counseling employers regarding antidiscrimination laws and defending employers against claims of discrimination, harassment, retaliation, and wrongful termination. He also represents employers in wage-and-hour matters. Mr. Steinberg is a graduate of Tufts University and Boston University School of Law. JAMES S. WELIKY, a partner at Messing, Rudavsky & Weliky, PC, in Newton, concentrates his practice in plaintiff’s employment law. For more than twenty years, Mr. Weliky has successfully represented employees in cases involving discrimination, sexual harassment, wrongful termination, and a variety of other employment claims in federal and state court and before numerous administrative agencies, including the Massachusetts Commission Against Discrimination and the U.S. Equal Employment Opportunity Commission. Mr. Weliky has also been an active member of a number of bar associations, including the Boston and Massachusetts Bar Associations and the Massachusetts Employment Lawyers Association. He is a regular panelist for MCLE and has authored or coauthored a number of amicus briefs in key cases that have helped shape the practice of employment law in Massachusetts.

x

2nd Edition 2020 | MCLE, Inc.

TABLE OF CONTENTS Chapter 1

Overview of Employment Discrimination David Conforto, Esq. Conforto Law Group, Boston Alexandra H. Deal, Esq. Strang, Scott, Giroux & Young LLP, Boston

Chapter 2

Age Discrimination Robert S. Mantell, Esq. Powers, Jodoin, Margolis & Mantell LLP, Boston Sean P. O’Connor, Esq. Morgan, Brown & Joy LLP, Boston

Chapter 3

Gender Discrimination Gavriela M. Bogin-Farber, Esq. Messing, Rudavsky & Weliky, PC, Newton Alida Bográn-Acosta, Esq. Tufts University, Medford Gwen Nolan King, Esq. Sugarman, Rogers, Barshak & Cohen, PC, Boston Dahlia C. Rudavsky, Esq. Messing, Rudavsky & Weliky, PC, Newton James S. Weliky, Esq. Messing, Rudavsky & Weliky, PC, Newton

Chapter 4

Disability Discrimination Richard L. Alfred, Esq. Seyfarth Shaw LLP, Boston Anthony S. Califano, Esq. Seyfarth Shaw LLP, Boston Patrick J. Hannon, Esq. Hartley Michon Robb LLP, Boston Daniel B. Klein, Esq. Seyfarth Shaw LLP, Boston Michael E. Steinberg, Esq. Seyfarth Shaw LLP, Boston

MCLE, Inc. | 2nd Edition 2020

xi

Employment Discrimination in Massachusetts

Chapter 5

Pregnancy Discrimination Johanna L. Matloff, Esq. Conn Kavanaugh Rosenthal Peisch & Ford LLP, Boston Katherine J. Michon, Esq. Hartley Michon Robb LLP, Boston Julie M. Muller, Esq. Conn Kavanaugh Rosenthal Peisch & Ford LLP, Boston Mary E. (Beth) O’Neal, Esq. Conn Kavanaugh Rosenthal Peisch & Ford LLP, Boston Lucia A. Passanisi, Esq. Todd & Weld LLP, Boston

Chapter 6

Race, Ethnicity, and National Origin Discrimination Sherley Cruz, Esq. University of Tennessee College of Law, Knoxville, TN Allyson E. Kurker, Esq. Kurker Paget LLC, Waltham

Chapter 7

Religious Discrimination Anne L. Josephson, Esq. Kotin, Crabtree & Strong LLP, Boston Robert M. Shea, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, PC, Boston

Chapter 8

Sexual Harassment Shannon M. Berube, Esq. Seyfarth Shaw LLP, Boston Justine H. Brousseau, Esq. Kimball Brousseau LLP, Boston Nina Joan Kimball, Esq. Kimball Brousseau LLP, Boston Stephen T. Melnick, Esq. Littler Mendelson, PC, Boston

Chapter 9

Sexual Orientation Discrimination and Same-Sex and LGBTQ Sexual Harassment Mary L. Bonauto, Esq. GLBTQ Legal Advocates & Defenders, Boston Arielle B. Kristan, Esq. Hirsch Roberts Weinstein LLP, Boston Jennifer L. Levi, Esq. GLBTQ Legal Advocates & Defenders, Boston

xii

2nd Edition 2020 | MCLE, Inc.

Chapter 10

Gender Identity Discrimination Arielle B. Kristan, Esq. Hirsch Roberts Weinstein LLP, Boston

Table of Cases Table of Statutes, Rules, and References Index TABLE OF CHECKLISTS AND EXHIBITS CHECKLIST 2.1—Age Discrimination Strategy Checklist for Defense Attorneys ........................................................................................... 2–29 CHECKLIST 4.1—Plaintiff’s Burden of Proof When Alleging Employer’s Failure to Provide Reasonable Accommodation ................................................. 4–105 CHECKLIST 4.2—Disability Discrimination: Strategy Options for Employers...................................................................................................... 4–106 CHECKLIST 6.1—Strategy Options for Plaintiff in Race, Ethnicity, or National Origin Discrimination Claim.............................................................. 6–18 CHECKLIST 6.2—Strategy Options for Defendant in Race, Ethnicity, or National Origin Discrimination Claim.............................................................. 6–19 CHECKLIST 8.1—Harassment Investigation Checklist ...................................... 8–54 EXHIBIT 8A—MCAD Sexual Harassment Guidelines ....................................... 8–57 EXHIBIT 8B—MCAD’S Model Sexual Harassment Prevention Policy.............. 8–82 CHECKLIST 9.1—Same-Sex Sexual Harassment and Sexual Orientation Discrimination Checklist of Possible Defenses for the Employer ........................ 9–49

MCLE, Inc. | 2nd Edition 2020

xiii

CHAPTER 1

Overview of Employment Discrimination David Conforto, Esq. Conforto Law Group, Boston

Alexandra H. Deal, Esq. Strang, Scott, Giroux & Young LLP, Boston § 1.1

Introduction............................................................................................. 1–1

§ 1.2

“Black-Letter Law” in Disparate Treatment Cases ............................. 1–2

§ 1.3

Adverse Impact Claims of Discrimination............................................ 1–5

Scope Note This chapter provides a basic introduction to employment discrimination law, covering both theories of liability: disparate treatment and disparate impact. It lays out the elements of a case, the parties’ respective burdens of proof, and relevant case law.

§ 1.1

INTRODUCTION

An employee who has been discriminated against on the basis of their race, gender, age, or membership in another protected category rarely has “direct” evidence of discrimination because an employer is unlikely to tell an employee that it is making an adverse decision about the employee because of the employee’s legally protected characteristic. Instead, the vast majority of discrimination cases involve “indirect” or circumstantial evidence of disparate treatment. Circumstantial evidence is no less powerful than direct evidence, however. See Desert Place, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.”) (citing Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 508, n.17 (1957)). For example, a highly qualified woman may claim that she was denied a promotion because of her gender when the employer promoted a less qualified man instead. The plaintiff would present circumstantial evidence of discriminatory treatment and the fact finder may draw inferences from the evidence to determine that the employer’s decision violated G.L. c. 151B or the applicable federal statute. Both federal and state courts have adopted frameworks for considering claims of disparate treatment where there is no direct evidence of the employer’s discriminatory intent. This overview of Massachusetts discrimination law focuses on both disparate treatment and disparate impact cases. The overview sets forth “black letter” law on the elements of and the parties’ respective burdens in a disparate treatment case and presents a summary of the burdens in disparate impact discrimination cases. MCLE, Inc. | 2nd Edition 2020

1–1

§ 1.2

§ 1.2

Employment Discrimination in Massachusetts

“BLACK-LETTER LAW” IN DISPARATE TREATMENT CASES

Where an employee relies on indirect evidence of discrimination, the employee “must demonstrate four things: that he or she is a member of a protected class; that he or she was subject to an adverse employment action; that the employer bore ‘discriminatory animus’ in taking that action; and that animus was the reason for the action (causation).” Bulwer v. Mt. Auburn Hosp., 473 Mass. 672, 680 (2016) (citing Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001)). Where there is no direct evidence, an employee may instead provide indirect or circumstantial evidence of discrimination. One method of doing so is by “using the familiar three-stage, burdenshifting paradigm first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–805 (1973).” Bulwer v. Mt. Auburn Hosp., 473 Mass. at 680. In the first stage, the plaintiff must produce “evidence of a prima facie case of discrimination,” showing that • they are a member of a class protected by G.L. c. 151B; • they performed their job at an acceptable level; • they were treated differently than another person not in their protected class but otherwise similarly situated; and • they suffered an adverse action. Yee v. Mass. State Police, 481 Mass. 290, 294–95 (2019) (citing Trs. of Health & Hosps. of Bos., Inc. v. MCAD, 449 Mass. 675, 681–82 (2007); Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 396 (2016). See Yee v. Mass. State Police, 481 Mass. at 295 n.5 (“The elements of the prima facie case may vary depending on the nature of the discrimination claim.”). “[T]he plaintiff’s initial burden of establishing a prima facie case is not intended to be onerous.” Sullivan v. Liberty Mut. Ins., 444 Mass. 34, 45 (2005). Rather, “[i]t is meant to be a small showing that is easily made.” Sullivan v. Liberty Mut. Ins., 444 Mass. at 45. If the plaintiff meets the burden of establishing a prima facie case, “unlawful discrimination is presumed” and the burden of production shifts to the employer. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). In the second stage, the employer must articulate a “legitimate, nondiscriminatory reason for its employment decision.” Yee v. Mass. State Police, 481 Mass. at 302 (citing Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 397 (additional citation omitted)). The employer’s obligation is “to produce both ‘lawful . . . reasons for [its] employment decision’ and ‘credible evidence to show that the . . . reasons advanced were the real reasons.’” Bulwer v. Mt. Auburn Hosp., 473 Mass. at 683 (quoting Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. 437, 442 (1995)). Such reasons must have been known to the employer at the time it took the adverse action. City of Boston v. MCAD, 39 Mass. App. 234, 241 (1995) (“[t]he basis for discharge must be one which is known to the employer at the time of termination” where employer sought to rely on an allegedly falsified application). Like the plaintiff’s burden in the prima facie stage, the employer’s burden is “not meant to be 1–2

2nd Edition 2020 | MCLE, Inc.

Overview of Employment Discrimination

§ 1.2

onerous.” Yee v. Mass. State Police, 481 Mass. at 302 (citing Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. at 442). “Even if the reasons given are arguably suspect, so long as the [employer] has produced a lawful reason backed by some credible evidence, it has satisfied this burden.” Yee v. Mass. State Police, 481 Mass. at 302 (citing Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 128). Nevertheless, in order to meet its burden, the employer’s “explanation must not be wholly unbelievable such that an underlying discriminatory motive is obvious.” Yee v. Mass. State Police, 481 Mass. at 302 (citing Wheelock Coll. v. MCAD, 371 Mass. 130, 138 (1976)). It is important to note that an employer’s contention that an employee was not performing at an acceptable level must only be viewed at the “pretext” and final stage of the McDonnell Douglas burden-shifting framework and cannot be used as a means to challenging the employee’s prima facie case. Fontaine v. Ebtec Corp., 415 Mass. 309, 312 n.6 (1993); Williams v. Frank, 757 F. Supp. 112, 117 (D. Mass. 1991) (the incident involving alleged poor performance “is more logically viewed as a defense to be raised by the employer at the second stage of the McDonnell Douglas framework rather than an impediment to the plaintiff’s prima facie case”). At the third stage, the burden shifts back to the employee to produce evidence that “the employer’s articulated justification [for the adverse action] is not true but a pretext.” Bulwer v. Mt. Auburn Hosp., 473 Mass. at 681 (quoting Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. at 443) (alteration in original)). Since direct, “smoking gun” evidence is rare, the employee may carry their burden of persuasion with circumstantial evidence that persuades the fact finder that the employer’s explanation is not credible. City of Salem v. MCAD, 44 Mass. App. Ct. 627, 642 (1998). The employee’s proof of pretext may include showing “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action.” City of Salem v. MCAD, 44 Mass. App. Ct. at 643 (citations omitted); see also Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) (“The reasonableness of the employer’s reasons may of course be probative of whether they are pretexts. The more idiosyncratic or questionable the employer’s reason, the easier it will be to expose it as a pretext, if indeed it is one.”). Massachusetts is a “pretext only” jurisdiction. Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. 437, 444–45 (1995) (“once a plaintiff has established a prima facie case and further shows either that the employer’s articulated reasons are a pretext or by direct evidence that the actual motivation was discrimination, the plaintiff is entitled to recovery for illegal discrimination under G.L. c. 151B”). This means that discrimination can be proved by showing that the employer’s justifications were not the real reasons “even if that evidence does not show directly that the true reasons were, in fact, discriminatory.” Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 397. Presenting evidence that just one of the many reasons advanced by an employer to justify the adverse action is false is sufficient to allow a jury to infer unlawful motive. Lipchitz v. Raytheon Co., 434 Mass. at 499. It is important to note that proof of pretext combined with the established prima facie case “‘eliminates any legitimate explanation for the adverse hiring decision and warrants,’ but does not require, ‘a determination that the plaintiff was the victim of unlawful discrimination.’” Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 397 (quoting Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. at 446). MCLE, Inc. | 2nd Edition 2020

1–3

§ 1.2

Employment Discrimination in Massachusetts

The particulars of the prima facie case may vary depending on the specific circumstances giving rise to the claim of discrimination. Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. at 441. For example, in Yee v. Massachusetts State Police, the Supreme Judicial Court observed that courts must necessarily examine the question of whether a plaintiff suffered an adverse employment action on a case-by-case basis, since what is adverse to one employee may not be adverse to another in a different set of circumstances. Yee v. Mass. State Police, 481 Mass. at 296–97 (holding that where an employee can show material differences between two positions in the opportunity for compensation or in the terms, conditions, or privileges of employment, the failure to grant a lateral transfer to the preferred position may constitute an adverse employment action under Chapter 151B). Additionally, the first element of the prima facie case, “membership in a protected class,” has been expanded under Massachusetts law to allow for claims of “associational discrimination.” Flagg v. AliMed, Inc., 466 Mass. 23 (2013). As the Supreme Judicial Court explained in Flagg, “[t]he term ‘associational discrimination’ refers to a claim that a plaintiff, although not a member of a protected class himself or herself, is the victim of discriminatory animus directed toward a third party who is a member of the protected class and with whom the plaintiff associates.” Flagg v. AliMed, Inc., 466 Mass. at 27 (citations omitted). Thus, where an employer takes an adverse action against an employee premised on discriminatory animus directed at a person with whom that employee associates (a spouse, for example), “this form of discrimination fits within the scope of c. 151B.” Flagg v. AliMed, Inc., 466 Mass. at 27, 37 (associational discrimination based on handicap is prohibited under Section 4(16)). Subsequent cases in the U.S. District Court for the District of Massachusetts have limited Flagg’s application in federal litigation, however. Fenn v. Mansfield Bank, 2015 WL 628560 (D. Mass. Feb. 12, 2015) (Flagg did not require that a reasonable accommodation be made for an employee on account of their spouse’s condition, and that Section 4(16) would not be violated merely because an employee was discharged after demanding a work accommodation, because of a disabled spouse, that the employer denied); Perez v. Greater New Bedford Vocational Tech. Sch. Dist., 988 F. Supp. 2d 105, 111 (D. Mass. 2013) (Flagg limited its analysis to associational claims involving immediate family members; declined to extend Flagg reasoning to a specialeducator who worked with disabled children, finding that the plaintiff was fired “because she advocated for the interests of disabled children . . . [not because] she was subject to the same prejudice, stereotypes, or unfounded fear that accompanies discrimination against the handicapped”). As with Chapter 151B, the plaintiff’s proof that the defendant’s proffered reasons for the adverse action are not credible may be sufficient for a plaintiff to prevail under federal antidiscrimination statutes (i.e., the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Title VII). Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000). This discretion to infer unlawful motive based on an employer’s dishonesty alone marked a departure from the “pretext-plus” standard created by the Supreme Court in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Compare Reeves v. Sanderson Plumbing Prods., 530 U.S. at 147 (“the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose”), with St. Mary’s Honor Ctr. v. Hicks, 1–4

2nd Edition 2020 | MCLE, Inc.

Overview of Employment Discrimination

§ 1.2

509 U.S. at 523–24 (“Title VII does not award damages against employers who cannot prove a nondiscriminatory reason for adverse employment action, but only against employers who are proven to have taken adverse employment action by reason of (in the context of the present case) race.”).

§ 1.3

ADVERSE IMPACT CLAIMS OF DISCRIMINATION

In addition to disparate treatment, a plaintiff can prove discrimination under Title VII using an adverse impact theory of liability. Adverse impact claims involve a facially neutral employment practice or policy that, when applied, causes a significant adverse impact on a protected group of employees, of which the plaintiff is a member. These claims focus not on the intent of the employer but on the consequences of the employer’s practice or policy. See Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (non-job-related requirement of high school diploma had adverse impact on African Americans). Federal courts have extended the adverse impact theory of liability from Title VII cases to cases brought under the Americans with Disabilities Act (ADA), Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003) (dictum) (“Both disparate-treatment and disparate-impact claims are cognizable under the ADA.”), and the Age Discrimination in Employment Act (ADEA), Smith v. City of Jackson, 544 U.S. 228 (2005). However, the scope of disparate impact liability under the ADEA is narrower than under Title VII because the ADEA contains a provision that permits employment actions, otherwise prohibited, if they are based on “reasonable factors” other than age. Smith v. City of Jackson, 544 U.S. at 237. The Court held that, to pursue a disparate impact claim under the ADEA, plaintiffs must “isolate and identify the specific employment practices that are allegedly responsible for any observed statistical disparities.” Smith v. City of Jackson, 544 U.S. at 241. Adverse impact claims are also recognized under G.L. c. 151B. See, e.g., Cox v. New Eng. Tel. & Tel. Co., 414 Mass. 375, 385 (1993) (adverse impact theory available in handicap discrimination claim); Sch. Comm. of Braintree v. MCAD, 377 Mass. 424, 429 (1979) (disparate treatment and disparate impact are available theories of liability in gender discrimination case); Lopez v. Commonwealth, 463 Mass. 696, 709 (2012) (disparate impact available in race, color, or national origin discrimination case). Age discrimination claims based on a theory of disparate impact are also available under Chapter 151B. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 n.10 (2005) (while noting plaintiff’s claims were based on disparate treatment theory, Supreme Judicial Court commented on theory of disparate impact); Luyen Huu Nguyen v. William Joiner Ctr. for the Study of War & Soc. Consequences, 450 Mass. 291, 294 (2007) (availability of disparate impact theory in age discrimination cases although claims dismissed on procedural grounds); Porio v. Dep’t of Revenue, 80 Mass. App. Ct. 57, 66 (2011) (citing Sch. Comm. of Braintree v. MCAD, 377 Mass. at 429 n.10 (disparate impact theory available in age discrimination cases)). MCLE and the authors are grateful to Lynn G. Weissberg, Esq., for her contributions to a previous version of this chapter. MCLE, Inc. | 2nd Edition 2020

1–5

CHAPTER 2

Age Discrimination Robert S. Mantell, Esq. Powers, Jodoin, Margolis & Mantell LLP, Boston

Sean P. O’Connor, Esq. Morgan, Brown & Joy LLP, Boston § 2.1

Controlling Authority and Types of Claims .......................................... 2–2 § 2.1.1 The General Prohibition Against Age Discrimination............ 2–2 § 2.1.2 The Burden of Proof............................................................... 2–3 (a) Disparate Impact ............................................................. 2–4 (b) Disparate Treatment ........................................................ 2–5 § 2.1.3 Firing Older Workers to Save on Salary or Benefits Costs ... 2–13 § 2.1.4 Retirement and Succession Issues ........................................ 2–14

§ 2.2

Defenses ................................................................................................. 2–15 § 2.2.1 Statutory Defenses ............................................................... 2–15 (a) Bona Fide Occupational Qualification .......................... 2–16 (b) Reasonable Factors Other Than Age and Good Cause .. 2–16 (c) Bona Fide Seniority System, Bona Fide Employee Benefit Plan, or Retirement Policy ................................ 2–17 (d) Other Statutory Defenses .............................................. 2–17 (e) General Defenses .......................................................... 2–18 § 2.2.2 Remedies and Damages ....................................................... 2–19 (a) ADEA Damages............................................................ 2–19 (b) General Laws Chapter 151B Damages ......................... 2–20 § 2.2.3 Deadlines and Procedural Requirements .............................. 2–21 (a) Administrative Charge .................................................. 2–21 (b) Other Prerequisites for Pursuing a Civil Action Under G.L. c. 151B ....................................................... 2–22 (c) Other Prerequisites for Pursuing a Civil Action Under the ADEA ........................................................... 2–23 § 2.2.4 Choice of Law and Forum .................................................... 2–23 § 2.2.5 Survival of Claims ................................................................ 2–25

§ 2.3

Settlements and Releases ...................................................................... 2–25 § 2.3.1 General Requirements .......................................................... 2–25 § 2.3.2 Requirements Specific to Employment Termination Programs .............................................................................. 2–26 § 2.3.3 EEOC’s Enforcement Power ................................................ 2–27 § 2.3.4 The OWBPA’s Danger—No Tender Back Requirement ...... 2–28

CHECKLIST 2.1—Age Discrimination Strategy Checklist for Defense Attorneys .............................................................................................................. 2–29 MCLE, Inc. | 2nd Edition 2020

2–1

§ 2.1

Employment Discrimination in Massachusetts

Scope Note This chapter provides an overview of age discrimination claims based on theories of disparate impact and disparate treatment. It sets forth the elements of a claim under federal and state statutes, along with defenses, available remedies and damages, choice of forum, statutes of limitations, procedural requirements for filing, settlements, and releases.

§ 2.1

CONTROLLING AUTHORITY AND TYPES OF CLAIMS

Massachusetts and federal statutes prohibit age discrimination in employment. The law presents a daunting array of legal and procedural issues. Massachusetts General Laws Chapter 151B and the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., are the principal focus of this chapter. However, it should also be recognized that other common law or statutory remedies for age discrimination may be applicable. See G.L. c. 93, § 103; G.L. c. 31, § 1; G.L. c. 149, § 24A; 5 U.S.C. § 2301(b)(2); Comey v. Hill, 387 Mass. 11, 20 (1982) (tort claims may be brought based on age discrimination).

§ 2.1.1

The General Prohibition Against Age Discrimination

An employer may not subject an employee to an adverse employment action because of the employee’s age if that employee is over forty. 29 U.S.C. §§ 623(a)(1), 631(a); G.L. c. 151B, §§ 1(8), 4(1B). This prohibition prevents an employer from preferring a younger employee to an older employee based on the employees’ ages. However, it is clear, at least under the ADEA, that an employer is free to favor older employees over younger employees because of their ages. Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 599–600 (2004). The prohibition of age discrimination applies to a wide range of adverse actions, including • termination or constructive discharge; • reassignment or suspension, see Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68–73 (2006); • refusal to hire or promote; • provision of compensation, benefits, or privileges of employment; • harassment, Collazo v. Nicholson, 535 F.3d 41, 44 (1st Cir. 2008) (with limits on remedies); • retaliation, 29 U.S.C. § 623(d); G.L. c. 151B, § 4(4); see Gomez-Perez v. Potter, 553 U.S. 474, 479–87 (2008) (recognizing ADEA retaliation claim for federal employees); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 67 (Title VII antiretaliation provision extends to reprisals taking place outside the workplace); 2–2

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

§ 2.1

• segregation or limitation, 29 U.S.C. § 623(a)(2); • publication of job advertisements indicating any preference or limitation based on age, 29 U.S.C. § 623(d); G.L. c. 151B, § 4(3); and • some inquiries with regard to the age of a job applicant, 804 C.M.R. § 3.02. The general prohibition against age discrimination restricts the conduct of certain private employers, governmental entities, labor organizations, and employment agencies. 29 U.S.C. §§ 623(b), 623(c), 630(b), 630(c), 630(d), 633(a); G.L. c. 151B, §§ 4(1C), 4(2), 4(3). An important exception is that the ADEA does not apply to state employers that fail to consent to such suits. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 79 (2000). However, a public employee’s right to sue the Commonwealth of Massachusetts for age discrimination remains under G.L. c. 151B. The ADEA applies to private employers in industries affecting commerce with twenty or more employees. 29 U.S.C. § 630(b) (setting forth test for determining number of employees). The ADEA applies to governmental entities of all sizes. Mt. Lemmon Fire Dist. v. Guido, 139 S. Ct. 22, 25–27 (2018). General Laws Chapter 151B applies to private employers with six or more employees. G.L. c. 151B, § 1(5). When a Massachusetts employer with fewer than six employees engages in age discrimination, G.L. c. 93, § 103 may provide a remedy. Section 103 provides that older persons and handicapped persons have the same rights as other persons “to make and enforce contracts, inherit, purchase, lease, sell, hold and convey real estate and personal property, sue, be parties, give evidence and to the full and equal benefit of all laws and proceedings for the security of persons and property.” G.L. c. 93, § 103. As the ADEA provides the exclusive remedy for federal employees alleging age discrimination, federal employees may sue under the ADEA but not under Chapter 151B. Rossiter v. Potter, 257 F. Supp. 2d 440, 442 (D. Mass. 2003), rev’d on other grounds, 357 F.3d 26 (1st Cir. 2004). The ADEA prohibition against age discrimination against federal employees, that all personnel actions must be “free from any discrimination based on age,” appears to be broader than ADEA protections for private employees. Compare 29 U.S.C. § 633a(a) with 29 U.S.C. § 623(a)(1). Individuals such as harassers, or managers initiating discriminatory job actions, may be sued in their individual capacities under G.L. c. 151B. G.L. c. 151B, §§ 4(4A), 4(5); Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480 (2000). While the First Circuit has not yet addressed whether there is individual liability under the ADEA, the U.S. District Court for the District of Massachusetts has ruled that there is not. See Butler v. Adecco USA Inc., 189 F. Supp. 3d 305, 309 (D. Mass. 2016); Ventura v. Hanitchak, 719 F. Supp. 2d 132, 137 (D. Mass. 2010).

§ 2.1.2

The Burden of Proof

The plaintiff-employee’s ultimate burden of proof is to demonstrate that they were subjected to an adverse employment action because of their age. The employee retains the burden of persuasion to prove by a preponderance of the evidence that the adverse employment action would not have taken place “but for” the employee’s age. MCLE, Inc. | 2nd Edition 2020

2–3

§ 2.1

Employment Discrimination in Massachusetts

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175–78 (2009). The employee may use direct or circumstantial evidence. Gross v. FBL Fin. Servs., Inc., 557 U.S. at 177. In further discussing burden of proof, this chapter will focus on wrongful termination claims, as these are the most frequent types of age claims. There are two principal types of age discrimination claims: disparate treatment and disparate impact. Where an employee asserts that they were terminated because of their age, the case is considered one of disparate treatment. Where an employee asserts that they were terminated due to a facially age-neutral policy that adversely impacts older workers, that case is considered one of disparate impact. Disparate treatment and disparate impact theories may be applied to the same set of facts. The plaintiff’s lawyer should explicitly state in the complaint which theory or theories will be pursued.

(a)

Disparate Impact

The disparate impact theory permits a plaintiff to demonstrate age discrimination with proof that an apparently neutral employment practice disproportionately and negatively affects older workers. The Supreme Court has held that the ADEA authorizes recovery under the disparate impact theory. Smith v. City of Jackson, 544 U.S. 228, 238 (2005). The state of the law under G.L. c. 151B is more complicated. The First Circuit has held that there is no age/impact claim under G.L. c. 151B. Mullin v. Raytheon Co., 164 F.3d 696 (1st Cir. 1999). The Supreme Judicial Court has not yet directly resolved the issue of whether an age/impact claim exists under G.L. c. 151B. However, because the Supreme Judicial Court has relied on federal court interpretations of analogous federal statutes when construing G.L. c. 151B, the U.S. Supreme Court’s decision in Smith v. City of Jackson, 544 U.S. 228 (2005), raises a question as to the continuing viability of the First Circuit’s holding in Mullin. It has been argued that there may be a cognizable age/impact theory under G.L. c. 151B. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39 n.10 (2005); R. Mantell, “Age Discrimination Shown by Disparate Impact,” 6 MBA Section Rev. No. 2, 24 (2004). Moreover, the Massachusetts Appeals Court has held that age discrimination claims brought against the Commonwealth may be brought under a disparate impact theory. See Porio v. Dep’t of Revenue, 80 Mass. App. Ct. 57 (2011). The U.S. District Court for the District of Massachusetts has also held that a G.L. c. 151B age discrimination claim may be brought against a private employer under a disparate impact theory. Seifaee v. Areva, Inc., No. 14-12621-RGS, 2015 WL 6962833, at *4–5 (D. Mass. Nov. 10, 2015) (relying on Smith and Porio to conclude that Mullin v. Raytheon Co. is no longer good law). The initial prima facie burden in a disparate impact case is on the plaintiff to show that they have been harmed by an ostensibly age-neutral employment practice that nevertheless has a significant adverse impact. For example, a policy requiring the termination of all employees with more than twenty-five years’ experience with the company could constitute a disparate impact case. Moreover, a procedure for laying off employees relying on subjective standards could be challenged in this manner, if 2–4

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

§ 2.1

the procedure disproportionately affects older workers. Caron v. Scott Paper Co., 834 F. Supp. 33, 39 (D. Me. 1993). Disparate impact may be demonstrated with statistical proof. However, under the ADEA, where statistics are relied upon as proof of age discrimination, the plaintiff must “isolat[e] and identif[y] the specific employment practices that are allegedly responsible for any observed statistical disparities.” Smith v. City of Jackson, 544 U.S. at 241. Once a plaintiff establishes a prima facie case, the burden then is on the employer to demonstrate that the challenged employment practice has a manifest relationship to the employment in question. Finally, the burden is back on the plaintiff to demonstrate either that the employer’s professed rationale for the practice is pretextual or that some other practice, without a similarly discriminatory side effect, would have served the employer’s legitimate interests equally well. Connecticut v. Teal, 457 U.S. 440, 446–47 (1982); EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 602 (1st Cir. 1995). It is noteworthy that, under the disparate impact framework, proof of discriminatory motive is not required. Smith Coll. v. MCAD, 376 Mass. 221, 227 (1978). Under the ADEA, the employer may have an affirmative defense, to the extent that it acted based on a “reasonable factor other than age.” Smith v. City of Jackson, 544 U.S. at 236–43. Under the reasonableness test, an employer need not establish that there was no other way for it to achieve its goals that would not have resulted in a disparate impact on the protected class of employees. Smith v. City of Jackson, 544 U.S.at 236–43. The U.S. Supreme Court has clarified that, where an employer asserts its reliance upon reasonable factors other than age as an affirmative defense to liability from disparate impact claims under the ADEA, it bears both the burden of production and the burden of persuasion in asserting this defense. Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008). Practice Note Given the controversy concerning whether disparate impact analysis is appropriate for G.L. c. 151B age discrimination claims, the safest route for the plaintiff’s lawyer is to allege a parallel disparate treatment claim along with any disparate impact claim.

(b)

Disparate Treatment

The most commonly asserted kind of age discrimination arises under the disparate treatment theory. Unlike a disparate impact claim, which is often directed toward corporate-wide policies or practices affecting numerous employees, disparate treatment claims tend to be used when an individual employee believes that they were targeted and treated adversely because of their age. A disparate treatment claim may be used to address an employer’s consciously biased decision making or decisions based on a stereotype. Thomas v. Eastman Kodak Co., 183 F.3d 38, 58–60 (1st Cir. 1999); Lipchitz v. Raytheon Co., 434 Mass. 493, 503 n.16 (2001) (“Employment MCLE, Inc. | 2nd Edition 2020

2–5

§ 2.1

Employment Discrimination in Massachusetts

decisions that are made because of stereotypical thinking about a protected characteristic or members of a protected class, whether conscious or unconscious, are actionable under G.L. c. 151B.”). There is a wide range of ways to demonstrate that the reason for a discharge was because of a person’s age. First, there may be direct evidence of age discrimination— for example, a letter from the human resources department stating that the employee’s termination is due to her age. Where the discriminatory motive for a termination is not stated so bluntly, there are other ways to prove age discrimination using circumstantial evidence. Such circumstantial evidence may include the following: • evidence that similarly situated younger workers were treated better than the plaintiff; • evidence that other older workers were discriminated against (see Sprint/ United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008) (whether such evidence is admissible is a decision left to the discretion of the trial judge); • evidence that age-discriminatory remarks were made by superiors and decision makers; • statistical evidence that age was a factor in the employer’s employment decisions; • the presence of unnecessary age-neutral policies that significantly disadvantage older workers; and • evidence that the employer’s stated reason for the employee’s termination was pretextual. While it may not be necessary to prove that the employer is hostile or angry toward older people in order to prove a discriminatory motive, it still must be demonstrated that age was the motivating or animating force behind the decision. Gates v. Flood, 57 Mass. App. Ct. 739, 745 n.12 (2003). In one case, for example, evidence that the employer sought to “reach a younger, affluent clientele, and to change the face of the marketing personnel” was found sufficient to demonstrate discriminatory animus. DiIorio v. Willowbrook Country Club, 33 M.D.L.R. 166–67 (2011) (Full Commission decision).

Burden-Shifting Analysis The most commonly utilized avenue for proving discrimination with circumstantial evidence follows a burden-shifting formula set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973), as modified by later cases; however, the U.S. Supreme Court has noted that it “has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. . . . is appropriate in the ADEA context.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 n.2 (2009). Plaintiffs bringing claims under the ADEA retain the burden of persuasion to establish that age was the “but for” cause of the employer’s actions, and that burden never shifts to the employer to prove otherwise. Gross v. FBL Fin. Servs., Inc., 557 U.S. at 177. The McDonnell 2–6

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

§ 2.1

Douglas Corp. analysis requires that the plaintiff first prove a prima facie case of age discrimination. Then the burden of production shifts to the defendant to produce legitimate, nondiscriminatory reasons for the termination. Finally, the burden returns to the plaintiff to prove that the defendant’s articulated reasons are not the real reasons for the termination but, instead, are pretexts for discrimination. These burdens are further described below.

The Prima Facie Case First, the burden is on the plaintiff to prove a prima facie case of age discrimination. The prima facie case is a flexible set of proofs that raise a presumption that age was the reason for an employee’s discharge. The burden is not meant to be onerous. The evidentiary burden required to satisfy the prima facie case of age discrimination for G.L. c. 151B claims is the subject of dispute. Plaintiffs would argue that the evidence required for a prima facie case has been modified by the Supreme Judicial Court to require a three-step burden: • the plaintiff was over forty years old; • the plaintiff was qualified for the position; and • the plaintiff was terminated. See Bulwer v. Mt. Auburn Hosp., 473 Mass. 672, 681 (2016) (race discrimination); Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 396– 397 (2016) (gender discrimination); Massasoit Indus. Corp. v. MCAD, 91 Mass. App. Ct. 208, 210 (2017) (age discrimination); Gordon v. Earthlink, Inc., No. 14-14145FDS, 2017 WL 3203385, at *7, n.8 (D. Mass. July 27, 2017) (age discrimination under G.L. c. 151B). However, some appeals courts continue to use the four-step approach described below. Welgoss v. MBTA, 90 Mass. App. Ct. 1113 (2016); Perry v. Franklin Pub. Schs., 89 Mass. App. Ct. 1115 (2016). Prior to Bulwer, Massachusetts, like the federal courts, used a four-step approach. Given that the four-step prima facie case may still apply to Chapter 151B age claims and remains valid for ADEA claims, that approach will be discussed in further depth. An example of a four-step prima facie case is where • the plaintiff was more than forty years old; • the plaintiff met the employer’s legitimate job performance expectations; • the plaintiff was terminated; and • the plaintiff was replaced by a person who was five or more years younger. See Knight v. Avon Prods., Inc., 438 Mass. 413, 424–25 (2003). The fourth element of the prima facie case is subject to wide variations; it must constitute evidence merely raising an inference that age discrimination was involved. Under Massachusetts law, for example, it is not imperative that the replacement be five years younger if the plaintiff is able to present other evidence that would give rise to a reasonable inference of age discrimination. Knight v. Avon Prods., Inc., 438 MCLE, Inc. | 2nd Edition 2020

2–7

§ 2.1

Employment Discrimination in Massachusetts

Mass. at 425. However, in Williams v. Raytheon Co., 220 F.3d 16 (1st Cir. 2000), the First Circuit sided with other appellate circuits in holding that an age difference of less than five years between the plaintiff and their replacement was insufficient as a matter of law to support a prima facie case of age discrimination. It is not fatal to the prima facie case if the replacement is more than forty years old. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 309–13 (1996). Sometimes a prima facie case may be demonstrated with proof that the job position remained open after the employee’s termination and the employer continued to seek applications from persons with the plaintiff’s qualifications. Whalen v. NYNEX Info. Res., Co., 419 Mass. 792, 796 (1995). Plaintiff’s counsel should research the variety of prima facie cases to find the one most strongly favorable to their case. Allegations of age discrimination commonly arise from layoffs, where employees perceive that they were targeted in a reduction in force (RIF) due to their ages. From the plaintiff’s perspective, such cases raise difficult issues of proof, since an employer may easily assert that it made a legitimate business decision to scale back its workforce. Nevertheless, it remains possible to demonstrate that individual workers were improperly selected for RIF due to age. In an RIF case, the fourth element of the prima facie burden may be satisfied with proof that the layoff occurred under circumstances that would raise a reasonable inference of unlawful discrimination. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 44–45, n.14 (2005) (if an employer had five employees in a department [four female and one male], and the employer laid off the only male and retained all the females, that would satisfy the fourth element of the prima facie burden for sex discrimination); Scarlett v. City of Boston, 93 Mass. App. Ct. 593, 598–99 (2018) (out of seven provisional teachers considered for layoff, the employer fired the only two black teachers). In some circumstances, the retention of younger employees may be able to satisfy the burden, even if they are over forty years of age. Caputy v. Quad/Graphics, Inc., No. 14–14159–FDS, 2015 WL 2208825, at *2–4 (D. Mass. May 11, 2015) (sixtyfour-year-old plaintiff was laid off, while employees aged fifty-three, fifty-two, fortynine, and twenty-nine were retained). But see Caputy v. Quad/Graphics, Inc., No. 1414159-FDS, 2016 WL 7045702, at *4 (D. Mass. Dec. 2, 2016) (under federal law, retention of younger employees in the same position is sufficient to establish a prima facie case, but that same proof is not necessarily sufficient under G.L. c. 151B). A plaintiff may also be able to satisfy the burden with proof that the employer retained a lower-rated employee who is younger. Doherty v. Kenseal Constr. Prods. Corp., 87 Mass. App. Ct. 1117 (2015). A prima facie case may also be shown where the employer sought some form of replacement for the plaintiff, demonstrating a continued need for the same services and skills. Another RIF fourth element would be to prove that the employer did not treat age neutrally. Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 333 (1st Cir. 1997). Defense lawyers should be aware of cases that have held that an inference of discrimination is not generated where the plaintiff shows only that the duties of the eliminated positions are being performed by younger employees. See, e.g., Hoffman-Garcia v. Metrohealth, Inc., 918 F.3d 227, 230–31 (1st Cir. 2019); Welgoss v. Mass. Dep’t of 2–8

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

§ 2.1

Transp., 90 Mass. App. Ct. 1113 (2016); Plante v. Shawmut Bank, 8 Mass. L. Rptr. 643, 646 (Super. Ct. 1998). But see Koster v. Trans World Airlines, Inc., 181 F.3d 24, 31 (1st Cir. 1999) (prima facie case satisfied where some of plaintiff’s duties were assumed by younger employees).

The Defendant’s Articulated Response After the plaintiff succeeds in proving their prima facie case, the burden of production is on the defendant to articulate a legitimate, nondiscriminatory reason for the termination. The burden requires the defendant to produce evidence of the nondiscriminatory reason for the termination. Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 334 (1st Cir. 1997). Under Massachusetts law, an employer must not only give a lawful reason for its employment decision but must also produce credible evidence to show that the reason advanced was the real reason. Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. 437, 441–42 (1995). The defendant’s articulation must be clear and specific, and not vague. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981); Oliver v. Digital Equip. Corp., 846 F.2d 103, 109 (1st Cir. 1988); Loeb v. Textron, Inc., 600 F.2d 1003, 1011–12 n.5 (1st Cir. 1979). Requiring the defendant to satisfy this burden serves in part the purpose of framing the factual issues with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. Holden v. Comm’n Against Discrimination, 671 F.2d 30, 36 (1st Cir. 1982). The requirement imposed on employers to proffer a supported and detailed articulated reason is not an onerous one; however, it is more onerous under G.L. c. 151B than under the ADEA. Woods v. Friction Materials, Inc., 30 F.3d 255, 263 (1st Cir. 1994), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. at 443 (citing Wheelock Coll. v. MCAD, 371 Mass. 130, 138 (1976)). This is an important distinction, since the defendant’s failure to satisfy this burden of production could result in a judgment for the plaintiff. Sch. Comm. of Bos. v. Labor Relations Comm’n, 40 Mass. App. Ct. 327, 335 (1996) (where employer asserted that employees were laid off for budgetary reasons but failed to describe the decision-making process or identify the decision maker, this articulation was insufficient and warranted judgment favoring the employees). Usually, the employer will satisfy its burden to articulate a legitimate business reason. The articulation rebuts the initial presumption of discrimination.

Proof of Pretext Once the defendant has successfully articulated its reason for the termination, the plaintiff must prove that the reason articulated by the defendant is a pretext for discrimination. A remaining issue of contention is whether proof of pretext alone will generate an inference of discrimination or whether additional evidence is required to find discrimination MCLE, Inc. | 2nd Edition 2020

2–9

§ 2.1

Employment Discrimination in Massachusetts

at this third stage. The First Circuit has indicated that the Massachusetts law regarding proof of pretext is perhaps more liberal than federal law. Joyal v. Hasbro, Inc., 380 F.3d 14, 17 (1st Cir. 2004). Under Chapter 151B, the plaintiff generates an inference of discrimination sufficient to prevail at the Rule 56 (summary judgment) or Rule 50 (directed verdict) stages by demonstrating a prima facie case and that one or more of the reasons advanced by the defendant was a pretext (and not the real reason). Lipchitz v. Raytheon Co., 434 Mass. 493, 502 n.14 (2001); Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 118 (2000). Thus, it is said that Massachusetts is a “pretext only” jurisdiction. Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. 437, 443 (1995). While cases articulating this burden sometimes require proof of “pretext for discrimination” or “pretext concealing discrimination,” Massachusetts law does not require additional proof of discrimination over and above evidence that one of the employer’s reasons is consciously false. Bulwer v. Mt. Auburn Hosp., 473 Mass. at 681–82. Pretext alone, along with a prima facie case, will get a plaintiff over the summary judgment hurdle in a G.L. c. 151B case because it generates an inference of discrimination. However, a jury nevertheless is free to find that no discrimination existed even if pretext is established at trial. Abramian v. President & Fellows of Harvard Coll., 432 Mass. at 117–18; Bulwer v. Mt. Auburn Hosp., 473 Mass. at 682. Thus, proof of a prima facie case and proof of pretext will preclude summary judgment against the plaintiff; however, such evidence will not guarantee a win at trial. In contrast, under the ADEA, proof of a prima facie case and proof of pretext alone may, but will not necessarily, generate an inference of discrimination sufficient to withstand a summary judgment motion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); Feliciano de la Cruz v. El Conquistador Resort, 218 F.3d 1, 9–10 (1st Cir. 2000) (applying Reeves and holding that “thin” evidence of pretext does not indicate discrimination as the employer’s true motive). In practice, federal courts appear extremely reluctant to find that a prima facie case and proof of pretext alone are sufficient to overcome summary judgment in particular cases, although the cases do acknowledge that such evidence can theoretically be sufficient in other cases. See Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir. 2000); Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 337 (1st Cir. 1997); Udo v. Tomes, 54 F.3d 9, 13 (1st Cir. 1995). But see Parra v. Four Seasons Hotel, 605 F. Supp. 2d 314, 328 (D. Mass. 2009) (stating “plaintiffs are no longer required to show both pretext and animus to avoid summary judgment”). For example, even following Reeves, a plaintiff must still demonstrate a discriminatory animus behind an employer’s pretext. Baralt v. Nationwide Mut. Ins., 251 F.3d 10, 18–19 (1st Cir. 2001) (jury verdict for the plaintiffs in an age discrimination case set aside because, despite evidence of pretext, the record contained no evidence of age discrimination); see Bonefont-Igara Videz v. Int’l Shipping Corp., 659 F.3d 120, 125 (1st Cir. 2011). Many practitioners believe that federal courts are dismissing discrimination cases using a standard for “pretext for discrimination” that is more stringent than the G.L. c. 151B standard. Whether by law or by practice, it seems likely that the ADEA 2–10

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

§ 2.1

imposes greater evidentiary requirements than the “pretext only” requirements of Chapter 151B. See Joyal v. Hasbro, Inc., 380 F.3d 14, 17 (1st Cir. 2004); see Gordon v. Earthlink, Inc., No. 14-14145-FDS, 2017 WL 3203385, at *8–10 (D. Mass. July 27, 2017). In proving pretext under either state or federal law, the plaintiff must do more than cast doubt on the appropriateness or wisdom of the employer’s articulated reason. Rather, “[i]n assessing pretext, a court’s focus must be on the perception of the decisionmaker, that is, whether the employer believed its stated reason to be credible.” Adamson v. Walgreens Co., 750 F.3d 73, 79 (1st Cir. 2014) (internal quotations omitted); see also Mahon v. Bos. Pub. Sch., 86 Mass. App. Ct. 1110 (2014). One line of cases stands for the proposition that a plaintiff may not prevail simply by attacking the employer’s business judgment as “[c]ourts may not sit as super personnel departments, assessing the merits—or even the rationality—of employers’ nondiscriminatory business decisions.” Adamson v. Walgreens Co., 750 F.3d at 81 n.5 (internal quotations omitted). However, another line of cases supports the view that pretext can be proven by attacking the reasonableness of the employer’s asserted business decisions. Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1356 n.1 (2015) (Alito, J., concurring); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576–77 (6th Cir. 2003); Kelley v. Correction Med. Servs., 707 F.3d 108, 118 (1st Cir. 2013) (calculated overreaction to plaintiff’s alleged wrongdoing). Pretext may be shown by weaknesses and implausibilities in the employer’s justifications. Adamson v. Walgreens Co., 750 F.3d at 79. Impugning the veracity of a tangential aspect of a defendant’s explanation might not be sufficient. Adamson v. Walgreens Co., 750 F.3d at 79. Rather, pretext is shown by proving that the defendant’s articulated reason was not the real reason for the termination. See Bonefont-Igara Videz v. Int’l Shipping Corp., 659 F.3d at 124–25. Pretext may be proven in a variety of ways. Where it is alleged that an older worker has been terminated for violation of a company rule, pretext may be shown where younger employees violating the same rule were not terminated. Assertions of poor performance can be rebutted by positive performance reviews or by the fact that no job warnings or criticisms were directed at the plaintiff. However, conflicting performance reviews may be insufficient to prove pretext. Pierson v. Stembridge, 27 Mass. L. Rptr. 274 (Super. Ct. 2010) (citing Batchelder v. Andover Police Dep’t, 71 Mass. App. Ct. 1120 (2008)). Terminations based on patently ridiculous rationales, or on very old or stale job criticisms, may be deemed pretextual. See Molloy v. Blanchard, 115 F.3d 86, 93 (1st Cir. 1997). Claims that an employee was unqualified may be rebutted by introducing the employer’s job advertisements and postings that list the required qualifications for the job. An employer’s failure to follow standard disciplinary and termination procedures may support a finding of pretext. The defendant’s failure to articulate the specifics of its reasons for termination and its failure to provide records supporting its decision to terminate may reflect on the MCLE, Inc. | 2nd Edition 2020

2–11

§ 2.1

Employment Discrimination in Massachusetts

credibility of its articulated reasons. Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d at 336–37; Durante v. E. Props., Inc., 18 M.D.L.R. 1, 4 (1996). In addition, all other direct and circumstantial evidence of age discrimination further demonstrates pretext. On the other hand, the fact that a plaintiff was recently hired may indicate an unlikelihood that their termination was due to age. The decision maker’s age might indicate a lack of discriminatory intent. Older workers need not be hired or treated preferentially simply to remedy an imbalance in the employer’s workforce. G.L. c. 151B, § 4(19), ¶ 5. Moreover, statistics reflecting an employer’s practice of retaining older workers in a layoff may help demonstrate lack of discriminatory animus.

Mixed-Motive Analysis Mixed-motive analysis represents an alternative method of demonstrating that a discriminatory motive was the determinative cause of the adverse employment action. In cases where a plaintiff proves that age was a motivating factor in an employment decision, the employer may nevertheless avoid liability if the employer would have made the same decision in the absence of the discriminatory motive. The employer, in this scenario, argues that a separate, lawful motive determined the outcome, and was dispositive, even if ageist motives were present. The U.S. Supreme Court has rejected the mixed-motive analysis for ADEA claims involving private litigants. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009). It is possible, however, that mixed-motive analysis does apply to ADEA claims against the federal government because that protection is written especially broadly. 29 U.S.C. § 633a(a) (all personnel actions must be “free from any discrimination based on age”); see Ford v. Mabus, 629 F.3d 198, 203–07 (D.C. Cir. 2010). While the Supreme Judicial Court has yet to decide whether it will follow the Gross rule, it is assumed that the analysis continues to apply to Chapter 151B claims. See Diaz v. Jiten Hotel Mgmt., Inc., 671 F.3d 78, 83 (1st Cir. 2012) (interpreting Haddad v. WalMart Stores, Inc., 455 Mass. 91, 114 (2009), as implicitly affirming ongoing validity of mixed-motive framework in all Chapter 151B cases); see also DiIorio v. Willowbend Country Club, Inc., 33 M.D.L.R. at 167. To reach the mixed-motive analysis the “plaintiff must show, at a minimum, ‘that there was differential treatment in an employment action and that the adverse employment decision was caused at least in part by a forbidden bias.’” Rossiter v. Potter, No. 02-12192, 2005 WL 1288063, at *3 (D. Mass. May 23, 2005) (quoting Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003)). Under Massachusetts law, the mixed-motive analysis may be accessed only by a showing of direct, or strong, evidence that discrimination played a motivating role in the employment decision. See Wynn & Wynn, PC v. MCAD, 431 Mass. 655, 666–67 (2000), overruled on other grounds by Stonehill Coll. v. MCAD, 441 Mass. 549 (2004); Connolly v. Suffolk Cty. Sheriff’s Dep’t, 62 Mass. App. Ct. 187, 194 (2004). Circumstantial evidence of discrimination alone may arguably be sufficient to invoke the mixed-motive analysis. Haddad v. Wal-Mart Stores, Inc., 455 Mass. at 114 (dicta construing G.L. c. 151B in a gender discrimination claim). 2–12

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

§ 2.1

Satisfaction of the plaintiff’s burden “shifts the burden of persuasion to the employer, who . . . must establish that he would have reached the same decision regarding the plaintiff even if he had not taken the proscribed factor (age) into account.” Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000). The mixed-motive analysis thus differs from the burden-shifting analysis, in that the burden of proof is actually transferred to the employer. Practice Note Unlike Title VII, under the ADEA, defendants do not buy some immediate liability by admitting that one of the factors (though not the motivating one) for the employment action at issue was an individual’s age. Title VII provides for certain equitable relief and attorney fees upon evidence that one of the factors an employer used in rendering its decision was an impermissible one, i.e., that one of the reasons for the decision was the individual’s race, color, gender, etc., even if there is evidence that the employer would have made the same decision anyway. See 42 U.S.C. § 2000e-2(m). This provision does not apply to the ADEA. Under the ADEA, even if one of the factors for the employment decision was the individual’s age, there is no liability as long as it was not the “but for” cause of the decision.

§ 2.1.3

Firing Older Workers to Save on Salary or Benefits Costs

Workers with the greatest tenure at companies tend to have the highest salaries and benefits. An employer seeking to rid itself of its most expensive personnel may appear to be selecting older workers for termination. However, firing employees simply because they are too expensive is not necessarily age discrimination. Pagliarini v. Gen. Instrument Corp., 855 F. Supp. 459, 462 (D. Mass. 1994). The ADEA is violated under such circumstances if the policy to terminate expensive employees exists as a proxy for age discrimination. Hazen Paper Co. v. Biggins, 507 U.S. 604, 612–13 (1993) (interference with vesting of pension benefits is not evidence of age discrimination). But see Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 588–89 (2004) (legislative history of the ADEA suggests that the higher benefit and pension costs associated with older workers may increase employers’ reluctance to hire and retain such workers); McMullin v. Bull HN Info. Sys., Inc., 16 M.D.L.R. 1427, 1436 (1994) (statement that “we could go out and hire two college graduates for every one [of the older employees] and they come to us trained” indicated discriminatory animus toward older workers). Age discrimination and expense reduction are sometimes related. Stereotypes about older workers and the resources they require may dovetail with pressures on managers to pare down expenses. A plaintiff’s lawyer should attempt to frame the issues such that it is clear that recovery is sought for actions based on age-related stereotypes or animus and not simply for expense reduction. An employer implementing an RIF is under no obligation to demote an older worker and fire a younger worker in order to save the older worker’s job or to offer the older employee continued employment at a lower salary. See Holt v. Gamewell Corp., 797 MCLE, Inc. | 2nd Edition 2020

2–13

§ 2.1

Employment Discrimination in Massachusetts

F.2d 36, 38 (1st Cir. 1986). Nevertheless, it may be advisable for a plaintiff’s lawyer to suggest to employees facing an RIF to volunteer to be demoted or to take a pay cut in order to save their jobs. Plaintiff’s counsel may argue that, if the motive of an RIF is to cut costs, an employer’s failure to retain the employee at a reduced cost could indicate pretext for discrimination. See Rivas v. Federacion de Asociaciones Pecuarias, 929 F.2d 814, 823 (1st Cir. 1991) (no evidence of discrimination where, in context of RIF, employer offered to retain older workers with reduction of salary); Estrada-Izquierdo v. Aponte-Roque, 850 F.2d 10, 15 (1st Cir. 1988) (in a political discrimination case, employer demoted plaintiff even though it had the option to transfer the plaintiff to known vacant positions instead).

§ 2.1.4

Retirement and Succession Issues

Employers’ offers of early retirement packages and inquiries regarding when employees will retire, raise various issues under the discrimination statutes. The existence of a voluntary retirement program does not, by itself, indicate age discrimination. Gray v. New Eng. Tel. & Tel. Co., 792 F.2d 251, 255 (1st Cir. 1986). However, offering a retirement package or developing a recruitment plan for the purpose of getting rid of older employees may constitute evidence of discrimination. See Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 146 (1st Cir. 2012) (recruitment plan developed for purpose of “substituting persons who were retirement age”); Olivera v. Nestlé P.R., Inc., 922 F.2d 43, 49 (1st Cir. 1990), abrogated on other grounds by Cuello-Suarez v. P.R. Elec. Power Auth., 988 F.2d 275, 280 (1st Cir. 1993) (where goal of offering retirement package was to “flatten” the organization in terms of age). But see Templeton v. Mansfield Pub. Sch., 88 Mass. App. Ct. 1112, at *2 n.9 (2015) (defendants’ offer of a voluntary early retirement package to the plaintiffs and to other employees in the protected age category, did not evince age discrimination). Requests about retirement plans, and suggestions to retire, may indicate discriminatory bias. Davidson v. City of Pittsfield, 84 Mass. App. Ct. 1131 (2014); Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 562–63 (1st Cir. 1986); Carlton v. Mystic Transp. Inc., 202 F.3d 129, 136 (2d Cir. 2000) (even single suggestion to retire may be probative when considered along with other evidence); Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 450 (8th Cir. 1993) (suggestion after termination that the plaintiff consider retiring). However, isolated or ambiguous remarks tending to suggest animus based on age may not be sufficient, standing alone, to prove an employer’s discriminatory intent even if such remarks are made by the decision makers but are unrelated to the decision-making process. Rooney v. Bank of Am., No. 12–11173– TSH, 2014 WL 1347124, at *8 (D. Mass. Apr. 3, 2014); see also Canovas v. Univ. of Mass. Med. Sch., 83 Mass. App. Ct. 1123 (2013). Where an employer seeks releases in connection with exit incentives or other employment termination programs offered to a group of employees, the employer is required to furnish the affected employees information on the ages and job titles of those employees affected. 29 U.S.C. § 626(f)(1)(H). This requirement enables employees to determine whether age discrimination was a factor in their terminations or exit incentives. 2–14

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

§ 2.1

According to the Supreme Court, age and pension status are analytically distinct concepts. Thus, an employer is permitted to make decisions because of an employee’s pension status, even where pension status is itself based on age, and even where younger employees are treated better than older employees. Ky. Ret. Sys. v. EEOC, 554 U.S. 135, 142–43 (2008) (no ADEA violation where employee received a lower pension because he became disabled after he turned fifty-five years old and where he would have received more had he become disabled at a younger age). The fact that a minimum age is set for an attainment of retirement benefits is not a violation of the ADEA. 29 U.S.C. § 623(1). Reasonable inquiries relating to when and if an employee is planning to retire are not discriminatory. However, constant, harassing demands that an employee accept a retirement package and inquiries about an employee’s age may indicate an employer’s view that individuals of a certain age should no longer be working. Employers have a legitimate interest in succession planning. Boston v. Blue Cross & Blue Shield of Kan., Inc., 431 Fed. App’x 763, 767 (10th Cir. 2011) (“compliance with the ADEA and succession planning need not be mutually exclusive”). Succession plans may focus on use of nondiscriminatory factors such as expected longevity with the company. Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 800–01 (6th Cir. 2013) (“An inquiry about how long an employee intends to work if hired has been held to reflect a legitimate employer concern that is analytically distinct from age.”). However, a succession plan that focuses on age when computing an employee’s potential longevity may evidence age discrimination. Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d at 799–801.

§ 2.2

DEFENSES

Practice Note An age discrimination strategy checklist for defense attorneys is included as Checklist 2.1.

§ 2.2.1

Statutory Defenses

Under federal law, the ADEA offers a number of statutory defenses that defense lawyers should assess immediately upon receiving notice of a potential age discrimination claim. While G.L. c. 151B does not articulate some of these affirmative defenses, the ADEA’s defenses should be reviewed even in actions that assert a claim of age discrimination only under state law. Clear legal precedent provides that the Massachusetts Commission Against Discrimination (MCAD) and the Massachusetts courts will look to federal law in interpreting discrimination claims under G.L. c. 151B. See Wheelock Coll. v. MCAD, 371 Mass. 130, 134–36 (1976) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

MCLE, Inc. | 2nd Edition 2020

2–15

§ 2.2

(a)

Employment Discrimination in Massachusetts

Bona Fide Occupational Qualification

The ADEA exempts age-based employment decisions when age is a “bona fide occupational disqualification reasonable and necessary to the normal operation of the particular business.” 29 U.S.C. § 623(f)(1). Age-based decisions premised on a “bona fide occupational qualification.” are similarly permitted by G.L. c. 151B, § 4(1B). In other words, both state and federal law permit using age as a criterion in an employment decision if it is necessary for the normal operation of the business. However, the defense is narrowly construed. The burden is on the employer to present evidence justifying its reliance on the exception. See 804 C.M.R. § 3.01(3); W. Airlines, Inc. v. Criswell, 472 U.S. 400, 412 (1985); Gately v. Massachusetts, 2 F.3d 1221, 1226 (1st Cir. 1993). Moreover, hard evidence such as expert testimony, studies, and the like are generally necessary to support the defense. In any event, to successfully utilize the defense, employers must be able to demonstrate that the age criterion is necessary to the “essence” of their business operation. See W. Airlines, Inc. v. Criswell, 472 U.S. at 413–14; Gately v. Massachusetts, 2 F.3d at 1226. Additionally, employers must show that it is “highly impractical” to assess each employee over the age limit individually to determine their qualifications or that there is a “substantial basis” for determining that older employees generally do not possess the qualifications to perform the job. See W. Airlines, Inc. v. Criswell, 472 U.S. at 413–14; Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985); Johnson v. Mayor & City Council of Balt., 472 U.S. 353 (1985); Gately v. Massachusetts, 2 F.3d at 1226. An employer may not assert as a defense that it discharged an employee solely on the basis of age under the mistaken belief that age was a bona fide occupational qualification for the employee’s job. Gates v. Flood, 57 Mass. App. Ct. 739, 745 (2003).

(b)

Reasonable Factors Other Than Age and Good Cause

Actions based on “reasonable factors other than age” are similarly exempted from the ADEA. 29 U.S.C. §§ 623(f)(1), 623(f)(3). The U.S. Supreme Court has held that this is an “affirmative defense” available to employers for which they bear the burden of persuasion in proving. Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008). Whenever the “reasonable factors other than age” defense is raised, the employer bears the burdens of production and persuasion to demonstrate the defense. 29 C.F.R. § 1625.7(d). However, individuals who challenge the allegedly unlawful practice are responsible for isolating and identifying the specific employment practice that allegedly causes any observed statistical disparities. 29 C.F.R. § 1625.7(c). To establish a “reasonable factor” defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer. 29 C.F.R. § 1625.7(e). However, this defense will not excuse facially discriminatory conduct. 29 C.F.R. § 1625.7. Moreover, it will not justify discriminatory policies, practices, and mandates, including a state statute, that will conflict with the ADEA. See EEOC v. Massachusetts, 987 F.2d 64, 73–74 (1st Cir. 1993).

2–16

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

§ 2.2

Employers may also assert the defense of a good cause. This defense requires affirmative proof that the decision was not only motivated by reasons other than the employee’s age but the action was supported by “good cause.” 29 U.S.C. § 623(f)(3). Given that, in the typical circumstantial case of age discrimination, the defendant merely has a burden of production as to evidence of its legitimate and nondiscriminatory reason for the disputed employment action, the affirmative defense of “good cause” is seemingly superfluous. Simply put, in these cases the defendant does not have to prove it was motivated by good cause but may simply produce evidence of its legitimate motivation. A defense of good cause should be considered, however, in cases where direct evidence of discrimination is asserted.

(c)

Bona Fide Seniority System, Bona Fide Employee Benefit Plan, or Retirement Policy

Generally, employers will not be liable under state or federal law for actions implementing bona fide seniority systems or employee benefit plans that make distinctions based upon an employee’s age. 29 U.S.C. § 623(f)(2); G.L. c. 151B, § 4(17)(a). Accordingly, employers can rely on seniority systems to justify employment actions even if the system ultimately has a disparate effect on older employees. The defense is thwarted and liability will result, however, when an employee can show that the system was created with discriminatory intent as subterfuge for the employer to engage in age discrimination. EEOC v. Newport Mesa Unified Sch. Dist., 893 F. Supp. 927 (C.D. Cal. 1995). Employers can also amend such seniority systems without fear of liability under the ADEA, so long as the amendments are not a shroud for age discrimination. Finnegan v. Trans World Airlines, Inc., 767 F. Supp. 867 (N.D. Ill. 1991), aff’d, 967 F.2d 1161 (7th Cir. 1992). Similarly, employers generally may implement the terms of bona fide retirement, pension, insurance, and other employee benefit plans without fear of liability. However, adherence to such plans will violate the ADEA when they mandate retirement, unless the employee has been a bona fide executive or key management employee and is vested in a “substantial” employee retirement plan. 29 U.S.C. § 631(c)(1); G.L. c. 151B, § 4(17)(b); see also Morrissey v. Bos. Five Cents Sav. Bank, 54 F.3d 27 (1st Cir. 1995); Passer v. Am. Chem. Soc’y, 935 F.2d 322 (D.C. Cir. 1991). Moreover, employers must comply with the provisions of the Older Workers Benefit Protection Act, 29 U.S.C. §§ 623, 626, 631, in implementing such plans. In any event, in order to properly assert and support a defense based upon any employment plan, employers need to remember to implement these plans consistently. Arbitrary implementation will permit plaintiffs to argue the action is not justified by the plan and that the action is really subterfuge for discrimination.

(d)

Other Statutory Defenses

Other statutory exceptions to the general prohibition against age discrimination include • certain law enforcement officers and firefighters employed by state or local government bodies, under some circumstances, 29 U.S.C. § 623(j); MCLE, Inc. | 2nd Edition 2020

2–17

§ 2.2

Employment Discrimination in Massachusetts

• certain employees in certain foreign countries, 29 U.S.C. § 623(f)(1); • certain tenured employees at an independent institution of higher learning, G.L. c. 151B, § 4(17)(c); and • political entities in Massachusetts, which may discriminate if so permitted by a general or a special law, G.L. c. 151B, § 4(1C).

(e)

General Defenses

While not true affirmative defenses, the following can be asserted to defend against a claim of age discrimination:

Business Justification Layoffs, reorganizations, restructuring, and other employment actions instituted for business-related reasons clearly may be relied upon in defending a claim of age discrimination so long as age was not a factor considered in the action.

Neutral Criteria Using neutral criteria to implement adverse employment actions, such as a layoff or termination in the face of corporate restructuring, will also provide a defense to a claim of age discrimination. See Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 235 (4th Cir. 1991) (endorsing reliance on “an ostensibly neutral, merit-based system, its internal rating system”); see also Goclowski v. Gen. Elec. Co., 19 M.D.L.R. 42, 45 (1997) (following a written RIF policy, including applying the RIF criteria, evidence that the complainant was “selected for layoff because, overall, his work performance was . . . among the weakest . . . (thus the Respondent) . . . presented substantial credible evidence that the reason the Complainant was selected for layoff was poor work performance and business necessity, [and] Respondent has clearly articulated legitimate, nondiscriminatory reasons for its actions”). But see § 2.1.2(a), Disparate Impact, above. Similarly, relying on seniority as the basis for an employment action, such as implementing layoffs in reverse order of seniority, will bolster an employer’s defense and support its “legitimate and nondiscriminatory” reason for the complained-of action. See Cruz v. Bristol-Myers Squibb Co., PR, 699 F.3d 563, 571 (1st Cir. 2012) (finding a “ranking system that considered only . . . professional skills and seniority” to be age neutral). Finally, job actions based upon neutral and uniformly applied employment policies and practices, such as performance evaluations, will also offer a defense to a claim of age discrimination.

Age As strange as it may seem, emphasizing the ages of those involved may also assist in defending against a claim of age discrimination. For example, if those involved in the 2–18

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

§ 2.2

decision-making process are as old as or older than the plaintiff, this fact may militate against a presumption that these individuals were age biased in implementing the complained-of action. See LaGrant v. Gulf & W. Mfg. Co., 748 F.2d 1087 (6th Cir. 1984). Similarly, when the replacement is a few years younger or older than the terminated plaintiff, a claim that the employer had an impermissible motive in instituting the action rings hollow. See Williams v. Raytheon Co., 220 F.3d 16 (1st Cir. 2000) (replacement less than five years younger than the plaintiff fails to support prima facie case); Grubb v. W.A. Foote Mem’l Hosp., Inc., 741 F.2d 1486, 1498 (6th Cir. 1984), vacated on other grounds, 759 F.2d 546 (6th Cir. 1985).

§ 2.2.2 (a)

Remedies and Damages ADEA Damages

The ADEA authorizes all legal and equitable remedies as may be appropriate to effectuate the purposes of the act, including, without limitation, • injunctive relief; • lost wages and benefits (the doctrine of mitigation of damages applies; plaintiffs’ attorneys should advise clients to aggressively seek other employment after termination, and to document their job search); • front pay and future pension benefits (front pay is lost pay for the period from the date of judgment into the future; to bolster front pay claims, plaintiffs may request to be reinstated by the employer and should request this type of relief in their complaint); • promotion, reinstatement, and other equitable relief; • interest; • “liquidated damages” (punitive damages that double the amount of monetary damages) may be recovered in cases of willful violations of the ADEA, 29 U.S.C. §§ 216(b), 626(b); and • attorney fees and costs. See 29 U.S.C. §§ 216(b), 626(b). A violation is willful if the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA. While liquidated damages are punitive in nature, the plaintiff does not need to show that the employer’s conduct was outrageous. Hazen Paper Co. v. Biggins, 507 U.S. 604, 614–18 (1993). The ADEA has been interpreted to preclude the award of damages for pain and suffering and emotional distress. See Commissioner v. Schleier, 515 U.S. 323, 326 (1995); Collazo v. Nicholson, 535 F.3d 41, 44–45 (1st Cir. 2008). A plaintiff’s lawyer may argue that 29 U.S.C. § 626(b), which permits “legal” remedies, should be interpreted to allow for emotional distress damages. However, some courts in other jurisdictions have recognized an exception under the ADEA and held that pain and suffering MCLE, Inc. | 2nd Edition 2020

2–19

§ 2.2

Employment Discrimination in Massachusetts

and medical expenses may be available for retaliation claims. See Marinelli v. Potter, 661 F. Supp. 2d 69, 82–83 (D. Mass. 2009) (citing Moskowitz v. Trs. of Purdue Univ., 5 F.3d 279, 283 (7th Cir. 1993); Lyons v. Hader–Seitz, Inc., No. 03-C-645, 2005 WL 2077358, at *1 (E.D. Wis. Aug. 19, 2005)). Awards of attorney fees are discretionary when the plaintiff is a federal employee. Marinelli v. Potter, 661 F. Supp. 2d at 84 n.19.

(b)

General Laws Chapter 151B Damages

General Laws Chapter 151B provides similar remedies and damages as the ADEA, with some important differences. First, emotional distress damages may be awarded under G.L. c. 151B, while they are probably not awardable under the ADEA. Second, a G.L. c. 151B plaintiff who pursues a civil action may be entitled to multiplied damages of up to three times actual damages upon a showing that the act was committed with knowledge, or reason to know, that the act violated the law. G.L. c. 151B, § 9, ¶ 4. In contrast, the ADEA provides for only a doubling of damages. Third, the prejudgment interest often awarded in G.L. c. 151B actions, currently at 12 percent, is higher than the interest rate that could be assessed in federal court under the ADEA. If the case is tried before the MCAD and not in court, the MCAD may award civil penalties against the employer in an amount up to $50,000, depending on whether the employer has engaged in other discriminatory conduct in the past. G.L. c. 151B, § 5, ¶ 4. However, the MCAD may not award multiple damages. With respect to reinstatement, that remedy might be available for claims tried at the MCAD (G.L. c. 151B, § 5) but might not be available for claims initially litigated in court under G.L. c. 151B. Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 127– 29 (2014). As the Supreme Judicial Court explained, G.L. c. 151B provides “two largely independent avenues for redress of violations . . . one through the MCAD (G.L. c. 151B, §§ 5–6), and the other in the courts (G.L. c. 151B, § 9).” Fernandes v. Attleboro Hous. Auth., 470 Mass. at 128 (internal quotations omitted). While the Supreme Judicial Court acknowledged that reinstatement is an available remedy in the context of an MCAD administrative proceeding under G.L. c. 151B, § 5, it noted that “[t]he remedies available under G.L. c. 151B, §§ 5 and 9, differ.” Fernandes v. Attleboro Hous. Auth., 470 Mass. at 128 (internal quotations omitted). The ADEA permits orders of reinstatement. While both the ADEA and Chapter 151B provide for the award of attorney fees, it appears that a plaintiff may be more likely to receive fees under the “catalyst theory” for a state claim than a federal claim. See, e.g., Ferman v. Sturgis Cleaners, Inc., 481 Mass. 488, 491–92 & n.9 (2019) (addressing the standard for determining an award of attorney fees for wage claims under G.L. c. 149 and G.L. c. 151). However, it is not certain that the catalyst theory will be applied to Chapter 151B.

2–20

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

§ 2.2.3 (a)

§ 2.2

Deadlines and Procedural Requirements Administrative Charge

Individuals seeking to recover under the ADEA or G.L. c. 151B must file a timely administrative complaint. The deadline for filing a charge under G.L. c. 151B is 300 days. G.L. c. 151B, § 5. The charge should be filed with the MCAD. In a deferral jurisdiction such as Massachusetts, claimants seeking to pursue their rights under the ADEA must file an administrative charge with the Equal Employment Opportunity Commission (EEOC) or the MCAD within 300 days of the violation. 29 U.S.C. § 626(d)(2); see 29 C.F.R. § 1626.10(c); Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 308 (2d Cir. 1996); Bousquet v. PolyForm Corp., 401 Mass. 1002, 1003 (1987) (rescript). It is possible to file a G.L. c. 151B/MCAD charge that also includes an ADEA claim. Special rules govern the initiation of claims involving federal employees. See Maziarz v. Brennan, No. 15-30098-MAP, 2016 WL 7799647, at *3–4 (D. Mass. Aug. 3, 2016) (discussing option of federal employees to bypass administrative remedies/ requirements). Such employees should notify an EEO counselor within forty-five days of the discrimination. 29 C.F.R. § 1614.105(a). Other deadlines and requirements are imposed on federal employees after this initial deadline, and they should be carefully researched. See Rossiter v. Potter, 357 F.3d 26 (1st Cir. 2004); TapiaTapia v. Potter, 322 F.3d 742, 744 (1st Cir. 2003). There are many complicated issues relating to the limitations period in discrimination cases that are beyond the scope of this chapter. However, a few general rules should be noted. The limitations period for filing a charge of discrimination begins to run once an employee receives unequivocal notice of the asserted adverse employment action. See Del. State Coll. v. Ricks, 449 U.S. 250 (1980) (termination notice needed to be explicit and final in order to trigger limitations period); Wheatley v. Am. Tel. & Tel. Co., 418 Mass. 394, 398 (1994). This does not necessarily mean that the period commences when the job action occurs—it can actually commence before that time. Indeed, if an individual is unequivocally notified that a job action is scheduled to occur on some future date, the limitations period will begin to run from the date such notice is received. Wheatley v. Am. Tel. & Tel. Co., 418 Mass. at 398–400. Accordingly, defense attorneys should be sure to review when the employee became aware that the action was going to occur. If unequivocal notice of the complained-of conduct was received outside of the limitations period, the charge may be untimely. On the other hand, a plaintiff’s attorney should be mindful that, even after an employee has been terminated or has been informed of their termination, the limitations clock may be restarted when the employee first discovers or first has reason to discover that their discharge was discriminatory. Doctrines of continuing violations, equitable tolling, and waiver may also affect the limitations period. The discrimination charge should be reasonably detailed. The scope of the charge should cover all potential bases for recovery. It is important to list all the individuals or entities that the employee intends to sue as “respondents.” Failure to file a timely MCLE, Inc. | 2nd Edition 2020

2–21

§ 2.2

Employment Discrimination in Massachusetts

and sufficiently detailed complaint could preclude recovery both at the MCAD and in court. Under some circumstances, submission of an EEOC intake questionnaire may satisfy the requirements for filing a charge. Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008).

(b)

Other Prerequisites for Pursuing a Civil Action Under G.L. c. 151B

Removing Charge from the MCAD A plaintiff seeking to file a civil action under G.L. c. 151B must remove the pending case from the MCAD. The plaintiff may remove their claim from the MCAD after ninety days have elapsed since the charge was filed (and earlier if the MCAD permits). G.L. c. 151B, § 9. A defendant, however, cannot remove an employment case from the MCAD. See Stonehill Coll. v. MCAD, 441 Mass. 549, 565–66 (2004) (“[s]hould the complainant choose to remain within the MCAD, then both parties are subject to the formal administrative process”). Removal is accomplished simply by writing to the MCAD, informing it that a civil action has been filed and asking the MCAD to dismiss the charge so that the plaintiff may pursue a civil action. G.L. c. 151B, § 9. The MCAD charge will be dismissed without prejudice to the civil action, but the plaintiff will be barred from reasserting the same action at the MCAD. The burden falls on the plaintiff to file a timely complaint in Superior Court. In cases that are no longer pending at the MCAD (for example, where a charge has been dismissed pursuant to a finding of lack of jurisdiction or lack of probable cause), a plaintiff may still file a civil action. Pelletier v. Town of Somerset, 458 Mass. 504, 510 n.13 (2010). A similar letter of removal should be sent to the MCAD if such a suit is initiated. Trials at the MCAD are called “public hearings.” Plaintiffs lose the right to remove a case from the MCAD once a public hearing begins because plaintiffs are required at that time to sign a waiver of the right to a civil action. After the MCAD has held a public hearing and the Full Commission has issued a final order, the plaintiff or the defendant may seek a G.L. c. 30A judicial review. G.L. c. 151B, § 6; see also Temple Emanuel of Newton v. MCAD, 463 Mass. 472, 479 (2012). The party seeking judicial review must do so within thirty days after the service of the MCAD’s final order. G.L. c. 151B, § 6.

Limitations Period for Filing G.L. c. 151B Civil Action The plaintiff’s deadline for filing a civil action under G.L. c. 151B is three years from the date of the unlawful practice. G.L. c. 151B, § 9. The period in which the claim was pending at the MCAD does not toll the deadline for filing a civil action.

2–22

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

(c)

§ 2.2

Other Prerequisites for Pursuing a Civil Action Under the ADEA

Required Waiting Period Under the ADEA, a civil action may be filed when sixty days has elapsed after the filing of the EEOC complaint. 29 U.S.C. § 626(d). Moreover, plaintiffs should wait at least sixty days after their age discrimination charge has been filed with the MCAD before bringing a civil action under the ADEA. 29 U.S.C. § 633(b). Practice Note Plaintiffs forgetting to file an ADEA charge with the MCAD may file one after the civil action has commenced, even if the G.L. c. 151B limitations period has run. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 759–60 (1979); Ciccone v. Textron, Inc., 651 F.2d 1, 1–2 (1st Cir. 1981); Bousquet v. PolyForm Corp., 401 Mass. 1002, 1002–03 (1987); Clark v. Am. Home Foods Div., 34 F.E.P. 813, 814 (D. Mass. 1982).

Limitations Period for Filing an ADEA Civil Action An ADEA civil action must be filed within ninety days after the EEOC informs the claimant that the claim has been dismissed or that the proceedings have been terminated. 29 U.S.C. § 626(e). Time limitations for suits against the federal government are governed by 29 U.S.C. § 633a(d).

§ 2.2.4

Choice of Law and Forum

There are many considerations for plaintiffs to keep in mind when deciding whether to remain at the MCAD or to pursue a civil action. For example, backlogs and delays are sometimes a problem at the MCAD. The MCAD may be a convenient venue for use in performing some investigation prior to committing to a civil action. On a case-by-case basis, the MCAD will determine whether parties to a claim are entitled to conduct predetermination discovery. (Note that the standing order specifically providing for such a determination on a case-by-case basis was revoked effective June 3, 2014. See Standing Order of the Commissioners Regarding Pre-Determination Case Process, Feb. 20, 2007, available at http://www.mass.gov/mcad/docs/press-releases/2007-02-20-pr-standing-orderrevoked.pdf.) Multiple damages are not awarded in the MCAD; they are awarded only if a civil action is pursued. On the other hand, the MCAD may award civil penalties against an employer in an amount of up to $50,000, based on a tiered analysis of the employer’s history of discriminatory conduct. G.L. c. 151B, § 5, ¶ 4(a), (b), (c). If a civil action is filed, the plaintiff secures the right to a jury trial. There is no jury trial provided at the MCAD. 29 U.S.C. § 626(c)(2); G.L. c. 151B, § 9.

MCLE, Inc. | 2nd Edition 2020

2–23

§ 2.2

Employment Discrimination in Massachusetts

Where the parties have signed a valid mandatory arbitration provision, arbitration will be compelled; but the MCAD may elect to continue with its own independent investigation of a claim. Joulé, Inc. v. Simmons, 459 Mass. 88 (2011); see also MCAD Policy 96-1(I)(1)(d). In such a situation, the complaining party may not intervene in the MCAD action or participate as a litigant or a party; however, the complaining party may still provide evidence to the MCAD. Joulé, Inc. v. Simmons, 459 Mass. at 97–98. The MCAD continues to have the authority to award remedies specific to the complaining party under these circumstances. Joulé, Inc. v. Simmons, 459 Mass. at 95. At the MCAD, pro se complainants are provided the opportunity to receive free legal guidance. The MCAD has shown some willingness to award substantial emotional distress awards. Finally, the MCAD may prove to be a better forum when a case turns on a very technical interpretation of law; it may be better in some cases to have discrimination law experts deciding a case rather than a jury or a court of general jurisdiction. As discussed above, reinstatement is a remedy for claims tried at the MCAD, but might not be available for claims initially litigated in court. Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 127–29 (2014). Victims of discrimination for whom reinstatement is a priority may wish to keep their cases at the MCAD and not remove the case to court. Fernandes v. Attleboro Hous. Auth., 470 Mass. at 127–29. Assuming that a civil action is filed, the next question is whether to pursue a G.L. c. 151B claim, an ADEA claim, or both. Generally, G.L. c. 151B provides plaintiffs with many advantages over those of the ADEA. Chapter 151B covers a wider group of private and public employers, provides for greater damages, and provides, generally, for less onerous burdens of proof. Chapter 151B should be used when individuals are named as respondents. An ADEA claim in federal court may permit the employee to introduce evidence that would be excluded in state court proceedings. Gargiulo v. Baystate Health, Inc., 826 F. Supp. 2d 323 (D. Mass. 2011) (refusing to adopt state medical peer review privilege in age discrimination claim before the court pursuant to diversity jurisdiction). A federal court action will generally provide the opportunity for a speedier trial than the state court will permit and is more likely to be overseen by a single judge. While G.L. c. 151B and the ADEA may be asserted together in a complaint, asserting G.L. c. 151B claims alone may facilitate the opportunity to pursue the case in Superior Court without the risk of removal to federal court. Many plaintiffs’ lawyers think that the state court is more favorable to employment discrimination claims, while defense counsel prefer to litigate such actions in federal court. Accordingly, defense counsel should quickly and carefully review state court complaints asserting age discrimination in order to seriously consider removal to federal court. Another possible forum is arbitration. Many employers, especially in the securities industry, require employees to agree to submit all employment-related claims to arbitration. In Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), the U.S. Supreme 2–24

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

§ 2.2

Court upheld the mandatory arbitration of employment discrimination claims. However, in the subsequent decision, EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), the Supreme Court upheld the ability of the EEOC to maintain its own agency action on behalf of an individual employee, even if that employee had signed an agreement to arbitrate employment law claims. The U.S. Supreme Court has since clarified its stance on arbitration of ADEA claims as mandated by collective bargaining agreements. In 14 Penn Plaza, LLC v. Pyett, 556 U.S. 247 (2009), the Court held that “a provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law.”

§ 2.2.5

Survival of Claims

A Chapter 151B age discrimination claim survives the death of the plaintiff. Gasior v. Mass. Gen. Hosp., 446 Mass. 645, 651–52 (2006). A deceased plaintiff continues to have available all remedies provided under the antidiscrimination statute, including punitive damages. Gasior v. Mass. Gen. Hosp., 446 Mass. at 654. While the federal courts in Massachusetts have not yet ruled on the matter, other jurisdictions have found that a claim under the ADEA survives the death of the plaintiff. Gasior v. Mass. Gen. Hosp., 446 Mass. at 652. That said, some cases have found that federal common law does not support the survival of the penal remedies available under the statute. See Gasior v. Mass. Gen. Hosp., 446 Mass. at 653 n.11.

§ 2.3

SETTLEMENTS AND RELEASES

In 1990 Congress amended the ADEA to “clarify the prohibition against discrimination on the basis of age” by adding certain requirements that must be met before employees can properly waive and release their right to raise a claim of age discrimination thereunder. The amendment, entitled the Older Workers Benefit Protection Act (OWBPA), outlines minimum standards that must be met when employers attempt to obtain such waivers from employees, as well as additional standards that must be followed when waivers are offered to a group or a class of employees in connection with voluntary or involuntary termination programs.

§ 2.3.1

General Requirements

The OWBPA specifically provides that waivers under the ADEA are valid only when they are “knowing and voluntary.” 29 U.S.C. § 626(f)(1). The waiver must be part of an agreement between the individual and the employer and must be in writing, in plain language “geared to the level of understanding of the individual party to the agreement or individuals eligible to participate.” 29 U.S.C. § 626(f)(1)(A), (H). When offered to a class of employees, the writing must be drafted in a manner calculated to be understood by the “average participant.” 29 U.S.C. § 626(f)(1)(A), (H). Valid waivers cannot mislead or misinform “participants or affected individuals.” 29 C.F.R. § 1625.22(b)(4). They must state that rights under the ADEA are waived as part of the agreement and specifically advise employees “to consult with an attorney MCLE, Inc. | 2nd Edition 2020

2–25

§ 2.3

Employment Discrimination in Massachusetts

prior to executing the agreement.” 29 U.S.C. § 626(f)(1)(B), (E); see American Airlines, Inc. v. Cardoza, 133 F.3d 111 (1st Cir. 1998) (employers must directly advise employees to consult a lawyer in order to obtain a valid waiver of rights under the ADEA). Such waivers will be valid only if they are obtained in exchange for “consideration in addition to anything of value to which the individual already is entitled.” 29 U.S.C. § 626(f)(1)(D). Releases cannot be so broadly drafted that they prohibit an employee’s participation in an EEOC or MCAD investigation. Commonwealth v. Bull HN Info. Sys., Inc., 143 F. Supp. 2d 134, 149 (D. Mass. 2001). Releases can preclude monetary recovery from, but not cooperation with, such an action. Commonwealth v. Bull HN Info. Sys., Inc., 143 F. Supp. 2d at 149. Waivers will not be considered knowing and voluntary unless an employee is given up to twenty-one days to consider the terms of the waiver or, if part of an employment termination program, up to forty-five days to consider it. 29 U.S.C. § 626(f)(1)(F)(i)(ii). Additionally, employees must be provided seven days following the execution of any such waiver to revoke it. 29 U.S.C. § 626(f)(1)(G). The law does not permit the parties to waive, shorten, or forgo the seven-day revocation period. 29 C.F.R. § 1625.22(e)(5).

§ 2.3.2

Requirements Specific to Employment Termination Programs

Again, waivers obtained from employees as part of an exit incentive or employment termination program must meet additional criteria in order to be valid. At the outset, however, it is important to know what such a program is. Such programs exist when an employer offers additional consideration to two or more employees to obtain a waiver pursuant to some type of reorganization, reduction in force, or other employment termination plan. 29 C.F.R. § 1625.22(f)(1)(iii)(B). According to the regulations to the OWBPA, generally, such programs offer a standardized package of benefits that is not subject to negotiation. 29 C.F.R. § 1625.22(f)(i)(iii)(B). Employees included in such programs must receive in writing, at the commencement of the forty-five-day consideration period, a list of “any class, unit or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable for such program,” as well as “the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.” 29 U.S.C. § 626(f)(1)(H). If employees in established grade levels or other subcategories within a job category or title are included in the program, the information must also be broken down to reflect such subcategories. 29 C.F.R. § 1625.22(f)(4)(iii). Additionally, if both voluntary and involuntary terminations are included in the program, the information must identify those terminations that are voluntary and those that are not. 29 C.F.R. § 1625.22(f)(4)(iv). Finally, if an involuntary termination program occurs in successive increments over a period of time, the information must be cumulative to allow employees affected later in the program to have information on 2–26

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

§ 2.3

all individuals included. 29 C.F.R. § 1625.22(f)(4)(vi). The purpose of providing such information is to permit employees to make an informed decision as to whether they should sign the waiver. 29 C.F.R. § 1625.22(f)(1)(iv); see Commonwealth v. Bull HN Info. Sys., Inc., 143 F. Supp. 2d 134, 149 (D. Mass. 2001) (indicating that employers should provide (1) the names of the employees subject to the RIF; (2) the position or work units affected by the RIF; (3) the titles and ages of all employees in the work unit and whether they were affected by the RIF or not). Again, information concerning employees in the affected “job classification” or “organizational unit” must be included in the information disseminated to program participants. This list is not all inclusive, however, and employers should realize that information concerning all employees working in the part of the organization from which those who were offered the waiver were chosen (the “decisional unit”) must be provided to program participants. 29 C.F.R. §§ 1625.22(f)(3)(i)(A), 1625.22(f)(3)(B). The regulations explain that typical decisional units are generally facility-wide, division-wide, or department-wide. 29 C.F.R. § 1625(f)(3)(ii)(A). In other instances the “decisional unit” may be based upon reporting structure or job category. 29 C.F.R. § 1625(f)(3)(ii)(A). The decisional unit, however, may be more amorphous than some clearly defined component of the organizational structure. The regulations explain just how expansive a decisional unit may be. For example, if management determines that employees in other facilities should be considered for layoff as part of a reduction in force, the decisional unit becomes the population of all facilities. 29 C.F.R. § 1625.22(f)(3)(vi)(B). In fact, if management in other facilities merely reviews the layoff decisions, “taking into account more than one facility,” the decisional unit becomes the populations of all facilities. 29 C.F.R. § 1625.22(f)(3)(iv)(B). In any event, to ensure compliance, employers should take the most expansive view when determining the decisional unit or the employee population to include when compiling information to be disseminated to program participants. Finally, to assist in compliance, the regulations provide an example of how to properly present the required information to impacted employees. See 29 C.F.R. § 1625.22(f)(4)(vii).

§ 2.3.3

EEOC’s Enforcement Power

The OWBPA has always provided that waiver agreements will not affect the EEOC’s enforcement power under the ADEA or an individual’s right to file a charge or participate in an EEOC investigation. The regulations reiterate this prohibition. 29 C.F.R. § 1625.22(i)(2). The regulations further provide that a valid waiver agreement cannot impose any condition, penalty, or limitation precluding an employee from filing a charge with the EEOC or participating in any EEOC investigation. 29 C.F.R. § 1625.22(i)(3); see EEOC v. Astra, Inc., 94 F.3d 738, 744 n.5 (1st Cir. 1996). Despite an employee’s continuing right to file a charge with the EEOC and participate in an EEOC investigation, however, a valid waiver will preclude “the employee from recovering damages in either their own lawsuits or in lawsuits brought by the EEOC on their behalf.” EEOC v. Astra, Inc., 94 F.3d at 744 n.5. MCLE, Inc. | 2nd Edition 2020

2–27

§ 2.3

§ 2.3.4

Employment Discrimination in Massachusetts

The OWBPA’s Danger—No Tender Back Requirement

The importance of complying with the OWBPA’s provisions is emphasized by the U.S. Supreme Court’s decision in Oubre v. Energy Operations, Inc., 522 U.S. 422 (1998). In Oubre, the Supreme Court ruled that a former employee may still sue their employer for age discrimination and keep any settlement moneys received if the release does not fully comply with the OWBPA’s requirements for a knowing and voluntary waiver. Prior to Oubre, some courts had ruled that an employee could ignore a faulty release and still sue, but that the employee could not keep the settlement payment; in other words, employees interested in suing had to “tender back” the settlement moneys. Oubre holds there is no such requirement. On December 11, 2000, the EEOC revised its OWBPA regulations, which essentially implement the Oubre decision. 29 C.F.R. § 1625.23. The regulations prohibit the use of “tender back” clauses in waivers requiring the return of the payment before challenging the waiver in court. The regulations also prohibit waiver clauses which require the payment of an employer’s attorney fees and costs when a former employee files an ADEA suit. 29 C.F.R. § 1625.23(b). However, the regulations permit a “set off” of any severance payment made from the award if a former employee successfully recovers a larger monetary award in the ADEA suit. 29 C.F.R. § 1625.23(c). Accordingly, employers need to be cautious in ensuring compliance with OWBPA’s provisions, in order for releases to be effective.

2–28

2nd Edition 2020 | MCLE, Inc.

Age Discrimination

Checklist 2.1

ü CHECKLIST 2.1 Age Discrimination Strategy Checklist for Defense Attorneys The following checklist is designed to assist defense practitioners in advising clients on how to avoid a claim of age discrimination prior to implementing a job action. The checklist goes on, however, to include litigation strategies in event of an age discrimination claim. q Consistency in implementing job actions is a must. Job actions should not be arbitrary or capricious but consistently implemented in like circumstances. Failure to do so will cause employees to feel unfairly treated—probably the most common reason for employees filing any kind of discrimination claim. Moreover, arbitrariness and inconsistent application of policies and rules will assist an employee in establishing that the job action was a pretext for discrimination. q Be truthful about the reason for a job action. While often uncomfortable, it is paramount that employees be provided with the real reason for a job action. Simply put, lies about the reason for a job action are likely to be revealed at some point in the future. When they are, they offer significant support to an employee attempting to show that the employee’s termination was pretext for discrimination. Lipchitz v. Raytheon Co., 434 Mass. 493, 502 n.14 (2001) (where employer advances multiple reasons for discharge, proof that only one is pretextual may support an inference of discrimination). q If some type of restructuring or reorganization is to take place, employers should have the decision makers use uniform criteria that does not include employees’ ages to assess employees in making layoff decisions. Criteria can include such things as current performance, performance potential, flexibility, criticality of skill, and other job-related factors. See Goclowski v. Gen. Elec. Co., 19 M.D.L.R. 42 (1997). Ranking employees as a result of such a neutral criteria assessment will evidence the employer’s legitimate and nondiscriminatory reason for its actions. Goclowski v. Gen. Elec. Co., 19 M.D.L.R. 42 (1997). q Again, in a planned reorganization, restructuring, or other layoff program, after employees have been tentatively selected, and before implementation, perform an adverse-impact analysis. Such an analysis will show whether planned layoffs have an adverse impact on older workers—i.e., whether older workers are more likely to be laid-off than younger workers. If the analysis indicates that older workers are more severely impacted, the employer is well advised to reassess its layoff decisions. While such decisions may not be motivated by age and may be independently supportable, such results will clearly jeopardize the employer’s position throughout the litigation and may ultimately thwart the employer’s ability to prevail. To fairly assess the results and any risks, an employer that conducts adverse-impact analysis should be encouraged to involve legal counsel in the process. MCLE, Inc. | 2nd Edition 2020

2–29

Checklist 2.1

Employment Discrimination in Massachusetts

q If litigation results, employ a statistician to testify that the program did not adversely affect older workers. q In cases where there are no allegations of direct evidence of age discrimination, keep an eye on moving for summary judgment throughout the discovery phase. While plaintiff’s lawyers will undoubtedly argue that summary judgment is inappropriate in cases of discrimination because motivation is an issue, clear precedent demonstrates otherwise. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 127 (1997) (citing Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. 437, 440 (1995)) (summary judgment properly granted to defendants in employment discrimination suits “where . . . the plaintiff is unable to offer admissible evidence of the defendant’s discriminatory intent, motive, or state of mind sufficient to carry the plaintiff’s burdens and support a judgment in the plaintiff’s favor”). q While the plaintiff will be seeking out circumstantial evidence that the decision was motivated by age, the defendant should emphasize other circumstantial evidence that militates against any suggestion that the decision was motivated by age. For example, consider the ages of employees who were retained, or who replaced the plaintiff; if such employees are older than the plaintiff, or within a few years of the plaintiff’s age, this fact alone may thwart the complainant’s claim.

2–30

2nd Edition 2020 | MCLE, Inc.

CHAPTER 3

Gender Discrimination Gavriela M. Bogin-Farber, Esq. Messing, Rudavsky & Weliky, PC, Newton

Alida Bográn-Acosta, Esq. Tufts University, Medford

Gwen Nolan King, Esq. Sugarman, Rogers, Barshak & Cohen, PC, Boston

Dahlia C. Rudavsky, Esq. Messing, Rudavsky & Weliky, PC, Newton

James S. Weliky, Esq. Messing, Rudavsky & Weliky, PC, Newton § 3.1

Discrimination on the Basis of Gender ................................................. 3–2

§ 3.2

Sexual Stereotyping ................................................................................ 3–3

§ 3.3

Dress and Grooming Codes.................................................................... 3–6

§ 3.4

Bona Fide Occupational Qualifications ................................................ 3–8 § 3.4.1 Privacy Interests/Rights ........................................................ 3–10

§ 3.5

Sex-Plus Discrimination ....................................................................... 3–11 § 3.5.1 Sex-Plus Race....................................................................... 3–12 § 3.5.2 Sex-Plus Age ........................................................................ 3–12 § 3.5.3 Sex-Plus Pregnancy .............................................................. 3–13 § 3.5.4 Sex-Plus Marital Status ........................................................ 3–15 § 3.5.5 Sex-Plus Children................................................................. 3–15 § 3.5.6 Sex-Plus Appearance ............................................................ 3–15

§ 3.6

Claims for Equal Pay ............................................................................ 3–16 § 3.6.1 Federal Equal Pay Act .......................................................... 3–16 (a) General .......................................................................... 3–16 (b) Proving “Substantial Equality” ..................................... 3–18 (c) Employers’ Defenses .................................................... 3–19 (d) Damages........................................................................ 3–22 (e) Paycheck Fairness Act of 2019 ..................................... 3–23 § 3.6.2 Massachusetts Equal Pay Act ............................................... 3–23 (a) General .......................................................................... 3–23 (b) Comparable Work ......................................................... 3–25 (c) Other Key Changes to MEPA in 2016 Amendment ...... 3–25 § 3.6.3 Relationship of FEPA and MEPA to Title VII and G.L. c. 151B .................................................................. 3–27

MCLE, Inc. | 2nd Edition 2020

3–1

§ 3.1

Employment Discrimination in Massachusetts

§ 3.7

Massachusetts Equal Rights Act .......................................................... 3–29 § 3.7.1 General ................................................................................. 3–29 § 3.7.2 Scope and Burden................................................................. 3–30 (a) Scope ............................................................................. 3–30 (b) Burden ........................................................................... 3–30

§ 3.8

Equal Protection.................................................................................... 3–31

Scope Note This chapter covers gender discrimination issues arising from sexual stereotyping and dress and grooming codes, along with exceptions based on bona fide occupational qualifications and the right to privacy. It also addresses “sex-plus” discrimination on the basis of race, age, pregnancy, marital status, children, and appearance. Finally, the elements and prerequisites for gender discrimination claims under the Federal Equal Pay Act, the Massachusetts Equal Pay Act, the Massachusetts Equal Rights Act, and the Equal Protection Clause of the Fourteenth Amendment are laid out with relevant case law.

§ 3.1

DISCRIMINATION ON THE BASIS OF GENDER

Gender discrimination is prohibited under both state and federal statutory law. The Massachusetts Fair Employment Practices Act, G.L. c. 151B, makes it illegal to discriminate on the basis of sex in the hiring, firing, compensation, or other terms or conditions of employment. The law covers the conduct of employers, labor organizations, or employment agencies, and, in some circumstances, even individuals. G.L. c. 151B, § 4. Title VII of the Civil Rights Act of 1964, the federal counterpart, is similar in scope except for individual liability, which is not available under Title VII. 42 U.S.C. § 2000e et seq. Very few employers still overtly differentiate among their employees on gender lines. It is the rare employer that openly states that a particular job can only be done by a man or a woman. One such case is Robar v. International Longshoremen’s Ass’n, Local 1413–1465, 40 M.D.L.R. 1 (2018). In challenging the union’s decision to not hire her as forklift operator on the docks, complainant April Robar presented evidence that the union president had said the union hired females “who knew their place” and that a union member had said “we don’t pick women to work on fruit boats.” Robar v. Int’l Longshoremen’s Ass’n, Local 1413–1465, 40 M.D.L.R. at 4. These statements, together with evidence that the union had hired men without forklift operator certificates, and that it had never hired women to work on the fruit boats, were sufficient to support a claim of sex discrimination. More often, the bias is unarticulated and must be proven by the indirect method of proof. The prototypical gender claim is developed and tried no differently than a race, religion, or other protected class claim. This chapter, therefore, will discuss claims that are unique to the gender context.

3–2

2nd Edition 2020 | MCLE, Inc.

Although most gender-specific harassment falls within the purview of sexual harassment, sometimes the harassing conduct has no sexual content and is exclusively gender-based. See, e.g., Burns v. Johnson, 829 F.3d 1 (1st Cir. 2016) (supervisor’s demeaning and hostile comments, conduct, and tone toward the plaintiff, coupled with reassignment of plaintiff’s responsibilities to a group of male employees, supported a reasonable inference of sex discrimination); Magin v. Mass. State Police, 24 M.D.L.R. 355 (2002) (hearing officer) (use of profane and demeaning language in reference to women; bullying and hostile and abusive conduct were gender harassment). See also Franchina v. City of Providence, 881 F.3d 32 (1st Cir. 2018), in which the Court of Appeals affirmed the jury’s verdict that the plaintiff, a rescue lieutenant in the Providence Fire Department, had been subjected to gender discrimination and retaliation. Franchina v. City of Providence, 881 F.3d at 61. Evidence of gender discrimination included conduct by male subordinates who asked the plaintiff if she was a lesbian, addressed her as “my lesbian lover” in front of other first responders, walked into her office in underwear while she was changing, refused to prepare meals for her, called her “Frangina” (a combination of her name and “vagina”), wrote insults about her on a whiteboard at the firehouse, and yelled at her during a Christmas party. Such incidents, which the plaintiff had reported or supervisors had witnessed, coupled with the fire department’s failure to address the misconduct, resulted in a finding for the plaintiff. In Caraballo v. Correctional Administration, 892 F.3d 53 (1st Cir. 2018), the court held that, unlike in hiring or promotion decisions in which the plaintiff’s qualifications are tested against the job requirements, the prima facie case framework in discriminatory discharge or transfer cases requires a comparison between the plaintiff’s and the comparator’s qualifications “in all relevant respects.” Caraballo v. Correctional Admin., 892 F.3d at 60. Applying such rule, the court held that the plaintiff should have been allowed to show that her six years’ successful experience in the job from which she was transferred meant she had similar or even superior qualifications to those of her male successors. That showing would have established a prima facie case, creating an inference of gender discrimination. Caraballo v. Correctional Admin., 892 F.3d at 57.

§ 3.2

SEXUAL STEREOTYPING

Sometimes gender bias may take the form of stereotypical assumptions about the abilities or capabilities of a particular individual because of that person’s gender. An even more elusive form of discrimination may be present where the employer acts upon stereotypical attitudes or assumptions under the guise of describing the essential qualifications of the position in question. These assumptions, based on cultural bias and subjective perceptions, still predominantly affect women and gender nonconforming individuals in the workplace. Courts have been receptive to claims that these assumptions are merely gender bias in a more subtle form. Sexual stereotyping works to the disadvantage of an employee (or applicant for employment) in two ways. The first occurs where the employer decides that the position requires a certain temperament or characteristic and concludes that one gender does not possess this necessary trait. An example of a claim based upon this form of stereotyping MCLE, Inc. | 2nd Edition 2020

3–3

§ 3.2

Employment Discrimination in Massachusetts

is found in Northeastern Metropolitan Regional Vocational School v. MCAD, 31 Mass. App. Ct. 84 (1991). The school committee was seeking a new superintendent and refused to hire a highly qualified female candidate. A member of the hiring committee had expressed his opinion that the female candidate could not do the job because the position required “a big strong man with a big strong voice” to manage the fractious and internecine politics of the regional school committee. Both the Massachusetts Commission Against Discrimination (MCAD) and the Appeals Court found that several improper stereotypes underlay this statement. First, there was the assumption that only a man could be big and strong or have a strong voice. The second assumption was that it is essential to have a big, strong voice to do the job effectively. The rejected candidate prevailed in her claim because the school committee was unable to provide any factual support for either assumption. See also Burns v. Johnson, 829 F.3d 1, 13 (1st Cir. 2016), clarifying that “stereotyping, cognitive bias, and certain other ‘more subtle cognitive phenomena which can skew perceptions and judgments’ also fall within the ambit of Title VII’s prohibition on sex discrimination” (internal citations omitted). Plaintiff Kathleen Burns had worked in the Boston office of the Federal Air Marshals service for over ten years and was considered an excellent employee—she had even built and designed a flight scheduling program that had been adopted by other offices. When a new male supervisor arrived, he treated Burns in a rude, hostile, and condescending manner, and, rather than use her name, referred to Burns as “she.” The supervisor also reassigned most of Burns’ duties to a group of five male employees to give them more “leadership” in the operations of the unit. Burns v. Johnson, 829 F.3d at 13–14. In reversing summary judgment, the First Circuit soundly rejected the stereotype that men were better suited than women for positions of importance or leadership in the workplace. Another way in which stereotyping can adversely affect equal opportunity occurs when an employer fails to recognize the value of an employee because the employee does not fit a particular image of how individuals of that gender should act. This form of sex discrimination is best exemplified in the foundational case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The plaintiff was denied a promotion to partner even though it was agreed that she met many of the objective prerequisites for the position. The evidence produced at trial was that the decision makers did not vote for the promotion because they considered Ms. Hopkins to be too “macho.” She was described as a “tough-talking, somewhat masculine hard-nosed” manager who should “take a course at charm school.” She was told that she would have a better chance of making partner if she would “walk more femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry.” The Supreme Court adopted Ms. Hopkins’ argument that she was denied partnership, not because she did not possess the necessary qualifications for the job, but because she did not fit the firm’s stereotypical notion of womanly qualities. See also Casella v. MBNA Mktg. Sys., Inc., No. 8-176-B-W, 2009 WL 1221411, at *1, *22 (D. Me. June 9, 2009) (trial court rejected employer’s motion for summary judgment given that female employee presented evidence that after being passed over for promotion she was told “to be more motherly, soft, and kind, rather than aggressive, strong, or arrogant”). A common sex stereotype (discussed in more detail in § 3.5.5, below) is that being a new mother will negatively impact work performance. Chadwick v. WellPoint Inc., 3–4

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.2

561 F.3d 38, 45 (1st Cir. 2009) (an “employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities”); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 120 (2d Cir. 2004) (sex discrimination found where professor was told she could not “be a good mother and have a job that require[d] long hours”); Quinlan v. Elysian Hotel Co., 916 F. Supp. 2d 843, 851 n.5 (N.D. Ill. 2013) (“it is sex discrimination to fire a woman based on an employer’s view that a new mother cannot, simply because she is a new mother, dedicate enough time or energy to the job”). But see Ayanna v. Dechert, LLP, 914 F. Supp. 2d 51 (D. Mass. 2012) (claim by male attorney that he was the victim of gender discrimination because he was his family’s primary caregiver was rejected, given that female attorneys who were caregivers also experienced negative outcomes at the firm). Although the cases in this area tend to be brought by women, the principles apply equally to men. For example, an employer that refused to consider a male candidate for a day-care position because of the belief that men do not have sufficient “nurturing” skills would also violate G.L. c. 151B and Title VII. See Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) (recognizing sex stereotyping of man as a violation of Title VII and rejecting employer’s claim that plaintiff was making a claim of discrimination based on sexual orientation); Ianetta v. Putnam Invs., Inc., 142 F. Supp. 2d 131 (D. Mass. 2001) (same); cf. Higgins v. New Balance Athletic Shoes, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (dicta) (recognizing that a man can raise a claim under Title VII based on discrimination for failing to conform to male stereotypes); see also Chadwick v. Wellpoint Inc., 561 F.3d 38 (1st Cir. 2009) (jury could properly infer that denial of promotion was based on sex-based stereotyping regarding female plaintiff’s child-care responsibilities). Evidence of sex/gender-based stereotyping can support hostile work environment claims. EEOC. v. Boh Bros. Constr. Co., 731 F.3d 444, 453–60 (5th Cir. 2013) (construction site worker who disclosed using Wet Ones instead of toilet paper was viewed as insufficiently masculine and was called epithets including “pu--y,” “fa--ot,” and “princess”); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291–92 (3d Cir. 2009) (summary judgment for employer reversed as plaintiff—a gay man who described himself as “effeminate”—presented sufficient evidence of harassment based on gender stereotypes. Coworkers referred to plaintiff as “Princess” or “Rosebud,” made comments about how he walked, how he crossed his legs when he sat, and once left a pink feathered tiara in his workstation.); Griffin v. Adams & Assocs., No. 14-12668DJC, 2016 WL 3580613, at *6 (D. Mass. June 28, 2016) (comments about plaintiff’s attire, mannerisms, describing his fragrance as “feminine,” damaging a photograph that depicted the plaintiff and his male partner, and homophobic remarks, could constitute discrimination because of gender stereotypes as well as sexual orientation, and thus support hostile work environment claims). Sex stereotyping may also support a retaliation claim. In Wesolowski v. Napolitano, No. 211–163, 2013 WL 1286207 (S.D. Ga. Mar. 25, 2013), an instructor challenged his employer’s decision not to promote him as retaliatory. In denying a motion to dismiss, the court held that the instructor had engaged in protected activity by reporting sex stereotyping: two coworkers (both of whom had been promoted over the plaintiff) repeatedly ridiculed the plaintiff’s wearing an earring and wearing his long hair in a ponytail). MCLE, Inc. | 2nd Edition 2020

3–5

§ 3.2

Employment Discrimination in Massachusetts

In Harrington v. City of Attleboro, 2018 WL 475000 (D. Mass. Jan. 17, 2018), the court reaffirmed the principle that “sex discrimination can be based on sex stereotypes.” There, a student who disclosed that she liked girls and self-identified as a lesbian was repeatedly harassed by classmates using homophobic slurs. The plaintiff was also physically assaulted, where some of her classmates punched, poked, tripped, and pushed her down the stairs. The city argued that the plaintiff’s sexual orientation could not support a sex discrimination claim under Title IX. The court soundly rejected this argument, ruling that “[a]ctionable sex stereotypes [under both Title VII and Title IX] include those based on sexual orientation.” Harrington v. City of Attleboro, 2018 WL 475000, at *4. Attempts to use expert testimony in claims involving sexual stereotyping have met with some success. See, e.g., Tuli v. Brigham & Women’s Hosp., Inc., 592 F. Supp. 2d 208, 214–16 (D. Mass. 2009) (expert in social framework analysis, a discipline that addresses issues of sex stereotyping and discrimination, may testify as to how stereotyping and discrimination typically operate). At times, courts have applied the analysis used in sexual stereotyping claims to claims of gender bias brought by transgender people. See, e.g., Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (sexual stereotyping at root of employer’s rejection of job applicant who was transitioning from male to female whether employer perceived applicant as “an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender non-conforming transsexual”); MCAD & Ravesi v. Naz Fitness Grp., No. 10-BEM-03164, 37 M.D.L.R. 1 (MCAD Jan. 5, 2015) (employer’s claimed acceptance of masculine-looking gay females did not prove that employer was equally accepting of a male to female transgender employee who had been initially perceived by employer to be a gay male).

§ 3.3

DRESS AND GROOMING CODES

Although it could be argued that how we are supposed to dress is as much based upon stereotypical thinking as are the judgments challenged above, courts tend to acknowledge the legitimacy of culturally based dress, appearance, and grooming rules. This is not to say that dress codes that require women to wear revealing clothing will be upheld. In fact, “skimpy” dress requirements have been held to constitute gender discrimination. The Equal Employment Opportunity Commission (EEOC) has argued, and a District Court has agreed, that requiring women employees to wear revealing uniforms can create a sexually hostile working environment. EEOC v. Sage Realty Corp., 507 F. Supp. 599, 609–10 (S.D.N.Y. 1981) (requirements imposed by employer that employees wear uniform or costume subjecting them to verbal or physical sexual harassment violates the law). Challenges by men to grooming or dress code rules are often unsuccessful. Perhaps this is because the culturally determined grooming codes for men are less inherently demeaning. Employers can demand that men wear their hair short, at least as long as they have a comparable neatness requirement for women employees. See, e.g., Knott v Mo. Pac. R.R., 527 F.2d 1249 (8th Cir. 1975). In MacIssac v. Remington Hospitality, 3–6

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.3

Inc., 61 Mass. App. Ct. 1117, 2004 WL 1541807 (2004), the court upheld an employer rule that barred men from wearing jewelry, namely earrings, on the job but permitted women to do so. Noting that there was no Massachusetts decisional law on the issue, the MacIssac court relied upon a long line of decisions under Title VII cases that permit different dress codes for men and women, at least so long as they are comparable in terms of conventional societal custom. Where a dress or grooming policy is applied solely, or more stringently, to women, it is far more likely to be struck down. See Hub Folding Box Co. v. MCAD, 52 Mass. App. Ct. 1104, 2001 WL 789248 (2001) (finding gender discrimination where only men allowed to have conspicuous tattoos, plaintiff fired for not covering her tattoo because superior believed a woman with a tattoo would offend customers); see also O’Donnell v. Burlington Coat Factory Warehouse, Inc., 656 F. Supp. 263 (D. Ohio 1987) (women sales clerks had to wear uniform smocks, men could work in normal business dress; rule demeaned women); Laffey v. N.W. Airlines, Inc., 366 F. Supp. 763, aff’d in part, vacated in part, 567 F.2d 429 (D.C. Cir. 1976) (female employees had to wear contact lenses, males could wear glasses). On the other hand, women can be sanctioned for wearing too much makeup where male employees are also required to dress conservatively. Wislocki-Goin v. Mears, 831 F.2d 1374 (7th Cir. 1987). Some courts have suggested that these dress codes are acceptable because they involve matters that are not “immutable” gender characteristics and do not infringe on the employee’s privacy. An employee can always cut his hair or dress more conservatively. As long as the dress code does not demean the employee, the courts will not interfere. Effective July 1, 2012, gender identity was added to the list of protected classes under the Massachusetts antidiscrimination laws. G.L. c. 151B, § 4, as amended by 2011 Mass. Acts c. 199. Gender identity is defined as “a person’s gender-related identity, appearance or behavior, whether or not the gender-related identity or behavior is different from that traditionally associated with the person’ physiology or assigned sex at birth.” G.L. c. 4, § 7, as added by 2011 Mass. Acts c. 199, § 1. As a result of this change, courts will likely be required to examine dress codes from a different perspective. There are also cases addressing gender identity that predate the 2011 law. See, e.g., Millett v. Lutco, Inc., 2001 WL 1602800, at *3 (MCAD Oct. 10, 2001) (MCAD ruled that “discrimination against transsexuals is a form of sex discrimination within the conceptual framework of cases such as Price Waterhouse and its progeny,” finding that “transsexuality is sufficiently sex-linked to bring it within the ambit of the sex discrimination laws”); Doe v. Brockton Sch. Comm., No. 2000-J-638, 2000 WL 33342399 (Mass. App. Ct. Nov. 30, 2000) (single justice) (as to issuance of preliminary injunction); see also Schroer v. Billington, 557 F. Supp. 2d 293 (D.D.C. 2008); MCAD & Ravesi v. Naz Fitness Grp., 10-BEM-03164, 37 M.D.L.R. 1, 6 (MCAD Jan. 5, 2015) (allegation that employee, a fitness trainer transitioning from male to female, violated company’s dress code by attending meeting wearing shorts, scarf, jewelry and moccasins, had no merit where dress code required proper attire when clocking in for a shift and meeting was held on trainer’s day off, at a studio where trainer did not work, and when studio was closed for workouts). MCLE, Inc. | 2nd Edition 2020

3–7

§ 3.3

Employment Discrimination in Massachusetts

Practice Note Though the Ravesi decision was issued in January 2015, the complaint predated the amendment of G.L. c. 151B recognizing gender identity or expression as protected classes. Relying on Millett v. Lutco, 23 M.D.L.R. 231 (2001), which first recognized that discrimination against a transsexual individual was sex discrimination, Ravesi was decided as a sex discrimination case.

§ 3.4

BONA FIDE OCCUPATIONAL QUALIFICATIONS

There are, of course, certain irrefutable differences between men and women, in addition to those differences that our culture may create. Discrimination law recognizes an extremely narrow and limited set of exceptions to its gender-blind proscriptions. These have been carved out in recognition of the anatomical differences between men and women. In matters involving bodily privacy, courts frequently have approved gender-based employment decisions. These exceptions are embodied in the Bona Fide Occupational Qualification (BFOQ) affirmative defense that is found in both federal and state law. 42 U.S.C. § 2000e-2(e); G.L. c. 151B, § 4(1). The BFOQ defense permits an employer to justify a gender-based employment decision on the grounds that the classification is “reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e). The EEOC Guidelines view the BFOQ defense as primarily limited to circumstances where authenticity demands the hiring of one gender. A theater, for instance, may hire actors on the basis of gender. 29 C.F.R. § 1604.2(a). There are three elements to a BFOQ defense: • There must be a basis in fact for the employer’s belief that gender discrimination is reasonably necessary. • The employee’s gender relates to the essence or central mission of the employer’s business. • The employer must establish that no reasonable alternatives exist to genderbased discrimination. Everson v. Mich. Dep’t of Corr., 391 F.3d 737, 748–49 (6th Cir. 2004)) (as cited in Pugsley v. Human Res. Div., No. 11-2083, 2013 WL 9905758, at *3 (Mass. Super. Ct. Sept. 5, 2013)) (see further discussion of Massachusetts law below). The U.S. Supreme Court has held that a BFOQ defense is successful only where there is a direct relationship between the sex of the employee and their ability to perform the duties of the position. The duty or job qualification at issue must be central to the employer’s business. International Union, United Auto Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 203–04 (1991). An employer must be able to prove that “all or substantially all [members of the excluded gender] would be unable to perform safely and efficiently the duties of the job involved.” International Union, United Auto Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. at 207. 3–8

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.4

The employer in Johnson Controls excluded women of childbearing age from certain jobs that involved the handling of lead because the employer believed lead could be harmful to fetuses. The Court found the employer’s policy illegal. It held that the BFOQ defense was unavailable because the so-called fetal protection policy was not directly related to the ability of the employee to perform the job in question. International Union, United Auto Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. at 204. Interpreting Massachusetts law, the Supreme Judicial Court has stated that the employer must show that the essence of its business would be undermined if it could not hire exclusively from one group. See Sarni Original Dry Cleaners v. Cooke, 388 Mass. 611 (1983) (as to race-based decision). The evidence must be based upon objective facts and not subjective concepts or “impermissible stereotypes.” Sarni Original Dry Cleaners v. Cooke, 388 Mass. 611 (1983). Soon after Sarni, the MCAD rejected a BFOQ defense for refusing to hire a woman to record taped narratives accompanying travelogue slide shows. Freeman v. World Travelogue Co., 6 M.D.L.R. 1781 (1984). The employer claimed that the narrator was required to have a bass voice because of the nature of his recording equipment and to aid in better hearing the text. The employer offered no objective evidence that a low-pitched voice was necessary for either purpose, and the hearing commissioner rejected the defense. Until recently, no Massachusetts appellate court had addressed the BFOQ defense since Sarni. Then, in the Supreme Judicial Court’s only recent decision related to BFOQ, it noted in dicta that this defense should be very narrowly applied. See Pugsley v. Police Dep’t of Bos., 472 Mass. 367 (2015). In Pugsley, the Superior Court had granted summary judgment for the employer (and against the plaintiff male job applicant) by concluding that the hiring preference for women met the elements of a BFOQ. A statistical analysis showed a disparity between the number of female criminal suspects and the number of female officers on staff (22 percent and 13 percent, respectively); female officers were needed to search female suspects and to staff rape prosecution units; and, given the need for more female officers, there was no reasonable alternative to recruiting more female candidates. Pugsley v. Human Res. Div., 2013 WL 9905758, at *4–5. On appeal, the Supreme Judicial Court, in dicta, questioned the Superior Court’s acceptance of the department’s BFOQ defense. In response to the department’s argument that “its use of a female selective certification was justified by the statistical disparity between the number of female Boston police officers and the number of female suspects and female victims that come into contact with law enforcement,” the court noted that “the use of statistical disparities, without more, will generally be insufficient to support a BFOQ,” and directed the MCAD to “particularize the showing necessary for engaging in such discriminatory hiring through the BFOQ process.” Pugsley v. Police Dep’t of Bos., 472 Mass. at 374–75 (emphasis added). At note 19, the court observed that the employer had not detailed efforts to increase the number of women in the department without relying on the BFOQ, and that such efforts, which could include recruitment efforts directed at women veterans and the use of a MCLE, Inc. | 2nd Edition 2020

3–9

§ 3.4

Employment Discrimination in Massachusetts

cadet training programs, would be relevant, “if not explicitly required,” to assess the propriety of the BFOQ. However, because the Supreme Judicial Court in Pugsley vacated the Superior Court’s judgment and remanded for dismissal for lack of standing (finding the plaintiff failed to show a “nonspeculative, direct injury”), its holding did not include the BFOQ issue. Pugsley v. Police Dep’t of Bos., 472 Mass. at 373. Thus, as of this writing, it remains to be seen how the MCAD and state courts will apply the BFOQ defense going forward. Under federal law, BFOQs have been recognized where the gender-based criterion is necessary to protect the safety of third parties, as opposed to employees. In Dothard v. Rawlinson, 433 U.S. 321 (1977), the Court let stand the prohibition of female guards in certain “contact positions” in a male prison. The Court accepted the argument that placing women in the position to have contact with those incarcerated for sex offenses would undermine security and pose a safety risk to the entire prison population. This decision, while often cited, is seldom followed. In subsequent years Dothard has been limited very closely to its particular facts. In Massachusetts, repeated attempts by law enforcement organizations to justify the exclusion of women from assignments have met with disapproval. See, e.g., Weston v. Mass. Dep’t of Corr., 7 M.D.L.R. 1247, 1274–75 (1985) (no BFOQ defense available to justify refusal to hire female nurse to night shift at male prison); cf. Dalrymple v. Town of Winthrop, 15 M.D.L.R. 1473, 1488–89 (1993) (discriminatory not to allow female officer to participate in raid because force was required and to assign to desk duty instead because of “pleasant and nice voice and manner with the public”). Notions of paternalism have not found a welcome audience with the courts. Employers, as in Dalrymple, who have sought to justify the exclusion of women on the grounds of protecting them from harm have been singularly unsuccessful.

§ 3.4.1

Privacy Interests/Rights

Some courts have utilized the BFOQ concept to recognize the privacy interests of third parties. It is only in this limited context that the defense of “customer preference” still survives and is given any consideration whatsoever. See, e.g., Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971) (atmosphere and customer preference do not justify female-only flight attendants). Essential to the defense’s success is proof that protecting privacy interests is an essential component of the employer’s business. The defense is usually rejected in prison settings. See, e.g., Gunther v. Iowa State Men’s Reformatory, 612 F.2d 1079 (8th Cir. 1980); Jakimcyzk v. Commonwealth Dep’t of Corr., 12 M.D.L.R. 1067 (1990) (male guards improperly denied promotional opportunity at woman’s prison). But see Robino v. Iranon, 145 F.3d 1109 (9th Cir. 1998) (gender was BFOQ reasonably necessary to accommodate privacy interests of female inmates); Jackson v. Dep’t of Corr., No. 03-4431, 2006 WL 2560318 (Mass. Super. Ct. Aug. 25, 2006) (pat-frisking of male Muslim inmates by female correction officers violates state and federal rights of prisoners).

3–10

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.4

The BFOQ defense has found a more-welcome reception in nonprison settings. The defense was recognized in a 2010 case in which the Transportation Security Administration engaged in gender-based employment actions because of the need to provide same-sex screening for body pat-downs. Wilson v. Chertoff, 699 F. Supp. 2d 364 (D. Mass. 2010). BFOQs also have been upheld for washroom and bathhouse attendants, Brooks v. ACE Indus., Inc., 537 F. Supp. 1122 (S.D. W. Va. 1982), and medical attendants and nurses involved in care of intimate parts of the body, George v. City of Springfield Mun. Hosp., 2 M.D.L.R. 1415 (1980) (citing Fesel v. Masonic Home of Del., 447 F. Supp. 1346 (D. Del. 1978), aff’d, 591 F. 2d 1334 (3d Cir. 1979). See also Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3d Cir. 1996) (BFOQ found when duties of child-care specialists at hospital included accompanying children to bathroom and bathing them); Pugsley v. Police Dep’t of Bos., 472 Mass. 367, 374 (2015) (citing Jennings v. N.Y. State Office of Mental Health, 786 F. Supp. 376, 381–87 (S.D.N.Y. 1992), aff’d, 977 F.2d 731 (2d Cir. 1992)) (BFOQ defense was justified to limit availability of shifts by gender at a mental health facility, since certain policies required staff members to observe patients in intimate settings). The defense has fared less well in the health-club context. EEOC v. Sedita, 816 F. Supp. 1291 (N.D. Ill. 1993). Federal courts articulate a three-part inquiry, although it is variously stated. In Wilson v. Chertoff, the District Court cited with approval to the Sixth Circuit test: • The employer must show that there is a factual basis for believing that gender limits are necessary to protect privacy interests. • The employee’s gender must relate to the essence or the central mission of the employer’s business. • There must be no reasonable alternative to protect the affected privacy interests. Wilson v. Chertoff, 699 F. Supp. 2d at 373 n.53.

§ 3.5

SEX-PLUS DISCRIMINATION

“Sex-plus” based decisions are those that differentiate among employees of the same gender on the basis of an additional characteristic. In these cases, employers do not discriminate against a class of men or women as a whole but, rather, differentiate among subclasses of men or women. “Sex-plus” cases generally fall into two general categories. The first category involves a combination of gender and a legally protected characteristic, i.e., race or age. The second type involves gender and a neutral characteristic, such as marital status, parenthood, or appearance. In either case, the complainant/plaintiff must establish that sex/gender was a motivating factor in the adverse employment action. The “sex-plus” concept first gained judicial recognition in Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam). The employer refused to hire women with school-age children even though it hired other women and hired men without regard to their family composition. Courts do not view such distinctions with favor and strike these distinctions down as gender bias. For example, adverse treatment of married women is forbidden. Even if such a policy does not apply to all women, it MCLE, Inc. | 2nd Edition 2020

3–11

§ 3.5

Employment Discrimination in Massachusetts

will be found to be discriminatory if only married women, as opposed to married men, are treated in an adverse manner. At times, the “sex-plus” analysis is not much different from the analysis discussed above under sexual stereotyping.

§ 3.5.1

Sex-Plus Race

The sex-plus-race claim was first recognized in Jefferies v. Harris Co. Community Action Ass’n, 615 F.2d 1025 (5th Cir. 1980), in which the court found that discrimination against black females could exist even absent discrimination against black men or white women. Jefferies v. Harris Co. Cmty. Action Ass’n, 615 F.2d at 1032. Lam v. University of Hawaii, 40 F.3d 1551, 1562 (9th Cir. 1994), extended the sexplus-race theory to Asian women. The Lam court held that “when a plaintiff is claiming race and sex bias, it is necessary to determine whether the employer discriminates on the basis of that combination of factors, not just whether it discriminates against people of the same race or of the same sex. Lam v. Univ. of Hawaii, 40 F.3d at 1562. In Shazor v. Professional Transit Management, Ltd., 744 F.3d 948, 957–58 (6th Cir. 2014), the court reversed summary judgment for the employer (who had replaced the plaintiff with a Latina), holding that the plaintiff met her burden that she was replaced by someone outside her protected racial class. Shazor v. Prof’l Transit Mgmt., Ltd., 744 F.3d at 957. Because the sex bias claim “cannot be untangled from [plaintiff’s] claim of race discrimination,” and race and sex “do not exist in isolation,” the court found that “African American women are subjected to unique stereotypes that neither African American men nor white women must endure. And Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds.” Shazor v. Prof’l Transit Mgmt., Ltd., 744 F.3d at 958. In Core-Boykin v. Boston Edison Co., No. 01-5156-E, 2004 WL 855567, at *7 (Mass. Super. Ct. Apr. 13, 2004) (Hines, J.), the Superior Court, citing to Jefferies and Lam, among other non–Title VII cases, ruled that there is “nothing in Massachusetts case law or statutes that prohibit a discrimination claim under Chapter 151B that alleges combination discrimination.” Men have also successfully asserted sex-plus claims. Craig v. Yale Univ. Sch. of Med., 838 F. Supp. 2d 4, 8–9 (D. Conn. 2011) (dismissing pure gender discrimination case but finding that African-American male who sought to practice medicine in the OB/GYN field had “pled sufficient facts to make out a cognizable ‘intersectional claim,’ or a ‘race plus’ claim of discrimination against black males, which can exist even without proof of discrimination against African American women or against white males”).

§ 3.5.2

Sex-Plus Age

Some courts—though not all—have recognized claims where gender and age intersect. The first such reported case was Arnett v. Aspin, 846 F. Supp. 1234 (E.D. Pa. 1994), in which the plaintiff, a woman over forty, claimed sex-plus-age discrimination after being passed over for promotion in favor of younger women or men over forty. The District Court recognized that, if it analyzed the sex and age claims separately, 3–12

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.5

neither would survive summary judgment. Arnett v. Aspin, 846 F. Supp. at 1238. Reasoning that the “plus” factor was based on either an immutable characteristic or the exercise of a fundamental right, and deeming age to be an immutable characteristic, the District Court found the plaintiff “to be a member of a discrete subclass of ‘women over forty’” and allowed the sex-plus-age claim to proceed. Arnett v. Aspin, 846 F. Supp. at 1241; see also O’Regan v. Arbitration Forums, Inc., 121 F.3d 1060, 1065 (7th Cir. 1997) (motion to dismiss denied in claim that female executive favored “attractive young inexperienced males over highly experienced, middle-aged female employees”); Comley v. Media Planning Grp., 108 F. Supp. 3d 6 (D. Mass. 2015) (summary judgment denied to employer that terminated a fifty-five-year old female employee who showed she was performing her job satisfactorily and that younger coworkers were treated more favorably than her); James v. Teleflex, Inc., No. 97–1206, 1998 WL 966009 (E.D. Pa. Dec. 23, 1998) (sex-plus-age case allowed to reach jury where plaintiff, a woman over forty, presented evidence that her duties were assumed by a younger female and a male; that she was the only woman member of the executive team—and the only member of the team to be selected for lay off; and that only males and females under forty were selected for company-wide leadership programs). But in Sherman v. American Cyanamid Co., 996 F. Supp. 719 (N.D. Ohio 1998), the U.S. District Court rejected the sex-plus-age claim despite evidence that the employer treated younger women and older men more favorably. Summarily dismissing the comparison with younger women and seeming to focus only on gender, the court held that a “‘sex plus age’ claim necessarily involves comparison with a male . . . a similarly situated older male.” Sherman v. Am. Cyanamid Co., 996 F. Supp. at 728. The court then held that “to establish a gender-plus age claim, the plaintiff . . . would need to show that defendant [employer] treated older women less favorably than it treated older men. Crucially, the comparison must be with like age men.” Sherman v. Am. Cyanamid Co., 996 F. Supp. at 728. On appeal, in an unpublished opinion, the Sixth Circuit declined to recognize a separate sex-plus-age cause of action. Sherman v. Am. Cyanamid Co., 188 F.3d 509, at *5 (6th Cir. 1999).

§ 3.5.3

Sex-Plus Pregnancy

Pregnancy-based distinctions were the subject of much litigation in the decade after gender bias was first declared unlawful. In a series of cases brought in the 1970s against school committees, the Supreme Judicial Court declared discrimination on the basis of pregnancy to constitute illegal gender bias, violative of G.L. c. 151B. See Sch. Comm. of Brockton v. MCAD, 377 Mass. 392 (1979) (policy of excluding pregnancy from sick leave coverage is sexually discriminatory); Black v. Sch. Comm. of Malden, 365 Mass. 197 (1974) (disallowance of sick pay for pregnancy-related disabilities improper where sick leave allowed for other disabilities). The U.S. Supreme Court reached a contrary result in General Electric Co. v. Gilbert, 429 U.S. 125 (1976). Congress responded by specifically banning pregnancy discrimination under Title VII in the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (PDA). The first clause of the PDA specifies that Title VII’s term “because of sex” includes “because of or on the basis of pregnancy, childbirth or related medical conditions.” MCLE, Inc. | 2nd Edition 2020

3–13

§ 3.5

Employment Discrimination in Massachusetts

42 U.S.C. § 2000e(k). The PDA’s second clause provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). In Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), the Supreme Court clarified the meaning of the PDA’s second clause. While reaffirming that the PDA prohibits discrimination against female employees who, as a result of their pregnancies, may be unable to perform all of their job requirements, the Court announced a new framework to establish a prima facie case of pregnancy-related discrimination. Under this framework, the plaintiff must show that • they belong to a protected class; • they sought an accommodation; • the employer did not accommodate the employee; and • the employer accommodated others “similar [to the plaintiff] in their ability or inability to work.” Young v. United Parcel Serv., Inc., 135 S. Ct. at 1354. The employer must meet its burden of production by proffering a legitimate, nondiscriminatory reason for denying the accommodation. Young v. United Parcel Serv., Inc., 135 S. Ct. at 1354. However, the Court cautioned that claiming it is more expensive or less convenient to add pregnant employees to the categories of workers being accommodated would normally not qualify as a legitimate reason. Young v. United Parcel Serv., Inc., 135 S. Ct. at 1354. The burden then shifts to the employee to show that the employer’s reason is pretextual. Young v. United Parcel Serv., Inc., 135 S. Ct. at 1354. The Court explained that a plaintiff can make this showing by providing evidence that the facially neutral policy imposes a “significant burden” on pregnant employees and that the legitimate, nondiscriminatory reason is not “sufficiently strong” to justify the burden, giving rise to an inference of intentional discrimination. Young v. United Parcel Serv., Inc., 135 S. Ct. at 1354. According to one commentator, “in the end, the final steps in the inquiry become a form of measuring a negative impact on female workers, rather than an intentionally biased policy.” Lyle Denniston, “Opinion analysis: Fashioning a remedy for pregnancy bias,” SCOTUSblog (Mar. 25, 2015), http://www.scotusblog .com/2015/03/opinion-analysis-fashioning-a-remedy-for-pregnancy-bias. The MCAD has found pregnancy-based gender bias in more recent cases as well. See, e.g., Diangelo v. Pandiscio, No. 05-SEM-02133, 2010 WL 2320621 (MCAD 2010) (Full Commission) (employer may not terminate a pregnant employee because of its concern about safety of fetus); Osmani v. State St. Bank & Trust Co., 25 M.D.L.R. 151 (2003) (single commissioner) (denial of promotion to employee on maternity leave is gender bias); Norman v. Andover Country Club, 15 M.D.L.R. 1394 (1993) (single commissioner) (gender bias where employer subjected employee to hostile work environment, reduced hours and salary because of pregnancy); Foy v. Mast Indus., Inc., 13 M.D.L.R. 1501 (1991) (terminating employee because she was pregnant and would require maternity leave constitutes gender bias). Employer actions that are based on stereotypical attitudes about pregnancy also can constitute gender bias. 3–14

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.5

Troy v. Bay State Comput. Grp., Inc., 141 F.3d 378, 381 (1st Cir. 1998) (employee terminated because employer believed pregnancy would affect her attendance). Codifying the above, effective April 1, 2018, the Pregnant Workers Fairness Act (amending G.L. c. 151B, § 4) expressly prohibits employment discrimination on the basis of pregnancy and pregnancy-related conditions. For a more robust discussion of pregnancy discrimination and the Pregnant Workers Fairness Act please refer to chapter 5 of this book, on Pregnancy Discrimination.

§ 3.5.4

Sex-Plus Marital Status

Treating a married woman differently from a married man violates G.L. c. 151B’s proscription against gender discrimination. Thus, in Ntapalis v. Halem & Schrader, P.C., 15 M.D.L.R. 1117 (1993), the Full Commission concluded that the employer had discriminated against a soon-to-be-married female dentist by limiting her duties once she announced her engagement to be married. The MCAD acknowledged that marital status is not a per se protected category under the statute. However, the MCAD found that the employer had made negative comments to the employee, suggesting that she should put off her marriage and motherhood until her dentistry practice was better established. The MCAD concluded that these comments were “based upon the stereotypical belief that women will become the primary caretaker for their children and will not be capable of performing their jobs after they marry and have children.” Ntapalis v. Halem & Schrader, P.C., 15 M.D.L.R. at 1125; see also EEOC Guidelines on Discrimination Because of Sex, § 1604.4.

§ 3.5.5

Sex-Plus Children

While parental status is not a protected category, bias against women with children, based on the stereotypical belief that women are incapable of doing an effective job while at the same time caring for their young children, is gender bias. Sivieri v. Dep’t of Transitional Assistance, 21 Mass. L. Rptr. 97 (Super. Ct. 2006) (citing with approval Second Circuit decision stating that the stereotype “good mothers cannot be good workers” can constitute gender discrimination); Sivieri v. Dep’t of Transitional Assistance, 16 Mass. L. Rptr. 531 (Super. Ct. 2003) (parental status is a characteristic “closely linked to gender”); see also Chadwick v. Wellpoint, Inc., 561 F.3d 38 (1st Cir. 2009) (stereotyping based on child-care responsibilities is gender discrimination under Title VII); Quinlan v. Elysian Hotel Co., 916 F. Supp. 2d 843, 850–55 (N.D. Ill. 2013) (“[plaintiff’s] claim seems to fall under the umbrella of sex/gender discrimination based on [her] status as a new mother”); EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, No. 915.002 (May 23, 2007) (setting out EEOC’s analysis of how disparate treatment of mothers and other caregivers may constitute sex discrimination).

§ 3.5.6

Sex-Plus Appearance

The MCAD has found gender bias in the decision of an employer to terminate a female employee after she had cancer-related breast removal. In Brady v. Art-Cement Products Co., 11 M.D.L.R. 1053 (1989), the employer argued that terminating an MCLE, Inc. | 2nd Edition 2020

3–15

§ 3.5

Employment Discrimination in Massachusetts

employee after breast cancer and breast removal surgery was not gender bias because men can suffer from breast cancer, and have breast tissue removed, as well. While acknowledging the medical foundation for that statement, the MCAD was unpersuaded that the employer’s decision was without gender bias. It grounded its finding of sex discrimination on the reality that only female breasts are linked to sexuality in our society, making the removal of a female breast a unique and sex-linked event. As noted above, the analytical framework used by courts to decide cases of this nature is sometimes characterized as stereotyping rather than “sex-plus.” Thus, the dress and grooming cases discussed above can also be read as “sex-plus” cases. The above examples are some of the ways in which gender bias law has developed differently from other kinds of discrimination law. In most other respects, the analysis applied to gender claims will be no different than that applied to other forms of alleged discrimination.

§ 3.6

CLAIMS FOR EQUAL PAY

Massachusetts employees have several statutory claims for gender-based unequal pay: the Federal Equal Pay Act (FEPA), 29 U.S.C. §§ 206(d), 216; the Massachusetts Equal Pay Act (MEPA), G.L. c. 149, § 105A (August 1, 2016 amendments effective July 1, 2018); Title VII; and G.L. c. 151B. Each claim requires different proof. This section will review FEPA, MEPA, and the relationship of FEPA and MEPA to genderbased pay discrimination claims under Title VII and G.L. c. 151B.

§ 3.6.1 (a)

Federal Equal Pay Act General

The Federal Equal Pay Act was passed in 1963 as an amendment to the Fair Labor Standards Act (FLSA) to prohibit discrimination in pay by compensating members of one gender less than members of the other gender for “equal work” in positions requiring “equal skill, effort, and responsibility, and which are performed under similar working conditions.” Employers are relieved of liability if they can prove that the pay differential is a result of “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1). Plaintiffs bear the burden of proof to show that they have been paid less for equal work. Defendants bear the burden of proof to show that the pay differential is a result of one of the four defenses outlined in 29 U.S.C. § 206(d)(1). See Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974); King v. Acosta Sales & Mktg., Inc., 678 F.3d 470, 473–74 (7th Cir. 2012); McMillan v. Mass. Soc’y for Prevention of Cruelty to Animals, 140 F.3d 288, 298 (1st Cir. 1998). The plaintiff need not prove discriminatory intent. McMillan v. Mass. Soc’y for Prevention of Cruelty to Animals, 140 F.3d at 298. However, a showing of intent may be used to establish that an employer’s affirmative defense is a pretext for discrimination. EEOC v. Del. Dep’t of Health & Soc. Servs., 865 F.2d 1408, 1414 n.8 (3d Cir. 1989) (citing Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir. 1986)). 3–16

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.6

There is no minimum number of employees required for coverage under FEPA. Although some of the same exemptions from coverage that apply to the remainder of the FLSA apply to FEPA, see 29 U.S.C. § 213, the FLSA’s exemption for “bona fide executive, administrative or professional capacity” employees does not apply to FEPA. 29 U.S.C. § 213(a)(1). There are no administrative prerequisites to suit, which may be brought either in state or federal court. 29 U.S.C. § 216(b). The EEOC may also bring suit on an employee’s behalf, but such suit terminates the employee’s right to file a claim. 29 U.S.C. § 216(c). The statute of limitations for filing suit is two years for nonwillful violations and three years for willful violations. 29 U.S.C. § 255(a); McLaughlin v. Richland Shoe Co., 486 U.S. 128, 132 (1988); cf. Boaz v. FedEx Customer Info. Servs., 725 F.3d 603, 605–07 (6th Cir. 2013) (where employee filed claim outside of contractual limitations period set forth in employment agreement but within statutory time period, contract may not reduce FEPA’s statutory time limits where it would operate as waiver of FEPA claim); Castellanos v. Raymours Furniture Co., 291 F. Supp. 3d 294, 301 (E.D.N.Y. 2018) (statute of limitations provided in employee arbitration agreement not enforceable because, inter alia, it would eliminate three-year statute of limitations for willful violations). A plaintiff proves a willful violation by establishing that the employer “knew or showed reckless disregard” for the fact that its conduct was governed by FEPA. McLaughlin v. Richland Shoe Co., 486 U.S. at 130, 135; cf. Andover Newton Theological Sch., Inc. v. Cont’l Cas. Co., 930 F.2d 89, 91–92 (1st Cir. 1991) (ADEA decision discussing willfulness, as defined in McLaughlin and Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 124–30 (1985)). Courts also recognize continuing violations, holding that the statute of limitations does not begin to run until the last discriminatory paycheck was received. LeGoff v. Trs. of Bos. Univ., 23 F. Supp. 2d 120, 126 (D. Mass. 1998) (“The [Equal Pay Act] is violated each time an employee receives a lower paycheck because of her sex, no matter how many equally discriminatory paychecks she received in the past.”). Evidence of pre–limitations-period wage disparities may be admissible as relevant background evidence. Price v. N. States Power Co., 664 F.3d 1186, 1191 (8th Cir. 2011). Courts have allowed salary comparisons to predecessors and/or successors rather than only to a contemporaneous male employee. See, e.g., Rhoades v. Young Women’s Christian Ass’n, 423 Fed. Appx. 193, 197–98 (3d Cir. 2011) (predecessor and nonimmediate successor may constitute comparators); Broadus v. O.K. Indus., Inc., 226 F.3d 937, 941–42 (8th Cir. 2000) (a nonimmediate successor may be an appropriate comparator); EEOC v. First Citizens Bank of Billings, 758 F.2d 397, 402 (9th Cir. 1985) (employee may compare her salary to that of a male successor); Brown v. Pine Bluff Sch. Dist., No. 5:18CV00004 JLH, 2019 U.S. Dist. LEXIS 596, at *5–6 (E.D. Ark. Jan. 3, 2019) (comparing employee’s salary to male predecessor’s salary); Ruiz-Justiniano v. U.S. Postal Serv., No. 16-1526 (MEL), 2018 U.S. Dist. LEXIS 111404, at *40 (D.P.R. June 29, 2018) (appropriate to compare employee’s salary to predecessors and successors for FEPA claim); Emswiler v. Great E. Resort Corp., 602 F. Supp. 2d 737, 746 (W.D. Va. 2009) (former employee may compare herself to a combination of three particular, identifiable persons who succeeded her).

MCLE, Inc. | 2nd Edition 2020

3–17

§ 3.6

Employment Discrimination in Massachusetts

Claims may be brought against an individual manager if that individual is closely identified with the employer under an “economic reality” test. Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983) (individual liability under the FLSA) (as cited in Chao v. Hotel Oasis, Inc., 493 F.3d 26, 33–34 (1st Cir. 2007)); accord Acosta v. Special Police Force Corp., 295 F. Supp. 3d 47, 58–59 (D.P.R. 2018) (FLSA); Danio v. Emerson Coll., 963 F. Supp. 61, 63 (D. Mass. 1997) (FEPA); Miranda v. IPR Pharms., No. 10-2238 (JAF), 2011 U.S. Dist. LEXIS 137659, at *9 (D.P.R. Nov. 29, 2011). The “economic reality” test in the FEPA context will be analyzed in terms of the individual’s ownership interest in the company, the “degree of operational control over the corporation’s daily functions, financial affairs and compensation practices,” and the role played by the individual in causing the under-compensation of employees. Miranda v. IPR Pharms., 2011 U.S. Dist. LEXIS 137659, at *9. In the First Circuit, an important factor is the individual’s personal responsibility for making business decisions that resulted in the violation of the FLSA. See Manning v. Bos. Med. Ctr. Corp., 725 F.3d 34, 47–51 (1st Cir. 2013); Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 678 (1st Cir. 1998); Forziati v. Gray Box Consultant, No. 1412325-MLW, 2016 U.S. Dist. LEXIS 112268, at *15–20 (D. Mass. June 30, 2016); Danio v. Emerson Coll., 963 F. Supp. at 63; Miranda v. IPR Pharms., U.S. Dist. LEXIS 137659, at *9.

(b)

Proving “Substantial Equality”

Proof that the positions being compared are “substantially equal” turns on a multifactored, fact-intensive analysis, where no single factor is determinative. Primary responsibilities of the position should be compared, not insubstantial requirements that could be or are in fact performed in other positions. 29 C.F.R. § 1620.14. The EEOC has enacted an extensive set of regulations interpreting and governing its implementation of FEPA at 29 C.F.R. § 1620. While the EEOC’s interpretations of statutes it is charged to enforce are not determinative, the EEOC’s reasonable interpretations are entitled to deference by the courts. EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 116 (1988). The reader is also referred to the extensive case law on the issue of substantial equality. Equal skill is determined by factors such as the amount of experience, training, education, and ability necessary to perform the primary requirements of the jobs. In determining whether compared jobs are substantially equal, the factfinder must look to the skills and qualifications actually needed by the positions, not the skills and qualifications of the current occupants of those positions. 29 C.F.R. § 1620.15. Equal effort is determined by factors such as the amount of physical or mental activity needed to perform the primary requirements of the positions. 29 C.F.R. § 1620.16. Equality of responsibility is determined by the degree of accountability and authority with which the positions are endowed. 29 C.F.R. § 1620.17. Similar working conditions are determined under a “flexible standard,” taking into account similarity in “surroundings” (such as presence of fumes) and physical “hazards.” 29 C.F.R. § 1620.18. Job descriptions are relevant, but are not necessarily determinative of whether positions are substantially equal. McMillan v. Mass. Soc’y for Prevention of Cruelty to Animals, 140 F.3d 288, 299 (1st Cir. 1998); see also Storrs v. Univ. of Cincinnati, 271 F. Supp. 3d 910, 934–35 (S.D. Ohio 2017) (substantial equality where FEPA plaintiff and male comparators were all assistant professors in 3–18

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.6

the same department and their positions were governed by the same document governing reappointment, promotion, and tenure). Rather, substantial equality is determined by the manner in which the compared positions are actually performed. Marcoux v. Maine, 797 F.2d 1100 (1st Cir. 1986) (although formal job titles are considered, positions are compared based on working conditions and actual tasks performed); accord Arrington v. Cobb Cty., 139 F.3d 865, 876 (11th Cir. 1998) (same holding); Colley v. Dickenson Cty. Sch. Bd., No. 2:17CV00003, 2018 U.S. Dist. LEXIS 152349, at *6–8, 13–14 (W.D. Va. Sept. 6, 2018) (same; finding substantial similarity as to two out of five comparators); see also Seligson v. Mass. Inst. of Tech., 677 F. Supp. 648 (D. Mass. 1987) (Title VII wage disparity case employing FEPA standard).

(c)

Employers’ Defenses

As noted, employers have four affirmative defenses to FEPA claims: that the pay differentials at issue are based on seniority, are attributable to a merit system, arise from incentive systems, or are caused by a “factor other than sex.” 29 U.S.C. § 206(d)(1). One of the primary issues to be determined under the first three of the four defenses is the definition of the term “system.” It must be a formal or systematically administered plan, guided by objective standards. See, e.g., Hodgson v. Brookhaven Gen. Hosp., 436 F.2d 719, 726 (5th Cir. 1970). The system must be preestablished, with its relevant terms communicated to employees in advance, and cannot be offered as a post hoc explanation for the employer’s actions. See, e.g., McQueen v. Licata’s Seafood Rest., 63 Fair Empl. Prac. Cas. (BNA) 1412, 1416 (E.D. La. 1992) (unwritten merit system of which employees are unaware will not satisfy the exception); cf. Cole v. N. Am. Breweries, No. 1:13-CV-236, 2015 U.S. Dist. LEXIS 6157, at *26–33 (S.D. Ohio Jan. 20, 2015) (summary judgment denied where employer used highly subjective salary model and made post hoc attempts for it to appear consistently applied). Wage differentials based on length of service or date of hire have been held to satisfy the “seniority system” defense provided that they are applied in a gender neutral and nondiscriminatory manner. See, e.g., Hodgson v. Washington Hosp., 9 Fair Empl. Prac. Cas. (BNA) 612, 615 (W.D. Pa. 1971); see also Suter v. Univ. of Tex. at San Antonio, 495 Fed. Appx. 506, 511–12 (5th Cir. 2012) (no FEPA violation where salaries set according to evaluation system based partly on seniority). Some courts have upheld less formal “de facto” seniority systems. See EEOC v. Cleveland State Univ., 28 Fair Empl. Prac. Cas. (BNA) 1782, 1792–95 (N.D. Ohio 1982). However, employers with these “de facto” systems must demonstrate that the system was applied with regularity, e.g., that seniority regularly guided compensation decisions. See EEOC v. Shelby Cty., 707 F. Supp. 969, 983–84 (W.D. Tenn. 1988) (no seniority system where system was not applied uniformly and where employees with less seniority received raises over those with more seniority). A merit system may be established if an employer can show that differences in employee wages are based on varying levels of performance. Again, this must be supported by evidence that the employer actually administered the system with uniform, objective, and nondiscriminatory criteria. See, e.g., Suter v. Univ. of Tex. at San Antonio, 495 Fed. Appx. at 511–12 (no FEPA violation where professors’ salaries set MCLE, Inc. | 2nd Edition 2020

3–19

§ 3.6

Employment Discrimination in Massachusetts

according to merit evaluation system based on teaching, research, service, and seniority); Brennan v. Victoria Bank & Tr. Co., 493 F.2d 896, 901 (5th Cir. 1974) (upholding systematic and formal application of objective written standards to reward employee merit). An employer may also base wage differentials on the quality or quantity of the employee’s work product, provided that there is no evidence of discrimination in the rate or percentage of commission received for the same level of productivity. See Bence v. Detroit Health Corp., 712 F.2d 1024, 1029 (6th Cir. 1983) (quantity or quality of production defense fails where male employees received 50 percent more commission than women for sale of the same types of health club memberships). This defense is not available when comparing so-called white-collar positions treated as exempt from the FLSA’s overtime pay requirement because such positions, with only two exceptions, must be “salaried,” which by definition means the pay is “not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.602(a); see also Amendment at 81 Fed. Reg. 32550 (updating definition of who fits into the white-collar exemption, effective December 1, 2016). Note that implementation of this amendment is stayed pending litigation in Nevada v. U.S. Department of Labor, No. 4:16-CV-00731, 2016 U.S. Dist. LEXIS 162048 (E.D. Tex. Nov. 22, 2016). The fourth defense, “factor other than sex,” requires that an employer prove that sex played no part in the decision to pay men and women unequally. Applicable factors have been found to include such elements as experience, adverse economic conditions, and amount of revenue generated by the employee. See Suter v. Univ. of Tex. at San Antonio, 495 Fed. Appx. at 511–12 (merit evaluations of university professor based on teaching, research, service, and seniority constituted reasonable factor other than sex); Hicks v. Concorde Career Coll., 449 Fed. Appx. 484, 486 (6th Cir. 2011) (comparator’s greater years of experience constituted reasonable factor other than sex); Negley v. Judicial Council of Cal., 458 Fed. Appx. 682, 684 (9th Cir. 2011) (comparator’s superior qualifications and experience constituted reasonable factor other than sex). As with seniority-based and merit-based systems, employers relying on a “factor other than sex” must apply that factor in a consistent, nondiscriminatory manner. See, e.g., Thibodeaux-Woody v. Houston Cmty. Coll., 593 Fed. Appx. 280, 283–84 (5th Cir. 2014) (pay differential not based on factor other than sex if negotiation policy applied discriminatorily); Cole v. N. Am. Breweries, No. 1:13-CV-236, 2015 U.S. Dist. LEXIS 6157, at *26–29 (S.D. Ohio Jan. 20, 2015) (experience-based salary model does not constitute reasonable factor other than sex if not systematically and objectively applied). There is a circuit split as to whether a “factor other than sex” must be related to legitimate business goals. See Boaz v. Fed. Express Corp., 107 F. Supp. 3d 861, 881 n.10 (W.D. Tenn. 2015), and cases cited. (The Second, Sixth, Ninth, and Eleventh Circuits say yes; the Seventh and Eighth Circuits do not consider this requirement.) Since then, a District Court in the Fourth Circuit has sided with the majority. Compare Schleicher v. Preferred Sols., Inc., 831 F.3d 746, 754 (6th Cir. 2016) (defense not a “blanket” protection; only includes “a factor [other than sex] that, at a minimum, was adopted for a legitimate business reason”); Colley v. Dickenson Cty. Sch. Bd., No. 2:17CV00003, 2018 U.S. Dist. LEXIS 152349, at *13 (W.D. Va. Sept. 6, 2018) (same); Dreves v. Hudson Grp. Retail, LLC, No. 2:11-cv-4, 2013 U.S. Dist. LEXIS 3–20

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.6

82636, at *43–44 (D. Vt. June 12, 2013) (male employee’s demand for higher pay during negotiations not a bona fide business-related reason); Diaz v. Infotech Aerospace Servs., Inc., No. 10-1103, 2012 WL 162377, at *4 (D.P.R. Jan. 19, 2012) (male applicant’s “strong interview” not reasonable factor other than sex); with Fallon v. Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989) (“This circuit . . . does not require that the factor other than sex be related to the requirements of the particular person in question, or that it be a ‘business-related reason.’”). Whether limited in scope or not, it is nonetheless a requirement that any factor alleged must have been bona fide and applied in good faith. Fallon v. Illinois, 882 F.2d 1206 (7th Cir. 1989); Chang v. Univ. of R.I., 606 F. Supp. 1161, 1228–29 (D.R.I. 1985). Employers may not argue that a pay disparity is attributable to “market forces” that pay women less than men for the same job. Corning Glass Works v. Brennan, 417 U.S. 188, 205 (1974), overruled, in part, on other grounds, as stated in Rodriguez v. Adams Rest. Grp., 308 F. Supp. 3d 359, 364 n.1 (D.D.C. 2018); Dindinger v. Allsteel, Inc., 853 F.3d 414, 422–24 (8th Cir. 2017); Dreves v. Hudson Grp. Retail, LLC, No. 2:11-cv-4, 2013 U.S. Dist. LEXIS 82636, at *44 (D. Vt. June 12, 2013); see also Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1570 (11th Cir. 1988) (employer may not maintain practice that relies on fact that women have historically been hired at lower starting salaries); Rizo v. Yovino, No. 1:14-cv-0423-MJS, 2015 U.S. Dist. LEXIS 163849, at *26–27 (E.D. Cal. Dec. 4, 2015) (relying solely on prior wages for current salary violates FEPA and “perpetuates the market’s sex-based subjective assumptions and stereotyped misconceptions Congress passed the Equal Pay Act to eradicate”), aff’d, 887 F.3d 453, 468 (9th Cir. 2018), vacated and remanded on other grounds by Yovino v. Rizo, 139 S. Ct. 706 (2019). But cf. Akerson v. Pritzker, 980 F. Supp. 2d 18, 32 (D. Mass. 2013) (employer’s custom of paying employees based on pay grade for which they applied constituted reasonable factor other than sex). However, employers have successfully argued that market forces required a different salary for the particular position at issue. See, e.g., Rhoades v. Young Women’s Christian Ass’n, 423 Fed. Appx. at 198 (market-rate survey conducted between plaintiff’s termination and comparator’s hire constitutes reasonable factor other than sex); Winkes v. Brown Univ., 747 F.2d 792 (1st Cir. 1984) (granting pay raise to female professor did not violate FEPA inasmuch as university sought to match different institution’s offer and so retain her services); see also Price v. N. States Power Co., 664 F.3d 1186, 1193–94 (8th Cir. 2011) (no FEPA violation where wage disparity resulted from, inter alia, employer paying starting sales representatives salary received in previous position at company); Finke v. Trs. of Purdue Univ., No. 1:12-CV-124-JD, 2014 U.S. Dist. LEXIS 88527, at *61–63 (N.D. Ind. June 30, 2014) (relying on salary survey data in setting salaries is a valid factor other than sex, even where compensation does not exactly match the data). But see King v. Acosta Sales & Mktg., Inc., 678 F.3d 470, 473–74 (7th Cir. 2012) (though “compensation that workers could receive in other jobs [based on their education and experience] . . . is a ‘factor other than sex[,]’” employer must prove, not just assert, that education and experience actually account for the salary differences); Sauceda v. Univ. of Tex., 958 F. Supp. 2d 761, 775, 779–80 (S.D. Tex. 2013) (employer not entitled to presumption that market forces are free of gender-based assumptions); Diaz v. Infotech Aerospace Servs., Inc., 2012 WL 162377, at *4 (rejecting prior salary as sole justification for pay disparity). MCLE, Inc. | 2nd Edition 2020

3–21

§ 3.6

Employment Discrimination in Massachusetts

Proof that the disparity is attributable to a “factor other than sex” is akin to proof of a “legitimate nondiscriminatory reason” in the McDonnell Douglas v. Green disparate treatment method of proof. In claims brought pursuant to Title VII, G.L. c. 151B, and the EPA, if a plaintiff proves that a defendant’s proffered reasons for the pay disparity were pretextual, the plaintiff satisfies the requirements of the Federal Equal Pay Act. McMillan v. Mass. Soc’y for Prevention of Cruelty to Animals, 140 F.3d 288, 299 n.6 (1st Cir. 1998). The “factor other than sex” prong would be significantly altered by the Paycheck Fairness Act (see details in § 3.6.1(e), below).

(d)

Damages

FEPA plaintiffs are entitled to a jury trial. Successful plaintiffs under FEPA are entitled to two years back pay, or three years if the employer acted “willfully.” See definition of “willful” above. Note that back pay awarded pursuant to a disparate treatment in compensation claim brought under G.L. c. 151B is not so limited but may extend back to the time the discriminatory treatment began. McMillan v. Mass. Soc’y for Prevention of Cruelty to Animals, 140 F.3d at 306. Plaintiffs also may be awarded liquidated damages in an amount equal to the back pay award unless the employer proves that it acted in good faith and with reasonable grounds for believing that its actions did not violate FEPA. 29 U.S.C. § 260; Chang v. Univ. of R.I., 606 F. Supp. 1161, 1277 (D.R.I. 1985); Melanson v. Rantoul, 536 F. Supp. 271, 292 (D.R.I. 1982). Good faith has been defined as having an honest intention to ascertain requirements of FEPA and act in accordance with them. Melanson v. Rantoul, 536 F. Supp. at 292. An employer’s reliance on advice of counsel, advice from the EEOC, or compensating the plaintiff at the same level as an immediate predecessor have been upheld as defenses to liquidated damages. Hill v. J.C. Penney Co., Inc., 688 F.2d 370, 375 (5th Cir. 1982) (advice of counsel); Ewald v. Royal Norwegian Embassy, No. 11-CV-2116, 2014 U.S. Dist. LEXIS 179153, at *218 (D. Minn. Dec. 31, 2014) (same); EEOC v. Tree of Life Christian Sch., 751 F. Supp. 700, 707 (S.D. Ohio 1990) (EEOC advice); Clymore v. Far-Mar Co., Inc., 709 F.2d 499, 505 (8th Cir. 1983) (predecessor wage). But cf. Whelan Sec. Co. v. United States, 7 Cl. Ct. 496, 501 (1985) (advice and opinion of an attorney as to the applicability of the FLSA to the employer is not in and of itself sufficient to establish the good faith of the employer (citing Gustafson v. Fred Wolferman, Inc., 73 F. Supp. 186, 197 (W.D. Mo. 1947), vacated on other grounds, 169 F.2d 759 (8th Cir. 1948))). Consciously ignoring complaints of unequal pay is sufficient to warrant an award of liquidated damages. EEOC v. Del. Dep’t of Health & Soc. Serv., 865 F.2d 1408, 1419 (3d Cir. 1989). The standard for determining willfulness and lack of good faith are not necessarily identical. See Lindeman & Grossman, Employment Discrimination Law ch. 19, II.E.2.a., at 19–55 (West 2012), and cases collected. Successful plaintiffs are entitled to attorney fees and costs. 29 U.S.C. § 216(b).

3–22

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

(e)

§ 3.6

Paycheck Fairness Act of 2019

On March 27, 2019, the U.S. House of Representatives voted to pass the Paycheck Fairness Act, H.R. 7, 116th Cong. (1st Sess. 2019), which is intended to eliminate persistent gender-based pay disparities and discrimination. The Paycheck Fairness Act (PFA) would make several significant changes to FEPA. It would narrow the fourth employer defense (currently, “factor other than sex”) to “a bona fide factor other than sex, such as education, training or experience.” It goes further, explaining that this defense could only justify a gender-based pay disparity if the employer demonstrates “that such factor: (i) is not based upon or derived from a sex-based differential in compensation; (ii) is job-related with respect to the position in question; (iii) is consistent with business necessity; and (iv) accounts for the entire differential in compensation at issue.” H.R. 7, § 3(a). Other key changes would be to ban employers from asking candidates what they earned in previous jobs (already enshrined in the amended MEPA, described below); prohibit retaliation for discussing wages with colleagues, filing FEPA claims, or initiating pay equity investigations; require employers to share salary data with the EEOC; and require the Department of Labor to study and distribute pay equity statistics derived from that data. Finally, the PFA would provide grants to create salary negotiation training for women and girls. As of this writing, the PFA has been placed on the U.S. Senate’s calendar but has not been voted on.

§ 3.6.2 (a)

Massachusetts Equal Pay Act General

Enacted in 1945, the Massachusetts Equal Pay Act was the first state statute requiring equality in pay for equal or comparable work. The statute stated in part: “No employer shall . . . pay any person in his employ salary or wage rates less than the rates paid to employees of the opposite sex for work of like or comparable character or work on like or comparable operations.” G.L. c. 149, § 105A (as in effect prior to July 1, 2018). An Act to Establish Pay Equity, which was signed into law on August 1, 2016 and became effective July 1, 2018, both strengthened MEPA and made significant changes to hiring practices within the jurisdiction of G.L. c. 151B. See 2016 Mass. Acts c. 177. It altered the above language as follows: “No employer shall . . . pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work . . . .”G.L. c. 149, § 105A (as amended by 2016 Mass. Acts c. 177). An Act to Establish Pay Equity further altered MEPA in several notable ways. First, it revised the statute to clarify the meaning of “comparable work,” discussed in depth below. Second, it prohibited employers from requiring job applicants to provide their salary history before a formal job offer and prohibits employers from restricting discussion of wages among employees. Third, it increased the statute of limitations MCLE, Inc. | 2nd Edition 2020

3–23

§ 3.6

Employment Discrimination in Massachusetts

from one year to three years. Fourth, it added an antiretaliation provision for employees who assert rights under MEPA. Fifth, it permits awards of attorney fees under G.L. c. 151B, even in the absence of compensatory damages. Finally, it eliminated the requirement that MEPA claims be first filed at the MCAD. Prior to July 1, 2018, MEPA afforded the employer one affirmative defense: “variations in rates” are not prohibited where they are based on “a difference in seniority.” G.L. c. 149, § 105A. However, as of July 1, 2018, employers have the following affirmative defenses available to them. [V]ariations in wages shall not be prohibited if based upon: (i) a system that rewards seniority with the employer; provided, however, that time spent on leave due to a pregnancy-related condition and protected parental, family and medical leave, shall not reduce seniority; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production, sales, or revenue; (iv) the geographic location in which a job is performed; (v) education, training or experience to the extent such factors are reasonably related to the particular job in question; or (vi) travel, if the travel is a regular and necessary condition of the particular job. G.L. c. 149, § 105A(b). Under the amended law, there is no exhaustion requirement for MEPA claims concerning actions that were also “unlawful” under G.L. c. 151B. Instead, there is a three-year statute of limitations, which begins running from the date of the alleged violation, for bringing the claim in court. See G.L. c. 149, § 105A. The Supreme Judicial Court previously held that the continuing violation doctrine does not extend to unequal wage claims under the statute. Silvestris v. Tantasqua Reg’l Sch. Dist., 446 Mass. 756, 768–70 (2006). However, this holding was overruled by the amended law, which states that “a violation occurs when . . . an employee is affected by application of a discriminatory compensation decision or practice, including each time wages are paid . . . .” G.L. c. 149, § 105A(b) (emphasis added). Furthermore, under the amended law, there appears to be no cap on back pay liability. Cf. McMillan v. Mass. Soc’y for Prevention of Cruelty to Animals, 140 F.3d 288, 306 (1st Cir. 1998) (rejecting defendants’ argument to import FEPA’s three-year back pay liability cap to awards made under G.L. c. 151B because such a cap not imposed under Massachusetts law). The language of the statute would seem to permit claims against individual supervisors as well as corporate employers, see G.L. c. 149, § 1 (employer defined as “any person acting in the interest of an employer directly or indirectly”), but no state court has so ruled as yet. One U.S. District Court has ruled that the similarity between the definition of employer found in MEPA and FEPA, and the fact that FEPA allows for suits against individual supervisors, permitted a finding that supervisors could be liable under MEPA. Danio v. Emerson Coll., 963 F. Supp. 61, 63 (D. Mass. 1997). If successful, a plaintiff is entitled to back pay and an equal amount in liquidated damages, reasonable attorney fees, and costs. G.L. c. 149, § 105A. Plaintiffs are entitled to jury trials under MEPA. Dalis v. Buyer Adver., Inc., 418 Mass. 220, 226 (1994). 3–24

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.6

See also Stonehill Coll. v. MCAD, 441 Mass. 549, 559–62 (2004) (affirming that Dalis was correctly decided).

(b)

Comparable Work

Before July 1, 2018, in order to succeed under a MEPA claim, the plaintiff had to prove that they were being paid less for “work of like or comparable character.” This meant that the plaintiff had to establish that the compared positions were comparable in “substantive content.” Jancey v. Sch. Comm. of Everett, 421 Mass. 482, 489–90 (1995). The 2016 amendments to MEPA abrogated the test for comparability set forth in Jancey by defining comparable work as “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.” Massachusetts Office of the Attorney General, An Act to Establish Pay Equity: Overview and Frequently Asked Questions, at 5 n.3 (Mar. 1, 2018) (the Guidance), available at https://www.mass.gov/files/documents/ 2018/05/02/AGO%20Equal%20Pay%20Act%20Guidance%20%285-2-18%29.pdf; G.L. c. 159, § 105A(a) (definition). The Guidance clarifies that “substantially similar” means that “skill, effort, and responsibility . . . must be alike to a great or significant extent, but are not necessarily identical or alike in all respects,” and small differences in those factors “will not prevent two jobs from being considered comparable.” Guidance at 5. The Guidance suggests that “skill” should include factors such as “experience, training, education, and ability required to perform the jobs” and should be measured by looking at the job’s performance requirements, not each employee’s skills. Guidance at 6. “Effort” encompasses job requirements that relate to the amount of “physical or mental exertion needed to perform a job.” Guidance at 6. Finally, “responsibility” refers to the degree of discretion or accountability involved in performing the essential functions of a job, as well as the duties regularly required to be performed for the job. It includes such factors as the amount of supervision the employee receives or whether the employee supervises others, and the degree to which the employee is involved in decision-making such as determining policy or procedures, purchases, investments or other such activities. Minor or occasional differences in responsibilities will not prevent jobs from being comparable. Guidance at 6. The Guidance makes clear that job titles and job descriptions are not necessarily determinative of whether two jobs are comparable. Guidance at 7–8.

(c)

Other Key Changes to MEPA in 2016 Amendment

The amended MEPA contains several provisions that are significant gains for employees in Massachusetts. Massachusetts was the first state in the country to prohibit employers from requiring job applicants to provide their salary history before a formal job offer (with compensation) is made. WBUR, What the New Mass. Equal Pay Law Means for Employees and MCLE, Inc. | 2nd Edition 2020

3–25

§ 3.6

Employment Discrimination in Massachusetts

Employers (Aug. 4, 2016), http://www.wbur.org/all-things-considered/2016/08/04/ equal-pay-explainer. This provision seeks to break the cycle of unequal pay for women by preventing their prior, likely depressed, salaries from influencing (and keeping down) their pay level in each subsequent job. Since the amended MEPA was passed, sixteen other states, Puerto Rico, and fourteen localities have followed suit (but some of their laws only apply to public employers). See HR Dive, “Salary history bans” (May 28, 2019), https://www.hrdive.com/news/salary-history-ban-states-list/516662. On the other hand, the statute empowers employees to make more informed decisions: under the amended statute, employers may not prevent employees from “inquiring about, discussing or disclosing information about either the employee’s own wages, or about any other employee’s wages.” G.L. c. 149, § 105A(c)(1). This is a significant change from the previous status quo. Employers are now prevented from retaliating against an employee because the employee: (i) opposed any act or practice made unlawful by this section; (ii) made or indicated an intent to make a complaint or has otherwise caused to be instituted any proceeding under this section; (iii) testified or is about to testify, assist or participate in any manner in an investigation or proceeding under this section; or (iv) disclosed the employee’s wages or has inquired about or discussed the wages of any other employee. G.L. c. 149, § 105A(c)(3). The amended MEPA provides an affirmative defense to an employer against whom a MEPA action is brought who, within the previous three years, “has both completed a self-evaluation of its pay practices in good faith and can demonstrate that reasonable progress has been made towards eliminating wage differentials based on gender for comparable work, if any, in accordance with that evaluation.” G.L. c. 149, § 105A(d). If the employer cannot demonstrate that the selfevaluation was reasonable in detail and scope, but can nevertheless show reasonable progress towards eliminating wage differentials, liquidated damages are not available. In order to encourage employers to undertake such audits, the statute provides that evidence regarding an audit or remedial steps taken will not be admissible in any proceeding as evidence of a MEPA or Chapter 151B violation that occurred prior to the date the self-evaluation was completed or that occurred either (i) within 6 months thereafter or (ii) within 2 years thereafter if the employer can demonstrate that it has developed and begun implementing in good faith a plan to address any wage differentials based on gender for comparable work. G.L. c. 149, § 105A(d).

3–26

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.6.3

§ 3.6

Relationship of FEPA and MEPA to Title VII and G.L. c. 151B

Employees can also bring claims for pay disparity under the general antidiscrimination provisions of Title VII and G.L. c. 151B. Under both statutes, the plaintiff bears the same burden as any plaintiff bringing a disparate treatment or disparate impact claim. As noted, in FEPA cases the burden of proof rests on the plaintiff to show that the jobs at issue are “substantially equal,” but the burden shifts to the employer to establish one of the four defenses identified. See Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974). In disparate treatment cases brought under Title VII and G.L. c. 151B, unlike under FEPA, the plaintiff must show that the defendant was motivated by discriminatory intent. Cf. McMillan v. Mass. Soc’y for Prevention of Cruelty to Animals, 140 F.3d 288, 298 (1st Cir. 1998). In cases brought under Title VII, a plaintiff need not establish that they performed substantially equal work under the standards established by the Equal Pay Act. Cty. of Wash. v. Gunther, 452 U.S. 161, 168, 181 (1981). Complainants before the MCAD have often used a “substantially equal” paradigm where comparators are readily identifiable. See MCAD v. Ne. Univ., No. 05-BEM-03009, 2012 WL 1132412, at *22–23 (MCAD Mar. 25, 2012) (to make out prima facie claim of pay discrimination based on race, plaintiff must “show that his work entailed the same primary functions and substantially equal skills, effort and responsibility to others in his position”) (internal quotation marks omitted)); Aponte v. Worcester Hous. Auth., 10 M.D.L.R. 1271, 1320– 24 (1988) (work of Hispanic groundskeepers substantially equivalent to higher paid, non-Hispanic custodians and maintenance aides); Donovan v. Chelsea Sch. Comm., 7 M.D.L.R. 1575, 1591–93 (1985). However, given the directive in G.L. c. 151B, § 9 that the statute “shall be construed liberally for the accomplishment of its purposes,” complainants can argue that the Gunther paradigm should be available. Although the U.S. Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), severely cut back remedies for unequal pay under Title VII when it rejected decades of precedent in the federal courts that had utilized a continuing violation theory to allow recovery for ongoing discrimination in pay, Congress quickly remedied that action by passing the Lily Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, amending 42 U.S.C. § 2000e-5(e) (Jan. 29, 2009). Because of that act, the “each paycheck” rule (see § 3.6.1, above) which federal courts had generally applied in Title VII and FEPA cases alike, is firmly established under Title VII. The authors of this chapter representing plaintiffs expect that, if the issue arises in a case brought under G.L. c. 151B, the Supreme Judicial Court will reject the Ledbetter decision and hold that the “each paycheck” rule applies in such cases, especially because the Massachusetts legislature enshrined this rule in the amended MEPA (see § 3.6.2(a), above), and in light of Congress’s swift action to overturn Ledbetter. Under G.L. c. 151B, the traditional burden-shifting paradigm applies, permitting the employer to articulate a legitimate nondiscriminatory reason for the disparity and the plaintiff to show pretext, with the burden of persuasion remaining with the plaintiff. MCLE, Inc. | 2nd Edition 2020

3–27

§ 3.6

Employment Discrimination in Massachusetts

See, e.g., Donovan v. Chelsea Sch. Comm., 7 M.D.L.R. at 1591–93; Aponte v. Worcester Hous. Auth., 10 M.D.L.R. at 1320–24. However, the scheme is somewhat different under Title VII. It is not a violation of Title VII if a pay disparity is “authorized” by FEPA. 42 U.S.C. § 2000e-2(h). In other words, if an employer can demonstrate that the disparity is attributable to one of the four affirmative defenses articulated in FEPA, the employer is relieved of liability under Title VII. Cty. of Wash. v. Gunther, 452 U.S. at 171. It has not yet been definitively established in the First Circuit what burden of proof is borne by an employer that relies on one of the four FEPA defenses in defending a Title VII claim. Some District Courts considering the issue have determined that the burden of proof shifts to the employer that relies on a FEPA affirmative defense in a Title VII action. See Denny v. Westfield State Coll., 669 F. Supp. 1146, 1155–56 (D. Mass. 1987), aff’d, 880 F.2d 1465 (1st Cir. 1989); Chang v. Univ. of R.I., 606 F. Supp. 1161, 1187 (D.R.I. 1985); Melanson v. Rantoul, 536 F. Supp. 271, 286 (D.R.I. 1982); see also Diaz v. Infotech Aerospace Servs., Inc., No. 10-1103 (JAF), 2012 WL 162377, at *5 (D.P.R. Jan. 19, 2012) (applying FEPA framework to Title VII discriminatory-pay claim). Another court’s discussion is somewhat ambiguous but seems to assert that, only after a plaintiff has made out a McDonnell Douglas prima facie case of gender discrimination and offered evidence that the defendant’s proffer of a FEPA affirmative defense is a pretext, will the burden of proof shift to the defendant to prove one of the affirmative defenses. McMillan v. Mass. Soc’y for Prevention of Cruelty to Animals, 880 F. Supp. 900, 907 n.4 (D. Mass. 1995). Others have held that the burden of proof remains at all times with the plaintiff. Mullenix v. Forsyth Dental Infirmary for Children, 965 F. Supp. 120, 144–45 (D. Mass. 1996); Seligson v. Mass. Inst. of Tech., 677 F. Supp. 648, 654 n.2 (D. Mass. 1987). The Ninth Circuit has held that FEPA’s burden of proof on the defendant to establish one of FEPA’s four affirmative defenses applies in a Title VII pay discrimination case in which the employer uses one of the FEPA affirmative defenses as its legitimate nondiscriminatory reason for the challenged pay differential. Kouba v. Allstate Ins. Co., 691 F.2d 873, 875 (9th Cir. 1982), overruled, on other grounds, by Rizo v. Yovino, 887 F.3d 453, 468 (9th Cir. 2018). The First Circuit has noted in dictum that Kouba has been “severely criticized.” Marcoux v. State of Me., 797 F.2d 1100, 1105–06 (1st Cir. 1986). See also McMillan v. Mass. Soc’y for Prevention of Cruelty to Animals, 140 F.3d 288, 298 n.6 (1st Cir. 1998), where the court, after comparing the burdens of proof under FEPA and G.L. c. 151B, states, as to the issue of a reason other than sex proffered by the defense, “We concentrate on Massachusetts law because, if plaintiff meets the burden it establishes—that is, if she is able to show that defendants’ proffered reasons for the pay disparity were pretextual—then she necessarily has satisfied the requirements of the federal Equal Pay Act, which places the ultimate burden on defendants” (emphasis added). But see Lipchitz v. Raytheon Co., 434 Mass. 493 (2001), where the Supreme Judicial Court subsequently clarified that a finding of pretext permits, but does not require, a finding of the requisite discriminatory intent under G.L. c. 151B. Accord Bulwer v. Mt. Auburn Hosp., 473 Mass. 672, 682 n.9 (2016).

3–28

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.6

Note also that Title VII and G.L. c. 151B plaintiffs, unlike FEPA plaintiffs, are entitled to punitive damages, although FEPA plaintiffs may be awarded compensatory and liquidated damages.

§ 3.7

MASSACHUSETTS EQUAL RIGHTS ACT

§ 3.7.1

General

According to commentators who observed its passage, the Massachusetts Equal Rights Act (MERA), G.L. c. 93, §§ 102, 103, was enacted as a response to the Supreme Court’s announcement that it intended to hear reargument in the case of Patterson v. McLean Credit Union, 491 U.S. 164 (1989), on the issue of whether the prohibitions on race discrimination in the making and enforcement of contracts contained in 42 U.S.C. § 1981 applied to private employers. (The Massachusetts legislature does not maintain a written history of legislation it considers.) Anticipating that the Supreme Court would rule that such prohibitions did not apply, the legislature enacted MERA to ensure that similar prohibitions would continue to apply to private employers in Massachusetts. See Stephen P. Johnson, “The 1989 Massachusetts ‘Equal Rights Law’: A Short History,” Boston B.J. (Mar.–Apr. 1990). As initially enacted in 1989, the law states that “all persons . . ., regardless of sex, race, color, creed or national origin, shall have . . . the same rights enjoyed by white male citizens, to make and enforce contracts. . . .” G.L. c. 93, § 102(a). A second statute was added the following year to encompass handicap and age. G.L. c. 93, § 103(a). Plaintiffs are entitled to bring a MERA action in Superior Court and, if successful, may be entitled to injunctive and other equitable relief, compensatory and “exemplary” damages, attorney fees, and costs. G.L. c. 93, §§ 102(b), 102(d), 103(b), 103(d). Plaintiffs have a right to a jury trial. Dalis v. Buyer Adver., Inc., 418 Mass. 220, 226 (1994); see also Stonehill Coll. v. MCAD, 441 Mass. 549, 559–62 (2004) (affirming that Dalis was correctly decided). While no administrative prerequisites are stated in the text of the statute, the Supreme Judicial Court has held that, in order to preserve MERA claims predicated on constitutional violations that are also cognizable under G.L. c. 151B, plaintiffs must timely file first at the MCAD. Charland v. Muzi Motors, Inc., 417 Mass. 580, 581 (1994). The Supreme Judicial Court has since interpreted Charland and Agin v. Federal White Cement, Inc., 417 Mass. 669, 672 (1994), to hold that MERA claims are preempted by G.L. c. 151B. Lopez v. Commonwealth, 463 Mass. 696, 715 (2012); Carleton v. Commonwealth, 447 Mass. 791 (2006). Where G.L. c. 151B does not apply, e.g., where the plaintiff is an independent contractor or where the employer has fewer than six employees, MERA is neither preempted by G.L. c. 151B nor is there an administrative exhaustion requirement. Thurdin v. SEI Bos. LLC, 452 Mass. 436 (2008); Valladares v. Mass. Trial Ct., 2016 Mass. App. Unpub. LEXIS 88, at *2–3 (Mass. App. Ct. Jan. 29, 2016) (unpublished Rule 1:28 decision); Cody v. Sutar, 5 Mass. L. Rptr. 191 (Super. Ct. 1996) (Lauriat, J.). MERA may finally be most useful in serving as a means of redress for such individuals who would otherwise be barred by jurisdictional restrictions from using G.L. c. 151B or Title VII. MCLE, Inc. | 2nd Edition 2020

3–29

§ 3.7

§ 3.7.2 (a)

Employment Discrimination in Massachusetts

Scope and Burden Scope

As noted, commentators have observed that MERA was adopted in anticipation of a U.S. Supreme Court ruling that 42 U.S.C. § 1981 did not apply to private employers. However, contrary to expectations, the U.S. Supreme Court in Patterson v. McLean Credit Union did not so rule but instead ruled that 42 U.S.C. § 1981 applied only to the initial formation of contracts. This ruling was reversed by the Civil Rights Act of 1991, restoring 42 U.S.C. § 1981 coverage to all aspects of the employment relationship. MERA likewise applies to all aspects of the employment relationship. Thurdin v. SEI Bos. LLC, 452 Mass. 436 (2008).

(b)

Burden

MERA states explicitly that “[a] violation of [the act] is established if, based on the totality of the circumstances, it is shown that any individual is denied any of the rights protected.” G.L. c. 93, § 102(c); see also G.L. c. 93, § 103(c) (“shall be established”). Commentators have argued that this language is modeled on identical language in the Voting Rights Act at the time. 42 U.S.C. § 1973(b) (1989) (“[A] violation of . . . this section is established if, based on the totality of the circumstances, it is shown that the political processes . . . are not equally open to participation . . . in that [members of the protected category] . . . have less opportunity than other members of the electorate to participate.”): see Stephen P. Johnson, “The 1989 Massachusetts ‘Equal Rights Law’: A Short History,” Boston B.J. (Mar.–Apr. 1990); Marjorie Heins, “Massachusetts Civil Rights Law,” 76 Mass. Rev. 77, 86–87 (1991). That language, the U.S. Supreme Court held, “make[s] clear that a violation could be proven by showing discriminatory effect alone,” and that proving discriminatory intent was not a requirement. Thornburgh v. Gingles, 478 U.S. 30, 35 (1986). The same commentators argue that the “effects” test should apply to MERA claims. See Stephen P. Johnson, “The 1989 Massachusetts ‘Equal Rights Law’: A Short History,” Boston B.J. (Mar.–Apr. 1990) (drafters of MERA modeled standard of proof under MERA on Section 2 of the Voting Rights Act, adopting a “‘totality of the circumstances’ or ‘effects’ standard, a more inclusive and realistic test of discrimination”); Marjorie Heins, “Massachusetts Civil Rights Law,” 76 Mass. Rev. 77, 86–87 (1991) (standard of proof under MERA is derived “from the 1982 amendments to the Voting Rights Act of 1965, and . . . explicitly embodies a ‘discriminatory effects’ or ‘totality of the circumstances’ test”). The Massachusetts Appeals Court has stated that a MERA plaintiff must prove intentional discrimination. LaCava v. Lucander, 58 Mass. App. Ct. 527, 535–36 (2003) (citing Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 17 (1st Cir. 1989)); see also Cloutier v. City of Lowell, No. 15-12780-FDS, 2015 U.S. Dist. LEXIS 166889, at *35 (D. Mass. Dec. 14, 2015). But see McDonnell v. Certified Eng’g & Testing Co., Inc., 899 F. Supp. 739, 751–52 (D. Mass. 1995) (discussing applicability of “discriminatory effects” test).

3–30

2nd Edition 2020 | MCLE, Inc.

Gender Discrimination

§ 3.8

§ 3.8

EQUAL PROTECTION

State and municipal employees alleging disparate treatment gender discrimination, including hostile environment harassment, may have claims under the Equal Protection Clause of the Fourteenth Amendment. Pontarelli v. Stone, 930 F.2d 104, 113–14 (1st Cir. 1991) (42 U.S.C. § 1983 claim for hostile environment discrimination in violation of Fourteenth Amendment equal protection clause); accord Lipsett v. Univ. of P.R., 864 F.2d 881, 896 (1st Cir. 1988); Keskinidis v. Univ. of Mass. Bos., 76 F. Supp. 3d 254, 257 (D. Mass. 2015). Note that Davis v. Passman, 442 U.S. 228 (1979) (discriminatory termination in violation of Fifth Amendment due process clause), held that federal employees might have similar claims under the Fifth Amendment to the Constitution (federal employees are not covered by the Fourteenth Amendment since that amendment specifically deals with rights of citizens vis-à-vis the various states). However, Davis concerned a Congressional employee who at the time was not covered by the provisions of Title VII. Hence, the plaintiff there brought a Bivens-type action, pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) (plaintiffs have direct cause of action for damages arising under Constitution in absence of alternative remedial scheme). Given that Congress in 1995 amended the law to make its employees subject to the antidiscrimination statutes (the Congressional Accountability Act), such a claim would not lie today. See, e.g., Packer v. U.S. Comm’n on Sec. & Cooperation in Europe, 843 F. Supp. 2d 44, 48–49 (D.D.C. 2012). In order for a state or municipal employee to make out a claim for violation of the Equal Protection Clause, the employee must bring an action pursuant to 42 U.S.C. § 1983. There is no minimum number of employees required for a Section 1983 action and no administrative prerequisite to suit. Section 1983 has a three-year statute of limitations in Massachusetts. Plaintiffs challenging a policy or practice that discriminates on the basis of sex must show that the policy does not “serve important governmental objectives” and is not “substantially related to achievement of those objectives” (so-called “intermediate,” as opposed to either “strict” or “rational basis” scrutiny). Lipsett v. Univ. of P.R., 864 F.2d 881, 896 (1st Cir. 1988) (citing Davis v. Passman, 442 U.S. 228, 234–35 (1979)). A plaintiff bringing a disparate treatment claim pursuant to the Equal Protection Clause must prove discriminatory intent, and the same three-step analytical framework as applied in Title VII applies. Compensatory damages, including back pay, front pay, and emotional distress damages, are available under 42 U.S.C. § 1983, Carey v. Piphus, 435 U.S. 247, 257–58 (1978), as are punitive damages (against individual defendants). Smith v. Wade, 461 U.S. 30, 56 (1983). Attorney fees and expert fees are also available to successful plaintiffs. 42 U.S.C. §§ 1988(b), 1988(c). Use of 42 U.S.C. § 1983 can be a valuable alternative cause of action for government employees given the long statute of limitations and the lack of administrative prerequisites, especially for those plaintiffs who have missed filing deadlines under the other discrimination statutes. Note, however, that, unlike under some discrimination statutes, individual defendants in Section 1983 actions may be entitled to qualified immunity, see Mitchell v. Forsyth, 472 U.S. 511 (1985); Harlow v. Fitzgerald, 457 U.S. 800 (1982), and Section 1983 plaintiffs bear a MCLE, Inc. | 2nd Edition 2020

3–31

§ 3.8

Employment Discrimination in Massachusetts

heightened burden for establishing municipal liability for the actions of those individual defendants, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) (municipal liability only if plaintiff can show that challenged actions were undertaken pursuant to well-established policy or practice); Pembauer v. City of Cincinnati, 475 U.S. 469 (1986) (municipal liability for single acts of municipal officials only if official is invested with final policymaking authority with respect to the decision at issue).

3–32

2nd Edition 2020 | MCLE, Inc.

CHAPTER 4

Disability Discrimination* Richard L. Alfred, Esq. Seyfarth Shaw LLP, Boston

Anthony S. Califano, Esq. Seyfarth Shaw LLP, Boston

Patrick J. Hannon, Esq. Hartley Michon Robb LLP, Boston

Daniel B. Klein, Esq. Seyfarth Shaw LLP, Boston

Michael E. Steinberg, Esq. Seyfarth Shaw LLP, Boston § 4.1

Overview of the Controlling Law .......................................................... 4–3 § 4.1.1 State Law................................................................................ 4–3 § 4.1.2 Federal Law............................................................................ 4–3

§ 4.2

Disability Discrimination: A Plaintiff’s Perspective ............................ 4–4 § 4.2.1 The Statute—General Laws Chapter 151B ............................ 4–4 § 4.2.2 Common Issues ...................................................................... 4–6 § 4.2.3 Does the Plaintiff Have a Handicap? ...................................... 4–6 (a) Substantial Limitation ..................................................... 4–7 (b) Temporary Impairments ................................................ 4–11 (c) Employee Perceived as Being Disabled ........................ 4–12 (d) Record of Impairment or Disability .............................. 4–14 (e) Asymptomatic Ailments ................................................ 4–14 (f) Major Life Activities ..................................................... 4–15 (g) Misconduct by Persons with Handicaps........................ 4–16 (h) Mitigating Measures ..................................................... 4–17 § 4.2.4 Is the Plaintiff Capable of Performing the Essential Functions of the Position with Reasonable Accommodation? ................................................................. 4–19 (a) Essential Functions ....................................................... 4–19 (b) Reasonable Accommodation ......................................... 4–24 (c) Interaction Between Employer and Employee .............. 4–27 (d) Judicial Estoppel ........................................................... 4–30

*

Section 4.2 was written by Patrick J. Hannon, Esq. Section 4.3 was written by Richard L. Alfred, Esq., and Daniel B. Klein, Esq., with updates for the 2020 Edition by Anthony S. Califano, Esq., and Michael E. Steinberg, Esq.

MCLE, Inc. | 2nd Edition 2020

4–1

Employment Discrimination in Massachusetts

§ 4.2.5 § 4.2.6

§ 4.2.7

§ 4.2.8 § 4.2.9

§ 4.2.10 § 4.3

Can the Employer Demonstrate an Undue Hardship? .......... 4–31 (a) Other Defenses .............................................................. 4–32 What Is the Burden of Proof in a Handicap Discrimination Case? ........................................................... 4–33 (a) Introduction ................................................................... 4–33 (b) When the Employer’s Motive Is Not an Issue ............... 4–33 (c) When the Employer’s Motive Is an Issue ...................... 4–33 (d) Clarification of the Plaintiff’s Burden ........................... 4–34 (e) Failure to Provide Reasonable Accommodation ........... 4–36 Types of Defendants ............................................................. 4–37 (a) Individual Liability ........................................................ 4–37 (b) Public Entities ............................................................... 4–37 (c) Miscellaneous................................................................ 4–38 Damages ............................................................................... 4–39 Strategy ................................................................................ 4–43 (a) Case Selection ............................................................... 4–43 (b) Time Limitations ........................................................... 4–44 (c) Forum Selection ............................................................ 4–44 (d) Expert Testimony .......................................................... 4–46 (e) Summary Judgment....................................................... 4–46 (f) Trial ............................................................................... 4–46 Source Material .................................................................... 4–48

Disability Discrimination: A Defense Perspective .............................. 4–48 § 4.3.1 Interpretations of the Law and the ADA Amendments Act of 2008 ................................................................................. 4–48 § 4.3.2 Types of Claims .................................................................... 4–51 (a) Proof of Discrimination Claim ...................................... 4–53 (b) Proof of Failure to Provide Reasonable Accommodation Claim .................................................. 4–55 (c) Elements of Prima Facie Case ....................................... 4–57 (d) Duty of Reasonable Accommodation ............................ 4–76 (e) Interactive Process......................................................... 4–87 (f) Preemployment Inquiries and Examinations ................. 4–91 § 4.3.3 Defenses ............................................................................... 4–95 (a) Legitimate, Nondiscriminatory Reason ......................... 4–95 (b) Undue Hardship ............................................................ 4–97 (c) Direct Threat ................................................................. 4–99 (d) Job-Relatedness and Business Necessity .................... 4–101 (e) Judicial Estoppel ......................................................... 4–102

CHECKLIST 4.1—Plaintiff’s Burden of Proof When Alleging Employer’s Failure to Provide Reasonable Accommodation......................... 4–105 CHECKLIST 4.2—Disability Discrimination: Strategy Options for Employers .................................................................................................... 4–106

4–2

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.1

Scope Note This chapter provides a thorough plaintiff’s-perspective overview of statutes (the Americans with Disabilities Act, the Americans with Disabilities Act Amendments Act of 2008, and G.L. c. 151B) and case law in the area of disability discrimination.

§ 4.1

OVERVIEW OF THE CONTROLLING LAW

§ 4.1.1

State Law

Section 4(16), added to G.L. c. 151B in 1983, states that an employer or its agent may not “dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person.” G.L. c. 151B, § 4(16). Chapter 151B applies to employers with six or more employees and excludes only fraternal organizations, exclusively social clubs, and corporations not organized for private profit. G.L. c. 151B, § 1(5). Damages available in a civil action for violation of Chapter 151B’s provisions are set forth in Section 9 and include both actual and punitive damages. Attorney fees may also be awarded. Note that the Massachusetts Commission against Discrimination (MCAD) can award monetary damages, which have been interpreted to include damages for emotional distress, see Bournewood Hosp. v. MCAD, 371 Mass. 303, 315–17 (1976), but it cannot award punitive damages. On March 31, 1998, the MCAD issued “Guidelines: Employment Discrimination on the Basis of Handicap—Chapter 151B” (now titled “Persons with Disabilities in the Workplace Guidelines” and hereinafter “MCAD Guidelines”). The MCAD Guidelines “are intended to assist employers, labor organizations, employment agencies and persons with handicaps, and their lawyers, in understanding what employment practices are lawful or unlawful and what steps must be taken to accommodate handicapped persons.” MCAD Guidelines § I, available at http://www.mass.gov/mcad/ resources/employers-businesses/emp-guidelines-handicap-gen.html. The MCAD Guidelines are entitled to substantial deference. City of New Bedford v. MCAD, 440 Mass. 450, 465 (2003).

§ 4.1.2

Federal Law

Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101–12117, was enacted into law in 1990 and was amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The ADA prohibits “covered entities” from discriminating against individuals with disabilities “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Covered entities include employers, employment agencies, labor organizations, and joint labor-management committees. 42 U.S.C. § 12111(2). Title I defines an employer as a person who is engaged in an industry that affects commerce and has fifteen or MCLE, Inc. | 2nd Edition 2020

4–3

§ 4.1

Employment Discrimination in Massachusetts

more employees, expressly excluding the United States, corporations wholly owned by the United States, Indian tribes, and bona fide private membership clubs (other than labor organizations). 42 U.S.C. § 12111(5). The ADA adopts “the powers, remedies, and procedures” of Title VII, including its damages provisions, which are outlined in 42 U.S.C. § 2000e-5(g). See 42 U.S.C. § 12117. Pursuant to Section 2000e5(k), attorney fees may also be awarded. The 1991 Civil Rights Act added the right to recover compensatory and punitive damages. See 42 U.S.C. § 1981a(a)(2). Punitive damages will not be awarded, however, in a claim of failure to provide reasonable accommodation, if the employer can show that it has engaged in good faith efforts, in consultation with the person with a disability, to identify and make reasonable accommodation. 42 U.S.C. § 1981a(a)(3). The ADAAA made important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of the Equal Employment Opportunity Commission’s (EEOC) ADA regulations. The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way these statutory terms should be interpreted, in several ways; these changes are summarized below. In addition, revised federal regulations, which further articulate the rights and responsibilities created by the ADA and the ADAAA, went into effect on March 25, 2011. 29 C.F.R. § 1630. Further guidance on the regulations and the effect of the ADAAA can be found on the EEOC website at http://www.eeoc.gov.

§ 4.2

DISABILITY DISCRIMINATION: A PLAINTIFF’S PERSPECTIVE

§ 4.2.1

The Statute—General Laws Chapter 151B

General Laws Chapter 151B, § 4(16) makes it unlawful for an employer to dismiss from employment or otherwise discriminate against any person alleging to be a qualified handicapped person because of that handicap, as long as that person is capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business. The term “handicap” means • a physical or mental impairment that substantially limits one or more major life activities of a person; • a record of having such impairment; or • being regarded as having such impairment. G.L. c. 151B, § 1(17).

4–4

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

The term “major life activities” includes, but is not limited to, • caring for oneself, • performing manual tasks, • walking, • seeing, • hearing, • speaking, • breathing, • learning, • standing, • sitting, • lifting, • thinking, • concentrating, • interacting with others, and • working. G.L. c. 151B, § 1(20). Under the ADAAA, the list also includes • eating, • sleeping, • reaching, • bending, • reading, • communicating, and • the operation of a major bodily function (including function of the immune system, special sense organs, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions). See 29 C.F.R. § 1630.2(i). A “qualified handicapped person” is a person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation for their handicap. G.L. c. 151B, § 1(16). MCLE, Inc. | 2nd Edition 2020

4–5

§ 4.2

Employment Discrimination in Massachusetts

In City of New Bedford v. MCAD, 440 Mass. 450, 463 (2004), the court announced that it was adopting a three-step analysis for determining whether a plaintiff had demonstrated that they have a handicap: 1.

whether the plaintiff’s condition, actual or perceived, constitutes a mental or physical impairment;

2.

whether the life activity curtailed constitutes a “major life activity”; and

3.

whether the impairment substantially limits the major life activity.

It should be noted that the ADAAA conveys Congress’s intent that the focus in ADA cases should be on whether discrimination occurred, not on whether someone meets the definition of “disability”; that the definition of “substantially limited” should be construed broadly to the maximum extent allowable under the ADA; and that the determination of whether someone has a disability should generally not demand extensive analysis.

§ 4.2.2

Common Issues

The issues that tend to arise under the statute, discussed in § 4.2.3–§ 4.2.6, below, are the following: • Does the plaintiff have a handicap—i.e., a physical or mental impairment that substantially limits one or more major life activities? • Is the plaintiff capable of performing the essential functions of the position with reasonable accommodation? • Must the plaintiff request a reasonable accommodation, or is the employer under an obligation to offer one? • What will constitute an undue hardship for the employer? • What is the burden of proof?

§ 4.2.3

Does the Plaintiff Have a Handicap?

The MCAD Guidelines define an “impairment” as a physiological disorder affecting one or more of a number of body systems, or a mental or psychological disorder. According to the Guidelines, the following conditions are not impairments: • environmental, cultural, and economic disadvantages; • homosexuality, bisexuality, and other sexual orientations; • normal pregnancy; • personality traits that are not caused by mental or psychological disorders; • normal deviations in height, weight, or strength (cited in Lavalley v. Quebecor World Book Servs. LLC, 315 F. Supp. 2d 136, 145 (D. Mass. 2004); and

4–6

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

• the current, illegal use of a controlled substance, or the nondependent use of alcohol. MCAD Guidelines § II.A.2. “It is insufficient for individuals attempting to prove disability status . . . to merely submit evidence of a medical diagnosis of an impairment.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002) (superseded on other grounds by the ADAAA); Williams v. Kennedy, 38 F. Supp. 3d 186, 194 (D. Mass. 2014) (“Although the ADAAA counsels a court to broaden its view of what constitutes a disability, no authority suggests that the ADAAA was intended to . . . allow a party to move forward without actual evidence of an impairment.”); Ventura v. Hanitchak, 719 F. Supp. 2d 132, 139 (D. Mass. 2010) (court could not find that plaintiff was disabled where, other than a series of faxed doctor’s notes referring to a vague “medical condition,” plaintiff produced no other medical records describing nature of her diagnosis or its effects on her daily functioning); City of New Bedford v. MCAD, 440 Mass. 450, 463 (2003). Only those persons whose impairment substantially limits a major life activity are protected by the statute. Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632, 637 (2004). This determination must be made through an individualized inquiry. Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. at 637 (determining whether a person is a handicapped person “will be an individualized inquiry”). The ADAAA provides that “the definition of disability shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” ADAA § 2(b)(5).

(a)

Substantial Limitation

The term “substantially limits” is defined by the MCAD Guidelines to mean an impairment that prohibits or significantly restricts an individual’s ability to perform a major life activity, as compared to the ability of the average person in the general population to perform the same activity. The determination of whether an impairment substantially limits a major life activity depends on the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long-term impact of the impairment. Chronic or episodic disorders that are substantially limiting may be handicaps; isolated medical problems, such as a broken arm that heals normally; and illnesses of short duration usually are not handicaps. MCAD Guidelines § II.A.6. For example, in O’Brien v. Massachusetts Institute of Technology, 82 Mass. App. Ct. 905, 907–08 (2012), the court found that chronic leg pain, which the plaintiff testified substantially limited his ability to sleep and work, could be a disability under Chapter 151B despite variations in the degree of interference with his daily activities the plaintiff experienced. Similarly, in Cyr v. United Parcel Service, Inc., 792 F. Supp. 2d 108, 113–15 (D. Mass. 2011), the plaintiff’s own testimony that intermittent multiple sclerosis flare-ups caused frequent urination and difficulty walking, climbing stairs, and lifting was sufficient to establish that she was disabled under both Chapter 151B and the ADA. Note that G.L. c. 152, § 75B, part of the Massachusetts workers’ compensation statute, provides that persons who sustain certain job-related injuries are handicapped MCLE, Inc. | 2nd Edition 2020

4–7

§ 4.2

Employment Discrimination in Massachusetts

persons for purposes of G.L. c. 151B. This section of the workers’ compensation statute was narrowly interpreted in Courtois v. Legal Seafoods, Inc., 17 Mass. L. Rptr. 296 (Super. Ct. 2004) (adopting view that “an employee who sustains a workrelated injury is entitled to the protections of c. 151B during the time that he is affected by that injury”). Subsequently, the MCAD has found an employee to be handicapped within the meaning of the statute, despite the temporary nature of—and recovery from—her disability (seven days) because the disability was caused by a workplace injury, bringing the complainant within the scope of individuals protected by G.L. c. 151B, § 4(16). MCAD & Dawn Sawyer v. Wimpy’s Rest., No. 03-BEM-02384 (MCAD Oct. 19, 2011) (decision of Full Commission). The ADAAA provides that the term “substantially limits” shall be interpreted consistently with the ADAAA’s findings and purposes. Through the ADAAA, Congress clearly expressed its view that the Supreme Court’s interpretation of the term “substantially limits” as “significantly restricted” expressed too high a standard for establishing coverage. The revised federal regulations state explicitly that, in order to be “substantially limiting,” an impairment need not severely restrict or significantly restrict performance of a major life activity. 29 C.F.R. § 1630.2(j)(ii); see also Gil v. Vortex, LLC, 697 F. Supp. 2d 234, 239–40 (D. Mass. 2010) (although plaintiff might have done a better job of providing details in his complaint describing precise nature of his “substantial limitations,” enough is pled to satisfy relaxed disability standard of ADAAA). Certain impairments will consistently fall short of this standard. The Code of Federal Regulations include language indicating that temporary, nonchronic impairments of short duration with little or no residual effects, such as a cold, seasonal or common influenza, a sprained joint, and a broken bone that is expected to heal completely usually will not substantially limit a major life activity. The regulations indicate that comparison of an individual’s limitation to that of most people in the general population often may be made using a common-sense analysis without resorting to scientific or medical evidence. The revised regulations also identify certain impairments that will obviously be substantially limiting. These include autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis and muscular dystrophy, and major depression, bipolar disorder, posttraumatic stress disorder, and schizophrenia. 29 C.F.R. § 1630.2(j)(3)(iii). This does not undermine the importance of an individualized assessment, but rather, given the “inherent nature” of these impairments, they will “virtually always be found to impose a substantial limitation on a major life activity.” 29 C.F.R. § 1630.2(j)(3)(ii). Moreover, under the revised regulations, certain impairments that are episodic, or in remission, may still qualify as disabilities for purposes of the ADA if they substantially limit a major life activity when active. 29 C.F.R. § 1630.2(j)(1)(vii). Examples of such impairments, as set forth in the EEOC’s interpretive guidance, include asthma, diabetes, epilepsy, hypertension, major depressive disorder, bipolar disorder, schizophrenia, and posttraumatic stress disorder. These are examples of how significantly the amendments to the ADA and subsequent revision to the regulations have altered the legal landscape. Compare, e.g., Ramos Echevarria v. Pichis, Inc., 673 F.3d 182, 188–90 (1st Cir. 2011) (noting that amendments do not apply retroactively and finding, under preamendment ADA, that epileptic employee was not disabled because condition substantially limited his ability to work only 4–8

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

temporarily during epileptic episodes), with 29 C.F.R. § 1630.2(j)(3)(iii) (indicating that epilepsy “should be easily concluded” to substantially limit major life activity of neurological function). One of the more frequent life activities raised in disability discrimination cases is that of working. In Lessard v. Osram Sylvania, Inc., 175 F.3d 193 (1st Cir. 1999) (ADA), the First Circuit determined that the plaintiff, a temporary employee with war injuries to his hand, was not substantially limited in the major life activity of working, because he was effectively precluded from performing only a singular, particular job. In order to be substantially limited in the major life activity of working, the court reasoned, the plaintiff must be disqualified from performing a class of jobs or a broad range of jobs. Lessard v. Osram Sylvania, Inc., 175 F.3d at 197 (citing 29 C.F.R. § 1630.2(j)). Using similar reasoning, the First Circuit refused to consider a plaintiff, who had a heart problem that precluded her from working in excess of forty hours per week, disabled by virtue of the fact that this limitation precluded her from only a narrow range of jobs. Tardie v. Rehab. Hosp., 168 F.3d 538 (1st Cir. 1999). The court stressed that there were vast employment opportunities for this plaintiff that required only forty-hour weeks and, therefore, the plaintiff was not substantially limited in a major life activity. (Interestingly, in considering the plaintiff’s Family and Medical Leave Act (FMLA) claim, the court held that working more than forty hours a week was an essential function of the plaintiff’s position.) The fact that the plaintiff is working undercuts the argument that the plaintiff is substantially limited in the major life activity of working. Singleton v. Sinclair Broad. Grp., Inc., 660 F. Supp. 2d 136 (D. Mass. 2009) (although court acknowledged difficulties faced by plaintiff due to her cancer, she did return to work successfully and was not impaired such that she could not perform major life activity of working); Mercado v. Manny’s T.V. & Appliance, Inc., 77 Mass. App. Ct. 135, 142 (2010) (fact that plaintiff worked at his job as usual, despite his injury, severely undercuts his claim that he was handicapped at that time). The revised federal regulations set forth what should be a more straightforward analysis on what it means to be substantially limited in working. A plaintiff asserting disability because an impairment substantially limits their ability to work will still be required to show that the impairment substantially limits the plaintiff’s ability to perform a class of jobs—or a range of jobs in various classes—as compared to most individuals with comparable training, skills, and abilities. But demonstrating the type of work should be more straightforward, and plaintiffs will not be required to show they are prohibited from doing all work. Moreover, because the changes expand the list of “major life activities” that may be affected in order to establish coverage under the ADA, plaintiffs are less likely to rely upon the major life activity of “working” to demonstrate a qualifying disability. For example, after the amendments and revisions to the regulations, the plaintiff in Singleton v. Sinclair Broadcast Group, Inc., discussed above, may have argued that her cancer limited the major life activity of cell growth, rather than that of working. The new federal approach appears similar to the approach taken by the Supreme Judicial Court. For example, the court decided in Ocean Spray Cranberries, Inc. v. MCLE, Inc. | 2nd Edition 2020

4–9

§ 4.2

Employment Discrimination in Massachusetts

MCAD, 441 Mass. 632, 640–41 (2004), that a plaintiff with vision problems was substantially limited in working because his impairment interfered with his ability to work in the “class of jobs” of “equipment maintenance in manufacturing plants.” With regard to manual tasks, the Supreme Court ruled in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the question is not simply whether the person is unable to perform the specific tasks associated with their job, but rather for a person to be substantially limited in performing manual tasks, the person must have an impairment that prevents or severely restricts the person from doing activities that are of central importance to most people’s daily lives, such as doing household chores, bathing, and brushing one’s teeth. The ADAAA specifically sets forth Congress’s rejection of the Toyota decision and provides that an individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform “activities of central importance to daily life.” 29 C.F.R. § 1630.2(i)(2(ii). According to the EEOC’s examples, someone with a twenty-pound lifting restriction of more than a short duration need not show that they are substantially limited in performing activities of central importance to daily life requiring lifting. Someone who is substantially limited in seeing as the result of monocular vision (e.g., because of a limited visual field or lack of depth perception) need not demonstrate how the monocular vision substantially limits activities of central importance to daily life that require seeing. In School Committee of Norton v. MCAD, 63 Mass. App. Ct. 839, 841–42 (2005), a cafeteria worker had a chronic back injury that resulted in a permanent medical restriction prohibiting her from lifting more than twenty-five pounds. As a result of this restriction, the cafeteria worker was unable to perform a number of routine tasks in her life, such as yardwork, gardening, shoveling snow, lifting and carrying her grandchildren, and carrying groceries. The court held that as lifting is specifically defined by the MCAD Guidelines as a major life activity, and it was substantially and permanently limited here, along with other important life activities, . . . there was sufficient evidence to support the MCAD’s conclusion that the [cafeteria worker] was a handicapped person as defined by G.L. c. 151B, § 1(17). Sch. Comm. of Norton v. MCAD, 63 Mass. App. Ct. at 845. In another case, O’Donnell v. Gonzales, No. 04-40190-FDS, 2007 WL 1101160 (D. Mass. Apr. 2, 2007) (ADA), the plaintiff had submitted evidence that various life activities, including sleeping, eating, and concentrating had been limited by her posttraumatic stress disorder and depression. The plaintiff’s medical records and doctor’s notes suggested that she suffered from intrusive thoughts, flashbacks, nightmares, feelings of hopelessness, and daily panic attacks that disrupted her thinking, sleeping, eating, and concentrating. Her doctor characterized these symptoms as “severe.” The court found sufficient evidence that the plaintiff’s impairments had substantially limited these major life activities.

4–10

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

(b)

§ 4.2

Temporary Impairments

A temporary disability could, in the proper circumstances, be considered a handicap within the meaning of G.L. c. 151B. Dartt v. Browning-Ferris Indus., Inc., 427 Mass. 1 (1998); Massasoit Indus. Corp. v. MCAD, 91 Mass. App. Ct. 208, 213 n.6 (2017) (“[T]he Supreme Judicial Court has rejected the argument that temporary disabilities are unprotected as a matter of law . . . .”). A plaintiff who was diagnosed with malignant lymphoma in 1990 and had suffered no recurrence of the cancer after successful radiation therapy could still be considered handicapped due to continued fatigue and malaise he suffered as a result of the lymphoma. Plante v. Shawmut Bank, N.A., 8 Mass. L. Rptr. 643 (Super. Ct. 1998). In a subsequent ruling, the court ruled that an individual is considered to be handicapped “even if s/he has no physical or mental impairment that substantially limits one or more major life activities, if the individual is regarded as having such an impairment.” Plante v. Shawmut Bank, N.A., No. 950938, 1999 WL 1319199 (Mass. Super. Ct. Apr. 12, 1999). Where the plaintiff fully recovered from a knee injury in a month, however, there was no disability. Hallgren v. Integrated Fin. Corp., 42 Mass. App. Ct. 686, 688 (1997) (citing 29 C.F.R. § 1630.2(j), app.) (“temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities”); Twomey v. NStar Elec. & Gas Corp., No. 09-10481-GAO, 2009 WL 5110672 (D. Mass. Dec. 18, 2009) (knee injury from which plaintiff recovered after his surgery without any residual disability was not a “handicap” within meaning of Chapter 151B). Similarly, a plaintiff who had a knee injury lasting for seven months was found to have suffered a temporary injury and was not substantially limited in any major life activity. Cormier v. Littlefield, 112 F. Supp. 2d 196 (D. Mass. 2000). For an interesting discussion of whether a mental disability is temporary or permanent, and whether it substantially limits a major life activity, see Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998). There have been several Superior Court decisions on the question of temporary disabilities. See, e.g., D’Amico v. Compass Grp. USA, Inc., No. 030035F, 2004 WL 3152398, at *6 (Mass. Super. Ct. Dec. 20, 2004) (plaintiff failed to prove disability under G.L. c. 151B where his depression was only temporary); Courtois v. Legal Seafoods, Inc., 17 Mass. L. Rptr. 296 (Super. Ct. 2004) (interpreting G.L. c. 152, § 75B to provide protection for work-related injuries only during the time that the plaintiff is affected by the injury); Kuczun v. McCue Corp., No. ESCV2002-00127, 2003 WL 21888927, at *3 (Mass. Super. Ct. Aug. 4, 2003) (plaintiff’s four-month neck and back injury from motor vehicle accident caused her only minor discomfort and did not qualify her as a handicapped person). Finally, the revised federal regulations make it clear that impairments lasting for fewer than six months may still be substantially limiting. 29 C.F.R. § 1630.2(j)(1)(ix).

MCLE, Inc. | 2nd Edition 2020

4–11

§ 4.2

(c)

Employment Discrimination in Massachusetts

Employee Perceived as Being Disabled

A person who is not actually disabled, but is perceived as having a disability, may qualify as a handicapped person. The Dartt decision found there was sufficient evidence from which a jury could conclude that the employer regarded the plaintiff as having a disability. In Petsch-Schmid v. Boston Edison Co., 914 F. Supp. 697, 704 (D. Mass. 1996), the court denied summary judgment because there was sufficient evidence that the plaintiff was regarded as someone with a disability. The federal District Court concluded that there was sufficient evidence to satisfy the “regarded as” standard in Flanagan-Uusitalo v. D.T. Indus., Inc., 190 F. Supp. 2d 105 (D. Mass. 2001). In Haraden v. Verizon New England, Inc., 30 Mass. L. Rptr. 187 (Super. Ct. 2012), the plaintiff, who suffered from chronic iron deficiency anemia, could establish that she was perceived as disabled where her employer had previously provided her with a reasonable accommodation and permitted her to take a leave of absence related to her condition. Plaintiffs have faced difficulties proving a “regarded as” claim in cases within the First Circuit. In Cormier v. Littlefield, 112 F. Supp. 2d 196 (D. Mass. 2000), the fact that an employer terminated an employee because the employee’s temporary injury prevented him from performing his job duties did not mean that the employer regarded the employee as disabled. In 2003, the First Circuit affirmed summary judgment where the plaintiff police lieutenant failed to prove that his employer regarded him as unable to perform a broad range of jobs. Sheehan v. City of Gloucester, 321 F.3d 21 (1st Cir. 2003). The First Circuit reached a similar result in Sullivan v. Neiman Marcus Group, Inc., 358 F.3d 110 (1st Cir. 2004), relying on Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), but noting the academic criticism contending that this approach has made it virtually impossible for plaintiffs to prove a “regarded as” claim. On the related issue of stereotyping, the First Circuit reversed a grant of summary judgment where there were factual issues concerning whether the employer had refused to hire a genetic amputee on the basis of stereotyped thinking about persons who have only one arm. Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002). In City of New Bedford v. MCAD, 440 Mass. 450, 466 (2003), the plaintiff police officer could not prove a “regarded as” claim where the employer believed that the plaintiff was unable to perform only a particular aspect (SWAT team membership) of a single particular job (New Bedford police officer). The plaintiff was able to work as a police officer, and the fact that his superiors assigned him to those duties demonstrated that they did not regard him as substantially limited in the major life activity of working. See Abrams v. Paddington’s Place, No. 96-BEM-3667, 2004 WL 1746508 (MCAD June 30, 2004) (hearing officer), aff’d, 2005 WL 483430 (Feb. 11, 2015) (Full Commission) (complainant met the handicap definition because her employer perceived her depression as preventing her from working in a broad range of jobs in the child-care and teaching setting). The ADAAA, however, has put forth a new “regarded as” standard. According to the ADAAA, an individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that they have been subjected to an action prohibited under the act because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life 4–12

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

activity. 29 C.F.R. § 1630.2(l)(1). This is a significant change in the law. Mercado v. Puerto Rico, 814 F.3d 581, 588 (1st Cir. 2016) (“After the enactment of the ADAAA . . . a plaintiff bringing a ‘regarded as’ claim under the ADA needs to plead and prove only that she was regarded as having a physical or mental impairment. Such a plaintiff no longer needs to plead and prove that such impairment substantially limited one or more major life activities.”). If an employee can establish that they suffered an adverse employment action because of an impairment, that is sufficient to establish a “regarded as” claim under the ADA. 29 C.F.R. § 1630.2(1)(1)–(2). The employee is “not required to present evidence of how or to what degree [the defendant] believed the impairment affected him.” Hilton v. Wright, 673 F.3d 120, 129 (2d Cir. 2012). Socalled minor and transitory impairments, defined as those with an actual or expected duration of less than six months, are excluded from the “regarded as” prong. 42 U.S.C. § 12102(3)(B). Courts have applied this new standard liberally. For example, in Hilton v. Wright, 928 F. Supp. 2d 530, 554 (N.D.N.Y. 2013), evidence that the employer believed the employee might suffer from “drug addiction” or “alcoholism” was sufficient to raise a fact issue as to whether the employee was “regarded as” disabled. Likewise, in Robertson v. Corval Constructors, Inc., No. 13-639-SDD-RLB, 2015 WL 1650367 (M.D. La. Apr. 14, 2015), the employee established a prima facie case of disability discrimination by providing evidence that he was terminated shortly after suffering a seizure at work and being asked to provide a medical release that addressed his ability to perform his duties. Although the employer argued that there was no evidence to suggest that any perceived impairment was substantially limiting, the court noted that such evidence is not required to meet the “regarded as” test under the ADAAA. But even before the ADAAA, federal courts in the First Circuit often rejected requests for summary judgment on claims of perceived disability. In Degan v. Goldwell of New England, Inc., No. 04-11024-RWZ, 2006 WL 300425 (D. Mass. Feb. 6, 2006), the plaintiff put forth evidence that the defendants had expressed serious concern over her continuing medical treatment for a work-related injury and that they may have referred to her continuing medical difficulties as “a liability.” In addition, upon learning of her ongoing treatment, defendants immediately requested documentation of any “work restrictions” that the plaintiff suffered. These facts gave rise to an inference that the defendants feared that the plaintiff suffered an impairment, and the defendants’ fear that the plaintiff’s ability to work was impaired or restricted thus translated into a fear that a major life activity was impaired. In Quiles-Quiles v. Henderson, 439 F.3d 1, 6–7 (1st Cir. 2006), the court found evidence that the plaintiff’s supervisors believed, without foundation, that his mental impairment made him a potential safety risk to his coworkers. According to the court, these comments indicated that Quiles’s supervisors perceived him to be potentially violent because of his mental impairment. This is an example of how an employee can prove that their employer regarded the employee as disabled by demonstrating that the employer mistakenly believed that an actual nonlimiting impairment substantially limited one or more major life activities. In Sensing v. Outback Steakhouse of Florida, LLC, 575 F.3d 145 (1st Cir. 2009), the plaintiff, who suffered from multiple sclerosis, put forth sufficient evidence for a jury to infer that her employer perceived her as handicapped. MCLE, Inc. | 2nd Edition 2020

4–13

§ 4.2

Employment Discrimination in Massachusetts

The record contained affidavits from her coworker who had expressed concerns to the employer about the plaintiff’s ability to perform her job quickly and safely and evidence that the employer was concerned about the employee falling on the job. In Boward-Wedge v. Aquarion Operating Services, Co., No. 07-10628-GAO, 2009 WL 3497809 (D. Mass. Sept. 17, 2009), the plaintiff’s superior expressed his concern regarding the budget process and his thoughts that the plaintiff seemed “sickly” and that he was not sure if her mental health was going to last through the budget process. According to the court, the employer’s demonstrated concern about the plaintiff’s ability to complete the essential functions of her job because of her health was sufficient to make a prima facie showing of disability discrimination.

(d)

Record of Impairment or Disability

Both Chapter 151B and the ADA protect individuals with a record of impairment from discrimination. G.L. c. 151B, § 1(17); 42 U.S.C. § 12102(2)(B). Under the ADA, a person who has “a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities” has a record of impairment. 29 C.F.R. § 1630.2(k)(1); see Ramon-Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 48 (1st Cir. 2011). According to the MCAD Guidelines, under Chapter 151B a person may have a record of impairment and be disabled for purposes of the statute, even if the impairment no longer exists. MCAD Guidelines § II.A.3 (“person is considered to be ‘handicapped’ if [the person] has a past record or medical history of a physical or mental impairment that substantially limited one or more major life activities”). The revised regulations are similar: “An individual will be considered to have a record of a disability if the individual has a history of an impairment that substantially limited one or more major life activities when compared to most people in the general population, or was misclassified as having had such an impairment.” 29 C.F.R. § 1630.2(k)(2). Under the ADA, an employee with a record of disability may be entitled to a reasonable accommodation if necessary and related to the prior disability. 29 C.F.R. § 1630.2(k)(3).

(e)

Asymptomatic Ailments

In June 1998, the U.S. Supreme Court issued a landmark ruling in which it declared that an individual infected with HIV was protected under the ADA, even though the infection was in its asymptomatic phase. Bragdon v. Abbott, 524 U.S. 624 (1998). The Court declared that HIV constituted an impairment that substantially limited the plaintiff’s major life activity of bearing children. The plaintiff filed suit against the defendant after he refused to treat her at his dental office, offering instead to perform his services at a hospital, which would have cost the plaintiff an additional $185. After affirming the lower courts’ decisions that the plaintiff was disabled under the ADA, the Supreme Court issued a remand on the question of whether performance of the dental services on the plaintiff posed a direct threat to the defendant or others. The First Circuit responded by affirming its earlier ruling that the defendant’s performance of the dental procedure did not pose a direct threat. Abbott v. Bragdon, 163 F.3d 4–14

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

87 (1st Cir. 1998). The court stressed that the defendant provided no evidence that providing routine, in-office dental care to an infected patient would subject him to a significant risk of contracting HIV. The court cautioned, however, that the ruling was specific to the facts before it and that other circumstances would warrant careful review. Finally, the ADAAA states that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 29 C.F.R. § 1630.2(j)(1)(vii).

(f)

Major Life Activities

Prior to the ADAAA’s enactment, the most significant federal decision on major life activities was Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). The Court ruled that, for a person to be substantially limited in performing manual tasks, the person had to be prevented or severely restricted from doing activities that are of central importance in most people’s daily lives, such as household chores, bathing, and brushing one’s teeth. Terms such as “major life activities” must be interpreted strictly to create a demanding standard for qualifying as disabled. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. at 197. The ADAAA, however, has made clear Congress’s intent that the standard reached in the Toyota case no longer applies and an individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform “activities of central importance to daily life.” The ADAAA list of major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. In addition, the ADAAA also lists major bodily functions that constitute major life activities. This list includes functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. See 29 C.F.R. § 1630.2(i)(1)(ii). The Massachusetts guidelines also add the following examples of major life activities to those set forth in G.L. c. 151B, § 1(20): sitting, standing, lifting, and mental and emotional processes such as thinking, concentrating, and interacting with others. MCAD Guidelines § II.A.5; see Fink v. Printed Circuit Corp., 204 F. Supp. 2d 119, 124 (D. Mass. 2002) (“[t]hinking, sleeping, concentrating, and learning may constitute major life activities”). Under the ADA, the ability to get along with others is not a major life activity. Soileau v. Guilford of Me., Inc., 105 F.3d 12, 15 (1st Cir. 1997). However, the revised regulations now include interacting with others as a major life activity. 29 C.F.R. § 1630.2(i)(1)(i). An employee’s attention deficit disorder (ADD) did not constitute a disability under the ADA or G.L. c. 151B, absent a showing of substantial limitation in major life activities such as reading, speaking, concentrating, hearing, processing information, thinking, and articulating thoughts. Wright v. CompUSA, Inc., 352 F.3d 472 (1st Cir. 2003). In Benoit v. Technical Manufacturing Corp., 331 F.3d 166 (1st Cir. 2003), the First Circuit held that the plaintiff’s back pain did not substantially MCLE, Inc. | 2nd Edition 2020

4–15

§ 4.2

Employment Discrimination in Massachusetts

limit any major life activities under either the ADA or Chapter 151B. In Poh v. Massachusetts Correction Officers Federated Union, No. 03-11987-RWZ, 2006 WL 1877089 (D. Mass. July 7, 2006), the court held that, to the extent that the plaintiff claimed that his ability to engage in recreational weight training and sports activities was limited, such limitations do not fall within the protected category of the ADA. In Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632, 638 (2004), the court emphasized that each alleged major life activity (in this case working and seeing) must be considered separately. In Bray v. Atlanticare, Inc., 61 Mass. App. Ct. 1123, 2004 WL 1878259 (2004), the plaintiff surgical technician claimed to have dyslexia, ADD, problems with visual and spatial relations, and hearing deficits. Because these conditions did not significantly affect his daily life activities, however, there was found to be no substantial limitation on a major life activity. In Miller v. Verizon Communications, Inc., 474 F. Supp. 2d 187 (D. Mass. 2007), the court, recognizing that there is no general rule that medical evidence is always necessary to establish the effects of a medical impairment, ruled that the lack of medical documentation was not critical to the plaintiff demonstrating that her diabetes substantially limited the major life activity of eating. See also Cyr v. United Parcel Serv., Inc., 792 F. Supp. 2d 108 (D. Mass. 2011) (plaintiff’s own testimony concerning her condition—multiple sclerosis—and its effects on her daily life was enough to support finding that her impairment substantially limited her ability to engage in major life activities).

(g)

Misconduct by Persons with Handicaps

The employee will not be considered a “qualified handicapped person” if the employee “engages in conduct significantly inimical to the interests of his employer and in violation of the employer’s rules.” Garrity v. United Airlines, Inc., 421 Mass. 55, 63 (1995) (airline could terminate alcoholic flight attendant who became rowdy on an airplane even though misconduct was arguably the result of her handicap). Judge Young of the federal District Court reached a similar conclusion in Flynn v. Raytheon Co., 868 F. Supp. 383 (D. Mass. 1994), another case involving an alcoholic plaintiff. An employee guilty of misconduct is not protected by the law, even if the cause of the behavior was the employee’s disability. See also Furtado v. Standard Parking Corp., 820 F. Supp. 2d 261 (D. Mass. 2009) (“Although it is uncontested that [plaintiff] was a handicapped person under Massachusetts law, this law does not shield him from the consequences of his misconduct.”); see also 42 U.S.C. § 12114 (“a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use”). The MCAD has ruled the same way. See MCAD v. Berkshire Humane Soc’y, No. 98-SEM-0072, 2005 WL 1352572, at *12 (MCAD May 31, 2005) (hearing officer) (“[e]ven though Complainant was diagnosed with bipolar disorder, she cannot rely on her protected status to justify unprofessional behavior”); Abrams v. Paddington’s Place, No. 96-BEM-3667, 2004 WL 1746508 (MCAD June 30, 2004) (hearing officer), aff’d, 2005 WL 483430 (Feb. 11, 2005) (Full Commission) (employer not prohibited from taking adverse action against depressed employee based on misconduct including disruptive behavior, repeatedly coming to work late, and sleeping on the job); Freeman v. Town of Duxbury, 15 M.D.L.R. 1083, aff’d, 16 M.D.L.R. 1099 (1994) (if the termination is based on a person’s inappropriate conduct, 4–16

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

then even though the misconduct results from a mental impairment, the employer is not liable); see also Bunevith v. CVS/Pharmacy, 925 F. Supp. 89, 94–95 (D. Mass. 1996) (no claim when person with mental disability was fired for repeated violation of company’s sexual harassment policy); Tate v. Dep’t of Mental Health, 419 Mass. 356 (1995) (employee terminated for insubordination); Mammone v. President & Fellows of Harvard Coll., 18 Mass. L. Rptr. 217 (Super. Ct. 2004) (plaintiff was not a qualified handicapped person under G.L. c. 151B where his conduct, even though caused by bipolar disorder, was so egregious that no employer should reasonably be required to retain him). The Superior Court in Mammone set forth a two-part test for determining whether an employee’s misconduct is egregious enough to disqualify the employee from being considered a “qualified handicapped person.” The first consideration was whether the employer terminated the employee promptly after the misconduct, thus demonstrating the employer’s subjective belief that any person—handicapped or not—who engaged in such misconduct would be terminated. The second consideration was whether the misconduct is so egregious that no employer should reasonably be required to retain such an employee even if the employee, with a reasonable accommodation, otherwise could perform the essential functions of the job. On appeal, the Supreme Judicial Court affirmed the grant of summary judgment to the university but indicated that, although they do not replace the test espoused in Garrity with either prong of the test used by the Superior Court below, the Superior Court’s considerations are in fact relevant, and often might be conclusive, on the question whether a triable issue exists concerning the plaintiff’s status as a qualified handicapped person. See Mammone v. President & Fellows of Harvard Coll., 446 Mass. 657, 680 n.39 (2006). But see Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 26 (1st Cir. 2004) (summary judgment reversed where plaintiff’s insubordination and outbursts at work were allegedly caused by her depression, but the court noted that “the precedential value of this decision may be limited by [various factors]”).

(h)

Mitigating Measures

The MCAD Guidelines provide that the existence of an impairment is generally determined without regard to whether its effect can be mitigated by measures such as medication, auxiliary aids, or prosthetic devices. For example, an employee with a serious mental illness that affects their ability to work in a broad range of jobs may be considered handicapped even if the symptoms of the mental illness can be mitigated or eliminated by medication. MCAD Guidelines § II.A.7. This position was adopted by the Supreme Judicial Court despite a U.S. Supreme Court ruling to the contrary in interpreting the ADA. Sutton v. United Airlines, 527 U.S. 471 (1999). In Dahill v. Police Department of Boston, 434 Mass. 233 (2001), the court held that a corrective device used to alleviate a disability is not relevant in determining whether someone is disabled under G.L. c. 151B. The plaintiff was born with a severe hearing impairment, but with the use of hearing aids and treatment, his hearing was virtually corrected. The Boston Police Department terminated the plaintiff during a twentysix-week training program for new officers. MCLE, Inc. | 2nd Edition 2020

4–17

§ 4.2

Employment Discrimination in Massachusetts

Until the passage of the ADAAA, federal law in the area of mitigating measures ran contrary to the Massachusetts interpretation. In late June 1999, the U.S. Supreme Court issued a series of decisions that limited those persons who could successfully sue for disability discrimination. Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Albertsons, Inc. v. Kirkinburg, 527 U.S. 555 (1999); Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999). The Sutton case involved two sisters who were extremely nearsighted, wore corrective lenses, but failed to meet United’s strict vision standards for pilots and were therefore not hired. Albertsons involved the termination of a truck driver who was virtually blind in one eye. Murphy concerned the termination of a truck mechanic with high blood pressure that exceeded federal requirements for commercial drivers. The plaintiffs in each of these cases had impairments that could be substantially corrected with “mitigating measures.” But see Miller v. Verizon Commc’ns, Inc., 474 F. Supp. 2d 187 (D. Mass. 2007) (plaintiff raised a genuine issue that her diabetes substantially limited her even when medicated). The Court announced that mitigating measures used by the individual claiming to be disabled, even corrective measures taken by the body’s own systems, must be taken into account when judging whether the individual is substantially limited in a major life activity under the ADA. The Court cited three reasons for this decision: • the ADA’s use of the verb “limits,” which means that the individual must be presently limited in a major life activity; • the ADA’s requirement that one consider how the disability affects the individual, which necessitates consideration of the measures the individual has taken to correct the impairment; and • the statement by Congress in passing the ADA that “some 43 million Americans are disabled,” which would have quadrupled if Congress intended the statute to protect people with conditions largely corrected by medication, eyeglasses, or other measures. The ADAAA now rejects the requirement set forth by Sutton and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures. The ADAAA specifically states that the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics (including limbs and devices), hearing aids and cochlear implants or other implantable hearing devices, oxygen therapy equipment and supplies, use of assistive technology, reasonable accommodations or auxiliary aids or services, or learned behavioral or adaptive neurological modifications. The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. See 29 C.F.R. § 1630.2(j)(1)(vi).

4–18

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2.4

(a)

§ 4.2

Is the Plaintiff Capable of Performing the Essential Functions of the Position with Reasonable Accommodation? Essential Functions

The MCAD Guidelines define “essential functions” of a job as those functions that must necessarily be performed in order to accomplish the principal objectives of the job. Put another way, the essential functions are those that are not incidental or tangential to the job in question. The MCAD will consider several factors in deciding whether a job function is essential. First, functions that are identified as part of the job but that are rarely or never performed will not likely be considered essential. However, the MCAD will ask if removing a given function would fundamentally change the nature of the job. For example, although a firefighter may be required to withstand the intense heat of flames only on rare occasions, removing this function would fundamentally change the nature of the job. MCAD Guidelines § II.B. The MCAD Guidelines set forth additional factors to consider in deciding whether a job function is essential: • the amount of time spent performing the function; • the work experience of past incumbents in the job; • the current work experience of incumbents in similar jobs; • the terms of a collective bargaining agreement; and • the employer’s timely written job description, although this latter is not binding. MCAD Guidelines § II.B. See also Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29 (1st Cir. 2000), where the court stated that, while an employer’s view of job requirements is generally given substantial weight, other factors that may be considered include, without limitation, written job descriptions, consequences of not requiring the function, work experience of past incumbents, and work experience of current incumbents. In Cox v. New England Telephone & Telegraph Co., 414 Mass. 375, 386–87 (1993), the Supreme Judicial Court found that climbing telephone poles was an essential function of a telephone technician’s job, even though this activity would occur only rarely. In Beal v. Board of Selectmen of Hingham, 419 Mass. 535, 542 (1995), the court ruled that a police officer susceptible to blackouts in high-stress situations could not perform the essential functions of her position. In Carleton v. Commonwealth, 447 Mass. 791 (2006), the court found that a certain level of hearing acuity without the use of hearing aids was an essential function of a firefighter’s job and that the accommodation sought, the use of hearing aids, was not reasonable. In Walker v. Massachusetts Department of Correction, 23 Mass. L. Rptr. 388 (Super. Ct. 2007), a court concluded that a corrections officer with a broken wrist was unable to perform the essential functions of escorting and restraining inmates, quelling disturbances, using a firearm, and responding to emergencies that require the use of both hands. In MCLE, Inc. | 2nd Edition 2020

4–19

§ 4.2

Employment Discrimination in Massachusetts

Godfrey v. Globe Newspaper Co., 457 Mass. 113 (2010), the plaintiff had been fired from his position as an assistant press foreman. The plaintiff had slipped on oil while working on the printing floor and was seriously injured. The plaintiff requested a light-duty position that would not have required him to stand or climb on the presses, and the Globe declined to offer such a position. The court held that Chapter 151B does not require an employer to create a new position when an employee is not capable of performing the duties of their former position. Note that the plaintiff conceded in his response to the defendant’s statement of undisputed facts that climbing on the presses is an essential function of the job, and thus the court found that there was no material dispute of fact as to that issue. For an extensive discussion of essential functions, see Cargill v. Harvard University, 60 Mass. App. Ct. 585 (2004) (reversing summary judgment and emphasizing that the matter of essential functions is intensely fact-based and requires an individualized inquiry). In Andrews v. MBTA, 872 F. Supp. 2d 108 (D. Mass. 2012), the court affirmed this principle that Chapter 151B does not require an employer to create a new position or reassign an employee to a vacant position, and dismissed the plaintiff’s state law claims. But the court permitted the plaintiff’s claims under the ADA to proceed, noting that the federal law requires the employer to “reassign plaintiff to a vacant position unless such a reassignment would be unduly burdensome.” Andrews v. MBTA, 872 F. Supp. 2d at 114. Even under the ADA, however, courts have held that a request to report to a different supervisor is not a “reasonable accommodation.” Wall v. Dep’t of Revenue, 89 Mass. App. Ct. 1122 (2016) (“To require that an employer transfer an employee to a different supervisor, however, exceeds the scope of ‘reasonable accommodation’ under the ADA.”). The First Circuit has addressed the issue of essential functions under the ADA, holding that the essential functions of a position are not limited to the primary function of the position and that a court must evaluate the essential functions of the job without considering the effect of any special arrangements. Richardson v. Friendly Ice Cream Corp., 594 F.3d 69 (1st Cir. 2010). In a case brought by a nurse, represented by a union, who worked on a rotating shift and presented her doctor’s recommendation that she work a regular day shift, the court found that shift rotation was an essential function of the plaintiff’s position. The court focused on the effect of waiving the shift rotation requirement on the other nurses, who would be called upon to cover the plaintiff’s evening shifts and restated the position that the ADA does not require employers to violate the terms of a collective bargaining agreement and take action inconsistent with other employees’ contractual rights. Laurin v. Providence Hosp., 150 F.3d 52 (1st Cir. 1998). Similarly, the court concluded that a plaintiff with a back injury was not protected by the ADA as he failed to present any evidence that he was able to perform the essential functions of his job with or without reasonable accommodation. Feliciano v. Rhode Island, 160 F.3d 780 (1st Cir. 1998). In Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29 (1st Cir. 2000), the First Circuit determined that regular and reliable attendance had not been shown to be an essential function of the plaintiff’s position. The plaintiff worked as a lab assistant and data entry assistant. The employer allowed its employees to report to work any time between 7:00 a.m. and 9:00 a.m. and required employees to work a seven-hour shift. The plaintiff’s arthritis, however, prevented him from arriving to work prior to 9:00 a.m. and often caused him to arrive at work between 10:00 a.m. 4–20

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

and 12:00 p.m. The court reversed the District Court’s grant of summary judgment and held that there was no evidence in the record that predictable attendance was an essential function of the plaintiff’s job or that allowing the plaintiff an open-ended schedule would pose an undue hardship on the defendant. The court held that a genuine issue of fact remained as to whether the plaintiff’s tardiness was caused by his disability and reversed the District Court’s award of summary judgment in favor of the defendant. In Ventura v. Hanitchak, 719 F. Supp. 2d 132 (D. Mass. 2010), the court found that regular attendance was an essential function of the job. See also Moebius v. Tharperobbins Co., No. 15-10751-MBB, 2016 WL 6476941, at *13 (D. Mass. Nov. 1, 2016) (“plaintiff’s request to work from home was feasible under the circumstances because plaintiff was an experienced computer engineer who was able to accomplish tasks with or without supervision”); Tompson v. Dep’t of Mental Health, 76 Mass. App. Ct. 586 (2010) (working a full-time schedule was an essential function of job). Moreover, the fact that certain of the plaintiff’s job duties can be reassigned to others does not render them nonessential under the ADA. See also Jones v. Walgreen Co., 765 F. Supp. 2d 100 (D. Mass. 2011). The revised federal regulations make clear that determining the essential functions of the plaintiff’s job is fact intensive and requires an individualized examination of the actual job at issue. 29 C.F.R. pt. 1630, app. (Essential Functions) (“Whether a particular function is essential is a factual determination that must be made on a case by case basis.”). Under the revised regulations, a job function may be considered essential for reasons that include the following: • The function may be essential because the reason the position exists is to perform that function. • The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed. • The function may be highly specialized so that the incumbent in the position is hired for their expertise or ability to perform the particular function. 29 C.F.R. § 1630.2(n)(2). The Appeals Court, in 2007, focused on safety as an essential function of the job. In Sebastino v. Hi-Tech Mold & Tool, Inc., 69 Mass. App. Ct. 1109, 2007 WL 1881280 (2007), the plaintiff claimed that his employer discriminated against him by terminating him because of his seizures and failed to assign him solely to jobs requiring the use of automatic machines until he brought his epilepsy under control. The court held that, even if the employer could reasonably have found sufficient work to extend this offer of accommodation, the plaintiff could not show that he could have safely performed the essential functions of the position. Gil v. Vortex, LLC, 697 F. Supp. 2d 234, 241 (D. Mass. 2010) (term “qualification standard” may include a requirement that an individual shall not pose a direct threat to health or safety of individual or others in workplace). But see Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145, 163 (1st Cir. 2009) (concern that plaintiff could cost restaurant thousands of dollars of liability if she were to fall may be interpreted as speculation as to risk of future injury, a prohibited form of discrimination under MCAD Guidelines on employment discrimination, rather than legitimate concern about plaintiff’s present ability MCLE, Inc. | 2nd Edition 2020

4–21

§ 4.2

Employment Discrimination in Massachusetts

to safely perform essential functions of her job); Noonan v. Pub. Employee Ret. Admin., 19 Mass. L. Rptr. 163 (Super. Ct. 2005) (MCAD decisions show clearly that a mere increased risk of future injury is not sufficient to justify a refusal to hire).

Cases in Which Various Impairments Did or Did Not Result in Disability The following are cases in which various impairments of the plaintiffs did or did not result in disability. Practice Note Given the extensive changes made by the ADAAA, the results of some of the following cases may now be subject to question.

• ADHD—The plaintiff failed to prove that his attention deficit hyperactivity disorder substantially limited him in a major life activity. Whitlock v. MacGray, Inc., 345 F.3d 44 (1st Cir. 2003); Calef v. Gillette Co., 322 F.3d 75 (1st Cir. 2003); Bray v. Atlanticare, Inc., 61 Mass. App. Ct. 1123, 2004 WL 1878259 (2004) (same ruling as in Whitlock; plaintiff also alleged dyslexia and audio deficits). But see McCarty v. Marple Township Ambulance Corps, 869 F. Supp. 2d 638, 650 (E.D. Pa. 2012) (finding a genuine issue of material fact as to whether the employee was disabled as a result of ADHD). • Alcoholism—Sullivan v. Neiman Marcus Grp., 358 F.3d 110 (1st Cir. 2004) (impairment found not to substantially limit ability to work in light of evidence of successful work at other jobs as well as job in question). • Allergies—Lewis v. Mass. Institute of Tech., 74 Mass. App. Ct. 1101, 2009 WL 790511 (2009) (allergies did not substantially limit the plaintiff’s ability to engage in major life activities). • Cancer—Plante v. Shawmut Bank, N.A., 8 Mass. L. Rptr. 643 (Super. Ct. 1998). In a subsequent decision in the same case, the court ruled that an individual is considered to be handicapped, “even if s/he has no physical or mental impairment that substantially limits one or more major life activities, if the individual is regarded as having such an impairment.” Plante v. Shawmut Bank, N.A., No. 950938, 1999 WL 1319199 (Mass. Super. Ct. Apr. 12, 1999); see also Angell v. Fairmount Fire Prot. Dist., 907 F. Supp. 2d 1242, 1250 (D. Colo. 2012) (“[I]t should easily be concluded that . . . cancer substantially limits the major life activity of normal cell growth and accordingly, constitutes a disability.”). But see McNiff v. Town of Dracut, 433 F. Supp. 2d 145 (D. Mass. 2006) (plaintiff’s skin and prostate cancer did not substantially limit the major life activity of working and was not a disability under the ADA); see also Wareing v. City of New Bedford, 71 Mass. App. Ct. 1111, 2008 WL 553871 (2008) (job applicant with skin cancer failed to prove that she was handicapped); Singleton v. Sinclair Broad. Grp., Inc., 660 F. Supp. 2d 136 (1st Cir. 2009) (although court acknowledged difficulties faced by plaintiff due to her cancer, she did return to work successfully and was not impaired such that she could not perform major life activity of working).

4–22

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

• Carpal Tunnel Syndrome—The First Circuit declared in Quint v. A.E. Stanley Manufacturing Co., 172 F.3d 1 (1st Cir. 1999), that a plaintiff suffering from bilateral carpal tunnel syndrome, which is an impairment under the ADA, produced sufficient evidence that she was substantially limited in the major life activity of working and was therefore disabled under the ADA. But see Gelabert-Ladenheim v. Am. Airlines, Inc., 252 F.3d 54 (1st Cir. 2001) (plaintiff with carpal tunnel syndrome was not substantially limited in the major life activity of working). The U.S. Supreme Court discussed the issue of whether a worker with carpal tunnel syndrome was disabled in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). • Choroidal Neovascularization (eye condition)—Bryant v. Caritas Norwood Hosp., 345 F. Supp. 2d 155 (D. Mass. 2004) (heavy lifting and nighttime driving are not “major life activities” within the meaning of ADA). • Crohn’s Disease—Plaintiff suffering from this chronic, incurable disease, characterized by fatigue, weight loss, loss of appetite, diarrhea, bleeding, and loss of bodily fluids, found to be handicapped under G.L. c. 151B. Westinghouse Elec. Supply Corp. v. MCAD, No. 97-4267E, 1999 WL 140492 (Mass. Super. Ct. Mar. 5, 1999). • Deafness—See the EEOC’s “Questions and Answers About Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act,” available at http://www.eeoc.gov/eeoc/publications/qa_deafness.cfm. • Depression—Abrams v. Paddington’s Place, No. 96-BEM-3667, 2004 WL 1746508 (MCAD June 30, 2004) (hearing officer), aff’d, 2005 WL 483430 (Feb. 11, 2005) (Full Commission); D’Amico v. Compass Grp. USA, Inc., No. 030035F, 2004 WL 3152398 (Mass. Super. Ct. Dec. 30, 2004); MCAD v. Berkshire Humane Soc’y, No. 98-SEM-0072, 2005 WL 1352572 (MCAD May 31, 2005) (hearing officer) (bipolar disorder); Mammone v. President & Fellows of Harvard Coll., 446 Mass. 657 (2006) (bipolar disorder); Beane v. Mass. Container Corp., 18 Mass. L. Rptr. 388 (Super. Ct. 2004) (depression, bipolar disorder); Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6 (1st Cir. 2004). • Diabetes—Miller v. Verizon Commc’ns, Inc., 474 F. Supp. 2d 187 (D. Mass. 2007) (summary judgment denied in part where plaintiff put forth sufficient evidence that her diabetes substantially limited the major life activity of eating). • Fibromyalgia—Summary judgment was denied in LaBrecque v. Sodexho USA, Inc., 287 F. Supp. 2d 100 (D. Mass. 2003) (material issue of fact as to whether condition limited major life activity of sitting). • Heart Condition—May qualify as a handicap under G.L. c. 151B in proper circumstances. Flanagan-Uusitalo v. D.T. Indus., Inc., 190 F. Supp. 2d 105, 114–15 (D. Mass. 2001). • Hypertension—Sheehan v. City of Gloucester, 321 F.3d 21 (1st Cir. 2003). Summary judgment granted because plaintiff failed to prove that he was substantially limited in one or more major life activities. But see Martin v. St. Luke’s Episcopal Hosp., 2014 WL 4810303, at *7 (S.D. Tex. Sept. 23, 2014) MCLE, Inc. | 2nd Edition 2020

4–23

§ 4.2

Employment Discrimination in Massachusetts

(employee’s “testimony that her high blood pressure, aggravated by stress, at least sometimes limited her ability to work without error” was sufficient to submit question of disability to jury). • Grave’s Disease—Fink v. Printed Circuit Corp., 204 F. Supp. 2d 119 (D. Mass. 2002) (material issues of fact as to whether thyroid disorder substantially limited major life activities of thinking and sleeping and whether requested accommodation would create an undue hardship). • Multiple Sclerosis—Cyr v. United Parcel Serv., Inc., 792 F. Supp. 2d 108 (D. Mass. 2011) (plaintiff’s description of symptoms she experienced related to her diagnosis of multiple sclerosis was sufficient to establish her as disabled). • Pregnancy—Gauthier v. Sunhealth Specialty Servs., Inc., 555 F. Supp. 2d 227 (D. Mass. 2008) (pregnancy was not a handicap in itself, but the temporary disabilities arising out of the pregnancy could render the female employee handicapped; in this case the plaintiff’s temporary swollen feet, inability to lift, and nausea all rendered her handicapped). • Posttraumatic Stress Disorder (PTSD)—O’Donnell v. Gonzales, No. 0440190-FDS, 2007 WL 1101160 (D. Mass. Apr. 2, 2007) (plaintiff’s PTSD and depression substantially limited one or more of her major life activities). • Repetitive Stress Injury—Leach v. Comm’r of Mass. Rehab. Comm’n, 63 Mass. App. Ct. 563 (2005) (summary judgment upheld where employee could not perform essential functions of job despite employer’s accommodation). • Seizure Disorder—Bourbeau v. City of Chicopee, 445 F. Supp. 2d 106 (D. Mass. 2006) (seizure disorder is a physical impairment which can be a disability). • Sensitivity to Secondhand Smoke—Justice Gants ruled that the plaintiff’s acute allergy to secondhand smoke did not substantially limit her in the major life activity of breathing and was therefore not a disability. Igartua v. City of Newton, 11 Mass. L. Rptr. 188 (Super. Ct. 2000). • Stuttering—Blagrove v. Walgreen Co., 69 Mass. App. Ct. 1108, 2007 WL 179162 (2007) (plaintiff had only minor problems communicating, and his stuttering did not meet the definition of handicap).

(b)

Reasonable Accommodation

The MCAD Guidelines state that a reasonable accommodation is any adjustment or modification to a job (or the way a job is done), an employment practice, or a work environment that makes it possible for a handicapped person to perform the essential functions of the position and to enjoy equal terms, conditions, and benefits of employment. This language was cited with approval in Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632, 648 (2004). This means that a reasonable accommodation may be required even if the employee is performing their job, because the employee may be performing the job only with difficulty. The employer does not have to provide the best accommodation available, or the accommodation specifically requested 4–24

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

by the employee, but rather must provide an accommodation that is effective for its purpose. See Mammone v. President & Fellows of Harvard Coll., 446 Mass. 657 (2006) (in determining whether reasonable accommodation is possible, the employer should make an objective evaluation of all available relevant facts about the employee’s work history and medical history); see also Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121 (1st Cir. 2009) (request for an accommodation cannot be deemed unreasonable solely because the disabled employee has failed to satisfy the standard eligibility requirement for the benefit); Finlan v. Verizon New Eng., Inc., 74 Mass. App. Ct. 1127, 2009 WL 2252267 (2009) (Rule 1:28 decision) (concluding that “a qualified handicapped employee has the right to a reasonable accommodation, not the accommodation of his choice” and stating that plaintiff’s dissatisfaction with accommodation does not make accommodation unreasonable). An accommodation that is unlikely to enable the employee to perform the essential functions of the position is neither reasonable nor required. Evans v. Fed. Express Corp., 133 F.3d 137 (1st Cir. 1998) (summary judgment for the defendant because the plaintiff’s request to enter a residential drug treatment program for his alcoholism was unlikely to succeed as he had previously entered such a program without success); Marzano v. Universal Studio, Inc., No. 02-10449-GAO, 2003 WL 21696213 (D. Mass. 2003) (summary judgment granted where employee with obsessivecompulsive disorder (OCD) could not suggest any accommodation that would enable him to perform the essential functions of his mailroom job); Leach v. Comm’r of Mass. Rehab. Comm’n, 63 Mass. App. Ct. 563 (2005) (employee could not demonstrate that she was capable of performing the essential functions of her position even with an accommodation); Hyppolite v. Fernald State Sch., 18 Mass. L. Rptr. 402 (Super. Ct. 2004) (summary judgment granted when the plaintiff, who had torn a tendon in her rotator cuff, failed to demonstrate that there was any accommodation that would have enabled her to lift patients, which was an essential function of her job); DeCaro v. Hasbro, Inc., 580 F.3d 55 (1st Cir. 2009) (because jury ended its deliberations once it determined that plaintiff was not able to perform essential functions of position, with or without an accommodation, jury never had occasion to reach logically subsequent question of employer’s duty to accommodate). The reasonable accommodation requirement does not obligate an employer to “reallocate certain job responsibilities to other employees, or to waive or excuse [the disabled employee’s] inability to perform physical tasks formerly required of his position” for purposes of determining accidental disability retirement benefits. Foresta v. Contributory Ret. Appeal Bd., 453 Mass. 669, 679 (2009). Types of accommodation that, depending upon the circumstances, may be considered reasonable, include, but are not limited to, the following: • making job facilities accessible to and equally usable by a handicapped person; • modifying work schedules; • modifying when and how an essential function is performed; • obtaining or modifying adaptive job equipment or devices; MCLE, Inc. | 2nd Edition 2020

4–25

§ 4.2

Employment Discrimination in Massachusetts

• reassigning nonessential job functions; • modifying methods of supervision or evaluation; • modifying tests, examinations, selection devices, and/or the manner in which the same are administered; • permitting performance of job functions at alternative locations; • allowing time off for medical reasons (note Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998), which said that a temporary leave of absence may be a reasonable accommodation); and • reassignment or transfer to a vacant position (usually only where it involves a change in work site or location within the same job category). Both the courts and the EEOC Enforcement Guidance make clear that the duty to provide a reasonable accommodation is an ongoing one. The First Circuit issued two decisions in 1998 that held that the duty to provide a reasonable accommodation is a continuing one and not exhausted by one effort. Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998); Ralph v. Lucent Tech., 135 F.3d 166 (1st Cir. 1998). Criado held that granting an employee a one-month leave of absence did not absolve the employer of its duty to accommodate, and its refusal to extend the employee’s leave of absence violated that duty. Ralph involved an employee who, after taking fifty-two weeks of leave, attempted to return to work and was refused by the employer. The court rejected the employer’s argument that it had reasonably accommodated the plaintiff by giving him fifty-two weeks of leave, and granted temporary injunctive relief and ordered the plaintiff returned to work. Both the federal and state courts in Massachusetts have ruled that an employer need not provide an indefinite leave of absence as a reasonable accommodation. Watkins v. J&S Oil Co., 164 F.3d 55 (1st Cir. 1998); Singleton v. Sinclair Broad. Grp., Inc., 660 F. Supp. 2d 136, 150 (D. Mass. 2009) (providing for an open-ended or indefinite leave of absence is not a reasonable accommodation under Chapter 151B); Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443 (2002). Note that the EEOC Enforcement Guidance specifies that, when an employer determines that holding the position constitutes an undue hardship, it must consider whether it has a vacant equivalent position for which the employee is qualified and to which the employee can be reassigned at the expiration of their leave.

Reassignment There has been a good deal of litigation over the extent of an employer’s duty to reassign a handicapped employee to a vacant position. In this area, there appears to be a difference between federal and state law. See Andrews v. MBTA, 872 F. Supp. 2d 108, 114 (D. Mass. 2012) (“The ADA, thus, unlike Mass. Gen. Laws 151B, may consider failure to reassign a qualified individual to a vacant position as a form of discrimination.”). Under the ADA, reassignment should be considered as a potential accommodation. Lolos v. Solutia, Inc., 193 F. Supp. 2d 364 (D. Mass. 2002); 29 C.F.R. § 1630.2(o)(2)(ii). The Supreme Judicial Court, however, stated that an employer has 4–26

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

no duty to reassign the employee to a vacant position. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443 (2002); Godfrey v. Globe Newspaper Co., 457 Mass. 113, 124–25 (2010) (assignment to an unrelated position is not a reasonable accommodation); see also St. Laurent v. United Parcel Serv. Inc., 416 F. Supp. 2d 212 (D. Mass. 2006) (UPS had no obligation to transfer a package car driver to a feeder driver position). But see Johansson v. MCAD, 69 Mass. App. Ct. 1113, 2007 WL 2142069 (2007) (employer cannot rely on Russell’s holding that there is no obligation to transfer unless the interactive process has run its course and no reasonable accommodation is possible). Both the federal and state courts in Massachusetts agree that the employer need not create a new position as a reasonable accommodation. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 454 (and federal cases cited therein): see Godfrey v. Globe Newspaper Co., 457 Mass. at 124–25 (Chapter 151B requires an employer to create a new position when an employee is not capable of performing duties of his former position); Cedrone v. Am. Express One Travel Servs., Inc., 18 Mass. L. Rptr. 279 (Super. Ct. 2004) (noting that it is unclear under Massachusetts law whether a reduction in work hours for an indefinite period of time constitutes a new position). In Feliciano v. Rhode Island, 160 F.3d 780 (1st Cir. 1998), the court recognized that reassignment does constitute a reasonable accommodation under the ADA but stressed that the plaintiff had failed in her burden to prove that she actually sought a vacant position that she was able to perform. The EEOC Enforcement Guidance, which gives considerable attention to the issue of reassignment, adopts a somewhat different view, and specifies that, because the employer is in the best position to know what jobs are vacant or will become vacant, it has the obligation to determine the employee’s qualifications and inform the employee about vacant positions for which they may be eligible.

(c)

Interaction Between Employer and Employee

The MCAD Guidelines provide that the employer need only provide reasonable accommodation to the known handicaps of the employee; the employer does not have to provide reasonable accommodation where it has no knowledge or reason to know of the employee’s need for an accommodation. Unless a handicap and the need for an accommodation are known to the employer, it is the responsibility of the employee to inform the employer that an accommodation is needed. See Johansson v. Mass. Dep’t of Corr., 28 Mass. L. Rptr. 191 (Super. Ct. 2012) (employer has no duty to engage in interactive process where employee failed to request a reasonable accommodation and all information provided to employer indicated she was totally disabled and incapable of returning to work). If a person with a handicap requests but cannot suggest an appropriate accommodation, the employer and the employee should work together to identify one. The employer may direct the employee to provide reasonable documentation from a health-care provider of the existence of a handicap and the need for reasonable accommodation. MCAD Guidelines § II.C. The ADAAA specifically states that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations. ADAA § 2(b)(5); see 29 C.F.R. pt. 1630, app. Accordingly, the MCLE, Inc. | 2nd Edition 2020

4–27

§ 4.2

Employment Discrimination in Massachusetts

interactive process is important. The First Circuit has recognized that the ADA’s implementing regulations state that it may be necessary for an employer to initiate a dialogue with the employee to determine an appropriate accommodation. Kvorjak v. Maine, 259 F.3d 48, 52 (1st Cir. 2001) (citing 29 C.F.R. § 1630.2(o)(3)). Noting that this regulation imposes varying levels of obligation, the court held that an employer’s liability for failing to engage in this process depends on a finding that “had a good faith interactive process occurred, the parties could have found a reasonable accommodation that would enable the disabled person to perform the job’s essential functions.” Kvorjak v. Maine, 259 F.3d at 52 (citing 29 C.F.R. § 1630.2(o)(3)). The court stated that it preferred to consider challenges to the interactive process on a case-bycase basis. See also Phelps v. Optima Health, Inc., 251 F.3d 21, 27 (1st Cir. 2001) (stating that there may be situations where the employer’s failure to initiate an informal interactive process would constitute a failure to provide reasonable accommodation in violation of the ADA and noting that both parties have an obligation to engage in this process). Thus, the First Circuit has held that, where no reasonable trier of fact could have found that the employee was capable of performing the job, with or without reasonable accommodation, the employer was not required to engage in the interactive process. Sullivan v. Raytheon Co., 262 F.3d 41, 48 (1st Cir. 2001). In cases arising prior to the ADA amendments and revised federal regulations, the First Circuit held that the plaintiff bears the “burden to proffer accommodations that were reasonable under the circumstances,” Jones v. Walgreen Co., 679 F.3d 9, 19 n.6 (1st Cir. 2012). This holding, however, is not supported by the revised regulations, which indicate that it is the covered entity’s obligation to initiate an informal process in order to determine the extent of the employee’s limitations and possible reasonable accommodations to overcome those limitations. 29 C.F.R. § 1630.2(o)(3). The best starting point for analyzing what triggers the obligation to provide reasonable accommodation is the MCAD Guidelines. “An employer is obligated to provide reasonable accommodation only to the known handicaps of an applicant or employee. An employer need not offer or provide reasonable accommodation where it has no knowledge or reason to know of the individual’s need for an accommodation.” MCAD Guidelines § II.C. As the Supreme Judicial Court stated in Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632, 649 (2004): “[A]n employer is not required to accommodate a need that it does not know exists.” In that case, the plaintiff satisfied his obligation by submitting letters to the employer describing his vision limitations, explaining how this impacted his ability to perform his job, and asking for accommodation. The court provided a clear blueprint for employees to follow: [F]or an employee’s actions to constitute a request for accommodation, [the employee] must make the employer aware that the employee is entitled to and needs accommodation. Specifically, the request must let the employer know that the employee is a qualified handicapped person, and that the employee is currently unable either to perform the essential functions of his [or her] job or to enjoy equal terms, conditions, and benefits of employment. 4–28

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. at 649 n.21. This interpretation followed the earlier ruling in Russell v. Cooley Dickinson Hospital, Inc., 437 Mass. 443 (2002). It is imperative for the plaintiff to actively promote and engage in the interactive process with the employer and to develop sufficient evidence that the plaintiff is capable of performing their job with reasonable accommodation. See EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127 (1st Cir. 2014) (employee’s failure to cooperate in interactive process with employer precluded employer’s liability for failing to provide reasonable accommodations); Freadman v. Metro. Prop. & Cas. Ins., 484 F.3d 91 (1st Cir. 2007) (employer needs to be put on notice of a sufficiently direct and specific request for the desired accommodation); see also Culhane v. Baystate Med. Ctr., Inc., 69 Mass. App. Ct. 1106, 2007 WL 1630093, at *7 (2007) (no failure to accommodate where the accommodations the plaintiff asserts should have been provided were never requested or even suggested by the plaintiff) (quotation marks and citation omitted); see also Kinch v. Quest Diagnostics, Inc., 652 F. Supp. 2d 131, 135 (D. Mass. 2009) (summary judgment granted where plaintiff presented no evidence that his need for an accommodation was “obvious”); Gauthier v. Sunhealth Specialty Servs., Inc., 555 F. Supp. 2d 227 (D. Mass. 2008) (even though plaintiff was handicapped, there was no evidence that she ever communicated her condition or her requested accommodation to her employer); Moreau v. Mass. Mut. Life Ins. Co., 2008 WL 5082901 (Mass. App. Ct. 2008) (a plaintiff must present sufficient evidence to show that they are a qualified handicapped person before being entitled to the interactive process). The Appeals Court decision in Leach v. Commissioner of Massachusetts Rehabilitation Commission, 63 Mass. App. Ct. 563 (2005), contains an extensive discussion of the interactive process. The employee, who suffered from repetitive stress injury (RSI) and hearing difficulties, argued that the employer should have anticipated that she would develop an RSI as a result of the manner in which she was using workplace devices to accommodate her hearing problem. The court rejected this argument, and its resolution of the case was undoubtedly influenced by the many different types of accommodations the employer had provided to the plaintiff. The court referenced Section II.C of the MCAD Guidelines and said that it was generally the responsibility of the employee to inform the employer that an accommodation was needed. Leach v. Comm’r of Mass. Rehab. Comm’n, 63 Mass. App. Ct. at 567. Exceptions will occur where it is obvious that an accommodation is required or where the employee’s condition renders the employee incapable of making a request, but these cases will be rare. The MCAD holds that an employer has an obligation to participate in the interactive process even if it believes the requested accommodation is futile. MCAD v. MBTA, No. No. 97-BEM-3223, 2003 WL 23018197 (MCAD Dec. 16, 2003) (Full Commission); see also Sch. Comm. of Norton v. MCAD, 63 Mass. App. Ct. 839 (2005) (“the refusal of an employer to participate in [the] process . . . is a violation of our discrimination laws”) (citing Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. at 644).

MCLE, Inc. | 2nd Edition 2020

4–29

§ 4.2

(d)

Employment Discrimination in Massachusetts

Judicial Estoppel

During the 1990s, there was a seriously contested issue over the effect of a plaintiff’s application for disability insurance benefits on a claim for handicap discrimination. Many federal courts, beginning with the First Circuit in August v. Offices Unlimited, Inc., 981 F.2d 576 (1st Cir. 1992), ruled that a plaintiff who represents to the insurance carrier that they are totally disabled is “judicially estopped” from proceeding with a handicap discrimination case on the theory that, if one is totally disabled, one cannot perform the essential functions of the job. What this analysis overlooked was that the carrier was not interested in whether the employee could have performed the job if they had been given reasonable accommodation; the only issue of interest to the carrier was whether the applicant was qualified for disability insurance. The First Circuit eventually abandoned this rigid position, which had resulted in some meritorious cases being dismissed. See D’Aprile v. Fleet Servs. Corp., 92 F.3d 1 (1st Cir. 1996) (distinguishing August v. Offices Unlimited, Inc., 981 F.2d 576 (1st Cir. 1992), and holding that genuine fact issue existed as to disability discrimination claim despite plaintiff’s prior application for disability insurance benefits). With the federal law in this state of flux, the Supreme Judicial Court ruled in Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), that merely applying for disability insurance and asserting that one was totally disabled did not preclude a handicap discrimination case if the plaintiff could prove that they could perform the essential functions of the job with reasonable accommodation. See also Tompson v. Dep’t of Mental Health, 76 Mass. App. Ct. 586, 594 (2010) (admission of an inability to work, which is an inherent part of an application for SSDI benefits, is some evidence of inability to work even with a reasonable accommodation but does not automatically estop a claimant from showing that they can work despite their handicap); Everett Indus., Inc. v. MCAD, 49 Mass. App. Ct. 1116 (2000) (plaintiff’s application for and receipt of disability benefits did not preclude her from stating a claim under Chapter 151B); Griggs v. Hardwick Knitted Fabrics, Inc., 11 Mass. L. Rptr. 557 (Super. Ct. 2000) (plaintiff’s application for disability benefits did not preclude handicap discrimination claim); Pyrcz v. Bradford Coll., 10 Mass. L. Rptr. 419 (Super. Ct. 1999) (noting that “the mere filing of an application for benefits does not automatically estop plaintiff from pursuing a claim of handicap discrimination,” but reasoning that the plaintiff had failed to produce any evidence to overcome the contradiction between the two claims and “bring himself within the line of cases that have reconciled the handicap discrimination claim with the disability benefits application”). In 1999, the U.S. Supreme Court resolved a conflict among the Circuit Courts regarding the effect of a plaintiff’s application for disability benefits on their ADA claim. In Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), the Court determined that the plaintiff’s receipt of disability benefits did not automatically bar an ADA claim. Noting the apparent contradiction between the two claims, however, the Court stated that, in order to survive summary judgment, the plaintiff must proffer a sufficient explanation why the contention made when applying for SSDI benefits is not inconsistent with the ADA claim that the plaintiff can perform the essential functions of their position. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. at 806. 4–30

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

In Cleveland, the plaintiff, who had suffered a stroke and lost her job, defeated summary judgment by explaining that she had asked for a reasonable accommodation, which had been denied. Analysis of one’s disability for purposes of SSDI awards does not take into account whether the employee can perform their job with reasonable accommodation. Therefore, one who is disabled for purposes of Social Security can be a qualified handicapped individual if they can perform their job with reasonable accommodation. See also Sullivan v. Raytheon Co., 262 F.3d 41, 47 (1st Cir. 2001) (plaintiff’s claim of total disability on application for Social Security Disability Insurance did not preclude him from arguing that he was able to perform his job with reasonable accommodation, which he did unsuccessfully). See also DeCaro v. Hasbro, Inc., 580 F.3d 55, 62 (1st Cir. 2009), where the First Circuit held that the lower court’s jury instructions comported with the Cleveland court’s holding. In Decaro the jury was instructed as follows: • that the mere fact that the plaintiff received SSDI benefits was not in itself necessarily fatal to his claim; • that it was to consider whether the statements made by the plaintiff in applying for SSDI benefits constituted “admissions” as to his inability to perform the essential function of his job; and • that it was to consider all the facts and circumstances and to keep in mind that the standard for determining eligibility for SSDI benefits is different from the standard for determining whether the plaintiff was able, with or without a reasonable accommodation, to perform the essential functions of his job.

§ 4.2.5

Can the Employer Demonstrate an Undue Hardship?

The MCAD Guidelines, in Section II.D, set forth the following factors to be considered in determining whether the employer can demonstrate that the requested accommodation would pose an undue hardship to its business: • the overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget or available assets; • the type of the employer’s operation, including the composition and structure of the employer’s workforce; and • the nature and costs of the accommodation needed. The employer has the burden of proving undue hardship. G.L. c. 151B, § 4(16). But see Finlan v. Verizon New Eng., Inc., No. 024616G, 2006 WL 2423808 (Mass. Super. Ct. July 31, 2006) (the burden to prove undue hardship is invoked only when the employer fails to provide a reasonable accommodation; it is not invoked if the employer fails to provide the employee with their specifically requested accommodation but offers another type of accommodation with which the employee could fulfill the essential functions of their job). Relatively few decisions have been issued in Massachusetts interpreting undue hardship, apparently because this defense is rarely invoked. See Beane v. Mass. Container Corp., 18 Mass. L. Rptr. 388 (Super. Ct. 2004) (plaintiff’s request for additional time MCLE, Inc. | 2nd Edition 2020

4–31

§ 4.2

Employment Discrimination in Massachusetts

off would require other employees to fill in for him and result in an undue hardship for the employer). But see Cedrone v. Am. Express One Travel Servs., Inc., 18 Mass. L. Rptr. 279 (Super. Ct. 2004) (summary judgment was denied where disputed issues of fact existed regarding whether the plaintiff’s request for a reduced schedule would cause an undue hardship); Heraty v. Atlas Oil Co., 15 M.D.L.R. 1143, 1164 (1993) (single commissioner) (employer’s concern that customers might be frightened by respirator plaintiff sought to wear when cleaning home oil burners because it would portray oil heat as dangerous and dirty not an undue hardship), aff’d, 16 M.D.L.R. 1337 (1994). The issues surrounding undue hardship have been litigated under the ADA. See Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 139 (2d Cir. 1995) (employer not required to show that it will be driven to the brink of bankruptcy); Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 543 (7th Cir. 1995) (employer can prevail on excessive cost defense by showing that, “upon more careful consideration, the costs are excessive in relation to either the benefits of the accommodation or to the employer’s financial survival or health”). There are also federal cases dealing with undue hardship in terms of disruption to the employer’s business. See, e.g., Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993) (employee’s request for overseas assignment was undue hardship due to thin staffing of the business); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) (disability resulting in either chronic, long-term absenteeism or unpredictable absenteeism might be undue hardship). In a recent decision considering the effect of the requested accommodation on coworkers, summary judgment was granted to the employer. A nurse’s suggested accommodation for her eye condition was to excuse her from heavy lifting or have someone standing by her side to assist with this task. This was found to impose an undue hardship on the hospital because it would require a shifting of responsibility for an essential function to the plaintiff’s coworkers, which impacted their ability to do their own jobs. Bryant v. Caritas Norwood Hosp., 345 F. Supp. 2d 155 (D. Mass. 2004).

(a)

Other Defenses

Where an employer rejects an employee based on specific physical or mental qualifications, such as the ability to lift more than forty pounds, the burden is on the employer to prove that the requirement is functionally related to the specific job and is consistent with the safe and lawful performance of the job. G.L. c. 151B, § 4(16); MCAD Guidelines § IX.B.2. An employer may justifiably decide to terminate, or not hire, a handicapped person because there is a risk of future injury to that person or to others. Specifically, the employer must prove there is a reasonable probability of substantial harm to the employee or others. The employer must make an individualized factual inquiry and gather substantial information regarding the employee’s work and medical history, and may not make a determination based upon a subjective evaluation or speculation as to risk, or, except in cases of a very apparent nature, merely on medical reports. An increased risk of injury, without more, is insufficient to establish this defense.

4–32

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

MCAD Guidelines § IX.B.3; see Calef v. Gillette Co., 322 F.3d 75 (1st Cir. 2003) (permissible to terminate employee who threatened coworkers).

§ 4.2.6 (a)

What Is the Burden of Proof in a Handicap Discrimination Case? Introduction

Because the handicap discrimination law raises some issues that are different from those involved in proving “traditional” race, sex, and age discrimination, the burden of proof is more complicated. In addition to forbidding a termination based on classic prejudice of the sort often found in a race case, the handicap discrimination law requires the employer to provide reasonable accommodation. Furthermore, there will be times when both parties agree that the employer terminated the employee because of the employee’s handicap, and the case will turn on whether the employee could perform the essential functions of the job. Fortunately, the MCAD Guidelines provide a useful analysis of these issues and should be consulted to help understand the analytical framework surrounding the burden-of-proof issues in a handicap case.

(b)

When the Employer’s Motive Is Not an Issue

The MCAD Guidelines provide the example of a physical therapist working in the rehabilitation unit of a hospital who injures his back and cannot perform repeated stooping or heavy lifting. The hospital terminates the employee because it believes he can no longer perform the essential functions of the job. Both parties agree that the back injury motivated the termination decision; the case will focus on whether repeated stooping or heavy lifting is an essential function of the job and whether the hospital could have provided reasonable accommodation. In cases such as this, the following would be the burden of proof according to the MCAD Guidelines: • The plaintiff must prove a prima facie case—i.e., that the plaintiff was a qualified handicapped person who was terminated because of that handicap. • The defendant then must produce credible evidence that the plaintiff was not a qualified handicapped person or that their rejection was for reasons other than the handicap. • Assuming that the defendant presents evidence that the plaintiff was not a qualified handicapped person, then the plaintiff must prove that the defendant’s reasons for termination are based on misconceptions or unfounded factual assertions, and that the reasons articulated for the termination encompass unjustified consideration of the handicap.

(c)

When the Employer’s Motive Is an Issue

Assume that an employer claims that an employee was fired for stealing, and the employee asserts that he was fired because of his handicap. Until recently, the employee would proceed to prove their case by direct or by circumstantial evidence using the classic burden-shifting framework patterned on McDonnell Douglas Corp. MCLE, Inc. | 2nd Edition 2020

4–33

§ 4.2

Employment Discrimination in Massachusetts

v. Green, 411 U.S. 792 (1973), to prove that the employee would not have been terminated if it were not for the handicap. The plaintiff must first prove a prima facie case. This can vary, depending on the circumstances, but the MCAD Guidelines offer the following example: the plaintiff provides credible evidence • that they are handicapped within the meaning of the statute; • that they are qualified to perform the essential functions of the position with or without reasonable accommodation; • that they were terminated or subjected to other adverse action by the employer; and • that their position has remained open and the employer has sought to fill it. See Dartt v. Browning-Ferris Indus., Inc., 427 Mass. 1, 2 (1998). The defendant then articulates a legitimate nondiscriminatory reason for the termination and provides credible evidence that the reason advanced is the real reason. The plaintiff must then demonstrate that the articulated reason was not the real reason for the discharge. See Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. 437, 442–43 (1995). For example, in Reardon v. Massachusetts General Hospital, 2012 WL 948425 (D. Mass. Mar. 19, 2012), the court denied the employer’s motion for summary judgment on the plaintiff’s claim of disability discrimination under Chapter 151B and the ADA, finding that, where the plaintiff’s supervisor reacted negatively when the plaintiff took time off because of her health and issued the plaintiff a warning for not calling in when she was hospitalized, and where her request for a medical leave of absence came three weeks prior to her termination, a jury could conclude that the real reason for the plaintiff’s termination was her disability. Note that the Supreme Judicial Court cautioned trial courts in Massachusetts to steer clear of the “burden-shifting” type of jury charge, which had always been given, to avoid discussing “pretext,” and to focus instead on whether the employer was acting with a discriminatory intent, motive, or state of mind, and whether discrimination was the determinative cause of the termination. Lipchitz v. Raytheon Co., 434 Mass. 493 (2001). Practitioners are urged to read Lipchitz carefully, because it provides guidance to the Superior Court concerning the proper jury charge in a discrimination case.

(d)

Clarification of the Plaintiff’s Burden

In Dartt v. Browning-Ferris Industries, Inc., 427 Mass. 1 (1998), the Supreme Judicial Court clarified the plaintiff’s burden in establishing a prima facie case of handicap discrimination. At the prima facie stage, in addition to proving that the plaintiff is handicapped and qualified to perform the essential functions of the position, the plaintiff must demonstrate that the employer terminated the plaintiff or took adverse action against them. The Dartt court clarified that the plaintiff need not show that the employer terminated her solely because of her handicap, reasoning that this would impose a stricter burden at the first stage than is required at the third stage of proof. 4–34

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

The First Circuit addressed this issue in a decision where it upheld an award of summary judgment for the defendant, reasoning that, although the plaintiff had demonstrated that he was a qualified handicapped individual, he had failed to provide sufficient evidence that the defendant discharged him in whole or part because of his disability. The evidence showed that the defendant terminated the plaintiff, a truck driver, along with two other employees, for falsifying his driving-time log books. Champagne v. Servistar Corp., 138 F.3d 7 (1st Cir. 1998). Under G.L. c. 152, § 75B, a plaintiff can establish that they are a qualified handicapped person if the plaintiff can present evidence that they sustained a work-related injury and are capable of performing the essential functions of their job. Adams v. Marine USA, Inc., 2001 WL 170675 (Mass. Super. Ct. 2001). Note, however, that this section of the workers’ compensation statute was narrowly interpreted in Courtois v. Legal Seafoods, Inc., 17 Mass. L. Rptr. 296 (Super. Ct. 2004). Addressing the burden at the pretext stage, the Massachusetts Appeals Court reversed a summary judgment award because the plaintiff presented sufficient proof that the defendant’s articulated nondiscriminatory reason for his discharge, poor performance, was a pretext. The plaintiff submitted several documents and deposition testimony that described his performance favorably, thereby calling into doubt the employer’s articulated reason. Wooster v. Abdow Corp., 46 Mass. App. Ct. 665 (1999). Note that under Lipchitz v. Raytheon Co., 434 Mass. at 493, discussed above, a pretext analysis may still be relevant at the summary judgment stage, but not at trial. The MCAD Guidelines remind the bar that the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), should not be considered the exclusive means of proving discrimination and that plaintiffs should offer the full range of direct and circumstantial evidence available, such as • evidence of workplace harassment based on the handicap; • comments indicating that the handicap was perceived by the employer as an unwarranted expense or as a negative attribute; • a record by the employer of treating handicapped persons worse than similarly situated nonhandicapped employees; or • a practice by the employer of asking illegal preemployment inquiries relating to handicap. See also Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 105 (1st Cir. 2005) (“In assessing pretext, the court must look at the total package of proof offered by the plaintiff.”) (citing Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 174 (1st Cir. 2003)). Similarly, according to the MCAD Guidelines, the employer is free to present evidence reflecting the absence of discrimination, including its practice of treating handicapped persons fairly, its good record of hiring obviously handicapped persons, and its good record of accommodating handicapped employees.

MCLE, Inc. | 2nd Edition 2020

4–35

§ 4.2

(e)

Employment Discrimination in Massachusetts

Failure to Provide Reasonable Accommodation

In cases in which a plaintiff asserts that the employer failed to provide reasonable accommodation, the MCAD Guidelines set forth the following burden of proof: • The plaintiff must prove that they were a qualified handicapped person. • The plaintiff must prove that they needed a reasonable accommodation. • The plaintiff must prove that the employer was aware of the plaintiff’s handicap and was aware that the plaintiff needed reasonable accommodation to perform their job. • The plaintiff must prove that the employer was aware of a means to reasonably accommodate the handicap or that the employer breached a duty, if any, to undertake reasonable investigation of a means to accommodate the handicap. • The plaintiff must prove that the employer failed to provide the reasonable accommodation. • The employer must then prove that providing the reasonable accommodation would pose an undue hardship. See also Checklist 4.1 on the plaintiff’s burden of proof. There are federal decisions stating that the plaintiff is not required to demonstrate discriminatory animus or intent in a claim for failure to provide reasonable accommodation. In Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999), the First Circuit held that “an employer who knows of a disability yet fails to make reasonable accommodations violates the statute, no matter what its intent, unless it can show that the proposed accommodations would create undue hardship for the business.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d at 264; see also Marcano-Rivera v. Pueblo Int’l, Inc., 232 F.3d 245 (1st Cir. 2000). The First Circuit has also reviewed the plaintiff’s burden in proving that the employer failed to accommodate the plaintiff’s disability. In Reed v. LePage Bakeries, Inc., 244 F.3d 254 (1st Cir. 2001), an employee suffered from bipolar disorder, which caused her to lose her temper when confronted with stressful situations or confrontations. Reed v. LePage Bakeries, Inc., 244 F.3d at 255. She was terminated for insubordination and threatening her supervisor, after the employer had advised her to avoid and walk away from stressful situations and confrontations with coworkers. Reed v. LePage Bakeries, Inc., 244 F.3d at 256. In clarifying the plaintiff’s burden, the court held that she had to demonstrate that the employer could provide a reasonable accommodation of her disability that would enable her to perform her job and that the requested accommodation is reasonable. This means that the plaintiff must consider the “difficulty or expense imposed on the one doing the accommodating.” Reed v. LePage Bakeries, Inc., 244 F.3d at 259. The First Circuit upheld the District Court’s grant of summary judgment for the defendant because the plaintiff had failed to prove that she effectively notified her employer of her illness and requested the accommodation in question. Reed v. LePage Bakeries, Inc., 244 F.3d at 255; see also Richardson v. Friendly Ice Cream Corp., 594 F.3d 69, 81 (1st Cir. 2010) (plaintiff 4–36

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

bears burden of proving that a proposed accommodation would enable her to perform essential functions of her job and that, at least on face of things, accommodation is feasible for employer under circumstances).

§ 4.2.7 (a)

Types of Defendants Individual Liability

The First Circuit has held that there is no individual liability under the ADA. RomanOliveras v. P.R. Elec. Power Auth., 655 F.3d 43 (1st Cir. 2011); see also Orell v. UMass Mem’l Med. Ctr., Inc., 203 F. Supp. 2d 52, 64 (D. Mass. 2002) (and cases collected therein). Chapter 151B, unlike the ADA, does permit claims against individuals.

(b)

Public Entities

In Parker v. Universidad de Puerto Rico, 225 F.3d 1 (1st Cir. 2000), the court dealt for the first time with the obligations of a “public entity” toward disabled people under Title II of the ADA. The plaintiff, confined to a wheelchair due to a stroke, fell and was injured when he attended a ceremony at the university’s botanical gardens with his family. Parker v. Universidad de P.R., 255 F.3d at 3. At trial, the District Court granted the defendant a directed verdict. The First Circuit held that whether the path that the plaintiff used was intended for visitor use and whether the path caused the accident and denied the plaintiff safe access to the garden were issues for the jury. In order to state a prima facie case under Title II, the plaintiff must establish • that they are a qualified individual with a disability; • that they were excluded from or denied the benefits of a public entity’s services, programs, or activities; and • that the exclusion, discrimination, or denial of benefits was due to the plaintiff’s disability. Parker v. Universidad de P.R., 255 F.3d at 5. The court determined that the plaintiff had stated a prima facie case. Although noting that public entities are not required to make structural changes in existing facilities (as are places of public accommodation under Title III), the court determined that the university was obligated to ensure that each service, program, or activity at the botanical gardens was accessible to individuals with disabilities. Parker v. Universidad de P.R., 255 F.3d at 6. The university had a duty to make the gardens readily accessible to someone in a wheelchair by at least one route. Parker v. Universidad de P.R., 255 F.3d at 7. The court also noted that the defendant failed to raise two possible defenses at trial and on appeal: that compensatory damages are not available under Title II and Eleventh Amendment sovereign immunity. Parker v. Universidad de P.R., 255 F.3d at 3. MCLE, Inc. | 2nd Edition 2020

4–37

§ 4.2

(c)

Employment Discrimination in Massachusetts

Miscellaneous

Disability Insurance Plans and Mental Disabilities There has been a general refusal among the circuits to find discrimination when employer-sponsored disability plans offer different levels of benefits depending on whether the applicant’s disability is physical or mental. In Wilson v. Globe Specialty Products, Inc., 117 F. Supp. 2d 92 (D. Mass. 2000), the plaintiff, who suffered from severe depression, sued the defendant on the grounds that its disability insurance plan unlawfully discriminated between physical and mental disabilities regarding the length of time benefits were available. Wilson v. Globe Specialty Prods., Inc., 117 F. Supp. 2d at 95. The plan provided physically disabled participants with benefits for the length of the disability or until retirement age. Wilson v. Globe Specialty Prods., Inc., 117 F. Supp. 2d at 93. Mentally disabled participants were entitled to receive only twenty-four months of benefits. The District Court concluded, based on the decisions of eight Circuit Courts on the issue, case law interpreting the Rehabilitation Act, and post-ADA legislative action, that the ADA does not require equal benefits for different disabilities. Wilson v. Globe Specialty Prods., Inc., 117 F. Supp. 2d at 97. So long as every employee is offered the same plan regardless of their status as disabled, the plan does not discriminate by offering different coverage for various disabilities. Wilson v. Globe Specialty Prods., Inc., 117 F. Supp. 2d at 97 (quoting Ford v. Schering-Plough Corp., 145 F.3d 601, 608 (3d Cir. 1998)) (citing supporting case law at 95–96). Two more-recent federal District Court decisions in Massachusetts have taken a contrary position, finding that the ADA does not permit discrimination among different classes of handicapped persons. See Fletcher v. Tufts Univ., 367 F. Supp. 2d 99 (D. Mass. 2005); Iwata v. Intel Corp., 349 F. Supp. 2d 135 (D. Mass. 2004).

Company Seniority Rules The U.S. Supreme Court has decided that an employer’s showing that a requested accommodation conflicts with seniority rules is ordinarily sufficient to show that the accommodation is not reasonable under the ADA. U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). The employee is free, however, to present evidence of special circumstances that would render an exception to the seniority rules reasonable under the circumstances. U.S. Airways, Inc. v. Barnett, 535 U.S. at 394.

Harassment on Basis of Disability To succeed on a claim of disability harassment, the plaintiff must prove • that they were disabled, • that they were subjected to a hostile work environment, and • that the hostility was directed at the plaintiff because of their disability. In Quiles-Quiles v. Henderson, 439 F.3d 1 (1st Cir. 2006), the court found disability harassment where there was testimony that the plaintiff was subject to such constant ridicule about his mental impairment that it required him to be hospitalized and eventu4–38

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

ally to withdraw from the workforce. The evidence was sufficient for a reasonable jury to find a hostile work environment.

Retaliation A plaintiff need not succeed in their disability discrimination claim to prove retaliation. Wright v. CompUSA, Inc., 352 F.3d 472, 477–78 (1st Cir. 2003). Requesting reasonable accommodation is protected activity, Valle-Arce v. P.R. Ports Auth., 651 F.3d 190 (1st Cir. 2011), as is reporting discriminatory actions—including harassment—taken against a disabled coworker. Surprise v. Innovation Grp., Inc., 925 F. Supp. 2d 134 (D. Mass. 2013).

Association In Flagg v. AliMed, Inc., 466 Mass. 23 (2013), the Supreme Judicial Court recognized for the first time that G.L. c. 151B prohibits “associational discrimination.” As the court explained, the term “refers to a claim that a plaintiff, although not a member of a protected class himself or herself, is the victim of discriminatory animus directed toward a third person who is a member of the protected class and with whom the plaintiff associates.” In Flagg, the employee alleged that his employment had been terminated because his wife was in need of costly medical treatment. The court held that this situation subjected the employee to “the type of prejudice, stereotypes, or unfounded fear relating to handicapped individuals that c. 151B, § 4(16), seeks to protect against” and, consequently, that the employee could bring his claim under G.L. c. 151B. The ADA also recognizes “associational discrimination.” Under federal law, it is illegal for a covered entity to discriminate against an individual “because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association.” 29 C.F.R. § 1630.8.

§ 4.2.8

Damages

Handicap discrimination plaintiffs are entitled to the same kind of damages as other plaintiffs suing for discrimination under G.L. c. 151B, including the following: • Back pay—i.e., the amount of salary and benefits the plaintiff would have earned from the date of termination through the date of the verdict or judgment. Conway v. Electro-Switch Corp., 402 Mass. 385 (1988). In Connolly v. Suffolk County Sheriff’s Department, 62 Mass. App. Ct. 187 (2004), the plaintiffs could not recover for loss of overtime pay because this was speculative. The First Circuit addressed the issue of damages in Quint v. A.E. Stanley Manufacturing Co., 172 F.3d 1 (1st Cir. 1999). Agreeing with the District Court’s reduction in the plaintiff’s back pay award from $125,580 to $45,917 for failure to mitigate her damages, the court declared that, when the plaintiff makes no effort to secure alternate employment, the defendant need not prove that substantially equivalent jobs were available in the relevant geographic area.

MCLE, Inc. | 2nd Edition 2020

4–39

§ 4.2

Employment Discrimination in Massachusetts

• Front pay—i.e., the amount of salary and benefits the plaintiff would have earned from the date of the verdict or judgment into the future for as long as the plaintiff would have remained in the defendant’s employ. Conway v. Electro-Switch Corp., 402 Mass. 385 (1988). This sum must be reduced to its present value. McDonald v. Fed. Labs, Inc., 724 F.2d 243, 247 (1st Cir. 1984); Worden v. Consol. Rail Corp., 689 F. Supp. 35, 39 (D. Mass. 1988). Note that in Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13 (1997), the court ruled that an award of $600,000 for thirty years front pay was excessive, even after remittitur to $487,800, and lacked adequate support in the record. The Appeals Court ultimately upheld a front pay award of $270,000. Handrahan v. Red Roof Inns, Inc., 48 Mass. App. Ct. 901 (1999). • Emotional distress, which includes mental anguish, anger, embarrassment, humiliation, or any other unpleasant mental or emotional state that results from the defendant’s conduct. See Bournewood Hosp., Inc. v. MCAD, 371 Mass. 303, 315–17 (1976); Buckley Nursing Home, Inc. v. MCAD, 20 Mass. App. Ct. 172, 182 (1985). There is no requirement that the plaintiff must have sustained a physical injury or receive psychiatric consultation. Until the decision of the Supreme Judicial Court in Stonehill College v. MCAD, 441 Mass. 549 (2004), a finding of discrimination alone permitted the inference of emotional distress as a normal consequence of the employer’s actions. In Stonehill College, the court went out of its way to comment on the amount of emotional distress damages awarded by the MCAD. In doing so, the court set forth a number of governing principles: Emotional distress damage awards . . . should be fair and reasonable and proportionate to the distress suffered. . . . An award must rest on substantial evidence and its factual basis must be clear on the record. Some factors which should be considered include (1) the nature and character of the alleged harm; (2) the severity of the harm; (3) the length of time the complainant has suffered and reasonably expects to suffer; and (4) whether the complainant has attempted to mitigate the harm (e.g., by counseling or taking medication). . . . In addition, complainants must show a sufficient causal connection between the respondent’s unlawful act and the complainant’s emotional distress. Stonehill Coll. v. MCAD, 441 Mass. at 575–76. While some of these factors are not novel, the concept of mitigation is particularly troublesome because it potentially intrudes upon personal decisions an injured plaintiff must make concerning the manner in which they deal with emotional distress. Not everyone finds counseling helpful, and medication in the area of emotional distress can be problematical. Juries are able to assess emotional distress, and to provide checklists or factors to consider may invite further litigation over the various components identified by the court and the weight to be accorded them. Years ago, the MCAD issued some large emotional distress awards, but in recent years complainants seem not to be receiving huge emotional distress awards from the MCAD without any basis. Because 4–40

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

the amount of emotional distress damages can be difficult to predict and the subject is of great interest to the bar, it is useful to note some of the significant awards for emotional distress in Massachusetts, which include the following: – Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), in which the jury awarded $550,000 in emotional distress damages. The trial judge denied a motion for remittitur, but on appeal the award was held excessive. Subsequently, on remand the amount was reduced to $100,000. – Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13 (1997), in which the plaintiff was awarded $50,000 in emotional distress damages that was not challenged on appeal. – Chanson v. Westinghouse Corp., 17 M.D.L.R. 1293 (1995), in which the plaintiff was awarded $250,000 by the MCAD. The emotional distress damages award was affirmed in Westinghouse Corp. v. Chanson, 9 Mass. L. Rptr. 661 (Super. Ct. 1999). – Smith v. Bell Atlantic, 63 Mass. App. Ct. 702 (2005), in which the plaintiff was awarded $207,000 for emotional distress. – Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657 (1997), where the plaintiff was awarded $350,000 for emotional distress damages in an age discrimination case. – Tobin v. Liberty Mutual Insurance Co., 2007 WL 967860 (D. Mass. 2007), where the plaintiff was awarded $500,000 for emotional distress and the court declined to grant remittitur for those damages. – But see Gargano & Associates v. MCAD, 20 Mass. L. Rptr. 232 (Super. Ct. 2005), where the record evidence did not provide a sufficient basis for the amount awarded by the MCAD given the factors set out by the Supreme Judicial Court in Stonehill College, the amount of $50,000 was reduced to $10,000. • Punitive damages are appropriate where the defendant’s conduct warrants condemnation and deterrence. See Bain v. City of Springfield, 424 Mass. 758, 767 (1997). They are intended to punish the defendant for wrongdoing and deter future wrongdoing. Clifton v. MBTA, 62 Mass. App. Ct. 164, 179 (2004), further appellate review granted, 443 Mass. 1104 (Feb. 22, 2005). In Dartt v. Browning-Ferris Industries, Inc., 427 Mass. 1, 17 (1998), the court cited the Restatement (Second) of Torts § 908(2) (1979) standard that “[p]unitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” The factors to consider in determining the amount of punitive damages were discussed in Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), and include – the degree of reprehensibility of the defendant’s conduct, – the ratio of the punitive damages to the actual harm inflicted on the plaintiff, – a comparison of the punitive damages award with the civil or criminal penalties that could be imposed for comparable misconduct, MCLE, Inc. | 2nd Edition 2020

4–41

§ 4.2

Employment Discrimination in Massachusetts

– a reasonable relationship to the harm that is likely to occur from the defendant’s conduct in the future as well as to the harm that has actually occurred, – the financial position of the defendant, – the costs of litigation, and – the need to encourage plaintiffs to bring wrongdoers to trial. In Clifton v. MBTA, 62 Mass. App. Ct. 164 (2004), further appellate review granted, 443 Mass. 1104 (2005), the jury awarded punitive damages of $5 million to the plaintiff in a case of race discrimination. The trial court remitted the award to $500,000. In affirming the court’s decision, the Appeals Court noted State Farm Mutual Auto Insurance Co. v. Campbell, 538 U.S. 408 (2003), which stated that any ratio of punitive damages to compensatory damages exceeding a single digit probably would not pass muster under the due process clause. Although the award in Clifton exceeded the single-digit test, the Appeals Court ruled that “in the final analysis, whether the award is excessive will depend upon the factors enumerated in Labonte v. Hutchins & Wheeler, 424 Mass. at 826.” Clifton v. MBTA, 62 Mass. App. Ct. at 177. The Massachusetts Supreme Judicial Court eventually held that the MBTA was entitled to a jury instruction based upon the continuing violations standard as provided by Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001), and remanded the case for a new trial on compensatory and punitive damages. See Clifton v. MBTA, 445 Mass. 611 (2005). The case was eventually settled. Punitive damages, like damages for emotional distress, are difficult to predict, and it may be useful to reference awards in this area arising out of handicap discrimination cases: – Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), in which the jury awarded $2.5 million in punitive damages. Defendant’s motion for remittitur was denied by the trial judge. Following the opinion of the Supreme Judicial Court, the trial judge remitted the award to $900,000. – Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13 (1997), aff’d, 48 Mass. App. Ct. 901 (1999) (reducing front pay award) in which the jury awarded $1 million in punitive damages, which was reduced to $100,000 by the trial judge. – Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998), in which the jury in Puerto Rico awarded $250,000 in punitive damages and $200,000 in compensatory damages. Under the Civil Rights Act of 1991, the combined award was required to be reduced to $300,000, and the court held that amount was not excessive. – Dichner v. Liberty Travel, 141 F.3d 24 (1st Cir. 1998), in which the jury awarded $75,000 in punitive damages. The defendant’s challenge to the basis for a punitive damages award, rather than the amount itself, was rejected by the court. The decision reviewed recent Massachusetts case law on punitive damages, since there were claims under both the ADA and G.L. c. 151B. 4–42

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

– Sprague v. United Airlines, Inc., No. 97-12102, U.S. Dist. LEXIS 14519 (D. Mass. Aug. 7, 2002), in which the judge awarded $200,000 punitive damages, $100,000 for emotional distress, plus back pay and attorney fees where the employer refused to employ a hearing-impaired mechanic who was capable of performing the job with reasonable accommodation. – Blockel v. J.C. Penney Co., 337 F.3d 17, 28–29 (1st Cir. 2003), in which an award of $350,000 in punitive damages was held not excessive.

§ 4.2.9 (a)

Strategy Case Selection

The plaintiff’s strategy begins with case selection. While the matter of deciding which plaintiffs to represent and an appropriate fee arrangement is beyond the scope of this chapter, there are some issues particularly applicable to handicap discrimination cases that should be considered.

Medical Records Almost every handicap discrimination case will involve medical issues. It is important to obtain all relevant medical records at the earliest opportunity, even before you decide to take the case. These records can be a tremendously valuable source of information, and the case may stand or fall depending upon what is in the records.

Treating Physician You should meet with the plaintiff’s treating physician or mental health provider as soon as possible. This person can help you understand the disability in question and your client’s course of treatment. While medical professionals are busy and sometimes reluctant to meet, you should insist on a meeting since it will help you get a sense of how committed the provider is to your client. If the provider does not even want to meet with you, it is unlikely that they will be of much help in the litigation.

Understanding the Disability In addition to reviewing the medical records and meeting the treating physician, you should read books, pamphlets, or articles about your client’s disability since an understanding of the particular disability is essential to litigating the case effectively.

Judicial Estoppel You will need to find out if your client has applied for disability benefits, and, if so, you should obtain a copy of all the relevant application papers. This is necessary to decide if you are going to be facing a defense based on the judicial estoppel doctrine discussed above in § 4.2.4(d). If your client has not yet applied for benefits but intends to do so, you will have an opportunity to guide them through the process and hopefully avoid a problem with judicial estoppel. MCLE, Inc. | 2nd Edition 2020

4–43

§ 4.2

Employment Discrimination in Massachusetts

Client’s Personality While most employment plaintiffs are under stress, having just been terminated, the disabled client is often under even more stress since they must cope with the disability itself in addition to the problems at work. It can take a measure of patience to work with clients under these circumstances, and occasionally the difficulties can interfere with an effective attorney-client relationship. Bear in mind that you will have to work closely with this person for what may be years. Make sure you are compatible.

(b)

Time Limitations

Most practitioners are aware of the strict time limits within which discrimination cases must be filed with the MCAD and the EEOC and, accordingly, will usually ask the client how long it has been since the termination. Handicap discrimination cases can present unique problems in this regard, since the reasonable accommodation aspect of the law sometimes means that the parties have been communicating about the problems well before a termination occurs. Thus, a plaintiff seeking only reasonable accommodation may have requested and been denied accommodation by the employer many months before the plaintiff consults with you, and you must consider when the discriminatory act occurred or if it is continuing. You should therefore take a thorough history from the plaintiff of all interactions with the employer related to the legal issues in the case. The issue of what will constitute a “continuing violation” for purposes of the statute of limitations was discussed in Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632, 641–45 (2004), and should be reviewed. Although ruling that each request and denial was a separate violation, the court rejected the MCAD’s theory that each day that the employer denied a reasonable accommodation constituted a violation for purposes of the statute of limitations. After observing that, when the employer clearly refused an accommodation it is easy to calculate when the limitations period begins, the court noted that where the employer takes an equivocal action, or no action at all, this presents a much more difficult case. In such cases, the limitations period of G.L. c. 151B, § 5 begins to run “when the employee knew or reasonably should have been aware that the employer was unlikely to afford him a reasonable accommodation.” Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. at 645. See Lukacinsky v. Panasonic Service Co., No. 03-40141_FDS, 2004 WL 2915347, at *19–20 (D. Mass. Nov. 29, 2004), for an application of these principles.

(c)

Forum Selection

Administrative Agency Plaintiffs must file a charge of discrimination with the MCAD within 300 days of the discriminatory act in order to preserve their rights under G.L. c. 151B. Until the decision of the Supreme Judicial Court in Lavelle v. MCAD, 426 Mass. 332 (1997), plaintiffs could choose to try their case at the MCAD, and the employer was restricted to an appeal on legal grounds to the appellate courts. Under the “old” system, some plaintiffs who preferred an MCAD trial could avoid a jury trial by leaving the case in the MCAD. This was done where the plaintiff perceived the MCAD as a more sympathetic forum than Superior Court. The Lavelle court ruled that the employer 4–44

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

had the right to insist on a court forum, and plaintiffs lost the ability to keep their cases at the MCAD. In Stonehill College v. MCAD, 441 Mass. 549 (2004), Lavelle was overruled and the plaintiffs regained their former right to keep their cases at the MCAD if they so chose. From the authors’ perspective, there are many handicapped plaintiffs who will not receive a warm reception from juries; these persons may be better off trying their cases before the MCAD. Part of this results from the curious resentment some jurors seem to feel when plaintiffs ask for reasonable accommodation, and some from the unrelenting campaign of the so-called tort reform movement to convince juries that plaintiffs are undeserving. There are obviously many varying opinions on this subject. One must of course keep in mind when considering the issue of forum that the MCAD is not permitted to award punitive damages.

State Court Versus Federal Court It is the general consensus among the plaintiffs’ employment bar in Massachusetts that they are better off in state court than in federal court. This belief is apparently shared by the defense bar, who almost invariably remove any employment case to federal court if possible. For this reason, plaintiffs who wish to remain in Superior Court (assuming there is no diversity of citizenship) will often omit any claim under the ADA, relying instead on G.L. c. 151B. With the passage of the ADAAA, however, some courts may view federal law as providing greater protection to handicapped employees than Massachusetts law. Indeed, one court has suggested that the ADAAA and regulations promulgated thereunder should not be considered when addressing claims under G.L. c. 151B “because Massachusetts has not amended M.G.L. 151B in the same way that Congress amended the ADA.” Murray v. Warren Pumps, LLC, No. 11-40176-DPW, 2013 WL 5202693, at *6 (D. Mass. Sept. 12, 2013). While this uncertainty persists, bringing a claim under Chapter 151B may be a wise choice. Of course, each case is different and there may be special reasons for choosing a state or a federal forum in particular cases. For example, in the District of Massachusetts one can generally obtain a quicker trial date in federal court. This can be important in certain handicap cases where the plaintiff’s condition is deteriorating. Plaintiffs who find themselves in federal court can of course litigate their G.L. c. 151B claim, as illustrated by Dichner v. Liberty Travel, 141 F.3d 24 (1st Cir. 1998), where Judge Stearns carefully instructed the jury on the difference between the federal claims and the state claims.

Arbitration Compulsory predispute arbitration of employment law claims has become increasingly common since the U.S. Supreme Court began to hold in a series of decisions that public policy supposedly favors this method of dispute resolution. In Massachusetts, claims under Chapter 151B will not be subject to arbitration absent a clear and unambiguous statement that such claims are covered by the parties’ arbitration agreement. Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390, 400 (2009). While forcing employment plaintiffs into arbitration is not favored for reasons which are beyond the scope of this chapter, it is worth noting that many handicapped plaintiffs may fare better in an arbitration forum than in the courts. The authors MCLE, Inc. | 2nd Edition 2020

4–45

§ 4.2

Employment Discrimination in Massachusetts

have seen statistics stating that approximately 96 percent of all claims under the ADA end in a judgment for the defendant. It is obvious from the federal and state statutes and case law that there are numerous factual and legal hurdles that plaintiffs must overcome before they even get to the jury in a handicap discrimination case. These barriers generally do not exist in arbitration, and plaintiff’s counsel would be well advised to at least consider arbitration as an alternative to the courts in this particular area of discrimination law.

(d)

Expert Testimony

Most handicap discrimination cases will involve at least one expert: the treating physician or mental health provider. There may also be economists, vocational rehabilitation experts, or executive recruiters. For this reason it is important for the attorney litigating handicap discrimination cases to become conversant with the rules governing expert testimony and to learn how to present this testimony to the court. Counsel should note the differences between the use of experts in state court as opposed to federal court. Both the Federal Rules of Evidence and the Federal Rules of Civil Procedure impose far more requirements and restrictions on counsel’s use of experts, and these rules must be carefully reviewed in any federal court case. Furthermore, experts can be quite expensive, and counsel should consider this cost when deciding whether to take a particular case. Frank discussion with the plaintiff both at the time of initial representation and during the litigation with regard to expert witness costs is important in order to avoid unpleasant surprises later on.

(e)

Summary Judgment

As counsel for the plaintiff, you should anticipate a motion for summary judgment. Since the law of handicap discrimination is changing rapidly, there are many issues that provide grounds for summary judgment motions. Thus, for example, the defense may challenge your assertion that the plaintiff’s physical or mental condition constitutes a handicap, that the plaintiff’s disability substantially interferes with a major life activity, or that the plaintiff can perform the essential functions of the job with reasonable accommodation. You will need to work hard to gather sufficient evidence to oppose the summary judgment motion. One trap to avoid arises where the defense challenges the plaintiff’s claim that they are substantially limited in a major life activity. If you present such overwhelming evidence in opposition, it may appear that the plaintiff is so seriously disabled that they cannot perform the essential functions of the job. You must always be aware of the narrow “window” through which your case must pass—the plaintiff must have a disability that qualifies under the statutory definition but not be so disabled that they cannot perform the essential functions of the job.

(f)

Trial

Jury Selection Many people have heard of the ADA and there is a surprising amount of hostility toward the law. Some potential jurors believe that the ADA requires too much of employers, particularly in the area of reasonable accommodation. The newspapers contain 4–46

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.2

examples of employees abusing the law or claiming to have vaguely defined mental disabilities. Many people are suspicious of plaintiffs in general, and particularly of employees claiming to have disabilities that cannot be readily observed or understood. For these reasons, it is useful to conduct voir dire of the jury panel. With the 2014 amendment to G.L. c. 234, § 28, counsel is now entitled to conduct some form of voir dire in all Superior Court trials. Accordingly, practitioners must carefully consider what information is most critical to selecting a fair and impartial jury and be prepared to convince the judge that your requested voir dire is needed to achieve that goal.

The Judge When you know who the judge will be, as in the federal court, and sometimes in the state court, you should consider whether for your type of case the plaintiff would be better off trying the case jury-waived. Judges familiar with the ADA or G.L. c. 151B may be more willing to apply its provisions than some jurors are. And while it is the common wisdom that juries award larger damages than judges tend to, this will do the plaintiff little good if the case results in a defense verdict. Bear in mind, however, that many judges are not familiar with the nuances of the ADA or G.L. c. 151B. For this reason, it is wise to submit legal memoranda containing a thorough discussion of the applicable law.

Plaintiff’s Testimony The plaintiff’s testimony is critical and should be prepared carefully. Where the person is disabled and you must convince the jury that they are (or were) capable of performing the essential functions of the job, it can be persuasive to have the plaintiff demonstrate that competence in front of the jury. Thus, for example, in Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), the plaintiff’s counsel had him explain his own loss of back pay, front pay, and benefits, in part to rebut the charge that he was incompetent at financial matters. You should also give thought to how you will present evidence of emotional distress. Will you call an expert such as a psychiatrist, or just proceed with testimony from the plaintiff and perhaps a spouse or a friend? There is much to recommend the latter approach, at least where there is no need for a technical explanation of the emotional distress.

Jury Instructions Jury instructions in handicap discrimination cases can be complex and it is never too early to begin drafting yours. The MCAD Guidelines provide a useful analysis of the issues that arise under the law, and can be used as an outline to follow. It is usually wise to obtain copies of charge requests from counsel you respect and, of course, charges actually given by state and federal judges in handicap discrimination cases.

Special Interrogatories Nearly every handicap discrimination case will go to the jury with special interrogatories under Rule 49; you should be familiar with this procedure. It is important to MCLE, Inc. | 2nd Edition 2020

4–47

§ 4.2

Employment Discrimination in Massachusetts

draft the questions carefully because the jury will be using them as a roadmap during deliberations.

Posttrial Motions The plaintiff can expect to litigate motions for judgment notwithstanding the verdict and motions for new trial and remittitur if they win a verdict. Prepare your client for this process and for the inevitable appeal.

§ 4.2.10 Source Material While there are many useful books on the law of handicap discrimination, S. Moriearty, J. Adkins, L. Rubin & D. Jackson, Employment Law (45 Massachusetts Practice Series) ch. 8 (West 2d ed. 2003), is a particularly thorough and scholarly study of the Massachusetts law. For a helpful book on the ADA, consult G. Phelan & J. Arterton, Disability Discrimination in the Workplace (West Group 1997). The MCAD has issued the MCAD Guidelines discussed above, and the EEOC has regulations interpreting the ADA, found at 29 C.F.R. § 1630, and a Technical Assistance Manual. These authors, of course, highly recommend the various continuing legal education seminars and materials sponsored by MCLE, the MBA, and the BBA.

§ 4.3

DISABILITY DISCRIMINATION: A DEFENSE PERSPECTIVE

§ 4.3.1

Interpretations of the Law and the ADA Amendments Act of 2008

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was signed into law on September 25, 2008. Its modifications became effective on January 1, 2009. The ADAAA modifies the manner in which courts evaluate whether an individual is “disabled” in several ways. Significantly, the law specifically rejects several Supreme Court decisions that narrowly construed the term “disability” and directs courts to broadly construe the term and its coverage to the “maximum extent” permitted by the ADA. See 42 U.S.C. § 12102(4)(A). Thus, the ADAAA is designed to make it easier for an individual seeking protection under the ADA to establish that they have a “disability” within the meaning of the ADA. In fact, the EEOC’s revised regulations interpreting the ADAAA expressly state that “[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability.” 29 C.F.R. § 1630.1(c)(4). In a complete reversal of the Supreme Court’s ruling in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), the ADAAA rejects decisions holding that “mitigating measures” (e.g., medications, prosthetics, corrective surgery, hearing aids, and mobility devices) are to be considered in assessing whether an individual is covered under the ADA. Instead, impairments are to be evaluated in their unmitigated state when determining whether an individual is substantially limited in a major life activity, 4–48

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

except that ordinary eyeglasses and contact lenses may be considered. See 42 U.S.C. § 12102(4)(E); see also 29 C.F.R. § 1630.2(j)(1)(vi). This change brings the ADA in line with Massachusetts law. See Dahill v. Police Dep’t of Bos., 434 Mass. 233, 240–44 (2001). The ADAAA also reversed Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), in which a unanimous Supreme Court stated that “disability” had to be “interpreted strictly to create a demanding standard” and that major life activities are those “activities that are of central importance to daily life.” The ADAAA rejects this holding from Toyota and requires the term “substantially limits” to be “interpreted consistently with the findings and purposes of” that statute. Thus, Congress directed the EEOC to revise its regulations defining the term “substantially limits.” Following a notice and comment period, the EEOC published final regulations (Regulations) in the Federal Register on March 25, 2011, which became effective on May 24, 2011. See 29 C.F.R. § 1630 et seq. The Regulations aim to clarify the “substantially limits” standard and repeatedly emphasize that the definition of disability should be “construed in favor of broad coverage” of individuals “to the maximum extent permitted by the terms of the ADA,” and “should not demand extensive analysis.” 29 C.F.R. § 1630.2(j)(1)(i), (iii). The Regulations state that “an impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population” and that determination “usually will not require scientific, medical, or statistical analysis.” 29 C.F.R. § 1630.2(j)(1)(ii), (v). Contrary to the Supreme Court’s ruling in the Toyota case, the Regulations state that “[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii). Further, the Regulations reject the notion that temporary impairments are never substantially limiting. 29 C.F.R. § 1630.2(j)(1)(ix). In fact, the revised Regulations state expressly that “[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning” of the ADA. 29 C.F.R. § 1630.2(j)(1)(ix). Although the Regulations acknowledge that an individualized assessment is necessary to a determination of whether an impairment is “substantially limiting,” they nevertheless provide a list of impairments that will “virtually always be found to impose a substantial limitation on a major life activity.” 29 C.F.R. § 1630.2(j)(3)(iii). The Regulations state that it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated: Deafness substantially limits hearing; blindness substantially limits seeing; an intellectual disability (formerly termed mental retardation) substantially limits brain function; partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function; autism substantially limits brain function; cancer substantially limits normal cell growth; MCLE, Inc. | 2nd Edition 2020

4–49

§ 4.3

Employment Discrimination in Massachusetts

cerebral palsy substantially limits brain function; diabetes substantially limits endocrine function; epilepsy substantially limits neurological function; Human Immunodeficiency Virus (HIV) infection substantially limits immune function; multiple sclerosis substantially limits neurological function; muscular dystrophy substantially limits neurological function; and major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function. 29 C.F.R. § 1630.2(j)(3)(iii). The ADAAA adopted several additional changes that employers should note, which are also addressed in the Regulations. First, Congress added new activities to the nonexhaustive list of major life activities covered by the statute: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. See 42 U.S.C. § 12102(2)(A); see also 29 C.F.R. § 1630.2(i). The ADAAA further broadened the definition of “major life activity” to include the operation of major bodily functions. See 42 U.S.C. § 12102(2)(B) (“a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”); see also 29 C.F.R. § 1630.2(ii). As a result, a number of medical conditions that limit a major bodily function are now considered disabilities under the ADA regardless of the individual’s external symptoms or limitations. Second, as discussed further under § 4.3.2(c), below, the ADAAA expanded “regarded as” protection by prohibiting discrimination based on an employer’s alleged perception of a mental or physical ailment, even if the impairment is not a perceived or actual disability under the ADA. See 42 U.S.C. § 12102(3); see also 29 C.F.R. § 1630.2(I). Third, the ADAAA extends protections to individuals with episodic impairments or conditions in remission if the impairment would substantially limit a major life activity in its active state. See 42 U.S.C. § 12102(4)(D); see also 29 C.F.R. § 1630.2(j)(1)(vii). Finally, the ADAAA and the Regulations clarify that there is no duty to provide reasonable accommodations to individuals who are ADA-protected under only the “regarded as” prong of the definition of disability (see 29 C.F.R. § 1630.2(o)(4)), that impairments need limit only one major life activity to constitute a disability (see 29 C.F.R. § 1630.2(j)(1)(viii)), and that an individual without a disability cannot pursue a claim for reverse discrimination (see 29 C.F.R. § 1630.4(b)). An “Interpretive Guidance” attached as an appendix to the Regulations assists in understanding the ADAAA’s requirements. The EEOC’s guidance “constitute[s] a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Grenier v. Cyanamid Plastics, 70 F.3d 667, 672 (1st Cir. 1995) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). 4–50

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

In 1992, the EEOC published a Technical Assistance Manual on the Employment Provisions of the Americans with Disabilities Act—Explanation of Key Legal Requirements, which explains the employment provisions of the ADA, providing examples to illustrate its various requirements. In the spring of 1999, the EEOC issued an “Enforcement Guidance” focusing specifically on reasonable accommodation and undue hardship in the employment context. This Guidance explains, in a questionand-answer format and in greater detail than the above interpretations of the law, the obligation of reasonable accommodation and the corresponding defense of undue hardship. The EEOC also issued Enforcement Guidances entitled “Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act” (July 26, 2000), and “Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms” (Dec. 22, 2000). Readers should be cautious when relying on any publication or court decision interpreting the ADA that predates the ADAAA (2008) and the EEOC’s final regulations (2011). In addition to the Interpretive Guidance mentioned above, in 2011 the EEOC also issued Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008 (see http://www1.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm? renderforprint=1) and a Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA (see http://www1.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm? renderforprint=1). In 1998, the MCAD released guidelines on the handicap provisions of G.L. c. 151B: Commonwealth of Massachusetts Commission Against Discrimination Guidelines: Employment Discrimination on the Basis of Handicap—Chapter 151B. The Supreme Judicial Court has noted that “[t]he guidelines represent the MCAD’s interpretation of G.L. c. 151B, and are entitled to substantial deference, even though they do not carry the force of law.” Dahill v. Police Dep’t of Bos., 434 Mass. 233, 239 (2001). Such deference is due, reasoned the court, because the legislature specifically authorized the MCAD to interpret and administer the requirements of the Massachusetts antidiscrimination statute. Dahill v. Police Dep’t of Bos., 434 Mass. at 242; see also Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. 521 (2001); accord Chief Justice for Admin. & Mgmt. of Trial Ct. v. MCAD, 439 Mass. 729, 737 (2003) (“the Legislature has given the commission broad powers to receive, investigate and act on complaints of discrimination. We will not lightly interfere with that mandate by permitting the Court’s judgment to be substituted for the commission’s on issues that lie within the latter’s designated field.”).

§ 4.3.2

Types of Claims

An employee may bring a claim of disability discrimination under the following circumstances: • the employee has not been hired or rehired, has been terminated or has been subjected to some other adverse job action because of their disability, record of disability, or perceived disability; or • the employer has failed to reasonably accommodate the employee’s disability. MCLE, Inc. | 2nd Edition 2020

4–51

§ 4.3

Employment Discrimination in Massachusetts

Note that the MCAD has made clear that harassment on the basis of handicap status is actionable as well and is subsumed within a claim for handicap discrimination under G.L. c. 151B. Sleeper v. New Eng. Mut. Life Ins. Co., 24 M.D.L.R. 44 (H.O. Gustaferri, 2002); see also Quiles-Quiles v. Henderson, 439 F.3d 1, 5 n.1 (1st Cir. 2006) (assuming that disability harassment is a viable theory of recovery under the ADA and Rehabilitation Act). In 2013, the Massachusetts Supreme Judicial Court interpreted Chapter 151B as allowing a person who is not handicapped to pursue a cause of action on the basis of that person’s association with another person who is handicapped. Flagg v. AliMed, Inc., 466 Mass. 23, 27–37 (2013) (allowing associational disability discrimination under Chapter 151B in a case where a former employee alleged that his employer terminated his employment to be free of the costs associated with his wife’s disability); see also Fenn v. Mansfield Bank, No. 14-12554-NMG, 2015 U.S. Dist. LEXIS 17235, at *5–8 (D. Mass. Feb. 12, 2015) (acknowledging Flagg decision and holding that Chapter 151B recognizes a claim for associational disability discrimination where plaintiff alleged that discriminatory conduct was due to his wife’s disability); Knidel v. T.N.Z., Inc., No. 14-40079-TSH, 2016 WL 5387625, at *10 (D. Mass. Sept. 26, 2016) (same). The Flagg decision represents a shift from the view taken by trial courts in earlier cases. See, e.g., Brelin-Penney v. Encore Images, Inc., No. 08-2244B, 2010 Mass. Super. LEXIS 138, at *18–21 (Mass. Super. Ct. May 28, 2010) (rejecting associational disability discrimination claim under Chapter 151B), aff’d sub nom, Scott v. Encore Images, Inc., 80 Mass. App. Ct. 661, 669 (2011) (but not deciding issue of associational disability discrimination); Ayanna v. Dechert LLP, 2012 U.S. Dist. LEXIS 1925, at *7–11 (D. Mass. Jan. 6, 2012) (agreeing with BrelinPenney and finding that Chapter 151B does not recognize a cause of action based on associational disability discrimination). The Supreme Judicial Court’s allowance of associational disability discrimination claims under Chapter 151B results in further consistency with the ADA, which includes an express authorization of discrimination claims based on associational standing. 42 U.S.C. § 12112(b)(4). The Flagg decision does not state how close the association must be between a nonhandicapped person and a handicapped person in order for an associational disability discrimination claim to be viable. In fact, the court in Flagg limited its analysis to the “immediate family context” and declined to consider “more attenuated associations.” Flagg v. AliMed, Inc., 466 Mass. at 30 n.15. Relying on the reasoning in Flagg, one court rejected a claim of associational disability discrimination under Chapter 151B in a case where the plaintiff, a director of special education, claimed that the defendant, a school district, did not rehire her “because of her association with and advocacy on behalf of disabled students at the school.” Perez v. Greater New Bedford Vocational Tech. Sch. Dist., 988 F. Supp. 2d 105, 109–12 (D. Mass. 2013). The court in Perez expressed concern about extending associational disability discrimination claims from those grounded in familial relationships to those based on more attenuated relationships, stating “that allowing plaintiff’s claim to proceed would greatly extend the reason of anti-discrimination statutes.” Perez v. Greater New Bedford Vocational Tech. Sch. Dist., 988 F. Supp. 2d at 112. Thus, it is unclear how far beyond the immediate family context a claim for associational disability discrimination might lie. As well, the Flagg court expressly did not decide whether an employee 4–52

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

with a handicapped spouse was entitled to a reasonable accommodation due to his spouse’s handicap. Flagg v. AliMed, Inc., 466 Mass. at 32 n.18. In a concurring opinion in Flagg, Justice Gants underscored that employers do not owe a duty of reasonable accommodation to the spouses or family members of handicapped persons. Flagg v. AliMed, Inc., 466 Mass. at 42 (Gants, J., concurring) (“the court’s opinion does not suggest that an employer is required under [G.L. c. 151B] § 4(16) to provide reasonable accommodation to an employee who is not himself handicapped to allow the employee to attend to important family matters, medical or otherwise”). At least one trial court since Flagg was decided has explicitly concluded that associational reasonable accommodation claims are not cognizable. See Fenn v. Mansfield Bank, 2015 U.S. Dist. LEXIS 17235, at *7 (D. Mass. Feb. 12, 2015).

(a)

Proof of Discrimination Claim

In a typical claim alleging unlawful employment discrimination on the basis of handicap under G.L. c. 151B, § 4(16), involving a dispute over the reason that a plaintiff was subjected to an adverse job action, the plaintiff must establish a prima facie case by producing credible evidence of the following: • The plaintiff was handicapped within the meaning of the law. An individual is handicapped within the meaning of G.L. c. 151B if they – have a physical or mental impairment that substantially limits one or more major life activities (see § 4.3.2(c), below, for a representative list of major life activities); – have a record of having such impairment; or – are regarded as having such impairment. G.L. c. 151B, §§ 1(17). See also 42 U.S.C. § 12102 for the parallel definition of disability under the ADA. • The plaintiff was able to perform the essential functions of the position, with or without a reasonable accommodation (in other words, they were a “qualified individual”). • The plaintiff was discharged (or suffered some other adverse job action) by the employer. • The position the plaintiff had occupied remained open and the employer sought to fill it (or, in a case not involving a discharge or hiring decision, the adverse employment action occurred under circumstances that give rise to an inference of discrimination). Dartt v. Browning-Ferris Indus., 427 Mass. 1, 3 (1998). In Dartt the court also held that a plaintiff was not required to show at the prima facie stage that they were terminated “solely” because of their handicap. Dartt v. Browning-Ferris Indus., 427 Mass. at 11. However, when an employer eliminates an employee’s position as part of a reduction in force or takes some adverse employment action other than discharge or refusal to hire, “the fourth factor is modified so that a plaintiff must produce some evidence that” the adverse employment action “occurred in circumstances that would MCLE, Inc. | 2nd Edition 2020

4–53

§ 4.3

Employment Discrimination in Massachusetts

raise a reasonable inference of unlawful discrimination.” Ruffino v. Earthwatch Inst., No. 042949, 2007 Mass. Super. LEXIS 18, at *2 (Mass. Super. Ct. Jan. 23, 2007) (citing Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 45 (2005)). The First Circuit has held that a plaintiff must prove three things by a preponderance of the evidence to establish a claim of disability discrimination: • that the plaintiff is disabled within the meaning of the ADA; • that the plaintiff was able to perform the essential functions of the job, with or without a reasonable accommodation; and • that the plaintiff was subjected to adverse employment action in whole or in part because of their disability. Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 32–33 (1st Cir. 2000); Jacques v. Clean-Up Grp., Inc., 96 F.3d 506, 511 (1st Cir. 1996); Laurin v. Providence Hosp., 150 F.3d 52, 56 (1st Cir. 1998). Alternatively, a plaintiff may indirectly prove their case “by using the prima facie case and burden shifting methods under the McDonnell Douglas analysis.” Jacques v. Clean-Up Grp., 96 F.3d at 511; see also Laurin v. Providence Hosp., 150 F.3d at 58. In such circumstantial cases of handicap or disability discrimination under G.L. c. 151B or the ADA, if the plaintiff establishes a prima facie case, the burden of production then shifts to the employer, under the so-called McDonnell-Douglas burden-shifting analysis applied generally to disparate treatment cases, to offer a legitimate, nondiscriminatory reason for its actions. Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997); Wheelock Coll. v. MCAD, 371 Mass. 130, 138 (1976). After the defendant meets its burden of production under this second stage of the analysis, the burden of production shifts back to the plaintiff to demonstrate that the defendant’s reason for its employment decision was not the real reason but instead a pretext for disability discrimination. Tobin v. Liberty Mut. Ins., No. 01-11979-DPW, 2004 WL 1922133, at *6 (D. Mass. Aug. 30, 2004); Jacques v. Clean-Up Grp., 96 F.3d 506, 511 (1st Cir. 1996); Labonte v. Hutchins & Wheeler, 424 Mass. at 821. The burden of proof remains with the plaintiff at all times, however. This shifting model, however, does not apply to ADA disability claims based on alleging a failure to reasonably accommodate. Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 n.3 (1st Cir. 2001). The MCAD Guidelines state that if it is undisputed that an employee has been terminated or has suffered some other adverse job action because of a handicap, then the employee’s prima facie case is established if they can show that they were “a qualified handicapped person.” MCAD Guidelines § IX.A.1. The employer must then produce “credible evidence” that the employee “was not a qualified handicapped person or that her rejection was for reasons other than her handicap.” (The MCAD Guidelines note that, if the employer “attempts to meet its burden by showing that [the] termination was for reasons other than handicap,” the case should be analyzed under the McDonnell-Douglas framework or a mixed-motive framework. MCAD Guidelines § IX.A.1 n.38.) The employee can still prevail if they can prove that the employer’s reasons for taking action against the employee because of the employee’s handicap “are based upon misconceptions or unfounded factual conclusions, and that 4–54

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

the reasons articulated for the termination encompass unjustified consideration of the handicap.” MCAD Guidelines § IX.A.1. In Gannon v. City of Boston, 476 Mass. 786, 794 (2017), the Supreme Judicial Court highlighted the distinction between the so-called pretext and qualified handicapped person cases. The court in Gannon overturned the granting of summary judgment in favor of the employer because the trial court erred in following a “pretext” framework in a “qualified handicapped person” case. The court noted that, in applying the “pretext” framework, the motion judge effectively “transformed the plaintiff’s burden on summary judgment.” Gannon v. City of Boston, 476 Mass. at 796. It reiterated that “[i]n a qualified handicapped person case . . . the employer does not prevail simply because it indisputably acted in good faith; it can prevail only if the handicapped employee fails to prove by a preponderance of the evidence that he or she was able to perform the essential duties of the position with reasonable accommodation.” Gannon v. City of Boston, 476 Mass. at 796. Thus, where the parties produced divergent expert opinions regarding whether the plaintiff could perform the essential full duties of a Boston police officer, the fact finder must determine not whether the employer had a good faith belief that he could not perform these duties, but whether the plaintiff has proved by a preponderance of the evidence that he can perform them. Gannon v. City of Boston, 476 Mass. at 797. Practice Note The Supreme Judicial Court has held that Chapter 151B claims for wrongful termination and remedies survive the plaintiff’s death. Gasior v. Mass. Gen. Hosp., 446 Mass. 645, 656 (2006). However, a claim for failure to promote does not. Robinson v. City of Boston, 71 Mass. App. Ct. 765, 770 (2008).

(b)

Proof of Failure to Provide Reasonable Accommodation Claim

Although most claims of disability discrimination will be analyzed by one of the methods described above, the MCAD Guidelines provide that, where a plaintiff claims that the employer failed to provide a reasonable accommodation, the following elements must be established: • the employee was a qualified handicapped individual; • the employee needed a reasonable accommodation due to their handicap to perform their job; • the employer was aware of the handicap and was aware that the employee needed reasonable accommodation to perform their job; • the employer was aware of a means to reasonably accommodate the handicap, or the employer breached a duty, if any, to undertake reasonable investigation of a means to reasonably accommodate the handicap; and • the employer failed to provide the employee a reasonable accommodation.

MCLE, Inc. | 2nd Edition 2020

4–55

§ 4.3

Employment Discrimination in Massachusetts

See, e.g., MCAD Guidelines § IX.A.3; Godfrey v. Globe Newspaper, Co., 457 Mass. 113, 120 (2010); Finlan v. Verizon New Eng., Inc., 2009 Mass. App. Unpub. LEXIS 678, at *3 (Mass. App. Ct. July 30, 2009). If the employee proves these elements, the burden then shifts to the employer to prove that the reasonable accommodation would pose an undue hardship or would pose a direct threat to the health and safety of others in the workplace. The employee may rebut this evidence. MCAD Guideline §§ IX.A.1, IX.B.3. The First Circuit also has held that, to survive summary judgment on a reasonable accommodation claim, a plaintiff must produce sufficient evidence for a reasonable jury to find that • they are disabled within the meaning of the ADA; • they were able to perform the essential functions of the job, with or without a reasonable accommodation; and • the defendant, despite knowing of the disability and the need for accommodation, did not reasonably accommodate it. Estades Negroni v. Assocs. Corp. N. Am., 377 F.3d 58, 63 (1st Cir. 2004). The First Circuit has consistently held that the McDonnell-Douglas burden-shifting model does not apply to ADA discrimination claims based on a failure to reasonably accommodate. Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 n.3 (1st Cir. 2001). In Reed, the court also clarified its position on the relative burdens of proof in reasonable accommodation cases: In order to prove “reasonable accommodation,” a plaintiff needs to show not only that the proposed accommodation would enable her to perform the essential functions of her job but also that at least on the face of things it is feasible for the employer under the circumstances. If plaintiff succeeds in carrying this burden, the defendant then has the opportunity to show that the proposed accommodation is not as feasible as it appears but rather that there are further costs to be considered, certain devils in the details. Reed v. LePage Bakeries, Inc., 244 F.3d at 259. The EEOC had urged the court to adopt the agency’s position, that a plaintiff’s burden in a reasonable-accommodation claim is only to show that the accommodation would effectively enable the plaintiff to do the job, leaving to the employer the burden of proving that the accommodation would be too costly or difficult. In rejecting this position, the court in Reed noted that “[a] reasonable request for an accommodation must in some way consider the difficulty or expense imposed on the one doing the accommodating.” Reed v. LePage Bakeries, Inc., 244 F.3d at 259. The Supreme Court subsequently cited the Reed v. LePage Bakeries “practical” analysis with approval. In U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), the Court 4–56

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

stated, “[T]hat practical view of the statute, applied consistently with ordinary summary judgment principles, . . . avoids [the] burden of proof dilemma, while reconciling the two statutory phrases (‘reasonable accommodation’ and ‘undue hardship’).” U.S. Airways, Inc. v. Barnett, 535 U.S. at 402.

(c)

Elements of Prima Facie Case

“Handicapped” While the ADA and G.L. c. 151B use different terms to describe the individuals they protect, historically there has been no substantive difference between a “qualified individual with a disability” (ADA) and a “qualified handicapped person” (G.L. c. 151B). Compare 42 U.S.C. § 12102(4)(E), with Dahill v. Police Dep’t of Bos., 434 Mass. 233, 242–43 (2001) (Chapter 151B). The first element that a plaintiff must establish is that they have a handicap. The ADA and G.L. c. 151B define an individual with a handicap in one of three ways: • having a physical or mental impairment that substantially limits one or more major life activities (such as walking, speaking, seeing, hearing, breathing, learning, or working); • having a record of such a physical or mental condition; or • being regarded by the employer as having such a condition. 42 U.S.C. §§ 12102(2), 12112; see G.L. c. 151B, §§ 1(17), (20), 4(16); 29 C.F.R. § 1630.2(g). The determination of whether a physical or mental impairment substantially limits a major life activity is made on a case-by-case basis. Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 20 (1st Cir. 2004); Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 25 (1st Cir. 2002); Gelabert-Ladenheim v. Am. Airlines, Inc., 252 F.3d 54, 59 (1st Cir. 2001); Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir. 1996). As noted above, however, the ADAAA rejects earlier case law that imposed a restrictive definition of “disability” and is designed to make it easier for an individual seeking protection under the ADA to establish that they have a “disability” within the meaning of the ADA. Indeed, the EEOC’s Regulations interpreting the ADAAA state that “[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability.” 29 C.F.R. § 1630.1(c)(4). To that end, the ADAAA and the EEOC’s corresponding Regulations clarify that the term “substantially limits” shall be construed broadly for expansive coverage, and the EEOC’s Regulations (not the statute) provide a list of impairments that will, “in virtually all cases,” result in a substantial limitation in a major life activity. 29 C.F.R. § 1630.2(j)(1), (3). An impairment is a disability under the ADA if it substantially limits an individual’s ability to perform a major life activity “as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). “An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 MCLE, Inc. | 2nd Edition 2020

4–57

§ 4.3

Employment Discrimination in Massachusetts

C.F.R. § 1630.2(j)(1)(ii). And although the “substantially limits” assessment requires an individualized assessment, the assessment should be made without regard to mitigating measures, except for the ordinary use of eyeglasses or contact lenses, nor should it require “extensive analysis.” 29 C.F.R. § 1630.2(j)(1)(iii), (vi). Both state and federal law include within the definition of “major life activities” caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. G.L. c. 151B, § 1(20); 29 C.F.R. § 1630.2(i). As noted above, the EEOC’s Regulations add to this list eating, sleeping, standing, sitting, reaching, lifting, bending, reading, concentrating, thinking, communicating, interacting with others, and the operation of major bodily functions such as reproduction, digestion, and normal cell growth. 29 C.F.R. § 1630.2(i)(1). Likewise, the MCAD recognizes “sitting, standing, lifting and mental and emotional processes such as thinking, concentrating and interacting with others” as “major life activities.” MCAD Guidelines § II.A.5. The EEOC’s Regulations note that the word “major” should not be interpreted strictly to create a demanding standard. 29 C.F.R. § 1630.2(i)(2). A “major life activity” does not necessarily mean of “central importance to daily life.” 29 C.F.R. § 1630.2(i)(2). The First Circuit also addressed these topics in Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11 (1st Cir. 2002). Gillen involved an applicant for a job as an emergency medical technician (EMT) whose left arm ended a few inches below her elbow. The District Court granted summary judgment to the defendant ambulance service, but the appeals court reversed. One issue the court resolved in the plaintiff’s favor was whether lifting qualified as a major life activity. “Whether lifting pen to paper or glass to mouth, lifting is an integral part of everyday life,” and a major life activity, said the court. Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d at 21. Of course, following the ADAAA, it is now beyond dispute that lifting is a major life activity. In addition, notwithstanding that the plaintiff testified that there was nothing she wanted to do that she could not do because of her condition and that she could lift forty to fifty pounds, the court also found a question of fact as to whether the plaintiff was “substantially limited” in lifting. “[A]t the most general level of diagnosis, the [plaintiff] is a genetic amputee,” who encounters significant handicap-related obstacles, said the court. Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d at 22–24. On the issue of whether the plaintiff was qualified for the EMT job, the employer argued that the plaintiff was rejected because she could not lift seventy pounds or engage in twohanded lifting, both essential job functions. Ruling against the employer again, the First Circuit held that the plaintiff raised a factual issue as to whether she was indeed qualified for the job. Evidence indicated that she could lift the necessary weight both before and after she applied for the job. Further, the court questioned whether twohanded lifting was truly an essential function in light of the fact that the defendant certified the plaintiff to work as an EMT (subject to a medical exam) despite the fact that she had only one hand. Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d at 27–28. Likewise, in a number of cases, courts in Massachusetts have addressed what constitutes a substantial limitation in a major life activity sufficient to constitute a disability under the ADA or a handicap under Chapter 151B. See O’Brien v. MIT, 82 Mass. App. Ct. 905, 907–08 (2012) (employee’s chronic pain may be handicap under Chapter 4–58

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

151B because it could substantially limit major life activities of sleeping and working); Cyr v. United Parcel Serv., Inc., 792 F. Supp. 2d 108, 113–15 (D. Mass. 2011) (employee’s testimony that multiple sclerosis flare-ups caused difficulty walking, climbing stairs, lifting, and frequent urination were substantial limitations sufficient to show disability under ADA and Chapter 151B). But see McDonough v. Donohue, 673 F.3d 41, 46–48 (1st Cir. 2012) (employee not disabled because employee failed to show substantial limitation in major life activities of working, walking, standing, and sitting where, despite back and neck pain, employee was able to perform job with employer’s accommodation); Ramos-Echevarria v. Pichis, Inc., 659 F.3d 182, 188–90 (1st Cir. 2011) (under ADA, epilepsy did not substantially limit employee’s major life activity of working because, other than inability to work temporarily during episodes, none of the limitations substantially limited his ability to work); Gill v. Ryder Integrated Logistics, 2012 U.S. Dist. LEXIS 91867, at *11–15 (D. Mass. July 3, 2012) (employee failed to show that heart attack significantly impacted a major life activity such that he suffered from a disability under ADA or a handicap under Chapter 151B). Note, however, that the above cases addressing whether an individual was “substantially limited” in a “major life activity” seem to have done so under the pre-ADAAA standard. Therefore, it is likely that these cases would have different conclusions based on a post-ADAAA analysis. For example, in Ramos-Echevarria, the First Circuit specifically noted that the ADAAA does not apply retroactively and, therefore, did not apply to the facts of the case before it. Ramos-Echevarria v. Pichis, Inc., 659 F.3d 182, 188–89 n.9 (1st Cir. 2011). Moreover, the First Circuit analyzed whether epilepsy had a substantial impact on the major life activity of working, finding no such impact. Ramos-Echevarria v. Pichis, Inc., 659 F.3d at 188–90. Whereas the EEOC’s Regulations state that “it should easily be concluded” that “epilepsy substantially limits [the major life activity of] neurological function.” 29 C.F.R. § 1630.2(j)(3)(iii). That said, even after the ADAAA, an employee must still establish that they are a qualified handicapped person by showing a physical or mental impairment that substantially limits a major life activity. See Williams v. Robert F. Kennedy Children’s Action Corps, Inc., 38 F. Supp. 3d 186, 194 (D. Mass. 2014) (noting that a person must still “establish[] with medical evidence the existence of the alleged disability. . . . To hold otherwise would . . . allow anyone with any kind of condition, regardless of the severity to claim disability.”) (internal quotation marks omitted). Although medical evidence is often necessary to establish the existence of a physical or mental impairment, whether or not medical evidence is necessary is determined on a caseby-case basis. See Mancini v. City of Providence by & Through Lombardi, 909 F.3d 32, 40 (1st Cir. 2018) (stating that “[w]hether medical evidence is necessary to support a disability discrimination claim is a determination that must be made on a caseby-case basis” and “the critical inquiry is whether a lay jury would be capable of making such an assessment without medical evidence”).

Working as a Major Life Activity If an individual’s impairment limits only the ability to work, historically the determination of whether that individual is “substantially impaired” has turned on whether MCLE, Inc. | 2nd Edition 2020

4–59

§ 4.3

Employment Discrimination in Massachusetts

they are unable to perform either “a class of jobs” or “a broad range of jobs in various classes.” 29 C.F.R. pt. 1630, app. (Substantially Limited in Working); MCAD Guidelines § II.A.6. This standard, or something close to it, has survived the ADAAA. See Allen v. SouthCrest Hosp., 455 Fed. App’x 827, 834–35 (10th Cir. 2011) (“to show a disability in the major life activity of working, [employee] was required, even after the enactment of the ADAAA and the modified EEOC regulations, to demonstrate that she was substantially limited in performing a class of jobs or broad range of jobs in various classes as compared to most people with comparable training, skills, and abilities”). The EEOC’s Appendix, or Interpretive Guidance, to the 2011 Regulations is consistent with this interpretation. 29 C.F.R. pt. 1630, app. (Substantially Limited in Working). By way of example, the EEOC’s Interpretive Guidance states: A class of jobs may be determined by reference to the nature of the work that an individual is limited in performing (such as commercial truck driving, assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs) or by reference to jobrelated requirements that an individual is limited in meeting (for example, jobs requiring repetitive bending, reaching, or manual tasks, jobs requiring repetitive or heavy lifting, prolonged sitting or standing, extensive walking, driving, or working under conditions such as high temperatures or noise levels). For example, if a person whose job requires heavy lifting develops a disability that prevents him or her from lifting more than fifty pounds and, consequently, from performing not only his or her existing job but also other jobs that would similarly require heavy lifting, that person would be substantially limited in working because he or she is substantially limited in performing the class of jobs that require heavy lifting. 29 C.F.R. pt. 1630, app. (Substantially Limited in Working). Likewise, the EEOC’s Interpretive Guidance states that “[d]emonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working.” 29 C.F.R. pt. 1630, app. (Substantially Limited in Working); see also Faiola v. APCO Graphics, Inc., 629 F.3d 43, 48 (1st Cir. 2010). Indeed, the Supreme Court reached a similar conclusion even before enactment of the ADAAA and publication of the EEOC’s Regulations. Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999). Although the ADAAA superseded the Sutton decision on other grounds, the “broad class of jobs” standard does not seem to be one of them. In Sutton, the Supreme Court said that “[t]o be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice.” Sutton v. United Air Lines, Inc., 527 U.S. at 492 (concluding that poor eyesight precluding plaintiffs from positions as global airline pilot not a substantial limitation on activity of working, because position is a single job and other types of pilot positions are available); see also Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 525 (1999) (record shows that petitioner was regarded as 4–60

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

unable to perform only a particular job, not a class of jobs); Carroll v. Xerox Corp., 294 F.3d 231, 240 (1st Cir. 2002) (employee’s disability discrimination claim failed where evidence indicated that, although the employee could not “handle the workload associated with his particular position,” the employee was not precluded from a class or a range of jobs); Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d 30, 33 (1st Cir. 2001) (ADA and G.L. c. 151B claims failed where plaintiff could not prove her cognitive impairment limited her ability to work or learn; she was able to perform substantially similar jobs soon after termination from defendant); Gelabert-Ladenheim v. Am. Airlines, Inc., 252 F.3d 54, 61 (1st Cir. 2001) (airline gate agent’s ADA claim failed where she was “plainly qualified for a great variety of jobs, by her own admission”); Lebron-Torres v. Whitehall Labs., 251 F.3d 236, 241 (1st Cir. 2001) (manufacturing operator’s ADA claim failed where her back injury did not prevent her from doing either her job or her work as a hair stylist); Lessard v. Osram Sylvania, Inc., 175 F.3d 193, 197–98 (1st Cir. 1999) (plaintiff failed to show that employer ever questioned his ability to work in anything other than a specific job); Tardie v. Rehab. Hosp. of R.I., 168 F.3d 538, 542 (1st Cir. 1999) (plaintiff’s inability to work more than forty hours per week precluded her from performing only a particular job); Hurley v. Modern Cont’l Constr. Co., 54 F. Supp. 2d 85, 93–94 (D. Mass. 1999) (plaintiff, who had defibrillator implanted, failed under the ADA to present sufficient evidence on summary judgment to show that he was substantially limited in major life activity of working; G.L. c. 151B claim remanded to state court); Igartua v. City of Newton, 2000 Mass. Super. LEXIS 19 (Mass. Super. Ct. 2000) (plaintiff was not handicapped under G.L. c. 151B where her allergy to smoke did not substantially limit her ability to work or breathe). But see Lemire v. Silva, 104 F. Supp. 2d 80, 87 (D. Mass. 2000) (plaintiff presented sufficient evidence to go to the jury on ADA and G.L. c. 151B claims of whether her panic disorder and agoraphobia substantially limited her ability to work and interact with others). Note, however, that the above cases in which courts found no substantial limitation in the major life activity of working may have reached different conclusions had they been decided after enactment of the ADAAA and publication of the EEOC’s subsequent Regulations. For example, while the courts may still have concluded under the ADAAA that the plaintiffs were not substantially limited in the major life activity of working, they may have found the plaintiffs to be disabled because of a substantial limitation in another major life activity or bodily function. Practice Note The “class-based analysis” has been limited to the major life activity of working. The Supreme Court in Toyota stated that “[n]othing in the Act, our previous opinions, or the regulations suggests that a class-based framework should apply outside the context of the major life activity of working.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. at 201. This remains true after enactment of the ADAAA and publication of the EEOC’s post-ADAAA Regulations.

Even prior to the ADAAA and the EEOC’s corresponding Regulations, the First Circuit commented that “the burden of proof incumbent upon an ADA plaintiff in relation to this element” is not “particularly formidable.” Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 12 (1st Cir. 1999). In Quint, the court adopted the EEOC’s view that, to MCLE, Inc. | 2nd Edition 2020

4–61

§ 4.3

Employment Discrimination in Massachusetts

prove substantial limitation in the major life activity of working, the plaintiff need present only “evidence of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs (e.g., ‘few,’ ‘many,’ ‘most’) from which an individual would be excluded because of an impairment.” Quint v. A.E. Staley Mfg. Co., 172 F.3d at 12 (citing 29 C.F.R. pt. 1630, app. § 1630.2(j)). This is a fact-specific burden of proof. Quint v. A.E. Staley Mfg. Co., 172 F.3d at 11. Employers may nonetheless prevail at an early stage of the case if the plaintiff fails to offer evidence of a substantial limitation in a broad class or broad range of jobs. One First Circuit case decided prior to the ADAAA and the 2011 EEOC Regulations discussed how courts should determine whether an impairment (in this case, carpal tunnel syndrome) substantially limits the major life activity of working and is therefore a disability. In Gelabert-Ladenheim v. American Airlines, Inc., 252 F.3d 54, 59 (1st Cir. 2001), the plaintiff, a part-time gate agent, claimed her carpal tunnel syndrome substantially limited her ability to work. The court said that the first issue is to examine the plaintiff’s education level, training, job skills, expertise, and knowledge, along with her pre- and postimpairment work history. Here, the plaintiff was collegeeducated, bilingual, with computer skills and experience in retail sales, the entertainment industry, the news industry, and the hospitality and transportation industries. The next inquiry, said the court, involves an examination of the jobs the plaintiff was prevented from doing as well as those she was not, and an evaluation of the jobs available to the plaintiff within the reasonably accessible job area. In this case, the court found significant the fact that the plaintiff found a full-time job at higher pay following her departure from the defendant. Further, even with her medical restrictions, in the San Juan area, she did not have “limited job prospects.” Testimony from a vocational expert, while not required, is helpful, as are publicly available labor market statistics, noted the court in ruling against the plaintiff. GelabertLadenehim v. Am. Airlines, Inc., 252 F.3d at 60–61. The Massachusetts courts have followed Sutton on these points regarding the major life activity of working. In Dube v. Middlesex Corp., 59 Mass. App. Ct. 734 (2003), the Appeals Court held that Massachusetts law also required that the plaintiff show that he is unable to work in a wide range of jobs rather than just his own position. Similarly, in Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632 (2004), the court held that an employee with limited eyesight was substantially limited in the major life activity of working because he was unable to perform a broad range of jobs. These decisions, however, did not address the major life activity of working in the context of cases where the plaintiff claims they were regarded as disabled. The Supreme Judicial Court resolved this issue under Chapter 151B in City of New Bedford v. MCAD, 440 Mass. 450 (2003), where the court extended Sutton to situations in which a plaintiff claims that they are regarded as disabled. See “Regarded As” Claims, below.

4–62

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

Manual Task Disability In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), a case rejected and superseded by the ADAAA, the Supreme Court addressed whether a worker with carpal tunnel syndrome was substantially limited in the major life activity of performing manual tasks. Ruling for the employer, the Court held that, while the employee was limited in certain occupation-specific tasks, those tasks were not central to most people’s daily lives and should not have been considered as a major life activity by the lower courts in the analysis. As noted above, however, the ADAAA specifically rejected the Supreme Court’s ruling in Toyota as to the definitions of “substantially limits” and “major life activity.” Under the ADAAA, it is possible, if not likely, that these types of ailments would satisfy the definition of “disability.” 42 U.S.C. § 12102(2)(A). See also “Regarded As” Claims, below.

Temporary Impairment Under the ADAAA, an impairment that is both transitory and minor does not meet the definition of “disability” only in the “regarded as” analysis. 42 U.S.C. § 12102(3)(B). Also, an episodic impairment may meet the definition of “disability” under the ADAAA if the impairment would substantially limit a major life activity in its active state. 29 C.F.R. § 1630.2(j)(1)(vii). But see also Cormier v. Littlefield, 112 F. Supp. 2d 196, 198–99 (D. Mass. 2000) (summary judgment granted against employee on ADA and G.L. c. 151B claims; knee injury lasted seven months after which employee was able to work with no restrictions, had full range of motion, and required no further medical attention); Grindley v. Royal Indem. Co., 1996 U.S. Dist. LEXIS 21933 (D. Mass. 1996) (surgery-related absences were temporary, had little long-term impact on job performance, and were thus not disability under ADA or G.L. c. 151B); Hallgren v. Integrated Fin. Corp., 42 Mass. App. Ct. 686, 689 (1997) (temporary disability from which plaintiff recovered in one month and from which plaintiff had no residual disability is not a handicap under G.L. c. 151B); see also MCAD Guidelines § II.A.6 (“isolated medical problems (such as a broken arm that heals normally) and illnesses of short duration usually are not handicaps”). However, even a temporary impairment may be a handicap if it is prolonged, recurrent, or substantially limiting. In fact, the EEOC explicitly states in its 2011 Regulations that “[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ix); see also Dartt v. Browning-Ferris Indus., Inc., 427 Mass. 1, 17 (1998) (plaintiff could not work for two years as result of injury); Plante v. Shawmut Bank, 1999 Mass. Super. LEXIS 226, at *4 (Mass. Super. Ct. 1999) (noting that not every temporary disability is short-lived); Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 10–11 (1st Cir. 1999) (noting that testimony showed effects of carpal tunnel syndrome to be “both recurrent and permanent,” in that return to regular use of hands would cause problem to flare up once again); see also MCAD Guidelines § II.A.6 (“[c]hronic or episodic disorders that are substantially limiting may be handicaps”). Although pregnancy itself is not a disability under the ADA, a pregnancy-related impairment may be a handicap, if it substantially limits a major life activity. See, e.g., MCLE, Inc. | 2nd Edition 2020

4–63

§ 4.3

Employment Discrimination in Massachusetts

Darian v. Univ. of Mass. Bos., 980 F. Supp. 77, 87 (D. Mass. 1997) (pregnancy-related medical conditions, including severe pelvic bone pain, uterine contractions, and uterine and pelvic back pain limited several major life activities; plaintiff’s conditions were a physiological disorder with disabling consequences); Minicucci v. Charles Hotel, 9 M.D.L.R. 1217 (1987) (plaintiff’s pregnancy was handicap within meaning of G.L. c. 151B because it was limiting one or more of her major life activities). But see Annobil v. Worcester Skilled Care Ctr., Inc., 2014 U.S. Dist. LEXIS 126643, at *35–36 (D. Mass. Sept. 10, 2014) (holding that plaintiff failed to show “pregnancy related complication which would constitute an impairment that substantially limits one or more major life activity” under the ADA where she failed to establish that the headaches, nausea, and vomiting that she experienced were other than normal symptoms of pregnancy). Compare McDonnell v. Certified Eng’g & Testing Co., 899 F. Supp. 739, 752–53 (D. Mass. 1995) (no evidence suggesting plaintiff’s pregnancy disabled her in any way); Malloch v. Town of Hanover, 2011 U.S. District LEXIS 11997, at *24–27 (D. Mass. Feb. 2011) (while pregnancy may render a person disabled, an intervening event—employee’s car accident and injury—prevented pregnancy from progressing to such a stage and rendered any accommodation request moot). Notably, under Massachusetts law, pregnancy is a protected category under G.L. c. 151B’s prohibition against employment discrimination. The Pregnant Workers Fairness Act, which went into effect on April 1, 2018, amended G.L. c. 151B, § 4 to prohibit discrimination on the basis of “pregnancy or a condition related to said pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child[.]” G.L. c. 151B, § 4, ¶ 1. Under the new statute, employers are required to provide a reasonable accommodation to workers who are pregnant or lactating regardless of whether the pregnancy otherwise caused an impairment that would be categorized as a handicap. It appears that courts will give deference to the EEOC’s opinion that impairments lasting less than six months can qualify as disabilities. Before the ADAAA and 2011 Regulations, in Guzman-Rosario v. United Parcel Service, Inc., 397 F.3d 6, 10–11 (1st Cir. 2005), the First Circuit noted that it is “unclear how lower courts should deal with periods [of impairment] between, say 6 and 24 months.” While the court declined to answer the question, it noted that shorter durations of impairment should be “tolerated only for more severe impairments.” Guzman-Rosario suggests that the court will examine temporary impairments using a sliding scale: the shorter the length of time for an impairment (but lasting at least six months), the more severe the impairment must be to qualify under the ADA. More recently, however, in Mancini, the First Circuit made clear that temporary impairments may constitute disabilities under the ADA, and in doing so it cited the EEOC’s 2011 ADAAA regulations with approval. See Mancini v. City of Providence, 909 F.3d at 40 (“Consistent with this statutory shift, the EEOC regulations now provide that a cognizable impairment may last fewer than six months, see 29 C.F.R. § 1630.2(j)(1)(ix), as long as it is ‘sufficiently severe,’ 29 C.F.R. pt. 1630, App. at 387.”). In Mancini, the plaintiff, a police officer, sustained a knee injury that required arthroscopic surgery and caused him to remain out of work for approximately five and one-half months.

4–64

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

Mitigating Measures Prior to the ADAAA, the Supreme Court in 1999 established that, under federal disability law, whether an individual had a disability was determined with consideration of corrective and mitigating measures (such as glasses or medication). See Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999). As discussed above, the ADAAA has rejected and superseded these decisions, and now impairments are to be evaluated in their unmitigated state when determining whether an individual is substantially limited in a major life activity, subject to narrow exceptions. The MCAD Guidelines § II.A.7 state that “[t]he existence of an impairment is generally determined without regard to whether its effect can be mitigated by measures such as medication, auxiliary aids or prosthetic devices.” In Dahill v. Police Dep’t of Boston, 434 Mass. 233, 241–42 (2001), the Massachusetts Supreme Judicial Court affirmed that, contrary to federal law (as it existed at the time), corrective or mitigating measures should not be considered in determining whether an individual has a handicap under G.L. c. 151B. The plaintiff in Dahill was fired from the Boston Police Department because the department believed Dahill’s hearing impairment rendered him unable to perform the essential duties of a police officer. With hearing aids, Dahill’s hearing was within normal limits, but without them, his hearing was significantly impaired. The District Court certified to the Supreme Judicial Court the question of “[w]hether Massachusetts General Laws c. 151B requires consideration of mitigating or corrective devices in determining whether a person has a handicap.” In answering “No,” the Supreme Judicial Court stated that the MCAD Guidelines were entitled to “substantial deference,” as that agency was expressly authorized by the General Court to interpret and implement G.L. c. 151B. Dahill v. Police Dep’t of Bos., 434 Mass. at 239, 242; see also D’Ambrosio v. MBTA, 23 M.D.L.R. 81, 85 (H.O. Gustaferri, 2001) (decided before Dahill but notable in that the hearing officer relied on the 1998 Guidelines in rejecting Sutton and ruling that, under Massachusetts law, “the existence of an impairment is generally determined without regard to whether its effect can be mitigated by measures such as medication”).

Alcoholism or Drug Addiction People who are alcoholics or who are recovering from drug addictions (or are incorrectly perceived as being drug dependent) are considered disabled under both the ADA and G.L. c. 151B. However, both laws specifically exclude from their coverage people who are currently using illegal drugs. 42 U.S.C. § 12114(a); MCAD Guidelines § X.C.1; see also Jones v. City of Boston, 2012 U.S. Dist. LEXIS 141440, at *16 (D. Mass. Sept. 28, 2012) (ADA and Massachusetts law “specifically exclude current drug use as a disability or handicap entitled to statutory protection”).

Record of Impairment Persons with a record of an impairment are also protected by the ADA and Chapter 151B. G.L. c. 151B, § 1(17); 42 U.S.C. § 12102(2)(B). “A record of an impairment” is defined by the ADA regulations as someone who has “a history of, or has been MCLE, Inc. | 2nd Edition 2020

4–65

§ 4.3

Employment Discrimination in Massachusetts

misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” 29 C.F.R. § 1630.2(k)(1); see also Ramon-Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 48 (1st. Cir. 2011) (ADA record of impairment provision protects “those who have recovered or are recovering from substantially limiting impairments . . . based on their medical history”) (internal citations and quotations omitted); Downs v. MBTA, 13 F. Supp. 2d 130, 139 (D. Mass. 1998) (person has record of impairment if they previously had disabling impairment from which they have recovered in whole or in part). The MCAD Guidelines state that “[a] person is considered to be ‘handicapped’ if [the person] has a past record or medical history of a physical or mental impairment that substantially limited one or more major life activities, even though the impairment may no longer exist.” MCAD Guidelines § II.A.3. The MCAD cites as an example of a person with a record of impairment someone who was treated for cancer five years earlier, but has been cancerfree since treatment. MCAD Guidelines § II.A.3. According to the EEOC’s 2011 Regulations, [w]hether an individual has a record of an impairment that substantially limited a major life activity shall be construed broadly to the maximum extent permitted by the ADA and should not demand extensive analysis. An individual will be considered to have a record of a disability if the individual has a history of an impairment that substantially limited one or more major life activities when compared to most people in the general population, or was misclassified as having had such an impairment. 29 C.F.R. § 1630.2(k)(2). The Regulations further state that an individual with a record of impairment may be entitled to a reasonable accommodation if necessary and related to the prior disability. 29 C.F.R. § 1630.2(k)(3). By way of example, the Regulations state that an employee with a record of impairment that no longer substantially limits a major life activity “may need leave or a schedule change to permit him or her to attend follow-up or ‘monitoring’ appointments with a health care professional.” 29 C.F.R. § 1630.2(k)(3).

“Regarded As” Claims As noted above, the ADAAA expanded “regarded as” protection by prohibiting discrimination based on an employer’s alleged perception of a mental or physical impairment, even if that impairment is not a perceived or actual disability under the ADA. See 42 U.S.C. § 12102(3); see also 29 C.F.R. § 1630.2(l). In other words, under the ADA, a plaintiff no longer has to demonstrate that the employer perceived the employee to be substantially limited in a major life activity, or that the employer perceived, even if wrongly, that the employee suffered from an actual disability. This change in the law concerns the ADA only, and not Chapter 151B. Under the EEOC’s Regulations, establishing that an employee suffered adverse employment action because of an impairment is sufficient to establish an ADA “regarded 4–66

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

as” claim. 29 C.F.R. § 1630.2(l)(1)–(2). This means, for example, that a condition causing a lifting restriction that might not rise to the level of an actual disability may nonetheless be the basis of a “regarded as” claim. Excluded from the “regarded as” prong of the definition of disability, however, are “minor and transitory impairments.” 42 U.S.C. § 12102(3)(B). The ADAAA defines “transitory impairments” as those with an actual or expected duration of less than six months. 42 U.S.C. § 12102(3)(B). While Congress and the EEOC created this exclusion from “regarded as” claims, they declined to create a similar exclusion from the definition of an “actual disability.” Instead, as noted above, for purposes of determining an actual disability, the 2011 Regulations reject the notion that temporary impairments can never be substantially limiting. 29 C.F.R. § 1630.2(j)1(ix). Specifically, the Regulations state that “[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.” 29 C.F.R. § 1630.2(j)1(ix). It remains to be seen how courts will address this issue. In one pre-ADAAA “regarded as” case, Cook v. Rhode Island Department of Mental Health, Retardation & Hospitals, 10 F.3d 17, 24 (1st Cir. 1993), the First Circuit concluded not only that the plaintiff could have been found to suffer from a disability (morbid obesity), but, in addition, that the jury could have found that the employer treated the plaintiff as handicapped in concluding that her weight disqualified her from the position for which she had applied. Courts have held that obesity may be considered an actual disability only if it is the result of an underlying physiological disorder or condition and it substantially limits a major life activity. See Nowe v. Shaw’s Supermkts., Inc., No. 97-12777-GAO (D. Mass. Jan. 14, 1999); Gauthier v. Saturn of Natick, 20 M.D.L.R. 41, 44 (1998) (plaintiff must do more than just establish that they were overweight in order to make out claim of handicap discrimination based on weight). However, obesity may still form the basis of a “regarded as” claim notwithstanding any underlying condition or limitation. Even before the ADAAA and 2011 Regulations, the First Circuit ruled that a perceived mental impairment may give rise to an actionable disability discrimination claim. Quiles-Quiles v. Henderson, 439 F.3d 1, 6–7 (1st Cir. 2006). In reversing the judgment in favor of the employer under the Rehabilitation Act, the First Circuit concluded that the plaintiff’s supervisors had called him “crazy” and viewed him as a risk to other employees because he was seeing a psychiatrist for his anxiety and depression. According to the court, these comments indicated that the plaintiff’s supervisors regarded him as potentially violent because of his mental impairment. QuilesQuiles v. Henderson, 439 F.3d at 6–7. In City of New Bedford v. MCAD, 440 Mass. 450, 455 (2003), a case involving Chapter 151B (not the ADA), the plaintiff, a New Bedford police officer and member of the SWAT unit, alleged that the city had discriminated against him based on a “perceived psychological handicap.” After shooting and killing an armed suspect in the line of duty, the plaintiff was placed on “injured on duty” status and remained out of work for one year. City of New Bedford v. MCAD, 440 Mass. at 452. Upon his return to active duty in early 1997, the chief of police refused to allow him to return to the SWAT unit because of his behavior and attitude. However, the plaintiff continued to MCLE, Inc. | 2nd Edition 2020

4–67

§ 4.3

Employment Discrimination in Massachusetts

work as a regular police officer. The plaintiff filed a complaint with the MCAD alleging that the city removed him from the SWAT unit because it “perceived him to be handicapped” and regarded him as having emotional problems after the shooting. After an arbitrator decided that the city had perceived the officer as disabled in the major life activity of “working,” the MCAD affirmed the decision in favor of the officer. On appeal, however, the Supreme Judicial Court deemed the MCAD’s decision “palpably wrong.” City of New Bedford v. MCAD, 440 Mass. at 461. While assuming that the officer’s alleged emotional problems could constitute an impairment, the court held that an employee can be regarded as being substantially limited in the major life activity of working only if their employer perceives them as being precluded from performing a class or a broad range of jobs. City of New Bedford v. MCAD, 440 Mass. at 466. In this case, the officer remained on the job as a full-time, active police officer. The city’s removal of him from the SWAT team position showed only that the city regarded him as limited in the performance of “a single, particular job.” City of New Bedford v. MCAD, 440 Mass. at 466. Presumably, this case would have a different outcome under the ADA today given the ADAAA’s expanded coverage of individuals regarded as disabled even if the impairment does not substantially limit (or is perceived to substantially limit) a major life activity. See 42 U.S.C. § 12102(3); see also 29 C.F.R. § 1630.2(l). In its 2011 Regulations, the EEOC states: [M]any cases previously analyzed in terms of whether the plaintiff was “substantially limited in working” will now be analyzed under the “regarded as” prong of the definition of disability as revised by the Amendments Act. See, e.g., Cannon v. Levi Strauss & Co., 29 F. App’x. 331 (6th Cir. 2002) (factory worker laid off due to her carpal tunnel syndrome not regarded as substantially limited in working because her job of sewing machine operator was not a “broad class of jobs”; she would now be protected under the third prong because she was fired because of her impairment, carpal tunnel syndrome); Bridges v. City of Bossier, 92 F.3d 329 (5th Cir. 1996) (applicant not hired for firefighting job because of his mild hemophilia not regarded as substantially limited in working; applicant would now be protected under the third prong because he was not hired because of his impairment, hemophilia). 29 C.F.R. pt. 1630, app. (Substantially Limited in Working). It is not yet clear whether courts interpreting Massachusetts law (Chapter 151B) will continue to require plaintiffs asserting “regarded as” claims to meet the substantial limitation prong or turn in line with the ADAAA and the EEOC’s 2011 Regulations. However, two 2016 U.S. District Court rulings interpreted Massachusetts law to continue adhering to the more demanding pre-ADAAA standard. See Izzo v. Genesco, Inc., 171 F. Supp. 3d 1, 9–10 (D. Mass. 2016) (holding that “the more demanding pre-ADAAA standard applies to a Chapter 151B ‘regarded as’ employment discrimination claim”); see also Cruz v. Bos. Litig. Servs., No. 13-11127-LTS, 2016 WL 4–68

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

3568254, at *13 (D. Mass. May 24, 2016) (citing Izzo for same proposition). In a 2017 opinion, the Massachusetts Appeals Court, too, continued to rely on the language of G.L. c. 151B, § 1(17), which, unlike the ADA, continues to define “handicap” as being regarded as having an impairment “which substantially limits one or more major life activities of a person[.]” See Massasoit Indus. Corp. v. MCAD, 91 Mass. App. Ct. 208, 213–14 (2017) (affirming finding of handicap discrimination on “regarded as” theory after noting that the hearing officer “found that [the employer] perceived [the employee] to be substantially limited in a major life activity”).

“Qualified” The second element a plaintiff must establish in their prima facie case is that they are “qualified.” To be qualified, an applicant or employee must possess the “requisite skill, experience, education and other job-related requirements of the employment position” and must be able to perform its essential functions, with or without a reasonable accommodation. 29 C.F.R. § 1630.2(m); MCAD Guidelines § II.B. The EEOC’s 2011 Regulations state that, for example, “the first step in determining whether an accountant who is paraplegic is qualified for a certified public accountant (CPA) position is to examine the individual’s credentials to determine whether the individual is a licensed CPA.” 29 C.F.R. pt. 1630, app. (Qualified Individual). After the first step, a determination must be made as to whether the employee or applicant can perform the essential functions with or without a reasonable accommodation. 29 C.F.R. pt. 1630, app. (Qualified Individual). The MCAD Guidelines define essential functions as “those functions which must necessarily be performed by an employee to accomplish the principal objectives of the job.” MCAD Guidelines § II.B; see also 29 C.F.R. § 1630.2(n)(1) (fundamental duties of position constitute its “essential functions”). Marginal functions of the position are expressly excluded from this definition. 29 C.F.R. § 1630.2(n)(1). Pursuant to the EEOC’s 2011 regulations, [a] job function may be considered essential for any of several reasons, including but not limited to the following: (i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. 29 C.F.R. § 1630.2(n)(2). The EEOC has also provided a nonexhaustive list of evidence impacting the determination of whether a job function is in fact essential: (i) The employer’s judgment as to which functions are essential; MCLE, Inc. | 2nd Edition 2020

4–69

§ 4.3

Employment Discrimination in Massachusetts

(ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(2); see also Mazzarella v. U.S. Postal Serv., 849 F. Supp. 89, 94 (D. Mass. 1994) (citing collective bargaining agreement, which incorporated terms of employment from employee manual and postal regulations, as evidence of essential functions of position); Labonte v. Hutchins & Wheeler, 424 Mass. 813, 822–23 (1996) (holding that determination of what constitutes essential functions of job is not dependent exclusively on employer’s judgment—court may look to what persons in the job actually have done). In addition, courts may look to counsel’s prior concessions to a court regarding whether a function constitutes an essential function. Lang v. Wal-Mart Stores E., L.P., 813 F.3d 447, 455 (1st Cir. 2016) (holding that, on appeal, plaintiff’s counsel cannot forsake her prior concessions—in summary judgment opposition, during argument on that motion, and in the motion for reconsideration—to the District Court that lifting sixty pounds without assistance is an essential function).

Does the Employer Actually Require the Function to Be Performed? Courts do not rigidly adhere to job duties listed as essential in job descriptions if the employer does not actually require its employees to perform those duties. See, e.g., MCAD Guidelines § II.B (“functions that are identified as part of a job but which are in fact rarely or never performed will not likely be considered essential”). Nonetheless, a particular function need not be an ordinary part of a person’s job. If it is possible that the employee will be required to perform the function under extraordinary circumstances, it still may be considered essential. Cox v. New Eng. Tel. & Tel., 414 Mass. 375, 386–88 (1993) (deciding that “gaff-climbing,” while likely to be required only in an emergency, was an essential function of the position); see also MCAD Guidelines § II.B (“while a firefighter may only be called upon to withstand the intense heat of flames on very rare occasions, removing this function from [their] job would fundamentally change the nature of the job”). Similarly, even when an employer and an employee “have made arrangements to account for the employee’s disability—a court must evaluate the essential functions of the job without considering the effect of the special arrangements.” Phelps v. Optima Health, Inc., 251 F.3d 21, 25 (1st Cir. 2001) (construing federal law and holding that lifting was an essential function of clinical nurse job even though the job had been modified to accommodate the employee).

4–70

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

Likewise, the amount of time spent performing the function may also be evidence of whether it is essential. As indicated above, a job function performed infrequently, however, may nonetheless be essential if the consequences of the employee’s inability to perform it would be serious. See Technical Assistance Manual on the Employment Provisions of the Americans with Disabilities Act—Explanation of Key Legal Requirements § 2.3(a)(3)(d) (hereinafter “Technical Assistance Manual”). For example, an airline pilot spends little time landing an airplane, but the ability to land it is critical. See Technical Assistance Manual § 2.3(a)(3)(d); see also Cox v. New Eng. Tel. & Tel., 414 Mass. 375, 386–88 (1993); 29 C.F.R. pt. 1630, app. (Essential Functions) (“although a firefighter may not regularly have to carry an unconscious adult out of a burning building, the consequence of failing to require the firefighter to be able to perform this function would be serious”).

Would Removing the Function Fundamentally Alter the Position? If the job function is the position’s primary objective, if others are not able to perform it or to take on additional work, or if the person in the position was hired for that particular skill, then it is an essential function and the individual must be capable of performing it with or without reasonable accommodation. 29 C.F.R. § 1630.2(n)(2); see also Kvorjak v. Maine, 259 F.3d 48, 57 (1st Cir. 2001) (rejecting work-at-home accommodation under federal law because the job of claims adjudicator required attendance at call center); Beal v. Bd. of Selectmen of Hingham, 419 Mass. 535, 542–43 (1995) (holding that protecting the public is essential function of police and that employee’s susceptibility to blackouts might prevent her from being able to perform that function); Godfrey v. Globe Newspaper Co., 457 Mass. 113, 120–25 (2010) (for an assistant press foreman at a newspaper, climbing press was an essential job function and assigning that task to another employee would require elimination of an essential job function); Richardson v. Friendly Ice Cream Corp., 594 F.3d 69, 78–81 (1st Cir. 2010) (employer does not have to forego essential job functions or reallocate them to other employees as part of its duty to provide a reasonable accommodation). But see Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 35 (1st Cir. 2000) (holding that, on facts presented, a question of fact existed as to whether a regular and predictable schedule was an essential function of employee’s job). The Massachusetts Appeals Court has emphasized the importance of job descriptions in determining whether a function is essential. In Cargill v. Harvard University, 60 Mass. App. Ct. 585 (2004), the plaintiff, a lead reference librarian, alleged that the university failed to accommodate her by relieving her of the duties of shelving books and paging/retrieval. The university claimed that these were essential functions of the job. The court reversed a grant of summary judgment because questions remained as to whether the functions were, in fact, essential. Importantly, the court noted, the written job description did not include these functions. Cargill v. Harvard Univ., 60 Mass. App. Ct. at 598–99. In light of the conflicting evidence, the court refused to give the university’s judgment deference. Cargill v. Harvard Univ., 60 Mass. App. Ct. at 600 & n.14. In a First Circuit case applying the ADA, the court found that conduct by the employer was sufficiently inconsistent with a finding that certain job requirements were MCLE, Inc. | 2nd Edition 2020

4–71

§ 4.3

Employment Discrimination in Massachusetts

essential functions to defeat summary judgment. Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002). The job at issue was emergency medical technician (EMT), and the job functions at issue were lifting in excess of seventy pounds and performing two-handed lifting. The plaintiff, who had only one functioning arm and who did not use a prosthesis, was denied an EMT job because the employer concluded (based on a medical opinion) that she could not perform these two job functions. In determining that a question of fact existed as to whether the seventy-pound lifting requirement was indeed an essential function, the court noted that the doctor responsible for the preemployment medical exam did not even test the plaintiff’s strength or lifting mechanics, and that the plaintiff was apparently the first applicant required to pass a strength test. As to the two-handed lifting requirement, the court again found a question of fact, noting that the employer made the plaintiff a conditional offer of employment (subject to passing the medical exam), knowing that she had only one functioning arm. “In and of itself, that request attests to [the Company’s] belief, at the relevant time, that a one-handed individual might be able to perform the essential functions of the EMT position.” Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d at 28. Courts give weight to the employer’s judgment when deciding whether a function is essential and whether an employee can perform it. Indeed, the First Circuit explained that “[i]n the absence of evidence of discriminatory animus, courts generally give ‘substantial weight’ to the employer’s judgment as to what functions are essential.” Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir. 2001) (upholding employer’s determination of essential functions in Rehabilitation Act case); see also Bento v. I.T.O. Corp. of R.I., 599 F. Supp. 731, 744–45 (D. Mass. 1984) (finding no violation in employer’s refusal to hire employee in the absence of definitive medical assurance that employee is able to perform functions of longshoreman); Lucero v. Hart, 915 F.2d 1367, 1371– 72 (9th Cir. 1990) (upholding employer’s rejection of disabled applicant who could type only forty-four words per minute, rather than the required forty-five). Courts generally do not “second guess” an employer’s “business judgment” regarding performance standards and qualifications. 29 C.F.R. pt. 1630, app. (Essential Functions); Technical Assistance Manual § 2.3(a)(3)(a). But see Cargill v. Harvard Univ., 60 Mass. App. Ct. 585, 600–01 (2004) (while recognizing that employer’s view as to essential functions is important, court noted that it is only one factor to be considered); Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d at 25 (noting that “the employer’s good faith view of what a job entails, though important, is not dispositive”); Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 34 (1st Cir. 2000) (stating that the employer’s view of job requirements is “only one factor in the analysis”); Labonte v. Hutchins & Wheeler, 424 Mass. 813, 822–23 (1996) (holding that determination of essential functions not dependent only on employer’s judgment). An employer must be able to demonstrate that it applies the established position requirements to all employees and applicants equally and that the requirements are not a pretext for discrimination. 29 C.F.R. pt. 1630, app. (Essential Functions). In Carleton v. Commonwealth, 447 Mass. 791 (2006), the Supreme Judicial Court affirmed summary judgment in favor of the Commonwealth notwithstanding its refusal to hire the hearing-impaired plaintiff due to his failure to meet the statutory minimum health and fitness standards for firefighters. The court held that, where “a level of hearing acuity reflected in the hearing standard is an essential qualification for a municipal 4–72

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

fire fighter . . . and the accommodation sought (the use of hearing aids) is not a reasonable one as determined by the Legislature, [the plaintiff] has no reasonable expectation of proving that he is a qualified handicapped person.” Carleton v. Commonwealth, 447 Mass. at 810. Courts also have found certain general behaviors and traits to be inherent in the definition of “essential functions.” For example, the ability to appear for work, and to arrive at the scheduled time, are considered by many courts to be general prerequisites for any job. See, e.g., EEOC v. Yellow Freight Sys., 253 F.3d 943, 948 (7th Cir. 2001) (en banc) (“let us be clear that our court, and every circuit that has addressed this issue, has held that in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability. The fact is that in most cases, attendance at the job site is a basic requirement of most jobs.”); Jacques v. Clean-Up Grp., Inc., 96 F.3d 506, 512 (1st Cir. 1996) (noting that jury could reasonably have found that allowing employee to start work at 10:00 a.m. was not a reasonable accommodation where 8:00 arrival time was essential function of position); Hart v. Frank, 1990 U.S. Dist. LEXIS 18848, at *3–4 (D. Mass. Aug. 2, 1990), aff’d, 930 F.2d 905 (1st Cir. 1991) (holding that employer not required to tolerate absences of employee recovering from drug and alcohol addiction where employer already had given employee leave, referred him to counseling, and entered into two last-chance agreements). However, courts take a case-bycase approach in determining when a regular and reliable schedule is an essential element of a job. See Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 35 (1st Cir. 2000). In Ward, the court held that a reasonable fact finder could determine that regular, reliable hours were not an essential function of a lab assistant or data entry assistant, as long as the employee worked the requisite seven and one-half hours per day. At the time of the accommodation request, the employee was already allowed to work a flexible schedule regardless of his supervisor’s schedule. While most job descriptions do not so explicitly state, courts have found that the ability to refrain from violent behavior is an essential job function. See Mazzarella v. U.S. Postal Serv., 849 F. Supp. 89, 94 (D. Mass. 1994) (holding ability to refrain from violent and destructive behavior is an essential job function). An employee’s character and reputation may also be relevant to their qualification for a position. See Taub v. Frank, 957 F.2d 8, 10 (1st Cir. 1992) (noting that the requirements of a position with the Postal Service include prohibition of criminal conduct and the ability to uphold standards of honesty, reliability, and trustworthiness); Russell v. Frank, 1991 U.S. Dist. LEXIS 7549, at *11 (D. Mass. 1991), aff’d, 971 F.2d 744 (1st Cir. 1992) (ability to tell the truth is essential part of every job). Following this reasoning, the First Circuit has noted, in dicta, that an employee who acts out angrily in stressful situations is not “qualified” under the ADA. Calef v. Gillette Co., 322 F.3d 75, 87 (1st Cir. 2003). The court reasoned that, because the employer had disciplined others for similar behavior, handling stressful situations was an essential function of the job and an inability to handle stress appropriately made one unqualified for the position. Calef serves as a reminder that an employer need not accept threatening behavior, even if the employee claims that their misconduct results from a disability. MCLE, Inc. | 2nd Edition 2020

4–73

§ 4.3

Employment Discrimination in Massachusetts

Although typically the issue of whether a handicapped employee poses a risk to others arises as an affirmative defense (see “Accommodation Where Misconduct Is Involved,” under § 4.3.2(d), below), if the employee’s position involves protecting the safety and well-being of others, the fact that their disability creates a safety risk is a factor in the determination of whether the employee is able to fulfill the essential functions of the position. See Gannon v. City of Boston, 476 Mass. at 798 (“where . . . the nature of the job will at times place the employee in harm’s way, it is impossible to divorce the question whether the employee is capable of performing the essential functions of the position from the question whether the employee can perform those functions safely”). In Beal v. Board of Selectmen of Hingham, 419 Mass. 535, 543 (1995), the Supreme Judicial Court concluded that the plaintiff, a police officer susceptible to stress-related blackouts, had no reasonable expectation of showing that she was a qualified handicapped person, because her handicap “severely compromises her capability to ensure the general safety of the public.” In EEOC v. Amego, Inc., 110 F.3d 135, 143–44 (1st Cir. 1997), the court concluded that risk to others was properly considered in the analysis of whether the employee was a “qualified individual” when “the issue of risk posed to others arises in the core function of the job.” EEOC v. Amego, Inc., 110 F.3d at 143–44. Thus, the court concluded, a suicidal employee who had attempted to overdose on prescription medications posed a safety risk to the autistic clients in her care and was therefore not qualified for the position. “Where . . . essential job functions necessarily implicate the safety of others, plaintiff must demonstrate that she can perform those functions in a way that does not endanger others.” EEOC v. Amego, Inc., 110 F.3d at 144; see also Carleton v. Commonwealth, 447 Mass. 791 (2006) (legislature may determine that a certain degree of hearing loss puts the public at risk). But see Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002) (question of fact existed as to whether job applicant with only one functioning arm could safely perform the job of emergency medical technician). In Gannon v. City of Boston, 476 Mass. at 797–99, the Supreme Judicial Court recently refined the law, holding that, where an employer defends an adverse employment decision because “there is a risk of future injury to the employee or others,” it is improper to shift the ultimate burden of proof to the employer. The court clarified, stating that “[w]hile the handicapped employee ultimately bears the burden of proving that he or she can safely perform the essential functions of a particular job, the employee need only confront this burden where the employer has met its burden of producing specific evidence showing that the employee would pose an unacceptably significant risk of serious injury to the employee or others.” Gannon v. City of Boston, 476 Mass. at 799. Where the employer has satisfied this burden of production, the employee “must prove that he or she is capable of performing the essential functions of the job without posing an unacceptably significant risk of serious injury to the employee or others.” Gannon v. City of Boston, 476 Mass. at 800. The court also clarified that “an employee may be found incapable of safely performing the essential functions of a position, and therefore not qualified under the statute, without the risk rising to the standard of a ‘reasonable probability of substantial harm.’” Gannon v. City of Boston, 476 Mass. at 799. Contrast MCAD Guidelines § IX.B.3. Ultimately, a determination of essential job functions is specific to each job and requires an individualized examination of the actual job requirements. See 29 C.F.R. 4–74

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

pt. 1630, app. (Essential Functions) (“Whether a particular function is essential is a factual determination that must be made on a case by case basis.”). For example, in Mulloy v. Acushnet Co., 460 F.3d 141, 150–54 (1st Cir. 2006), the First Circuit affirmed summary judgment for the employer, finding that the employee’s physical presence at work was an essential function of the plaintiff’s job as an electrical engineer. The court found that the plaintiff’s proposed accommodation of working remotely was “per se unreasonable” because it “would prevent him from performing an essential function of his job, namely, being physically present.” Mulloy v. Acushnet Co., 460 F.3d at 153. In Smith v. Bell Atlantic, 63 Mass. App. Ct. 702 (2005), the plaintiff argued that the employer should have allowed her to work from home. The employer countered that attendance at the office was an essential function of the plaintiff’s job. The Appeals Court held that, given the technology available to the plaintiff and the nature of her responsibilities, a jury could find that she could perform all of her job duties at home and that attendance at the office was not essential to her job. In Kvorjak v. Maine, 259 F.3d 48 (1st Cir. 2001), the First Circuit affirmed summary judgment for the employer because the plaintiff’s job required that he engage in interaction with others in the workforce. Yet, in Moebius v. Tharperobbins Co., No. 15-10751-MBB, 2016 WL 6476941, at *11–12 (D. Mass. Nov. 1, 2016), the court held that being in the office at all times was a marginal requirement and not an essential function of the plaintiff’s job as a senior network engineer. See also Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 88–89 (1st Cir. 2012) (employee not a qualified individual with a disability because he failed to pass a test and obtain a license to perform an essential job duty); Jones v. Walgreen Co., 679 F.3d 9, 18–19 (1st Cir. 2012) (employee not qualified disabled person where doctor’s note reflecting employee could not stand longer than thirty minutes or fully bend, stoop, squat, kneel, climb stairs, or use a ladder rendered employee incapable of performing essential job functions); Wong v. Verizon New Eng., Inc., 2012 Mass. Unpub. LEXIS 348, at *2–5 (Mass. App. Ct. Mar. 21, 2012) (employee not qualified handicapped person under Chapter 151B where doctor’s restrictions prevented employee from using ladder required to perform essential job functions); Anderson v. United Parcel Serv., Inc., 2012 U.S. Dist. LEXIS 43977, at *13–25 (D. Mass. Mar. 29, 2012) (employee not qualified disabled person where doctor certified that he could not work nights or long daytime hours, which were essential functions of supervisory positions at issue); Bourque v. Shinseki, 2011 U.S. Dist. LEXIS 142040, at *14–19 (D. Mass. Dec. 9, 2011) (nurse’s request for permanent light duty and assistance from other nurses to do heavy lifting rendered employee unqualified as relief from essential job functions not reasonable accommodation). But see Cairo v. Starbucks Corp., 2013 U.S. Dist. LEXIS 131173, at *24–31 (D. Mass. Sept. 13, 2013) (holding in a case under ADA and Chapter 151B that a jury could find that working opening and closing shifts were not essential job functions and, therefore, not excusing plaintiff from those shifts constituted a failure to reasonably accommodate); Hochstetler v. Int’l Bus. Machs., Inc., 2013 U.S. Dist. LEXIS 181697, at *23–25 (D. Mass. Dec. 31, 2013) (holding in a case under Chapter 151B that defendant had not shown that all of the employee’s goals were essential job functions, so “a fact-finder could determine that agreeing to reduce [a handicapped] plaintiff’s hours but refusing to decrease her workload constituted a failure to make a reasonable accommodation”).

MCLE, Inc. | 2nd Edition 2020

4–75

§ 4.3

Employment Discrimination in Massachusetts

The above cases illustrate that, in the ADA and Chapter 151B context, general statements about what is or is not an essential job function are difficult to make. Rather, it is necessary to make an individualized examination of the actual job requirements. For example, in a recent case, a court found that a genuine dispute of material fact existed as to whether full-time classroom presence was an essential job function for a full-time elementary school teacher. See Incutto v. Newton Pub. Sch., No. CV 1612385-LTS, 2019 WL 1490132, at *2–*3 (D. Mass. Apr. 4, 2019). In Incutto, the court pointed to record evidence suggesting that, notwithstanding the teacher’s fulltime position, she had in fact worked part time in previous school years by jobsharing; there was also evidence that, in most school years during the relevant time period, multiple elementary classroom teaching positions were job-shared between two teachers. Incutto v. Newton Pub. Sch., 2019 WL 1490132, at *2. Additionally, during the relevant time period in which the plaintiff had requested part-time employment, the record showed that multiple job-share positions did in fact become available within the school district. Incutto v. Newton Pub. Sch., 2019 WL 1490132, at *2. Consequently, the court concluded that a jury would not be compelled to find that the plaintiff’s full-time classroom presence was an essential function of her fulltime teaching position. Incutto v. Newton Pub. Sch., 2019 WL 1490132, at *3.

(d)

Duty of Reasonable Accommodation

Definition of “Reasonable Accommodation” A “reasonable accommodation” is a modification or adjustment to the job application process, the work environment, or the conditions under which the work is performed. 29 C.F.R. § 1630.2(o)(1). A modification or adjustment that enables a disabled employee to enjoy equivalent benefits and privileges may also constitute a reasonable accommodation. 29 C.F.R. § 1630.2(o). The statutory words “reasonable accommodation” mean more than an “effective accommodation” that would meet an individual’s disability-related needs. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002). The MCAD Guidelines define “reasonable accommodation” as “any adjustment or modification to a job (or the way a job is done), employment practice, or work environment that makes it possible for a handicapped individual to perform the essential functions of the position involved and to enjoy equal terms, conditions and benefits of employment.” MCAD Guidelines § II.C. Likewise, the EEOC’s 2011 Regulations state that reasonable accommodations may include, but are not limited to the following: (i) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (ii) Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities. 29 C.F.R. § 1630.2(o)(2); see also Andrews v. MBTA, 2012 U.S. Dist. LEXIS 76132, at *12 (D. Mass. May 31, 2012) (noting that the ADA “may consider failure to reassign 4–76

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

a qualified individual to a vacant position as a form of [failure to accommodate] discrimination”); Valle-Arce v. P.R. Ports Auth., 2011 U.S. App. LEXIS 13937, at *22 (1st Cir. July 8, 2011) (attendance is essential job function, but noting that flexible work schedule for employee with chronic fatigue syndrome may be reasonable accommodation allowing employee to satisfy attendance requirement). As noted above, the ADAAA does not require employers to provide reasonable accommodations to individuals “regarded as” disabled. However, the EEOC’s 2011 Regulations state that employers are required to provide reasonable accommodations not only to qualified individuals with actual disabilities but also to individuals with a “record of” disability. 29 C.F.R. § 1630.2(k)(3). As an example, the EEOC states that an employee with a record of impairment that no longer substantially limits a major life activity “may need leave or a schedule change to permit him or her to attend follow-up or ‘monitoring’ appointments with a health care professional.” 29 C.F.R. § 1630.2(k)(3). Courts have analyzed “reasonableness” as a function of the relationship between an accommodation’s cost to the employer and its benefit to the disabled employee. The Seventh Circuit took the lead in Vande Zande v. Wisconsin Department of Administration, 44 F.3d 538 (7th Cir. 1995), involving an employee who had received numerous accommodations to her paraplegia but had claimed that the employer had violated the ADA by failing to provide certain other accommodations that she had requested. The court rejected the employee’s contention that the cost of a proposed accommodation was not relevant to an analysis of its reasonableness but only to an analysis of whether it posed an “undue hardship.” The court concluded that the employee “must show that the accommodation is reasonable in the sense both of efficacious and of proportional to costs.” Vande Zande v. Wis. Dep’t of Admin., 44 F.3d at 543. Similarly, the court in Borkowski v. Valley Central School District, 63 F.3d 131, 138 (2d Cir. 1995), reasoned that an accommodation was reasonable only if its costs were not clearly disproportionate to the benefits that it would produce, noting that the employee had the burden of producing evidence of “the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.” Following these two decisions, other courts have applied a similar cost-benefit analysis. See, e.g., Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 670 (3d Cir. 1999); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1184 (6th Cir. 1996); Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 781 (6th Cir. 1998); Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997). Thus, if the cost of a proposed accommodation is disproportionate to its benefits, a court may conclude that the accommodation is “unreasonable” without requiring the employer to prove that it would pose an undue hardship. In Reed v. LePage Bakeries, Inc., 244 F.3d 254 (1st Cir. 2001), the First Circuit clarified its position on the analysis of “reasonableness” and the relative burdens of proof in reasonable accommodation cases. The court stated that a plaintiff must show not only that a requested accommodation would enable them to do the job effectively, but also that the requested accommodation is reasonable. Reed v. LePage Bakeries, Inc., 244 F.3d at 259. To do this, a plaintiff must “in some way consider the difficulty or expense imposed on the one doing the accommodating.” Reed v. LePage Bakeries, MCLE, Inc. | 2nd Edition 2020

4–77

§ 4.3

Employment Discrimination in Massachusetts

Inc., 244 F.3d at 259 (citing Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 542– 43 (7th Cir. 1995)). If the plaintiff succeeds in carrying this burden, the defendant has the opportunity to argue that the proposed accommodation is not as reasonable or feasible as it appears. Reed v. LePage Bakeries, Inc., 244 F.3d at 259. Because the dividing line between “reasonable accommodation” and “undue hardship” will often be inexact, the court cautioned counsel to “err on the side of offering proof beyond what their burdens require.” Reed v. LePage Bakeries, Inc., 244 F.3d at 260; see also Bryant v. Caritas Norwood Hosp., 345 F. Supp. 2d 155, 170 (D. Mass. 2004) (a plaintiff’s request for accommodation must be reasonable and feasible for the employer under the circumstances (citing Reed)). But see D’Ambrosio v. MBTA, 23 M.D.L.R. 81, 85 (H.O. Gustaferri, 2001) (“[i]t is the employer’s burden to demonstrate that the accommodation sought is unreasonable because it would impose an undue hardship on the employer’s business”). Practice Note The Supreme Court in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002), cited the “practical” analysis in Reed with approval. The First Circuit’s burden-shifting formula, applied consistently with ordinary summary judgment principles, reconciles the two statutory phrases (“reasonable accommodation” and “undue hardship”), said the Court. U.S. Airways, Inc. v. Barnett, 535 U.S. at 402. As a result of the U.S. Airways decision, the EEOC revised its Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA (updated October 2002).

The MCAD has articulated the prima facie case for a failure to accommodate claim under G.L. c. 151B. In Forrest v. Wal-Mart, 23 M.D.L.R. 110 (H.O. Lamond, 2001), Hearing Officer Lamond opined that, to state a claim of discrimination based on an employer’s failure to accommodate, an employee must demonstrate that • she is a handicapped person within the meaning of the statute; • she is a “qualified” handicapped person, i.e., she is able to perform the essential functions of the job with a reasonable accommodation; • she requested a reasonable accommodation; and • she was prevented from performing her job because her employer failed to reasonably accommodate the limitations associated with her handicap. Forrest v. Wal-Mart, 23 M.D.L.R. at 114. Note that the hearing officer applied a tougher standard on complainants than the prima facie case articulated in the 1998 MCAD Guidelines: Employment Discrimination on the Basis of Handicap, and at least one subsequent case, Reade v. Franklin/Hampshire Employment & Training Consortium, 21 M.D.L.R. 185, 190 (H.O. Schwarz, 1999). The First Circuit requires a similar multipart test for failure to accommodate claims, requiring the plaintiff to show that they are disabled within the meaning of the ADA; that they were able to perform the essential functions of the job with or without a 4–78

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

reasonable accommodation; and that the defendant, despite knowing of the disability and the request or need for accommodation, did not reasonably accommodate it. Estades Negroni v. Assocs. Corp. N. Am., 377 F.3d 58, 63 (1st Cir. 2004). An accommodation does not have to achieve an equal result or provide exactly the same benefits or privileges for a disabled employee. See Technical Assistance Manual § 3.4; see also Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 546 (7th Cir. 1995) (holding that lowering kitchen sink tops was unreasonable where employee in wheelchair could use bathroom sink; “duty of reasonable accommodation is satisfied when the employer does what is necessary to enable the disabled worker to work in reasonable comfort”). Furthermore, the accommodation does not have to be the best available accommodation. 29 C.F.R. pt. 1630, app. (Not Making Reasonable Accommodation); MCAD Guidelines § II.C. It need only be effective. Technical Assistance Manual § 3.4; MCAD Guidelines § II.C; see also Petrillo v. Bos. Water & Sewer Comm’n, 20 M.D.L.R. 150, 154 (1998) (respirator was reasonable accommodation of plaintiff’s asthma; employer not obligated to reventilate garage where employee worked); Figueroa v. Springfield Transit Mgmt., 23 M.D.L.R. 17 (H.C. Gomez, 2001) (reasonable accommodation for employee with asthma includes limiting or eliminating her exposure to cigarette smoke on the job); McGahan v. Kimball, Bennett, Brooslin & Pava, 21 M.D.L.R. 244 (H.O. Kaplan, 1999) (reasonable accommodation for employee with asthma may include restricting smoking areas to reduce amount of smoke in complainant’s work area). Further, an employer need not provide the employee’s requested accommodation but must merely provide one that allows the employee to perform the essential functions of their job. See Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 112–13 (1st Cir. 2006) (where employer complied with the physician’s recommended accommodations, rather than plaintiff’s requested accommodation that did not relate to her claimed disability, summary judgment for employer affirmed); Bryant v. Caritas Norwood Hosp., 345 F. Supp. 2d 155, 169 (D. Mass. 2004) (an employer that did not grant the requested accommodation, but offered other reasonable accommodation, did not fail to reasonably accommodate employee).

Modifying Job Tasks While changes in the peripheral or marginal tasks of a position may be a reasonable accommodation, an employer is not required to accommodate a disability by foregoing or compromising an essential function of the position. Kvorjak v. Maine, 259 F.3d 48, 57 (1st Cir. 2001); Laurin v. Providence Hosp., 150 F.3d 52, 56 (1st Cir. 1998); Feliciano v. Rhode Island, 160 F.3d 780, 785 (1st Cir. 1998); Beal v. Bd. of Selectmen of Hingham, 419 Mass. 535, 542 (1995) (employer may refuse to accommodate any handicap that necessitates the substantial modification of employment standards); Cox v. New Eng. Tel. & Tel., 414 Mass. 375, 390 (1993) (law does not require an employer to waive or excuse “an inability to perform an essential job function”); Godfrey v. Globe Newspaper Co., 457 Mass. 113, 120–25 (2010) (employer does not have to eliminate an essential job function to accommodate a disability under G.L. c. 151B); Richardson v. Friendly Ice Cream Corp., 594 F.3d 69, 78–81 (1st Cir. 2010) (employer does not have to forego essential job functions or reallocate MCLE, Inc. | 2nd Edition 2020

4–79

§ 4.3

Employment Discrimination in Massachusetts

them to other employees as part of its duty to provide a reasonable accommodation under ADA). The Supreme Judicial Court has reaffirmed that an employer need not create a position as a reasonable accommodation. See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 454 (2002) (employer “would not have been required to fashion a new position for the plaintiff”). On the other hand, if the tasks are not essential to the job, an employer must reasonably accommodate the handicapped employee by removing those nonessential tasks that they are unable to perform. See Cargill v. Harvard Univ., 60 Mass. App. Ct. 585 (2004) (a question of fact remained as to whether shelving books and paging/ retrieval were essential job functions of a university librarian); Cairo v. Starbucks Corp., 2013 U.S. Dist. LEXIS 131173, at *24–31 (D. Mass. Sept. 13, 2013) (holding in a case under ADA and Chapter 151B that a jury could find that working opening and closing shifts were not essential job functions, and therefore, not excusing plaintiff from those shifts constituted a failure to reasonably accommodate).

Reassignment Under the ADA, an employer may be obligated to reassign a disabled employee to another vacant position to accommodate the individual’s disability. 42 U.S.C. § 12111(9)(B) (stating that “reasonable accommodation” may include “reassignment to a vacant position”); see also 29 C.F.R. § 1630.2(o)(2)(ii). In contrast to the ADA, however, Chapter 151B does not expressly obligate an employer to reassign a handicapped employee to a vacant position when the employee cannot perform their present job, with or without accommodation. Lolos v. Solutia, Inc., 193 F. Supp. 2d 364, 369 (D. Mass. 2002); Hayward v. Mass. Water Res. Auth., 13 Mass. L. Rptr. 239 (Super. Ct. 2001) (Gants, J.). This is because the duty to reassign a disabled employee to a vacant position derives entirely from the statutory language of the ADA, and not from any language in G.L. c. 151B. Lolos v. Solutia, Inc., 193 F. Supp. 2d at 371; Hayward v. Mass. Water Res. Auth., 13 Mass. L. Rptr. 239 (Super. Ct. 2001). Instead, under Massachusetts law, the employer’s duty is to “treat a handicapped employee in the same fashion as it treats a non-handicapped employee who, through no fault of his own, no longer can continue in his previous job, either because the job has been eliminated or has been upgraded beyond the qualifications of the employee.” Hayward v. Mass. Water Res. Auth., 13 Mass. L. Rptr. 239 (Super. Ct. 2001). In practice, the court noted, this interpretation is similar to the Seventh Circuit’s interpretation of the ADA in EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000); Hayward v. Mass. Water Res. Auth., 13 Mass. L. Rptr. 239 (Super. Ct. 2001). However, under Chapter 151B, an employer may be obligated to transfer a handicapped employee to a light-duty position if the employer had a policy of doing so for other employees. Godfrey v. Globe Newspaper Co. 457 Mass. 113, 120–25 (2010) (stating that reasonable accommodation under G.L. c. 151B may require employer to transfer disabled employee to light-duty position if employer had a policy of doing so for other injured employees); see also Ross v. MBTA, 21 M.D.L.R. 163, 166–67 (H.O. Gustaferri, 1999) (transfer to light duty was a reasonable accommodation 4–80

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

where employer had a policy of making light-duty positions available). Any obligation to do so, however, is limited by certain factors. An employer is not required, for example, to promote an employee, to create a new job, or to displace another employee. See, e.g., Phelps v. Optima Health, Inc., 251 F.3d 21, 27 (1st Cir. 2001) (“An employer is not required by the ADA to create a new job for an employee, nor to reestablish a position that no longer exists.”); Fedro v. Reno, 21 F.3d 1391, 1395–96 (7th Cir. 1994); White v. York Int’l Corp., 45 F.3d 357, 362 (10th Cir. 1995); Hayward v. Mass. Water Res. Auth., 13 Mass. L. Rptr. 239, 2001 WL 635952, at *3 (Super. Ct. 2001) (duty of reasonable accommodation under G.L. c. 151B does not require employer to create a new job with only subset of the essential functions of the previous position). If an employer has a policy of providing light-duty assignments to injured employees who are incapable of performing the essential functions of their former positions, and doing so would not result in an undue hardship, an employer may be required to offer a light-duty assignment as a reasonable accommodation. Godfrey v. Globe Newspaper Co., 457 Mass. 113, 125–26 (2010). Absent “special circumstances,” an employer need not assign a disabled employee to a particular position where another employee is entitled to that position under the employer’s established seniority system. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 405 (2002). Additionally, the employee must be qualified for the new position—that is, the employee must have the requisite skill, experience, education, and other jobrelated requirements of the position. “Enforcement Guidance,” Reassignment. Finally, the employee bears the burden of proof in showing that a vacant position exists for reassignment. Phelps v. Optima Health, Inc., 251 F.3d 21, 27 (1st Cir. 2001). In accordance with the duty not to discriminate, an employer must “treat a handicapped employee in the same fashion as it treats a non-handicapped employee who, through no fault of his own, no longer can continue in his previous job.” See Hayward v. Mass. Water Res. Auth., 2001 WL 635952, at *6–7.

Preferential Reassignment The Enforcement Guidance on reasonable accommodation states that a disabled employee cannot be required to compete for a vacant position but must get the vacant position if they are qualified for it. While this position has been followed by some courts, Smith v. Midland Brake, Inc., Div. of Echlin, Inc., 180 F.3d 1154 (10th Cir. 1999) (an employer has an obligation to consider reassignment of an employee to a vacant position as a reasonable accommodation if no other reasonable accommodation will enable the employee to perform their existing job, or if accommodation within the individual’s current position would pose an undue hardship to the employer), other courts have held that an employer may require the disabled employee to compete for the job. See, e.g., EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1027 (7th Cir. 2000); Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678 (7th Cir. 1998); Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995). The Enforcement Guidance also indicates that, even if the employee is ineligible for reassignment due to the employer’s policy prohibiting transfer for certain reasons (e.g., the employee is probationary or geographic limitations exist), the employer must modify the policy unless it can show undue hardship. MCLE, Inc. | 2nd Edition 2020

4–81

§ 4.3

Employment Discrimination in Massachusetts

The Supreme Court in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), resolved the issue of whether an employer is obligated under the ADA to reassign a disabled employee to a position as a “reasonable accommodation” where another employee is entitled to that position under a bona fide, established seniority system. “In the run of cases,” the answer is no, said the Court. U.S. Airways, Inc. v. Barnett, 535 U.S. at 403. Writing for the majority, Justice Breyer noted that “preferences” for employees with disabilities will sometimes be required as reasonable accommodations, even if the preferences violate neutral employment rules. Breyer gave as examples a neutral office assignment rule that may have to be bent so that employees with mobility impairments can work on the ground floor, and neutral break rules that would need to be bent so that a disabled employee could take additional breaks for medical visits. U.S. Airways, Inc. v. Barnett, 535 U.S. at 398. However, it can be argued that allowing deviations from such neutral employer systems would upset the “expectations of fair, uniform treatment” the majority opinion seeks to protect. The Supreme Judicial Court has noted that the workers’ compensation statute, G.L. c. 152, § 75A, requires an employer to give preferential treatment to an employee over nonemployees when the employee has lost their job as a result of an injury while working for the employer. However, the injured employee is given preference only over those who have not yet been hired. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 458 (2002).

Conflicts with Collective Bargaining Agreements In the event that a requested reassignment would violate collectively bargained seniority rights, the Supreme Court and the majority of federal courts—including the First Circuit—have held that reassignment in violation of collectively bargained seniority rights is not “reasonable.” See, e.g., U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002); Laurin v. Providence Hosp., 150 F.3d 52, 60 (1st Cir. 1998) (“[t]he ADA does not require an employer to take action inconsistent with the contractual rights of other workers”); Feliciano v. Rhode Island, 160 F.3d 780, 787 (1st Cir. 1998) (employers not required to violate provisions of collective bargaining agreement to reassign employee with disability); see also Eckles v. Consol. Rail Corp., 890 F. Supp. 1391, 1405 (S.D. Ind. 1995), aff’d, 94 F.3d 1041 (7th Cir. 1996); Benson v. Nw. Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir. 1995); Doe v. Town of Seymour, No. 3:95CV1538(AHN), 1998 WL 26410, at *3 (D. Conn. Jan. 16, 1998) (collecting cases). U.S. Airways, the Supreme Court held that as a general rule, a requested accommodation that conflicts with a seniority system is not a “reasonable” accommodation as a matter of law. This principle, according to the majority, applies in the nonunion context just as it applies in the unionized and collective bargaining contexts. In neither setting is the employer required to engage in a case-by-case analysis of whether seniority should prevail over a proposed accommodation. Rather, “in the run of cases,” an exception to seniority would be “unreasonable” under the ADA. U.S. Airways, Inc. v. Barnett, 535 U.S. at 404. A plaintiff, however, may pursue a handicap discrimination claim in court and avoid Section 301 preemption where the unlawful discrimination claim “does not arise from any contractual right established under the [collective bargaining agreement].” Butler v. Verizon New Eng., Inc., 68 Mass. App. Ct. 317, 321–22 (2007). 4–82

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

The MCAD appears to have adopted a different approach. The MCAD Guidelines note that “[w]here there is a conflict between the union contract and the duty to accommodate a disabled employee that cannot be resolved through negotiation, the Commission will weigh that conflict on a case-by-case basis in evaluating the reasonableness of the requested accommodation.” MCAD Guidelines, Employment Discrimination on the Basis of Handicap, § X.F.1 (citing Emrick v. Libbey-Owens Ford, 875 F. Supp. 393 (E.D. Tex. 1995)). On the other hand, an MCAD case decided prior to the issuance of the Guidelines held that, where a requested accommodation is in conflict with a collective bargaining agreement, the collective bargaining agreement can serve as evidence for an undue hardship defense. Patel v. Everett Indus., MCAD No. 99-BEM-0451 (Sept. 18, 1996). Further, a Superior Court judge held that an employer’s refusal to violate a collective bargaining agreement in response to a requested accommodation is a legitimate, nondiscriminatory reason for its action. Brienzo v. Town of Acushnet, 15 Mass. L. Rptr. 142 (Super. Ct. 2003).

Voluntary Affirmative Action Policies On January 31, 2000, the EEOC issued an opinion letter that interpreted the ADA as preempting a voluntary affirmative action plan. The letter advised that, where reassignment may be a reasonable accommodation, an employer must reassign a qualified individual with a disability to a vacant position over a similarly or betterqualified minority employee who would have received the position under the employer’s voluntary affirmative action plan. The EEOC opined that deviating from a voluntary affirmative action plan alone would not constitute an undue hardship. The agency also noted that a qualified disabled individual’s right to reassignment before others would apply whether the other candidates for the position are current employees or potential new hires. See Daily Lab. Rep. (BNA) No. 28 (Feb. 10, 2000), AA-1.

Compensation Issues An employer may reassign an employee to a lower-salaried position without compensating the employee at their former rate of pay unless the employer has a practice of maintaining other reassigned employees at their previous salary level. 29 C.F.R. pt. 1630, app. § 1630.2(o).

Leaves of Absence Leaves of absence permitting disabled employees to obtain treatment or due to medical necessity may constitute a reasonable accommodation. See, e.g., Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998) (jury could find that requested leave was reasonable where evidence tended to show leave would be temporary and would ameliorate disability). Not all leaves, however, are reasonable; a First Circuit decision suggests that a court may view with skepticism an employee’s claim that he should be afforded multiple opportunities for rehabilitation, in light of the fact that there was little evidence that an additional leave would lead to successful treatment of the employee’s substance abuse problem. Evans v. Fed. Express Corp., 133 F.3d MCLE, Inc. | 2nd Edition 2020

4–83

§ 4.3

Employment Discrimination in Massachusetts

137, 140–41 (1st Cir. 1998) (employer not required to give second leave of absence for substance-abuse treatment where there is little indication of the likelihood of success); see also Brookins v. Staples Contract & Commercial, Inc., 2013 U.S. Dist. LEXIS 18590, at *24–26 (D. Mass. Feb. 12, 2013) (finding leave as an accommodation unreasonable where employee failed to submit the medical documentation required under employer’s leave policy). The issue of indefinite leaves of absence is, however, a difficult one. According to the EEOC, an indefinite leave of absence, in which the employee cannot say whether or when they will be able to return to work, constitutes an undue hardship and is therefore not a reasonable accommodation. See EEOC Guidelines, Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016). Additionally, several court decisions have held that prolonged or unpredictable absence means an employee is not a “qualified individual with a disability” or that the requested accommodation is not reasonable. See, e.g., Boykin v. ATC/VanCom of Colo., 247 F.3d 1061, 1064–65 (10th Cir. 2001). In García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000), the First Circuit adopted a middle-of-the-road approach, holding that an indefinite leave request is not per se unreasonable and that such requests must be evaluated on an individualized basis. In that case, the employee’s request was not unreasonable because she did not expect to be paid for the additional leave and her duties were being performed by temporary help at no added expense to the employer. Also significant was the employer’s lack of evidence of undue hardship. GarcíaAyala v. Lederle Parenterals, Inc., 212 F.3d at 649–50. But see Watkins v. J&S Oil Co., 164 F.3d 55, 62 (1st Cir. 1998) (request by manager to keep job indefinitely unfilled was not a reasonable accommodation under ADA); Henry v. United Bank, 686 F.3d 50, 60 (1st Cir. 2012) (request for open-ended or indefinite leave not a reasonable accommodation); Cailler v. Care Alternatives of Mass., LLC, 2012 U.S. Dist. LEXIS 39414, at *14–21 (D. Mass. Mar. 23, 2012) (extended leave not a reasonable accommodation under Chapter 151B where neither employee nor employee’s physician knew or even estimated when employee could return to position). Of course, employers are required to abide by the provisions of the FMLA, where applicable, concerning requests for leaves of absence. In addition, once an employee has exhausted their twelve weeks of FMLA leave, the employee may still have rights to extended leave as a reasonable accommodation under the ADA and Chapter 151B. See MCAD Guidelines § X.E.2. The “Enforcement Guidance” also cautions employers that they may not automatically apply a “no fault” leave policy, under which employees are automatically terminated after they have been on leave for a set period of time, to an employee with a disability who needs additional leave. “Enforcement Guidance,” Types of Reasonable Accommodations Related to Job Performance, Question No. 17. The EEOC has taken a similar position, requiring employers to at least engage in the interactive process and consider accommodating when leave reaches the maximum permitted under the employer’s policies. A 1998 decision by the MCAD, however, found no discrimination where an employer applied its oneyear inactive status termination policy to an employee with a handicap. The employer argued that it applied the policy “universally and neutrally” to all employees, “in order to reduce administrative costs and pension plan complexities.” The MCAD found this to be a legitimate and nondiscriminatory business reason for the plaintiff’s 4–84

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

termination. Friedrich v. Holyoke Hosp., Inc., 20 M.D.L.R. 71, 74 (H.O. Byrne, 1998). But see Donohoe v. Sodexho-Marriott Servs., Inc., 21 M.D.L.R. 204, 207 (H.O. Kaplan, 1999) (even though the employer’s actions were consistent with company policy, the hearing officer found on the facts of this case (including the complainant’s long tenure and the employer’s past practice of accommodation) that the employer violated its reasonable accommodation obligation by terminating the mentally handicapped complainant, who was absent from work for three to four consecutive days without calling in). The Supreme Judicial Court has clarified, however, that Massachusetts law does not require an employer to provide an employee with an indefinite leave of absence. In Russell v. Cooley Dickinson Hospital, Inc., 437 Mass. 442, 456 (2002), the court held that an indefinite leave of absence is not a reasonable accommodation under G.L. c. 151B. While an employer may be required to extend the leave beyond its regular policy (or that required by the FMLA), an employee should attempt to specify when they will be able to return to work. If the employee is not able to do so, the employer need not grant the employee an indefinite leave.

Accommodation Where Misconduct Is Involved An employer need not accommodate an employee engaged in serious misconduct, even where such misconduct is related to a handicap. The MCAD Guidelines state that an employer “may hold individuals who are handicapped as a result of their addiction [to drugs or alcohol] to the same standards of job conduct and performance as other employees, subject to the duty to reasonably accommodate the employee.” MCAD Guidelines § X.C.3; see also 42 U.S.C. § 12114(c)(4) (employer may hold employees with drug or alcohol addiction to same standards as other employees). The “Enforcement Guidance” also makes clear that the employer’s obligation to provide reasonable accommodation for an employee with a disability who violated a conduct rule is prospective, so that the employer is not required to excuse past misconduct, even when such misconduct is caused by the employee’s disability. Similarly, there is no obligation under Massachusetts law to provide an accommodation when the employer does not learn about the need for an accommodation until after making a decision to terminate based on legitimate business reasons. See Pierson v. Stembridge, 2011 Mass. App. Unpub. LEXIS 1208, at *3–4 (Mass. App. Ct. Nov. 21, 2011) (no duty to provide reasonable accommodation when employee did not request accommodation until after employer notified employee of decision to terminate employment based on poor performance); Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 90 (1st Cir. 2012) (“When an employee requests an accommodation for the first time only after it becomes clear that an adverse employment action is imminent, such a request can be ‘too little, too late.’”); Terry v. SimplexGrinnell LP, 2013 U.S. Dist. LEXIS 46893, at *10–11, 22–23 (D. Mass. Mar. 28, 2013) (holding that submitting a doctor’s note at termination meeting was too late and simply explained wrongful conduct (sleeping on the job) as a side-effect of new medication); Daly v. Abbott Labs., Inc., 2013 U.S. Dist. LEXIS 135694, at *7 (D. Mass. Sept. 23, 2013) (holding that an employee’s articulation of need for an accommodation MCLE, Inc. | 2nd Edition 2020

4–85

§ 4.3

Employment Discrimination in Massachusetts

only after learning of adverse employment action is insufficient to sustain a disability discrimination claim). Courts have consistently found in favor of employers that have terminated employees because of serious misconduct, even when the conduct was related to a disability. In Mammone v. President & Fellows of Harvard College, 446 Mass. 657 (2006), the Supreme Judicial Court affirmed summary judgment in favor of the employer due to the plaintiff’s egregious workplace misconduct. The plaintiff suffered from manic outbursts caused by bipolar disorder, but the court determined that the former employee’s workplace misconduct, which included disregarding his supervisor’s instruction and using threatening and sexually derogatory language, were sufficiently egregious to disqualify him from the protection of the antidiscrimination statute. Mammone v. President & Fellows of Harvard Coll., 446 Mass. at 679–80; see also Beane v. Mass. Container Corp., 18 Mass. L. Rptr. 388, 2004 WL 2550470, at *5–6 (Super. Ct. 2004) (employee’s chronic absenteeism due to alleged mental illness need not be accommodated); Reed v. LePage Bakeries, Inc., 244 F.3d 254, 262 (1st Cir. 2001) (affirming summary judgment for employer on employee’s ADA claim where employee verbally abused and threatened her supervisor, when she could have avoided doing so); Garrity v. United Airlines, Inc., 421 Mass. 55, 63 (1995) (granting summary judgment to employer that terminated airline stewardess who stole free drink chits and became intoxicated on a flight on which she was a passenger; the court held that an alcoholic employee who engages in conduct “significantly inimical” to the employer’s interest and in violation of employer’s rules is not an “otherwise qualified person”); Mazzarella v. U.S. Postal Serv., 849 F. Supp. 89, 93–95, 97 (D. Mass. 1994) (employee terminated for violent conduct, not for disabling mental condition); Leary v. Dalton, 58 F.3d 748, 753 (1st Cir. 1995) (Rehabilitation Act does not prevent employers from holding alcoholics to reasonable rules of conduct and does not protect alcoholics from the consequences of their own misconduct); see also Covino v. Town of Framingham, 19 M.D.L.R. 67, 72 (1997) (employer may take adverse action against employee where the misconduct is the motivating factor and there is no handicap to which the conduct may be related). At the same time, the MCAD Guidelines caution that “[w]here misconduct is related to a handicap or disability, there may be a duty to provide reasonable accommodation,” including a leave of absence or participation in an employee assistance program. MCAD Guidelines § X.D.

Timeliness of Reasonable Accommodation In a 2011 decision decided under the ADA, the First Circuit stated that “unreasonable delay [in providing a reasonable accommodation] may amount to failure to provide reasonable accommodation.” Valle-Arce v. Puerto Rico Ports Auth., 2011 U.S. App. LEXIS 13937, at *24 (1st Cir. July 8, 2011). In a case under G.L. c. 151B, the Appeals Court noted that there is “no requirement that accommodation be instantaneous,” and accordingly rejected an employee’s argument that a three- or four-month delay in obtaining equipment to accommodate the employee’s disability was, itself, a failure to accommodate absent a showing that the delay was intentional or had an effect on the employee’s ability to perform the essential functions of the job. See Leach v. Comm’r of Mass. Rehab. Comm’n, 63 Mass. App. Ct. 563, 570 n.8 (2005). 4–86

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

Request for Accommodation Is Protected Activity The First Circuit has held that requesting a reasonable accommodation is a protected activity under the ADA. In Wright v. CompUSA, 352 F.3d 472 (1st Cir. 2003), the court affirmed summary judgment, dismissing the plaintiff’s claim of discrimination, but reversed summary judgment on the issue of retaliation. The court found that, even though the plaintiff was not disabled, his discharge came shortly after he requested an accommodation, and the reason for his discharge suggested pretext. Accordingly, the plaintiff satisfied the prima facie case of retaliation that he engaged in protected activity; that he was discharged; and that there was a causal connection between the discharge and his protected activity. Wright v. CompUSA, 352 F.3d at 478. It is clear from Wright that a retaliation claim stands apart from a claim of disability discrimination. Further, while temporal proximity between the protected activity and termination will not in itself create a question of fact, temporal proximity combined with suspicious treatment by the employer may allow a claim of retaliation to go to the jury.

(e)

Interactive Process

Generally, the individual has an obligation to make the employer aware of the need for an accommodation. Technical Assistance Manual § 3.1. Such notification need not be in writing, and the individual making the request need not actually use the phrase “reasonable accommodation.” See, e.g., “Enforcement Guidance,” Requesting Reasonable Accommodation, Question Nos. 1, 2. If the employer has no knowledge of an employee’s disability, there is no obligation to provide a reasonable accommodation. 29 C.F.R. pt. 1630, app. (Not Making Reasonable Accommodation); see Kinch v. Quest Diagnostics, Inc., 652 F. Supp. 2d 131, 134–35 (D. Mass. 2009) (granting summary judgment in favor of employer on employee’s failure to accommodate claims where employee did not request an accommodation and need for an accommodation was not “obvious”); see also Murray v. Warren Pumps, LLC, 821 F.3d 77, 85–86 (1st Cir. 2016) (summary judgment for employer appropriate on employee’s failure to accommodate claim where supervisor occasionally asked employee to violate agreed-upon medical restrictions, yet employee remained silent or voluntarily participated in requested activities); Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89–90 (1st Cir. 2012) (employee’s request for an extension of time to perform job requirement not a request for reasonable accommodation because employee did not notify employer the request was connected to employee’s disability); Aulisio v. Baystate Health Sys., Inc., 2012 U.S. Dist. LEXIS 127434, at *19–20 (D. Mass. Sept. 7, 2012) (job-related requests unconnected to any disability not requests for reasonable accommodation); Conway v. Bos. Edison Co., 745 F. Supp. 773, 783 (D. Mass. 1990) (holding that employer did not violate G.L. c. 151B by requiring a typing test when the employee never mentioned that the test caused her back pain). Contrary to the ADA interpretive regulations, G.L. c. 151B contains no express requirement for an employer to initiate the interactive process. Sullivan v. Raytheon Co., 262 F.3d 41, 47–48 (1st Cir. 2001) (construing G.L. c. 151B). The MCAD Guidelines suggest that the employer’s obligation to offer or provide a reasonable accommodation is triggered if the employer knows or should know of the employee’s MCLE, Inc. | 2nd Edition 2020

4–87

§ 4.3

Employment Discrimination in Massachusetts

disability and need for accommodation. MCAD Guidelines § VII.A (emphasis added). Under these guidelines, an employer “should know” if “a reasonable person in the employer’s position would know the employee was handicapped and required reasonable accommodation.” MCAD Guidelines § VII.A. But see Kinch v. Quest Diagnostics, Inc., 652 F. Supp. 2d 131, 134–35 (D. Mass. 2009) (employer has no obligation to accommodate a disability where employee does not request an accommodation and need for accommodation is not obvious); Pierce v. Somserset Sch. Dep’t, 89 Mass. App. Ct. 1107, 2016 WL 701926, at *2 (2016) (employee who seeks protection under Chapter 151B, § 4(16) must submit a request for a reasonable accommodation to “trigger the employer’s obligation to participate in the interactive process”); Johansson v. Mass. Dep’t of Corr., 21 M.D.L.R. 143, 146 (H.C. Walker, 1999) (hearing commissioner ruled that “[u]nless it is obvious to the employer, it is the responsibility of the handicapped individual or health care provider to identify the impairment and resulting limitations, and to suggest the reasonable accommodation”). According to the First Circuit, upon learning of an employee’s disability and need for accommodation, the employer has an obligation to “engage in a meaningful dialogue with the employee to find the best means of accommodating that disability.” Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 104 (1st Cir. 2007) (citing Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 108 (1st Cir. 2005)). The employee also “has an obligation” to take part in the interactive process to determine the “appropriate reasonable accommodation.” Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d at 104 (citing 29 C.F.R. pt. 1630, app. § 1630.9); see Kvorjak v. Maine, 259 F.3d 48, 52–53 (1st Cir. 2001) (noting that there may be situations where a failure to engage in the interactive process would constitute a failure to reasonably accommodate). But see García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 n.13 (1st Cir. 2000) (granting summary judgment for employee where the employer “simply rejected the request for accommodation without further discussion,” but not expressly ruling on the interactive process issue). At the same time, if no reasonable trier of fact could determine that the plaintiff was able to perform the essential functions of their job even with accommodation, the First Circuit has held that the employee thus was not qualified and the employer was not required to engage in a dialogue about reasonable accommodations with the employee. Kvorjak v. Maine, 259 F.3d at 53; Soto-Ocasio v. Fed. Express, 150 F.3d 14, 19 (1st Cir. 1998); see also Jones v. Walgreen Co., 679 F.3d 9, 19–20 (1st Cir. 2012) (employer did not fail to engage in interactive process where employee could not perform essential job functions); Johansson v. Mass. Dep’t of Corr., 2011 Mass. Super. LEXIS 55, at *17–19 (Mass. Super. Ct. Mar. 31, 2011) (no duty to engage in interactive process when medical information and employee’s statements reflected employee totally incapable of returning to work); Moreau v. Mass. Mut. Life Ins. Co., 22 Mass. L. Rptr. 580 (Super. Ct. 2007) (employer was not liable for having failed to participate in the interactive process because the plaintiff could not perform the essential functions). Under federal law, the obligation to offer or provide an accommodation may, however, be triggered by notification from a third party, or if the disability is readily apparent. Thus, employers are not necessarily permitted to wait to provide an accommodation until the employee requests one or discusses their disability. Usually, “the employer’s duty to accommodate is triggered by a request from the employee,” but 4–88

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

“[d]ifferent rules may apply in situations where a disability prevents the employee from requesting an accommodation or where the need of an accommodation is obvious.” Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d at 102 n.11; see Guckenberger v. Bos. Univ., 974 F. Supp. 106, 141–42 (D. Mass. 1997) (employer has some responsibility in determining necessary accommodation by engaging in interactive process; however, engaging in specific give-and-take procedure is not always essential); Hedberg v. Indiana Bell Tel., 47 F.3d 928, 934 (7th Cir. 1995) (affirming summary judgment for employer but stating that although “[t]he ADA does not require clairvoyance,” if visible symptoms were “obviously manifestations of an underlying disability” it would be reasonable to infer that an employer actually knew of the disability); Sadoski v. Deerfield Plastics Co., Inc., 17 M.D.L.R. 1015, 1032 (1995) (suggesting that even if employee does not admit alcohol-abuse problem, if it is clear that employee has a problem, employer should offer counseling). But see Reed v. LePage Bakeries, Inc., 244 F.3d 254, 260–62 (1st Cir. 2001) (employee’s ADA claim failed where she failed to inform employer of her mental illness; her vague reference to her therapist was insufficient). Employers are encouraged to engage with the employee in an interactive process to identify an appropriate accommodation. See MCAD Guidelines §§ VII, VII.C; Technical Assistance Manual § 3.7. However, whether and to what extent the law requires an employer to engage in an interactive process with the employee requesting an accommodation has not been settled. Some courts have taken the position that the interactive process is required. See, e.g., Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001); Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997); Taylor v. Principal Fin. Grp., 93 F.3d 155, 165 (5th Cir. 1996); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135–37 (7th Cir. 1996). Other courts have held that the interactive process is recommended, rather than mandatory, citing the noncompulsory language of the ADA regulations. 29 C.F.R. § 1630.2(o)(3) (“[t]o determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation”); see, e.g., Jacques v. Clean-Up Grp., Inc., 96 F.3d 506, 513–14 (1st Cir. 1996) (concluding that jury “reasonably could have found that employer’s failure to initiate an interactive process or suggest alternatives did not constitute a per se failure to provide reasonable accommodation here”); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (where employee cannot demonstrate that a reasonable accommodation exists, employer’s lack of investigation into reasonable accommodation is unimportant); White v. York Int’l Corp., 45 F.3d 357, 363 (10th Cir. 1995) (ADA regulations only recommend that interactive process occur). Regardless of whether the law imposes an obligation on the employer to engage in an interactive process with the employee, “[t]here may well be situations in which the employer’s failure to engage in an informal interactive process would constitute a failure to provide reasonable accommodation that amounts to a violation of the ADA.” Jacques v. Clean-Up Grp., Inc., 96 F.3d 506, 515 (1st Cir. 1996). If an employer rejects “out of hand” an employee’s suggested reasonable accommodations, it may risk liability. See García-Ayala v. Lederle Parenterals, Inc., 212 F.3d at 648 n.13; Katz v. City Metal Co., Inc., 87 F.3d 26, 33 (1st Cir. 1996). Conversely, employees also can fail to participate in the interactive process. See Phelps v. Optima MCLE, Inc. | 2nd Edition 2020

4–89

§ 4.3

Employment Discrimination in Massachusetts

Health, Inc., 251 F.3d 21, 27–28 (1st Cir. 2001) (employee turned down several job opportunities suggested by employer and placed significant conditions on her reassignment); Rennie v. United Parcel Serv., 139 F. Supp. 2d 159, 172–73 (D. Mass. 2001) (employee’s act of quitting “was, in essence, a complete failure to continue to engage in the interactive process”); see also Reade v. Franklin/Hampshire Employment & Training Consortium, 21 M.D.L.R. 185, 190 (H.O. Schwarz, 1999) (employer not liable for failure to accommodate where complainant abandoned the interactive process). The First Circuit has noted that an employee’s request for reasonable accommodation requires “a great deal of communication between the employee and employer.” Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998). An employer’s participation is particularly relevant where an employee is suffering from a mental disability. Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100 (1st Cir. 2005). The employer, however, does not have the unreasonable burden of raising and discussing every conceivable accommodation. Tobin v. Liberty Mut. Ins. Co., 433 F.3d at 109. In light of this case law, the wiser course for the employer is to avoid making unilateral decisions and to communicate with the employee about their disability and possible accommodations that would enable them to perform the essential functions of the position. Moreover, the MCAD Guidelines state that, once an employer is on notice of the need for an accommodation for a qualified handicapped employee, the employer “should initiate an informal interactive process with the qualified individual in need of accommodation.” MCAD Guidelines § VII.B (emphasis added); see also D’Ambrosio v. Mass. Bay Transp. Auth., 23 M.D.L.R. 81, 86 (H.O. Gustaferri, 2001) (stressing the importance of the interactive process and faulting the employer for failing to make any attempt “to engage in any dialogue with Complainant”); Mazeikus v. Nw. Airlines, Inc., 22 M.D.L.R. 63, 69 (H.C. Walker, 2000) (employer failed to engage in a “meaningful interactive process” even though it offered complainant a number of accommodations listed in the decision). The First Circuit has held that an employee’s refusal to engage in the interactive process can lead to the dismissal of their disability discrimination claim. EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127, 132 (1st Cir. 2014) (holding that “[i]f an employer engages in an interactive process with the employee, in good faith, for the purpose of discussing alternative reasonable accommodations, but the employee fails to cooperate in the process, then the employer cannot be held liable under the ADA for a failure to provide reasonable accommodations”). In Kohl’s, after the employer rejected the employee’s initial accommodation request, the employee refused to engage in any further discussion about alternative accommodations, despite the employer’s repeated efforts to do so. The court determined that the employee therefore did not fulfill her obligation to make a good faith effort to participate in the interactive process. EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d. at 133–134. By choosing not to entertain the employer’s offer to discuss alternative accommodations, the employee “was primarily responsible for the breakdown in the interactive process.” EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d at 133.

4–90

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

The Supreme Judicial Court held in Ocean Spray Cranberries Inc. v. MCAD, 441 Mass. 632 (2004), that an employer triggers the statute of limitations when it responds to an employee’s request for a reasonable accommodation with unequivocal action or inaction. The limitations period begins to run when the employee knew or reasonably should have been aware that the employer was unlikely to grant an accommodation.

(f)

Preemployment Inquiries and Examinations

General Laws Chapter 151B and the ADA apply to all stages of the employment relationship. The law restricts the scope of an employer’s inquiry differently, however, depending on the moment in the relationship at which the employer wishes to conduct testing to determine whether an individual employee is disabled or requires a reasonable accommodation to perform the essential functions of their job. In the EEOC’s July 2000 Enforcement Guidance on “Disability-Related Inquiries and Medical Examinations of Employees under the ADA,” the agency provides its interpretation of the scope and nature of permissible medical inquiries and exams. The Guidance in some respects repeats EEOC positions previously set forth, but several positions appear for the first time. Both statutes and the Guidance prohibit medical testing and substantially limit an employer’s ability to ask disability-related questions during the preemployment stage. 42 U.S.C. § 12112(d)(2); G.L. c. 151B, § 4(16). Prospective employers may ask applicants with known disabilities whether they can perform the essential functions of a given position with or without reasonable accommodation. However, employers may not make inquiries likely to elicit information about a disability or closely related to a disability. Such questions are prohibited “disability-related inquiries.” See 42 U.S.C. § 12112(d)(2); G.L. c. 151B, § 4(16); MCAD Guidelines §§ IV.A–IV.C; Enforcement Guidance (2000) (General Principles, B., Question 1). Employers that make impermissible inquiries may not be able to terminate an employee who responds to such inquiries falsely. See Downs v. Mass. Bay Transp. Auth., 13 F. Supp. 2d 130 (D. Mass. 1998); see also Kraft v. Police Comm’r of Bos., 410 Mass. 155, 157 (1991). However, if such inquiries are made in a permissible postoffer medical examination and the employee responds untruthfully, the employer may terminate the employee for falsifying “material information.” Russell v. Frank, No. 89-2777-Z, 1991 WL 97456, at *3–4 (D. Mass. May 23, 1991), aff’d, 971 F.2d 744 (1st Cir. 1992). Practice Note The First Circuit has cautioned employers against blind reliance on the outcome of a medical test or on a medical opinion indicating that a disabled employee is not qualified for a position. The case involved an applicant for the job of emergency medical technician (EMT) and the medical examination that she did not pass. Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002). In Gillen, the plaintiff-applicant had only one functioning arm as a result of a genetic deformity. She applied for a job as an EMT at the defendant ambulance service and was offered employment conditioned upon her passing a physical examination. When MCLE, Inc. | 2nd Edition 2020

4–91

§ 4.3

Employment Discrimination in Massachusetts she appeared for her physical examination at a local hospital, she underwent certain tests and was told to return for tests for strength and lifting. However, upon further review, the doctor concluded that the further tests were unnecessary because her impairment prevented her from performing the essential functions of the EMT position without jeopardizing patients and coworkers. Based on this opinion, the ambulance service denied the plaintiff employment. She went on to obtain a similar position shortly thereafter and was able to perform all the duties of an EMT, including lifting. She then sued under the ADA; the District Court granted summary judgment for the employer, but the Appeals Court reversed. In its opinion, the court agreed that obtaining a medical opinion is often “cogent evidence of nondiscriminatory intent—in some instances, it may even be enough to justify summary judgment.” Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d at 31. The court went on to say, however, that an employer “cannot slavishly defer to a physician’s opinion without first pausing to assess the objective reasonableness of the physician’s conclusions.” Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d at 31. In this case, the court found that a reasonable factfinder could conclude that the employer “refused to hire [the plaintiff] without any objective medical evidence that she was physically incapable of performing the essential functions of the position, acting instead on the basis of its (and its lead physician’s) stereotyping of one-handed persons.” Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d at 32.

Employers that administer tests to applicants at the preoffer stage need to be careful to ensure that those tests cannot be construed as prohibited “medical examinations.” See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 675–76 (1st Cir. 1995). Several factors are relevant to the consideration of whether a particular test is a medical examination. • Is the test administered by a health-care professional or trainee? • Are the results of the test interpreted by a health-care professional or trainee? • Is the test designed to reveal, or given for the purpose of revealing, an impairment or the state of an individual’s physical or psychological health? • Is the test invasive? In other words, does it require the drawing of blood, urine, breath, or other bodily substances? • Does the test measure physiological responses, as opposed to measuring performance of a task? • Is the test normally conducted in a medical setting? • Is medical equipment used for the test? If any of these are true of a test, it may well be considered a medical examination and be contrary to the prohibition against preoffer medical examinations. See Grenier v. Cyanamid Plastics, Inc., 70 F.3d at 676; EEOC, “Enforcement Guidance on PreEmployment Medical Inquiries Under the ADA” (May 1994); EEOC Enforcement Guidance (2000) (General Principles, B. Question 2); MCAD Guidelines § V.A. 4–92

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

Many employers use various types of personality or psychological assessments as a way to screen job applicants. Even if these tests are not “medical examinations,” and therefore are not prohibited under the ADA or G.L. c. 151B, many of them contain questions or provide information about the applicant’s truthfulness, which may run afoul of a Massachusetts statute prohibiting lie detector tests. See G.L. c. 149, § 19B. General Laws Chapter 149, which carries criminal as well as civil penalties, prohibits “any . . . device, mechanism, instrument or examination which is operated . . . to assist in or enable the detection of deception, the verification of truthfulness, or the rendering of a diagnostic opinion regarding the honesty of an individual.” G.L. c. 149, § 19B(2). An employer may make a bona fide offer of employment conditional on the results of a postoffer, preemployment medical examination or of disability-related inquiries if the employer • requires all employees in the same job category (not all employees) to submit to such an examination regardless of disability; • maintains all information obtained in a separate medical file and treats such information as a confidential medical record; and • does not use the results of the medical examination in a manner that violates any provision of the ADA. See 42 U.S.C. § 12112(d)(3); MCAD Guidelines §§ V.B, V.E. The 2000 EEOC Guidance on Disability-Related Inquiries and Medical Exams states that employers may treat employees who are seeking a new position within the company as applicants and may thus require them to undergo postoffer tests or medical exams, which would otherwise be unlawful with regard to current employees. This means, for example, that someone who has applied to transfer from an office job to a more physically demanding factory job can be required to pass an employee physical to determine whether they can perform essential functions of the factory job. (This “break” for employers, however, is subject to the statutory restrictions covering postoffer exams generally, for example, that they must be given to all employees entering a particular job class regardless of disability. It is also tempered by new Guidance language stating that, “where a current supervisor has medical information regarding an employee who is applying for a new job, she/he may not disclose that information to the person interviewing the employee for the new job or to the supervisor of that job.”) If the employer determines not to hire an applicant on the basis of such an examination, the reason for the decision must be both job-related and consistent with business necessity. G.L. c. 151B, § 4(16) (a physical or mental job qualification requirement “shall be functionally related to the specific job or jobs for which the individual is being considered and shall be consistent with the safe and lawful performance of the job”); 29 C.F.R. § 1630.14(b)(3). An employer may not refuse to hire someone on the basis of a postoffer examination because it believes that a disability revealed by the examination will interfere with the individual’s ability to perform the essential functions of the job at some point in the future.

MCLE, Inc. | 2nd Edition 2020

4–93

§ 4.3

Employment Discrimination in Massachusetts

The ADA permits medical examinations and inquiries regarding the nature and extent of an employee’s disability if they are job-related and consistent with business necessity. Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 672 (1st Cir. 1995). The MCAD has adopted this analysis. MCAD Guidelines § VI.B. The 2000 EEOC Guidance identifies four situations in which disability-related inquiries or exams would satisfy this standard • when a need arises to question whether an employee can perform their essential job functions; • when the employer has a reasonable belief, based on objective evidence, that the employee poses a “direct threat” because of a medical condition; • when the employee has requested a reasonable accommodation and the need for accommodation is not known or obvious; and • when a periodic medical exam or other medical monitoring is required by law, for instance, exams of truck drivers or airline pilots as required by federal safety regulations. Employers are also permitted to obtain medical documentation of an employee’s disability and the need for accommodation when the employee has requested an accommodation. MCAD Guidelines § VI.B.2; Technical Assistance Manual § 3.6. An employee can be required to verify that the claimed disability exists and that the accommodation is warranted by submitting documentation from the employee’s healthcare provider. An employer may not ask for documentation in response to a request for reasonable accommodation when both the disability and the need for reasonable accommodation are obvious or the individual already has provided the employer with sufficient information to substantiate that they have an ADA disability and needs the reasonable accommodation requested. See Enforcement Guidance (2000) (JobRelated and Consistent with Business Necessity, (A)(7)(10)(11)). According to the EEOC’s Guidance on Reasonable Accommodation, an employer also has the option of providing an employee’s health-care provider with a list of questions, provided the employee signs a limited release for this purpose. Or, an employer may simply discuss with the employee the nature of their disability and its functional limitations. The employer should make clear to the employee why it is requesting the information, i.e., to verify the existence of an ADA disability and the need for a reasonable accommodation. The prohibition against preemployment inquiries about an individual’s handicap does not prevent an employer from requiring a former employee with a known disability who is reapplying for employment to provide medical certification of their ability to return to work, with or without a reasonable accommodation, as long as the requirement is relevant to the assessment of the employee’s ability to perform the essential functions of the position. Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 675–76 (1st Cir. 1995); accord Harris v. Harris & Hart, Inc., 206 F.3d 838, 842–44 (9th Cir. 2000). Note that both Grenier and Harris were decided before the July 2000 EEOC Enforcement Guidance.

4–94

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

Note that the most expansive position taken by the EEOC in its 2000 Guidance is the view that ADA restrictions on preemployment and employment inquiries and medical exams apply not only to qualified individuals with a disability but also to nondisabled individuals. Enforcement Guidance (2000) at 15. Under the EEOC’s view, a nondisabled applicant who is asked an illegal disability-related question during an interview would have standing to sue under the ADA. Certain federal courts of appeals had already held this to be the law before the EEOC issued its latest pronouncement, but other circuits had rejected this expansive view of ADA coverage. Since the EEOC issued this guidance, at least five federal Circuit Courts have held that the ADA’s restrictions on preemployment medical inquiries apply to both disabled and nondisabled individuals. See Conroy v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 94–95 (2d Cir. 2003) (citing cases and EEOC guidance; “[w]e agree . . . that a plaintiff need not prove that he or she has a disability unknown to his or her employer in order to challenge a medical inquiry or examination”); Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007) (Section 12112(d)(4)(A) “applies to all employees, regardless of whether the employee has an actual disability”); Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1214 (11th Cir. 2010); Lee v. City of Columbus, Ohio, 636 F.3d 245, 252 (6th Cir. 2011) (“A plaintiff need not prove that he or she has a disability in order to contest an allegedly improper medical inquiry.”); Taylor v. City of Shreveport, 798 F.3d 276, 284 (5th Cir. 2015) (“We now . . . hold that a plaintiff need not assert that he or she has a disability to contest an allegedly improper medical inquiry or medical examination.”).

§ 4.3.3 (a)

Defenses Legitimate, Nondiscriminatory Reason

Employers, of course, may terminate an employee with a handicap for legitimate, nondiscriminatory reasons. Some common reasons are noted below.

Misconduct As discussed above in “Accommodation Where Misconduct Is Involved,” under § 4.3.2(d), an employer is not required to tolerate serious misconduct, even when such misconduct is related to a handicap. See Mammone v. President & Fellows of Harvard Coll., 446 Mass. 657, 670 (2006) (stating that an “employee who has committed egregious workplace misconduct (so inimical to an employer’s interest that any employee would be fired for the same acts) has precluded himself from ‘performing the essential functions of the position,’ with or without a reasonable accommodation,” and, thus, is not protected by Chapter 151B). In addition, courts will find for the employer when there has been misconduct that does not arise from a handicap. See, e.g., Russell v. Frank, 1991 WL 97456, at *4 (D. Mass. 1991) (finding that employee was discharged because he lied on postoffer medical examination, not because of his mental disability); Bunevitch v. CVS/Pharmacy, 925 F. Supp. 89, 94 (D. Mass. 1996) (noting that employee was terminated for repeated violations of company’s sexual harassment policies); Champagne v. Servistar Corp., 138 F.3d 7, 12–13 (1st Cir. 1998) (finding that truck driver with emotional disorder was terminated MCLE, Inc. | 2nd Edition 2020

4–95

§ 4.3

Employment Discrimination in Massachusetts

for falsifying travel logs); see also Reed v. LePage Bakeries, Inc., 244 F.3d 254, 262 (1st Cir. 2001) (finding that a mentally ill employee was fired for insubordination and threatening her supervisor). In EEOC v. Amego, 110 F.3d 135 (1st Cir. 1997), the court rejected the EEOC’s broad argument that the ADA prohibits “adverse employment action that is based on conduct related to a disability to the same extent that it prohibits adverse employment action based on the underlying disability itself.” EEOC v. Amego, 110 F.3d at 149. Terminating an employee because of misuse of medication, according to the court, is not the same thing as terminating an employee because of the mental disability (depression) that made her a suicide risk and caused it to be unsafe for the employee to have access to patient medications. The court appeared to favor a more narrowly drawn disability-conduct connection, suggesting that it is only where conduct is compelled by the disability, as in the case of persons with Tourette’s Syndrome, that adverse employment actions taken on the basis of such conduct would be prohibited. EEOC v. Amego, 110 F.3d at 149. But see Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 37–38 (1st Cir. 2000) (distinguishing EEOC v. Amego on the basis that there was a “conduct connection in Ward’s case—the tardiness flows directly from the arthritis,” whereas in Amego “the employee was terminated because of the method of attempted suicide, which, in the court’s view, did not flow directly from depression”).

Absenteeism As discussed above in “Leaves of Absence,” under § 4.3.2(d), courts generally hold that an employer does not need to accommodate indefinite or unpredictable absences. Picot v. New Eng. Tel. & Tel., 3 Mass. L. Rptr. 80, 1994 WL 878936, at *4 (Super. Ct. 1994) (summary judgment granted to defendant; terminated plaintiff had a fiveyear absenteeism rate of 70 percent). However, an employer must make an individualized inquiry and have ready evidence of undue hardship if it denies such a request. See García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000); Ward v. Mass. Health Research Inst., Inc., 209 F.3d at 34–35. Where an employee requests a leave of absence as an accommodation, an employer may not avoid liability for disability discrimination by claiming the employee’s absenteeism as the justification for termination. Miller v. Verizon Commc’ns, Inc., 474 F. Supp. 2d 187, 200 (D. Mass. 2007) (quoting Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)). Nonetheless, an employer need not accommodate a chronically absent employee even if the absenteeism is a result of the employee’s disability. See Beane v. Mass. Container Corp., 18 Mass. L. Rptr. 388, 2004 WL 2550470, at *6–7 (Super. Ct. 2004) (employee’s chronic absenteeism due to his psychological problems need not be accommodated). An employer must, however, also consider its duties under the FMLA.

Poor Performance An employer may terminate an employee with a handicap if the employee is unable to meet the employer’s standards of performance, even with the provision of a reasonable accommodation. See, e.g., Tate v. Dep’t of Mental Health, 419 Mass. 356, 4–96

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

363–65 (1995) (plaintiff failed to present any evidence that employer terminated her for reasons other than insubordination). In sum, an employer may terminate an employee with a handicap for any reason that would cause it to terminate any other employee. The laws prohibiting disabilitybased discrimination are intended to level the playing field for persons with disabilities; they do not require that handicapped employees receive special treatment. See, e.g., McDonald v. Menino, No. 96-10825-RGS, 1997 WL 106955, at *3 (D. Mass. Jan. 3, 1997) (ADA “does not mandate special preference for disabled persons who cannot perform the essential functions of a job”); Garrity v. United Airlines, Inc., 421 Mass. 55, 62–63 (1995) (citations omitted) (Rehabilitation Act “is designed to put individuals with disabilities on equal footing with nondisabled people . . . [i]t is not designed to insulate them from disciplinary actions which would be taken against any employee regardless of his status”).

(b)

Undue Hardship

An employer can defend against a claim that it failed to reasonably accommodate the handicap of an otherwise qualified person by demonstrating that the proposed accommodation would impose an “undue hardship.” 42 U.S.C. § 12111(10); G.L. c. 151B, § 4(16); 29 C.F.R. § 1630.2(p). Under the ADA, undue hardship refers to a significant difficulty or expense in relation to the size of the employer, the resources available, and the nature of the operation. 42 U.S.C. § 12111(10)(B); 29 C.F.R. § 1630.2(p). Accordingly, accommodations that are unduly costly, extensive, substantial, disruptive, or that would fundamentally alter the nature or operation of the business constitute undue hardship. 29 C.F.R. § 1630.2(p). In assessing undue hardship under the ADA, the EEOC’s Regulations state that employers should consider the following: • the nature and cost of the accommodation, taking into consideration the availability of tax credits, deductions, and outside funding; • the financial resources of the facility making the accommodation, the number of employees at the facility, and the effect of providing the accommodation on the expenses and resources of the facility; • the overall financial resources, size, number of employees, and type and location of facilities (if the facility is part of a larger entity); • the type of the employer’s operation, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the larger entity; and • the impact of the accommodation on the operation of the facility making the accommodation, including the impact on the ability of other employees to perform their jobs and the impact on the facility’s ability to conduct business.

MCLE, Inc. | 2nd Edition 2020

4–97

§ 4.3

Employment Discrimination in Massachusetts

29 C.F.R. § 1630.2(p)(2); Technical Assistance Manual § 3.9; see also EEOC Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 2002). General Laws Chapter 151B requires employers to consider similar factors, including • the overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget or available assets; • the type of the employer’s operation, including the composition and structure of the employer’s workforce; and • the nature and cost of the accommodation needed. G.L. c. 151B, § 4(16); MCAD Guidelines § VII.C. As discussed above in “Definition of ‘Reasonable Accommodation,’” under § 4.3.2(d), courts have required a plaintiff, as part of the plaintiff’s burden of production, to provide evidence that the costs of a proposed accommodation do not exceed its benefits. See, e.g., Walton v. Mental Health Ass’n Se. Penn., 168 F.3d 661, 670 (3d Cir. 1999); Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 781 (6th Cir. 1998); Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1184 (6th Cir. 1996); Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995); Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 542 (7th Cir. 1995). Put another way, part of a plaintiff’s burden is to show that the accommodation proposed, “at least on the face of things, is feasible for the employer under the circumstances.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 23 (1st Cir. 2004); Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001). Where a plaintiff has met this burden, the employer may seek to prove that the proposed accommodation is an undue hardship. Some courts apply a cost-benefit analysis here as well. The court in Vande Zande commented that “costs enter at two points in the analysis of claims to an accommodation of a disability.” Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 543 (7th Cir. 1995). Even if the employee has made a prima facie showing of reasonableness, “the employer has an opportunity to prove that, upon more careful consideration, the costs are excessive in relation either to the benefits of the accommodation or to the employer’s financial survival or health.” Vande Zande v. Wis. Dep’t of Admin., 44 F.3d at 543; see also Cargill v. Harvard Univ., 60 Mass. App. Ct. 585, 603–04 (2004) (an employer can prevail by showing that a proposed accommodation would cause an undue hardship or that it would be otherwise unreasonable). In Reed v. LePage Bakeries, Inc., 244 F.3d at 259–60, the First Circuit observed that the employee’s burden and the employer’s burdens will be quite similar, even mirror images, when the costs of an accommodation are relatively obvious and straightforward. However, the burdens will significantly differ when the costs of accommodation are not obvious but are better known to the employer. Reed v. LePage Bakeries, Inc., 244 F.3d at 260; Vande Zande v. Wis. Dep’t of Admin., 44 F.3d at 543; see also Ransom v. Ariz. Bd. of Regents, 983 F. Supp. 895, 903 (D. Ariz. 1997) (noting that “‘undue hardship,’ like ‘reasonable’ accommodation, is a relational term: the costs that the employer must assume are measured in relation to the benefits 4–98

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

of the accommodation, including societal benefits of reducing dependency and nonproductivity”) (citing Stone v. Mt. Vernon, 118 F.3d 92, 98–100 (2d Cir. 1997)). For example, under some circumstances it may be reasonable to hire additional staff to afford a disabled employee an accommodation, taking into account the employer’s size and resources. See, e.g., Cargill v. Harvard Univ., 60 Mass. App. Ct. 585, 604 (2004) (evidence suggested that some of a librarian’s nonessential duties could have been done by students or other part-time workers); Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 141 (2d Cir. 1995) (evidence does not establish that providing teacher’s aide to assist teacher with head injury in controlling class would present undue hardship); Nelson v. Thornburgh, 567 F. Supp. 369, 379–80 (E.D. Pa. 1983), aff’d, 732 F.2d 146 (3d Cir. 1984) (in view of employer’s $300 million administrative budget, provision of half-time readers to blind workers is not undue hardship). However, courts have also reached the opposite conclusion under different facts. In EEOC v. Amego, Inc., 110 F.3d 135, 148–49 (1st Cir. 1997), the First Circuit reasoned that the accommodation suggested by the plaintiff would have required hiring additional staff, an expense that would be too great for a small nonprofit employer to be reasonably expected to bear. See also Luccardi v. Town of Agawam Police Dep’t, 18 M.D.L.R. 109, 111 (H.O. Belsky, 1996) (to accommodate employee would require hiring of additional officer or curtailing road officers; this would be an undue financial and administrative burden). If a proposed accommodation requires the restructuring of the employer’s operation or of a particular position, courts may also find that it constitutes an undue hardship. As noted above, neither the ADA nor G.L. c. 151B requires an employer fundamentally to restructure its operation or the position at issue. See, e.g., Bryant v. Caritas Norwood Hosp., 345 F. Supp. 2d 155, 171 (D. Mass. 2004) (a request to relieve a nurse of heavy-lifting duties imposed an undue hardship because it would require fundamentally altering essential functions of the job); EEOC v. Amego, 110 F.3d at 147–49 (to accommodate suicidal employee with access to medication would require employer to hire additional therapist or supervisor or to restructure its program so that employee worked only with clients who did not require medication; to do this would alter the very nature of employee’s position, and “such redefinition exceeds reasonable accommodation”); Reigel v. Kaiser Found. Health Plan of N.C., 859 F. Supp. 963, 973–74 (E.D.N.C. 1994) (“involuntary restructuring” of employer’s staff that would be necessitated in order to accommodate plaintiff is not reasonable); Helgerson v. Bridon Cordage, Inc., 518 N.W.2d 869, 872 (Minn. Ct. App. 1994) (requiring employer to reorganize its production schedule to accommodate employee’s need for eight-hour shift, when schedule was organized in twelve-hour shifts constitutes undue hardship; “radical restructuring” of production schedule goes beyond requirements of statute); Luccardi v. Town of Agawam Police Dep’t, 18 M.D.L.R. 109 (1996) (not a reasonable accommodation to change very nature of position).

(c)

Direct Threat

Neither the ADA nor G.L. c. 151B requires an employer to accommodate an individual who poses a direct threat to their own health or safety or to the health or safety of others in the workplace. 42 U.S.C. § 12113(b); 29 C.F.R. § 1630.15(b)(2); Gannon v. MCLE, Inc. | 2nd Edition 2020

4–99

§ 4.3

Employment Discrimination in Massachusetts

City of Boston, 476 Mass. 786, 799 (2017); MCAD Guidelines § IX.B.3. In this context, the phrase “direct threat” refers to “a significant risk [or, under state law, “unacceptably significant risk,” Gannon v. City of Boston, 476 Mass. at 799] of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r). The risk must be identified specifically and can be considered only when it is significant; a speculative or remote risk does not constitute a direct threat. 29 C.F.R. pt. 1630, app. (Direct Threat); see also Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002) (court criticized employer for relying on a medical report that was based on stereotyping of the abilities of a one-handed person). In Gannon v. City of Boston, 476 Mass. at 799, the Supreme Judicial Court held that, although the employee bears the ultimate “burden of proving that he or she can safely perform the essential functions of a particular job,” that burden arises only where the employer produces “specific evidence showing that the employee would pose an unacceptably significant risk of serious injury to the employee or others.” To do so, the court held, the employer may not rely “upon pure speculation as to the likely risk of injury,” and “must offer evidence showing an increased risk of serious injury that is so significant that it cannot reasonably be deemed acceptable by an employer.” Gannon v. City of Boston, 476 Mass. at 800. Where the employer has produced such evidence, the employee “must prove that he or she is capable of performing the essential functions of the job without posing an unacceptably significant risk of serious injury to the employee or others.” Gannon v. City of Boston, 476 Mass. at 800. Risk must be assessed on a case-by-case basis, looking at four factors: • the duration of the risk, • the nature and severity of the potential harm, • the probability that the harm will occur, and • the imminence of the potential harm. 29 C.F.R. § 1630.2(r). Consideration of these factors must be based on “objective, factual evidence—not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes.” 29 C.F.R. pt. 1630, app. (Direct Threat); accord Gillen v. Fallon Ambulance Serv., Inc., 383 F.3d 11 (1st Cir. 2002). The Interpretive Guidance suggests that relevant evidence for purposes of evaluating whether an individual poses a direct threat may come from the individual with the disability, “shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” 29 C.F.R. § 1630.2(r). The assessment may be made with the help of doctors, rehabilitation counselors, or other medical experts with knowledge of the individual or the disability. 29 C.F.R. § 1630.2(r); 29 C.F.R. pt. 1630, app. (Direct Threat); see Gillen v. Fallon Ambulance Serv., Inc., 383 F.3d at 29 (question of fact existed where medical opinion on the abilities of a one-handed person rested on “unfounded stereotypes”); Powell v. City of Pittsfield, 143 F. Supp. 2d 94, 133 (D. Mass. 2001) (question of fact existed where doctor’s report proffered by 4–100

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

employer failed to provide adequate facts to demonstrate “the nature of the risk of hepatitis C, the duration of the risk, the potential harm to third parties or the probabilities that hepatitis C will be transmitted and cause varying degrees of harm”). An employee with a “proven pattern of dangerous behavior” presents a sufficient threat to relieve the employer of its reasonable accommodation obligation. Freeman v. Duxbury, 15 M.D.L.R. 1083, 1094 (H.O. Duffy, 1993). Some plaintiffs have attempted to use their violent behavior to demonstrate that they are handicapped and to force their employers to accommodate their behavior. Freeman v. Duxbury, 15 M.D.L.R. at 1095. The MCAD has refused to follow this path and has held that civil rights laws “cannot serve as a refuge for those who break the law.” Freeman v. Duxbury, 15 M.D.L.R. at 1096. The laws prohibiting discrimination against handicapped individuals do not require employers to bear the risk of violent behavior such as that exhibited by individuals diagnosed with “explosive personality disorder.” Mazzarella v. U.S. Postal Serv., 849 F. Supp. 89, 97 (D. Mass. 1994). In Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002), a unanimous court ruled that the EEOC’s regulation properly authorized an employer to deny employment to an individual whose job performance would endanger his own health. Not only does the regulation help employers avoid the risk of violating the Occupational Safety and Health Act (OSHA), it is consistent with the ADA’s prohibition of disability-based paternalism, ruled the Court. Employers, however, must still conduct a particularized inquiry into the harms an employee would likely face in order to prove the direct threat defense based on risk-to-self. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. at 85–86. Finally, although categorized as a separate exception, the ADA expressly permits employers to transfer individuals with “infectious and communicable diseases” from food-handling jobs, if the danger to public health and safety cannot be eliminated by reasonable accommodation. 42 U.S.C. § 12113(3)(2); 29 C.F.R. § 1630.16(e).

(d)

Job-Relatedness and Business Necessity

Employers may utilize testing standards and selection criteria that have the effect of screening out individuals with disabilities, as long as the criteria are job-related and consistent with business necessity and the performance or administration of the particular criterion cannot be accomplished with reasonable accommodation. 29 C.F.R. § 1630.15(b). To be permissible, employment tests must measure the particular skill being assessed rather than reflect an applicant’s impairment. 29 C.F.R. § 1630.11. Tests that replicate the working conditions and accurately predict success on the job generally are acceptable. Whalen v. NYNEX Info. Res. Co., 419 Mass. 792, 797 (1995). For example, requiring a police officer to take and pass a course regarding the use of a handgun that the officer was required to carry and be capable of using while on duty is not discriminatory because it is justified by the “business necessity” of ensuring public safety. Ethridge v. Alabama, 860 F. Supp. 808, 819–20 (M.D. Ala. 1994). This provision is intended to ensure that individuals with disabilities are not excluded from positions unless they actually are unable to perform the job they seek. However, the law does not require an employer to overlook an applicant’s lack of skill in an essential function of the position. Accordingly, employers should select employment MCLE, Inc. | 2nd Edition 2020

4–101

§ 4.3

Employment Discrimination in Massachusetts

criteria, including tests, that address only essential functions and should be prepared to provide accommodations when such accommodations would enable an individual with a disability to demonstrate their ability to perform the essential functions of the position.

(e)

Judicial Estoppel

The issue of whether an employee’s sworn statement on disability benefits forms that he was “totally and continuously disabled” disqualified that employee from asserting a discrimination claim under disability law was settled, at least regarding federal law, by the Supreme Court in Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). In this case the Supreme Court reviewed a decision granting summary judgment to an employer on a claim of disability discrimination by an employee who had suffered a stroke, lost her job, and subsequently applied for Social Security Disability Insurance benefits, claiming she was unable to work due to her disability. The Supreme Court vacated and remanded the case, holding that “pursuit, and receipt, of SSDI benefits does not automatically estop the recipient from pursuing an ADA claim. Nor does the law erect a strong presumption against the recipient’s success under the ADA.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. at 797–98. At the same time, the Court ruled that an ADA plaintiff must be able to “explain why that SSDI contention [that the plaintiff was too disabled to work] is consistent with [the] ADA claim that [the plaintiff] could ‘perform the essential functions’” of their job, with a reasonable accommodation. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. at 806. Thus, under this decision an ADA plaintiff who had applied for disability benefits would have to “proffer a sufficient explanation” for the inconsistency between the claim that the plaintiff could perform the essential functions of the position, with reasonable accommodation, and the claim under SSDI that the plaintiff is unable to work. In the absence of a sufficient explanation, the plaintiff’s claim would fail. This holding did not chart a significantly different course in Massachusetts than that already laid out by the two most recent decisions from this circuit addressing judicial estoppel. In D’Aprile v. Fleet Services Corp., 92 F.3d 1 (1st Cir. 1996), the First Circuit ruled that a plaintiff whose SSDI claim did not date back to the period of time when she had requested a reasonable accommodation from her employer was not estopped from pursuing her ADA claim. The court noted that the plaintiff “never claimed to have been totally disabled during the time she requested her accommodation, and demonstrated her ability to work with the accommodation she requested.” D’Aprile v. Fleet Servs. Corp., 92 F.3d at 5. In Pressman v. Brigham Medical Group Foundation, Inc., 919 F. Supp. 516, 521, 523 n.6 (D. Mass. 1996), the trial court concluded that a genuine issue of fact existed as to whether total disability as defined in an insurance policy meant that the plaintiff was unable to perform the essential functions of the practice of medicine. The court noted that “[n]either the insurance doctor nor his treating physician appeared to have viewed his limitations so broadly; in all instances, the disability was limited to an inability to conduct a solo practice with emergency room duties.” Pressman v. Brigham Med. Grp. Found., Inc., 919 F. Supp. at 523. In light of these points, the defendant was not entitled to entry of judgment on the ground that the plaintiff was not “otherwise qualified.” Pressman v. Brigham Med. Grp. Found., Inc., 919 F. Supp. at 523 n.6. 4–102

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

§ 4.3

In a 2019 decision, Pena v. Honeywell International, Inc., 923 F.3d 18 (1st Cir. 2019), the First Circuit applied the judicial estoppel standard set forth in Cleveland in a case under the ADA. Specifically, in Pena, the plaintiff filled out an application for SSDI benefits in which she claimed to be unable to work due to her disabling condition. Pena v. Honeywell Int’l, Inc., 923 F.3d at 25. Subsequently, at a hearing before an administrative law judge, a medical expert testified that the plaintiff suffered from a somatoform disorder that rendered her totally disabled as of March 8, 2013. Pena v. Honeywell Int’l, Inc., 923 F.3d at 26. On this basis, the administrative law judge granted the plaintiff’s disability benefits application. Pena v. Honeywell Int’l, Inc., 923 F.3d at 26. The First Circuit affirmed the District Court’s grant of summary judgment to the employer on the basis of judicial estoppel. In so concluding, the First Circuit observed that, in addition to representing that she was totally disabled on her SSDI application, the plaintiff had also repeatedly admitted during her deposition that she was totally disabled as of that date. Pena v. Honeywell Int’l, Inc., 923 F.3d at 29-30. The court further observed that the plaintiff had failed to explain the discrepancy between her SSDI application and her ADA claim, in which she alleged that she was able to perform the essential functions of her job with a reasonable accommodation. Pena v. Honeywell Int’l, Inc., 923 F.3d at 30-31. Consequently, the court held, the plaintiff’s ADA claims for unlawful termination and failure to accommodate failed as a matter of law under Cleveland. Pena v. Honeywell Int’l, Inc., 923 F.3d at 31. Analysis of this issue under G.L. c. 151B also appears to be in step with the reasoning of Cleveland. In Russell v. Cooley Dickinson Hospital, Inc., 437 Mass. 443 (2002), the Supreme Judicial Court held that the receipt of total disability benefits does not bar a claim of discrimination. While affirming summary judgment for the hospital on other grounds, the court stated that “prior pursuit, and receipt, of benefits based on an assertion of ‘total disability’ does not automatically [prevent] her from pursuing a claim of employment discrimination,” provided that the employee provides evidence that they are able to perform the essential functions of the job. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 452. In Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1996), the Supreme Judicial Court concluded that, where the evidence creates a disputed issue of fact as to whether a handicapped employee can perform the essential functions of the position, estoppel on the basis of statements in an application for disability benefits is not appropriate. Labonte v. Hutchins & Wheeler, 424 Mass. at 816. The court found that the plaintiff had presented sufficient evidence of his ability to do his job with a reasonable accommodation, and thus upheld the trial court judge’s conclusion that the plaintiff was not estopped from pursuing his G.L. c. 151B claim by filing for disability benefits. Labonte v. Hutchins & Wheeler, 424 Mass. at 816–20. Similarly, the Supreme Judicial Court held, in Russell v. Cooley Dickinson Hospital, Inc., 437 Mass. 443 (2002), that the plaintiff’s application for, and receipt of, workers’ compensation benefits based on a temporary, total disability did not automatically estop her from pursuing a disability discrimination claim so long as a disputed issue of fact remained as to whether the plaintiff was able to perform the essential functions of the job. MCLE, Inc. | 2nd Edition 2020

4–103

§ 4.3

Employment Discrimination in Massachusetts

In Lolos v. Solutia, Inc., 193 F. Supp. 2d 364 (D. Mass. 2002), the District Court concluded that the employee’s representations that she was “unable to work” and could not do her heavy lifting job did not estop her from pursuing a claim under G.L. c. 151B. Other statements by the employee suggested a nonpermanent, partial disability. In addition, the employee argued that a letter from the employer “ordered” her to apply for Social Security benefits if she wanted to continue receiving the company’s internal benefits. Lolos v. Solutia, Inc., 193 F. Supp. 2d at 368–69. However, in Sullivan v. Raytheon Co., 262 F.3d 41 (1st Cir. 2001), the First Circuit affirmed summary judgment for the employer on the employee’s G.L. c. 151B claim. The employee consistently and continually maintained that he was totally disabled in depositions, applications for Social Security disability insurance and worker’s compensation benefits, and tax returns. These representations could not be reconciled with his claim that he could perform the job of security guard with reasonable accommodation. Sullivan v. Raytheon Co., 262 F.3d at 47; see also Pyrcz v. Branford Coll., 10 Mass. L. Rptr. 419 (Super. Ct. 1999) (finding plaintiff’s factual statements and theory of disability advanced for disability benefits to be irreconcilably inconsistent with his handicap discrimination claim); Johansson v. Mass. Dep’t of Corr., 21 M.D.L.R. 143, 146 (H.O. Walker, 1999) (pursuit and receipt of disability benefits does not preclude complainant from raising issue of handicap discrimination, because purpose and standard of applicable laws, as well as timing of claims, are different). Under these decisions, a plaintiff who has applied for disability benefits but has also asserted that they are able to perform the essential functions of their job with a reasonable accommodation will not be automatically estopped from pursuing an ADA or a G.L. c. 151B claim. Instead, the plaintiff will be required to explain the contradiction—that is, to show why, despite a statement of total disability on an application for disability benefits, they are entitled to claim and indeed can demonstrate that they are capable of performing the essential functions of the position with a reasonable accommodation. Thus, although the defense is arguably still available, it has been significantly narrowed.

MCLE and the authors thank Laurie Alexander-Krom, Esq., Krista Green Pratt, Esq., David Rapaport, Esq., and Sara Smolik, Esq., for their contributions to previous versions of this chapter.

4–104

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

Checklist 4.1

ü CHECKLIST 4.1 Plaintiff’s Burden of Proof When Alleging Employer’s Failure to Provide Reasonable Accommodation q Is the plaintiff a qualified handicapped person? q Did the plaintiff need a reasonable accommodation? q Was the plaintiff’s employer aware of the plaintiff’s handicap? And was the plaintiff’s employer aware that the plaintiff needed reasonable accommodation to perform their job? q Was the plaintiff’s employer aware of a means to reasonably accommodate the plaintiff’s handicap? Or did the employer fail to undertake a reasonable investigation to determine if there was a means to accommodate the plaintiff’s handicap? q Did the plaintiff’s employer fail to provide the reasonable accommodation? q (The burden then shifts to the plaintiff’s employer to prove that providing the reasonable accommodation would pose an undue hardship.)

MCLE, Inc. | 2nd Edition 2020

4–105

Checklist 4.2

Employment Discrimination in Massachusetts

ü CHECKLIST 4.2 Disability Discrimination: Strategy Options for Employers q Maintain accurate and up-to-date job descriptions that clearly identify essential job functions. Although not dispositive, courts generally give deference to an employer’s judgment regarding the essential functions of a job. q Document performance issues. Focus on the employee’s conduct rather than on an underlying disability. While an employer may be required to accommodate an employee’s disability (for example, in the case of alcoholism, with a leave of absence for treatment), the employer does not have to tolerate serious misconduct, even if it is connected to or arises out of a disability. See discussion of “compelled” conduct in EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997). q When an employee requests an accommodation, the employer should request and obtain adequate medical information that enables the employer to evaluate whether the employee is disabled, and, if so, whether that disability interferes with the employee’s ability to perform any of the essential job functions. The employer should follow up with the physician or other health-care professional to understand • the nature of the claimed impairment and to what extent any major life activity is impacted; • the manner, if any, in which the claimed impairment affects the employee’s ability to perform the essential functions of their job; • what accommodation, if any, is recommended to enable the employee to perform their job; and • how long such accommodation will be required. q Even if the employee does not expressly request an accommodation (see § 4.3.2(e), above), the wisest course, if the employer has knowledge of an employee’s impairment, is to do the following: • obtain appropriate information about the employee’s impairment (see third item, above); • discuss possible accommodations with the employee; • give any requests by the employee serious consideration (do not reject them out of hand); • if the employee’s proposed accommodation is not reasonable, explore alternatives; and • do not abandon the interactive process unless and until it is clear that the employee’s position would render further discussions futile. 4–106

2nd Edition 2020 | MCLE, Inc.

Disability Discrimination

Checklist 4.2

q After U.S. Airways, employers faced with an accommodation request contrary to an existing seniority policy must still ask: “Do I have to make an exception as a reasonable accommodation?” In other words, “Will this employee be able to show ‘special circumstances’ such that an exception (or another exception) to the seniority-based rule is required?” Even though the Court held that employers need not reassess seniority systems on a “case-by-case” basis, the prudent employer should not ignore any request for accommodation. However, in considering accommodation requests in the seniority context, employers can be fairly confident that, if they have a bona fide seniority system that has been consistently followed, exceptions to that system are not required by the ADA or Massachusetts law. q Consult with appropriate experts, such as job analysts, rehabilitative counselors, occupational therapists, and health-care professionals, where appropriate, to determine whether and what accommodations may be available. Often, such experts can be identified through organizations related to specific types of disabilities (e.g., the MS Society). q Document all steps taken, including the final resolution of the matter. q For requests for accommodations that are temporary in nature (e.g., leaves of absence, change in shift, part-time work), employers should be persistent in clarifying how long the employee requests or needs the accommodation, and specifying how long the employer can reasonably provide it. q The bottom line is that the MCAD, EEOC, courts, and juries react more sympathetically and treat employers more favorably when the employer’s response to a handicapped employee is both fair and reasonable. Employers should not act unilaterally and should not be dismissive or peremptory in responding to an employee’s request for an accommodation. Employers should have in place policies and procedures that provide for a consistent and fair response to requests for accommodation, and should ensure that such policies and procedures are uniformly applied.

MCLE, Inc. | 2nd Edition 2020

4–107

CHAPTER 5

Pregnancy Discrimination* Johanna L. Matloff, Esq. Conn Kavanaugh Rosenthal Peisch & Ford LLP, Boston

Katherine J. Michon, Esq. Hartley Michon Robb LLP, Boston

Julie M. Muller, Esq. Conn Kavanaugh Rosenthal Peisch & Ford LLP, Boston

Mary E. (Beth) O’Neal, Esq. Conn Kavanaugh Rosenthal Peisch & Ford LLP, Boston

Lucia A. Passanisi, Esq. Todd & Weld LLP, Boston § 5.1

Introduction............................................................................................. 5–2

§ 5.2

Pregnancy Discrimination: A Plaintiff’s Perspective ........................... 5–3 § 5.2.1 Introduction ............................................................................ 5–3 § 5.2.2 Pregnant Women Have Protection Under the State and Federal Laws Governing Sex Discrimination .................. 5–3 (a) General Laws c. 151B ..................................................... 5–4 (b) Title VII of the Civil Rights Act of 1964, as Amended by the Pregnancy Discrimination Act of 1978 ................ 5–5 (c) Proving Sex Discrimination Based on Pregnancy ........... 5–7 § 5.2.3 Marital Status and Child-Care Responsibilities ................... 5–13 § 5.2.4 Pregnant Women with Complications from Pregnancy May Have a Viable Disability Claim Under Federal and State Law ....................................................................... 5–14 (a) Normal Pregnancy Ordinarily Is Not Considered a Disability .................................................................... 5–14 (b) Pregnancy-Related Medical Conditions May Rise to the Level of a Disability ............................................ 5–15 § 5.2.5 Statutory Law Allowing Pregnant Women the Right to Take Maternity Leave ....................................................... 5–17 (a) Family and Medical Leave Act ..................................... 5–17 (b) Massachusetts Parental Leave Act, G.L. c. 149, § 105D........................................................................... 5–19 § 5.2.6 Conclusion ........................................................................... 5–22

*

For the 2020 Edition, Section 5.2 was revised by Katherine J. Michon, Esq., and Lucia A. Passanisi, Esq., and Section 5.3 was revised by Johanna L. Matloff, Esq., Julie M. Muller, Esq., and Mary E. (Beth) O’Neal, Esq.

MCLE, Inc. | 2nd Edition 2020

5–1

§ 5.1

Employment Discrimination in Massachusetts

§ 5.3

Pregnancy Discrimination: A Defense Perspective............................. 5–22 § 5.3.1 Introduction .......................................................................... 5–22 § 5.3.2 Applicable Laws ................................................................... 5–23 § 5.3.3 Unlawful Inquiries ................................................................ 5–26 § 5.3.4 Parental/Maternity and Maternity-Related Leaves ............... 5–27 (a) Massachusetts Paid Family and Medical Leave Law .... 5–27 (b) Massachusetts Parental Leave Act................................. 5–30 (c) Family and Medical Leave Act...................................... 5–33 (d) Americans with Disabilities Act and State Counterpart.................................................................... 5–34 (e) Massachusetts Pregnant Workers Fairness Act .............. 5–36 (f) Pregnancy Discrimination Against Employers .............. 5–38 (g) Employer-Mandated Leave ........................................... 5–38 § 5.3.5 Pregnancy Discrimination in Employment ........................... 5–38 (a) Prima Facie Case ........................................................... 5–40 (b) Need for Parental Leave ................................................ 5–41 (c) Pregnancy-Related Disabilities ..................................... 5–42 (d) Terms and Conditions of Employment .......................... 5–42 (e) Marital Status, Child-Care Responsibilities, and Breastfeeding .......................................................... 5–43 (f) Reductions in Force....................................................... 5–45 (g) Termination ................................................................... 5–46 § 5.3.6 Benefits................................................................................. 5–48 (a) Short-Term or Temporary Disability ............................. 5–48 § 5.3.7 Individual Liability ............................................................... 5–48 § 5.3.8 Remedies Available to Successful Plaintiffs ......................... 5–50

Scope Note This chapter addresses discrimination related to pregnancy in the workplace, from both the plaintiff’s perspective and the employer’s perspective.

§ 5.1

INTRODUCTION

There are many state and federal laws that potentially provide protection to pregnant employees, employees who have given birth, and employees who are affected by medical conditions related to pregnancy and childbirth. These include G.L. c. 151B, Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act), the Family and Medical Leave Act, and the Massachusetts Parental Leave Act. This chapter provides guidance to attorneys representing plaintiffs who allege a pregnancy discrimination claim, as well as guidance for attorneys representing employers—both those that must respond to a pregnancy discrimination allegation and those wish to understand their obligations under the law so as to avoid future litigation.

5–2

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.2

§ 5.2

PREGNANCY DISCRIMINATION: A PLAINTIFF’S PERSPECTIVE

§ 5.2.1

Introduction

A pregnant woman has certain rights under the state and federal statutes that prohibit sex and disability discrimination in the workplace. A pregnant woman also has the right to a leave of absence from work for such things as pregnancy-related medical conditions and childbirth. This section provides an overview of the various laws that protect the rights of a pregnant employee. As will be discussed below, a woman may have a claim against her employer for pregnancy discrimination for a variety of reasons. For example, if a pregnant woman can prove that she was terminated, laid-off, not hired, refused leave time, or denied sick leave benefits due to her pregnancy, childbirth, or her pregnancy-related medical condition, she can hold the employer liable for such action. In addition, many practitioners are unaware that a pregnant woman who has a complication with her pregnancy, such as toxemia, may have rights under the disability discrimination laws, including the right to reasonable accommodation, such as a job transfer or a flexible work schedule. A pregnant woman also has a statutory right under two statutes, the Family and Medical Leave Act (FMLA) and the Massachusetts Parental Leave Act (MPLA), to take an unpaid leave of absence from work for such things as childbirth and pregnancy-related illnesses. Finally, the courts and Congress have recognized that many employers still hold stereotypical views about a woman not being dedicated to her job after she becomes pregnant.

§ 5.2.2

Pregnant Women Have Protection Under the State and Federal Laws Governing Sex Discrimination

Pregnant women who are wronged in the workplace should look to the state and federal antidiscrimination statutes to determine whether their employer’s conduct amounts to illegal sex discrimination. In doing so, plaintiff’s counsel should keep in mind that an employer can incur liability if it uses a woman’s pregnancy, childbirth, or potential or actual use of maternity leave as a reason for any adverse job action. See, e.g., Sch. Comm. of Braintree v. MCAD, 377 Mass. 424, 427 (1979); Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1444–45 (2015). Such adverse job actions include, but are not limited to, • termination, Hammond v. Carol O’Leary Residential Cleaning Specialist, 38 M.D.L.R. 94, 95 (2016) (affirming hearing officer’s ruling that the employer terminated the complainant due to her pregnancy and not her absenteeism, because before her pregnancy such behavior went undisciplined); Scaife v. Florence Pizza Factory Corp., 34 M.D.L.R. 19 (2012); White v. Michaud Bus Lines, Inc., 19 M.D.L.R. 18, 22 (1997) (complainant terminated under the pretext of layoff when she chose to take maternity leave); Gowen-Esdale v. Franklin Publ’g Co., 6 M.D.L.R. 1258, 1272–74 (1984) (complainant terminated because of the employer’s concerns that she would miss work because of a difficult MCLE, Inc. | 2nd Edition 2020

5–3

§ 5.2

Employment Discrimination in Massachusetts

pregnancy); MCAD & Sullivan v. Connoisseurs Prods. Corp., 2007 Mass. Comm. Discrim. LEXIS 30 (2007) (complainant terminated under pretext of performance concerns); • refusal to hire, DeCosa v. Allied Barton Sec. Serv., LLC, 36 M.D.L.R. 215 (2014) (holding company liable for revoking a job offer to a pregnant job candidate); Rice v. City of Cambridge Historical Comm’n, 4 M.D.L.R. 1138, 1147 (1982) (complainant eliminated from consideration for a job after the employer learned that she was pregnant); • refusal to cover disabilities arising from pregnancy, Sch. Comm. of Brockton v. MCAD, 377 Mass. 392, 393 (1979); Sch. Comm. of Braintree v. MCAD, 377 Mass. at 430; see also 29 C.F.R. § 1604.10, at 626.4; Young v. United Parcel Serv., Inc., 135 S. Ct. at 1354–55 (holding an employer must provide pregnant employees similar accommodations as provided to disabled employees); and • considering a woman’s pregnancy or her need to take a maternity leave when making an employment decision, Recupero v. Terri’s Little Pumpkins, 35 M.D.L.R. 46, 51 (2013) (holding an employer discriminated against the complainant by terminating her employment while she was on maternity leave); Foy v. Mast Indus., 13 M.D.L.R. 1501, 1559 (1991) (employer’s offer of a different position after learning a new hire was pregnant violates G.L. c. 151B); MCAD v. State St. Bank & Tr. Co., 25 M.D.L.R. 151 (2003) (denial of promotion while an employee was on maternity leave violated G.L. c. 151B).

(a)

General Laws c. 151B

The Massachusetts antidiscrimination statute, G.L. c. 151B, makes it unlawful [f]or an employer, by himself or his agent, because of the . . . sex . . . of any individual . . . to refuse to hire or . . . discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. G.L. c. 151B, § 4(1). The Massachusetts courts have consistently held that the prohibition against sex discrimination in the statute includes a prohibition against discrimination on the basis of pregnancy, childbirth and pregnancy-related medical conditions, and use of maternity leave. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 384 n.3 (2016); Sch. Comm. of Braintree v. MCAD, 377 Mass. at 430; see also Mass. Elec. Co. v. MCAD, 375 Mass. 160 (1978). This is because the courts have concluded that pregnancy and childbirth are sex-linked characteristics, and any actions of an employer that unduly burden an employee because of pregnancy or the requirement of maternity leave are considered sex discrimination. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 384 n.3; Mass. Elec. Co. v. MCAD, 375 Mass. at 166; see also Lane v. Laminated Papers, Inc., 16 M.D.L.R. 1001, 1013 (1994). 5–4

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.2

Practice Note In 2008, the Massachusetts Supreme Judicial Court ruled that, even where a plaintiff was unable to pursue a discrimination claim under G.L. c. 151B because her employer employed fewer than six individuals, she could nonetheless assert a claim under the Massachusetts Equal Rights Act (MERA). Nothing in G.L. c. 151B prohibits the use of other statutes to support a claim, and a potential majority of employers in Massachusetts employ fewer than six employees. See Thurdin v. SEI Bos., LLC, 452 Mass. 436 (2008).

(b)

Title VII of the Civil Rights Act of 1964, as Amended by the Pregnancy Discrimination Act of 1978

Similarly, federal law, Title VII, provides: “It shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a). Title VII of the Civil Rights Act of 1964 prohibits pregnancy discrimination through the Pregnancy Discrimination Act (PDA) that Congress enacted in 1978 to overturn the U.S. Supreme Court’s decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), which held that the exclusion from disability plan coverage for periods of disability arising from, or related to, pregnancy did not constitute sex discrimination. Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976). The PDA made it clear that [t]he terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions; and women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. 42 U.S.C. § 2000e(k). The PDA was intended to “provide relief for working women and to end discrimination against pregnant workers.” Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 286 (1987). It was not, however, designed to provide pregnant women with more protection in the workplace than employees who are not pregnant. See Troupe v. May Dep’t Stores Co., 20 F.3d 734, 738 (7th Cir. 1994) (“[e]mployers can treat pregnant women as badly as they treat similarly affected nonpregnant employees”). “While employers are permitted by Title VII to provide women with leave specifically for the period that they are incapacitated because of pregnancy . . . employers may not treat either sex more favorably with respect to other kinds of leave.” Equal Employment Opportunity Commission (EEOC) Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, Notice No. 915.022, § II(C) (May 23, 2007), available at http://www.eeoc.gov/policy/docs/caregiving.html. Under the PDA, an employer is not required to treat a pregnant employee more favorably MCLE, Inc. | 2nd Edition 2020

5–5

§ 5.2

Employment Discrimination in Massachusetts

than a nonpregnant employee; however, such preferential treatment is not forbidden. See Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. at 286–88. The Supreme Court ruling in AT&T Corp. v. Hulteen, 556 U.S. 701 (2009), made it clear that a pension program that gave less retirement credit under a seniority system for pregnancy than for medical leave generally, in effect prior to the enactment of the PDA, does not necessarily violate the PDA. On March 25, 2015, the U.S. Supreme Court issued a groundbreaking decision in Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), interpreting the second clause of the PDA. In Young, the petitioner, a UPS truck driver, was denied a lifting restriction accommodation during her pregnancy. Young v. United Parcel Serv., Inc., 135 S. Ct. at 1346. The respondent did, however, accommodate other drivers who sought accommodations because they had become disabled on the job, lost their Department of Transportation certifications, and/or suffered from a disability under the Americans with Disabilities Act (ADA). Young v. United Parcel Serv., Inc., 135 S. Ct. at 1346. These accommodations were granted pursuant to the respondent’s policies. The petitioner filed a discrimination complaint, alleging that she had been subjected to disparate treatment. The respondent succeeded on its motion for summary judgment before the District Court and the Fourth Circuit. However, the Supreme Court granted certiorari and vacated the Fourth Circuit’s decision. The issue before the Supreme Court was the application of the second clause of the PDA in the context of a disparate treatment claim: “[W]omen affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). The Supreme Court noted that the PDA does not grant pregnant workers a “mostfavored-nation” status, requiring that employers accommodate pregnant employees “irrespective of the nature of their jobs, the employer’s need to keep them working, their ages, or any other criteria.” Young v. United Parcel Serv., Inc., 135 S. Ct. at 1349–50. Indeed, “when referring to nonpregnant persons with similar disabilities, [the second clause of the PDA] uses the open-ended term, ‘other persons.’ It does not say that the employer must treat pregnant employees the ‘same’ as ‘any other persons’ . . . nor does it specify which other persons Congress had in mind.” Young v. United Parcel Serv., Inc., 135 S. Ct. at 1350. Moreover, the Supreme Court recognized “that disparate-treatment law normally permits an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so.” Young v. United Parcel Serv., Inc., 135 S. Ct. at 1350 (citations omitted). In vacating the Fourth Circuit’s decision, the Supreme Court held that “an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework.” Young v. United Parcel Serv., Inc., 135 S. Ct. at 1353. For an employee to prove that she has been intentionally discriminated against, she must demonstrate that “the employer’s 5–6

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.2

policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden. . . .” Young v. United Parcel Serv., Inc., 135 S. Ct. at 1354. The Court further noted that an employee “can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.” Young v. United Parcel Serv., Inc., 135 S. Ct. at 1354. As to the facts in Young, the Court further noted that, although the petitioner proffered sufficient evidence that UPS’s policies “significantly burdened pregnant women,” the Fourth Circuit failed to consider the “combined effects” of the policies and the “strength of UPS’ justifications for each when combined. That is, why, when the employer accommodated so many, could it not accommodate pregnant women as well?” Young v. United Parcel Serv., Inc., 135 S. Ct. at 1355. Practice Note While the Young decision is helpful to plaintiffs, the question of what constitutes a “significant burden” remains an open issue.

The Supreme Court’s holding in Young is a good reminder that the “similarly situated” standard under McDonnell Douglas does not require a plaintiff to demonstrate that she was similar in all respects to her comparator, but rather it is a test of reasonableness. Practice Note Given that the current definition of “disability” under the ADA includes impairments that substantially limit an individual’s ability to lift, an individual who has lifting restrictions due to pregnancy may now be covered under the ADA, which provides an affirmative duty to provide a reasonable accommodation.

(c)

Proving Sex Discrimination Based on Pregnancy

There are three different types of pregnancy discrimination cases: • disparate treatment, • disparate impact, and • facially discriminatory policies that limit or preclude women from performing specific jobs in the workplace simply because they are fertile or pregnant. All three types of cases are discussed below.

Disparate Treatment Analysis of a Pregnancy Discrimination Claim Under a disparate treatment pregnancy claim, the plaintiff alleges that she was treated differently by her employer because of her protected class (sex/pregnancy). “For a disparate treatment claim to be a claim of discrimination on the basis of sex, the claimant’s sex must have actually played a role in [the decision-making] process and had a determinative influence on the outcome.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 186 (2005) (citations omitted). The plaintiff can prove her case MCLE, Inc. | 2nd Edition 2020

5–7

§ 5.2

Employment Discrimination in Massachusetts

through direct or circumstantial evidence. See Wheelock Coll. v. MCAD, 371 Mass. 130 (1976). Direct evidence requires a showing of evidence that, if believed, would produce an unavoidable inference that the employer has a bias in the workplace. See Atkinson v. Nat’l Bos. Video Ctr., Inc., 69 Mass. App. Ct. 1107, 2007 WL 1704088, at *3 (June 13, 2007) (unpublished); see also Weston-Smith v. Cooley Dickinson Hosp., 282 F.3d 60, 64–68 (1st Cir. 2002). With direct evidence, a plaintiff need not show an employer’s motive or pretext or meet other burden-shifting requirements. See Weston-Smith v. Cooley Dickinson Hosp., 282 F.3d at 64–68; see also Carr v. Merle & Zicherman, D.D.S., PC, 27 M.D.L.R. 297 (2005) (finding an employer’s policies requiring a pregnant employee to stop working because of concerns for the fetus are direct evidence of discrimination). Unambiguous statements made by the employer may be sufficient to prove discrimination so long as the statements were directed at the plaintiff. See Thaifa v. White Hen Pantry, 29 M.D.L.R. 31, 34 (2007) (finding that comments not directed at a complainant may reveal an employer’s predisposition or possible bias but are not sufficient direct evidence); see also Weston-Smith v. Cooley Dickinson Hosp., 282 F.3d at 65. However, since direct evidence is hard to come by, pregnancy discrimination claims, like all disparate treatment discrimination claims, are usually proven through circumstantial evidence under a burden-shifting approach that was first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See Wheelock Coll. v. MCAD, 371 Mass. at 136; see also Colaiacomo & MCAD v. Mass. Dep’t of Envtl. Prot., 29 M.D.L.R. 19, 22 (2007). This framework of shifting the burden of production of evidence is intended to “progressively sharpen the inquiry into the elusive factual question of intentional discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981). In general, the McDonnell Douglas burden-shifting analysis starts with the plaintiff proving a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802; see also Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015); Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382 (2016); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34 (2005); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); Blare v. Husky Injection Molding Sys. Inc., 419 Mass. 437 (1995). The essential elements of a prima facie case, discussed below, vary depending upon the circumstances of the case. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 42 (2005); see also Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 116 (2000); Wheelock Coll. v. MCAD, 371 Mass. at 135 n.5. Once the prima facie case is established, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action taken and to produce evidence of underlying facts in support thereof. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 397; Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 700 (1992). This burden consists of proffering reasons and offering “credible evidence to show that the reason or reasons advanced were the real reasons.” Wheelock Coll. v. MCAD, 371 Mass. at 138; see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 511; Blare v. Husky Injection Molding Sys. Inc., 419 Mass. at 441. 5–8

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.2

Once the defendant has met its burden of production, the burden shifts back to the plaintiff to prove, by a preponderance of the evidence, that the defendant’s articulated reasons were not the real reasons but were instead a pretext for discrimination. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 397; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); see also Lipchitz v. Raytheon Co., 434 Mass. 493, 498 (2001). Both the U.S. Supreme Court and the Massachusetts Supreme Judicial Court have clarified what the plaintiff must show at this stage. The Supreme Court has held that, if the plaintiff shows that the defendant’s articulated reason for its action is a mere pretext, “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s actions.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 147. Similarly, the Supreme Judicial Court has held that a finding that the employer’s purported explanation is a pretext may support an inference that the employer unlawfully discriminated. See Abramian v. President & Fellows of Harvard Coll., 432 Mass. at 107, 118 (2000). The Supreme Judicial Court held that, under G.L. c. 151B, proof that just one reason given by an employer is false may be sufficient to establish the decision at issue was discriminatory. See Lipchitz v. Raytheon Co., 434 Mass. at 498 (“The plaintiff presented sufficient evidence from which a reasonable jury could find that at least one of Raytheon’s reasons was false and from this it properly could have inferred that she was not promoted because of unlawful discrimination.”). There also exists a rare class of cases called “mixed-motive” cases. See Wynn & Wynn, P.C. v. MCAD, 431 Mass. 655 (2000). In Wynn & Wynn P.C., the Supreme Judicial Court affirmed the ruling of the Massachusetts Commission Against Discrimination (MCAD) that a law firm’s failure to hire a complainant as an attorney was tainted by sex/pregnancy discrimination. In doing so, the court, among other things, clarified all complainants’ burden in mixed-motive cases. In such a case, a complainant has direct evidence that an employer’s discriminatory animus played some part in the adverse action alleged. When a complainant has this type of evidence, the inquiry is no longer whether the defendant’s stated reason for the adverse action is a pretext. Instead, the inquiry becomes whether the defendant’s stated legitimate reason also motivated the employment decision. In a mixed-motive case, the defendant avoids a finding of liability by proving that it would have made the same decision even without the illegitimate motive. See Wynn & Wynn, P.C. v. MCAD, 431 Mass. at 670. Massachusetts courts analyze cases in which an employee suffers an adverse employment action that involves a multilevel decision-making process and a neutral decision maker under the “cat’s paw” theory. Under this theory, “liability can attach if neutral decision makers, when deciding to terminate an employee, rely on information that is inaccurate, misleading, or incomplete because of another employee’s discriminatory animus” Carigilia v. Hertz Equip. Corp., 363 F.3d 77, 85–88 (1st Cir. 2004); see also Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 688 (2016) (holding summary judgment is inappropriate where the plaintiff provided sufficient evidence for a reasonable trier of fact to find he was terminated because the employer based its decision on supervisors’ negative performance reviews that may have been motived MCLE, Inc. | 2nd Edition 2020

5–9

§ 5.2

Employment Discrimination in Massachusetts

by discriminatory animus). However, the fact that a supervisor who harbors discriminatory animus “provides some of the information on which a decision is based, or initially recommends the adverse employment action to someone higher up in the organization, does not necessarily mean that the decision maker lacks sufficient independence from the supervisor for these purposes.” Moser v. Cheney, 2014 WL 3048783, at *6 (Mass. Super. Ct. May 4, 2014) (internal quotations and citation omitted). The burden is on the employee to show that the information provided by the supervisor who harbors discriminatory animus “was a material and important ingredient in causing [the adverse employment action] to happen.” Moser v. Cheney, 2014 WL 3048783, at *6 (internal quotations and citation omitted).

Prima Facie Case In a typical sex/pregnancy disparate treatment case, a plaintiff must establish that, at the relevant time, • she was a member of a protected group (i.e., that she was pregnant or has indicated an intention to become pregnant); • she was performing her job responsibilities at an acceptable level; • she suffered some adverse employment action (i.e., a dismissal, demotion, refusal to hire, etc.); and • either her employer sought a replacement with a person of similar qualifications or her termination occurred in circumstances that would raise a reasonable inference of discrimination. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 396; Young v. United Postal Serv., Inc., 135 S. Ct. at 1354 (outlining the prima facie framework for an employer’s failure to reasonably accommodate an employee pregnancy under the ADA); see also White v. Univ. of Mass. at Bos., 410 Mass. 553, 557 (1991); Thaifa v. White Hen Pantry & Sannizzaro, 29 M.D.L.R. at 34; Colaiacomo v. Mass. Dep’t of Envtl. Prot., 29 M.D.L.R. at 22. A pregnant woman is a member of a protected class. See White v. Univ. of Mass. at Bos., 410 Mass. at 557 (“Asserting a claim based on sex discrimination as a pregnant woman, Plaintiff is a member of a protected class.”); see also Smith v. F.W. Morse & Co., 76 F.3d 413, 421 (1st Cir. 1996).

Proving Pretext There are a number of methods by which a plaintiff can prove pretext in a discrimination claim. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802. The Massachusetts Appeals Court identified four such methods in City of Salem v. MCAD, 44 Mass. App. Ct. 627, 642–43 (1998) (race discrimination): • the employer’s differential treatment of an employee; • the employer’s general practices and policies concerning employment of the person in the protected class; 5–10

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.2

• the employer’s use of uncontrolled subjectivity in the hiring process; and • identifying the employer’s inconsistencies and the like in the proffered reason for its action. City of Salem v. MCAD, 44 Mass. App. Ct. at 642–43; see also Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015). Practice Note Pretext for pregnancy discrimination can be proven in the same manner as pretext for any other form of discrimination.

Timing Plaintiff’s counsel should pay close attention to the proximity in time between the adverse action, e.g., termination, and an employer’s knowledge that a plaintiff is pregnant. A short proximity in time can help prove pretext. See, e.g., EEOC v. Ackerman, Hood & McQueen, Inc., 956 F.2d 944, 949 (10th Cir. 1992) (the fact that the plaintiff was first counseled for job performance only days after announcing her pregnancy is evidence of discriminatory intent); Hunt-Golliday v. Metro. Water Reclamation Dist. of Greater Chi., 104 F.3d 1004, 1011 (7th Cir. 1997) (suspicious timing constitutes circumstantial evidence to support a claim of intentional discrimination); McDonnell v. Certified Eng’g & Testing Co., 899 F. Supp. 739, 748 (D. Mass. 1995) (the fact that the plaintiff was terminated immediately after informing her supervisor of her pregnancy “raises the specter” that the defendant’s termination decision was motivated by illegal sex discrimination); Mercurio v. Atamian Volkswagen, Inc., 25 M.D.L.R. 55 (2003) (the complainant’s performance was not called into question until she announced her pregnancy, which suggests that the respondent’s “articulated reasons are not only pretext, but a total fabrication”).

Stereotypical Remarks Another method of proving pretext is to focus on any sexist statements made by the decision maker. In Troy v. Bay State Computer Group, Inc., 141 F.3d 378, 381 (1st Cir. 1998), the plaintiff testified that her boss stated, among other things, that working while she was pregnant was “not the best thing for her.” Troy v. Bay State Computer Grp., Inc., 141 F.3d at 381. The First Circuit found that these types of sexist statements supported the jury verdict finding that the plaintiff was fired due to stereotypical views about pregnancy, rather than poor attendance as alleged by the defendant. In Chadwick v. Wellpoint, Inc., 561 F.3d 38, 41–42 (1st Cir. 2009), a plaintiff who was denied a promotion alleged that the denial was the result of the sex-based stereotype that “mothers, particularly those with young children, neglect their work duties in favor of their presumed childcare obligations.” In explaining the denial of the promotion, the employer stated to the plaintiff, “It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids, and you just have a lot on your plate right now.” The court overturned summary judgment for the defendant. See also Barbano v. Madison Cty., 922 F.2d 139, 143 (2d Cir. 1990) (questions regarding whether the plaintiff would get pregnant and quit constituted evidence of sex discrimination). But see Daley v. Wellpoint Health Networks, Inc., 146 F. Supp. 2d 92 MCLE, Inc. | 2nd Edition 2020

5–11

§ 5.2

Employment Discrimination in Massachusetts

(D. Mass. 2001) (the defendant lost a pregnancy discrimination case at summary judgment; the court found the supervisor’s alleged statement to a nonparty employee that she hoped she “was not going to get pregnant” was nonadmissible hearsay).

Disparate Impact Analysis of a Pregnancy Discrimination Claim A disparate impact claim involves employment practices “that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335–36 n.15 (1977). A plaintiff proceeding under a disparate impact theory, unlike a plaintiff in a disparate treatment case, need not offer evidence of discriminatory motive to make out a prima facie case. See Griggs v. Duke Power Co., 401 U.S. 424, 429–32 (1971). Disparate impact cases usually require a statistical showing that a facially neutral policy had a disproportionate effect on a protected class of employees—e.g., pregnant employees. See, e.g., Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994 (1988) (addressing a claim of racial discrimination in promotion). Massachusetts courts have also recognized the availability of disparate impact claims involving pregnancy discrimination. However, most pregnancy discrimination claims have been brought under a disparate treatment analysis. See Sch. Comm. of Braintree v. MCAD, 377 Mass. at 429 n.15 (distinguished a disparate impact discrimination case from a disparate treatment case).

Facially Discriminatory Policies That Limit Women from Performing Specific Jobs Simply Because They Are Fertile or Pregnant—Analysis of a Pregnancy Discrimination Claim Policies that limit or preclude fertile or pregnant women from performing specific jobs may arise in workplaces where employees are required to handle hazardous substances. These policies are commonly referred to as “fetal protection policies.” Such policies are discriminatory on their face and can be upheld only if they can be defended as a “bona fide occupational qualification (BFOQ).” Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) (fetal protection policy violates Title VII, as amended by the PDA). The Supreme Court found that a policy that prevents women of childbearing capacity from working in a job that exposes them to certain levels of lead is facially discriminatory and rejected all of defendant’s proffered BFOQs, including safety to the fetus and the employer’s possible exposure to tort liability for fetal injury. The Court concluded that “decisions about the welfare of future children must be left to the parents who conceive, bear, support and raise them, rather than to the employers who hire those parents.” Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. at 207.

5–12

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.2.3

§ 5.2

Marital Status and Child-Care Responsibilities

While marital and parental status are not per se protected categories under G.L. c. 151B, discrimination and bias based on gender stereotypes do qualify as sexbased discrimination. In Sivieri v. Massachusetts Department of Transitional Assistance, 16 Mass. L. Rptr. 531 (Super. Ct. 2003), the Superior Court found that the complainant had established her claim of gender discrimination based on the acts and assumptions made by her employer. Despite positive performance reviews and previous increases in her salary and responsibilities, the complainant’s employer subsequently passed her over for promotions after her marriage and the birth of her child. The employer also made discriminatory statements regarding a wife and mother’s ability to effectively perform her employment duties while at the same time caring for her children. Relying on Ntapalis v. Halem & Schrader, PC, 15 M.D.L.R. 1117 (1993), and liberally construing G.L. c. 151B, the court first recognized that parental status is so closely linked to gender that this type of discrimination is actionable under G.L. c. 151B. The court then found that the complainant had presented adequate evidence of the employer’s bias against women with young children. This bias, coupled with the complainant’s satisfactory performance and the adverse actions taken against her, established a cause of action for sex-based discrimination under G.L. c. 151B. The Superior Court applied identical reasoning in 2006 in denying the defendant’s motion for summary judgment. See Sivieri v. Mass. Dep’t of Transitional Assistance, 21 Mass. L. Rptr. 97 (Super. Ct. 2006). Again, the court recognized that the defendant’s statements and actions “reflect[ed] a discriminatory animus not towards parenthood, but towards women, based on antiquated ideas about what a woman’s role in society should be.” Sivieri v. Mass. Dep’t of Transitional Assistance, 21 Mass. L. Rptr. at 100. As evidenced by Sivieri, employers are prohibited from making employment decisions based on stereotypes regarding caretaker responsibilities. In addition, assumptions made by the employer about a woman’s performance, competence, or commitment based on her pregnancy, child-care responsibilities, or both may also qualify as discrimination, regardless of the intent behind the statement (i.e., hostility or genuine concern). See EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, Notice No. 915.002, § II(A)(3) (May 23, 2007). It would therefore be a violation of Title VII were an employer to treat a female employee less favorably on the assumption that she “will assume caretaking responsibilities or that [her] caretaking responsibilities will interfere with her work performance.” EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, at § II(A)(3). Also, employment decisions that are perceived to be in the employee’s best interest, such as assuming that “a working mother would not want to relocate to another city, even if it would mean a promotion,” are considered adverse actions in violation of Title VII. EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, at § II(A)(3).

MCLE, Inc. | 2nd Edition 2020

5–13

§ 5.2

Employment Discrimination in Massachusetts

Practice Note The EEOC has released guidelines regarding the disparate treatment of caregivers in the workplace. These guidelines discuss, among other things, the issues faced by pregnant workers. See § 5.2.3, Marital Status and Child-Care Responsibilities, above. Moreover, the EEOC recognizes that asking a job applicant or an employee about gender-related characteristics, such as pregnancy, is not prohibited under Title VII. However, the EEOC discourages such inquiries and has noted that it “will consider the fact that an employer has asked such a question when evaluating a charge alleging pregnancy discrimination.” See Questions and Answers About the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues, Question No. 3 (July 14, 2014), available at http:// www.eeoc.gov/laws/guidance/pregnancy_qa.cfm.

§ 5.2.4

Pregnant Women with Complications from Pregnancy May Have a Viable Disability Claim Under Federal and State Law

Pregnancy itself is not a disability. See McDonnell v. Certified Eng’g & Testing Co., 899 F. Supp. 739, 752 (D. Mass. 1995). However, in some circumstances, a pregnancy-related medical condition may be considered a disability under federal and state antidiscrimination laws. The courts have addressed the issue of whether a normal, uncomplicated pregnancy is an impairment that can be covered by the antidiscrimination laws. The answer to this question under the ADA and G.L. c. 151B seems to be no—even when a woman is not able to work for a period of time due to her pregnancy or her maternity leave. The ADA and G.L. c. 151B ban employment discrimination against qualified individuals with disabilities. A disability is defined, among other things, as a physical or mental impairment that substantially limits one or more major life activities. See 42 U.S.C. § 12102(2); G.L. c. 151B, § 1(17). Examples of major life activities include, but are not limited to, caring for oneself, performing manual tasks, walking, and working generally. See Interpretive Guidance on Title I of the ADA (2007), 29 C.F.R. Pt. 1630, App. § 1630.2(h); see also G.L. c. 151B, § 1(20). A pregnant woman may also have a disability discrimination claim if she is regarded as having a disability, even if, in reality, she does not. See 42 U.S.C. § 12102(2); see also G.L. c. 151B, § 1(17); Cook v. R.I. Dep’t of MHRH, 10 F.3d 17, 23 (1st Cir. 1993) (if an individual can show that an employer made an employment decision because of a perception of a disability based on myth, fear, or stereotype, the individual will satisfy the “regarded” part of the definition of disability); Gowen-Esdale v. Franklin Publ’g Co., 6 M.D.L.R. 1258 (1984) (termination of the complainant during a troubled pregnancy because of the employer’s fears of further absences was deemed unlawful discrimination).

(a)

Normal Pregnancy Ordinarily Is Not Considered a Disability

Many court decisions and the accompanying regulations to the ADA make it clear that pregnancy alone is not a covered disability under the ADA. Indeed, the accompanying 5–14

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.2

regulations to the ADA specifically state that “conditions, such as pregnancy, that are not a result of a physiological disorder . . . are not impairments.” 29 C.F.R. § 1630.2(h); see also Gudenkauf v. Stauffer Commc’ns, Inc., 922 F. Supp. 465 (D. Kan. 1996) (the plaintiff’s pregnancy or her pregnancy-related conditions not found to be physical impairments because they did not “exceed the normal ranges,” or result from a “disorder”); Brennan v. Nat’l Tel. Directory Corp., 850 F. Supp. 331 (E.D. Pa. 1994) (pregnancy was not a physical impairment under a state statute that was modeled after the ADA). As to G.L. c. 151B, the courts have found that a plaintiff needs more than a normal pregnancy to succeed on a handicap discrimination claim. See McDonnell v. Certified Eng’g & Testing Co., 899 F. Supp. at 753 (pregnancy may render a person disabled in some cases; however, pregnancy is not per se a disability); see also Sbrogna v. ChipCom Corp., 7 Mass. L. Rptr. No. 22 497, 500 (Super. Ct. 1997). Moreover, MCAD guidelines to the statute make it clear that the statute does not usually govern “isolated medical problems” and “illnesses of a short duration.” See MCAD Persons with Disabilities in Workplace Guidelines § II(A)(6) (hereinafter MCAD Guidelines), available at http://www.mass.gov/mcad/resources/employers-businesses/empguidelines-handicap-gen.html. It is unclear, however, what the MCAD’s position is on this issue. In 1987, the MCAD affirmed a finding of probable cause that a violation of G.L. c. 151B had occurred. In reaching that holding, the MCAD held that the decision in School Committee of Braintree v. MCAD, 377 Mass. 424 (1979), stood for the proposition that “pregnancy, particularly complicated ones, by necessity, are physical disabilities.” Minicucci v. Charles Hotel, 9 M.D.L.R. 1217, 1218 (1987) (emphasis added). It is unlikely, given the MCAD Guidelines, that the MCAD would find a normal pregnancy to be a covered disability today. However, a “complicated” pregnancy that gives rise to other medical conditions may well be considered a disability.

(b)

Pregnancy-Related Medical Conditions May Rise to the Level of a Disability

The issue is not so clear cut when there are complications in the pregnancy. The EEOC has taken the position that complications arising from pregnancy may qualify a woman for protection under the ADA. See 29 C.F.R. § 902.2(c)(3). Some courts agree. See Hernandez v. City of Hartford, 959 F. Supp. 125 (D. Conn. 1997) (summary judgment denied where a pregnant employee suffering from premature labor was denied permission to work from home on a part-time basis); see also Cerrato v. Durham, 941 F. Supp. 388 (S.D.N.Y. 1996) (a pregnant plaintiff who suffered from spotting, leaking, dizziness, and nausea alleged facts sufficient to conclude that she suffered an impairment). There are courts, however, that reason that no protection should be found under the ADA due to the existence of the PDA. See Villarreal v. J.E. Merit Constructors, Inc., 895 F. Supp. 149, 152 (S.D. Tex. 1995) (“The existence of both Title VII and the [PDA] obviate the need to extend the coverage of the ADA to protect pregnancy and related medical conditions.”). In 2016, the First Circuit circumvented deciding whether complications due to a pregnancy were a disability under the ADA by “assum[ing] without deciding that [the pregnant employee] had an ADA disability . . . ” See Lang v. Wal-Mart Stores E., L.P., 813 F.3d 447, 454 (1st Cir. 2016). MCLE, Inc. | 2nd Edition 2020

5–15

§ 5.2

Employment Discrimination in Massachusetts

On July 14, 2014, the EEOC issued new guidelines, Enforcement Guidance: Pregnancy Discrimination and Related Issues, interpreting the PDA and requiring employers to provide pregnant employees with accommodations if the employee has limitations that are similar to those of a disabled employee under the ADA. EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, Notice 915.003, § 1(C)(1)(a)–(d) (July 14, 2014). In other words, if the employer provides an accommodation to an employee who is disabled under the ADA, the employer needs to provide an accommodation to a pregnant employee with similar limitations regardless of whether she is disabled under the ADA. EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, at § 1(C)(1)(a)–(d). An employer’s failure to do so places the employer at risk of discriminating against the employee on the basis of her pregnancy. The EEOC guidelines further note that an employer can no longer rely on any of its policies or practices that light-duty accommodations be limited to employees who are injured on the job or to employees with disabilities under the ADA. EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, at § 1(C)(1)(a)–(d). Practice Note Following the March 15, 2015 U.S. Supreme Court decision in Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), the EEOC is reexamining these guidelines.

Under G.L. c. 151B, a pregnant female employee will have a covered disability if she can demonstrate that her pregnancy-related medical condition or mental impairment substantially limits a major activity or she is regarded as having an impairment. In Gauthier v. Sunhealth Specialty Services, Inc., 555 F. Supp. 2d 227 (D. Mass. 2008), the court found that swollen feet, resulting in an inability to stand or sit normally, did rise to the level of a substantial limitation and that a reasonable jury could find that the inability to do heavy lifting or pregnancy-related nausea could rise to that level as well. These complications, though relatively common, were sufficient to deny the employer’s motion for summary judgment. In Sbrogna v. ChipCom Corp., 7 Mass. L. Rptr. No. 22 497, 500 (Super. Ct. 1997), the court found that the plaintiff presented sufficient evidence that the complications she suffered in her pregnancy limited a number of major life activities. Sbrogna v. ChipCom Corp., 7 Mass. L. Rptr. No. 22 at 500. Once it is determined that a pregnancy-related medical condition is a covered disability, an employer is obligated to provide a reasonable accommodation, as it provides to other disabled employees. Examples of reasonable accommodations as they relate to pregnancy include, but are not limited to, • modifying work schedules; • modifying when and how an essential job function is performed; • reassigning nonessential job functions; • allowing time off for medical reasons; and • reassigning or transferring the employee to a vacant position. See 29 C.F.R. § 1630.2; see also MCAD Guidelines § II(C); Darian v. Univ. of Mass. Bos., 980 F. Supp. 77 (D. Mass. 1997). 5–16

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.2

An employer’s refusal to provide a reasonable accommodation may also be actionable sex discrimination if the plaintiff can prove that the employer offered similar accommodations to employees who were temporarily disabled due to reasons other than pregnancy. See 29 C.F.R. § 1604; see also Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015). However, a pregnant employee must be able to perform the essential functions of the job, even with a reasonable accommodation, or else the employer has no duty to provide such an accommodation. See Lang v. Wal-Mart Stores E., L.P., 813 F.3d at 455–56 (holding the employer did not need to provide the plaintiff with a reasonable accommodation because she was unable to perform an essential function of her job with such accommodation). Practice Note Under the ADA, an employer is obligated only to provide a reasonable accommodation to a qualified individual with a known disability. See 29 C.F.R. § 1630.9. Under G.L. c. 151B, an employer is obligated to provide a reasonable accommodation where it knows, or should know, of the individual’s need for an accommodation. See MCAD Guidelines § II(C). If possible, a pregnant woman seeking a “reasonable accommodation” from her employer should inform her employer of her medical condition as soon as practicable.

Practice Note Plaintiff’s counsel should consider including a claim for disability discrimination where a pregnant woman can demonstrate that her pregnancy exacerbated a preexisting medical condition or she developed a medical condition as a result of pregnancy. See, e.g., Patterson v. Xerox Corp., 901 F. Supp. 274 (N.D. Ill. 1995) (the court refused to dismiss an ADA disability claim by a pregnant plaintiff whose prior back injury was exacerbated by her pregnancy).

Practice Note When filing a pregnancy discrimination charge with the MCAD, make sure you check off the boxes for sex discrimination and handicap discrimination if both are applicable.

§ 5.2.5

Statutory Law Allowing Pregnant Women the Right to Take Maternity Leave

Employers are obligated, under certain circumstances, to provide women with voluntary leaves for the purposes of pregnancy, childbirth, pregnancy-related illnesses, and parenting under the FMLA and the MPLA.

(a)

Family and Medical Leave Act

The FMLA, 29 U.S.C. § 2601 et seq., provides rights to certain pregnant employees both during their pregnancy and at the birth, adoption, or foster placement of a child.

MCLE, Inc. | 2nd Edition 2020

5–17

§ 5.2

Employment Discrimination in Massachusetts

The FMLA requires covered employers to provide up to twelve weeks of unpaid leave to eligible employees • at the birth, adoption, or foster placement of a child, and to subsequently care for that child; • to take care of a child, a spouse, or a parent with a serious health condition; or • if the employee has a serious health condition. 29 U.S.C. § 2612(a). Pregnancy and related medical conditions that cause an employee to be unable to work are specifically included within the definition of a “serious health condition,” which includes “[a]ny period of incapacity due to pregnancy, or for prenatal care.” 29 C.F.R. § 825.114(a)(2)(ii). Leave under the FMLA can be taken all at once or, if medically necessary, on an intermittent or reduced basis. The leave may be paid or unpaid depending on the employer’s policies; however, the statute does not require that the leave be paid. The employer must continue to provide health insurance on the same basis as before the leave began. An employee may request, or an employer may require, that the employee use paid leave, such as sick leave or vacation, during the period of FMLA leave. Leave to care for a newborn, adopted, or foster child must be taken within twelve months of the birth or placement of the child. It is important to note that an employee has a total of twelve weeks of FMLA leave available in a given twelve-month period, no matter what the purposes of various instances of the leave. Thus, if she uses five weeks of leave earlier in the year for another FMLA purpose (such as to care for a sick child or because of her own serious health condition), then she has only the balance of seven weeks of FMLA leave at the birth or placement of her child. At the end of her FMLA leave, the employee must be restored to her same position or to an equivalent position “with equivalent benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a). The regulations define “equivalent position” as one “that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority.” 29 C.F.R. § 825.215. The FMLA provides rights that are in some ways broader than other statutes described in this chapter, and in other ways narrower. The rights are narrower in that the FMLA reaches far fewer employees. It applies only to employers that have fifty or more employees, 29 U.S.C. § 2611(4), whereas G.L. c. 151B and the MPLA apply to employers with six or more employees, and Title VII and the ADA apply to employers with fifteen or more employees. Moreover, employees are eligible for rights under the FMLA only if they have worked for their employer for at least twelve months; have worked at least 1,250 hours for the employer in the prior twelve months; and work at a site with fifty or more employees at the site or within a seventy-five mile 5–18

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.2

radius. 29 U.S.C. § 2611(2). By contrast, there is no probationary or waiting period under Title VII, the ADA, or G.L. c. 151B, and the MPLA requires a probation period of only three to six months, depending on the employer’s policy. On the other hand, if an employee is eligible, her entitlement to leave is usually more certain and broader under the FMLA than under some of these other statutes. For example, because any inability to work due to pregnancy or prenatal care is specifically defined as a “serious health condition,” an employee is entitled to leave for prenatal appointments or if she is ill due to a normal pregnancy. She does not have to prove that her condition rises to the level of a disability, which, as discussed above, may be very difficult to prove. The inability to work can be due to the need to go to the doctor for routine prenatal care. The employee does not need to prove that the inability to work is due to the medical condition itself. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 164 (1st Cir. 1998) (an incapacity to work due to a need to go to medical appointments satisfies the FMLA “serious health condition” standard).

(b)

Massachusetts Parental Leave Act, G.L. c. 149, § 105D

An amendment to G.L. c. 149, § 105D, effective April 1, 2015, replaced the former Massachusetts Maternity Leave Act with a more expansive and comprehensive Massachusetts Parental Leave Act (MPLA). Under the MPLA, all employees are entitled to unpaid parental leave not to exceed eight weeks for the following purposes: • giving birth; • adopting a child under the age of eighteen; or • adopting a child under the age of twenty-three if the child is mentally or physically disabled. Although the MPLA retained the language of the MMLA that parental leave is warranted “for the purpose of giving birth,” the language was not and shall not be construed to limit its application to females only. Rather, the language was kept in the MPLA so that leave did not have to commence at childbirth and could be triggered before childbirth. Practice Note As of this writing, there has been little case law interpreting the MPLA. It is the authors’ belief that the MPLA will adhere to the general construct and interpretations of the MMLA. As such, the cases referenced in this section are cases that fall under the MMLA.

The MPLA further extends its statutory protections to employees who are on parental leave for longer than eight weeks “unless the employer clearly informs the employee, in writing, prior to the commencement of the parental leave, and prior to any subsequent extension of that leave, that taking longer than 8 weeks of leave shall result in the denial of reinstatement or the loss of other rights and benefits.” G.L. c. 149, § 105D(b). This statutory language reflects the MCAD’s April 2000 guidelines interpreting the MMLA. Pursuant to these guidelines, “[a]n employer may grant a longer maternity leave than required under the MMLA. If the employer does not intend for MCLE, Inc. | 2nd Edition 2020

5–19

§ 5.2

Employment Discrimination in Massachusetts

full MMLA rights to apply to the period beyond eight weeks, however, it must clearly so inform the employee in writing prior to the commencement of the leave.” MCAD Guidelines: Maternity Leave Act § 5. The legislature’s adoption in the MPLA of what the MCAD Guidelines had required clearly remedies the issue raised in, and the holding of, Global NAPs, Inc. v. Awiszus, 457 Mass. 489 (2010). Indeed, in Global NAPs, the Supreme Judicial Court held that the MMLA provided protections to female employees who were absent from work “for a period not exceeding eight weeks for the purpose of giving birth.” Global NAPs, Inc. v. Awiszus, 457 Mass. at 497. However, once a female employee was absent from work for more than eight weeks, she was no longer afforded statutory protections under the MMLA. Global NAPs, Inc. v. Awiszus, 457 Mass. at 497. The Supreme Judicial Court further noted that, to the extent that the MCAD Guidelines provided women with MMLA rights beyond the eight-week period, they are inconsistent with the MMLA. Global NAPs, Inc. v. Awiszus, 457 Mass. at 494–98. The MPLA has now resolved this inconsistency. The MPLA is now also consistent with the EEOC guidelines, which prohibit employers from providing different leave benefits based on sex. See, e.g., EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, Notice No. 915.002 (May 23, 2007), available at http://www.eeoc .gov/policy/docs/caregiving.html. Under the MPLA, an employee is eligible for such leave if they meet the following requirements: • is employed by an employer that has six or more employees; • has completed the initial probationary period, if any, set by the employer, not to exceed six months, or if there is no such probationary period, the employee must have been a full-time employee for at least three consecutive months; and • has provided the employer two weeks’ notice of their expected departure date and intention to return. G.L. c. 149, § 105D. Two employees of the same employer who seek parental leave for the birth or adoption of the same child are not each entitled to eight weeks of parental leave. Rather, they are entitled to only eight weeks of parental leave in the aggregate. G.L. c. 149, § 105D(b). Under the MPLA, an employee on parental leave for the adoption of a child is entitled to the same benefits offered by the employer to an employee on parental leave for the birth of a child. G.L. c. 149, § 105D(b). Notice of intent to be absent and to return may be fulfilled through written notice, conversations with supervisors and other employees, and visits to the place of employment after the birth. See Palmer v. J.M. Davis Design, Inc., 22 M.D.L.R. 175, 177 (2000). Although the statute requires two weeks’ notice of the anticipated date of departure, “such requirement must be reconciled to the exigencies of a medical emergency.” See MCAD v. Concord Valley Counseling, 2014 WL 1896677 (MCAD May 2, 2014) (noting that the complainant’s departure in an ambulance for pregnancy5–20

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.2

related complications constituted “de facto notice that her maternity leave was commencing”). Moreover, an employee’s failure to discuss the subject of maternity leave with her employer prior to commencing such leave does not necessarily bar the employee from her statutory rights. For example, in MCAD v. Concord Valley Counseling, the employee had not raised the issue of maternity leave with her employer prior to the commencement of her leave. Nonetheless, the MCAD found that, although the employee could have broached the subject of maternity leave with her employer, “her failure to do so was likely attributable to a legitimate fear that she would be fired.” MCAD v. Concord Valley Counseling, 2014 WL 1896677, at *2. As such, the MCAD held that the employee’s “telephone call to [her employer] on the day she left the hospital likewise constituted adequate and timely notice [ ] of her intent to return to work.” MCAD v. Concord Valley Counseling, 2014 WL 1896677, at *2. Concord Valley Counseling also serves as an important reminder of a complainant’s need to allege and produce evidence of emotional distress. Here the complainant did neither and was therefore not entitled to an emotional distress award. MCAD v. Concord Valley Counseling, 2014 WL 1896677, at *4–5. There is no definition of “full time” in the statute. One court has relied on the employer’s definition of “full-time” employment as guidance and concluded that an employee does not need to work forty hours per week to be considered a full-time employee. See Sbrogna v. ChipCom Corp., 7 Mass. L. Rptr. No. 22 497, 501–02 (Super. Ct. 1997). However, “full-time” employment may encompass a number of factors, such as the number of hours worked, whether the employee gets benefits, the employer’s policies, and how other similarly situated employees are treated. As mentioned above, the MPLA does not require the leave period to be paid. Furthermore, the MPLA does not require an employer to include the computation of benefits in the leave time or require that the employer pay for the cost of benefits, plans, or programs during the leave time. G.L. c. 149, § 105D. However, an employer still has the obligation to do all of the above if it does so when employees are on leaves of absence for reasons unrelated to pregnancy. 804 C.M.R. § 3.01(8). Moreover, the MPLA requires that an employee who meets the above requirements be restored to their previous position, or one similar, with the same pay, length of service credit, and seniority as of the date before the employee left on leave. G.L. c. 149, § 105D; see Croteau v. Salvation Army, 21 M.D.L.R. 111, 113 (1999). Failure to restore an employee’s position or one which is comparable may result in a violation of G.L. c. 151B. See Croteau v. Salvation Army, 21 M.D.L.R. at 113 (concluding that the position offered to the complainant, coupled with the employer quickly filling her previous position with a new male employee and the employer’s refusal to allow the complainant to return to her position, amounted to a violation of G.L. c. 151B, § 4). However, such reinstatement is not required if other employees of equal length of service and status in the same or similar position have also been laid off due to economic conditions, or other changes in operating conditions affecting employment, during the period in question. G.L. c. 149, § 105D. MPLA leave cannot adversely affect an employee’s right to receive “vacation time, sick leave, bonuses, advancement, seniority, length of service credit, benefits, plans MCLE, Inc. | 2nd Edition 2020

5–21

§ 5.2

Employment Discrimination in Massachusetts

or programs” for which the employee was eligible before the leave. G.L. c. 149, § 105D. Therefore, if an employer gives a holiday bonus to all employees regardless of their service, an employee on parental leave should receive the same bonus. However, if a holiday bonus is given only after an employee has completed one year of service, the employee out on leave would not be entitled to the bonus if, at the time of leave, they had completed only ten months of service. The MPLA is governed by G.L. c. 151B. An employer is required to post a notice of the statute’s requirements. Complainants alleging a violation of the statute should file a claim with the MCAD. A violation of the MPLA also constitutes a violation of G.L. c. 151B. G.L. c. 151B, § 4(11A). Finally, employers are prohibited from asking job applicants or employees if they are pregnant or if they plan to have children. However, if a job applicant or an employee discloses that she is pregnant, an employer is permitted to discuss her plans regarding leave, as well as her plans regarding her return to work following her leave period. G.L. c. 149, § 105D. Practice Note In most circumstances, the leave periods under the MPLA and the FMLA will run concurrently. However, there will be circumstances where an employee will be entitled to the twelve weeks of FMLA leave time and an additional eight weeks of MPLA time, for a total of twenty weeks during a twelve-month period. For example, if an employee suffers from any sort of pregnancy-related disability before giving birth to a child, she would be entitled to twelve weeks of leave under the FMLA provision covering a serious health condition. She would then, under the MPLA, be entitled to the eight-week maternity leave time for the period immediately following the birth of her child.

§ 5.2.6

Conclusion

Today, pregnant women have the right to work in an environment where they will not be discriminated against because of their pregnancy or pregnancy-related medical conditions. They also have the right to a reasonable accommodation. Finally, both federal (FMLA) and state (MPLA) laws provide employees the right to leave to recover from an illness or to care for their newborn children.

§ 5.3

PREGNANCY DISCRIMINATION: A DEFENSE PERSPECTIVE

§ 5.3.1

Introduction

As discussed in § 5.2, above, there are many state and federal laws that potentially provide protection to pregnant employees, employees who have given birth, and employees who are affected by medical conditions related to pregnancy and childbirth. Employers should be familiar with these laws and the obligations created by them. 5–22

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

This section addresses employers’ obligations to, and the rights of, employees affected by pregnancy, childbirth, and related medical conditions.

§ 5.3.2

Applicable Laws

Title VII, as modified by the Pregnancy Discrimination Act (PDA), prohibits discrimination on the basis of sex, including on the basis of pregnancy, childbirth, or related medical conditions. 42 U.S.C. § 2000(e) et seq. Title VII provides that women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other personnel who are not affected but have a similar ability or inability to work. 42 U.S.C. § 2000(e) et seq. Further, employers are prohibited from retaliating against individuals who seek to enforce their rights. In 2017, Massachusetts enacted the Pregnant Workers Fairness Act (PWFA), which became effective April 1, 2018. The PWFA amended G.L. c. 151B, § 4, the state’s antidiscrimination law, which had been interpreted to prohibit Massachusetts employers from discriminating or retaliating against individuals because of “sex-linked” characteristics such as being pregnant or taking statutory maternity leave. G.L. c. 151B, § 4; G.L. c. 149, § 105D; Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 384 n.3 (2016) (“Pregnancy discrimination is a form of gender discrimination.”); Sch. Comm. of Braintree v. MCAD, 377 Mass. 424, 430 (1979); Mass. Elec. Co. v. MCAD, 375 Mass. 160, 167 (1978). The PWFA clarified G.L. c. 151B, § 4 by expressly prohibiting employers from discriminating against an employee on the basis of pregnancy or condition related to pregnancy, including, but not limited to, lactation or the need to express breastmilk for a nursing child. G.L. c. 151B, § 4. Individuals who are not able to bring employment discrimination claims under G.L. c. 151B may be able to bring their claims instead under the Massachusetts Equal Rights Act (MERA). Thurdin v. SEI Bos., Inc., 452 Mass. 436 (2008) (MERA claim permitted where an employee was precluded from using G.L. c. 151B to bring a pregnancy discrimination claim because her employer employed fewer than six employees); Theroux v. Singer, 21 Mass. L. Rptr. 187 (Super. Ct. 2006) (a shareholder’s pregnancy discrimination claim under a MERA claim survived a motion to dismiss where she did not qualify as an employee under GL. c. 151B). In addition, absences related to pregnancy may be governed by other state and federal laws, such as the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., the Massachusetts Paid Family and Medical Leave Law, G.L. c. 175M, § 1 et seq. (the Massachusetts Paid Family and Medical Leave Law became effective January 1, 2019; paid leave benefits will be available to employees no earlier than January 1, 2021), the Massachusetts Parental Leave Act (MPLA), G.L. c. 149, § 105D, and potentially, the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., and its Massachusetts counterpart, G.L. c. 151B, § 4. In December 2000, the EEOC issued a decision that has been adopted as the EEOC’s formal statement of policy on the coverage of contraceptives under group health insurance plans. The EEOC policy states that employers may not discriminate in their MCLE, Inc. | 2nd Edition 2020

5–23

§ 5.3

Employment Discrimination in Massachusetts

health insurance coverage by denying benefits for prescription contraceptives when the plan provides benefits for comparable drugs and devices. The PDA requires that expenses related to pregnancy (including those related to an ability to become pregnant), childbirth, or related medical conditions be treated the same as expenses related to other medical conditions. Therefore, if an employer’s plan covers such drugs, devices, and services as vaccinations, drugs to prevent the development of medical conditions (such as blood pressure and cholesterol medications), preventative care for children and adults, and preventative dental care, the EEOC has concluded that prescription contraceptives are comparable and therefore must be covered. Federal District Courts are split regarding whether the PDA requires employers to include contraception in their health-care coverage, and Massachusetts courts have not yet considered the issue. However, the Eighth Circuit has ruled that contraception is not “related to” pregnancy because contraception is gender neutral and is not a medical treatment that occurs when a woman becomes pregnant, as it is only indicated prior to pregnancy; therefore, the PDA does not require coverage of contraception. In re Union Pac. R.R. Emp’t Practices Litig., 479 F.3d 936 (8th Cir. 2007). In its most recent guidance, however, the EEOC has disagreed with the conclusion reached by the Eighth Circuit, stating that an exclusion of coverage for prescription contraception, but not other drugs and devices used to prevent other medical conditions, is a sexbased exclusion because prescription contraceptives are available only for women. EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, Notice No. 915.003, n.42 (June 25, 2015), available at http://www.eeoc.gov/laws/ guidance/pregnancy_guidance.cfm. According to the EEOC Enforcement Guidance, contraception is a means by which a woman can control her capacity to become pregnant, and, therefore, Title VII’s prohibition of discrimination based on potential pregnancy necessarily includes a prohibition on discrimination related to a woman’s use of contraceptives. For example, an employer could not discharge a female employee from her job because she uses contraceptives. EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, Notice No. 915.003. Massachusetts insurance law requires that insurers offering insurance coverage for outpatient services must provide outpatient contraceptive services, including consultations, examinations, procedures, and services, under the same terms and conditions as other outpatient services. G.L. c. 175, § 47W; G.L. c. 176A, § 8W; G.L. c. 176B, § 4W; G.L. c. 176G, § 4O. The PDA specifically exempts employers from any obligation to offer health benefits for abortion in most circumstances. The Patient Protection and Affordable Care Act (ACA), signed into law by President Obama on March 23, 2010, may have resolved the dispute as it applied to contraception coverage, because the ACA mandated contraceptive coverage for employersponsored health plans. Under the ACA, new health plans were required to cover and eliminate cost-sharing for preventive services, including contraception and contraceptive counseling. Women with reproductive capacity had access to all U.S. Food and Drug Administration–approved contraceptive methods, sterilization procedures, and patient education and counseling, as prescribed by a health-care provider. The 5–24

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

coverage was the subject of numerous lawsuits, as well as legislation at the state level, mostly aimed at ensuring religious employer exemptions, but it appeared that the coverage would be provided either by employer-sponsored health plans, or by insurers, if religious employer exemptions were implemented. See Burwell v. Hobby Lobby Stores, Inc., 134, S. Ct. 2751 (2014) (the ACA contraceptive mandate violated the Religious Freedom Restoration Act as applied to a closely held family for-profit corporation whose owners had religious objections to contraceptives, but an accommodation that allows employees to continue receiving contraceptive coverage without the employer cost sharing does not impinge on religious beliefs); see also Zubik v. Burwell, 136 S. Ct. 1557, 1560 (2016) (approach allowing religious objector to “‘do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if employees received cost-free contraceptive coverage from the same insurance company” accommodated religious exercise while at the same time ensuring full and equal coverage, including contraceptive coverage, for women); Eternal Word Television Network, Inc. v. Sec’y of U.S. Dep’t of Health & Human Servs., 818 F.3d 1122, 1129 (11th Cir. 2016) (accommodation for nonprofit organizations with a religious objection to providing contraceptive coverage that shifts coverage obligation to a third party does not substantially burden the free exercise of religion because the government has a compelling interest to justify the accommodation, and the accommodation is the least restrictive means of furthering those interests). In March 2017, the U.S. House Ways and Means Committee announced the American Health Care Act (AHCA) as a plan to repeal and replace the ACA. The proposal would keep the essential health benefits requirement under the ACA, including birth control coverage. See summary of the American Health Care Act, Kaiser Family Foundation, available at http://files.kff.org/attachment/Proposalsto-Replace-the-Affordable-Care-Act-Summary-of-the-American-Health-Care-Act. The AHCA bill was approved by the House of Representatives on May 4, 2017 as a plan to repeal and replace the ACA, but it failed to receive enough votes in the Senate to pass as new legislation. Since then, lawsuits and additional efforts to repeal or replace the ACA have continued and its fate remains uncertain. In addition, in its June 2015 Enforcement Guidance, the EEOC addressed the issue of discrimination based on infertility treatment. See EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, Notice No. 915.003 (July 25, 2015), available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm. According to the EEOC Enforcement Guidance, employment decisions related to infertility treatments may implicate Title VII under limited circumstances. For example, an inference of unlawful sex discrimination may be raised if an employee is penalized for taking time off from work to undergo fertility treatments. See Hall v. Nalco Co., 534 F.3d 644, 646 (7th Cir. 2008) (Title VII prohibits an employer from firing an employee for absenteeism related to infertility treatments). However, a gender-neutral exclusion of all infertility coverage from employer-provided health insurance does not violate Title VII. See Saks v. Franklin Covey, Inc., 316 F.3d 337, 346 (2d Cir. 2003) (“[i]nfertility is a medical condition that afflicts men and women with equal frequency”); Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 680 (8th Cir. 1996) (“because the policy of denying insurance benefits for treatment of fertility problems applies to both female and male workers and thus is gender-neutral,” it does not violate Title VII); see also EEOC Enforcement Guidance: Pregnancy Discrimination and Related MCLE, Inc. | 2nd Edition 2020

5–25

§ 5.3

Employment Discrimination in Massachusetts

Issues. Furthermore, unlike coverage for contraceptives, coverage for infertility treatments is not mandated under the ACA, except in states where such coverage is mandated in the state’s benchmark plan. Massachusetts, along with fifteen other states, requires that insurers provide at least some coverage for infertility treatment. See G.L. c. 175, § 47H; G.L. c. 176A, § 8K; G.L. c. 176B, § 4J; G.L. c. 176G, § 4. While the Supreme Court has held that reproduction is a major life activity for purposes of the ADA, see Bragdon v. Abbott, 524 U.S. 624, 638–39 (1998), it remains to be seen whether infertility may be considered a disability under the ADA. Compare Krauel v. Iowa Methodist Med. Ctr., 95 F.3d at 676–77 (rejecting a claim that infertility qualifies as a disability under the ADA), with Pacourek v. Inland Steel Co., 916 F. Supp. 797 (N.D. Ill. 1996) (infertility is a physical impairment under the ADA), and Saks v. Franklin Covey Co., 117 F. Supp. 2d at 324 (same). On January 7, 2015, Governor Patrick signed into law the Massachusetts Parental Leave Act (MPLA), which replaced the Massachusetts Maternity Leave Act (MMLA). The MPLA makes the MMLA gender neutral by providing (unpaid) parental leave to both male and female employees. Before the enactment of the MPLA, the MMLA applied specifically and exclusively to female employees, although the MCAD had taken a contrary position in its guidance, stating that an employer’s failure to provide leave to male employees for the birth or adoption of the male employee’s child violated G.L. c. 151B. The MPLA now makes clear that employers must provide leave for the birth or adoption of an employee’s child to all employees. Most recently, on June 28, 2018, Governor Baker signed into law “An Act Relative to Minimum Wage, Paid Family Medical Leave, and the Sales Tax Holiday,” which, among other initiatives, requires employers to provide paid family and medical leave to its employees. The Massachusetts Paid Family and Medical Leave Law (PFML) became effective January 1, 2019. The Department of Family and Medical Leave oversees the PFML program, which will provide income replacement benefits to covered workers through the Family and Employment Security Trust Fund. The Family and Employment Security Trust Fund will be funded through a payroll tax that is explained more fully below in § 5.3.4. Under the PFML, an employee may take paid leave for the birth, adoption, and/or placement into foster care of a child.

§ 5.3.3

Unlawful Inquiries

Employers may not ask a female job applicant or employee about her plans to have children. 804 C.M.R. § 3.02. But cf. Lysak v. Seiler Corp., 415 Mass. 625, 628 (1993) (an employer did not violate G.L. c. 151B by terminating a pregnant employee for lying during an interview when she volunteered that she did not plan to have any more children and she knew at the time of her statement that she was pregnant). However, once an employee discloses her pregnancy, an employer may inquire into her plans for maternity leave (e.g., approximate dates) and her intention to return to work following maternity leave. G.L. c. 149, § 105D; Langford v. DET, 17 M.D.L.R. 1043, 1063 (1995) (phone calls to an employee once or twice weekly while on maternity leave regarding her intention to return to work did not constitute a violation of G.L. c. 151B or constructive discharge). Employers are prohibited from considering a woman’s pregnancy, plans for childbearing, or need to take a maternity leave in their employment decisions, including hiring decisions. Tierney v. Beef ‘n Ale Rest., 5–26

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

15 M.D.L.R. 1312, 1330 (1993) (failure to hire a seven-months-pregnant woman for a bartending position unlawful); Foy v. Mast Indus., 13 M.D.L.R. 1501, 1559 (1991) (an employer’s offer of a dissimilar position upon learning of a new hire’s pregnancy violates G.L. c. 151B), upheld by the full Commission, 14 M.D.L.R. 1195 (1992). But cf. Wald v. ECG Mgmt. Consultants, 23 M.D.L.R. 208, 210 (2001) (an employer that rescinded a job offer to a pregnant applicant did not engage in unlawful discrimination when the applicant was unable to fulfill the employer’s reasonably imposed conditions of employment, i.e., attendance at a mandatory off-site conference, unwillingness to begin employment until six months after her due date, and inability to remain calm during high-pressure situations as evidenced by her tone and conduct during a discussion regarding possible accommodations of her pregnancy).

§ 5.3.4

Parental/Maternity and Maternity-Related Leaves

The following statutes address the obligations of Massachusetts employers to provide parental leave, and employees’ rights related to pregnancy, prenatal care, and pregnancy-related disabilities: • the PFML, • the MPLA, • the FMLA, • the Americans with Disabilities Act and its Massachusetts counterpart, G.L. c. 151B, § 4, and • the Pregnant Workers Fairness Act.

(a)

Massachusetts Paid Family and Medical Leave Law

The PFML provides paid family and medical leave to workers (both employees and, potentially, independent contractors) (collectively “employees”). The PFML became effective January 1, 2019, and most paid family and medical leave benefits will be available beginning January 1, 2021. All benefits will be available by July 1, 2021. G.L. c. 175M, § 1 et seq.; see also Department of Family and Medical Leave, “Timeline of Paid Family and Medical Leave Contribution and Benefits,” available at https://www.mass.gov/info-details/timeline-of-paid-family-and-medical-leavecontributions-and-benefits. Almost all private-sector employees are covered under the PFML. G.L. c. 175M, § 1. Self-employed individuals are not required to comply with the PFML. See Department of Family and Medical Leave, “Paid Family Medical Leave for Employers FAQ,” available at https://www.mass.gov/info-details/paidfamily-medical-leave-for-employers. The PFML requires employers to provide up to twelve weeks of paid family leave and up to twenty weeks of paid medical leave for any serious health condition, with a maximum of twenty-six weeks in the aggregate per year. G.L. c. 175M, § 2(c)(1). Additionally, an employee is eligible to take twenty-six weeks of family leave to care for a servicemember of the Armed Forces or a veteran who was injured as a result of their service. G.L. c. 175M, § 2(c)(1). An employee may take family leave not only MCLE, Inc. | 2nd Edition 2020

5–27

§ 5.3

Employment Discrimination in Massachusetts

for the birth of a child (including placement of a child with the employee for adoption or foster care), but also to care for a family member with a serious health condition. A “family member” is more broadly defined under the statute than under the FMLA, to include the following: a spouse, domestic partner, child, parent or parent of a spouse or domestic partner of the employee, a person who stood in loco parentis to the employee when the employee was a minor child, grandchild, grandparent, or sibling of the employee. G.L. c. 175M, § 1. Medical leave may be taken by an employee who has a serious health condition, which is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical facility; or continuing treatment by a health-care provider. G.L. c. 175M, § 2(c)(1). The leave taken pursuant to the PFML runs concurrently with leave taken under the MPLA or under the FMLA. G.L. c. 175M, § 2(h)(2)(i). Benefits under the PFML are funded through an initial payroll tax contribution of 0.75 percent of all qualifying earnings (capped at the Social Security rate), of which 17.5 percent is a family leave contribution and 82.5 percent is a medical leave contribution. (Annually, not later than October 1, the director of the Department of Family and Medical Leave shall set the contribution rate for the upcoming calendar year.) An employer may deduct up to 40 percent of the medical leave contribution required for an employee and 100 percent of the family leave contribution required for an employee from the employee’s wages. G.L. c. 175M, § 6(c). The employer must make up the remaining 60 percent of the medical leave contribution and remit the full contribution required for an employee to the Family and Employment Security Trust Fund. G.L. c. 175M, § 6(a). For employers with fewer than twenty-five covered individuals, the employer is not required to contribute the employer’s portion of the medical leave contribution. G.L. c. 175M, § 6(d). Employers must begin contributing their PFML contributions on October 1, 2019. Exemptions are available to employers that provide a family and medical leave policy that includes benefits that are greater than or equal to the benefits provided by the PFML. G.L. c. 175M, § 11. An employee taking family or medical leave receives a weekly benefit amount that is determined by the state average weekly wage and the employee’s average weekly wage, with the maximum weekly benefit amounting to $850 per week. G.L. c. 175M, § 3. This maximum weekly benefit amount will be evaluated by October 1 of each year by the Department of Family and Medical Leave (a department created by the PFML). G.L. c. 175M, § 3. An employee’s right to accrue vacation time, sick leave, bonuses, advancement, seniority, length-of-service credit, or other employment benefits, plans, or programs is not affected by the employee taking family or medical leave. G.L. c. 175M, § 2(f). Furthermore, an employer must continue to provide for and contribute to the employee’s employment-related health insurance benefits, if any, the same way the employer would have if the employee had continued to work through the duration of the family or medical leave. G.L. c. 175M, § 2(f). An employer cannot require an employee to exhaust other time-off benefits such as their sick, vacation, or personal time prior to or while taking family or medical leave. G.L. c. 175M, § 2(h)(2)(i).

5–28

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

An employee must give at least thirty days’ notice to the employer of their anticipated start date for leave, the anticipated duration of the leave, and the date the employee expects to return. G.L. c. 175M, § 4(b). If there are reasons beyond the employee’s control that prevents giving at least thirty days’ notice, the employee must provide notice as soon as practical. G.L. c. 175M, § 4(b). When an employee returns from family or medical leave, they are entitled to return to their previous position or to an equivalent position that has the same status, pay, employment benefits, length-of-service credit, and seniority as of the date of leave. G.L. c. 175M, § 2(e). However, if other employees of equal length-of-service credit and status in equivalent positions have been terminated due to economic conditions or other changes in operating conditions affecting employment during the period of leave, employers are not required to fully restore the employee to the same or equivalent position. G.L. c. 175M, § 2(e). The employee, however, must retain any preferential consideration for another position that the employee was entitled as of the date of their leave. G.L. c. 175M, § 2(e). The employer is explicitly prohibited from retaliating or discriminating against an employee for taking family or medical leave or for filing a complaint or instituting an action related to the PFML. G.L. c. 175M, § 9. If any negative change occurs to the employee’s terms or conditions of employment during the employee’s leave, six months after the employee took family or medical leave, or six months after the termination of proceedings brought related to the PFML, the negative change is presumed to be retaliatory. G.L. c. 175M, § 9(c). An employer may rebut this presumption by demonstrating, by clear and convincing evidence, that the employer’s action was not retaliatory and that the employer had “sufficient independent justification” for taking the negative action. G.L. c. 175M, § 9(c). For violations of the PFML, the statute provides a private right of action against the employer. G.L. c. 175M, § 9. If the employer is found to be liable, the available remedies include the reinstatement of the employee to the same or equivalent position, reinstatement of full fringe benefits and seniority rights to the employee, three times the lost wages and benefits, and reasonable costs and attorney fees. G.L. c. 175M, § 9. There are strict notice requirements that an employee and an employer must adhere to under the PFML. An employee must give at least thirty days’ notice to the employer of their anticipated start date for leave, the anticipated duration of the leave, and the date the employee expects to return. G.L. c. 175M, § 4. If there are reasons beyond the employee’s control that prevent giving at least thirty days’ notice, the employee must provide notice as soon as practical. G.L. c. 175M, § 4. Employers are required to provide written notice to their employees of PFML benefits, including rights to reinstatement and the continuation of health insurance. G.L. c. 175M, § 4. The employer must also notify employees of the employee’s and employer’s contribution amount and obligations under the PFML, the employer’s name and mailing address, the employer identification number assigned by the Department of Family Medical Leave, how to file a claim for family and medical leave benefits, and the contact information for the Department of Family and Medical Leave. G.L. c. 175M, § 4. An employee is required to provide a written acknowledgment of such information MCLE, Inc. | 2nd Edition 2020

5–29

§ 5.3

Employment Discrimination in Massachusetts

or sign a statement of the employee’s refusal to sign the acknowledgment. G.L. c. 175M, § 4. The Department of Family and Medical Leave’s guidance on the subject allows the notice to be provided electronically. Department of Family and Medical Leave, “Informing Your Workforce About Paid Family and Medical Leave,” available at https://www.mass.gov/info-details/informing-your-workforce-about-paid -family-and-medical-leave. Employers were required to provide such notice to all employees by September 30, 2019. G.L. c. 175M, § 4. Furthermore, when there is a new employee, the employer must provide the new employee notice of the PFML within thirty days after the employee starts employment. G.L. c. 175M, § 4. A workplace poster must also be posted in a conspicuous place at the workplace. G.L. c. 175M, § 4. This poster is provided by the Department of Family and Medical Leave. According to the Department’s guidance, if an employer fails to provide the required notifications, this may result in a fine of $50 per employee for the first violation and $300 per employee for subsequent violations. Department of Family and Medical Leave, “Informing Your Workforce About Paid Family and Medical Leave,” available at https://www.mass.gov/info-details/informing-your-workforce-about-paid -family-and-medical-leave. Additionally, if an employer fails to provide notice, the employee’s notice requirement is waived. G.L. c. 175M, § 4. Paid leave runs concurrently with leave taken under other leave laws, including the FMLA and the Massachusetts Parental Leave Act. G.L. c. 175M, § 2. Employees can choose, but are not required, to use their paid sick, vacation, or personal time while on family or medical leave. G.L. c. 175M, § 2(h). The Department has published its final regulations at 458 C.M.R. § 2.00.

(b)

Massachusetts Parental Leave Act

Under the MPLA, a Massachusetts employer with six or more employees is required to provide full-time employees who have completed their initial probationary period (not to exceed three months ) or who have been employed by the same employer for at least three consecutive months (whichever is shorter) with an eight-week paid or unpaid leave of absence for childbirth, or the adoption of, or placement with the employee of, a child under the age of eighteen, or under the age of twenty-three if the child is physically or mentally disabled. G.L. c. 149, § 105D. In April 2000, prior to the enactment of the MPLA, the MCAD issued Guidelines (MCAD Guidelines: Maternity Leave Act) interpreting the MMLA, which was an earlier version of the MPLA. The Supreme Judicial Court found that, although the MCAD Guidelines do not carry the force of law, they are entitled to substantial deference. Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 496–97 (2010); MBTA v. MCAD, 450 Mass. 327, 342 n.17 (2008) (quoting Dahill v. Police Dep’t of Bos., 434 Mass. 233, 239 (2001)); see, e.g., Sensing v. Outback Steakhouse of Fla., 575 F.3d 145, 153 (1st Cir. 2009). The MCAD Guidelines interpreted the MMLA broadly, and employers were advised to carefully consider the implications of extending the leave period beyond the eight weeks required by the MMLA for employees ineligible for FMLA leave. 5–30

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

In Stephens v. Global NAPs, No. 01-04149 (Mass. Super. Ct. Feb. 11, 2005), the plaintiff successfully argued that her termination violated the MMLA because she was not reinstated after taking a company-authorized eleven-week maternity leave. Her argument was based in part on the MCAD Guidelines, which provide, in circumstances where an employer grants a longer maternity leave than is required by the MMLA, that “[i]f the employer does not intend for full MMLA rights to apply to the period beyond eight weeks . . . it must clearly so inform the employee in writing prior to the commencement of the leave.” MCAD Guidelines: Maternity Leave Act § V. However, the Supreme Judicial Court later considered whether the plaintiff was entitled to the protections afforded by the MMLA, because she was absent for longer than the statutorily granted eight-week period, albeit in the context of the professional negligence action arising out of the failure of Global NAPs’ counsel to timely file an appeal in that matter. Global NAPs, Inc. v. Awiszus, 457 Mass. at 494. In considering the merits of the underlying claim, as it must in a malpractice claim, the court held that, once an employee exceeds the eight weeks of leave provided by the MMLA, she is no longer afforded the protections conferred by the statute. Global NAPs, Inc. v. Awiszus, 457 Mass. at 497. Significantly, the court stated that, to the extent the MCAD Guidelines suggest that a female employee may be entitled to MMLA rights beyond the eight-week period, “the MCAD Guidelines are inconsistent” with the statute. Global NAPs, Inc. v. Awiszus, 457 Mass. at 497. The MPLA has clarified this issue and provides that, if an employer offers an employee more than an eight-week parental leave, the employer shall not deny the employee restoration rights under the MPLA unless the employer clearly informs the employee in writing prior to the commencement of the parental leave and, prior to any subsequent extension of that leave, that taking longer than eight weeks of leave will result in the denial of reinstatement or the loss of other rights and benefits. G.L. c. 149, § 105D(b). Additionally, if both parents of a child work for the same employer, the parents are only entitled to eight weeks of leave in the aggregate under the MPLA. G.L. c. 149, § 105D(b). Similar to the MMLA, the MPLA is silent on the issue of whether the eight weeks of leave must be provided for each child born or adopted at the same time. Prior to the enactment of the MPLA, the MCAD had broadly interpreted the MMLA’s eightweek requirement in situations involving the birth or adoption of multiple children. In Sections VIII and XI of the MCAD Guidelines, the MCAD interpreted the MMLA so as to require the employer to provide eight weeks of leave for each child born or adopted by an employee. In other words, according to the MCAD Guidelines, an employee who gave birth to or adopted twins would be entitled to sixteen weeks of maternity leave under the MMLA (i.e., eight weeks for each child). Despite the clear holding of the Supreme Judicial Court in Global NAPs, Inc. and an October 2009 decision by a Massachusetts federal District Court judge in Krause v. UPS Supply Chain Solutions, Inc., No. 08-cv-10237-DPW, 2009 WL 3578601, at *10 (D. Mass. Oct. 28, 2009) (“The Plaintiff’s claim under the MMLA is barred under the statute because she was on maternity leave for over eight weeks.”), the MCAD has not revised its guidelines. Furthermore, in September 2010, the full Commission declined MCLE, Inc. | 2nd Edition 2020

5–31

§ 5.3

Employment Discrimination in Massachusetts

to rule whether a woman was entitled to sixteen weeks of leave after giving birth to twins. Kochis v. Mass. Dep’t of Soc. Servs., 32 M.D.L.R. 162 (2010). In deciding that it did not need to reach the question certified, as to whether the MMLA required that double the length of maternity leave be given to an employee having twins, on account of the employer having granted the employee twenty-seven weeks of leave, the MCAD cited to Global NAPs, Inc., stating that, while the MCAD’s guidelines are entitled to deference, they do not have the force of law. To date, no Massachusetts appellate court has addressed whether an employee may be entitled to eight weeks of leave per child. The MPLA suggests that parental leave is limited to eight weeks, regardless of the number of children born or adopted, unless an employer offers a greater amount of leave. Consequently, employers should be aware that, although Massachusetts courts have rejected claims of employees seeking protections conferred under the MMLA (and now the MPLA) in accordance with the MCAD’s interpretation as expressed in the MCAD Guidelines, where the Guidelines exceed the statutory limits, the MCAD still retains the authority to investigate such claims in accordance with its published interpretation of the MMLA and the MPLA. As under the MMLA, the MPLA requires that employees provide two weeks’ notice of an anticipated date of departure and intent to return, or provide notice as soon as practicable if the delay is for reasons beyond the individual’s control. G.L. c. 149, § 105D(b). The MCAD has held that actual notice was not required where an employee left work in an ambulance for pregnancy-related complications during the latter stages of pregnancy. According to the MCAD, these circumstances constituted de facto notice that the employee’s parental leave was commencing. MCAD & Jaramillo-Duque v. Concord Valley Counseling, No. 06-BEM-2824 (MCAD May 2, 2014). Furthermore, an employer’s termination of an employee prior to the employee’s parental leave, but after the employee had stated an intent to take such leave, was not a defense to a claim under the statute. Fiske v. MeYou Health, Inc., 123 Fair Empl. Prac. Cas. (BNA) 848 (D. Mass. 2014). As under the MMLA, upon returning from parental leave, the employee must be returned to their previous position, or a similar position, with the same status, pay, length of service credit, and seniority, unless other similarly situated employees have been laid off due to economic conditions or if other changes in operating conditions affecting employment have occurred. G.L. c. 149, § 105D. When an employee alleges that the position she was returned to by her employer was not a similar position to the one she previously held, the employer bears the burden of proving similarity to the former position. 804 C.M.R. § 8.01(4); Gunther v. Gap, Inc., 1 F. Supp. 2d 73, 79 (D. Mass. 1998) (the fact that an employee was reassigned in the same managerial role at another store after maternity leave because there were no management positions available at the store where she had worked prior to maternity leave does not constitute a violation of the maternity leave statute). Employers must treat benefits continuation and service credit accrual during the parental leave in the same manner as they do for other leaves of absence. However, if the employee is eligible for leave under the Family and Medical Leave Act (FMLA) (see § 5.3.4(c), below), the employer must continue the employee’s health insurance 5–32

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

benefits during the leave pursuant to FMLA regulations. Rights under G.L. c. 149, § 105D are equally applicable to married and unmarried employees. 804 C.M.R. § 3.01(8)(e). As under the MMLA, parental leave under the MPLA may be paid or unpaid at the discretion of the employer. 804 C.M.R. § 3.01(8)(d)(1). However, under the MCAD Guidelines (and in contrast to regulations governing FMLA leave), an employer may not require employees to use accrued vacation and sick time for their parental leaves. Consequently, when an employee is taking a parental leave that runs concurrently with their twelve-week FMLA leave, an employer cannot require that the employee use accrued vacation or sick time until the expiration of parental leave, typically the ninth week of the employee’s twelve-week FMLA leave. The employee, however, can elect to do so. For an employee who is eligible for parental leave under the MPLA, the FMLA, and the PFML, the employee’s rights are coordinated and the employee is normally entitled to up to twelve weeks of leave. See G.L. c. 175M, § 2(h)(2)(i). However, in the event that a female employee experiences complications during pregnancy that result in the employee’s utilization of her full twelve-week FMLA leave prior to giving birth, she will still be entitled to parental leave under the MPLA following the birth of her child—in other words, she will be entitled to a potential period of job-protected leave of up to twenty weeks (or more should she give birth to more than one child, according to the MCAD Guidelines). In addition, should pregnancy complications result in a disability, the employee may be entitled to additional leave as a reasonable accommodation. Because compliance with the MPLA is incorporated into G.L. c. 151B, § 4(11A), individual supervisors and managers may be held personally liable for violating an individual’s rights under the law. The MCAD is charged with enforcing the rights granted by G.L. c. 149, § 105D. The MPLA requires that every covered employer post a notice approved by the MCAD in a conspicuous place in each facility operated by the employer. G.L. c. 149, § 105D(e).

(c)

Family and Medical Leave Act

Under federal law, employers of fifty or more employees must provide eligible employees with up to twelve work weeks of job-protected leave in a designated twelvemonth period for specified reasons that include birth or placement of a child for adoption or foster care. 29 U.S.C. § 2601 et seq. The leave may be paid, unpaid, or a combination of paid and unpaid, as designated by the employer’s policy. In the absence of an employer’s policy requiring an employee’s utilization of accrued paid leave during FMLA leave, an employee is entitled to utilize accrued paid leave (vacation, personal, or family leave) during an FMLA leave for birth or adoption. 29 C.F.R. § 825.207(a). To be eligible for an FMLA leave, an employee must • be employed by the employer for at least twelve months or fifty-two weeks (not necessarily consecutive); • have worked at least 1,250 hours during the previous twelve-month period; and

MCLE, Inc. | 2nd Edition 2020

5–33

§ 5.3

Employment Discrimination in Massachusetts

• work at a site with fifty or more employees working at the same site or within seventy-five miles of the site. In addition, eligible employees are entitled to take FMLA leave when the employee is unable to perform the functions of their position because of a serious health condition. A “serious health condition” is defined by the statute as “an illness, injury, impairment, or physical or mental condition” affecting the employee’s or family member’s health to the extent that “inpatient care is required in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). The U.S. Department of Labor is charged with the enforcement of the FMLA and has promulgated regulations interpreting the statute. These regulations expressly include in the definition of serious health condition, “any period of incapacity due to pregnancy, or for prenatal care.” 29 C.F.R. § 825.115(b).

(d)

Americans with Disabilities Act and State Counterpart

Title I (governing private employers) of the Americans with Disabilities Act (ADA) prohibits discrimination against qualified disabled individuals because of a disability in regard to recruitment, job application procedures, hiring, compensation, training, promotion, job assignments, leaves of absence, fringe benefits, employer-sponsored social and recreational programs, layoffs, termination, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12101 et seq. “Disability” is a legal term defined by the ADA to mean a physical or mental impairment that substantially limits one or more major life activities, a record of such impairment, or being regarded as having such an impairment. 42 U.S.C. § 12102(1). Pregnancy, however, is not a disability per se. Darian v. Univ. of Mass. Bos., 980 F. Supp. 77, 85 (D. Mass. 1997) (“pregnancy per se is not covered by the ADA”); Navarro v. Pfizer Corp., 261 F.3d 90, 97 (1st Cir. 2001) (pregnancy itself is not a disability under the ADA); McDonnell v. Certified Eng’g & Testing Co., 899 F. Supp. 739, 753 (D. Mass. 1995) (“in some cases pregnancy may render an individual disabled, this disability must be demonstrated; pregnancy is not, per se, a disability” under G.L. c. 151B). Generally, a normal pregnancy without complications will not be considered a disability even if the employee is unable to work for a period of time as a result of the pregnancy or childbirth. However, a female employee will be considered a “handicapped person,” if she can show that she has a pregnancy-related physical or mental impairment that substantially limits a major life activity, or that she is regarded as having or has a history of such an impairment. In such a case, the employee is entitled to the same protections under Chapter 151B as are other disabled employees. MCAD, MMLA Guidelines § VII.

5–34

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

The revised regulations to the ADA, effective May 24, 2011, make it clear that a pregnancy-related condition can entitle the employee to the protections of the ADA if her condition otherwise meets the statutory criteria (e.g., miscarriage with complications resulting in infertility being the “disability” under the ADA). Appendix to 29 C.F.R. § 1630.2(h). Alternatively, a pregnancy-related impairment may constitute a “record of” a substantially limiting impairment or may be covered under the “regarded as” prong if it is the basis for a prohibited employment action and is not “transitory and minor.” Appendix to 29 C.F.R. § 1630.2(h). Common temporary physical effects of pregnancy, including the inability to perform heavy lifting, the inability to sit or stand normally because of swollen feet, or nausea resulting in frequent vomiting, may also constitute a disability under G.L. c. 151B, § 4. Gauthier v. Sunhealth Specialties Servs., Inc., 555 F. Supp. 2d 227 (1st Cir. 2008) (denying summary judgment because a reasonable jury could find such limitations constituted a handicap under G.L. c. 151B). However, to constitute a disability under the ADA, the physical effects must be uncommon and not a reasonable incident of normal pregnancy. Alger v. Prime Rest. Mgmt., LLC, 2016 WL 3741984, at *7–8 (N.D. Ga. July 13, 2016) (pregnancy-related bed rest for two weeks was not a disabling condition under the ADA); Lang v. Wal-Mart Stores E., L.P., No. 13-CV349-LM, 2015 WL 898026, at *4 (D.N.H. Mar. 3, 2015) (the plaintiff could not establish a disability under the ADA because a lifting restriction suggested by her doctor was not the result of a disorder or an unusual or abnormal circumstance, but rather was a routine suggestion during pregnancy); Annobil v. Worcester Skilled Care Ctr., Inc., No. 11-40131-TSH, 2014 WL 4657295, at *11 (D. Mass. Sept. 10, 2014) (“Being pregnant, in and of itself, is not a handicap. However, complications related to pregnancy can constitute a handicap.”); Bryson v. MAU, Inc., No. 8:09-321-HMHBHH, 2010 WL 1542506, at *3 (D.S.C. Mar. 25, 2010) (the court’s review of federal cases revealed no federal decision holding that common effects of pregnancy constitute a “disability” under the ADA; “[w]ith near unanimity, federal courts have held that a pregnancy is not a ‘disability’ under the ADA, absent some atypical complication”). In addition, at least one court has held that pregnancy-related complications lasting fewer than twenty-four hours are not “sufficiently severe” to limit major life activities under the ADA. Love v. First Transit, Inc., No. 16-CV-2208, 2017 WL 1022191, at *6 (N.D. Ill. Mar. 16, 2017) (bleeding relating to a miscarriage that lasted for less than twenty-four hours did not substantially limit major life activities and was not a disabling condition under the ADA). However, several courts have held that pregnancy-related conditions may give rise to disability claims under the ADA. Colas v. City Univ. of N.Y., No. 17-CV-4825, 2019 WL 2028701, at *4 (E.D.N.Y. May 7, 2019) (the plaintiff alleged sufficient facts to state a plausible claim under the ADA where she suffered leg muscle spasms, neck pain, fatigue, shortness of breath, episodes of cramping and contractions, ligament pain, back pain, joint pain, nausea, and headaches, all atypical pregnancy symptoms, which greatly altered her baseline walking pattern, speed, circulation, and coordination of balance); Khan v. Midwestern Univ., 147 F. Supp. 3d 718, 723 (N.D. Ill. 2015) (pregnancy-related depression, fatigue, nausea, anxiety, and gestational diabetes lasting for a number of weeks sufficient to state an ADA claim); Bray v. Town of Wake Forest, No. 5:14-CV-276-FL, 2015 WL 1534515, at *11 (E.D.N.C. Apr. 6, 2015) (the plaintiff’s ADA claim based on a doctor’s running, MCLE, Inc. | 2nd Edition 2020

5–35

§ 5.3

Employment Discrimination in Massachusetts

jumping, and lifting restrictions survived a motion to dismiss even though the pleadings did not identify a specific pregnancy-related condition); McKellips v. Franciscan Health Sys., 2013 WL 1991103, at *4 (W.D. Wash. May 13, 2013) (the plaintiff’s allegations that she suffered from a severe pelvic inflammation and immobilizing pain that necessitated a workplace accommodation and early pregnancy-related medical leave sufficient to state an ADA claim); Nayak v. St. Vincent Hosp. & Health Care Ctr., 2013 WL 121838, at *1–3 (S.D. Ind. Jan. 9, 2013) (alleged pregnancy and postpregnancy complications, including symphysis pubis dysfunction, sufficient to state a claim for disability discrimination); Mayorga v. Alorica, Inc., 2012 WL 3043021, at *6 (S.D. Fla. July 25, 2012) (alleged pregnancy-related conditions, including premature uterine contractions, irritation of the uterus, increased heart rate, severe morning sickness, severe pelvic bone, back and abdominal pain, and extreme headaches, sufficient to survive a motion to dismiss). Furthermore, if an employer regards a pregnant individual as disabled—even if the employer is mistaken—the individual may be entitled to the protections of the ADA. McDonnell v. Certified Eng’g & Testing Co., 899 F. Supp. at 753 (a management employee laid off on the same day she informed her supervisor of her pregnancy raised a sufficient issue of perceived disability under G.L. c. 151B to survive summary judgment). In addition, following the 2008 amendments to the ADA, a pregnant individual may meet the definition of being regarded as having an impairment, where, because of her pregnancy, she is “perceived” as having an impairment regardless of whether the perceived impairment limits or is perceived to limit a major life activity. 42 U.S.C. § 12102(3)(A). However, to be covered under the “regarded as” prong, the actual or perceived pregnancy-related impairment cannot be transitory and minor. Appendix to 29 C.F.R. § 1630.2(h). A reasonable accommodation might involve reassignment to another position for which the employee is qualified and whose essential function the employee can perform, but providing the employee with an opportunity to apply for another position and compete with others for the job is not reasonable and may give rise to an ADA violation. EEOC v. TriCore Reference Labs., 849 F.3d 929, 938 & n.8 (10th Cir. 2017). However, an employer is not obligated to provide an accommodation where an employee allegedly disabled due to her pregnancy could not perform the essential functions of her job, either with or without reasonable accommodation. Everett v. Grady Mem’l Hosp. Corp., 703 Fed. App’x 938, 946 (11th Cir. 2017) (an employer was not required to accommodate an employee by allowing her to work exclusively from home because teaching, supervising, and meeting with patients at the hospital were essential functions of the job); Lang v. Wal-Mart Stores E., L.P., 813 F.3d 447, 455–56 (1st Cir. 2016) (an employer was not required to accommodate an employee with a presumed pregnancy-related disability by exempting her from lifting up to sixty pounds, where it was undisputed that lifting sixty pounds manually without assistance was an essential job function).

(e)

Massachusetts Pregnant Workers Fairness Act

The Massachusetts Pregnant Workers Fairness Act (PWFA), effective April 1, 2018, prohibits employers from discriminating against an employee on the basis of pregnancy 5–36

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

or condition related to pregnancy, including lactation or the need to express breastmilk for a nursing child. G.L. c. 151B, § 4(1). Conditions related to pregnancy can occur during or after pregnancy. Additionally, an employer is obligated to provide a reasonable accommodation, upon the employee’s request, for an employee’s pregnancy or condition of pregnancy, including but not limited to lactation or the need to express breastmilk for a nursing child, unless the accommodation would impose an undue hardship on the employer. G.L. c. 151B, § 4(1E). The PWFA provides a number of examples of “reasonable accommodations,” including but not limited to more frequent or longer breaks (paid or unpaid); time off to attend to a pregnancy complication or to recover from childbirth (with or without pay); acquisition or modification of equipment or seating; temporary transfer to a less strenuous or hazardous position; job restructuring; light duty; private, nonbathroom space for expressing breastmilk; assistance with manual labor; or a modified work schedule. G.L. c. 151B, § 4(1E)(b). In addition, an employer is not required to discharge or transfer an employee with more seniority or promote an employee who is not able to perform the essential functions of the job with or without a reasonable accommodation. G.L. c. 151B, § 4(1E)(b). Furthermore, an employer is not required to provide an accommodation that creates an undue hardship for the employer. An undue hardship is an action that requires significant difficulty and expense to accomplish, taking into account the nature and cost of the needed accommodation, the employer’s size, the number of employees employed, the number, type, and location of the employer’s facilities, and the impact of the accommodation on the employer’s business. G.L. c. 151B, § 4(1E)(b). The employer has the burden of providing undue hardship. G.L. c. 151B, § 4(1E)(b). An employer is prohibited from denying an employment opportunity from, or taking adverse action against, an employee who requests or uses a reasonable accommodation. Adverse actions include but are not limited to failure to reinstate the employee to their original employment status or to an equivalent position with equivalent pay and accumulated service credits when the need for a reasonable accommodation concludes. G.L. c. 151B, § 4(1E)(a)(i)–(ii). An employer also may not require an employee affected by pregnancy or a condition related to the pregnancy to accept an accommodation that the employee chooses not to accept, if that accommodation is unnecessary to enable the employee to perform the essential function of the job. G.L. c. 151B, § 4(1E)(a)(iii). In addition, an employer may not require an employee to take a leave, if another reasonable accommodation may be provided without undue hardship on the employer’s business. G.L. c. 151B, § 4(1E)(a)(iv). Nor may an employer refuse to hire a person who is capable of performing the essential functions of the position with a reasonable accommodation because of the person’s pregnancy or condition related to pregnancy. G.L. c. 151B, § 4(1E)(a)(v). When the employee requests an accommodation, the employer must engage in a good faith, interactive process with the employee to determine a reasonable accommodation to allow the employee to perform the essential function of the job. During this interactive process, the employer may request documentation regarding the need for a reasonable accommodation from an appropriate health-care professional, including but not limited to a medical doctor, psychiatrist, psychologist, nurse practitioner, physician assistant, psychiatric clinical nurse specialist, physical or occupational MCLE, Inc. | 2nd Edition 2020

5–37

§ 5.3

Employment Discrimination in Massachusetts

therapist, speech therapist, vocational rehabilitation specialist, midwife, lactation consultant, or other licensed mental health professional. An employer may also require documentation for an extension of the accommodation beyond the originally agreed period. However, an employer is prohibited from requiring documentation from a health-care professional for the following accommodations: more frequent restroom, food, or water breaks; seating; limits on lifting more than twenty pounds; and private, nonbathroom space for expressing breastmilk. G.L. c. 151B, § 4(1E)(c). Employers should note that they are required to provide written notice of the right to be free from discrimination in relation to pregnancy or a pregnancy-related condition, including the rights to a reasonable accommodation in a handbook, pamphlet, or other means of notice. Additionally, employers must provide new employees with written notice prior to or at the start of their employment, and must provide any employee who informs the employer of a pregnancy or pregnancy-related condition written notice within ten days after the employee notifies the employer. G.L. c. 151B, § 4(1E)(d). Because the PWFA is a new law, there has not yet been a case applying the PWFA to a specific factual scenario. It will be interesting to see how the law develops over the next several years.

(f)

Pregnancy Discrimination Against Employers

Although the statutes discussed above prohibit employers from discriminating against employees, pregnancy discrimination perpetrated against employers and shareholders may also be prohibited. The Massachusetts Superior Court permitted a claim of pregnancy discrimination to go forward where a partner in a dental practice was forced out as a shareholder allegedly because of her pregnancy. Theroux v. Singer, 21 Mass. L. Rptr. 187, 191 (Super. Ct. 2006). The court found that the plaintiff partner was an employer for the purposes of G.L. c. 151B, as a result of which she was not required to exhaust the administrative remedies provided in the statute. In addition, the court determined that she was not barred from bringing claims for violation of the Massachusetts Equal Rights Act and for breach of the covenant of good faith and fair dealing.

(g)

Employer-Mandated Leave

Employers are generally prohibited from requiring female employees to take mandatory maternity leave. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974). However, in limited circumstances when an employee’s pregnancy creates a risk of serious harm to others or to herself, courts have upheld mandatory leave. Levin v. Delta Air Lines, 730 F.2d 994, 997–98 (5th Cir. 1986) (mandatory maternity leave upheld based on findings that pregnant stewardesses would be unable to assist passengers in an emergency).

§ 5.3.5

Pregnancy Discrimination in Employment

Employers are typically held liable for unlawful discrimination under one of two distinct theories of discriminatory action: disparate treatment or disparate impact. 5–38

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

Under the theory of disparate treatment, the plaintiff alleges that she was treated differently by the employer than someone outside of or in another protected classification was treated. Typical disparate treatment cases involve such adverse actions as discharge, denial of promotion, and change in terms and conditions of employment as a result of the plaintiff’s pregnancy or maternity leave. Disparate impact cases involve employment practices that are facially neutral in the treatment of different groups but, in fact, impact more harshly on one group than on another. Smith Coll. v. MCAD, 376 Mass. 221, 227 (1978). Unlike disparate treatment cases, discriminatory motive is not a required element of proof in disparate impact cases. Smith v. F.W. Morse, 76 F.3d 413, 420 (1st Cir. 1996). Examples of disparate impact cases involving pregnancy include the denial of accumulated sick leave for disabilities caused by pregnancy, the denial of leave caused by pregnancy by employer policy or practice, a reduction in health insurance benefits caused by pregnancy, denial of seniority credit for absences pertaining to pregnancy but not to other temporary disabilities, etc. With respect to claims of pregnancy discrimination based on the lack of seniority credit, employer’s counsel analyzing a seniority system must pay particular attention to the language of the applicable statute and the case law regarding maternity leaves. Despite the U.S. Supreme Court’s finding in AT&T Corp. v. Hulteen, 556 U.S. 701, 705–16 (2009), that a seniority system does not violate the PDA where it gives current effect to a pre-PDA service credit rule that treated pregnancy leave differently and less favorably than medical leave generally, employers could face liability in Massachusetts under Massachusetts law and the court’s application of the continuing violation theory. For example, the Supreme Judicial Court has imposed liability on employers under G.L. c. 151B on a continuing violation theory for a policy of not granting seniority credit for maternity leave where the U.S. Supreme Court and the Massachusetts federal District Court found no liability under Title VII because the statute of limitations had expired after the maternity leave. Compare United Airlines v. Evans, 431 U.S. 553 (1977), and Rodgers v. Berger, 438 F. Supp. 713 (D. Mass. 1997), with Mass. Elec. Co. v. MCAD, 375 Mass. 160 (1978); Sch. Comm. of Brockton v. MCAD, 377 Mass. 392 (1979); Lynn Teachers Union v. MCAD, 406 Mass. 515 (1990). Importantly as well, while Title VII expressly exempts bona fide seniority systems from federal antidiscrimination laws, G.L. c. 151B contains an exemption for bona fide seniority systems only on the basis of age. Lynn Teachers Union v. MCAD, 406 Mass. at 523–25. In disparate treatment cases, where the plaintiff has the burden of proving that the defendant “purposefully” impacted her employment “because” of her pregnancy, the law requires that there be a causal nexus between the employer’s state of mind and the employee’s pregnancy. Smith v. F.W. Morse, 76 F.3d at 424. The bottom line is that the pregnant employee is entitled to be considered by the employer in the same, but no better, light as every other employee. Smith v. F.W. Morse, 76 F.3d at 424–25 (“[a]n employee (pregnant or not) runs the risk of suffering the ordinary slings and arrows that suffuse the workplace every day she goes to work and every day she stays away”); Troupe v. May Dep’t Stores Co., 20 F.3d 734, 737 (7th Cir. 1994) (an employer is not required to treat an employee with morning sickness who is tardy MCLE, Inc. | 2nd Edition 2020

5–39

§ 5.3

Employment Discrimination in Massachusetts

better than an employee who is equally tardy for any other health reason); see also White v. Michaud Bus Lines, Inc., 19 M.D.L.R. 18, 20 (1997) (an adverse business condition was a pretext for a discriminatory layoff following maternity leave where the evidence established the business was growing and the complainant was the only employee laid off). In Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), the U.S. Supreme Court held that a pregnant worker may show disparate treatment under the PDA pursuant to the McDonnell Douglas burden-shifting legal framework—i.e., that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others similar in their ability or inability to work. Young v. United Parcel Serv., Inc., 135 S. Ct. at 1353. The employer may then demonstrate legitimate nondiscriminatory reasons for denying the accommodation, and the burden will shift back to the pregnant worker to show that these reasons are a pretext for discrimination. The Court noted that there may be an issue of fact as to whether an employer has placed a “significant burden” on pregnant workers by refusing to provide them with accommodations that are provided to a large percentage of nonpregnant workers with similar limitations. While an employer may have a legitimate reason for denying such accommodations to pregnant workers, the Supreme Court noted that expense and inconvenience are not legitimate justifications. Young v. United Parcel Serv., Inc., 135 S. Ct. at 1354.

(a)

Prima Facie Case

In the typical disparate treatment case, a plaintiff establishes a prima facie case of pregnancy discrimination by showing that • she is pregnant (or has indicated an intention to become pregnant); • her job performance has been satisfactory; • the employer nonetheless dismissed her from her position (or took some other adverse employment action against her); • while continuing to have her duties performed by (or seeking to hire) a comparably qualified person. See, e.g., Smith v. F.W. Morse, 76 F.3d 413, 421 (1st Cir. 1996); Cumpiano v. Banco Santander P.R., 902 F.2d 148, 153 (1st Cir. 1990); Lipsett v. Univ. of P.R., 864 F.2d 881, 899 (1st Cir. 1988) (stating general elements of prima facie case); Wheelock Coll. v. MCAD, 371 Mass. 130, 135, n.5 (1976) (adopting the standard articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); Alexandros v. Patio Rooms of Am., Inc., 71 Mass. App. Ct. 1102 (2008). Once the plaintiff establishes a prima facie case, she has raised a rebuttable presumption that discrimination was the cause of the adverse employment action. This rebuttable presumption imposes upon the employer a burden to articulate a legitimate nondiscriminatory reason for its actions. See, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 255 (1981); Smith v. F.W. Morse, 76 F.3d at 421. The employer’s nondiscriminatory reason must be supported by some credible evidence. Wheelock Coll. v. MCAD, 371 Mass. at 138; Trs. of Forbes Library v. Labor Relations Comm’n, 384 Mass. 559, 566 (1981). The fact finder is not permitted to second-guess 5–40

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

the business decisions of the employer. Smith Coll. v. MCAD, 376 Mass. at 229 (“[a] sincere belief that a person is not qualified for a job is adequate justification for an employment decision and rebuts a complainant’s prima facie case”). Once the employer has articulated a legitimate, nondiscriminatory reason for its action, the rebuttable presumption vanishes and the plaintiff (who retains the ultimate burden of persuasion on the issue of discriminatory motive) must then prove that the employer’s proffered justification is a pretext for discrimination. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993); Smith v. F.W. Morse, 76 F.3d at 421. Because “‘Massachusetts is a pretext only jurisdiction,’ . . . an employee may survive summary judgment by producing evidence ‘that the respondent’s facially proper reasons given for its action against . . . her were not the real reasons for that action,’ . . . even if that evidence does not show directly that the true reasons were, in fact, discriminatory.” Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 397 (2016) (internal citations omitted) (citing Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 681–82 (2016)). “Such indirect evidence is sufficient at the summary judgment stage because, ‘[c]ombined with establishment of a prima facie case . . . a showing of pretext eliminates any legitimate explanation for the adverse hiring decision and warrants,’ but does not require, ‘a determination that the plaintiff was the victim of unlawful discrimination.’” Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 397 (internal citations omitted). “While the plaintiff does bear ‘the burden of producing evidence’ that the employer’s reasons are pretextual . . . the burden of persuasion at summary judgment remains with the defendants, who, ‘as the moving part[ies], ha[ve] the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, even if [they] would not have the burden on an issue if the case were to go to trial.’” Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 397 (citations omitted). In cases involving direct evidence of discriminatory animus, “where a plaintiff presents strong direct proof that an unlawful consideration was a factor in the employment decision, the defendant, to escape liability, must prove that it would have made the same decision without the unlawful consideration.” Lipchitz v. Raytheon Co., 434 Mass. 493, 506 & n.18 (2001).

(b)

Need for Parental Leave

The actual taking of parental leave pursuant to the MPLA and G.L. c. 151B, § 4 is protected activity. Krause v. UPS Supply Chain Solutions, Inc., No. 08-cv-10237DPW, 2009 WL 3578601, at *11 n.18 (D. Mass. Oct. 28, 2009) (criticizing the decision in Frederick v. Richardson Elecs., LTD, No. 0300928, 2005 WL 2542929, at *6 (Mass. Super. Ct. Sept. 19, 2005), that taking maternity leave was not a protected activity). In addition, an adverse employment action taken against a pregnant employee because the employee will need a leave of absence violates G.L. c. 151B, G.L. c. 149, § 105D, G.L. c. 175M, § 9, and the FMLA. Foy v. Mast Indus., Inc., 13 M.D.L.R. 1501, 1559 (1991) (“It is incumbent upon Massachusetts employers to find lawful means to deal with business problems resulting from employees’ maternity leaves.”), upheld by full Commission, 14 M.D.L.R. 1195 (1992). MCLE, Inc. | 2nd Edition 2020

5–41

§ 5.3

(c)

Employment Discrimination in Massachusetts

Pregnancy-Related Disabilities

Under both state and federal law, an employer is required to treat pregnancy-related disabilities in the same fashion that it treats other temporary disabilities—i.e., identical terms and conditions of employment, including leave policies, salary continuation, seniority, benefits, etc. Smith v. F.W. Morse, 76 F.3d 413, 424 (1st Cir. 1996); cf. Sch. Comm. of Braintree v. MCAD, 377 Mass. 424, 430 (1979) (purportedly sexneutral rules barring the use of sick leave during all extended leaves of absence operated to disadvantage women and were therefore unlawful sex discrimination). Similarly, under the MPLA, an employer is not required to accrue benefits to the employee on maternity leave if it does not do so for other similar leaves. See, e.g., G.L. c. 149, § 105D. The PFML specifically notes that the taking of leave does not affect an employee’s right to accrue sick leave, vacation time, seniority, and other employment benefits upon reinstatement. G.L. c. 175M, § 2(f); 458 C.M.R. § 2.16(1). Furthermore, under the PFML, an employer must continue to provide for and contribute to an employee’s employment-related health insurance benefits at the same level it would have if the employee did not take leave. G.L. c. 175M, § 2(f); 458 C.M.R. § 2.16(1). Under the FMLA, an employee’s entitlement to benefits are determined by the employer’s policy for providing the benefits when the employee is on other types of leave. 29 C.F.R. § 825.209(h). The FMLA further provides that an employer must maintain an employee’s coverage under any group health plan as the employer would have if the employee had not taken FMLA leave. 29 C.F.R. § 825.209(h).

(d)

Terms and Conditions of Employment

Employers are prohibited from unilaterally altering an employee’s job responsibilities based upon assumptions that her pregnancy will affect her physical ability or that the job responsibilities will be hazardous to her health or the health of her fetus. Int’l Union, United Automobile, Aerospace & Agricultural Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 204 (1991) (the safety exception to a bona fide occupational qualification requirement “is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job” (emphasis added)); Bertelli v. Staffing Network, Inc., 15 M.D.L.R. 1971, 1983 (1993) (an employer has no obligation to alter the job responsibilities of a pregnant employee absent a past record of accommodation for similarly situated but nonpregnant employees), upheld by the full Commission, 17 M.D.L.R. 1267 (1995); Galloway v. Mr. G’s Beauty Salon, 16 M.D.L.R. 1738, 1749–50 (1994) (an employer was liable for violating G.L. c. 151B, even if the real reason it terminated a pregnant employee was concerns over her working with chemicals, because “good intentions are no defense to an act of discrimination”); Norman v. Andover Country Club, 15 M.D.L.R. 1394, 1415, 1419 (1993) (sexual comments about a pregnant employee’s body constituted sexual harassment and, coupled with a reduction in hours, the employee established constructive discharge). Under state law, an employer is required to provide an employee a reasonable accommodation for an employee’s pregnancy or condition related to pregnancy, unless the accommodation would present an undue hardship on the employer. G.L. c. 151B, § 4.

5–42

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

(e)

§ 5.3

Marital Status, Child-Care Responsibilities, and Breastfeeding

Although parental status is not a protected category under the law, employers are cautioned against treating women with small children differently than women who are childless or whose children are older, even in a predominantly female work environment. In a 2006 decision, the Superior Court denied summary judgment against a former employee of the Commonwealth who alleged that she had been denied promotions and treated disparately based upon the gender stereotype that a woman with a young child cannot be both a good mother and a committed worker. Sivieri v. Mass. Dep’t of Transitional Assistance, 21 Mass. L. Rptr. 97, 100 (Super. Ct. 2006). Citing the MCAD’s decision in Ntapalis v. Halem & Schrader, PC, 15 M.D.L.R. 117, 1125 (1993), the court found that “stereotypical remarks about the incompatibility of motherhood and employment can be evidence of gender discrimination. [Such statements] reflect a discriminatory animus not towards parenthood, but towards women, based upon antiquated ideas about what a woman’s role in society should be.” Sivieri v. Mass. Dep’t of Transitional Assistance, 21 Mass. L. Rptr. at 100. Similarly, the First Circuit found that stereotypical comments about working mothers supported a finding of discriminatory animus based on pregnancy. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 57 (1st Cir. 2000) (facts supporting the finding included comments and questions by a supervisor regarding balancing marital responsibilities and child care with work, a question regarding the plaintiff’s intent to have other children and her ability to perform her job effectively, and comments indicating that married women and mothers are less productive workers and should not be hired). In a more recent case, the First Circuit explained further that “women have the right to prove their mettle” in the workplace without employers stereotyping their ability to perform based on family responsibilities. Chadwick v. Wellpoint, Inc., 561 F.3d 38, 45 (1st Cir. 2009). Adverse employment actions based on a stereotypical belief that women with children will be less committed to their jobs due to their child-care responsibilities constitutes actionable sex discrimination. Chedid v. Children’s Hosp., 2011 WL 2477235 (Mass. Super. Ct. May 20, 2011) (citing Chadwick v. Wellpoint, Inc., 561 F.3d 38, 44–45 (1st Cir. 2009)). The EEOC’s Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, Notice No. 915.002 (May 23, 2007), provides examples of situations in which treatment of caregivers might constitute discrimination, specifically with respect to assumptions about, and stereotyping of, pregnant workers. The publication, available on the EEOC’s website at http://www.eeoc.gov/policy/docs/ caregiving.html, makes it clear that, while caregivers are not a protected class, disparate treatment of these workers may implicate Title VII or the ADA. A 2012 decision by the Supreme Judicial Court acknowledged that the protections of the Equal Rights Act, which prohibits discrimination based upon “sex” (G.L. c. 93, § 102(a)), extend to lactating mothers and that a failure to provide a female sufficient time to express breastmilk violated the law prohibiting discrimination in places of public accommodation based upon “sex.” Currier v. Nat’l Bd. of Med. Exam’rs, 462 Mass. 1, 14–21 (2012). The case was decided, not in the employment context, but rather in the context of a female who sought extra time to express breastmilk while taking a professional licensure examination. The court’s views may well have set the MCLE, Inc. | 2nd Edition 2020

5–43

§ 5.3

Employment Discrimination in Massachusetts

stage for the PWFA, which now protects an employee’s right to breastfeed or express breastmilk for a nursing child in the workplace setting. Acknowledging the absence of cases construing the federal cognate provisions of the Equal Rights Act where breastfeeding or lactation were found to be within the scope of sex discrimination, the court said it was not constrained to follow suit in interpreting the “breadth of coverage” of the Massachusetts Equal Rights Act. Currier v. Nat’l Bd. of Med. Exam’rs, 462 Mass. at 16. In reaching its conclusion that the protections of the Equal Rights Act extended to lactating mothers, the court stated: “The condition of lactation is inextricably linked to pregnancy and thus sex linked. The fact that a woman is no longer pregnant when she is nursing or pumping matters not as lactation is a natural incident of pregnancy.” Currier v. Nat’l Bd. of Med. Exam’rs, 462 Mass. at 16. Similarly, the court held that, in view of the broad remedial purposes of the statute prohibiting discrimination on the basis of “sex” in a place of public accommodation, as well as the rationale it employed in the analysis of what is included in the term “sex” in the context of the Equal Rights Act, the protections of the public accommodation statute extended to lactating mothers because lactation is a sex-linked distinction or classification. Currier v. Nat’l Bd. of Med. Exam’rs, 462 Mass. at 17. As a result of Currier, Massachusetts employers were careful to consider any requests for accommodation by breastfeeding employees, and their treatment of these employees. Now, the PWFA makes clear that Massachusetts employers must provide a reasonable accommodation to employees with the need to express breastmilk unless the employer cannot do so without undue hardship. Reasonable accommodations may include more frequent or longer breaks and a private space to express breastmilk. The law does not elaborate on how many or how long the breaks should be, but the MCAD guidance on the matter advises employers to allow employees as many breaks as needed to breastfeed or express breastmilk without enduring undue hardship lasting approximately fifteen to twenty minutes, plus additional time to get to and from the private room and to put away any equipment. MCAD Q&A Pregnant Workers Fairness Act, available at https://www.mass.gov/files/documents/2018/ 02/26/Pregnant%20Workers%20Fairness%20Act%20Questions%20and%20Answers %202018-02-26.pdf. Additionally, the private space to express breastmilk or breastfeed must be a private, nonbathroom space. The space should include enough space and features to allow an employee to comfortably express breastmilk or breastfeed. A 2010 amendment to the Fair Labor Standards Act (FLSA) requires employers to provide reasonable break time for employees to express breastmilk, as needed, during the first year after a child’s birth. 29 U.S.C. § 207(r)(1)(A). Employers are also required to provide a private place shielded from view and intrusion, other than a bathroom, in which employees may take these breaks. 29 U.S.C. § 207(r)(1)(B). However, employers with fewer than fifty employees are exempt from these requirements if providing the breaks would constitute an undue hardship by causing significant difficulty or expense. 29 U.S.C. § 207(r)(3). The EEOC’s Enforcement Guidance: Pregnancy Discrimination and Related Issues, Notice No. 915.003 (June 25, 2015), also addresses lactation and breastfeeding in the workplace. According to the EEOC Enforcement Guidance, “there are various circumstances in which discrimination against a female employee who is lactating or breastfeeding can implicate Title VII.” EEOC Enforcement Guidance: Pregnancy 5–44

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

Discrimination and Related Issues, at § I.A.4.b; see also EEOC v. Hous. Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013) (lactation is a pregnancy-related medical condition for purposes of the PDA, and an adverse employment action against a female employee because of her lactation constituted sex discrimination in violation of Title VII). As the EEOC Enforcement Guidance notes, a nursing mother typically will need to breastfeed or express breastmilk two or three times over the duration of an eight-hour workday, and an employee “must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions.” A policy that allows for the use of sick leave for routine doctor appointments and nonincapacitating medical conditions should also allow female employees to change their schedules or use sick leave for lactationrelated needs under similar circumstances. No further guidance is provided regarding duration or frequency of the required breaks; thus, employers are advised to engage in a dialogue with each eligible employee to determine an appropriate break schedule, as it will certainly vary among women. Employees need not be compensated during this break time. 29 U.S.C. § 207(r)(2). Employers should note, however, that regulations under the FLSA provide that short breaks of between five and twenty minutes must be counted as time worked (and paid). 29 C.F.R. § 785.18. Based on the language of the amendment, it appears that Congress intended that these breaks be an exception to these general regulations and that the time need not be counted as time worked or paid. The FLSA provides that Section 207, which now includes the amendment, does not apply to exempt employees. 29 U.S.C. § 213(a)(1). This makes sense, as exempt employees are paid on a salary basis, meaning that it typically does not matter how many hours they work (or breaks they take). An exception would obviously include where excessive breaks interfere with the exempt employee’s work. However, if the so-called excessive breaks were related to the exempt employee’s breaks for expressing breastmilk, it is likely that an employer’s refusal to grant these breaks or the taking of other adverse action against the employee who takes the breaks would be construed as being discriminatory based on a female employee’s gender and postpregnancy condition.

(f)

Reductions in Force

Employers are permitted to eliminate positions during the course of reductions in force without violating state or federal law, even though the eliminated position may be held by a pregnant woman or the position is eliminated during the incumbent woman’s maternity leave. See, e.g., G.L. c. 149, § 105D (an employee is entitled to reinstatement to the same or a similar position unless other similarly situated employees have been laid off due to economic conditions, or other changes in operating conditions affecting employment have occurred); G.L. c. 175M, § 2; LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 844–45 (1st Cir. 1993); Goldman v. First Nat’l Bank, 985 F.2d 1113, 1118–19 (1st Cir. 1993); Smith v. F.W. Morse, 76 F.3d 413, 424 (1st Cir. 1996). This is not inconsistent with the PWFA, which explicitly states that it “shall not be construed to preempt, limit, diminish or otherwise affect any other law relating to sex discrimination or pregnancy or in any way diminish the coverage for pregnancy or a condition related to pregnancy including . . . under section 105D of chapter 149.” However, the employee who takes leave retains any preferential consideration MCLE, Inc. | 2nd Edition 2020

5–45

§ 5.3

Employment Discrimination in Massachusetts

for another position that the employee was entitled to at the time the employee left for leave. Moreover, an employer’s defense that a position was eliminated is not necessarily defeated merely because another employee already on the employer’s payroll is designated to carry out some or all of the laid-off employee’s duties in addition to their own or because the duties of the laid-off employee are otherwise reallocated within the existing workforce. See, e.g., Smith v. F.W. Morse, 76 F.3d at 423; LeBlanc v. Great Am. Ins. Co., 6 F.3d at 846. But cf. Lane v. Laminated Papers, Inc., 16 M.D.L.R. 1001, 1015 (1994) (where the evidence showed that lab operations continued in some fashion and various employees continued to perform the complainant’s duties in some capacity, the employer’s argument that lab operations were eliminated and that the complainant was not replaced was deemed pretextual). In addition, the fact that the employer discovers that the pregnant employee is expendable while the employee is absent on maternity leave does not defeat the employer’s defense. Smith v. F.W. Morse, 76 F.3d at 424–25. However, a failure-to-hire claim survived summary judgment where a pregnant employee’s position was terminated as part of a bankruptcy sale, the corporate successor knew that the plaintiff wanted to be rehired, but the corporate successor refused to hire the plaintiff based on a belief that she was unavailable to start right away due to her maternity leave. Bennett v. Capitol BC Rests., LLC, 54 F. Supp. 3d 139, 146 (D. Mass. 2014).

(g)

Termination

Absenteeism and Tardiness Neither state nor federal law provides a pregnant employee with greater rights than her nonpregnant coworkers. The First Circuit Court of Appeals has reaffirmed that “[t]he discrimination statutes are not medical leave acts, and [an employer] would not automatically be liable for gender discrimination if it had discharged [a pregnant employee] for poor attendance under standards applied to other employees, even if the poor record was due to pregnancy complications.” Troy v. Bay State Comput. Grp., Inc., 141 F.3d 378, 381 (1st Cir. 1998). In addressing issues such as absenteeism and tardiness, an employer must ensure that all similarly situated employees have been treated in the same manner. However, under the PWFA, employers must provide a reasonable accommodation for an employee’s pregnancy or condition of pregnancy absent undue hardship. The PWFA explicitly states a modified work schedule and time off to attend to a pregnancy complication or to recover from childbirth as examples of reasonable accommodations. MCAD guidance on the matter specifically states that if a pregnant employee needs to come into work later than her usual start time due to morning sickness, the employee may be covered by the PWFA. Some federal jurisdictions have held that the PDA, while requiring the employer to ignore an employee’s pregnancy, does not require the employer to ignore the employee’s absence from work unless the employer overlooks the comparable absences of nonpregnant employees. Smith v. F.W. Morse, 76 F.3d 413, 424 (1st Cir. 1996) (citing Troupe v. May Dep’t Stores Co., 20 F.3d at 738); In re Carnegie Ctr. Assocs., 129 F.3d 290, 296 (3d Cir. 1997); see also Sanchez-Estrada v. MAPFRE Praico Ins. 5–46

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

Co., 126 F. Supp. 3d 220 (D.P.R. 2015), appeal dismissed, No. 15-2221 (1st Cir. Jan. 15, 2016) (an employer’s suspension of a pregnant employee without pay for violating a point-based attendance policy was legitimate and not a pretext for pregnancy discrimination). An employer will face liability for gender discrimination if the cited poor attendance was merely a pretext for unlawful discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 511 (1993); Smith v. F.W. Morse, 76 F.3d at 424 (“[a]n employer may discharge an employee while she is on a pregnancyinduced leave so long as it does so for legitimate reasons unrelated to her gravidity”); Troupe v. May Dep’t Stores Co., 20 F.3d at 738 (holding that an employer is required to ignore an employee’s pregnancy “but . . . not her absence from work”); In re Carnegie Ctr. Assocs., 129 F.3d at 299 (“It is not a violation of the PDA for an employer to consider an employee’s absence on maternity leave in making an adverse employment decision if it also would have considered the absence of an employee on a different type of [temporary] disability leave in the same way.”); Crnokrak v. Evangelical Health Sys. Corp., 819 F. Supp. 737, 743 (N.D. Ill. 1993) (“[t]he PDA does not force employers to pretend that absent employees are present whenever their absences are caused by pregnancy”). Consequently, such courts reject an employee’s proffered theory of transitivity that if “A (termination) is caused by B (absence) which is caused by C (pregnancy), then C causes A.” In re Carnegie Ctr. Assoc., 129 F.3d at 296. Although not relevant to the First Circuit’s holding in Smith v. F.W. Morse, the court did state that Title VII mandates that an employer must put an employee’s pregnancy (including her departure on maternity leave) to one side in making its employment decisions—but the statute does not command that an employer bury its head in the sand and struthiously refrain from implementing business judgments simply because they affect a parturient employee. Smith v. F.W. Morse, 76 F.3d at 424. The court’s parenthetical was viewed by the dissent in In re Carnegie Center Associates to support its position that the plaintiff’s absence from work was so inextricably intertwined with pregnancy, her protective trait, as to make the two inseparable, and, therefore, the termination of the plaintiff, unlawful. In re Carnegie Ctr. Assocs., 129 F.3d at 308. In 2009, a Massachusetts federal District Court denied an employer’s motion for summary judgment on a claim of retaliation where the employer, in selecting the plaintiff for layoff, assessed her performance over a time period that included the time she took a disability and maternity leave. Krause v. UPS Supply Chain Solutions, Inc., No. 08-cv-10237-DPW, 2009 WL 3578601, at *12 (D. Mass. Oct. 28, 2009). Employers are cautioned to carefully consider the termination or elimination of the position of the employee on maternity leave because of her absence, and should be mindful that the PWFA prohibits Massachusetts employers from taking adverse action against an employee who requests or uses a reasonable accommodation, including but not limited to time off, due to pregnancy or a condition related to the pregnancy.

MCLE, Inc. | 2nd Edition 2020

5–47

§ 5.3

Employment Discrimination in Massachusetts

Practice Note Should the pregnant employee be entitled to FMLA leave, the FMLA regulations must be followed. Employees entitled to FMLA protection may not be disciplined for absences, nor may these FMLA absences be counted against an employee under an employer’s “no fault” attendance policy. FMLA Advisory Opinion No. 2, Aug. 16, 1993. Likewise, employees are now permitted to use paid family leave under the PFMLA to bond with a child during the first twelve months after the child’s birth or the placement of the child for adoption or foster care with the employee. G.L. c. 175M, § 8(b).

Performance Issues The pregnant employee is required to meet all of the same performance and behavior standards set by the employer for its employees. As a result, the mere fact that an employee is pregnant does not insulate her from discipline or termination. O’Shea v. Great Beginning Hair Salon, 14 M.D.L.R. 1281, 1290–91 (1992) (an employer lawfully terminated a pregnant employee for dishonesty in paying herself for hours not worked); Almonacid v. Vantage Travel Serv. Inc., 15 M.D.L.R. 1858, 1877 (1993) (daily questions about a pregnancy by a manager were expressions of concern for the complainant’s welfare and the offer of a new job following maternity leave to address performance problems that was comparable in stature and pay was not a pretext for discrimination), upheld by the full Commission, 17 M.D.L.R. 1551 (1995).

§ 5.3.6 (a)

Benefits Short-Term or Temporary Disability

Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery from such conditions are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. 804 C.M.R. § 8.01(3). Written and unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of leave extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or temporary disability insurance or sick leave plan, formal or informal, shall be applied to employees whose disability is due to pregnancy or childbirth on the same terms and conditions as they are applied to employees with other temporary disabilities, provided, however, that if a disability caused or contributed to by childbirth and recovery from such is less than eight weeks duration, or if a temporary leave policy of an employer would result in a parental leave of less than eight weeks, a female employee who meets the requirements specified in the MPLA shall be entitled to an eight-week maternity leave.

§ 5.3.7

Individual Liability

In addition to the statutory prohibitions against discrimination by “an employer,” G.L. c. 151B also provides that it is unlawful 5–48

2nd Edition 2020 | MCLE, Inc.

Pregnancy Discrimination

§ 5.3

[f]or any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter. G.L. c. 151B, § 4(4A). Consequently, individual supervisors, human resources professionals, and company officials may face liability for violation of G.L. c. 151B. Ruffino v. State St. Bank & Tr. Co., 908 F. Supp. 1019, 1048 (D. Mass. 1995). Generally, plaintiffs must name all defendants in the administrative proceedings before the MCAD or the EEOC in order to proceed against a specific defendant in state or federal court. However, this rule does not hold in the following circumstances: • if there was “substantial identity” between the respondent named in the MCAD or EEOC charges and the defendants in the civil action; • if the named respondent acted as the “agent” of the defendant sought to be included in the civil action, at least when the latter defendant had notice of and participated in the conciliation proceedings at the administrative agency; or • if the defendant is an “indispensable party” under Fed. R. Civ. P. 19 in order to accord complete relief to the parties. McKinnon v. Kwong Wah Rest., 83 F.3d 498, 504–05 (1st Cir. 1996); Kuketz v. MDC Fitness Corp., No. 98-0114A, 1998 WL 1119863, at *2 (Mass. Super. Ct. Aug. 10, 1998) (an individual does not have to be a named respondent before the MCAD prior to being named in a subsequent lawsuit that could result in individual liability so long as the individual has been put on notice and had an opportunity to conciliate the matter); Stewart v. Kugliowska, 28 F. Supp. 2d 690, 692–93 (D. Mass. 1998) (the court dismissed a case against individual supervisors where the supervisors were not named in an MCAD complaint and not given notice that their conduct was an issue before the MCAD and they had no opportunity to participate in the investigation of charges brought against them); see also Swenson v. Buffalo Lodging Assocs., LLC, No. 05-0005, 2005 WL 2541197 at *4 (Mass. Super. Ct. Sept. 9, 2005) (allowing a motion to dismiss where the plaintiff did not allege in the body of the MCAD charge that the defendant discriminated against him or establish any other nexus, and did not provide the defendant with notice or opportunity to participate in conciliation of the claim). Practice Note It is important for employers to remember that this administrative prerequisite to suit is an affirmative defense that must be asserted in the defendant’s answer or it will be deemed waived. See Fed. R. Civ. P. 8(c); Mass. R. Civ. P. 8(c); McKinnon v. Kwong Wah Rest., 83 F.3d at 505; Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1226 (1st Cir. 1994) (“Affirmative defenses not so pleaded are waived.”).

MCLE, Inc. | 2nd Edition 2020

5–49

§ 5.3

§ 5.3.8

Employment Discrimination in Massachusetts

Remedies Available to Successful Plaintiffs

The remedies available to the successful plaintiff establishing discrimination on the basis of her pregnancy are the same as for all other claims brought under G.L. c. 151B and Title VII. Specifically, these include equitable remedies (e.g., reinstatement, promotion, etc.), compensatory damages (front and back pay, loss of benefits, etc.), emotional distress damages, punitive damages (in court, but not before the MCAD), interest, and attorney fees. Additionally, plaintiffs are entitled to a jury trial in discrimination cases under both G.L. c. 151B and G.L. c. 149, § 105D. MacCormack v. Bos. Edison Co., 423 Mass. 652, 655 (1996); Whalen v. NYNEX Info. Res. Co., 419 Mass. 792, 795 (1995); Dalis v. Buyer Adver., Inc., 418 Mass. 220, 226–27 (1994). When an employer violates both the FMLA and an antidiscrimination statute, an employee may be able to recover under either or both statutes. However, double relief may not be awarded for the same loss; when remedies coincide a plaintiff may be allowed to utilize whichever avenue of relief is desired. 29 C.F.R. § 825.702 (citing Laffey v. N.W. Airlines, Inc., 567 F.2d 429, 445 (D.C. Cir. 1976)). The MPLA provides that employees who are permitted to take more than eight weeks of leave and who are not informed by their employer, in writing, prior to the commencement of leave, that their rights under the MPLA cease after eight weeks, are entitled to full rights (including remedies for violation of the same) under the MPLA for the duration of the leave permitted by the employer. G.L. c. 149, § 105D(b); see also MCAD Guidelines: Maternity Leave Act § V.

MCLE and the authors thank Brian J. MacDonough, Esq., and Michelle De Oliveira, Esq., for their contributions to previous versions of this chapter.

5–50

2nd Edition 2020 | MCLE, Inc.

CHAPTER 6

Race, Ethnicity, and National Origin Discrimination* Sherley Cruz, Esq. University of Tennessee College of Law, Knoxville, TN

Allyson E. Kurker, Esq. Kurker Paget LLC, Waltham § 6.1

Controlling Authority ............................................................................. 6–1

§ 6.2

Types of Claims ....................................................................................... 6–6 § 6.2.1 Racial Harassment.................................................................. 6–6 § 6.2.2 National Origin Discrimination .............................................. 6–8 § 6.2.3 Race Discrimination Against Caucasian Employees ............ 6–11 § 6.2.4 Unconscious Discrimination ................................................ 6–13

§ 6.3

Defenses ................................................................................................. 6–14 § 6.3.1 Challenging the Prima Facie Case........................................ 6–14 § 6.3.2 Similarly Situated Employees .............................................. 6–15 § 6.3.3 Affirmative Action Plans ...................................................... 6–16

CHECKLIST 6.1—Strategy Options for Plaintiff in Race, Ethnicity, or National Origin Discrimination Claim ......................................................... 6–18 CHECKLIST 6.2—Strategy Options for Defendant in Race, Ethnicity, or National Origin Discrimination Claim ......................................................... 6–19

Scope Note This chapter discusses claims based on racial harassment, national origin discrimination, race discrimination against Caucasian employees, and unconscious discrimination that are available to employees under federal and state statutes, including Title VII and G.L. c. 151B. It then lays out the defenses available to employers. The chapter includes strategy options checklists for both plaintiffs and defendants.

§ 6.1

CONTROLLING AUTHORITY

General Laws Chapter 151B and its federal analog, Title VII of the Civil Rights Act of 1964, as amended, make it unlawful for an employer to discriminate on the basis of “race, color . . . national origin . . . or ancestry.” In addition, employers that have as few as four employees, who are not covered by Title VII or G.L. c. 151B, cannot *

Updated for the 2020 Edition by MCLE.

MCLE, Inc. | 2nd Edition 2020

6–1

§ 6.1

Employment Discrimination in Massachusetts

discriminate on the basis of national origin and citizenship, pursuant to the Immigration Reform and Control Act of 1986. Another federal statute addressing race discrimination, 42 U.S.C. § 1981, states that all persons have the same right to make and enforce contracts, including employment contracts, which has been interpreted to include at-will employment. Joseph v. Wentworth Inst. of Tech., 120 F. Supp. 2d 134, 144 (D. Mass. 2000). Section 1981 applies only to race discrimination, defined broadly, but not to other forms of discrimination such as national origin discrimination. One exception is that some courts have applied 42 U.S.C. § 1981 to citizenship discrimination. The distinctions between race, color, national origin, and ancestry are not always clear, and the identification of a particular individual may not readily conform to these categories. Alunkal v. Codex Corp., No. 930546, 1994 WL 879743, at *3 (Mass. Super. Ct. Mar. 7, 1994). Evidence of race and national origin discrimination will often overlap. In Sinai v. New England Telephone & Telegraph Co., 3 F.3d 471, 475 (1st Cir. 1993), the judge properly instructed the jury that evidence of national origin discrimination could be used to arrive at a conclusion of race discrimination. Even where such subtle distinctions cannot be made, G.L. c. 151B affords protection against intentional discrimination. In Joseph v. Wentworth Institute of Technology, 120 F. Supp. 2d 134 (D. Mass. 2000), a race, gender, color, and national origin discrimination case, the U.S. District Court for the District of Massachusetts agreed with the Court of Appeals for the Second, Fourth, Fifth, and Tenth Circuits and held that “at-will employees may sue under § 1981.” Joseph v. Wentworth Inst. of Tech., 120 F. Supp. 2d at 144. A plaintiff may also proceed under 42 U.S.C. § 2000d (Title VI), which prohibits discrimination based on race, color, and national origin in “any program or activity receiving Federal financial assistance . . . where the primary objective of the Federal financial assistance is to provide employment.” 42 U.S.C. § 2000d-3. In Joseph, however, the court held that federal aid to the defendant educational institution was intended to aid education, not to provide employment, and dismissed the plaintiff’s Title VI claim. Joseph v. Wentworth Inst. of Tech., 120 F. Supp. 2d at 138–39. In Wampanoag Tribe of Gay Head (Aquinnah) v. MCAD, 63 F. Supp. 2d 119, 120 (D. Mass. 1999), the plaintiff, a federally recognized American Indian tribe, brought an action for declaratory judgment and injunctive relief against the Massachusetts Commission Against Discrimination (MCAD) and Barbette Warren, an individual who had filed charges of race discrimination and retaliation against the tribe with the MCAD. The court “declare[d] that the Tribe enjoys the immunity of a sovereign” and enjoined all persons acting on behalf of MCAD Commissioner Walker or the MCAD “from prosecuting, hearing or deciding any claim of employment discrimination . . . and from otherwise exercising jurisdiction over the Tribe.” Wampanoag Tribe of Gay Head (Aquinnah) v. MCAD, 63 F. Supp. 2d at 125. As illustrated below, this reasoning would presumably also bar claimants from litigating against sovereigns under Chapter 151B in the courts of the Commonwealth for lack of jurisdiction. As with other claims brought under G.L. c. 151B, complaints alleging race, ethnicity, or national origin discrimination must first be brought before the MCAD in order to meet the Superior Court’s jurisdictional requirement. However, failure to plead a 6–2

2nd Edition 2020 | MCLE, Inc.

Race, Ethnicity, and National Origin Discrimination

§ 6.1

specific claim may not prevent the Superior Court from hearing that claim if it was based on acts of discrimination that the MCAD investigation could reasonably be expected to uncover. Windross v. Vill. Auto. Grp., Inc., 71 Mass. App. Ct. 861, 863– 65 (2008) (the plaintiff’s hostile work environment claim was allowed based on sufficient allegations of racial harassment). For example, in Navarro v. U.S. Tsubaki, Inc., 577 F. Supp. 2d 487, 503 (D. Mass. 2008), the court found that the plaintiff’s claims of national origin discrimination in her MCAD charge were not so different from her later claims of racial discrimination that the defendant could reasonably claim to be caught off guard, particularly where both claims were based on the same set of facts. Navarro v. U.S. Tsubaki, Inc., 577 F. Supp. 2d at 503; see also Lopes v. City of Brockton, 35 Mass. L. Rptr. No. 1, 13, 14 (Super. Ct. 2018) (the plaintiff’s retaliation claim was properly included in a Superior Court complaint even though it was not articulated in the MCAD charge because the claim was reasonably discoverable, and the court has jurisdiction over that claim). As with other forms of discrimination, the burdens of producing evidence in race and national origin disparate-treatment cases are governed by the burden-shifting framework set forth by the U.S. Supreme Court under the federal antidiscrimination provisions of Title VII. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997); see also Yee v. Mass. State Police, 481 Mass. 290, 302 (2019). Practice Note Practitioners should be aware of the challenge posed to the so-called McDonnell Douglas burden-shifting framework in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). In Gross, the Supreme Court questioned the application of mixed-motive burden shifting in the age discrimination context and opened the door to the possibility of two analytically distinct approaches to allocating the burden of persuasion in employment discrimination cases. However, in Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 447 n.2 (1st Cir. 2009), the First Circuit Court of Appeals pushed back, underscoring that the Supreme Court “has not definitively decided” whether the burden-shifting framework is applicable in claims brought under the Age Discrimination in Employment Act (ADEA) and declining to adopt the suggested new analytical framework “[u]ntil told otherwise by the Supreme Court.” See Diaz v. Jiten Hotel Mgmt., Inc., 671 F.3d 78, 82–84 (1st Cir. 2012), for a recent discussion of mixed-motive burden shifting in Massachusetts.

While the plaintiff’s burden varies depending on whether the claim is brought under state or federal law, generally, once the plaintiff establishes a prima facie case, the defendant must then articulate a legitimate, nondiscriminatory reason for its action. Under federal law, the plaintiff must next present sufficient evidence to show that the employer’s articulated reason for the adverse employment action is a pretext and that the true reason is discriminatory. The employee may use the same evidence they used to prove pretext but only so long as the evidence sufficiently enables a fact finder to reasonably infer that unlawful discrimination was a determinative factor in the adverse employment action. Thomas v. Eastman Kodak Co., 183 F.3d 38, 64–65 (1st Cir. 1999). Under Massachusetts law, a plaintiff must prove membership in a protected MCLE, Inc. | 2nd Edition 2020

6–3

§ 6.1

Employment Discrimination in Massachusetts

class, harm, discriminatory animus, and causation. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39–40 (2005). Similar to federal law, the plaintiff has the burden of proving discriminatory animus and that discrimination was the determinative cause of the adverse employment decision. However, the Supreme Judicial Court has recommended that courts do not burden juries with instructions using the terms “pretext” and “pretext for discrimination” framed in terms of shifting burdens. Rather, instructions should be framed in terms of whether the defendant acted with a discriminatory intent, motive, or state of mind. Lipchitz v. Raytheon Co., 434 Mass. 493, 500–01 (2001). Whether proceeding under state or federal law, a plaintiff’s showing is usually made by circumstantial evidence. In some cases, circumstantial evidence alone, even in the face of evidence supporting a contrary determination, is enough to support the finding of discrimination. See Smith v. Clay Chevrolet, Inc., 2016 WL 8138606 (D. Mass. Nov. 17, 2016). Whether proceeding under federal or state law, guidelines from cases arguing pretext are instructive for proving discrimination. In Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129–30 (1997), a race discrimination case, the court stated that the most probative means of establishing that the plaintiff’s termination was a pretext for discrimination is to demonstrate that similarly situated employees, whose race is different from the plaintiff’s, were treated differently than the plaintiff. Specifically, the court stated that the plaintiff must “identify and relate specific instances where persons similarly situated ‘in all relevant aspects’ were treated differently.” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 129; see Scarlett v. City of Boston, 93 Mass. App. Ct. 593, 599 (2018) (the employer should have established that the plaintiff’s statistical evidence was unreliable or not probative of discrimination because the statistics did not account for the employer’s selection process). Relevant aspects include the relative seriousness of the conduct of the employee and the comparators. Sol v. Genzyme Corp., 76 Mass. App. Ct. 1122, 2010 WL 1222677, at *3 (2010) (Rule 1:28 decision). Another avenue for establishing that the defendant’s conduct was a pretext for discrimination is the defendant’s general practice and policies regarding the employment of minorities. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 130 n.4. Using this approach, a plaintiff cannot simply produce evidence that the defendant does not employ or promote racial minorities. Rather, the plaintiff must also produce evidence of whether minorities have ever applied for positions with the defendant and evidence concerning those applicants’ qualifications. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 130 n.4. Plaintiffs may also introduce evidence of “uncontrolled subjectivity” in the employment practice in question (e.g., hiring or promotion practices) as evidence of pretext. City of Salem v. MCAD, 44 Mass. App. Ct. 627, 643 (1998). When judging whether the plaintiff has shown that the defendant’s actions were a pretext for race discrimination, the fact finder may take into account “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action.” City of Salem v. MCAD, 44 Mass. App. Ct. at 643. In a layoff context, a plaintiff may prove discrimination by producing some evidence that the layoff occurred under circumstances that would raise a “reasonable 6–4

2nd Edition 2020 | MCLE, Inc.

Race, Ethnicity, and National Origin Discrimination

§ 6.1

inference of discrimination,” or that the employer’s actions, “if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 40 (citation omitted). If an employer’s allegedly discriminatory conduct is found to be a business error, but the plaintiff does not show that such error was motivated by or a cover for discrimination, the plaintiff has failed to establish that the error was a pretext. Anderson v. Potter, 723 F. Supp. 2d 368, 376 (D. Mass. 2010). The Supreme Court, in a 2010 decision, refined the definition of “employment practice” for purposes of applying the statute of limitations in a disparate impact case of discrimination. Lewis v. City of Chi., 560 U.S. 205, 212 (2010). The Supreme Court first determined that “a plaintiff establishes a prima facie discrimination disparateimpact claim by showing that the employer ‘uses a particular employment practice that causes a disparate impact’ on one of the prohibited bases.” Lewis v. City of Chi., 560 U.S. at 212 (quoting 42 U.S.C. § 2000e-2(k)). Thus, although the individuals who were initially excluded from consideration for firefighter positions despite scoring in the qualified range, did not file a timely cause of action challenging the initial practice and test results, the plaintiffs were not barred by the statute of limitations from bringing a cause of action challenging the practice each time the city used the practice in each round of selection. Thus the use of a practice, which initially had not been challenged, can be challenged when used in future selections. Lewis v. City of Chi., 560 U.S. at 212–16. In 2012, the Supreme Judicial Court heard a case where a class of African-American and Hispanic police officers brought an action against the Commonwealth of Massachusetts and its human resources division, alleging that they had been subjected to racial discrimination through the discriminatory impact of a multiple-choice examination for candidates seeking a promotion to police sergeant, and the trial court had dismissed the class’s claims. Lopez v. Commonwealth, 463 Mass. 696 (2012). The court stated that a claim of interference under G.L. c. 151B, § 4(4A) could be established by evidence of disparate impact, eliminating the need to show discriminatory intent if disparate impact is relied on. Thus, to make out a prima facie claim under § 4 (4A) based on a disparate impact theory of liability, a plaintiff must allege facts that, if proved, would establish that (1) a defendant utilized specific employment practices or selection criteria knowing that the practices or criteria were not reasonably related to job performance; and (2) a defendant knew that the practices or criteria had a significant disparate impact on a protected class or group. Lopez v. Commonwealth, 463 Mass. at 711. The court determined that the plaintiff class had stated such a claim at this early stage of the proceedings by alleging that the division of human resources knowingly created and administered an examination on which African-American and Hispanic police officers perform more MCLE, Inc. | 2nd Edition 2020

6–5

§ 6.1

Employment Discrimination in Massachusetts

poorly than their nonminority counterparts; was aware that the examination is not reasonably related to job performance; and knew that utilization of the promotional examination caused a significant disparity in the ratio of African-American and Hispanic police officers promoted to the rank of sergeant as compared to the ratio of nonminority police officers so promoted. Lopez v. Commonwealth, 463 Mass. at 711. But see Lopez v. City of Lawrence, 823 F.3d 102 (1st Cir. 2016) (finding that although the employer’s test had a disparate impact on African-American and Hispanic police officers who were not selected for promotion, the officers failed to meet their burden of putting forward a specific less discriminatory alternative to the test).

§ 6.2

TYPES OF CLAIMS

§ 6.2.1

Racial Harassment

Discrimination prohibited by G.L. c. 151B includes a work environment pervaded by harassment or abuse. College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156, 162 (1987) (sexual harassment case). In addition to sexual harassment, harassment based on membership in a protected class is a form of employment discrimination. Lattimore v. Polaroid Corp., 99 F.3d 456, 463 (1st Cir. 1996). The Supreme Judicial Court has reasoned that “[a] work environment pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization, poses a formidable barrier to the full participation of an individual in the workplace.” College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. at 162. Thus, under Massachusetts law, harassment that creates a hostile working environment can constitute discrimination in the terms, conditions, or privileges of employment. Lewis v. Gillette Co., 65 Fair Empl. Prac. Cas. (BNA) 1811, 1993 WL 291771, at *6 (D. Mass. July 21, 1993), aff’d on other grounds, 22 F.3d 22 (1st Cir. 1994). In DeNovellis v. Shalala, 124 F.3d 298, 310 (1st Cir. 1997) (Title VII), the court concluded that hostile work environment claims encompass claims of verbal abuse, such as racial epithets, pranks, and hazing. The issue is whether the harassment is sufficiently severe or pervasive so that it alters the terms and conditions of employment, which is determined by looking at the gravity and frequency of the offensive conduct. DeNovellis v. Shalala, 124 F.3d at 311. Comments not necessarily considered racist on their face were deemed severe and pervasive in MCAD v. Electro-Term, Inc., 2008 WL 42939315 (MCAD Sept. 10, 2008). In that case, the company president, while deriding his African-American administrative assistant for poor performance, remarked to her, “Where were you born?” The assistant took his comment to imply that she was born in a ghetto. The president also told her that she had the character of an “obedient servant,” which the assistant took as an offensive reference to slavery. Questions of severity and pervasiveness will differ on a case-by-case basis with courts examining the gravity as well as the frequency of the allegedly racist comments. DeNovellis v. Shalala, 124 F.3d at 311. For instance, in Thomas O’Connor Constructors, Inc. v. MCAD, 72 Mass. App. Ct. 549, 552–60 (2008), the court found 6–6

2nd Edition 2020 | MCLE, Inc.

Race, Ethnicity, and National Origin Discrimination

§ 6.2

that a job site supervisor’s use of a racial epithet on four separate occasions was sufficiently severe and pervasive. Conversely, in Thompson v. Coca-Cola Co., 522 F.3d 168, 178–79 (1st Cir. 2008), the court held that three “stray” remarks by supervisory level employees spread out over a nine-year period were not severe or pervasive as a matter of law. Thompson v. Coca-Cola, Co., 522 F.3d at 180–81. Likewise, in Bennefield v. Kohl’s Department Stores, Inc., No. 11-00647, 2012 WL 1560407, at *4– 5 (Mass. Super. Ct. Feb. 17, 2012), the court granted the defendant’s motion to dismiss, ruling that the plaintiff had not stated a claim that he had been subjected to a hostile work environment where he alleged that the employer questioned him about a theft occurring at the store; asked coworkers to ask the plaintiff about the theft in an effort to entrap him; that a coworker followed him to the restroom to ensure he had not stolen merchandise; and where the employer knew about but did not immediately remove racist graffiti in a restroom. In so ruling, the court noted that the events complained of were not sufficiently pervasive to create a hostile work environment. Bennefield v. Kohl’s Dep’t Stores, Inc., 2012 WL 1560407, at *5. The court also noted that the plaintiff’s subjective opinion that his work performance suffered as a result of the alleged race harassment was insufficient to state a claim of hostile work environment. Bennefield v. Kohl’s Dep’t Stores, Inc., 2012 WL 1560407, at *4. In Thompson, the court found it relevant that the employee never reported the alleged discriminatory remarks to anyone, despite company policies that encouraged such reporting. Thompson v. Coca-Cola, Co., 522 F.3d at 180–81. The plaintiff in Thomas O’Connor Constructors, Inc. reported his supervisor’s conduct up the chain of command both verbally and in writing. Thomas O’Connor Constructors, Inc. v. MCAD, 72 Mass. App. Ct. at 552–53. In one case, a stuffed gorilla placed in a locker room, which the defendant argued had nothing to do with race, was considered as some evidence of a hostile work environment, as it would not be unreasonable for a jury to conclude the gorilla’s placement was in fact race-related. McLaughlin v. Nat’l Grid USA, 108 Fair Empl. Prac. Cas. (BNA) 1661, 2010 WL 1379814, at *13 (D. Mass. Mar. 31, 2010). In determining when harassment becomes severe and pervasive enough so that it creates a hostile work environment, some federal cases have looked at the harassing conduct from the viewpoint of a “reasonable person from the protected group of which the alleged victim is a member.” Johnson v. Teamsters Local Union No. 559, 67 Fair Empl. Prac. Cas. (BNA) 1150, 1995 WL 355304, at *3–4 (D. Mass. Mar. 31, 1995) (a reasonable black person in the plaintiff’s situation would have found the work environment hostile or abusive); see also Harris v. Int’l Paper Co., 765 F. Supp. 1509, 1515 (D. Me. 1991). In Bennefield v. Kohl’s Department Stores, Inc., 2012 WL 1560407, at *4–5, a state court ruled that a “reasonable person” would not find a work environment hostile where the employer and coworkers questioned the plaintiff about a theft and where there was one incident of racial graffiti. In addition, in Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 13–14 (1st Cir. 1999), the court held that hostile work environment claims based on national origin may proceed under 42 U.S.C. § 1981 and that Section 1981 applies to independent contractors as well as to employees, if a contractual relationship exists. As with hostile environment sexual harassment claims, employers are liable for racial or national origin harassment of an employee by their coworkers if “an official MCLE, Inc. | 2nd Edition 2020

6–7

§ 6.2

Employment Discrimination in Massachusetts

representing the institution knew, or in the exercise of reasonable care, should have known, of the harassment’s occurrence, unless that official can show that he or she took appropriate steps to halt it.” Duplessis v. Training & Dev. Corp., 835 F. Supp. 671, 677 (D. Me. 1993) (citing Lipsett v. Univ. of P.R., 864 F.2d 881, 901 (1st Cir. 1988) (sexual harassment case)). Regarding harassment by supervisors, under state law, an employer is strictly liable to its employees for the sexually hostile environment perpetrated by its supervisors under G.L. c. 151B, § 4(1). College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. at 162. In Thomas O’Connor Constructors, Inc. v. MCAD, 72 Mass. App. Ct. 549, 560 (2008), the Massachusetts Appeals Court held that an employer may be liable for the harassment of a third party’s employee under G.L. c. 151B, § 4(4A). In that case, an AfricanAmerican subcontractor employee was working at a job site alongside employees of the general contractor. The job-site supervisor was allowed to remain on the job despite the general contractor’s knowledge of the supervisor’s racist remarks. The court confirmed that the lack of an employment relationship between the job-site supervisor and the complainant forbade liability under Section 4(1). However, the court held that “an employer who is on notice of unlawful discriminatory acts by its supervisor, directed toward an employee of a subcontractor at a unitary work site, and fails to take reasonably adequate remedial action is liable under G.L. c. 151B, § 4(4A).” Thomas O’Connor Constructors, Inc. v. MCAD, 72 Mass. App. Ct. at 560. As a result of this case, employees may now look to the employers of the harassing or discriminating employee in addition to their own employer for protection and enforcement of their legal rights.

§ 6.2.2

National Origin Discrimination

Although discrimination based on national origin is prohibited by G.L. c. 151B, and the burden of proof for a national origin case of discrimination is the same as for other cases of discrimination, there are far fewer cases of discrimination based on national origin than those based on other protected classes. It is often difficult to determine whether a claim of discrimination is based on race, color, or national origin. Practice Note A prudent complainant should err on the side of including each protected class of which they may be a member when drafting a charge of discrimination.

In Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 88 (1973), the Supreme Court held that the term “national origin,” as it is used in Title VII, refers to the country where a person was born or the country from which their ancestors came. Espinoza v. Farah Mfg. Co., 414 U.S. at 88. The definition adopted by the Court in Espinoza did not include noncitizens as part of the protected class based on national origin. Espinoza v. Farah Mfg. Co., 414 U.S. at 88. Thus, while aliens are protected under Title VII, requiring citizenship as a condition of employment does not violate Title VII. Espinoza v. Farah Mfg. Co., 414 U.S. at 88. (In his dissent, Justice Douglas chided the Court for holding that noncitizens are not protected since alienage results from being born outside the country.) 6–8

2nd Edition 2020 | MCLE, Inc.

Race, Ethnicity, and National Origin Discrimination

§ 6.2

Likewise, in Nguyen v. University of Massachusetts, 66 Mass. App. Ct. 276, 281–82 (2006), the court held that refugee status and political beliefs are not protected by G.L. c. 151B. In Nguyen, the court upheld the dismissal of a complaint alleging that the plaintiff had been excluded from a fellowship program based on his national origin and age because the court found that the plaintiff’s allegations demonstrated that the plaintiff was actually claiming discrimination based on his refugee status and political affiliation. Nguyen v. Univ. of Mass., 66 Mass. App. Ct. at 281–82. The court based this determination on the fact that some persons who shared the plaintiff’s national origin and age would not fall within the protected class as described by the plaintiff’s complaint. Nguyen v. Univ. of Mass., 66 Mass. App. Ct. at 280–82. However, the Immigration Reform and Control Act of 1986 (IRCA) makes it an illegal immigration-related employment practice for an employer or other entity to discriminate against any individual, other than an unauthorized alien, with respect to hiring, recruitment, or referral for employment or to discriminately discharge an individual because of the individual’s citizenship. 8 U.S.C. § 1324b(a)(1). Courts have allowed national origin claims based on distinct nationalities to proceed. In Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670 (1st Cir. 1996), the court reversed summary judgment in favor of the defendant/employer and held that a comment that “Mulero was the only Puerto Rican running a Cuban company,” which was repeatedly made by a colleague, produced sufficient evidence of national origin animus to allow a trier of fact to reasonably infer discriminatory motive in terminating the plaintiff’s employment. Mulero-Rodriguez v. Ponte, Inc., 98 F.3d at 675–76. The court found that a trier of fact could reasonably find that the individual making the comments could be in a position to influence the decision maker. Mulero-Rodriguez v. Ponte, Inc., 98 F.3d at 676. Although the plaintiff had been employed for twentynine years, during which time he had been promoted, the First Circuit held that the policy changes instituted by a decision maker who had recently started to work for the defendant could be deemed to be national origin discrimination, despite the absence of any evidence of earlier discrimination. Mulero-Rodriguez v. Ponte, Inc., 98 F.3d at 676. Thus, although an employer is aware of the protected class status of a long-term employee and there has been no evidence of past discrimination, a change in management with a new “discriminatory” agenda can defeat a motion for summary judgment. Membership in a protected class due to national origin also may provide the basis for a claim of discrimination based on disparate impact. In Gaines v. Boston Herald, 998 F. Supp. 91 (D. Mass. 1998), the court applied the disparate-impact analysis to national origin claims. In order to provide a prima facie case of disparate-impact discrimination, a plaintiff must • identify a facially neutral practice or policy, • show a disparate impact on members of the protected group to which the plaintiff belongs, and • link the practice and the disparate impact, showing that the former is the cause of the latter. MCLE, Inc. | 2nd Edition 2020

6–9

§ 6.2

Employment Discrimination in Massachusetts

Gaines v. Bos. Herald, 998 F. Supp. at 104 (citing EEOC v. Steamship Clerks Union Local 1066, 48 F.3d 594, 601 (1st Cir. 1995)). The pattern of failing to hire individuals with Hispanic surnames, coupled with statistical underrepresentation of Hispanics in its workforce in proportion to the population, was deemed to be sufficient evidence of disparate impact based on national origin to defeat a motion for summary judgment. Gaines v. Bos. Herald, 998 F. Supp. at 108–09. Generally, liability for disparate-impact discrimination may be imposed without any proof of an employer’s intent to discriminate. However, in Ramos v. Baxter Healthcare Corp. of Puerto Rico, Inc., 360 F.3d 53, 61 (1st Cir. 2004), the First Circuit concluded that a policy to provide different benefits to employees based on their geographic location would be “permissible absent an intent to discriminate.” Ramos v. Baxter Healthcare Corp. of P.R., Inc., 360 F.3d at 61. In Ramos, the defendant had a policy which provided different, less favorable benefits for employees in Puerto Rico. The court held that Title VII provides a “safe harbor” for such a policy, even if it would have a disparate impact on employees of Puerto Rican origin, unless there was proof of intent to discriminate. Ramos v. Baxter Healthcare Corp. of P.R., Inc., 360 F.3d at 62. The difficulty in determining whether a claim of discrimination is based on race, color, or national origin was evident in Alunkal v. Codex Corp., No. 930546, 1994 WL 879743, at *3 (Mass. Super. Ct. Mar. 7, 1994). In allowing the plaintiff to proceed with a discrimination claim based on color, although that particular box had not been marked by the intake worker at the MCAD, the court opined that the distinctions between race, color, national origin, and ancestry are not always clear and the identification of a particular individual may not readily conform to these categories. Alunkal v. Codex Corp., 1994 WL 879743, at *3. Employees are also prevented from bringing claims under Section 1981 based on their place or nation of origin. St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613–14 (1987). Based on the history of § 1981, we have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination based solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory. St. Francis Coll. v. Al-Khazraji, 481 U.S. at 613. When a claim is based on ancestry, the court will look to see if the plaintiff’s ancestral group was viewed as racially distinct and entitled to protection when Section 1981 was enacted. Hall v. FMR Corp., 559 F. Supp. 2d 120,126–27 (D. Mass. 2008). For example, in Li v. Reade, 609 F. Supp. 2d 148, 150–51 (D. Mass. 2009), the court allowed a Chinese descendant’s Section 1981 claim to proceed since she hailed from a nation whose populace is composed primarily of a particular race. However, in Hall v. FMR Corp., the court did not allow the Section 1981 claim of a native Honduran and African American because there was no natural association between Honduran birth and African ancestry 6–10

2nd Edition 2020 | MCLE, Inc.

Race, Ethnicity, and National Origin Discrimination

§ 6.2

(the expected association being with the Spanish language and Hispanic culture). Hall v. FMR Corp., 559 F. Supp. 2d at 126. An employer may violate the law if it assumes an employee is proficient in a certain language based on their national origin. In Santiago v. Department of Corrections, 22 M.D.L.R. 290 (2000), the respondent ordered the complainant to serve as a Spanishlanguage translator. “Complainant refused . . . because he did not believe his Spanishlanguage skills were adequate for the task, and such duties were not specified in his position description. Thereafter, the complainant was subject to disciplinary action.” Santiago v. Dep’t of Corr., 22 M.D.L.R. at 291. In finding that the respondent had violated the law, the MCAD noted that “[i]t is clear that non-Hispanic officers would not have been given a similar order. The order was based on [c]omplainant’s national origin and the assumption that the mere fact that he knew Spanish rendered him able to accomplish this task.” Santiago v. Dep’t of Corr., 22 M.D.L.R. at 292. Similarly, a policy forbidding employees from speaking any language other than English may be considered evidence of discrimination. In Andujar v. Nortel Networks, Inc., 400 F. Supp. 2d 306, 331 (D. Mass. 2005), the court noted that an employer’s “English only” policy could be considered evidence of discriminatory animus. The general rule remains, however, that English-only rules justified by business necessity, including the need for an employer to operate safely or efficiently, may stand. EEOC v. Salvation Army, No. 07-CA-10620 (D. Mass. Nov. 6, 2008) (Young, J.) (approving a settlement requiring non-English-speaking employees to use English “to the best of their abilities” when speaking to any employee, beneficiary, customer, or supervisor, but permitting the use of their native language during breaks and with customers who speak the same language).

§ 6.2.3

Race Discrimination Against Caucasian Employees

The U.S. Supreme Court has made it clear that both the prohibition against discrimination based on race under Title VII, as well as the rights protected under 42 U.S.C. § 1981, apply to Caucasians as well as to nonwhite individuals. In McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 278 (1976), it reversed the holding of the Circuit Court and held that Title VII prohibits discrimination against an individual based on that person’s race. If race is used as a motivating factor in employment decisions, such conduct may violate Title VII based on a disparate-treatment analysis. Title VII also prohibits disparate-impact discrimination which results from policies or practices that are not intended to discriminate but have a disproportionate impact on minorities. Before an employer can engage in intentional (disparatetreatment) discrimination for the purpose of avoiding unintentional (disparateimpact) discrimination, the employer must have a strong basis in evidence to believe that it will be subject to disparate-impact liability if it fails to take the intentional discriminatory action. Ricci v. DeStefano, 557 U.S. 557 (2009). In Ricci, a five-tofour decision, the Supreme Court considered whether the purpose to avoid disparateimpact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Ricci v. DeStefano, 557 U.S. at 558. In Ricci, the City of New Haven refused to certify the results of a firefighter promotional exam because of the disproportionate number of minority candidates who did not pass the exam. Seventeen MCLE, Inc. | 2nd Edition 2020

6–11

§ 6.2

Employment Discrimination in Massachusetts

white firefighters and one Hispanic firefighter sued the City of New Haven and others, arguing that they were subjected to disparate treatment because of their race in violation of Title VII. In their defense, the defendants asserted that they had a goodfaith belief that they would have violated the disparate-impact prohibition in Title VII had they certified the exam results. In Ricci, the Court attempted to provide guidance to employers and the courts for situations in which an effort to avoid liability for disparate-impact discrimination would otherwise constitute disparate-treatment discrimination. The Supreme Court adopted the “strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII.” Ricci v. DeStefano, 557 U.S. at 584. Applying this standard to Title VII “gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain narrow circumstances.” Ricci v. DeStefano, 557 U.S. at 583. A prima facie case of disparateimpact liability is insufficient to satisfy the strong-basis-in-evidence standard. “That is because the City would be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt.” Ricci v. DeStefano, 557 U.S. at 587 (citing 42 U.S.C. § 2000e-2(k)(1)(A), (C)). The Supreme Court further explained: The [strong-basis-in-evidence] standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation. Ricci v. DeStefano, 557 U.S. at 583 (internal citation omitted). In the dissent, Justice Ginsburg disputed the existence of any “conflict” between Title VII’s prohibition against disparate impact and disparate treatment. Justice Ginsburg, joined by Justices Breyer, Souter, and Stevens, stated “that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.” Ricci v. DeStefano, 557 U.S. at 625–26 (Ginsburg, J., dissenting). “A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict.” Ricci v. DeStefano, 557 U.S. at 625 (Ginsburg, J., dissenting). The dissent would have held that the city had ample cause to believe that the subject selection process was flawed and not justified by business necessity. In rejecting the analysis and conclusion of the majority, the dissent concluded 6–12

2nd Edition 2020 | MCLE, Inc.

Race, Ethnicity, and National Origin Discrimination

§ 6.2

that the petitioners did not show that the failure to certify the test results constituted disparate-treatment discrimination. The dissent anticipated that the order and opinion of the majority would not have “staying power.” Ricci v. DeStefano, 557 U.S. at 609 (Ginsburg, J., dissenting); see also Jones v. City of Boston, 845 F.3d 28 (1st Cir. 2016) (finding that the application of the third prong of a disparate impact liability inquiry turns on whether a jury could find that (1) there was an alternative test that met the employer’s legitimate needs; (2) adopting the alternative test would have had less of a disparate impact; and (3) the employer refused to adopt the alternative test). The MCAD has held that G.L. c. 151B also protects Caucasian individuals from discrimination on account of their race. See Lopilato v. Bos. Pub. Sch., 26 M.D.L.R. 46 (2004) (citing Bruno v. City of Bos. Sch. Dep’t, 16 M.D.L.R. 1368 (1994), and McDonald v. Santa Fe Trails Transp. Co., 427 U.S. 273, 278–79 (1976)). The First Circuit has approved of the use of the four-fifths rule as a rule of thumb (not literally a legal rule) regarding disparate impact, recognizing that sometimes real world differences arise and that adverse impact should only be found when the difference is substantial. See Bos. Police Superior Officers Fed’n v. City of Bos., 147 F.3d 13, 21 (1st Cir. 1998). The four-fifths rule has been suggested in guidance by the Equal Opportunity Commission, and provides that [a] selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact. 29 C.F.R. § 1607.4(D). In Jones v. City of Boston, 752 F.3d 38 (1st Cir. 2014), vacating in part Jones v. City of Boston, No. 05-11832-GAO, 2012 WL 4530594 (D. Mass. Sept. 28, 2012), the First Circuit clarified that the four-fifths rule may be considered in disparate impact analysis, but it is not dispositive. But see Greene v. Walgreen E. Co., 2016 WL 6832622 (D. Mass. Dec. 15, 2016) (noting that Jones discredited the use of the fourfifths rule in cases where there is a small pool of candidates).

§ 6.2.4

Unconscious Discrimination

Race, ethnic, or national origin discrimination based on unthinking bias or stereotypes, as opposed to conscious animus, is actionable. Despite the fact that numerous courts, including the U.S. Supreme Court and the First Circuit Court of Appeals, had recognized that Title VII outlawed age and sex discrimination based on unconscious stereotypes bias, the First Circuit in Thomas v. Eastman Kodak Co., 183 F.3d 38, 58 n.13 (1st Cir. 1999), noted that “[t]he language in certain . . . First Circuit cases might suggest that an express and conscious employer intent to discriminate is critical to the third stage of the McDonnell Douglas/Burdine inquiry.” The court resolved any lingering doubt and held that “[s]tereotypes or cognitive biases based on race are as incompatible with Title VII’s mandate as stereotypes based on age or sex; here MCLE, Inc. | 2nd Edition 2020

6–13

§ 6.2

Employment Discrimination in Massachusetts

too, the ‘entire spectrum of disparate treatment’ is prohibited.” Thomas v. Eastman Kodak Co., 183 F.3d at 59. Likewise, the Massachusetts Supreme Judicial Court has held that discrimination is unlawful even though “an employer will not necessarily be aware of his or her bias.” Lipchitz v. Raytheon Co., 434 Mass. 493, 503 n.16 (2001). In Lipchitz, the court held that the trial judge incorrectly instructed the jury that proof of a “conscious motive” to discriminate was required. Lipchitz v. Raytheon Co., 434 Mass. at 503 n.16.

§ 6.3

DEFENSES

§ 6.3.1

Challenging the Prima Facie Case

An employer’s first line of attack is to challenge the plaintiff’s prima facie case. One element of the prima facie case sometimes vulnerable to challenge is whether the plaintiff performed their job at an acceptable level or was qualified for the promotion or transfer that they sought. Evidence of written warnings given to the employee regarding inadequate performance can defeat a plaintiff’s prima facie case. Alonzo v. MCAD, No. 96-1124D (Mass. Super. Ct. 1996) (affirming the MCAD’s finding that the plaintiff did not establish a prima facie case where he received three written warnings and the employer had a policy allowing for termination under such circumstances). But see Douglas v. J.C. Penney Co., 474 F.3d 10 (1st Cir. 2007) (concluding that the plaintiff had met his prima facie burden despite years of mediocre performance, evidence of gradually declining performance, and documented poor performance evaluations, but granting summary judgment based on a failure to demonstrate pretext). However, an employer may not be able to rely on evidence of poor performance where the employer did not initiate any formal warnings or disciplinary action against the employee. City of Boston v. MCAD, 39 Mass. App. Ct. 234, 242–43 (1995). Conversely, while a history of good performance reviews does not prevent an employer from terminating an employee for insubordination, Blick v. Pitney Bowes Mgmt. Servs., Inc., 5 Mass. L. Rptr. 471 (Super. Ct. 1996), an employee’s record of increased responsibilities and pay, and positive feedback, are enough to satisfy this element of the prima facie case. Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 760 (1st Cir. 1994); Duncan-Young v. Pine St. Inn, 71 Empl. Prac. Dec. P 44, 816, 1997 WL 136337 (D. Mass. Feb. 24, 1997) (where the plaintiff received positive evaluations in the past, she satisfied the second prong of the prima facie case under Title VII and G.L. c. 151B); see also Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 676 n.1 (1st Cir. 1996) (the plaintiff established a prima facie case where he had been promoted over a twenty-nine-year period). Another element of the prima facie case sometimes vulnerable to challenge is that the employer sought to fill the position with someone of equivalent qualifications to perform substantially the same work. Duncan-Young v. Pine St. Inn, 1997 WL 136337, at *2 (establishing the elements of a prima facie case). In Duncan-Young, an African-American female was demoted and her former job ultimately filled by an African-American male. The court concluded that, because the plaintiff’s burden at the prima facie stage is light and because she alleged her replacement was less qualified, 6–14

2nd Edition 2020 | MCLE, Inc.

Race, Ethnicity, and National Origin Discrimination

§ 6.3

she satisfied this prong of the prima facie case under both Title VII and G.L. c. 151B. Duncan-Young v. Pine St. Inn, 1997 WL 136337, at *3. The court added that “whether the replacement employee is a member of the plaintiff’s protected class may be a factor in ultimately judging whether the plaintiff has been discriminated against.” Duncan-Young v. Pine St. Inn, 1997 WL 136337, at *3. In Fomunyam v. Work, Community, Independence, Inc. Eyeglasses, 73 Mass. App. Ct. 1120 (2009), the court clarified that, under G.L. c. 151B, “one may make out a prima facie case even where another member of the protected class has been hired to fill the job from which the plaintiff was terminated.” Demonstrating the plaintiff’s failure to prove an element of the prima facie case may be effective only when the plaintiff utilizes the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as a method of proving the claim of discrimination. A plaintiff may use evidence of a prima facie case, the first stage of the McDonnell Douglas framework, in order to establish a rebuttable presumption of discrimination. However, a plaintiff is not required to follow the McDonnell Douglas framework in order to prevail under G.L. c. 151B. Rather, a plaintiff can prevail by proving “harm, discriminatory animus and causation” through any method. Lipchitz v. Raytheon Co., 434 Mass. 493, 508 (2001). The Supreme Judicial Court has clarified that the burden-shifting framework set forth in McDonnell Douglas is only one method of presenting a case of discrimination under G.L. c. 151B. Thus, while a prima facie case “gives rise to a presumption of discrimination[,] . . . an inference of discrimination will suffice.” Trs. of Health & Hosps. of Bos., Inc. v. MCAD, 449 Mass. 675, 687 (2007). If an employer proffers several legitimate, nondiscriminatory reasons for an adverse action, a plaintiff employee must generally counter each one of these reasons. Ahmed v. Napolitano, 909 F. Supp. 2d 37 (D. Mass. 2012), vacated sub nom. Ahmed v. Johnson, 752 F.3d 490 (1st Cir. 2014) (citing Rathbun v. Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 2004)). Evidence that an employer deviated from its own policies and practices with regard to a plaintiff employee may be used as evidence of pretext. Acevedo-Parrilla v. Novartis ExLax, Inc., 696 F.3d 128, 143 (1st Cir. 2012) (citing Lattimore v. Polaroid Corp., 99 F.3d 456, 467 (1st Cir. 1996)).

§ 6.3.2

Similarly Situated Employees

If the plaintiff succeeds in establishing a prima facie case, the defendant should carefully review whether the plaintiff was similarly situated to other employees who were treated differently. The plaintiff has the burden of demonstrating that similarly situated employees were not treated equally. Suffolk Cty. Sheriff’s Dep’t v. MCAD, 19 M.D.L.R. 187 (1997). Specifically, the plaintiff must prove that they were similar to other employees in “all relevant respects,” which courts have defined as “those factual elements which determine whether reasoned analogy support, or demand, a like result.” Suffolk Cty. Sheriff’s Dep’t v. MCAD, 19 M.D.L.R. 187 (citing Smith v. Stratus Comput., Inc., 40 F.3d 11, 12 (1st Cir. 1994)). In Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122 (1997), the Supreme Judicial Court took a hard line on defining similarly situated employees. The plaintiff, an African-American employee, was terminated for removing a company product MCLE, Inc. | 2nd Edition 2020

6–15

§ 6.3

Employment Discrimination in Massachusetts

from the employer’s premises without permission. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 122–23. The court found that the plaintiff was unable to show that similarly situated white employees were treated differently than he was. While the plaintiff did produce evidence that one white employee was not terminated for a similar offense, the court found that the white employee was not similarly situated because, at the time of the white employee’s offense, the employer had not yet developed its termination policy. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 131. Thus, the employees were not similarly situated because different policies were in effect. Additionally, while three white employees were not terminated for falsifying their timecards, offenses that were also grounds for dismissal under the employer’s termination policy, the court found that those employees were also not similarly situated because of “mitigating circumstances” (timecards were false but employees actually worked the number of hours indicated on the cards, thus the company did not lose any money). Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 132. In 2007, the Supreme Judicial Court clarified its requirement that comparators be similarly situated to the plaintiff. In Trustees of Health & Hospitals of Boston, Inc. v. MCAD, 449 Mass. 675 (2007), the court held that “a comparator’s circumstances need not be identical to those of the complainant. A comparator’s circumstances need only be substantially similar to those of the complainant in all relevant aspects concerning the adverse employment decision.” Trs. of Health & Hosps. of Bos., Inc. v. MCAD, 449 Mass. at 682 (citations omitted). Additionally, the court held that the appropriate “test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. . . . Exact correlation is neither likely nor necessary, but the cases must be fair congeners.” Trs. of Health & Hosps. of Bos., Inc. v. MCAD, 449 Mass. at 682 (citations omitted). Furthermore, the court explained that “‘[a]lthough providing a similarly situated comparator is usually the most probative means of proving that an adverse action was taken for discriminatory reasons, it is not absolutely necessary.’” Trs. of Health & Hosps. of Bos., Inc. v. MCAD, 449 Mass. at 682–83 (quoting Trs. of Health & Hosps. of Bos., Inc. v. MCAD, 65 Mass. App. Ct. 329, 335 (2005)). But see Sol v. Genzyme Corp., 76 Mass. App. Ct. 1122 (2010) (unpublished opinion) (“While Sol can show that he was treated less favorably than his three white coworkers in connection with the desk incident, he cannot demonstrate that he was similarly situated in all relevant respects to them.”).

§ 6.3.3

Affirmative Action Plans

Title VII and G.L. c. 151B generally make it unlawful to make employment decisions on the basis of race. Yet, under limited circumstances, employers are in fact permitted to take race into consideration. Specifically, race-conscious affirmative action plans are not per se violations of the statutes prohibiting unlawful discrimination. In fact, the U.S. Supreme Court has held that Title VII’s prohibitions against racial discrimination do not condemn all private, voluntary race-conscious affirmative action plans. United Steel Workers of Am. v. Weber, 443 U.S. 193 (1979). Where an affirmative action plan is designed to remedy the underrepresentation of minorities in the workplace 6–16

2nd Edition 2020 | MCLE, Inc.

Race, Ethnicity, and National Origin Discrimination

§ 6.3

and does not unnecessarily trammel the rights of nonminorities, such a plan does not violate Title VII. United Steel Workers of Am. v. Weber, 443 U.S. 193 (1979). Subsequently, the Court also approved of the use of additional race-conscious decision making based on an established affirmative action plan when race was merely a “plus factor in an overall process.” See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003), superseded on other grounds by constitutional amendment as stated in Schuette v. Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality By Any Means Necessary (BAMN), 134 S. Ct. 1623 (2014) (approving the use of a flexible admissions policy in which race was used as a “plus” factor to achieve diversity in the student population); Johnson v. Transp. Agency, Santa Clara Cty., 480 U.S. 616 (1987) (approving the use of an affirmative action plan that utilized a flexible approach pertaining to minorities and women in job classifications where they were underrepresented). But see Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (allocating children to different public schools based solely on their race violates the Fourteenth Amendment). In Drinkwater v. School Committee of Boston, 406 Mass. 756 (1990), the Massachusetts Supreme Judicial Court also recognized that “[G.L.] c. 151B does not place a per se prohibition on affirmative action plans.” Drinkwater v. Sch. Comm. of Bos., 406 Mass. at 759. The court noted that “[e]ven when an employer acts pursuant to an affirmative action plan, however, that employer may violate c. 151B. When a plan is misapplied, the employer’s action may constitute illegal ‘reverse’ discrimination.” Drinkwater v. Sch. Comm. of Bos., 406 Mass. at 760. The court also assumed, without deciding, that the standards adopted by the federal courts in dealing with affirmative action claims arising under Title VII and the Fourteenth Amendment would apply to affirmative action claims arising under G.L. c. 151B. Drinkwater v. Sch. Comm. of Bos., 406 Mass. at 760 n.2. Thus, the court held that, where an the affirmative action plan is “limited and flexible,” and thus does not trammel on the rights of nonminorities, and where the plan is properly applied, it may serve as a defense to a reverse discrimination claim. Drinkwater v. Sch. Comm. of Bos., 406 Mass. at 758. However, in a 2001 case, the Supreme Judicial Court upheld a Civil Service Commission ruling that it was improper for a police department to promote certain minority officers over nonminority officers with higher civil service exam test scores. Deferring to the Civil Service Commission’s expertise, the court accepted the finding that the police department’s reasons for bypassing nonminority officers for promotion, which was in part based on an expired consent decree and constitutional arguments, were not valid and were inconsistent with basic merit principles. Mass. Ass’n of Minority Law Enf’t Officers v. Abban, 434 Mass. 256 (2001). Practice Note See Checklists 6.1 and 6.2 for strategy options for both plaintiffs and defendants.

MCLE and the authors thank Vanessa DeSantis, Esq., Amy L. Gilgis, Esq., Tani E. Sapirstein, Esq., and Suzanne M. Suppa, Esq., for their contributions to previous versions of this chapter. MCLE, Inc. | 2nd Edition 2020

6–17

Checklist 6.1

Employment Discrimination in Massachusetts

ü CHECKLIST 6.1 Strategy Options for Plaintiff in Race, Ethnicity, or National Origin Discrimination Claim In preparing the charge of discrimination, plaintiff’s counsel should do the following: q include violations based on all protected classes; q include G.L. c. 151B and Title VII claims; q generally identify each different type of adverse action—e.g., discriminatory, harassment, denial of promotion, pay discrimination; q ask the client to identify specific, similarly situated employees and instances, and the treatment received by such employees, for comparison purposes pursuant to Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129–30 (1997); q obtain any and all policies and employee handbooks; q obtain specific instances of conduct instead of a generalized narrative, including specific dates, times, and places; q obtain details of any and all complaints made to employer; and q immediately request a copy of the client’s personnel record.

6–18

2nd Edition 2020 | MCLE, Inc.

Race, Ethnicity, and National Origin Discrimination

Checklist 6.2

ü CHECKLIST 6.2 Strategy Options for Defendant in Race, Ethnicity, or National Origin Discrimination Claim Counsel for the defendant should do the following: q consider removal to federal court, where appropriate; q challenge the prima facie case: q determine whether the plaintiff is qualified for the position held or sought, and q determine whether the plaintiff was replaced by someone outside the protected class; q challenge the proposition that the plaintiff was treated differently than similarly situated employees by q distinguishing the plaintiff from others either by conduct or position, and q highlighting the decision maker’s positive record of hiring and promoting the plaintiff or other minorities; q challenge pretext by showing that the plaintiff’s subjective opinion about their qualifications and performance is insufficient to show bias; and q in reduction-in-force cases, q show that the guidelines for the reduction were carefully followed when the plaintiff was selected for reduction and that Equal Employment Opportunity (EEO) goals were taken into consideration, and q test compliance with guidelines by checking for statistically significant anomalies that belie claimed compliance.

MCLE, Inc. | 2nd Edition 2020

6–19

CHAPTER 7

Religious Discrimination Anne L. Josephson, Esq. Kotin, Crabtree & Strong LLP, Boston

Robert M. Shea, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, PC, Boston § 7.1

Overview and History ............................................................................. 7–1

§ 7.2

Controlling Massachusetts Authority .................................................... 7–5 § 7.2.1 The Burdens of Proof ............................................................. 7–7 § 7.2.2 Title VII Religious Discrimination Claims........................... 7–11 § 7.2.3 EEOC Regulations ............................................................... 7–15 § 7.2.4 Summary of Statutory Standards for Religious Discrimination in Employment ............................................ 7–17

§ 7.3

Types of Claims ..................................................................................... 7–18

§ 7.4

Undue Hardship and Other Defenses/Exceptions .............................. 7–19 § 7.4.1 Religious Organization Exception........................................ 7–21 § 7.4.2 Ministerial Exception ........................................................... 7–22

§ 7.5

Strategy Options ................................................................................... 7–26 § 7.5.1 Plaintiffs ............................................................................... 7–26 (a) Advance Strategies ........................................................ 7–26 (b) After the Fact Strategies ................................................ 7–26 § 7.5.2 Defendants ........................................................................... 7–27 (a) Checklist of Employer Best Practices ........................... 7–27 (b) Employer Defenses ....................................................... 7–27

Scope Note This chapter begins with a thorough overview of the history of Massachusetts law regarding religious discrimination in employment. Applicable Massachusetts law (G.L. c. 151B, § 4(1A)), federal law (Title VII), and Equal Employment Opportunity Commission regulations are covered in detail. The burdens of proof, types of claims, and available defenses are also set forth, along with relevant case law. The chapter concludes with strategy options checklists for both plaintiffs and defendants.

§ 7.1

OVERVIEW AND HISTORY

The law regarding religious discrimination against employees can be stated simply: Employers cannot treat employees less favorably based on their creed or religion and cannot require employees to violate their religious beliefs as a condition of employMCLE, Inc. | 2nd Edition 2020

7–1

§ 7.1

Employment Discrimination in Massachusetts

ment unless the employer can prove that accommodating the employee would impose an undue hardship. That said, the law of religious discrimination presents issues different from all other forms of employment discrimination. The law in Massachusetts is complex and went through a complete transformation in 1997. Religious discrimination cases remain fairly rare compared to other types of discrimination cases. When such cases do arise, however, they often are emotionally intense, difficult to compromise, and cut to people’s fundamental core values and beliefs. Unlike other forms of employment discrimination, religious discrimination cases confront a head-on conflict between two basic constitutional provisions contained in the First Amendment: • the Establishment Clause (“Congress shall make no law respecting an establishment of religion”) and • the Free Exercise Clause (“Congress shall make no law . . . prohibiting the free exercise thereof”). Religious discrimination cases balance on the knife edge that separates these two constitutional provisions. On the one hand, allowing job benefits—the right to miss a day of work without penalty—for members of a specific religious group but not for others, or for nonbelievers, is arguably a law “respecting an establishment of religion.” On the other hand, allowing employers to fire an employee who refuses to violate the requirements of the employee’s religion places a burden on the “free exercise” of that employee’s religion. This conundrum arises in no other form of employment discrimination. Practice Note Adding further complexity to this subject is the notion that, under federal law, there are circumstances in which an employer may have a right to exercise its religious beliefs, even where that exercise directly affects employees in the workplace. In 2014, the U.S. Supreme Court decided Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), a case brought by the owners of three closely held for-profit corporations under the Religious Freedom and Restoration Act (RFRA), 42 U.S.C. § 2000bb-1 et seq., and the Free Exercise Clause of the First Amendment to the U.S. Constitution. In Hobby Lobby, the plaintiffs brought suit against the Department of Health and Human Services (HHS) to challenge a regulation promulgated pursuant to the Affordable Care Act of 2010, which mandated that for-profit corporations provide their employees with health insurance that included coverage for certain methods of contraception at no cost. The plaintiffs argued that this mandate violated their sincerely held religious beliefs, namely, that life begins at conception, and that “facilitat[ing] access to contraceptive drugs that operate after that point” would violate this belief. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. at 2766. A closely divided Court held in Hobby Lobby that a for-profit corporation is a “person” as defined by RFRA and, as such, may bring suit under that statute. It then held that the contraceptive mandate, as applied to closely held corporations, violated RFRA. Applying a strict scrutiny 7–2

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.1

standard to the legality of the HHS mandate, the Court assumed that the guarantee of cost-free access to the contraceptive methods at issue was a compelling governmental interest. It held, however, that the HHS mandate was not the least restrictive means of furthering this compelling interest, because there were other ways to ensure that every woman had cost-free access to certain contraceptives. The Supreme Court’s decision mirrored in large part the rationale applied by the Tenth Circuit below. Judge Neil Gorsuch was a member of the Tenth Circuit Court of Appeals in 2013, when the Hobby Lobby plaintiffs appealed from the Western District of Oklahoma’s denial of their motion for preliminary injunction. Reversing the denial, Judge Gorsuch and his colleague held that for-profit businesses were “persons” within the meaning of RFRA and could bring suit under that law, and that, furthermore, they were likely to succeed on the merits of their claim, given the substantial burden that HHS’s regulation had on their exercise of religion. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129, 1141 (10th Cir. 2013). The U.S. Supreme Court agreed. Given the current composition of the Supreme Court (which now includes Judge Gorsuch), and given President Trump’s policy pronouncements on the subject of “religious freedom,” we are likely to see further developments in this area of the law. In 2018, the Supreme Court considered the tension between antidiscrimination laws and a business owner’s sincerely held religious beliefs in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018)—a public accommodations case in which the owner of a bakery had declined, on the basis of his sincerely held religious beliefs, to create a wedding cake for a gay couple. The Court made clear that state law can and must protect gay persons and couples in the exercise of their civil rights, but that such laws must be applied in a manner that is “neutral toward religion.” In Masterpiece Cakeshop, the Court found that the commission’s treatment of the baker’s defense “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.” For that reason, the Court held that the commission’s application of the law violated its duty under the First Amendment “not to base laws or regulations on hostility to a religion or religious viewpoint.” Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. at 1720–21. We should expect that the Masterpiece Cakeshop rationale will be equally applicable to employment cases. In the area of employment discrimination, as noted by Deputy Legal Director of the American Civil Liberties Union Louise Melling, the tension between antidiscrimination laws and religious beliefs has begun to emerge in the following three areas: • cases in which employers have claimed that RFRA permits, and that the Constitution requires, freedom to make employment decisions that may otherwise violate antidiscrimination laws, see, e.g., Harris Funeral Home v. EEOC, 884 F.3d 560 (6th Cir. 2018) (reversing the entry of summary judgment for the employer, which had argued, among other things, that requiring the business to retain a transgender employee MCLE, Inc. | 2nd Edition 2020

7–3

§ 7.1

Employment Discrimination in Massachusetts would have constituted an unjustified and substantial burden on the owner’s sincerely held religious beliefs); • cases in which religious-affiliated employers seek to justify adverse action against employees by citing sincerely held religious beliefs, where the action would otherwise violate antidiscrimination laws; and • cases in which employees seek to limit their provision of services to certain protected groups as an accommodation of their sincerely held religious beliefs.

The Supreme Judicial Court addressed this conflict head-on in Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534 (1996). Two Catholic women were fired from their jobs as pari-mutuel clerks at a dog track when they refused to work on Christmas. They sued their employer under G.L. c. 151B, § 4(1A), which prohibits employers from compelling employees to violate the requirements of their religion unless doing so would create an undue hardship for the employer. The Superior Court, taking an approach that neither the employer nor the employees defended on appeal, examined the canons of the Roman Catholic Church (under Mass. R. Civ. P. 44.1, which permits a court to construe the law of a “foreign country”) and stated, Catholic dogma does not require worshippers to abstain from working on Holy Days. The only requirement the church absolutely imposes upon its followers is to attend mass. Plaintiffs were not denied the opportunity to attend mass, and therefore, the Superior Court determined that the plaintiffs could not establish that they were forced to forgo a practice required by their religion. Pielech v. Massasoit Greyhound, Inc., 1994 WL 879559, at *2 (Mass. Super. Ct. June 30, 1994), aff’d, 423 Mass. 534 (1996). In all fairness to the Superior Court judge’s ruling, the court was simply applying the methodology that the Supreme Judicial Court itself had established in its earlier cases construing Section 4(1A). In those cases, the Supreme Judicial Court interpreted G.L. c. 151B, § 4(1A) to provide protection against religious discrimination only when an employee had been prohibited from following the “the practice of her religion as required by that religion.” The court reasoned that, because the statute prohibits an employer from requiring an employee, as a condition of employment, to violate or forgo the practice of her religion as required by that religion, it follows that the threshold showing an employee must make is whether the activity sought to be protected is a religious practice and is required by the religion. Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 771–72 (1986). In a subsequent opinion, the Supreme Judicial Court noted that the “statute does not deal with the full panoply of religious beliefs, practices, preferences, and ideals, but focuses instead on required religious practices.” Kolodziej v. Smith, 412 Mass. 215, 7–4

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.1

221 (1992). The court’s analysis thus focused on the formal requirements of the religious body and ignored the individual employee’s own religious beliefs. Accordingly, in Kolodziej v. Smith, where an employer required an employee to attend a motivational seminar she felt was offensive to her religious beliefs, the Supreme Judicial Court affirmed a finding of summary judgment for the employer, stating, “There was no evidence that Roman Catholic dogma forbade her attendance at the seminar.” Kolodziej v. Smith, 412 Mass. at 221. Under the then-applicable standard, employees claiming protection under G.L. c. 151B, § 4(1A) were required to offer evidence of the formal requirements of their religion, and the judge or jury was required to make findings of fact as to the absolute requirements of religious dogma. In Pielech, however, the Supreme Judicial Court faced a constitutional challenge to G.L. c. 151B, § 4(1A) that was not present in prior cases. Pielech v. Massasoit Greyhound, Inc., 423 Mass. at 538. Applying the First Amendment to the statutory construction of G.L. c. 151B, § 4(1A) as set forth in prior cases, the Supreme Judicial Court found G.L. c. 151B, § 4(1A) unconstitutional for two reasons—first, making a distinction between an employee’s sincerely held religious belief shared with others belonging to an organized church or sect, and those beliefs not similarly shared, violated the Establishment Clause, and second, requiring courts to “ascertain the requirements of the religion at issue” similarly violated the Establishment Clause. Pielech v. Massasoit Greyhound, Inc., 423 Mass. at 540–42. Pielech was the product of a sharply divided Supreme Judicial Court. A minority of three justices would have upheld the statute by interpreting it as protecting all religious beliefs, not just those of organized religions. The Supreme Judicial Court’s decision to strike down the statute in this respect left Massachusetts employees with limited state law protection against religious discrimination through the rest of 1996. The legislature acted quickly to revise the statute, however, and the revisions were approved in advance by the Supreme Judicial Court, clearing the way for enactment in early 1997. Opinion of the Justices to the House of Representatives, 423 Mass. 1244 (1996). Under the revised statute, the employee’s burden is to prove “any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religion.” G.L. c. 151B, § 4(1A).

§ 7.2

CONTROLLING MASSACHUSETTS AUTHORITY

General Laws Chapter 151B, § 4(1) states, in relevant part, that it shall be an unlawful practice [f]or an employer, by himself or his agent, because of the . . . religious creed, . . . to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. MCLE, Inc. | 2nd Edition 2020

7–5

§ 7.2

Employment Discrimination in Massachusetts

General Laws Chapter 151B, § 4(1A) states, in relevant part: It shall be unlawful discriminatory practice for an employer to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate, or forego the practice of, his creed or religion as required by that creed or religion including but not limited to the observance of any particular day or days or any portion thereof as a Sabbath or holy day and the employer shall make reasonable accommodation to the religious needs of such individual. . . . As used in this subsection, the words “creed or religion” mean any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religious institution or organization. Thus, the law imposes two distinct legal obligations on employers subject to G.L. c. 151B: a prohibition against disparate treatment based on creed or religion and a duty to make reasonable accommodation to an employee’s sincerely held religious belief. Practice Note The Massachusetts Equal Rights Act, G.L. c. 93, §§ 102–103 (MERA), is an additional source of rights ensuring against discrimination on the basis of religion in the “mak[ing] and enforce[ment of] contracts.” The Supreme Judicial Court has made clear that these rights apply in the employment context in cases, where, for jurisdictional reasons, G.L. c. 151B is not available to the individual. Thurdin v. SEI Bos., LLC, 452 Mass. 436, 447, 454–55 (2008); Lopez v. Commonwealth, 463 Mass. 696, 715 (2012). Under MERA, a plaintiff may establish liability by showing, by a “totality of circumstances,” that they were denied “any of the rights protected by” the statute. G.L. c. 93, § 102(c). There is little case law that provides explanatory guidance. In McDonnell v. Certified Engineering & Testing Co., 899 F. Supp. 739, 751 (D. Mass. 1995), the U.S. District Court noted, however, that the standard of proof of a MERA claim was “at least as generous” as that applicable to claims under Title VII and G.L. c. 151B.

The law requires that employees intending to be absent from work notify their employer at least ten days in advance of each absence. It also requires that any absence from work shall, “whenever practicable in the judgment of the employer,” be made up by an equivalent amount of time at some other mutually convenient time. G.L. c. 151B, § 4(1A). General Laws Chapter 151B, § 4(1A) requires employers to make a “reasonable accommodation” to the employee’s religiously based requests. However, the statute does not specifically prescribe the process or the limits of these accommodations, except that accommodations should not impose an “undue hardship in the conduct of the employer’s business.” G.L. c. 151B, § 4(1A). As discussed below, two Supreme 7–6

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.2

Judicial Court decisions—MBTA v. MCAD, 450 Mass. 327, 337 (2008) (MBTA) and Brown v. F.L. Roberts & Co., 452 Mass. 674 (2008) (Brown)—examined employers’ practical obligations once an employee has claimed a religious exemption from a generally applied work practice. In Brown, in particular, the Supreme Judicial Court explicitly distinguished the Massachusetts statute from the federal statute and placed a higher duty on Massachusetts employers under state law than the federal courts impose under Title VII.

§ 7.2.1

The Burdens of Proof

The decisions in Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534 (1996) and Opinion of the Justices to the House of Representatives, 423 Mass. 1244 (1996), combined with the 1997 revision of G.L. c. 151B, § 4(1A), create a two-stage shifting burden-of-proof analysis for religious discrimination claims based on failure to accommodate. In the first stage, the employee must prove that the employer required the employee to “violate, or forego the practice of, his creed or religion as required by that creed or religion including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or holy day.” G.L. c. 151B, § 4(1A). Notably, the 1997 revision to the statute defines “creed or religion” to include “any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religion.” G.L. c. 151B, § 4(1A). Critics of the new law predicted a flood of one-person religions such as the Church of Not Working on Mondays. Those predictions have not materialized, although some might suggest that the Church of Body Modification, to which the plaintiff in Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004) belonged, pushes the edge of that envelope. (The practices of that particular church are discussed below.) Once the employee meets the initial burden, then, to avoid liability under G.L. c. 151B, the employer must prove that it could not provide “reasonable accommodation” to the employee’s religious needs without “undue hardship.” These two phrases are lifted from the law regarding handicap discrimination, in which employers are required to make “reasonable accommodations” to employees’ handicaps unless doing so would cause an undue burden on the employer. There is a large body of case law in handicap discrimination cases construing the practical application of these phrases. See, e.g., Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 140 (1st Cir. 2009); Evans v. Fed. Express Corp., 133 F.3d 137, 140 (1st Cir. 1998). Arguably, that case law should apply to religious discrimination claims. However, the U.S. Supreme Court has construed “undue hardship” under the religious accommodation provisions of Title VII of the Civil Rights Act of 1964 differently, and less stringently for the employer, than the standard in cases raising claims under the Americans with Disabilities Act (ADA). See § 7.2.2, Title VII Religious Discrimination Claims, below. Until the Supreme Judicial Court’s 2008 decision in Brown, it was not clear whether Massachusetts would follow the Supreme Court’s interpretation of the federal statute’s none-too-weighty burden on employers. In fact, in Brown v. F.L. Roberts & Co., 419 F. Supp. 2d 7, 19 (D. Mass. 2006), the federal court precursor to the Supreme Judicial MCLE, Inc. | 2nd Edition 2020

7–7

§ 7.2

Employment Discrimination in Massachusetts

Court’s 2008 decision in the state law portion of the same claim, Judge Ponsor accurately foresaw that the Supreme Judicial Court would impose a heavier burden on employers under Massachusetts law in cases raising religious accommodation claims. In this type of religious discrimination case, the difference between employers’ obligations under state law—G.L. c. 151B, § 4(1A)—and under federal law—Title VII, 42 U.S.C. § 2000e(j)—is now significant. Analysis of the employer’s burden under the Massachusetts statute begins with the wording of the statute itself. (The federal statute is discussed below in § 7.2.2.) “Reasonable accommodation,” as used in G.L. c. 151B, § 4(1A), “shall mean such accommodation to an employee’s or prospective employee’s religious observance or practice as shall not cause undue hardship in the conduct of the employer’s business.” The statute then defines “undue hardship” to mean the inability of an employer to provide services which are required by and in compliance with all federal and state laws, including regulations or tariffs promulgated or required by any regulatory agency having jurisdiction over such services or where the health or safety of the public would be unduly compromised by the absence of such employee or employees, or where the employee’s presence is indispensable to the orderly transaction of business and his or her work cannot be performed by another employee of substantially similar qualifications during the period of absence, or where the employee’s presence is needed to alleviate an emergency situation. G.L. c. 151B, § 4(1A). The MBTA and Brown decisions by the Supreme Judicial Court examined the practical aspects of what an employer must and should do after an employee makes a legitimate request for a religious accommodation. In MBTA, an applicant for a bus-driver position told the MBTA he was a Seventh Day Adventist and his religion prohibited him from working on his Sabbath, which began at sunset on Friday and ended at sunset on Saturday. Requests to be excused from working on an employee’s Sabbath are the bread and butter of religious accommodation claims and are the claims employers should be best prepared to address. Nonetheless, the MBTA’s reaction to this employee’s request began on the wrong track and then quickly derailed. The MBTA had no written policy or other established practice concerning religious discrimination claims. It had only an informal practice of asking around among its legal department, hiring department, equal employment opportunity department, and human resources department about potential accommodations. As minimal as that policy was, in this case the MBTA failed even to make that effort. There was no evidence it had made any effort to determine whether it could, in fact, accommodate this employee’s request. The court rejected the MBTA’s argument that “merely looking into an accommodation, or consulting with an employee about his requested accommodation” would constitute an undue hardship. MBTA v. MCAD, 450 Mass. 327, 341 (2008). The court 7–8

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.2

observed that, if it were to accept the MBTA’s argument that requiring an employer to do anything was too great a burden, the statute would be eviscerated. MBTA v. MCAD, 450 Mass. at 341. The Supreme Judicial Court did not, however, go so far as to hold that an interactive process was required in every case. The Massachusetts Commission Against Discrimination (MCAD) had found that the failure to engage in any interactive process at all was, in and of itself, a violation of G.L. c. 151B, § 4(1A). MBTA v. MCAD, 450 Mass. at 341–42. The Supreme Judicial Court disagreed with the MCAD on that issue, finding that an employer’s failure to engage in the interactive process, standing alone, does not constitute a violation of G.L. c. 151B, § 4(1A). The court said: “If an employer can demonstrate, for example, that a certain accommodation imposes an undue hardship, it would not be reasonable to require an interactive process each time that accommodation is sought.” MBTA v. MCAD, 450 Mass. at 341. Instead of taking either of the positions urged by the parties, the court took a middle ground, holding that, while an employer does not have to look for a way to accommodate an employee’s request, its failure even to make such an effort places a burden on the employer to “conclusively demonstrate that all conceivable accommodations would impose an undue hardship on the course of its business.” MBTA v. MCAD, 450 Mass. at 342. The court then cautioned employers, stating: Such a demonstration, however, will often be difficult to make without the employer’s having engaged in an interactive process with the employee and having made a good faith effort to explore the options that come out of such a process. The MBTA has amply demonstrated this point in the case before us. MBTA v. MCAD, 450 Mass. at 342. The lesson that employers that fail to make the effort to accommodate religious requests do so at their own risk was emphasized several months later in Brown. In that case a Rastafarian employee of a Jiffy Lube franchise ran afoul of the franchise’s grooming policy, which prohibited facial hair and other “radical departures from conventional dress or personal grooming and hygiene standards.” The Rastafarian was relegated to work in the oil pit where he was hidden from customer contact. Judge Ponsor, in the federal court incarnation of the case, explained that he was compelled to follow federal precedent and, in doing so, was forced to dismiss the plaintiff’s Title VII claim, because under federal law, requiring an employer to make exceptions to grooming standards placed too great a burden on employers. He dismissed the state law claim without prejudice, however, setting the stage for the Supreme Judicial Court decision between the same parties two years later. Judge Ponsor was not subtle in warning how “grooming” standards could be misused if they were held inviolable under federal law, saying, It is impossible to make this ruling dismissing Plaintiff’s case here without a sense of uneasiness. If Cloutier’s language approving employer prerogatives regarding “public image” is MCLE, Inc. | 2nd Edition 2020

7–9

§ 7.2

Employment Discrimination in Massachusetts

read broadly, the implications for persons asserting claims for religious discrimination in the workplace may be grave. One has to wonder how often an employer will be inclined to cite this expansive language to terminate or restrict from customer contact, on image grounds, an employee wearing a yarmulke, a veil, or the mark on the forehead that denotes Ash Wednesday for many Catholics. More likely, and more ominously, considerations of “public image” might persuade an employer to tolerate the religious practices of predominant groups, while arguing “undue hardship” and “image” in forbidding practices that are less widespread or well known. Brown v. F.L. Roberts & Co., 419 F. Supp. 2d at 17. The Supreme Judicial Court echoed Judge Ponsor’s warning and held that an employer’s “mere contention” that any accommodation would be unreasonable need not be accepted. Brown v. F.L. Roberts & Co., 452 Mass. 674, 684 (2008). Rejecting the employer’s argument that any exemption from grooming standards constitutes an undue hardship as a matter of law, the court explained that claims that accommodations would impose undue burdens are a fact-based inquiry that must be based on evidence, not on speculation or mere assertions. Brown v. F.L. Roberts & Co., 452 Mass. at 686–87. “Blanket assertions that an employee’s ‘demand for relief’ is unreasonable is not enough.” Brown v. F.L. Roberts & Co., 452 Mass. at 683–84. The court added, “Requiring proof of undue hardship protects against the misuse of ‘public image,’ and is consistent with the requirement that the statute be construed liberally to accomplish its ends. G.L. c. 151B, § 9, first par.” Brown v. F.L. Roberts & Co., 452 Mass. at 685. Despite some of the nuances set forth by the Supreme Judicial Court in MBTA and Brown, the MCAD continues to require employers to engage in a “case-by-case analysis”—even in the face of a neutral employment policy—“to determine whether an exception” is required to accommodate an employee’s religious belief. See Suhrawardy v. Kelly Honda, 33 M.D.L.R. 189, at *193 (2011) (holding that the failure to adapt a general policy against wearing hats to allow employees to wear religious head coverings where there was no undue hardship was a failure to accommodate); Sellers v. Mass. Trial Court, 36 M.D.L.R. 207, 2014 Mass. Comm. Discrim. LEXIS 44, at *14–17 (2014) (trial court appropriately altered its neutrally applied uniform policy, within safety and security concern parameters, to permit the complainant to wear religious headgear). After MBTA and Brown, employers that fail to engage in an interactive process seeking to accommodate their employees’ religious needs do so at their own risk, at least in state court or at the MCAD. The Supreme Judicial Court signaled that employers’ simple speculation about what will harm their business will not be accepted and that employers will need proof of sincere efforts to meet their employees’ religious needs and proof, rather than supposition, that no accommodation was possible.

7–10

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.2

Perhaps the most significant teaching of Brown was the Supreme Judicial Court’s rejection of federal precedent in applying Massachusetts’ religious accommodation statute on the types of “undue hardship” that might excuse an employer from accommodating an employee’s request. Noting that federal precedent is persuasive and stating that “[w]e apply Federal case law that construes Federal antidiscrimination statutes in interpreting G.L. c. 151B,” the Supreme Judicial Court then stated that “such interpretations are not binding on a State court construing its own State statute.” Brown v. F.L. Roberts & Co., 452 Mass. at 680. The Supreme Judicial Court noted that, “unlike Title VII, G.L. c. 151B, § 4(1A), contains a list of specific examples of undue hardship that, although not exhaustive, provides guidance for the ‘types of accommodation that constitute excessive interference with an employer’s business affairs.’” Brown v. F.L. Roberts & Co., 452 Mass. at 684. On that basis, and noting that G.L. c. 151B was to be “applied liberally,” the Supreme Judicial Court distinguished or rejected federal court precedent holding that exemptions from grooming practices were an undue hardship as a matter of law. Brown v. F.L. Roberts & Co., 452 Mass. at 680–81. This is a significant consideration for employees and their attorneys. Before Pielech, Title VII arguably offered broader religious protection to employees than did Massachusetts law. After the 1997 revision of the state statute, the scope of employee religious beliefs protected by state and federal laws became the same in that there was no requirement that an employee prove that the employee’s sincerely held belief was required by a particular established religion or sect. Brown, however, shifted the balance, imposing greater burdens on employers under state law than under federal law.

§ 7.2.2

Title VII Religious Discrimination Claims

The 1997 revision to G.L. c. 151B, § 4(1A), which broadened religious accommodation protections to cover any sincerely held religious beliefs, brought the state statute more in line with Title VII, 42 U.S.C. § 2000e(j), which states: “The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). Similarly, Section 2000e-2(a)(1) makes it an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s . . . religion.” Although the language of G.L. c. 151B, § 4(A) is now similar to that of Title VII, it remains to be seen to what extent the U.S. Supreme Court’s interpretation of the federal statute will be followed by the Massachusetts courts in interpreting the state statute with regard to standards and burdens for proving religious discrimination, though obviously, as explained above, the Supreme Judicial Court has departed from federal precedent with regard to the question of undue hardship. Brown v. F.L. Roberts & Co., 452 Mass. 674, 685 (2008). The leading case construing Title VII in this regard is Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). In that case, an MCLE, Inc. | 2nd Edition 2020

7–11

§ 7.2

Employment Discrimination in Massachusetts

airline mechanic who was fired for refusing to work on Saturday, his Sabbath, claimed he had been discriminated against because of his religion. The Supreme Court found for the airline, holding that it did not have to violate its seniority system to accommodate his religious needs and that allowing Hardison to be exempt from work on Saturdays would impose an undue hardship on the airline, which required employees on a twenty-four-hour, 365-day basis. The Court created a low threshold for undue hardship, saying, “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” Trans World Airlines, Inc. v. Hardison, 432 U.S. at 84. The Supreme Court took another look at “undue hardship” in Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986). There, a schoolteacher claimed that his religion required him to abstain from work on six school days, but the union contract permitted only three religious holidays. The Court held that, once an employer is found to have made a “reasonable accommodation” to an employee’s religious needs, the inquiry ends and there need be no examination of “undue hardship.” It is only when an employer takes the position that it cannot accommodate the employee’s needs that the court should determine whether the employee’s demands place an undue hardship on the employer. The case was remanded for a determination of whether allowing three religious holidays was a reasonable accommodation. A few later federal Appeals Court decisions illustrate the limits of employer obligations under Title VII. In Weber v. Roadway Express, Inc., 199 F.3d 270 (5th Cir. 2000), a trucker who was a Jehovah’s Witness was discharged because his religious beliefs prevented him from making long-haul overnight trips with women truckers. The trucker claimed that his employer’s refusal to accommodate his religious belief (by skipping over him in scheduling when he would be paired with a woman driver) violated Title VII because the employer would not be required to endure an undue hardship or accept more than a de minimis cost. The employer, on the other hand, argued that Title VII does not require it to rearrange its schedule and force employees to “trade shifts” to accommodate an employee’s religious practices. The Court of Appeals for the Fifth Circuit agreed with the employer that skipping over the trucker constituted more than de minimis expense because it could unduly burden his coworkers. The court stated, for example, that the “run” the trucker passed up might lead his substitute to accept a shorter run than the substitute might otherwise, providing less compensation to the substitute. Further, the trucker’s substitute might also receive less rest and time off between runs than the substitute might otherwise. Citing Hardison, the court stated that the “mere possibility of an adverse impact on coworkers as a result of ‘skipping over’ is sufficient to constitute an undue hardship.” Weber v. Roadway Express, Inc., 199 F.3d at 274. In Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470 (7th Cir. 2001), an employee, as an expression of her Christian Methodist Episcopal faith, told people to “have a blessed day” in signing off on correspondence and as a way to end telephone conversations. After being promoted to the position of office coordinator, the employee had regular contact with the employer’s largest customer. A contact for that customer complained that the employee’s use of the “have a blessed day” phrase was “unacceptable” 7–12

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.2

and “must stop.” In response, the employer prohibited the employee from using the phrase with that customer. The employee brought suit, claiming that the employer violated Title VII by failing to accommodate her religious practice. The District Court found that the employee’s religious practice (which the court defined as the “sporadic” use of the “have a blessed day” phrase) was accommodated by permitting the employee to use the phrase with coworkers and most customers. The Court of Appeals for the Seventh Circuit affirmed. Noting that the employee did not use the phrase all the time, did not make a religious commitment to use the phrase all the time, and was not required by her religion to use the phrase all the time, the Court of Appeals concluded that “an accommodation that allows [the employee] to use the phrase with some people but not with everyone” was reasonable and respected the wishes of at least one customer who objected to the use of the phrase. Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d at 476. In Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004), an employee at a Costco store in West Springfield was told to remove her eyebrow piercing when Costco revised its dress code to prohibit all facial jewelry other than earrings. The employee refused, stating that she was a member of the Church of Body Modification (CBM) and that eyebrow piercing was part of her religion. The CBM, established in 1999, has about 1,000 members who participate in such practices as piercing, tattooing, cutting, and body manipulation. The CBM encourages members to be “confident role models in learning, teaching, and displaying body modification.” Cloutier v. Costco Wholesale Corp., 390 F.3d at 129. After reviewing information provided by the employee concerning the CBM, Costco management told her that she had to either remove the piercing or go home. The employee left, and two weeks later she was discharged for her unexcused absences resulting from noncompliance with the dress code. The employee asserted that her insistence on displaying all of her facial jewelry at all times is the result of a sincerely held religious belief. The Court of Appeals for the First Circuit, however, concluded that it did not have to delve into the “thorny issue” of whether the employee’s insistence on displaying her facial jewelry at all times was a sincerely held religious belief. The court found dispositive that the only accommodation the employee considered reasonable, a blanket exemption from the no-facialjewelry policy, would impose an undue hardship on Costco. In so doing, the First Circuit noted that “[c]ourts have long recognized the importance of personal appearance regulations, even in the face of Title VII challenges.” Cloutier v. Costco Wholesale Corp., 390 F.3d at 135. The court stated that Costco had “made a determination that facial piercings, aside from earrings, detract from the ‘neat, clean and professional image’ that it aims to cultivate” and that such a business determination was “within its discretion.” Cloutier v. Costco Wholesale Corp., 390 F.3d at 136. The First Circuit affirmed the District Court’s decision in Cloutier, although on different grounds. The District Court had found that the employer’s offer to allow the employee to continue working if she covered her piercings with a bandage constituted a reasonable accommodation. The First Circuit noted that there were disputed facts concerning this proposal and, instead, found that the employer’s burden under MCLE, Inc. | 2nd Edition 2020

7–13

§ 7.2

Employment Discrimination in Massachusetts

Title VII was virtually ethereal. “An accommodation constitutes an ‘undue hardship’ if it would impose more than a de minimis cost on the employer,” the court said. Cloutier v. Costco Wholesale Corp., 390 F.3d at 134. Requiring an exception from Costco’s grooming policy, the court said, would constitute just such an unreasonable hardship. Given these decisions, it is no surprise that requiring an employer to pay an additional individual for the same work in order to accommodate an employee’s religious request has been held to constitute an undue hardship for Title VII purposes. Marchant v. Tsickritzis, 506 F. Supp. 2d 63, 70 (D. Mass. 2007) (holding that, where a collective bargaining agreement would require the employer to pay both the employee seeking time off for religious reasons, as well as the employee’s replacement, such an accommodation imposed an undue hardship). The comparison between the First Circuit’s treatment of Costco’s grooming policy in Cloutier and the Supreme Judicial Court’s handling of Jiffy Lube’s similar policy in Brown is an example of the subjective nature of appellate adjudication. The federal court accepted without question that employers’ decisions about how to manage their businesses are inviolable. “It is axiomatic that, for better or for worse, employees reflect on their employers,” the First Circuit said. Cloutier v. Costco Wholesale Corp., 390 F.3d at 135. What was “axiomatic” to the federal court was more difficult to swallow for the Supreme Judicial Court. The Supreme Judicial Court not only quoted from but added emphasis to the then recently revised religious discrimination section in the EEOC Compliance Manual, which cautioned that [w]hile there may be circumstances in which allowing a particular exception to an employer’s dress and grooming policy would pose an undue hardship, an employer’s reliance on the broad rubric of “image” to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called “customer preference”) in violation of Title VII. Brown v. F.L. Roberts & Co., 452 Mass. at 686. Two recent cases address the requirement that a Title VII claimant inform the employer that the employee cannot comply with employer requirements for religious reasons. In Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444 (7th Cir. 2013), the plaintiff submitted a request for leave to participate in a “funeral ceremony,” a “funeral rite,” and animal sacrifice, stating further that the participation was “compulsory” and that his absence would have spiritual consequences in the afterlife for him and his family members. The Seventh Circuit held that the plaintiff gave sufficient notice of the religious nature of his request for leave through his references to spiritual activities and the potential consequences in the afterlife. In EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (10th Cir. 2013), the Tenth Circuit held that “a plaintiff ordinarily must establish that he or she initially informed the employer that the plaintiff adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice, due to a conflict 7–14

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.2

between the practice and the employer’s neutral work rule.” The Tenth Circuit reversed the District Court’s ruling because it found conflicting evidence on both sides regarding whether the employer needed to initiate an interactive dialog with the employee about the possible conflict of its work policy prohibiting sales associates from wearing black clothing and “caps” and the job candidate’s religious practice of wearing a black hijab. The U.S. Supreme Court reversed the Tenth Circuit’s holding in an 8-to-1 decision. EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 1 (2015). In Justice Scalia’s majority opinion, the Court rejected the Tenth Circuit’s holding that an employer must have “actual knowledge of a conflict between an applicant’s religious practice and a work rule.” Instead, the Court noted that Title VII’s “intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge.” The Court also firmly rejected Abercrombie’s argument that it was merely applying a neutral policy, noting that Title VII goes beyond mere neutrality. The Court observed that policies that might otherwise be neutral must “give way to the need for an accommodation” of an applicant’s religious practices. The Court then set forth a straightforward rule for disparate treatment claims grounded in a failure to accommodate a religious practice: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” The Court reiterated that Title VII’s disparate treatment section required only proof that the employer’s desire to avoid the prospective accommodation need only be a “motivating factor” in the decision and need not meet the more rigorous “but-for causation” test applicable in other circumstances. Justice Alito concurred in the judgment, arguing that while he believed Title VII does, in fact, contain a requirement that the employer have some knowledge of the prospective employee’s need for a religious accommodation, the employer here had sufficient knowledge of the prospective employee’s religious need to wear a head scarf to survive summary judgment. Justice Alito did, however, explicitly reject the Tenth Circuit’s holding that an employee or a prospective employee must put the employer on notice. Justice Thomas concurred in part and dissented in part, arguing that Abercrombie could not be held liable for discrimination for simply applying a neutral appearance policy without regard to any employee’s religion. Abercrombie is, undoubtedly, a proemployee ruling. Clearly, employers can no longer assume that, because an employee or a prospective employee has not raised an issue of, or need for, religious accommodation, no such accommodation is necessary. Instead, an employer likely needs to be more proactive in preparing its supervisors for situations where religious accommodations might be needed and, further, cannot simply rely on facially neutral policies for protection.

§ 7.2.3

EEOC Regulations

Guidance concerning the employer’s obligation to accommodate an employee’s religious needs may be found in the Equal Employment Opportunity Commission (EEOC) MCLE, Inc. | 2nd Edition 2020

7–15

§ 7.2

Employment Discrimination in Massachusetts

regulations concerning religious discrimination, 29 C.F.R. § 1605.2. Especially now that the Massachusetts statute has been amended so that it is similar to Title VII, Massachusetts state and federal courts can be expected to give even greater weight to the EEOC regulations. Indeed, as noted above, in Brown the Supreme Judicial Court quoted the EEOC Compliance Manual to support the court’s interpretation of G.L. c. 151B. In its regulations, the EEOC offers three suggestions on how an employer can acceptably accommodate an employee’s demand for time off for religious purposes: “voluntary substitutes and swaps,” “flexible scheduling,” and “lateral transfer and change of job assignments.” 29 C.F.R. § 1605.2(d). These types of accommodations have been held sufficient in case law as well. See Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 12–13 (1st Cir. 2012) (holding that a series of attempted accommodations, including offers of lateral transfers, even at less compensation, as well as offering the employee the latitude to seek voluntary swaps with other workers, was sufficient to satisfy the employer’s Title VII obligations, and collecting cases). The EEOC also offers guidance on what will be considered an “undue hardship” for an employer. While acknowledging the rather low standard established in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the EEOC offers its own interpretation of the concept of “de minimis cost” as follows: The Commission will determine what constitutes “more than a de minimis cost” with due regard given to the identifiable cost in relation to the size and operating cost of the employer, and the number of individuals who will in fact need a particular accommodation. In general, the Commission interprets this phrase as it was used in the Hardison decision to mean that costs similar to the regular payment of premium wages of substitutes . . . would constitute undue hardship. However, the Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing a reasonable accommodation. Further, the Commission will presume that generally, the payment of administrative costs necessary for providing the accommodation will not constitute more than a de minimis cost. Administrative costs, for example, include those costs involved in rearranging schedules and recording substitutions for payroll purposes. 29 C.F.R. § 1605.2(e)(1). On July 22, 2008, the EEOC issued a revised section on religious discrimination (Section 12) as part of the EEOC’s Compliance Manual. This section is a useful and extensively footnoted resource for employers, employees, practitioners, and EEOC enforcement staff on Title VII’s prohibition against religious discrimination. The EEOC’s guidelines on religious discrimination suggest a greater burden for employers that assert the undue hardship defense. According to the guidelines, the 7–16

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.2

“Commission will determine what constitutes more than a de minimis cost with due regard given to the identifiable cost in relation to the size and operating cost of the employer, and the number of individuals who will in fact need a particular accommodation.” 29 C.F.R. § 1605.2(e). The EEOC said that it interprets the phrase “more than a de minimis cost” as it was used in the Hardison decision to mean “that costs similar to the regular payment of premium wages of substitutes . . . would constitute undue hardship.” The EEOC said that it “will presume that the infrequent payment of premium wages for a substitute or payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing a reasonable accommodation.” 29 C.F.R. § 1605.2(e)(1) (emphasis added). The EEOC said further that it “will presume that, generally, the payment of administrative costs necessary for providing the accommodation [e.g., costs involved in rearranging schedules and recording substitutions for payroll purposes] will not constitute more than a de minimis cost.” 29 C.F.R. § 1605.2(e)(1).

§ 7.2.4

Summary of Statutory Standards for Religious Discrimination in Employment

Claims of discrimination on the basis of religious belief may be brought under G.L. c. 151B, § 4(1A) and 42 U.S.C. § 2000(e) (Title VII). Keep in mind, of course, the mandatory filing requirements for any discrimination claim with the MCAD and the EEOC, together with their short filing deadlines and minimum number of employees requirements. Practice Note For individuals whose employment relationships fall outside the scope of G.L. c. 151B (such as where the employer has fewer than six employees), the Massachusetts Equal Rights Act, G.L. c. 93, §§ 102–103 provides protection against religious discrimination in the workplace. See the practice note in § 7.2, above.

G.L. c. 151B, § 4(1A) Advance Notice Not less than 10 days in advance of each Requirement absence.

42 U.S.C. § 2000(e) None.

Obligation to Make Up Lost Time

Any such absence from work shall, wher- None. ever practicable in the judgment of the employer, be made up by an equivalent amount of time at some other mutually convenient time.

Definition of “Religion”

Any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religious institution or organization.

MCLE, Inc. | 2nd Edition 2020

All aspects of religious observance and practice, as well as belief.

7–17

§ 7.2

Employment Discrimination in Massachusetts

G.L. c. 151B, § 4(1A)

42 U.S.C. § 2000(e)

Employee’s Right

No employee shall be required to remain at his place of employment during any portion of a day that, as a requirement of his religion, he observes as his Sabbath or other holy day, including a reasonable time prior and subsequent thereto for travel between his place of employment and his home.

Employer may not refuse to hire, discharge or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s . . . religion.

Employer’s Defense

Unable to make reasonable accommodation to the religious needs of such individual.

Unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

Applicability

Employers with six or more employees.

Employers with fifteen or more employees.

Filing Deadline

300 days (with MCAD)

300 days (with EEOC)

§ 7.3

TYPES OF CLAIMS

Religious discrimination claims typically allege disparate treatment based on creed or religion, failure to make reasonable accommodation, or both. Many cases arise from employers’ refusal to give employees time off for religious observances. See, e.g., N.Y. & Mass. Motor Serv., Inc. v. MCAD, 401 Mass. 566 (1988). Employees’ demands range from specific religious holidays or specific days of the week to lengthy periods of time. For example, in New York & Massachusetts Motor Service, Inc., the employee requested a week off “in order to observe holy days of his religious institution, the Worldwide Church of God.” N.Y. & Mass. Motor Serv., Inc. v. MCAD, 401 Mass. at 567. The plaintiff prevailed in that case. In Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761 (1986), however, the employee was fired after she took an unauthorized two-month leave to do missionary work abroad. The employer prevailed. 7–18

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.4

§ 7.4

UNDUE HARDSHIP AND OTHER DEFENSES/ EXCEPTIONS

As noted above, the employer has the burden of proving that an accommodation will cause undue hardship in the conduct of the employer’s business. General Laws Chapter 151B, itself, gives four types of undue hardship: • “the inability of an employer to provide services which are required by and in compliance with all federal and state laws”; • “where the health or safety of the public would be unduly compromised by the absence of such employee or employees”; • “where the employee’s presence is indispensable to the orderly transaction of business and his or her work cannot be performed by another employee of substantially similar qualifications during the period of absence”; or • “where the employee’s presence is needed to alleviate an emergency situation.” G.L. c. 151B, § 4(1A). However, these four types of undue hardship are not exclusive and the statute gives no further guidance on the parameters of the defense. In New York & Massachusetts Motor Service, Inc. v. MCAD, 401 Mass. 566 (1988), the Supreme Judicial Court held that in order to prove undue hardship an employer must show that the requested accommodation will cause some financial loss or be disruptive of its business. The court noted that the employer “could show undue hardship if it could establish that [the plaintiff’s] absence would cause staffing levels to fall below the minimum level needed to operate the business.” N.Y. & Mass. Motor Serv., Inc. v. MCAD, 401 Mass. at 578. Finding no such disruption, the Supreme Judicial Court ruled in favor of the employee. On the other hand, the U.S. Supreme Court has held that the federal statute cannot be interpreted to require an employer to bear more than a “de minimis” burden. In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977), the employer contended that accommodation would be an undue hardship because it would have impaired the functioning of the work area, and having another employee do the plaintiff’s work would have undermanned another work area or required the employer to pay overtime wages. The Supreme Court agreed with the employer, holding that “[t]o require [the employer] to bear more than a de minimis cost in order to give [the employee] Saturdays off is an undue hardship.” Trans World Airlines, Inc. v. Hardison, 432 U.S. at 84. In Robinson v. Children’s Hospital Boston, 2016 U.S. Dist. LEXIS 46024 (D. Mass. Apr. 5, 2016), the U.S. District Court considered whether an employer’s safety concerns constituted an “undue hardship,” thereby justifying the denial of an accommodation of an employee’s religious beliefs. In Robinson, the court addressed the question whether Title VII or G.L. c. 151B required Children’s Hospital to accommodate a Muslim employee’s request to be exempt from the hospital’s flu vaccination policy for employees who have patient contact. The hospital had taken a number of steps to MCLE, Inc. | 2nd Edition 2020

7–19

§ 7.4

Employment Discrimination in Massachusetts

accommodate the plaintiff’s request, including offering her a flu vaccine with no pork byproduct (which the plaintiff declined); encouraging her to submit medical documentation to see if it supported a medical exemption (it did not); and assisting her in applying for a job at the hospital that did not require patient contact (the plaintiff did not get the job). In its undue hardship analysis, the District Court recognized that, while the Massachusetts undue hardship standard is “‘notably different’” than that applicable under Title VII, allowing for slightly broader religious protection than that allowed by federal law, “‘the two share substantial common ground[.]’” Robinson v. Children’s Hosp. Bos., 2016 U.S. Dist. LEXIS 46024 at n.7 (citations omitted). Referencing Chapter 151B’s specific list of hardships, which—as described above—includes a compromise to the health and safety of the public, the District Court held that both the plaintiff’s Title VII and Chapter 151B claims failed due to the potential threat that would be posed to the hospital’s very sick patients with whom the plaintiff had contact were it to accommodate her request. The question of whether exempting an employee from a dress code (based on religious beliefs) constitutes undue hardship under G.L. c. 151B was addressed by the Court of Appeals for the First Circuit in Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004). Stating that Massachusetts courts had not specifically considered the question, the First Circuit looked both to the Supreme Judicial Court’s instruction in New York & Massachusetts Motor Service, Inc. v. MCAD, 401 Mass. 566 (1988) and to its own undue hardship analysis under Title VII. The court concluded that the employee’s insistence on a wholesale exemption from Costco’s no-facial-jewelry policy (so she could keep her eyebrow piercing visible in accordance with her asserted religious beliefs) “precluded Costco from using its managerial discretion to search for a reasonable accommodation.” Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 138 (1st Cir. 2004). According to the court, exempting the employee from the dress code would have imposed more than a de minimis burden on Costco, and the employee’s refusal to accept anything less meant that Costco could not offer a reasonable accommodation without also incurring an undue hardship. Thus, the employee’s religious discrimination claims failed under both Title VII and G.L. c. 151B. As noted above, however, according to the MCAD, the employer must implement an individualized inquiry into the situation to seek to come up with an accommodation, if possible, that serves both the employer’s legitimate interests and the employee’s religious needs. Suhrawardy v. Kelly Honda, 33 M.D.L.R. 189, at *193 (2011) (blanket refusal to adjust “no hat” policy for religious headgear was unlawful); Sellers v. Mass. Trial Court, 36 M.D.L.R. 207, 2014 Mass. Comm. Discrim. LEXIS 44, at *14–17 (2014) (safety and security concerns may inform the nature of a reasonable accommodation, but the accommodation must still be made unless it constitutes an undue hardship). In addition, the Supreme Judicial Court’s decision in Brown v. F.L. Roberts & Co., 452 Mass. 674 (2008) cast serious doubt on the First Circuit’s interpretation of G.L. c. 151B, § 4(1A) in Cloutier. Brown, together with the MBTA decision, further suggests that, in all but the most extreme circumstances, the employer 7–20

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.4

must give careful consideration to the particulars of an employee’s request for religious accommodation and the burden it would impose on the employer’s operations.

§ 7.4.1

Religious Organization Exception

Under Title VII, religious organizations are permitted to give employment preference to members of their own religion. The exception applies only to those institutions whose “purpose and character are primarily religious.” Factors considered include whether its articles state a religious purpose, whether its day-to-day operations are religious, whether it is not-for-profit, and whether it is affiliated with, or supported by, a church or other religious organization. Under G.L. c. 151B, § 1(5), a religious institution is permitted to give preference to “members of the same religion” as the institution in employment matters and to take any employment action that is calculated to promote its religious principles. The statute states that it shall not be construed to bar any religious or denominational institutions or organizations, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, and which limits membership, enrollment, admission or participation to members of that religion, from giving preference in hiring or employment to members of the same religion. G.L. c. 151B, § 1(5). In Piatti v. Jewish Community Centers of Greater Boston, 1 Mass. L. Rptr. 383 (Super. Ct. 1993) (Fremont-Smith, J.), a Superior Court judge ruled that Judaism is a “bona fide employment qualification (BFOQ)” for the position of youth director at the Jewish Community Centers of Greater Boston, even though the centers do not restrict programs to members of the Jewish religion and therefore cannot invoke G.L. c. 151B, § 1(5). Quoting Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 617–18 (1983) (a race case), the court stated: A BFOQ is an affirmative defense. The burden of proving the defense is on the employer. The standard is an objective one, and . . . [i]n order to invoke the BFOQ successfully, the employer must show that it has a “factual basis for believing that all or substantially all [members of the excluded category] would be unable to perform safely and efficiently the duties of the job involved.” Piatti v. Jewish Cmty. Ctrs. of Greater Bos., 1 Mass. L. Rptr. at 385. The court concluded that the employer met its burden of proof by showing that “a personal belief in, and practice of, Judaism, [was] needed” in order for the plaintiff to perform the duties of her job. Piatti v. Jewish Cmty. Ctrs. of Greater Bos., 1 Mass. L. Rptr. at 386. MCLE, Inc. | 2nd Edition 2020

7–21

§ 7.4

§ 7.4.2

Employment Discrimination in Massachusetts

Ministerial Exception

The “ministerial exception” is grounded in the First Amendment principle that government regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible entanglement with church authority. Generally, the exception applies only to employees who perform essentially religious functions—those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious rituals, worship, or instruction. While lower federal courts had applied the exception for some time, it was not until the decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012), that the Supreme Court adopted the ministerial exception. In Hosanna-Tabor, the U.S. Supreme Court explained: The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. at 706. Based on these principles, the Court confirmed that there is a “ministerial exception” that precludes the application of antidiscrimination statutes to certain claims “concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. at 705. In particular, because the First Amendment protects the choices of religious groups as to “who will preach their beliefs, teach their faith, and carry out their mission,” the Hosanna-Tabor Court concluded that the ministerial exception protects a religious organization from a Title VII claim brought by one of its “ministers” challenging the organization’s decision to terminate that person’s employment. HosannaTabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. at 710. In Temple Emanuel of Newton v. MCAD, 463 Mass. 472 (2010), the Supreme Judicial Court applied this reasoning to an age discrimination claim brought under G.L. c. 151B by a religious school teacher who was not rehired, holding that the ministerial exception applies under these circumstances to protect a religious institution from liability under G.L. c. 151B. Notably, the Supreme Judicial Court held that the First Amendment concerns embodied in the ministerial exception did not bar the MCAD from investigating the discrimination claim. Temple Emanuel of Newton v. MCAD, 463 Mass. at 476–78. Instead, the court held that the ministerial exception is an affirmative defense to an otherwise cognizable claim. Temple Emanuel of Newton v. MCAD, 463 Mass. at 478. The court went on to state that “the commission does not violate the First Amendment merely by investigating the circumstances of a minister’s denial of reemployment 7–22

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.4

in response to a claim of discrimination.” Temple Emanuel of Newton v. MCAD, 463 Mass. at 481. The Supreme Judicial Court interpreted Hosanna-Tabor to “declare[] that trial courts (and, implicitly, administrative agencies that adjudicate discrimination complaints) have the authority to consider discrimination claims and to decide whether the claim can proceed or is barred by the ministerial exception.” Temple Emanuel of Newton v. MCAD, 463 Mass. at 482. Acknowledging that it was somewhat unusual not to remand the matter, the court nevertheless turned to the question of whether the teacher in question qualified as a minister. Temple Emanuel of Newton v. MCAD, 463 Mass. at 483–84. The teacher was not a rabbi and there was no evidence in the record concerning her religious training. However, the record was clear that the teacher “taught religious subjects at a school that functioned solely as a religious school, whose mission was to teach Jewish children about Jewish learning, language, history, traditions, and prayer.” Temple Emanuel of Newton v. MCAD, 463 Mass. at 486. In deciding whether the ministerial exception applied, the Supreme Judicial Court said, The fundamental question is whether it would infringe the free exercise of religion or cause excessive entanglement between the State and a religious group if a court were to order a religious group to hire or retain a religious teacher that the religious group did not want to employ, or to order damages for refusing to do so. Temple Emanuel of Newton v. MCAD, 463 Mass. at 486. The court concluded that it would. The Supreme Judicial Court opined that “[w]here a school’s sole mission is to serve as a religious school, the State should not intrude on a religious group’s decision as to who should (and should not) teach its religion to the children of its members,” and that the ministerial exception applied to the school’s employment decision “regardless whether a religious teacher is called a minister or holds any title of clergy.” Temple Emanuel of Newton v. MCAD, 463 Mass. at 486; cf. Barrett v. Fontbonne Acad., 2015 Mass. Super. LEXIS 149, at *30–31 (Super. Ct. 2015) (where a gay food service employee’s job at a Catholic school would not put him in the position of carrying out the school’s religious mission, the ministerial exception does not insulate the school from liability under G.L. c. 151B.). The lesson of Temple Emanuel, then, is that, while the ministerial exception will indeed bar a discrimination claim brought by a “minister” against a religious employer, it is not simply a matter of the employer invoking the exception. Instead, the employer must raise and support the application of the ministerial exception in order to avoid potential liability under G.L. c. 151B. It is a valid exercise of the MCAD’s authority to investigate the claim to determine whether the ministerial exception actually applies. When considering the application of the ministerial exception, practitioners should be mindful, in addition, that the exception is not absolute. In Hosanna-Tabor, for example, the Supreme Court recognized that “government regulation of . . . outward MCLE, Inc. | 2nd Edition 2020

7–23

§ 7.4

Employment Discrimination in Massachusetts

physical acts” is far different from “government interference with an internal church decision that affects the faith and mission of the church itself. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. at 644. As such, the Court explained that the First Amendment “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” even when the conduct at issue is motivated by religious belief. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. at 644 (quoting Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (upholding denial of employment benefits on grounds that the applicants’ conduct had violated the state’s criminal laws, notwithstanding the applicants’ undisputed claim that the conduct in question—the ingestion of peyote—was sacramental in nature, and part of a religious observance at their church)). The Hosanna-Tabor Court was careful to explain that its holding was limited, applying only to an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. at 710. Indeed, in Employment Division, the Supreme Court observed: “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. at 879. Thus, while federal and Massachusetts courts have consistently declined to secondguess a religious organization’s decisions related to matters of “doctrine, canon law, polity, discipline, and ministerial relationships,” Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 579 (2002), this does not mean that the First Amendment exempts religious institutions or their ministers from compliance with laws of general applicability that do not intrude into matters of religious belief—particularly where “outward conduct” is at issue. The Supreme Judicial Court has made clear, for example, that there is no First Amendment bar to the prosecution of a priest for the sexual abuse of students attending a Jesuit high school, or to the enforcement of a subpoena in connection with that prosecution. Soc’y of Jesus of New Eng. v. Commonwealth, 441 Mass. 662, 667 (2004). Nor does the First Amendment preclude civil actions against the religious institutions or their clergy for conduct that violates state statutory or common law, including claims of assault and battery, Hiles v. Episcopal Diocese of Mass., 437 Mass. 505, 519 (2002); claims of defamation outside the context of a church disciplinary proceeding, Callahan v. First Congregational Church of Haverhill, 441 Mass. 669, 716–17 (2004); and claims of invasion of privacy, Alberts v. Devine, 395 Mass. 59, 72–75 (1985). There are no reported cases in Massachusetts that analyze the application of the ministerial exception to claims of sexual harassment under G.L. c. 151B, Title VII, or 7–24

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.4

both. Cases in other jurisdictions have rejected the notion that the ministerial exception would bar such a claim. In Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir. 1999), the first and most widely cited case addressing this issue, a novice of the Society of Jesus (Jesuits) sued the Jesuit order and his superiors, alleging that he had suffered from sexual harassment in violation of Title VII and state law. Reversing the District Court’s dismissal of the plaintiff’s claim, the Ninth Circuit held that the ministerial exception did not bar the plaintiff’s claim. This was so, according to the Ninth Circuit, because the challenged conduct— showing the plaintiff pornographic material, making unwelcome sexual advances, and engaging the plaintiff in unwelcome sexual discussions—had nothing to do with the religious organization’s “constitutionally protected prerogative to choose its ministers.” Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d at 944. Nor was the conduct at issue of the sort that the religious organization “embrace[d] . . . as a constitutionally protected religious practice.” Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d at 944. On the contrary, the defendant in Bollard affirmatively disavowed sexual harassment as “inconsistent with its values and beliefs.” Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d at 947. Under these circumstances, the court saw “no danger that, by allowing [the] suit to proceed, we will thrust the secular courts into the constitutionally untenable position of passing judgment on questions of religious faith or doctrine.” Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d at 947. Courts in other jurisdictions have followed the Ninth Circuit’s reasoning in Bollard and have held that the ministerial exception does not apply to sexual harassment claims. See, e.g., Rojas v. Roman Catholic Diocese of Rochester, 557 F. Supp. 2d 387, 399 (W.D.N.Y. 2008); Dolquist v. Heartland Presbytery, 342 F. Supp. 2d 996, 1007 (D. Kan. 2004); McKelvey v. Pierce, 800 A.2d 840, 857–58 (N.J. 2002); see also Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 953 (9th Cir. 2004). While the Supreme Judicial Court has not had the occasion to address the issue directly, it has cited Bollard with approval in at least two cases in which it considered the scope of the ministerial exception: • In Society of Jesus of New England v. Commonwealth, 441 Mass. 662 (2004), the Supreme Judicial Court relied on Bollard’s reasoning when it rejected the application of the ministerial exception and allowed a sexual assault prosecution to proceed, along with the enforcement of a subpoena issued in connection with that prosecution. Soc’y of Jesus of New Eng. v. Commonwealth, 441 Mass. at 668. • In Williams v. Episcopal Diocese of Massachusetts, 436 Mass. 574 (2002), the Supreme Judicial Court applied the ministerial exception to uphold the dismissal of a gender discrimination suit brought by an Episcopal priest against the Episcopal Diocese and its bishop, concluding that the plaintiff’s allegations touched on “matters of doctrine, canon law, polity, discipline, and ministerial relationships,” matters in which the courts could not intrude. At the same time, however, the court was careful to note that “[t]here is nothing in the record to support an inference of conduct that could properly be characterized as sexual harassment for purposes of G.L. c. 151B,” and that, accordingly, the case did MCLE, Inc. | 2nd Edition 2020

7–25

§ 7.4

Employment Discrimination in Massachusetts

not present the question, considered in Bollard, of whether the First Amendment provides “a complete barrier to a minister’s complaints of conduct by church superiors that properly could be characterized as sexual harassment in the context of an employment discrimination claim.” Williams v. Episcopal Diocese of Mass., 436 Mass. at 583. In so noting, the court suggested that its analysis would be different if the case presented a challenge to conduct that constituted sexual harassment under G.L. c. 151B.

§ 7.5

STRATEGY OPTIONS

§ 7.5.1

Plaintiffs

(a)

Advance Strategies

If the employee contacts an attorney in advance of the request for time off for a religious observance, the employee should strictly comply with G.L. c. 151B, § 4(1A)’s statutory requirement of ten days’ advance notice. Further, the employee should be counseled to propose some form of reasonable accommodation the employer can make, such as arranging in advance to swap work schedules with another employee or arranging to make up for the lost time. The employee should be advised that the employer is not required to pay the employee for the lost time, so it might be better to use vacation or personal time, rather than making a demand under the religious discrimination statute. Finally, if the employee anticipates resistance from the employer, the attorney should be prepared, well in advance of the ten-day notice period, to inform the employer of the requirements of the law.

(b)

After the Fact Strategies

If the employee contacts the attorney after the fact, after being turned down for time off or after being fired or disciplined for taking time off for a religious observance, the attorney should ensure that the employee complied with the statutory notice requirements before taking action against the employer. Unless the employee has been fired, damages for a statutory violation may be small—such as a day’s pay and some emotional distress damages. On the other hand, the MCAD has awarded one of its highest emotional distress awards—$300,000—for a violation of an employee’s religious rights in which the out-of-pocket damages were just $1,998. In Said v. Northeast Security, Lawyers Weekly No. 22-088–96, MCAD Commissioner Charles Walker awarded those emotional distress damages to a Muslim who was harassed by a fellow employee because of his religion. One of the attorney’s first tasks under these circumstances is to determine what relief the employee seeks. An employee who still has their job may only want to make sure that they are allowed time off for the next religious holiday. In those circumstances, an MCAD complaint or a lawsuit may be counterproductive to achieving that goal, and gentle negotiation, perhaps with a prod from the employer’s attorney, may solve the problem in the future. However, if the employee has lost their job, litigation may be the only course. In that event, make sure that the statute has been complied with, 7–26

2nd Edition 2020 | MCLE, Inc.

Religious Discrimination

§ 7.5

keep the 300-day statute of limitations in mind, and file with both the MCAD and the EEOC. Clearly, however, the protections of G.L. c. 151B, § 4(1A) exceed those of Title VII, especially with regard to what undue burdens or hardships will excuse an employer from making a religious accommodation for an employee. With that in mind, litigating under G.L. c. 151B, § 4(1A) in a state forum will be significantly preferable to litigating under Title VII in a federal forum.

§ 7.5.2 (a)

Defendants Checklist of Employer Best Practices

The following are best practices that employers should follow: • Establish written and objective criteria for evaluating candidates for hire or promotion and apply the criteria consistently. • Establish questions for job interviews that are asked of all applicants for a particular job or category of job and that directly relate to the position. • Have a published and consistently applied antiharassment policy that covers religious discrimination. • Train managers and supervisors to recognize religious discrimination and accommodation issues and to know how to respond. • Train managers and supervisors so they are aware of their antiretaliation obligations. • Individually assess religious accommodation requests and avoid assumptions or stereotypes about what constitutes a religious belief or practice or what type of accommodation is appropriate. • Confer with the candidate or the employee making the accommodation request to the extent needed to share information about the person’s needs and available accommodation options.

(b)

Employer Defenses

Employers should consider whether the following defenses apply to the situation at hand: • The accommodation request is not based on any sincerely held religious belief. • The employer did not have direct (or indirect) knowledge that a religious accommodation was required. • The accommodation requested could not be met without undue hardship. • The religious organization exception applies. • The ministerial exception applies. MCLE and the authors thank Alexandra Shaw, Esq., for her previous contributions to this chapter. MCLE, Inc. | 2nd Edition 2020

7–27

CHAPTER 8

Sexual Harassment* Shannon M. Berube, Esq. Seyfarth Shaw LLP, Boston

Justine H. Brousseau, Esq. Kimball Brousseau LLP, Boston

Nina Joan Kimball, Esq. Kimball Brousseau LLP, Boston

Stephen T. Melnick, Esq. Littler Mendelson, PC, Boston § 8.1

Introduction............................................................................................. 8–3

§ 8.2

Sexual Harassment Claims: A Plaintiff’s Perspective ......................... 8–3 § 8.2.1 Sources of Rights for Sexual Harassment Claims .................. 8–3 (a) State Law ........................................................................ 8–4 (b) Federal Law .................................................................... 8–5 § 8.2.2 Selecting a Forum .................................................................. 8–6 § 8.2.3 Types of Sexual Harassment Claims ...................................... 8–7 (a) Elements of Quid Pro Quo Claim ................................... 8–7 (b) Elements of Hostile Environment Claim......................... 8–8 (c) Same-Sex Sexual Harassment ....................................... 8–10 (d) Harassment Based on Sexual Orientation and Gender Identity ....................................................... 8–11 § 8.2.4 Employer Liability ............................................................... 8–11 (a) Employer Liability for Actions of Supervisors and Those on Whom It Confers Authority .................... 8–11 (b) Employer Liability for Conduct of Coworkers.............. 8–12 (c) Employer Liability for Actions of Nonemployees and Toward Nonemployees ........................................... 8–13 § 8.2.5 Individual Liability ............................................................... 8–13 (a) Individual Liability for Retaliation ............................... 8–14 (b) Individual Liability for Interference with Protected Rights ............................................................................ 8–15 (c) Individual Liability for Aiding and Abetting ................. 8–15 § 8.2.6 Filing a Claim....................................................................... 8–16 (a) Statutes of Limitations .................................................. 8–16

*

For the 2020 Edition, Section 8.2 was revised by Justine H. Brousseau, Esq., and Nina Joan Kimball, Esq., and Section 8.3 was revised by Shannon M. Berube, Esq., and Stephen T. Melnick, Esq.

MCLE, Inc. | 2nd Edition 2020

8–1

Employment Discrimination in Massachusetts

§ 8.2.7

§ 8.2.8

§ 8.3

8–2

(b) Naming Parties .............................................................. 8–19 (c) Bringing Additional Claims in Court ............................ 8–19 Proving a Claim of Sexual Harassment ................................ 8–20 (a) Types of Evidence of Sexual Harassment ..................... 8–21 (b) Additional Evidence Required Under Federal Law ...... 8–25 (c) Additional Evidence to Establish Liability for Sexual Harassment .................................................................... 8–25 (d) Evidence of Retaliation ................................................. 8–26 Remedies and Damages........................................................ 8–26 (a) Injunctive Relief ............................................................ 8–27 (b) Back Pay and Front Pay ................................................ 8–27 (c) Emotional Distress Damages ........................................ 8–27 (d) Punitive Damages .......................................................... 8–28 (e) Attorney Fees and Costs of Litigation ........................... 8–29

Sexual Harassment Claims: An Employer’s Perspective ................... 8–29 § 8.3.1 Sources of Sexual Harassment Law ..................................... 8–29 § 8.3.2 Hostile Work Environment Claims: Similarities and Differences Between General Laws Chapter 151B and Title VII ......................................................................... 8–30 (a) Sexual Conduct: “Based upon Sex” Versus “Conduct of a Sexual Nature” ....................................................... 8–30 (b) Severe and Pervasive ..................................................... 8–31 (c) Objectively and Subjectively Offensive ........................ 8–33 (d) Welcomeness ................................................................. 8–34 § 8.3.3 Employer Liability ............................................................... 8–35 (a) Employer Liability for Supervisor’s Conduct ............... 8–35 (b) Employer Liability for Harassment by Coworkers ........ 8–37 § 8.3.4 Individual Liability ............................................................... 8–39 § 8.3.5 Special Issues in Sexual Harassment Law ............................ 8–39 (a) Same-Sex Harassment ................................................... 8–39 (b) Sexual Orientation Harassment ..................................... 8–40 (c) Third-Party Harassment ................................................ 8–41 (d) Workplace Romance ..................................................... 8–41 § 8.3.6 Constructive Discharge......................................................... 8–42 § 8.3.7 Quid Pro Quo Sexual Harassment Claims ............................ 8–43 § 8.3.8 Statute of Limitations and the Continuing Violation Doctrine ................................................................................ 8–44 § 8.3.9 Damages ............................................................................... 8–46 (a) Emotional Distress Damages ........................................ 8–46 (b) Economic Damages ....................................................... 8–47 (c) Punitive Damages .......................................................... 8–48 (d) Attorney Fees ................................................................ 8–49 § 8.3.10 Reducing the Risk of Sexual Harassment............................. 8–49 (a) Tailored Policy .............................................................. 8–50 (b) Distribution to Employees ............................................. 8–50 2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3.11

§ 8.1

(c) Training ......................................................................... 8–50 (d) Employee Reporting Responsibility.............................. 8–51 (e) Institute Complaint Procedure....................................... 8–51 (f) Showing of Effective Remedial Action ......................... 8–51 The #MeToo Movement ....................................................... 8–52

CHECKLIST 8.1—Harassment Investigation Checklist ................................. 8–54 EXHIBIT 8A—MCAD Sexual Harassment Guidelines .................................. 8–57 EXHIBIT 8B—MCAD’S Model Sexual Harassment Prevention Policy ........ 8–82

Scope Note This chapter discusses workplace sexual harassment claims and offers guidance and litigation tips for counsel representing employees and for counsel representing employers.

§ 8.1

INTRODUCTION

In the 1990s, claims of sexual harassment rose dramatically. This was fueled in large part by Anita Hill’s testimony during the 1991 Clarence Thomas Supreme Court confirmation hearings and the subsequent passage of the Civil Rights Act of 1991, which added emotional distress and punitive damages to Title VII. The topic has once again risen to the forefront of national headlines in the wake of the #MeToo movement. Sexual harassment claims may arise under both state and federal law. This chapter reviews the sources of law for such claims and the various types of claims that may arise. Both employer liability and individual liability are addressed. The employee’s side of this chapter places special attention on the steps to be taken and the proof that needs to be gathered to prepare to litigate a claim. The employer’s side addresses information on reducing the risk of sexual harassment in the workplace to reduce the risk of litigation, as well as defending claims. Also included is a harassment investigation checklist (Checklist 8.1), the MCAD Sexual Harassment Guidelines (Exhibit 8A), and a sample harassment policy (Exhibit 8B).

§ 8.2

SEXUAL HARASSMENT CLAIMS: A PLAINTIFF’S PERSPECTIVE

§ 8.2.1

Sources of Rights for Sexual Harassment Claims

As a plaintiff’s attorney, you need to look to both state and federal laws in evaluating a claim of sexual harassment. Ordinarily, claims arise under either the state antidiscrimination law, G.L. c. 151B, or under the federal law, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. There are other sources of statutory rights, however, under both state and federal law that may give rise to a cause of action in addition to G.L. c. 151B and Title VII, or that may cover situations where G.L. c. 151B and Title VII do not apply.

MCLE, Inc. | 2nd Edition 2020

8–3

§ 8.2

(a)

Employment Discrimination in Massachusetts

State Law

General Laws Chapter 151B General Laws Chapter 151B makes it unlawful “[f]or any employer, personally or through its agents, to sexually harass any employee.” G.L. c. 151B, § 4(16A). General Laws Chapter 151B defines “sexual harassment” as sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when a. submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; b. such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. Discrimination on the basis of sex shall include, but not be limited to, sexual harassment. G.L. c. 151B, § 1(18). General Laws Chapter 151B applies to employers with six or more employees.

General Laws Chapter 214, § 1C If an employer has fewer than six employees, then one may bring a claim for sexual harassment under G.L. c. 214, § 1C, which applies to all employers regardless of the number of employees. General Laws Chapter 214, § 1C provides that a person shall have a right to be free from sexual harassment, as defined in [G.L. c. 151B and G.L. c. 151C]. The superior court shall have the jurisdiction to enforce this right and to award the damages and other relief provided in the third paragraph of section 9 of chapter 151B. Because this statute uses broad language, granting rights to “a person,” it provides a claim for sexual harassment where G.L. c. 151B does not apply, i.e., to employers of fewer than six employees, to volunteers, and in the nonemployment context. See, e.g., Lowery v. Klemm, 446 Mass. 572, 576 (2006); Hudson v. Barter, No. 98-J-655 (Mass. App. Ct. Jan. 5, 1999) (a home health aide stated a claim for sexual harassment under G.L. c. 214, § 1C against the man who had hired her to take care of his wife in their home, where he had fewer than six employees). Practice Note If you are bringing a G.L. c. 214, § 1C claim in addition to a G.L. c. 151B claim, you must exhaust your administrative remedies under G.L. c. 151B, i.e., by filing at the Massachusetts Commission Against Discrimination 8–4

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.2

(MCAD) within 300 days of the unlawful conduct. Otherwise, you will lose your right to proceed directly in court under G.L. c. 214, § 1C. Only if G.L. c. 151B does not apply may you file your G.L. c. 214, § 1C claim directly in court. See Green v. Wyman-Gordon Co., 422 Mass. 551, 556–57 (1996). Similarly, when bringing a claim under the Massachusetts Equal Rights Act (MERA), you must exhaust your administrative remedies if G.L. c. 151B also applies. However, because MERA is not inconsistent with G.L. c. 151B, MERA is not preempted by it. Thurdin v. SEI Bos., LLC, 452 Mass. 436, 455 (2008) (allowing the plaintiff to pursue a MERA claim for sex discrimination where G.L. c. 151B did not apply due to the employer’s small size). In the context of the Massachusetts Equal Pay Act (MEPA), the Supreme Judicial Court has held that G.L. c. 151B, rather than barring all claims, merely provides for an exhaustion requirement. Jancey v. Sch. Comm. of Everett, 421 Mass. 482 (1995) (allowing a plaintiff who filed a timely G.L. c. 151B claim to proceed in court under both G.L. c. 151B and MEPA).

(b)

Federal Law

Title VII Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., also prohibits sexual harassment. Title VII applies to employers with fifteen or more employees. Unlike G.L. c. 151B, Title VII does not define sexual harassment or even prohibit sexual harassment specifically. Rather, courts have interpreted Title VII’s broad prohibition against sex discrimination to include a prohibition against sexual harassment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). Courts have looked to guidelines issued by the Equal Employment Opportunity Commission (EEOC) interpreting Title VII for a definition of sexual harassment. The EEOC guidelines define sexual harassment as follows: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.11(a).

42 U.S.C. § 1983 Sexual harassment claims can also be brought under 42 U.S.C. § 1983 against individuals “acting under color of state law” for violation of rights protected by the MCLE, Inc. | 2nd Edition 2020

8–5

§ 8.2

Employment Discrimination in Massachusetts

Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257–58 (2009) (claim for peeron-peer sexual harassment in school setting could proceed under Section 1983; Title IX is not the exclusive remedy); Lipsett v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir. 1988) (sexual harassment claim under Section 1983 against university official). In Chapin v. University of Massachusetts, 977 F. Supp. 72 (D. Mass. 1997), the court explained: [A] state official, sued under section 1983 in his or her official or individual capacity, can be held liable for the behavior of his or her subordinates if (1) the behavior of such subordinates results in a constitutional violation and (2) the official’s action or inaction was affirmatively linked to that behavior in the sense that it could be characterized as supervisory encouragement, condonation, or acquiescence or gross negligence amounting to deliberate indifference. Chapin v. Univ. of Mass., 977 F. Supp. at 80.

Title IX Employers and employees in the educational setting, such as schools, colleges, and universities, who receive federal funds, should be aware that claims for sexual harassment can be brought under another federal law, Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Title IX provides a claim for sexual harassment committed by teachers against students or student-on-student harassment. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 254–59 (2009) (discussing scope of claims for discrimination under Title IX); Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999); Doe v. Trs. of Bos. Coll., 2016 WL 5799297 (D. Mass. Oct. 4, 2016). The standards for liability under Title IX are stricter than under Title VII. Title IX claims are not employment claims and are beyond the scope of this chapter.

§ 8.2.2

Selecting a Forum

Before drafting an MCAD charge or a court complaint, a plaintiff’s attorney must decide which forum to be in, state or federal, agency or court. Most plaintiff’s attorneys in Massachusetts tend to bring claims under G.L. c. 151B rather than Title VII because state law is generally more favorable to plaintiffs. Plaintiff’s attorneys should consider the following factors: • The damages under G.L. c. 151B can be higher because there are no caps on compensatory and punitive damages, whereas Title VII does contain caps on compensatory and punitive damages depending on the employer’s size. See 42 U.S.C. § 1981a (imposing limits on the amount of compensatory and punitive damages awarded under Title VII). • A claim against an individual can be brought only under G.L. c. 151B, not Title VII, because G.L. c. 151B contains provisions for individual liability, whereas most courts that have addressed the issue have ruled that individuals 8–6

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.2

are not subject to liability under Title VII. See Fantini v. Salem State Coll., 557 F.3d 22, 30–31 (1st Cir. 2009) (determining as a matter of first impression that Title VII did not create individual liability); see, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1313–17 (2d Cir. 1995) (surveying case law and discussing legislative history and remedial provisions of Title VII to find no individual liability); see also Chatman v. Gentle Dental Ctr. of Waltham, 973 F. Supp. 228, 236–39 (D. Mass. 1997) (collecting cases). • Employers are strictly liable for sexually harassing conduct by the victim’s supervisor under G.L. c. 151B. See College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156, 165 n.5 (1987). By contrast, under Title VII, employers are strictly liable only for the sexually harassing conduct of a supervisor if the supervisor is so highly placed as to be identified with the employer (i.e., “the boss”), or a tangible job detriment occurs. Pa. State Police v. Suders, 542 U.S. 129, 144–46 (2004). If no tangible job detriment occurs, however, the employer has an affirmative defense to liability for a supervisor’s harassment, which looks to the reasonableness of the employer’s action in preventing and correcting harassment and the reasonableness of the employee’s behavior in complaining about sexual harassment and avoiding harm. See Pa. State Police v. Suders, 542 U.S. at 144–46; Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). • There is a perception that summary judgment is more likely to be granted to defendants in federal court. Practice Note Pay attention to whether one or more of the parties is from out of state. In that case there may be diversity jurisdiction and the defendant(s) could remove a state court action to federal court pursuant to 28 U.S.C. § 1332 (diversity jurisdiction) and 28 U.S.C. § 1441 et seq. (removal).

§ 8.2.3

Types of Sexual Harassment Claims

There are two types of sexual harassment claims—quid pro quo claims and hostile environment claims.

(a)

Elements of Quid Pro Quo Claim

To prove a claim for quid pro quo sexual harassment, the plaintiff must show • that the alleged harasser made unwelcome sexual advances or sexual requests or engaged in conduct of a sexual nature; • that the plaintiff rejected or submitted to such advances, requests, or conduct; and • that the “submission to or rejection of such [sexual] advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions.”

MCLE, Inc. | 2nd Edition 2020

8–7

§ 8.2

Employment Discrimination in Massachusetts

See G.L. c. 151B, § 1(18); Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 488 (2000) (affirming denial of a directed verdict on quid pro quo and hostile environment claims where the evidence showed that the sexual advances and other sexual conduct were unwelcome and either conditioned some aspect of employment or were sufficiently pervasive to unreasonably interfere with the plaintiff’s work performance and create a hostile working environment).

(b)

Elements of Hostile Environment Claim

To establish a claim for hostile environment sexual harassment under state law, the plaintiff must show verbal or physical conduct • of a sexual nature, • that is unwelcome, • that has the purpose or effect of creating a hostile or humiliating or offensive work environment, and • that interferes with the plaintiff’s ability to perform their job. See College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156, 162 (1987); Johnson v. Daniels Bros. Auto Sales, Inc., 18 M.D.L.R. 194, 196 (1996). An employee may seek recovery for hostile environment sexual harassment even if the employee has not suffered an adverse job action such as termination, suspension, or demotion. See Pa. State Police v. Suders, 542 U.S. 129, 144–46 (2004) (recognizing that claims of hostile environment sexual harassment may or may not involve constructive discharge, which in turn may or may not involve a tangible employment action); Richards v. Bull HN Info. Sys., Inc., 16 M.D.L.R. 1639, 1666 (1994) (stating that harassment that has the effect of creating a discriminatory work environment per se affects the terms and conditions of employment even in the absence of a specific adverse employment decision).

Conduct of a Sexual Nature While the conduct at issue generally must be of a sexual nature, the conduct need not be explicitly sexual in nature. See O’Rourke v. City of Providence, 235 F.3d 713, 729 (1st Cir. 2001) (“[W]here a plaintiff endures harassing conduct, although not explicitly sexual in nature, which undermines her ability to succeed at her job, those acts should be considered along with overtly sexually abusive conduct in assessing a hostile work environment claim.”). Conduct that is sexist and shows that women are treated in a humiliating manner can be sexual harassment. See Quick v. Donaldson Co., 90 F.3d 1372, 1377 (8th Cir. 1996). The U.S. Supreme Court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) clarified that sexual harassment need not be motivated by sexual desire to be actionable. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 79.

8–8

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.2

Welcomeness The plaintiff must show that the conduct was unwelcome. Even if the plaintiff voluntarily participated in the conduct, that does not show that the conduct was welcome. The fact that sexual conduct may have been “voluntary” to the extent that the plaintiff is not forced to participate against their will is not a defense. The issue is whether the conduct was “welcome.” See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986); Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 489 n.15 (2000) (“‘Voluntary’ participation in acts that constitute sexual harassment of either variety does not necessarily bar recovery under Chapter 151B.”). Thus, simply because the plaintiff submitted to conduct in order not to lose their job does not show that the plaintiff welcomed the conduct. This is to be contrasted with a situation, for example, in which the plaintiff is a willing participant and contributor to sexually charged conduct in the workplace, which will not amount to illegal sexual harassment. See Ramsdell v. W. Mass. Bus Lines, Inc., 415 Mass. 673, 676 (1993).

Purpose or Effect of Creating Hostile Environment The plaintiff need not show that the harasser was motivated by a desire to sexually harass the plaintiff. A determination of whether conduct creates a hostile, humiliating, or offensive environment for the plaintiff is determined by the effect on the plaintiff, not the intent of the harasser. See G.L. c. 151B, § 1(18) (specifically stating that conduct that has “the purpose or effect of unreasonably interfering with an individual’s work performance” will be considered sexual harassment).

Severe or Pervasive Conduct The plaintiff must show that the harasser’s conduct was sufficiently severe or pervasive to create a hostile environment to the plaintiff. Pa. State Police v. Suders, 542 U.S. 129, 133 (2004). In some situations, a single incident, if egregious enough, can be sufficiently “severe” to create a hostile environment. See Smith v. Sheahan, 189 F.3d 529 (7th Cir. 1999) (a single assault on a prison guard was severe enough to support a hostile work environment); Gnerre v. MCAD, 402 Mass. 502, 508–09 (1988) (rejecting numerosity requirement).

Reasonableness Standard This is an objective standard that looks to whether the conduct would “unreasonably” interfere with an individual’s performance. Billings v. Town of Grafton, 515 F.3d 39, 48 (1st Cir. 2008) (“the objective severity of the harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances”). Conduct that is merely offensive, but does not rise to the level of what would be considered severe or pervasive so as to create a barrier to the plaintiff’s performance, will not be considered sexual harassment. As the U.S. Supreme Court explained, the “mere utterance of an epithet which engenders offensive feelings in an employee” does not sufficiently affect the conditions MCLE, Inc. | 2nd Edition 2020

8–9

§ 8.2

Employment Discrimination in Massachusetts

of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“[c]ommon sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive”). Thus, the conduct must be severe or pervasive to a reasonable person in the plaintiff’s position to constitute sexual harassment.

Subjective Standard In addition to the objective standard, there is also a subjective standard. The conduct must in fact interfere with the plaintiff’s work performance. Thus, conduct that might create a hostile and abusive environment to the reasonable person might not in fact interfere with a particular plaintiff’s work performance and thus would not be considered sexual harassment to the plaintiff. The plaintiff must show that “the employer’s conduct was intentionally or in effect hostile, intimidating, or humiliating to the plaintiff in a way which affected her performance or the conditions of her employment.” Ramsdell v. W. Mass. Bus Lines, Inc., 415 Mass. 673, 678–79 (1993).

Federal Law Under federal law the elements of a sexual harassment claim differ in some respects from that set forth above. Under Title VII, the plaintiff has the additional requirement of proving that the harassment was “because of sex.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). This is not a “but for” standard. It merely requires proof that sex was a motivating factor, not the motivating factor. Franchina v. City of Providence, 881 F.3d 32, 53 (1st Cir. 2018). In addition, under Title VII, an employer has an affirmative defense to liability where no tangible job detriment occurs that looks to the reasonableness of the employer’s conduct in preventing and correcting sexual harassment and looks to the reasonableness of the plaintiff’s conduct in complaining about the conduct and avoiding harm. See § 8.2.7(b), Additional Evidence Required Under Federal Law, below.

(c)

Same-Sex Sexual Harassment

A plaintiff can bring a claim of sexual harassment against a harasser who is of the same sex under both G.L. c. 151B and Title VII. See Melnychenko v. 84 Lumber Co., 424 Mass. 285 (1997); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). Under G.L. c. 151B, the plaintiff does not have to prove that the victim and the harasser are of the same sexual orientation. Nor does the plaintiff have to prove that the conduct was discriminatory in that it affected one gender more than another. 8–10

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.2

By contrast, under Title VII, the plaintiff must prove that the harassment was “because of sex.” The U.S. Supreme Court has stated that the critical inquiry is whether the “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 75.

(d)

Harassment Based on Sexual Orientation and Gender Identity

Chapter 151B prohibits discrimination based on both sexual orientation and gender identity, G.L. c. 151B, § 4(1), and therefore harassment based on sexual orientation or gender identify is prohibited by state law. Some federal courts have ruled that a harassment claim based on sexual orientation is actionable under Title VII as a form of sex discrimination. The issue is presently before the U.S. Supreme Court, as the Court agreed in April 2019 to hear two decisions that reached opposite conclusions. In Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), the Second Circuit ruled that sexual orientation was covered under Title VII’s prohibition of sex discrimination. By contrast, in Bostock v. Clayton County Board of Commissioners, 723 Fed. App’x 964 (11th Cir. 2018) (mem.), the Eleventh Circuit ruled that discrimination on the basis of sexual orientation was not prohibited by Title VII. The Court also agreed to hear a decision from the Sixth Circuit, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018), which found that discrimination on the basis of gender identity is a form of sex discrimination under Title VII either on the basis of the individual’s gender or as a form of sex stereotyping.

§ 8.2.4

Employer Liability

The standard applied for finding an employer liable for sexual harassment committed by its employees varies depending on who the harasser is. In circumstances where a supervisor is the harasser, an employer may be vicariously liable for the sexually harassing conduct whether or not it knew about the conduct and whether or not it took adequate remedial action. This standard is sometimes known as “strict liability.” In other situations, the employer will be liable only if it knew or should have known of the conduct and failed to take adequate remedial action. This is a negligence standard. Which standard applies differs under state and federal law and will vary depending on who the harasser is and whether the employer has conferred authority on the harasser.

(a)

Employer Liability for Actions of Supervisors and Those on Whom It Confers Authority

Under both state and federal law, an employer is ordinarily vicariously liable for sexually harassing conduct of supervisors and those on whom the employer confers authority. College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156, 165 & n.5 (1987) (“the Legislature intended that an employer be liable for discrimination committed by those on whom it confers authority, without the additional notice requirement”); Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998); Burlington Indus., MCLE, Inc. | 2nd Edition 2020

8–11

§ 8.2

Employment Discrimination in Massachusetts

Inc. v. Ellerth, 524 U.S. 742 (1998). Under federal law, strict liability attaches if the harassment involves a tangible job action. Pa. State Police v. Suders, 542 U.S. 129, 143 (2004). Thus, the employer is liable for the conduct engaged in by supervisors whether or not it knew about the conduct and whether or not it had any opportunity to stop the conduct or take remedial action. The theory behind holding employers vicariously liable for sexually harassing conduct of supervisors and those on whom the employer confers authority is that the employer acts through such agents by conferring authority on them to act. Thus, their actions are in fact actions of the employer. In addition, it is the authority conferred on such individuals that often enhances or facilitates their ability to engage in sexual harassment by giving them power and authority over the victim that a coworker does not ordinarily have. See College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. at 166 (“it is the authority conferred upon a supervisor by the employer that makes the supervisor particularly able to force subordinates to submit to sexual harassment”); Faragher v. City of Boca Raton, 524 U.S. at 802 (“there is a sense in which a harassing supervisor is always assisted in his misconduct by the supervisory relationship”). Under federal law, the employer has an affirmative defense to liability where no tangible job detriment occurred. In situations in which no tangible employment action is taken, employers may avoid liability by proving an affirmative defense: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher v. City of Boca Raton, 524 U.S. at 808; see Monteagudo v. Asociación de Empleados Del Estado Libre Asociado de P.R., 554 F.3d 164, 172 (1st Cir. 2009) (defense denied on second prong where plaintiff articulated legitimate reasons why she failed to report harassment); Chaloult v. Interstate Brands Corp., 540 F.3d 64, 73–77 (1st Cir. 2008) (discussing the affirmative defenses). No such affirmative defense exists under state law. Under this federal standard, the employer is liable for harassing conduct of direct supervisors and employees with higher authority over the plaintiff. In addition, under G.L. c. 151B, an employer has been held to be vicariously liable for sexually harassing conduct by supervisors with no direct authority over the plaintiff. See Morehouse v. Berkshire Gas Co., 989 F. Supp. 54, 64 (D. Mass. 1997); Johnson v. Plastic Packaging, Inc., 892 F. Supp. 25, 29 (D. Mass. 1995). But see Rosemond v. Stop & Shop Supermkt. Co., 456 F. Supp. 2d 204, 214–17 (D. Mass. 2006) (under both federal and state law, supervisor liability attaches only if the supervisor has some control over the plaintiff).

(b)

Employer Liability for Conduct of Coworkers

Under both state and federal law, an employer is liable for sexually harassing conduct of coworkers only if the employer knew or should have known of the conduct and failed to take adequate remedial action. College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156, 166–67 (1987); Choukas v. Ocean Kai Rest., 19 M.D.L.R. 169, 171 (1997). 8–12

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.2

Where the employer is on constructive notice of the harassment and thus should have known of the conduct, the employer may be liable. For example, where harassing behavior occurs in an open, public part of the workplace in the presence of other employees, the company may be on constructive notice of harassment and be obligated to respond even if the employee did not complain. See Wilson v. Chrysler Corp., 172 F.3d 500 (7th Cir. 1999) (acts of harassment occurred on the floor of the assembly plant in an open, communal forum in the presence of other employees and thus the employer was on constructive notice of the conduct).

(c)

Employer Liability for Actions of Nonemployees and Toward Nonemployees

Under both state and federal law, an employer may also be liable for sexually harassing conduct of nonemployees, such as patients at a hospital, customers, or independent contractors, if the employer knew or should have known of the conduct and failed to take adequate remedial action. In addition, the employer must have some type of control over the third party to be liable for failing to act. See, e.g., Modern Cont’l/Obayashi v. MCAD, 445 Mass. 96, 108 (2005) (“employer may be held liable for failing to respond reasonably to acts of sexual harassment of which it is aware or reasonably should be aware, even though the harassing acts are perpetrated by someone who is not an agent or employee of the employer”); Ligenza v. Genesis Health Ventures of Mass., Inc., 995 F. Supp. 226 (D. Mass. 1998) (summary judgment granted where the plaintiff, a nurse at the defendant hospital, could not show that the hospital had notice that the conduct of a patient created a hostile environment or interfered with the plaintiff’s employment); Handy v. N. End Cmty. Health Ctr., Inc., 21 M.D.L.R. 37, 38 (1999) (MCAD concluded that the respondent had insufficient control over the client and took “measured and reasonable steps” to alleviate the harassing conduct and for that reason it was not liable for the client’s harassing conduct). If, however, the employer has conferred sufficient authority on a nonemployee such that the nonemployee becomes the employer’s agent, then the employer will be vicariously liable for the sexually harassing conduct of that individual. See Fiske v. R.P. Liquor, Inc., 16 M.D.L.R. 1042, 1049–50 (1994) (employer was liable for the conduct of the owner’s friend who was not an employee of the restaurant but had sufficient authority in that he was constantly present and performed many duties and thus he was in fact an authorized agent of the employer). In a case of first impression, the Appeals Court ruled that, under G.L. c. 151B, § 4(4A), an employer, a general contractor, could be held liable for its employee’s discriminatory conduct toward a nonemployee—there the employee of a subcontractor—where the employer had notice of the conduct. See Thomas O’Connor Constructors, Inc. v. MCAD, 72 Mass. App. Ct. 549, 556–60 (2008).

§ 8.2.5

Individual Liability

When analyzing a claim for sexual harassment, a plaintiff’s attorney should consider whether to bring a claim against an individual or individuals in addition to the employer. MCLE, Inc. | 2nd Edition 2020

8–13

§ 8.2

Employment Discrimination in Massachusetts

Although most federal courts have found no individual liability under Title VII, see, e.g., Fantini v. Salem State Coll., 557 F.3d 22, 30–31 (1st Cir. 2009) (determining as a matter of first impression that Title VII did not create individual liability); Tomka v. Seiler Corp., 66 F.3d 1295, 1313–17 (2d Cir. 1995) (surveying case law and discussing legislative history and remedial provisions of Title VII to find no individual liability); see also Edsall v. Assumption Coll., 367 F. Supp. 2d 72, 77 (D. Mass. 2005); Chatman v. Gentle Dental Ctr. of Waltham, 973 F. Supp. 228, 236–39 (D. Mass. 1997) (collecting cases), claims can proceed against individuals under state law where the individual is the employer or using provisions of G.L. c. 151B that specifically prohibit “any person” from engaging in certain discriminatory conduct. See Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 490–91 & n.16 (2000). These provisions prohibit • retaliation, Section 4(4); • threats, intimidation, coercion, or interference with rights protected by the statute, Section 4(4A); and • aiding, abetting, inciting, compelling, or coercing of any acts forbidden by the statute, Section 4(5).

(a)

Individual Liability for Retaliation

Facts giving rise to a claim of sexual harassment often also give rise to a claim of retaliation. Retaliation claims can be brought against an individual in a sexual harassment case under G.L. c. 151B, § 4(4), which prohibits retaliation by making it unlawful for any person, employer . . . to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under section five. G.L. c. 151B, § 4(4). To prove a claim of retaliation, a plaintiff must show • that the plaintiff reasonably and in good faith believed that the defendant engaged in discriminatory conduct, • that the plaintiff notified the defendant by opposing or complaining about discriminatory practices, • that the defendant took an adverse action against the plaintiff, and • that the defendant’s desire to retaliate was a determinative factor in its adverse action. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 405–06 (2016); MacCormack v. Bos. Edison Co., 423 Mass. 652, 663 (1996) (the adverse action must materially disadvantage plaintiff; there must be a causal link 8–14

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.2

between filing the complaint and the adverse action); Tate v. Dep’t of Mental Health, 419 Mass. 356, 364–65 (1995) (desire to retaliate must be a determinative factor); Mole v. Univ. of Mass., 442 Mass. 582, 591–92 (2004). Under federal law, the adverse action is defined as one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). In Bain v. City of Springfield, 424 Mass. 758 (1997), the Supreme Judicial Court read Section 4(4) together with Section 4(4A) as prohibiting a range of retaliatory conduct. Bain v. City of Springfield, 424 Mass. at 765. The court noted that the morespecific language in Section 4(4A) meant that G.L. c. 151B’s retaliation provisions may reach farther than the retaliation provision of Title VII. The MCAD has ruled that a claim against a high management official who has knowledge of sexual harassment but fails to take action when in a position to do so states a claim for retaliation under Section 4(4). See Urrea v. New Eng. Tea & Coffee Co., No. 96-BEM-2750, slip op. at 4 (MCAD Oct. 6, 1997).

(b)

Individual Liability for Interference with Protected Rights

General Laws Chapter 151B, § 4(4A) states that it is an unlawful practice for any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter. G.L. c. 151B, § 4(4A). The person who engages in the sexually harassing conduct can be held personally liable under Section 4(4A), the provision prohibiting interference with protected rights. See, e.g., Morehouse v. Berkshire Gas Co., 989 F. Supp. 54 (D. Mass. 1997) (where the individuals’ conduct was “sexual in nature” and sufficiently severe and pervasive to alter the conditions of the plaintiff’s employment, summary judgment is denied for claims of sexual harassment against them under Section 4(4A)). Section 4(4A) does not require a showing of moral or physical force analogous to the Massachusetts Civil Rights Act (MCRA) because, unlike the MCRA, it prohibits interference with protected rights as well as threats, intimidation, and coercion. See Urrea v. New Eng. Tea & Coffee Co., No. 96-BEM-2750, slip op. at 5 (MCAD Oct. 6, 1997).

(c)

Individual Liability for Aiding and Abetting

Individuals also can be held liable for aiding and abetting sexual harassment under G.L. c. 151B, § 4(5), which states that it is an unlawful practice “for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.” MCLE, Inc. | 2nd Edition 2020

8–15

§ 8.2

Employment Discrimination in Massachusetts

G.L. c. 151B, § 4(5); see Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 492 (2000) (holding defendant Smith individually liable for his “active sexual harassment of the plaintiff” under Section 4(5)). This provision can be used to bring claims against persons who failed to take adequate remedial action to stop or prevent the harassment. Some courts have found that supervisors who have knowledge of sexual harassment and a duty to take remedial action may be liable for aiding and abetting where their nonaction is deliberate. See Chapin v. Univ. of Mass., 977 F. Supp. 72, 78–80 (D. Mass. 1997). The court in Chapin explained why a failure to act to investigate or stop the harassment can actually facilitate and encourage the harassment. The court stated: [A] failure to act on complaints of sexual harassment—whether the result of design or of inattention—may have a discernible impact in a hostile environment case. A deaf ear from management may contribute to and encourage the hostility of the workplace, creating an impression that employees may engage in sexual harassment or discrimination with impunity. In this sense, inaction on the part of a high official in management . . . may be an affirmative link to conduct that violates ch. 151B. Chapin v. Univ. of Mass., 977 F. Supp. at 80. To establish aiding or abetting does not require proof of “a sinister or an illegal motive.” Melnychenko v. 84 Lumber Co., 424 Mass. 285, 294 n.8 (1997).

§ 8.2.6 (a)

Filing a Claim Statutes of Limitations

MCAD Employees must file a charge of discrimination under G.L. c. 151B with the MCAD within 300 days of the alleged discriminatory act. G.L. c. 151B, § 5. Sexual harassment, unlike most other forms of discrimination (e.g., discrimination in hiring, firing, or promotion), is usually not a discrete act but consists of a series of related acts occurring over time. Consequently, a claim of sexual harassment will typically be deemed timely filed so long as a charge is filed at the MCAD within 300 days of the last significant act of harassment. Practice Note To avoid a legal challenge that the plaintiff missed the statute of limitations by not having an actual act of sexual harassment occur within the 300-day filing period, a plaintiff’s attorney should not wait too long to file a claim and should try to identify several acts of sexual harassment that fall within the filing period. Under the continuing violations doctrine (see below), all prior acts of sexual harassment, not just those occurring during the filing period, can be litigated and can form the basis for liability. 8–16

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.2

EEOC Employees must file a charge of discrimination with the EEOC under Title VII within 180 days of the alleged discriminatory act, or, in states like Massachusetts that have a fair employment practices agency (here the MCAD), the charge must be filed at the EEOC within 300 days. Practice Note The statute of limitations under G.L. c. 151B was extended to 300 days in 2002, so that it now is the same as the statute of limitations for filing at the EEOC under Title VII.

The Supreme Court ruled that the administrative filing requirement is not jurisdictional but rather is an affirmative defense that can be waived. In Fort Bend County v. Davis, 139 S. Ct. 1843 (2019), the Court ruled that where the defendant did not raise the plaintiff’s failure to file her religious discrimination claim at the agency level as an affirmative defense, it had waived the right to have the claim dismissed for failure to exhaust administrative remedies.

Court Under G.L. c. 151B, an employee must file a court claim within three years of the alleged discriminatory act. G.L. c. 151B, § 9. Under Title VII, an employee must file a court claim within ninety days of receiving a right to sue letter from the EEOC.

Continuing Violations Doctrine The MCAD’s statute of limitations requirement will not bar claims based on conduct occurring more than 300 days prior to filing where the conduct complained of is of a continuing nature and where at least one act occurred within the 300-day filing period. The MCAD’s regulations provide: [T]he six month [now 300 day] requirement shall not be a bar to filing in those instances where facts are alleged which indicate that the unlawful conduct complained of is of a continuing nature. . . . 804 C.M.R. § 1.10(2). A continuing violation can occur in two forms. One is a “systemic” violation, where an ongoing discriminatory policy or practice exists and continues into the filing period. See Jensen v. Frank, 912 F.2d 517, 523 (1st Cir. 1990) (“so long as the policy or practice itself continues into the limitation period, a challenger may be deemed to have filed a timely complaint”); see Lynn Teachers Union, Local 1037 v. MCAD, 406 Mass. 515, 522–23 (1990) (approving the application of continuing violation rule where a refusal to credit complainants for preresignation seniority breathed new life into a discriminatory maternity leave policy). The second type of continuing violation is of the “serial” form, where a series of related acts together form a discriminatory MCLE, Inc. | 2nd Edition 2020

8–17

§ 8.2

Employment Discrimination in Massachusetts

pattern of conduct. It is this form of the continuing violation that applies in cases of sexual harassment. As interpreted by both state and federal courts, the continuing violation exception recognizes that some claims of discrimination involve a series of related events that must be viewed in their totality in order to assess adequately their discriminatory nature and impact. See O’Rourke v. City of Providence, 235 F.3d 713, 732 (1st Cir. 2001). Sexual harassment is usually a cumulative process rather than a one-time event, and a plaintiff may be unable to appreciate that they are being discriminated against until they have lived through a series of acts and are thereby able to perceive the overall discriminatory pattern. The test for whether a continuing violation exists differs between state and federal court.

Chapter 151B: State Court After years of confusion between state and federal jurisprudence in this area, the Supreme Judicial Court in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001) clarified the standard for a continuing violation under Chapter 151B, setting out a three-part test: • First, the employee must establish that at least one instance of sexually harassing conduct occurred within the limitations period. The conduct within the limitations period need not, standing alone, have created a hostile work environment. Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. at 533. • Second, the conduct within the limitations period must be substantially linked to the earlier, untimely conduct by similarity, repetition, and continuity. Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. at 533 (it must be shown that the timely act “substantially relates to earlier incidents of abuse, and substantially contributes to the continuation of a hostile work environment, such that the incident anchors all related incidents, thereby making the entirety of the claim for discriminatory conduct timely”). • Third, any delay by the employee in filing the charge must not be unreasonable. Thus, an employee may seek damages for conduct occurring outside the limitations period unless the employee considers the situation to be “hopeless,” i.e., that the employee “knew or reasonably should have known that her work situation was pervasively hostile and unlikely to improve, and, thus, a reasonable person in her position would have filed a complaint with the MCAD before the statute ran on that conduct.” Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. at 539, 540–41. If the court finds the employee’s failure to file the charge earlier was unreasonable, the employee may still file a claim as to the timely events and use the untimely events as evidence.

Title VII: Federal Court In 2002, the U.S. Supreme Court, in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), set forth the continuing violation rule for a hostile environment case under Title VII, which is broader than the state rule. The Court recognized that 8–18

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.2

all the individual actions that make up a hostile environment are part of one single unlawful employment practice, even if the actions took place over the course of years. Therefore, as long as any one incident falls within the filing period, all the related conduct is timely and can be part of a timely filed sexual harassment claim. The Court explained: Given, therefore, that the incidents comprising a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim. In order for the charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 118. Therefore, “all ‘component acts’ of the claim that occurred outside of the limitations period may be considered.” Franchina v. City of Providence, 881 F.3d 32, 47 (1st Cir. 2018). In determining whether an incident is an act of sexual harassment, the First Circuit takes a broad view and may encompass not just conduct that is sexual in nature, but also “incidents of nonsexual conduct—such as work sabotage, exclusion, denial of support, and humiliation—[which] can in context contribute to a hostile work environment.” O’Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001).

(b)

Naming Parties

In addition to naming the employer as a respondent at the MCAD, make sure to name other individuals in the initial MCAD charge, including all individuals who may have participated in or facilitated the alleged harassment or failed to carry out prompt remedial action. While it is better to name individuals in the initial filing, failure to name an individual at the MCAD may not be fatal to later bringing a claim against such individual in court. Sexual harassment claims can be brought against individuals in court who were not named at the MCAD as long as their conduct was put at issue in the MCAD charge, they had notice of the charge, and they had an opportunity to participate in the defense and conciliation of the charge. Chatman v. Gentle Dental Ctr. of Waltham, 973 F. Supp. 228, 234–35 (D. Mass. 1997); Leclerc v. Interstate Distrib., Inc., No. 97-2008, slip op. at 7–8 (Mass. Super. Ct. Feb. 11, 1998); Smiley v. Acme Wholesale, Inc., 7 Mass. L. Rptr. 549 (Super. Ct. 1998) (allowing corporate officer and part owner not named at the MCAD to be sued in a civil action); cf. King v. First, 46 Mass. App. Ct. 372 (1999) (a housing case that recognized an exception to the filing requirement where the individual defendant had notice of and participated in conciliation proceedings at the MCAD or the EEOC).

(c)

Bringing Additional Claims in Court

In most circumstances, G.L. c. 151B and Title VII will provide the exclusive state and federal remedies for sexual harassment. However, where G.L. c. 151B does not apply, a plaintiff may have a claim under G.L. c. 214, § 1C; the Massachusetts Equal MCLE, Inc. | 2nd Edition 2020

8–19

§ 8.2

Employment Discrimination in Massachusetts

Rights Act (MERA), G.L. c. 93, § 102(a); or the Massachusetts Civil Rights Act (MCRA), G.L. c. 12, §§ 11H, I. There are circumstances where a plaintiff may want to bring tort claims in addition to a sexual harassment claim. The conduct underlying sexual harassment claims under certain circumstances may impose liability on individuals for common law torts such as assault and battery, intentional infliction of emotional distress, or defamation. General Laws Chapter 151B, because it was intended to broaden, not narrow, rights of employees, is not the exclusive remedy for preexisting tort law claims as long as the tort does not merely recast the sexual harassment claim. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 415 (2016); Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 (1994) (“where applicable, G.L. c. 151B provides the exclusive remedy for employment discrimination not based on preexisting tort law or constitutional protections”); Comey v. Hill, 387 Mass. 11, 20 (1982) (same). Assault and battery claims, which have been part of the common law of Massachusetts since the mid-nineteenth century, long preceded G.L. c. 151B, which was enacted in 1946. See Chapin v. Univ. of Mass., 977 F. Supp. 72, 84 (D. Mass. 1997) (citing Brown v. Kendall, 60 Mass. (6 Cush.) 292 (1850)). If the employer or the harasser engages in retaliatory actions toward the employee who has complained about sexual harassment, that conduct may give rise to other claims, such as claims for retaliation, defamation, or intentional interference with advantageous or contractual rights. Practice Note Personal injury intentional torts, such as assault and battery and intentional infliction of emotional distress claims, can be brought only against individual defendants, not against the employer. Intentional torts against employers are barred by the exclusivity provision of the Workers’ Compensation Act. However, intentional torts against coworkers can be brought where the employee “commits an intentional tort which was in no way within the scope of employment furthering the interests of the employer.” O’Connell v. Chasdi, 400 Mass. 686, 690 (1987); Ruffino v. State St. Bank & Tr. Co., 908 F. Supp. 1019, 1049 (D. Mass. 1995). The Supreme Judicial Court in Chasdi held that sexual harassment is not part of the circumstances of employment and thus is not within the scope of employment. O’Connell v. Chasdi, 400 Mass. at 690–91; see also Morehouse v. Berkshire Gas Co., 989 F. Supp. 54, 65 (D. Mass. 1997) (denying summary judgment on intentional infliction of emotional distress claims against coworkers who engaged in sexually harassing conduct and failed to take steps to stop the conduct). A defamation claim against the employer, however, is not barred by the Workers’ Compensation Act.

§ 8.2.7

Proving a Claim of Sexual Harassment

To prove a claim of sexual harassment, plaintiffs carry the burden of proof as to each element. See § 8.2.3, above, outlining the elements of the two types of sexual harassment claims. Below are some examples of the type of evidence that might be 8–20

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.2

available to a plaintiff to prove the different elements of quid pro quo and hostile environment claims, as well as damages. In addition to introducing evidence as to the elements of such claims, plaintiffs can introduce other evidence to establish liability. Employers are required by G.L. c. 151B, § 3A to have and distribute a sexual harassment policy. Employers are also required to respond promptly to a complaint of sexual harassment and provide an adequate remedy. Evidence of the fact that employers have failed to meet either one of these obligations can provide additional evidence to assist a plaintiff in establishing liability.

(a)

Types of Evidence of Sexual Harassment

Throughout the evaluation, investigation, and litigation process, the development of the evidence will dictate the strengths and weaknesses of the plaintiff’s case. While every sexual harassment case is different, having a general understanding of what types of evidence will be sufficient to prove a claim is helpful. Plaintiff’s attorneys then must take these general guidelines and determine what, if any, significance they have to the particular case in question. As in many types of litigation, the credibility of the parties, as well as of the supporting witnesses, is key in developing a sexual harassment case. In gathering the evidence to prove the various elements of the sexual harassment claim, plaintiff’s attorneys must continually assess credibility. Plaintiff’s attorneys should generally be looking for the following types of evidence.

Plaintiff’s Statements Regarding the Sexually Harassing Conduct and the Effect of Such Conduct These “statements” may be found in the plaintiff’s contemporaneous notes, journal entries, social media entries, daily planners and calendars, internal complaints, personnel records, an MCAD charge, an affidavit, a police report, a Department of Employment and Training filing (i.e., an unemployment claim), therapy or counseling notes, a court complaint, and interrogatory answers. Statements allegedly made by the plaintiff regarding sexually harassing treatment may also be found in investigation notes, witness statements, and statements made to managerial employees that are reported to human resources regarding the plaintiff’s complaint. If you are a plaintiff’s attorney, you want to assess whether the plaintiff’s various statements are consistent. If they are inconsistent, find out why, and proceed accordingly. Practice Note Remember, in Massachusetts there is a psychotherapist-patient privilege. See G.L. c. 233, § 20B. Employers in sexual harassment cases may attempt to obtain information about psychological counseling that the plaintiff has received in order to limit their exposure to emotional distress damages. The recognized privilege, however, provides a waiver if the patient has introduced the mental or emotional condition “as an element of his claim or defense.” See G.L. c. 233, § 20B(c). Simply seeking damages for emotional distress in a sexual harassment case does not MCLE, Inc. | 2nd Edition 2020

8–21

§ 8.2

Employment Discrimination in Massachusetts necessarily place a plaintiff’s emotional condition in controversy. It is a good practice to obtain the plaintiff’s psychological records and review them carefully before putting it in issue in the case. Note, however, that if you bring your claim in federal court, you may not be required to produce psychological records because of the federal common law privilege against compelled disclosure of psychotherapistpatient communications. See Jaffe v. Redmond, 518 U.S. 1 (1996). Note that an employee’s internal complaint of sexual harassment cannot form the basis of a defamation complaint because it is protected by the absolute litigation privilege. Visnick v. Caulfield, 73 Mass. App. Ct. 809, 812–13 (2009).

Plaintiff’s Testimony at Deposition and at Trial In a sexual harassment case, the plaintiff’s testimony, first at deposition and then at trial, is pivotal to proving the case. In addition to testifying as to each element of the claim and damages, the plaintiff must testify consistently and be able to convey the emotionally damaging effect of the conduct.

Employer’s Statements Regarding the Conduct, Complaint, Investigation, Policies, and Remedy These “statements” may be found in the employer’s notes, journal entries, daily planners and calendars, internal complaints, personnel records, an MCAD Position Statement, affidavits, a Department of Employment and Training filing (i.e., response to an unemployment claim), an answer to a court complaint, and interrogatory answers. Statements allegedly made by the plaintiff, the harasser, and/or witnesses regarding the sexual harassment may also be found in investigation notes, witness statements, and statements made to managerial employees that are reported to human resources regarding the plaintiff’s complaint. If you are a plaintiff’s attorney, you want to know who has said what to whom, and to determine whether the various statements are consistent. If they are inconsistent, this can be highlighted in the depositions of the employer’s representatives, as well as in trial testimony. You will also want to look more broadly at the employer’s policy statements, training materials, advertisements, web pages, brochures, news articles, magazine articles, and any other types of media coverage of the employer. Does the evidence show that the employer simply talks about policies and training or does it show that the employer actually implements them? How does the employer promote itself to its applicants, employees, customers, and the general public? Make sure discovery requests are broad enough to obtain such evidence.

Harasser’s Statements Regarding the Alleged Conduct, the Plaintiff’s Complaint, the Employer’s Investigation, Policies, and Remedy These “statements” may be found in the harasser’s cards, notes, emails to the plaintiff, journal entries, daily planners and calendars, personnel records, an MCAD Position Statement, affidavits, an answer to a court complaint, and interrogatory answers. 8–22

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.2

Statements allegedly made by the harasser regarding the sexual harassment may also be found in investigation notes and statements made to managerial employees that are reported to human resources regarding the plaintiff’s complaint. If you are a plaintiff’s attorney, you want to know what the harasser has said to whom, and to determine whether the statements are consistent. Also, attention should be paid to whether the employer and the harasser are consistent in what they say. If there are inconsistencies, they should be explored at the harasser’s deposition and brought out in trial testimony. You will also want to look more broadly at the harasser’s previous employment history, as well as any news or magazine articles and any other types of media coverage involving the harasser, including social media. How is the harasser projecting himself or herself? How is the harasser being projected by third parties? Make sure discovery requests are broad enough to obtain such evidence.

Witness Statements Regarding the Conduct, the Plaintiff’s Complaint, the Employer’s Investigation, and Policies These “statements” may be found in the witnesses’ contemporaneous notes, journal entries, daily planners and calendars, an affidavit, investigation notes, and statements to managerial employees that are reported to human resources. You may also want to conduct your own interview and obtain an affidavit from the witness or take the witness’s deposition. Prior to obtaining the affidavit or taking the deposition, a determination should be made as to whether the witness has their own reason to become involved and thus may appear biased toward one of the parties.

Personnel Records of Plaintiff and Harasser The plaintiff should ask for their own personnel records and those of the harasser. Often the plaintiff’s own records will contain documentation that the plaintiff did not know existed. A plaintiff wants to have the same information that the employer does. Personnel records of the harasser can be useful to show, for example, that adequate remedial action was not taken because the harasser was not disciplined, or that the harasser was never given sexual harassment training, or that others have complained about the harasser’s conduct. The term “personnel records” is defined broadly under Massachusetts law to include not only the type of payroll record or employee evaluation one tends to think of as belonging in a personnel file, but also those that relate to almost any major employment action. See G.L. c. 149, § 52C. Note that email messages that fall within this definition are personnel records and should be asked for in discovery. Practice Note If circumstances permit, the plaintiff should view, if not actually obtain, a copy of their personnel records before a charge or complaint is filed.

MCLE, Inc. | 2nd Edition 2020

8–23

§ 8.2

Employment Discrimination in Massachusetts

Email Email creates records, so those records are discoverable in litigation. Harassing conduct may occur in the form of sexually offensive email messages. Be sure to frame discovery requests in such a way as to obtain email records that may be relevant to proving the conduct itself or to showing that the employer failed to take prompt and adequate remedial action.

Sexual Harassment Complaints of Other Employees Ask for all formal and informal, internal and external sexual harassment complaints filed by other employees against both the employer and the harasser. This is relevant to establish a pattern and a practice of discriminatory behavior. Courts have consistently held that such evidence is relevant in proving discrimination. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804–05 (1973); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990) ( “invidious pattern of [discriminatory] discharges” constitutes evidence of discrimination); Springfield Bd. of Police Comm’rs v. MCAD, 375 Mass. 782, 783 (1978) (statistics concerning promotions of other individuals were relevant to proof in a case involving a single individual); Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 298 (1991) (“hiring and discharge patterns [and] other acts of discrimination” are probative evidence of discrimination).

Financial Information About Employer and Harasser Information about the employer’s financial position and the harasser’s financial position is relevant to a claim for punitive damages, which are available in court under both federal and state law. See TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 464 (1993) (the financial position of the defendant is one factor that can be taken into account in assessing punitive damages); Pac. Mut. Ins. Co. v. Haslip, 499 U.S. 1, 22 (1991) (same). The First Circuit has said that punitive damages must be enough to “smart.” Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 207 (1st Cir. 1987) (“a rich defendant may well be required to pay more than a poor one who committed the same wrong”). Therefore, the plaintiff is entitled to know the employer’s net worth in order to provide evidence of what is enough of a pinch to the particular employer. Thus, the plaintiff should ask for financial statements, annual reports, year-end compilations, shareholder reports, profit and loss statements, and any other documents that reflect the employer’s assets and liabilities. As to the harasser, the plaintiff should ask for tax returns, bank records, and other personal financial information to show assets. If the defendants object that such information is confidential, it can be produced subject to a confidentiality agreement and protective order to which the parties stipulate. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 405–06 (2016).

Self-Help Discovery For years there has been a question as to whether employees are entitled to collect information and documentation from their employers, including confidential information, to support a discrimination claim without being subject to discipline, including 8–24

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.2

discharge. The Supreme Judicial Court ruled for the first time in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382 (2016) that an employee can engage in self-help discovery in “certain circumstances . . . if the employee’s actions are reasonable in the totality of the circumstances.” Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 410. The court adopted the sevenfactor test set out in Quinlan v. Curtiss-Wright Corp., 8 A.3d 209 (N.J. 2010), which balances “the employer’s recognized, legitimate need to maintain an orderly workplace and to protect confidential business and client information, and the equally compelling need of employees to be properly safeguarded against retaliatory actions.” Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. at 411.

(b)

Additional Evidence Required Under Federal Law

Plaintiff’s attorneys must be aware that under Title VII, though not under G.L. c. 151B, the plaintiff must also prove that the harassment was because of sex. To do so, the plaintiff must produce evidence that they were treated in a harassing manner because of gender. This is not a “but for” standard. It merely requires proof that sex was a motivating factor, not the motivating factor. Franchina v. City of Providence, 881 F.3d 32, 53 (1st Cir. 2018). In addition, the employer may have an affirmative defense to liability where no tangible job detriment occurred. A tangible job detriment need not necessarily have an economic consequence but can include actions such as an unfavorable transfer or a poor performance evaluation. In appropriate situations in which no tangible employment action is taken, the employer has the burden of proving the affirmative defense that • the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and • the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); see Monteagudo v. Asociación de Empleados Del Estado Libre Asociado de P.R., 554 F.3d 164, 172 (1st Cir. 2009) (defense denied on the second prong where the plaintiff articulated legitimate reasons why she failed to report the harassment); Chaloult v. Interstate Brands Corp., 540 F.3d 64, 73–77 (1st Cir. 2008) (discussing the affirmative defenses).

(c)

Additional Evidence to Establish Liability for Sexual Harassment

Failure to Have a Policy That Complies with General Laws Chapter 151B General Laws Chapter 151B requires an employer to adopt and distribute a policy prohibiting sexual harassment. Failure to have such a policy that complies with the requirements of the statute could provide additional evidence of discrimination. See G.L. c. 151B, § 3A. Therefore, in a sexual harassment case, the plaintiff should seek discovery on whether the employer has a sexual harassment policy in place that satisfies the statute’s requirements. This can be done through a request for production of MCLE, Inc. | 2nd Edition 2020

8–25

§ 8.2

Employment Discrimination in Massachusetts

documents and interrogatories, as well as during depositions of the employer’s key employees. The plaintiff’s attorney should also explore with the plaintiff whether, even if a policy exists, the plaintiff was provided with a copy of such policy.

Failure to Do Adequate Investigation and Take Prompt Remedial Action The failure of an employer to take prompt remedial action once notified of sexual harassment is a separate violation of G.L. c. 151B, § 4. See College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156, 167–68 (1987) (holding that employer’s failure to take adequate steps to remedy the situation once it was notified was a separate violation of G.L. c. 151B); see also Mayhew v. Stetson Mgmt. Corp., 21 M.D.L.R. 11 (1999). Plaintiffs therefore should seek discovery of the employer’s alleged investigation and remedial action. Employers often resist producing documents related to internal investigations into allegations of sexual harassment on the ground that they are protected from disclosure by the attorney-client privilege or work product doctrine. However, to the extent that the employer intends to raise its investigation and subsequent remedial action as a defense in a sexual harassment case, the plaintiff is entitled to information relating to such investigation and such remedial action. See Harding v. Dana Transp., Inc., 914 F. Supp. 1084 (D.N.J. 1996). Otherwise, the plaintiff cannot adequately challenge the employer’s defense. Obtaining discovery about investigations, particularly if the claim is being brought under Title VII, is even more critical in light of the affirmative defense that the Supreme Court fashioned in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Both of these cases were brought under Title VII. See § 8.2.7(b), above. As a result of this affirmative defense, discovery into the employer’s sexual harassment policies, how such policies are applied, the conduct of investigations, and what corrective action was taken will be critical to the plaintiff’s successful prosecution of the sexual harassment case. Practice Note Although this affirmative defense is not available under G.L. c. 151B, evidence about investigations and remedial action is nevertheless relevant to showing whether the employer satisfied its obligations of having a policy in place, as well as of taking prompt and adequate remedial action.

(d)

Evidence of Retaliation

All of the types of evidence discussed above should also be reviewed for evidence of illegal retaliation for having opposed harassment or having engaged in another protected action. See § 8.2.7(a), above.

§ 8.2.8

Remedies and Damages

Both G.L. c. 151B and Title VII authorize injunctive relief and allow prevailing plaintiffs to recover back pay; compensatory damages, including out-of-pocket expenses; and damages for emotional distress, punitive damages, and attorney fees and costs. Under G.L. c. 151B, punitive damages may be awarded only in court. The MCAD is 8–26

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.2

not authorized to award punitive damages. However, the MCAD can authorize all other forms of relief available. Under Title VII, there are limits on the amount of combined compensatory and punitive damages available depending on the employer’s size. See 42 U.S.C. § 1981a (the limits are $50,000 for employers of 100 or fewer employees; $100,000 for employers of 101 to 200 employees; $200,000 for employers of 201 to 500 employees; and $300,000 for employers with more than 500 employees).

(a)

Injunctive Relief

In addition to orders directing the employer to stop the harassing conduct, the MCAD and the courts have issued injunctions requiring an employer to adopt policies and to engage in sexual harassment training. The MCAD may also retain jurisdiction, requiring employers to report back within a certain period of time in order to monitor their compliance with such orders. See Santiago v. Sentinel Sec., Inc., 18 M.D.L.R. 179, 181 (1996) (ordering the employer to conduct sexual harassment training for supervisors and employees and report back to the MCAD within nine months).

(b)

Back Pay and Front Pay

Prevailing plaintiffs are entitled to recover lost wages and other compensation. In some circumstances they may be able to obtain front pay. See Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91 (2009) (upholding nineteen-year front pay award based on the plaintiff’s anticipated retirement age of sixty-five); Conway v. Electro Switch Corp., 402 Mass. 385 (1988) (G.L. c. 151B permits damages for loss of future earnings); Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480 (2000) (awarding front pay in a sexual harassment case). In a sexual harassment case where the plaintiff has not been technically fired but instead was forced to resign because of the treatment, the plaintiff must prove constructive discharge in order to obtain back pay. To prove constructive discharge, a plaintiff must establish that the situation was so intolerable that a reasonable person in the plaintiff’s position would have felt compelled to resign. See Pa. State Police v. Suders, 542 U.S. 129, 139 (2004); GTE Prods. Corp. v. Stewart, 421 Mass. 22, 34 (1995); Levesque v. Quality Brands Liquor, 19 M.D.L.R. 154, 156 (1997). While the same evidence necessary to prove sexual harassment will often establish the elements of constructive discharge (see, e.g., Levesque v. Quality Brands Liquor, 19 M.D.L.R. at 156; Choukas v. Ocean Kai Rest., 19 M.D.L.R. 169, 171 (1997)), this is not always the case. Sexual harassment is not always sufficiently egregious to result in a constructive discharge. The plaintiff must separately prove that they were compelled to resign, or the plaintiff must stay on the job to mitigate their damages and attempt to avoid harm. See Pa. State Police v. Suders, 542 U.S. at 146.

(c)

Emotional Distress Damages

The MCAD and the courts are authorized to award emotional distress damages as a form of compensatory damages. Stonehill Coll. v. MCAD, 441 Mass. 549 (2004) (reaffirming the MCAD’s authority to award emotional distress damages and providing guidance for proving such damages). It is not necessary to have a physical injury or to MCLE, Inc. | 2nd Edition 2020

8–27

§ 8.2

Employment Discrimination in Massachusetts

have expert testimony or any medical evidence to support an award of emotional distress damages. See Buckley Nursing Home, Inc. v. MCAD, 20 Mass. App. Ct. 172, 182– 83 (1985); Baldelli v. Town of Southborough, 18 M.D.L.R. 167, 168 (1996) (containing extensive discussion of the principles on which emotional distress damages may be awarded). Stonehill College, however, clarifies that a finding of liability alone no longer will permit an inference of emotional distress. Instead, “to be compensable, emotional distress must be proved.” Stonehill Coll. v. MCAD, 441 Mass. at 576. In a sexual harassment case, a major component of the plaintiff’s damages is emotional distress. It is critical, therefore, that the plaintiff’s attorney spend substantial time gathering and preparing the evidence of how the plaintiff was harmed emotionally by both the sexual harassment and the employer’s response, if it was inadequate. This will include evidence of how the conduct made the plaintiff feel, how it interfered with the plaintiff’s ability to do the job, how it affected the plaintiff’s daily activities, whether it affected relations with a spouse or a partner or family members, whether it affected self-confidence and self-esteem, whether the plaintiff sought professional counseling or medical treatment, and how long it took to recover emotionally.

(d)

Punitive Damages

Under Title VII, punitive damages are available if the employee demonstrates that the employer “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a; see Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999) (discussing standards for obtaining punitive damages under Title VII). As described above, punitive damages together with compensatory damages are subject to certain caps under Title VII. Under G.L. c. 151B, punitive damages are awarded where the defendant’s conduct is outrageous or egregious. Punitive damages are warranted where the conduct is so offensive that it justifies punishment and not merely compensation. In making an award of punitive damages, the fact finder should determine that the award is needed to deter such behavior toward the class of which plaintiff is a member, or that the defendant’s behavior is so egregious that it warrants public condemnation and punishment. Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91 (2009) (setting out the test for determining punitive damages under Chapter 151B and listing the five factors to use as guidance). General Laws Chapter 151B does not specifically limit the amount of punitive damages that can be awarded, though the court will apply common law and constitutional principles to determine what is an appropriate amount. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 826 (1997). Under Chapter 151B, punitive damages can be awarded against an individual defendant as well as the employer. See Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 497–98 (2000) (upholding an award of $87,500 in punitive damages against an individual). 8–28

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

(e)

§ 8.2

Attorney Fees and Costs of Litigation

Under both G.L. c. 151B and Title VII, a prevailing plaintiff is entitled to recover reasonable attorney fees and the costs of litigation.

§ 8.3

SEXUAL HARASSMENT CLAIMS: AN EMPLOYER’S PERSPECTIVE

§ 8.3.1

Sources of Sexual Harassment Law

Sexual harassment is prohibited by both Massachusetts and federal law. Title VII of the Civil Rights Act of 1964 has no provision directly addressing sexual harassment. Rather, federal sexual harassment law developed from judicial decisions and the regulations of the Equal Employment Opportunity Commission (EEOC). The sexual harassment cause of action was first recognized in Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976), and was officially adopted by the Supreme Court ten years later in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Meritor holds that sexual harassment is essentially a form of sex discrimination: “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex,” and can thereby alter the “‘terms, conditions, or privileges’ of employment,” in violation of Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. at 64. Unlike Title VII, Massachusetts law expressly forbids sexual harassment in the workplace. There are two statutes governing sexual harassment: G.L. c. 151B, § 4(16A) and G.L. c. 214, § 1C. (Interestingly, both statutes were enacted in 1986, the same year Meritor was decided.) While these statutes utilize the same standard (G.L. c. 214, § 1C expressly incorporates Chapter 151B), they are not overlapping. Individuals who are covered by Chapter 151B—employees who work for employers that have six or more employees—must bring sexual harassment claims exclusively under G.L. c. 151B, § 4(16A), not G.L. c. 214, § 1C. Green v. Wyman-Gordon Co., 422 Mass. 551, 555 (1996). This is particularly significant because Chapter 151B has a relatively short limitations period (300 days), and requires a claimant to first file a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD). See Green v. Wyman-Gordon Co., 422 Mass. at 555. On the other hand, an employee who is not otherwise subject to Chapter 151B, for instance, an employee who works for an employer with five or fewer workers, can still pursue a sexual harassment claim under G.L. c. 214, § 1C. Guzman v. Lowinger, 422 Mass. 570, 572–73 (1996). General Laws Chapter 151B, § 4(16A) and Chapter 214, § 1C apply only to employees. Volunteers are not covered by either statute. Lowery v. Klemm, 446 Mass. 572 (2006). Likewise, independent contractors cannot state a claim under either law. Vicarelli v. Bus. Int’l, Inc., 973 F. Supp. 241, 245–46 (D. Mass. 1997). There are two types of claims of sexual harassment under federal and state law: the more-common hostile work environment claim and the less-common quid pro quo claim. Both are described in detail below. MCLE, Inc. | 2nd Edition 2020

8–29

§ 8.3

§ 8.3.2

Employment Discrimination in Massachusetts

Hostile Work Environment Claims: Similarities and Differences Between General Laws Chapter 151B and Title VII

To state a hostile work environment cause of action, the claimant must show that • the conduct was “sexual,” • the harassment was sufficiently severe or pervasive so as to alter the conditions of the plaintiff’s employment, • the conduct was both objectively and subjectively offensive, and • the conduct was unwelcome. See Ponte v. Steelcase Inc., 741 F.3d 310, 319–20 (1st Cir. 2014); Dahms v. Cognex Corp., 455 Mass. 190, 204–05 (2009); MCAD Sexual Harassment in the Workplace Guidelines, available at http://www.mass.gov/orgs/massachusetts-commission-againstdiscrimination. See Exhibit 8A for a copy of the MCAD Sexual Harassment Guidelines. Although federal and state courts tend to interpret the latter three elements similarly, there are important distinctions between federal and state law for the first element.

(a)

Sexual Conduct: “Based upon Sex” Versus “Conduct of a Sexual Nature”

Because Title VII sexual harassment is essentially a variant of sexual discrimination, a claimant under federal law must prove not only that they were subjected to unwelcome, offensive conduct but also that the conduct happened because of that person’s gender. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Even if the conduct has “sexual content or connotations,” the “critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 80. Thus, in Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258 (1st Cir. 1999), the First Circuit found that, while the employee “toiled in a wretchedly hostile environment,” because the harassment was not motivated by the employee’s sex or gender, no claim could lie under Title VII. On the other hand, “the relevant sections of G.L. c. 151B differ significantly from Title VII” because the Massachusetts legislature “specifically defined sexual harassment and, at the same time, codified the prohibition against it.” Melnychenko v. 84 Lumber Co., 424 Mass. 285, 289 (1997). Namely, Chapter 151B specifically proscribes “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” G.L. c. 151B, § 1(18). Unlike Title VII, “nowhere is discrimination because of a victim’s sex made an essential element of a sexual harassment claim in Massachusetts.” Melnychenko v. 84 Lumber Co., 424 Mass. at 290. “Rather, any physical or verbal conduct of a sexual nature which is found to interfere unreasonably with an employee’s work performance through the creation of a humiliating or sexually offensive work environment can be sexual harassment under G.L. c. 151B.” Melnychenko v. 84 Lumber Co., 424 Mass. at 290. 8–30

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3

Chapter 151B does recognize “gender” harassment, which is comparable to the Title VII sexual harassment claim, that is, harassment based on the person’s gender rather than based on “sexual conduct.” See Luciano v. Coca-Cola Enters., Inc., 307 F. Supp. 2d 308, 321 (D. Mass. 2004) (“Gender-based harassment and sexual harassment are not always the same. [Gender]-based harassment need not be overtly sexual to be actionable.”); Brown v. Phoenix & Foxwood, 22 M.D.L.R. 160 (2000) (repeated derogatory comments regarding the complainant’s gender constituted unwelcome or harassing conduct). When the claim is gender-based harassment under Title VII or Chapter 151B, an employer may present an “equal opportunity harasser” defense, that is, a claim for harassment fails where the alleged harassing behavior was gender-neutral or was imposed in equal measure on men and women. See Oncale v. Sundowner Offshore Servs., 523 U.S. at 80; Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 441 (1st Cir. 1997) (“merely because a supervisor is overbearing or fellow employees unsociable and hard to get along with, does not suffice unless underlying motives of a sexual or gender discriminatory nature are implicated”); Fontánez-Núñez v. Janssen Ortho LLC, 447 F.3d 50, 57 (1st Cir. 2006) (vulgar remarks directed to many employees may be inappropriate and unprofessional, but mere offensive utterances do not amount to actionable harassment). However, facially discriminatory conduct, meaning conduct that blatantly threatens an individual based on a protected characteristic—such as gender-based epithets— inherently discriminates on that basis. Such conduct does not have to be directed at a particular worker based on that worker’s protected characteristic, nor do all workers with the protected characteristic have to be exposed to the comments. Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225, 229 (1st Cir. 2007) (“the use of sexually degrading, gender-specific epithets, such as ‘slut,’ ‘cunt,’ ‘whore,’ and ‘bitch’ . . . has been consistently held to constitute harassment based upon sex”).

(b)

Severe and Pervasive

In order to be unlawful harassment, the acts alleged must also be sufficiently severe and pervasive. The touchstone for finding that conduct is severe and pervasive is whether it would “interfere with a reasonable person’s work performance.” Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 411 (2001); see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (conduct must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment”); MCAD Sexual Harassment in the Workplace Guidelines (severe and pervasive conduct must create “an impediment to an employee’s full participation in the workplace, alter[] the terms and conditions of her employment, or unreasonably interfere[] with her work performance”). There is no bright line separating conduct that is severe and pervasive from conduct that is not. A fact finder will consider the “totality of the circumstances, including factors such as the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir. 2005). MCLE, Inc. | 2nd Edition 2020

8–31

§ 8.3

Employment Discrimination in Massachusetts

Case law has staked out what is or is not severe and pervasive conduct at the far ends of the spectrum. “Ordinary socializing in the workplace” is not unlawful harassment, nor is “male-on-male horseplay.” Oncale v. Sundowner Offshore Servs., 523 U.S. 80, 81 (1998). A “tense or uncomfortable working relationship with one’s supervisor [is], without more, insufficient to support a hostile work environment claim.” Flood v. Bank of Am. Corp., 780 F.3d 1, 12 (1st Cir. 2015). Similarly, “simple teasing” or “offhand comments” are not unlawful. Kosereis v. Rhode Island, 331 F.3d 207, 216– 17 (1st Cir. 2003) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). “Intersexual flirtation” also cannot support a hostile environment claim. Muzzy v. Cahillane Motors, Inc., 434 Mass. at 412 (quoting Oncale v. Sundowner Offshore Servs., 523 U.S. at 81–82). “Rudeness or ostracism, standing alone, usually is not enough to support a hostile work environment claim” because “the antidiscrimination laws were not enacted to create or enforce a general civility code.” Noviello v. City of Boston, 398 F.3d at 92. On the other hand, some behavior may be so extreme as to constitute severe and pervasive conduct. “Stalking” behavior will usually rise to the level of harassment. See Crowley v. L.L. Bean, Inc., 303 F.3d 387, 397–98 (1st Cir. 2002) (following plaintiff home and breaking into her house); Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 96 (1st Cir. 2006) (repeatedly driving by plaintiff’s house, meetings outside of work, and leaving notes on plaintiff’s car). Likewise, unwanted touching, particularly of intimate body parts, will be considered harassing. See Marrero v. Goya of P.R., Inc., 304 F.3d 7, 19–20 (1st Cir. 2002) (“full body to body contact,” repeatedly “brush[ing] by” plaintiff, “standing in her way and . . . pretend[ing] that they were dancing” and “hover[ing] over [plaintiff] with his hands on her shoulders, or [standing] close by, rubbing the side of his body against her”). Between these extremes, however, are many shades of gray. “Conduct that amounts to sexual harassment under one set of circumstances may, in a different context, equate with the sort of ‘merely offensive’ behavior that lies beyond the purview of [Chapter 151B or] Title VII, and vice versa.” Billings v. Town of Grafton, 515 F.3d 39, 49 (1st Cir. 2008). For instance, propositioning a coworker may or may not be harassment. A supervisor putting his arm around an employee and “hitting on” her was not sufficiently severe and pervasive in Ponte v. Steelcase, Inc., 741 F.3d 310, 320 (1st Cir. 2014), while requests for dates and the use of suggestive language was found to be harassing in Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 55–56 (1st Cir. 2000). Similarly, “not every such claim premised on staring or leering in the workplace automatically presents a question for the jury.” Billings v. Town of Grafton, 515 F.3d at 50. Thus, in Lewis v. Gillette Co., the plaintiff’s coworkers “gawking or staring” from across the office, “while possibly bothersome, was not sufficiently severe or pervasive to constitute actionable harassment.” Lewis v. Gillette Co., 65 Fair Empl. Prac. Cas. 1811, 1816 (D. Mass. 1993), aff’d, 22 F.3d 22 (1st Cir. 1994). Conversely, a coworker staring at an employee’s breasts regularly over the course of several years could be sufficiently severe and pervasive. Billings v. Town of Grafton, 515 F.3d at 51.

8–32

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3

Offensive language likewise may or may not be actionable. “Objectionable language and vulgar remarks” that were “inappropriate to the workplace and completely unprofessional” were held not to be unlawful in Fontánez-Núñez v. Janssen Ortho LLC, 447 F.3d 50, 57 (1st Cir. 2006), whereas “sexual remarks and innuendos” were found to be harassing in Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 19–20 (1st Cir. 2002). Acts of sexual harassment directed at others that are known to the claimant are also admissible to prove a sexually hostile environment. See Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. 521, 541 (2001) (“acts of sexual harassment directed against others that were known to the plaintiff, and the defendant’s failure to discipline anyone for the acts, or effectively to remedy them, may be considered part of the environment in which the plaintiff worked”). The pervasiveness requirement is also flexible. There is no “numerosity requirement” that a plaintiff must meet for the conduct to be considered unlawful; “the more offensive the comments the fewer incidents of harassment may be required” for the conduct to be considered harassment. Gnerre v. MCAD, 402 Mass. 502, 508–09 (1988). Even “isolated incidents” may be actionable on their own, provided they are “extremely serious.” Faragher v. City of Boca Raton, 524 U.S. at 788. Still, a small number of isolated acts or comments normally will not be deemed harassing. See Rios-Jimenez v. Principi, 520 F.3d 31, 43 (1st Cir. 2008) (two or three comments “simply are not sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment”); Thompson v. Coca-Cola Co., 522 F.3d 168, 180–81 (1st Cir. 2008) (three arguably harassing comments did not amount to pervasive harassment). On the other hand, conduct that continues for an extended period may be deemed harassing, even if the incidents on their own would not be unlawful. See Tuli v. Brigham & Women’s Hosp., 656 F.3d 33, 39–40 (1st Cir. 2011) (fourteen incidents over five years).

(c)

Objectively and Subjectively Offensive

In conjunction with the severe and pervasive standard, the plaintiff must also prove that the conduct was both objectively and subjectively offensive. See Ramsdell v. W. Mass. Bus Lines, Inc., 415 Mass. 673, 678–79 (1993) (“an employee who alleges sexual harassment must show that the employer’s conduct was intentionally or in effect hostile, intimidating or humiliating to the plaintiff in a way which affected her performance or the conditions of her employment”); see also Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). The “objective” requirement means “that the evidence of sexual harassment is to be considered from the view of a reasonable person in the plaintiff’s position . . . considering all the circumstances.” Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 412–13 (2002) (quoting Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998)). Again, this is a flexible standard that “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target,” based on “common sense, and an appropriate sensitivity to social context.” Oncale v. Sundowner Offshore Servs., 523 U.S. at 81. As the late Justice Scalia colorfully put it: MCLE, Inc. | 2nd Edition 2020

8–33

§ 8.3

Employment Discrimination in Massachusetts

A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office. Oncale v. Sundowner Offshore Servs., 523 U.S. at 81. The “reasonable person in the plaintiff’s position” can be fairly specific; for instance, in Muzzy v. Cahillane Motors, Inc., 434 Mass. at 415, the Supreme Judicial Court found that it was appropriate for the jury to consider harassment from the point of view of “an objectively reasonable woman of lesbian orientation.” However, the reasonable person standard is not limitless. In Perez v. Horizon Lines, Inc., 804 F.3d 1, 6 (1st Cir. 2015), the court held that no reasonable person could conclude that a request to a male employee to deliver cornbread and pastries “hot” to his female supervisor’s office was sufficiently severe or objectively offensive to prove actionable. Perez v. Horizon Lines, Inc., 804 F.3d at 6. The conduct must also be subjectively offensive, that is, the plaintiff must have actually considered the conduct to be objectionable. This is often intertwined with the concept of “unwelcomeness,” discussed below. The subjective element asks whether the plaintiff was actually offended by the alleged harasser’s actions, whereas the unwelcomeness element asks whether the plaintiff invited, encouraged, or participated in the behavior. See Dahms v. Cognex Corp., 455 Mass. 190, 199–200 (2009). In Dahms, the court determined that testimony showing that the plaintiff wore inappropriately revealing clothing at work and told sexual stories to coworkers was relevant in determining whether she was subjectively offended by a coworker’s sexual advances. Dahms v. Cognex Corp., 455 Mass. at 200. In Nagle v. Fairfield Financial Mortgage Group, Inc., 32 M.D.L.R. 179 (2010), the MCAD declined to find that a claimant was sexually harassed, given her relationship to the alleged harasser—she had extensive financial dealings with him and actually followed him to another company. The MCAD found that, while a reasonable woman would have been offended by the harasser’s conduct, given these facts, the claimant was not subjectively offended by the conduct. In determining whether a plaintiff’s environment was subjectively and objectively offensive, courts analyze whether the harassment created a “formidable barrier” to a plaintiff’s full participation in the workplace. Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290, 296 (2016) (finding a “formidable barrier” to full participation in the workplace where the unwanted sexual attention came on a daily basis for eighteen months and to such a degree that during her tenure the plaintiff was forced to implement a “no-touching” rule in order to keep her supervisor at bay).

(d)

Welcomeness

A sexual harassment plaintiff must also prove that the conduct alleged was unwelcome. “Only unsolicited and unwelcome conduct may create a hostile work environment. When the employee initiates conduct of a sexual nature or is a willing participant in a sexually charged environment, [he or] she may not be the victim of sexual harassment.” MCAD Sexual Harassment in the Workplace Guidelines. 8–34

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3

An employee does not need to show that they affirmatively rejected the harasser’s conduct if there is “evidence that the employee consistently demonstrated her unalterable resistance to all sexual advances.” Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 784 (1st Cir. 1990); see also Lipsett v. Univ. of P.R., 864 F.2d 881, 898 (1st Cir. 1988) (plaintiff’s “consistent failure to respond to suggestive comments or gestures may be sufficient to communicate that the man’s conduct is unwelcome”); MCAD Sexual Harassment in the Workplace Guidelines (“When an employee only submits to harassing behavior to avoid being targeted further, to cope in a hostile environment, or because participation is made an implicit condition of employment, she is not considered to have welcomed the conduct.”). Nonetheless, evidence that the plaintiff invited or accepted certain behavior can show that it was not unwelcome. In Dahms v. Cognex Corp., 455 Mass. 190, 199–200 (2009), the Supreme Judicial Court affirmed a jury verdict in favor of an employer, finding that the trial court appropriately allowed the jury to consider evidence about the plaintiff’s “sexual behavior, general sexual predisposition, and wild nature” in evaluating her hostile work environment claim. The trial court allowed testimony that the plaintiff wore “inappropriately revealing clothing” at work, told “crude jokes,” and made statements about her “sexual preferences” to coworkers. The Supreme Judicial Court affirmed a defendant’s verdict, finding that the trial court did not abuse its discretion in allowing the evidence, because the plaintiff “made relevant her own behavior in the workplace and with coworkers” by claiming “she had been unwillingly subjected to such an environment.” Dahms v. Cognex Corp., 455 Mass. at 199–201. Likewise, in Trinh v. Gentle Communications, LLC, 71 Mass. App. Ct. 368, 376 (2008), the court found no liability, in part because there was evidence that the plaintiff “was a willing participant in the office’s sexual banter.” And in King v. Abdow Corp., 18 M.D.L.R. 244 (1996), a harassment complaint was dismissed because “witnesses testified that Complainant pinched and grabbed men’s behinds, made dirty, vulgar remarks and licked cream soup off her hands in a sexually suggestive manner.”

§ 8.3.3

Employer Liability

Unlike most forms of discrimination, a plaintiff must also show that there is a basis for the employer to be held liable for unlawful harassment. This takes different forms of proof when the harassment is perpetrated by a supervisor as opposed to a nonsupervisory coworker and whether the claim is under Massachusetts or federal law.

(a)

Employer Liability for Supervisor’s Conduct

The biggest difference between Massachusetts and federal claims of sexual harassment law is with regard to employer liability for supervisor conduct. Following principles of vicarious liability, the Supreme Judicial Court held that, under Chapter 151B, an employer is strictly liable for the sexual harassment of employees by a supervisor, regardless of whether the employer knows of the conduct. College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156, 164 (1987) (“the Legislature intended that an employer be liable for discrimination committed by those on whom it confers authority”); see MCAD Sexual Harassment in the Workplace Guidelines (an employer MCLE, Inc. | 2nd Edition 2020

8–35

§ 8.3

Employment Discrimination in Massachusetts

is liable for the actions of its supervisors “because they are conferred with substantial authority over subordinates and are thus considered agents of the employer”). Under federal law, an employer is also subject to liability for the conduct of a supervisor. However, the employer has an affirmative defense available to it, known as the “Faragher/Ellerth defense,” for claims involving supervisors. See Noviello v. City of Boston, 398 F.3d 76, 94–95 (1st Cir. 2005). The Faragher/Ellerth defense is discussed in greater detail below. The key is whether the harasser was a “supervisor.” Title alone is not sufficient to prove that an individual is a “supervisor.” Rather, courts “distinguish employees who are supervisors merely as a function of nomenclature from those who are entrusted with actual supervisory powers.” Noviello v. City of Boston, 398 F.3d at 95. Some decisions have taken a broad view of what is a “supervisor.” In Morehouse v. Berkshire Gas Co., 989 F. Supp. 54, 64 (D. Mass. 1997), the District Court held that there does not need to be a “direct supervisory relationship” between “the harasser and the victim for liability under [Chapter 151B] to attach to the employer.” Thus, the company was liable for the conduct of three individuals who were “management personnel and supervisory employees,” even though none of them were the plaintiff’s direct supervisor. Morehouse v. Berkshire Gas Co., 989 F. Supp. at 64; see also Messina v. Araserve, Inc., 906 F. Supp. 34, 37 (D. Mass. 1995) (company could be liable for the actions of a manager who was not the plaintiff’s direct supervisor but still had supervisory authority). The MCAD has adopted this rule. See MCAD Sexual Harassment in the Workplace Guidelines (“In some circumstances, an employer may be liable for the actions of a supervisor, even if that supervisor does not have direct supervisory authority over the Complainant.”); Sauer v. Belfor USA Group, Inc., 2016 U.S. Dist. LEXIS 120781 (D. Mass. Sept. 7, 2016) (following MCAD Guidelines). Some decisions take a narrower view. Under these cases, an individual will be considered the plaintiff’s “supervisor” only if the person has “the authority to affect the terms and conditions of the victim’s employment.” Noviello v. City of Boston, 398 F.3d at 95 (interpreting Title VII and Chapter 151B) (emphasis added). “This authority primarily consists of the power to hire, fire, demote, promote, transfer, or discipline” the plaintiff. Noviello v. City of Boston, 398 F.3d at 96; see Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013) (same; citing favorably to Noviello). If an alleged harasser does not have this authority over the plaintiff, the harasser is not considered a supervisor under this test. See Vance v. Ball State Univ., 133 S. Ct. at 2443; Rosemond v. Stop & Shop Supermkt. Co., 456 F. Supp. 2d 204, 215–16 (D. Mass. 2006) (rejecting the broad rule and finding that a managerial employee who did not have authority over the plaintiff was not the plaintiff’s “supervisor” under Chapter 151B). Under Chapter 151B, once a claimant shows that a supervisor was responsible for unlawful harassment, the inquiry ends; the employer is liable. Under federal law, although Title VII imposes vicarious liability on the employer for the conduct of its supervisors, employers may assert an affirmative defense known as the Faragher/Ellerth defense, so named after the cases that established it, Faragher v. City of

8–36

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3

Boca Raton, 524 U.S. 775, 778 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 745 (1998). The defense requires a showing that • the harassment did not result in a “tangible employment action,” • the employer’s actions to prevent and correct harassment were reasonable, and • the employee’s actions in seeking to avoid harm were not reasonable. Agusty-Reyes v. Dep’t of Educ. of P.R., 601 F.3d 45, 53 (1st Cir. 2010). A “tangible employment action” includes “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. at 761. Constructive discharge (described more fully below) may also be a tangible employment action. Pa. State Police v. Suders, 542 U.S. 129, 133–34 (2004). The affirmative defense is unavailable if there was a tangible employment action, provided that “the harassing supervisor [is] the one who orders the tangible employment action or, at the very least, must be otherwise substantially responsible for the action.” LeeCrespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 44 (1st Cir. 2003). If there was no tangible employment action, the employer must next show it took reasonable efforts to prevent and correct harassment. This requirement can be met by showing that the company had “an acceptable sexual harassment policy and complaint process in place, that the company had trained its employees regarding its policies, and that [the plaintiff] knew of these policies.” Chaloult v. Interstate Brands Corp., 540 F.3d 64, 74 (1st Cir. 2008). Thus, a failure by an employer to communicate the policy to its employees, or the maintenance of an ineffective policy, would foreclose this affirmative defense. Agusty-Reyes v. Dep’t of Educ. of P.R., 601 F.3d at 55. If the employer is aware of the harassment, then it must also take reasonable steps to “correct” it. Chaloult v. Interstate Brands Corp., 540 F.3d at 74. The employer must further show that the employee did not take reasonable steps to follow the antiharassment policy. That is, if an employee has raised complaints about harassment, there can be no Faragher/Ellerth defense. Perez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 30 (1st Cir. 2011).

(b)

Employer Liability for Harassment by Coworkers

In cases involving harassment by an individual who is not a supervisor, under both federal and state law, an employer may be liable for sexual harassment only if the plaintiff demonstrates that the employer knew, or should have known, about the harassing conduct, and that it failed to take prompt, effective, and reasonable remedial action. See College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156, 163 (1987); Trinh v. Gentle Commc’ns, LLC, 71 Mass. App. Ct. 368, 376 (2008); Noviello v. City of Boston, 398 F.3d 76, 95 (1st Cir. 2005) (when harassment is perpetrated by a coworker, “an employer can only be liable if the harassment is causally connected to some negligence on the employer’s part”). This has been likened to a “negligence” standard. Reed v. MBNA Mktg. Sys., 333 F.3d 27, 32 n.1 (1st Cir. 2003). MCLE, Inc. | 2nd Edition 2020

8–37

§ 8.3

Employment Discrimination in Massachusetts

For the first element, there is no bright-line rule delineating who must be notified before an employer has been put on notice of harassment in the workplace. As the court held in 2016 in Gyulakian, “if an employee complains to the officials identified in the employer’s sexual harassment policy, the employer would be put on sufficient notice to trigger an obligation to investigate and take remedial action if the complaint proves to be well founded.” Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290, 296 (2016). An employer can of course also become aware that its employees engaged in sexually harassing conduct by means other than a complaint made in accordance with the employer’s sexual harassment policy. Gyulakian v. Lexus of Watertown, Inc., 475 Mass. at 296; see also Noviello v. City of Boston, 398 F.3d at 97 (actual knowledge by senior managers of the employer will suffice). In some instances, knowledge of the alleged harassing conduct will be imputed to the employer. See Rosemond v. Stop & Shop Supermkt. Co., 456 F. Supp. 2d 204, 217 (D. Mass. 2006) (the fact that the supervisor saw the conduct created an inference of knowledge). However, some cases have required the employee to make the employer aware of the alleged harassing behavior by complaining or otherwise. See Ligenza v. Genesis Health Ventures, Inc., 995 F. Supp. 226, 231–32 (D. Mass. 1998) (employer is not liable where the employee did not complain of the allegedly harassing conduct while she worked there). An employee’s refusal to meet with the employer or participate in an investigation may also preclude a subsequent harassment suit. Espinal v. Nat’l Grid NE Holdings 2, LLC, 693 F.3d 31, 36–37 (1st Cir. 2012). For the second point, an employer has a duty to remedy the behavior. “[T]he chief measure of the adequacy of an employer’s response is not the victim’s own personal sense of justice,” but rather “whether the behavior that gave rise to the complaint has ceased and does not threaten to recur.” Sarin v. Raytheon Co., 905 F. Supp. 49, 53 (D. Mass. 1995). Separating the victim from the harasser, by transferring one or both of them, may be appropriate. Newell v. Celadon Sec. Servs., Inc., 417 F. Supp. 2d 85, 97 (D. Mass. 2006); Trinh v. Gentle Commc’ns, LLC, 71 Mass. App. Ct. at 376 (finding no liability as the employer promptly investigated the plaintiff’s claims when it became aware of them). Disciplining the harasser may be adequate if it stops the harassment. See Wilson v. Moulison N. Corp., 639 F.3d 1, 9 (1st Cir. 2011) (“a reasoned application of progressive discipline will ordinarily constitute an appropriate response to most instances of employee misconduct”); Sarin v. Raytheon Co., 905 F. Supp. at 53. If discipline is ineffective, an employer may be required to attempt a different measure, such as termination. See Crowley v. L.L. Bean, Inc., 303 F.3d 387, 404 (1st Cir. 2002) (issuing a second written warning to the harasser after the first warning was ineffective was not an appropriate response); Rosemond v. Stop & Shop Supermkt. Co., 456 F. Supp. 2d at 218 (noting that warnings may be insufficient where the policy called for the termination of harassers); Gyulakian v. Lexus of Watertown, Inc., 475 Mass. at 300 (an employer is obligated to investigate and take remedial action if the complaint filed proves to be well founded). The Massachusetts Appeals Court has held that “fail[ing] to take steps to promptly remediate known harassment” may itself be actionable as an adverse employment action that is sufficient to support a retaliation claim. Saxe v. Baystate Med. Ctr., Inc., 93 Mass. App. Ct. 1114, 2018 Mass. App. Unpub. LEXIS 477 (2018). 8–38

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3.4

§ 8.3

Individual Liability

Individual harassers may be liable under G.L. c. 151B, § 4(5), which provides that it is unlawful “for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any acts forbidden under this chapter.” Given this language, the Appeals Court in Beaupre v. Cliff Smith & Associates, 50 Mass. App. Ct. 480, 492 (2000) held that a person may “be held individually liable under c. 151B for his active sexual harassment of the plaintiff.” See also Chapin v. Univ. of Mass. at Lowell, 977 F. Supp. 72, 80 (D. Mass. 1997) (ruling that a supervisor can be liable for inaction where the supervisor had knowledge of the sexual harassment but failed to act); Ruffino v. State St. Bank & Tr. Co., 908 F. Supp. 1019, 1048 (D. Mass. 1995) (stating that Section 4(5) provides “individual liability where ‘any person’ acts in a way that interferes with the rights secured under Chapter 151B”). Federal law, however, does not allow for recovery from an individual defendant— only from the corporate entity, even for harassment claims. Fantini v. Salem State Coll., 557 F.3d 22, 30 (1st Cir. 2009) (“there is no individual employee liability under Title VII”).

§ 8.3.5 (a)

Special Issues in Sexual Harassment Law Same-Sex Harassment

Harassment by a person who is the same sex as the victim can be actionable, even where there is no evidence of romantic overtures or sexual desire. For instance, in Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997), the plaintiffs were heterosexual males who accused a heterosexual male supervisor of grabbing the plaintiffs’ genitals and buttocks, kicking a plaintiff’s buttocks, exposing himself, asking for sexual favors, and telling other employees that he had engaged in sexual acts with at least one of the plaintiffs. Even though the conduct was not “inspired by lust or sexual desire,” it was unlawful because it was “conduct of a sexual nature which is found to interfere unreasonably with an employee’s work performance,” as defined by Chapter 151B. Melnychenko v. 84 Lumber Co., 424 Mass. at 290. Title VII likewise recognizes same-sex harassment. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80–81 (1998). As discussed above, under Title VII the plaintiff must still prove that the conduct was based on gender. Oncale v. Sundowner Offshore Servs., 523 U.S. at 80–81. Oncale suggested three avenues by which a plaintiff may establish “that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] . . . because of . . . sex’”: • a showing that the alleged harasser made “explicit or implicit proposals of sexual activity” and providing “credible evidence that the harasser was homosexual”; • showing that the harasser was “motivated by general hostility to the presence of [members of the same sex] in the workplace”; or MCLE, Inc. | 2nd Edition 2020

8–39

§ 8.3

Employment Discrimination in Massachusetts

• “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace,” that is, treated one sex differently than another. Oncale v. Sundowner Offshore Servs., 523 U.S. at 80–81.

(b)

Sexual Orientation Harassment

Sexual orientation is a protected category under G.L. c. 151B. § 4(1), and thus Massachusetts law clearly prohibits harassment on the basis of sexual orientation. See Salvi v. Suffolk Cty. Sheriff’s Dep’t, 67 Mass. App. Ct. 596, 605–06 (2006) (affirming a jury verdict for harassment based on sexual orientation). Until recently, sexual orientation was not recognized as a protected category under federal law, and a claim for harassment based solely on the individual’s orientation was generally viewed as unavailing. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (“Title VII does not proscribe harassment simply because of sexual orientation”). In light of this, some courts tried to shoehorn what would appear to be sexual orientation claims into a same-sex gender harassment theory, though “the line between discrimination because of sexual orientation and discrimination because of sex is hardly clear.” Centola v. Potter, 183 F. Supp. 2d 403, 408 (D. Mass. 2002); see also Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015) (“Simply put, the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.”). For instance, in Ianetta v. Putnam Investments, Inc., 142 F. Supp. 2d 131, 133–34 (D. Mass. 2001), the plaintiff alleged that being called “faggot” and being singled out for different treatment was not sexual orientation harassment but rather harassment because he “failed to conform to the male gender stereotype.” The court found that “a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity” and allowed the claim to go forward. Ianetta v. Putnam Invs., Inc., 142 F. Supp. 2d at 133–34 (quoting Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d at 261 n.4). In 2015, however, the EEOC took the position that Title VII sex discrimination encompasses discrimination on the basis of sexual orientation and gender identity. Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015) (holding that Title VII protected a federal employee who experienced discrimination on the basis of his sexual orientation). And in April 2017 the Seventh Circuit Court of Appeals followed suit. Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 341 (7th Cir. 2017) (en banc) (“discrimination on the basis of sexual orientation is a form of sex discrimination”). On April 22, 2019, the U.S. Supreme Court granted certiorari in three cases challenging the scope of the Title VII prohibition on discrimination on the basis of sex. The definition of sex in Title VII and whether the term incorporates sexual orientation or gender identity is in flux. While the EEOC and the U.S. Court of Appeals for the Second and Seventh Circuits have each determined that the term “sex” encompasses sexual orientation, the U.S. Court of Appeals for the Eleventh Circuit held that Title VII does 8–40

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3

not prohibit discrimination on the basis of sexual orientation. The three cases that the Supreme Court will hear to resolve this issue are Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018); Bostock v. Clayton County Board of Commissioners, 894 F.3d 1335 (11th Cir. 2018); and EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018).

(c)

Third-Party Harassment

An employer may also be liable under Title VII or Chapter 151B for sexual harassment caused by certain third parties, including customers, patients, clients, or independent contractors, if it knew or should have known about the harassment and failed to take effective remedial action. See Modern Cont’l/Obayashi v. MCAD, 445 Mass. 96 (2005) (defendant was liable for sexual harassment perpetrated by independent contractors where the defendant knew of the harassment but failed to stop it); Ligenza v. Genesis Health Ventures, Inc., 995 F. Supp. 226, 231 (D. Mass. 1998) (long-term care facility could be liable to employees under both federal and state law for sexual harassment caused by patients); Fiske v. R.P. Liquor, 16 M.D.L.R. 1042 (1994) (company was liable for a hostile work environment caused by the owner’s friend). In Thomas O’Connor Constructors, Inc. v. MCAD, 72 Mass. App. Ct. 549, 562 (2008), the Massachusetts Appeals Court upheld a Superior Court decision that a general contractor was liable to an employee of a subcontractor because it had failed to take disciplinary action after learning that one of its supervisors had engaged in offensive conduct against the subcontractor’s employee. Indeed, after discovering corroborating evidence of harassment during its investigation, the general contractor nonetheless returned the offending supervisor to work without imposing any corrective measures or informing the aggrieved employee of its findings. Despite the absence of an employment relationship between the subcontractor’s employee and the general contractor, the Appeals Court held that the general contractor was liable under G.L. c. 151B, § 4(4A) because it had “interfered” with the employee’s enjoyment of a workplace free from unlawful harassment.

(d)

Workplace Romance

In Ritchie v. Department of State Police, 60 Mass. App. Ct. 655 (2004), the court addressed the issue of whether a consensual office romance between a manager and a subordinate, where favors related to work are bestowed on the paramour, may create a sexually hostile work environment for other employees. In that case, the court recognized the legal legitimacy of a claim that favoritism toward an office paramour could, under some circumstances, create a sexually hostile work environment. The court observed that “there may be cases where the facts and circumstances of the favoritism and the office paramour’s conduct rise to the level of creating a sexually hostile environment,” relying on an EEOC guideline stating “isolated instances of favoritism toward [a] paramour [are] not prohibited by Title VII but widespread favoritism may constitute a hostile work environment.” Ritchie v. Dep’t of State Police, 60 Mass. App. Ct. at 662 n.12.

MCLE, Inc. | 2nd Edition 2020

8–41

§ 8.3

Employment Discrimination in Massachusetts

The fact that an employee is aware of a supervisor’s affair with a coworker “may strain communications between nonparticipating employees and create an uncomfortable atmosphere,” but it is not enough to create a hostile work environment if there are no “sexually related actions directed specifically” at the plaintiff. Winters v. ADAP, Inc., 76 F. Supp. 2d 89, 95–96 (D. Mass. 1999).

§ 8.3.6

Constructive Discharge

In some cases, a work environment may grow so hostile that the employee feels compelled to resign. When that occurs, “although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” GTE Prods. Corp. v. Stewart, 421 Mass. 22, 34 (1995). Not every harassment claim will allow a constructive discharge theory. The employee “must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment.” Hernandez-Torres v. Intercont’l Trading, Inc., 158 F.3d 43, 48 (1st Cir. 1998). That is, “the working conditions imposed by the employer had become so onerous, abusive, or unpleasant that a reasonable person in the employee’s position would have felt compelled to resign.” Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 54 (1st Cir. 2000); see GTE Prods. Corp. v. Stewart, 421 Mass. at 34 (working conditions must be “so difficult as to be intolerable”); Pa. State Police v. Suders, 542 U.S. 129, 147 (2004) (the plaintiff “must show working conditions so intolerable that a reasonable person would have felt compelled to resign”). Constructive discharge is measured objectively, based on a reasonable person in the plaintiff’s shoes. GTE Prods. Corp. v. Stewart, 421 Mass. at 34. The standard “cannot be triggered solely by an employee’s subjective beliefs, no matter how sincerely held.” Suarez v. Pueblo Int’l, Inc., 229 F.3d at 54. Courts will consider the entirety of the allegations when determining whether an environment forces a plaintiff to resign. In Sauer v. Belfor USA Group, Inc., 2016 U.S. Dist. LEXIS 120781 (D. Mass. Sept. 7, 2016), the plaintiff resigned after being subjected to actions including a coworker’s “sexual pantomiming” and subsequent entrance into her office, another coworker’s act of making her leave the warehouse with him before he pressured her to withdraw her sexual harassment complaint, and another coworker behaving aggressively, including yelling and slamming doors. The plaintiff alleged that such conduct, as well as the defendant’s failure to address it, caused her anxiety, exacerbated her psoriasis, and made her so “sick to her stomach” that she had to leave work. The court held that while the described circumstances were not as dire as the abuse imposed on some other plaintiffs, taking such allegations as a whole, the plaintiff marginally stated a plausible claim that she was “effectively prevent[ed]” from performing her job and “effectively force[d]” to resign in order to protect her health and her professional status. Sauer v. Belfor USA Grp., Inc., 2016 U.S. Dist. LEXIS 120781. In contrast, in Thirkield v. Neary & Hunter OB/GYN, LLC, 76 F. Supp. 3d 339, 351 (D. Mass. 2015), the court held that a female employee receiving the “cold shoulder” from coworkers after engaging in protected activity by complaining of a female coworker’s unwanted sexual advances was not so 8–42

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3

intolerable that it would force her to resign, and thus did not constitute constructive discharge for purposes of a Title VII retaliation claim. A plaintiff may be required to complain and give the employer a reasonable opportunity to remedy the problem before quitting, unless the harassment is particularly egregious. Thus, a plaintiff’s decision to resign after working just two weeks, instead of participating in an investigation into the alleged harassment, precluded a constructive discharge claim. Trinh v. Gentle Commc’ns, LLC, 71 Mass. App. Ct. 368, 374– 75 (2008); see also Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 45 (1st Cir. 2003) (“staying on the job while seeking redress [is] the rule save in exceptional cases”); Luciano v. Coca-Cola Enters., 307 F. Supp. 2d 308, 321 (D. Mass. 2004) (rejecting constructive discharge claim because a reasonable person would have awaited the results of the investigation). The timing of the employee’s resignation is also relevant: “If a plaintiff does not resign within a reasonable time period after the alleged harassment, he was not constructively discharged.” Gerald v. Univ. of P.R., 707 F.3d 7, 26 (1st Cir. 2013) (no constructive discharge where the employee resigned one year after the alleged harassment). While the constructive discharge standard is high, it is also a fact-driven analysis. In Salvi v. Suffolk County Sheriff’s Department, 67 Mass. App. Ct. 596, 607 (2006), the Appeals Court upheld a jury’s verdict finding constructive discharge, noting the lingering effects of the harassment suffered, along with evidence that the plaintiff’s treating psychologist recommended that the plaintiff not return to work. Similarly, in Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir. 1992), evidence of “daily harassment” that culminated in the plaintiff taking an extended leave of absence supported a constructive discharge finding.

§ 8.3.7

Quid Pro Quo Sexual Harassment Claims

In addition to hostile work environment claims, a plaintiff may also claim “quid pro quo” sexual harassment under both Title VII and Chapter 151B. To proceed on a quid pro quo theory of sexual harassment under Title VII, an employee must show that the employee’s supervisor used the supervisor’s superior position to extract sexual favors from the subordinate employee, and if the employee denied those favors, the superior retaliated by taking action adversely affecting the employee’s employment. Perez v. Horizon Lines, Inc., 804 F.3d 1, 3 (1st Cir. 2015); Diggs v. Partners Healthcare Sys., Inc., 2013 U.S. Dist. LEXIS 88951, at *17 (D. Mass. June 21, 2013) (quoting Gerald v. Univ. of P.R., 707 F.3d 7, 20 (1st Cir. 2013)). Either submission to, or rejection of, unwelcome sexual advances may result in quid pro quo harassment if the terms or conditions of one’s employment are impacted. An employer may also be liable for quid pro quo sexual harassment if an employee loses an opportunity or a benefit to another employee because of the other employee’s submission to sexual advances or requests for sexual favors. See EEOC Sexual Harassment in the Workplace Guidelines; 29 C.F.R. § 1604.11(g).

MCLE, Inc. | 2nd Edition 2020

8–43

§ 8.3

Employment Discrimination in Massachusetts

A vivid example of quid pro quo harassment involving a male plaintiff and a female supervisor is provided by Cahill v. Exodus Medical Transportation, Inc., 86 Mass. App. Ct. 1112, 2014 Mass. App. Unpub. LEXIS 1002, at *1–2 (2014). In that case, the supervisor told the plaintiff that he would be hired based on “his looks and sexual performance.” The plaintiff and the supervisor began “a mutual dating relationship that was heavily based on sexual relations,” but when he tried to break it off, the supervisor told him on multiple occasions that breaking it off would result in his termination. After learning that the plaintiff was dating someone else, the supervisor “vandalized [the plaintiff’s] car and left multiple voicemail messages threatening to terminate his employment.” Given this, the Appeals Court found that the “evidence easily sufficed to permit a rational finder of fact to conclude that [the supervisor’s] actions amounted to quid pro quo sexual harassment.” Cahill v. Exodus Med. Transp., Inc., 2014 Mass. App. Unpub. LEXIS 1002, at *1–2. Once the complainant establishes that they were subject to an adverse action for rebuffing a request for sexual favors, the burden of production, as opposed to the burden of proof, shifts to the respondent to articulate a legitimate nondiscriminatory reason for the adverse employment action taken, supported by credible evidence. Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 785 (1st Cir. 1990); Shanley v. Pub 106, Inc., 22 M.D.L.R. 333, 336 (2000). This is in many ways similar to a retaliation claim under the antidiscrimination statutes. If the respondent meets its burden of production, the complainant must prove that the reasons offered by the respondent were not its true reasons but were a pretext for discrimination. Shanley v. Pub 106, Inc., 22 M.D.L.R. at 336; see Gerald v. Univ. of P.R., 707 F.3d at 24–25 (denying summary judgment where there was evidence that plaintiff’s rejecting a sexual proposition was “a basis for decisions that affected the terms of her employment”). For example, a complainant may meet the initial burden by showing that the complainant was fired soon after turning down a supervisor’s request for a date. The request for a date would constitute the unwelcome advance. If there is sufficient closeness in time between the complainant’s rejection of the supervisor’s request and the firing, this may create an inference of causation. Bradbury v. The Elbow Room, 18 M.D.L.R. 107, 108 (1996).

§ 8.3.8

Statute of Limitations and the Continuing Violation Doctrine

Under both Title VII and Chapter 151B, a claimant must first file a charge of discrimination with the EEOC or the MCAD within 300 days of the alleged harassment. 42 U.S.C. § 2000e5(e)(1); G.L. c. 151B, § 5. Additionally, if a claimant wishes to pursue a Chapter 151B claim in court rather than at the MCAD, the civil action must be filed within three years of the unlawful act. G.L. c. 151B, § 9. While statute of limitations analysis is normally straightforward in the discrimination context, sexual harassment claims are often complicated by the “continuing violation doctrine.” This doctrine recognizes that, unlike a demotion, a termination, or other adverse acts of discrimination that occur at a set point in time, hostile work environment harassment “cannot be said to occur on any particular day. It occurs over a series 8–44

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3

of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002); Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. 521, 529 (2001). Thus, in a harassment claim, a fact finder may look not only at the unlawful acts that occurred within the 300-day limitations period but also at related acts that occurred before then. This doctrine applies to claims under both Title VII and Chapter 151B. Both statutes require that at least one harassing act occur within the limitations period and the alleged timely harassing act must have a substantial relationship to the other, untimely, acts. Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632, 643 (2004); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 115. In addition, Massachusetts imposes an “awareness and duty” requirement not found under Title VII. Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. at 643. The first element of the continuing violation doctrine requires that there be one or more harassing acts during the 300-day period, which “anchors” the other, otherwise untimely, acts. See Crowley v. L.L. Bean, Inc., 303 F.3d 387, 395–96 (1st Cir. 2002). The “anchoring act” must “substantially contribute to [the] continuation of a hostile work environment;” innocuous or inoffensive acts within the limitations period will not support a continuing violation theory. Sansoucy v. Southcoast Health Sys., 84 Mass. App. Ct. 1114 (2013). Furthermore, the fact that an employee suffers the ongoing effects of past harassment into the limitations period does not show a continuing violation. MCAD Sexual Harassment in the Workplace Guidelines. The second element looks to whether “the acts about which an employee complains are part of the same actionable hostile work environment practice.” Andujar v. Nortel Networks, Inc., 400 F. Supp. 2d 306, 330 (D. Mass. 2005). This element can be established by proving that “the pre- and post-limitations period incidents involve the same type of employment actions, occurred relatively frequently and were perpetrated by the same managers.” Brissette v. Franklin Cty. Sheriff’s Office, 235 F. Supp. 2d 63, 88 (D. Mass. 2003). For example, in Tuli v. Brigham & Women’s Hospital, 656 F.3d 33, 39–41 (1st Cir. 2011), actions taken over a five-year period were found to be a “classic example of a continuing violation” because they were perpetrated by the plaintiff’s supervisor and involved similar “incidents of humiliating, offensive comments directed at women and work-sabotaging pranks.” On the other hand, where different managers engaged in the alleged harassing acts and none of the actionable conduct occurred within the limitations period, the continuing violation doctrine did not apply. Andujar v. Nortel Networks, Inc., 400 F. Supp. 2d at 334. Massachusetts law imposes an additional hurdle for claimants to surmount before invoking the continuing violation doctrine. A claimant must show that the otherwise time-barred events did not trigger their awareness and duty to assert their rights under the law. Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. at 643. An employee’s “awareness and duty” is triggered when the employee “knew or could have formed a reasonable belief that the earlier violations were discriminatory.” Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. at 644 n.16. Said differently, if the employee MCLE, Inc. | 2nd Edition 2020

8–45

§ 8.3

Employment Discrimination in Massachusetts

understood, or reasonably should have understood, “that he was being discriminated and/or retaliated against at the time each of the alleged time-barred acts occurred,” the continuing violation doctrine will not apply. Windross v. Barton Protective Servs., 586 F.3d 98, 103 (1st Cir. 2009). The “awareness and duty” requirement presents potential plaintiffs with something of a catch-22. When seeking to prove that otherwise time-barred conduct should be considered as part of a hostile work environment, the employee must prove that the conduct was not so severe as to give rise to the “reasonable belief” that it was discriminatory, but the plaintiff must also prove that the conduct was not so trivial that it should be discounted entirely. Defendants may also be placed in the odd position of arguing that past conduct was so severe and offensive that the plaintiff knew that they were being unlawfully harassed, and thus the conduct cannot be considered.

§ 8.3.9 (a)

Damages Emotional Distress Damages

Emotional distress is the most common category of damages awarded in connection with a successful sexual harassment claim. A finding of harassment, “by itself, is no longer sufficient to permit an inference of, or a presumption of, emotional distress.” Stonehill Coll. v. MCAD, 441 Mass. 549, 576 (2004); see Azimi v. Jordan’s Meats, Inc., 456 F.3d 228, 235 (1st Cir. 2006) (“An award of damages for emotional distress must be supported by competent evidence of genuine injury . . . the proof of which is distinct from the proof required to show discrimination.”). Factors considered in weighing emotional distress damages include “(1) the nature and character of the alleged harm; (2) the severity of the harm; (3) the length of time the complainant has suffered and reasonably expects to suffer; and (4) whether the complainant has attempted to mitigate the harm (e.g., by counseling or by taking medication).” Stonehill Coll. v. MCAD, 441 Mass. at 576. Further, there must be proof of a causal link between the discriminatory acts and the emotional distress; “emotional distress existing from circumstances other than the actions of the respondent, or from a condition existing prior to the unlawful act, is not compensable.” Stonehill Coll. v. MCAD, 441 Mass. at 576. “Medical or other expert evidence is not required to prove emotional distress,” and “a plaintiff’s own testimony, along with the circumstances of a particular case, can suffice to sustain the plaintiff’s burden” to prove this element of damages. Azimi v. Jordan’s Meats, Inc., 456 F.3d at 237; see Stonehill Coll. v. MCAD, 441 Mass. at 576. Absent proof of harm, emotional distress damages may be denied. For instance, in DeRoche v. MCAD, 447 Mass. 1 (2006), the Supreme Judicial Court reversed a $50,000 emotional distress award because the MCAD’s findings “lack[ed] any causal connection” to the unlawful conduct. Likewise, in Azimi v. Jordan’s Meats, Inc., 456 F.3d at 236–37, the First Circuit upheld a zero-dollar verdict where the jury could have disregarded the plaintiff’s testimony that the harassment caused emotional distress. When there is evidence of emotional distress, however, such damages can be substantial. In O’Rourke v. City of Providence, 235 F.3d 713, 733–34 (1st Cir. 2001), 8–46

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3

evidence that the harassment caused the plaintiff to gain eighty pounds, shake uncontrollably, have difficulty sleeping, spend days in bed, and not want to leave the house supported a $275,000 emotional distress award. Likewise, in Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 103 (1st Cir. 2006), the plaintiff’s insomnia, anxiety, guilt, and depression supported a $705,000 verdict. Defense practitioners should seek records from all of the plaintiff’s treating physicians, psychologists, therapists, or other medical professionals. Counsel should look for discussions about the alleged harassment, as well as other potential sources of emotional distress in the person’s life. Depositions of relevant medical professionals, particularly mental health professionals, may be appropriate. Likewise, the fact that a plaintiff did not take adequate steps to mitigate their distress by seeking professional help can undercut a claim for damages. Plaintiffs may seek to resist discovery of psychotherapists’ records, per the psychotherapist-patient privilege codified at G.L. c. 233, § 20B. However, this privilege does not apply “in any proceeding . . . in which the patient introduces his mental or emotional condition as an element of his claim or defense,” and the judge concludes that the interests of justice require disclosure. G.L. c. 233, § 20B(c). A defendant may also seek an independent medical examination of the plaintiff, particularly where the plaintiff is asserting significant mental health issues such as depression. Such examinations can be taken only by order of the court. Fed. R. Civ. P. 35; Mass. R. Civ. P. 35. Emotional distress and other compensatory damages are capped under Title VII at between $50,000 and $300,000, depending on the employer’s size. Chapter 151B has no such limits.

(b)

Economic Damages

Back pay and similar economic damages normally require a showing that the defendant terminated, or otherwise took a tangible employment action, against the employee. In a hostile work environment case, such tangible employment actions are missing, and therefore back pay damages are available only where there was a constructive discharge. See Pa. State Police v. Suders, 542 U.S. 129, 147 n.8 (2004) (“a prevailing constructive discharge plaintiff is entitled to all damages available for formal discharge. The plaintiff may recover postresignation damages, including both backpay and, in fitting circumstances, frontpay”). On the other hand, a quid pro quo harassment plaintiff will normally have suffered an adverse employment action and therefore will be able to collect economic damages resulting from it. See Cahill v. Exodus Med. Transp., Inc., 86 Mass. App. Ct. 1112, 2014 Mass. App. Unpub. LEXIS 1002 (2014) (“the judge properly instructed the jury that [the quid pro quo plaintiff] was entitled to back pay”).

MCLE, Inc. | 2nd Edition 2020

8–47

§ 8.3

Employment Discrimination in Massachusetts

A claimant has a duty to mitigate their damages by finding comparable work, and a failure to meet this duty can result in back pay being cut off. See Sheriff of Suffolk Cty. v. Jail Officers Emps. of Suffolk Cty., 465 Mass. 584 (2013).

(c)

Punitive Damages

A plaintiff can also seek punitive damages in a sexual harassment case. As with emotional distress, a finding of unlawful conduct alone is insufficient. Instead, “an award of punitive damages requires a heightened finding beyond mere liability and also beyond a knowing violation of the statute.” Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 110 (2009). “Punitive damages may be awarded only where the defendant’s conduct is outrageous or egregious” and “where the conduct is so offensive that it justifies punishment and not merely compensation.” Haddad v. Wal-Mart Stores, Inc., 455 Mass. at 110; see Arrieta-Colon v. Wal-Mart P.R., Inc., 434 F.3d 75, 89 (1st Cir. 2006) (“punitive damages are available only upon a showing that the employer acted with reckless indifference or malice”). Failure to adequately investigate and take appropriate remedial action can be sufficient to support a significant punitive damages award. Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290 (2016) (upholding a $500,000 punitive damages award for failure to adequately address a sexual harassment complaint). Under Chapter 151B, the fact finder “should consider all of the factors surrounding the wrongful conduct.” Such factors may include • whether there was a conscious or purposeful effort to demean or diminish the class of which the plaintiff is a part (or the plaintiff because they are a member of the class); • whether the defendant was aware that the discriminatory conduct would likely cause serious harm, or recklessly disregarded the likelihood that serious harm would arise; • the actual harm to the plaintiff; • the defendant’s conduct after learning that the initial conduct would likely cause harm; • the duration of the wrongful conduct and any concealment of that conduct by the defendant. Haddad v. Wal-Mart Stores, Inc., 455 Mass. at 111. Under Title VII, an employer may be liable for punitive damages in four instances: • when the agent has been authorized by the principal to commit the misconduct in question; • when the principal recklessly employed the unfit agent; • when the agent, acting in a managerial capacity, committed the misconduct within the scope of the employment; or 8–48

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3

• when the agent’s bad act was subsequently approved by the principal. Arrieta-Colon v. Wal-Mart P.R., Inc., 434 F.3d at 90. An employer may not be liable for punitive damages where “the discriminatory employment decisions of managerial agents . . . are contrary to the employer’s good-faith efforts to comply with Title VII.” Arrieta-Colon v. Wal-Mart P.R., Inc., 434 F.3d at 90 (quoting Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 538, 545 (1999)). Under Title VII, punitive damages are capped between $50,000 and $300,000, depending on the employer’s size. Chapter 151B has no caps on damages.

(d)

Attorney Fees

Under both Title VII and Chapter 151B, a plaintiff who prevails at trial can recover attorney fees and costs. 42 U.S.C. § 2000e-5(k); G.L. c. 151B, § 9. Fees are normally calculated using the “lodestar” method, based on “multiplying the number of hours reasonably spent on the case times a reasonable hourly rate.” Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993). The U.S. Supreme Court in 2016 addressed the definition of a “prevailing party” who can be awarded attorney fees in Title VII cases. Defendants can recover attorney fees and costs under Title VII for frivolous, unreasonable, or groundless claims when such claims are disposed of on any grounds, regardless of whether those grounds are merit-based or procedural. CRST, Inc. v. EEOC, 136 S. Ct. 1642 (2016). A favorable ruling on the merits of a Title VII case is “not a necessary predicate to find that a defendant has prevailed.” CRST, Inc. v. EEOC, 136 S. Ct. 1642 (2016).

§ 8.3.10 Reducing the Risk of Sexual Harassment General Laws Chapter 151B expressly requires employers to adopt a sexual harassment policy. G.L. c. 151B, § 3A. The written policy should include the following: • a statement that sexual harassment in the workplace is unlawful, • a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of a complaint for sexual harassment, • a description and examples of sexual harassment, • a statement of the range of consequences for employees who are found to have committed sexual harassment, • a description of the process for filing internal complaints about sexual harassment and the work addresses and telephone numbers of the person or persons to whom complaints should be made, and • the identity of the appropriate state and federal employment discrimination enforcement agencies and directions as to how to contact such agencies.

MCLE, Inc. | 2nd Edition 2020

8–49

§ 8.3

Employment Discrimination in Massachusetts

MCAD Sexual Harassment in the Workplace Guidelines. Chapter 151B further requires employers to provide a written copy of the employer’s policy against sexual harassment to all employees on an annual basis and to new employees upon their hiring. Title VII does not have any such requirement. However, as discussed above, the Faragher/Ellerth defense is available only where the employer has taken reasonable and effective measures to prevent harassment. An employer’s practice of providing employees with a written copy of its sexual harassment policy or providing antidiscrimination training will be useful in asserting this defense. In addition to adopting a written sexual harassment policy, an employer should take the following steps, not only to have the Faragher/Ellerth defense available to it, but, more importantly, so that harassment can be avoided or remedied.

(a)

Tailored Policy

While the MCAD offers a sample harassment policy (see Exhibit 8B), employers should take the additional step to customize the policy to their circumstances. Work conditions vary depending on the nature of a business, and many “boilerplate” antiharassment policies are not tailored to particular working conditions—e.g., extensive traveling, periodic attendance at sales calls that may involve significant social activities, etc. Every employer should review its present policy to see if it can be made more specific to address potential problems.

(b)

Distribution to Employees

A policy that no one ever sees is of little use. Every employee should receive a copy of the antiharassment policy on an annual basis. Consider having every employee sign an acknowledgment that the employee received and read the policy each year. In addition to annual individualized distribution, the policy should also be prominently posted.

(c)

Training

While Massachusetts does not have a statutory training requirement, employers are encouraged to provide sexual harassment training to new employees within one year of employment. G.L. c. 151B, § 3A(e). Employers are also encouraged to provide additional training for managers and supervisors that describes their specific responsibilities in sexual harassment incidents. This training should also occur within a year of the commencement of managerial or supervisory duties. G.L. c. 151B, § 3A(e). A report issued in July 2016 by the EEOC’s Select Task Force on the Study of Harassment in the Workplace determined that approximately one-third of charges received by the EEOC in fiscal year 2015 included an allegation of workplace harassment. As shown in the table below, the EEOC has an increasing volume of sexual harassment claims each year, with more charges filed in FY2018 than in any year since 2010.

8–50

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3

Charges Alleging Sex-Based Harassment*

*

FY 2010

FY 2011

FY 2012

FY 2013

FY 2014

FY 2015

FY 2016

FY 2017

FY 2018

12.695

12.461

12.569

12.379

12.146

12.573

12.860

12.428

13.055

This does not include charges filed with state or local fair employment practices agencies.

The EEOC report focused heavily on the need for employers to provide training that emphasizes prevention, as opposed to merely avoiding legal liability. The EEOC also cautions that one size does not fit all: training is most effective when tailored to the specific workforce and workplace. The EEOC suggests two new approaches to training: First, “bystander intervention training,” which empowers coworkers and gives them the tools to intervene when they witness harassing behavior, and second, workplace “civility training” that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment nondiscrimination laws, but rather on promoting respect and civility in the workplace more generally.

(d)

Employee Reporting Responsibility

Managers should understand that they are required to report any sexual harassment of which they become aware at any time. Likewise, line-level employees should be encouraged to report any harassment they may witness, not only involving themselves, but also involving other employees.

(e)

Institute Complaint Procedure

Each employer should carefully review its complaint procedure. It must be reasonable and reassuring to employees. It must provide for the prompt investigation and resolution of all complaints. The procedure must have a mechanism by which an employee can make a complaint that bypasses the employee’s immediate supervisor. In addition, it is helpful to have an alternative, sometimes less-threatening procedure that allows an employee to bypass the formal complaint mechanism altogether and simply make an appointment with the human resources manager, the in-house general counsel, or the CEO or other very senior executive. The complaint procedure should assure employees that they will not be retaliated against for raising complaints.

(f)

Showing of Effective Remedial Action

Employers that can develop proof of effective remedial action when faced with internal complaints will significantly bolster their claim that the affirmative defense is applicable. Investigations of harassment claims should be prompt and thorough. If there is evidence of harassment, there should be swift and effective steps taken to prevent it from happening again, whether that means disciplining the harasser, transferring the harasser (or the victim, with their permission), or even terminating the harasser.

MCLE, Inc. | 2nd Edition 2020

8–51

§ 8.3

Employment Discrimination in Massachusetts

In Thirkield v. Neary & Hunter OB/GYN, LLC, 76 F. Supp. 3d 339, 346 (D. Mass. 2015), the court found that an employer’s response to a female employee’s claims of a sexually hostile work environment created by a female coworker who allegedly grabbed her breasts and made suggestive comments, was prompt and appropriate. Because of the prompt and appropriate action, the employer was not liable under Title VII for the coworker’s behavior, and was not required to take additional available measures. The employer responded to the employee’s single report of harassment by informing the coworker that her behavior was unacceptable and by verbally reprimanding her, and kept the employee’s identity as the complainant confidential. Moreover, the employee was never harassed by the coworker after the initial complaint.

§ 8.3.11 The #MeToo Movement In the wake of high-profile sexual harassment accusations across nearly every industry, the #MeToo movement has shown considerable staying power. The movement started as people posting #MeToo on social media to raise awareness that they were sexually harassed or assaulted at some point in their lives. Since then, it has become a shorthand for sexual harassment in the workplace. #MeToo has not significantly changed the legal landscape—for the most part, employees have the same rights, and employers have the same obligations, since the movement first gained traction in 2017. However, #MeToo has increased the awareness of the general public—and employees—of sexual harassment in the workplace. This has led to an increase in internal complaints of harassment—which correspond to an increase in internal investigations. Employers should therefore make sure that managers are sensitive to internal complaints of harassment, and report any such concerns immediately to the appropriate person. Likewise, having human resources professionals trained and ready to respond to such complaints, including conducting prompt and thorough investigations, is more important than ever. See Checklist 8.1 for a sexual harassment investigation checklist. Employees may also make external complaints of harassment, for instance, on social media. Is that sufficient to put an employer on notice of harassment? Perhaps not. An employee is expected to utilize the employer’s mechanisms for reporting alleged harassment. Courts have concluded that an employee unreasonably fails to take advantage of complaint procedures if the employee notifies someone not authorized by the employer’s policy to accept harassment complaints—which would include a general post on social media. See, e.g., Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998) (holding that an employer has an affirmative defense to a sexual harassment/hostile work environment where “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise”); Cooper v. CLP Corp., 679 F. App’x 851, 853 (11th Cir. 2017); Speigner v. Shoal Creek Drummond Mine, 402 F. App’x 428, 431–32 (11th Cir. 2010) (affirming defense where the plaintiff “made an oral complaint to the union steward but never reported the harassment to the officials identified in [the employer’s] published sexual harassment reporting procedures”). Thus, as discussed above, sexual harassment policies should clearly state the avenues available to an 8–52

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

§ 8.3

employee for reporting harassment, and such policies should be distributed to employees regularly. That said, as a practical matter, even if the employee has not properly followed the employer’s reporting procedures, an employer that is aware of an allegation of harassment should nonetheless address it and conduct the same investigation and take the same remedial steps as if the employee had followed the proper procedures. A social media post or other public allegations of sexual harassment carries with it the risk of media attention and negative publicity. Employers that are the subject of a public #MeToo post should consider the public relations issues associated with such allegations and take steps to proactively address them. Likewise, with #MeToo gaining prominence, now is a good time to conduct further antidiscrimination and antiharassment training. An employer should ensure that employees read and understand its policies and procedures, as well as its commitment to preventing and correcting unlawful behavior in the workplace.

MCLE, Inc. | 2nd Edition 2020

8–53

Checklist 8.1

Employment Discrimination in Massachusetts

ü CHECKLIST 8.1 Harassment Investigation Checklist The following checklist is only a starting point. Each harassment investigation presents its own unique issues and challenges, and therefore the below checklist should be modified to fit the workplace, the complainant, the claims, and so on. It is recommended to consult with counsel before implementing any new investigation procedures. q Consider the order in which investigation interviews will be conducted; q complainant; q alleged harasser; q coworkers, managers, and other witnesses; q second interview of the complainant to discuss any factual questions as a result of the investigation; and q second interview with the alleged harasser to discuss any factual questions as a result of the investigation. q Interview each witness separately in an office or room where the discussion will not be overheard by other witnesses, the alleged harasser, or any other unauthorized persons. q If possible, two managers should participate in the interview process. At least one of the investigating managers should be thoroughly familiar with harassment law and the company’s harassment policies and procedures. If more than one manager is participating, one should be designated as the interviewer, and the other should act primarily as a witness and take notes of the discussion. q Before beginning the interview, explain the purpose of the interview by referring generally to recent complaints about the relationship between the complainant and the alleged harasser. Do not necessarily discuss the issue of harassment, so that you do not taint the witness’s recollection of the events. q Emphasize that the company takes these charges very seriously and that the company is investigating these charges by interviewing all potential witnesses in compliance with company policy. q Explain that upon completion of the investigation, the company will attempt to determine what occurred, and will take appropriate action based on its determination. q Both the alleged victim and the alleged harasser should be advised that each will be apprised of the results of the investigation and any action taken.

8–54

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Checklist 8.1

q Instruct each witness interviewed not to discuss the matters covered during the interview with any coemployee or the alleged harasser. q Explain to the witness that confidentiality is necessary to protect the integrity of the investigation and to ensure that the company receives trustworthy information in an atmosphere free from coercion. q Avoid leading questions. q Ask open ended, nonjudgmental questions. Use investigation interview forms where appropriate. q Explain to all witnesses that retaliation will not be tolerated. q Avoid the appearance of impropriety or favoritism in conducting interviews. q Observe and record all physical and verbal reactions of witnesses. q Do not record conclusions regarding credibility. q Avoid judgmental statements or furthering of myths or stereotypes. q Interview all possible witnesses: q complainant; q alleged harasser; q complainant’s supervisor; q alleged harasser’s supervisor; q coworkers; and q other persons. q Review complainant’s personnel file. q Review alleged harasser’s personnel file. q Discuss investigation results and proposed action with investigation team. This discussion should be limited to those with a need to know the results of the investigation, such as the complainant’s supervisor, the alleged harasser’s supervisor, and senior human resources department staff. q Consider credibility determinations. Factors include: q memory; q perception; q veracity (truthfulness); q corroboration or lack of corroboration, and implications of such determination;

MCLE, Inc. | 2nd Edition 2020

8–55

Checklist 8.1

Employment Discrimination in Massachusetts

q bias of witnesses; q consistency of accounts; q prior misconduct or lack thereof, and implications of such misconduct; and q plausibility of accounts. q Review any documentary evidence. q Consider appropriate remedial action: q document investigation in personnel file; q verbal warning; q written warning; q suspension; q demotion; q transfer; and q termination. q Factors in determining appropriate remedial action: q credibility determinations; q prior conduct, if any; q prior discipline of alleged harasser; q level of harassment, including type and frequency of conduct; q alleged harasser’s knowledge of company rules of conduct; q prior disciplinary “precedent” for identical, similar or analogous misconduct; q public and employee relations issues; and q other. q Review harassment investigation and findings. q Was the company harassment policy adequate? q Were the employees aware of the terms of the harassment policy? q Was the harassment complaint procedure adequate? q Did the investigator uncover other issues that need to be addressed? q Other? q Implement changes to harassment policies and procedures where appropriate.

8–56

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8A

EXHIBIT 8A—MCAD Sexual Harassment Guidelines *This exhibit is available on the MCAD website at https://www.mass.gov/lists/mcad-guidelines-modelpolicies-and-posters#model-policies-.

MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION SEXUAL HARASSMENT IN THE WORKPLACE GUIDELINES Dorca I. Gomez, Chairwoman Cynthia A. Tucker, Commissioner Walter J. Sullivan, Jr., Commissioner Massachusetts Commission Against Discrimination, Commonwealth of Massachusetts October 2, 2002 I.

INTRODUCTION

1

Massachusetts Law prohibits sex discrimination in the workplace.2 Sexual harassment is a form of sex discrimination. Sexual harassment is also prohibited in places of public accommodation,3 educational facilities4 and housing.5 These guidelines address sexual harassment in the workplace only. The standards governing the prohibition of sex discrimination and sexual harassment in the workplace are set forth in Massachusetts General Laws chapter 151B (“chapter 151B”). The Massachusetts Commission Against Discrimination (“MCAD” or the “Commission”) issues these guidelines to assist employers,6 employees, attorneys and the general public in understanding what constitutes sexual harassment, as well as to explain what employees and employers should do to prevent, stop and appropriately respond to sexual harassment. In addition, these guidelines discuss the circumstances under which employers and individuals may be held liable for sexual harassment in the workplace. II. SEXUAL HARASSMENT A. Generally There are two types of sexual harassment: “quid pro quo” harassment and “hostile work environment” harassment. They may occur independently or concurrently. B. Quid Pro Quo Harassment Chapter 151B defines “quid pro quo” sexual harassment as: sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions. . . .7

MCLE, Inc. | 2nd Edition 2020

8–57

Exhibit 8A

Employment Discrimination in Massachusetts

To prove a claim for quid pro quo harassment, the employee must establish the following elements: 1.

That the alleged harasser made sexual advances or sexual requests, or otherwise engaged in conduct of a sexual nature;

2.

the sexual conduct was unwelcome;

3.

he or she rejected such advances, requests or conduct; and

4.

the terms or conditions of his or her employment were then adversely affected.8 or

5.

That the alleged harasser made sexual advances or sexual requests, or otherwise engaged in conduct of a sexual nature;

6.

the sexual conduct was unwelcome;

7.

he or she submitted to such advances, requests or conduct; and

8.

when he or she submitted to the unwelcome sexual conduct, he or she did so in reasonable fear of adverse employment action.9

Quid pro quo harassment occurs when an employee with authority or control over the terms and conditions of another employee’s work offers her10 a work benefit or advantage in exchange for sexual favors or gratification.11 Conversely, if an employee is denied a work benefit or advantage due to her refusal to respond to, or rejection of, requests for sexual favors or gratification, she is subjected to quid pro quo harassment. Thus, either submission to, or rejection of, unwelcome sexual advances may result in quid pro quo harassment if the terms or conditions of one’s employment are impacted.12 Examples of such impact may include but are not limited to: termination; demotion; denial of promotion; transfer; alteration of duties, hours or compensation; or unjustified performance reviews.13 Once the complainant establishes a prima facie case, the burden of production, as opposed to the burden of proof, shifts to the respondent to articulate a legitimate, nondiscriminatory reason for the adverse employment action taken, supported by credible evidence.14 If the respondent meets its burden of production, the complainant must prove that the reasons offered by the respondent were not its true reasons, but were a pretext for discrimination.15 For example, a complainant may meet her initial burden by showing that she was fired soon after she turned down her supervisor’s request for a date. The request for a date would constitute the unwelcome advance. If there is sufficient closeness in time between the complainant’s rejection of her supervisor’s request and her firing, this may create an inference of causation.16 The employer would then have to articulate a legitimate non-discriminatory reason for its adverse action supported by credible evidence. For example, if the respondent credibly asserts that the complainant was terminated for poor job performance, the burden remains with the complainant to prove, by a preponderance of the evidence, that the respondent’s conduct was motivated by her rejection of her supervisor’s advance.17 This may be done by proving that the respondent’s articulated reason is false.18 8–58

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8A

C. Hostile Work Environment19 Chapter 151B defines “hostile work environment” harassment as: sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.20 In a hostile work environment case, the complainant must prove: a)

she was subjected to conduct of a sexual nature;

b) the conduct of a sexual nature was unwelcome; c)

the conduct of a sexual nature had the purpose or effect of creating an intimidating, hostile, humiliating or sexually offensive work environment; and

d) the conduct unreasonably interfered with complainant’s work performance or altered the terms and conditions of the complainant’s employment.21 1.

Conduct of a Sexual Nature

Examples of conduct that might create a hostile work environment include: inappropriate touching; sexual epithets, jokes, gossip, sexual conduct or comments; requests for sex; displaying sexually suggestive pictures and objects; and leering, whistling, or sexual gestures.22 Harassing conduct need not be motivated by sexual desire in order to constitute sexual harassment.23 2.

Welcomeness

The law does not proscribe all conduct of a sexual nature. Only unsolicited and unwelcome conduct may create a hostile work environment. When the employee initiates conduct of a sexual nature or is a willing participant in a sexually charged environment, she may not be the victim of sexual harassment. Whether the conduct was “welcome” does not turn on whether the complainant’s behavior was “voluntary.” When an employee only submits to harassing behavior to avoid being targeted further, to cope in a hostile environment, or because participation is made an implicit condition of employment, she is not considered to have welcomed the conduct.24 The employee’s rejection of, or failure to respond positively to, suggestive comments or gestures may demonstrate unwelcomeness. The fact that the employee may have infrequently joked with the alleged harasser does not demonstrate that the alleged harasser’s entire course of conduct was welcome.25 An employee need not communicate her objection to harassing conduct to demonstrate its unwelcomeness.26 3.

Conduct Creating a Hostile Work Environment

In order to rise to the level of creating a hostile work environment, the conduct must be hostile, intimidating, humiliating or offensive both from an objective and a subjective perspective.27 An employee who does not subjectively perceive the behavMCLE, Inc. | 2nd Edition 2020

8–59

Exhibit 8A

Employment Discrimination in Massachusetts

ior at issue as hostile, intimidating, humiliating or offensive is not a victim of sexual harassment within the meaning of the law, even if other reasonable individuals would consider such behavior to be so.28 On the other hand, an employee who subjectively finds behavior to be hostile, intimidating, humiliating or offensive when it is not objectively so, is not a victim of a hostile work environment under chapter 151B. Thus, for example, if a female employee is faced with requests for sexual favors, the question becomes whether a reasonable person in her position would find the conduct offensive and whether she actually found the conduct offensive.29 In determining whether conduct is objectively offensive, the Commission looks to whether the conduct is severe or pervasive. In order for conduct to be considered pervasive, a complainant must prove that she was subjected to “a steady barrage of opprobrious [sexual] comment or abusive treatment.”30 Such treatment can involve a combination of physical and verbal conduct, e.g., unwanted groping or touching combined with profanity or sexual innuendo. Sexual harassment experienced by others in the workplace may also be relevant to the assessment of the conduct’s pervasiveness.31 In some circumstances, a hostile environment may be established based on a single incident, due to its severity, despite the fact that the conduct is not frequent or repetitive.32 Moreover, purely verbal conduct, without a physical component, may be severe or pervasive enough to create a hostile work environment. However, minor, isolated conduct does not constitute sexual harassment.33 “A few isolated remarks over a period of time” are generally insufficient to meet the pervasiveness standard.34 Chapter 151B is not a clean language statute and does not prohibit all use of profane or offensive language.35 4.

Conduct that Interferes with an Individual’s Ability to Perform Her Job

Proof of a hostile work environment claim requires a showing that the unwelcome sexual conduct created an impediment to an employee’s full participation in the workplace, altered the terms and conditions of her employment, or unreasonably interfered with her work performance.36 While not all offensive or inappropriate conduct will create such an impediment,37 one’s working conditions may be altered without a showing of a tangible job detriment.38 Thus, an employee may seek recovery for hostile environment sexual harassment even if she has not suffered an adverse job action such as termination, suspension, or demotion.39 Whether conduct interferes with an individual’s ability to perform her job is essentially a question of fact based on the totality of the circumstances, which include the nature, severity and pervasiveness of the conduct and the psychological harm to the employee. Conduct that interferes with an employee’s ability to do her job need not necessarily cause severe psychological harm or emotional distress to be actionable.40 D. Same-Sex Sexual Harassment Sexual harassment can occur between individuals of the same gender. The same standards that apply to sexual harassment between individuals of the opposite sex apply to harassment cases involving individuals of the same gender.41 Under a samesex sexual harassment claim, the sexual orientations of the parties are irrelevant, as the harassing conduct need not be motivated by sexual desire to be actionable.42 In 8–60

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8A

addition, there is no requirement under chapter 151B that a complainant prove the conduct was motivated by his or her gender.43 E. Sexual Harassment Outside of the Workplace Chapter 151B may apply to harassment that occurs between co-workers that takes place outside the workplace. When the conduct complained of occurs outside of the workplace, the Commission may consider the following factors in assessing whether the conduct constitutes sexual harassment: • whether the event at which the conduct occurred is linked to the workplace in any way, such as at an employer-sponsored function;44 • whether the conduct occurred during work hours;45 • the severity of the alleged outside-of-work conduct; • the work relationship of the complainant and alleged harasser, which includes whether the alleged harasser is a supervisor and whether the alleged harasser and complainant come into contact with one another on the job;46 • whether the conduct adversely affected the terms and conditions of the complainant’s employment or impacted the complainant’s work environment.47 III. EMPLOYER LIABILITY A. Generally Sections 4(1) and 4(16A) of chapter 151B provide the statutory basis for employer liability in cases of sexual harassment. Section 4(1) states in relevant part: It shall be an unlawful practice: 1.

For an employer, by himself or his agent, because of the . . . sex of any individual to . . . discriminate against such individual in compensation or in terms, conditions or privileges of employment. ******

Section 4(16A) states: It shall be an unlawful practice: 16A. For an employer, personally or through its agents, to sexually harass any employee. ****** B. Employers are Liable for Harassment by Persons with Supervisory Authority An employer is liable for the sexual harassment of employees by managers and persons with supervisory authority, regardless of whether the employer knows of the conduct.48 Because Massachusetts courts have determined that the Legislature intended that an employer be liable for discrimination committed by those on whom it confers authority, the courts have adopted the theory of vicarious liability in harassment cases.49 An employer is liable for the actions of its managers and supervisors because they are conferred with substantial authority over subordinates and are thus MCLE, Inc. | 2nd Edition 2020

8–61

Exhibit 8A

Employment Discrimination in Massachusetts

considered agents of the employer.50 In some circumstances, an employer may be liable for the actions of a supervisor, even if that supervisor does not have direct supervisory authority over the Complainant.51 Factors the Commission will consider as indications of supervisory authority include, but are not limited to: • Undertaking or recommending tangible employment decisions affecting an employee; • Directing activities, assigning work and controlling work flow; • Hiring, firing, promoting, demoting or disciplining; • Altering or affecting an employee’s compensation or benefits; • Evaluating an employee’s work load; • Distributing necessary supplies and tools; • Giving directions and verifying and fixing mistakes; • Assisting employees in assigning tasks; and • Monitoring and evaluating work performance.52 The employer may be vicariously liable for sexual harassment even if the alleged harasser is not formally designated as a supervisor and even if a supervisor lacks actual authority, under the doctrine of apparent authority.53 Liability under these circumstances exists when the harasser holds himself out to the employee as having supervisory authority over the employee.54 The employee’s belief that the harasser has authority over her, to the extent that it is reasonable, may be a significant factor in determining the existence of apparent authority.55 C. Employer Is Liable for Sexual Harassment in Other Circumstances An employer may also be liable for sexual harassment committed by persons without actual or apparent supervisory authority, such as co-workers.56 The complainant must show that the employer either knew57 or should have known58 about the harassing conduct and failed to take prompt, effective and reasonable remedial action.59 The respondent’s obligation to take remedial action is discussed in greater detail in § VI(F), infra. An employer may also be liable for the sexual harassment of its employees by certain non-employees, such as customers,60 patients,61 clients,62 independent contractors or other acquaintances.63 An employer may be held liable for the unlawful conduct of such non-employees when the employer knew or should have known about the conduct and failed to take prompt, effective and reasonable remedial action. The primary difference between employer liability for harassment perpetrated by coworkers and harassment committed by non-employees lies in the ability of the employer to control the conduct of the non-employees. The greater the employer’s ability to control the non-employee’s conduct, the more likely it will be found liable for that person’s unlawful harassment.64

8–62

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8A

IV. INDIVIDUAL LIABILITY FOR SEXUAL HARASSMENT An individual may be held liable for sexual harassment as an employer under M.G.L. c. 151B, § 4(1) and § 4(16A), or under M.G.L. c.151B, §§ 4(4A) and 4(5), which specifically prohibit “any person” from engaging in certain types of discriminatory conduct.65 A. Individuals May Be Liable as the Employer When an individual is the employer, rather than merely an agent of the employer, the individual may be liable under chapter 151B, § 4(1) and § 4(16A), which prohibit unlawful sexual harassment on the part of an employer. Depending on the size, nature and form of the business, an individual may be so closely identified with the business entity that the individual is personally liable as the employer.66 This may apply to principals, owners, presidents or partners in a business.67 B. Individuals May Be Liable Under Chapter 151B, § 4(4A) Chapter 151B, § 4(4A) states that it is an unlawful practice: for any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter . . . (emphasis supplied). Individuals may be subject to liability under § 4(4A) for engaging in sexually harassing conduct.68 Both supervisors and co-workers may be liable under this section for engaging in sexually harassing conduct.69 Furthermore, the Commission has held that an individual may be liable even in circumstances where the employer is not subject to liability.70 Section 4(4A) even reaches the conduct of a third party, nonemployee who sexually harasses an employee.71 C. Individuals May Be Liable Under Chapter 151B, § 4(5) (“Aiding and Abetting” Liability) Chapter 151B, § 4(5) states that it is an unlawful practice: for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so. Under the language of § 4(5), any individual—including employees of respondents and third parties—who actively perpetrates or assists another in acts prohibited by chapter 151B can be held separately liable as an aider and abettor.72 The tripartite standard for determining “aider and abettor” liability is: • The wrongful act must be separate and distinct from the underlying claim or an act in furtherance of the underlying claim; • The aider and abettor shared an intent to discriminate not unlike that of the alleged principal offender; and • The aider and abettor knew of his or her supporting role in an enterprise that deprived an individual of a right guaranteed under M.G.L. c. 151B.73

MCLE, Inc. | 2nd Edition 2020

8–63

Exhibit 8A

Employment Discrimination in Massachusetts

Inaction by an employee may, under certain circumstances, give rise to individual liability under § 4(5). For liability to attach in this circumstance, the individual must: 1) have knowledge of ongoing sexual harassment; 2) have an obligation and the authority to investigate and/or take remedial action; 3) intentionally fail to take such action; and 4) contribute to the complainant’s injury by failing to act.74 “[I]n situations where the inaction of the employee results from ‘deliberate indifference,’ and not mere inattention or negligence, such nonfeasance ‘is not mere inaction, but a designed and willful act of forbearance in a situation where action is required.’”75 However, if the employee has no duty to intervene to stop the harassment and is not in a position to do so, he will not be subject to liability under § 4(5).76 An individual may only be liable as an aider or abettor when there is evidence of a joint enterprise between more than one participant.77 The individual must have specific knowledge of his or her supporting role in the unlawful enterprise.78 An individual may engage in a joint enterprise with the “fictional” legal entity of the respondent corporation—which possesses all of the legal attributes of a natural person—if that individual is in a position to subject the employer to vicarious liability.79 V. EMPLOYERS’ SEXUAL HARASSMENT POLICIES AND COMPLAINT PROCEDURES A. Sexual Harassment Policy In Massachusetts, the law requires employers with six or more employees to adopt a written policy against sexual harassment.80 The employer’s policy must include notice to employees that sexual harassment in the workplace is unlawful and that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment.81 The policy should also assert the employer’s commitment to investigate any complaint of sexual harassment. The Commission has prepared a Model Sexual Harassment Policy and a poster.82 The Commission recommends that an employer’s policy include, at a minimum, all the requirements enumerated in chapter 151B and all the components of the Model Policy, as follows: • a statement that sexual harassment in the workplace is unlawful; • a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment, or for cooperating in an investigation of a complaint of sexual harassment; • a description and examples of sexual harassment; • a statement of the potential consequences for employees who are found to have committed sexual harassment;

8–64

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8A

• a description of the process for filing internal complaints about sexual harassment and the work addresses and telephone numbers of the person or persons to whom complaints should be made; and • the identity of the appropriate state and federal employment discrimination enforcement agencies and instructions as to how to contact such agencies. Employers should specifically prohibit the dissemination of sexually explicit voice mail, e-mail, graphics, downloaded material or websites in the workplace and include these prohibitions in their workplace policies.83 An employer must present new employees with a copy of the employer’s policy upon commencement of employment and provide all employees with an individual written copy of the policy on a yearly basis.84 Employers should also post the policy in a conspicuous area in the workplace. B. Sexual Harassment Training and Education While not a requirement, chapter 151B encourages employers to conduct education and training programs on sexual harassment for all employees on a regular basis.85 Employers are further advised to conduct additional training86 for supervisory and managerial employees, which should address their specific responsibilities as well as the steps that such employees should take to ensure immediate and appropriate corrective action in addressing harassment complaints.87 This is significant because employers are vicariously liable for the conduct of those persons that they place in supervisory positions.88 Employers should also train employees how to recognize and report incidents of sexual harassment. In claims alleging sexual harassment, an employer’s commitment to providing anti-harassment training to its workforce may be a factor in determining liability or the appropriate remedy.89 C. Sexual Harassment Complaint Procedure The following suggestions regarding how to draft an appropriate complaint procedure and conduct an investigation of a sexual harassment claim are advisory in nature, rather than mandatory. 1.

Employers Should Designate Person(s) to Receive Complaints of Sexual Harassment

In its sexual harassment policy, an employer should designate one or more individuals as the person(s) to whom employees should report any complaints of sexual harassment. The person(s) selected should be knowledgeable and sensitive to the issues.90 These typically include managers, supervisors, human resource personnel, principals of the employer or in-house counsel. The full names of these individuals, together with their work addresses and telephone numbers, should be included in the policy provided to employees. The employer’s internal complaint procedure should also be calculated to encourage complainants to come forward by: • designating more than one individual to receive complaints; MCLE, Inc. | 2nd Edition 2020

8–65

Exhibit 8A

Employment Discrimination in Massachusetts

• designating individuals of both sexes to receive complaints; • designating individuals at different levels of authority to receive complaints;91 • allowing complaints to be communicated orally; and • allowing a complainant to report allegations to someone other than his or her supervisor. It is also advisable for an employer to identify the person(s) and/or the department within the organization that will be authorized to initiate an internal investigation into a complaint of harassment. Any employee who receives a complaint of sexual harassment, or is made aware of any sexually harassing behavior, should immediately report it to the designated person(s) and/or the designated department. Under no circumstances should an employer: • require an employee to complain directly to the person alleged to have engaged in the sexual harassment; • insist that filing a complaint within the company is a prerequisite to filing or pursuing a complaint of sexual harassment with the MCAD or the United States Equal Employment Opportunity Commission (“EEOC”); • instruct an employee not to file a complaint with the MCAD or EEOC; or • instruct an employee not to cooperate with the MCAD or EEOC in an investigation. 2.

Duties of Persons Receiving Complaints of Sexual Harassment

The individuals designated to receive complaints of sexual harassment on behalf of the employer should document the receipt of any such complaints. It is advisable for that person to maintain the records in a way that allows for the identification of repeat offenders. Employers should instruct recipients of sexual harassment complaints to inform complainants and alleged perpetrators that they will: • keep the complaint confidential to the extent practicable under the circumstances; • conduct a prompt, neutral investigation into the allegations; and • not tolerate any form of retaliation against the complainant for having complained of sexual harassment. VI. INVESTIGATING SEXUAL HARASSMENT COMPLAINTS A. Preliminary Issues In general, the employer should always investigate a complaint of sexual harassment as soon as practicable, even if an employee asks that it not investigate his or her claim. Employers should investigate any claim involving physical violence immediately. The nature and duration of the investigation will depend on the circumstances of the complaint, including the type, severity and frequency of the alleged harassment.92 8–66

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8A

B. Conducting the Investigation Employers should investigate allegations of sexual harassment in a fair and expeditious manner, in a way that maintains confidentiality to the extent practicable. Employers should inform complainants that they have a legal duty to investigate allegations of sexual harassment, and that, while the matter will be kept as confidential as possible, it may not be possible to withhold the complainant’s identity from the alleged harasser. The employer’s investigation should generally include interviews of the complainant, the alleged harasser, witnesses, individuals whom any of the foregoing identify as having knowledge of potential relevance to the allegations, and anyone else whom the employer believes may have such knowledge.93 These interviews should be conducted in a way that protects the privacy of the individuals involved to the extent practicable under the circumstances. They should also be conducted in person where possible. The investigator should inform each interviewee, as well as any other individual apprised of the investigation, that the investigation is confidential and should not be discussed with co-workers. The investigator should further inform them that the employer will not tolerate any retaliation against the complainant or anyone else who cooperates with the investigation. The investigator should also prohibit interference with or obstruction of any investigation by the MCAD or EEOC into the allegations. The employer’s investigation should also include a review of any documents, journals, recordings, photographs, voice mails, e-mails, telephone records, or other items that may be relevant to the allegations of harassment.94 C. The Investigative File The investigator should take notes during interviews, or soon thereafter, for the purpose of maintaining accurate records. The investigator should create and maintain a confidential investigative file separate from personnel files. The file should include any materials relevant to the investigation, including but not limited to interview notes, relevant employment documents, journals, recordings, photographs, voice mails, e-mails, telephone records, or other items pertaining to the allegations or the investigation into them. D. Special Issues Regarding the Investigation 1.

Confidentiality

The employer should ensure that the investigation is kept as confidential as possible, by communicating information about the investigation only to those that need to know about it. An employer should not promise absolute confidentiality to the complainant, the alleged harasser or other witnesses, because such a promise may obstruct the employer’s ability to conduct a fair and thorough investigation. Generally, the complainant and the alleged harasser should be kept informed of the status of the investigation during the process. 2.

Interim Measures Pending the Outcome of the Investigation

During the investigation, it may be necessary or advisable for the employer to take measures to separate the alleged harasser from the complainant. These measures MCLE, Inc. | 2nd Edition 2020

8–67

Exhibit 8A

Employment Discrimination in Massachusetts

should be carefully crafted to minimize the chance that the alleged harasser will either continue to harass the complainant or will retaliate against her. The employer must also ensure that the measures themselves do not amount to retaliation against the complainant. The employer should consider a number of factors in deciding what interim measures to take, including, but not limited to, the following: • the expressed wishes of the complainant; • the nature and extent of the allegations; • the personal safety of the complainant; • the number of complainants; • whether the alleged harassment is of an ongoing nature; • the behavior of the alleged harasser; and • whether the alleged harasser has an alleged or actual history of engaging in harassment. Consideration of these factors may lead the employer to decide that certain interim measures are necessary and/or advisable. Such measures might include, but are not limited to: • placing the alleged harasser on administrative leave; • placing the complainant on administrative leave, if the complainant so requests; • transferring the alleged harasser, or the complainant if she requests, to a different area/department or shift so that there is no further business/social contact between the complainant and the alleged harasser; • instructing the alleged harasser to stop the conduct; and • eliminating the alleged harasser’s supervisory authority over the complainant. During the investigation, the employer has a duty to take the necessary steps to eliminate from the workplace the harassment about which the complainant has complained.95 The fact that it may be burdensome for the employer to take such action does not diminish this duty.96 The employer should monitor any interim measures that it takes throughout the investigation. Monitoring may include assessing whether the interim measures meet the goals of preventing ongoing harassment, protecting the safety of the parties and preventing retaliatory conduct. E. Reaching a Determination After the employer’s investigation is complete, the investigator should prepare a final written report documenting his or her findings. Generally, the investigator’s report should detail the steps the investigator took in examining the complainant’s allegations and should explain any conclusions the investigator has made. The employer should inform the complainant and the alleged harasser of its findings in the matter. If the employer concludes that sexual harassment has occurred,97 the employer must take prompt and appropriate remedial action designed to end the offending conduct and prevent future harassing conduct.98 Regardless of the investigator’s findings, 8–68

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8A

the employer should make follow-up inquiries to ensure that the conduct has not resumed and that neither the complainant nor any witnesses interviewed during the investigation has suffered any retaliation. F.

Appropriate Remedial Action

When an employer concludes that sexual harassment has occurred, the employer must take prompt remedial action designed to end the harassment and prevent future harassment. What constitutes appropriate remedial action depends upon the circumstances. Appropriate remedial action should reflect the nature and severity of the harassment, the existence of any prior incidents, and the effectiveness or lack thereof of any prior remedial steps. Generally, remedial action consists of the following: • promptly halting any ongoing harassment; • taking prompt, appropriate disciplinary action against the harasser; • taking effective actions to prevent the recurrence of harassment, including conducting a sexual harassment training where appropriate;99 and • making the complainant whole by restoring any lost employment benefits or opportunities.100 Whether the employer has taken prompt and appropriate remedial action in a given case depends upon many factors, including the timeliness of the actions and whether, given the circumstances, the actions were reasonably likely to stop the conduct and prevent it from recurring. The inquiry into whether the employer took appropriate action is focused primarily on whether the remedial action ultimately succeeded, taking into consideration whether, under the circumstances, the action was reasonably calculated to succeed.101 The efficacy of the action is not measured by whether the complainant feels that justice has been achieved, but whether the behavior that gave rise to the complaint has ceased and does not threaten to recur.102 VII. STATUTE OF LIMITATIONS A. Timeframe for Filing a Claim Chapter 151B, § 5 had required that a charge of discrimination be filed with the Commission within six months of the alleged discriminatory act. However, the statute was amended on August 7, 2002 and, beginning November 5, 2002, the time period was amended to 300 days.103 The filing requirements are to be interpreted broadly to give effect to the law’s broad remedial purposes.104 Pursuant to the Commission’s Regulations at 804 CMR § 1.10(2), the limitations period will not bar the filing in instances where the facts of a charge allege that the unlawful conduct was of a continuing nature (as discussed below) or “when pursuant to an employment contract, an aggrieved person enters into a grievance proceeding concerning the alleged discriminatory act(s) within six months (or 300 days depending on the applicable period) of the conduct complained of and subsequently files a complaint within six months (or 300 days) of the outcome of such proceeding(s).” The regulation further provides that the statutory requirement MCLE, Inc. | 2nd Edition 2020

8–69

Exhibit 8A

Employment Discrimination in Massachusetts

is not a bar where the aggrieved person enters into an agreement to mediate a dispute under M.G.L. c. 151B and files the complaint within twenty-one days after the conclusion of mediation. In addition, the filing deadline is also subject to equitable tolling. Equitable tolling has been found to apply only in the following narrow circumstances: (1) the complainant is excusably ignorant about the statute of limitations; or (2) the respondent/employer or the Commission affirmatively misleads the complainant.105 Generally, the time period under chapter 151B is triggered once the complainant knows or should know that he or she is being discriminated against.106 B. The Continuing Violations Doctrine The applicable filing deadline will not prevent employees from pursuing claims when the conduct complained of is of a continuing nature.107 This situation may occur if the case involves a pattern of conduct, the cumulative effect of which results in a hostile work environment over time, as opposed to a distinct job action that takes place on a specific date. This exception recognizes that some claims of discrimination involve a series of related events that have to be viewed in their totality in order to assess adequately their discriminatory nature and impact.108 This is because “incidents of sexual harassment serious enough to create a work environment permeated by abuse typically accumulate over time,” and any one incident, viewed in isolation, may not be serious enough to constitute harassment.109 However, viewed cumulatively, “the seemingly disparate incidents may show a prolonged and compelling pattern of mistreatment that have forced a plaintiff to work under intolerable, sexually offensive, conditions.”110 A continuing violation may be of a serial or a systemic nature. 1.

Serial Violation

A “serial” continuing violation exists when: (a) at least one instance of sexually harassing conduct occurs within the limitations period; (b) the timely and untimely acts are recurrent, related to each other, and stem from a common discriminatory animus; (c) the complainant’s delay in filing the charge as to the untimely events was not unreasonable. If a continuing violation exists, the applicable filing period does not begin to run until the occurrence of the last act of discrimination.111 Under these circumstances, harassing events occurring outside the statute of limitations may be considered timely. Therefore, if the complainant is able to establish the existence of a continuing violation, she may be able to recover damages for otherwise untimely acts in addition to damages for the timely conduct.112 The MCAD will find the complainant’s sexual harassment claim timely if the following conditions are satisfied: a.

At Least One Instance of Sexually Harassing Conduct Within the Applicable Limitations Period

An employee must establish that at least one instance of sexually harassing conduct occurred within the applicable limitations period. The conduct within the limita8–70

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8A

tions period need not, standing alone, have created a hostile work environment.113 However, the fact that an employee may have ongoing distress within the applicable time period as a result of conduct occurring prior to that period will not suffice.114 b.

The Conduct Must Be Substantially Related and Recurrent

In order for an employee to meet this prong, it must be shown that the timely act “substantially relates to earlier incidents of abuse, and substantially contributes to the continuation of a hostile work environment, such that the incident anchors all related incidents, thereby making the entirety of the claim for discriminatory conduct timely.”115 In other words, both the timely and untimely conduct must stem from a common discriminatory animus.116 Factors the Commission considers are the similarity of the acts, whether certain conduct is repeated, the nature of the timely and untimely conduct, the amount of time between incidents and the time period over which the conduct is alleged to have occurred. If a substantial relationship is found, the Commission may find that the complainant’s untimely allegations of sexual harassment are actionable.117 If the timely and untimely conduct are not linked, the conduct outside the limitations period will not be actionable. For example, hateful looks, without more, may not be found to be sufficiently related to prior, untimely acts of sexual harassment.118 c.

The Complainant’s Delay in Filing the Charge Must Not Be Unreasonable

The complainant may seek damages for conduct occurring outside the limitations period, unless she “knew or reasonably should have known that her work situation was pervasively hostile and unlikely to improve, and, thus, a reasonable person in her position would have filed a complaint with the MCAD before the statute ran on that conduct.”119 If the delay as to the earlier events is objectively unreasonable, she may still file a claim as to the timely events and use the untimely events as background evidence.120 2.

Systemic Violations

A systemic violation occurs when an ongoing discriminatory policy or practice of the employer exists. In order to be rendered timely, the complainant need not establish that the discriminatory act has occurred within the statute of limitations period, rather that the discriminatory policy that affected the complainant continued into the limitations period.121 VIII.

CONSTRUCTIVE DISCHARGE

Constructive discharge occurs when a complainant resigns or leaves a job due to working conditions so intolerable that the law treats the resignation as a discharge. Constructive discharge is not a required element of a sexual harassment claim, but offers an additional basis for damages in connection with such a claim. An employee alleging sexual harassment may prove constructive discharge by showing that she left her job under circumstances where a reasonable person in her position would have felt compelled to resign.122 Sexual harassment that results in constructive discharge may involve both verbal and physical conduct—e.g., unwanted sexual comments combined with unwelcome MCLE, Inc. | 2nd Edition 2020

8–71

Exhibit 8A

Employment Discrimination in Massachusetts

touching.123 However, verbal conduct alone, such as grossly offensive language, can also cause a constructive discharge. An employee who has been subjected to sexual harassment may establish a claim of constructive discharge by demonstrating that it was unlikely that the discriminatory environment would be properly remedied within a reasonable time period. The likelihood of establishing a claim of constructive discharge increases the longer the harassment persists, particularly where the employee has complained of the harassment and no or inadequate remedial action has been taken. Constructive discharge can occur even if the harasser does not act with the specific intent of forcing the complainant to resign from her job.124 A claim of constructive discharge under chapter 151B does not arise, however, when the complainant resigns due to general dissatisfaction with the workplace or as a result of other conduct that does not violate chapter 151B.125 An employee who is subjected to sexual harassment must pursue reasonable alternatives to quitting, such as filing an internal complaint, in order to establish constructive discharge.126 Determining whether there are reasonable alternatives to quitting is a fact-specific inquiry. For example, an employee who is sexually harassed by the president of the company may not be required to complain to a Human Resources representative subordinate to the president in order to establish constructive discharge. Moreover, if there is no human resources department or policy regarding how to address a complaint of discrimination, it may not be reasonable to expect an employee who is being harassed by his/her supervisor to file a complaint. It may, however, be reasonable to expect an employee in this situation to make clear to the offending party that the sexually harassing behavior is unwelcome and request that it stop. As a general matter, where avenues for filing an internal complaint exist, if an employee resigns before the employer has had a reasonable opportunity to investigate and address the allegation of harassment, the resignation is less likely to be determined to be a constructive discharge. Where the complainant makes an internal complaint and the employer fails to respond adequately, constructive discharge may occur.127 By contrast, responding to allegations of harassment in a prompt, effective, non-retaliatory manner may prevent a finding of constructive discharge.128 IX. RETALIATION Neither an employer nor any person may retaliate against an individual who alleges sexual harassment. Chapter 151B, § 4(4) prohibits any person or employer from taking adverse action against a person “because he [or she] has opposed any practices forbidden under [chapter 151B] or because he [or she] has filed a complaint, testified or assisted in any proceeding under [chapter 151B].”129 In order to prove retaliation, a complainant must show that: (A) she engaged in protected activity; (B) her employer knew of this protected activity and acted adversely against her; and (C) a causal nexus exists between the adverse action and the protected activity.130 A. Protected Activity Protected activity may include, but is not limited to, such actions as: • speaking to someone at the MCAD, EEOC or other civil rights or law enforcement agency, or to an attorney about the possibility of filing a claim of discrimination against the employer; 8–72

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8A

• filing a complaint at the MCAD or EEOC against the employer; • filing a complaint in court; • talking to an MCAD or EEOC investigator about another employee’s charge of discrimination against the employer; • testifying as a witness concerning a claim of harassment against the employer; • complaining to management or filing an internal complaint of harassment; • asking a supervisor or co-worker to stop engaging in harassing conduct; • cooperating with an internal investigation of a sexual harassment complaint; or • meeting with co-workers to discuss how to stop sexual harassment in the workplace. In order to prove protected activity, a complainant must demonstrate that she “reasonably and in good faith believed that the [employer] was engaged in wrongful discrimination and that [s]he acted reasonably in response to [her] belief.”131 A complainant need not prevail on her sexual harassment claim to prove a retaliation claim.132 In addition, the way in which a complainant expresses her opposition to the harassing conduct must also be reasonable. For instance, physical violence or threats of physical violence may be considered too extreme a response to be considered reasonable.133 By contrast, conduct such as reporting an incident to a sexual harassment officer, filing a claim at the Commission, providing information in an investigation, or testifying at a proceeding is never considered unreasonable. The Commission’s determination as to the reasonableness of a complainant’s oppositional conduct will take into consideration the egregiousness of the alleged harassment. B. Adverse Action An employer takes adverse action under § 4(4) when it materially disadvantages the complainant with regard to any of the terms or conditions of her employment.134 The term “adverse action” can encompass actions such as: • termination; • denial of promotion;135 • demotion in title or duties; • transfer to a less favorable position or location;136 • involuntary placement on leave;137 • hostile or abusive workplace treatment;138 or • decreasing compensation or benefits. In addition to actions that are materially disadvantageous, retaliation claims can be based upon allegations of coercion, threats, intimidation, and interference under chapter 151B, § 4(4A), as discussed below. MCLE, Inc. | 2nd Edition 2020

8–73

Exhibit 8A

Employment Discrimination in Massachusetts

A complainant must show that her employer knew of her protected activity when it took adverse action. The MCAD has applied a “knew or should have known” standard to impute knowledge of a complainant’s protected activity to her employer.139 Certain protected activity such as filing a complaint with the MCAD puts an employer on notice by its very nature. However, such notice would only be imputed to the employer in the presence of proof that the employer had received notice of the MCAD filing. C. Causation A complainant proves causation by showing that her participation in protected activity was “a determinative factor” in her employer’s decision to act adversely against her.140 A highly relevant factor in the causation analysis is the proximity in time between the adverse action and the protected activity.141 The mere fact, however, that adverse action occurred after protected activity does not necessarily show causation.142 D. Coercion, Intimidation, Threats or Interference A complainant may also bring a retaliation claim under § 4(4A) of chapter 151B if she is subjected to threats, intimidation, or coercion, or her employment is otherwise interfered with because she complained of harassment or assisted or encouraged another who complained of harassment.143 Unlike a § 4(4) claim, a § 4(4A) claim does not require proof of an adverse employment action. Furthermore, both employees and non-employees can be held liable under this section. For example, an interviewer’s threat not to hire an employee may violate § 4(4A), even if the interviewer does not have authority to act on the threat.144 E. Frivolous Claims The employer has the right to take appropriate disciplinary action against an employee who makes a false or bad faith claim of sexual harassment. In addition, to the extent that any willfully false claim constitutes resistance to or interference with the work of the Commission, the person filing such a complaint may be subject to civil and/or criminal penalties.145 ENDNOTES 1

These guidelines will not answer every question concerning application of the laws regarding sexual harassment. The Commission issues these guidelines pursuant to its statutory authority to enforce the Commonwealth’s anti-discrimination laws. This Commission exists to enforce Mass. Gen. L. ch. 151B and is not bound by federal law. However, “the Federal guidelines can be used to guide Massachusetts in interpreting G.L. c. 151B.” LaBonte v. Hutchins & Wheeler, 424 Mass. 813, 823 n.13 (1997). Important note: The case cites in the endnotes to these guidelines are provided for reference purposes only and in no way limit the Commission’s ability to interpret the anti-discrimination laws. 2

Mass. Gen. Laws ch. 151B § 4(1), (16A) (1996).

3

Mass. Gen. Laws ch. 272, § 92A, 98A (1996).

4

Mass. Gen. Laws ch. 151C (1996).

5

Mass. Gen. Laws ch. 151B § 4 (1996).

6

Mass. Gen. Laws ch. 151B, § 1(5) (1996) (definition of employer).

7

Mass. Gen. Laws ch. 151B § 1(18)(a) (1996).

8–74

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment 8

Exhibit 8A

See, e.g., Hinojosa v. Durkee, 19 MDLR 14, 16 (1997); Mass. Gen. Laws ch. 151B § 1(18)(a) (1996).

9

Meritor Sav. Bank, FSB v. Vinson, 106 S. Ct 2399, 2406 (1986); Mass. Gen. Laws ch. 151B § 1(18)(a); 42 U.S.C. §2000e et seq.

10

Although these Guidelines use a female pronoun to refer to the “complainant” or the victim of sexual harassment, a victim can be of either sex, and harassment can occur between people of the same sex.

11 See, e.g., Richards v. Walter Fernald State School, 2000 WL 1473024 at *3 (Mass. Super. Ct. July 31, 2000) (where the court denied summary judgment on a quid pro quo claim as a jury could find an encounter in which plaintiff’s supervisor said he would “forget all about” the problem of plaintiff not signing a memo if she would “go out” with him amounted to quid pro quo sexual harassment). 12 An employer may also be liable for quid pro quo sexual harassment if an employee loses an opportunity or benefit to another employee because of the other employee’s submission to sexual advances or requests for sexual favors. See EEOC Sexual Harassment Guidelines, 29 CFR 1604.11(g). 13

Timko v. City of Boston, 1994 WL 879866, at *12 (Mass. Super. Ct. Aug. 1, 1994).

14

Shanley v. Pub 106, Inc., 22 MDLR 333, 336 (2000).

15

Id. at 336.

16

Bradbury v. The Elbow Room, 18 MDLR 107, 108 (1996). See also Richards, 2000 WL 1473024, at *3 (complainant could base quid pro quo claim on supervisor’s request that she “go out” with him).

17

Lipchitz v. Raytheon Co., 434 Mass. 493, 504–05 (2001); Abramian v. President and Fellows of Harvard College, 432 Mass. 107, 116–17 (2000).

18

Abramian, 432 Mass. at 117.

19

Pursuant to Chapter 151B, the analysis governing a hostile work environment claim applies to claims of harassment based on all Chapter 151B protected categories. For example, an employee who is subjected to derogatory or insulting comments or images referencing his or her race may have a claim for racial harassment. Rainey v. Monsanto Co., 22 MDLR 303, 309–10 (2000); see also Lazure v. Transit Express, Inc., 22 MDLR 16, 18 (2000) (“it is appropriate to analyze a claim of . . . racial harassment[ ] using the models established in sexual harassment cases”).

20

Mass. Gen. Laws ch. 151B § 1 (18)(b) (1996).

21

Ramsdell v. Western Massachusetts Bus Lines Inc. 415 Mass. 673, 678–79 (1993); Lawless v. Northeast Battery & Alternator, Inc., 22 MDLR 138, 142 (2000).

22

Massachusetts Commission Against Discrimination Model Sexual Harassment Policy 96-2. See, e.g., Cuddyer v. The Stop & Shop Supermarket Co., 434 Mass. 521, 523–26 (2001); Muzzy v. Callihane Motors, Inc., 434 Mass. 409, 410–11 (2001).

23

Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997). A closely related cause of action not addressed in these guidelines is gender harassment. To establish liability for harassment based on gender, a complainant must establish that (1) she is a member of a protected class; (2) she was the target of speech or conduct based on her membership in that class; (3) the speech or conduct was sufficiently severe or pervasive to alter her conditions of employment and create an abusive working environment; and (4) the harassment was carried out by an employee with a supervisory relationship to complainant, or respondent knew or should have known of the harassment and failed to take prompt remedial action. Fluet v. Harvard University, 23 MDLR 145, 161 (2001); Lazure v. Transit Express, Inc., 22 MDLR 16, 18 (2000). See also Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 441 (1st Cir. 1997) (“[m]any different forms of offensive behavior may be included within the definition of hostile environment sexual harassment”) (citing Spain v. Gallegos, 26 F.3d 439, 447 (3d Cir. 1994)). However, the overtones of such behavior must be, at the very least, sex-based, so as to be a recognizable form of sex discrimination”).

24

Ramsdell, 415 Mass. at 678, n. 4; see also Lawless, 22 MDLR at 142–43 (complainant’s voluntary participation to some degree in the sexual banter that permeated the workplace did not bar recovery on her sexual harassment claim as complainant used vulgar language because she needed to fit into the environment and minimize the workplace friction).

25

Rosati v. Town of Warren Board of Health, 19 MDLR 34, 38 (1997).

26

Melnychenko, 424 Mass. at 287–88.

27

Kelley v. Plymouth County Sheriff’s Department, 22 MDLR 208, 214 (2000).

MCLE, Inc. | 2nd Edition 2020

8–75

Exhibit 8A 28

Ramsdell, 415 Mass. at 678–79.

29

Id.

Employment Discrimination in Massachusetts

30

Kelley, 22 MDLR at 214 (2000) (quoting Carlton v. Worcester School Dept., 14 MDLR 1143, 1147 (1992)).

31

Ruffino v. State Street Bank and Trust Co., 908 F. Supp. 1019, 1036 n.28 (D. Mass. 1995).

32

Gnerre v. MCAD, 402 Mass. 502, 508-09 (1988). Compare Sweeney v. K-Mart Corp., 21 MDLR 79 (1999) with Dietrich v. Swartz & Corcoran Ins. Agency, Inc., 22 MDLR 367 (2000).

33

Kelley, 22 MDLR at 214–15.

34

Id. at 215.

35

Prader v. Leading Edge Products, Inc., 39 Mass. App. Ct. 616, 619–20 (1996).

36

College-Town Division of Interco, Inc. v. MCAD, 400 Mass. 156, 162 (1987); Mass. Gen. Laws ch. 151B § 1(18)(b) (1996).

37

Ramsdell, 415 Mass. at 678.

38

McAuliffe v. Suffolk County Sheriff’s Dept., 21 MDLR 27, 29 (1999).

39

Richards v. Bull HN Information Systems, Inc., 16 MDLR 1639, 1666 (1994).

40

See Smith-Pereira v. Coffees of the World, 20 MDLR 229, 234 (1998).

41

Melnychenko, 424 Mass. at 290.

42

See id., citing Smith v. Brimfield Precision, Inc., 17 MDLR 1089, 1096 (1995). See also Mass. Gen. Laws ch. 151B, § 1(18) (1996). 43

Melnychenko, 424 Mass. at 290.

44

Johnson v. Boston Edison Co., 19 MDLR 162, 166 (1997); Blades v. Hahjee’s Place, 7 MDLR 1741, 1752–54 (1985). 45

Id. See also Borrelli v. Aria Technologies, 21 MDLR 103, 105 (1999) (citing Sanderson v. Town of Wellfleet, 16 MDLR 1341 (1994).

46

Borrelli, 21 MDLR at 105-06.

47

Johnson v. Boston Edison Co., 19 MDLR at 166–67.

48

College-Town, 400 Mass. at 165–67; Holt v. Minuteman Flames Minor Hockey Ass’n, 22 MDLR 373, 375 (2000); Miller v. Berkshire Hospitality Corp., 22 MDLR 321, 324 (2000); Rowe v. American Paper Products, Inc., 22 MDLR 279, 282 (2000); Messina v. Araserve, Inc., 906 F. Supp. 34, 37 (D. Mass. 1995); LeClerc v. Interstate Distrib. Div. of Hudson News Co., 2000 WL 33170694 at *6 (Mass. Super. Ct. Aug. 31, 2000). 49

College-Town, 400 Mass. at 165–67.

50

Id.

51

See, e.g., LeClerc, 2000 WL 33170694, at *6.

52

See, e.g., Fluet v. Harvard University, 23 MDLR 145, 163 (2001); Doucimo v. S & S Corp., 22 MDLR 82, 87 (2000); Albee v. New England Medical Center Hosp., Inc., 1997 WL 691524, at *7 (Mass. Super. Ct. Oct. 30, 1997); Lazure v. Transit Express, Inc., 22 MDLR 16, 19 (2000); Levesque v. Quality Brands Liquor, 19 MDLR 154, 156 (1997); Przybycien v. Aid Maintenance Co., 13 MDLR 1267, 1281 (1991). See also EEOC Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors, Notice No. 915.002, § III, “Who Qualifies as a Supervisor?” (June 18, 1999), at http://www.eeoc.gov/ policy/docs/harassment.html. 53

Under Massachusetts law, apparent authority is created when “written or spoken words or any other conduct of the principal which, reasonably interpreted, causes a third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.” Zortman v. Bildman, 1999 WL 1318959, at *11 (Mass. Super. Ct. Jan. 15, 1999) quoting Weisman v. Saetz, 11 Mass. App. Ct. 440, 442 (1981); see also Restatement (Second) of Agency §§ 7, 8 (1957) (“Apparent authority is the

8–76

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8A

power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s manifestations to such third persons.”). 54 See, e.g., Przybycien, 13 MDLR at 1281; Robinson v. Haffner’s Service Stations, Inc., 23 MDLR 283, 286–87 (2001). 55

Robinson, 23 MDLR at 286–87; Weisman v. Saetz, 11 Mass. App. Ct. 440, 442 (1981); Restatement (Second) of Agency § 8, comment c (1957); Galotti v. Town of Belmont, 6 MDLR 1669, 1687–88 (1984).

56 College-Town, 400 Mass. at 165–66; Comeau v. Idea Lube, Inc., 22 MDLR 5, 7 (2000); Levesque, 19 MDLR at 156; Messina v. Araserve, Inc., 906 F. Supp. 34, 38 (1995); Battenfield v. Harvard University, 1993 WL 818920 at *4 (Mass. Super. Ct. Aug. 31, 1993). 57 Actual knowledge is most commonly established by demonstrating that the employee informed a supervisory level employee of the alleged harassment. See, e.g., Jordan v. Prime Laminating, Inc., 22 MDLR 151, 153 (2000). 58

The employer may be held liable when it is on constructive notice of unlawful conduct, or when it “should have known” of the conduct. See, e.g., Parent v. Spectro Coating Corp., 22 MDLR 221, 225–26 (2000). Cf. Gilman v. Instructional Systems, Inc., 22 MDLR 237, 241 (the complainant failed to prove that respondent “knew or should have known” about harassment allegedly perpetrated by her co-worker because she never informed her supervisor and, the only person she did inform was another co-worker).

59

See, e.g., Beldo v. Univ. of Massachusetts Boston, 20 MDLR 105, 111 (1998); Richards, 16 MDLR at 1668–69; Parent, 22 MDLR at 225–26; Rounds v. Dep’t. of Corrections, 19 MDLR 90, 100 (1997); Russell v. Hillcrest Educational Centers, Inc., 23 MDLR 91, 95–96 (2001). 60

Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 854 (1st Cir. 1998) (customer has no liability, but employer liable for discharging plaintiff after she complained of sexual harassment by customer); Burman v. Boch Oldsmobile, Inc., 1995 WL 809940 at *4 (Mass. Super. Ct. Apr. 11, 1995). See, e.g., Folkerson v. Circus Enterprises, Inc. 107 F.3d 754, 756 (9th Cir. 1997); Powell v. Las Vegas Hilton Corp., 841 F. Supp. 1024, 1028 (D. Nev. 1992).

61

Ligenza v. Genesis Health Ventures of Massachusetts, Inc., 995 F. Supp. 226, 230-31 (D. Mass. 1998).

62

See, e.g., Handy v. North End Community Health Center, Inc., 21 MDLR 37, 38 (1999).

63

Fiske v. R.P. Liquor, Inc., 16 MDLR 1042, 1049–50 (1994) (company liable for hostile work environment caused by a friend of the owner).

64 Handy, 21 MDLR at 38 (Commission concluded that respondent was not liable for the conduct of a client because it had insufficient control over client and took measured and reasonable steps to alleviate the harassing conduct). 65

Beaupre v. Cliff Smith & Associates, 50 Mass. App. Ct. 480, 490–91 (2000) (employer’s president individually liable for both quid pro quo and hostile work environment sexual harassment; plain language of the statute provides on its face for individual personal liability for unlawful sexual harassment actively perpetrated by president himself); Ruffino v. State Street Bank and Trust Co., 908 F. Supp. 1019, 1048 (D. Mass. 1995).

66

Raffurty v. Keyland Corp., 22 MDLR 125, 127 (2000) (president and owner of employer corporation who made such persistent verbal and physical sexual overtures to employee that she was finally compelled to quit held personally liable for hostile work environment sexual harassment; corporation also vicariously liable).

67

MCAD v. Medical Weight Loss Center, Inc., 23 MDLR 5, 12 (2001) (owner held individually liable where he coerced, intimidated, interfered with, and retaliated against the complainant in the exercise of her right to be free from harassment based on her sex and sexual orientation).

68 Compare Deeter v. Bravo’s Pizzeria and Restaurant, 23 MDLR 167 (2001) with Rushford v. Bravo’s Pizzeria and Restaurant, 23 MDLR 171 (2001); see also Doucimo v. S & S Corp., 22 MDLR 81, 87 (2000); Morehouse v. Berkshire Gas Co., 989 F. Supp. 54, 61 (D. Mass. 1997). An individual person can also be liable for acts of retaliation under § 4(4). See Bain v. City of Springfield, 424 Mass. 758, 765 (1997) (mayor’s directive to “get rid of” plaintiff after she complained about discriminatory behavior was retaliatory and mayor could be held individually liable); Kelley, 22 MDLR at 217 (complainant won damage award against department and individuals for unlawful retaliation because the individuals had participated in, were aware of, or could have prevented the retaliatory conduct). This same rationale applies in the context of other prohibited forms of discrimination. Bendell v. Lemax, Inc., 22 MDLR 259, 263 (2000)

MCLE, Inc. | 2nd Edition 2020

8–77

Exhibit 8A

Employment Discrimination in Massachusetts

(company president held individually liable under ch. 151B, § 4(4A) for interfering with complainant’s right to be free from unlawful discrimination when he terminated her because of her disability). 69

Rosati v. Town of Warren Bd. of Health, 19 MDLR 34, 38 (1997); Carney v. Town of Falmouth Police Department, 16 MDLR 1444, 1455–56 (1994), aff’d 17 MDLR 1280 (1995) (Full Comm’n); Morehouse, 989 F. Supp. at 63–64. 70

Tunstall v. Acticell H’W Cosmetics, 22 MDLR 284, 287–88 (2000).

71

Erewa v. Reis, 20 MDLR 36, 38 (1998).

72

See Harmon v. Malden Hosp., 19 MDLR 157, 157-58 (1997), See also Murray v. Sharp Air Freight Services, Inc., 2000 WL 33170935, at *4 (Mass. Super. Ct. Dec. 5, 2000); Hope v. San Ran, Inc., 8 MDLR 1195, 1211, aff’d, 8 MDLR 1277 (1986). Cf. Hennessy v. Perico, Inc., 1999 WL 515078 at *1 (Mass. Super. Ct. May 20, 1999). 73

See Murray, 2000 WL 33170935, at *4 (citing Harmon).

74

Harmon, 19 MDLR at 158; Chapin v. University of Massachusetts at Lowell, 977 F. Supp. 72, 80 (D. Mass. 1997).

75

LeClerc v. Interstate Distrib. Div. of Hudson News Co., 2000 WL 33170694 at *10 (Mass. Super. Ct. Aug. 31, 2000), citing Chapin, 977 F. Supp. at 77–80.

76

Morehouse, 989 F. Supp. at 61–62.

77

See, e.g., DeBarboza v. Cablevision of Boston, Inc., 1999 WL 65489, at *2 (Mass. Super. Ct. Jan. 29, 1999) (although court held that corporate defendant could be held liable as an aider and abettor, it dismissed the claim because the plaintiff failed to allege the person or persons that the corporation allegedly aided or abetted). 78

Beaupre, 50 Mass. App. Ct. at 495 n. 23 (noting that the actor must be found to have the requisite intent to discriminate in order to be liable for aiding and abetting); Urrea, slip op. at 6, supra note 57; Harmon, 19 MDLR at 158. Compare Russell v. Hillcrest Educational Centers, Inc., 23 MDLR 91, 96 (2001) (aiding and abetting claim dismissed due to lack of evidence demonstrating respondent’s agents had knowledge of the harasser’s conduct and intended to assist the harasser in his alleged unlawful actions).

79

See, e.g., Beaupre, 50 Mass. App. Ct. at 494–95 (president and controlling shareholder of respondent company held liable as an aider and abettor for acting jointly with the respondent company in both his separate acts of sexual harassment against the complainant, which the company is deemed vicariously to have authorized him to do, and in causing the company to sanction the complainant’s demotion and subsequent constructive discharge), citing Model Penal Code and Commentaries § 2.06(2) (c), (3)(a) and comments 5-6; § 2.07(6) (a) and comment 7 (1980) (which makes a person “legally accountable for any conduct he performs or causes to be performed in the name of the corporation . . . or in its behalf to the same extent as if it were performed in his own name or behalf” and “makes certain that the corporate agent will not escape liability because all or part of his conduct is performed through or in the name of the corporation”). 80 Mass. Gen. Laws ch.151B § 3A (1996). As defined in § 1 of the statute, covered employers are those companies that employ six or more employees. See Mass. Gen. Laws ch. 151B, § 1(5) (1996). 81

Mass. Gen. Laws ch. 151B § 3A(b) (1996).

82

Mass. Gen. Laws ch. 151B, § 3A(b)(2) & (c) (1996). A copy of the MCAD Model Sexual Harassment Policy No. 96-2 and the poster can be obtained through the MCAD. The Model Policy is accessible online at http://www.state.ma.us/mcad/harassment.html. The Commission further recommends that employers establish an anti-harassment policy that clearly prohibits harassment based on all classes protected by the statute. 83 Distribution of pornography may be part of the harassment. Bowman v. Heller, aff’d in part and vacated in part by 420 Mass. 577 (1995), 1993 WL 761159 at *7 (Mass. Super. Ct. Jul. 9, 1993), Barbetta v. Chemlawn Services Corp., 669 F. Supp. 569, 572 (W.D.N.Y. 1987). 84

Mass. Gen. Laws ch. 151B, §3A(b)(2) (1996). In addition, it is recommended that the employer post both the policy and the poster in a conspicuous area in the workplace.

85

Mass. Gen. Laws ch. 151B, § 3A(e) provides that employers are encouraged to conduct an education and training program for new employees within one year of commencement of employment. See also Charles Walker, “An Ounce of Prevention . . . ,” MCAD Certified Discrimination Prevention Training

8–78

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8A

Program, Sexual and Other Harassment Prevention Module, MCLE (2000-15-CM). In 1999, the Commission, in conjunction with the MCLE, initiated a program to train individuals to educate workforces on techniques to prevent discrimination in the workplace. A list of sexual harassment prevention trainers is available from the Commission. 86

Mass. Gen. Laws ch. 151B, § 3A(e) (1996). The training should make it clear that harassment based on the other protected categories violates Chapter 151B.

87 Id. The statute provides that the additional training should be commenced within one year of employment for new managers and supervisors. 88

See Section III, text at 8–10.

89

See Harley v. Costco Wholesale Corp., 21 MDLR 87, 93–94 (1999) (employer’s failure to take prompt remedial action was supported by evidence that respondent failed to adequately train its managers and supervisors in how to respond to a complaint of discrimination or harassment, rendering them ineffective in this regard). In court cases where punitive damages may be sought, evidence of training may also mitigate damages.

90

See Rounds v. Dep’t. of Corrections, 19 MDLR 90, 99–100 (1997) (finding of no liability on the part of the employer which promptly assigned an “experienced special investigator” to meet with witnesses to the alleged harassing conversation).

91

It is important to have options with respect to how the employee may report a complaint of harassment, as the complaint may involve the individual whose position it is to handle sexual harassment complaints.

92

Parent, 22 MDLR at 226.

93

See Beldo, 20 MDLR at 107, 112 (investigation that involved one interview between the investigating supervisor and the alleged perpetrator – both of whom were friends – and no one else, not even the complainant, held to be evidence of an inadequate investigation).

94

See, e.g., Johnson v. Boston Edison Co., 19 MDLR at 165 (investigation appropriately included review of internal company telephone records).

95

See, e.g., Michel v. Factory Mut. Eng’g Corp., 1998 WL 726500, at *9 (Mass. Super. Ct. Oct. 2, 1998) (employer promptly painted over bathroom graffiti).

96

See, e.g., Rainey v. Monsanto Co., 22 MDLR 303, 310 (2000) (employer not only took photographs of offending graffiti and painted the walls, but also increased maintenance and supervisory surveillance of the restrooms, had supervisory and management meetings with all work crew to discuss incident and to reconvey management’s anti-harassment policy, and followed up with diversity consultants and continued investigations, involving the entire workforce of the division).

97

It is important to note that the employer’s determination as to whether sexual harassment did or did not occur does not in any way bind the Commission to make the same finding.

98

EEOC Policy Guidance on Sexual Harassment, N-915-050, 8 FEP Manual No. 6699, (March 19, 1990) (hereinafter, “EEOC Policy Guidance on Sexual Harassment”); Harley, 21 MDLR at 93.

99

See, e.g., Michel, 1998 WL 726500, at *9.

100

“EEOC Policy Guidance on Sexual Harassment.”

101

See, e.g., Sarin v. Raytheon Co., 905 F. Supp. 49, 53 (D. Mass. 1995); cf. Hoffman v. Daka, Inc., 2000 WL 33170817, at *4 (Mass. Super. Ct. Oct. 31, 2000). 102

See, e.g., Johnson v. Boston Edison Co., 19 MDLR at 16. See “EEOC Policy Guidance on Sexual Harassment.” See also Harley, 21 MDLR at 93; Barbot v. Hapco Farms, Inc., 19 MDLR 133, 137 (1997).

103

On August 7, 2002, Governor Swift signed into law chapter 223 of the Acts of 2002, which amended Mass.Gen.Laws. c. 151B, § 5 to change the statute of limitations from six months to 300 days. The amendment goes into effect on November 5, 2002 and applies to claims arising after that date. For all claims arising before that date, the six-month limitations period still applies.

104

Ruffin, 908 F. Supp. at 1037.

105

See, e.g., Conroy v. Boston Edison Co., 758 F. Supp. 54, 60–61 (D. Mass. 1991), Andrews v. Arkwright Mutual Insurance Co., 423 Mass. 1021, 1022 (1996); Adams v. Mount St. Vincent Nursing Home, 19 MDLR 123, 125 (1997).

MCLE, Inc. | 2nd Edition 2020

8–79

Exhibit 8A

Employment Discrimination in Massachusetts

106

Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 398 (1994) (citing McConnell v. General Tel Co. of Cal., 814 F.2d 1311, 1317 (9th Cir. 1987); Wynn & Wynn v. MCAD, 431 Mass. 655, 673 (2000); DeBiase v. MBTA, 22 MDLR 271, 273–74 (2000); Soriano v. City of Lawrence Police Department, 2000 WL 1584852 at *3 (Essex Super. Ct. Oct. 23, 2000).

107

MCAD Rules and Procedures 804 CMR 1.10(2) (2002) (emphasis added); Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001).

108

Cuddyer, 434 Mass. at 532–33.

109

Id. at 532.

110

Id. at 532 (citations omitted). See also Ruffino, 908 F. Supp. at 1038–39; Olsen v. Lenco Industries, Inc., 19 MDLR 176, 181 (1997).

111

Mortimer v. Atlas Distr. Co., 15 MDLR 1233, 1250 (1993).

112

Carter v. Commissioner of Correction, 43 Mass. App. Ct. 212, 220–21 (1997). Cf Clifton v. MBTA, 2000 WL 218397 at *6 (Feb. 3, 2000); Beldo v. Univ. of Massachusetts at Boston, 20 MDLR 105, 110–11 (1998); Lynn Teachers Union, Local 1037 v. MCAD, 406 Mass. 515, 523 (1990). In contrast, where a continuing violation is not established, the complainant is limited in using the untimely events as background evidence to establish a hostile work environment, and she may not recover damages for the timebarred events. Cuddyer, 434 Mass. at 530, n.10. 113

Cuddyer, 434 Mass. at 532–33.

114

De Almeida v. The Children’s Museum, 2000 WL 96497, at *3 (Suffolk Super. Ct. Jan. 11, 2000) (a sexual harassment claim must be more than the “residual effects of past discrimination”). 115

Cuddyer, 434 Mass. at 533.

116

Id. at 531, n. 12.

117

See Goguen v. Quality Plan Administrators, 2000 WL 282485 at *3 (Mass. Super. Ct. Feb. 1, 2000).

118

See De Almeida, 2000 WL 96497, at *3 (hateful looks, the only alleged conduct within the six-month period, were not found to be “substantially related” to the earlier allegations of harassment).

119 Cuddyer, 434 Mass. at 539. The SJC has stated that this test is more favorable to the complainant and differs substantively from the federal “reveletory” standard. That standard provides that once a complainant knows, or reasonably should know, that she is being sexually harassed, the limitations clock begins to run. Id. at 537–38. 120

Cuddyer, 434 Mass. at 530 n.10 (2001).

121

Jensen v. Frank, 912 F.2d 517, 523 (1st Cir. 1990). See, e.g., Lynn Teachers Union, Local 1037, 406 Mass. at 522–23 (approving application of continuing violation rule where refusal to credit complainants for pre-resignation seniority breathed new life into discriminatory maternity leave policy).

122 GTE Products Corp. v. Stewart, 421 Mass. 22, 34 (1995), citing Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977); Holt at 375; Choukas v. Ocean Kai Restaurant, 19 MDLR 169, 171 (1997); Said v. Northeast Security, 18 MDLR 255, 259 (1996). 123 See Parent, 22 MDLR at 226 (co-worker’s lewd gestures, physical and verbal threats, unwelcome touching, and phone calls combined to meet criteria for constructive discharge). 124 Langford v. Dep’t of Employment &d Training, 17 MDLR 1043, 1063 (1995), aff’d, 18 MDLR 36 (1996) (Full Comm’n). 125 GTE Products, 421 Mass. at 35, citing Stetson v. NYNEX Serv. Co., 995 F.2d 355, 361 (1st Cir. 1993); Smith-Somers v. Fathers & Sons Pizza, Inc., 19 MDLR 1, 2 (1997) aff’d 24 MDLR 88 (2002). 126

See GTE Products, 421 Mass. at 36 (employee’s obligation to act reasonably includes “an obligation not to assume the worst and not to jump to conclusions too fast”) (quoting Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987); Bengin v. Braintree Highlands Corp., 21 MDLR 197, 199 (1999); Kletkotka v. Carlin Combustion Technology, Inc., 21 MDLR 72, 75 (1999); Estate of Douglas McKinley v. Boston Harbor Hotel, 14 MDLR 1226, 1241 (1992). 127 Parent, 22 MDLR at 226 (respondent’s failure to take prompt and effective action to remedy harassment led to constructive discharge).

8–80

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8A

128

For more information about investigating claims of sexual harassment and taking effective remedial action to eliminate harassment, see Section VI of these Guidelines.

129 This provision protects both current and former employees. Robinson v. Shell Oil Co., 117 S. Ct. 843, 848–49 (1997) (interpreting Title VII). 130 Tate v. Dep’t of Mental Health, 419 Mass. 356, 364–65 (1995); MacCormack v. Boston Edison Co., 423 Mass. 652, 662–66 (1996). 131

Abramian, 432 Mass. at 121.

132

Bain, 424 Mass. at 765.

133

See Logan v. Brook Farm Egg, No. 97-BEM-1899, 24 MDLR ___ (2002).

134

MacCormack, 423 Mass. at 663.

135

Kealy v. City of Lowell, 21 MDLR 19, 24 (1999).

136

Farricy v. Suffolk County Sheriff’s Dep’t, 22 MDLR 27, 28–29 (2000) (Full Comm’n).

137

Pulido v. Dep’t of Corrections, 20 MDLR 49, 52 (1998).

138

Muise v. Credit Exchange, 17 MDLR 1684, 1691–92 (1995). In fact, as described in Section VII(B) of these Guidelines, such retaliation can constitute a part of a continuing violation that relates back and includes otherwise untimely incidents of sexual harassment. 139

Monahan v. Dep’t of Mental Retardation, 14 MDLR 1049, 1053 (1991), aff’d, 14 MDLR 1153 (1992) (Full Comm’n). See also Bass v. Dep’t of Mental Retardation, 20 MDLR 1, 4 (1998) (retaliation claim dismissed where employer fired complainant prior to being served with a copy of her MCAD charge and employer had no other reason to know about charge).

140

Tate, 419 Mass. at 364. Causation may be inferred from proof of retaliatory intent. Complainants frequently use the three stage burden shifting model of Blare v. Husky Injection Systems, Boston, Inc., to prove retaliatory intent. Under this analysis, protected activity, adverse action, and causal nexus/proximity in time are the elements of the prima facie case, followed by the rebuttal and pretext stages. 419 Mass. 437, 441–43 (1995); see also Ruffino, 908 F. Supp. at 1044–47. A fact finder can then infer causation from proof of retaliatory intent.

141

See Hurd v. Massachusetts Port Authority, 20 MDLR 11, 19 (1998); Cimino v. BLH Electronics, Inc., 5 MDLR 1286–87, 1285 (1983); Emmons v. Codex Corp., 4 MDLR 1523, 1551 (1982).

142

See, e.g., Socarides v. Camp Edwards Troop Welfare Council, Inc., 21 MDLR 173, 177 (1999).

143

See Roy v. New England Steak House, Inc., 23 MDLR 299, 303–04 (2001).

144

Riggs v. Town of Oak Bluffs, 23 MDLR 306, 311 (2001). See also Bain, 424 Mass. at 765 n. 4; Melnychenko 424 Mass. at 294–95 (§ 4(4A) may extend to use of termination agreements and/or waivers which interfere with employee rights under M.G.L. ch. 151B); Harmon, 19 MDLR at 157 (for guidance in interpreting § 4(4A), MCAD looks to cases under Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11H). 145

Mass. Gen. Laws ch. 151B § 8 (1996).

MCLE, Inc. | 2nd Edition 2020

8–81

Exhibit 8B

Employment Discrimination in Massachusetts

EXHIBIT 8B—MCAD’S Model Sexual Harassment Prevention Policy This exhibit is available on the MCAD website at https://www.mass.gov/lists/mcadguidelines-model-policies-and-posters#model-policies). This is a sample policy only; the law in this area consistently changes and must be reviewed before implementing any policy in this regard.

SEXUAL HARASSMENT POLICY OF [NAME OF EMPLOYER] I. Introduction It is the goal of [name of employer] to promote a workplace that is free of sexual harassment. Sexual harassment of employees occurring in the workplace or in other settings in which employees may find themselves in connection with their employment is unlawful and will not be tolerated by this organization. Further, any retaliation against an individual who has complained about sexual harassment or retaliation against individuals for cooperating with an investigation of a sexual harassment complaint is similarly unlawful and will not be tolerated. To achieve our goal of providing a workplace free from sexual harassment, the conduct that is described in this policy will not be tolerated and we have provided a procedure by which inappropriate conduct will be dealt with, if encountered by employees. Because [name of employer] takes allegations of sexual harassment seriously, we will respond promptly to complaints of sexual harassment and where it is determined that such inappropriate conduct has occurred, we will act promptly to eliminate the conduct and impose such corrective action as is necessary, including disciplinary action where appropriate. Please note that while this policy sets forth our goals of promoting a workplace that is free of sexual harassment, the policy is not designed or intended to limit our authority to discipline or take remedial action for workplace conduct which we deem unacceptable, regardless of whether that conduct satisfies the definition of sexual harassment.

II. Definition of Sexual Harassment In Massachusetts, the legal definition for sexual harassment is this: “sexual harassment” means sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature when: (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; or, (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. 8–82

2nd Edition 2020 | MCLE, Inc.

Sexual Harassment

Exhibit 8B

Under these definitions, direct or implied requests by a supervisor for sexual favors in exchange for actual or promised job benefits such as favorable reviews, salary increases, promotions, increased benefits, or continued employment constitutes sexual harassment. The legal definition of sexual harassment is broad and in addition to the above examples, other sexually oriented conduct, whether it is intended or not, that is unwelcome and has the effect of creating a work place environment that is hostile, offensive, intimidating, or humiliating to male or female workers may also constitute sexual harassment. While it is not possible to list all those additional circumstances that may constitute sexual harassment, the following are some examples of conduct which if unwelcome, may constitute sexual harassment depending upon the totality of the circumstances including the severity of the conduct and its pervasiveness: • Unwelcome sexual advances -- whether they involve physical touching or not; • Sexual epithets, jokes, written or oral references to sexual conduct, gossip regarding one’s sex life; comment on an individual’s body, comment about an individual’s sexual activity, deficiencies, or prowess; • Displaying sexually suggestive objects, pictures, cartoons; • Unwelcome leering, whistling, brushing against the body, sexual gestures, suggestive or insulting comments; • Inquiries into one’s sexual experiences; and • Discussion of one’s sexual activities. All employees should take special note that, as stated above, retaliation against an individual who has complained about sexual harassment, and retaliation against individuals for cooperating with an investigation of a sexual harassment complaint is unlawful and will not be tolerated by this organization.

III. Complaints of Sexual Harassment If any of our employees believes that he or she has been subjected to sexual harassment, the employee has the right to file a complaint with our organization. This may be done in writing or orally. If you would like to file a complaint you may do so by contacting [Name, address and telephone number of the appropriate individual to whom complaints should be addressed. Such individuals may include human resources director, manager, legal counsel to organization or other appropriate supervisory person]. [This person] [These persons) [is/are] also available to discuss any concerns you may have and to provide information to you about our policy on sexual harassment and our complaint process.

IV. Sexual Harassment Investigation When we receive the complaint we will promptly investigate the allegation in a fair and expeditious manner. The investigation will be conducted in such a way as to MCLE, Inc. | 2nd Edition 2020

8–83

Exhibit 8B

Employment Discrimination in Massachusetts

maintain confidentiality to the extent practicable under the circumstances. Our investigation will include a private interview with the person filing the complaint and with witnesses. We will also interview the person alleged to have committed sexual harassment. when we have completed our investigation, we will, to the extent appropriate inform the person filing the complaint and the person alleged to have committed the conduct of the results of that investigation. If it is determined that inappropriate conduct has occurred, we will act promptly to eliminate the offending conduct, and where it is appropriate we will also impose disciplinary action.

V. Disciplinary Action If it is determined that inappropriate conduct has been committed by one of our employees, we will take such action as is appropriate under the circumstances. Such action may range from counseling to termination from employment, and may include such other forms of disciplinary action as we deem appropriate under the circumstances.

VI. State and Federal Remedies In addition to the above, if you believe you have been subjected to sexual harassment, you may file a formal complaint with either or both of the government agencies set forth below. Using our complaint process does not prohibit you from filing a complaint with these agencies. Each of the agencies has a short time period for filing a claim (EEOC - 300 days; MCAD - 300 days). The United States Equal Employment Opportunity Commission (“EEOC”) The Massachusetts Commission Against Discrimination (“MCAD”) Harassment Policy Please Note: Massachusetts employers are strongly encouraged to supplement their sexual harassment policies with equivalent broader harassment policies. These broader policies should specify that employees are protected from harassment on the basis of their race, color, religion, national origin, ancestry, sex, gender identity, age, handicap (disability), participation in discrimination complaint-related activities, sexual orientation, genetics, or active military or veteran status. Like the sexual harassment policy, the general harassment policy should name a harassment officer (the same or a different person than the sexual harassment officer), and provide examples of prohibited verbal and nonverbal behavior. Prohibited behavior includes slurs or other derogatory comments, objects, pictures, cartoons, or demeaning gestures connected to one’s membership in a protected group. The overall structure of the general harassment policy should parallel the structure of the sexual harassment policy (or can be combined as one policy). MCAD Model Sexual Harassment Policy - WH Revised 2017-09-16 8–84

2nd Edition 2020 | MCLE, Inc.

CHAPTER 9

Sexual Orientation Discrimination and Same-Sex and LGBTQ Sexual Harassment Mary L. Bonauto, Esq. GLBTQ Legal Advocates & Defenders, Boston

Arielle B. Kristan, Esq. Hirsch Roberts Weinstein LLP, Boston

Jennifer L. Levi, Esq. GLBTQ Legal Advocates & Defenders, Boston § 9.1

Introduction............................................................................................. 9–2

§ 9.2

Sexual Orientation Discrimination ........................................................ 9–4 § 9.2.1 Federal Protections Against Sexual Orientation Discrimination ........................................................................ 9–4 (a) Textual Arguments .......................................................... 9–4 (b) Gender Stereotyping ....................................................... 9–7 (c) Associational Discrimination ........................................ 9–11 (d) Congressional and Agency Developments .................... 9–12 § 9.2.2 Massachusetts State Protections ........................................... 9–13 (a) Who Is Protected? ......................................................... 9–13 (b) Who Is Exempt? ............................................................ 9–15 (c) Who May Be Held Liable? ........................................... 9–17 (d) What Standards Apply? ................................................. 9–18 § 9.2.3 Disparate Treatment Claims ................................................. 9–18 (a) Nonselection in Hiring or Promotion ............................ 9–19 (b) Sexual Orientation Harassment ..................................... 9–19 (c) Adverse Actions ............................................................ 9–23 (d) Differential Treatment in Benefits ................................. 9–27 (e) Retaliation ..................................................................... 9–28 § 9.2.4 Disparate Impact Claims ...................................................... 9–29 § 9.2.5 Other Resources ................................................................... 9–30

§ 9.3

Same-Sex Sexual Harassment and Sexual Harassment of LGBTQ Employees .......................................................................... 9–30 § 9.3.1 Introduction .......................................................................... 9–30 § 9.3.2 Federal Approach to Same-Sex Sexual Harassment and Sexual Harassment of LGBTQ Employees ................... 9–30 (a) Overview ....................................................................... 9–30

MCLE, Inc. | 2nd Edition 2020

9–1

§ 9.1

Employment Discrimination in Massachusetts

§ 9.3.3

§ 9.3.4

(b) Elements of Same-Sex Sexual Harassment Claim Under Title VII .............................................................. 9–32 (c) Proving Discrimination “Because of Sex” .................... 9–34 (d) Proving That the Harassment Was Sufficiently Severe or Pervasive and Objectively and Subjectively Offensive .................................................. 9–39 Massachusetts Approach to Same-Sex Sexual Harassment .. 9–40 (a) Overview ....................................................................... 9–40 (b) Prima Facie Case and Proof Under State Law .............. 9–42 (c) Cases Applying Chapter 151B to Same-Sex Sexual Harassment .................................................................... 9–46 Other Resources ................................................................... 9–48

CHECKLIST 9.1—Same-Sex Sexual Harassment and Sexual Orientation Discrimination Checklist of Possible Defenses for the Employer .................... 9–49

Scope Note This chapter discusses sexual orientation discrimination and samesex and LGBTQ sexual harassment in an employment law–related case.

§ 9.1

INTRODUCTION

General Laws Chapter 151B forbids discrimination because of the sex, sexual orientation, or gender identity of an employee. Title VII of the U.S. Civil Rights Act of 1964, as amended (Title VII), prohibits discrimination in employment because of sex, and in the 2019 October term, the U.S. Supreme Court will decide whether lower courts have been properly applying Title VII’s prohibition against sex discrimination to discrimination against lesbian, gay, bisexual, transgender, and queer (LGBTQ) employees. In addition, it is settled law that both Chapter 151B and Title VII prohibit sexual harassment because of sex against any person, regardless of sexual orientation or gender identity, thus rendering irrelevant distinctions that once mattered, such as the sex or sexual orientation of the individuals involved. This chapter examines the relevant law and provides tips and guidance for counsel representing both plaintiffs and defendants. Practice Note In its term beginning in October 2019, the U.S. Supreme Court will address whether Title VII’s bar against discrimination because of an individual’s sex encompasses discrimination on the basis of sexual orientation. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the Court will answer whether Title VII forbids discrimination against transgender people based on their status as transgender or based on sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In consolidated cases involving gay men discharged from work—Zarda v. Altitude 9–2

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.1

Express, Inc. and Bostock v. Clayton County Board of Commissioners— the Court will answer “whether discrimination against an employee on the basis of sexual orientation constitutes prohibited employment discrimination ‘because of . . . sex’ within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.” This chapter briefly highlights the major developments in this area prior to the Supreme Court’s announced review. Many federal executive branch protections for LGBTQ employees promulgated under prior presidential administrations remain intact and are addressed below. Although the current administration is arguing in favor of the employers in the above cases, consistent with its position that Title VII’s prohibition against discrimination because of sex does not protect LGBTQ people. Some agency protections have been withdrawn or altered by subsequent pronouncements, and practitioners are advised to research this area carefully and consult context experts.

Practice Note It is of critical importance that practitioners understand proper terminology in cases involving claims of sexual orientation discrimination or sexual harassment. The language used in the LGBTQ community is dynamic and constantly evolving, while the language of case law is static and does not always accurately reflect accepted ways of describing LGBTQ individuals and their lives. Attorneys practicing in this area must navigate this tension, finding respectful ways to refer to LGBTQ employees, even as the language in the case law that they must draw from to advocate for their clients may be outdated. It is well outside the scope of this chapter to limn the full complexities of the language used to describe LGBTQ lives and identities. Practitioners without significant experience working with the LGBTQ community are encouraged to seek out resources and guidance on best practices for discussing sexual orientation and gender identity. The authors wish, however, to emphasize the following points: • Some of the case law cited in this chapter uses the terms “homosexual” or “homosexuality.” These terms are not commonly used today, and practitioners should avoid them. The authors have used these terms only in direct quotations from relevant cases. • The term “queer” was historically considered derogatory, but in recent years it has been largely reclaimed, and it is often used as an umbrella term for individuals who do not identify as straight. “Queer” also is used as a term of self-identification by people who do not identify with more restrictive, binary terms. Still, the term retains a hurtful meaning for some individuals, and should be used with caution, especially by practitioners. • Individuals are increasingly rejecting strictly binary terms to describe both sexual orientation and gender identity. For example, more individuals are identifying as having a nonbinary or fluid gender identity and/or a pansexual orientation, which refers to sexual attraction, romantic MCLE, Inc. | 2nd Edition 2020

9–3

§ 9.1

Employment Discrimination in Massachusetts love, or emotional attraction toward people of any sex or gender identity. Practitioners should be cautious about using strictly binary terms such as “opposite sex.” “Different sex” or “other sex” are preferred descriptions, as they imply difference, with potential complementarity and shared humanity. • As a general rule, practitioners should mirror the language used by employees to describe their sexual orientations, gender identities, or both. If in doubt, practitioners may respectfully ask employees how they identify.

Practice Note Similarly, when counseling employers advise them to be sure they are not using outdated or offensive terminology in any policies or communications with employees.

§ 9.2

SEXUAL ORIENTATION DISCRIMINATION

§ 9.2.1

Federal Protections Against Sexual Orientation Discrimination

Title VII makes it unlawful for an employer “to discriminate against any individual . . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Both the Supreme Court and many lower courts recognize that this individually focused language means that Title VII does more than protect a broad group of people, such as all men or all women—it protects individuals from being discriminated against on the basis of specified characteristics. Many federal courts have held that Title VII’s prohibition against discrimination “because of . . . sex” also bars discrimination on the basis of sexual orientation. As discussed above, the Supreme Court is slated to address this question during its term beginning in October 2019. This section provides an overview of the arguments that Title VII’s prohibition against discrimination “because of . . . sex” also bars discrimination on the basis of sexual orientation. In addition, it provides a discussion of relevant cases within the First Circuit. Practitioners should note that many older precedents addressing the applicability of Title VII to LGBTQ employees considered none of the arguments discussed below, such as the argument in Zarda v. Altitude Express, Inc., 883 F.3d 100, 108 (2d Cir. 2018) (citing Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 202 (2d Cir. 2017) (Katzman, C.J., concurring)).

(a)

Textual Arguments

Title VII protects a qualified individual from employment discrimination based on the individual’s sex. An employer acts because of sex anytime it takes sex into account— either standing alone or in combination with some other fact about the employee. As a broad remedial statute, the fact that Congress may not have considered all of the statute’s applications does not constrain its scope. Oncale v. Sundowner Offshore 9–4

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

Servs., Inc., 523 U.S. 75, 79 (1998) (“statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed); Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (en banc) (Oncale demonstrates “that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.”). Assuming arguendo that the statute was thought of as protecting women vis-à-vis men, the text requires application when an individual meets the statutory requirements of mistreatment on the basis of the individual’s own sex. As noted above, some courts have held that discrimination based on sexual orientation is a form of discrimination based on sex. In other words, a claim of discrimination “because of sex” does not turn on proving that sex and sexual orientation are synonymous, but on whether the adverse action to the individual LGBTQ employee was because of that individual’s sex. Hively v. Ivy Tech Cmty. Coll., 853 F.3d at 347 (“It makes no sense to control for or rule out discrimination on the basis of sexual orientation if the question before us is whether that type of discrimination is nothing more or less than a form of sex discrimination.”), 853 F.3d at 358 (Flaum, J., concurring) (the distinction between sex and sexual orientation is irrelevant to the question of whether the individual employee was discriminated against because of their sex). A principal argument for why sexual orientation discrimination (and gender identity, see chapter 10 of this book) is per se “because of . . . sex” is because such discrimination cannot conceptually “be defined or understood without reference to sex.” Baldwin v. Foxx, EEOC Appeal No. 0120133080 (EEOC July 15, 2015), available at https://www.eeoc.gov/decisions/0120133080.pdf, at 6. What is thought of as “sexual orientation” discrimination is also discrimination against a man who is penalized for being attracted to men. As the Equal Employment Opportunity Commission (EEOC) explained in the precedential Baldwin ruling, A man is referred to as “gay” if he is physically and/or emotionally attracted to other men. A woman is referred to as “lesbian” if she is physically and/or emotionally attracted to other women. Someone is referred to as “heterosexual” or “straight” if he or she is physically and/or emotionally attracted to someone of the opposite-sex. Baldwin v. Foxx, EEOC Appeal No. 0120133080, at 6. It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and therefore, that allegations of sexual orientation discrimination involve sex-based considerations such as “sex-based preferences, assumptions, expectations, stereotypes, or norms.” Baldwin v. Foxx, EEOC Appeal No. 0120133080, at 6; see also Zarda v. Altitude Express, Inc., 883 F.3d 100, 113 (2d Cir. 2018) (“Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex” and is “doubly delineated by sex . . . [as] a function of both a person’s sex and the sex of those to whom he or she is attracted.”); Hively v. Ivy Tech Cmty. Coll., MCLE, Inc. | 2nd Edition 2020

9–5

§ 9.2

Employment Discrimination in Massachusetts

853 F.3d at 358 (Flaum, J., concurring) (“One cannot consider a person’s homosexuality without also accounting for their sex; doing so would render ‘same’ [sex] . . . meaningless”). Another mode of analyzing why sexual orientation is per se “because of . . . sex” is that treating a woman with attraction to women differently from a man with attraction to women is classic disparate treatment based on sex. In Phillips v. Martin Marietta Corp., 400 U.S. 542, 543 (1971) (per curiam), the statute forbade the company from having two hiring policies: one for women who were not hired when they had preschool-age children, and another for men with such children who were hired. The “simple test” for application of Title VII was whether treatment of a person but for the person’s sex would be different. While the company hired other women, it had denied Ida Phillips a job because she was a woman. As applied to sexual orientation, rather than comparing men and women “each having preschool-age children,” the comparison is to men and women “each having a wife” or “each having a husband.” Persons who share the gay petitioner’s attraction to men (i.e., heterosexual women) were not terminated from their jobs. As the Second Circuit explained, “in the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women.” Zarda v. Altitude Express, Inc., 883 F.3d at 119. Notably in this vein, the First Circuit applied “sex-plus” reasoning in upholding a jury verdict for a lesbian employee on hostile work environment (and retaliation) claims in Franchina v. City of Providence, 881 F.3d 32 (1st Cir. 2018). Such claims turn on mistreatment “on the basis of sex plus another characteristic,” Franchina v. City of Providence, 881 F.3d at 38 (citing Chadwick v. WellPoint Inc., 561 F.3d 38, 43 (1st Cir. 2009) (emphasis and internal citation omitted)), which may include “the plaintiff’s status as a gay or lesbian individual.” Franchina v. City of Providence, 881 F.3d at 54. Consistent with the sex-plus focus on subsets of employees, it was unnecessary for Franchina to find a comparator group of gay male firefighters who were not discriminated against to prove her hostile work environment claim, as the city argued, because sometimes “discrimination adversely affects only a portion of the protected class.” Franchina v. City of Providence, 881 F.3d at 53 (citations omitted). Further, all she needed to prove was that her gender was “a motivating factor, not the motivating factor” for the discrimination under 42 U.S.C. § 2000e-2(m). Franchina v. City of Providence, 881 F.3d at 40–41. Finally, her “plethora of evidence” of repeated use of gender-specific terms toward her, “humiliating sexual remarks” made to her, and that “men treated women better when they were perceived as willing to have sex with them” demonstrated the creation of a hostile work environment. Franchina v. City of Providence, 881 F.3d at 44–45. The jury was instructed that it had to find that Franchina’s claim could prevail if the harassment was based on her being in a subclass of women—lesbians—“if she also proves that this harassment was at least in part because of her sex or gender.” This thus satisfied Providence’s insistence that the jury be instructed that “harassment solely because of her sexual orientation” was 9–6

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

insufficient; thus, the court found no error in not giving a redundant jury instruction to that effect. Where the Supreme Court has already held that it is discrimination “because of sex” when a woman with children is denied a job or a male employee with a pregnant spouse receives lesser benefits, it can clearly hold that discrimination against a woman with a female partner is also discrimination because of sex, as the First Circuit did in Franchina. See Phillips v. Martin Marietta Corp., 400 U.S. at 544; Newport News Shipbldg. & Dry Dock Co. v. EEOC, 462 U.S. at 684. In addition to the “motivating factor” test for liability created in 1991, 42 U.S.C. § 2000e-2(m), plaintiffs can also meet the more stringent “but for” test when an action occurs where it would not have “but for that person’s sex,” City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 711 (internal citation and quotation omitted). See also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (citing dictionary definitions of “because of” to mean “by reason of; on account of” and meeting “but for” standard); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350–52 (2013) (same). The plaintiffs in these cases assume that the ordinary meaning of “sex” in 1964 was, at a minimum, biological sex, so there is no epistemological question about the nature of “sex.” By biological sex, we mean an individual’s classification of male or female at birth. An employer who fires a woman because of her sexual orientation is firing her because she is a woman who is attracted to other women. If she were a man who was attracted to women, she would not have been fired. Thus, the fact that she is a woman and not a man is the “but for” cause of her firing.

(b)

Gender Stereotyping

Second, Title VII rejects using sex-based generalizations to make employment decisions, whether categorially or about subsets of men or women. Phillips v. Martin Marietta Corp., 400 U.S. 542, 543–44 (1971); City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 & n.13 (1978) (Title VII “strike[s] at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”). Title VII also prohibits discrimination against a woman (or a man) who does not conform to conventional expectations about proper female (or male) behavior. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the employer suggested Ms. Hopkins would be promoted only if she became less “macho,” began to walk, talk, and dress “more femininely,” wore makeup and jewelry, and had her hair styled. Price Waterhouse v. Hopkins, 490 U.S. at 235. In ruling for Hopkins, the Court declared both that “gender must be irrelevant to employment decisions,” Price Waterhouse v. Hopkins, 490 U.S. at 240, and that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Price Waterhouse v. Hopkins, 490 U.S. at 251. The notion that men should be attracted only to women and women only to men is a sex stereotype, and millions of people do not fit this generalization. LGBTQ people “fail to comply with the sine qua non of gender stereotypes—that all men should form intimate relationships only with women, and all women should form intimate MCLE, Inc. | 2nd Edition 2020

9–7

§ 9.2

Employment Discrimination in Massachusetts

relationships only with men.” Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 342 (7th Cir. 2017) (majority opinion) (quoting Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698, 711 (7th Cir. 2017)); Zarda v. Altitude Express, Inc., 883 F.3d 100, 121–22 (2d Cir. 2018); Baldwin v. Foxx, EEOC Appeal No. 0120133080, at 9 (EEOC July 15, 2015) (“[s]exual orientation discrimination also is sex discrimination because it necessarily involves discrimination based on gender stereotypes”). The Seventh Circuit explained the nexus between sex assigned at birth and sex stereotyping: [D]iscriminatory behavior does not exist without taking the victim’s biological sex (either as observed or as modified in the case of [transgender people] into account. Any discomfort, disapproval, or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex [and] falls within Title VII’s prohibition against sex discrimination. Hively v. Ivy Tech Cmty. Coll., 853 F.3d at 347. Accordingly, lesbian, gay, and bisexual people should be able to “bring claims of gender stereotyping under Title VII if such individuals can demonstrate that they were treated adversely because they were viewed—based on their appearance, mannerisms, or conduct—as insufficiently ‘masculine’ or ‘feminine.’” Baldwin v. Foxx, EEOC Appeal No. 0120133080, at 9. In the First Circuit, the failure to recognize the role of sex stereotyping in cases of LGBTQ persons has bedeviled the courts in assessing when such plaintiffs are subjected to impermissible sex stereotyping or supposedly permissible sexual orientation discrimination. In 1999, the First Circuit determined in Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) that although the plaintiff-appellant “toiled in a wretchedly hostile [work] environment” because of his sexual orientation, the plaintiff nonetheless failed to establish a claim under Title VII because “Title VII does not proscribe harassment simply because of sexual orientation.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d at 258–59. At the same time, the court also recognized that “a man can ground a claim [of impermissible gender-based stereotyping] on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d at 261 n.4. Mr. Higgins was foreclosed from arguing sex stereotyping because he was held to have waived it as well as the argument that he had been discriminated against on a sex-plus theory. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d at 259–60 n.4. Accordingly, Higgins did not squarely address the contention that discrimination on the basis of sexual orientation inherently involves sex stereotyping, an issue the Supreme Court may address. Courts have found it difficult to distinguish between stereotyped assessments of masculinity, on the one hand, and sexual orientation on the other. As one District Court described it, “the line between discrimination because of sexual orientation and 9–8

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

discrimination because of sex is hardly clear.” Centola v. Potter, 183 F. Supp. 2d 403, 408 (D. Mass. 2002). In Centola, the plaintiff had not disclosed his sexual orientation at work, and alleged a seven-year period when coworkers “continuously tormented him by making comments and leaving photographs which may be characterized as mocking his masculinity, portraying him as effeminate, and implying that he was a homosexual.” Centola v. Potter, 183 F. Supp. 2d at 406. The court found his sex discrimination claim viable because a jury could conclude that he “did not conform to what ‘real’ men should look or act like,” and that his “co-workers punished him because they perceived him to be impermissibly feminine for a man.” Centola v. Potter, 183 F. Supp. 2d at 409, 410. While acknowledging that Title VII does not prohibit sexual orientation discrimination, the court held that Title VII is implicated when “an employer acts upon stereotypes about sexual roles in making employment decisions, or allows the use of these stereotypes in the creation of a hostile or abusive work environment.” Centola v. Potter, 183 F. Supp. 2d at 409. The court further noted that a claimant need not prove that sexual orientation played no part in the maltreatment but rather may recover based on proof of a mixed motive. The court stated: [A] mixed motive approach is important here, precisely because of the difficulty in differentiating behavior that is prohibited (discrimination on the basis of sex) from behavior that is not prohibited (discrimination on the basis of sexual orientation). Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. . . . The harasser may discriminate against an openly gay coworker . . . whether effeminate or not, because he thinks “real men don’t date men.” The gender stereotype at work here is that “real” men should date women, and not other men. Centola v. Potter, 183 F. Supp. 2d at 410. Several other District Courts have relied on Centola’s recognition that a person who is or is perceived as lesbian, gay, or bisexual is, as a result, also seen by others as transgressing gender stereotypes. See Rosado v. Am. Airlines, 743 F. Supp. 2d 40, 57–58 (D.P.R. 2010) (agreeing with Centola that the line between sexual orientation and sex is unclear and that the plaintiff, a gay man, had alleged a sex discrimination case based on a failure to conform with sexual stereotypes of what “real” men do and do not do); Tinory v. Autozoners, LLC, 2016 U.S. Dist. LEXIS 8760, *16 (D. Mass. Jan. 26, 2016) (finding Centola’s holding that an “employer act[ing] upon stereotypes about sexual roles in making employment decisions” to be “an appropriate state of the law in this Circuit with regard to claims under Title VII based harassment or discrimination alleged to stem from sex stereotyping”). At the same time, even in cases involving similar facts, other courts rejected Title VII claims by gay plaintiffs. For example, in Ayala-Sepulveda v. Municipality of San German, 661 F. Supp. 2d 130 (D.P.R. 2009), a gay man brought a Title VII gender stereotyping claim based on allegations that he was mocked, harassed, demoted, and ultimately fired due to his sexual orientation and a relationship with a male coworker. In contrast to Centola, however, the court held that while “the line between sexual orientation discrimination and discrimination because of sex can be difficult to draw,” “the plaintiff’s allegations MCLE, Inc. | 2nd Edition 2020

9–9

§ 9.2

Employment Discrimination in Massachusetts

in this do fall clearly on one side of the line.” Ayala-Sepulveda v. Municipality of San German, 661 F. Supp. 2d at 136–37 (internal citations omitted). As these and other examples illustrate, the impossibility of drawing a principled line between discrimination based on sex and discrimination based on sexual orientation leaves lower courts with no clear guidance and results in unpredictable and inconsistent rulings. For example, in Rosado v. American Airlines, 743 F. Supp. 2d at 58, the court held that it was conceivable that “because [the plaintiff] dated men, not women[,]” a jury could conclude that the plaintiff was discriminated against because of his sex. In contrast, the court in Ayala-Sepulveda v. Municipality of San German, 661 F. Supp. 2d at 136–37, rejected the very same claim, finding no possible Title VII liability where the only “claim of sexual stereotyping is the very fact that he is attracted to other men and had an affair with a member of the same sex.” Similarly, in several cases, courts held that harassment based on a person’s sexual orientation is sex-based and can establish a sex discrimination claim. See, e.g., Snelling v. Fall Mountain Reg’l Sch. Dist., 2001 U.S. Dist. LEXIS 3591, at *3–6, *11–12 (D.N.H. Mar. 21, 2001) (relying on Title VII case law and holding that the studentplaintiffs stated a viable Title IX claim based, in part, on homophobic taunts); Ramos-Perez v. Nat’l Life Ins. Co., 2012 U.S. Dist. LEXIS 122993, *2–3 (D.P.R. Aug. 27, 2012) (refusing to grant summary judgment against a Title VII plaintiff who alleged sexual harassment based, in part, on the plaintiff’s perceived sexual orientation). In others, courts have rejected such claims out of hand, holding that epithets or harassment based on a person’s sexual orientation fall outside of Title VII’s scope. For example, in Ianetta v. Putnam Investments Inc., 183 F. Supp. 2d 415, 421–23 (D. Mass. 2002), the court held that Title VII did not protect an employee who had been called “faggot” by his supervisor, rejecting the employee’s claims that “faggot” is a “stereotypical term [that] necessarily imports the male gender.” Ianetta v. Putnam Invs. Inc., 183 F. Supp. 2d at 421. The court held that Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) does not encompass “perceived homosexuality” as a gender stereotype actionable under Title VII. As the Ianetta decision also makes clear, the lower courts have struggled, without success, to find some way to differentiate between gender stereotypes based on sexual orientation per se and those based on beliefs about the supposed effeminacy of gay men or the masculinity of lesbian women. In Ianetta, the court adopted the approach taken by Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), which held that gender stereotyping claims based on sexual orientation are not permitted under Title VII because “not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine.” Ianetta v. Putnam Invs. Inc., 183 F. Supp. 2d at 422 (quoting Simonton v. Runyon, 232 F.3d at 38). But as Centola and other recent cases have explained, that myopic focus fails to acknowledge the equally stereotypical view that “real men should date women, and not other men,” whether effeminate or not. Centola v. Potter, 183 F. Supp. 2d at 410. Rather than merely “singl[ing] out an effeminate man for scorn,” that pervasive stereotype views all lesbian, gay, and bisexual persons as deviating from one of our culture’s most deeply rooted gender-based norms: the expectation that a man will only be attracted to women, and that a woman will only be attracted to men. Short of an artificial limitation that simply excludes such 9–10

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

claims by fiat, there is no principled way to distinguish them from other gender stereotyping claims. This artificial limitation on gender stereotyping claims gives rise to another unprincipled inconsistency, leading courts to arbitrarily favor claims brought by otherwise gender nonconforming lesbian, gay, and bisexual plaintiffs while disfavoring essentially identical claims brought by those who are not otherwise gender nonconforming. For example, in Rivera v. HFS Corp., 2012 U.S. Dist. LEXIS 82347 (D.P.R. 2012), the plaintiff alleged a hostile work environment “because her behavior did not conform to the stereotype of a female” and her supervisor called her a “dirty dyke” and subjected her to discriminatory working conditions. Rivera v. HFS Corp., 2012 U.S. Dist. LEXIS 82347, at *3. The court held that because there was “no showing that the alleged animus was premised on actual behavior” defying gender stereotypes, the Title VII claim failed. Rivera v. HFS Corp., 2012 U.S. Dist. LEXIS 82347, at *10–13 (holding that the claim was “exclusively premised on a comment relating to sexual orientation”). In contrast, if the plaintiff had been “masculine” in her appearance or behavior, the very same facts likely would have stated a Title VII claim. Similarly, in Soto-Martinez v. Colegio San Jose, Inc., 2009 U.S. Dist. LEXIS 82510, *2, *9–11 (D.P.R. Sept. 9, 2009), the court found no Title VII liability where the plaintiff suffered constant verbal harassment referring to him as gay where he was not otherwise seen as failing to conform to gender stereotypes of masculinity. In contrast, if the plaintiff had been “feminine” in his appearance or behavior, the very same facts likely would have stated a Title VII claim. The attempt to exclude sexual orientation claims from the scope of Title VII in Higgins has caused confusion among the lower courts and placed lesbian, gay, and bisexual employees facing discrimination in an unfair bind.

(c)

Associational Discrimination

Third, the associational argument for sex discrimination relies on the unanimous view of courts and the EEOC that discrimination based on an employee’s interracial marriage or friendship is race discrimination prohibited by Title VII. See, e.g., Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008); Tetro v. Elliot Popham Pontiac, Oldsmobile, Buick & GMC Trucks, 173 F.3d 988, 994 (6th Cir. 1999); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 891–92 (11th Cir. 1986). Notably, even when the category of discrimination is directed at someone else, the individual actually affected by the employer’s discrimination has a Title VII claim. Newport News Shipbldg. & Dry Dock Co. v. EEOC, 462 U.S. 669, 682–83 (1983) (validating claims of male employees when the employer provided lesser pregnancy benefits to their spouses than it gave to female employees). The sample principles apply to determining what constitutes discrimination “because of race” and “because of . . . sex.” Where mistreatment is tied to the employer taking the individual employee’s sex (or race) into account, such as by associating with a person of the same sex (or of a different race), then the employee’s claim should proceed. See, e.g., Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 349 (7th Cir. 2017) (accepting associational argument for sex discrimination; “If we were to change the sex MCLE, Inc. | 2nd Edition 2020

9–11

§ 9.2

Employment Discrimination in Massachusetts

of one partner in a lesbian relationship, the outcome would be different); Zarda v. Altitude Express, Inc., 883 F.3d 100, 124 (2d Cir. 2018); Baldwin v. Foxx, EEOC Appeal No. 0120133080, at 8 (EEOC July 15, 2015).

(d)

Congressional and Agency Developments

This section addresses Congressional and regulatory action with respect to LGBTQ people and employment. The Equality Act of 2019, H.R. 5, S. 788, 116th Cong. (2019), passed in the House but not yet enacted, would explicitly prohibit discrimination based on “sexual orientation” or “gender identity” under Title VII by including them within its definition of prohibited sex discrimination. See H.R. 5, § 7 (amending Title VII to prohibit discrimination “because of . . . sex (including sexual orientation and gender identity)”). This approach both codifies existing case law and confirms that sexual orientation and gender identity discrimination are already prohibited by Title VII’s bar on sex discrimination. The executive branch continues to support some nondiscrimination principles in federal employment, instructing the Office of Personnel Management (OPM) to issue guidance to all agencies prohibiting discrimination on the basis of factors unrelated to job performance and further instructing the heads of all federal agencies to identify and extend all benefits to the same-sex partners of federal employees to the extent permitted under current federal law. See Memorandum for the Heads of Executive Departments and Agencies on Federal Benefits and Non-Discrimination, 74 Fed. Reg. 29,393 (June 17, 2009), https://www.govinfo.gov/content/pkg/FR-2009-06-22/ pdf/E9-14737.pdf. LGBTQ people are not disqualified from seeking security clearances from the federal government based solely on sexual orientation. Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, 32 C.F.R. § 147.6 (2019), https://www.govinfo.gov/content/pkg/CFR-2012-title32-vol1/xml/CFR-2012-title32vol1-part147.xml#seqnum147.6; Exec. Order No. 12,968, 3 C.F.R. § 391 (1995), https://www.govinfo.gov/content/pkg/WCPD-1995-08-07/pdf/WCPD-1995-08-07Pg1365.pdf. Several executive orders extend protections for LGBTQ workers who are either public employees or who are employed by federal contractors. In 1998 President Clinton signed an executive order that prohibited discrimination based on sexual orientation in the civilian federal workforce, altering a 1969 executive order issued by President Nixon that prohibited discrimination in other categories such as race, sex, age, and national origin. See Exec. Order No. 13,087, 3 C.F.R. § 191 (1999), Exec. Order No. 11,478, 3 C.F.R. § 803 (1966–1977). As such, employees in the federal government may not be discriminated against based on their sexual orientation. In 2014, President Obama signed an executive order making it illegal for federal contractors to discriminate on the basis of sexual orientation and gender identity. Exec. Order No. 13,672, 3 C.F.R. § 282 (2014). This altered President Johnson’s prior executive order outlawing other types of discrimination by federal contractors. Exec. Order No. 9–12

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

11,246, 3 C.F.R. § 339 (1964–1965). However, neither order creates a private cause of action.

§ 9.2.2

Massachusetts State Protections

In 1989, Massachusetts became the second state in the nation to prohibit sexual orientation discrimination in employment. 1989 Mass. Acts c. 516 (amending G.L. c. 151B and G.L. c. 272). Twenty-two states as well as the District of Columbia, Guam, and Puerto Rico now have such laws (CA, CO, CT, DE, HI, IA, IL, MA, MD, ME, MN, NH, NJ, NM, NV, NY, OR, RI, UT, VT, WA, and WI). Twelve additional states, the U.S. Virgin Islands, and the Northern Mariana Islands prohibit discrimination on the basis of sexual orientation in public employment (AK, AZ, IN, KS, KY, MO, MI, MT, NC, OH, PA, and VA). In addition, at least 225 cities and counties have passed nondiscrimination ordinances that prohibit employment discrimination on the basis of sexual orientation and gender identity. The Massachusetts Fair Employment Practices Act, G.L. c. 151B (Chapter 151B) prohibits employers with six or more employees from discriminating against applicants and employees based on certain protected characteristics. Chapter 151B explicitly prohibits discrimination based on sexual orientation. G.L .c. 151B, § 4(1). As the Supreme Judicial Court has stated, “The Legislature has made clear that, in this Commonwealth, discrimination on the basis of sexual orientation is against public policy and shall not be tolerated.” Pardo v. Gen. Hosp. Corp., 446 Mass. 1, 14 (2006). Sexual orientation–based claims span the full spectrum of employment discrimination theories, alleging, at heart, double standards based on whether the individual is gay. Except for a few special circumstances that are addressed here, sexual orientation–based claims follow the same paradigms established for discrimination based on other characteristics. Richmond v. Roxbury Comprehensive Cmty. Health Ctr. Inc., 15 M.D.L.R. 1562, 1593 (1993); see Pelletier v. Town of Somerset, 458 Mass. 504, 513– 15 (2009); Augis Corp. v. MCAD, 75 Mass. App. Ct. 398, 408 n.11 (2009) (in discussing relevance of applicability of precedent on sexual harassment to claim of racial harassment, stating “[u]nlawful harassment, in other words, is unlawful harassment and there is no basis for using different analytical models to determine its existence in different contexts” (citing Clifton v. MBTA, 445 Mass. 611, 616 n.5 (2005)). Several Massachusetts municipalities, including Amherst, Boston, Cambridge, Newton, Northampton, Somerville, and Worcester, also proscribe sexual orientation discrimination by ordinance. See, e.g., City of Boston, Ordinances, Chapter 12-9 (Human Rights).

(a)

Who Is Protected?

“Sexual orientation” is defined in G.L. c. 151B as “having an orientation for, or being identified as having an orientation for, heterosexuality, bisexuality or homosexuality.” G.L. c. 151B, § 3(6). Certain conclusions flow from this definition. Employees may be protected even if they do not expressly state that they have a particular sexual orientation. In practice, this means that an employee need not “come MCLE, Inc. | 2nd Edition 2020

9–13

§ 9.2

Employment Discrimination in Massachusetts

out” in order to claim the protection of the law. Proof of “being identified as” is akin to the “regarded as” analysis in disability cases. The relevant inquiry in a “being identified as” case is on the employer’s state of mind and whether the employer’s identification or perception of an employee’s sexual orientation, even if the employer can plausibly assert a lack of direct knowledge. Thus, an employer that denies knowing an employee’s sexual orientation cannot defeat a plaintiff’s prima facie case on that ground alone, as the employee may be able to prove the employer’s knowledge or belief of the employee’s sexual orientation by means other than the employer’s statements. See Dumas v. Town of Dudley, 21 M.D.L.R. 217, 220 (1999) (discrediting the employers’ denials that they did not know the complainant’s sexual orientation, finding it to be common knowledge in the police department and around town); Lie v. Sky Publ’g Corp., 15 Mass. L. Rptr. 412, 416 (Super. Ct. 2002) (transgender employee might have claim for sexual orientation discrimination due to being identified as having a particular sexual orientation regardless of actual orientation); see also Walsh v. Carney Hosp. Corp., No. 94-2583, 1998 Mass. Super. LEXIS 88 (1998) (Super. Ct. 1998) (jury charge) (the employee must prove by a fair preponderance of the credible evidence that “the perception of plaintiff’s homosexuality was the determining factor in the plaintiff’s discharge”). In many workplaces, it takes little for coworkers to start the identification process: suspicion and rumor commence with an unmarried employee objecting to antigay jokes, or taking a neutral or positive position on a “gay issue” in office discussions, or refusing to talk about their personal and social life. See, e.g., Salvi v. Suffolk Cty. Sheriff’s Dep’t, 67 Mass. App. Ct. 596 (2006) (though the employee did not inform coworkers of the employee’s sexual orientation, rumors circulated in the workplace); Fijal v. Ky. Fried Chicken/JTN Food Serv., Inc., 20 M.D.L.R. 45 (1998) (the employee confided he was gay to a few coworkers; shortly thereafter management inquired if he was gay, and his sexual orientation then became common knowledge in the workplace), aff’d, 24 M.D.L.R. 44 (2002); Dumas v. Town of Dudley, 21 M.D.L.R. at 220 (the sexuality of an employee is an “open secret” in the small town where he has been employed as a police officer for fifteen years and is widely suspected of being gay; an accusation and investigation of sexual assault against another man also was enough to “arouse . . . suspicion” regarding the employee’s sexual orientation). Although such claims are rare, heterosexuals may allege discrimination based on their heterosexuality. See, e.g., Carozza v. Blue Cross Blue Shield of Mass., Inc., No. 00-1249-F, 2001 WL 1517584 (Mass. Super. Ct. Nov. 16, 2001) (granting the defendant’s summary judgment motion on the plaintiff’s claim of discrimination on the basis of his heterosexual sexual orientation); Partners Healthcare Sys. v. Sullivan, 497 F. Supp. 2d 42 (D. Mass. 2007) (a claim by a heterosexual male that limiting domestic partner benefits to same-sex partners discriminates on the basis of sexual orientation). An individual’s gender identity or expression may cause an employer to make an assumption about the employee’s sexual orientation based on stereotypes about gender and sexuality. For example, an employer may assume that a woman with short hair who wears clothing perceived as masculine is a lesbian. Discrimination based on such assumptions may form the basis of a claim for sexual orientation discrimination, 9–14

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

even if the employee does not identify as LGBTQ. See Lie v. Sky Publ’g Corp., 15 Mass. L. Rptr. at 416 (“those who transgress traditional gender roles and defy stereotypes associated with their biological sex are less likely to be perceived as heterosexual than [is] the general population”); cf. Morgan v. BC Bos., 24 M.D.L.R. 45, 46 (2002) (a gay male employee was told not to wear an earring because it “sen[t] the wrong signal”). Employees subjected to such discrimination may also have a claim under Chapter 151B for discrimination based on gender identity. See chapter 10 of this book (discussing gender identity discrimination). In addition to sexual orientation discrimination claims, in some cases, employees may also bring sex discrimination claims (state or federal) where an adverse action is triggered by the employer’s perception that the employee does not meet sex stereotypical notions of what is a “real” man or a “real” woman. See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (a female senior manager was denied consideration for partnership because she was not deemed feminine enough by the male partners; the suggestion that she should dress and behave more “femininely” and attend “charm school” was evidence of unlawful sex stereotyping); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (stating that under Title VII, “just as a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity, a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity”); Ianetta v. Putnam Invs., Inc., 142 F. Supp. 2d 131 (D. Mass. 2001) (denying the defendant’s motion to dismiss, recognizing that the plaintiff’s allegations that he was discriminated against for failing to meet the male gender stereotype states a claim for sex discrimination under Title VII); see also Hub Folding Box Co. v. MCAD, 52 Mass. App. Ct. 1104 (2001) (table) (requiring female employee to conceal tattoo but allowing male employee to display tattoo stemmed from employer’s belief that “women with tattoos are ne’er-do-wells whereas men with tattoos are heroes,”—exactly the type of “outdated gender stereotypes . . . which antidiscrimination laws were designed to eradicate.” Slip op. at 2). Example An employer hires “feminine-looking” lesbians but refuses to hire a lesbian with a crew cut and “manly” appearance. Claims for both sex and sexual orientation discrimination may be brought against the employer under G.L. c. 151B.

(b)

Who Is Exempt?

There are no occupational exemptions from the reach of the nondiscrimination mandate in G.L. c. 151B. Chapter 151B recognizes a defense for discrimination justified by a bona fide occupational qualification, but that defense provides “only the narrowest of exceptions” to the broad antidiscrimination provisions of Chapter 151B. See Pugsley v. Police Dep’t of Bos., 472 Mass. 367, 374 n.16 (2015); see also Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611 (1983). Neither stereotypical views nor customer preferences can constitute a bona fide occupational qualification. See 804 C.M.R. § 3.01(3). MCLE, Inc. | 2nd Edition 2020

9–15

§ 9.2

Employment Discrimination in Massachusetts

Employers that are religious institutions or that are the charitable or educational arms of such an institution and are operated or supervised by that religious institution enjoy a limited exemption under G.L. c. 151B, § 1(5). Such organizations may preferentially hire members of their own religion and may take any employment action they wish as long as it is “calculated . . . to promote the religious principles for which it is established or maintained.” G.L. c. 151B, § 1(5). This exemption applies only in cases where the organization’s activities are restricted to members of the religious group in question. See, e.g., Barrett v. Fontbonne Acad., 33 Mass. L. Rptr. 287 (Super. Ct. 2015) (a Catholic school could not claim a religious exemption under G.L. c. 151B, §§ 1(5) and 4(18) because it did not limit admission or employment to members of the Catholic faith); Piatti v. Jewish Cmty. Ctrs., 1 Mass. L. Rptr. 383, 384 (Super. Ct. 1993) (Jewish Community Centers of Greater Boston (JCC) was not covered by the religious exemption to employment discrimination because, regardless of a Jewish focus in many JCC programs, “all of the JCC’s services and programs are open to the general public, both Jews and non-Jews”). The exemption is not a blanket one and is most applicable when dealing with employees who have a role in promoting religious principles. In addition, under the First Amendment, religious institutions may have an affirmative defense to antidiscrimination laws with respect to the employment of certain employees whose responsibilities include religious functions. See Temple Emanuel v. MCAD, 463 Mass. 472, 476, 486–87 (2012) (the ministerial exception provided an affirmative defense to the state antidiscrimination laws as applied to a teacher in a religious school); see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 699, 707–09 (2012) (the ministerial exception provided an affirmative defense to the federal antidiscrimination law with respect to a “called teacher” who was “regarded as having been called to her vocation by God through a congregation”). In a 2015 decision, the Superior Court ruled that a Catholic school was not shielded from Chapter 151B by the ministerial exception when it refused to hire an applicant for the director of food services position because he was married to a man. Barrett v. Fontbonne Acad., 33 Mass. L. Rptr. at *10–12. The court emphasized that the ministerial exception is “relatively narrow” and ruled that it could not apply to the school’s refusal to hire the plaintiff for a position that involved “no duties as an administrator or teacher of religious matters.” Barrett v. Fontbonne Acad., 33 Mass. L. Rptr. at *10–12. Employers that seek to discriminate against a gay, lesbian, or bisexual person in employment because of the employer’s personal religious beliefs are also not immune from suit. Attorney Gen. v. Desilets, 418 Mass. 316 (housing case); EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996) (employment case). An employer also might claim as a defense the “reasonable accommodation” of other employees who engage in harassing or other discriminatory behavior due to their religious intolerance of certain sexual orientations. Courts have consistently rejected such interpretations of the “reasonable accommodation” requirement. See Chalmers v. Tulon Co., 101 F.3d 1012, 1021 (4th Cir. 1996) (no reasonable accommodation would allow an employee to send “personal disturbing letters to her fellow employees accusing them of immorality”). Further, for a public employer to attempt such accommodation could result in unconstitutional governmental endorsement of religious speech. See 9–16

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 168 (2d Cir. 2001) (public employees prohibited from evangelizing against certain sexual orientations to LGBTQ clients, as “permitting appellants to evangelize while providing services to clients would jeopardize the state’s ability to provide services in a religion-neutral matter”).

(c)

Who May Be Held Liable?

Both individuals and corporations may be held liable for discrimination based on sexual orientation. With regard to individual liability, G.L. c. 151B, § 4(A) makes it unlawful for “any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter,” including the right to equal treatment in the terms and conditions of employment regardless of sexual orientation (emphasis added). In Berardi v. Medical Weight Loss Center, Inc., 23 M.D.L.R. 5, 11–12 (2001), the MCAD noted that the imposition of individual liability is consistent with the mandate that G.L. c. 151B be liberally construed for remedial purposes and found the complainant’s supervisor—the owner of the company— individually and jointly liable with the company because he “by his actions and comments, . . . coerced, intimidated, interfered with, and retaliated against Complainant in the exercise of her right to be free from harassment based on her sex and sexual orientation in the . . . workplace.” When there is direct evidence of discrimination, a supervisor with “direct control over complainant’s employment” may be held liable regardless of whether the supervisor was the perpetrator. Without such direct evidence, an employee may be named if they had the authority or the duty to act on behalf of the employer, and there is evidence that the employee’s actions or lack thereof were in “deliberate disregard of the complainant’s rights” that would lead to an inference of discriminatory intent. An employee may also be held liable, regardless of supervisory status, if they are the perpetrator of the unlawful harassment. Vera v. Faust, 26 M.D.L.R. 341, 345 (2004) (citing Woodason v. Town of Norton Sch. Comm., 25 M.D.L.R. 62 (2003)). Even individuals without any relationship to an employer may be liable when they are directly responsible for harassment that interferes with an employee’s “right to work in an environment free of unlawful harassment based on sexual orientation.” McGrath v. Local Union No. 12004, 26 M.D.L.R. 178, 193 (2004) (citing G.L. c. 151B, § 4(5), providing that it is unlawful for “any person, whether an employer, employee or not, to aid, abet, incite, compel or coerce” discrimination and harassment). That an employee technically works for another entity may not in and of itself shield an employer from liability. Employers may be subject to joint liability, where, for example, an employer has contracted with an independent company and “has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Commodore v. Genesis Health Ventures, Inc., 63 Mass. App. Ct. 57, 62 (2005) (quoting Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 n.4 (6th Cir. 1997)); see also Grace v. USCAR, MCLE, Inc. | 2nd Edition 2020

9–17

§ 9.2

Employment Discrimination in Massachusetts

521 F.3d 655, 663–67 (6th Cir. 2008) (discussing “joint employer” liability standard under Family and Medical Leave Act); Sanford v. Main St. Baptist Church Manor, Inc., 449 F. App’x 488, 492 (6th Cir. 2012) (unpublished) (discussing “joint employer” liability standard).

(d)

What Standards Apply?

As stated previously, sexual orientation–based claims largely follow the same paradigms established for discrimination based on other characteristics. Richmond v. Roxbury Comprehensive Cmty. Health Ctr. Inc., 15 M.D.L.R. 1562, 1593 (1993); see Pelletier v. Town of Somerset, 458 Mass. 504, 513–15 (2009). The Supreme Judicial Court addressed issues relating to the proper standards for the use of contextualized jury instructions for evaluating the reasonableness of discrimination claims specifically within the context of a lesbian claimant in Muzzy v. Cahillane Motors, Inc., 434 Mass. 409 (2001). The Muzzy court reviewed the Superior Court’s instruction that the jury evaluate the plaintiff’s claim of sexual harassment by her female boss from the view of an objectively reasonable woman of lesbian orientation. Muzzy v. Cahillane Motors, Inc., 434 Mass. at 410. The court noted that giving a jury instruction that provides additional context to the “reasonable person” by including attributes of the plaintiff requires a balancing of the benefits of helping the jury to consider the claim from a person in the plaintiff’s position and the risks of including prejudicial or inflammatory material that has no relevance to the plaintiff’s experience of the discrimination or harassment. Muzzy v. Cahillane Motors, Inc., 434 Mass. at 417. The court thus held that, if a judge decides to add such attributes, the judge should bear in mind the following admonitions: • Any such additions must not reduce the standard to a subjective one. • The instruction should not include any characteristics of the plaintiff that are not relevant to the claim. • In light of the risks of harm to the plaintiff, the judge should give serious consideration to a plaintiff’s objection to an instruction that references particulars of the plaintiff’s race, gender, sex, ethnicity, or sexual orientation. Muzzy v. Cahillane Motors, Inc., 434 Mass. 409 (2001).

§ 9.2.3

Disparate Treatment Claims

The types of claims for sexual orientation discrimination parallel those for other protected characteristics. Disparate treatment claims, which are used to show intentional discrimination in individual cases and class actions, may be based on direct or circumstantial evidence. Jagielski v. Bristol Cty. Sheriff’s Office, 31 M.D.L.R. 16, 21 (2009). Where there is direct evidence of discrimination, the burden of persuasion immediately shifts to the employer to prove that the alleged discrimination did not affect the employment decision at issue. In circumstantial evidence cases, the burden-shifting model pertains. Jagielski v. Bristol Cty. Sheriff’s Office, 31 M.D.L.R. at 21. If the employer succeeds in offering such a reason, the burden then shifts back to the complainant to persuade the fact finder, by a preponderance of evidence, that the 9–18

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

articulated justification is not the real reason, but a pretext. The discussion below relates primarily to circumstantial evidence cases.

(a)

Nonselection in Hiring or Promotion

Hiring and promotion claims require the complainant to establish • that the complainant is a member of a protected class; • that the complainant applied for and was qualified for the available position for which the employer sought applicants; • that the complainant was denied the position despite their qualifications; and • that, after the complainant’s rejection, the employer filled or sought to fill the position with people with qualifications similar to the complainant’s and who were not a member of the protected class. See Chief Justice for Admin. & Mgmt. of Trial Court v. MCAD, 439 Mass. 729, 732 (2003); Wheelock Coll. v. MCAD, 371 Mass. 130, 135 n.5 (1976). Practice Note It is generally more difficult in a hiring situation than in a promotion context to establish that the employer either knew the sexual orientation of the applicant or identified the applicant as gay, lesbian, or bisexual. Were there express statements in a résumé, interview, or from a reference? Did any of the interviewers engage in a fishing expedition for personal details about the applicant’s marital status, family, or personal life? Was there any mention of “domestic partnership benefits” or nondiscrimination policies?

Practice Note An employer’s use of psychological tests in preemployment screening may provide evidence of discrimination for the rejected applicant. One Massachusetts employer, while denying liability, promptly settled a failure-to-hire case when it was revealed that among the psychological tests administered to the complainant was the Edwards Personality Preference Schedule, which expressly scores test takers on a “heterosexuality” scale. Doe v. Roe Corp., MCAD No. 92-BEM-0481.

(b)

Sexual Orientation Harassment

Claims of harassment perpetrated by coworkers based on sexual orientation under G.L. c. 151B, § 4(1) require the complainant to establish that • the complainant is a member of a protected class; • the harassment was based on sexual orientation; • the harassment was sufficiently pervasive to alter the conditions of employment; and • the employer knew or should have known about the harassment, and failed to remedy it. MCLE, Inc. | 2nd Edition 2020

9–19

§ 9.2

Employment Discrimination in Massachusetts

Dodson v. Sandpoint LLC, 20 M.D.L.R. 67, 69 (1998) (analogizing sexual orientation harassment to racial harassment claims); Millet v. Lutco, Inc., 30 M.D.L.R. 77, 33–34 (2008) (applying this four-step analysis to sexual harassment claim based on gender identity); Vera v. Faust, 26 M.D.L.R. 341, 344–46 (2004); McGrath v. Local Union No. 12004, 26 M.D.L.R. 178, 198–200 (2004); Berardi v. Med. Weight Loss Ctr., Inc., 23 M.D.L.R. 5, 9–10 (2001); Moore v. Bos. Fire Dep’t, 22 M.D.L.R. 294, 299–300 (2000); see also Magane v. Corcoran Mgmt. Co., 18 M.D.L.R. 103 (1996); Gobbi v. DHL Airways Co., 17 M.D.L.R. 1559, 1565 (1995). An employer’s failure to address a hostile environment leads to liability. “An employer who passively tolerates the creation of a hostile working environment implicitly ratifies the perpetrator’s misconduct . . . . ” Modern Cont’l/Obayashi v. MCAD, 445 Mass. 96, 105 (2005). Further, sexual orientation harassment perpetrated by a supervisor, like other forms of harassment, subjects an employer to vicarious liability. See College Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156, 165 (1987) (vicarious liability imposed where a supervisor commits harassment because “General Laws c. 151B, § 4, prohibits discrimination by ‘an employer, by himself or his agent’”); Salvi v. Suffolk Cty. Sheriff’s Dep’t, 67 Mass. App. Ct. 596, 605 (2006) (finding undesirable assignments by hostile superiors “reflected an active role by management in the harassment,” and concluding that the commanding officer’s repetition of the shift commander’s use of a homophobic slur and rumors of the employee’s sexual orientation were “probative of the work environment and management’s reaction”). In some circumstances, even actions taken outside the workplace can constitute actionable employment discrimination. In Salvi v. Suffolk County Sheriff’s Department, 67 Mass. App. Ct. at 605, the Appeals Court held that the mailing of children’s blocks spelling “fag” to the home the employee shared with his partner was probative of a hostile work environment. “In determining whether the work environment is hostile, significant out-of-work harassment such as this may be considered as well.” Salvi v. Suffolk Cty. Sheriff’s Dep’t, 67 Mass. App. Ct. at 605. The court found that the timing of the package, which coincided with the surfacing of rumors about the employee’s sexual orientation and a coworker’s derogatory comments, as well as the use of the exact terms as had been used in earlier incidents, led to a reasonable inference that they had been sent by someone at work and directed at the gay employee. In the decided cases, name-calling is often present in anti-LGBTQ harassment. Salvi v. Suffolk Cty. Sheriff’s Dep’t, 67 Mass. App. Ct. at 599–601 (corrections officer was repeatedly called “fag,” “faggot,” and the unit where he worked was called the “fag unit”); McGrath v. Local Union No. 12004, 26 M.D.L.R. at 195–96 (union members called a supervisor “faggot,” “fag boy,” and “sweetie”); Berardi v. Med. Weight Loss Ctr., Inc., 23 M.D.L.R. at 9–10 (a supervisor referred to a lesbian employee as “one of the boys” and “token lesbian”); Moore v. Bos. Fire Dep’t, 22 M.D.L.R. at 295 (a lesbian firefighter was referred to derogatorily as a lesbian, called “one way Wanda”); Barbot v. Hapco Farms, Inc., 19 M.D.L.R. 133, 134 (1997) (coworkers called a gay produce-packer “fag” and “pato” (a Spanish word for “faggot”)); Gobbi v. DHL Airways Co., 17 M.D.L.R. at 1561 (the complainant alleged she was called “dyke”); Magane v. Corcoran Mgmt. Co., 18 M.D.L.R. at 104 (when a supervisor made a janitor’s sexual orientation “the subject of ridicule, it posed a barrier to Complainant’s 9–20

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

full participation in the workplace”). In some cases, homophobic name-calling and other verbal abuse can be considered harassment even when nongay employees are subject to similar abuse. McGrath v. Local Union No. 12004, 26 M.D.L.R. at 198 (“although Union members regularly uttered many antihomosexual slurs (such as ‘faggot’ and ‘cocksucker’) to other supervisors and contractors notwithstanding their sexual orientation, the specific language used by the Union members on each of these particular occasions would lead a reasonable person to unmistakably conclude that they made these remarks precisely because Complainant was a gay man”). While recognizing that “‘faggot’ is certainly an offensive and derogatory term,” the MCAD has stated in dicta that one or two utterances of the word “faggot”—on the facts presented in those cases—would not create a hostile work environment. Dukes v. NWI Investigative Grp., Inc., 2003 Mass. Comm. Discrim. LEXIS 115, *35–36 (2003) (the use of the word “faggot” on two occasions would be insufficient to support a finding of a hostile work environment); Dodson v. Sandpoint, LLC, 1998 Mass. Comm. Discrim. LEXIS 67, *13 (1998) (the use of the word “faggot” on one occasion in reference to the complainant would not be conduct “ris[ing] to the level of harassment so pervasive as to constitute a hostile work environment”); Jones v. Iron Mountain Records Mgmt., 19 M.D.L.R. 138, 142 (1997). In all of these cases, however, the MCAD did not find the complainant’s or other witnesses’ testimony as to the use of the word “faggot” credible, and in Jones the MCAD found that the employer acted appropriately for the one instance of the use of the word it found to be credible. In addition, the premise of these decisions—that an isolated remark cannot under any circumstances constitute a hostile work environment—has since been undermined by a 2009 Appeals Court decision, Augis Corp. v. MCAD, 75 Mass. App. Ct. 398 (2009), involving racial discrimination. In Augis, the Appeals Court held that “a supervisor who calls a black subordinate a ‘fucking nigger’ has engaged in conduct so powerfully offensive that the MCAD can properly base liability on a single instance.” Augis Corp. v. MCAD, 75 Mass. App. Ct. at 408–09. The Appeals Court noted “[t]hat term inflicts cruel injury by its very utterance,” and is “degrading,” “humiliating,” and “freighted with a long and shameful history of humiliation, the ugly effects of which continue to haunt us all.” Augis Corp. v. MCAD, 75 Mass. App. Ct. at 409. Practice Note Plaintiffs seeking to demonstrate a hostile work environment from a single targeted use or limited number of uses of epithets for LGBTQ people should offer credible and, if possible, corroborated testimony that the slur was used, its emotional impact on the complainant, and an expert witness regarding the historical use of the slur and its effects.

The absence of name-calling, however, “does not doom a claim of discrimination.” In Flood v. Bank of America, 780 F.3d 1, 11 (1st Cir. 2015), concerning Maine’s counterpart to G.L. c. 151B, the First Circuit noted that “co-workers and supervisors increasingly know better than to spew explicitly racist, misogynist, xenophobic or homophobic remarks in the workplace.” Flood v. Bank of Am., 780 F.3d at 10–11. The court proceeded to find that “[d]iscriminatory conduct unlawfully based on one’s membership in a protected class need not be overt to be actionable.” Flood v. Bank of MCLE, Inc. | 2nd Edition 2020

9–21

§ 9.2

Employment Discrimination in Massachusetts

Am., 780 F.3d at 11. The court then reviewed the totality of the evidence based on the alleged incidents and statements. Derogatory stereotypes may also be a basis for a harassment claim. See Salvi v. Suffolk Cty. Sheriff’s Dep’t, 67 Mass. App. Ct. at 601 (coworkers called a gay corrections officer “sissy”); Barbot v. Hapco Farms, Inc., 19 M.D.L.R. at 134 (coworkers taunted a gay produce worker that he was unable to lift five-pound bags); Gregory Herek, “Myths About Sexual Orientation: A Lawyer’s Guide to Social Science Research,” 1 Rev. of Law & Sexuality 133 (Summer 1991) (discussing antigay stereotypes). Due to a stereotype of gay people as “hypersexual,” gay and lesbian employees often encounter verbal abuse of a sexual nature. See, e.g., Salvi v. Suffolk Cty. Sheriff’s Dep’t, 67 Mass. App. Ct. at 601–02 (a coworker was warned against touching a gay corrections officer because “he might get a hard on”); McGrath v. Local Union No. 12004, 26 M.D.L.R. at 198 (union members tauntingly warned others, “don’t go in the truck with him, he’s going to try to fuck you,” and “watch out you better wear an ass protector bending over in front of Tinkerbell”); Centola v. Potter,183 F. Supp. 2d 403, 403 (D. Mass. 2002) (coworkers called a gay postal worker “swordswallower”); Magane v. Corcoran Mgmt. Co., 18 M.D.L.R. at 103 (a supervisor called a male janitorial employee “lollipop licker,” “pipe smoker,” and “pole sucker”; the employee also received pornographic pictures). Practice Note When analyzing a possible claim of harassment under G.L. c. 151B, be alert for sexual harassment as well. See G.L. c. 151B, § 4(16A) (prohibition); G.L. c. 151B, § 1(18) (definition of sexual harassment); Melnychenko v. 84 Lumber Co., 424 Mass. 285 (1997).

Employers must be aware that the hypersexualization of gay employees by others may lead to double standards that could be challenged when they are the basis for adverse action. An employee who disclosed “I’m a newlywed” would not be accused—as is sometimes the case with gay employees who state “I’m gay”—of discussing their sex life or engaging in sexual conduct or inviting revelations of their coworkers’ sex lives. Coworkers who do not identify as LGBTQ may falsely charge their LGBTQ colleagues with sexual harassment for something as simple as being in the restroom at the same time. See Carozza v. Blue Cross Blue Shield of Mass., Inc., No. CA001249F, 2001 WL 1517584, at *9–10 (Mass. Super. Ct. Nov. 16, 2001) (a gay colleague’s discussion of “sexual escapades” with other coworkers did not constitute an act of sexual harassment toward a heterosexual plaintiff who overheard the conversation). In Walsh v. Carney Hospital Corp., No. 94-2583, 1998 Mass. Super. LEXIS 88 (Super. Ct. 1998), a Norfolk County jury awarded $625,000 in compensatory damages and a total of $650,000 in punitive damages against an employer for termination and against individual defendants for false allegations of harassment. In another case, the MCAD found discrimination based on sexual orientation where a gay employee was denied reinstatement by an employer based on “lingering, albeit 9–22

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

unfounded, suspicion” of sexual conduct with a minor after such an accusation had been made and refuted. D’Agostino v. Salvation Army, 25 M.D.L.R. 176, 179 (2003). The MCAD concluded that the employer acted “based on unwarranted, stereotypical assumptions” that the employee’s sexual orientation made him more likely to be a sexual predator. D’Agostino v. Salvation Army, 25 M.D.L.R. at 179. The discomfort of others is not a basis for unequal treatment based on sexual orientation. An employer may be offended upon seeing a gay employee kiss their partner goodbye in the company parking lot but would not think twice about a different-sex kiss. Two public accommodations cases are instructive by analogy. See Rome v. Transit Express, 19 M.D.L.R. 159, 161 (1997) (a bus driver who ordered a passenger off of a bus and berated her for kissing her female companion where the driver did not berate a different-sex couple for the same conduct “violates the fundamental notion of equal treatment our laws were designed to preserve and protect”); Stoll v. State St. Stock Exch., Inc., 18 M.D.L.R. 141, 142 (1996) (customer discomfort with demonstrations of affection by same-sex couples was not a basis for forcible ejection of those couples from a nightclub). The reported MCAD cases reveal a tendency of employers to underreact to claims of antigay harassment in the workplace. Judgments have been rendered against employers that fail to investigate and take prompt remedial action to end harassment based on sexual orientation. In Barbot v. Hapco Farms, Inc., 19 M.D.L.R. 133 (1997), the MCAD ruled that an employee who was called names for most of his sixty-day probationary period and who had a colleague report the harassment to his supervisor established a claim of harassment that affected the terms and conditions of his employment. The employer’s response of telling the employee to “ignore the situation and get back to the job,” promising she would be “on the lookout” and would be calling a meeting of employees in which she would condemn name-calling, was ruled inadequate. Barbot v. Hapco Farms, Inc., 19 M.D.L.R. at 137; see also Gobbi v. DHL Airways Co., 17 M.D.L.R. at 1573 (the employer failed to investigate at all despite direct evidence of harassment). Practice Note When counseling employers, the importance of prompt investigation into any report of harassment cannot be underscored enough.

The same standards should be applied and procedures utilized to investigate claims of antigay harassment as any other type of harassment.

(c)

Adverse Actions

A prima facie case based on an adverse action, whether discipline, demotion, termination, or other differential treatment, requires the complainant to establish the following: • that the complainant is a member of a protected class; • that the complainant was adequately performing their job; • that the complainant was adversely treated; and MCLE, Inc. | 2nd Edition 2020

9–23

§ 9.2

Employment Discrimination in Massachusetts

• that others similarly situated and not of the protected class were treated differently, or, in the case of a termination, that the employer sought to fill the position with a similarly situated person not of the protected class. See Trs. of Health & Hosps. of Bos., Inc. v. MCAD, 449 Mass. 675, 682, 687 (2007); Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 116 (2000). Examining both the adverse treatment of the complainant and the treatment of similarly situated people outside the protected class should focus on the totality of the circumstances rather than comparative evidence only. This allows consideration of a broad variety of alternative means for proving pretext: the complainant must show that there are other facts or circumstances giving rise to the inference that there is a causal connection between the alleged basis of unlawful discrimination and the adverse action. See Fijal v. Ky. Fried Chicken/JTN Food Serv., Inc., 20 M.D.L.R. 45, 47 (1998); Morgan v. BC Bos., 24 M.D.L.R. 45 (2002) (an employee established a prima facie case of sexual orientation discrimination by proving that he is gay, that his supervisor made a joke about his sexual orientation, that he performed his job in a satisfactory manner, and that he was singled out for unjustified disciplinary action and eventual termination). Fijal and Flood demonstrate how different standards and discipline can be imposed on a gay employee and culminate in that employee’s termination. See Fijal v. Ky. Fried Chicken/JTN Food Serv., Inc., 20 M.D.L.R. 45 (1998); Flood v. Bank of Am., 780 F.3d 1 (1st Cir. 2015). In Fijal, once the owner of the company saw the complainant reading a gay newspaper during a break (which the owner called “pornographic”), the owner issued an order not to bring any reading material to work to the complainant only. Fijal v. Ky. Fried Chicken/JTN Food Serv., Inc., 20 M.D.L.R. at 46. Further, although several employees used the company telephone, only the complainant was given a written warning for doing so. Fijal v. Ky. Fried Chicken/JTN Food Serv., Inc., 20 M.D.L.R. at 46. On another occasion, the owner berated the employee for “hanging out with his friends” and refused to allow the employee to explain that the meeting in question was work related. Fijal v. Ky. Fried Chicken/JTN Food Serv., Inc., 20 M.D.L.R. at 47; see also Centola v. Potter, 183 F. Supp. 2d 403, 407 (2002) (managers disciplined the plaintiff more severely for minor conduct and attendance infractions than nongay employees and did not permit the plaintiff to get coffee while sorting mail while permitting nongay employees to do so). When a sexually oriented nametag appeared in the workplace, the owner accused the employee of making it and told another employee that “only a faggot” would know what the word meant. Fijal v. Ky. Fried Chicken/JTN Food Serv., Inc., 20 M.D.L.R. at 47. The complainant was terminated when he confronted the owner about using the term “faggot” to describe him and refused to divulge who had told the complainant of the owner’s use of that term. Fijal v. Ky. Fried Chicken/JTN Food Serv., Inc., 20 M.D.L.R. at 47. While the owner asserted that he fired Fijal for poor work performance and refusing to answer the owner’s question, the MCAD found the assertion pretextual. Timing 9–24

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

was critical. It was only after the employer saw Fijal with a gay newspaper (and thus identified him as gay) that the differential discipline commenced. Fijal v. Ky. Fried Chicken/JTN Food Serv., Inc., 20 M.D.L.R. at 47. The record was rife with evidence of disapproval of Fijal’s sexual orientation, including the owner’s reaction to the newspaper, the public reprimand, and derogatory name-calling. Fijal v. Ky. Fried Chicken/JTN Food Serv., Inc., 20 M.D.L.R. at 47–48. Fijal’s refusal to identify the employee who had told him that the owner had called him a “faggot” was not a legitimate basis for terminating him in the context of a confrontation with the owner about the owner’s use of that term. Fijal v. Ky. Fried Chicken/JTN Food Serv., Inc., 20 M.D.L.R. at 47. Practice Note In contrast to Fijal, some employers deny any knowledge of the employee’s sexual orientation as a sword against differential treatment claims. See, e.g., Dukes v. NWI Investigative Grp., Inc., 25 M.D.L.R. 468, 475 (2003) (no credible evidence that fellow employees accused of discrimination knew of the complainant’s sexual orientation). In these cases, the employees assert that the employer identified them as having a particular sexual orientation. Ultimate questions of motive for the employer’s adverse action against the employee are akin to the questions raised in those discrimination cases in which the employee must rebut the employer’s denial of knowing the employee’s religion (e.g., Jewish) or national origin (e.g., of Latin descent). Thus, matters ranging from “hints” provided by the employee, to office gossip, to statements of the employer, should be sought in discovery.

Practice Note Alternatively, some employers take another defensive tack, asserting that they have always known or thought the employee is gay, and nonetheless hired, promoted, etc., the person. See, e.g., Dumas v. Town of Dudley, 21 M.D.L.R. 217, 221 (1999) (“[T]he fact that Complainant remained on the [police] force for many years despite the fact that the Chief and certain members of the Board were generally aware of his sexual orientation, demonstrates that they were able to overlook his sexual orientation.”). If the employee cannot demonstrate that the identification occurred reasonably recently in relation to the alleged unlawful action, then the employee should consider whether anything recently changed in the employment situation that would still point to sexual orientation as the motivating factor for the decision. For example, has a new and perhaps less tolerant manager been assigned to supervise the employee? Has the employee become more open about their sexual orientation in the workplace, which triggered discomfort in others? Is the employee’s new supervisor a closeted LGBTQ person who fears exposure from the openly LGBTQ employee?

Similarly, Flood demonstrates how a plaintiff might make a case for sexual orientation discrimination, both for hostile environment and adverse actions. Flood v. Bank of Am., 780 F.3d at 5. In Flood, a bisexual employee alleged discrimination after her MCLE, Inc. | 2nd Edition 2020

9–25

§ 9.2

Employment Discrimination in Massachusetts

supervisor discovered her sexual orientation. The First Circuit reversed summary judgment for the employer, finding that the evidence would permit a reasonable jury to conclude that the supervisor harbored animosity toward the employee because of her sexual orientation. In overturning the lower court’s grant of summary judgment for the employer, the First Circuit held that job abandonment could be a pretext for improper termination based on sexual orientation when the employee did not report to work due to anxiety related to the hostile work environment she was experiencing. Flood v. Bank of Am., 780 F.3d at 8. On the claim for unlawful discharge, the employee could offer evidence that her supervisor reacted negatively and became hostile when she saw a photo of the plaintiff and her girlfriend that was displayed at a company event. Moreover, after the supervisor learned of the employee’s sexual orientation, she began “making disparaging comments about [the employee’s] eating habits, dress, and hair style.” Flood v. Bank of Am., 780 F.3d at 9. The supervisor also warned the employee to keep her girlfriend, a member of the janitorial staff employed by a third party, from the employee’s desk. Even though Flood complied, the supervisor complained to the girlfriend’s supervisor, and she received a reprimand. The employee also could demonstrate several adverse employment actions that were false (her work performance was unfairly criticized, she was reprimanded for mistakes she did not make, and her hours were retroactively reclassified so that her performance statistics artificially fell below expectations and she received official warnings as a result of the misrepresented records). Flood v. Bank of Am., 780 F.3d at 10. Prior to her supervisor becoming aware of her sexual orientation, the plaintiff always received positive job performance– related feedback. Flood v. Bank of Am., 780 F.3d at 5. Furthermore, after Flood’s supervisor discovered her sexual orientation, Flood experienced incidents related to the atmosphere of her work environment that amounted to hostility. For example, at a work social event where pictures were displayed, a photo of the plaintiff and her partner was ordered to be removed while similar photos of heterosexual couples were not. Flood v. Bank of Am., 780 F.3d at 4. The employee was also asked not to interact with her girlfriend while at work and was forbidden from attending LGBTQ affinity meetings while other employees were excused for other affinity meetings. Flood v. Bank of Am., 780 F.3d at 5. She also was forced to listen to crude sexual conversations about another supervisor’s upcoming bridal shower. Flood v. Bank of Am., 780 F.3d at 6. The First Circuit ruled that, in totality, these atmospheric and job performance incidents could support a claim of hostile work environment. Flood v. Bank of Am., 780 F.3d at 11. Practice Note With the ability of gay and lesbian couples to marry, practitioners should be aware of discrimination relating to employees’ marrying same-sex spouses. When an employer treats married gay employees differently than married nongay employees, this may give rise to a cause of action. For example, employers may not grant access to workplace facilities or functions to different-sex spouses while denying them to same-sex spouses, and employers certainly may not forbid or otherwise discourage 9–26

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

gay or lesbian employees from marrying because of the possibility of their marriages “outing” them to customers or colleagues.

(d)

Differential Treatment in Benefits

Health insurance and other fringe benefits are “compensation” within the meaning of federal Title VII law. Newport News Shipbldg. & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983). Thus, to the extent that Title VII prohibits sexual orientation discrimination, it bars employers from treating employees differently with respect to benefits based on sexual orientation. Massachusetts law similarly forbids discrimination in compensation, G.L. c. 151B, § 4(1), and thus, under Massachusetts law, employers may not discriminate in the provision of benefits on the basis of sexual orientation. Whitehead-Pleaux v. Shriners Hosp. for Children, 2010 Mass. Comm. Discrim. LEXIS 46, *37–38 (2010). Some employer-provided benefits extend to the spouses of employees. Prior to the Supreme Court’s decisions in United States v. Windsor and Obergefell v. Hodges, Massachusetts law differed significantly from federal law in its treatment of same-sex spouses of employees. Under Massachusetts law, employers have been prohibited from discriminating against the same-sex spouses of employees since the Supreme Judicial Court’s decision in Goodridge v. Department of Public Health, 440 Mass. 309 (2003) (declaring the denial of marriage rights to same-sex couples unconstitutional under the equality and liberty provisions of the Massachusetts Constitution). State law typically applies to benefits provided without a written plan, such as bereavement leave, holiday gifts and pay, tuition assistance/educational reimbursement, union strike funds, access to on-premises facilities, transportation benefits, remembrance funds, discount sales to employees, and relocation assistance. On the federal level, for many years Section 3 of the Defense of Marriage Act (DOMA) defined the terms “marriage” and “spouse” to exclude same-sex married couples for purposes of interpreting and applying federal statutes, rules, and regulations. This meant that the federal Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., which governs most private employer-sponsored group health plans, did not protect the same-sex spouses of employees. Moreover, because ERISA preempts state laws that “relate to” benefit plans other than insurance laws, at least one court determined that it vitiated G.L. c. 151B’s prohibition against sexual orientation discrimination with respect to health-care coverage. Partners Healthcare Sys. v. Sullivan, 497 F. Supp. 2d 29 (D. Mass. 2007) (holding that ERISA preempts G.L. c. 151B, § 4 with respect to a claim of sexual orientation discrimination arising from the denial of health plan coverage). In 2013, however, the Supreme Court struck down Section 3 of DOMA as unconstitutional. United States v. Windsor, 133 S. Ct. 2675 (2013). The Department of Labor (DOL) subsequently issued guidance as to the meaning of the terms “spouse” and “guidance” as those terms are used in ERISA. Dep’t of Labor Tech. Release No. 2013-04 (Sept. 18, 2013). Consistent with Windsor, the DOL defined “marriage” as MCLE, Inc. | 2nd Edition 2020

9–27

§ 9.2

Employment Discrimination in Massachusetts

including same-sex marriages legally recognized as marriages under any state law. That meant that ERISA’s protections extended to spouses who were married in a state that authorized same-sex marriage, even if the couple resided in a state that did not recognize same-sex marriage. Two years after the Windsor decision, the Supreme Court held in Obergefell v. Hodges that same-sex couples “may exercise the fundamental right to marry in all States” and that states must recognize lawful same-sex marriages performed in another state. Obergefell v. Hodges, 135 S. Ct. 2584, 2607–08 (2015). Same-sex couples may marry in any state in the country, and thereby come within ERISA’s protections. Following Obergefell, some employers eliminated domestic partnership benefits. Employers should note, however, that given the legal complications that marriage may present for same-sex couples, many same-sex couples cannot marry or would be disadvantaged by marrying in ways that other couples might not be. For example, the marriages of same-sex couples may be a bar to international adoption, so some couples may marry later than their heterosexual counterparts and still need health insurance in the meantime.

(e)

Retaliation

Under state law, employers may not “discharge, expel or otherwise discriminate against” an employee because the employee “opposed” the employer’s unlawful conduct based on sexual orientation, including merely stating an objection to discriminatory conduct or because the employee participated in proceedings before the MCAD. G.L. c. 151B, § 4(4). Furthermore, employers may not “coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter.” G.L. c. 151B, § 4(4A). In other words, an employee, may be able to state a claim for retaliation where the employer is aware of the employee’s conduct opposing unlawful practices and takes an adverse action against the employee because of that conduct. See Vera v. Faust, 26 M.D.L.R. 341, 346–47 (2004); Tate v. Dep’t of Mental Health, 419 Mass. 356, 364 (1995); Green v. Harvard Vanguard Med. Assocs., 79 Mass. App. Ct. 1, 13–14 (2011); Berardi v. Med. Weight Loss Ctr., Inc., 23 M.D.L.R. 5, 11 (2001) (the complainant stated a claim for retaliation in that she complained to her supervisor about his discriminatory comments and was terminated; the complainant’s oral complaints constituted a protected activity whether or not the supervisor’s conduct amounted to prohibited harassment, as the complainant needed only to have a good-faith belief that his actions comprised the prohibited discrimination); Provencher v. CVS Pharmacy, 145 F.3d 5, 76 Fair Empl. Prac. Cas. (BNA) 1569 (1st Cir. 1998) (finding no error in jury instructions on retaliation under Title VII, and upholding a $150,000 judgment for a gay man who complained of sexual harassment by a female supervisor to management and then to the New Hampshire Commission for Human Rights, and was thereafter terminated for allegedly falsifying payroll records); Centola v. Potter, 183 F. Supp. 2d 403, 412 (2002) (an employee was terminated after reporting actionable discrimination and the harassment claim under Title VII has made out a prima facie case of retaliation); Morgan v. BC Bos., 24 M.D.L.R. 45 (2002) (the complainant 9–28

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.2

established an unrebutted prima facie case of unlawful retaliation by demonstrating that, shortly after complaining to management that a policy prohibiting men, but not women, from wearing earrings was sexist, the complainant was unjustifiably disciplined and eventually terminated). Furthermore, the Supreme Judicial Court has made clear that a hostile work environment may constitute an adverse employment action for the purposes of a retaliation claim. In Clifton v. MBTA, 445 Mass. 611, 616 (2005), the court stated: Although unlawful retaliation, typically, may involve a discrete and identifiable adverse employment decision (e.g., a discharge or demotion), it may also consist of a continuing pattern of behavior that is, by its insidious nature, linked to the very acts that make up a claim of hostile work environment. See Noviello v. Boston, 398 F.3d 76, 89–91 (1st Cir. 2005) (concluding that creation and perpetuation of hostile work environment can comprise retaliatory adverse employment action under Title VII and under G.L. c. 151B). Clifton v. MBTA, 445 Mass. at 616–17; see also Gerrie v. Karl Storz Endovision, Inc., 20 Mass. L. Rptr. 412 (Super. Ct. 2005) (reinstating retaliation claim based on sexual orientation harassment).

§ 9.2.4

Disparate Impact Claims

Disparate impact analysis is used in sexual orientation cases as in other types of cases to show that the application of a neutral rule has a discriminatory result for a protected group. Sch. Comm. of Braintree v. MCAD, 377 Mass. 424, 429 n.10 (1979) (“We recognize that [G.L. c. 151B, § 4], like . . . [Title VII], ‘proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation.’ Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).”). In Huff v. Chapel Hill Chauncy Hall School, 16 M.D.L.R. 1605, 1994 Mass. Comm. Discrim. LEXIS 96 (1994), aff’d, 17 M.D.L.R. 1247 (1995), a teacher, coach, and dorm counselor who was required to live in the dormitories at a private school challenged the school’s policy against allowing unmarried couples from living together in the dorms. Huff, who had recently had a marriage ceremony with her female partner, argued that, because she did not have access to legal civil marriage, the school’s policy had an adverse impact on her. The MCAD ruled that Huff failed to establish a prima facie case (16 M.D.L.R. at 1606) because of a rule of construction inserted into the lesbian and gay civil rights law providing that G.L. c. 151B should not be construed to “legitimize or validate a ‘homosexual marriage,’ so-called.” 1989 Mass. Acts c. 516, § 19. The MCAD ruled that rectifying the discrimination against Huff would require employers to provide the forbidden validation. Huff v. Chapel Hill Chauncy Hall Sch., 16 M.D.L.R. at 1613. Massachusetts courts have not ruled on the impact of this rule of construction, but in light of the Supreme Judicial Court’s ruling that gay and lesbian couples cannot be denied the right to marry in Massachusetts,

MCLE, Inc. | 2nd Edition 2020

9–29

§ 9.2

Employment Discrimination in Massachusetts

Goodridge v. Dep’t of Pub. Health, 440 Mass. 309 (2003), it seems likely that this case would now be analyzed quite differently.

§ 9.2.5

Other Resources

LGBT Law Notes (published monthly through August 2019 by Lesbian and Gay Law Association of Greater New York), available at https://www.nyls.edu/impact-centerfor-public-interest-law/publications/lesbiangay_law_notes.

§ 9.3

SAME-SEX SEXUAL HARASSMENT AND SEXUAL HARASSMENT OF LGBTQ EMPLOYEES

Practice Note This area of the law is rapidly changing in large part because of the understanding of discrimination “because of . . . sex” literally including LGBTQ plaintiffs. Practitioners are advised to consult the discussion in § 9.2, above, on Title VII coverage of sex discrimination as applicable to LGBTQ employees as well as counsel familiar with representing LGBTQ employees in discrimination cases.

§ 9.3.1

Introduction

Neither the sex nor the sexual orientation of the alleged harasser and the victim determines the availability of state or federal relief for workplace sexual harassment. See Melnychenko v. 84 Lumber Co., 424 Mass. 285, 289–90 (1997) (same-sex sexual harassment is actionable under G.L. c. 151B); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79–80 (1998) (same-sex sexual harassment is actionable under Title VII). The federal approach to same-sex sexual harassment differs from the Massachusetts approach in one significant respect. Under federal law, plaintiffs must “always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] . . . because of . . . sex.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 81. Massachusetts law, in contrast, expressly prohibits sexual harassment. See G.L. c. 151B, §§ 1(18) (defining “sexual harassment”), 4(16A) (prohibiting employers, personally or through an agent, from sexually harassing any employee). Proving “discrimination because of a victim’s sex” is not an essential element of a sexual harassment claim under G.L. c. 151B, § 4(16A). See Melnychenko v. 84 Lumber Co., 424 Mass. at 290.

§ 9.3.2 (a)

Federal Approach to Same-Sex Sexual Harassment and Sexual Harassment of LGBTQ Employees Overview

Title VII of the Civil Rights Act of 1964 prohibits employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges 9–30

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.3

of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Although Title VII does not specifically address workplace harassment, the U.S. Supreme Court and the Equal Employment Opportunity Commission (EEOC) have long recognized that workplace sexual harassment can constitute unlawful sex discrimination in violation of Title VII. See Harris v. Forklift Sys., 510 U.S. 17, 21 (1993); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65–66 (1986); 29 C.F.R. § 1604.11. Title VII prohibits two forms of workplace sexual harassment: quid pro quo harassment, which occurs when submission to the harassment is explicitly or implicitly a condition of the victim’s employment status, and hostile work environment harassment, which is harassment that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. at 67–68; see also 29 C.F.R. § 1604.11(a). See generally Burlington Indus. v. Ellerth, 524 U.S. 742, 751–54 (1998) (discussing the emergence and doctrinal significance of the terms “quid pro quo” and “hostile work environment,” which do not appear in the text of Title VII). Federal courts initially took a range of stances on whether “same-sex sexual harassment” was cognizable under Title VII. Compare, e.g., Garcia v. Elf Atochem N. Am., 28 F.3d 446, 451–52 (5th Cir. 1994) (same-sex sexual harassment is never cognizable under Title VII), with Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 141–42 (4th Cir. 1996) (same-sex sexual harassment is cognizable only when the harasser is gay or lesbian), and Doe ex rel. Doe v. City of Belleville, 119 F.3d 563, 569–74 (7th Cir. 1997) (harassment involving sexual content is always cognizable, no matter the sex, sexual orientation, or motivation of the parties involved). The Supreme Court largely resolved this Circuit Court split in Oncale v. Sundowner Offshore Services. The plaintiff in Oncale was a man who had experienced grievous harassment at his all-male workplace, including threats of rape and sexual assault. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 77 (1998). The District Court dismissed the plaintiff’s claim on the ground that same-sex sexual harassment was not cognizable under Title VII, but the Supreme Court reversed, holding that “nothing in Title VII necessarily bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 79. Although the Court acknowledged that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” it emphasized that the statutory language of Title VII broadly prohibited any “discrimina[tion] . . . because of . . . sex” without reference to the gender of the harasser or the victim. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 79–80. As the Court reasoned, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 79. Several First Circuit decisions have followed Oncale in confirming that same-sex sexual harassment is actionable under Title VII. See, e.g., Lee-Crespo v. ScheringPlough Del Caribe, Inc., 354 F.3d 34, 43 n.5 (1st Cir. 2003) (“The substance of the violation is no different when the plaintiff and the harasser are of the same sex.”); MCLE, Inc. | 2nd Edition 2020

9–31

§ 9.3

Employment Discrimination in Massachusetts

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (“Oncale confirms that the standards of liability under Title VII, as they have been refined and explicated over time, apply to same-sex plaintiffs just as they do to oppositesex plaintiffs.” (citation omitted)). The EEOC Compliance Manual also cites Oncale to confirm that the standards for harassment apply “even if the target of the harassment and the alleged harasser are of the same protected class.” EEOC Compliance Manual, § 2(B)(2) n.49 (2000), available at https://www.eeoc.gov/policy/docs/threshold.html. Practice Note–Recent Federal Court of Appeals Cases As of this writing, the most recent published sexual harassment decisions in the First Circuit involving LGBTQ employees are Franchina v. City of Providence, 881 F.3d 32, 61 (1st Cir. 2018) (upholding a jury verdict for an employee on hostile work environment and retaliation); see also § 9.2.1, above; and Maldanado-Catala v. Municipality of Naranjito, 876 F.3d 1, 18 (1st Cir. 2017) (upholding the dismissal of a hostile work environment claim where the timely actions available to support the claim did not demonstrate severe and pervasive harassment that created an abusive work environment).

Practice Note–Recent Federal District Cases Recently published sexual harassment decisions with LGBTQ plaintiffs in the First Circuit jurisdiction include those addressed in § 9.2.1, above, as well as Griffin v. Adams & Assocs., 2016 WL 3580613 (D. Mass. 2016) (harassment of a gay man; denying an employer’s motion for summary judgment); Briggs v. City of Portland, 2017 U.S. Dist. LEXIS 68008 (D. Me. 2017) (denying an employer’s motion to dismiss disparate treatment and hostile work environment claims of a transgender employee); adopted by Briggs v. City of Portland, 2017 U.S. Dist. LEXIS 77869 (D. Me. 2017).

(b)

Elements of Same-Sex Sexual Harassment Claim Under Title VII

The elements of quid pro quo harassment are the same regardless of the sex of the persons involved. A quid pro quo harassment plaintiff must always prove that they were the victim of unwelcome sexual advances that were motivated by sexual desire. See, e.g., Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 783–84 (1st Cir. 1990) (listing the elements of a quid pro quo harassment claim). Oncale’s “because of sex” requirement creates no additional hurdles for victims of quid pro quo sexual harassment perpetrated by a member of the same sex. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998) (“because of sex” requirement is satisfied by evidence that the harasser was motivated by sexual desire). Consequently, this section focuses on hostile work environment harassment. A plaintiff alleging a hostile work environment because of sex in violation of Title VII must show that 9–32

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.3

• the plaintiff is a member of a protected class (here, sex); • the plaintiff was subjected to unwelcome sexual harassment; • the sexual harassment was based on sex; • the harassment was sufficiently severe or pervasive so as to alter the conditions of the plaintiff’s employment and create an abusive work environment; • the sexually objectionable conduct was objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and • that some basis for employer liability has been established. Perez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 27 (1st Cir. 2011); see also Torres-Negron v. Merck & Co., 488 F.3d 34, 39–40 (1st Cir. 2007); O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001); Rosario v. Dep’t of the Army, 607 F.3d 241, 246 & n.12 (1st Cir. 2010)8. In general, the substantive requirements of Title VII “apply to same-sex plaintiffs just as they do to opposite-sex plaintiffs.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (citation omitted). The first element, “sex,” when used in Title VII, has been interpreted to mean either man or woman, and to bar workplace sexual harassment against women because they are women and against men because they are men. Discrimination because of sex also includes sex stereotyping and normative beliefs about how a person of a particular sex should behave. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1991) (noting that we are “beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group”); Auto. Workers v. Johnson Controls, Inc., 499 U.S. 187, 192 (1991) (sex discrimination to exclude fertile women from jobs). As discussed in § 9.2.1(b), above, sex discrimination may also encompass subsets of women or men. Phillips v. Martin Marietta Corp., 400 U.S. 542, 543 (1971) (only women with preschool children were denied employment); Newport News Shipbldg. & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983). Title VII also has been interpreted to protect against discrimination against LGBTQ people, as addressed above and in chapter 10 of this book. The second element requires conduct to be unwelcome in order to constitute sexual harassment. This is a question of fact to be determined in light of “the record as a whole” and “the totality of the circumstances.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 69 (1986); see also 29 C.F.R. § 1604.11(b). The third, fourth, and fifth elements differ slightly for plaintiffs who are LGBTQ or are harassed by a person of the same sex. As a result, these elements are discussed in greater depth below. The sixth element concerns employer liability, which depends on the harasser’s relationship with the victim. If the harasser is a coworker or a customer, the employer is not liable unless the plaintiff can prove that the employer “knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action.” See White v. N.H. Dep’t of Corr., 221 F.3d 254, 261 (1st Cir. MCLE, Inc. | 2nd Edition 2020

9–33

§ 9.3

Employment Discrimination in Massachusetts

2000) (quoting Blankenship v. Parke Care Ctrs., Inc., 123 F.3d 868, 872 (6th Cir. 1997)). If, on the other hand, the harasser is a supervisor of the victim, the employer is liable unless it can prove that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and . . . that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” White v. N.H. Dep’t of Corr., 221 F.3d at 261 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)).

(c)

Proving Discrimination “Because of Sex” Practice Note This section has not been further updated beyond what is discussed above with respect to discrimination against LGBTQ people as sex discrimination under Title VII.

The element most likely to present special concerns for plaintiffs alleging same-sex sexual harassment is the third element: proving that the harassment was discrimination because of sex. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). This “because of sex” requirement “is not met merely because workplace harassment involves sexual matters: the substance of the violation is discrimination based on sex.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258 (1st Cir. 1999). In theory, different-sex as well as same-sex plaintiffs must prove that the harassment they experienced constituted sex discrimination. See, e.g., Rosario v. Dep’t of the Army, 607 F.3d 241, 248–49 (1st Cir. 2010) (addressing whether a male supervisor’s harassment of a female plaintiff constituted discrimination because of her sex). In practice, however, “[c]ourts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations,” while plaintiffs in same-sex sexual harassment suits must “always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimination . . . because of . . . sex.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 81. Practice Note The most important question is whether the plaintiff was treated differently because of their sex. Be especially alert to whether the employer’s typical response to same-sex harassment is weaker than its typical response to comparable different-sex harassment. A weaker response to same-sex harassment may reflect an improper reliance on sex stereotypes and/or a tendency to regard same-sex harassment as less serious than different-sex harassment.

When it comes to demonstrating that the harassment occurred because of the plaintiff’s sex, “[t]he critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 80 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The Oncale Court identified three nonexclusive methods of proving that same-sex harassment was “because of sex,” see Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 80–81, and courts 9–34

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.3

addressing same-sex harassment claims have looked to these methods as guideposts, see, e.g., Simonton v. Runyon, 232 F.3d 33, 37 (2d Cir. 2000) (evaluating the “because of sex” element by looking to the methods of proof suggested in Oncale).

Oncale’s First Factor First, the Oncale Court suggested that a plaintiff could offer “credible evidence that the harasser was homosexual” to demonstrate that the harassment was motivated by sexual desire and therefore targeted the victim based on their sex. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). In Shepherd v. Slaters Steel Corp., for example, the Seventh Circuit denied the defendant-employer’s motion for summary judgment because there was a genuine fact question as to whether the harasser’s conduct—which included remarking that the victim was a “handsome young man,” touching his own penis while in the victim’s presence, and repeatedly making crude sexual propositions to the victim—was motivated by sexual desire. Shepherd v. Slaters Steel Corp., 168 F.3d 998, 1009 (7th Cir. 1999) (the harasser urged the plaintiff to “turn over, lest he ‘crawl up on top of [the plaintiff] and fuck [him] in the ass’” (second alteration in original)); see also La Day v. Catalyst Tech., Inc., 302 F.3d 474, 479–81 (5th Cir. 2002) (the harasser’s remark that “he was ‘jealous’ of [the victim’s] girlfriend” was evidence that the harassment was motivated by sexual desire and occurred “because of sex”); Cherry v. Shaw Coastal, Inc., 668 F.3d 182, 188 (5th Cir. 2012) (text messages such as “I want cock” and “ur 2 sexy” and unwanted touching were evidence that the harassment was motivated by sexual desire and occurred “because of sex”). Note, however, that “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex,” and it is absolutely not necessary for a plaintiff to prove that their harasser was gay, lesbian, or bisexual. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 80; see also Tanner v. Prima Donna Resorts, 919 F. Supp. 351, 355 (D. Nev. 1996) (“Title VII does not require that sexual harassment be motivated by attraction, only that it be ‘because of sex’; indeed, harassment, like other forms of victimization, is often motivated by issues of power and control on the part of the harasser, issues not necessarily related to sexual preference.”).

Oncale’s Second Factor Second, Oncale suggested that a plaintiff might prove that the harassment was sex discrimination by showing that it invoked “such sex-specific and derogatory terms . . . as to make it clear that the harasser is motivated by general hostility to the presence” of members of the plaintiff’s sex in the workplace. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). This is consistent with the federal courts’ approach to discriminatory language in different-sex sexual harassment cases. The Sixth Circuit, for example, has held that the use of vulgar language that was “explicitly sexual and patently degrading of women” can itself constitute harassment based on sex, even in the absence of other evidence of antifemale animus. Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 271–72 (6th Cir. 2009) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 80) (the plaintiff was “repeatedly called a ‘bitch’ by a co-worker in anger, was referred to by another as a ‘heifer’ with ‘milking udders,’” and other women were commonly referred to as “bitches,” MCLE, Inc. | 2nd Edition 2020

9–35

§ 9.3

Employment Discrimination in Massachusetts

“whores,” “sluts,” “dykes,” and “cunts”). As the court explained, “the patently degrading and anti-female nature of the harassment” would reasonably cause women to “suffer, as a result of the exposure, greater disadvantage in the terms and conditions of their employment than men.” Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d at 271–72; see also Siu v. De Alwis, 2009 U.S. Dist. LEXIS 51606, at *12–13 (D. Haw. June 18, 2009) (denying the employer-defendant’s motion for summary judgment on a same-sex sexual harassment claim where the record evidence indicated that the female victim’s female supervisor frequently “made remarks about her breasts, sexual history, and physical features”).

Oncale’s Third Factor The third factor identified in Oncale is that a plaintiff might “offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixedsex workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80–81 (1998).

Other Important Post-Oncale Cases Offensive Sexual Touching Federal courts of appeals have also held that offensive sexual touching can satisfy the “because of sex” requirement. Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1067 (9th Cir. 2002) (en banc) (offensive sexual touching and sexual assault can constitute discrimination because of sex, even when there is no evidence that members of one sex were treated differently than members of the other sex). The Ninth Circuit held that the plaintiff had experienced discrimination because of sex because offensive sexual touching between members of the same sex can itself constitute “disadvantageous difference in treatment ‘because of sex,’” Rene v. MGM Grand Hotel, Inc., 305 F.3d at 1065, 1067; see also Rene v. MGM Grand Hotel, Inc., 305 F.3d at 1070 (Fisher, J., concurring) (“The repeated physical attacks targeted at body parts clearly linked to Rene’s gender constituted overwhelming evidence from which a jury could infer that the attacks were based, at least in part, on Rene’s sex.”). And, as both the majority opinion and a concurrence emphasized, the conduct at issue in the case was nearly identical to the conduct at issue in Oncale, which also involved physical sexual assault in an all-male workplace. See Rene v. MGM Grand Hotel, Inc., 305 F.3d at 1067; see also Rene v. MGM Grand Hotel, Inc., 305 F.3d at 1069–70 (Graber, J., concurring) (“I concur . . . because the facts here are materially indistinguishable from the facts in Oncale . . . .”). Four of the eleven judges in Rene, however, dissented on this point. Pointing to language in Justice Thomas’s concurrence in Oncale, they stated that, absent evidence that members of one sex are treated differently than members of the other sex, “conduct that is ‘sexual in nature’ does not meet the statutory requirement” that the harassment occurred “because of sex.” Rene v. MGM Grand Hotel, Inc., 305 F.3d at 1074 (Hug, J., dissenting) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998) (Thomas, J., concurring)); see also Taylor v. H.B. Fuller Co., 2008 U.S. Dist. LEXIS 83420, at *3, *16 (S.D. Ohio Oct. 20, 2008) (finding no evidence of discrimination “because of sex” in a case involving offensive sexual touching 9–36

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.3

in the form of “humping, groping and touching” and granting summary judgment to the defendant-employers); EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 454–60 (5th Cir. 2013) (reaffirming that, under Oncale, gender-stereotyping evidence may sustain a same-sex sexual harassment claim and holding that the evidence at trial was sufficient to sustain the jury verdict in the plaintiff’s favor on both the “because of sex” requirement and the “severe or pervasive” requirement where, inter alia, a coworker simulated anal sex on the employee dozens of times). Some defendant employers have used evidence that both men and women were subject to the harassing conduct to argue that the harassment did not occur because of the plaintiff’s sex. In Lee-Crespo v. Schering-Plough Del Caribe, Inc., for example, the First Circuit noted that “both male and female” employees had been subjected to the alleged harassment and affirmed the District Court’s grant of summary judgment for the employer. Lee-Crespo v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 46– 47 (1st Cir. 2003) (affirming a grant of summary judgment for the employer where the plaintiff failed to prove that the harassment was severe and pervasive). At the outset, this defense should be countered by reference to the text and structure of Title VII. The relevant provisions of Title VII speak in terms of mistreatment of “any individual . . . because of . . . sex,” 42 U.S.C. § 2000e-2(a), and when “a complaining party demonstrates” that “sex” was “a motivating factor” for the employment practice, 42 U.S.C. § 2000e-2(m). In determining whether an employer has impermissibly discriminated because of sex, the focus must remain on whether sex played a role in the adverse treatment of the plaintiff. The fact that an employer treats other persons of the plaintiff’s sex fairly or treats some members of a different sex unfairly cannot defeat a claim that the plaintiff was subject to disparate treatment. In addition, even where a harasser subjected both men and women to harassment, a plaintiff can nevertheless demonstrate that the harasser treated men and women differently or in different degrees. E.g., Shepherd v. Slater Steels Corp., 168 F.3d 998, 1011 (7th Cir. 1999) (“[T]he notion that Jemison harassed women at the Slater plant in the same way and to the same degree that he allegedly harassed Shepherd is simply unfounded.”); Kampmier v. Emeritus Corp., 472 F.3d 930, 940 (7th Cir. 2007) (finding that harassment endured by the female plaintiff was “far more severe and prevalent than the alleged conduct endured by the male employees”). Finally, the very concept of the “equal opportunity harasser” has been directly attacked for misrepresenting the nature and effects of sexual harassment. See generally Kyle Mothershead, Note, “How the ‘Equal Opportunity’ Sexual Harasser Discriminates on the Basis of Gender Under Title VII,” 55 Vand. L. Rev. 1205, 1225–35 (2002) (surveying scholarly criticisms of the “equal opportunity harasser” doctrine). Mothershead, for example, argues that, because the contextualized (i.e., genderspecific) “reasonable person” analysis dictated by Oncale will often lead to the conclusion that harassment “imposes different disadvantageous conditions of employment on both male and female victims, it follows that equal opportunity harassment discriminates on the basis of sex.” Kyle Mothershead, Note, “How the ‘Equal Opportunity’ Sexual Harasser Discriminates on the Basis of Gender Under Title VII,” 55 Vand. L. Rev. at 1235. MCLE, Inc. | 2nd Edition 2020

9–37

§ 9.3

Employment Discrimination in Massachusetts

Sex Stereotyping Practice Note Refer to the earlier discussion of sex stereotyping and sexual orientation discrimination in § 9.2.1(b), above, including hostile work environment harassment.

The Supreme Court has long recognized that discrimination based on a plaintiff’s failure to meet “stereotyped expectations” of proper sex roles is a form of sex discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Courts accept that harassment based on sex stereotyping occurs “because of sex,” even where the harasser belongs to the same sex as the victim. That is, courts accept that men who exhibit hostility toward “nonmasculine” men, and women who exhibit hostility toward “nonfeminine” women, are engaged in sex discrimination. As the First Circuit has explained, “just as a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity, a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (emphases added) (citations omitted). In Centola v. Potter, for example, the District of Massachusetts assessed a male plaintiff’s claim that his mixed-gender coworkers had harassed him for failing to conform to male stereotypes without requiring additional evidence that his male coworkers discriminated on the basis of his sex. See Centola v. Potter, 183 F. Supp. 2d 403, 408–09 (D. Mass. 2002). Paradigmatically, sex stereotyping involves disapproval of a male plaintiff for his failure “to meet [his harasser’s] gender stereotypes of what a man should look like, or act like,” or a female plaintiff for her failure to meet gender stereotypes of what a woman should look like or act like. Centola v. Potter, 183 F. Supp. 2d at 409. In Price Waterhouse v. Hopkins, for example, the female plaintiff alleged that she had been discriminated against because of her failure to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989). The District of Massachusetts and the EEOC have also recognized that harassment may be motivated by a plaintiff’s failure to meet the “gender stereotype . . . that ‘real’ men should date women, and not other men.” Centola v. Potter, 183 F. Supp. 2d at 410; see also Castello v. U.S. Postal Serv., EEOC Request No. 052011649 (Dec. 20, 2011), 2011 WL 6960810 (EEOC) (discrimination based on the sex stereotype that women should have sexual relationships only with men can constitute discrimination based on sex); Sylvia A. Law, “Homosexuality and the Social Meaning of Gender,” 1988 Wis. L. Rev. 187 (1988) (arguing that disapproval of gays and lesbians reflects gender norms and not merely scorn for gay and lesbian behavior). But cf. Ianetta v. Putnam Invs., Inc., No. 00-10385-JLT, 2002 U.S. Dist. LEXIS 3277, at *22–23 (D. Mass. Feb. 25, 2002) (granting summary judgment to the defendant-employer where the only evidence of sex discrimination was two incidences of the use of the term “faggot”). Gay and lesbian plaintiffs “[do] not need to allege that [they] suffered discrimination 9–38

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.3

on the basis of [their] sex alone or that sexual orientation played no part in [their] treatment” because Title VII permits recovery where the harassment was based on “a combination of a lawful and an unlawful motive.” Centola v. Potter, 183 F. Supp. 2d at 409–10 (citing 42 U.S.C. § 2000e-2(m)).

(d)

Proving That the Harassment Was Sufficiently Severe or Pervasive and Objectively and Subjectively Offensive Practice Note This section should be read along with the updates on cases decided by the First Circuit and District Courts within the First Circuit, above.

Because the fourth and fifth elements are so related, they are discussed together in this section. These elements address the severity or pervasiveness of the conduct at issue, and whether it is both objectively and subjectively offensive. As the Supreme Court has emphasized, Title VII is not “a general civility code for the American workplace,” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998), and sexual harassment violates Title VII only if it is “sufficiently severe or pervasive . . . to alter the conditions of the plaintiff’s employment and create an abusive work environment.” Rosario v. Dep’t of the Army, 607 F.3d 241, 246 (2010) (internal quotation omitted). This analysis requires an examination of “[a]ll of the circumstances” involved, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Lee-Crespo v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 46 (1st Cir. 2003) (citing Harris v. Forklift Sys., 510 U.S. 17, 23 (1993); O’Rourke v. City of Providence, 235 F.3d 713, 728–29 (1st Cir. 2001)). The work environment “must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). Whether conduct is objectively offensive is “judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 81. Thus, if the plaintiff is a man complaining of harassment by other men in an all-male workplace, the objective offensiveness of the conduct is to be judged from the perspective of a reasonable man in the plaintiff’s position in such an all-male workplace. To use the Court’s example, “[a] professional football player’s working environment is not severely or pervasively abusive . . . if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 81; see also Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th Cir. 1997) (“Most unfortunately, expressions such as ‘fuck me,’ ‘kiss my ass,’ and ‘suck my dick,’ are commonplace in certain circles, and more often than not, when these expressions are used (particularly when uttered by men speaking to other men), their use has no connection whatsoever with the sexual acts to which they make reference.”).

MCLE, Inc. | 2nd Edition 2020

9–39

§ 9.3

Employment Discrimination in Massachusetts

It is, however, unnecessary for all aspects of the harassing conduct to be “overtly sexual in nature” in order for a hostile environment sexual harassment claim to succeed. O’Rourke v. City of Providence, 235 F.3d at 729–30. According to the First Circuit, courts should “avoid disaggregating a hostile work environment claim, dividing conduct into instances of sexually oriented conduct and instances of unequal treatment, then discounting the latter category of conduct.” O’Rourke v. City of Providence, 235 F.3d at 729–30. In other words, “where a plaintiff endures harassing conduct, although not explicitly sexual in nature, which undermines her ability to succeed at her job, those acts should be considered along with overtly sexually abusive conduct in assessing a hostile work environment claim.” O’Rourke v. City of Providence, 235 F.3d at 729. In Rosario v. Department of the Army, for example, the First Circuit considered evidence that the alleged harasser had “throw[n the plaintiff’s] food away and remov[ed] items from her desk” relevant to determining whether there was a hostile work environment, although such conduct “appeared to have no sex-based connotation at all.” Rosario v. Dep’t of the Army, 607 F.3d at 248. Today, plaintiffs alleging same-sex sexual harassment or those who are LGBTQ who make sexual harassment claims under Title VII are treated doctrinally the same as plaintiffs bringing different-sex claims. While the “because of sex” requirement may present special concern for plaintiffs with same-sex hostile work environment claims, as discussed above, the Oncale Court and subsequent federal Circuit Court cases have outlined several evidentiary pathways for such plaintiffs to fulfill this requirement.

§ 9.3.3 (a)

Massachusetts Approach to Same-Sex Sexual Harassment Overview

Same-sex sexual harassment is generally simpler under Massachusetts law than under federal law, because, unlike Title VII, Chapter 151B expressly defines and prohibits sexual harassment. See G.L. c. 151B, §§ 1(18) (defining sexual harassment), 4(1) (prohibiting sex discrimination in employment), 4(16A) (prohibiting sexual harassment). Furthermore, as noted by the Supreme Judicial Court, Massachusetts law differs from Title VII in other important ways. First, it includes a “legislative directive that G.L. c. 151B is to be applied liberally.” Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. 521, 536 (2001). Second, in G.L. c. 151B, § 2, the legislature expressly delegated authority to and “empower[ed] the [Massachusetts Commission Against Discrimination] to act forcefully to implement the statute in order to eliminate discrimination at root level.” Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. at 536. Third, the courts have afforded deference “to MCAD policies and decisions based on the authority granted the agency by the Legislature (similar recognition is not present with respect to EEOC handling of Title VII matters).” Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. at 536 (citation omitted). As a result, employees enjoy broader protection against discriminatory treatment under Massachusetts state law than under federal law. Accordingly, this section looks to several MCAD decisions. For purposes of Chapter 151B, sexual harassment “mean[s] sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” 9–40

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.3

G.L. c. 151B, § 1(18). Like federal law, Massachusetts law recognizes two forms of sexual harassment: quid pro quo harassment, which occurs when “submission to or rejection of [the harassment] is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions,” and hostile work environment harassment, which occurs when “[the harassment has] the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G.L. c. 151B, § 1(18). As with federal law, the elements of quid pro quo harassment do not change when the harasser is of the same sex because the claimant must always prove that they were the victim of unwelcome sexual advances that were motivated by sexual desire. Consequently, this section focuses on hostile work environment harassment. Because sexual harassment is expressly defined to constitute a form of sex discrimination, G.L. c. 151B, § 1(18), it is covered by Section 4(1)’s prohibition on sex discrimination in employment. See G.L. c. 151B, § 4(1). To further clarify matters, Section 4(16A) expressly prohibits employers, “personally or through [their] agent[s],” from “sexually harass[ing] any employee.” G.L. c. 151B, § 4(16A); see also G.L. c. 214, § 1C (declaring that all have the right to be “free from sexual harassment”); cf. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65–66 (1986) (interpreting Title VII’s prohibition on sex discrimination to cover certain forms of sexual harassment). In other words, Chapter 151B provides that sexual harassment is prohibited even where it does not constitute a form of sex discrimination. The Supreme Judicial Court’s decision in Melnychenko v. 84 Lumber Co. confirmed that Chapter 151B prohibits sexual harassment by a member of the same sex, even in the absence of other evidence of sex discrimination. The plaintiffs in Melnychenko were men who alleged that they had been sexually harassed by a male coworker. They complained that their harasser had “touched them ‘everywhere,’” vulgarly propositioned them, and made obscene remarks about them. Melnychenko v. 84 Lumber Co., 424 Mass. 285, 287 n.4 (1997). They did not allege that their harasser was motivated by sexual desire or antimale animus, and they did not produce evidence that men were treated worse than women. Cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80–81 (1998) (discussing methods of proving that members of one sex are treated differently than members of the other sex). Nevertheless, the Supreme Judicial Court rejected the employer-defendant’s argument that “sexual harassment is only actionable as a form of sex discrimination” and upheld the lower court’s decision in favor of the plaintiffs, holding that “[s]exual harassment [under Chapter 151B] is not limited to . . . same-sex conduct only where the harasser is homosexual. Rather, any physical or verbal conduct of a sexual nature which is found to interfere unreasonably with an employee’s work performance through the creation of a humiliating environment can be sexual harassment.” Melnychenko v. 84 Lumber Co., 424 Mass. at 288, 290 (emphasis added). This holding was consistent with how the MCAD had been interpreting the law; the MCAD had earlier observed that the relevant sections of Chapter 151B “define and prohibit sexual harassment in the workplace without reference or regard to gender” and therefore concluded that Section 4(16A)’s prohibition of sexual harassment “exist[s] in addition to the prohibitions of sex discrimination outlined in [Section 4(1)].” Smith v. Brimfield Precision, Inc., 17 M.D.L.R. 1089, 1995 Mass. Comm. Discrim. LEXIS 7, at *8 (1995). MCLE, Inc. | 2nd Edition 2020

9–41

§ 9.3

(b)

Employment Discrimination in Massachusetts

Prima Facie Case and Proof Under State Law

Plaintiffs alleging same-sex sexual harassment under Chapter 151B are treated the same as plaintiffs alleging different-sex sexual harassment. See MCAD Guidelines: Sexual Harassment in the Workplace, at 4, https://www.mass.gov/files/documents/ 2017/09/06/2112%20Guideline%20Sexual%20Harassment.pdf (“The same standards that apply to sexual harassment between individuals of the opposite sex apply to harassment cases involving individuals of the same gender.”). Regardless of the sex of the harasser, which is irrelevant, plaintiffs alleging hostile work environment harassment in violation of Chapter 151B must show that • they were subjected to conduct of a sexual nature; • the conduct of a sexual nature was unwelcome; • the conduct of a sexual nature had the purpose or the effect of creating an intimidating, hostile, humiliating, or sexually offensive work environment (i.e., it was subjectively and objectively offensive); • the conduct unreasonably interfered with their work performance or altered the terms and conditions of their employment and create a hostile work environment (i.e., it was sufficiently severe or pervasive); and • the employer is liable for the harassment. See Lawless v. Ne. Battery & Alternator, Inc., 22 M.D.L.R. 138, 2000 Mass. Comm. Discrim. LEXIS 78, at *24 (2000); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997); Ramsdell v. W. Mass. Bus Lines, Inc., 415 Mass. 673, 678–79 (1993); MCAD Guidelines: Sexual Harassment in the Workplace, at 4.

Unwelcome Conduct of a Sexual Nature In order to satisfy the first and second elements of a prima facie case for harassment, plaintiffs alleging same-sex harassment must show that they were subjected to unwelcome conduct of a sexual nature. See Lawless v. Ne. Battery & Alternator, Inc., 22 M.D.L.R. 138, 2000 Mass. Comm. Discrim. LEXIS 78, at *24 (2000). Such conduct is not limited to “sexual advances” or “requests for sexual favors” and may include “other verbal or physical conduct of a sexual nature.” See G.L. c. 151B, § 1(18); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 286, 290 (1997). Conduct involving sexual humiliation, sexual aggression, or even sadism can be conduct of a “sexual nature” for purposes of Chapter 151B, see Melnychenko v. 84 Lumber Co., 424 Mass. at 287 n.4 (finding that such conduct included offensive sexual touching, explicit propositions, vulgar gestures, and obscene remarks about the victims and their significant others), as can conduct “contain[ing] sexual overtones,” see Brock v. City of Springfield, No. 05-0563, 2009 WL 1568077, at *1–2, *3 (Mass. Super. Ct. Jan. 9, 2009) (finding that the posting of manipulated photographs depicting, for example, “a small monkey wrapped around a finger made to look like a penis,” and “[the complainant’s] head . . . cut out and pasted onto a picture of a female body wearing underwear and a bra” could be found to “contain[ ] sexual overtones and thus create[ ] a sexually offensive working environment”). 9–42

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.3

Unlike under federal law, it is not necessary for the plaintiff to additionally prove that the conduct was motivated by sexual desire or otherwise constituted sex discrimination. See Melnychenko v. 84 Lumber Co., 424 Mass. at 290. As a consequence, the sexual orientation of the harasser is rarely relevant or even discussed. Submission to harassing behavior to avoid being targeted further, to cope in the hostile environment, or because participation is an implicit condition of the victim’s continued employment does not make the harassing conduct welcome. Ramsdell v. W. Mass. Bus Lines, Inc., 415 Mass 673, 678 n.4 (1993); see also Lawless v. Ne. Battery & Alternator, Inc., 22 M.D.L.R. at 142–43 (the complainant’s voluntary participation to some degree in the sexual banter that permeated the workplace did not bar recovery on her sexual harassment claim, as the complainant used vulgar language because she needed to fit into the environment and minimize workplace friction). Similarly, infrequent jokes with an alleged harasser do not necessarily establish that the alleged harasser’s entire course of conduct was welcome. Rosati v. Town of Warren Bd. of Health, 19 M.D.L.R. 34, 38 (1997). Employees do not need to communicate their objection to harassing conduct in order to maintain that it is unwelcome. Melnychenko v. 84 Lumber Co., 424 Mass. at 287–88.

Conduct Creating a Hostile Work Environment The third and fourth elements are closely related and address whether the conduct was sufficiently severe or pervasive to create an “intimidating, hostile, humiliating or sexually offensive work environment.” G.L. c. 151B, § 1(18). In other words, offensive conduct “must be sufficiently consistent and pervasive so as to create a hostile work environment that interfere[s] with . . . job performance” in order to constitute sexual harassment under Section 1(18). See Smith v. Brimfield Precision, Inc., 17 M.D.L.R. 1089, 1995 Mass. Comm. Discrim. LEXIS 7, at *9–10 (1995); see also Dahms v. Cognex Corp., 455 Mass. 190, 204–05 (2009). This element has both objective and subjective components: conduct must be so objectively offensive that it could alter the terms or conditions of a reasonable person’s employment, and it must have been so subjectively offensive that it actually altered the terms or conditions of the victim’s employment. See Muzzy v. Callihane Motors, Inc., 434 Mass. 409, 411– 12 n.2 (2001). Examples of conduct that might create a hostile work environment include inappropriate touching; sexual epithets, jokes, or gossip; sexual conduct or comments; requests for sex; displaying sexually suggestive pictures and objects; and leering, whistling, or sexual gestures. See, e.g., Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. 521, 523–26 (2001); Muzzy v. Callihane Motors, Inc., 434 Mass. 409, 410–11 (2001). Conduct is more likely to satisfy this requirement if it is frequent, directed at the plaintiff, unambiguously obscene, and/or involves unwanted physical contact. Sexual harassment experienced by others in the workplace may also be relevant to the assessment of the conduct’s pervasiveness. Ruffino v. State St. Bank & Tr. Co., 908 F. Supp. 1019, 1036 n.28 (D. Mass. 1995). As just one example, the MCAD has explained that, “where an employee repeatedly exposes himself and grabs the genitals of coworkers in an unwelcome manner, it would be difficult not to find that such conduct constituted an objectively hostile or abusive work environment, regardless of MCLE, Inc. | 2nd Edition 2020

9–43

§ 9.3

Employment Discrimination in Massachusetts

the type of workplace.” Medeiros v. Penske Truck Leasing, 25 M.D.L.R. 38, 2003 Mass. Comm. Discrim. LEXIS 18, at *60 (2003); see also DeLara v. La Chimere Skin Care Salon, Inc., 24 M.D.L.R. 381, 2002 Mass. Comm. Discrim. LEXIS 227, at *12–14 (2002) (finding conduct to be sufficiently severe or pervasive where a female harasser repeatedly touched the female complainant’s breast). It is important to note, however, that in some circumstances a hostile environment may be established based on a single incident, due to its severity, despite the fact that the conduct is not frequent or repetitive. Gnerre v. MCAD, 402 Mass. 502, 508–09 (1988). Similarly, in Melnychenko v. 84 Lumber Co., for example, the Supreme Judicial Court affirmed the lower court’s finding that the defendant had created a hostile work environment because he had directly subjected the complainants to unwelcome sexual conduct on a daily or weekly basis. See Melnychenko v. 84 Lumber Co., 424 Mass. 285, 287 (1997). The conduct in Melnychenko ranged from mere “horseplay” to conduct that was “physically violent and sadistic,” including “grabb[ing the complainants] by their genitals,” “fondl[ing] their buttocks,” “squeez[ing] their chests, rubb[ing] them in areas of the body commonly thought private,” “expos[ing] himself to [the complainants],” propositioning the complainants, making obscene gestures to the complainants, and making obscene remarks about the complainants to other employees and even customers. See Melnychenko v. 84 Lumber Co., 424 Mass. at 287 n.4. By contrast, conduct that is minor, isolated, infrequent, not directed at the plaintiff individually, arguably not obscene, and/or not physical in nature may not be sufficiently severe or pervasive to create a hostile work environment. For example, the MCAD found that the sexually explicit conduct complained of in Dietrich v. Swartz & Corcoran Insurance Agency, Inc., which included discussions “among [the female complainant’s female] co-workers” that were not “directed at [the complainant] specifically” (for example, one coworker referred to herself as a “born again virgin” because she had not had sex for a long period of time), the onetime distribution of penis-shaped candy, and a male coworker’s request that [the complainant] sit in his lap at a Christmas party, was insufficient to create a hostile work environment. See Dietrich v. Swartz & Corcoran Ins. Agency, Inc., 22 M.D.L.R. 367, 2000 Mass. Comm. Discrim. LEXIS 131, at *8–11 (2000); see also Kelley v. Plymouth Cty. Sheriff’s Dep’t, 22 M.D.L.R. 208, 215 (2000) (“A few isolated remarks over a period of time” are generally insufficient to meet the pervasiveness standard.). Generally, the objective offensiveness of the conduct should be judged from the perspective of “a reasonable person in the plaintiff’s position, considering all the circumstances.” Muzzy v. Callihane Motors, Inc., 434 Mass. at 412 (citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998)). For a female plaintiff alleging harassment by a member of the same sex, then, the objective offensiveness of the conduct is to be judged from the perspective of a reasonable woman in the plaintiff’s position. See Muzzy v. Callihane Motors, Inc., 434 Mass. at 411–17, 412 n.2 (denying the plaintiff lesbian’s challenge to a jury instruction as prejudicial due to a failure to preserve the assignment of error and allowing the jury instruction with an objectively reasonable lesbian standard). A judge may choose to further contextualize this “reasonable person” standard, for example, by providing that a heterosexual Asian man’s claim be judged from the perspective of a heterosexual Asian man, so long as 9–44

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.3

(1) any further refinement to the standard [does] not reduce it to a subjective standard; (2) the judge’s instruction [does] not include any characteristics of the plaintiff that are not relevant to the claim; and (3) the judge [gives] serious consideration to a plaintiff’s objection to an instruction that references particulars of the plaintiff’s race, gender, sex, ethnicity, or sexual orientation. Muzzy v. Callihane Motors, Inc., 434 Mass. at 414. Conduct must also be subjectively offensive in order to create a hostile work environment. That is, the plaintiff must actually be offended. In Roughneen v. Bennington Floors, Inc., for example, the MCAD found that the complainant was subjectively offended by the conduct because she had “communicated to [her harasser], in no uncertain terms, that she was uninterested in his sexual advances and that she found his comments and gestures to be offensive and sophomoric.” Roughneen v. Bennington Floors, Inc., 32 M.D.L.R. 197, 2010 Mass. Comm. Discrim. LEXIS 44, at *23– 25 (2010). The MCAD rejected the defendant-employer’s argument that the complainant’s occasional attempts to reconcile with her harasser, including “offering [him] a hug, or dancing playfully with him at the office Christmas party,” signaled that the conduct was in fact welcome or inoffensive. See Roughneen v. Bennington Floors, Inc., 32 M.D.L.R. 197, 2010 Mass. Comm. Discrim. LEXIS 44, at *24–25; cf. Ramsdell v. W. Mass. Bus Lines, Inc., 415 Mass. 673, 677–78 (1993) (finding that the plaintiff had not actually been offended by the conduct where the evidence showed “that the [workplace] atmosphere was ‘light hearted’ and that the [allegedly offensive] remarks were delivered in a ‘joking manner,’” and the plaintiff had “frequently traveled” with her alleged harasser “on one-day business trips without incident”). The Supreme Judicial Court has emphasized that participation in offensive conduct will not bar a plaintiff’s claim where “participation [is] an implicit condition of employment,” Ramsdell v. W. Mass. Bus Lines, Inc., 415 Mass. at 678 n.4, and the MCAD has held that occasional participation in potentially offensive banter does not indicate that the overall pattern of conduct was not subjectively offensive, see Rosati v. Town of Warren Bd. of Health, 19 M.D.L.R. 34, 1997 Mass. Comm. Discrim. LEXIS 11, at *19–20 (1997). Practice Note When demonstrating the effect of harassment, draw a connection between the harassment and any changes in the complainant’s personality, relationships, and physical or mental health. This is particularly important where the complainant has not previously admitted to finding the harassment hurtful, perhaps because the complainant was too embarrassed or thought it would only make things worse.

Male victims in particular may be reluctant to admit they have been hurt by harassment—they may even deny it. In these situations, contextualize the victim’s reaction. In Perry v. Massachusetts Department of Correction, for example, the complainant produced testimony from a social worker and a therapist that “it was common with male patients, especially those working in law enforcement and corrections, to deny being bothered by harassing conduct.” Perry v. Mass. Dep’t of Corr., 19 M.D.L.R. 143, 1997 Mass. Comm. Discrim. LEXIS 36, at *9 (1997). MCLE, Inc. | 2nd Edition 2020

9–45

§ 9.3

Employment Discrimination in Massachusetts

Employer Liability Under Chapter 151B The fifth element of a same-sex sexual harassment claim under Chapter 151B requires the plaintiff to prove that the employer is liable for the harassment. The standard for employer liability depends on the harasser’s relationship with the victim. Employers are strictly liable for supervisor harassment. See College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156, 165–66 (1987). Otherwise, employers are liable only if they have failed to meet their duty to promptly investigate and adequately remedy the situation. See College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. at 167–68. An employer may also be liable for harassment by a third party, such as an independent contractor or a customer, if the employer “fail[s] to respond reasonably to acts of sexual harassment of which it is aware or reasonably should be aware.” Modern Cont’l/Obayashi v. MCAD, 445 Mass. 96, 108 (2005) (discussing employer liability for harassment by nonemployees).

(c)

Cases Applying Chapter 151B to Same-Sex Sexual Harassment

For a fuller sense of how the standards described in the section above are actually applied by the MCAD and the Massachusetts courts, consider the cases below as illustrative examples.

Gyulakian v. Lexus of Watertown, Inc. The plaintiff in Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290 (2016) was a finance manager at a car dealership, where her direct supervisor was the alleged harasser. The court found it was an error to dismiss an employee’s punitive damages claim against an employer for being subjected to a sexually hostile work environment, under G.L. c. 151B, § 4, because the employer had notice of a supervisor’s sexual harassment, and did not take adequate remedial measures after being notified of the conduct.

Dietrich v. Swartz & Corcoran Insurance Agency, Inc. The complainant in Dietrich v. Swartz & Corcoran Insurance Agency, Inc., 22 M.D.L.R. 367 (2000) was a female typist who alleged that she had been the victim of a hostile work environment created by her female coworkers. For example, she alleged that one of her female coworkers “would routinely squeeze another female coworker’s breasts” and that “several women would enter into some sexual banter” with one another in her presence. Dietrich v. Swartz & Corcoran Ins. Agency, Inc., 22 M.D.L.R. 367, 2000 Mass. Comm. Discrim. LEXIS 131, at *3. The sexual banter included “one woman referring to herself as a born again virgin in that she had not engaged in sexual conduct for a long period of time,” and another woman using the term “lesbian money.” Dietrich v. Swartz & Corcoran Ins. Agency, Inc., 22 M.D.L.R. 367, 2000 Mass. Comm. Discrim. LEXIS 131, at *3. The coworkers largely ignored their supervisor’s request that they cease their discussions in the plaintiff’s presence, and the complainant’s request to move to another part of the office was denied. 9–46

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

§ 9.3

Dietrich v. Swartz & Corcoran Ins. Agency, Inc., 22 M.D.L.R. 367, 2000 Mass. Comm. Discrim. LEXIS 131, at *3–4. The complainant also alleged that a male coworker had asked her to sit on his lap during the company Christmas party, and that her female supervisor had once distributed penis-shaped lollipops in the office, along with a warning that the complainant “might not like it.” Dietrich v. Swartz & Corcoran Ins. Agency, Inc., 22 M.D.L.R. 367, 2000 Mass. Comm. Discrim. LEXIS 131, at *4–5. The male coworker was disciplined for his unwelcome request, and he never again bothered the complainant, but it was not clear whether the employer made any response to the lollipop incident. See Dietrich v. Swartz & Corcoran Ins. Agency, Inc., 22 M.D.L.R. 367, 2000 Mass. Comm. Discrim. LEXIS 131, at *5. The MCAD found that the complainant had not been subjected to a hostile work environment. Dietrich v. Swartz & Corcoran Ins. Agency, Inc., 22 M.D.L.R. 367, 2000 Mass. Comm. Discrim. LEXIS 131, at *8–9. The MCAD did not consider the overheard sexual banter to be sufficiently severe, observing that “discussions in question were among Ms. Dietrich’s co-workers and . . . none of the comments made were directed at her specifically.” Dietrich v. Swartz & Corcoran Ins. Agency, Inc., 22 M.D.L.R. 367, 2000 Mass. Comm. Discrim. LEXIS 131, at *8. The MCAD also found that the employer had, in any case, taken sufficient steps to remedy the situation by asking the coworkers to refrain from engaging in sexual banter in the complainant’s presence—although this attempt to resolve the situation was unsuccessful, the MCAD found that it was adequate because the complainant had made no further complaints to her supervisor. Dietrich v. Swartz & Corcoran Ins. Agency, Inc., 22 M.D.L.R. 367, 2000 Mass. Comm. Discrim. LEXIS 131, at *9. The MCAD similarly found that the penis-shaped candy incident did not create a hostile work environment, especially in light of the fact that the woman who distributed the candy had warned the complainant that she would not like them. Dietrich v. Swartz & Corcoran Ins. Agency, Inc., 22 M.D.L.R. 367, 2000 Mass. Comm. Discrim. LEXIS 131, at *9.

Sobocinski v. United Parcel Service, Inc. In Sobocinski v. United Parcel Service, Inc., 31 M.D.L.R. 158 (2009), the male complainant alleged that his male supervisor had “repeatedly made sexually suggestive gestures such as simulating oral sex, blowing kisses, and thrusting his hips back and forth simulating sexual intercourse, two or three times per week,” “told Complainant he had a ‘sweet ass’ and that he wanted to ‘stick his dick in his ass,’” and “told Complainant ‘I’m not a faggot, but I would let a faggot fuck me in the ass just to see what it feels like it.’” Sobocinski v. United Parcel Serv., Inc., 31 M.D.L.R. at 163. The MCAD credited these allegations, finding the work environment to be “so pervasively hostile that one witness likened [it] to a battlefield,” and that the complainant had subjectively “found this conduct shocking, offensive and hostile.” Sobocinski v. United Parcel Serv., Inc., 31 M.D.L.R. at 162–63. The MCAD awarded the complainant $50,000 in emotional distress damages. Sobocinski v. United Parcel Serv., Inc., 31 M.D.L.R. at 165. The MCAD based this award on evidence that the harassment had “ma[de] it very difficult for [the complainant] to go to work, . . . caused him insomnia and made him hyper-vigilant.” Sobocinski v. United Parcel Serv., Inc., 31 M.D.L.R. at 165. The stress had, moreover, damaged his MCLE, Inc. | 2nd Edition 2020

9–47

§ 9.3

Employment Discrimination in Massachusetts

personal relationships with his wife and his brother, both of whom testified to the decline in the complainant’s emotional well-being as well as his increased alcohol consumption. Sobocinski v. United Parcel Serv., Inc., 31 M.D.L.R. at 162, 165. Practice Note When claiming hostile work environment, a claim will be stronger when the conduct is directed at the plaintiff rather than just banter in the plaintiff’s presence. If an employer attempts to take corrective action after a complaint but the corrective action is not successful, the complainant should inform the employer of this fact to make the record stronger. Evidence of an emotional toll outside of work also will make a more compelling case.

§ 9.3.4

Other Resources

For further research, the following resources are recommended: • 2 Emp. Discrim. Coord. Analysis of Federal Law § 48:19, Sexual Harassment by Person of Same Sex (July 2019) (provides an overview of Circuit Court law on same-sex sexual harassment, contrasting the ways in which various circuits have approached the issue and avenues to finding a successful Title VII claim). • Rachel Farkas et al., “State Regulation of Sexual Harassment,” 20 Geo. J. Gender & L. 421, 457 (2019) (provides an overview of the different tests for same-sex sexual harassment, including the “because of” gender test, conductbased test, hostility toward a single sex, and stereotype-based harassment).

MCLE and the authors thank Hon. Vickie L. Henry for her previous contributions to this chapter.

9–48

2nd Edition 2020 | MCLE, Inc.

Sexual Orientation Discrim./Same-Sex & LGBTQ Sexual Harassment

ü CHECKLIST 9.1 Same-Sex Sexual Harassment and Sexual Orientation Discrimination Checklist of Possible Defenses for the Employer *This checklist was written by Gail A. Goolkasian, Esq., and originally appeared as § 17.4 in the 2015 Edition of this book.

In responding to claims of same-sex sexual harassment, employers should consider the applicability of the full range of legal defenses available in sexual harassment claims alleging opposite-sex perpetrators and victims. These defenses include the following: q Time bar. For state law claims under G.L. c. 151B, the complainant failed to file an agency charge within 300 days of the allegedly discriminatory conduct or, after timely filing an agency charge, failed to file the claim in court within three years of the alleged discriminatory event. For federal law claims under Title VII, the complainant failed to file an agency charge within 300 days of the allegedly discriminatory conduct or, after timely filing an agency charge, failed to file the claim in court within the “right to sue” period. q Welcomeness. The complained-of conduct was not “unwelcome” to the alleged victim. q Lack of requisite severity or pervasiveness. The alleged harassment was not severe or pervasive enough to affect a reasonable person’s conditions of employment (hostile environment claims). q Lack of sexual nature. The alleged harassment was not “sexual” in nature. q Not “because of sex.” The alleged harassment was not “because of sex.” As discussed above, this defense is available under Title VII, but not under G.L. c. 151B. q Adequate preventive/remedial measures. q For Title VII claims based on supervisory conduct but involving no adverse, tangible employment action against the plaintiff employee, (1) the defendant employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the plaintiff unreasonably failed to take advantage of available preventive or corrective opportunities. The burden is on the defendant to establish both parts of the defense. q For Title VII and G.L. c. 151B claims involving alleged coworker or outsider harassment, the defendant employer took prompt and effective remedial action as soon as it knew or should have known of the harassment.

MCLE, Inc. | 2nd Edition 2020

9–49

Checklist 9.1

Employment Discrimination in Massachusetts

In cases alleging discrimination on the basis of sexual orientation, possible defenses are the same as in other discrimination cases based on other protected categories. q Time bar. For state law claims under G.L. c. 151B, the complainant failed to file an agency charge within 300 days of the allegedly discriminatory conduct or, after timely filing an agency charge, failed to file the claim in court within three years of the alleged discriminatory act. For federal law claims under Title VII, the complainant failed to file an agency charge within 300 days of the allegedly discriminatory conduct or, after timely filing an agency charge, failed to file the claim in court within the “right to sue” period. q Failure to state a prima facie case. For example, the employee does not fall in the protected category based on real or perceived sexual orientation, and, for nonharassment cases, the employee was not qualified for the job or performing the job adequately, or the employee was not replaced by someone not in the same protected category. q Alleged discriminatory act was based on a legitimate nondiscriminatory reason. For example, the employee was not the most qualified person who applied for the job, or the employee was terminated for a legitimate nondiscriminatory business reason unrelated to sexual orientation. q Lack of pretext. There is no evidence from which to conclude that the nondiscriminatory reason for the employer’s decision was really a pretext for discrimination on the basis of sexual orientation. q Lack of knowledge or perception about employee’s’ protected status. The employer or decision maker was not aware of the employee’s sexual orientation, or did not perceive the employee to be gay.

9–50

2nd Edition 2020 | MCLE, Inc.

CHAPTER 10

Gender Identity Discrimination Arielle B. Kristan, Esq. Hirsch Roberts Weinstein LLP, Boston § 10.1

Introduction........................................................................................... 10–1

§ 10.2

Massachusetts Law: Prohibitions Against Discrimination on the Basis of Gender Identity or Expression ................................... 10–3 § 10.2.1 Chapter 151B’s Explicit Prohibition Against Discrimination Based on Gender Identity and/or Expression ................................................................. 10–3 § 10.2.2 Application of Chapter 151B’s Prohibition Against Discrimination Based on Sex to Gender Identity and Expression ..................................................................... 10–4 § 10.2.3 Types of Claims Under Chapter 151B.................................. 10–4 (a) Disparate Treatment ...................................................... 10–4 (b) Harassment.................................................................... 10–5

§ 10.3

Federal Law: Gender Identity Discrimination Regarded as Sex Discrimination ........................................................................... 10–6

§ 10.4

Discrimination on the Basis of Disability—Massachusetts and Federal Law ................................................................................... 10–9

§ 10.5

Tips for Employer-Side Attorneys: Creating Safe and Welcoming Workplaces ............................................................... 10–11

§ 10.6

Tips for Employee-Side Attorneys: Creating a Welcoming Law Practice ........................................................................................ 10–12

Scope Note This chapter offers guidance on gender identity discrimination for persons representing employers and persons representing employees.

§ 10.1

INTRODUCTION

Everybody has a gender identity. Your gender identity is your core concept of yourself as male, female, a blend of both, or neither. Everyone also has a gender expression, which is the way you communicate gender to others through external means such as clothing, appearance, or mannerisms. Because most people have gender identities and expressions consistent with the sex they were assigned at birth, they rarely think about it. Nevertheless, gender identity and expression turn out to be very important, largely because of societal expectations and responses that are often influenced by how individuals understand and express their gender. MCLE, Inc. | 2nd Edition 2020

10–1

§ 10.1

Employment Discrimination in Massachusetts

The term “transgender” refers to individuals whose gender identities do not necessarily match the cultural expectations based on their assigned sex at birth. It includes persons who take steps—referred to as a “transition”—to affirm their gender identity. Transgender people may choose to transition socially, legally, and/or medically. Medical steps may include taking hormones, having surgeries, and changing names, pronouns, identification documents, and more. It is important to emphasize that there is no “litmus test” for transition. The term “transgender” is also used as an umbrella term to describe individuals who transcend or challenge conventional expectations of gender identity or expression in various ways. These individuals may identify as genderqueer, gender nonconforming, gender nonbinary, or use other terms to describe their identities. Practice Note The term “transgender” is preferred to the term “transgendered,” though older court decisions or articles sometimes use the latter term.

Transgender people face serious harassment and discrimination in the areas of employment, housing, education, and public accommodations—mistreatment that threatens their freedom to work and live safely in their own communities. In a 2016 nationwide survey, 90 percent of transgender respondents reported having faced harassment, mistreatment, or discrimination in employment. Forty-seven percent reported that they had experienced an adverse job outcome, such as being fired, not hired, or denied a promotion because of being transgender. Over one-quarter (26 percent) reported that they had lost a job due to being transgender or gender nonconforming. Jaime M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, at 51 (2016), available at http://www.transequality.org/ issues/national-transgender-discrimination-survey. In recognition of the serious and pervasive discrimination experienced by transgender people, in 2011 Massachusetts added the term “gender identity” to many of its existing nondiscrimination laws, including in the areas of employment, housing, credit, lending, and education. In 2016, Massachusetts extended prohibitions against discrimination on the basis of gender identity to public accommodations as well. Massachusetts is now one of at least twenty states, as well as the District of Columbia, that explicitly provide protection from discrimination in employment on the basis of gender identity. See Cal. Gov’t Code §§ 12920, 12940; Colo. Rev. Stat. § 24-34-402; Conn. Gen. Stat. § 46a-60; D.C. Code § 2-1402.11; Del. Code Ann. tit. 6, § 4501; Haw. Rev. Stat. § 378-1–3; 775 Ill. Comp. Stat. 5/1-103; Iowa Code § 216.6; Mass. G.L. c. 151B, § 4; Md. Code Ann., State Gov. § 20-606; Me. Rev. Stat. Ann. tit. § 4571; Minn. Stat. § 363A.08; Nev. Rev. Stat. § 613.330; N.J. Rev. Stat. § 10:5-12; N.M. Stat. § 28-1-7; Or. Rev. Stat. § 659A.030; R.I. Gen. Laws § 28-5-7; Utah Code Ann. § 34A-5-106; 21 Vt. Stat. Ann. tit. § 495; Wash. Rev. Code § 49.60.030. Additionally, according to the Human Rights Campaign, as of January 28, 2018, ordinances in at least 225 cities and counties prohibit employers from discriminating on the basis of gender identity in employment actions. Human Rights Campaign, “Cities and Counties with Non-Discrimination Ordinances that Include

10–2

2nd Edition 2020 | MCLE, Inc.

Gender Identity Discrimination

§ 10.1

Gender Identity,” http://www.hrc.org/resources/entry/cities-and-counties-with-nondiscrimination-ordinances-that-include-gender (last accessed Sept. 20, 2019). Federal law provides no such prohibition against discrimination on the basis of gender identity. The Equal Employment Opportunity Commission (EEOC) and the majority of federal appellate courts have taken the position, however, that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 (Title VII) forbids discrimination against transgender employees. In April 2019, the U.S. Supreme Court announced that it would hear argument in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, a case that will likely establish binding precedent as to whether transgender individuals are protected from discrimination under Title VII. This chapter reviews Massachusetts law and the current state of federal law. It then provides guidance for employers (and the attorneys who represent them) who seek to create a welcoming and nondiscriminatory workplace for transgender and nonbinary employees. Finally, the chapter sets forth best practices for attorneys who represent transgender clients.

§ 10.2

MASSACHUSETTS LAW: PROHIBITIONS AGAINST DISCRIMINATION ON THE BASIS OF GENDER IDENTITY OR EXPRESSION

§ 10.2.1 Chapter 151B’s Explicit Prohibition Against Discrimination Based on Gender Identity and/or Expression

General Laws Chapter 151B explicitly prohibits employment discrimination on the basis of “gender identity.” G.L. c. 151B, § 4. “Gender identity” is defined in General Laws Chapter 4 to “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.” G.L. c. 4, § 7(59). Reading these two provisions together makes clear that both gender identity (the inward understanding of gender) and gender expression (the external expression of gender) are protected under Massachusetts law. Accordingly, employment discrimination against a person because the person is transgender, because the person has undergone gender transition, or because of an individual’s gender identity are all prohibited. The statutory definition of gender identity also states the ways a person may be able to demonstrate one’s gender identity. Specifically, [g]ender-related identity may be shown by providing evidence including, but not limited to, 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

MCLE, Inc. | 2nd Edition 2020

10–3

§ 10.2

Employment Discrimination in Massachusetts

core identity; provided, however, that gender-related identity shall not be asserted for any improper purpose. G.L. c. 4, § 7(59). These examples are nonexclusive and merely demonstrate ways in which gender identity can—as opposed to must—be shown. The following examples of employment-related conduct would each violate the prohibition against employment discrimination on the basis of gender identity or expression: • A male job applicant is rejected solely because the employer learns when checking his references that he used to live and work as a woman. • A transgender woman in a sales position (who presented as male when hired) is denied a promotion because her employer says she appears too feminine. • A transgender male employee is ruthlessly teased and tormented by his colleagues who call him by a female name and refuse to use male pronouns in referring to him. • An employee is denied a leave of absence to undergo a medical transition procedure, while employees are regularly granted leave for other medical procedures.

§ 10.2.2 Application of Chapter 151B’s Prohibition Against Discrimination Based on Sex to Gender Identity and Expression

Before Chapter 151B was amended to explicitly prohibit discrimination on the basis of gender identity and expression, the Massachusetts Commission Against Discrimination (MCAD) had concluded that transgender people are protected under Chapter 151B’s prohibition against sex discrimination. In Millett, the full Commission found that being transgender “is sufficiently sex linked to bring it within the ambit of sex discrimination laws,” emphasizing that discrimination based on sex was an inclusive category that has historically been interpreted broadly by both federal and state courts. Millett v. Lutco, Inc., 23 M.D.L.R. 231, 232 (2001). The Superior Court adopted a similar view in Lie v. Sky Publishing Corp., 15 Mass. L. Rptr. 412, 414–15 (Super. Ct. 2002). Lie reinforced the MCAD’s ruling that discrimination against a transgender person falls within the prohibitions of sex discrimination, noting “Massachusetts’ history of interpreting expansively remedial civil rights legislation” and the legislature’s instructions to construe G.L. c. 151B liberally. Citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); and Rosa v. Park Western Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000), the court concluded that the plaintiff set forth a prima facie case of sex discrimination. Lie v. Sky Publ’g Corp., 15 Mass. L. Rptr. at 415.

§ 10.2.3 Types of Claims Under Chapter 151B (a)

Disparate Treatment

The inclusion of gender identity in G.L. c. 151B, § 4(1) allows transgender persons to bring claims of disparate treatment under Massachusetts law. Disparate treatment 10–4

2nd Edition 2020 | MCLE, Inc.

Gender Identity Discrimination

§ 10.2

claims brought on the basis of refusal to hire, adverse working conditions, or unlawful firing parallel the three-stage framework described in detail in chapter 9 of this book. Massachusetts case law sets out the elements of a disparate treatment claim as follows: “(1) membership in a protected class; (2) harm; (3) discriminatory animus; and (4) causation.” Trs. of Health & Hosps. of Boston, Inc. v. MCAD, 449 Mass. 675, 686 (2007); Weber v. Cmty. Teamwork, Inc., 434 Mass. 761, 775 (2001). Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to show that there was a genuine “nondiscriminatory reason” for the adverse employment decision. Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. 437, 441–42 (1995); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). If the defendant is able to articulate an alternate justification, the burden then shifts back to the plaintiff to prove that the justification is pretextual. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 511.

(b)

Harassment

Under G.L. c. 151B, § 4(1), employees are protected from discriminatory workplace harassment on the basis of gender identity or expression. In order to pursue a workplace harassment claim, the complainant must establish that • the complainant is a member of a protected class; • the harassment was based on membership in the protected class; • the harassment was sufficiently pervasive to alter the conditions of employment; and • the employer knew or should have known about the harassment, and failed to remedy it. See Dodson v. Sandpoint LLC, 20 M.D.L.R. 67, 69 (1998) (analogizing sexual orientation harassment to racial harassment claims); Millet v. Lutco, Inc., 30 M.D.L.R. 77, 83 (2008) (applying this four-step analysis to a sexual harassment claim of a transgender employee as a form of sex discrimination); Vera v. Faust, 26 M.D.L.R. 341, 344– 46 (2004); McGrath v. Local Union No. 12004, 26 M.D.L.R. 178, 198–200 (2004); Berardi v. Med. Weight Loss Ctr., Inc., 23 M.D.L.R. 5, 9–10 (2001); Moore v. Bos. Fire Dep’t, 22 M.D.L.R. 294, 299–300 (2000); see also Magane v. Corcoran Mgmt. Co., 18 M.D.L.R. 103 (1996); Gobbi v. DHL Airways Co., 17 M.D.L.R. 1559, 1565 (1995). As with other types of discriminatory harassment, gender identity harassment may take many forms. In Millet v. Lutco, Inc., for example, the hearing officer suggested that conduct such as avoiding the complainant at lunch, playing music with offensive lyrics (such as “queer”) in the office, and repeatedly referring to the complainant by her male rather than female name could constitute gender identity–based harassment. Millet v. Lutco, Inc., 30 M.D.L.R. at 84 (finding that this conduct did “appear to have been motivated by discomfort with Complainant’s transgendered status” but that the incidents were not “sufficiently severe or pervasive” to give rise to employer liability). Asking inappropriate personal questions about an employee’s body, gender identity, or expression; inappropriately disclosing an employee’s transgender identity; or MCLE, Inc. | 2nd Edition 2020

10–5

§ 10.2

Employment Discrimination in Massachusetts

making derogatory remarks (whether verbally, electronically, or in writing) can also constitute gender identity harassment.

§ 10.3

FEDERAL LAW: GENDER IDENTITY DISCRIMINATION REGARDED AS SEX DISCRIMINATION

Title VII, which prohibits discrimination against enumerated classes of individuals in employment, does not explicitly prohibit discrimination based on gender identity, gender expression, or both. Nonetheless, the EEOC and a majority of federal courts have taken the position that transgender people may be included within protections against discrimination based on sex under Title VII. See Macy v. Holder, No. 0120120821 (EEOC Apr. 20, 2012), available at http://www.eeoc.gov/federal/decisions.cfm; Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008). See generally Jason Lee, Note, “Lost in Translation: The Challenges of Remedying Transgender Employment Discrimination Under Title VII,” 35 Harv J.L. & Gender 423 (2012). Transgender employees and applicants typically find protection under one (or a combination) of two theories: that Title VII prohibits sex stereotyping and/or that Title VII prohibits discrimination on the basis of an employee’s status as transgender. The first category of protections derives from Price Waterhouse v. Hopkins, in which the Supreme Court held that discrimination against a woman based on her failure to conform to female gender stereotypes violated Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, Ann Hopkins, a successful senior manager and the only woman among a class of eighty-eight candidates for partnership, sued Price Waterhouse under Title VII after the firm effectively denied her application for partnership. Price Waterhouse v. Hopkins, 490 U.S. at 231. Hopkins was also told that, in order to improve her chances for partnership, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Price Waterhouse v. Hopkins, 490 U.S. at 235. Various partners also described her as “macho,” suggested that she “overcompensated for being a woman,” and advised her to take “a course at charm school.” Price Waterhouse v. Hopkins, 490 U.S. at 235. The Supreme Court concluded that these comments “showed sex stereotyping at work” and held that such stereotyping constituted discrimination on the basis of sex in violation of Title VII, explaining that “‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’” Price Waterhouse v. Hopkins, 490 U.S. at 251. Multiple courts have adopted the sex stereotyping theory set forth in Price Waterhouse to extend the protections of Title VII to transgender employees. See, e.g., Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). The Sixth Circuit explained this approach as follows:

10–6

2nd Edition 2020 | MCLE, Inc.

Gender Identity Discrimination

§ 10.3

[D]iscrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman. Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as “transsexual,” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity. Smith v. City of Salem, 378 F.3d at 575. The second category of protections derives from the principle that discrimination against transgender people is sex-based because the adverse action turns on a bias against a person undergoing gender transition to change their sex. See, e.g., Schroer v. Billington, 577 F. Supp. 2d at 308 (refusal to hire Schroer on basis of her intention to change her sex brought her case squarely under the ambit of discrimination based on sex). The EEOC advanced this theory when, in its 2012 Macy v. Holder decision, it held that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex,’ and such discrimination therefore violates Title VII.” Macy v. Holder, No. 0120120821 (EEOC Apr. 20, 2012). As the EEOC explained, “Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex,” such that “[w]hen an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment ‘related to the sex of the victim’ in violation of Title VII.” Macy v. Holder, No. 0120120821 (EEOC Apr. 20, 2012). Applying Macy, the EEOC has held that the following employer actions violated Title VII: • restrictions on a transgender woman’s ability to use a common female restroom (Lusardi v. Dep’t of the Army, No. 0120133395, 2015 WL 1607756 (EEOC Mar. 27, 2015), available at https://www.eeoc.gov/decisions/ 0120133395.txt); • intentional misuse of a transgender employee’s name and pronouns (Jameson v. U.S. Postal Serv., No. 0120130992, 2013 WL 2368729 (EEOC May 21, 2013), available at https://www.eeoc.gov/decisions/0120130992.txt); and • failure to revise employment records to reflect a change in gender identity (Complainant v. Dep’t of Veterans Affairs, No. 0120133123, 2014 WL 1653484 (EEOC Apr. 16, 2014), available at https://www.eeoc.gov/decisions/ 0120133123.r.txt). Relying on one or both of these two theories, the majority of recent federal court decisions have extended Title VII’s prohibition against sex discrimination to transgender individuals. See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1317–20 (11th Cir. 2011) (holding that sex-based discrimination against a transgender or transsexual MCLE, Inc. | 2nd Edition 2020

10–7

§ 10.3

Employment Discrimination in Massachusetts

employee because of that employee’s gender nonconformity violates the Fourteenth Amendment’s Equal Protection Clause); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 527 (D. Conn. 2016) (“I conclude that discrimination on the basis of transgender identity is cognizable under Title VII.”); Lewis v. High Point Reg’l Health Sys., No. 5:13-CV-838-BO, 2015 WL 221615, at *2 (E.D.N.C. Jan. 15, 2015) (finding a sufficient Title VII claim for a transgender woman asserting gender discrimination due to her transgender status after she was not hired for a nursing position); Finkle v. Howard Cty., Md., 12 F. Supp. 3d 780, 788 (D. Md. 2014) (finding a cognizable claim of sex discrimination under Title VII for a county employee’s claim that she was discriminated against “because of her obvious transgendered status”); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653 (S.D. Tex. 2008); Mitchell v. Axcan Scandipharm, Inc., No. 05-243, 2006 WL 456173, at *2 (W.D. Pa. 2006). The First Circuit is among those federal Courts of Appeal to expressly reject the earlier exclusion of transgender people from protection against sex discrimination under Title VII. Citing Price Waterhouse for the proposition that gender discrimination can be based on stereotypes about dress, the First Circuit concluded that a biological male who presents and lives as female may be able to establish gender discrimination where she was denied a loan application from a bank because of her feminine attire. Rosa v. Park W. Bank & Tr. Co., 214 F.3d 213, 215–16 (1st Cir. 2000) (looking to Title VII case law to interpret and apply the nondiscrimination provisions of the Equal Credit Opportunity Act, 15 U.S.C. § 1691 (2000)). The Supreme Court appears poised to conclusively define whether and how Title VII protects transgender employees. On April 22, 2019, the Supreme Court granted certiorari in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, indicating that it would address the question of whether Title VII prohibits discrimination against transgender employees based on their status as transgender or sex stereotyping under Price Waterhouse v. Hopkins. The petition for review was filed by the defendant employer, which fired a long-term employee after the employee informed the employer that she was transgender and asked to wear women’s clothing to work. The EEOC filed a lawsuit on the employee’s behalf, and the U.S. Court of Appeals for the Sixth Circuit reversed the District Court’s order granting summary judgment for the funeral home. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 600 (6th Cir. 2018). In doing so, the Sixth Circuit held that the employee had cognizable Title VII claims for both sex stereotyping under Price Waterhouse and for discrimination on the basis of her status as a transgender woman. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d at 576, 580. The Supreme Court’s decision in R.G. & G.R. Harris is likely to have far-reaching impacts on the application of federal law to transgender employees. Practitioners in Massachusetts should note, however, that any decision by the Supreme Court will not affect the explicit state-level prohibitions against discrimination based on gender identity and expression.

10–8

2nd Edition 2020 | MCLE, Inc.

Gender Identity Discrimination

§ 10.4

§ 10.4

DISCRIMINATION ON THE BASIS OF DISABILITY—MASSACHUSETTS AND FEDERAL LAW

Some, but not all, transgender people experience a medical condition called gender dysphoria (GD). Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (DSM-5) 451 (5th ed. 2013) [hereinafter DSM-5]. Gender dysphoria is characterized by “a marked incongruence” between one’s gender identity and one’s assigned sex, and intense emotional pain and suffering resulting from this incongruence. DSM-5 at 452–53. Gender dysphoria “is not itself a mental disorder,” instead, “[t]he critical element of gender dysphoria is the presence of clinically significant distress associated with the condition.” Am. Psychiatric Ass’n, “Gender Dysphoria” (2013), at https://APA_DSM-5-Gender-Dysphoria (1).pdf. Gender dysphoria is a relatively new diagnosis, having been introduced in 2013 by the American Psychiatric Association (APA) in the DSM-5. See generally Kevin M. Barry et al., “A Bare Desire to Harm: Transgender People and the Equal Protection Clause,” 57 B.C. L. Rev. 507, 516–21 (2016). Previous versions of that manual instead had included a diagnosis of “gender identity disorder” (GID). See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 261–66 (3rd ed. 1980) (the “DSM-III”); Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 71–78 (4th ed. 1994). Nonetheless, GD, like GID, is a serious medical condition that, if left untreated, can result in depression, anxiety, and suicidality. DSM-5 at 454–55. Because of these medical risks, the professional organization focused on transgender health issues, the World Professional Association for Transgender Health (WPATH), has developed Standards of Care for treatment of persons who suffer from these conditions. WPATH, Standards of Care for the Health of Transsexual, Transgender, and Gender Noncomforming People (7th version), available at https://www.wpath.org/publications/soc. Both the MCAD and Massachusetts courts have recognized that transgender people may qualify for state disability protection as “qualified handicapped persons.” This is true despite the fact that there are express exclusions in federal disability law for transgender people. See 29 U.S.C. § 705(1)(F)(i); 42 U.S.C. § 12211(b)(1). In Jette v. Honey Farms Mini Market, 23 M.D.L.R. 229 (2001), the full Commission emphasized that, although Massachusetts’s disability protections relied on and were modeled on the federal Rehabilitation Act, “since the [state] legislature was aware of the [federal] exemptions for coverage of transsexuals and did not include such in M.G.L.C. 151B, it must have intended to include such coverage.” Jette v. Honey Farms Mini Mkt., 23 M.D.L.R. 229, 2001 Mass. Comm. Discrim. LEXIS 211, at *5– 6. Thus, the MCAD concluded that being transgender may fall squarely within the definition of disability provided by G.L. c. 151B, § 1: having a “physical or mental impairment, which substantially limits one or more major life activities of a person.” Jette v. Honey Farms Mini Mkt., 23 M.D.L.R. at 230. Similarly, the Massachusetts Superior Court has ruled that the condition of gender identity disorder can be considered a “handicap” under Chapter 151B because it can MCLE, Inc. | 2nd Edition 2020

10–9

§ 10.4

Employment Discrimination in Massachusetts

impair normal functioning when unmitigated; because of “the need for ongoing medical care” that can result from it; and because “whether an individual’s gender identity is characterized as psychological, neurological or endocrinological, it is certainly a health condition for some transsexuals.” Lie v. Sky Publ’g Corp., 15 Mass. L. Rptr. 412, 420 (Super. Ct. 2002). Gender dysphoria, moreover, may “substantially limit[] a major life activity” within the meaning of G.L. c. 151B, § 1(16). Although the issue of what constitutes a major life activity is still evolving in courts and state agencies, transgender complainants may be able to demonstrate that the need for ongoing medical care—including hormone therapy, sex reassignment surgery, or other treatment—qualifies as a substantial limitation to the major life activity of caring for oneself. Others may be able to point to depression or other psychological effects, perhaps including suicidal feelings and behavior that are sufficiently debilitating to meet the definition. In addition, even with treatment, many individuals can prove a substantial limitation to the major life activities of intimate sexual relations and procreation. It is important to keep in mind that the term “substantial limitation” does not mean that a person is unable to engage in the activity, but only that the condition creates complexities and obstacles that would not otherwise exist. According to the second part of the definition of covered disabilities, one may prove discrimination based on a record of a physical or mental impairment. Therefore, transgender people who have no current limitation of a major life activity may nonetheless be covered because they had such a limitation at an earlier time in their life. Even if a transgender employee does not actually have GID or GD, they may qualify for protection as a person who is “regarded as” disabled. See G.L. c. 151B, § 1(16). In Lie, the Massachusetts Superior Court found that the transgender plaintiff could be “regarded as handicapped” because her medical condition was “a classically stigmatizing condition that sometimes elicits reactions based solely on prejudices, stereotypes, or unfounded fear.” Lie v. Sky Publ’g Corp., 15 Mass. L. Rptr. at 420; see also Doe v. Yunits, 15 Mass. L. Rptr. 278 (Super. Ct. 2001) (denying motion to dismiss a transgender student’s claim that she is a “qualified handicapped individual” under Mass. Const. Art. CXIV based on her diagnosis of gender identity disorder qualifying as “physical or mental impairment” and based on her being regarded as having such an impairment due to the clothing she wears and the manner in which she carries herself). It is important to note that federal disability law contains express exclusions for transgender people. See 29 U.S.C. § 705(1)(F)(i); 42 U.S.C. § 12211(b)(1). Federal courts have routinely invoked these exclusions to bar transgender plaintiffs from pursuing claims under federal disability law. See, e.g., James v. Ranch Mart Hardware, Inc., No. 94-2235-KHV, 1994 WL 731517, at *2 (D. Kan. Dec. 23, 1994) (dismissing a transgender employee’s ADA claim); see also Johnson v. Fresh Mark, Inc., 337 F. Supp. 2d 996, 1001 (N.D. Ohio 2003), aff’d, 98 F. App’x 461 (6th Cir. 2004) (same); Doe v. United Consumer Fin. Servs., No. 1:01 CV 1112, 2001 WL 34350174, at *6 (N.D. Ohio Nov. 9, 2001) (same). In January 2015, however, a plaintiff filed what is believed to be the first equal protection challenge to the Americans with Disabilities Act (ADA)’s exclusion of claims by transgender employees. Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-4822-JFL (E.D. Pa. argued Dec. 9, 2015); see generally “A Bare Desire to Harm: Transgender People 10–10

2nd Edition 2020 | MCLE, Inc.

Gender Identity Discrimination

§ 10.4

and the Equal Protection Clause,” 57 B.C. L. Rev. 507 (2016) (discussing Blatt). Kate Lynn Blatt brought claims under Title VII and the ADA against her former employer, Cabela’s. As to the ADA claim, Ms. Blatt claimed that Cabela’s refused her a reasonable accommodation for gender dysphoria by prohibiting her from using the women’s bathroom and requiring her to wear a nametag bearing the name “James.” Cabela’s moved to dismiss Ms. Blatt’s ADA claim based on the ADA’s transgender exclusions. Ms. Blatt countered by arguing that those exclusions violate the Equal Protection Clause of the Fourteenth Amendment. On May 18, 2017, the District Court ruled that Ms. Blatt could move forward with her ADA claim. Blatt v. Cabela’s Retail, Inc., 2017 WL 2178123, at *1 (E.D. Pa. 2017). Sidestepping Ms. Blatt’s constitutional arguments, the court held that the “gender identity disorder” exclusion within the ADA must be read narrowly and does not encompass gender dysphoria. The court emphasized that gender dysphoria goes beyond merely identifying as transgender and is marked by clinically significant stress and other disabling impairments. Accordingly, while being transgender is not protected by the ADA, transgender employees may have a cognizable disability under the ADA if they are diagnosed with gender dysphoria. Following the court’s decision, the case settled.

§ 10.5

TIPS FOR EMPLOYER-SIDE ATTORNEYS: CREATING SAFE AND WELCOMING WORKPLACES

Attorneys representing employers should be prepared to counsel their clients on best practices for creating safe and welcoming workplaces for transgender employees. Taking steps to ensure an inclusive workplace supports diversity initiatives, aids in employee retention, and mitigates the risk of claims of discrimination. • Confidentiality and Privacy: Information related to an employee’s gender identity, including information related to a gender transition, should be treated with the utmost sensitivity and confidentiality. This is especially true of information concerning transition-related medical treatment. Employers should safeguard this information and guard against rumor-spreading and gossip. • Names and Pronouns: Many transgender people will take steps to have their name and gender legally changed in their identification documents. For a variety of reasons, however, not every transgender person will make these changes. Regardless of an employee’s legal name and gender, employers should use an employee’s desired name and pronouns in communicating with the employee and with third parties on a day-to-day basis. Employers must also ensure that coworkers use a transgender employee’s proper name and pronouns. An employee’s legal name that does not conform with the employee’s gender identity should only be used when legally required, i.e., for certain human resources, tax, and immigration paperwork. Employers should consider providing opportunities for employees to share the pronouns that they use. For example, asking attendees at a meeting to share MCLE, Inc. | 2nd Edition 2020

10–11

§ 10.5

Employment Discrimination in Massachusetts

their pronouns at the beginning of the meeting can reduce the risk of employees being misgendered. Employers may also want to give employees the option to include their pronouns in their email signatures. • Dress Codes: Where possible, employers should make dress codes genderneutral. Where dress codes are not gender-neutral, transgender employees should be allowed to wear clothing associated with their gender identity. Dress codes should never be used to prevent transgender employees from dressing in accordance with their gender identity. • Bathrooms and Facilities: Transgender employees should be allowed to use the bathroom (or other sex-segregated facility) that is most comfortable for them. A transitioning employee may not feel comfortable using the bathroom of the gender to which the employee is transitioning until reaching a certain point in the transition. Transgender employees should be allowed to make that determination on their own. In no case should transgender employees be required to use separate facilities. • Policies and Training: Employers should include “gender identity and expression” in their equal employment opportunity, nondiscrimination, and harassment policies. Any training on these policies, or on other topics related to workplace diversity, should address gender identity and expression. Employers should also consider offering training focused on the experiences of transgender employees. • Forms: Employers should review applications and workplace forms to determine whether they unnecessarily require a gender designation. For situations in which it is necessary for employees to designate their gender, employees should have the option of identifying in the way that is most consistent with their identity. To facilitate this, employers should remove binary male/female checkboxes and allow for narrative responses. • Remedial Action: Employers should respond quickly and decisively to any antitransgender incidents in their workplace, such as teasing, rude comments, or refusal to use correct names, pronouns, or both. Promote an environment where all persons, including persons who do not conform to traditional gender norms, are treated with dignity and respect.

§ 10.6

TIPS FOR EMPLOYEE-SIDE ATTORNEYS: CREATING A WELCOMING LAW PRACTICE

Attorneys who represent (or wish to represent) transgender employees should consider whether transgender clients will feel safe, comfortable, and welcome in their offices. Law practices can take the following practical steps to create a supportive and safe experience for transgender clients. • Policies: Add “gender identity/expression” to the list of protected classes in application forms, recruitment materials, marketing materials, website pages, and policies related to nondiscrimination, nonharassment, and equal employment opportunity. 10–12

2nd Edition 2020 | MCLE, Inc.

Gender Identity Discrimination

§ 10.6

• Forms: If you use client intake forms, consider eliminating any questions related to gender (or other protected class status). If it is necessary to ask about gender, allow clients to describe their gender as they see fit (rather than providing male/female checkboxes). • Access to Facilities: If possible, provide single-stall, nongendered bathrooms. If that is not possible, permit clients to access bathrooms consistent with the individual’s stated gender identity. If keys to the bathroom are kept with the receptionist or another gatekeeper, make sure that such persons are sensitive to issues of gender identity. • Pronouns and Names: Use appropriate pronouns and other gendered language consistent with a client’s stated gender identity. If you are uncertain which language to use, ask in a respectful and open-ended way. For example, you might say, “I use she/her pronouns. What pronouns should I use for you?” Use a client’s chosen name (as opposed to the client’s legal name) whenever possible. • Training: Internal training related to discrimination, harassment, diversity, supervision, and leadership should address transgender issues and applicable law, even if you do not have (or do not think you have) any transgender employees or clients. The training should include a discussion of the meaning of gender identity, the law’s prohibition against discrimination or harassment on the basis of gender identity, and the practice’s expectations regarding lawful and respectful treatment of transgender persons and anyone who does not conform to traditional gender roles or societal gender norms. • Confidentiality: It is critical that attorneys respect the privacy of transgender clients. Do not “out” your transgender clients. Make sure you have the client’s permission before making any disclosure about the client’s gender identity. Be similarly scrupulous about protecting the confidentiality of any medical information the client may provide to you. • Ask Only What You Need to Know: Do not ask about personal information (including medical treatments) unless it is strictly necessary to the representation of the client. In the vast majority of instances, it will not be necessary to ask about the details of medical treatments (surgery, hormones, etc.) while representing a transgender client in an employment-related matter. These questions are highly invasive and inappropriate without a compelling reason related to legal representation. • Remedial Action: Respond quickly and decisively to any antitransgender incidents in your practice, such as teasing, rude comments, or refusal to use correct names, pronouns, or both. Promote an environment where all persons, including persons who do not confirm to traditional gender norms, are treated with dignity and respect. • Educate Yourself: Attorneys working with transgender clients should seek continuing education about the challenges faced by their clients and best practices for representing them. MCLE, Inc. | 2nd Edition 2020

10–13

Table of Cases References are to section numbers of this book, unless otherwise indicated.

A Abramian v. President & Fellows of Harvard Coll., 2.1.2(b), 5.2.2(c), 9.2.3(c), Exhibit 8A Abrams v. Paddington’s Place, 4.2.3(c), 4.2.3(g), 4.2.4(a) Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 2.1.4, 6.3.1 Acosta v. Special Police Force Corp., 3.6.1(a) Adams v. Marine USA, Inc., 4.2.6(d) Adams v. Mount St. Vincent Nursing Home, Exhibit 8A Adamson v. Walgreens Co., 2.1.2(b) Adeyeye v. Heartland Sweeteners, LLC, 7.2.2 Agin v. Federal White Cement, Inc., 3.7.1 Agusty-Reyes v. Department of Educ. of P.R., 8.3.3(a) Ahmed v. Johnson, 6.3.1 Ahmed v. Napolitano, 6.3.1 Akerson v. Pritzker, 3.6.1(c) Albee v. New Eng. Med. Ctr. Hosp., Inc., Exhibit 8A Alberts v. Devine, 7.4.2 Albertsons, Inc. v. Kirkinburg, 4.2.3(h), 4.3.2(c) Alexandros v. Patio Rooms of Am., Inc., 5.3.5(a) Alger v. Prime Rest. Mgmt., LLC, 5.3.4(d) Alicea Rosado v. Garcia Santiago, Exhibit 8A Allen v. SouthCrest Hosp., 4.3.2(c) Almonacid v. Vantage Travel Serv. Inc., 5.3.5(g) Alonzo v. MCAD, 6.3.1 Alunkal v. Codex Corp., 6.1, 6.2.2 American Airlines, Inc. v. Cardoza, 2.3.1 Anderson v. Potter, 6.1 Anderson v. U.S.F. Logistics (IMC), Inc., 7.2.2 Anderson v. United Parcel Serv., Inc., 4.3.2(c) Andover Newton Theological Sch., Inc. v. Continental Cas. Co., 3.6.1(a) Andrews v. Arkwright Mut. Ins. Co., Exhibit 8A Andrews v. MBTA, 4.2.4(a), 4.2.4(b), 4.3.2(d) Andujar v. Nortel Networks, Inc., 6.2.2 Angell v. Fairmount Fire Prot. Dist., 4.2.4(a) MCLE, Inc. | 2nd Edition 2020

Annobil v. Worcester Skilled Care Ctr., Inc., 4.3.2(c), 5.3.4(d) Ansonia Bd. of Educ. v. Philbrook, 7.2.2 Aponte v. Worcester Hous. Auth., 3.6.3 Arnett v. Aspin, 3.5.2 Arrieta-Colon v. Wal-Mart P.R., Inc., 8.3.9(c) Arrington v. Cobb Cty., 3.6.1(b) Atkinson v. National Bos. Video Ctr., Inc., 5.2.2(c) AT&T Corp. v. Hulteen, 5.2.2(b), 5.3.5 Attorney Gen. v. Desilets, 9.2.2(b) Augis Corp. v. MCAD, 9.2.2, 9.2.3(b) August v. Offices Unlimited, Inc., 4.2.4(d) Aulisio v. Baystate Health Sys., Inc., 4.3.2(e) Aviles-Martinez v. Monroig, 8.3.6 Ayala-Sepulveda v. Municipality of San German, 9.2.1(b) Ayanna v. Dechert, LLP, 3.2, 4.3.2 Azimi v. Jordan’s Meats, Inc., 8.3.9(a)

B Back v. Hastings on Hudson Union Free Sch. Dist., 3.2 Bain v. City of Springfield, 4.2.8, 8.2.5(a), Exhibit 8A Baldelli v. Town of Southborough, 8.2.8(c) Baldwin v. Foxx, 8.3.5(b), 9.2.1(a), 9.2.1(b), 9.2.1(c) Baralt v. Nationwide Mut. Ins., 2.1.2(b) Barbano v. Madison Cty., 5.2.2(c) Barbetta v. Chemlawn Servs. Corp., Exhibit 8A Barbot v. Hapco Farms, Inc., 9.2.3(b), Exhibit 8A Barrett v. Fontbonne Acad., 7.4.2, 9.2.2(b) Barth v. Gelb, 4.2.5 Bass v. Department of Mental Retardation, Exhibit 8A Batchelder v. Andover Police Dep’t, 2.1.2(b) Battenfield v. Harvard Univ., Exhibit 8A Baystate Alt. Staffing, Inc. v. Herman, 3.6.1(a) Beal v. Board of Selectmen of Hingham, 4.2.4(a), 4.3.2(c), 4.3.2(d) Beane v. Massachusetts Container Corp., 4.2.4(a), 4.2.5, 4.3.2(d), 4.3.3(a) C–1

Employment Discrimination in Massachusetts Beaupre v. Cliff Smith & Assocs., 2.1.1, 8.2.3(a), 8.2.3(b), 8.2.5, 8.2.5(c), 8.2.8(b), 8.2.8(d), 8.3.4, Exhibit 8A Beck v. University of Wis. Bd. of Regents, 4.3.2(e) Beldo v. University of Mass. Bos., Exhibit 8A Belfor USA Grp., Inc., 8.3.6 Bence v. Detroit Health Corp., 3.6.1(c) Bendell v. Lemax, Inc., Exhibit 8A Bengin v. Braintree Highlands Corp., Exhibit 8A Bennefield v. Kohl’s Dep’t Stores, Inc., 6.2.1 Bennett v. Capitol BC Rests., LLC, 5.3.5(f) Benoit v. Technical Mfg. Corp., 4.2.3(f), 4.2.6(d) Benson v. Northwest Airlines, Inc., 4.3.2(d) Bento v. I.T.O. Corp. of R.I., 4.3.2(c) Berardi v. Medical Weight Loss Ctr., Inc., 9.2.2(c), 9.2.3(b), 9.2.3(e), 10.2.3(b) Bertelli v. Staffing Network, Inc., 5.3.5(d) Billings v. Town of Grafton, 8.2.3(b), 8.3.2(b) Bivens v. Six Unknown Fed. Narcotics Agents, 3.8 Black v. School Comm. of Malden, 3.5.3 Blackstone v. Cashman, Exhibit 31A Blades v. Hahjee’s Place, Exhibit 8A Blagrove v. Walgreen Co., 4.2.4(a) Blankenship v. Parke Care Ctrs., Inc., 9.3.2(b) Blare v. Husky Injection Molding Sys. Bos., Inc., 1.2, 2.1.2(b), 4.2.6(c), 5.2.2(c), 10.2.3(a), Checklist 2.1, Exhibit 8A Blatt v. Cabela’s Retail, Inc., 10.4 Blick v. Pitney Bowes Mgmt. Servs., Inc., 6.3.1 Blockel v. J.C. Penney Co., 4.2.8 Boaz v. Federal Express Corp., 3.6.1(c) Boaz v. FedEx Customer Info. Servs., 3.6.1(a) Bollard v. California Province of the Soc’y of Jesus, 7.4.2 Bonefont-Igara Videz v. International Shipping Corp., 2.1.2(b) Borkowski v. Valley Cent. Sch. Dist., 4.2.5, 4.3.2(d), 4.3.3(b) Borrelli v. Aria Techs., Exhibit 8A Bostock v. Clayton Cty. Bd. of Comm’rs, 8.2.3(d), 8.3.5(b), 9.1 Boston v. Blue Cross & Blue Shield of Kan., Inc., 2.1.4 Boston, City of v. MCAD, 1.2, 6.3.1 Boston Police Superior Officers Fed’n v. City of Bos., 6.2.3 Bourbeau v. City of Chicopee, 4.2.4(a)

C–2

Bournewood Hosp., Inc. v. MCAD, 4.1.1, 4.2.8 Bourque v. Shinseki, 4.3.2(c) Bousquet v. PolyForm Corp., 2.2.3(a), 2.2.3(c) Boward-Wedge v. Aquarion Operating Servs. Co., 4.2.3(c) Bowman v. Heller, Exhibit 8A Boykin v. ATC/VanCom of Colo., 4.3.2(d) Bradbury v. The Elbow Room, 8.3.7, Exhibit 8A Brady v. Art-Cement Prods. Co., 3.5.6 Bragdon v. Abbot, 4.2.3(e), 5.3.2 Bray v. Atlanticare, Inc., 4.2.3(f), 4.2.4(a) Bray v. Town of Wake Forest, 5.3.4(d) Brelin-Penney v. Encore Images, Inc., 4.3.2 Brennan v. National Tel. Directory Corp., 5.2.4(a) Brennan v. Victoria Bank & Tr. Co., 3.6.1(c) Bridges v. City of Bossier, 4.3.2(c) Brienzo v. Town of Acushnet, 4.3.2(d) Brissette v. Franklin Cty. Sheriff’s Office, 8.3.8 Broadus v. O.K. Indus., Inc., 3.6.1(a) Brock v. City of Springfield, 9.3.3(b) Brookins v. Staples Contract & Commercial, Inc., 4.3.2(d) Brooks v. ACE Indus., Inc., 3.4.1 Brown v. F.L. Roberts & Co., 7.2, 7.2.1, 7.2.2, 7.4 Brown v. Kendall, 8.2.6(c) Brown v. Phoenix & Foxwood, 8.3.2(a) Brown v. Pine Bluff Sch. Dist., 3.6.1(a) Brunner v. Stone & Webster Eng’g Corp., 5.2.2(c) Bruno v. City of Bos. Sch. Dep’t, 6.2.3 Bryant v. Caritas Norwood Hosp., 4.2.4(a), 4.2.5, 4.3.2(d), 4.3.3(b) Bryson v. MAU, Inc., 5.3.4(d) Buckley Nursing Home, Inc. v. MCAD, 4.2.8, 8.2.8(c) Bull HN Info. Sys., Inc., Commonwealth v., 2.3.1, 2.3.2 Bulwer v. Mount Auburn Hosp., 1.2, 2.1.2(b), 3.6.3, 5.2.2(c) Bunevitch v. CVS/Pharmacy, 4.2.3(g), 4.3.3(a) Burlington Indus., Inc. v. Ellerth, 8.2.2, 8.2.4(a), 8.2.7(c), 8.3.3(a), 8.3.10, 8.3.11, 9.3.2(a) Burlington N. & Santa Fe Ry. Co. v. White, 2.1.1, 8.2.5(a) Burman v. Boch Oldsmobile, Inc., Exhibit 8A 2nd Edition 2020 | MCLE, Inc.

Table of Cases Burns v. Johnson, 3.1, 3.2 Burwell v. Hobby Lobby Stores, Inc., 5.3.2, 7.1 Butler v. Adecco USA Inc., 2.1.1 Butler v. Verizon New Eng., Inc., 4.3.2(d)

C Cahill v. Exodus Med. Transp., Inc., 8.3.7, 8.3.9(b) Cailler v. Care Alts. of Mass., LLC, 4.3.2(d) Cairo v. Starbucks Corp., 4.3.2(c), 4.3.2(d) Calef v. Gillette Co., 4.2.4(a), 4.2.5(a), 4.3.2(c) Calero-Cerezo v. U.S. Dep’t of Justice, 4.2.3(g), 4.2.4(a), 4.3.2(c), 4.3.3(b) Calhoun v. Acme Cleveland Corp., 2.1.4 California Fed. Sav. & Loan Ass’n v. Guerra, 5.2.2(b) Callahan v. First Congregational Church of Haverhill, 7.4.2 Cannon v. Levi Strauss & Co., 4.3.2(c) Canovas v. University of Mass. Med. Sch., 2.1.4 Caputy v. Quad/Graphics, Inc., 2.1.2(b) Caraballo v. Correctional Admin., 3.1 Carey v. Piphus, 3.8 Cargill v. Harvard Univ., 4.2.4(a), 4.3.2(c), 4.3.2(d), 4.3.3(b) Carigilia v. Hertz Equip. Corp., 5.2.2(c) Carleton v. Commonwealth, 3.7.1, 4.2.4(a), 4.3.2(c) Carlton v. Mystic Transp. Inc., 2.1.4 Carlton v. Worcester Sch. Dep’t, Exhibit 8A Carnegie Ctr. Assocs., In re, 5.3.5(g) Carney v. Town of Falmouth Police Dep’t, Exhibit 8A Caron v. Scott Paper Co., 2.1.2(a) Carozza v. Blue Cross Blue Shield of Mass., Inc., 9.2.2(a), 9.2.3(b) Carr v. Merle & Zicherman, D.D.S., PC, 5.2.2(c) Carr v. Reno, 4.2.5 Carroll v. Xerox Corp., 4.3.2(c) Carter v. Commissioner of Corr., Exhibit 8A Casella v. MBNA Mktg. Sys., Inc., 3.2 Castellanos v. Raymours Furniture Co., 3.6.1(a) Castello v. U.S. Postal Serv., 9.3.2(c) Cedrone v. American Express One Travel Servs., Inc., 4.2.4(b), 4.2.5 Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 4.3.2(d), 4.3.3(b)

MCLE, Inc. | 2nd Edition 2020

Centola v. Potter, 3.2, 8.3.5(b), 9.2.1(b), 9.2.3(b), 9.2.3(e), 9.3.2(c) Cerrato v. Durham, 5.2.4(b) Chadwick v. WellPoint, Inc., 3.2, 3.5.5, 5.2.2(c), 5.3.5(e), 9.2.1(a) Chalmers v. Tulon Co., 9.2.2(b) Chaloult v. Interstate Brands Corp., 8.2.4(a), 8.2.7(b), 8.3.3(a) Chamberlin v. 101 Realty, Inc., 8.3.2(d), 8.3.7, 9.3.2(b) Champagne v. Servistar Corp., 4.2.6(d) Chang v. University of R.I., 3.6.1(c), 3.6.1(d), 3.6.3 Chanson v. Westinghouse Corp., 4.2.8 Chao v. Hotel Oasis, Inc., 3.6.1(a) Chapin v. University of Mass., 8.2.1(b), 8.2.5(c), 8.2.6(c), 8.3.4, Exhibit 8A Charland v. Muzi Motors, Inc., 3.7.1, 8.2.6(c) Chatman v. Gentle Dental Ctr. of Waltham, 8.2.2, 8.2.5, 8.2.6(b) Chedid v. Children’s Hosp., 5.3.5(e) Cherry v. Shaw Coastal, Inc., 9.3.2(c) Chevron U.S.A. Inc. v. Echazabal, 4.3.3(c) Chief Justice for Admin. & Mgmt. of Trial Ct. v. MCAD, 4.3.1, 9.2.3(a) Choukas v. Ocean Kai Rest., 8.2.4(b), 8.2.8(b), Exhibit 8A Christiansen v. Omnicom Grp., Inc., 9.2.1 Ciccone v. Textron, Inc., 2.2.3(c) Cimino v. BLH Elecs., Inc., Exhibit 8A Circuit City Stores, Inc. v. Adams, 2.2.4 City of, see name of city Clark v. American Home Foods Div., 2.2.3(c) Cleveland v. Policy Mgmt. Sys. Corp., 4.2.4(d), 4.3.3(e) Cleveland Bd. of Educ. v. LaFleur, 5.3.4(g) Clifton v. MBTA, 4.2.8, 9.2.2, 9.2.3(e), Exhibit 8A Cloutier v. City of Lowell, 3.7.2(b) Cloutier v. Costco Wholesale Corp., 7.2.1, 7.2.2, 7.4 Clymore v. Far-Mar Co., 3.6.1(d) Cody v. Sutar, 3.7.1 Colaiacomo v. Massachusetts Dep’t of Envtl. Prot., 5.2.2(c) Colas v. City Univ. of N.Y., 5.3.4(d) Cole v. North Am. Breweries, 3.6.1(c) Collazo v. Nicholson, 2.1.1, 2.2.2(a), Exhibit 8A College-Town, Div. of Interco, Inc. v. MCAD, 6.2.1, 8.2.2, 8.2.3(b), 8.2.4(a), 8.2.4(b), 8.2.7(c), 8.3.3(a), 8.3.3(b), 9.2.3(b), 9.3.3(b) C–3

Employment Discrimination in Massachusetts Colley v. Dickenson Cty. Sch. Bd., 3.6.1(b), 3.6.1(c) Comeau v. Idea Lube, Inc., Exhibit 8A Comey v. Hill, 2.1, 8.2.6(c) Comley v. Media Planning Grp., 3.5.2 Commissioner v. Schleier, 2.2.2(a) Commodore v. Genesis Health Ventures, Inc., 9.2.2(c) Commonwealth v., see name of party Complainant v. Department of Veterans Affairs, 10.3 Conkwright v. Westinghouse Elec. Corp., 2.2.1(e) Connecticut v. Teal, 2.1.2(a) Connolly v. Suffolk Cty. Sheriff’s Dep’t, 2.1.2(b), 4.2.8 Conroy v. New York State Dep’t of Corr. Servs., 4.3.2(f) Conway v. Boston Edison Co., 4.3.2(e) Conway v. Electro-Switch Corp., 4.2.8, 8.2.8(b) Cook v. Rhode Island Dep’t of Mental Health, Retardation & Hosps., 4.3.2(c), 5.2.4 Cooper v. CLP Corp., 8.3.11 Core-Boykin v. Boston Edison Co., 3.5.1 Cormier v. Littlefield, 4.2.3(b), 4.3.2(c) Corning Glass Works v. Brennan, 3.6.1(a), 3.6.1(c), 3.6.3 County of, see name of county Courtois v. Legal Seafoods, Inc., 4.2.3(a), 4.2.3(b), 4.2.6(d) Covino v. Town of Framingham, 4.3.2(d) Cox v. New Eng. Tel. & Tel. Co., 4.2.4(a), 4.3.2(c), 4.3.2(d) Craig v. Yale Univ. Sch. of Med., 3.5.1 Criado v. IBM Corp., 4.2.3(b), 4.2.4(b), 4.2.8, 4.3.2(d), 4.3.2(e), 4.3.3(a) Crnokrak v. Evangelical Health Sys. Corp., 5.3.5(g) Croteau v. Salvation Army, 5.2.5(b) Crowley v. L.L. Bean, Inc., 8.3.2(b), 8.3.3(b), 8.3.8 CRST, Inc. v. EEOC, 8.3.9(d) Cruz v. Boston Litig. Servs., 4.3.2(c) Cruz v. Bristol-Myers Squibb Co., 2.2.1(e) Cuddyer v. Stop & Shop Supermkt. Co., 4.2.8, 4.3.1, 8.2.6(a), 8.3.2(b), 8.3.8, 9.3.3(a), 9.3.3(b), Exhibit 8A Cuello-Suarez v. Puerto Rico Elec. Power Auth., 2.1.4 Culhane v. Baystate Med. Ctr., Inc., 4.2.4(c) Cumpiano v. Banco Santander P.R., 5.3.5(a)

C–4

Currier v. National Bd. of Med. Exam’rs, 5.3.5(e) Cyr v. United Parcel Serv., Inc., 4.2.3(a), 4.2.3(f), 4.2.4(a), 4.3.2(c)

D D’Agostino v. Salvation Army, 9.2.3(b) Dahill v. Police Dep’t of Boston, 4.2.3(h), 4.3.1, 4.3.2(c), 5.3.4(b) Dahms v. Cognex Corp., 8.3.2, 8.3.2(c), 8.3.2(d), 9.3.3(b) Daley v. Wellpoint Health Networks, Inc., 5.2.2(c) Dalis v. Buyer Adver., Inc., 3.6.2(a), 3.7.1, 5.3.8 Dalrymple v. Town of Winthrop, 3.4 Dalton v. Subaru-Isuzu Auto., Inc., 4.3.2(d) Daly v. Abbott Labs., Inc., 4.3.2(d) D’Ambrosio v. MBTA, 4.3.2(c), 4.3.2(d), 4.3.2(e) D’Amico v. Compass Grp. USA, Inc., 4.2.3(b), 4.2.4(a) Danco, Inc. v. Wal-Mart Stores, Inc., 6.2.1 Danio v. Emerson Coll., 3.6.1(a), 3.6.2(a) D’Aprile v. Fleet Servs. Corp., 4.2.4(d), 4.3.3(e) Darian v. University of Mass. Bos., 4.3.2(c), 5.2.4(b), 5.3.4(d) Dartmouth Review v. Dartmouth Coll., 3.7.2(b) Dartt v. Browning-Ferris Indus., Inc., 4.2.3(b), 4.2.3(c), 4.2.6(c), 4.2.6(d), 4.2.8, 4.3.2(a), 4.3.2(c) Daugherty v. City of El Paso, 4.3.2(d) Davidson v. City of Pittsfield, 2.1.4 Davis v. Monroe Cty. Bd. of Educ., 8.2.1(b) Davis v. Passman, 3.8 De Almeida v. The Children’s Museum, Exhibit 8A DeBarboza v. Cablevision of Bos., Inc., Exhibit 8A DeBiase v. MBTA, Exhibit 8A DeCaro v. Hasbro, Inc., 4.2.4(b), 4.2.4(d) DeCosa v. Allied Barton Sec. Serv., LLC, 5.2.2 Deeter v. Bravo’s Pizzeria & Rest., Exhibit 8A Degan v. Goldwell of New Eng., Inc., 4.2.3(c) DeLara v. La Chimere Skin Care Salon, Inc., 9.3.3(b) Delaware State Coll. v. Ricks, 2.2.3(a) Denny v. Westfield State Coll., 3.6.3 DeNovellis v. Shalala, 6.2.1 2nd Edition 2020 | MCLE, Inc.

Table of Cases DeRoche v. MCAD, 8.3.9(a) Desert Palace, Inc. v. Costa, 1.1 DiAngelo v. Pandiscio, 3.5.3 Diaz v. Infotech Aerospace Servs., Inc., 3.6.1(c), 3.6.3 Diaz v. Jiten Hotel Mgmt., Inc., 2.1.2(b), 6.1 Diaz v. Pan Am. World Airways, Inc., 3.4.1 Dichner v. Liberty Travel, 4.2.8, 4.2.9(c) Dietrich v. Swartz & Corcoran Ins. Agency, Inc., 9.3.3(b), 9.3.3(c), Exhibit 8A Diggs v. Partners Healthcare Sys., Inc., 8.3.7 DiIorio v. Willowbend Country Club, Inc., 2.1.2(b) Dindinger v. Allsteel, Inc., 3.6.1(c) Dodson v. Sandpoint LLC, 9.2.3(b), 10.2.3(b) Doe v. Brockton Sch. Comm., 3.3 Doe v. Roe Corp., 9.2.3(a) Doe v. Town of Seymour, 4.3.2(d) Doe v. Trustees of Bos. Coll., 8.2.1(b) Doe v. United Consumer Fin. Servs., 10.4 Doe v. Yunits, 10.4 Doe ex rel. Doe v. City of Belleville, 9.3.2(a) Doherty v. Kenseal Constr. Prods. Corp., 2.1.2(b) Dolquist v. Heartland Presbytery, 7.4.2 Donohoe v. Sodexho-Marriott Servs., Inc., 4.3.2(d) Donovan v. Agnew, 3.6.1(a) Donovan v. Chelsea Sch. Comm., 3.6.3 Dothard v. Rawlinson, 3.4 Doucimo v. S & S Corp., Exhibit 8A Douglas v. J.C. Penney Co., 6.3.1 Downs v. MBTA, 4.3.2(c), 4.3.2(f) Dreves v. Hudson Grp. Retail, LLC, 3.6.1(c) Drinkwater v. School Comm. of Boston, 6.3.3 Dube v. Middlesex Corp., 4.3.2(c), 19.3.2(c) Dukes v. NWI Investigative Grp., Inc., 9.2.3(b), 9.2.3(c) Dumas v. Town of Dudley, 9.2.2(a), 9.2.3(c) Duncan-Young v. Pine St. Inn, 6.3.1 Duplessis v. Training & Dev. Corp., 6.2.1 Durante v. Eastern Props., Inc., 2.1.2(b)

E Eckles v. Consolidated Rail Corp., 4.3.2(d) Edsall v. Assumption Coll., 8.2.5 EEOC v. Abercrombie & Fitch Stores, Inc., 7.2.2 EEOC v. Ackerman, Hood & McQueen, Inc., 5.2.2(c) EEOC v. Amego, Inc., 4.3.2(c), 4.3.3(a), 4.3.3(b), Checklist 4.2 EEOC v. Astra, Inc., 2.3.3 MCLE, Inc. | 2nd Edition 2020

EEOC v. Boh Bros. Constr. Co., 3.2, 9.3.2(c) EEOC v. Catholic Univ. of Am., 9.2.2(b) EEOC v. Cleveland State Univ., 3.6.1(c) EEOC v. Commercial Office Prods. Co., 3.6.1(b) EEOC v. Delaware Dep’t of Health & Soc. Serv., 3.6.1(a), 3.6.1(d) EEOC v. First Citizens Bank of Billings, 3.6.1(a) EEOC v. Housing Funding II, Ltd., 5.3.5(e) EEOC v. Humiston-Keeling, Inc., 4.3.2(d) EEOC v. Kohl’s Dep’t Stores, Inc., 4.2.4(c), 4.3.2(e) EEOC v. Massachusetts, 2.2.1(b) EEOC v. Newport Mesa Unified Sch. Dist., 2.2.1(c) EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 8.2.3(d), 8.3.5(b), 8.3.5(c), 9.1, 10.3 EEOC v. Sage Realty Corp., 3.3 EEOC v. Salvation Army, 6.2.2 EEOC v. Sedita, 3.4.1 EEOC v. Shelby Cty., 3.6.1(c) EEOC v. Steamship Clerks Union, Local 1066, 2.1.2(a), 6.2.2 EEOC v. Tree of Life Christian Sch., 3.6.1(d) EEOC v. TriCore Reference Labs., 5.3.4(d) EEOC v. Waffle House, Inc., 2.2.4 EEOC v. Yellow Freight Sys., 4.3.2(c) Elvig v. Calvin Presbyterian Church, 7.4.2 Employment Div., Dep’t of Human Res. of Or. v. Smith, 7.4.2 Emrick v. Libbey-Owens Ford, 4.3.2(d) Emswiler v. Great E. Resort Corp., 3.6.1(a) Erewa v. Reis, Exhibit 8A Espinal v. National Grid NE Holdings 2, LLC, 8.3.3(b) Espinoza v. Farah Mfg. Co., 6.2.2 Estades-Negroni v. Associates Corp. of N. Am., 4.3.2(b), 4.3.2(d) Estate of Douglas McKinley v. Boston Harbor Hotel, Exhibit 8A Estrada-Izquierdo v. Aponte-Roque, 2.1.3 Eternal Word Television Network, Inc. v. Secretary of U.S. Dep’t of Health & Human Servs., 5.3.2 Ethridge v. Alabama, 4.3.3(d) Evans v. Federal Express Corp., 4.2.4(b), 4.3.2(d), 7.2.1 Everett v. Grady Mem’l Hosp. Corp., 5.3.4(d) Everett Indus., Inc. v. MCAD, 4.2.4(d) Everson v. Michigan Dep’t of Corr., 3.4 Ewald v. Royal Norwegian Embassy, 3.6.1(d) C–5

Employment Discrimination in Massachusetts

F Fabian v. Hospital of Cent. Conn., 10.3 Faiola v. APCO Graphics, Inc., 4.3.2(c) Fallon v. Illinois, 3.6.1(c) Fantini v. Salem State Coll., 8.2.2, 8.2.5, 8.3.4 Faragher v. City of Boca Raton, 8.2.2, 8.2.4(a), 8.2.7(b), 8.2.7(c), 8.3.2(b), 8.3.2(c), 8.3.3(a), 8.3.10, 9.3.2(b), 9.3.2(d) Farricy v. Suffolk Cty. Sheriff’s Dep’t, Exhibit 8A Febres v. Challenger Caribbean Corp., 2.1.2(b) Federal Express Corp. v. Holowecki, 2.2.3(a) Fedro v. Reno, 4.3.2(d) Feliciano v. Rhode Island, 4.2.4(a), 4.2.4(b), 4.3.2(d) Feliciano de la Cruz v. El Conquistador Resort & Country Club, 2.1.2(b) Fenn v. Mansfield Bank, 1.2, 4.3.2 Ferman v. Sturgis Cleaners, Inc., 2.2.2(b) Fernandes v. Attleboro Hous. Auth., 2.2.2(b), 2.2.4 Fesel v. Masonic Home of Del., 3.4.1 Figueroa v. Springfield Transit Mgmt., 4.3.2(d) Fijal v. Kentucky Fried Chicken/JTN Food Serv., Inc., 9.2.2(a), 9.2.3(c) Fink v. Printed Circuit Corp., 4.2.3(f), 4.2.4(a) Finke v. Trustees of Purdue Univ., 3.6.1(c) Finkle v. Howard Cty., Md., 10.3 Finlan v. Verizon New Eng., Inc., 4.2.4(b), 4.2.5, 4.3.2(b) Finnegan v. Trans World Airlines, Inc., 2.2.1(c) Fiske v. MeYou Health, Inc., 5.3.4(b) Fiske v. R.P. Liquor, Inc., 8.2.4(c), 8.3.5(c), Exhibit 8A Fite v. Digital Equip. Corp., 2.1.2(b) Fitzgerald v. Barnstable Sch. Comm., 8.2.1(b) Flagg v. AliMed, Inc., 1.2, 4.2.7(c), 4.3.2 Flanagan-Uusitalo v. D.T. Indus., Inc., 4.2.3(c), 4.2.4(a) Fletcher v. Tufts Univ., 4.2.7(c) Flood v. Bank of Am. Corp., 8.3.2(b), 9.2.3(b), 9.2.3(c) Fluet v. Harvard Univ., Exhibit 8A Flynn v. Raytheon Co., 4.2.3(g) Folkerson v. Circus Enters., Inc., Exhibit 8A Fomunyam v. Work, Cmty., Independence, Inc. Eyeglasses, 6.3.1 Fontaine v. Ebtec Corp., 1.2, 8.3.9(d)

C–6

Fontánez-Núñez v. Janssen Ortho LLC, 8.3.2(a), 8.3.2(b) Ford v. Bernard Fineson Dev. Ctr., 2.2.3(a) Ford v. Mabus, 2.1.2(b) Ford v. Schering-Plough Corp., 4.2.7(c) Foresta v. Contributory Ret. Appeal Bd., 4.2.4(b) Forrest v. Brinker Int’l Payroll Co., 8.3.2(a) Forrest v. Wal-Mart, 4.3.2(d) Fort Bend Cty. v. Davis, 8.2.6(a) Forziati v. Gray Box Consultant, 3.6.1(a) 14 Penn Plaza LLC v. Pyett, 2.2.4 Foy v. Mast Indus., Inc., 3.5.3, 5.2.2, 5.3.3, 5.3.5(b) Franchina v. City of Providence, 3.1, 8.2.3(b), 8.2.6(a), 8.2.7(b), 9.2.1(a), 9.3.2(a) Freadman v. Metropolitan Prop. & Cas. Ins. Co., 4.2.4(c), 4.3.2(e) Frederick v. Richardson Elecs., LTD, 5.3.5(b) Freeman v. Duxbury, 4.3.3(c) Freeman v. Town of Duxbury, 4.2.3(g) Freeman v. World Travelogue Co., 3.4 Friedrich v. Holyoke Hosp., Inc., 4.3.2(d) Furtado v. Standard Parking Corp., 4.2.3(g)

G Gaines v. Boston Herald, Inc., 6.2.2 Gallagher v. C.H. Robinson Worldwide, Inc., 9.3.2(c) Galloway v. Mr. G’s Beauty Salon, 5.3.5(d) Galotti v. Town of Belmont, Exhibit 8A Gannon v. City of Boston, 4.3.2(a), 4.3.2(c), 4.3.3(c) Garcia v. Elf Atochem N. Am., 9.3.2(a) García-Ayala v. Lederle Parenterals, Inc., 4.3.2(d), 4.3.2(e), 4.3.3(a) Gargano & Assocs. v. MCAD, 4.2.8 Gargiulo v. Baystate Health, Inc., 2.2.4 Garner v. Wal-Mart Stores, Inc., Exhibit 8A Garrity v. United Airlines, Inc., 4.2.3(g), 4.3.2(d), 4.3.3(a) Gasior v. Massachusetts Gen. Hosp., 2.2.5, 4.3.2(a) Gately v. Massachusetts, 2.2.1(a) Gates v. Flood, 2.2.1(a) Gauthier v. Saturn of Natick, 4.3.2(c) Gauthier v. Sunhealth Specialty Servs., Inc., 4.2.4(a), 4.2.4(c), 5.2.4(b), 5.3.4(d) Gelabert-Ladenheim v. American Airlines, Inc., 4.2.4(a), 4.3.2(c) General Dynamics Land Sys., Inc. v. Cline, 2.1.1, 2.1.3 General Electric Co. v. Gilbert, 3.5.3, 5.2.2(b) 2nd Edition 2020 | MCLE, Inc.

Table of Cases George v. City of Springfield Mun. Hosp., 3.4.1 Gerald v. University of P.R., 8.3.6, 8.3.7 Gerrie v. Karl Storz Endovision, Inc., 9.2.3(e) Gil v. Vortex, LLC, 4.2.4(a) Gill v. Ryder Integrated Logistics, 4.3.2(c), 4.3.3(c) Gillen v. Fallon Ambulance Serv., Inc., 4.2.3(c), 4.3.2(c), 4.3.2(f) Gilman v. Instructional Sys., Inc., Exhibit 8A Glenn v. Brumby, 10.3 Glenn v. General Motors Corp., 3.6.2(a) Global NAPs, Inc. v. Awiszus, 5.2.5(b), 5.3.4(b) Gnerre v. MCAD, 8.2.3(b), 8.3.2(b), 9.3.3(b), Exhibit 8A Gobbi v. DHL Airways Co., 9.2.3(b), 10.2.3(b) Goclowski v. General Elec. Co., 2.2.1(e), Checklist 2.1 Godfrey v. Globe Newspaper Co., 4.2.4(a), 4.2.4(b), 4.3.2(b), 4.3.2(c), 4.3.2(d) Goguen v. Quality Plan Adm’rs, Exhibit 8A Goldman v. First Nat’l Bank of Bos., 5.3.5(f) Gomez-Perez v. Potter, 2.1.1 Goodridge v. Department of Pub. Health, 9.2.3(d), 9.2.4 Gordon v. Earthlink, Inc., 2.1.2(b) Gowen-Esdale v. Franklin Publ’g Co., 5.2.2, 5.2.4 Gray v. New Eng. Tel. & Tel. Co., 2.1.4 Green v. Harvard Vanguard Med. Assocs., Inc., 9.2.3(e) Green v. Wyman-Gordon Co., 8.2.1(a), 8.3.1, 30 Greene v. Walgreen E. Co., 6.2.3 Grenier v. Cyanamid Plastics, 4.3.1, 4.3.2(f) Griffin v. Adams & Assocs., 3.2, 9.3.2(a) Griggs v. Duke Power Co., 1.3, 5.2.2(c), 9.2.4 Griggs v. Hardwick Knitted Fabrics, Inc., 4.2.4(d) Grindley v. Royal Indem. Co., 4.3.2(c) Gross v. FBL Fin. Servs., Inc., 2.1.2, 2.1.2(b), 6.1, 9.2.1(a) Grubb v. W.A. Foote Mem’l Hosp., Inc., 2.2.1(e) Grutter v. Bollinger, 6.3.3 GTE Prods. Corp. v. Stewart, 8.2.8(b), 8.3.6, Exhibit 8A Guckenberger v. Boston Univ., 4.3.2(e) Gudenkauf v. Stauffer Commc’ns, Inc., 5.2.4(a) Gunther v. Gap, Inc., 5.3.4(b) MCLE, Inc. | 2nd Edition 2020

Gunther v. Iowa State Men’s Reformatory, 3.4.1 Gustafson v. Fred Wolferman, Inc., 3.6.1(d) Guzman v. Lowinger, 8.3.1 Guzman-Rosario v. United Parcel Serv., Inc., 4.3.2(c) Gyulakian v. Lexus of Watertown, Inc., 8.3.2(c), 8.3.3(b), 8.3.9(c), 9.3.3(c)

H Haddad v. Wal-Mart Stores, Inc., 2.1.2(b), 8.2.8(b), 8.3.9(c) Hall v. FMR Corp., 6.2.2 Hall v. Nalco Co., 5.3.2 Hallgren v. Integrated Fin. Corp., 4.2.3(b), 4.3.2(c) Hammond v. Carol O’Leary Residential Cleaning Specialist, 5.2.2 Handrahan v. Red Roof Inns, Inc., 4.2.8 Handy v. North End Cmty. Health Ctr., Inc., 8.2.4(c), Exhibit 8A Haraden v. Verizon New Eng., Inc., 4.2.3(c) Harding v. Dana Transp., Inc., 8.2.7(c) Harley v. Costco Wholesale Corp., Exhibit 8A Harlow v. Fitzgerald, 3.8 Harmon v. Malden Hosp., Exhibit 8A Harrington v. City of Attleboro, 3.2 Harris v. Forklift Sys., Inc., 8.2.3(b), 8.3.2(b), 9.3.2(a), 9.3.2(c), 9.3.2(d) Harris v. Harris & Hart, Inc., 4.3.2(f) Harris v. International Paper Co., 6.2.1 Harris Funeral Home v. EEOC, 7.1 Harrison v. Benchmark Elecs. Huntsville, Inc., 4.3.2(f) Hart v. Frank, 4.3.2(c) Hayward v. Massachusetts Water Res. Auth., 4.3.2(d) Hazen Paper Co. v. Biggins, 2.1.3, 2.2.2(a) Healey v. Southwood Psychiatric Hosp., 3.4.1 Hedberg v. Indiana Bell Tel., 4.3.2(e) Helgerson v. Bridon Cordage, Inc., 4.3.3(b) Hennessy v. Perico, Inc., Exhibit 8A Henry v. United Bank, 4.3.2(d) Heraty v. Atlas Oil Co., 4.2.5 Hernandez v. City of Hartford, 5.2.4(b) Hernandez-Loring v. Universidad Metropolitana, 8.3.2(b) Hernandez-Torres v. Intercontinental Trading, Inc., 8.3.6 Hicks v. Concorde Career Coll., 3.6.1(c) Hidalgo v. Overseas Condado Ins. Agencies, Inc., 2.1.2(b)

C–7

Employment Discrimination in Massachusetts Higgins v. New Balance Athletic Shoe, Inc., 3.2, 4.2.6(e), 8.3.2(a), 8.3.5(b), 9.2.1(b), 9.2.2(a), 9.3.2(a), 9.3.2(b), 9.3.2(c) Hiles v. Episcopal Diocese of Mass., 7.4.2 Hill v. J.C. Penney Co., 3.6.1(d) Hillstrom v. Best W. TLC Hotel, 2.1.2(b) Hilton v. Wright, 4.2.3(c) Hinojosa v. Durkee, Exhibit 8A Hively v. Ivy Tech Cmty. Coll. of Ind., 8.3.5(b), 9.2.1(a), 9.2.1(b), 9.2.1(c) Hobby Lobby Stores, Inc. v. Sebelius, 7.1 Hochstetler v. International Bus. Machs., Inc., 4.3.2(c) Hodgens v. General Dynamics Corp., 5.2.5(a) Hodgson v. Brookhaven Gen. Hosp., 3.6.1(c) Hodgson v. Washington Hosp., 3.6.1(c) Hoffman v. Daka, Inc., Exhibit 8A Hoffman-Garcia v. Metrohealth, Inc., 2.1.2(b) Holcomb v. Iona Coll., 9.2.1(c) Holden v. Commission Against Discrimination, 2.1.2(b) Holt v. Gamewell Corp., 2.1.3 Holt v. Minuteman Flames Minor Hockey Ass’n, Exhibit 8A Hongyu Luo v. Tao Ceramics Corp., 15.2.1(e) Hope v. San Ran, Inc., Exhibit 8A Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 7.4.2, 9.2.2(b) Hub Folding Box Co. v. MCAD, 3.3, 9.2.2(a) Hudson v. Barter, 8.2.1(a) Huff v. Chapel Hill Chauncy Hall Sch., 9.2.4 Humphrey v. Memorial Hosps. Ass’n, 4.3.2(e) Hunt-Golliday v. Metropolitan Water Reclamation Dist. of Greater Chi., 5.2.2(c) Hurd v. Massachusetts Port Auth., Exhibit 8A Hurley v. Modern Cont’l Constr. Co., 4.3.2(c) Hyppolite v. Fernald State Sch., 4.2.4(b)

I Ianetta v. Putnam Invs., Inc., 3.2, 8.3.5(b), 9.2.1(b), 9.2.2(a), 9.3.2(c) Igartua v. City of Newton, 4.2.4(a), 4.3.2(c) In re, see name of party Incutto v. Newton Pub. Sch., 4.3.2(c) International Bhd. of Teamsters v. United States, 5.2.2(c) International Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 5.2.2(c), 5.2.2(d), 9.3.2(b) Iwata v. Intel Corp., 4.2.7(c) Izzo v. Genesco, Inc., 4.3.2(c) C–8

J Jackson v. Birmingham Bd. of Educ., 5.2.2(c) Jackson v. Department of Corr., 3.4.1 Jacques v. Clean-Up Grp., Inc., 4.3.2(a), 4.3.2(c), 4.3.2(e) Jaffee v. Redmond, 8.2.7(a) Jagielski v. Bristol Cty. Sheriff’s Office, 9.2.3 Jakimcyzk v. Commonwealth Dep’t of Corr., 3.4.1 James v. Ranch Mart Hardware, Inc., 10.4 James v. Teleflex, Inc., 3.5.2 Jameson v. U.S. Postal Serv., 10.3 Jancey v. School Comm. of Everett, 3.6.2(b) Jefferies v. Harris Co. Cmty. Action Ass’n, 3.5.1 Jennings v. New York State Office of Mental Health, 3.4.1 Jensen v. Frank, 8.2.6(a), Exhibit 8A Jette v. Honey Farms Mini Market, 10.4 Johansen v. NCR Comten, Inc., 8.2.7(a) Johansson v. Massachusetts Dep’t of Corr., 4.2.4(c), 4.3.2(e), 4.3.3(e) Johansson v. MCAD, 4.2.4(b) Johnson v. Boston Edison Co., Exhibit 8A Johnson v. Daniels Bros. Auto Sales, Inc., 8.2.3(b) Johnson v. Fresh Mark, Inc., 10.4 Johnson v. Hondo, Inc., 9.3.2(d) Johnson v. Mayor & City Council of Balt., 2.2.1(a) Johnson v. Plastic Packaging, Inc., 8.2.4(a) Johnson v. Teamsters Local Union No. 559, 6.2.1 Johnson v. Transportation Agency, Santa Clara Cty., 6.3.3 Jones v. City of Bos., 4.3.2(c), 6.2.3 Jones v. Iron Mountain Records Mgmt., 9.2.3(b) Jones v. Nationwide Life Ins. Co., 4.3.2(c), 4.3.2(d), 4.3.2(e) Jones v. Walgreen Co., 4.2.4(a), 4.2.4(c), 4.3.2(c), 4.3.2(e) Jordan v. Prime Laminating, Inc., Exhibit 8A Joseph v. Wentworth Inst. of Tech., 6.1 Joulé, Inc. v. Simmons, 2.2.4 Joyal v. Hasbro, Inc., 2.1.2(b)

K Kampmier v. Emeritus Corp., 9.3.2(c) Katz v. City Metal Co., 4.3.2(c), 4.3.2(e) Kealy v. City of Lowell, Exhibit 8A Keisling v. SER-Jobs for Progress, Inc., 6.3.1 Kelley v. Correction Med. Servs., 2.1.2(b) 2nd Edition 2020 | MCLE, Inc.

Table of Cases Kelley v. Plymouth Cty. Sheriff’s Dep’t, 9.3.3(b), Exhibit 8A Kentucky Ret. Sys. v. EEOC, 2.1.4 Keskinidis v. University of Mass. Bos., 3.8 Khan v. Midwestern Univ., 5.3.4(d) Kimel v. Florida Bd. of Regents, 2.1.1 Kinch v. Quest Diagnostics, Inc., 4.2.4(c), 4.3.2(e) King v. Abdow Corp., 8.3.2(d) King v. Acosta Sales & Mktg., Inc., 3.6.1(a), 3.6.1(c) Kletkotka v. Carlin Combustion Tech., Inc., Exhibit 8A Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 5.3.7 Knidel v. T.N.Z., Inc., 4.3.2 Knight v. Avon Prods., Inc., 2.1.2(b) Knight v. Connecticut Dep’t of Pub. Health, 9.2.2(b) Knott v. Missouri Pac. R.R., 3.3 Kochis v. Massachusetts Dep’t of Soc. Servs., 5.3.4(b) Kolodziej v. Smith, 7.1 Kolstad v. American Dental Ass’n, 8.2.8(d), 8.3.9(c) Kosereis v. Rhode Island, 8.3.2(b) Koster v. Trans World Airlines, Inc., 2.1.2(b) Kouba v. Allstate Ins. Co., 3.6.3 Kraft v. Police Comm’r of Bos., 4.3.2(f) Krauel v. Iowa Methodist Med. Ctr., 5.3.2 Krause v. UPS Supply Chain Sols., Inc., 5.3.4(b), 5.3.5(b), 5.3.5(g) Kuczun v. McCue Corp., 4.2.3(b) Kuketz v. MDC Fitness Corp., 5.3.7 Kvorjak v. Maine, 4.2.4(c), 4.3.2(c), 4.3.2(d), 4.3.2(e)

L La Day v. Catalyst Tech., Inc., 9.3.2(c) Labonte v. Hutchins & Wheeler, 4.2.4(d), 4.2.8, 4.2.9(f), 4.3.2(a), 4.3.3(e), 8.2.8(d), Exhibit 8A LaBrecque v. Sodexho USA, Inc., 4.2.4(a) LaCava v. Lucander, 3.7.2(b) Laffey v. Northwest Airlines, Inc., 3.3, 5.3.8 LaGrant v. Gulf & W. Mfg. Co., 2.2.1(e) Lam v. University of Haw., 3.5.1 Lane v. Laminated Papers, Inc., 5.2.2(a), 5.3.5(f) Lang v. Wal-Mart Stores E., L.P., 4.3.2(c), 5.2.4(b), 5.3.4(d) Langford v. Department of Emp’t & Training, 5.3.3, Exhibit 8A MCLE, Inc. | 2nd Edition 2020

Lattimore v. Polaroid Corp., 6.2.1, 6.3.1 Laurin v. Providence Hosp., 4.2.4(a), 4.3.2(a), 4.3.2(d) Lavalley v. Quebecor World Book Servs., LLC, 4.2.3 Lavelle v. MCAD, 4.2.9(c) Lawless v. Northeast Battery & Alternator, Inc., 9.3.3(b) Lazure v. Transit Express, Inc., Exhibit 8A Leach v. Commissioner of Mass. Rehab. Comm’n, 4.2.4(a), 4.2.4(b), 4.2.4(c), 4.3.2(d) Leary v. Dalton, 4.3.2(d) LeBlanc v. Great Am. Ins. Co., 5.3.5(f) Lebron-Torres v. Whitehall Labs., 4.3.2(c) LeClerc v. Interstate Distrib. Div. of Hudson News Co., 8.2.6(b), Exhibit 8A Ledbetter v. Goodyear Tire & Rubber Co., 3.6.3 Lee v. City of Columbus, Ohio, 4.3.2(f) Lee-Crespo v. Schering-Plough Del Caribe, Inc., 8.3.3(a), 8.3.6, 9.3.2(a), 9.3.2(c), 9.3.2(d) LeGoff v. Trustees of Bos. Univ., 3.6.1(a) Lemire v. Silva, 4.3.2(c) Lessard v. Osram Sylvania, Inc., 4.2.3(a), 4.3.2(c) Levesque v. Quality Brands Liquor, 8.2.8(b), Exhibit 8A Levin v. Delta Air Lines, 5.3.4(g) Lewis v. Area II Homecare for Senior Citizens, Inc., 7.1, 7.3 Lewis v. City of Chi., 6.1 Lewis v. Gillette Co., 6.2.1, 8.3.2(b) Lewis v. High Point Reg’l Health Sys., 10.3 Lewis v. Massachusetts Inst. of Tech., 4.2.4(a) Li v. Reade, 6.2.2 Lie v. Sky Publ’g Corp., 9.2.2(a), 10.2.2, 10.4 Ligenza v. Genesis Health Ventures of Mass., Inc., 8.2.4(c), 8.3.3(b), 8.3.5(c), Exhibit 8A Lipchitz v. Raytheon Co., 1.2, 2.1.2(b), 3.6.3, 4.2.6(c), 4.2.6(d), 5.2.2(c), 5.3.5(a), 6.1, 6.2.4, 6.3.1, Checklist 2.1, Exhibit 8A Lipsett v. University of P.R., 3.8, 5.3.5(a), 6.2.1, 8.2.1(b), 8.3.2(d) Loeb v. Textron, Inc., 1.2, 2.1.2(b) Logan v. Brook Farm Egg, Exhibit 8A Lolos v. Solutia, Inc., 4.2.4(b), 4.3.2(d), 4.3.3(e) Lopes v. City of Brockton, 6.1 Lopez v. City of Lawrence, 6.1 Lopez v. Commonwealth, 1.3, 3.7.1, 6.1, 7.2 C–9

Employment Discrimination in Massachusetts Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 10.3 Lopilato v. Boston Pub. Sch., 6.2.3 Los Angeles, City of, Dep’t of Water & Power v. Manhart, 9.2.1(a), 9.2.1(b) Love v. First Transit, Inc., 5.3.4(d) Lowery v. Klemm, 8.2.1(a), 8.3.1 Luccardi v. Town of Agawam Police Dep’t, 4.3.3(b) Lucero v. Hart, 4.3.2(c) Luciano v. Coca-Cola Enters., Inc., 8.3.2(a), 8.3.6 Lukacinsky v. Panasonic Serv. Co., 4.2.9(b) Lusardi v. Department of the Army, 10.3 Luyen Huu Nguyen v. William Joiner Ctr. for the Study of War & Soc. Consequences, 1.3 Lynn Teachers Union, Local 1037 v. MCAD, 5.3.5, 8.2.6(a), Exhibit 8A Lyons v. Hader-Seitz, Inc., 2.2.2(a) Lysak v. Seiler Corp., 5.3.3

M MacCormack v. Boston Edison Co., 5.3.8, 8.2.5(a), Exhibit 8A MacIssac v. Remington Hospitality, Inc., 3.3 Macy v. Holder, 10.3 Magane v. Corcoran Mgmt. Co., 9.2.3(b), 10.2.3(b) Magin v. Massachusetts State Police, 3.1 Mahon v. Boston Pub. Sch., 2.1.2(b) Maldanado-Catala v. Municipality of Naranjito, 9.3.2(a) Malloch v. Town of Hanover, 4.3.2(c) Mammone v. President & Fellows of Harvard Coll., 4.2.3(g), 4.2.4(a), 4.2.4(b), 4.3.2(d), 4.3.3(a) Mancini v. City of Providence by & through Lombardi, 4.3.2(c) Manning v. Boston Med. Ctr. Corp., 3.6.1(a) Marchant v. Tsickritzis, 7.2.2 Marcoux v. Maine, 3.6.1(b), 3.6.3 Marinelli v. Potter, 2.2.2(a) Marrero v. Goya of P.R., Inc., 8.3.2(b) Martin v. St. Luke’s Episcopal Hosp., 4.2.4(a) Marzano v. Universal Studio, Inc., 4.2.4(b) Massachusetts Ass’n of Minority Law Enf’t Officers v. Abban, 6.3.3 Massachusetts Elec. Co. v. MCAD, 5.2.2(a), 5.3.2, 5.3.5 Massasoit Indus. Corp. v. MCAD, 2.1.2(b), 4.2.3(b), 4.3.2(c)

C–10

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 7.1 Matthews v. Ocean Spray Cranberries, Inc., 1.2, 6.1, 6.3.2, 10.2.3(a), Checklists 2.1, 6.1 Maxwell v. City of Tucson, 3.6.1(a) Mayhew v. Stetson Mgmt. Corp., 8.2.7(c) Mayorga v. Alorica, Inc., 5.3.4(d) Mazeikus v. Northwest Airlines, Inc., 4.3.2(e) Maziarz v. Brennan, 2.2.3(a) Mazzarella v. U.S. Postal Serv., 4.3.2(c), 4.3.2(d), 4.3.3(c) MBTA v. MCAD, 5.3.4(b), 7.2, 7.2.1, 7.4 MCAD v. Berkshire Humane Soc’y, 4.2.3(g), 4.2.4(a) MCAD v. Concord Valley Counseling, 5.2.5(b) MCAD v. Electro-Term, Inc., 6.2.1 MCAD v. MBTA, 4.2.4(c) MCAD v. Medical Weight Loss Ctr., Inc., Exhibit 8A MCAD v. Northeastern Univ., 3.6.3 MCAD v. State St. Bank & Tr. Co., 5.2.2 MCAD & Dawn Sawyer v. Wimpy’s Rest., 4.2.3(a) MCAD & Jaramillo-Duque v. Concord Valley Counseling, 5.3.4(b) MCAD & Ravesi v. Naz Fitness Grp., 3.2, 3.3 MCAD & Sullivan v. Connoisseurs Prods. Corp., 5.2.2 McAuliffe v. Suffolk Cty. Sheriff’s Dep’t, Exhibit 8A McCarty v. Marple Township Ambulance Corps, 4.2.4(a) McConnell v. General Tel Co. of Cal., Exhibit 8A McDonald v. Federal Labs, Inc., 4.2.8 McDonald v. Menino, 4.3.3(a) McDonald v. Santa Fe Trails Transp. Co., 6.2.3 McDonnell v. Certified Eng’g & Testing Co., 3.7.2(b), 4.3.2(c), 5.2.2(c), 5.2.4, 5.2.4(a), 5.3.4(d), 7.2 McDonnell Douglas Corp. v. Green, 1.2, 2.1.2(b), 2.2.1, 3.6.1(c), 3.6.3, 4.2.6(c), 4.2.6(d), 5.2.2(c), 5.3.5, 5.3.5(a), 6.2.4, 6.3.1, 8.2.7(a) McDonough v. Donohue, 4.3.2(c) McGahan v. Kimball, Bennett, Brooslin & Pava, 4.3.2(d) McGrath v. Local Union No. 12004, 9.2.2(c), 9.2.3(b), 10.2.3(b) McKellips v. Franciscan Health Sys., 5.3.4(d) 2nd Edition 2020 | MCLE, Inc.

Table of Cases McKelvey v. Pierce, 7.4.2 McKinnon v. Kwong Wah Rest., 5.3.7 McLaughlin v. National Grid USA, 6.2.1 McLaughlin v. Richland Shoe Co., 3.6.1(a) McMillan v. Massachusetts Soc’y for Prevention of Cruelty to Animals, 3.6.1(a), 3.6.1(b), 3.6.1(c), 3.6.1(d), 3.6.2(a), 3.6.3 McMullin v. Bull HN Info. Sys., Inc., 2.1.3 McNiff v. Town of Dracut, 4.2.4(a) Meacham v. Knolls Atomic Power Lab., 2.1.2(a), 2.2.1(b) Medeiros v. Penske Truck Leasing, 9.3.3(b) Medina-Munoz v. R.J. Reynolds Tobacco Co., 8.2.7(a) Melanson v. Rantoul, 3.6.1(d), 3.6.3 Melnychenko v. 84 Lumber Co., 8.2.3(c), 8.2.5(c), 8.3.2(a), 8.3.5(a), 9.2.3(b), 9.3.1, 9.3.3(a), 9.3.3(b), Exhibit 8A Mengine v. Runyon, 4.3.2(e) Mercado v. Manny’s T.V. & Appliance, Inc., 4.2.3(a) Mercado v. Puerto Rico, 4.2.3(c) Mercurio v. Atamian Volkswagen, Inc., 5.2.2(c) Meritor Sav. Bank, FSB v. Vinson, 4.3.1, 8.2.1(b), 8.2.3(b), 8.3.1, 9.3.2(a), 9.3.2(b), 9.3.3(a), Exhibit 8A Messina v. Araserve, Inc., 8.3.3(a), Exhibit 8A Michel v. Factory Mut. Eng’g Corp., Exhibit 8A Miller v. Berkshire Hospitality Corp., Exhibit 8A Miller v. Verizon Commc’ns, Inc., 4.2.3(f), 4.2.3(h), 4.2.4(a), 4.3.3(a) Millett v. Lutco, Inc., 3.3, 9.2.3(b), 10.2.2, 10.2.3(b) Minicucci v. Charles Hotel, 4.3.2(c), 5.2.4(a) Miranda v. IPR Pharms., 3.6.1(a) Mitchell v. Axcan Scandipharm, Inc., 10.3 Mitchell v. Forsyth, 3.8 Modern Cont’l/Obayashi v. MCAD, 8.2.4(c), 9.2.3(b), 9.3.3(b) Moebius v. TharpeRobbins Co., 4.2.4(a), 4.3.2(c) Molloy v. Blanchard, 2.1.2(b) Monahan v. Department of Mental Retardation, Exhibit 8A Monell v. Department of Soc. Servs., 3.8 Monette v. Electronic Data Sys. Corp., 4.3.2(d), 4.3.3(b)

MCLE, Inc. | 2nd Edition 2020

Monteagudo v. Asociación de Empleados Del Estado Libre Asociado de P.R., 8.2.4(a), 8.2.7(b) Moore v. Boston Fire Dep’t, 9.2.3(b), 10.2.3(b) Moreau v. Massachusetts Mut. Life Ins. Co., 4.2.4(c), 4.3.2(e) Morehouse v. Berkshire Gas Co., 8.2.4(a), 8.2.5(b), 8.3.3(a), Exhibit 8A Morgan v. BC Bos., 9.2.2(a), 9.2.3(c), 9.2.3(e) Morrison v. Carleton Woolen Mills, Inc., 8.3.2(a), Exhibit 8A Morrissey v. Boston Five Cents Sav. Bank, 2.2.1(c) Mortimer v. Atlas Distr. Co., Exhibit 8A Moser v. Cheney, 5.2.2(c) Moskowitz v. Trustees of Purdue Univ., 2.2.2(a) Mt. Lemmon Fire Dist. v. Guido, 2.1.1 Muise v. Credit Exchange, Exhibit 8A Mulero-Rodriguez v. Ponte, Inc., 6.2.2, 6.3.1 Mullenix v. Forsyth Dental Infirmary for Children, 3.6.3 Mullin v. Raytheon Co., 2.1.2(a) Mulloy v. Acushnet Co., 4.3.2(c) Murphy v. United Parcel Serv., Inc., 4.2.3(c), 4.2.3(h), 4.3.2(c) Murray v. Sharp Air Freight Servs., Inc., Exhibit 8A Murray v. Warren Pumps, LLC, 4.2.9(c), 4.3.2(e) Muzzy v. Cahillane Motors, Inc., 8.3.2(b), 8.3.2(c), 9.2.2(d), 9.3.3(b), Exhibit 8A

N Nagle v. Fairfield Financial Mortgage Grp., Inc., 8.3.2(c) National R.R. Passenger Corp. v. Morgan, 8.2.6(a), 8.3.8 Navarro v. Pfizer Corp., 5.3.4(d) Navarro v. U.S. Tsubaki, Inc., 6.1 Nayak v. St. Vincent Hosp. & Health Care Ctr., 5.3.4(d) Negley v. Judicial Council of Cal., 3.6.1(c) Nelson v. Thornburgh, 4.3.3(b) Nevada v. U.S. Dep’t of Labor, 3.6.1(c) New Bedford, City of v. MCAD, 4.1.1, 4.2.1, 4.2.3, 4.2.3(c), 4.3.2(c) New York & Mass. Motor Serv., Inc. v. MCAD, 7.3, 7.4 Newell v. Celadon Sec. Servs., Inc., 8.3.3(b) Newport News Shipbldg. & Dry Dock Co. v. EEOC, 9.2.1(a), 9.2.1(c), 9.2.3(d), 9.3.2(b) C–11

Employment Discrimination in Massachusetts Nguyen v. University of Mass., 6.2.2 Noonan v. Public Emp. Ret. Admin., 4.2.4(a) Norman v. Andover Country Club, 3.5.3, 5.3.5(d) Northeast Metro. Reg’l Vocational Sch. Dist. Sch. Comm. v. MCAD, 3.2 Noviello v. City of Bos., 8.3.2(b), 8.3.3(a), 8.3.3(b), 9.2.3(e) Nowe v. Shaw’s Supermkts., Inc., 4.3.2(c) Ntapalis v. Halem & Schrader, PC, 3.5.4, 5.2.3, 5.3.5(e)

O Obergefell v. Hodges, 9.2.3(d) O’Brien v. Massachusetts Inst. of Tech., 4.2.3(a) O’Brien v. MIT, 4.3.2(c) Ocean Spray Cranberries, Inc. v. MCAD, 4.2.3, 4.2.3(a), 4.2.3(f), 4.2.4(b), 4.2.4(c), 4.2.9(b), 4.3.2(c), 4.3.2(e), 8.3.8 O’Connell v. Bank of Bos., 2.3.2(b) O’Connell v. Chasdi, 8.2.6(c) O’Connor v. Consolidated Coin Caterers Corp., 2.1.2(b) O’Donnell v. Burlington Coat Factory Warehouse, Inc., 3.3 O’Donnell v. Gonzales, 4.2.3(a), 4.2.4(a) Oliver v. Digital Equip. Corp., 2.1.2(b) Olivera v. Nestlé P.R., Inc., 2.1.4 Olsen v. Lenco Indus., Inc., Exhibit 8A Oncale v. Sundowner Offshore Servs., Inc., 8.2.3(b), 8.2.3(c), 8.3.2(a), 8.3.2(b), 8.3.2(c), 8.3.5(a), 9.2.1(a), 9.3.1, 9.3.2(a), 9.3.2(b), 9.3.2(c), 9.3.2(d), 9.3.3(a), 9.3.3(b) Opinion of the Justices to the House of Representatives (1996), 7.1, 7.2.1 O’Regan v. Arbitration Forums, Inc., 3.5.2 Orell v. UMass Mem’l Med. Ctr., Inc., 4.2.7(a) O’Rourke v. City of Providence, 8.2.3(b), 8.2.6(a), 8.3.9(a), 9.3.2(b), 9.3.2(d) Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc., 4.3.2(d) Oscar Mayer & Co. v. Evans, 2.2.3(c) O’Shea v. Great Beginning Hair Salon, 5.3.5(g) Osmani v. State St. Bank & Trust Co., 3.5.3 Oubre v. Entergy Operations, Inc., 2.3.4

P Pacific Mut. Ins. Co. v. Haslip, 8.2.7(a)

C–12

Packer v. U.S. Comm’n on Sec. & Cooperation in Europe, 3.8 Pacourek v. Inland Steel Co., 5.3.2 Pagliarini v. General Instrument Corp., 2.1.3 Palmer v. J.M. Davis Design, Inc., 5.2.5(b) Pardo v. General Hosp. Corp., 9.2.2 Parent v. Spectro Coating Corp., Exhibit 8A Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 6.3.3 Parker v. Universidad de P.R., 4.2.7(b) Parr v. Woodmen of the World Life Ins. Co., 9.2.1(c) Parra v. Four Seasons Hotel, 2.1.2(b) Partners Healthcare Sys. v. Sullivan, 9.2.2(a), 9.2.3(d) Passer v. American Chem. Soc’y, 2.2.1(c) Patel v. Everett Indus., 4.3.2(d) Patterson v. McLean Credit Union, 3.7.1 Patterson v. Xerox Corp., 5.2.4(b) Pelletier v. Town of Somerset, 2.2.3(b), 9.2.2, 9.2.2(d) Pembauer v. City of Cincinnati, 3.8 Pena v. Honeywell Int’l, Inc., 4.3.3(e) Pennsylvania State Police v. Suders, 8.2.2, 8.2.3(b), 8.2.4(a), 8.2.8(b), 8.3.3(a), 8.3.6, 8.3.9(b) Perez v. Greater New Bedford Vocational Tech. Sch. Dist., 4.3.2 Perez v. Horizon Lines, Inc., 8.3.2(c), 8.3.7 Perez-Cordero v. Wal-Mart P.R., Inc., 8.3.3(a), 9.3.2(b) Perry v. Franklin Pub. Schs., 2.1.2(b) Perry v. Massachusetts Dep’t of Corr., 9.3.3(b) Petrillo v. Boston Water & Sewer Comm’n, 4.3.2(d) Petsch-Schmid v. Boston Edison Co., 4.2.3(c) Phelps v. Optima Health, Inc., 4.2.4(c), 4.3.2(c), 4.3.2(d), 4.3.2(e) Phillips v. Martin Marietta Corp., 3.5, 9.2.1(a), 9.2.1(b), 9.3.2(b) Piatti v. Jewish Cmty. Ctrs. of Greater Bos., 7.4.1, 9.2.2(b) Picot v. New Eng. Tel. & Tel., 4.3.3(a) Pielech v. Massasoit Greyhound, Inc., 7.1, 7.2.1 Pierce v. Somserset Sch. Dep’t, 4.3.2(e) Pierson v. Stembridge, 2.1.2(b), 4.3.2(d) Plante v. Shawmut Bank, N.A., 2.1.2(b), 4.2.3(b), 4.2.4(a), 4.3.2(c) Poh v. Massachusetts Corr. Officers Federated Union, 4.2.3(f) Ponte v. Steelcase, Inc., 8.3.2, 8.3.2(b) 2nd Edition 2020 | MCLE, Inc.

Table of Cases Porio v. Department of Revenue, 1.3, 2.1.2(a) Powell v. City of Pittsfield, 4.3.3(c) Powell v. Las Vegas Hilton Corp., Exhibit 8A Powers v. H.B. Smith Co., 4.2.8 Prader v. Leading Edge Prods., Inc., Exhibit 8A Pressman v. Brigham Med. Grp. Found., Inc., 4.3.3(e) Price v. Northern States Power Co., 3.6.1(a), 3.6.1(c) Price Waterhouse v. Hopkins, 3.2, 9.1, 9.2.1(b), 9.2.2(a), 9.3.2(b), 9.3.2(c), 10.2.2, 10.3 Provencher v. CVS Pharmacy, 9.2.3(e) Prowel v. Wise Bus. Forms, Inc., 3.2 Przybycien v. Aid Maint. Co., Exhibit 8A Pugsley v. Human Res. Div., 3.4 Pugsley v. Police Dep’t of Bos., 3.4, 3.4.1, 9.2.2(b) Pulido v. Department of Corr., Exhibit 8A Pyrcz v. Bradford Coll., 4.2.4(d), 4.3.3(e)

Q Queen v. Licata’s Seafood Rest., 3.6.1(c) Quick v. Donaldson Co., 8.2.3(b) Quiles-Quiles v. Henderson, 4.2.3(c), 4.2.7(c), 4.3.2, 4.3.2(c) Quinlan v. Elysian Hotel Co., 3.2, 3.5.5 Quint v. A.E. Staley Mfg. Co., 4.2.4(a), 4.2.8, 4.3.2(c)

R R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 10.1, 10.3 Radabaugh v. Zip Feed Mills, Inc., 2.1.4 Raffurty v. Keyland Corp., Exhibit 8A Rainey v. Monsanto Co., Exhibit 8A Ralph v. Lucent Techs. Corp., 4.2.4(b) Ramon-Oliveras v. Puerto Rico Elec. Power Auth., 4.2.3(d), 4.3.2(c) Ramos v. Baxter Healthcare Corp. of P.R., Inc., 6.2.2 Ramos-Echevarria v. Pichis, Inc., 4.2.3(a), 4.3.2(c) Ramos-Perez v. National Life Ins. Co., 9.2.1(b) Ramsdell v. Western Mass. Bus Lines Inc., 8.2.3(b), 8.3.2(c), 9.3.3(b), Exhibit 8A Ransom v. Arizona Bd. of Regents, 4.3.3(b) Rathbun v. Autozone, Inc., 6.3.1 Raytheon Co. v. Hernandez, 1.3 Reade v. Franklin/Hampshire Emp’t & Training Consortium, 4.3.2(d), 4.3.2(e) MCLE, Inc. | 2nd Edition 2020

Reardon v. Massachusetts Gen. Hosp., 4.2.6(c) Recupero v. Terri’s Little Pumpkins, 5.2.2 Reed v. LePage Bakeries, Inc., 4.2.6(e), 4.3.2(a), 4.3.2(b), 4.3.2(d), 4.3.2(e), 4.3.3(a), 4.3.3(b) Reed v. MBNA Mktg. Sys., 8.3.3(b) Reeves v. Sanderson Plumbing Prods., Inc., 1.2, 2.1.2(b), 5.2.2(c) Reigel v. Kaiser Found. Health Plan of N.C., 4.3.3(b) Rene v. MGM Grand Hotel, Inc., 9.3.2(c) Rennie v. United Parcel Serv., 4.3.2(e) Rhoades v. Young Women’s Christian Ass’n, 3.6.1(a), 3.6.1(c) Ricci v. DeStefano, 6.2.3 Rice v. City of Cambridge Historical Comm’n, 5.2.2 Richards v. Bull HN Info. Sys., Inc., 8.2.3(b), Exhibit 8A Richards v. Fernald State Sch., Exhibit 8A Richardson v. Friendly Ice Cream Corp., 4.2.4(a), 4.2.6(e), 4.3.2(c), 4.3.2(d) Richmond v. Roxbury Comprehensive Cmty. Health Ctr. Inc., 9.2.2, 9.2.2(d) Riggs v. Town of Oak Bluffs, Exhibit 8A Rios-Jimenez v. Principi, 8.3.2(b) Ritchie v. Department of State Police, 8.3.5(d) Rivas v. Federacion de Asociaciones Pecuarias, 2.1.3 Rivera v. HFS Corp., 9.2.1(b) Rizo v. Yovino, 3.6.1(c), 3.6.3 Robar v. International Longshoremen’s Ass’n, 3.1 Robertson v. Corval Constructors, Inc., 4.2.3(c) Robino v. Iranon, 3.4.1 Robinson v. Children’s Hosp. Bos., 7.4 Robinson v. City of Boston, 3.2.1, 4.3.2(a) Robinson v. Haffner’s Serv. Stations, Inc., Exhibit 8A Robinson v. Shell Oil Co., Exhibit 8A Rodriguez v. Adams Rest. Grp., 3.6.1(c) Rodriguez-Hernandez v. Miranda-Velez, Exhibit 8A Rogers v. Missouri Pac. R.R. Co., 1.1 Rojas v. Roman Catholic Diocese of Rochester, 7.4.2 Roman-Oliveras v. Puerto Rico Elec. Power Auth., 4.2.7(a) Rome v. Transit Express, 9.2.3(b) Rooney v. Bank of Am., 2.1.4 Rosa v. Park W. Bank & Tr. Co., 10.2.2, 10.3 C–13

Employment Discrimination in Massachusetts Rosado v. American Airlines, 9.2.1(b) Rosario v. Department of the Army, 9.3.2(b), 9.3.2(c), 9.3.2(d) Rosati v. Town of Warren Bd. of Health, 9.3.3(b), Exhibit 8A Rosemond v. Stop & Shop Supermkt. Co., 8.2.4(a), 8.3.3(a), 8.3.3(b) Ross v. MBTA, 4.3.2(d) Rossiter v. Potter, 2.1.1, 2.1.2(b), 2.2.3(a) Roughneen v. Bennington Floors, Inc., 9.3.3(b) Rounds v. Department of Corr., Exhibit 8A Rowe v. American Paper Prods., Inc., Exhibit 8A Rowlett v. Anheuser-Busch, Inc., 8.2.7(a) Roy v. New Eng. Steak House, Inc., Exhibit 8A Ruffino v. Earthwatch Inst., 4.3.2(a), 8.3.4 Ruffino v. State St. Bank & Tr. Co., 5.3.7, 8.2.6(c), 9.3.3(b), Exhibit 8A Ruiz-Justiniano v. U.S. Postal Serv., 3.6.1(a) Rushford v. Bravo’s Pizzeria & Rest., Exhibit 8A Russell v. Cooley Dickinson Hosp., Inc., 4.2.4(b), 4.2.4(c), 4.3.2(d), 4.3.3(e) Russell v. Frank, 4.3.2(c), 4.3.2(f), 4.3.3(a) Russell v. Hillcrest Educ. Ctrs., Inc., Exhibit 8A

S Sadoski v. Deerfield Plastics Co., 4.3.2(e) Said v. Northeast Sec., 7.5.1(b), Exhibit 8A Saks v. Franklin Covey, Inc., 5.3.2 Salem, City of v. MCAD, 1.2, 5.2.2(c), 6.1 Salvi v. Suffolk Cty. Sheriff’s Dep’t, 8.3.5(b), 8.3.6, 9.2.2(a), 9.2.3(b) Sanchez-Estrada v. MAPFRE Praico Ins. Co., 5.3.5(g) Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 7.2.3 Sanderson v. Town of Wellfleet, Exhibit 8A Sanford v. Main St. Baptist Church Manor, 9.2.2(c) Sansoucy v. Southcoast Health Sys., 8.3.8 Santiago v. Department of Corr., 6.2.2 Santiago v. Sentinel Sec., Inc., 8.2.8(a) Santiago-Ramos v. Centennial P.R. Wireless Co., 5.3.5(e) Sarin v. Raytheon Co., 8.3.3(b), Exhibit 8A Sarni Original Dry Cleaners, Inc. v. Cooke, 3.4, 7.4.1, 9.2.2(b) Sauceda v. University of Tex., 3.6.1(c) Sauer v. Belfor USA Grp., Inc., 8.3.3(a), 8.3.6 C–14

Saxe v. Baystate Med. Ctr., Inc., 8.3.3(b) Sbrogna v. ChipCom Corp., 5.2.4(a), 5.2.4(b), 5.2.5(b) Scaife v. Florence Pizza Factory Corp., 5.2.2 Scarlett v. City of Boston, 2.1.2(b), 6.1 Schleicher v. Preferred Sols., Inc., 3.6.1(c) School Comm. of Bos. v. Labor Relations Comm’n, 2.1.2(b) School Comm. of Braintree v. MCAD, 1.3, 5.2.2, 5.2.2(a), 5.2.2(c), 5.2.4(a), 5.3.2, 5.3.5(c), 9.2.4 School Comm. of Brockton v. MCAD, 3.5.3, 5.2.2, 5.3.5 School Comm. of Norton v. MCAD, 4.2.3(a), 4.2.4(c) Schroer v. Billington, 3.2, 3.3, 10.3 Schuette v. Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality By Any Means Necessary (BAMN), 6.3.3 Schwenk v. Hartford, 10.2.2, 10.3 Scott v. Encore Images, Inc., 4.3.2 Sebastino v. Hi-Tech Mold & Tool, Inc., 4.2.4(a) Seifaee v. Areva, Inc., 2.1.2(a) Seligson v. Massachusetts Inst. of Tech., 3.6.1(b), 3.6.3 Sellers v. Massachusetts Trial Court, 7.2.1, 7.4 Sensing v. Outback Steakhouse of Fla., 4.2.3(c), 4.2.4(a), 5.3.4(b) Shanley v. Pub 106, Inc., 8.3.7, Exhibit 8A Sharp v. Aker Plant Servs. Grp., Inc., 2.1.4 Shazor v. Professional Transit Mgmt., Ltd., 3.5.1 Sheehan v. City of Gloucester, 4.2.3(c), 4.2.4(a) Shepherd v. Slaters Steel Corp., 9.3.2(c) Sheriff of Suffolk Cty. v. Jail Officers & Emps. of Suffolk Cty., 8.3.9(b) Sherman v. American Cyanamid Co., 3.5.2 Silvestris v. Tantasqua Reg’l Sch. Dist., 3.6.2(a) Simonton v. Runyon, 9.2.1(b), 9.3.2(c) Sinai v. New Eng. Tel. & Tel. Co., 6.1 Singleton v. Sinclair Broad. Grp., Inc., 4.2.3(a), 4.2.4(a), 4.2.4(b) Siu v. De Alwis, 9.3.2(c) Sivieri v. Department of Transitional Assistance, 3.5.5, 5.2.3, 5.3.5(e) Sleeper v. New Eng. Mut. Life Ins. Co., 4.3.2 Smiley v. Acme Wholesale, Inc., 8.2.6(b) Smith v. Bell Atl., 4.2.8, 4.3.2(c)

2nd Edition 2020 | MCLE, Inc.

Table of Cases Smith v. Brimfield Precision, Inc., 9.3.3(a), 9.3.3(b), Exhibit 8A Smith v. City of Jackson, Miss., 1.3, 2.1.2(a) Smith v. City of Salem, 10.3 Smith v. Clay Chevrolet, Inc., 6.1 Smith v. F.W. Morse & Co., 5.2.2(c), 5.3.5, 5.3.5(a), 5.3.5(c), 5.3.5(f), 5.3.5(g) Smith v. Midland Brake, Inc., Div. of Echlin, Inc., 4.3.2(d) Smith v. Sheahan, 8.2.3(b) Smith v. Stratus Comput., Inc., 6.3.2 Smith v. Wade, 3.8 Smith Coll. v. MCAD, 2.1.2(a), 5.3.5, 5.3.5(a) Smith-Pereira v. Coffees of the World, Exhibit 8A Smith-Somers v. Fathers & Sons Pizza, Inc., Exhibit 8A Snelling v. Fall Mountain Reg’l Sch. Dist., 9.2.1(b) Sobocinski v. United Parcel Serv., Inc., 9.3.3(c) Socarides v. Camp Edwards Troop Welfare Council, Inc., Exhibit 8A Society of Jesus of New Eng. v. Commonwealth, 7.4.2 Sol v. Genzyme Corp., 6.1, 6.3.2 Soriano v. City of Lawrence Police Dep’t, Exhibit 8A Soto-Martinez v. Colegio San Jose, Inc., 9.2.1(b) Spain v. Gallegos, Exhibit 8A Speigner v. Shoal Creek Drummond Mine, 8.3.11 Sprague v. United Airlines, Inc., 4.2.8 Springfield Bd. of Police Comm’rs v. MCAD, 8.2.7(a) Sprint/United Mgmt. Co. v. Mendelsohn, 2.1.2(b) St. Francis Coll. v. Al-Khazraji, 6.2.2 St. Laurent v. United Parcel Serv. Inc., 4.2.4(b) St. Mary’s Honor Ctr. v. Hicks, 1.2, 5.2.2(c), 5.3.5(a), 5.3.5(g), 10.2.3(a) State Farm Mut. Auto Ins. Co. v. Campbell, 4.2.8 Stephens v. Global NAPs, 5.3.4(b) Stewart v. Kugliowska, 5.3.7 Stoll v. State St. Stock Exch., Inc., 9.2.3(b) Stone v. Mt. Vernon, 4.3.3(b) Stonehill Coll. v. MCAD, 2.1.2(b), 2.2.3(b), 3.6.2(a), 3.7.1, 4.2.8, 4.2.9(c), 8.2.8(c), 8.3.9(a) Storrs v. University of Cincinnati, 3.6.1(b) MCLE, Inc. | 2nd Edition 2020

Stotter Div. of Graduate Plastics Co. v. District 65 UAW, AFL-CIO, 23.8.9 Suarez v. Pueblo Int’l, Inc., 8.3.6 Suffolk Cty. Sheriff’s Dep’t v. MCAD, 6.3.2 Suhrawardy v. Kelly Honda, 7.2.1, 7.4 Sullivan v. Boston Gas Co., 4.3.3(e) Sullivan v. Liberty Mut. Ins. Co., 1.2, 1.3, 2.1.2(a), 2.1.2(b), 4.3.2(a), 5.2.2(c), 6.1 Sullivan v. Neiman Marcus Grp., Inc., 4.2.3(c), 4.2.4(a) Sullivan v. Raytheon Co., 4.2.4(c), 4.2.4(d), 4.3.2(e) Surprise v. Innovation Grp., Inc., 4.2.7(c) Suter v. University of Tex. at San Antonio, 3.6.1(c) Sutton v. United Air Lines, Inc., 4.2.3(h), 4.3.1, 4.3.2(c) Swallows v. Barnes & Noble Book Stores, Inc., 9.2.2(c) Sweeney v. K-Mart Corp., Exhibit 8A Swenson v. Buffalo Lodging Assocs., LLC, 5.3.7

T Tanner v. Prima Donna Resorts, 9.3.2(c) Tapia-Tapia v. Potter, 2.2.3(a) Tardie v. Rehabilitation Hosp. of R.I., 4.2.3(a), 4.3.2(c) Tate v. Department of Mental Health, 4.2.3(g), 4.3.3(a), 8.2.5(a), 9.2.3(e), Exhibit 8A Taub v. Frank, 4.3.2(c) Taylor v. City of Shreveport, 4.3.2(f) Taylor v. Principal Fin. Grp., 4.3.2(e) Temple Emanuel of Newton v. MCAD, 2.2.3(b), 7.4.2, 9.2.2(b) Templeton v. Mansfield Pub. Sch., 2.1.4 Terry v. SimplexGrinnell LP, 4.3.2(d) Tetro v. Elliot Popham Pontiac, Oldsmobile, Buick & GMC Trucks, 9.2.1(c) Texas Dep’t of Cmty. Affairs v. Burdine, 2.1.2(b), 5.2.2(c), 5.3.5(a), 6.2.4, 10.2.3(a) Thaifa v. White Hen Pantry & Sannizzaro, 5.2.2(c) Theroux v. Stephen Singer, DDS, PC, 5.3.2, 5.3.4(f) Thibodeaux-Woody v. Houston Cmty. Coll., 3.6.1(c) Thirkield v. Neary & Hunter OB/GYN, LLC, 8.3.6, 8.3.10(f) Thomas v. Corwin, 4.3.2(f) Thomas v. Eastman Kodak Co., 2.1.2(b), 6.1, 6.2.4 C–15

Employment Discrimination in Massachusetts Thomas O’Connor Constructors, Inc. v. MCAD, 6.2.1, 8.2.4(c), 8.3.5(c) Thompson v. Coca-Cola Co., 6.2.1, 8.3.2(b) Thornburgh v. Gingles, 3.7.2(b) Thurdin v. SEI Bos., LLC, 3.7.1, 3.7.2(a), 5.2.2(a), 5.3.2, 7.2, 8.2.1(a) Tierney v. Beef ‘n Ale Rest., 5.3.3 Timko v. City of Bos., Exhibit 8A Tinory v. Autozoners, LLC, 9.2.1(b) Tobin v. Liberty Mut. Ins. Co., 4.2.4(b), 4.2.6(d), 4.2.8, 4.3.2(a), 4.3.2(e), 7.2.1 Tomka v. Seiler Corp., 8.2.2, 8.2.5 Tompson v. Department of Mental Health, 4.2.4(a), 4.2.4(d) Torres-Negron v. Merck & Co., 9.3.2(b) Town of, see name of town Toyota Motor Mfg. v. Williams, 4.2.3, 4.2.3(a), 4.2.3(f), 4.2.4(a), 4.3.1, 4.3.2(c) Trans World Airlines, Inc. v. Hardison, 7.2.2, 7.2.3, 7.4 Trans World Airlines, Inc. v. Thurston, 2.2.1(a), 3.6.1(a) Trinh v. Gentle Commc’ns, LLC, 8.3.2(d), 8.3.3(b), 8.3.6 Troupe v. May Dep’t Stores Co., 5.2.2(b), 5.3.5, 5.3.5(g) Troy v. Bay State Comput. Grp., Inc., 3.5.3, 5.2.2(c), 5.3.5(g) Trustees of Forbes Library v. Labor Relations Comm’n, 5.3.5(a) Trustees of Health & Hosps. of Bos., Inc. v. MCAD, 1.2, 6.3.1, 6.3.2, 9.2.3(c), 10.2.3(a) Tuli v. Brigham & Women’s Hosp., 3.2, 8.3.2(b), 8.3.8 Tunstall v. Acticell H’W Cosmetics, Exhibit 8A Twomey v. NStar Elec. & Gas Corp., 4.2.3(b) TXO Prod. Corp. v. Alliance Res. Corp., 8.2.7(a)

U Udo v. Tomes, 2.1.2(b) Union Pac. R.R. Emp’t Practices Litig., In re, 5.3.2 United Airlines v. Evans, 5.3.5 United States v., see name of party United Steel Workers of Am. v. Weber, 6.3.3 University of Tex. Sw. Med. Ctr. v. Nassar, 9.2.1(a) Urrea v. New Eng. Tea & Coffee Co., 8.2.5(a), 8.2.5(b), Exhibit 8A

C–16

U.S. Airways, Inc. v. Barnett, 4.2.7(c), 4.3.2(b), 4.3.2(d), Checklist 4.2

V Valentin-Almeyda v. Municipality of Aguadilla, 8.3.2(b), 8.3.9(a) Valladares v. Massachusetts Trial Ct., 3.7.1 Valle-Arce v. Puerto Rico Ports Auth., 4.2.7(c), 4.3.2(d) Vance v. Ball State Univ., 8.3.3(a) Vande Zande v. Wisconsin Dep’t of Admin., 4.2.5, 4.3.2(d), 4.3.3(b) Velez v. Thermo King de P.R., Inc., 6.1 Ventura v. Hanitchak, 2.1.1, 4.2.3, 4.2.4(a) Vera v. Faust, 9.2.2(c), 9.2.3(b), 9.2.3(e), 10.2.3(b) Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 1.2, 2.1.2(b), 5.2.2(a), 5.2.2(c), 5.3.2, 5.3.5(a), 8.2.5(a), 8.2.6(c), 8.2.7(a) Vicarelli v. Business Int’l, Inc., 8.3.1, 30.14.10(b) Videckis v. Pepperdine Univ., 8.3.5(b) Villarreal v. J.E. Merit Constructors, Inc., 5.2.4(b) Visnick v. Caulfield, 8.2.7(a)

W Wald v. ECG Mgmt. Consultants, 5.3.3 Walker v. Massachusetts Dep’t of Corr., 4.2.4(a) Wall v. Department of Revenue, 4.2.4(a) Walsh v. Carney Hosp. Corp., 9.2.2(a), 9.2.3(b) Walton v. Mental Health Ass’n of Se. Pa., 4.3.2(d), 4.3.3(b) Wampanoag Tribe of Gay Head (Aquinnah) v. MCAD, 6.1 Ward v. Massachusetts Health Research Inst., Inc., 4.2.4(a), 4.3.2(a), 4.3.2(c), 4.3.3(a) Wareing v. City of New Bedford, 4.2.4(a) Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 4.2.9(c) Washington, Cty. of v. Gunther, 3.6.3 Watkins v. J&S Oil Co., 4.3.2(d) Watson v. Fort Worth Bank & Tr., 5.2.2(c) Weber v. Community Teamwork, Inc., 10.2.3(a) Weber v. Roadway Express, Inc., 7.2.2 Weisman v. Saetz, Exhibit 8A Welgoss v. Massachusetts Dep’t of Transp., 2.1.2(b) Wesolowski v. Napolitano, 3.2 Western Airlines, Inc. v. Criswell, 2.2.1(a) 2nd Edition 2020 | MCLE, Inc.

Table of Cases Westinghouse Corp. v. Chanson, 4.2.8 Westinghouse Elec. Supply Corp. v. MCAD, 4.2.4(a) Weston v. Massachusetts Dep’t of Corr., 3.4 Weston-Smith v. Cooley Dickinson Hosp., 5.2.2(c) Wexler v. White’s Fine Furniture, Inc., 2.1.2(b) Whalen v. NYNEX Info. Res. Co., 2.1.2(b), 4.3.3(d), 5.3.8 Wheatley v. American Tel. & Tel. Co., 2.2.3(a), Exhibit 8A Wheelock Coll. v. MCAD, 2.1.2(b), 2.2.1, 4.3.2(a), 5.2.2(c), 5.3.5(a), 9.2.3(a) Whelan Sec. Co. v. United States, 3.6.1(d) White v. Michaud Bus Lines, Inc., 5.2.2, 5.3.5 White v. New Hampshire Dep’t of Corr., 9.3.2(b) White v. University of Mass. at Bos., 5.2.2(c) White v. York Int’l Corp., 4.3.2(d), 4.3.2(e) Whitehead-Pleaux v. Shriners Hosp. for Children, 9.2.3(d) Whitlock v. Mac-Gray, Inc., 4.2.4(a) Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 4.3.2(c) Williams v. Episcopal Diocese of Mass., 7.4.2 Williams v. Frank, 1.2 Williams v. Kennedy, 4.2.3 Williams v. Raytheon Co., 2.1.2(b), 2.2.1(e) Williams v. Robert F. Kennedy Children’s Action Corps, Inc., 4.3.2(c) Williams v. Saxbe, 8.3.1 Willis v. Conopco, Inc., 4.3.2(e) Wilson v. Chertoff, 3.4.1 Wilson v. Chrysler Corp., 8.2.4(b)

MCLE, Inc. | 2nd Edition 2020

Wilson v. Globe Specialty Prods., Inc., 4.2.7(c) Wilson v. Moulison N. Corp., 8.3.3(b) Windross v. Barton Protective Servs., 8.3.8 Windross v. Village Auto. Grp., Inc., 6.1 Windsor, United States v., 9.2.3(d) Winkes v. Brown Univ., 3.6.1(c) Winters v. ADAP, Inc., 8.3.5(d) Wislocki-Goin v. Mears, 3.3 Wong v. Verizon New Eng., Inc., 4.3.2(c) Woodason v. Town of Norton Sch. Comm., 9.2.2(c) Woodman v. Runyon, 4.3.2(d), 4.3.3(b) Woods v. Friction Materials, Inc., 2.1.2(b) Wooster v. Abdow Corp., 4.2.6(d) Worden v. Consolidated Rail Corp., 4.2.8 Wright v. CompUSA, Inc., 4.2.3(f), 4.2.7(c), 4.3.2(d) Wrightson v. Pizza Hut of Am., Inc., 9.3.2(a) Wynn & Wynn, P.C. v. MCAD, 2.1.2(b), 5.2.2(c), Exhibit 8A

Y Yee v. Massachusetts State Police, 1.2, 6.1 Young v. United Parcel Serv., Inc., 2.1.2(b), 3.5.3, 5.2.2, 5.2.2(b), 5.2.2(c), 5.2.4(b), 5.3.5 Yovino v. Rizo, 3.6.1(c)

Z Zarda v. Altitude Express, Inc., 8.2.3(d), 8.3.5(b), 9.1, 9.2.1, 9.2.1(a), 9.2.1(b), 9.2.1(c) Zortman v. Bildman, Exhibit 8A Zubik v. Burwell, 5.3.2

C–17

Table of Statutes, Rules, and References References are to section numbers of this book, unless otherwise indicated.

FEDERAL Affordable Care Act (ACA), 5.3.2, 7.1 Age Discrimination in Employment Act (ADEA), 1.2, 1.3, 2.1, 2.1.1, 2.1.2(a), 2.1.2(b), 2.1.3, 2.2.1–2.2.4, 2.3, 2.3.1–2.3.4, 3.6.1(a), 6.1 American Health Care Act (AHCA), 5.3.2 Americans with Disabilities Act (ADA), 1.2, 1.3, 4.2.1, 4.2.3(a)–4.2.3(h), 4.2.4(a)–4.2.4(c), 4.2.6(c), 4.2.7(a), 4.2.7(c), 4.2.8, 4.2.9(c), 4.2.9(f), 4.2.10, 4.3.1, 4.3.2, 4.3.2(a)–4.3.2(f), 4.3.3(a)–4.3.3(e), 5.2.2(b), 5.2.2(c), 5.2.4, 5.2.4(a), 5.2.4(b), 5.2.5(a), 5.3.2, 5.3.4, 5.3.4(d), 5.3.5(e), 7.2.1, 10.4, Checklist 4.2 Title I, 4.1.2, 5.3.4(d) Title II, 4.2.7(b) Americans with Disabilities Act Amendments Act (ADAAA), 4.1.2, 4.2.1, 4.2.3, 4.2.3(a), 4.2.3(c), 4.2.3(e), 4.2.3(f), 4.2.3(h), 4.2.4(a), 4.2.4(c), 4.2.9(c), 4.3.1, 4.3.2(c), 4.3.2(d) § 2(b)(5), 4.2.3, 4.2.4(c) Civil Rights Act of 1964 Title VI, 6.1 Title VII, 1.2, 1.3, 2.1.1, 2.1.2(b), 3.1, 3.2, 3.5.3, 3.5.5, 3.6, 3.6.1(b), 3.6.1(c), 3.6.3, 3.7.1, 3.8, 4.1.2, 5.1, 5.2.2(b), 5.2.3, 5.2.4(b), 5.2.5(a), 5.3.2, 5.3.5, 5.3.5(e), 5.3.8, 6.1, 6.2.2–6.2.4, 6.3.1, 6.3.3, 7.2, 7.2.1–7.2.4, 7.4, 7.4.1, 7.4.2, 7.5.1(b), 8.1, 8.2.1, 8.2.1(b), 8.2.2, 8.2.3(b)– 8.2.3(d), 8.2.5, 8.2.5(a), 8.2.6(a), 8.2.6(c), 8.2.7(b), 8.2.7(c), 8.2.8, 8.2.8(d), 8.2.8(e), 8.3.1, 8.3.2, 8.3.2(a), 8.3.2(b), 8.3.3(a), 8.3.4, 8.3.5(a)– 8.3.5(d), 8.3.6–8.3.8, 8.3.9(a), 8.3.9(c), 8.3.9(d), 8.3.10, 8.3.10(f), 9.1, 9.2.1, 9.2.1(a)–9.2.1(d), 9.2.2(a), 9.2.3(d), 9.2.3(e), 9.2.4, 9.3, 9.3.1, 9.3.2(a)– 9.3.2(d), 9.3.3(a), 10.1, 10.3, 10.4, Checklists 6.1, 9.1 Civil Rights Act of 1991, 3.7.2(a), 4.2.8, 8.1 MCLE, Inc. | 2nd Edition 2020

Code of Federal Regulations (C.F.R.) 3 C.F.R. § 191, 9.2.1(d) § 282, 9.2.1(d) § 339, 9.2.1(d) § 803, 9.2.1(d) 29 C.F.R. § 541.602(a), 3.6.1(c) § 785.18, 5.3.5(e) § 825.114(a)(2)(ii), 5.2.5(a) § 825.115(b), 5.3.4(c) § 825.207(a), 5.3.4(c) § 825.209(h), 5.3.5(c) § 825.215, 5.2.5(a) § 825.702, 5.3.8 § 902.2(c)(3), 5.2.4(b) § 1604, 5.2.4(b) § 1604.2(a), 3.4 § 1604.11, 9.3.2(a) § 1604.11(a), 8.2.1(b), 9.3.2(a) § 1604.11(g), 8.3.7, Exhibit 8A § 1605.2, 7.2.3 § 1605.2(d), 7.2.3 § 1605.2(e), 7.2.3 § 1605.2(e)(1), 7.2.3 § 1607.4(D), 6.2.3 § 1614.105(a), 2.2.3(a) § 1620, 3.6.1(b) § 1620.14, 3.6.1(b) § 1620.15, 3.6.1(b) § 1620.16, 3.6.1(b) § 1620.17, 3.6.1(b) § 1620.18, 3.6.1(b) § 1625(f)(3)(ii)(A), 2.3.2 § 1625.7, 2.2.1(b) § 1625.7(c), 2.2.1(b) § 1625.7(d), 2.2.1(b) § 1625.7(e), 2.2.1(b) § 1625.22(b)(4), 2.3.1 § 1625.22(e)(5), 2.3.1 § 1625.22(f)(1)(iii)(B), 2.3.2 § 1625.22(f)(1)(iv), 2.3.2 § 1625.22(f)(3)(i)(A), 2.3.2 S–1

Employment Discrimination in Massachusetts Code of Federal Regulations (C.F.R.) 29 C.F.R. (cont’d) § 1625.22(f)(3)(i)(B), 2.3.2 § 1625.22(f)(3)(iv)(B), 2.3.2 § 1625.22(f)(3)(vi)(B), 2.3.2 § 1625.22(f)(4)(iii), 2.3.2 § 1625.22(f)(4)(iv), 2.3.2 § 1625.22(f)(4)(vi), 2.3.2 § 1625.22(f)(4)(vii), 2.3.2 § 1625.22(i)(2), 2.3.3 § 1625.22(i)(3), 2.3.3 § 1625.23, 2.3.4 § 1625.23(b), 2.3.4 § 1625.23(c), 2.3.4 § 1626.10(c), 2.2.3(a) Part 1630, Appendix, 4.2.4(a), 4.2.4(c), 4.3.2(c), 4.3.2(d), 4.3.2(e), 5.2.4 § 1630, 4.1.2, 4.2.10 § 1630 et seq., 4.3.1 § 1630.1(c)(4), 4.3.1, 4.3.2(c) § 1630.2(l)(1)–(2), 4.2.3(c) § 1630.2(g), 4.3.2(c) § 1630.2(h), 5.2.4, 5.2.4(a), 5.3.4(d) § 1630.2(i), 4.2.1, 4.3.1, 4.3.2(c) § 1630.2(I), 4.3.1 § 1630.2(i)(1), 4.3.2(c) § 1630.2(i)(1)(ii), 4.2.3(f) § 1630.2(i)(2), 4.3.2(c) § 1630.2(i)(2)(ii), 4.2.3(a) § 1630.2(ii), 4.3.1 § 1630.2(j), 4.2.3(b) § 1630.2(j)(1), 4.3.2(c) § 1630.2(j)(1)(i), 4.3.1 § 1630.2(j)(1)(ii), 4.3.1, 4.3.2(c) § 1630.2(j)(1)(iii), 4.3.1, 4.3.2(c) § 1630.2(j)(1)(ix), 4.2.3(b), 4.3.1, 4.3.2(c) § 1630.2(j)(1)(v), 4.3.1 § 1630.2(j)(1)(vi), 4.2.3(h), 4.3.1, 4.3.2(c) § 1630.2(j)(1)(vii), 4.2.3(a), 4.2.3(e), 4.3.1, 4.3.2(c) § 1630.2(j)(1)(viii), 4.3.1 § 1630.2(j)(3), 4.3.2(c) § 1630.2(j)(3)(ii), 4.2.3(a) § 1630.2(j)(3)(iii), 4.2.3(a), 4.3.1, 4.3.2(c) § 1630.2(k)(1), 4.2.3(d), 4.3.2(c) § 1630.2(k)(2), 4.2.3(d), 4.3.2(c) § 1630.2(k)(3), 4.2.3(d), 4.3.2(c), 4.3.2(d) § 1630.2(l), 4.3.2(c) § 1630.2(l)(1), 4.2.3(c) § 1630.2(l)(1)–(2), 4.3.2(c) § 1630.2(m), 4.3.2(c) § 1630.2(n)(1), 4.3.2(c) S–2

§ 1630.2(n)(2), 4.2.4(a), 4.3.2(c) § 1630.2(o), 4.3.2(d) § 1630.2(o)(1), 4.3.2(d) § 1630.2(o)(2), 4.3.2(d) § 1630.2(o)(2)(ii), 4.2.4(b), 4.3.2(d) § 1630.2(o)(3), 4.2.4(c), 4.3.2(e) § 1630.2(o)(4), 4.3.1 § 1630.2(p), 4.3.3(b) § 1630.2(r), 4.3.3(c) § 1630.4(b), 4.3.1 § 1630.8, 4.2.7(c) § 1630.9, 5.2.4(b) § 1630.11, 4.3.3(d) § 1630.14(b)(3), 4.3.2(f) § 1630.15(b), 4.3.3(d) § 1630.15(b)(2), 4.3.3(c) § 1630.16(e), 4.3.3(c) 32 C.F.R. § 147.6, 9.2.1(d) Defense of Marriage Act (DOMA) § 3, 9.2.3(d) Education Amendments of 1972, 8.2.1(b) Title IX, 3.2, 8.2.1(b), 9.2.1(b) Employee Retirement Income Security Act (ERISA), 9.2.3(d) Equal Credit Opportunity Act, 10.3 Equal Pay Act, 3.6, 3.6.1(a), 3.6.1(b), 3.6.1(c), 3.6.1(d), 3.6.1(e), 3.6.2(a), 3.6.3 Equality Act of 2019, 9.2.1(d) Executive Orders Exec. Order No. 11,246, 9.2.1(d) Exec. Order No. 11,478, 9.2.1(d) Exec. Order No. 13,087, 9.2.1(d) Exec. Order No. 13,672, 9.2.1(d) Fair Labor Standards Act (FLSA), 3.6.1(a), 3.6.1(c), 3.6.1(d), 5.3.5(e) Family and Medical Leave Act (FMLA), 4.2.3(a), 4.3.2(d), 5.1, 5.2.1, 5.2.5, 5.2.5(a), 5.2.5(b), 5.2.6, 5.3.2, 5.3.4, 5.3.4(a)–5.3.4(c), 5.3.5(c), 5.3.5(g), 5.3.8, 9.2.2(c) Federal Register (Fed. Reg.) 74 Fed. Reg. 29,393 (June 17, 2009), 9.2.1(d) 81 Fed. Reg. 32550, 3.6.1(c) Federal Rules of Civil Procedure (Fed. R. Civ. P.), 4.2.9(d) Rule 8(c), 5.3.7 Rule 19, 5.3.7 Rule 35, 8.3.9(a)

2nd Edition 2020 | MCLE, Inc.

Table of Statutes, Rules, and References Federal Rules of Evidence (Fed. R. Evid.), 4.2.9(d) Immigration Reform and Control Act of 1986 (IRCA), 6.1, 6.2.2 Lilly Ledbetter Fair Pay Act of 2009, 3.6.3 National Labor Relations Act (NLRA), 1.5.2, 2.2.1(e), 2.2.1(g), 2.3.2(c), 3.2.3, 3.2.3(b), 14.3.1, 21.1–21.3, 22.2.9(c), 30.15.24, Checklist 21.1 Older Workers Benefit Protection Act (OWBPA), 2.2.1(c), 2.3, 2.3.1, 2.3.2, 2.3.3, 2.3.4 Paycheck Fairness Act of 2019, 3.6.1(c), 3.6.1(e) Pregnancy Discrimination Act of 1978, 5.1, 5.2.2(b), 5.2.4(b), 5.3.2, 5.3.5, 5.3.5(g) Public Laws (Pub. L. No.) Pub. L. No. 111-2, 3.6.3, 31.10.3(b) Rehabilitation Act of 1973, 4.2.7(c), 4.3.2(c), 4.3.3(a), 10.4 Religious Freedom and Restoration Act (RFRA), 7.1 United States Code (U.S.C.) 5 U.S.C. § 2301(b)(2), 2.1 8 U.S.C. § 1324b(a)(1), 6.2.2 15 U.S.C. § 1691, 10.3 20 U.S.C. § 1681 et seq., 8.2.1(b) 28 U.S.C. § 1332, 8.2.2 § 1441 et seq., 8.2.2 29 U.S.C. § 206(d), 3.6 § 206(d)(1), 3.6.1(a), 3.6.1(c) § 207(r)(1)(A), 5.3.5(e) § 207(r)(1)(B), 5.3.5(e) § 207(r)(2), 5.3.5(e) § 207(r)(3), 5.3.5(e) § 213, 3.6.1(a) § 213(a)(1), 3.6.1(a), 5.3.5(e) § 216, 3.6 § 216(b), 2.2.2(a), 3.6.1(a), 3.6.1(d) § 216(c), 3.6.1(a) § 255(a), 3.6.1(a) § 260, 3.6.1(d) § 621 et seq., 2.1 § 623, 2.2.1(c) § 623(1), 2.1.4 § 623(a), 2.1.1 MCLE, Inc. | 2nd Edition 2020

§ 623(a)(1), 2.1.1 § 623(a)(2), 2.1.1 § 623(b), 2.1.1 § 623(c), 2.1.1 § 623(d), 2.1.1 § 623(f)(1), 2.2.1(a), 2.2.1(b), 2.2.1(d) § 623(f)(2), 2.2.1(c) § 623(f)(3), 2.2.1(b) § 623(j), 2.2.1(d) § 626, 2.2.1(c) § 626(b), 2.2.2(a) § 626(c)(2), 2.2.4 § 626(d), 2.2.3(c) § 626(d)(2), 2.2.3(a) § 626(e), 2.2.3(c) § 626(f)(1), 2.3.1 § 626(f)(1)(A), 2.3.1 § 626(f)(1)(B), 2.3.1 § 626(f)(1)(D), 2.3.1 § 626(f)(1)(E), 2.3.1 § 626(f)(1)(F)(i)(ii), 2.3.1 § 626(f)(1)(G), 2.3.1 § 626(f)(1)(H), 2.1.4, 2.3.1, 2.3.2 § 630(b), 2.1.1 § 630(c), 2.1.1 § 630(d), 2.1.1 § 631, 2.2.1(c) § 631(c)(1), 2.2.1(c) § 633(a), 2.1.1 § 633a(a), 2.1.1, 2.1.2(b) § 633a(d), 2.2.3(c) § 633(b), 2.2.3(c) § 705(1)(F)(i), 10.4 § 1001 et seq., 9.2.3(d) § 2601 et seq., 5.2.5(a), 5.3.2, 5.3.4(c) § 2611(2), 5.2.5(a) § 2611(4), 5.2.5(a) § 2611(11), 5.3.4(c) § 2612(a), 5.2.5(a) § 2614(a), 5.2.5(a) § 12211(b)(1), 10.4 42 U.S.C. § 1630.2(p), 4.3.3(b) § 1630.2(p)(2), 4.3.3(b) § 1973(b), 3.7.2(b) § 1981, 3.7.1, 3.7.2(a), 6.1, 6.2.2, 6.2.3 § 1981a(a)(2), 4.1.2 § 1981a(a)(3), 4.1.2 § 1983, 3.8, 8.2.1(b) § 1988(b), 3.8 § 1988(c), 3.8 § 2000bb-1 et seq., 7.1 S–3

Employment Discrimination in Massachusetts United States Code (U.S.C.) 42 U.S.C. (cont’d) § 2000d, 6.1 § 2000d-3, 6.1 § 2000(e), 7.2.4 § 2000(e) et seq., 5.3.2 § 2000e et seq., 3.1, 8.2.1, 8.2.1(b) § 2000e-2, 9.1 § 2000e-2(a), 5.2.2(b), 9.3.2(c) § 2000e-2(a)(1), 7.2.2, 9.2.1, 9.3.2(a) § 2000e-2(e), 3.4 § 2000e-2(k)(1)(A), 6.2.3 § 2000e-2(k)(1)(C), 6.2.3 § 2000e-2(m), 2.1.2(b), 9.2.1(a), 9.3.2(c) § 2000e-5(e), 3.6.3 § 2000e-5(e)(1), 8.3.8 § 2000e-5(g), 4.1.2 § 2000e-5(k), 4.1.2, 8.3.9(d) § 2000e(j), 7.2.1, 7.2.2 § 2000e(k), 3.5.3, 5.2.2(b) § 12101 et seq., 5.3.2, 5.3.4(d) §§ 12101–12117, 4.1.2 § 12102, 4.3.2(a) § 12102(1), 5.3.4(d) § 12102(2), 4.3.2(c), 5.2.4 § 12102(2)(A), 4.3.1, 4.3.2(c) § 12102(2)(B), 4.2.3(d), 4.3.1, 4.3.2(c) § 12102(3), 4.3.1, 4.3.2(c) § 12102(3)(A), 5.3.4(d) § 12102(3)(B), 4.2.3(c), 4.3.2(c) § 12102(4)(A), 4.3.1 § 12102(4)(D), 4.3.1 § 12102(4)(E), 4.3.1, 4.3.2(c) § 12111(2), 4.1.2 § 12111(5), 4.1.2 § 12111(9)(B), 4.3.2(d) § 12111(10), 4.3.3(b) § 12112, 4.3.2(c) § 12112(a), 4.1.2 § 12112(b)(4), 4.3.2 § 12112(d)(2), 4.3.2(f) § 12112(d)(3), 4.3.2(f) § 12113(3)(2), 4.3.3(c) § 12113(b), 4.3.3(c) § 12114, 4.2.3(g) § 12114(a), 4.3.2(c) § 12114(c)(4), 4.3.2(d) § 12117, 4.1.2 § 12211(b)(1), 10.4 United States Constitution First Amendment, 7.4.2 S–4

Establishment Clause, 7.1 Free Exercise Clause, 7.1 Fifth Amendment, 3.8 Eleventh Amendment, 4.2.7(b) Fourteenth Amendment, 3.8 Equal Protection Clause, 3.8, 8.2.1(b), 10.3 Voting Rights Act, 3.7.2(b) § 2, 3.7.2(b)

MASSACHUSETTS An Act to Establish Pay Equity, 3.6.2(a), 3.6.2(c) Code of Massachusetts Regulations (C.M.R.) 458 C.M.R. § 2.00, 5.3.4(a) § 2.16(1), 5.3.5(c) 804 C.M.R. § 1.10(2), 8.2.6(a), Exhibit 8A § 3.01(3), 2.2.1(a), 9.2.2(b) § 3.01(8), 5.2.5(b) § 3.01(8)(d)(1), 5.3.4(b) § 3.01(8)(e), 5.3.4(b) § 3.02, 2.1.1, 5.3.3 § 8.01(3), 5.3.6(a) § 8.01(4), 5.3.4(b) Fair Employment Practices Act, 3.1, 9.2.2 Massachusetts Acts and Resolves (Mass. Acts) 1989 Mass. Acts c. 516, 9.2.2 § 19, 9.2.4 2002 Mass. Acts c. 223, Exhibit 8A 2011 Mass. Acts c. 199, § 1, 3.3 2016 Mass. Acts c. 177, 3.6.2(a) Massachusetts Civil Rights Act (MCRA), 8.2.5(b), 8.2.6(c), Exhibit 8A Massachusetts Constitution Art. 114, 10.4 Massachusetts Equal Pay Act (MEPA), 3.6, 3.6.1(e), 3.6.2(a)–3.6.2(c), 3.6.3, 8.2.1(a) Massachusetts Equal Rights Act (MERA), 3.7.1–3.7.2, 5.3.2, 5.3.5(e), 7.2, 7.2.4, 8.2.1(a), 8.2.6(c) Massachusetts General Laws (G.L. c.) c. 4, § 7(59), 10.2.1 c. 12 § 11H, 8.2.6(c), Exhibit 8A § 11I, 8.2.6(c) 2nd Edition 2020 | MCLE, Inc.

Table of Statutes, Rules, and References Massachusetts General Laws (G.L. c.) (cont’d) c. 31, § 1, 2.1 c. 93 § 102, 3.7.1 §§ 102–103, 7.2, 7.2.4 § 102(a), 3.7.1, 5.3.5(e), 8.2.6(c) § 102(b), 3.7.1 § 102(c), 3.7.2(b), 7.2 § 102(d), 3.7.1 § 103, 2.1, 2.1.1, 3.7.1 § 103(a), 3.7.1 § 103(b), 3.7.1 § 103(c), 3.7.2(b) § 103(d), 3.7.1 c. 141B, 9.2.2 c. 149, 2.2.2(b), 4.3.2(f) § 1, 3.6.2(a) § 19B, 4.3.2(f) § 19B(2), 4.3.2(f) § 24A, 2.1 § 52C, 8.2.7(a) § 105A, 3.6, 3.6.2(a) § 105A(a), 3.6.2(b) § 105A(b), 3.6.2(a) § 105A(c)(1), 3.6.2(c) § 105A(c)(3), 3.6.2(c) § 105A(d), 3.6.2(c) § 105D, 5.2.5(b), 5.3.2, 5.3.3, 5.3.4(b), 5.3.5(b), 5.3.5(c), 5.3.5(f), 5.3.8 § 105D(b), 5.2.5(b), 5.3.4(b), 5.3.8 § 105D(e), 5.3.4(b) c. 151, 2.2.2(b) c. 151B, 1.1–1.3, 2.1, 2.1.1, 2.1.2(a), 2.1.2(b), 2.2.1, 2.2.2(b), 2.2.3(a)–2.2.3(c), 2.2.4, 2.2.5, 3.1–3.3, 3.5.3, 3.5.4, 3.6, 3.6.1(c), 3.6.1(d), 3.6.2(a), 3.6.2(c), 3.6.3, 3.7.1, 4.1.1, 4.2.1, 4.2.3(a)–4.2.3(h), 4.2.4(a), 4.2.4(b), 4.2.6(c), 4.2.7(a), 4.2.7(c), 4.2.8, 4.2.9(c), 4.2.9(f), 4.3.1, 4.3.2, 4.3.2(a)–4.3.2(f), 4.3.3(a)–4.3.3(e), 5.1, 5.2.2, 5.2.2(a), 5.2.2(c), 5.2.3, 5.2.4, 5.2.4(a), 5.2.4(b), 5.2.5(a), 5.2.5(b), 5.3.2, 5.3.3, 5.3.4(d), 5.3.4(f), 5.3.5, 5.3.5(b), 5.3.5(d), 5.3.7, 5.3.8, 6.1, 6.2.2, 6.2.3, 6.3.1, 6.3.3, 7.2, 7.2.1– 7.2.4, 7.4, 7.4.2, 8.2.1, 8.2.1(a), 8.2.1(b), 8.2.2, 8.2.3(b)–8.2.3(d), 8.2.5, 8.2.5(c), 8.2.6(a), 8.2.6(c), 8.2.7(b), 8.2.7(c), 8.2.8, 8.2.8(d), 8.2.8(e), 8.3.1, 8.3.2, 8.3.2(a), 8.3.2(b), 8.3.3(a), 8.3.4, 8.3.5(a), 8.3.5(c), 8.3.7, 8.3.8, 8.3.9(a), 8.3.9(c), 8.3.9(d), 8.3.10, 9.1, 9.2.2, MCLE, Inc. | 2nd Edition 2020

9.2.2(a)–9.2.2(c), 9.2.3(b), 9.2.3(d), 9.2.3(e), 9.3.1, 9.3.3(a)–9.3.3(c), 10.2.1, 10.2.2, 10.4, Checklists 6.1, 9.1, Exhibit 8A § 1, 10.4 § 1(5), 2.1.1, 4.1.1, 7.4.1, 9.2.2(b), Exhibit 8A § 1(8), 2.1.1 § 1(16), 4.2.1, 10.4 § 1(17), 4.2.1, 4.2.3(a), 4.2.3(d), 4.3.2(a), 4.3.2(c), 5.2.4 § 1(18), 8.2.1(a), 8.2.3(a), 8.2.3(b), 8.3.2(a), 9.2.3(b), 9.3.1, 9.3.3(a), 9.3.3(b) § 1(18)(a), Exhibit 8A § 1(18)(b), Exhibit 8A § 1(20), 4.2.1, 4.2.3(f), 4.3.2(c), 5.2.4 § 2, 9.3.3(a) § 3(6), 9.2.2(a) § 3A, 8.2.7, 8.2.7(c), 8.3.10, Exhibit 8A § 3A(b), Exhibit 8A § 3A(b)(2), Exhibit 8A § 3A(c), Exhibit 8A § 3A(e), 8.3.10(c), Exhibit 8A § 4, 3.1, 3.3, 3.5.3, 4.3.2(c), 5.2.5(b), 5.3.2, 5.3.4, 5.3.4(d), 5.3.5(b), 5.3.5(d), 8.2.7(c), 9.2.3(b), 9.2.3(d), 9.2.4, 9.3.3(c), 10.1, 10.2.1 § 4(1), 5.2.2(a), 6.2.1, 7.2, 8.2.3(d), 8.3.5(b), 9.2.2, 9.2.3(b), 9.2.3(d), 9.3.3(a), 10.2.3(a), 10.2.3(b), Exhibit 8A § 4(1A), 7.1, 7.2, 7.2.1, 7.2.2, 7.2.4, 7.4, 7.5.1(a), 7.5.1(b) § 4(1B), 2.1.1, 2.2.1(a) § 4(1C), 2.1.1, 2.2.1(d) § 4(1E), 5.3.4(e) § 4(1E)(a)(iii), 5.3.4(e) § 4(1E)(a)(i)–(ii), 5.3.4(e) § 4(1E)(a)(iv), 5.3.4(e) § 4(1E)(a)(v), 5.3.4(e) § 4(1E)(b), 5.3.4(e) § 4(1E)(c), 5.3.4(e) § 4(1E)(d), 5.3.4(e) § 4(2), 2.1.1 § 4(3), 2.1.1 § 4(4), 2.1.1, 8.2.5, 8.2.5(a), 9.2.3(e), Exhibit 8A § 4(4A), 2.1.1, 5.3.7, 6.1, 6.2.1, 8.2.4(c), 8.2.5, 8.2.5(b), 8.3.5(c), 9.2.3(e), Exhibit 8A § 4(5), 2.1.1, 8.2.5, 8.2.5(c), 8.3.4, 9.2.2(c), Exhibit 8A § 4(11A), 5.2.5(b), 5.3.4(b)

S–5

Employment Discrimination in Massachusetts Massachusetts General Laws (G.L. c.) c. 151B (cont’d) § 4(16), 1.2, 4.1.1, 4.2.1, 4.2.3(a), 4.2.5, 4.2.5(a), 4.2.7(c), 4.3.2, 4.3.2(a), 4.3.2(c), 4.3.2(e), 4.3.2(f), 4.3.3(b) § 4(16A), 8.2.1(a), 8.3.1, 9.2.3(b), 9.3.1, 9.3.3(a), Exhibit 8A § 4(17)(a), 2.2.1(c) § 4(17)(b), 2.2.1(c) § 4(17)(c), 2.2.1(d) § 4(18), 9.2.2(b) § 4(19), 2.1.2(b) § 4(A), 7.2.2, 9.2.2(c) § 5, 1.5.1(b), 2.2.2(b), 2.2.3(a), 2.2.4, 4.2.9(b), 8.2.6(a), 8.3.8, Exhibit 8A §§ 5–6, 2.2.2(b) § 6, 2.2.3(b) § 8, Exhibit 8A § 9, 2.2.2(b), 2.2.3(b), 2.2.4, 4.1.1, 7.2.1, 8.2.1(a), 8.2.6(a), 8.3.8, 8.3.9(d) § 75B, 4.2.6(d) c. 151C, 8.2.1(a), Exhibit 8A c. 1521 § 75A, 4.3.2(d) § 75B, 4.2.3(a), 4.2.3(b) c. 175 § 47H, 5.3.2 c. 175M § 1, 5.3.4(a) § 1 et seq., 5.3.2, 5.3.4(a) § 2, 5.3.4(a), 5.3.5(f) § 2(c)(1), 5.3.4(a) § 2(e), 5.3.4(a) § 2(f), 5.3.4(a), 5.3.5(c) § 2(h), 5.3.4(a) § 2(h)(2)(i), 5.3.4(a), 5.3.4(b) § 3, 5.3.4(a) § 4, 5.3.4(a) § 4(b), 5.3.4(a) § 6(a), 5.3.4(a) § 6(c), 5.3.4(a) § 6(d), 5.3.4(a) § 8(b), 5.3.5(f) § 9, 5.3.4(a), 5.3.5(b) § 9(c), 5.3.4(a) § 11, 5.3.4(a) § 47W, 5.3.2 c. 176A § 8K, 5.3.2 § 8W, 5.3.2 c. 176B § 4J, 5.3.2 S–6

§ 4W, 5.3.2 c. 176G § 4, 5.3.2 § 4O, 5.3.2 c. 214, § 1C, 8.2.1(a), 8.2.6(c), 8.3.1, 9.3.3(a) c. 233 § 20B, 8.2.7(a), 8.3.9(a) § 20B(c), 8.2.7(a), 8.3.9(a) c. 234, § 28, 4.2.9(f) c. 272, 9.2.2 § 92A, Exhibit 8A § 98A, Exhibit 8A Massachusetts Maternity Leave Act (MMLA), 5.2.5(b), 5.3.2, 5.3.4(b) Massachusetts Parental Leave Act (MPLA), 5.1, 5.2.1, 5.2.5, 5.2.5(a), 5.2.5(b), 5.2.6, 5.3.2, 5.3.4, 5.3.4(a), 5.3.4(b), 5.3.5(b), 5.3.6(a), 5.3.8 Massachusetts Rules of Civil Procedure (Mass. R. Civ. P.) Rule 8(c), 5.3.7 Rule 35, 8.3.9(a) Rule 44.1, 7.1 Rule 49, 4.2.9(f) Rule 50, 2.1.2(b) Rule 56, 2.1.2(b) Paid Family and Medical Leave (PFML) Act, 5.3.2, 5.3.4, 5.3.4(a), 5.3.4(b) Pregnant Workers Fairness Act (PWFA), 3.5.3, 4.3.2(c), 5.3.2, 5.3.4, 5.3.4(e), 5.3.5(g) Workers’ Compensation Act (WCA), 8.2.6(c)

OTHER STATES California Cal. Gov’t Code §§ 12920, 12940, 10.1 Colorado Colo. Rev. Stat. § 24-34-402, 10.1 Connecticut Conn. Gen. Stat. § 46a-60, 10.1 District of Columbia D.C. Code § 2-1402.11, 10.1 Delaware Del. Code Ann. tit. 6, § 4501, 10.1 Hawaii Haw. Rev. Stat. § 378-1-3, 10.1 Illinois Ill. Comp. Stat. 5/1-103, 10.1 2nd Edition 2020 | MCLE, Inc.

Table of Statutes, Rules, and References Iowa Iowa Code § 216.6, 10.1 Maine Me. Rev. Stat. Ann. tit. § 4571, 10.1 Maryland Md. Code Ann., State Gov. § 20-606, 10.1 Minnesota Minn. Stat. § 363A.08, 10.1 Nevada Nev. Rev. Stat. § 613.330, 10.1 New Jersey N.J. Rev. Stat. § 10:5-12, 10.1 New Mexico N.M. Stat. § 28-1-7, 10.1 Oregon Or. Rev. Stat. § 659A.030, 10.1 Rhode Island R.I. Gen. Laws § 28-5-7, 10.1 Utah Utah Code Ann. § 34A-5-106, 10.1 Vermont 21 Vt. Stat. Ann. tit. § 495, 10.1 Washington Wash. Rev. Code § 49.60.030, 10.1

ADDITIONAL REFERENCES AND RESOURCES Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, 9.2.1(d) American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (3rd ed. 1980) (DSM-3), 10.4 American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-4), 10.4 American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), 10.4 Barry, Kevin M., et al., “A Bare Desire to Harm: Transgender People and the Equal Protection Clause,” 57 B.C. L. Rev. (2016), 10.4 Denniston, Lyle, “Opinion analysis: Fashioning a Remedy for Pregnancy Bias,” SCOTUSblog (Mar. 25, 2015), 3.5.3 Department of Family and Medical Leave, “Informing Your Workforce About Paid Family and Medical Leave,” 5.3.4(a) MCLE, Inc. | 2nd Edition 2020

Department of Family and Medical Leave, “Paid Family Medical Leave for Employers FAQ,” 5.3.4(a) Department of Family and Medical Leave, “Timeline of Paid Family and Medical Leave Contribution and Benefits,” 5.3.4(a) Department of Labor Tech. Release No. 2013-04 (Sept. 18, 2013), 9.2.3(d) EEOC, “Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms” (Dec. 22, 2000), 4.3.1 EEOC, “Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act” (July 26, 2000), 4.3.1 EEOC, Employment Provisions of the Americans with Disabilities Act— Explanation of Key Legal Requirements, 4.3.1 EEOC, “Enforcement Guidance on DisabilityRelated Inquiries and Medical Examinations of Employees under the ADA” (July 2000), 4.3.2(f) EEOC, “Enforcement Guidance on PreEmployment Medical Inquiries Under the ADA” (May 1994), 4.3.2(f) EEOC, Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, 4.3.1 EEOC Compliance Manual, 7.2.2, 7.2.3 § 2(B)(2) n.49, 9.3.2(a) EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, at § I.A.4.b, 5.3.5(e) EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, Notice No. 915.003 (June 25, 2015), 5.3.2, 5.3.5(e) EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 4.3.2(d), 4.3.3(b) EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, Notice No. 915.002 (May 23, 2007), 3.5.5, 5.2.5(b) § II(A)(3), 5.2.3, 5.3.5(e) § II(C), 5.2.2(b) EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (July 14, 2014), 5.2.3, 5.2.4(b)

S–7

Employment Discrimination in Massachusetts EEOC Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors, Notice No. 915.002, § III, “Who Qualifies as a Supervisor?” (June 18, 1999), Exhibit 8A EEOC Guidelines on Discrimination Because of Sex, § 1604.4, 3.5.4 EEOC Policy Guidance on Sexual Harassment, N-915-050, 8 FEP Manual No. 6699, (Mar. 19, 1990), Exhibit 8A EEOC “Questions and Answers About Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act,” 4.2.4(a) 2 Employment Discrimination Coordinator Analysis of Federal Law § 48:19, Sexual Harassment by Person of Same Sex (July 2019), 9.3.4 Farkas, Rachel, et al., “State Regulation of Sexual Harassment,” 20 Geo. J. Gender & L. 421, 457 (2019), 9.3.4 Grant, Jaime M., et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, at 51 (2016), 10.1 Heins, Marjorie, “Massachusetts Civil Rights Law,” 76 Mass. Rev. 77, 86–87 (1991), 3.7.2(b) Herek, Gregory, “Myths About Sexual Orientation: A Lawyer’s Guide to Social Science Research,” 1 Rev. of Law & Sexuality 133 (Summer 1991), 9.2.3(b) HR Dive, “Salary History Bans” (May 28, 2019), 3.6.2(c) Interpretive Guidance on Title I of the ADA (2007), 5.2.4 Johnson, Stephen P., “The 1989 Massachusetts ‘Equal Rights Law’: A Short History,” Boston B.J. (Mar.–Apr. 1990), 3.7.1, 3.7.2(b) Law, Sylvia A., “Homosexuality and the Social Meaning of Gender,” 1988 Wis. L. Rev. 187 (1988), 9.3.2(c) Lee, Jason, Note, “Lost in Translation: The Challenges of Remedying Transgender Employment Discrimination Under Title VII,” 35 Harv J.L. & Gender 423 (2012), 10.3 LGBT Law Notes, 9.2.5 Lindeman & Grossman, Employment Discrimination Law ch. 19, II.E.2.a., at 19-55 (West 2012), 3.6.1(d)

S–8

Mantell, R., “Age Discrimination Shown by Disparate Impact,” 6 MBA Section Rev. No. 2, 24 (2004), 2.1.2(a) Massachusetts Attorney General, An Act to Establish Pay Equity: Overview and Frequently Asked Questions, at 5 n.3 (Mar. 1, 2018), 3.6.2(b) Massachusetts Commission Against Discrimination (MCAD) Guidelines: Employment Discrimination on the Basis of Handicap–Chapter 151B, 4.1.1, 4.2.4(b), 4.2.4(c), 4.2.10, 4.3.1, 4.3.2(b), 4.3.2(d) § I, 4.1.1 § II.A.2, 4.2.1 § II.A.3, 4.2.3(d), 4.3.2(c) § II.A.5, 4.2.3(f), 4.3.2(c) § II.A.6, 4.2.3(a), 4.3.2(c), 5.2.4(a) § II.A.7, 4.2.3(h), 4.3.2(c) § II.B, 4.2.4(a), 4.3.2(c) § II.C, 4.2.4(c), 4.3.2(d), 5.2.4(b) § II.D, 4.2.5 §§ IV.A–IV.C, 4.3.2(e) § V.A, 4.3.2(e) § V.B, 4.3.2(e) § V.E, 4.3.2(e) § VI.B, 4.3.2(f) § VI.B.2, 4.3.2(f) § VII, 4.3.2(e) § VII.A, 4.3.2(e) § VII.B, 4.3.2(e) § VII.C, 4.3.2(e), 4.3.3(b) § IX.A.1, 4.3.2(a), 4.3.2(b) § IX.A.3, 4.3.2(b) § IX.B.2, 4.2.5(a) § IX.B.3, 4.2.5(a), 4.3.2(c), 4.3.3(c) § X.C.1, 4.3.2(c) § X.C.3, 4.3.2(d) § X.D, 4.3.2(d) § X.E.2, 4.3.2(d) § X.F.1, 4.3.2(d) Massachusetts Commission Against Discrimination (MCAD) Guidelines: Maternity Leave Act, 5.3.4(b) § 5, 5.2.5(b), 5.3.8 Massachusetts Commission Against Discrimination (MCAD) Guidelines: Sexual Harassment in the Workplace, 8.3.2, 8.3.8, 9.3.3(b), Exhibit 8A Massachusetts Commission Against Discrimination (MCAD) Model Sexual Harassment Policy 96-2, Exhibits 8A, 8B 2nd Edition 2020 | MCLE, Inc.

Table of Statutes, Rules, and References Massachusetts Commission Against Discrimination (MCAD) Policy 96-1, “Policy on Alternative Dispute Resolution,” 2.2.4 Memorandum for the Heads of Executive Departments and Agencies on Federal Benefits and Non-Discrimination, 9.2.1(d) Model Penal Code and Commentaries (1980), Exhibit 8A Moriearty, Adkins, Rubin & Jackson, Employment Law (45 Massachusetts Practice Series) (West 2d ed. 2003), 4.2.10 Mothershead, Kyle, Note, “How the ‘Equal Opportunity’ Sexual Harasser Discriminates on the Basis of Gender Under Title VII,” 55 Vand. L. Rev. 1205, 1225–35 (2002), 9.3.2(c) Phelan, G., & J. Arterton, Disability Discrimination in the Workplace (West Group 1997), 4.2.10 Restatement (Second) of Agency § 7, Exhibit 8A § 8, Exhibit 8A

MCLE, Inc. | 2nd Edition 2020

Technical Assistance Manual on the Employment Provisions of the Americans with Disabilities Act– Explanation of Key Legal Requirements, 4.3.2(c) § 2.3(a)(3)(d), 4.3.2(c) § 3.1, 4.3.2(e) § 3.4, 4.3.2(d) § 3.6, 4.3.2(f) § 3.7, 4.3.2(e) § 3.9, 4.3.3(b) Walker, Charles, “An Ounce of Prevention . . . ,” MCAD Certified Discrimination Prevention Training Program, Sexual and Other Harassment Prevention Module, MCLE (2000-15-CM), Exhibit 8A WBUR, “What the New Mass. Equal Pay Law Means for Employees and Employers” (Aug. 4, 2016), 3.6.2(c) WPATH, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (7th version), 10.4

S–9

Index References are to section numbers of this book, unless otherwise indicated.

A Adverse Impact Cases Age discrimination, 2.1.2(a) Availability of claims, 1.3 Nature of claims, 1.3 Pregnancy discrimination, 5.2.2(c), 5.3.5 Sexual orientation discrimination, 9.2.4 Affirmative Action Plans Disability discrimination, 4.3.2(d) Race, ethnicity, and national origin discrimination, 6.3.3 Affordable Care Act (ACA), 5.3.2 Pregnancy discrimination, 5.3.2 Age Discrimination, Chapter 2 See also Age Discrimination in Employment Act (ADEA) Administrative charge, filing, 2.2.3(a) Arbitration of claims, 2.2.4 Burden of proof, 2.1.2 Disparate impact, 2.1.2(a) Disparate treatment, 2.1.2(b) Pretext, proof of, 2.1.2(b) Prima facie case, elements of, 2.1.2(b) Choice of forum, 2.2.4 Choice of law, 2.2.4 Damages Age Discrimination in Employment Act, 2.2.2(a) Massachusetts law, 2.2.2(b) Defenses See also Age Discrimination in Employment Act (ADEA) Checklist, Checklist 2.1 Statutory defenses, 2.2.1 Disparate impact, proof of, 2.1.2(a) Disparate treatment, proof of, 2.1.2(b) Early retirement incentives, 2.1.4 Forum, choice of, 2.2.4 Law, choice of, 2.2.4 Laws, applicable, 2.1 Limitations period ADEA actions, 2.2.3(c) State actions, 2.2.3(b) MCAD proceedings MCLE, Inc. | 2nd Edition 2020

Administrative charge, filing, 2.2.3(a) Choice of forum, 2.2.4 Damages, awards of, 2.2.2(b) Removal of charge from, 2.2.3(b) Mixed-motive analysis, 2.1.2(b) Nondiscriminatory reason for termination, 2.1.2(b) Older Workers Benefits Protection Act See Older Workers Benefits Protection Act (OWBPA) Pretext, proof of, 2.1.2(b) Prima facie case, elements of, 2.1.2(b) Prohibition against, 2.1.1 Removal of charge from MCAD, 2.2.3(b) Retirement issues, 2.1.4, 2.2.1(c) Save on salary or benefits, firing workers to, 2.1.3 Sex-plus discrimination, 3.5.2 Statute of limitations ADEA actions, 2.2.3(c) State actions, 2.2.3(b) Statutory authority, 2.1 Survival of claims, 2.2.5 Types of claims, 2.1.2 Waiver of claims, 2.2.1(f) Age Discrimination in Employment Act (ADEA) Administrative charge, filing, 2.2.3(a) Applicability, 2.1.1 Arbitration of claims, 2.2.4 Bona fide employee benefit plans as defense, 2.2.1(c) Bona fide occupational qualification as defense, 2.2.1(a) Bona fide seniority systems as defense, 2.2.1(c) Checklist of defenses, Checklist 2.1 Choice of forum, 2.2.4 Damages, 2.2.2(a) Defenses, 2.2.1 Bona fide employee benefit plans, 2.2.1(c) Bona fide occupational qualification, 2.2.1(a) Bona fide seniority systems, 2.2.1(c) Checklist, Checklist 2.1 Excepted professions, 2.2.1(d) General defenses, 2.2.1(c) I–1

Employment Discrimination in Massachusetts Age Discrimination in Employment Act (ADEA) Defenses (cont’d) Good cause, 2.2.1(b) Reasonable factors other than age, 2.2.1(b) Retirement policy, 2.2.1(c) Generally, 2.1.1 Good cause defense, 2.2.1(b) Limitations period, 2.2.3(c) Prerequisites for civil actions, 2.2.3(c) Reasonable factors other than age as defense, 2.2.1(b) Retirement policy as defense, 2.2.1(c) Statute of limitations, 2.2.3(c) Survival of claims, 2.2.5 Aiding and Abetting Sexual harassment, 8.2.5(c), 8.3.4

Substantial limitation, impairment causing, 4.2.3(a), 4.3.1, 4.3.2(c) Arbitration Age discrimination claims, 2.2.4 Disability discrimination claims, 4.2.9(c) Discrimination claims Age discrimination, 2.2.4 Disability discrimination, 4.2.9(c) Attorney Fees Sexual harassment claims, 8.2.8(c), 8.3.9(d)

B Bona Fide Occupational Qualification Age discrimination, 2.2.1(a) Gender discrimination, 3.4 Breastfeeding, 5.3.5(e)

Alcoholism, 4.3.2(c)

C

Americans with Disabilities Act (ADA) See also Americans with Disabilities Act Amendments Act of 2008 (ADAAA) Affirmative action policies, 4.3.2(d) Applicability, 4.1.2 Asymptomatic ailments, 4.2.3(e) Communication with employer regarding handicap, 4.2.4(c) Covered entities, 4.1.2 EEOC guidance, 4.3.1 Essential functions of job, ability to perform, 4.2.4(a), 4.3.2(c) Individual liability, 4.2.7(a) Medical examinations, Preemployment, 4.3.2(f) Mitigating measures, 4.2.3(h) Preemployment inquiries and examinations, 4.3.2(f) Pregnancy, disabilities caused by, 5.2.4, 5.3.4(d) Record of impairment or disability, 4.2.3(d), 4.3.2(c)

Choice of Forum Age discrimination, 2.2.4 Federal versus state court, 4.2.9(c) State versus federal court, 4.2.9(c)

Americans with Disabilities Act Amendments Act of 2008 (ADAAA), 4.1.2 Asymptomatic ailments, 4.2.3(e) Communication with employer regarding handicap, 4.2.4(c) Conditions considered disabilities, 4.3.1 EEOC guidance, 4.3.1 Major life activities, 4.2.1, 4.2.3(f), 4.3.2(c) Mitigating measures, 4.2.3(h), 4.3.2(c) Perceived as being disabled, 4.2.3(c) Protections under, 4.3.1 Regarded as having disability, 4.3.2(c) I–2

Choice of Law Age discrimination claims, 2.2.4 Sexual harassment claims, 8.2.2 Civil Rights Act of 1964, Title VII See Title VII Claims Civil Rights Laws Title VII See Title VII Claims Continuing Violation Doctrine Sexual harassment claims, 8.2.6(a), 8.3.8, Exhibit 8A

D Damages See also specific types of claims Age discrimination Age Discrimination in Employment Act, 2.2.2(a) Massachusetts law, 2.2.2(b) Disability discrimination Available damages, 4.2.8 Punitive damages, 4.2.8 State law, 4.2.8 Discrimination Age discrimination Age Discrimination in Employment Act, 2.2.2(a) Massachusetts law, 2.2.2(b) 2nd Edition 2020 | MCLE, Inc.

Index Damages Discrimination (cont’d) Disability discrimination Available damages, 4.2.8 Punitive damages, 4.2.8 State law, 4.2.8 Pregnancy discrimination, 5.3.8 Punitive damages for disability discrimination, 4.2.8 Emotional distress Sexual harassment, 8.2.8(c), 8.3.9(a) Federal Equal Pay Act, 3.6.1(d) Multiple damages, 30.16.3(a) Punitive damages Disability discrimination, 4.2.8 Sexual harassment, 8.2.8(d), 8.3.9(c) Statutory claims Age Discrimination in Employment Act, 2.2.2(a) Federal Equal Pay Act, 3.6.1(d) Defenses Discrimination See Discrimination Disparate treatment cases, 1.2 Employer, representation of See Employer, Representation of Federal Equal Pay Act, 3.6.1(a), 3.6.1(c) Disability Benefits Application for, effect of, 4.2.4(d), 4.2.9(a), 4.3.3(e) Defendants, insurance plans as, 4.2.7(c) Mental disability benefits, 4.2.7(c) Pregnant workers, entitlement to short-term benefits, 5.3.6(a) Disability Discrimination, Chapter 4 Absenteeism as defense, 4.3.3(a) Administrative agency as forum, 4.2.9(c) Affirmative action policies, 4.3.2(d) Alcoholism, 4.3.2(c) Arbitration of claims, 4.2.9(c) Associational discrimination, 4.2.7(c), 4.3.2 Asymptomatic ailments, 4.2.3(e) Burden of proof Checklist regarding reasonable accommodation, Checklist 4.1 Clarification by courts, 4.2.6(d) Existence of handicap, 4.3.2(a), 4.3.2(c) Failure to provide reasonable accommodation, 4.2.6(e), 4.3.2(b), 4.3.2(d), Checklist 4.1 Generally, 4.2.6(a) MCLE, Inc. | 2nd Edition 2020

MCAD guidelines, 4.3.2(a) Motive of employer as issue, 4.2.6(c) Motive of employer not an issue, 4.2.6(b) Prima facie case, establishing, 4.2.6, 4.3.2(a), 4.3.2(c) Qualified, handicapped person as, 4.3.2(c) Substantial limitation, impairment causing, 4.3.2(c) Business necessity as defense, 4.3.3(d) Collective bargaining agreements, effect of, 4.3.2(d) Compensation, effect of reassignment on, 4.3.2(d) Conditions not considered impairments, 4.2.3, 4.2.4(a) Damages Available damages, 4.2.8 Punitive damages, 4.2.8 State law, 4.2.8 Defendants Disability insurance plans, 4.2.7(c) Individuals, 4.2.7(a) Public entities, 4.2.7(b) Defenses Absenteeism, 4.3.3(a) Business necessity, 4.3.3(d) Direct threat to health or safety, accommodation as, 4.3.3(c) Job-related criteria, 4.3.3(d) Judicial estoppel, 4.3.3(e) Legitimate, nondiscriminatory reason for termination, 4.3.3(a) Misconduct by handicapped person, 4.3.3(a) Poor performance, 4.3.3(a) Strategies, Checklist 4.2 Undue hardship, 4.3.3(b) Direct threat to health or safety, accommodation as, 4.3.3(c) Disability benefits Application for, effect of, 4.2.4(d), 4.2.9(a), 4.3.3(e) Defendants, insurance plans as, 4.2.7(c) Judicial estoppel for application for, 4.2.4(d), 4.2.9(a), 4.3.3(e) Mental disability benefits, 4.2.7(c) Drug addiction, 4.3.2(c) EEOC regulations Americans with Disabilities Act, 4.3.1 Americans with Disabilities Act Amendments Act, 4.3.1 Major life activities, limitations to, 4.3.2(c) Medical examinations, preemployment, 4.3.2(f) I–3

Employment Discrimination in Massachusetts Disability Discrimination EEOC regulations (cont’d) Preemployment inquiries and examinations, 4.3.2(f) Qualified, handicapped person as, 4.3.2(c) Record of impairment or disability, 4.3.2(c) Regarded as having disability, 4.3.2(c) Undue hardship, 4.3.3(b) Emotional disabilities See Mental and Emotional Disabilities Employer’s knowledge of handicap, 4.2.4(c), 4.3.2(e) Essential functions of job Ability to perform, determining, 4.2.4(a), 4.3.2(c) Defined, 4.2.4(a) Existence of handicap Asymptomatic ailments, 4.2.3(e) Burden of proof, 4.3.2(a) Common issues, 4.2.2 Courts, analysis by, 4.2.1 Evaluation of case, 27.2.5(a) Major life activities, 4.2.1, 4.2.3(f), 4.3.2(c) Manual task disability, 4.3.2(c) MCAD guidelines, 4.2.3 Misconduct by handicapped person, 4.2.3(g) Mitigating measures, 4.2.3(h) Perceived as being disabled, 4.2.3(c) Record of impairment or disability, 4.2.3(d), 4.3.2(c) Regarded as having disability, 4.3.2(c) Substantial limitation, impairment causing, 4.2.3(a), 4.3.1, 4.3.2(c) Temporary impairments, 4.2.3(b), 4.3.2(c) Expert testimony, 4.2.9(d) Federal court versus state court, 4.2.9(c) Forum selection, 4.2.9(c) Functional alteration of position, 4.3.2(c) Gender identity, 10.4 Handicap, definitions of, 4.2.1, 4.2.3 Harassment on basis of disability, 4.2.7(c), 4.3.2 Impairment, definitions of, 4.2.1, 4.2.3 Impairments not resulting in disability, 4.2.3, 4.2.4(a) Individual liability, 4.2.7(a) Job-related criteria as defense, 4.3.3(d) Judicial estoppel for application for disability benefits, 4.2.4(d), 4.2.9(a), 4.3.3(e) Leaves of absence, 4.3.2(d), 4.3.3(a) Major life activities, 4.2.1, 4.2.3(f), 4.3.2(c) Manual task disability, 4.3.2(c) MCAD, filing cases with, 4.2.9(c) I–4

MCAD guidelines Burden of proof as to discrimination, 4.3.2(a) Employer’s knowledge of handicap, 4.2.4(c), 4.3.2(e) Essential functions, 4.2.4(a), 4.3.2(c) Existence of handicap, 4.2.3 Medical examinations, preemployment, 4.3.2(f) Preemployment inquiries and examinations, 4.3.2(f) Reasonable accommodation, 4.2.4(b) Failure to provide, 4.3.2(b) Undue hardship, 4.2.5, 4.2.5(a), 4.3.3(b) Medical examinations, Preemployment, 4.3.2(f) Medical records Plaintiffs, strategy for, 4.2.9(a) Mental disability benefits under insurance plans, 4.2.7(c) Misconduct by handicapped person, 4.2.3(g), 4.3.2(d), 4.3.3(a) Mitigating measures, 4.2.3(h), 4.3.2(c) Modification of job tasks, 4.3.2(d) Motions Posttrial, 4.2.9(f) Summary judgment, for, 4.2.9(e) Perceived as being disabled, 4.2.3(c) Personality of client, 4.2.9(a) Plaintiffs, strategy for Administrative agency as forum, 4.2.9(c) Arbitration, 4.2.9(c) Expert testimony, 4.2.9(d) Federal court versus state court, 4.2.9(c) Forum selection, 4.2.9(c) Judicial estoppel, 4.2.9(a) MCAD, filing cases with, 4.2.9(c) Medical records, 4.2.9(a) Personality of client, 4.2.9(a) Publications, helpful, 4.2.10 Resources, 4.2.10 Selection of case, 4.2.9(a) State court versus federal court, 4.2.9(c) Statute of limitations on claims, 4.2.9(b) Summary judgment motions, 4.2.9(e) Time limitations, 4.2.9(b) Treating physician, 4.2.9(a) Trial See subhead: Trial Understanding the disability, 4.2.9(a) Poor performance as defense, 4.3.3(a) Preemployment inquiries and examinations, 4.3.2(f) 2nd Edition 2020 | MCLE, Inc.

Index Disability Discrimination (cont’d) Protected activity, request for accommodation as, 4.3.2(d) Public entities, by, 4.2.7(b) Publications, helpful, 4.2.10 Punitive damages, 4.2.8 Qualified handicapped person, defined, 4.2.1, 4.3.2(c) Reasonable accommodation Affirmative action policies, 4.3.2(d) Checklist, Checklist 4.1 Collective bargaining agreements, conflicts with, 4.3.2(d) Compensation, effect on, 4.3.2(d) Defined, 4.3.2(d) Duty to provide, 4.2.4(b), 4.3.2(d) Emotional disabilities See Mental and Emotional Disabilities Employer’s knowledge of handicap, 4.2.4(c), 4.3.2(e) Failure to provide, Proof of, 4.2.6(e), 4.3.2(b), 4.3.2(d), Checklist 4.1 Interaction between employer and employee, 4.2.4(c), 4.3.2(e) Leaves of absence, 4.3.2(d) Misconduct by handicapped person, 4.3.2(d) Modification of job tasks, 4.3.2(d) Nature of, 4.2.4(b) Protected activity, request for accommodation as, 4.3.2(d) Reasonableness, determination of, 4.3.2(d) Reassignment, 4.2.4(b), 4.3.2(d) Timeliness of, 4.3.2(d) Reassignment, 4.2.4(b), 4.3.2(d) Record of impairment or disability, 4.2.3(d), 4.3.2(c) Regarded as having disability, 4.3.2(c) Resources, 4.2.10 Retaliation, 4.2.7(c) Selection of case, 4.2.9(a) Seniority rules, 4.2.7(c) State court versus federal court, 4.2.9(c) State law, 4.1.1, 4.2.1 Medical examinations, Preemployment, 4.3.2(f) Preemployment inquiries and examinations, 4.3.2(f) Statute of limitations on claims, 4.2.9(b) Substantial limitation, impairment causing, 4.2.3(a), 4.3.1, 4.3.2(c) Summary judgment motions, 4.2.9(e) Temporary impairments, 4.2.3(b), 4.3.2(c) MCLE, Inc. | 2nd Edition 2020

Time limitations, 4.2.9(b) Treating physician, 4.2.9(a) Trial Instructions to jury, 4.2.9(f) Interrogatories, 4.2.9(f) Judges’ familiarity with laws, 4.2.9(f) Jury selection, 4.2.9(f) Posttrial motions, 4.2.9(f) Testimony of plaintiff, 4.2.9(f) Types of claims, 4.3.2 Understanding the disability, 4.2.9(a) Undue hardship, 4.2.5, 4.2.5(a), 4.3.3(b) Discovery Sexual harassment, 8.2.7(a) Discrimination Adverse impact See Adverse Impact Cases Affirmative action plans Disability discrimination, 4.3.2(d) Race, ethnicity, and national origin discrimination, 6.3.3 Arbitration of claims Age discrimination, 2.2.4 Disability discrimination, 4.2.9(c) Associational discrimination Disability discrimination, 4.2.7(c), 4.3.2 Sexual orientation discrimination, 9.2.1(c) Black-letter law in disparate treatment cases, 1.2 Bona fide occupational qualification as defense Age discrimination, 2.2.1(a) Gender discrimination, 3.4 Damages See Damages Defenses Bona fide occupational qualification Age discrimination, 2.2.1(a) Gender discrimination, 3.4 Disability discrimination See Disability Discrimination Race, ethnicity, and national origin discrimination See Race, Ethnicity, and National Origin Discrimination Religious discrimination, 7.4, 7.5.2(b) Sexual orientation discrimination, Checklist 9.1 Disparate impact See Adverse Impact Cases Disparate treatment See Disparate Treatment Cases I–5

Employment Discrimination in Massachusetts Discrimination (cont’d) Harassment See Harassment Individual liability Disability discrimination, 4.2.7(a) Pregnancy discrimination, 5.3.7 Nature of claims, 1.1 Pretext for termination See Pretext for Termination Statute of limitation on claims See Statute of Limitations Title VII claims See Title VII Claims Disparate Impact Cases See Adverse Impact Cases Disparate Treatment Cases Age discrimination, proof of, 2.1.2(b) Black-letter law, 1.2 Burden of proof, 1.2 Defenses, 1.2 Evidence, requirements for, 1.2 Gender identity discrimination, 10.2.3(a) Generally, 1.1 Pregnancy discrimination, 5.2.2(c), 5.3.5, 5.3.5(a) Prima facie case, requirements for, 1.2 Sexual orientation discrimination See Sexual Orientation Discrimination Dress Codes Gender discrimination and, 3.3 Drug Addiction, 4.3.2(c)

E Education Amendments of 1972, Title IX Sexual harassment claims, 8.2.1(b) Email Sexual harassment, evidence of, 8.2.7(a) Emotional Disabilities See Mental and Emotional Disabilities Emotional Distress Damages, Sexual harassment, 8.2.8(c), 8.3.9(a) Employee Benefit Plans Age discrimination claims, defenses to, 2.2.1(c) Equal Employment Opportunity Commission (EEOC) Disability discrimination regulations See Disability Discrimination Older Workers Benefits Protection Act enforcement, 2.3.3 I–6

Religious discrimination, regulations regarding, 7.2.3 Sexual harassment claims, statute of limitations on, 8.2.6(a), 8.3.8 Ethnicity Discrimination See Race, Ethnicity, and National Origin Discrimination Expert Witnesses Disability discrimination, 4.2.9(d)

F Family and Medical Leave Act (FMLA) Pregnant employees, 5.2.5(a) Requirements, 5.2.5(b), 5.3.4(c) Rights of employees under, 5.2.5(a), 5.3.4(c) Federal Equal Pay Act, 3.6 Damages, 3.6.1(d) Defenses, 3.6.1(a), 3.6.1(c) Generally, 3.6.1(a) Paycheck Fairness Act of 2019, 3.6.1(c) Substantial equality, proving, 3.6.1(b) Title VII, relationship to, 3.6.3

G Gender Discrimination, Chapter 3 See also Gender Identity Discrimination Bona fide occupational qualification, 3.4 Discriminatory behavior, 3.1, 3.2 Dress codes, 3.3 Equal pay claims See also Federal Equal Pay Act; Massachusetts Equal Pay Act Chapter 151B, claims under, 3.6.3 Laws, applicable, 3.6 Lilly Ledbetter Fair Pay Act of 2009, 3.6.3 Title VII claims, 3.6.3 Equal Protection Clause, violations of, 3.8 Grooming codes, 3.3 Laws, applicable, 3.1 Lilly Ledbetter Fair Pay Act of 2009, 3.6.3 Massachusetts Equal Rights Act See Massachusetts Equal Rights Act Privacy interests of third parties, 3.4.1 Prohibition of, 3.1 Sex-plus discrimination Age, 3.5.2 Appearance, 3.5.6 Children, 3.5.5 Marital status, 3.5.4 Nature of, 3.5 Pregnancy, 3.5.3 Race, 3.5.1 2nd Edition 2020 | MCLE, Inc.

Index Gender Discrimination (cont’d) Sexual stereotyping, 3.2, 9.2.1(b) Stereotyping, sexual, 3.2, 9.2.1(b) Title VII equal pay claims, 3.6.3 Gender Identity Discrimination, Chapter 10 Disability discrimination, 10.4 Disparate treatment claims, 10.2.3(a) Federal law, 10.3 Gender dysphoria, 10.4 Gender identity, defined, 10.2.1 Harassment, 8.2.3(d), 10.2.3(b) Massachusetts law, 10.2.1 Nature of gender identity, 10.1, 10.2.1 Prohibition of, 3.3, 10.1, 10.2.1, 10.2.2 Recommended practices for employers, 10.5 Representation of transgender persons, tips for, 10.6 Sexual harassment, 8.2.3(d) Title VII claims, 10.3 Transgender persons Discrimination against, 10.1 Representation of, tips for, 10.6 Grooming Codes Gender discrimination and, 3.3

H Harassment Disability discrimination, 4.2.7(c), 4.3.2 Gender identity discrimination, 8.2.3(d), 10.2.3(b) Racial harassment, 6.2.1 Same-sex sexual harassment See Same-Sex Sexual Harassment Sexual harassment See Same-Sex Sexual Harassment; Sexual Harassment Sexual orientation discrimination, 9.2.3(b)

I Injunctive Relief Sexual harassment claims, 8.2.8(a) Interference Claims Sexual harassment, 8.2.5(b)

J Jury Disability discrimination cases, 4.2.9(f) Instructions, Disability discrimination cases, 4.2.9(f) Selection, Disability discrimination cases, 4.2.9(f) MCLE, Inc. | 2nd Edition 2020

L LGBTQ Persons See Same-Sex Sexual Harassment; Sexual Harassment; Sexual Orientation Discrimination Lilly Ledbetter Fair Pay Act of 2009, 3.6.3

M Marital Status Pregnancy discrimination, 5.2.3, 5.3.5(e) Sex-plus discrimination, 3.5.4 Massachusetts Commission Against Discrimination (MCAD) Age discrimination proceedings See Age Discrimination Filing requirements Disability discrimination claims, 4.2.9(c) Guidelines Disability discrimination See Disability Discrimination Massachusetts Parental Leave Act, 5.3.4(b) Maternity leave guidelines, 5.3.4(b) Sexual harassment, Exhibit 8A Massachusetts Parental Leave Act guidelines, 5.3.4(b) Maternity leave guidelines, 5.3.4(b) Model Sexual Harassment Prevention Policy, Exhibit 8B Massachusetts Equal Pay Act, 3.6 Chapter 151B, relationship to, 3.6.3 Comparable work, defining, 3.6.2(b) Generally, 3.6.2(a) 2016 amendments, 3.6.2(b), 3.6.2(c) Massachusetts Equal Rights Act Availability of claims, 3.7.1 Burden of proof, 3.7.1(b) Generally, 3.7.1 Religious discrimination, 7.2 Scope, 3.7.1(a) Massachusetts Fair Employment Practices Act, 9.2.2 Gender discrimination, 3.1 Massachusetts Maternity Leave Act (MMLA), 5.3.4(b) Massachusetts Paid Family and Medical Leave Law (PFML) Available benefits, 5.3.4(a) Deduction of payroll contributions, 5.3.4(a) Enforcement actions, 5.3.4(a) I–7

Employment Discrimination in Massachusetts Massachusetts Paid Family and Medical Leave Law (PFML) (cont’d) Notice requirements Employee taking leave, from, 5.3.4(a) Information provided to employees, 5.3.4(a) Payroll contributions, deduction of, 5.3.4(a) Pregnancy discrimination, 5.3.4(a) Purposes of leave, 5.3.4(a) Massachusetts Parental Leave Act (MPLA) MCAD guidelines, 5.3.4(b) Pregnancy discrimination, 5.2.5(b), 5.3.2, 5.3.4(b) Requirements, 5.2.5(b) Rights of employees under, 5.2.5(b), 5.3.2, 5.3.4(b) Mental and Emotional Disabilities Disability benefits, 4.2.7(c) Mental Illness See Mental and Emotional Disabilities #MeToo Movement, 8.3.11

O Older Workers Benefits Protection Act (OWBPA) EEOC, enforcement power of, 2.3.3 Employment termination programs, 2.3.2 Settlements and releases, 2.3 EEOC, enforcement power of, 2.3.3 Employment termination programs, 2.3.2 Requirements, 2.3.1 Tender back requirement, 2.3.4 Tender back requirement for settlements and releases, 2.3.4

P Paycheck Fairness Act of 2019, 3.6.1(c) Personnel Records Sexual harassment claims, 8.2.7(a) Pregnancy Discrimination, Chapter 5 Absenteeism, termination due to, 5.3.5(g) Adverse job actions, potential, 5.2.2 Affordable Care Act, 5.3.2 Americans with Disabilities Act, 5.2.4, 5.3.4(d) Benefits, entitlement to, 5.3.6(a) Breastfeeding, 5.3.5(e) Child-care responsibilities, 5.2.3, 5.3.5(e) Damages, 5.3.8 Disabilities related to pregnancy Americans with Disabilities Act, 5.2.4, 5.3.4(d) I–8

Benefits, entitlement to, 5.3.6(a) Medical complications, 5.2.4(b) Normal pregnancy, 5.2.4(a), 5.3.4(d) Prohibition of discrimination, 5.2.4 Requirements for employers, 5.3.5(c) Short-term benefits, entitlement to, 5.3.6(a) Temporary disability benefits, entitlement to, 5.3.6(a) Disparate impact, 5.2.2(c), 5.3.5 Disparate treatment, 5.2.2(c), 5.3.5, 5.3.5(a) Elimination of positions, 5.3.5(f) Employers, discrimination against, 5.3.4(f) Facially discriminatory policies, 5.2.2(c) Family and Medical Leave Act, 5.2.5(a), 5.3.4(c) Individual liability of employer, 5.3.7 Laws, applicable, 5.1, 5.2.1, 5.2.2(a), 5.2.2(b), 5.3.2 Mandated by employer, leave, 5.3.4(g) Marital status, 5.2.3, 5.3.5(e) Massachusetts law, 5.2.2(a), 5.3.2 Massachusetts Maternity Leave Act, 5.3.4(b) Massachusetts Paid Family and Medical Leave Law, 5.3.4(a) Massachusetts Parental Leave Act, 5.2.5(b), 5.3.2, 5.3.4(b) Maternity leave, 5.3.4 Family and Medical Leave Act, 5.2.5(a), 5.3.4(c) Mandated by employer, 5.3.4(g) Massachusetts Maternity Leave Act, 5.3.4(b) Massachusetts Paid Family and Medical Leave Law, 5.3.4(a) Massachusetts Parental Leave Act, 5.2.5(b), 5.3.2, 5.3.4(b) Protected activity, as, 5.3.5(b) MCAD guidelines for maternity leave, 5.3.4(b) Overview, 5.2.1 Performance issues, termination due to, 5.3.5(g) Policies, discriminatory, 5.2.2(c) Pregnancy Discrimination Act of 1978, 5.2.2(b), 5.3.2 Pregnant Workers Fairness Act, 5.3.2, 5.3.4(e) Proof Disparate impact, 5.2.2(c) Disparate treatment, 5.2.2(c), 5.3.5, 5.3.5(a) Reductions in force, 5.3.5(f) Remedies for plaintiffs, 5.3.8 Sex-plus discrimination, 3.5.3 Short-term benefits, entitlement to, 5.3.6(a) Tardiness, termination due to, 5.3.5(g) 2nd Edition 2020 | MCLE, Inc.

Index Pregnancy Discrimination (cont’d) Temporary disability benefits, entitlement to, 5.3.6(a) Terms and conditions of employment, alteration of, 5.3.5(d) Title VII, 5.2.2(b), 5.3.2 Types of claims, 5.2.2(c), 5.3.5 Unlawful inquiries, 5.3.3 Pregnant Workers Fairness Act (PWFA), 5.3.2, 5.3.4(e) Pretext for Termination Age discrimination, 2.1.2(b) Punitive Damages Disability discrimination, 4.2.8 Sexual harassment, 8.2.8(d), 8.3.9(c)

R Race, Ethnicity, and National Origin Discrimination, Chapter 6 Affirmative action plans, 6.3.3 Caucasian employees, discrimination against, 6.2.3 Controlling authority, 6.1 Defenses Affirmative action plans, 6.3.3 Prima facie case, challenging, 6.3.1 Similarly situated employees, 6.3.2 Strategy checklist, Checklist 6.2 Laws, applicable, 6.1 National origin discrimination, 6.2.2 Prima facie case, challenging, 6.3.1 Racial harassment, 6.2.1 Sex-plus discrimination, 3.5.1 Similarly situated employees, 6.3.2 Strategies Defendants, Checklist 6.2 Making claims, Checklist 6.1 Unconscious discrimination, 6.2.4 Reasonable Accommodation Disability discrimination See Disability Discrimination; Mental and Emotional Disabilities Religious discrimination, 7.2.1, 7.2.2 Religious Discrimination, Chapter 7 Best practices for employers, 7.5.2(a) Burden of proof, 7.2.1 Checklist of best practices for employers, 7.5.2(a) Controlling authority, 7.2 Defenses, 7.4, 7.5.2(b) EEOC regulations, 7.2.3 MCLE, Inc. | 2nd Edition 2020

Ministerial exception, 7.4.2 Prohibition of, 7.1 Reasonable accommodation, 7.2.1, 7.2.2 Religious Freedom Restoration Act, application of, 7.1 Religious organization exception, 7.4.1 Statutory provisions, Massachusetts, 7.2 Statutory standards, summary of, 7.2.4 Strategies Defendants, 7.5.2 Plaintiffs, 7.5.1 Title VII claims, 7.2.2 Types of claims, 7.1, 7.3 Undue hardship, accommodation causing, 7.4 Religious Freedom Restoration Act, 7.1 Retaliation Sexual harassment Evidence, 8.2.7(d), Exhibit 8A Individual liability, 8.2.5(a) Sexual orientation discrimination, 9.2.3(e) Retirement Age discrimination issues, 2.1.4, 2.2.1(c)

S Same-Sex Sexual Harassment Because of sex, proving discrimination, 8.2.3(c), 8.3.5(a), 9.3.2(c) Defenses, checklist for, Checklist 9.1 Elements of claims, 8.2.3(c), 8.3.5(a), 9.3.2(b) Employer liability, 9.3.3(b) Federal approach Because of sex, proving discrimination, 8.2.3(c), 8.3.5(a), 9.3.2(c) Elements of claims, 8.3.5(a), 9.3.2(b) Objectively offensive harassment, 9.3.2(d) Offensive touching, 9.3.2(c) Oncale v. Sundowner Offshore Servs., Inc., factors in, 8.3.5(a), 9.3.2(c) Pervasiveness of harassment, 9.3.2(d) Proving discrimination, 8.3.5(a), 9.3.2(c) Severity of harassment, 9.3.2(d) Subjectively offensive harassment, 9.3.2(d) Title VII, applicability of, 9.3.2(a) Hostile work environment, 9.3.3(b) Massachusetts approach Case law, 9.3.3(c) Employer liability, 9.3.3(b) Generally, 9.3.3(a) Hostile work environment, 9.3.3(b) Prima facie case, 9.3.3(b) Proving harassment, 9.3.3(b) Unwelcome conduct, 9.3.3(b) I–9

Employment Discrimination in Massachusetts Same-Sex Sexual Harassment (cont’d) Objectively offensive harassment, 9.3.2(d) Offensive touching, 9.3.2(c) Oncale v. Sundowner Offshore Servs., Inc., factors in, 8.3.5(a), 9.3.2(c) Overview, 9.3.1 Pervasiveness of harassment, 9.3.2(d) Prima facie case, 9.3.3(b) Proof of, 8.3.5(a), 9.3.2(c), 9.3.3(b) Resources, 9.3.4 Severity of harassment, 9.3.2(d) Sex stereotyping, 9.3.2(c) Stereotyping, 9.3.2(c) Subjectively offensive harassment, 9.3.2(d) Title VII, applicability of, 9.3.2(a) Unwelcome conduct, 9.3.3(b) Sexual Harassment, Chapter 8 See also Same-Sex Sexual Harassment Additional claims, filing, 8.2.6(c) Aiding and abetting, liability for, 8.2.5(c), 8.3.4 Attorney fees, recovery of, 8.2.8(c), 8.3.9(d) Back pay, 8.2.8(b), 8.3.9(b) Burden of proof, 8.2.7 Constructive discharge, 8.3.6, Exhibit 8A Choice of law, 8.2.2 Consensual romance in workplace, 8.3.5(d) Constitutional claims, 8.2.1(b) Constructive discharge, 8.3.6, Exhibit 8A Continuing violation doctrine, 8.2.6(a), 8.3.8, Exhibit 8A Costs, recovery of, 8.2.8(c), 8.3.9(d) Coworker conduct, liability for, 8.2.4(b), 8.3.3(b) Damages, 8.2.8 Back pay, 8.2.8(b), 8.3.9(b) Economic damages, 8.2.8(b), 8.3.9(b) Emotional distress, 8.2.8(c), 8.3.9(a) Front pay, 8.2.8(b) Lost wages, 8.2.8(b) Punitive damages, 8.2.8(d), 8.3.9(c) Defined, Exhibit 8B Economic damages, 8.2.8(b), 8.3.9(b) Education Amendments of 1972, Title IX, 8.2.1(b) EEOC statute of limitations on claims, 8.2.6(a), 8.3.8 Email messages as evidence, 8.2.7(a) Emotional distress damages, 8.2.8(c), 8.3.9(a) Employer liability Coworker conduct, 8.2.4(b), 8.3.3(b) Evidence, as to, 8.2.7(c) I–10

MCAD Guidelines, Exhibit 8A Nonemployees, 8.2.4(c), 8.3.5(c) Persons in authority, actions of, 8.2.4(a), 8.3.3(a) Standards, applicable, 8.2.4 Supervisors, actions of, 8.2.4(a), 8.3.3(a) Third-party harassment, 8.2.4(c), 8.3.5(c) Evidence Alleged harasser’s statement, 8.2.7(a) Complaints of other employees, 8.2.7(a) Email messages, 8.2.7(a) Employer’s statement, 8.2.7(a) Failure to conduct investigation and take remedial action, 8.2.7(c) Failure to have policy prohibiting harassment, 8.2.7(c) Federal requirements for additional evidence, 8.2.7(b) Financial information about employer and alleged harasser, 8.2.7(a) Liability, establishing, 8.2.7(c) Other employees, complaints of, 8.2.7(a) Personnel records, 8.2.7(a) Plaintiff’s statement, 8.2.7(a) Retaliation, 8.2.7(d), Exhibit 8A Self-help discovery, 8.2.7(a) Statements Alleged harasser’s, 8.2.7(a) Employer’s, 8.2.7(a) Plaintiff’s, 8.2.7(a) Witnesses, 8.2.7(a) Testimony of plaintiff, 8.2.7(a) Types, 8.2.7(a) Witness statements, 8.2.7(a) Failure to conduct investigation and take remedial action, 8.2.7(c) Failure to have policy prohibiting harassment, 8.2.7(c) Federal law Applicable laws, 8.2.1(b), 8.3.1 Hostile environment claims, 8.2.3(b) Filing claims Additional claims in court, 8.2.6(c) Continuing violation doctrine, 8.2.6(a), 8.3.8, Exhibit 8A Court claims, 8.2.6(a) Naming parties, 8.2.6(b) Parties, naming, 8.2.6(b) Statute of limitations, 8.2.6(a), 8.3.8, Exhibit 8A Tort claims, additional, 8.2.6(c) Financial information about employer and alleged harasser as evidence, 8.2.7(a) 2nd Edition 2020 | MCLE, Inc.

Index Sexual Harassment (cont’d) Forum selection, 8.2.2 Front pay, 8.2.8(b) Gender identity, harassment based on, 8.2.3(d) Hostile work environment claims Based upon sex, conduct, 8.3.2(a) Chapter 151B compared to Title VII, 8.3.2(a)–11.3.2(d) Effect of creating hostile environment, 8.2.3(b) Elements, 8.2.3(b), 8.3.2 Federal law, 8.2.3(b) MCAD Guidelines, Exhibit 8A Objectively offensive conduct, 8.3.2(c) Purpose of creating hostile environment, 8.2.3(b) Reasonableness standard, 8.2.3(b) Same-sex sexual harassment, 9.3.3(b) Severe or pervasive conduct, 8.2.3(b), 8.3.2(b) Sexual nature of conduct, 8.2.3(b), 8.3.2(a) Subjective standard, 8.2.3(b) Subjectively offensive conduct, 8.3.2(c) Title VII compared to Chapter 151B, 8.3.2(a)–11.3.2(d) Welcomeness, 8.2.3(b), 8.3.2(d) Individual liability Aiding and abetting, 8.2.5(c), 8.3.4 Interference with protected rights, 8.2.5(b) MCAD Guidelines, Exhibit 8A Prohibited behavior, 8.2.5, 8.3.4 Protected rights, interference with, 8.2.5(b) Retaliation, 8.2.5(a) Injunctive relief, 8.2.8(a) Insurance coverage for claims of, 26.4.1 Interference with protected rights, liability for, 8.2.5(b) Investigation of Checklist, Checklist 8.1 MCAD Guidelines, Exhibit 8A Model policy, Exhibit 8B LGBTQ persons See Same-Sex Sexual Harassment Lost wages, 8.2.8(b) Massachusetts law, 8.2.1(a), 8.3.1 MCAD, filing claims with Continuing violation doctrine, 8.2.6(a), 8.3.8, Exhibit 8A Statute of limitations, 8.2.6(a), 8.3.8, Exhibit 8A MCAD Guidelines, Exhibit 8A #MeToo movement, 8.3.11 MCLE, Inc. | 2nd Edition 2020

Model policy, MCAD, Exhibit 8B Nonemployees, actions of and towards, 8.2.4(c), 8.3.5(c) Objectively offensive conduct, 8.3.2(c) Other employees, complaints of, 8.2.7(a) Overview, 8.1 Personnel records as evidence, 8.2.7(a) Persons in authority, liability for actions of, 8.2.4(a), 8.3.3(a) Policy, employer Content, 8.3.10 Distribution to employees, 8.3.10(b) Failure to have policy prohibiting harassment, 8.2.7(c) Model policy, MCAD, Exhibit 8B Tailored policy, use of, 8.3.10(a) Prevention of Complaint procedure, 8.3.10(e) MCAD Guidelines, Exhibit 8A Investigation checklist, Checklist 8.1 MCAD Guidelines, Exhibit 8A #MeToo movement, 8.3.11 Policy, establishing See subhead: Policy, employer Remedial action, effective, 8.3.10(f) Reporting responsibility of employees, 8.3.10(d) Training of employees, 8.3.10(c) Protected rights, liability for interference with, 8.2.5(b) Punitive damages, 8.2.8(d), 8.3.9(c) Quid pro quo claims Elements, 8.2.3(a), 8.3.7 MCAD Guidelines, Exhibit 8A Remedies, 8.2.8 Attorney fees, recovery of, 8.2.8(c), 8.3.9(d) Back pay, 8.2.8(b), 8.3.9(b) Costs, recovery of, 8.2.8(c), 8.3.9(d) Damages, 8.2.8 Back pay, 8.2.8(b), 8.3.9(b) Economic damages, 8.2.8(b), 8.3.9(b) Emotional distress, 8.2.8(c), 8.3.9(a) Front pay, 8.2.8(b) Lost wages, 8.2.8(b) Punitive damages, 8.2.8(d), 8.3.9(c) Economic damages, 8.2.8(b), 8.3.9(b) Emotional distress damages, 8.2.8(c), 8.3.9(a) Failure to take remedial action, 8.2.7(c) Front pay, 8.2.8(b) Injunctive relief, 8.2.8(a) Lost wages, 8.2.8(b) I–11

Employment Discrimination in Massachusetts Sexual Harassment Remedies (cont’d) Prevention of harassment through, 8.3.10(f) Punitive damages, 8.2.8(d), 8.3.9(c) Reporting responsibility of employees, 8.3.10(d) Retaliation Evidence, 8.2.7(d), Exhibit 8A Individual liability, 8.2.5(a) Same-sex sexual harassment See Same-Sex Sexual Harassment Self-help discovery, 8.2.7(a) Severe or pervasive conduct, 8.2.3(b), 8.3.2(b) Sexual nature of conduct, 8.2.3(b), 8.3.2(a) Sexual orientation, harassment based on, 8.2.3(d), 8.3.5(b) Statute of limitations on claims, 8.2.6(a), 8.3.8, Exhibit 8A Supervisors, liability for actions of, 8.2.4(a), 8.3.3(a) Tailored policy, use of, 8.3.10(a) Third-party harassment, liability for, 8.2.4(c), 8.3.5(c) Title IX, 8.2.1(b) Title VII claims Applicability, 8.2.1(b) Hostile work environment; state law claims compared, 8.3.2(a)–11.3.2(d) Same-sex sexual harassment, 9.3.2(a) Tort claims, additional, 8.2.6(c) Training of employees, 8.3.10(c) Welcomeness of conduct, 8.2.3(b), 8.3.2(d) Witness statements, 8.2.7(a) Workplace romance, 8.3.5(d) Sexual Orientation Discrimination, Chapter 9 Adverse actions, 9.2.3(c) Agency developments, 9.2.1(d) Associational discrimination, 9.2.1(c) Because of sex, discrimination, 9.2.1(a) Benefits, differential treatment in, 9.2.3(d) Congressional developments, 9.2.1(d) Defenses, checklist for, Checklist 9.1 Definition of sexual orientation, 9.2.2(a) Differential treatment in benefits, 9.2.3(d) Disparate impact, 9.2.4 Disparate treatment, 9.2.3 Adverse actions, 9.2.3(c) Benefits, differential treatment in, 9.2.3(d) Differential treatment in benefits, 9.2.3(d) Harassment based on sexual orientation, 9.2.3(b) I–12

Nonselection in hiring or promotion, 9.2.3(a) Retaliation, 9.2.3(e) Exemptions in Massachusetts law, 9.2.2(b) Federal agency developments, 9.2.1(d) Gender stereotyping, 9.2.1(b) Harassment See also Same-Sex Sexual Harassment Based on sexual orientation, 9.2.3(b) Laws, applicable, 9.1 Liability, 9.2.2(c) Massachusetts law, 9.2.2 Applicability, 9.2.2(a) Exemptions, 9.2.2(b) Liability under, 9.2.2(c) Protected persons, 9.2.2(a) Standards for evaluating claims, 9.2.2(d) Nonselection in hiring or promotion, 9.2.3(a) Prohibition of, 9.1, 9.2.1 Resources, 9.2.5 Retaliation, 9.2.3(e) Sexual harassment See Same-Sex Sexual Harassment Standards for evaluating claims, 9.2.2(d) States prohibiting discrimination, 9.2.2 Title VII Applicability, 9.2.1, 9.2.1(a) Gender stereotyping, 9.2.1(b) Supreme Court cases, 9.1 Words referring to individuals, use of, 9.1 Statute of Limitations Age discrimination claims ADEA actions, 2.2.3(c) State actions, 2.2.3(b) Age Discrimination in Employment Act, 2.2.3(c) Discrimination claims Age discrimination ADEA actions, 2.2.3(c) State actions, 2.2.3(b) Age Discrimination in Employment Act, 2.2.3(c) Disability discrimination, 4.2.9(b) Sexual harassment, 8.2.6(a), 8.3.8, Exhibit 8A

T Title IX Claims Sexual harassment, 8.2.1(b) Title VII Claims Equal pay claims, 3.6.3 Federal Equal Pay Act, relationship to, 3.6.3 2nd Edition 2020 | MCLE, Inc.

Index Title VII Claims (cont’d) Gender identity discrimination, 10.3 Gender stereotyping, 9.2.1(b) Hostile work environment; state law claims compared, 8.3.2(a)–11.3.2(d) Pregnancy discrimination, 5.2.2(b), 5.3.2 Religious discrimination, 7.2.2 Sexual harassment Applicability of Title VII, 8.2.1(b) Hostile work environment; state law claims compared, 8.3.2(a)–11.3.2(d) Same-sex sexual harassment, 9.3.2(a) Sexual orientation discrimination Applicability of Title VII, 9.2.1, 9.2.1(a) Gender stereotyping, 9.2.1(b) Supreme Court cases, 9.1

MCLE, Inc. | 2nd Edition 2020

Tort Claims Sexual harassment, 8.2.6(c) Transgender Persons See Gender Identity Discrimination

U Undue Hardship Disability discrimination, 4.2.5, 4.2.5(a), 4.3.3(b), 19.3.2(i) Religious discrimination, 7.4

W Witnesses Sexual harassment, 8.2.7(a)

I–13