News + Insights from the Legal Team at Zalkind Duncan & Bernstein

pexels-phung-touch-675001486-17843099-scaledOn April 17, 2024, in Muldrow v. City of St. Louis, the Supreme Court held that an employee bringing a discrimination claim under Title VII based on a job transfer does not need to show that she suffered significant harm with respect to the transfer, only that she suffered some harm.

Background Facts

Sergeant Jatonya Muldrow worked as a plainclothes officer at the St. Louis Police Department in the specialized Intelligence Division from 2008 through 2017. As part of her position, Sergeant Muldrow was deputized as a Task Force Officer with the Federal Bureau of Investigation, which granted her FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigation outside St. Louis. She also worked with high-ranking officials on the Intelligence Division and worked a traditional Monday through Friday schedule.

pexels-rfstudio-3825368-scaledTenure is a crucial foundation for academic freedom at colleges and universities. Once professors receive tenure, they have a lifetime job from which it is very difficult for them to be fired. Nonetheless, tenure alone does not insulate a faculty member from institutional pressure. After all, the school still sets pay and benefits, chooses recipients for grants and awards, sets teaching assignments and schedules, and more. Faculty members in the sciences, whose research depends on access to expensive labs and equipment, are particularly dependent on financial support from their institutions. 

In a decision issued in early March in Henry Wortis v. Trustees of Tufts College, the Massachusetts Supreme Judicial Court took on the question of what protections tenure gives professors from pay cuts and loss of access to lab space. The case was brought by eight faculty members at the Tufts University School of Medicine—including Henry Wortis, a Professor of Immunology—who were granted tenure at various points between 1970 and 2009. In 2017 and 2019, Tufts adopted new policies under which professors who failed to cover a certain percentage of their salaries with external grants could have their pay reduced. These policies resulted in very significant decreases in compensation for the plaintiffs: Wortis’s annual salary, for instance, fell from approximately $190,000 to around $97,000. Many of the plaintiffs also had their appointments reduced to less than full-time, potentially exposing them to tenure revocation procedures. Additionally, in 2016, Tufts also adopted a policy tying the availability of lab space to the coverage of indirect costs by external grant funding brought in by faculty members. Several of the plaintiffs had their lab space reduced under this policy, impeding their ability to conduct research.  

After pursuing an internal grievance procedure, the faculty plaintiffs sued the university in 2019 for breach of contract and other claims, based on both the reduction of the compensation and the loss of lab space. A Superior Court judge granted summary judgment to Tufts on all counts, and the plaintiffs appealed. In an opinion by Justice Scott Kafker, the SJC affirmed the judgement with respect to the lab space issue, but reversed on the issue of compensation, sending the case back to the trial court. 

pictogram-884043_1280Two weeks ago the First Circuit heard oral argument in a case that touches on some of the most hot-button issues in education law: student speech rights and discrimination against LGBTQ students. In L.M. v. Town of Middleborough, the Court must decide whether the Middleborough public schools could tell a student he was not allowed to wear a t-shirt that says: “There are only two genders.”  

The case started in March 2023, when seventh grader L.M. wore a shirt to school that said “there are only two genders.” L.M. made this political statement against a backdrop – according to the school—of repeated concerns at the school about bullying of LGBTQ students and several students at the school contemplating or attempting to die by suicide, including students who attributed those actions to anti-LGBTQ experiences at the school. After receiving complaints from students and staff, the principal told L.M. he had to take the shirt off if he wanted to go back to class. L.M. declined, and his parents picked him up and took him home for the rest of the day. L.M. was not disciplined for wearing the shirt and wore other shirts with various political messages with no incident. In May 2023 L.M. wore the shirt to school again—this time with a piece of tape that read “censored” covering the words “only two.” L.M. was sent to the principal during his first class and removed the shirt rather than be excluded from school for the rest of the day.  

The District Court Case 

pexels-cottonbro-studio-5077066-scaledThe ongoing battle over the employment rights of app-based drivers reached a new stage last week, when a group of drivers and union leaders brought a lawsuit to block a new set of ballot measures aimed at exempting app-based drivers from employment protections. 

When workers are categorized as employees, rather than independent contractors, the law requires their employer to provide them with certain benefits and protections. In Massachusetts, the test for determining who is an employee for purposes of the Wage Act is particularly inclusive. In the growing gig economy, providing gig workers with the expansive protections the law grants employees can be costly for employers, which has led to many battles over gig workers’ status.  

In Massachusetts, that battle grew serious in July 2020, when then-Attorney General Maura Healey filed a lawsuit in against Uber and Lyft on behalf of drivers, seeking a declaration that they qualify as employees under the Massachusetts Wage Act. That lawsuit is currently scheduled for trial in May of this year. 

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Massachusetts could become the first state in the country to enact a broad workplace anti-abuse law intended to hold employers liable for perpetuating, condoning, or ignoring psychological abuse at work. On October 10, 2023, Massachusetts had the highest number of advocates in the nation ever testify in front of the legislature in favor of anti-abuse legislation in the workplace. Workers, employment attorneys, human resources professionals and others urged the Massachustts Joint Committee on Labor and Workforce Development to pass the Workplace Psychological Safety Act. The committee has until February to move the proposed bill forward.  

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A recent decision against Harvard University in favor of a student accused of sexual assault demonstrates a viable path to challenging student discipline decisions. As we have discussed previously, courts are wary of interfering with academic decisions of universities, but have been willing to hold schools accountable for failing to follow their own established policies in student disciplinary processes. Where a student handbook or other policy promises certain protections, courts will defend the reasonable expectations of students who encounter a process significantly less fair than what the university agreed to provide. These principles came into play in the “Dr. Doe” case, recently decided by the Massachusetts Superior Court. 

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In 2022 the Supreme Court recognized for the first time a constitutional right under the Secondhandgun-231696_1280 Amendment to carry a firearm in public, outside of the home, for the purpose of self-defense. As we observed earlier this year, courts and legislatures across the country are still trying to figure out the meaning and limits of New York State Rifle & Pistol Association, Inc. v. Bruen. Several pending cases in different jurisdictions could dramatically affect the rights of defendants—including those in Massachusetts—facing criminal charges related to firearms. 

What firearms licensing regimes remain acceptable after Bruen? Bruen overturned licensing schemes that relied on non-objective, discretionary criteria for whether licenses could issue (so-called “may issue” regimes).  This November, the federal Fourth Circuit Court of Appeals issued a 2-1 decision in Maryland Shall Issue v. Moore, applying Bruen to invalidate the firearms licensing scheme in Maryland. Maryland’s scheme relied on objective criteria (a so-called “shall issue” system) and thus observers initially assumed it would survive Bruen. The system, however, was somewhat complex: in addition to a registration process for each firearm and a process for obtaining a carry permit, Maryland required would-be gun-owners to obtain a “handgun qualification license” that required finger-printing, to take a four-hour training course, and to wait up to 30 days for approval. For two Republican-appointed judges on the Fourth Circuit, this went too far to comply with Bruen’s recognition of a fundamental right to carry firearms, despite suggestions in Bruen that requiring background checks and safety courses was still acceptable. Maryland has petitioned the Fourth Circuit to rehear the case before the entire court. In the meantime, the decision suggests that the licensing scheme in Massachusetts, although recently revised to be made into a “shall issue” system to comply with Bruen, could still be vulnerable to challenge. 

Another issue concerns the carrying of firearms across state lines. Massachusetts’ gun laws are quite strict, while some of its very nearby neighbors have extremely relaxed legal regimes. For instance, G.L. c. 269, § 10(a), the Massachusetts law punishing carrying a firearm without a license, imposes a mandatory minimum prison sentence of eighteen months. In New Hampshire, by contrast, less than an hour north of Boston, carrying a firearm in public without a license is completely legal. In August of this year, a state District Court judge in Lowell dismissed carrying charges on the grounds that the defendant was a legal resident of New Hampshire. The judge reasoned that the ability to exercise a fundamental constitutional right could not shift so dramatically just because the defendant crossed a state line. The Commonwealth has appealed the ruling to the Appeals Court, where the case is currently pending. 

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We have repeatedly discussed on this blog how schools handle sexual misconduct allegations through internal grievance procedures. However, students involved in these processes must remember that the conduct that gives rise to Title IX allegations may also give rise to civil and criminal legal proceedings. Students involved in school misconduct cases need to understand how these different proceedings may intersect and impact one another before deciding how to approach their cases. 

University Title IX and sexual misconduct policies prohibit sexual harassment, which includes sexual assault, dating violence, and stalking. All these behaviors are also criminal—though the definitions used in the criminal law and in school policies may differ. For example, in Massachusetts criminal law, indecent assault and battery is defined as an intentional, unjustified touching of a person’s private areas (a term that has been defined through case law to include various body parts). In many college and university policies sexual assault means sexual acts without consent, which is often defined as “affirmative, voluntary, knowing, and continuous agreement to engage in a specific form of sexual activity” (to quote the Wellesley College policy). All criminal sexual activity is generally also prohibited by school sexual misconduct policies, but there are categories of sexual misconduct that are prohibited by schools but may not be criminal. 

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This is a follow up to two previous blog posts about clemency: you can read the first post here and the second post here. 

After almost a year in office, last month Governor Maura Healey finally issued new Executive Clemency Guidelines. These Guidelines inform how the Massachusetts Parole Board evaluates whether petitioners are granted clemency. As explained in my previous blog post, there are two forms of clemency: commutation and pardon. A commutation is a reduction in sentence, which means the convicted individual faces a shorter period of incarceration than originally mandated. A pardon forgives the underlying offense, which means the individual’s conviction is erased. Governor Healey’s new Guidelines should enable more people to both viably petition for and receive grants of clemency because the new Guidelines have improved the previous Guidelines issued by Charles Baker in several significant ways. Further, Governor Healey’s new Guidelines track many of the recommendations provided by the Massachusetts Bar Association and Clemency Task Force Proposed Clemency Guidelines

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pexels-armin-rimoldi-5553051-1-scaledWe frequently represent graduate students who have experienced discrimination or harassment in their programs, something that studies have indicated is unfortunately common.  The unique status of graduate students within universities affects what legal protections for discrimination apply to them. Graduate students often hold multiple roles simultaneously – student, research assistant or teaching assistant, advisee, and mentee. Their success as early-career researchers is uniquely tied to their relationships with faculty mentors and others in their discipline, meaning they may be less likely to report discrimination. But when it comes to asserting legal claims, the key issue is how their mixed status as student and employee affects what claims they can pursue.  

 
Relevant anti-discrimination statutes 

For graduate students who also carry out paid work, there are overlapping protections from discrimination under federal and state law. Various provisions of the Civil Rights Act of 1964 prohibit discrimination in educational programs and institutions, including Title IX (sex) and Title VI (race, color, and national origin). Title VII of the Civil Rights Act and the Massachusetts anti-discrimination statute, Massachusetts General Laws Chapter 151B, bar discrimination in employment. And the federal Americans with Disabilities Act (ADA) prohibits disability-based discrimination in both employment and education. Outside Massachusetts, the anti-discrimination laws of other states protect students and employees as well, often providing stronger protections than federal law. 

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