Boston Lawyer Blog

Two New SJC Opinions Refine Long Decision on Suppressing Evidence from Racially-Motivated Stops

Published on: May 24, 2023 | by Tom Miller

Considerable data shows that police stop Black people in the U.S. much more frequently than white people. At least some of these stops are motivated by racial profiling, implicit or explicit, in violation of the constitutional guarantee of equal protection. But how, in practice, can a Black defendant establish that the stop in his or her case was racially motivated—and use this fact to defeat a criminal charge?

Supreme Judicial Court Requires Prosecutors to Prove Lack of License in Firearm Cases

Published on: April 25, 2023 | by David Russcol

Since its 2008 decision in Heller, the U.S. Supreme Court has been expanding the understanding of the constitutional right to bear arms under the Second Amendment. Heller held that the Second Amendment right is individual, and not limited to the context of an organized, “well-regulated militia.” In 2010, the Court held in McDonald that the right to bear arms applies to the states, not just against the federal government. Both Heller and McDonald addressed the context of keeping a firearm for self-defense in the home. But in the 2022 case of Bruen, the Supreme Court extended that right beyond the home, to include carrying a firearm in public, at least under some circumstances. State courts and legislatures are still grappling with the consequences of that decision.

Independent Contractor or Employee? What it Means and Why it Matters

Published on: April 19, 2023 | by Jennifer M. Herrmann

Employees have the benefit of a whole set of laws designed to protect them in the workplace. But what happens when an employer tells a worker that they are an independent contractor, or simply gives that worker a 1099? What you as a worker need to know is that whether you are an employee or an independent contractor doesn’t necessarily depend on what the employer says—it depends on the nature of the work you do.

Kluge v. Brownsburg Community School Corporation Caps off Week of Legal Developments on Transgender Rights

Published on: April 10, 2023 | by Naomi Shatz

Last week saw a wave of legal developments—legislative, jurisprudential, and administrative—on issues related to trans rights. While state legislatures passed laws restricting medical care for transgender minors, and barring trans women and girls from participating in school sports, federal appellate courts upheld the rights of transgender students and the Biden administration weighed in on the trans athlete issue. On April 6 the Supreme Court refused to lift a ban imposed by the Fourth Circuit on the enforcement of a West Virginia law that would prevent transgender students from competing on sports teams that corresponded to their gender while litigation about the constitutionality of the law is pending. West Virginia was attempting to enforce that law against a 12-year-old girl who wanted to run track at her middle school. That same day the U.S. Department of Education released a proposed rule that would address transgender students’ athletic participation. That rule, however, far from protecting trans students’ right to be treated equally to other members of their gender, would only prohibit a school from imposing a blanket ban on students’ participation in sports that corresponded to their genders. Schools would retain the authority to restrict trans athletes’ participation in sports if they could show that the restriction is “substantially related to the achievement of an important educational objective and (ii) minimize[s] harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”

The Supreme Judicial Court Must Clarify What Evidence Plaintiffs Need to Present to Have Discrimination Cases Heard by a Jury

Published on: April 4, 2023 | by Lucie Gulino

Earlier this month, the Massachusetts Supreme Judicial Court (SJC), heard oral arguments for Mark A. Adams v. Schneider Electric USA, Inc., an age discrimination lawsuit in which Monica Shah and I filed an amicus brief in support of Adams, on behalf of the Massachusetts Employment Lawyers Association.

The Facts

Adams worked as an electrical engineer at Schneider Electric in Andover, Massachusetts from 2007 to 2017. On January 27, 2017, as part of a reduction-in-force (RIF), Schneider Electric laid off Adams, who was 54 years old at the time. As part of this RIF, Schneider Electric laid off seven other employees, all of whom were over 55 years old. There were two other RIFs at Schneider Electric within a year of Adams’ termination and of the 24 employees laid off, 23 of them were 44 years or older. Adams had strong performance reviews throughout his employment with Schneider Electric and when one of his direct supervisors discovered he was terminated, the supervisor asked for Schneider Electric to bring Adams back because Adams’ absence threatened the success of one of the supervisor’s projects; Schneider Electric declined to re-hire Adams. While Schneider Electric maintains that Adams’ termination of employment had nothing to do with his age and the person who fired Adams acted alone without influence from others at the company, Adams argues that there are several factors surrounding his termination that suggest he was discriminated against because of his age, including a Human Resources employee instructing the decision-maker who fired Adams to consider age when selecting candidates to terminate for the RIF. In addition, there was voluminous e-mail documentation between Schneider Electric employees discussing restructuring tactics that included letting go of older employees to make room for a younger workforce.

What is FERPA and What Are my Rights?

Published on: March 22, 2023 | by Naomi Shatz

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We often get calls from people wondering whether their school or their child’s school has violated their privacy rights with respect to education records, and if so, what can be done about it. While federal law provides significant privacy rights for students those rights are not absolute, and there are limited mechanisms to enforce violations.

What is FERPA

The Family Educational Rights and Privacy Act (FERPA) is a federal law that was passed in 1974 to protect the privacy of student education records. The law applies to educational agencies and institutions that receive funds from the U.S. Department of Education. FERPA gives parents or students 18 and older (“eligible students”) the right to inspect and review students’ education records. It also gives parents and eligible students the right to request amendment of the student’s records, and the right to a hearing if the school denies the request to amend.

ZDB is Hiring!

Published on: March 9, 2023 | by Zalkind Duncan & Bernstein LLP

ZALKIND DUNCAN & BERNSTEIN LLP is hiring an associate to join our premier Boston criminal defense and civil litigation boutique. This progressive 13-lawyer firm has a dynamic federal and state court practice, at both the trial and appellate levels. Our criminal defense practice includes crimes of violence, fraud and drug offenses, white collar crimes, and other felonies and misdemeanors. Our civil practice consists primarily of plaintiff-side employment matters (mostly discrimination cases), and representing students, faculty, and other employees accused of misconduct or facing discrimination at colleges and universities (including in Title IX proceedings). We also have a general civil litigation and complex motions practice.

We are looking for an attorney with 1-2 years of experience and excellent research, analytical, and writing skills. Judicial clerkship a plus. Competitive benefits. Associates must be available for court, depositions, and other in-person proceedings in the Greater Boston area. Associates currently work in the office at least two days per week and may otherwise work remotely where that is compatible with the needs of a case. More information about our firm can be found on our website: http://www.zalkindlaw.com.

Interested applicants should email a cover letter, resume, law school transcript, writing sample (preferably 5-10 pages long, showing writing that has not been substantially edited or revised by anyone other than the author), to resume@zalkindlaw.com with “Application for associate position” in the subject line. Please name the files including your materials as follows: “firstname lastname – Cover Letter,” “firstname lastname – Resume,” “firstname lastname – Transcript,” and “firstname lastname -Writing Sample.”

Whole Foods Employees Fired for Supporting Black Lives Matter Suffer New Defeat, But Law Evolves on Associational Discrimination

Published on: February 17, 2023 | by Tom Miller

In the summer of 2020, the United States was experiencing both the early phase of the COVID-19 pandemic and nation-wide outrage over the police killing of George Floyd. Employees at Whole Foods grocery stores around the country—some Black, some not—began wearing face masks promoting the Black Lives Matter movement. Whole Foods management responded by reprimanding these employees for violating a dress code policy against clothing with messages or logos, even though the policy had never been consistently enforced in the past. Employees who insisted on wearing the masks were sent home. Eventually, some employees were fired.

One employee who was fired was Savannah Kinzer, who worked at the River Street Whole Foods store in Cambridge. In July 2020, Kinzer and others from around the country sued Whole Foods in a Massachusetts federal court, alleging racial discrimination and illegal retaliation under Title VII of the Civil Rights Act. On January 23, 2023, Kinzer suffered a defeat when District Court Judge Allison Burroughs, an Obama appointee, granted a motion by Whole Foods for summary judgement. Despite the disappointing outcome, the litigation so far has also prompted positive developments with respect to associational discrimination claims in the First Circuit.

Phases of the Case

Clemency in Massachusetts and its Potential for Revitalization

Published on: January 27, 2023 | by Lucie Gulino

Massachusetts has a fraught history with clemency and has strongly disfavored this post-conviction remedy for decades. Last year, however, there was a slight uptick in the number of clemency grants: Governor Charles Baker approved 3 commutations for Thomas Koonce, William Allen, and Ramadan Shabazz and 10 pardons.

Article 73 of the Amendments to the Constitution of the Commonwealth vests clemency power in the governor. 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. Although clemency power technically vests in the governor, there are multiple entities involved in the decision-making process. CONTINUE READING ›

In Commonwealth v. Karen K., the Supreme Judicial Court Approves the Patfrisk of a Black Teenager, But Offers Hints for Future Challenges

Published on: January 10, 2023 | by Tom Miller

The use of “patfrisk” or “stop-and-frisk” techniques by police is a serious—and, in some communities, alarmingly frequent—intrusion on personal liberty and dignity. In Commonwealth v. Karen K., the Massachusetts Supreme Judicial Court (SJC) considered the case of a sixteen-year-old African-American girl stopped and patfrisked by Boston police, who discovered a loaded firearm in the waistband of her pants. The case provided an opportunity for the Commonwealth’s highest court to revisit some of the same highly charged questions of constitutional law at play in their controversial and fractured 2021 decision in Commonwealth v. Sweeting-Bailey, which we previously discussed on this blog.