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Massachusetts courts often require individuals on probation, particularly sex offenders, to wear GPS monitors that track their every movement.  Imposing this requirement, the state’s highest court said for the first time recentlyis a search, meaning that a judge can only lawfully require such monitoring after making an individualized determination that balances “the Commonwealth’s need to impose monitoring against the privacy invasion occasioned by such monitoring.”   

The two decisions issued by the Supreme Judicial Court (SJC), Commonwealth v. Feliz and Commonwealth v. Johnsonare the first to apply Grady v. North Carolina, a 2015 Supreme Court decision holding that GPS monitoring is in fact a search protected under the Fourth Amendment’s prohibition against “unreasonable” searches.  While the SJC had previously treated GPS monitoring as something else, calling it, for instance, “punishment” for committing an offense, Feliz and Johnson clarify that under both federal and state constitutional law, GPS monitoring is in fact a search. Applying its own new standard, the SJC reached contrasting results, deciding that GPS monitoring was unreasonable in Feliz but reasonable in Johnson 

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More than one in six American employees provides care or assistance for an elderly or disabled family member or friend. Caregiving responsibilities cut across socioeconomic and demographic groups, although women and low-income individuals still assume a disproportionate share of such responsibilities.  One in seven Americans is currently age 65 or older, but that number is projected to increase to one in five Americans by 2040.  As the population ages, the number of employees with caregiving responsibilities is only likely to grow.

The Equal Employment Opportunity Commission (EEOC) recognizes that employees with caregiving responsibilities face discrimination in the workplace related to these responsibilities.  For example, an employee may be prevented from taking leave to which she is entitled or punished when she exercises her right to such leave; an employee may be penalized for his association with a disabled employee; or an employee may be stereotyped as lazy or uncommitted to her job merely due to her caregiving responsibilities.

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Massachusetts is one step closer to a strengthened equal pay law after the State Senate passed equal pay legislation in late January.  The bill, which now goes to the House of Representatives for review, seeks to address the continuing wage gap between men and women.  Although Massachusetts adopted its first-in-the-nation equal pay act in 1945, women in Massachusetts still earn approximately 80 percent of what men earn.  Women of color earn even less: African-American women earn 66 cents on the dollar, while Latina women earn 54 cents on the dollar compared to men.  An analysis by the Institute for Women’s Policy Research has concluded that Massachusetts will not close the pay gap until 2058.

The proposed new law seeks to accelerate the rate of change by making three key updates to the Massachusetts Equal Pay Act (“MEPA”).  First, the legislation broadens the definition of “comparable work” by explaining that “comparable work” is any work that is “substantially similar” in content and requires “substantially similar” skill, effort, and responsibility, performed under similar working conditions.  Moreover, employers cannot rely solely on job titles or descriptions to determine whether work is comparable.  If adopted, this new definition would overrule the narrower “comparable work” definition created by the Supreme Judicial Court in two decisions issued in the mid-nineties in the same case, Jancey v. School Committee of Everett.  Those decisions – the first to squarely interpret “comparable work” in the context of the state’s equal pay act – failed, as the dissenting justices noted in Jancey II, to look “beyond job labels” and perceptions of job differences “that are, in part at least, artifacts of sexual stereotyping and traditional job segregation by gender.”  By moving away from the Jancey definitions, the new legislation permits a broader analysis of whether work is truly comparable.

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Last week, a Massachusetts federal trial court opened the door to a direct constitutional challenge to the death penalty.  “The court remains concerned,” Judge Mark L. Wolf wrote, “about the potential rate of error in federal capital cases generally and the risk of the execution of the innocent particularly.” The court therefore invited defense counsel to submit a “future, focused presentation” on whether the rate of error renders the death penalty unconstitutional.

This invitation to challenge the death penalty came in United States v. Sampson, the long-running federal death penalty prosecution of Gary Lee Sampson.  Sampson was indicted in 2001 after three separate incidents in which he murdered three individuals and stole or attempted to steal their cars.  He was charged federally for carjacking resulting in the deaths of two of the individuals, those killed in Massachusetts.  He pled guilty in 2003 and was subsequently sentenced to death by a federal jury.  That sentence was vacated in 2011 due to juror misconduct, and Sampson is now awaiting a new penalty-phase trial to determine his sentence.  Last year, Sampson filed twenty-six motions raising constitutional issues, and on October 28, 2015, the trial court issued an 89-page decision denying all of Sampson’s motions.

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Last week, in Commonwealth v. McGhee, the Massachusetts Supreme Judicial Court (“SJC”) addressed, for the first time, the constitutionality of the Massachusetts sex trafficking statute. Massachusetts criminalized sex trafficking in 2011. The state law bars “subject[ing], or attempt[ing] to subject, or recruit[ing], entic[ing], harbor[ing], transport[ing], provid[ing] or obtain[ing] by any means . . . another person to engage in commercial sexual activity . . . or caus[ing] a person to engage in commercial sexual activity,” or benefitting financially from any such conduct. G.L. c. 265, § 50(a). “Commercial sexual activity” is defined as “any sexual act on account of which anything of value is given, promised to or received by any person.”

In the case before the SJC, the allegations were that the two defendants had approached three women, taken photographs to advertise the women’s services on the website Backpage.com, and then driven the women to various locations to have sex with men. The defendants kept some or all of the money that the women received in exchange for engaging in sex acts. Both defendants were found guilty of trafficking persons for sexual servitude. (One defendant was also found guilty under a separate state law of deriving support from the earnings of a prostitute.) Continue reading

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On Friday, the Supreme Judicial Court reminded the Boston police department (“BPD”) that it cannot give women a special hiring preference and thereby discriminate against men simply because there are woefully few women in the department. Sean Pugsley sued for discrimination after the BPD deliberately bypassed its main certification list for hiring in order to hire twenty-eight women.  In Pugsley v. Police Department of Boston, the SJC struck a delicate balance, leaving intact the BPD’s hiring decision while criticizing the BPD for the manner in which it conducted its hiring.  Specifically, the SJC dismissed Pugsley’s case, holding that he had no right to sue (or, to be technical, he had no standing) because he was so far down the BPD’s hiring list that he could not show anything more than a speculative injury.

The case arose from a hiring process that began around March 2010.  The BPD hires candidates by considering the following groups in order.  First, it may consider any qualified cadets (up to thirty-five or one-third of a Boston police academy class).  Then the department turns to a “main certification” list.  Top priority on the certification list goes to candidates for “reemployment” – meaning, generally, anyone who has been laid off from the police department.  The next category is for those with a preferred hiring status, such as veterans.  The remainder of the list ranks all other individuals based on their scores on the most recent civil service exam.  Pugsley was the top candidate in this last category; however, because of the other preferences, he ranked 214 on the main certification list.

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Over the last few weeks, in the midst of our ongoing national discussion about law enforcement use of force, both the Supreme Court and the Massachusetts Supreme Judicial Court (“SJC”), in Kingsley v. Hendrickson and Commonwealth v. Asher, have joined the conversation with decisions reviewing use of force incidents.  While these two recent cases are very different in that they address distinct areas of the law and distinct factual contexts for the use of force, they share at least one striking similarity: in both Kingsley and Asher, the high courts give no deference to claims by law enforcement officers that their use of force was reasonable.  Instead –and in contrast to the many other decisions where courts have shown a troubling willingness to rationalize even the use of deadly force by law enforcement – these recent decisions suggest that in certain cases courts may now be willing to engage in a more careful review of law enforcement action.

In Kingsley v. Hendrickson, a decision issued Monday, June 22, 2015, the Supreme Court assessed what a pretrial detainee alleging that jail officers used excessive force against him would need to show to prove that the force used was unreasonable.  Michael Kingsley was arrested in Wisconsin on a drug charge and detained in a county jail pre-trial.  During his detention Kingsley refused multiple requests by officers to remove a piece of paper covering the light fixture above his bed.  When officers eventually came to his cell to remove the paper, Kingsley refused to comply with their directions.  He was removed from his cell, handcuffed, and placed face down on a bunk with his hands behind his back.  An officer then placed his knee in Kingsley’s back.  According to Kingsley, that officer and another officer slammed Kingsley’s head into the concrete bunk.  (The officers denied this specific allegation.)  All parties agree that Kingsley – who was still handcuffed with his face on a bunk – was then stunned with a taser to the back of the head for approximately 5 seconds.

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Massachusetts’ expanded parental leave law, An Act Relative to Parental Leave, goes into effect today.  The revised statute makes several significant changes to state law.  First, it removes any doubt about whether men are entitled to leave.  The amended law is gender neutral: men and women who work for employers with six or more employees are entitled to the same parental leave.  Employees who have completed an initial probationary period – as set by the employer, but not to exceed three months – are entitled to 8 weeks unpaid parental leave.  An employee who intends to take leave under the statute must provide 2 weeks’ notice of his or her anticipated departure date and intention to return, or provide such notice as soon as practicable if the reason for delay in providing notice is beyond the employee’s control.  An employee who takes leave under the statute must be reinstated to the same position or a similar position, meaning one that is comparable in terms of factors such as status and pay.

The second major change in the law clarifies when an employee is eligible for reinstatement.  While the state law mandates at least 8 weeks of unpaid leave, many employers offer benefits that exceed the minimum provided for under the state statute.  In 2010, the state’s highest court concluded that an employee who took more than the eight weeks leave provided for in the statute was not covered by the law’s reinstatement requirement.  The amended parental leave act clarifies that an employee is entitled to reinstatement unless the employer informs the employee – in writing, before the start of the employee’s leave and before any subsequent extension of that leave – that taking more than 8 weeks leave will result in denial of reinstatement or the loss of other rights and benefits.  In other words, the default is that employees are entitled to reinstatement and an employer who wishes to exclude an employee from this provision of the law must make its intention to do so clear.

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Angela Ames resigned from her position at Nationwide Mutual Insurance Company just three hours after she returned from maternity leave.  Upon her return, she sought access to the company’s lactation rooms and was informed that she would have to wait three days for permission to use a room.  She was also told that since none of her work had been completed during her maternity leave, she would have to complete eight weeks worth of work during her first two weeks back or face discipline.  When she asked her manager to help her find a place to pump milk, the manager told Ames, “You know, I think it’s best that you go home to be with your babies,” handed Ames a piece of paper and a pen, and dictated what she should write in her resignation letter.

Ames resigned, and both a federal trial court and a federal appeals court threw out Ames’ discrimination case.  These decisions relied in large part on the fact that Ames failed to stay in her job and fight the treatment she was receiving.  The trial court, however, also concluded that lactation is not a pregnancy-related condition – and therefore not protected by the Pregnancy Discrimination Act – because some men can lactate.  When the Supreme Court recently refused to hear Ames’ case, it was male lactation that attracted numerous headlines.  The Supreme Court, however, was not asked to weigh in on male lactation.  It was asked to consider whether the appeals court correctly assessed when an employee can hold an employer liable for forcing her to quit, and – as in the vast majority of cases that come before it – the Supreme Court declined to review the case.

In July 2014, well after the trial court issued its decision in Ames’ case, the federal Equal Employment Opportunity Commission (EEOC) made clear  that lactation is a pregnancy-related medical condition and that treating an employee less favorably because she is breastfeeding is therefore discrimination.  Likewise, harassing an employee because of her breastfeeding is illegal if the harassment is severe or pervasive.  Any workplace policy or practice that singles out breastfeeding for less favorable treatment is discrimination because, the EEOC notes, breastfeeding is a condition that only affects women.  It would, for example, violate Title VII, to permit an employee to use her break time for personal reasons, but to have a policy preventing her from pumping or expressing milk during her break time.

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On Wednesday, the Supreme Court heard oral argument in Young v. UPS, a case that examines what protections pregnant workers have under the Pregnancy Discrimination Act (“PDA”).  As I explained in detail earlier this week, the issue in Young is whether an employer who accommodates some of its workers by providing light duty or modified work assignments is required to provide pregnant workers who are “similar in their ability or inability to work” with the same accommodations it voluntarily provides its other workers.  Oral argument was lively and we’ll know by June at the very latest how the Supreme Court will decide this case.  (One court-watcher predicts a ruling in favor of UPS, but hedges that his “confidence level is not high on this prediction.”)

The PDA, however, is not the only law that protects pregnant workers.  As the Equal Employment Opportunity Commission (“EEOC”) made clear in the updated pregnancy guidance it released this summer, pregnant women are not exempt from the protections of the ADA.  Pregnant workers who have medical conditions that would trigger ADA protection are entitled to reasonable accommodations on the same terms as any other workers who have ADA-protected medical conditions.  In order to be covered by the ADA, a pregnant woman must establish that she has a pregnancy-related condition that substantially limits one or more major life activities; the EEOC clarifies that even “impairments of short duration that are sufficiently limiting can be disabilities.”  Numerous medical conditions associated with pregnancy may qualify for protection under this test.  These include carpal tunnel syndrome, cervix problems, sciatica, pelvic inflammation, gestational diabetes, preeclampsia, nausea that causes severe dehydration, abnormal heart rhythms, swelling, or depression.  Moreover, even a non-specific pregnancy-related condition – such as a doctor’s opinion that a pregnancy is “high risk” and therefore requires certain limitations, even where there is no diagnosis of a specific medical impairment –may able to obtain protections under the ADA.  The ADA also protects pregnant women who are “regarded as” having disabilities.  If an employer takes adverse action against a pregnant woman – for example, it refuses to hire her, terminates her, or reassigns her to a low-paying position against her will – the employer may also be liable under the ADA for disability discrimination.

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