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cdc-w9KEokhajKw-unsplash-scaledMy colleague recently explained how Massachusetts and federal leave laws may apply to employees who contract COVID-19 or who are medically required to self-quarantine because of concerns about COVID-19. In addition to leave laws, such as the Massachusetts earned sick time law and the Family and Medical Leave Act (FMLA)state and federal disability laws provide protections to employees. Disability laws also allow employers to require medical examinations and exclude employees from the workplace in certain circumstances.

The main state and federal laws that prohibit disability discrimination in the workplace are the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Massachusetts General Laws ch. 151B. These laws provide similar protections and generally prohibit discrimination against an employee because of that employee’s real or perceived disability, or that employee’s history of having a disability. Disability laws also require employers to provide “reasonable accommodations” to disabled employees to allow them to perform their jobs. 

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person-getting-his-blood-check-1350560Today, the Supreme Judicial Court (SJC) hears oral argument in Commonwealth v. Bohigian, a case that addresses, among other issues, when law enforcement can take a subject’s blood without consent and when evidence of that blood draw is admissible in court.  

Mr. Bohigian was charged with operating under the influence and related crimes after a severe car accident. When Mr. Bohigian arrived at the hospital after the accident, police presented nurse with a search warrant to draw his blood. Over Mr. Bohigian’s objection and at the instruction of a police officer, the nurse drew Mr. Bohigian’s blood. The results of the blood test indicated that Mr. Bohigian’s Blood Alcohol Content (BAC) was over the legal limit at the time of the accident. 

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Zalkind Duncan & Bernstein LLP is proud to announce that Naomi Shatz has joined the firm’s partnership effective January 1, 2020.  Naomi will continue her litigation practice in employment, students’ rights, and Title IX matters.  For more information about Naomi’s background and experience, find her biography here.

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NS-ScreenshotZalkind Duncan & Bernstein LLP is proud to announce that Attorney Naomi Shatz has been selected by the Women’s Bar Association to participate in its 2020 Women’s Leadership Initiative class. Established in 2009, the Women’s Leadership Initiative (WLI) is a program that brings together senior women attorneys and up and coming stars of the legal profession for leadership development and mentoring. WLI alumni include Attorney General Maura Healey and other high-ranking government attorneys, law firm partners, and accomplished in-house attorneys. Congratulations, Naomi!

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Attorneys Naomi Shatz and David Russcol were interviewed by Massachusetts Lawyers Weekly about the right to cross-examination in sexual misconduct investigations at private colleges, following the First Circuit’s recent decision in Doe v. Boston College. Click here to read the article, and click here to read Attorney Russcol’s blog post about the decision.

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If the volume of calls to our office is any indication, the Boston Public School (BPS) system is stepping up enforcement of its residency policies. It is not surprising that with national attention on the “Varsity Blues” scandal (involving prosecutions of celebrities who fraudulently secured their children’s acceptance to college), and increasing criticism of the lack of diversity at Boston’s elite exam schools, BPS would be looking to crack down on students falsely claiming to live in Boston in order to attend Boston schools. But parents and students have a right to understand and contests BPS’s findings in these investigations: Fifteen years ago a Massachusetts court made clear to BPS that before it could declare a student a non-resident and remove him or her from the BPS system, it had to provide the student’s family basic due process protections. Unfortunately it appears that BPS continues to ignore this court decision and families’ rights in pursuing residency enforcement actions.

What are the BPS residency requirements?Boston-Latin

Massachusetts General Laws chapter 76, § 5 states “Every person shall have a right to attend the public schools of the town where he actually resides.” The law seems clear enough, but of course the devil is in the details: what does it mean to reside in Boston? This is a question our courts have answered: in most cases, the minor student “resides” where the parent(s) who has (or have) physical custody resides. The BPS Superintendent’s Office has issued a policy further explaining what it views this statute to require, and how BPS will determine residency. Following Massachusetts court cases that have defined residency, the policy defines “residence” as “the place that is the center of [the student’s and/or parent’s] domestic, social, and civic life.” The focus of “residency” is therefore not only whether the student has a physical address in Boston, though of course that is relevant, but on where the center of the student’s life is. This focus indicates that where questions about residency arise, BPS must conduct a holistic evaluation that takes into account non-traditional family and education arrangements.

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ShatzAttorney Naomi Shatz argued today before the Massachusetts Appeals Court in a case that again addresses a question the Massachusetts courts have grappled with for years: what types of speech can form the basis of a harassment prevention order? In the firm’s case, the plaintiff sought a harassment prevention order on the basis of anonymous letters sent to her clients that contained unfavorable information about her. Shatz argued on behalf of her client that the extraordinary remedy of a harassment prevention order is meant only to reach two narrow types of constitutionally unprotected speech: fighting words and true threats, and is not meant to be used to address purely economic harms that can be remedied through normal civil legal processes.

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Whether you are heading off to your first year of college, or are returning for your fourth (or sixth, or ninth) year of higherbeer-pong education, you are likely aware that sexual assault prevention is a big issue on college and university campuses today. We represent students—both those who have experienced sexual assault or misconduct and those accused of sexual misconduct—in campus proceedings at colleges and universities around the country. Here is some information that all students should know before heading back to campus.

What is Title IX, and What Does It Mean for my School?

Title IX is the federal law that prohibits discrimination on the basis of sex in education. In addition to ensuring that there are equal athletic and educational opportunities for all students, it also requires schools to address and take steps to prevent sex-based discrimination on campus, including sexual harassment and sexual assault. If a school knows of sex-based discrimination on campus and does not adequately respond to it, a court may find the school has violated Title IX.

In practice, what that means for your school is that it is obligated to address complaints of sexual harassment, dating violence, and sexual assault if it learns of them. Almost every school has set up a Title IX office solely to address these kinds of complaints. The job of this office is to resolve those complaints – which often but not always entails a disciplinary process against the accused student.

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In April, six women filed a proposed class-action gender discrimination, sexual harassment, and pregnancy discrimination lawsuit in federal court in D.C. against international law firm Jones Day, with four of the women proceeding under the pseudonyms “Jane Doe 1-4.” business-894846_1920The court initially allowed this, stating “Plaintiffs significant interest in maintaining their anonymity at this stage of the litigation is sufficient to overcome any general presumption in favor of open proceedings.” Jones Day vigorously contested this move, arguing that by allowing the women to proceed under pseudonym, the court was giving credence to the women’s argument that Jones Day would retaliate against them if their identities were public, that it prevents the public from assessing the claims, and that because the plaintiffs courted publicityproceeding under pseudonym was inappropriate. Jones Day also argued that it could not investigate the women’s claims without knowing their identities. In similar gender, pregnancy, and family responsibility discrimination cases filed against Jones Day in 2018 and just this month, the plaintiffs chose to proceed under their own names. Over the course of the litigation, all but one of the anonymous plaintiffs chose to reveal their identities. On August 7, 2019, the judge presiding over the case issued a sealed order requiring the last remaining anonymous plaintiff to reveal her identity. In lieu of revealing her identity, Jane Doe 4 left the lawsuit. 

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massachusetts-69816_1920Last week the U.S. Court of Appeals for the First Circuit released its second decision in the last few years addressing campus sexual misconduct disciplinary proceedings. In Haidak v. University of Massachusetts-Amherst, the First Circuit largely found for the University, concluding, as my colleague recently discussed, that the procedures it applied in Mr. Haidak’s case were sufficient to pass constitutional muster.

In writing about these campus disciplinary proceedings, the court glossed over the factual realities of these cases and made some concerning statements that—if schools were to adopt them as policy—would undermine students’ rights.  

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