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Articles Posted in Employment Law

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What Teachers and Other School Employees Need to Know About Title IX 

  While many people think of Title IX as a law that applies only to students, in fact the law does not mention students at all. The language of the statute is: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Professors, teachers, and other employees of educational programs are protected by Title IX, and also have obligations under Title IX not to engage in actions that constitute sex-based discrimination or harassment.  

Title IX Protects Employees from Discrimination and Harassment 

As I have previously discussed, Title IX protects school employees from gender-based harassment or discrimination. The current federal regulations implementing Title IX make explicit that Title IX prohibits employment discrimination on the basis of sex, stating “A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner.” While there has been some disagreement among different federal courts about whether employees can bring Title IX claims if they also have claims under Title VII (the federal law prohibiting discrimination in employment more generally), the majority of appeals courts have found that employees can bring claims under both laws. The Department of Justice’s Title IX Legal Manual makes clear that that Department agrees with the circuits that have found that employees can pursue both Title IX and Title VII claims: “The Department takes the position that Title IX and Title VII are separate enforcement mechanisms. Individuals can use both statutes to attack the same violations.” Here in Massachusetts, both the First Circuit, in a case from 1988, and a judge in the District of Massachusetts in a case last year, have held that Title IX claims are not preempted by Title VII claims, and school employees can pursue both claims simultaneously.  CONTINUE READING ›

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Uber-EatsThe SJC struck an initiative from November’s ballot that, if approved, would have created a new class of “app-based driver” not subject to many bedrock employment laws. In Koussa v. Attorney General, the Court held that the proposed initiative raised too many different policy questions, and, thus, did not meet constitutional requirements for petitions. Because Massachusetts law only allows ballot initiatives that present voters with “related” and “mutually dependent” issues, the Court held that the Attorney General should not have allowed the initiative onto the ballot. CONTINUE READING ›

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Image-A-scaledTitle VII promises to protect employees who oppose workplace discrimination and harassment in good faith.  Over time, judicial opinions have eroded this protection by creating an exception that has allowed employers to discipline employees if the employer deems that the manner of the employee’s complaints was insubordinate or disruptive. Last fall, the First Circuit affirmed this exception in a panel decision in Jenkins v. Housing Court Department. In that case, a Black Costa Rican employee emailed multiple discrimination complaints to his supervisors and various staff. The employer then terminated the employee for disobeying orders after he was told and refused, to cease his complaints. The First Circuit affirmed a ruling of summary judgment for the employer. Last month, the plaintiff filed a petition for certiorari, asking the Supreme Court of the United States to weigh in on a doctrine that has appeared in various forms in the lower courts and that, as scholars have noted, severely undercuts Title VII’s anti-retaliation provisions. 

The insubordination exception is not rooted in Title VII’s text or legislative history, but emerged in a 1976 preliminary injunction decision concluding that a female biologist whose employer characterized her pay complaints as disloyal and noncooperative was not protected by Title VII, Hochstadt v. Worcester Found. for Experimental Biology.   

Most modern First Circuit Title VII cases—including Jenkins—draw the principle that anti-retaliation statutes do not protect employees from termination for insubordination from Mesnick v. General Electric Co., a First Circuit ADEA retaliation case in which the employer terminated an employee in part for his “confrontational attitude” and other interpersonal issues with coworkers and managers against whom he alleged age discrimination. Mesnick draws its reasoning from Jackson v. St. Joseph State Hospital, an Eighth Circuit Title VII case regarding a hospital accountant who was terminated for “highly offensive and disruptive” attempts to obtain a specific statement from a coworker to use in his sex discrimination case against the hospital. Jackson, in turn cites Hochstadt.  

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option-2-scaledOn Friday the Supreme Judicial Court handed employees a decisive victory, holding in Meehan v. Medical Information Technology, Inc. that employers cannot retaliate against employees who exercise their statutory rights to file rebuttals in their personnel record. In so holding, the SJC overturned a decision of the Appeals Court from earlier this year (which we discussed on this blog). The Appeals Court had held that while the state’s personnel records law gives employees the right to submit written responses to documents in their personnel records with which they disagree, because the Legislature did not write a provision prohibiting retaliation for exercising that right, an employer could fire the employee for submitting such a rebuttal.  

 The SJC overturned the Appeals Court. In an opinion written by Justice Kafker, the Court held that a termination in retaliation for an employee exercising their rights under the personnel records statute violates the Commonwealth’s public policy. While Massachusetts is generally an “at-will” employment state—meaning an employer has the right to terminate an employee at any time for (almost) any reason—there are statutory exceptions to that rule. An employer cannot fire an employee for discriminatory reasons, or because the employee engaged in certain protected activity, like making complaints about discrimination, health and safety issues, or equal pay issues. Where there is no statute preventing an employer from terminating an employee, the only common law constraint on employers is that they cannot terminate an employee for reasons that would violate a public policy. As Justice Kafker noted in his opinion, the Court previously held the public policy doctrine has been recognized “for asserting a legally guaranteed right (e.g., filing a worker’s compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)” and for employees performing important public deeds. When an employee’s actions fall under one of these categories they are protected from termination. 

 In Meehan the Court held that the rights created by the public records law fall under the first category of the public policy exception to the at-will employment rule: when an employee files a rebuttal in their personnel record they are asserting a legally guaranteed right. In coming to this decision, the Court noted that the Appeals Court had weighed whether the statutory right set forth in the personnel record law was “important.” While the Appeals Court had concluded it was not, the SJC disagreed. The Court held that “the right of rebuttal and accuracy of information in personnel files” is important for employees to protect their ability to seek other employment, for future employers to have accurate information about the people they hire, and for evaluating employers’ compliance with Massachusetts laws. More importantly, however, the Court held that whether a right is “important” is not a decision a Court should make determining whether an employee was terminated in violation of public policy for asserting a legal right. The Court stated that by passing the personnel record statute, the Legislature had already made the decision that the right is important. This holding will extend beyond the context of the Meehan case; where the Legislature has created a statutory right, Meehan should be read to mean that the exercise of that right will always be protected from retaliation under the public policy exception, even if the statute itself does not contain an anti-retaliation provision.   

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By Mackenpexels-anthony-shkraba-5244025-scaledzie Bouverat, Law Student Intern

As states begin to lift restrictions designed to prevent the spread of the coronavirus, some employers have begun to require that their employees return to some form of in-person work, whether full-time or hybrid. Yet even for the fully vaccinated, the risk of infection is not eliminated. And for employees with disabilities, the possibility of contracting COVID-19 may present a grave risk. CONTINUE READING ›

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pexels-tracy-le-blanc-607812-scaledThe convergence of widespread social media use, and recent national social movements and events—including the current war in Israel and Palestine, the MeToo movement, the Black Lives Matter movement, and the COVID-19 pandemic—has led to a growing number of public school teachers and other government employees being disciplined for statements they make on their private social media. Here in Massachusetts,  a teacher was fired after posting a diatribe against people living in poverty and the conversation about privilege. In Ohio, a teacher was fired after making a social media post criticizing police brutality against students. There has been significant attention paid to public university professors across the country, with institutions taking differing views of whether they can terminate professors for their online speech. In Texas, Collin College fired three professors  for making political comments on social media and criticizing their institutions’ handlings of the COVID-19 pandemic. In Indiana, the University of Indiana said it could not fire a professor who wrote posts denigrating women and LGBTQ people. We have been hearing from more public school teachers in Massachusetts and other states who are being harassed, doxxed, investigated, and sometimes disciplined for their private social media posts about political and social issues. CONTINUE READING ›

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kai-pilger-dwBZLRPhHjc-unsplash-scaledBy Catherine Willett, Law Student Intern

About 20% of workers in the United States are contractors: individuals hired to work on a specific project or for a specific period of time. This number is bound to grow as employment through the gig economy reaches into more sectors and the use of subcontractor agencies proliferates. Indeed, participation in the gig economy has expanded enormously during the COVID-19 pandemic. But the pandemic has also exposed the vulnerability of gig workers and the precarity of relying on gig work as a sole source of income. Many statutory workplace protections do not apply to independent contractors. The lack of healthcare benefits, paid time off, and minimum wage protections for gig workers has been the subject of considerable recent media attention. And while Congress expanded unemployment benefits to these workers during the pandemic, they generally do not qualify for unemployment benefits because neither they nor whoever they are performing services for pay into unemployment insurance. CONTINUE READING ›

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capitol-building-415839_1920By Sophie Nguyen, Law Student Intern

Eight years ago, a teacher in San Diego was fired from her job for experiencing domestic violence. After her abusive ex-husband showed up at the school where she taught to confront her, the school decided that her mere presence posed too much of a “risk,” and fired her, despite the fact that her ex-husband was arrested and later incarcerated. Later that year, California passed a law prohibiting this type of discrimination against people who were experiencing domestic violence. This teacher’s story is not unique: 74% of domestic violence survivors report that they have suffered some form of abuse at work. As a Washington, D.C. court noted, quoting testimony provided at a legislative hearing: “Studies have shown that 96% of employed domestic violence victims experience problems at work related to the abuse and that 30% lose their jobs due to domestic violence.” While many of us think of domestic violence as an issue that resides within the home, the reality is that it inherently affects survivors’ ability to function in the workplace. Employment is also often the only way for survivors to achieve financial independence from their abusers; without it, many survivors must remain with their abusers. Employers have a significant role to play in addressing domestic violence, both by protecting their employees at work and ensuring that their employees can remain employed even while dealing with domestic violence situations. Despite these facts, 65% of companies do not have a formal workplace domestic violence prevention policy.

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pexels-photo-357514In Massachusetts, as in many other states, the Legislature has adopted a personnel record law that specifies documents and information that every employer must maintain in an employee’s personnel record, such as documents relating to an employee’s qualifications and possible promotions, transfer, or discipline. For instance, many employers must include an employee’s job description and rate of pay, job application and resume, performance reviews, warnings, and termination notices. Employees have the right to review or receive a copy of their personnel records on request, and employers must notify employees if negative information is put into their personnel records. In order to promote accuracy of personnel records, the law allows employers and employees to agree to remove or correct information in these files, and if an employee disagrees with information contained in their personnel record, they have the explicit right to submit a written response, which the employer must include whenever they transmit the disputed information to a third party (such as a potential future employer).

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Gordon-CollegeTwo weeks ago, the Massachusetts Supreme Judicial Court (SJC) heard oral argument in Deweese-Boyd v. Gordon College, a case which tests the limits of the “ministerial exception” and the legal protection it provides for religious employers. CONTINUE READING ›

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