Employment Law

Judge’s Discovery Order in EEOC Transgender Litigation: Right Result, But Reason for Caution

Published on: September 28, 2015 | by Ruth O'Meara-Costello

I have written previously about the EEOC’s litigation on behalf of Aimee Stephens, whose employer—a Michigan funeral home—fired her when she announced that she was transitioning and would present as a woman at work in the future. At ZDB we have continued to follow this potentially groundbreaking federal litigation in the Eastern District of Michigan. In the most recent development, Magistrate Judge David R. Grand granted the EEOC’s motion for a protective order, seeking to prevent the defendant funeral home from violating Ms. Stephens’ privacy during the process of discovery in the case. While, given the nature of the discovery sought, this was patently the right outcome, the judge’s order could (and, in my view, should) have provided more assurance to future transgender litigants that they will be protected from attempts to use discovery as a tool to invade their privacy and humiliate them.

The discovery requests at issue sought detailed disclosures on numerous personal matters totally irrelevant to the ultimate issue in the case (which, following the court’s decision on the funeral home’s motion to dismiss, is whether the funeral home fired Ms. Stephens because she did not conform to its sex- or gender-based preferences, expectations, or stereotypes). Among those matters was Ms. Stephens’ medical history: the funeral home sought her medical and counseling records as well as asking whether she “currently has male sexual organs, including but not limited to, a penis and testicles”; whether she has had “any surgery performed to remove or modify any male sexual organs”; and whether she has undergone hormone therapy. The funeral home also sought to pry into Ms. Stephens’ family life, asking for detailed information on any past marriages (including all pleadings from any prior divorce), her biological offspring, her communications with her family regarding her transition, her wife’s feelings about the transition, and the current state of her marriage.

Substantial Statistical Disparities in a Workforce Do Not Justify Gender-Based Hiring Policies

Published on: August 4, 2015 | by Emma Quinn-Judge

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.

Supreme Court Expands Protection Against Religion-Based Employment Discrimination

Published on: June 8, 2015 | by David Russcol

The Supreme Court has recently been quite receptive to litigants asserting their rights to religious freedom. (For Exhibit A, see Burwell v. Hobby Lobby.) On June 1, the Court in EEOC v. Abercrombie & Fitch applied that pro-religion perspective in the employment discrimination context and took a fairly strong stand against religion-based discrimination. The Court held that employers cannot hide behind facially neutral policies where religious practices are concerned. Rather, it stated that religious practices must be given “favored treatment,” and a failure to accommodate religious practices constitutes intentional discrimination under federal law, subjecting employers to damages.

In this case, a woman named Samantha Elauf applied for a job at Abercrombie & Fitch. She is a practicing Muslim and wears a headscarf. The assistant manager who interviewed her would have hired her, but was not sure whether the headscarf would violate a store policy against wearing “caps” while on the job. The assistant manager believed (correctly) that the headscarf was religious in nature, but did not ask Elauf whether she would need an accommodation. A district manager said that any headwear, religious or not, would violate the policy, and Elauf was not hired. A lower court found this discriminatory and awarded the EEOC (on Elauf’s behalf) $20,000 in damages. The Court of Appeals reversed, holding that, to be held liable on a failure to accommodate claim, the employer must have “actual knowledge” that the employee (or prospective employee) would need a religious accommodation.

New Protections for Massachusetts Domestic Workers, Part 2

Published on: May 29, 2015 | by Monica Shah

Note: This post is Part 2 in our series of blog posts detailing protections under the Massachusetts Domestic Workers Law. Click here to return to Part 1.

What are the Employer’s Notice and Record-Keeping Obligations?

The new law and proposed regulations also impose a number of record-keeping obligations on household employers.

Domestic workers are permitted to request a written evaluation of their work within three months of their employment and every year thereafter. If an employer completes a written evaluation, the worker has the right to review it and dispute its contents under Massachusetts’ personnel record law, M.G.L. ch. 149 s. 52C. In the event of a disagreement, the personnel records law requires an employer to either amend the evaluation or include the worker’s written response with the evaluation in his or her records and in any transmission to a third party of the evaluation. M.G.L. ch. 149 s. 52C.

New Protections for Massachusetts Domestic Workers, Part 1

Published on: May 29, 2015 | by Monica Shah

Earlier this spring, the Massachusetts Domestic Workers Bill of Rights Act took effect, providing expansive new protections and rights to individuals who provide household services, including childcare, housekeeping, housecleaning, cooking, and eldercare.

In the past, domestic workers have had informal and flexible arrangements with their household employers with respect to job description and duties, hours and rate of pay, rest and vacation time, and the grievance and termination process. This has created a potential for abuse particularly in cases involving domestic workers who are vulnerable due to immigration status or who lack the ability to advocate for themselves due to limited English skills. Until the passage of the new law, domestic workers have had only limited recourse in state and federal wage and hour laws, tort, and contract law to remedy wage violations or poor working conditions.

In Da Rosa v. City of New Bedford SJC Rolls Back Access to Public Records

Published on: May 22, 2015 | by Naomi Shatz

On May 15, 2015 the Supreme Judicial Court released its opinion in DaRosa & others v. City of New Bedford, Monsanto Company & others, addressing the question of how the work-product doctrine and public records laws interact when government entities are involved in litigation. The case has negative implications for those, like our firm, who routinely litigate against public agencies in employment and other matters. It also further undercuts the effectiveness of the already-weak Massachusetts Public Records Law.

In 1999, in a case called General Electric Company v. Department of Environmental Protection, the SJC held that privileged work-product materials are subject to disclosure under the public records statute unless they fall under one of the specific statutory exemptions listed in Mass. G. L.c. 4, § 7, Twenty-sixth. The court rejected the lower court’s reasoning that there is an implied exemption in the public records statute that covers work product. It noted that although the Federal FOIA law explicitly exempts from disclosure internal documents that would not be available to parties in litigation with the government agency, the Massachusetts public records law, although modeled after FOIA, did not contain that language, indicating the legislature intended to allow work-product to be considered a public record unless otherwise exempted by statute. As a practical matter, the General Electric opinion meant that litigants engaged in suits with the government could circumvent the work-product protection and obtain government documents via public records requests that they could not obtain in the normal course of discovery.

EEOC’s Litigation on Behalf of Transgender Employees Reveals Reach (and Limits) of Federal Anti-Discrimination Law

Published on: May 11, 2015 | by Ruth O'Meara-Costello

In September 2014, the EEOC filed its first employment discrimination lawsuits on behalf of transgender employees. (Rachel Stroup previously wrote about those suits, and related moves by the federal government to recognize antidiscrimination protection for transgender individuals, here.) The first of those suits, against an eye clinic, has settled; the clinic agreed to pay the employee $150,000 as well as to take specified proactive actions to avoid discrimination in the future. The second, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., is a suit pending in the Eastern District of Michigan on behalf of a transgender employee, Amiee Stephens, whose employer, a funeral home, allegedly fired her when she informed it that she was undergoing a gender transition from male to female and intended to dress in appropriate business attire as a woman. That case has just survived the defendant’s motion to dismiss. The Court’s reasoning should encourage employees who believe that they are experiencing discrimination due to transgender status to stand up for their rights, but it also reveals continuing gaps in federal discrimination law that Congress should act to remedy.

Massachusetts’ Expanded Parental Leave Law Provides Equal Parental Leave to Men and Women and Increases Protections for Employees Who Take Leave

Published on: April 7, 2015 | by Emma Quinn-Judge

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.

Supreme Court: Employers Cannot Exclude Pregnant Women from Broad Accommodation Policies

Published on: March 31, 2015 | by Zalkind Duncan & Bernstein LLP

Eight years ago, Peggy Young lost her medical coverage after she was forced to take an extended leave of absence from her job at UPS, because UPS would not accommodate her pregnancy-related weight-lifting restriction (her doctor limited her to lifting no more than 10-20 pounds during pregnancy). Although UPS accommodated other employees with restrictions stemming from a wide range of sources—including a disability; an on-the-job injury; or loss of a commercial driver’s license due to a drunk driving charge—the company placed pregnancy in the narrower field of conditions for which they were not willing to make accommodations.

Young sued, asserting that UPS violated the Pregnancy Discrimination Act (“PDA”) by treating her differently than other similarly situated employees because of her pregnancy. Her case was heard by the Supreme Court in December 2014; we discussed the case, its factual background, and its possible outcomes, here. This week, the Supreme Court, in a 6-3 vote, issued a ruling favorable to Young: it rejected the lower court’s narrow reading of the Pregnancy Discrimination Act, reversed its dismissal of Young’s case, and sent the case back to the appeals court for further review.

The Gender Wage Gap Persists, But There Are Legal Solutions to Pay Inequality

Published on: March 6, 2015 | by Ruth O'Meara-Costello

At this year’s Academy Awards, Patricia Arquette used the platform she gained as a Best Supporting Actress winner to speak about pay inequality, saying, “It is our time to have wage equality once and for all and equal rights for women in the United States of America.” Persistent gender discrimination in employment is a barrier to that goal, but for women who experience pay discrimination at work, there are a variety of possible legal remedies. This post explores some of the laws available to help address wage inequality under federal and Massachusetts law and outlines some of the ways that they do–and do not–protect female workers from unfair pay.

A federal law, the Equal Pay Act of 1963, 29 U.S.C. § 206(d), forbids employers from discriminating in the payment of wages on the basis of sex by paying employees of one sex less “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Equal pay is required even for employees whose jobs are not identical, so long as they are substantially equal. There are numerous exceptions to the equal pay requirement: an employer can justify unequal wages if it can demonstrate that the difference results from “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”