Boston Lawyer Blog

Published on: August 23, 2019

The First Circuit Reaffirms that Prior Conduct Can Prove Current Sexual Harassment or Other Discriminatory Harassment

On August 21, 2019, the U.S. Court of Appeals for the First Circuit released a decision that reaffirms that a hostile work environment claim can span many years, so long as some of the acts that are part of the broader pattern of harassment occurred within the statute of limitations period. In Nieves Borges v. El Conquistador Partnership, the First Circuit reversed a grant of summary judgment for a defendant, holding that the district court erred in excluding past evidence of sexual harassment in evaluating the plaintiff’s. The Court emphasized that “so long as one instance of harassment falls within the statutory limitations period,” “the entire period of the hostile environment may be considered by a court for the purposes of determining liability.”  In other words, past conduct is part of the broader pattern of harassment at issue and is therefore relevant to assessing the nature of an employer’s bad behavior.

The plaintiff in Nieves Borges took a long time to report the harassment he faced.  This is, of course, not unusual in employment discrimination cases in which a worker who experience sexual or other types of harassment fears losing his or her job.  The plaintiff had worked at his company as a food service manager for twenty-two years when he was terminated in July of 2015.  During that time, a high level manager (the Director of Human Resources) had harassed the plaintiff for more than a decade: According to the plaintiff that harassment included unwanted touching and frequent episodes in which the manager would look the plaintiff up and down while pressuring him to go out for drinks. In 2007, the alleged harasser went so far as to proposition the plaintiff over lunch. After that time, the alleged harasser bothered the plaintiff intermittently, even asking him to socialize several times in 2014, but never propositioned him again. But the plaintiff did not report his supervisor’s behavior until 2014, years after the pattern began and well after the most severe incident.  At summary judgment, the district court refused to consider the older incidents, because none of the acts that occurred after 2014 rose to the level of sexual harassment. The district court also held that to prove his claim that he was subjected to a hostile environment the plaintiff had to demonstrate that the conduct he faced was both severe and pervasive.

Published on: August 15, 2019

In Haidak v. University of Massachusetts the First Circuit Fails to Grapple with the Messy Factual Realities of Campus Title IX Cases

by Naomi Shatz

Last 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.

Published on: August 13, 2019

SJC Addresses when Juveniles with Prior Unadjudicated Cases are Exempt from Misdemeanor Prosecution

by David Duncan

As part of the substantial criminal justice reforms enacted last year, the Massachusetts legislature gave a break to certain “first offender” juvenile delinquents. It did so by narrowing the definition of “delinquent child” found in G.L. c. 119 § 52, which effectively divests jurisdiction from the Juvenile Court for such “first offenders” because the Court has no jurisdiction except of “delinquent children.” In relevant part, the statute now defines “delinquent child” to be “a child between 12 and 18 years of age who commits any offense against a law of the commonwealth; provided, however, that such offense shall not include . . . a first offense of a misdemeanor for which the punishment is a fine, imprisonment in a jail or house of correction for not more than 6 months or both such fine and imprisonment.” Previously, a “delinquent child” was defined as “a child between seven and 18 who violates any city ordinance or town by-law or who commits any offence against a law of the commonwealth.”

Published on: August 7, 2019

First Circuit Decision in Haidak v. University of Massachusetts Includes Limited Progress for Due Process at Public Universities

by David Russcol

On August 6, 2019, the U.S. Court of Appeals for the First Circuit released a decision that strengthens the due process requirements applicable to discipline at state universities, but does not go as far as other courts such as the Sixth Circuit, which has forcefully affirmed a due process right to cross-examination on issues of credibility. In Haidak v. University of Massachusetts-Amherst, the First Circuit largely found the University of Massachusetts-Amherst (UMass) procedures adequate as they were applied in the specific case before it, but adopted a requirement for some form of real-time cross-examination sufficient to address the key facts and issues in a student’s case. The court also emphasized the need for a state college to provide a student with due process for even an interim suspension – and only in the case of a real emergency can that process occur after the suspension.

Published on: August 7, 2019

Breath-tests allowed back in evidence at OUI trials

by Melissa Ramos

On July 29, 2019, Judge Robert A. Brennan lifted the “presumption of unreliability” which had kept breathalyzer tests in drunk driving cases out of evidence since August 2017. This decision is the latest in a series of decisions Judge Brennan has made in Commonwealth v. Ananias, a case that raised the question of whether breathalyzer tests are reliable enough to serve as evidence in OUI prosecutions. In February 2017, Judge Brennan recognized the “presumptive unreliability” of thousands of breath tests administered by police officers using the Alcotest 9510 device. Specifically, Brennan found that the methodology the Massachusetts State Police Office of Alcohol Testing (OAT) used for annually certifying the devices from June 2011 to Sept. 14, 2014, did not produce “scientifically reliable” blood alcohol-content results. In 2018, prosecutors agreed not to introduce the results of breathalyzer tests administered as far back as September 2011. On January 9, 2019, Judge Brennan issued a sanctions order that established seven requirements for the state to meet before the Draeger Alcotest 9510 could be considered reliably calibrated.

Published on: July 18, 2019

Defendants Charged with a Motor Vehicle Crime in Massachusetts Are Entitled to an Unusual Form of Notice

by Ruth O'Meara-Costello

When police conduct traffic stops, a wide array of legal principles come into play in seemingly simple interactions, including Fourth Amendment search and seizure law, the Fifth Amendment right to remain silent and refuse to incriminate yourself, laws governing civil traffic infractions, and the criminal law. (While what you should do if stopped obviously varies depending on the situation, the ACLU provides some useful general principles for how to conduct yourself if the police pull you over.) Among all of the various complex legalities of a traffic stop, however, one requirement in Massachusetts is fairly simple, though little-known: under the Massachusetts “no fix” statute, for nearly all motor vehicle offenses, police must give the violator a citation at the time and place of the violation. If they fail to do so without justification, the violator has a defense “in any court proceeding for violation,” meaning that even criminal charges against the violator must be dismissed.

Published on: June 26, 2019

Conservative Christian Group’s Title IX Complaint Against Transgender Athletes Ignores the Meaning of “Sex” Under Title IX Law

by Naomi Shatz

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Last week, the Alliance Defending Freedom (ADF), a Christian organization purporting to focus on religious liberty issues, filed a complaint with the Department of Education’s Office for Civil Rights (OCR) on behalf of three female high school athletes in Connecticut. The complaint alleges that the three Complainants—cisgender elite track athletes—are being discriminated against because the Connecticut Interscholastic Athletic Conference (CIAC) permits transgender female athletes to compete in girls’ sports. The ADF has a history of instituting suits on behalf of cisgender students, arguing that recognizing transgender students’ gender identities harms their cisgender peers.

Although courts around this country have made clear that being transgender does not make someone any less a girl in the eyes of the law, the ADF Complaint consistently and incorrectly refers to transgender female athletes as “boys” and argues that allowing these “boys” to compete against girls violates girls’ rights to equal athletic opportunities. The Complaint sets forth statistics about male and female athletes to show that in almost every sport male athletes would beat female athletes if they competed head to head. It then argues: “the CIAC permits males with all the hormonal and physiological advantages that come with male puberty and male levels of testosterone to enter and win in girls’ athletic competitions of all sorts, without any exceptions.”

Published on: June 19, 2019

Cannabis and the Workplace: An Overview of Employees’ Rights

by David Russcol

We frequently get inquiries from employees who are unsure of their rights regarding cannabis. Their confusion is understandable, since marijuana is very much in a legal gray area. Although possession of any amount of marijuana is a federal crime, Congress and Justice Department priorities have sharply limited enforcement of federal law against most people who have marijuana only for personal use. Under Massachusetts state law, different statutes authorize medical and recreational sale and use of cannabis. State-licensed dispensaries sell cannabis in cities and towns across Massachusetts for medical purposes and increasingly for non-medical purposes as well. Depending on the situation, employees who use cannabis may or may not have legal protections. This general overview will focus on three areas: drug testing, the use of medical cannabis under state law, and recreational marijuana.

Massachusetts employers may require employees to take drug tests under some circumstances, but the employers must meet specific legal criteria. Under federal and state laws against disability discrimination (the Americans with Disabilities Act and Chapter 151B), an employer may be permitted to require an applicant to undergo a test for illegal drugs after offering the applicant a job, if the test is relevant to the employee’s ability to perform the job and is applied equally to all employees in the same job category. After an employee has been hired, any drug test must be job-related and consistent with business necessity. Because marijuana is illegal for federal purposes but legal under state law, it is unclear whether Massachusetts employers may test for marijuana even if they can test for other drugs; however, if there is a specific federal requirement to test for marijuana, such as for truck drivers, the federal law would govern.

Published on: June 12, 2019

SJC Holds that Violation of Child Car Seat Law Does Not Constitute Reckless Endangerment of a Child

by Naomi Shatz

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In a decision released today, the Supreme Judicial Court concluded that driving with improperly restrained children does not constitute reckless endangerment under state law.

Suzanne Hardy was charged with several crimes, including reckless endangerment, after her nephews were killed in a car crash. On the day of the accident, Ms. Hardy, who was taking care of her four-year-old son and her two nephews, ages four years and sixteen months, decided to drive the children from her house to her nephews’ home. By statute, children under eight years old in Massachusetts must ride in a car seat, unless they are at least 57 inches tall. The defendant put her own son in his booster seat, put the 16-month-old in a front-facing car seat (with the straps at an improper height), and buckled her 4-year-old nephew, who was 44 inches tall, into the car without any booster seat. She had a second booster seat with her but chose not to use it.

Published on: May 17, 2019

SJC Hears Oral Arguments over Request for Records of Show Cause Hearings

by Melissa Ramos

Massachusetts has a unique system for certain criminal complaints, where both a police officer or private individual can apply for a criminal complaint and a clerk magistrate will decide whether there is probable cause for a criminal complaint to be issued. This process is available for most misdemeanor crimes and some felony crimes where an individual has not been arrested. A hearing before a clerk magistrate—also known as a “show cause” hearing—serves an important function in the Massachusetts criminal justice system because it screens out certain potential complaints at an early stage without creating a criminal record for the accused. If the clerk magistrate does not find probable cause, the clerk magistrate will not issue a criminal complaint. If the clerk magistrate finds probable cause, he or she can either issue a criminal complaint or exercise discretion and decide not to issue a complaint.