Boston Lawyer Blog

What Are Your Job Protections as a Parent or Caregiver During COVID-19?

Published on: December 4, 2020 | by Zalkind Duncan & Bernstein LLP

By Lilly Gill, Law Student Intern

The COVID-19 pandemic has drastically changed the relationships between employment, education, and family life as parents are juggling having their children home in remote education or otherwise having limited childcare, and other caregivers have needed to take care of elderly parents or disabled or sick relatives. In recent months, substantial evidence (examples abound, but a few are here, here, here, here, and here) has demonstrated that women are disproportionately taking on caregiving responsibilities during the pandemic. As a result, there are serious concerns that women are being pushed out of the workforce at higher rates than their male counterparts. While female workers may be particularly vulnerable to COVID-related job consequences, our practice has also received numerous inquiries from men who have sought time off, reduced schedules, or other accommodations to help take care of their children or elderly family. As the end of the year is approaching, the COVID-related protections passed by Congress earlier this year are expiring and therefore this may be the last chance for some employees to seek leave for child-care related needs. Moreover, employers may be making decisions regarding layoffs, performance reviews, promotions, and pay raises or bonuses, and may penalize employees with caregiving responsibilities based on gender-stereotypes that caregivers are unable to prioritize their work responsibilities. If employees face adverse career consequences due to their caregiving role, they may have multiple legal paths they can take to challenge those decisions.

Appeals Court Protects the Rights of Individuals in Interrogations Against Coercive Police Conduct

Published on: November 3, 2020 | by Katherine E. Dullea

Recently, in Commonwealth v. Davis, the Massachusetts Appeals Court determined that Massachusetts State Police officers coerced an individual to waive his Miranda rights when they arrested him after he attempted to exercise his constitutional right to counsel during an interrogation. CONTINUE READING ›

Supreme Judicial Court Permits State Licensing Boards to Consider Sealed Criminal Records During Disciplinary Proceedings

Published on: September 25, 2020 | by Zalkind Duncan & Bernstein LLP

By: Amanda Gordon, Legal Intern

In Massachusetts, in limited circumstances a person’s criminal records can be available to a licensing board or prospective employer. However, there remains a societal responsibility to ensure that criminal charges do not unfairly stigmatize or disadvantage defendants who have served their sentence or were never convicted at all. The Supreme Judicial Court acknowledged this tension in Boston Globe v. DJCIS, and again in its recent decision, Doe v. Board of Registration in Medicine. In this most recent case, the Court carved out a unique loophole, allowing the Medical Board to use sealed criminal records of doctors for the purposes of disciplinary deliberation. Typically, sealed criminal records can only be accessed by a small number of entities: courts, law enforcement agencies, and a few others. Prior to the Court’s decision, the Board of Registration in Medicine did not ordinarily have access to these records.

Criminal records can be sealed in one of three ways: The first two (G. L. c. 276, §§ 100A and 100B) provide for automatic sealing of certain criminal records, upon request, after a required period has passed without any additional criminal convictions—currently three years for misdemeanors and seven years for most felonies. The third method (§ 100C) of sealing permits a former defendant, whose criminal case resulted in a nolle prosequi (abandonment of the case) or a dismissal, to seal their criminal record at any time upon a judge’s discretionary determination that “substantial justice would best be served” by such sealing, based on the standards set by the Supreme Judicial Court.

Thinking About Participating in a COVID-19 School or Childcare Pod? Here’s What You Should Know as a Massachusetts Employer or Employee.

Published on: August 4, 2020 | by Ana Muñoz

Due to the COVID-19 pandemic, many parents are exploring new arrangements for education and childcare for their children. Families who can afford to are creating “micro-schools” or “school pods”—groups of a few families with similar-aged children who hire a teacher to provide lessons in the families’ homes. Others are simply looking to hire extra childcare help for children who are out of daycare or doing school remotely.

Will Bifurcating Sexual Misconduct Processes Help Schools Comply with Title IX?

Published on: July 21, 2020 | by Naomi Shatz

As schools revamp their Title IX policies by August 14 to comply with the recently-enacted federal regulations, information about how those policies might look is starting to come to light. In recent weeks, a number of schools have made clear that—as my colleague predicted when the regulations came out—while they will create policies to address conduct that falls under the federal regulations, they will also have policies that address sexual misconduct issues that fall outside of what the federal government regulates. Boston University recently offered some insight as to how it will approach sexual misconduct cases come fall. According to BU’s Title IX coordinator, Kim Randall, “[c]omplaints that fall under the new Title IX regulations, as noted above, will be investigated using the procedures required by the new regulations, which are very different from our existing procedures. Those complaints that do not fall under Title IX will be investigated using procedures similar to those currently in place.” Having two separate policies that address sexual misconduct is likely to raise a host of issues that schools need to plan for before imposing those policies on students and faculty. Looking at how cases may be handled under BU’s proposed policies illustrates the issues schools will face if they choose to have two different sexual misconduct procedures.

Supreme Judicial Court Extends Pre-Trial Detention Time Limits Due to COVID-19 Pandemic

Published on: June 24, 2020 | by David Duncan

This week, the Massachusetts Supreme Judicial Court (SJC) issued an opinion in Commonwealth v. Lougee holding that its orders delaying trials due to COVID-19 allow the Commonwealth to hold defendants pre-trial beyond time limits set by statute. The decision applies to pre-trial detainees being held either on grounds of dangerousness under G.L. c. 276, §58A, or after violation of conditions of release under G.L. c. 276, §58B. Both statutes put time limits on how long a defendant can be held in jail without trial: 180 days under section 58A and 120 days under section 58B. The SJC decision addressed three cases: two in which the defendants were found dangerous and held under 58A, and one in which the defendant violated release conditions and was detained under 58B. In all three cases, a trial judge found that because the defendants had been detained for the statutory time limits, they had to be released. The trial judges did not find that the SJC’s orders postponing trials due to COVID-19 affected the calculation of time limits set by sections 58A and 58B. The Commonwealth appealed and the SJC reversed.

Why are the New Title IX Regulations 2000 Pages Long?

Published on: June 4, 2020 | by David Russcol

The Department of Education’s new Title IX regulations, which have now been officially published, run to over 550 pages of fine print in the Federal Register or over 2000 pages in regular font. Few people have the time or knowledge necessary to identify the most important parts of the regulations, let alone read the entire document from start to finish. Without context about the rule-making process, it can be difficult to understand why the regulations are structured the way they are. But understandable or not, the regulations have significant ramifications for students and educational institutions subject to Title IX’s prohibition on sex discrimination in education. This post breaks down the different parts of the regulations, which parts have legal effect, and why.

Laws passed by Congress often leave details up to the agencies designated to enforce them – sometimes very important details. Title IX itself is relatively brief, providing that “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,” with a limited set of exceptions. It is left primarily to the Department of Education to interpret and effectuate this non-discrimination mandate.

U.S. Department of Education’s New Position on Transgender Athletes is a Radical Departure from Prior Interpretations of Title IX

Published on: June 2, 2020 | by Naomi Shatz

Last month, the U.S. Department of Education (DOE) issued a letter to the Connecticut Interscholastic Athletic Conference (CIAC) and a number of Connecticut schools notifying them that their policy allowing transgender student athletes to play sports on the team that corresponds with their gender violates Title IX, and giving them until June 4 to come into compliance with the law. The DOE’s interpretation of how Title IX applies to transgender students is an about-face from previous interpretations it has issued, and from the interpretation many courts have given to Title IX.

As I described last year, an advocacy organization purporting to focus on religious liberty issues (the Alliance Defending Freedom (ADF)) filed a complaint with the DOE arguing that cisgender female athletes in Connecticut were being discriminated against under Title IX—the federal statute that prohibits sex-based discrimination in schools—because transgender female athletes were permitted to play on girls’ sports teams. The ADF has filed numerous such complaints and lawsuits arguing that when schools refuse to discriminate against transgender students, they are discriminating against cisgender students.

Can Decision-Makers Rely on Harassing Statements by the Respondent as Evidence in a Title IX Proceeding?

Published on: May 27, 2020 | by Naomi Shatz

In a previous post, I discussed a confusing provision of the new Title IX regulations that prohibits decision-makers from considering statements by parties or witnesses who do not undergo cross-examination at the live hearing. One question that this provision has raised is what happens when the respondent’s statements are the harassment at issue? For example, in a quid pro quo harassment case if a professor e-mails a student saying “if you sleep with me I will give you an A,” and then refuses to undergo cross-examination, do the regulations prohibit the decision-maker from considering the e-mail as evidence? In a hostile environment case, if a student sends sexually harassing text messages to another student, will those messages be excluded if the respondent does not submit to cross-examination?

The preamble to the new regulations says the word “statements” has its ordinary meaning (whatever that may be), but does not include evidence that “do [sic] not constitute a person’s intent to make factual assertions.” The regulations themselves provide no explanation of what statements count as “statements” under the regulation, and the preamble does not explain how to determine what evidence constitutes an intent to make factual assertions. This portion of the preamble seems to be a botched attempt to create something analogous to the evidentiary rules on hearsay, which define hearsay at out of court statements admitted “for the truth of the matter asserted.” Under the federal and state rules of evidence, if a party introduces an out of court statement for a reason other than to prove the truth of what is asserted in the statement, it is not hearsay, and is therefore admissible. The rule of evidence focuses on how the party trying to admit the statement wants to use it; the Title IX regulation focuses on the intent of the speaker of the statement when the statement was made.

New Title IX Regulations Create Confusing “Hearsay” Rules for Colleges

Published on: May 27, 2020 | by Naomi Shatz

One of the most confusing and controversial provisions of the new Title IX regulations is a provision that bars the decision-maker from considering any statement by a party or witness who does not submit to cross-examination at the hearing:

“If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.”

This provision imposes a blanket ban on considering statements made outside the hearing if the party or witness does not submit to cross-examination. In real court proceedings, there is an entire body of evidence law that addresses when and how out of court statements can be relied on at trial. For example, in a criminal case the prosecution can often rely on “fresh complaint” evidence (statements a victim of sexual assault made shortly after the assault), whether or not the victim testifies at trial. If parties refuse to testify at trial, statements they previously made that are counter to their own interests can be admitted—which would allow a court to consider an alleged sexual assailant’s admissions or inculpatory statements, and also allow a court to consider any statements a complainant or victim made that suggest any part of his/her account was fabricated or inaccurate. In real court hearings, out-of-court statements are also frequently used not to prove the truth of the statements themselves, but to call into question the credibility of a party or witness. The Title IX regulation indicates that statements made by a party cannot be used even for this purpose if the party does not submit to cross-examination.
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