Boston Lawyer Blog

Beyond Sports and Sex Part 1: Employment Discrimination Claims Under Title IX

Published on: October 5, 2017 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault.

The common conception of Title IX is that it is a law aimed at protecting students. That conception is too limited. Title IX’s reach is broader than the student body—it is directed at the educational program that receives federal funds, and broadly prohibits discrimination in such programs. The language of the statute states: “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.” Federal Regulations promulgated by the Department of Education make clear that Title IX prohibits employment discrimination in educational programs. 34 C.F.R. § 106.51 et seq. CONTINUE READING ›

Massachusetts Changes its Felony Murder Doctrine for the Better

Published on: September 22, 2017 | by David Duncan

One fall evening in 2009, four men met up at one Timothy Brown’s apartment. They had earlier been driving around together when two of them, Hernandez and Hill, decided to rob two women at gunpoint. Hernandez, who had brandished a gun during the robbery, hid it in Brown’s kitchen when they arrived at the apartment. In the early hours of the next morning, three more men arrived with a proposal to rob two drug dealers. These three and Hernandez agreed to the second robbery and left in a car. Before they left, Hernandez retrieved his gun and they asked Brown for hooded sweatshirts to cover their faces and for the loan of his handgun. Brown provided them with the clothing and gun. CONTINUE READING ›

Title IX and Sexual Assault on College Campuses: Back to School Edition

Published on: September 7, 2017 | by Naomi Shatz

Whether you are heading off to your first year of college, or are returning for your fourth (or sixth, or ninth) year of higher education, you are likely aware that sexual assault prevention is a big issue on college and university campuses today. We represent complainants and respondents in sexual misconduct proceedings in colleges and universities around the country. As attorneys who specialize in the field of campus sexual assault law we have 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. CONTINUE READING ›

BPD Attempts to Intimidate College Students Ahead of Rally, But Students Should be Able to Peacefully Protest

Published on: August 18, 2017 | by Ana Muñoz

Yesterday, Boston Police Commissioner William B. Evans sent a message of warning to Boston-area college students ahead of a planned “Free Speech” rally and numerous counter-protests. He told college students “please act in a way that would make your school, your family, and your city proud and please respect our neighborhoods. Student behavior off campus will be regarded the same as if it were on campus.”

College students are subject to the laws of Massachusetts just like any other person in the state. If college students engage in illegal behavior at Saturday’s rallies, they can be arrested and prosecuted. But college students are also subject to the student conduct rules of their respective universities. Under Massachusetts law, those handbooks form the basis of a contractual relationship between the student and the college. Both students and colleges must abide by the rules set forth in the handbook; schools cannot punish students for behavior that is not prohibited by their policies. While Commissioner Evans can encourage students to act responsibly, he cannot dictate that schools expand those rules to cover off-campus actions if they do not already do so. CONTINUE READING ›

Supreme Judicial Court Reaffirms Disability Protections for Medical Marijuana Patients

Published on: August 2, 2017 | by David Russcol

In Barbuto v. Advantage Sales and Marketing, the Supreme Judicial Court recently blazed a trail as the first state high court to extend state employment protections to medical marijuana users where those protections were not explicitly spelled out in the medical marijuana statute. The SJC unanimously gave the green light to discrimination claims by those who use medical marijuana under state law but then are punished by employers. There are limits to the court’s holding; for instance, the medical marijuana statute specifies that employers do not need to accommodate on-site use of marijuana, and an employer can still take adverse actions by meeting the high burden of showing an “undue hardship” for tolerating off-site marijuana use. But many patients who consume marijuana to treat debilitating medical conditions like cancer or, like the plaintiff Barbuto, Crohn’s disease, will get some relief by not having to choose between effective treatment and keeping their jobs.

In Barbuto, the plaintiff was hired subject to a drug test and started working. She informed her employer that she would test positive for marijuana because she used it for medical purposes according to state law because she suffered from Crohn’s disease. The hiring manager told her that would not be a problem, but after the test came back positive, she was fired by a manager who told her “we follow federal law, not state law.” (Any use or possession of marijuana remains illegal under federal law, although for several years Congress has prohibited federal authorities from spending money to interfere with state medical marijuana laws.) The plaintiff brought suit claiming, among other things, disability discrimination, and the lower court dismissed her case.

Has Trump Violated Criminal Laws? If so, should he be prosecuted?

Published on: July 24, 2017 | by David Duncan

Three publications in the last two weeks have highlighted the issue of whether President Trump has violated criminal laws while in office. They also raise the question of whether, if he has, a prosecutor should or should not bring charges against him.

In Thursday’s Boston Globe, Professor Alan Dershowitz argues that, while many of his (excellent) former students have written op-ed pieces and other publications about possible criminal charges that could be brought against President Trump, determining if criminal charges are possible is the “easy” part of the role of a prosecutor. The hard part, he says, is exercising discretion in deciding whether the blunt and wide-ranging instrument of the criminal law should be applied, and concludes that, as with the calls for prosecution of Hillary Clinton, it should not. Professor Dershowitz believes, noting the breadth of some of the statutes raised by these writers, and the disuse into which some have fallen, that the truly exceptional student would conclude that, as a hypothetical prosecutor, he or she would pass on bringing a prosecution. He argues that the partisan nature of the calls in and of itself is grounds for exercising discretion against prosecution. CONTINUE READING ›

Zalkind Law’s Emma Quinn-Judge Honored as one of the 2017 Top Women of Law

Published on: July 21, 2017 | by Zalkind Duncan & Bernstein LLP

We are proud to announce that partner Emma Quinn-Judge is being honored as one of the 2017 Top Women of the Law by Massachusetts Lawyers Weekly. The annual award recognizes women lawyers for outstanding accomplishments in the legal community who have distinguished themselves as leaders.

Emma has a litigation practice focused on criminal defense, employment, and appeals. In her criminal defense practice, Emma has represents individuals charged with crimes ranging from disorderly conduct to murder and serious federal charges. Recently, Emma was co-counsel in a case where the jury found the client not guilty on two charges arising from a traffic stop in which police used excessive force in a local Massachusetts city. Emma has on numerous occasions helped clients get their charges dismissed altogether or substantially reduced. She is also a strong advocate on sentencing and has helped clients in federal court receive below Guideline sentences.

In her employment practice, Emma represents employees in state and federal court, in administrative proceedings, and on appeal. She has won substantial victories, both in court and in out-of-court settlements. Most recently, she represented the plaintiff in Charles v. City of Boston, and won a nearly $10.9 million jury verdict (now on appeal) for her client, a long-time City of Boston employee who experienced race discrimination and retaliation. She also provides advice and counseling to employees on a wide range of employment issues, including compensation, discrimination, harassment, and workplace disputes.

Massachusetts Legislature Passes Pregnant Workers Fairness Act

Published on: June 30, 2017 | by Naomi Shatz

Yesterday the Massachusetts Senate unanimously passed Senate Bill 2093, the Pregnant Workers Fairness Act (PWFA). Last month the House unanimously passed a similar bill, H. 3680. The PWFA is headed to Governor Charlie Baker, who has indicated he will sign it.

What is the Pregnant Workers Fairness Act?

The PWFA will amend Massachusetts’ anti-discrimination law (General Laws chapter 151B) to include pregnancy and related medical conditions (including breastfeeding) as protected categories. The law will also require employers to grant their employees reasonable accommodations related to pregnancy, childbirth, or related conditions if such accommodations do not cause an undue hardship on the employer. The law lists examples of the types of accommodations that might be required: more frequent breaks, time off to recover from childbirth, light duty, modification of equipment or seating, modified work schedules, and a private space for pumping breast milk. While the law allows employers to require medical documentation for some accommodations, employers are required to provide the following accommodations with no medical documentation: “(i) more frequent restroom, food or water breaks; (ii) seating; (iii) limits on lifting over 20 pounds; and (iv) private non-bathroom space for expressing breast milk.” CONTINUE READING ›

Massachusetts Needs a Working Educational Discrimination Law

Published on: May 26, 2017 | by Naomi Shatz

Massachusetts is often lauded as one of the most progressive states in the country, and our state civil rights laws routinely provide broader protections than their federal counterparts. So it may come as a surprise that Massachusetts does not have a functional state counterpart to federal laws prohibiting discrimination in education like Title IX and Title VI.

Massachusetts has a law titled “Fair Educational Practices,” Mass. G. L. c. 151C. That chapter contains provisions prohibiting educational institutions from doing the following:

Discriminating against a U.S. citizen on the basis of race, religion, creed, color or national origin in the admission process;
Retaliating against employees, students, or applicants for assisting in any proceeding under the law;
Asking for the race, religion, color, or national origin of an applicant;
Discriminating against someone seeking admission to a vocational school or post-bachelor’s degree program, or discriminating against such a student in the provision of benefits, privileges, or services based on the student’s race, religion, creed, color, age, sex or national origin;
Excluding students from admission because they are blind, deaf, or require a guide dog;
Requesting information about, or to discriminate on the basis of a failure to provide information about, certain criminal records;
Sexually harassing students.

What Kind of Notice Should Universities Give Students Facing Title IX Charges?

Published on: May 12, 2017 | by Ruth O'Meara-Costello

In the world of disciplinary hearings under Title IX, the process for students accused of sexual harassment or sexual assault on campus often begins this way: an accused student (the “respondent” in campus disciplinary parlance) is called into a meeting with a school administrator and informed of a disciplinary charge that could result in expulsion. At most schools, the information that the school provides about the actual charge consists of the date of the alleged event (or a range of dates); the identity of the complainant (the student who is making the accusation) and the provision of the student code that the respondent allegedly violated, or another summary description such as “non-consensual sexual conduct.” In practice, this information is often not sufficient to allow the respondent to identify the actions that the school is investigating, particularly where the allegations stem from a long-term romantic relationship with the complainant, much less to prepare a defense. It also may not give respondents adequate notice to allow them to evaluate whether they may face criminal charges, and make informed decisions about whether to waive their 5^th Amendment right to remain silent by making statements during the school’s investigation.