Boston Lawyer Blog

What Does It Take to Challenge a University’s Wrongful Disciplinary Decision Under Title IX?

Published on: April 24, 2015 | by David Russcol

Title IX is a federal law that bans gender discrimination in educational programs that receive federal funds (e.g., almost all college and universities). The Department of Education has interpreted Title IX to require schools to take swift and decisive action in response to complaints of sexual harassment or assault by or against students. In theory, Title IX requires schools to provide a “prompt and equitable” (that is, fair) process for deciding these cases, but in practice these processes are often heavily stacked against the accused student. Although students who are accused of sexual harassment or assault have tried to use Title IX to enforce their rights to a fair disciplinary process, courts have generally not been receptive and have often dismissed them at early stages. I will take a look at a recent decision on one such case and explore why that is.

In Doe v. Columbia University, a male Columbia student calling himself John Doe alleged that he had been wrongly suspended for sexual assault, in violation of Title IX and other laws. According to his complaint (which, at the earliest stage of a lawsuit, is essentially accepted as true), he ran into a female friend (Jane Doe) while studying one night. After taking a walk for an hour, they decided to have sex, and because their roommates were home (and Jane had dated John’s roommate previously), they decided to do so in the dorm bathroom. John waited in the bathroom while Jane got a condom from her room, they had sex, and John went back to his room.

Where is the line between teaching children independence and engaging in child endangerment and neglect?

Published on: April 16, 2015 | by Naomi Shatz

A number of recent news stories have demonstrated that around the country, parents and departments of child welfare are in disagreement about what activities are appropriate for children – and the states are taking steps to enforce seemingly draconian yet undefined rules on parents who leave their children unsupervised for any period of time. Last summer a South Carolina woman was arrested and her child was taken into state custody when she let her nine-year-old play alone in a park while the mother worked her shift at McDonald’s. Recently parents subscribing to a “free range parenting” philosophy were investigated and found responsible for unsubstantiated neglect after letting their ten and six-year-olds walk home from a park together. A few months later, the children were picked up a second time and a new investigation was opened.

Not surprisingly many states do not actually have laws to guide parents as to what the state considers appropriate versus neglectful parenting. Those that do have widely varying requirements. In California, for example, no child under 6 can be left alone unsupervised in a car, but only if the car is on, the keys are in the ignition, or when there are circumstances that present a risk to the child’s health and safety. In Hawaii no child under the age of 9 can be left unsupervised in a car for five minutes or longer. States also range dramatically in the age they give as law or guidance on when a child can be left home alone: Colorado recommends children not be left alone before they are 12, Kansas thinks they are ready at 6, and Illinois prohibits by law leaving children home alone until age 14. There don’t appear to be any rules or regulations about other independent activities children might engage in, although the cases in Maryland and South Carolina indicate that state agencies and courts might apply the laws relating to leaving children alone in homes and cars to letting children do other activities without supervision.

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: Fourth Amendment Protects Against Electronic Monitoring… Sometimes.

Published on: April 3, 2015 | by David Russcol

In Grady v. North Carolina, the United States Supreme Court unanimously decided that the government conducts a “search” implicating the protection of the Fourth Amendment when it monitors someone’s movements electronically without their consent. This ruling may have some implications for the government’s use of electronic surveillance techniques, but ultimately the reasoning for the decision is fairly narrow. It seems unlikely to significantly affect, for instance, the various widely reported NSA programs that monitor information about the American public.

Grady is an unsigned summary decision, issued without full briefing or oral argument, indicating that the Court viewed it as a minor clarification of existing law that caused no controversy among the Justices. Torrey Dale Grady is a twice-convicted sex offender who has served the sentences for his crimes. Under applicable North Carolina law, after Grady was released, the State obtained a civil court order that, because he is considered a recidivist sex offender, he must wear a GPS monitoring ankle bracelet (or similar monitoring device) for the rest of his life. Grady challenged this monitoring requirement as an unreasonable search under the Fourth Amendment. The North Carolina state courts determined that it was not a search, and so the Fourth Amendment was not implicated.

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.

Strangulation and Suffocation: New Criminal Statute with Penalties and Procedures Defendants Need to be Aware Of

Published on: March 20, 2015 | by Zalkind Duncan & Bernstein LLP

This is the second in a series of posts exploring the consequences for criminal defendants of an Act Relative to Domestic Violence, which the legislature passed and Governor Deval Patrick signed late last summer. That law created the new crime of strangulation or suffocation, which carries significantly greater penalties than a simple assault and battery charge. (A previous blog post here at bostonlawyerblog.com addressed two other crimes created by this legislation: domestic assault and domestic assault and battery.)

The Act came about in part due to the killing of Jennifer Martel by her boyfriend, Jared Remy, who has since plead guilty to first-degree murder and to the violation of a restraining order. The bill’s proponents sought the new crime saying that strangulation and suffocation are frequent means of domestic violence abuse (though not in the Remy case), and that tracking such alleged events would better protect victims of domestic violence. Before the creation of this new crime, prosecutors had the choice of charging a person alleged to have strangled another with either attempted murder (a 20 year felony) or with assault and battery (a misdemeanor). This new statute provides a charging option that falls between these two extremes – under the new law strangulation or suffocation is a felony, but a defendant can be sentenced either to state prison or to the house of corrections, and either district or superior court can have jurisdiction. By contrast, only the superior court has jurisdiction over an attempted murder charge, and any sentence must be served in the state prison.

New Domestic Violence Law Creates Crime of Domestic Assault and Battery

Published on: March 16, 2015 | by Zoraida Fernandez

In August 2014, former Massachusetts Governor Deval Patrick signed into law An Act Relative to Domestic Violence. This law ushered in many changes in Massachusetts criminal law and procedure, which will be a topic of several blog posts here at bostonlawyerblog.com. In today’s post I will be addressing one of two new crimes created by the law: domestic assault/assault and battery, Mass. Gen. Laws. ch. 265, § 13M.

A&B on a Family or Household Member

Before delving into how this new crime of domestic assault/assault and battery is different, we must first examine the existing crimes of assault and assault and battery. An assault is either (1) an attempted battery or (2) an immediately threatened battery, where a battery is a harmful or unpermitted touching of a person.

To convict a defendant of an assault and battery, the Commonwealth must prove that:

(1) the defendant touched the person of another without having any right or excuse for doing so;
(2) the defendant intended to touch that person; and
(3) the touching was either harmful or was done without the person’s consent.

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.”

Police Can’t Search Your Car Because they See a Small Amount of Marijuana

Published on: February 27, 2015 | by David Duncan

The Supreme Judicial Court today, February 27, suppressed a search that was triggered by police observing “about an ounce” of marijuana in a car they had stopped for a broken headlight (Commonwealth v. Sheridan, No. SJC-11543). Following the decriminalization of marijuana possession in small amounts (under an ounce) by the voters, the SJC had held, in two earlier cases, that the smell of burnt marijuana, even coupled with other suspicious facts (such as the stop being in a high-crime area or furtive or nervous behavior by the person stopped), did not establish probable cause to search a vehicle.

In this case, the police saw the marijuana on the floor of the defendant’s van. The SJC found no difference between smelling marijuana, which gave no clue as to the quantity they might find, and seeing marijuana that they estimated to be a non-criminal quantity. In neither case did the police have probable cause to search based on evidence of a civil infraction.

Breastfeeding-Related Discrimination Should Be Protected By Law (Even if Men Can Lactate)

Published on: February 19, 2015 | by Emma Quinn-Judge

Angela Ames resigned from her position at Nationwide Mutual Insurance Company just three hours after she returned from maternity leave. Upon her return, she sought access to the company’s lactation rooms and was informed that she would have to wait three days for permission to use a room. She was also told that since none of her work had been completed during her maternity leave, she would have to complete eight weeks worth of work during her first two weeks back or face discipline. When she asked her manager to help her find a place to pump milk, the manager told Ames, “You know, I think it’s best that you go home to be with your babies,” handed Ames a piece of paper and a pen, and dictated what she should write in her resignation letter.

Ames resigned, and both a federal trial court and a federal appeals court threw out Ames’ discrimination case. These decisions relied in large part on the fact that Ames failed to stay in her job and fight the treatment she was receiving. The trial court, however, also concluded that lactation is not a pregnancy-related condition – and therefore not protected by the Pregnancy Discrimination Act – because some men can lactate. When the Supreme Court recently refused to hear Ames’ case, it was male lactation that attracted numerous headlines. The Supreme Court, however, was not asked to weigh in on male lactation. It was asked to consider whether the appeals court correctly assessed when an employee can hold an employer liable for forcing her to quit, and – as in the vast majority of cases that come before it – the Supreme Court declined to review the case.

In July 2014, well after the trial court issued its decision in Ames’ case, the federal Equal Employment Opportunity Commission (EEOC) made clear that lactation is a pregnancy-related medical condition and that treating an employee less favorably because she is breastfeeding is therefore discrimination. Likewise, harassing an employee because of her breastfeeding is illegal if the harassment is severe or pervasive. Any workplace policy or practice that singles out breastfeeding for less favorable treatment is discrimination because, the EEOC notes, breastfeeding is a condition that only affects women. It would, for example, violate Title VII, to permit an employee to use her break time for personal reasons, but to have a policy preventing her from pumping or expressing milk during her break time.