Category: discrimination

COVID 19, discrimination, employment law, law, religious freedom

SJC upholds unemployment-benefit award to worker in No Jab, No Job case

March 4, 2024:- Today the Supreme Judicial Court (SJC) issued its decision in Fallon Community Health Plan, Inc. v. Acting Director of the Department of Employment Assistance. You can read the decision on the New Opinions page. It is good news for workers who were discharged because their religious beliefs prevented them being injected with the products advertised as COVID-19 vaccines.

In October 2021, Shanika Jefferson was a home health aide whose employer, Fallon, required her to get the jab or lose her job. Because of her religious convictions, Ms. Jeffreson did not get the jab, and Fallon terminated her employment. She applied for and, after an appeal, obtained unemployment benefit. But Fallon said she did not qualify for benefits because she had knowingly violated Fallon’s reasonable policy or engaged in deliberate misconduct in willful disregard of Fallon’s interests, which (under the applicable statute) would render Ms. Jefferson ineligible.

But the SJC upheld the decision to award Ms. Jefferson benefits, stating:

Jefferson engaged in a good faith effort to comply with Fallon’s policy by applying for a religious exemption, which was offered under the policy, based on her sincerely held religious beliefs. That her request for an exemption was denied does not mean that she engaged in deliberate misconduct.

Further:

[T]he record demonstrates that rather than disregarding Fallon’s interest, Jefferson was willing to take several measures, including wearing personal protective equipment and undergoing frequent testing, in order to keep Fallon’s vulnerable patient population safe.

Finally, and (to my mind) of the utmost significance:

Although Jefferson was aware of the policy prior to and during her noncompliance, the unique circumstances here did not present Jefferson with a meaningful choice regarding vaccination given her religious beliefs.

This is a welcome decision.

Mika Baumeister on Unsplash
COVID 19, discrimination, employment law, eviction moratorium, free sppech, landlord tenant, law, religious freedom

Statement of Justice Gorsuch

Arizona, et al v. Mayorkas, 589 U.S. _____ (2023)

Statement of GORSUCH, J.

This case concerns the “Title 42 orders.” Those emergency decrees severely restricted immigration to this country for the ostensible purpose of preventing the spread of COVID-19. The federal government began issuing the orders in March 2020 and continued issuing them until April 2022, when officials decided they were no longer necessary.1 If that seems reasonable enough, events soon took a turn.

In a federal district court in Louisiana, a number of States argued that the government’s decision to end the Title 42 orders violated the Administrative Procedure Act (APA), 5 U. S. C. §551 et seq., because agency officials had not pro­ vided advance notice of their decision or invited public com­ ment.2 The States did not seriously dispute that the public- health justification for the orders had lapsed. The States also understood that their lawsuit would only require the government to take certain additional procedural steps before ending the Title 42 orders. But the States apparently calculated that even a short, court-ordered extension of those decrees was worth the fight. Worth it because, in their judgment, a new and different crisis had emerged at the border and the federal government had done too little to address it.3 Keeping the Title 42 orders in place even temporarily was better than the alternative. In the end, the district court agreed with the States’ APA arguments and entered a nationwide injunction that effectively required the government to enforce the Title 42 orders until and un­ less it complied with the statute’s notice-and-comment procedures.4

Meanwhile, a thousand miles away, a group of asylum seekers filed a competing class-action lawsuit in a federal district court in Washington, D. C. This group argued that, from the start, the government lacked legal authority to issue its Title 42 orders. Ultimately, the D. C. district court agreed with the group’s assessment and issued an equally sweeping form of relief — sometimes called “universal vacatur” — that purported to wipe the Title 42 orders off the books as if they never existed.5 So it is that the federal government found itself in an unenviable spot — bound by two inconsistent nationwide commands, one requiring it to enforce the Title 42 orders and another practically forbidding it from doing so.

If these head-spinning developments were not enough, more followed. Displeased with the D. C. district court’s ruling, some of the States in the Louisiana case moved to intervene in the D. C. case. The States said they wanted to defend the Title 42 orders on appeal because the federal government was unlikely to do so with sufficient vigor. Ultimately, the court of appeals denied the States’ motion to intervene as untimely.6 So, late in 2022, the States turned to this Court seeking two things. First, they asked for expedited review of the appellate court’s order denying their motion to intervene. Second, they asked for a stay of the D. C. district court’s decree vacating the Title 42 orders. The Court granted both requests. In doing so, the Court effectively extended the Title 42 orders indefinitely.7

Now, almost five months later, the Court puts a final twist on the tale. It vacates the appellate court’s order denying the States’ motion to intervene and remands with instructions to dismiss the motion as moot. Why the sudden about-face? Recently, Congress passed and the President signed into law a joint resolution declaring that the COVID-19 emergency is over.8 The Secretary of Health and Human Services, too, has issued his own directive announcing the end of the public-health emergency underlying the Title 42 orders.9 Apparently, these developments are enough to persuade the Court that the Title 42 orders the government wished to withdraw a year ago are now as good as gone and any dispute over them is moot.

I recite all this tortured procedural history not because I think the Court’s decision today is wrong. Nearly five months ago, I argued that the Court erred when it granted expedited review and issued a stay. As I explained at the time, I do not discount the States’ concerns about what is happening at the border, but “the current border crisis is not a COVID crisis.”10 And the Court took a serious misstep when it effectively allowed nonparties to this case to manipulate our docket to prolong an emergency decree designed for one crisis in order to address an entirely different one.11 Today’s dismissal goes some way to correcting that error.

I lay out the history of this case only because it is so typical. Not just as an illustration of the quandaries that can follow when district courts award nationwide relief, a problem I have written about before.12 Even more importantly, the history of this case illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed.

Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emer­gency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes.13 They shuttered businesses and schools, public and private.14 They closed churches even as they allowed casinos and other favored businesses to carry on.15 They threatened violators not just with civil penalties but with criminal sanctions too.16 They surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and hygiene requirements could amount to criminal conduct.17 They divided cities and neighborhoods into color-coded zones, forced individuals to fight for their freedoms in court on emergency timetables, and then changed their color-coded schemes when defeat in court seemed imminent.18

Federal executive officials entered the act too. Not just with emergency immigration decrees. They deployed a public-health agency to regulate landlord-tenant relations nationwide.19 They used a workplace-safety agency to issue a vaccination mandate for most working Americans.20 They threatened to fire noncompliant employees,21 and warned that service members who refused to vaccinate might face dishonorable discharge and confinement.22 Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed.23

While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress — the bodies normally responsible for adopting our laws — too often fell silent. Courts bound to protect our liberties addressed a few-but hardly all-of the intrusions upon them. In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking­by-litigation.

Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it. One lesson might be this: Fear and the desire for safety are powerful forces. They can lead to a clamor for action — almost any action — as long as someone does some­thing to address a perceived threat. A leader or an expert who claims he can fix everything, if only we do exactly as he says, can prove an irresistible force. We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. Along the way, we will accede to the loss of many cherished civil liberties — the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes. We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.24

But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government. However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process.25 Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate.26 Decisions announced on the fly are rarely as wise as those that come after careful deliberation. Decisions made by a few often yield unintended consequences that may be avoided when more are consulted. Autocracies have always suffered these defects. Maybe, hope­ fully, we have relearned these lessons too.

In the 1970s, Congress studied the use of emergency decrees.27 It observed that they can allow executive authorities to tap into extraordinary powers.28 Congress also observed that emergency decrees have a habit of long outliving the crises that generate them; some federal emergency proclamations, Congress noted, had remained in effect for years or decades after the emergency in question had passed.29

At the same time, Congress recognized that quick unilateral executive action is sometimes necessary and permitted in our constitutional order.30 In an effort to balance these considerations and ensure a more normal operation of our laws and a firmer protection of our liberties, Congress adopted a number of new guardrails in the National Emergencies Act.31

Despite that law, the number of declared emergencies has only grown in the ensuing years.32 And it is hard not to wonder whether, after nearly a half century and in light of our Nation’s recent experience, another look is warranted. It is hard not to wonder, too, whether state legislatures might profitably reexamine the proper scope of emergency executive powers at the state level. At the very least, one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another. Make no mistake-decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.

Footnotes

1 87 Fed. Reg. 19944-19946, 19956 (2022).

2 Louisiana v. Centers for Disease Control & Prevention, 603 F. Supp. 3d 406, 412 (WD La. 2022).

3 Id., at 417.

4 Id., at 441.

5 Huisha-Huisha v. Mayorkas, 2022 WL 16948610, *15 (Nov. 15, 2022).

6 Arizona v. Mayorkas, 598 U. S. _ , _ (2022) (GORSUCH, J., dissenting) (slip op., at 2).

7 See id., at_   (slip op., at 3).

8 Pub. L. 118-3, 137 Stat. 6.

9 See U.S. Dept. of Health and Human Services, COVID-19 Public Health Emergency (PHE), https://www.hhs.gov/coronavirus/covid-19- public-health-emergency/index.html.

10 Arizona, 598 U. S., at_  (GORSUCH, J., dissenting) (slip op., at 3).

11 Id., at_-_ (slip op., at 2-3).

12 Department of Homeland Security v. New York, 589 U. S. _, _ (2020) (opinion concurring in grant of stay) (slip op., at 3).

13 See, e.g., Republican National Committee v. Democratic National Committee, 589 U. S. _, _ (2020) (Ginsburg, J., dissenting) (slip op., at 2) (noting that the Governor of Wisconsin ordered residents “to stay at home … to slow the spread of the disease”); see generally The Council of State Governments, COVID-19 Resources for State Leaders: 2020- 2021 Executive Orders, https://web.csg.org/covidl9/executive-orders/ (COVID-19 Resources for State Leaders) (cataloging such orders issued throughout the country).

14 See, e.g., Rossi v. Arch Ins. Co., 60 F. 4th 1189, 1192 (CA8 2023) (not­ing that “state and local governments” across the country issued “stay­at-home orders” that shuttered businesses); Kentucky ex rel. Danville Christian Academy, Inc. v. Beshear, 981 F. 3d 505, 507 (CA6 2020) (noting that the Governor of Kentucky prohibited “in-person instruction at all public and private elementary and secondary schools”); see generally COVID-19 Resources for State Leaders.

15 Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. _,  _  (2020) (GORSUCH, J., dissenting from denial of application for injunctive relief) (slip op., at 1).

16 See, e.g., D. Burke, Police Arrest Florida Pastor for Holding Church

Services Despite Stay-at-Home Order, CNN (Mar. 30, 2020), https:// http://www.cnn.com/2020/03/30/us/florida-pastor-arrested-river-church/index.html.

17 Roberts v. Neace, 958 F. 3d 409, 412 (CA6 2020) (per curiam).

18 Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. _,  _  (2020) (per curiam) (slip op., at 1-7); see also South Bay United Pentecostal Church v. Newsom, 592 U.S._,_-_ (2021) (statement of GORSUCH, J.) (slip op., at 1-6).

19 Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. _,  _  (2021) (per curiam) (slip op., at 1).

20 National Federation of Independent Business v. OSHA, 595 U. S. _,_  (2022) (slip op., at 1).

21 See, e.g., K. Liptak & K. Collins, Biden Announces New Vaccine Mandates that Could Cover 100 Million Americans, CNN (Sept. 9, 2021), https://www.cnn.com/2021/09/09/politics/joe-biden-covid-speech/index.html.   22Austin v. U.S. Navy Seals 1-26, 595 U.S._,_ (2022) (ALITO, J., dissenting) (slip op., at 1).

23 See, e.g., S. Myers, Free Speech vs. Disinformation Comes to a Head, N. Y. Times (Feb. 9, 2023), https://www.nytimes.com/2023/02/09/business/ free-speech-social-media-lawsuit.html.

24 See, e.g., Aristotle’s Politics, Bk. V, chs. 2, 4 (H. Rackham transl. 1959).

25 See, e.g., The Federalist No. 10, pp. 80-84 (C. Rossiter ed. 1961) (J. Madison); id., No. 35, at 215-216 (A. Hamilton); id., No. 57, at 350- 356 (J. Madison).

26 Cf. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).

27 Congressional Research Service, National Emergency Powers 7 (Nov. 19, 2021) (CRS) (describing congressional studies undertaken from 1972 to 1976 regarding emergency powers).

28 Id., at 8.

29 Id., at 7.

30 Id., at 1, 8-10.

31 90 Stat. 1255 (codified at 50 U.S. C. §§1601-1651).

32 CRS 12 (identifying dozens of existing emergencies as of 2019).

discrimination, employment law, law, religious freedom, supreme court of the united states

New video about SCOTUS decision

March 31, 2023:- Attorney Patrick Daubert and I both represent people who held fast to their religious principles rather than bow to the vaccine mandate. In this new video, we discuss the Supreme Court taking another look at the meaning of “undue hardship” in religious-discrimination cases.

At present, if employees demonstrate a sincerely held religious belief that prevent them from getting injected with a particular pharmaceutical product, the employer can get out of accommodating those beliefs if doing so would cause a hardship that is more than a de minimis.

The more-than-de-minimis rule is something that the Supreme Court came up with many years ago when applying Title VII; what Title VII itself says is “undue hardship,” not “any trifling inconvenience.” Attorney Daubert and I consider the implications of the Supreme Court construing the term “undue hardship” in the way Congress intended when it enacted the law.

discrimination, employment law, law, religious freedom, supreme court of the united states

SCOTUS to consider meaning of undue hardship

March 5, 2022:- In April, the Supreme Court of the United States will hear oral argument in a case that may have a big impact on religious-discrimination lawsuits here in Massachusetts.

The case is Gerald E. Groff v. Louis DeJoy, Postmaster General, United States Postal Service, (here’s a link to Mr. Groff’s petition for certiorari) and a handy place to find the filings (including the amicus briefs) is scotusblog.com. For Professor Josh Blackman’s short overview in Reason magazine, click here and for Professor Eugene Volokh’s take in the same publication click here.

If the court rules the way I hope it does, we will have more cause than usual to give thanks. Either way, I will let you know.

At issue is the question of what constitutes “undue hardship” for an employer when an employee asks for an exemption to a workplace rule on the basis of religious belief. You may be familiar with this term already, but you may not realize that in this area of law it means much less than it should. To help explain how judges interpret the term right now – and how they may start to interpret it differently after the Supreme Court’s decision in Groff –  let’s compare religious discrimination in employment to disability discrimination in housing.

Emotional Support Animals

Imagine a landlord with a no-pets policy in one particular building, and a tenant who signs the lease, agrees to the policy, moves into the no-pets building, and promptly adopts a large dog. Let’s say the tenant is wealthy and could easily relocate to the landlord’s other building, the one where all pets are welcome (dogs, cats, elephants, boa constrictors, whatever). But the tenant likes this building, the no-pets building, and does not want to move 100 yards across the street to the all-pets-welcome building.

Photo by Vlad Rudkov on Unsplash

In addition to being wealthy, our imaginary tenant suffers from anxiety. That’s a disability. If the tenant gives the landlord a letter from a psychiatrist stating that the tenant has a disability and the large dog helps alleviate one of the symptoms, the landlord has to exempt the tenant from the no-pets policy in the no-pets building, unless the landlord can show “undue hardship.”

To prove “undue hardship,” the landlord would need to show that this particular large dog would cause the landlord to suffer a significant expense or difficulty. Would the landlord succeed by showing that the exemption might cause some minor difficulty, something that would cost a trifling amount of money to address (e.g. scratches on the back door)? No, the landlord would have to show much more than that.

For the landlord, the “undue hardship” bar is high.

Devout Employee

Now imagine an employee who starts work for an employer. Let’s say that unlike our imaginary tenant our imaginary employee is poor; poor in money but rich in spirit. The employee devoutly adheres to a faith that prohibits the taking of certain drugs.

When the employee first got the job, the employer had no policies compelling its workers to take drugs of any kind, and absolutely no requirement that its workers be injected with experimental pharmaceutical products. But suddenly – at the behest of the pharmaceutical industry and the government agencies that purport to regulate said industry – the employer adopts such a policy.

If the employee shows that getting injected with the products would conflict with the employee’s religion, the employer has to exempt the employee from the policy, unless the employer can show “undue hardship.”

So far, the law about religious rights in the workplace looks the same as the law about disability rights in housing. Just like the tenant, the employee is asking to be exempt from a policy because of a legally-guaranteed right to be free from discrimination.

Here’s the difference.

Remember, for a landlord to successfully claim “undue hardship” the landlord would need to show that the accommodation (i.e. letting the tenant keep the big dog) would cause the landlord to incur significant expense. Minor inconveniences would not suffice.

How about the employer? Would the employer succeed with the “undue hardship” defense just by showing that granting the exemption might cause some minor difficulty that it would cost a trifling amount of money to address?

Yes. For the employer, any inconvenience, no matter how minor, constitutes an undue hardship.

For the employer, the “undue hardship” bar is low.

So how did it come to this? Why is it easier for a rich tenant with an emotional support dog to keep an apartment than it is for a poor public employee with an abiding devotion to God to keep a job?

The Hardison decision

Title VII of the federal Civil Rights Act prohibits discrimination on the basis of religion, as does Chapter 151B of the Massachusetts General Laws (courts tend to analyze these federal and State laws the same way). Under Title VII, to get out of accommodating an employee’s religious practices, an employer is supposed to prove that doing so would cause the business to suffer “undue hardship.” The statute says not merely “hardship,” meaning some expense or some difficulty, but “undue hardship.” Like “hardship,” the word “undue” has a pretty clear meaning, i.e. extraordinary or excessive.

But the courts have interpreted “undue hardship” to mean an inconvenience that is just a tad more than minimal.

In religious-discrimination cases, the employer only needs to show that the cost of accommodating the employee’s religion would incur a cost that is more than minimal. Any minor, trivial, piffling inconvenience will do, so long as it is more than minimal.

The term “more than minimal” is not at all the same as “undue hardship,” but that is the judge-made rule that the courts have been applying ever since the Supreme Court issued its ruling in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).

This rule may change when the Supreme Court decides the Groff case. There are two questions for the justices to answer, and the first one is this:

Whether the Court should disapprove the more-than-de-minimis-cost test for refusing Title VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).

Let’s hope that the court simply applies the plain words of the statute that Congress enacted back in 1972, i.e. undue hardship, and does away with the judge-made rule that strips that simple two-word term of its meaning. In his amicus brief, Senator Ted Cruz puts it this way:

In 1972, the word “undue” was ordinarily defined as “unwarranted” or “excessive,” The Random House Dictionary of the English Language (1968), while “hardship” was ordinarily defined as “a condition that is difficult to endure; suffering; deprivation; oppression.” The American Heritage Dictionary of the English Language, The Concise Oxford Dictionary of Current English, and Webster’s New Illustrated Dictionary all concur.

“De minimis” on the other hand, was defined by Black’s Law Dictionary at the time as “very small or trifling,” tantamount to a “fractional part of a penny.”

… It cannot seriously be contended that a “very small” or “trifling” cost is the same as one that causes “excessive suffering” and “deprivation.” In fact, “more than a de minimis” cost may not even cause suffering, let alone “excessive suffering.”

I agree, and I hope that at least five justices of the Supreme Court do as well.

If the court jettisons the more-than-de-minimis-cost test, the landscape of religious-discrimination litigation will change. An employer will have to show that accommodating an employee’s religious beliefs causes not just a minor inconvenience but a real “undue hardship,” perhaps the kind of extraordinary expense that a landlord would have to prove in a disability-discrimination case. That would be good news for religious freedom and liberty of conscience in genertal.

I will keep you posted.

COVID 19, discrimination, employment law, law, public records law, religious freedom

How many “fully vxccxnxtxd” people got infected after September?

February 9, 2023:- How many people got the shots then caught the disease? Once upon a time, the Massachusetts Department of Public Health (DPH) used to publish the numbers. But then (when the proportion of “fully vaccinated” people who later reported catching COVID-19 hit 11.4%) they stopped.

So I submitted a public records request and learned that the number of breakthrough cases in the 69-day period June 26-September 3, 2022 was 58,199.

What about breakthrough cases recorded after September 3, 2022? I submitted another public records request in order to find out. You can read about the response here.

Because there were still no new figures for breakthrough cases from September 3 onward, in January I submitted yet another request, and today I received the response:

The Department has not found records responsive to your request. The Department herewith
informs you it has not stopped analyzing breakthrough COVID-19 cases but conducts this
analysis on a periodic basis.

That was exactly what they said in response to my previous request, and the one before that. The DPH says that it conducts its analysis on a “periodic basis,” but clearly the periods are quite long: they have no figures for the last 4 months.

Undue hardship?

Here’s a reminder about why this matters to employees in Massachusetts. If you submitted a request for exemption from the mandate (the No Jab, No Job rule) you may have received a letter telling you that accommodating your request would impose “undue hardship” on the employer. That contention of undue hardship rests on the premise that the shots stop people from catching and transmitting the disease.

But if lots of people get the shots and then catch the disease anyway — and in Massachusetts we know that the proportion is at least 12% — that premise vanishes (it wanes, you might say).

We need to know what’s going on, and for how long these pharmaceutical products provide any degree of protection. Otherwise how can we make informed choices about whether to get ourselves and our children injected? Knowing how many breakthrough cases there have been is one important piece of information, information that the State used to deem important enough to publish on a regular basis.

If you would like to help find out what the numbers really are, please let me know. I am not looking donations, just volunteers. To get in touch, use the contact form or send me an email.

COVID 19, discrimination, employment law, law, religious freedom

More than 300 deaths among “fully vaccinated” in 69 days

December 5, 2022:- Until July 2022, the Massachusetts Department of Public Health (DPH) used to publish a regular report that stated the number of “fully vaccinated” people who had been hospitalized from COVID-19 and the number who had died. Then, when the number of deaths passed 3,000, DPH stopped publishing its weekly report.

In November I submitted a public records request to DPH asking for the new numbers. Today I received the response.

[T]here have been 314 COVID-19 vaccine breakthrough deaths among vaccinated MA residents reported to the Department between June 26, 2022- September 3, 2022. A COVID-19 breakthrough case is defined as an individual who has tested positive for COVID19 at least 14 days after being “fully vaccinated” against COVID-19.

So there you have it. In the 69-day period June 26-September 3, 2022, 314 people died of COVID-19, a disease against which they were “fully vaccinated.” That number is in addition to the 3,000+ “fully vaccinated” people who had died before DPH stopped publishing the figures.

A reminder of why these numbers matter to those of us who do not know the victims or the families and friends they left behind: Hundreds of people in Massachusetts were discharged from their jobs because their religious beliefs prevented them being injected with products advertised as “COVID-19 vaccines.” Their employers, including State government agencies, contend that letting them continue working without being injected would have been an “undue hardship,” i.e. the un-injected workers were more likely to catch and spread COVID-19 than the injected workers.

That contention rests entirely on the premise that the injections stop you catching the disease. When, if ever, will employers just admit the obvious falsity of this belief? That’s a rhetorical question, by the way.

As Allysia Finley points out in today’s edition of the Wall Street Journal:

But by last fall it was clear that vaccinated Americans were catching and spreading the virus. Then the administration rolled out third doses it claimed would strengthen individual and collective protection.

To many Americans, the boosters came as a bait-and-switch. They’d been led to believe vaccines offered a lifelong warranty against infection. Public-health officials at the outset should have set more realistic expectations.

… The CDC’s website in September showed that, since April, Americans who got the original boosters were testing positive at higher rates than those who had only two doses.

Employers — government agencies in particular — that imposed the No Jab, No Job policy under false pretenses should own up and admit that they either did not know the products did not work, or knew and lied about it. Is that really too much to ask? That’s another rhetorical question.

Mika Baumeister on Unsplash

COVID 19, discrimination, law, religious freedom

State government no longer analyzing data on breakthrough cases

September 27, 2022:- It’s amazing what you can not find out when you don’t try. And the Commonwealth of Massachusetts is definitely not trying to find out something that most of us would find quite helpful, especially if we wanted to learn how to protect people against COVID-19.

Today I learned that the Commonwealth’s public health agency no longer tracks the number of people who are “fully vaccinated” against COVID-19 who have gone on to catch COVID-19 anyway (the disease that the vaccines were supposed to stop them catching).

A good leaving alone

Today I learned that instead of tracking those numbers, the Commonwealth is giving them a good leaving alone, as Howie Carr would say.

What does this lack of curiosity on the part of State government have to do with the practice of law? I will tell you.

Readers may know that I represent a number of people who worked for agencies of the Commonwealth until the Governor ordered them to be injected with products advertised as “COVID-19 vaccines.” For religious reasons, my clients were not able to comply, so they requested exemption from the mandate on religious grounds. The State denied their requests. And then the State discharged them.

In defending itself against charges of religious discrimination, the State says that letting workers carry on working without being injected would have caused undue hardship because these un-injected workers posed a threat. Of course, that defense rests entirely on the premise that the injections would have stopped the workers from catching and spreading the disease. It falls rather flat if it turns out that the injections do not really do that.

August 6: The day the calculator stood still

The Massachusetts Department of Public Health (DPH) used to publish regular reports that showed the growing number of “fully vaccinated” people who have caught COVID-19 (the disease that the vaccines were supposed to stop them catching). Public health officials refer to these as “breakthrough cases.”

Those regular reports stopped in early July when the number of breakthrough cases reached 617,337, i.e. 11.4% of all the fully vaccinated people in Massachusetts. As I mentioned in a previous post, that figure only includes the cases that people report to their healthcare providers.

For most people who display some symptoms, those symptoms are mild (e.g. sore throat, slight cough, and runny nose) and do not require a visit to a healthcare provider. If a person with COVID-19 does not report the infection to a healthcare provider, nobody enters the case into a healthcare provider’s database, and it does not appear in the department’s figures.      

So the official figure does not does not include people who are fully vaccinated and then contract COVID-19 but do not report the fact to a healthcare provider. This means that the number 617,337 (11.4% of the fully vaccinated population) is an undercount.

The last report was dated July 5, 2022. Because I am curious (which, in and of itself, probably disqualifies me from a job in the upper reaches of State government) I asked DPH for records showing the number of COVID-19 breakthrough cases from July 6 to the date of the response.

Today the Department responded. According to State Epidemiologist Catherine Brown, the number of breakthrough cases reported in the period June 26-August 6, 2022 (41 days) was 38,015.

That’s a lot of new infections in just 41 days. But what about after August 6?

The Department does not have a responsive record for data after August 6, 2022, as the analysis is not performed routinely, and no analysis has been performed beyond that date.

Why? Why has the Department not analyzed data beyond that date? The letter does not say. And that is why I just submitted another public records request.

A simple question

In my new public records request, I am asking for records that embody or reflect the reason why, after August 6, 2022, the Department stopped analyzing COVID-19 breakthrough cases. Why seems like such a simple question.

As for the answer, I will keep you posted.

discrimination, discrimination defense,, law

Sunshine Week

March 15, 2022:- It’s Sunshine Week, a time to promote open government. Who says so? The News Leaders Association.

People who refer to themselves as “News Leaders” make me suspicious, for reasons that I will not sidetrack myself by going into. So staying focused (my suspicions of the News Leadership notwithstanding) and because the concept of Sunshine Week appeals to me, I will mark the event by recounting what I learned from the response to one of my recent public records requests, more specifically the discovery that a particular record does not seem to exist.

Hate Crime Hotline

After the election of Donald Trump (R), Maura Healey (D), who is the Attorney General of the Commonwealth of Massachusetts, issued a press release:

“Following reports of harassment and intimidation of racial, ethnic and religious minorities, women, LGBTQ individuals and immigrants since Election Day, Attorney General Maura Healey today announced that her office has launched a new hotline for Massachusetts residents to report such incidents.”

At the time, I was reading about both (1) actual hate crimes, and (2) hate crime hoaxes, so the hotline caught my attention. I wondered what, if anything, would happen in response to calls that people made to the hotline and how, if at all, the Attorney General would measure the efficacy of the hotline. Whether public officials will bother to evaluate the effectiveness of a publicly-funded initiative (or even bother to think about how they would evaluate its effectiveness) is, indeed, one of the things that I wonder about.

Measuring Success

Hate crimes are heinous. So if you receive a report of one, I think you should look into it, especially if you are the Commonwealth’s top law-enforcement official and you have set up a hotline for people to call. You might also want to keep track of the complaints. This, I thought, is what Attorney General Healey will do because according to the press release:

The hotline will be managed by attorneys and staff in the AG’s Office. While not every incident will be appropriate for legal action, the AG’s Office will be tracking reports and appropriate matters may be referred to local law enforcement or the Attorney General’s Criminal Bureau.

Based on that statement, it seemed reasonable to believe that the Attorney General’s Office (AGO) would be tracking reports and, perhaps, referring appropriate matters to local law enforcement or the Attorney General’s Criminal Bureau.

One very good reason to keep track of reports and of how many you refer to law enforcement and what happens to the referral thereafter is this: Without that knowledge, you do not know whether the hotline works. Collating that information is essential to determining whether this particular policy — a hate crime hotline — has any effect on hate crimes.

If the hotline works, hallelujah. If it does not work, stop wasting those resources on a failed initiative and devote them instead to an initiative that is more likely to reduce hate crimes.

That, of course, assumes that the purpose of the hotline is to help reduce hate crimes as opposed to, say, conveying the message that the election of Donald Trump led to an increase in hate crimes.

Public Records Request

In January 2022, I submitted a public records request (the Massachusetts equivalent of a federal FOIA request) to the AGO asking for, among other things, the total number of calls received since the hotline’s inception. This, according to the AGO’s response is 5,929. I was surprised not so much by the total number as by how many were from other States (quite a few from California, in particular Los Angeles).

Another fact that I deem worthy of note is that 13 of the calls were from Amherst, where I live, so I have followed up with a public records request to the local police department to find out what, if anything, happened with these 13 hotline complaints.

In addition to the total number of calls, I asked for:

  • The number of complaints received via the hotline referred to local law enforcement or the Attorney General’s Criminal Bureau, and
  • Investigations commenced as a result of calls to the hotline, and prosecutions and convictions arising therefrom.

Regarding these two items, the AGO answered:

[W]e do not track our cases in a manner in which we could identify responsive records without spending an undetermined, yet voluminous, amount of time. It would require that we search, both electronically and manually, through every electronic and paper record made or received by AGO staff in multiple Bureaus and Divisions and review all of the records so found for applicable exemptions and privileges.

What I learned from this statement is that the AGO does not have a clear idea of how many hotline complaints were referred to local law enforcement or how many hotline calls resulted in investigations, prosecutions, and convictions. To find out, the folks at the AGO would have to really, really look into it, which would take an “undetermined, yet voluminous, amount of time.”

This matters. The AGO urged “any Massachusetts resident who has witnessed or experienced bias-motivated threats, harassment or violence” to call the hotline. And many Massachusetts residents did, along with residents of many other places (including more than one might have expected from LA for some reason). There have been almost 6,000 hotline calls logged over the last 5 years or so.

So what happened to those complaints? How many did the AGO refer to local law enforcement, how many were investigated, and how many led to convictions? The AGO has not collated all that information.

This is why public records requests are useful. With them, we can learn not only what records our public officials make, but also what sort of records our public officials do not consider it worth making.

Photo by Diego PH on Unsplash

COVID 19, discrimination, employment law, law, religious freedom

Captain Albert Brox and religious liberty

March 1, 2022:- Today Attorney Patrick Daubert talked with me about the case of Captain Albert Brox v. Wood’s Hole, Martha’s Vineyard, and Nantucket Steamship Authority, which concerns religious liberty and medical-product mandates. Attorney Daubert represents employees of a State agency who are seeking religious exemptions from the mandate that their employer imposed at the beginning of the year. After the State court judge enjoined the authority from enforcing its mandate, the authority removed the case to federal court.

To watch and listen to the conversation, click here.

Photo by Jack Sharp on Unsplash
COVID 19, discrimination, employment law, law, religious freedom

No Jab, No Job: Are you a public employee facing discrimination?

If you are a State or municipal employee facing religious discrimination, I would like to hear from you.

For example, if your employer requires you to receive a product known as a “COVID-19 vaccine” as a condition of your employment (the No Jab, No Job rule) and refuses your request for a religious exemption, you may have legal recourse. To set up a free 20-minute consult, use the contact form below.

Religious Freedom

As you may know, Massachusetts law (M.G.L. c. 151B) prohibits discrimination on the basis of religion. If your employer denied your request for a religious exemption from the No Jab, No Job rule, you may have a claim under that law. The place to file your claim is the Massachusetts Commission Against Discrimination (MCAD) and the filing deadline is 300 days after the discriminatory act.

This is a complicated and shifting area of law, so it is worth reading up on the subject even before talking to a lawyer. The New Civil Liberties Alliance has articles and press releases about its courtroom efforts against mandates, the Pacific Justice Institute provides free resources on protecting religious rights in the workplace, and the Christian Legal Aid Society offers a Religious Freedom Toolkit. You may also want to check out Attorney Aaron Siri’s site, Injecting Freedom.

Genetic Discrimination

In addition to the law against religious discrimination, Massachusetts also forbids discrimination on the basis of genetic information. Similarly, a federal statute called the Genetic Information Non-Discrimination Act (GINA, Title II) makes it unlawful for an employer

to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

This information page and Q&A show where the Equal Employment Opportunity Commission (EEOC) stands on GINA and vaccines. Bear in mind, these EEOC documents are not law (they are not statutes, regulations, or judicial decisions) but courts usually defer to the EEOC when the agency is interpreting the statutes in its purview. The EEOC documents are helpful insights for employees who wish to use GINA to challenge the No Jab, No Job rule.

Bioethics

Another helpful resource for employees is Article 6 of the UNESCO Universal Declaration on Bioethics and Human Rights, which the General Conference of UNESCO adopted in 2005.

The relevant paragraph of Article 6 provides that:

Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.

Although it does not have the force of law, the Declaration is something that judges may choose to take note of in some cases, e.g. the Second Circuit Court of Appeals decision in Abdullahi v. Pfizer, a case about Pfizer’s drug trials in Nigeria.

The principle of prior, free, informed consent should guide courts and adjudicatory bodies like the MCAD when considering No Jab, No Job cases.

Consult

To set up a consult, please use this form.

COVID 19, discrimination, employment law, free speech, law, religious freedom

Court of Appeals tells District Court to reconsider denial of injunction in vaccine mandate case

February 18, 2022:- Yesterday the Fifth Circuit Court of Appeals sent a vaccine-mandate case back down to the District Court for the judge to re-consider the employees’ request for a preliminary injunction. The case is Sambrano, et al, v. United Airlines, Inc., United States District Court for the Northern District of Texas USDC 4:21-CV-1074.

The employees are suing the employer because the employer requires them to receive a COVID-19 vaccination. The District Court had denied the employees’ request for a preliminary injunction on the grounds that the employees could not show “irreparable injury,” but the Court of Appeals disagreed:

Plaintiffs allege a harm that is ongoing and cannot be remedied later: they are actively being coerced to violate their religious convictions. Because that harm is irreparable, we reverse the district court.

Check here for updates on this case.

Photo by Mika Baumeister on Unsplash

COVID 19, discrimination, employment law, law

Vaccination mandates and employer liability

January 10, 2022:- An op-ed in today’s edition of the Wall Street Journal titled “Omicron makes Biden’s vaccine mandates obsolete” will prove important, I think. It states that the vaccinations that are supposed to protect us against COVID-19 may make us more susceptible to catching the latest version of the disease known as the Omicron variant:

One preprint study found that after 30 days the Moderna and Pfizer vaccines no longer had any statistically significant positive effect against Omicron infection, and after 90 days, their effect went negative—i.e., vaccinated people were more susceptible to Omicron infection. Confirming this negative efficacy finding, data from Denmark and the Canadian province of Ontario indicate that vaccinated people have higher rates of Omicron infection than unvaccinated people.

One of the two co-authors is Jed Rubenfeld, a professor at Yale Law School. The other is Dr. Luc Montagnier, who won the 2008 Nobel Prize for Physiology or Medicine. But be advised, Wikipedia warns us about Dr. Montagnier:

During the COVID-19 pandemic, Montagnier was criticised for using his Nobel prize status to “spread dangerous health messages outside his field of knowledge”[6] for promoting the conspiracy theory that SARS-CoV-2 was deliberately created in a laboratory. Such a claim has been refuted by other virologists

Of course, Wikipedia also states that the total number of deaths from COVID-19 in China (pop. 1.4 billion) is about 5,000, which is roughly the same as the death toll in Ireland (pop. 5 million). According to Wikipedia:

Around March 2020, there was speculation that China’s COVID numbers were deliberately inaccurate, but now China’s COVID elimination strategy is considered to have been successful and its statistics are considered to be accurate

When weighing the credibility of Wikipedia on the subject of Dr. Montagnier, it’s worth considering the credibility of Wikipedia on the subject of the Chinese government’s COVID-19 statistics. To be a little more blunt, if you believe that the number of COVID-19 fatalities in China is the same as the number in Ireland, perhaps I could interest you in the purchase of a certain bridge.

So with that word of caution about Dr. Montagnier from Wikipedia, and my own word of caution about Wikipedia’s word of caution, let me move on to the legal implications.

If the vaccinations make people more susceptible to COVID-19, what are the implications for those employers who imposed a vaccine mandate on their employees? I have in mind the companies that gave their workers a simple choice: Either (A) get vaccinated; or (B) you’re terminated.

And what if the workers who chose option A (i.e. they got vaccinated) then caught COVID-19 — not in spite of but because of the vaccine — and became sick? Do they have any legal recourse, and if so against whom?

First, are the pharmaceutical companies liable? No, obviously not.

Second, is the government liable for urging you to do it? I doubt it (that’s what the National Vaccine Injury Compensation Program is for).

Is the employer liable? I wonder.

If you are a public employee and are curious about your rights, feel free to use the contact form and sign up for a no-charge consult.

civil asset forfeiture, discrimination, law

WATCH LIVE: civil asset forfeiture commission

June 1,2021:- On Thursday, June 3, starting at 10:00 a.m., the Massachusetts commission on civil asset forfeiture will hold a meeting that you can watch live via malegislature.gov.

Readers will recall that civil asset forfeiture is where law enforcement seizes property that they have mere probable cause to believe may have been used in connection with a crime and then the owner has to go to court to prove innocence in order to get their property back. The system lets police and prosecutors treat ordinary people like an ATM.

Photo by Toa Heftiba on Unsplash

Does this really happen in Massachusetts? Yes, as the experience of Malinda Harris, covered in Reason magazine, illustrates:

“On March 4, 2015, police in Berkshire County, Massachusetts, seized Malinda Harris’ 2011 Infiniti G37 because her son, Trevice, was suspected of selling drugs. Although Harris had let Trevice borrow her car, the cops never alleged that he used it for drug dealing or that she knew about her son’s illegal activity. Harris heard nothing more about her purloined property until October 2020, more than five years after the seizure, when she was served with a civil forfeiture complaint that had been prepared the previous January.”

Jacob Sullum, Reason, 3.2.2021

Law enforcement seized and held Malinda Harris’s car for five years before even allowing her an opportunity to try to get it back. There is nothing extraordinary about the experience of Ms. Harris, other than the fact that she came to the attention of a nonprofit organization that was able to represent her for free. That is what makes her case exceptional.

If you think that Ms. Harris’s case is an outlier, here are some facts and figures from the Massachusetts Trial Court that speak for themselves:

  • In the period 2017-19 the Massachusetts attorney general and district attorneys seized more than $20 million from people who had not been accused of, let alone convicted of, any crime
  • In 24% of cases the amount of money seized was between $2,000 and $4,999, in 25% the amount was less than $2,000, and in one case was $6.20
  • Section 47(d) of chapter 94C of the Massachusetts General Laws puts the burden on a claimant to prove that the property is not forfeitable
  • In most cases the legal fees that an innocent owner would incur in making a claim would exceed the value of the seized property
  • In approximately 80 per cent of civil asset forfeiture cases in the period 2017-19 the owner made no claim

I intend to watch the commission’s hearing and to post an update soon afterwards. And I will be right on the keyboard as soon as the Judiciary Committee schedules a hearing for the bill that I wrote (H.1724) to provide free counsel in civil asset forfeiture cases.

In the meantime, for the op-ed Malinda Harris co-authored in USA Today click here. For the latest report from the Institute for Justice, titled Policing for Profit, click here.

For a Cato Institute interview with Attorney Tom Sandefur on the subject of civil asset forfeiture (with a mention of the Malinda Harris case) click here.

And lest you think that this is a libertarians-only hobbyhorse, click here to read about the ACLU’s position.

Featured image by Logan Weaver on Unsplash

discrimination, fair housing, housing court, law

New fair housing rule from HUD Secretary Ben Carson

July 23, 2020:- The federal Department of Housing and Urban Development (HUD) has published a new rule about affirmatively furthering fair housing. It defines what the term “affirmatively further fair housing” actually means and makes it easier for communities to show that they are, indeed, doing just that (i.e. affirmatively furthering fair housing). This new rule replaces an old rule.

2015 rule

In 2015 President Obama’s HUD adopted a regulation that required towns and cities to explain in detail how their zoning, land use laws, and services such as public transportation were affirmatively furthering fair housing.  This article from the Atlantic magazine describes the rationale for the Obama administration’s decision.

2018 suspension

In 2018, citing the time-and-cost burdens that the rule-mandated assessment tool put on local governments,  HUD Secretary Ben Carson suspended it. Several organizations, including the ACLU and the National Fair Housing Alliance, went to court in an unsuccessful effort keep the 2015 assessment tool in place. According to this ACLU statement, suspending it “puts housing integration in serious jeopardy.”

The State of New York joined the lawsuit. For Governor Cuomo’s announcement about the case click here. For a brief account of New York City’s track record as landlord from the National Apartment Housing Association click here. For another revealing story about affordable housing in New York, click here.

Several other States (including Massachusetts) and some cities (including Oakland, California; Portland, Oregon; and Seattle, Washington) signed on to an amicus brief in support of the effort to stop Secretary Carson suspending the 2015 rule. The new rule that Secretary Carson announced would seem to moot the case.

Disparate Impact

The new HUD rule about AFFH does not affect the need for local governments to avoid policies that have a disparate impact on protected classes, a form of discrimination that the Supreme Court of the United States recognized in Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) and that the Massachusetts Supreme Judicial Court recognized in Burbank Apartments Tenants Ass’n v. Kargman, 474 Mass. 107, 122 (2016). To browse the SCOTUSblog material on Inclusive Communities click here. For Secretary Carson’s National Review article on the decision and its implications for HUD’s 2013 disparate-impact rule, click here.

My own post from 2013 discusses the disparate-impact rule that HUD had adopted prior to the SCOTUS decision in Inclusive Communities and the rule’s potential to address racially segregated housing and schooling patterns in an around Springfield, Massachusetts. In the 7 years since I wrote that post, I have not heard of any real progress on that front. If you know of some positive steps or have practical suggestions, please share them.

Question

What should State and local government do (or not do) here in Massachusetts in order to reduce racial segregation in housing? If you have success stories or a policy proposal, I would like to hear from you.

COVID 19, discrimination, free sppech, housing court, law

Not a rent moratorium

April 23, 2020:- The new law is a moratorium on some (not all) evictions, not on rent. The law expressly states:

Nothing in this section shall relieve a tenant from the obligation to pay rent or restrict a landlord’s ability to recover rent.

Are landlords allowed to remind tenants of this fact? Yes.

Certainly, landlords who choose to provide a written reminder need to take care not to say anything that could construed as a request to vacate or as a threat to initiate a debt-collection lawsuit, nor should they visit the tenant. Sending the reminder to some tenants but not to others would invite a charge of discrimination, so an all-or-none approach would be wiser.

Statute

The eviction moratorium statute prohibits landlords from sending, for the purposes of a “non-essential eviction,” any notice, including a notice to quit, requesting or demanding that a tenant of a residential dwelling unit vacate the premises.”

Regulations

The Attorney General’s emergency debt-collection regulations prohibit “creditors” from threatening to initiate a collection lawsuit. Is a landlord who is trying to collect rent owed (overdue by 30+ days) under a lease a “creditor” within the meaning of the debt-collection regulations?

The emergency regulation states, at s. 35.03(2), that the prohibitions do not apply to “an attempt to collect a debt owed by a tenant to an owner.” The applicable regulation defines “tenant” as a person who occupies a dwelling unit “under a rental agreement,” which term the regulation defines as “an express or implied agreement for use and occupancy of a dwelling unit.” Is a tenant-at-sufferance someone who is occupying a dwelling unit “under an express or implied agreement”?  No; on the contrary, the tenant-at-sufferance is occupying the unit without the owner’s agreement, after any express or implied agreement has expired or been terminated.

This is somewhat convoluted, but bear with me: It is all too easy to imagine someone whose lease/rental agreement has expired or been terminated claiming to be a tenant-at-sufferance and, therefore, not a “tenant” within the meaning of the regulation and, therefore, outside the scope of the landlord-tenant exception to the ban on creditor-debtor communication. So tread carefully.

Takeaway

Sending a simple reminder to all tenants that the new law states that “nothing in this section shall relieve a tenant from the obligation to pay rent or restrict a landlord’s ability to recover rent” would not, in my opinion, violate the statute or the regulations.

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Peter Vickery, Esq.

COVID 19, discrimination, law, massachusetts

Some evictions are still legal

April 23, 2020:-  Landlords and lawyers should bear in mind that the new eviction-moratorium law does not prohibit all evictions. The definition of “non-essential evictions” excludes:

(a) criminal activity that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; or

(b) lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public.

Such evictions are not non-essential. Put another way so as to avoid a surfeit of negatives, such evictions are essential.

Note in particular the words “may,” “impact,” and “or.” The law does not say that the tenant’s criminal activity/lease violations must have a significant impact on the health and safety of another person, only that it “impact” the health or safety. Plus, it uses the disjunctive “or” as opposed to “and.”

What kind of activity can be said to “impact” someone’s health, including mental health? That is food for thought.

Takeaway: If a tenant’s activity may impact the health or safety of another person, the new law allows the landlord to file–and does not authorize the court to reject–a summary process case.

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Peter Vickery, Esq.

 

 

 

discrimination, discrimination defense,, emotional support animals, law

Assistance Animals: New Guidance from HUD

January 28, 2020:- The federal Department of Housing and Urban Development (HUD) has issued a new guidance document on the subject of assistance animals, a term that covers (1) service animals, and (2) support animals. Its purpose is to clarify the rights and responsibilities of housing providers and people with disabilities in the area of reasonable accommodations under the federal Fair Housing Act (FHA).

As HUD clearly states, the guidance document is just that: a guidance document, not something that expands or otherwise alters obligations under the federal Fair Housing Act.

To read the document click here.

Chamber legislative breakfast_with Lindsey and Silvia (3)
Peter Vickery, Esq.

discrimination, discrimination defense massachusetts,, law, massachusetts commission against discrimination, mcad

Discrimination regs: public hearing in Springfield

September 19, 2019:-  At 12 noon on October 9 in its Springfield office, the Massachusetts Commission Against Discrimination (MCAD) will hold a public hearing on proposed changes to its procedural regulations. For a link to the notice click here.

One proposal in particular caught my eye, as I mentioned in a previous post, and here is the text of the comment I submitted to the MCAD in support of it:

804 CMR 1.13(9)(b)(3)

The proposed rule provides that “where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.”

As an attorney who has previously complained about the Commission investigating charges without having adjudicated a motion to dismiss for lack of jurisdiction, I welcome this proposal.  A clear and unambiguous grant of discretion to issue a stay would be a significant improvement on the current situation.

However, where a respondent’s motion raises the limitation period I believe that a stay should be mandatory not discretionary.  The purpose of a statute of limitation is to provide a degree of certainty and predictability, which purpose is undermined when investigations commence after the statutory deadline has passed.  Accordingly, where a motion seeks dismissal based on the expiry of the limitation period, the Commission should only continue to investigate after determining that the period has not expired and the Commission does, in fact, have jurisdiction.

In order to maintain the principle of separation of powers (one of the bulwarks of liberty), agencies should operate within, not beyond, their statutory remit. Conducting an investigation without jurisdiction violates that principle. It should not happen. This proposed regulation goes some way toward preventing the MCAD exceeding its authority, so I hope that it makes the final cut.

I intend to be at the public hearing in Springfield and to post a brief report of what, if anything, occurs. Probably it will not be necessary to arrive hours ahead of time and queue for a seat. After all, on October 9 many Bay Staters will be busy observing the anniversary of the banishment of Roger Williams in 1635 or celebrating Leif Erikson Day. Quite possibly, therefore, there may not be much of a crowd at the mid-week, noontime meeting to discuss amendments to the MCAD’s procedural regulations. But you never know. In the meantime, if readers would like to know more about the issue, please post a comment or email me.

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Peter Vickery, Esq.

discrimination, discrimination defense massachusetts,, discrimination defense,, employment law, law, massachusetts commission against discrimination, mcad

Progress at the MCAD

January 15, 2019:-  The Massachusetts Commission Against Discrimination (MCAD) has published its draft procedural regulations, and I am happy to report that the draft includes a proposal of mine, or at least a version of it.

Readers may recall that back in 2017 I wrote a bill to cover situations where there is doubt that the MCAD has jurisdiction to investigate a complaint. (New MCAD Bill Filed). If a person accused of discrimination files a motion to dismiss for lack of jurisdiction, the MCAD should rule on that motion first, before launching an investigation. In the meantime, the Investigating Commissioner should stay (i.e. suspend) the investigation.

The new proposed rules give the Investigating Commissioner clear authority to issue a stay.

Generally, investigation of a complaint shall not be not stayed pending the ruling on a motion. However, where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.

Draft 804 CMR 1.13 (9)(b)(3). Here is a link.

Although not as good as an automatic stay, this is a very welcome step. Well done, MCAD.

cropped-cropped-petervickery_6-standing
Peter Vickery, Esq.

 

discrimination, discrimination defense massachusetts,, employment law, law, massachusetts commission against discrimination, mcad, supreme judicial court

Marijuana: respect for voters trumps supremacy clause

July 17, 2017:- Today the Supreme Judicial Court (SJC) held that where an employer fired an employee for her off-site use of marijuana, the employee may sue for handicap discrimination. The name of the case is Barbuto v. Advantage Sales and Marketing, LLC, and you can read it by clicking here. The decision does not sit easily with the Supremacy Clause of the Constitution of the United States, to put it mildly.

The case involves the Massachusetts anti-discrimination law, chapter 151B. Under 151B an employee who is a “qualified handicapped person” may seek “reasonable accommodations.” In this case, the employee asked for one particular accommodation, namely marijuana use. Faced with this request the employer demurred, arguing that marijuana use is a crime and, therefore, inherently unreasonable.

Certainly, in 2012 Massachusetts enacted the medical marijuana act. But the use of marijuana is illegal under the federal Controlled Substances Act, which Congress enacted and has not repealed. The SJC referred to this contradiction between state and federal law as an “unusual backdrop.” That is one way of putting it, I suppose.

Now, admittedly I am no judge and nobody asked me, but my starting point in resolving the contradiction would have been clause 2 of article VI of the Constitution of the United States, which provides:

This Constitution and the laws of the United States which shall be made in pursuance thereof… shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

The clause means that a law passed by Congress becomes part of “the supreme law of the land.” That is why we call it the Supremacy Clause. Lest there be any doubt, the clause includes the proviso “any thing in the constitution or laws of any state to the contrary notwithstanding.”  If a State does not like a Federal law, the judges of that State may not repeal it.  Nullification is not an option.  I believe we fought a war about this.

However, the SJC held that respect for the supreme law of the land must take second seat to something else, something not referred to in the Constitution of the United States:

“To declare an accommodation for medical marijuana to be per se unreasonable out of respect for the Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”

That is a very difficult sentence for me to understand.  Don’t get me wrong: I can read English, so I understand the words. I just do not understand how (with all due respect to the SJC) one can square that sentence with the plain language of the Supremacy Clause or with the body of precedent on the subject of field preemption.

After all, the Supremacy Clause is a straightforward answer to this simple question: Where there is a clear conflict between a federal law and a subsequent state law, which prevails? Federal law, says he Supremacy Clause. State law, says the SJC.  Why? Because it is better to ignore the federal law than fail to be “respectful” of the voters.

Perhaps this is one of those instances where the framers and ratifiers tacked on an exception using invisible ink, so that to the cognoscenti the Supremacy Clause actually concludes with the words “and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding, except when they decide not to be.” Hold your copy of the Constitution up close, then at arms’ length. If that doesn’t work, try holding it up to the light.

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Peter Vickery, Esq.