Category: discrimination defense,

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

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

New MCAD decisions published

March 4, 2020:- The Massachusetts Commission Against Discrimination (MCAD) has published three new decisions (link).

One of the cases (Chase, et al v. Crescent Yacht Club, et al) involves an award of attorney’s fees and cots in the amount of approximately $83,000.00 on top of a damages award of almost $30,000.00.

PeterVickery_6 standing
Peter Vickery, Esq.

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

New rules in effect at MCAD

February 28, 2020:- New rules of procedure have taken effect at the Massachusetts Commission Against Discrimination (MCAD). One welcome addition: Rule 1.13(9)(b)(3), which allows for a stay of the investigation pending the adjudication of a motion to dismiss for lack of jurisdiction (my personal hobbyhorse). I’ll drink to that.

For my earlier post on the subject, click here.

alcoholic beverage bar beer beverage
New MCAD rules: I’ll drink to that.

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.

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

MCAD must disclose documents

November 19, 2019:- When the Massachusetts Commission Against Discrimination (MCAD) stopped producing documents in response to Attorney J. Whitfield Larrabee’s public records requests, Attorney Larrabee sued.  The MCAD said that it had changed its policy, and that from now on it would only produce information about closed cases, not open ones. Today the Appeals Court held that it is duly promulgated regulations that govern, not a unilateral policy adopted without notice and comment.

Justice Sullivan’s opinion states that the agency’s new policy conflicts with its regulations and that it must, in accordance with the regulations, produce the documents.  My favorite excerpt is the following:”A regulation controls over policy statements or guidelines that conflict with the regulation… If the MCAD wishes to consider recalibrating its policy regarding public disclosure, it must follow the amendment process.”

In case any of my students are reading this, I point out that this case provides an example of why you should read the footnotes, which are there for reading not decoration. In footnote 7 the court deals with the MCAD’s argument that public disclosure of open cases will lead to respondents retaliating against complainants: The argument does not hold water because Respondents know about the complaint from the outset when the MCAD serves them with it.

Today’s decision makes this a good day for open government and the rule of law.

P.S.  November 19, 2019: I just filed my own public records request with the MCAD for pending charges filed so far this year in the commission’s Springfield office. I will keep you posted.

Chamber legislative breakfast_with Lindsey and Silvia (3)
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,, discrimination defense,, law, massachusetts, massachusetts commission against discrimination

Court corrects MCAD

April 18, 2017:- If an employer believes that an employee’s disability poses a safety threat, may it re-assign or terminate that employee?

Until today, the answer to that question was this: only if the employer can prove an affirmative defense by demonstrating a “reasonable probability of substantial harm.” That is the standard set by the Massachusetts Commission Against Discrimination (MCAD) in its guidelines. Today the Supreme Judicial Court (SJC) decided that the MCAD guidelines are wrong. For the text of the decision in Gannon v. City of Boston click here. It involves a concussed MMA fighter/police officer, by the way.

After explaining why the MCAD is wrong to place the burden of proof on the employer (e.g. lack of statutory authority), the SJC stated that what the employer bears is the burden of production. So in a case where the employer’s decision is based on the employee’s disability, in order to avoid liability for discrimination the employer must show “specific evidence that the employee would pose an unacceptably significant risk of serious injury to the employee or others.” Then, when the employer has met this burden of production, the employee must prove that s/he is “capable of performing the essential functions of the job without posing an unacceptably significant risk of serious injury to the employee or others.”

The distinction between the burden of proof and the burden of production is important. The burden of proof must remain with the plaintiff employee, said the SJC. Contrary to the MCAD’s guidelines, employers do not have to raise the affirmative defense and then prove by the preponderance of the evidence the existence of “reasonable probability of substantial harm.” Rather, after the employer has shown an “unacceptably significant risk of injury” the onus is on the employee to prove that she or he can, in fact, do the job without posing such a risk.

In a nutshell: This decision delivers a subtle but important victory for employers.

business-west
Peter Vickery, Esq.

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

New MCAD bill filed

February 23, 2017:- If you are charged with discrimination and you file a motion to dismiss for lack of jurisdiction, must the Massachusetts Commission Against Discrimination (MCAD) rule on your motion before launching an investigation? No, not at present. But that will change if H. 775 becomes law.

Titled “An Act Streamlining the Investigation Process of Discrimination Complaints,” the bill would require the MCAD to adjudicate a respondent’s motion first and start its investigation only if it determines that jurisdiction is proper.

Why does this matter? The main reason is the constitutional principle of the separation of powers: an executive agency should not hale people in if the Legislature has said it should not. For example, when it enacted Chapter 151B the Legislature said that the MCAD would have no jurisdiction to investigate businesses with fewer than six employees (the small-business exemption). So when the MCAD does investigate businesses with fewer than six employees it is, in effect, exercising the legislative function by re-writing the statute.

But there are pocket-book reasons too. Defending against a charge of discrimination can prove costly, which rather stacks the deck in favor of the complainant who is represented either by a lawyer working on a contingent-fee basis or by the MCAD itself. Add to that the MCAD’s institutional bias toward early resolution (which is not necessarily a bad thing) and you have an incentive for respondents to fold faster than Superman on laundry day, as Jerry Seinfeld put it.

As things stand a respondent will be tempted to settle at a commission-mandated conciliation conference early on, even if the case should never have been on the agency’s docket in the first place. Real money is at stake here, and business owners should not have to fork over for claims that should be thrown out on jurisdictional grounds. That is not an efficient use of resources. Screening out cases like these would allow businesses to devote those resources to other purposes, e.g. improving products and services to benefit their customers and creating new jobs.

The bill has been assigned to the Joint Committee on the Judiciary. Stay tuned for updates, and click here for a previous post on this subject.

business-west
Peter Vickery, Esq.

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

Speed-up at MCAD

February 9, 2017:- Earlier this month the Massachusetts Commission Against Discrimination (MCAD) announced a significant cut in its backlog of cases.

In 2016, the agency substantially reduced the number of cases that were more than 2 years old. Of the 3,811 investigations currently open at the MCAD, just 318 remain over 2 years old, down from 1,134 in 2015, a reduction of 72%.

Approximately 3,000 new complaints are filed with the MCAD every year, so the dramatic reduction in the old cases is quite an achievement. Complainants and respondents alike should hope that the agency manages to maintain this level of efficiency.

cropped-img_70311.jpg
Peter Vickery, Esq.

 

discrimination, discrimination defense massachusetts,, discrimination defense,, employment law, law, massachusetts

Hospital settles with flu vaccine refuseniks

May a hospital fire employees who refuse the flu vaccine on religious grounds? Saint Vincent Health Center in Erie, Pennsylvania, must have thought so back in 2014 when it terminated the employment of six vaccine refuseniks, but now that it has agreed to shell out $300,000 in back-pay and compensatory damages it probably realizes that the short answer is no. The Equal Employment Opportunity Commission (EEOC) press release states:

“While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer’s Title VII duty to provide reasonable accommodation for religion… In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer’s operations.”

Last year I wrote an article about Boston Children’s Hospital fending off a discrimination complaint after it fired an employee who had refused the flu vaccine on religious grounds. The judge found that the hospital had offered reasonable accommodations and the accommodation that the employee requested would have imposed an undue hardship on the hospital.

The lesson for health-care providers?  If employees object to the vaccine on religious grounds, work hard with them to devise some reasonable accommodations and document those efforts carefully and thoroughly.

IMG_7031
Peter Vickery, Esq.

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

OK to exclude gay men, says MCAD

Must a charity that offers free reconstructive surgery to female victims of domestic violence also provide those services to a gay man? No, said the MCAD in a decision last September. Only two months earlier the Legislature and Governor had prohibited places of public accommodations from excluding men from women’s restrooms and locker rooms, so you might think the case would have grabbed the odd headline, but apart from this Mass Lawyers Weekly article it received surprisingly little media attention.

The respondent was the R.O.S.E (Regaining One’s Self Esteem) Fund, a non-profit that seeks to help women who are the survivors of domestic violence. In 2008 it declined to extend its services to Kevin Doran, whose male partner had assaulted him, leaving him with broken teeth and facial bones. With the support of Gay & Lesbian Advocates & Defenders (GLAD), Mr. Doran argued that the ROSE Fund is a place of public accommodation and that by turning him away it had violated the Massachusetts anti-discrimination laws.

In 2014 an MCAD hearing officer ruled in favor of the ROSE Fund, finding that the organization was not a place of public accommodation. In its appeal brief GLAD said the decision meant that “ROSE can now discriminate not only against men, but also on the basis of race, national origin, religion, sex, sexual orientation, and disability as well.”

Nevertheless the full three-member Commission upheld the 2014 decision on First Amendment grounds:

“The U.S. Supreme Court has recognized the venerable history of the public accommodation laws in Massachusetts, but when applied to expressive activity, the laws may not act to compel certain speech in violation of the First Amendment.”

For that reason, the Commission held that “a private charity set up with the express purpose of serving a narrow community may be allowed to make choices about whom to serve, based on the purpose of the organization and consistent selection criteria.”

This is a very narrow ruling. The MCAD limits its First Amendment expressive-activity exception to a thin sliver of entities: tax-exempt corporations set up to serve a “narrow community,” as opposed to regular businesses and individuals who do not have tax-exempt status and cater to the general public.  The decision sits awkwardly alongside expressive-conduct cases from other jurisdictions such as Elane Photography (photographers fined for refusing to photograph same-sex commitment ceremony) and Barronnelle Stutzman (flower arranger fined for refusing to design arrangement for her friend’s same-sex wedding). In those cases, the fact that the defendants’ businesses consisted of expressive activity did not exempt them from the legal obligation to provide their services at same-sex weddings. If those are not examples of the state “compelling certain speech” I don’t know what is.

And as for why tax-exempt corporations should have greater free-speech rights than the rest of us, that is not something the MCAD’s Doran decision addresses.

IMG_7031
Peter Vickery, Esq.

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

Election 2016: one call to make the day after

October 26, 2016:- With less than a fortnight to go until the general election, now is the time to start thinking about the day after.

In addition to choosing the state’s presidential electors, in 13 days’ time Massachusetts voters will elect the state legislature, officially known as the Great and General Court of Massachusetts. Perhaps “elect” is too strong a word given that almost 80% of the seats are uncontested, earning Massachusetts a competitiveness ranking of 44 out of 50. Nevertheless, even without the ordeal of an actual race many freshly re-elected politicians tend to experience feelings of relief and generosity of spirit, which makes Election Day + 1 an ideal time to ask them for a favor.

If you are willing to make one post-election request of your state representative and senator, please consider asking them to co-sponsor a bill to restore some balance to the Massachusetts Commission Against Discrimination (MCAD). The goal is quite modest. If enacted, this piece of legislation would require the MCAD to make sure that it only handles cases that fall within its jurisdiction. In fact it does not even go that far. It puts the onus on the respondent (the person being accused of discrimination) to file a motion to dismiss, which would automatically stay, i.e. pause, the investigation until the MCAD determines that it does, in fact, have jurisdiction.

Why is this necessary? Because, as a report by the State Auditor showed, the MCAD routinely investigates cases that are outside its statutory remit, which not only contributes to the agency’s four-year backlog but is unfair to the individuals who are haled in and investigated without justification. Click here for my article on the subject in the Massachusetts Bar Association’s Lawyers Journal.

Invidious discrimination is real, and there are enough cases that do fall within the MCAD’s jurisdiction without the agency having to spend its budget investigating cases that do not. The new legislation would restore some balance. If you would like a copy of the bill and a bill summary for legislators and their aides, email peter@petervickery.com with the words “MCAD Bill” in the subject line.

justice

 

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

Tick, tock: Justice delayed

Invidious discrimination does occur, and we are fortunate to have an agency tailor-made to address it, namely the Massachusetts Commission Against Discrimination (MCAD). But the current four-year backlog of cases at the MCAD is hurting litigants on both sides, employers and employees alike. Justice delayed is justice denied, as the saying goes. And most reasonable people would agree that the MCAD should not handle cases outside its jurisdiction.

So what should we do about the problem? Check out my article in the current edition of the Massachusetts Bar Association’s Lawyers Journal by clicking here.

IMG_7031
Attorney Peter Vickery