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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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” 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?
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
February 3, 2017:- The Equal Employment Opportunity Commission (EEOC) is soliciting public comment on its proposed new Unlawful Harassment Enforcement Guidelines. You can read the guidelines and comment on them here.
One item that employers should note: Harassment of a “transgender individual ” can include “using a name or pronoun inconsistent with the individual’s gender identity in a persistent or offensive manner.”
The word “or” means that the use of the pronoun/name need only be offensive, and not necessarily persistent, in order to qualify as harassment under these enforcement guidelines.
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.