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.
December 4, 2018:- Leyla Pirnie’s landlord would like her to move out. Why? Because Ms. Pirnie (a graduate student at Harvard University) keeps a firearm in her apartment.
The story has been gaining national attention after it broke in the Washington Free Beacon , and it raises important questions for landlords across Massachusetts. How far can landlords go in limiting their tenants’ exercise of constitutionally-guaranteed rights? For example, does a landlord have the right to prohibit a tenant from exercising her right to free speech in the leased premises? What about the free exercise of religion?
If a tenant has a disability, the landlord may have to make an exception to the property’s no-pets policy so as to accommodate the tenant’s emotional support animal (for my MassLandords article on that subject click here). But is there such a thing as an emotional support gun?
I will be exploring these and other questions in next month’s MassLandlords newsletter. In the meantime, to watch Ms. Pirnie’s interview on Fox News click here.
The Washington Post reports that Lynne Patton, the New York regional administrator at the Department of Housing and Urban Development (HUD) is moving from her apartment in Trump Plaza into public housing in Harlem for the month of January.
Patton will become a tenant of the New York City Housing Authority, which has been the subject of much criticism for, among other things, failing to address lead paint problems. See e.g. this New York Times article and various stories in The Real Deal. The conditions in the authority’s units triggered a federal investigation and lawsuit, which in turn prompted Patton’s planned stint as a public-housing tenant.
“As Regional Administrator, I cannot continue to purport to understand, nor resolve, the daily plight of a NYCHA resident without experiencing it firsthand,” Patton said. “It is my intent to spend the entire month of January doing exactly that.”
From the MassLandlords newsletter: Massachusetts Attorney General Maura Healey issued a press release relating to the sum of $40,000 that her office acquired from three sets of rental-property owners, property managers, and real-estate agents to settle enforcement actions. The press release outlines cases involving three properties: the first in Taunton, the second in Revere, and the third in Roslindale. To read the rest of the article, click here.
August 1, 2017:- In 2010, Alberto Rodriguez sued his employer, a freight transportation company, for employment discrimination. Although the employer denied any wrongdoing, the case settled for $10,000.00.
In 2010, Alberto Rodriguez sued his employer, a freight transportation company, for employment discrimination. Stop me if you’ve heard this one before.
In fact, second time around the outcome was different. By the time of the pay-out from employer 1 (Roadway Express) Alberto Rodriguez was already working for employer 2 (UPS) in Springfield, Western Massachusetts. After 11 months, UPS fired him, and a few days later Mr. Rodriguez filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging employment discrimination. Earlier this year the MCAD dismissed the case. Among the various reasons the MCAD hearing officer gave for ruling against Mr. Rodriguez was this one:
In her deposition in the Roadway Express lawsuit (which, during his deposition in the UPS case, Mr. Rodriguez denied ever having filed), Mrs. Rodriguez stated that she had overheard a cellphone conversation via Bluetooth in which the employer used ethnic slurs against her husband. In her deposition in the UPS case, Mrs. Rodriguez testified that she had overheard a cellphone conversation via Bluetooth in which the employer used ethnic slurs against her husband. The hearing officer found this similarity not only “striking and suspicious” but “so far-fetched as to be wholly implausible.”
Fool me once, shame on me, as the saying goes. Fool me twice? For the second part of that aphorism (the less traditional version) delivered by internationally-acclaimed business guru Michael Scott, click here.
The lessons for employers facing charges of discrimination? First, consider taking depositions, so that you can compare and contrast the deposition testimony with the deponent’s testimony at the hearing. It is not only discrepancies that can be helpful; so can consistencies, especially those that strike a reasonable objective listener as implausible. Second, even if the MCAD issues a probable-cause finding that paves the way for a public hearing, as happened in the Rodriguez v. UPS case, if the facts are on your side and you can prove them, consider resisting the understandable impulse to settle and, instead, stand firm.
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.