July 29, 2020:- Today the Appeals Court reaffirmed that the employment relationship between a religious organization and its ministers is beyond the reach of the anti-discrimination laws. The court held that the “ministerial exemption” covered the job in question, namely director of music ministries, and that the trial judge was right to dismiss the plaintiff’s age- and gender-discrimination case against her former employer.
As the ruling points out, the purpose of the exemption is to prevent courts depriving a religious organization of control over “the selection of those who will personify its beliefs.”
You can read the decision in Menard v. Archdiocese of Boston, which proponents of freedom of conscience and religion will welcome, by clicking here.
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.
June 19, 2020:- This Juneteenth please take some time to remember James H. Wolff, Esq., a naval veteran of the Civil War and co-founder of the first Black law firm in Massachusetts.
Wolff was just 14 when he enlisted in the US Navy at the outbreak of the Civil War. Born to free parents in New Hampshire, he must have known that by volunteering to fight the Slave Power he was at risk of losing both his liberty and his life. Live free or die were the conditions of his daily life, not simply a motto.
He was aboard Minnesota when she bombarded the Confederates into surrender at Fort Hatteras, and when she became a stationary target for enemy fire after running aground early in the Battle of Hampton Roads. Three of her crew died in that engagement.
Wolff survived the battle and the rest of the war, and went on to practice law in Massachusetts. Twenty years after the war’s end and the passage of the Massachusetts anti-discrimination act, Wolff represented the plaintiff in a case that tested the statute’s limits and led to its expansion. His client in that 1885 case, Edward E. Brown, also happened to be his law partner. Together with attorney Edwin Garrison Walker, Wolff and Brown established the state’s first Black law firm. It was a firm with a mission.
After the decision of the Supreme Court of the United States in the Civil Rights Cases, 109 U.S. 3 (1883) that Congress lacked the constitutional authority to prohibit private discrimination (effectively neutralizing the federal Civil Rights Act) Wolff and his partners helped lead the campaign for stronger state-level legislation in Massachusetts. One element of that campaign took the form of a lawsuit against a Boston skating rink that refused to sell tickets to people of color. Brown was a plaintiff, and Wolff his attorney. They won.
Coordinating the case and legislative effort to enforce and amend the 1865 law was the Wendell Phillips Club, which functioned as a sort of precursor to the NAACP, bringing together business owners, ministers, and lawyers in the cause of civil rights. Walker, Wolff, and Brown were at the forefront, litigating and lobbying for liberty pro bono publico while somehow bringing in enough billable work to pay the bills and raise their families (both of Wolff’s sons followed him into the law, by the way).
For a fuller account of the case, see my article “The Genesis of the Black Law Firm in Massachusetts,” Massachusetts Legal History 5 (1999). Not quite everything ever published is available online, it seems, so if you would like a copy, email your request to peter@petervickery.com.
In the meantime, please devote a few moments of thought to James H. Wolff. An exemplar of physical and moral courage, he is worthy of remembrance.
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.
The Massachusetts agency that (according to the State Auditor) gave benefits to 1,164 people who were already dead, could not account for whereabouts of 30,000 electronic benefits transfer (EBT) cards, and (according to CBS Boston, the Boston Herald, and 22 News) allows benefits recipients to use their EBT cards in places such as Hawaii, Florida, California, Puerto Rico, and the Virgin Islands, received some good news recently. The Department of Transitional Assistance (DTA) must have relished the summary judgment it obtained in an age-discrimination case. But not for long. Yesterday the Appeals Court cut short any DTA celebrations when it ruled that the case must go to the jury.
The plaintiff, Diane M. Younker, alleged that DTA discriminated against her on the basis of her age (70) when it demoted her and gave her position (director of the Revere office) to a younger employee, Paul Sutliff (53). Ms. Younker also alleged that she lacked the necessary connections, with promotions going to employees who were more political wired.
DTA said that it demoted Ms. Younker because Mr. Sutliff would be better at dealing with what it claimed to be a pressing problem confronting the Revere DTA: overcrowding in the waiting room. The congestion was simply dreadful, it would appear. Now, admittedly, the demotion occurred in 2009 — a few years prior to the revelations about the DTA’s habit of giving cash to corpses — so at that point the most important skill for a director may well have been familiarity with feng shui as opposed to the ability to distinguish the living from the dead.
What bothered the Appeals Court was Ms. Younker’s testimony that nobody from HQ ever instructed her to implement any particular changes to address the waiting-room congestion, which contradicted the deposition testimony of Assistant DTA Commissioner John Augeri. “I was never given a specific set of implementations I was supposed to institute,” Ms. Younker averred. Ms. Younker’s affidavit refuting Mr. Augeri’s testimony “raised a genuine issue of material fact,” the Appeals Court held. Because direct evidence of discriminatory animus is rare, and the “circumstantial evidence… may be viewed as supporting a conclusion that the defendant’s proffered reason is false,” it should go to the jury.
The take-away for litigants? Buttressing a motion for summary judgment in a case that hinges on discriminatory animus requires detailed, credible evidence, both documentary and testimonial.
P.S. Reports from the ongoing political-patronage trial of John O’Brien contradict claims that DTA has long been turning a blind eye to waste, fraud, and abuse. As far back as 2007 the agency even had a unit dedicated to investigating benefit fraud, but it lost one committed member to the Probation Department (where the pension was higher). Patricia Mosca told the court about the prowess she brought to her job at DTA: “I could do it in my sleep,” she testified.
P.P.S. No word yet on whether the seating arrangements at DTA’s Revere office have improved since 2009.
Peter Vickery, Esq., 