March 23, 2023:- Today the Massachusetts Department of Public Health (DPH) responded to my recent request for records of breakthrough cases and breakthrough deaths from September 4, 2022, onward.
My purpose with this request (like the previous requests) was to find out how many people in Massachusetts got injected with products advertised as COVID-19 vaccines and then caught COVID-19 and, of these, how many died of the disease.
Readers of previous posts (e.g. this one) will recall that more than 3,000 “fully vaccinated” people had died of COVID-19 before DPH stopped publishing the figures last July. In the 69-day period June 26-September 3, 2022, the number of “fully vaccinated” people who died from COVID-19 was 314 (that’s in addition to the 3,000+ figure).
September 4, 2022, was more than 6 months ago. What information has DPH collated since then?
How many “fully vaccinated” people has DPH recorded as having caught and died from COVID-19 since September 4? Today’s response states:
At this time, the Department has no records responsive to your request beyond those that have been produced to you in response to prior requests numbered BIDLS-2022-79, BIDLS-2022-99, BIDLS-2022-110, and BIDLS-2022-117.
In other words, since September 4, 2022, DPH has created no records of breakthrough cases and breakthrough deaths. Nary a one. Zero.
Is it really looking for the data? The response from DPH states:
Please be advised that the Department conducts its data analyses periodically as deemed necessary and appropriate. Analyses of COVID-19 breakthrough deaths are conducted, in part, with consideration to current federal guidance. With respect to COVID-19 breakthrough infection, the U.S. Centers for Disease Control and Prevention (CDC) is reviewing its guidance.
What criteria DPH applies in order to determine whether some analysis of data has become necessary and appropriate is not something that DPH chose to share. But clearly, conducting any analysis after September 4, 2022, must have been unnecessary and inappropriate, in the opinion of whoever makes these decisions at DPH.
As for the CDC reviewing its guidance about breakthrough infection, I don’t doubt it. That review will probably take a good long time and conclude with a rock-solid commitment to convening a group of stakeholders who will think about it some more before resuming the reviewing process.
Remember, thousands of people lost their jobs because they would not or could not get injected with these products, products that public health officials, politicians, and corporate media told us were necessary to stop people catching and spreading COVID-19. Were those officials, politicians, and media mouthpieces telling the truth? Answering that question requires some analysis of the breakthrough data.
But DPH is giving that data a good leaving alone.
If you would like the Commonwealth’s public health officials to resume their analysis so as to find out how effective the vaccines are at preventing recipients from catching and dying from COVID-19, please tell them. Tell Margaret R. Cooke, the Commissioner.
And tell your State legislators. They’re the ones who pass the budget, which gives DPH somewhere north of $170 million, a few bucks of which you might think could go toward analysis of vaccine efficacy.
In the meantime, here’s a picture of the data that DPH has analyzed over the last 6 months about “fully vaccinated” people who caught and died from the disease that the public health officials told them they were “fully vaccinated” against.
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.
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.
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.
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.
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.
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.
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.
January 14, 2022:- Last year, President Biden issued a vaccine mandate through the Occupational Safety & Health Administration (OSHA). The regulation that OSHA issued would have required employers with 100+ employees to ensure that their employees either received vaccination against COVID-19 or to wear masks and undergo weekly testing. Yesterday, the Supreme Court of the United States issued a stay of OSHA’s regulation, effectively putting an end to it.
The court pointed out that COVID-19 is a life hazard, not an occupational one:
Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.
Congress gave OSHA the limited task of regulating workplace safety, not the unlimited task of regulating the safety of society as a whole:
Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.
The court pointed out the difference between job-specific risks and the general, everyday risks that we all face both at work and elsewher:
That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible… But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.
Again, the statutes that Congress has enacted that give OSHA the legal authority to issue regulations confine that authority to occupational safety, not to safety in general. If Congress wishes to give OSHA the authority to regulate the safety of everyone, everywhere, all the time, then Congress needs to do so via statute. OSHA cannot just give itself that power, even at the direction of the President. The court’s decision recognizes this basic principle of the separation of powers.
By the way, here in Massachusetts, according to the Department of Health dashboard, the number of people currently in hospital with COVID-19 is 3,180. Of that number, 1,505 (approximately half) are fully vaccinated.
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?
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.
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.
October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.
The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.
Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.
But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis. The footnote in question is number 6 on page 15.
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.
September 1, 2016:- Employers take note: In compliance with the Act Relative to Transgender Discrimination that Governor Baker signed into law in July, earlier today the Massachusetts Commission Against Discrimination (MCAD) filed with the Clerk of the House of Representatives its Gender Identity Guidance. Much of the document is old, a restatement of the MCAD’s 2015 Advisory, including the “best practices” e.g. “update personnel records, email systems, and other documents to reflect [an] employee’s stated name and gender identity, and ensure confidentiality of any prior documentation of an employee’s pre-transition name or gender marker.”
But the section of the Guidance regarding proof of gender identity and restrooms (Part III. D) is new. Readers will recall that the statute requires that employers allow employees and members of the public to use the restroom “consistent with their gender identity.” The Guidance states that “[r]equiring an employee to provide identification or proof of any particular medical procedure (including gender affirming surgery) in order to access gender designated facilities, may be evidence of discriminatory bias” (emphasis added).
This is important to note because an earlier part of the Guidance (III. A: Definition of Gender Identity) states that when it investigates claims of discrimination the MCAD may look at “medical records from medical or other professionals involved in the treatment or transition of the individual seeking, in the process of, or who has completed gender transition.”
In a nutshell: When an employee files a discrimination claim against the employer the MCAD can consider evidence of a medical procedure, but ahead of time — unless it wishes to invite an MCAD investigation — an employer must not ask an employee for proof of any particular medical procedure.
July 22, 2016:- When Governor Baker signs into law Senate Bill 2199, titled “An Act to Establish Pay Equity,” Massachusetts employment law will un-define (not merely re-define) an important word. Here is the text of the very first section of the bill:
Section 1 of chapter 149 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out the definition of “Woman”.
So, farewell “woman,” a word that the statute used to define as “a female eighteen or over” but now does not define at all.
And farewell “sex,” too. Out with the hackneyed old phrase “no employer shall discriminate in any way in the payment of wages as between the sexes,” and in with the new: “No employer shall discriminate in any way on the basis of gender in the payment of wages.”
Pondering the replacement of sex with gender, and mulling over one of the other laws enacted this session, An Act Relative to Transgender Discrimination, which prohibits discrimination in public accommodations on the basis of gender identity, I see the potential for some mischief.
Could an employer charged with discriminating on the basis of gender raise the defense that the gender of her employees is information to which she is not privy? After all, gender is a matter of identity not physiology. I know this because I just read it in the relevant statute (clause 59, if you’re curious), which tells me in pertinent part:
“Gender identity” shall mean a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.
Got that? Gender identity means “gender-related identity, appearance or behavior.” If you are not satisfied with that definition and worry about the challenges of establishing gender identity in the courtroom, fear not; the Legislature recognized the need for greater clarity as to “when and how gender identity may be evidenced” and saw the need for guidance. In addition to having a stab at it themselves (the statute says that litigants may offer any of the following: “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity”) lawmakers delegated the task of crafting said guidance to the Attorney General and the Massachusetts Commission Against Discrimination. They are due to report to the Legislature by September 1, 2016.
In the meantime, what do we know? Well, we have replaced wage discrimination on the basis of sex (a matter of physiology) with wage discrimination on the basis of gender (a matter of identity). Of course, how a person “identifies” is not always obvious, and some think it shows rather poor manners to ask. So in the inevitable litigation, I can imagine a cross-examination of an employer along these lines:
Q. Does your employee Valery earn more than your employee Valerie for comparable work?
July 1, 2016:- The term “mission creep” refers to a military operation that gradually expands beyond its stated objectives. A new report provides evidence of a government commission repeatedly extending its reach beyond the parameters laid out in its statutory remit, a phenomenon I hereby dub “commission creep.”
The State Auditor has published an official report on the Massachusetts Commission Against Discrimination (MCAD) and in addition to revealing the usual, garden-variety problems that bedevil state agencies (e.g. mismanagement, inefficiency, and poor book-keeping) it confirms a long-harbored suspicion: The MCAD asserts jurisdiction where it has none. This matters not only to the small business owners who find themselves the target of costly investigations that drag on for years, but to all citizens who expect public servants to abide by one of the bedrock principles of constitutional government, namely the separation of powers (see Article 30 of the Massachusetts Constitution).
Despite clear statutory language confining its jurisdiction to cases filed within 300 days of the last allegedly discriminatory act, the Commission investigates cases filed after the deadline. And it does so on a scale that suggests something more than ineptitude, no mere unfortunate series of oopsy daisy events.
So that readers may judge for themselves, here is the text of the statute (section 5 of chapter 151B of the General Laws) in words as clear and unambiguous as the English language permits:
Any complaint filed pursuant to this section must be so filed within 300 days after the alleged act of discrimination.
The word must falls into the category of words legislative drafters call mandatory, as opposed to precatory or hortatory. In the vernacular, it is hard not mushy.
Nevertheless, the State Auditor’s report (p. 11) reveals that in the three-year period of the audit (2012-2015) the MCAD processed at least 123 separate cases where it lacked subject matter jurisdiction because the applicable statute of limitations had run its course:
[D]uring our audit period, MCAD accepted 123 complaints beyond the 300-day timeframe for complainants to file their complaints. MCAD regulations allow for this 300-day timeframe to be extended under certain conditions, but there was no documentation in the case files to substantiate that any of these complaints met those conditions.
I cannot tell whether the auditors independently identified the 123 cases or simply made note of the instances where the MCAD itself had determined that it lacked jurisdiction on the basis of the limitation period. If the latter, then the determination would have come at the end of the MCAD’s investigative phase, the point at which the Commission issues a Lack of Probable Cause (LOPC) finding. On average that point now arrives four years — yes, four years — after the filing of the complaint. In the meantime MCAD investigators will have required the employer to devote hours responding to questions and demands for internal documents and to attending “investigative conferences” at the agency’s offices.
Either way, this is an extraordinary finding on the part of the State Auditor. The 300-day deadline is not some off-the-cuff recommendation or flexible guideline but a statutory limitation. The Legislature decided that the deadline for filing a discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD) is 300 days, and only the Legislature can amend a statute. By flouting the limitation period so often, the MCAD has arrogated to itself the power to legislate, a power the Massachusetts Constitution expressly reserves to the legislative branch.
The report bears out something I have suspected for some years, i.e. that the MCAD investigates cases where it clearly lacks jurisdiction. Because of my experience with the MCAD, after the 2014 gubernatorial election I sent the incoming Baker-Polito administration a proposal that would remedy the problem, and the associated problem of the MCAD improperly asserting jurisdiction over employers with fewer than six employees (another statutory limit on the MCAD’s jurisdiction called the “small-business exemption”). My proposal is this:
If a respondent files a motion to dismiss for lack of jurisdiction, the MCAD shall suspend its investigation until it has adjudicated the motion.
The proposal does not require action on the part of the Legislature. With a nudge from the Governor the Commissioners could make it happen via a simple amendment to the MCAD’s regulations, with proper notice and comment. Under my proposal, the MCAD would have to deal with the threshold matter of jurisdiction before putting the employer to the expense of a full-blown, years-long investigation.
I submitted this suggestion back in January 2015. In view of the State Auditor’s findings, I shall re-send it.
May 2016:- The federal Department of Labor has decided that from December 1, 2016, employers will have to pay overtime to salaried employees who earn up to $47,476.00 annually. The current threshold is half that: $23,660.00. Is the administration’s goal to shift more workers from salary to hourly, or is that just a likely byproduct? In the words of English rock legends* XTC:
I’ve got one, two, three, four, five, senses working overtime,
Trying to take this all in.
For small business-owners wondering what the overtime rule will mean for them, click here for a brief guide from the NFIB.
* The word “legends” may exaggerate the band’s significance somewhat, I admit. Perhaps “most legendary 80s band from Swindon” would be fairer.
Springfield, Mass. :- It doesn’t happen every day, or very often at all for that matter, so this case merits a mention. An employer terminated a 64-year old, White, male employee in favor of hiring a “younger more aggressive sales person who spoke Spanish and understood Latino culture.” The older White man sued for age and ethnicity discrimination and won.
A hearing officer at the Massachusetts Commission Against Discrimination (MCAD) ordered the company to pay $11,100.00 in lost wages and $5,000.00 for emotional distress. You can read the full decision (issued January 20, 2016) here.
February 4, 2016:- Employment lawyers have been wondering, “Will Massachusetts adopt or reject the after-acquired evidence doctrine?” Today we have the answer: No.
If an employer terminates an employee for no cause and later discovers a reason that would have provided grounds for discharge, later on in court may the employer rely on that after-acquired evidence as justification? In states with the after-acquired evidence doctrine, the answer is yes. We are not one of those states. But we do not positively not have the doctrine either, if you see what I mean.
In announcing its decision in EventMonitor, Inc. v. Leness, the Supreme Judicial Court chose not to reach the issue of after-acquired evidence. So for the time being, the doctrine is neither accepted nor rejected.
In 1945, when it became clear that Winston Churchill and the Conservative Party had lost the general election, Churchill’s wife suggested that the loss might be a blessing in disguise. Churchill replied, “At the moment it seems quite effectively disguised.”
But there is no disguising the blessing in a recent Rule 1:28 summary decision by a panel of the Appeals Court with the fortuitous docket number 1945, in which a lawyer named Churchill won a noteworthy victory. The panel affirmed a jury award of $424,000.00 in favor of Attorney Churchill’s client, Dennis Craig, and — as icing on the blessed cake –granted Mr. Craig the costs and fees he incurred in defending the appeal .
The case is Craig v. Sterling Lion, LLC, and it concerned the Wage Act. The employee, Mr. Craig, sued his former employer for unpaid wages, and the jury found in his favor, awarding him treble damages and attorney’s fees.
The employer, Sterling Lion, LLC, appealed, arguing that (1) before starting his lawsuit Mr. Craig had failed to file a Wage Act complaint with the Attorney General, and (2) the trial judge had not given the jury an instruction about joint ventures. Sterling Lion hoped to characterize Mr. Craig as a joint venturer (similar to a partner) not an employee and, therefore, not entitled to the protection of the Wage Act.
The three-justice panel of the Appeals Court disposed of the first point by noting that during the trial the employer’s attorney told the judge that Sterling Lion would not be raising the issue as a defense and stipulated that the Attorney General had issued Mr. Craig with a right-to-sue letter. As for the second point regarding joint venture, when he gave evidence at trial Sterling Lion’s principal testified that Mr. Craig had not been a joint venturer or partner. In view of that testimony, the justices decided that the trial judge was correct in not giving the joint-venture instruction.
This Churchillian success story should remind Massachusetts employers of the dangers both of misclassifying employees and failing to pay owed wages.
The recent decision from the Massachusetts Commission Against Discrimination (MCAD) in Nixon v Tony’s Barber Shop has attracted some media coverage, e.g. this story in the Boston Herald and another in the New York Daily News. The MCAD awarded the visually-impaired Joel Nixon $100,000.00 because his employer, Tony’s Barber Shop, fired him after he tripped over a customer’s legs, a chair, and a ladder.
Perhaps the most noteworthy fact for employers is that the respondent, Tony’s Barber Shop, defaulted. At the hearing, there was nobody to advocate for the employer (by raising the possibility of a BFOQ, for example) and the only witness was the complainant himself, Mr. Nixon. The key lesson for employers? Show up!