Discrimination regs: public hearing in Springfield

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.

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Peter Vickery, Esq.

Progress at the MCAD

January 15, 2019:-  The Massachusetts Commission Against Discrimination (MCAD) has published its draft procedural regulations, and I am happy to report that the draft includes a proposal of mine, or at least a version of it.

Readers may recall that back in 2017 I wrote a bill to cover situations where there is doubt that the MCAD has jurisdiction to investigate a complaint. (New MCAD Bill Filed). If a person accused of discrimination files a motion to dismiss for lack of jurisdiction, the MCAD should rule on that motion first, before launching an investigation. In the meantime, the Investigating Commissioner should stay (i.e. suspend) the investigation.

The new proposed rules give the Investigating Commissioner clear authority to issue a stay.

Generally, investigation of a complaint shall not be not stayed pending the ruling on a motion. However, where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.

Draft 804 CMR 1.13 (9)(b)(3). Here is a link.

Although not as good as an automatic stay, this is a very welcome step. Well done, MCAD.

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Peter Vickery, Esq.

 

Court corrects MCAD

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

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

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

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

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

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Peter Vickery, Esq.

New harassment enforcement guidelines

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.

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Peter Vickery, Esq.

 

 

Hospital settles with flu vaccine refuseniks

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

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

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

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

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Peter Vickery, Esq.

Marijuana and small businesses

November 29, 2016:- In the general election the voters of Massachusetts approved a law to legalize, tax, and regulate marijuana. It was a convincing eight-point win for the legalization campaign: 54% to 46%. In my home town, Amherst, the margin was dramatically larger: 75% to 25%.

How the new law will affect Amherst and the surrounding communities was the focus of a forum I moderated recently for BLAAST (Business Leadership for Amherst Area Strategies) a joint program of the Amherst Area Chamber of Commerce and the Amherst Business Improvement District. To watch the video, click here. To read the related article in Business West, click here.

Given the nature of my practice, a few people have asked me about the effect of legalization  on trademarks, e.g. will marijuana sellers be able to register their trademarks?  Two facts are relevant.

The first is that there trademark owners can protect their marks via state law and federal law. Registering a mark with the state only protects it within that state, of course. For example, I have registered my mark (the flying-V logo) in Massachusetts, the state where I am admitted to practice law. If some lawyer started using the same mark in California and I sued for trademark infringement, my Massachusetts certificate of registration would not be sufficient evidence to afford me an automatic courtroom victory. To have the presumptive exclusive right to use my mark nationwide I would need to register it federally with the United States Patent & Trademark Office (USPTO).

The second important fact is that on the subject of marijuana there is now a clear tension between federal law and state law. In 1970 Congress passed the Controlled Substances Act, which prohibits the cultivation, possession, and distribution of marijuana. The Supreme Court of the United States upheld the statute in 2005, ruling that Congress had the necessary constitutional authority under the Commerce Clause. And although the People of Massachusetts have enacted the Regulation and Taxation of Marijuana Act, Congress has not repealed the Controlled Substances Act.

Nor has Congress amended the federal trademark statute, the Lanham Act. This matters because the Lanham Act only allows the registration of trademarks that are used in connection with lawful activities, which excludes the sale of marijuana (a federal crime). For so long as the Controlled Substances Act and the unamended Lanham Act remain the law of the land, it seems highly likely that the USPTO will carry on refusing to register marks used in connection with the sale of marijuana.

As a result of this federal-state tension, a few constitutional questions come to mind. For example, doesn’t the Supremacy Clause mean that the Controlled Substances Act preempts state law in this field? No. Why not? Because the statute itself expressly says so (section 903, if you’re interested). Nevertheless, couldn’t the federal government compel Massachusetts to enforce the Controlled Substances Act? No. Why not? Because of the Tenth Amendment.

So could the trademark section in the Corporations Division of the Massachusetts Secretary of the Commonwealth allow marijuana sellers to register their marks at the state level? My answer to this question is forthright and unequivocal: it depends.

On the one hand, the applicable state statute prohibits the registration of marks that consist of or comprise “immoral… or scandalous matter.” In view of the voters’ decision to legalize marijuana it seems unlikely that a judge would find that the drug qualifies as immoral or scandalous any more. Under Massachusetts trademark law, therefore, marijuana trademarks are beginning to look registrable.

On the other hand, there is a big difference between not enforcing the federal Controlled Substances Act and positively aiding and abetting its violation, a criminal offense under Section 846. This means that state trademark officials in Boston who register a mark that the applicant expressly uses in connection with the sale of marijuana could face federal criminal charges.

Would that happen? I doubt it? Could it happen? Yes. Some future U.S. District Attorney for the District of Massachusetts prosecuting Secretary of the Commonwealth William F. Galvin for issuing a certificate of trademark registration to owners of, say, BUDS-U-LIKE is not beyond the realm of possibility. At the very least, the idea could serve as the basis for a book, albeit one with very limited appeal destined for rapid remaindered status.

But, more realistically, what if an applicant uses the mark in connection with other products, not just marijuana, and makes no mention of marijuana in the state trademark application? Now that is a much more practical area of inquiry. Stay tuned.

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Peter Vickery, Esq.

Tick, tock: Justice delayed

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

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

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Attorney Peter Vickery