Archive for the ‘Discrimination’ Category

You’re Damned if You Fire an Employee Who Takes FMLA Leave, Even if She Does Not Return After 12 Weeks

Posted: May 16, 2016 in Disability Liability, Discrimination, Hiring and Firing, Lawsuits
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(I’ve taken about 11 months off from blogging. I’m back, baby.).

Most employers (of over 50 employees) know full well that they have to provide up to 12 weeks of leave under the FMLA and that you generally cannot terminate an employee who is on leave. But don’t assume that means you can terminate an employee who is not medically cleared to come back when her FMLA leave is exhausted. In some cases, doing so will lead to a large verdict in favor of the former employee, as was demonstrated by a recent case from the Massachusetts Supreme Judicial Court, Esler v. Sylvia-Reardon, 473 Mass. 775 (2016).

The following is from the SJC’s rendition of the possible facts most favorable to Ms. Esler, and I do not represent them as true (the hospital may have presented different alleged facts). Esler worked as a registered nurse in the acute hemodialysis department of MGH. She went out on FMLA leave in December 2008, although there was some hassle from her supervisor about her paperwork. Her doctor suggested that she engage in light exercise and pleasurable activities. So she went to New York City. Her supervisor accused her of “vacationing,” and sounded displeased. When Esler then said that she broke her wrist while ice skating, her supervisor allegedly said “I need to have you back here next week or I can’t hold your job.”

In spite of her supervisor’s alleged statements, to its credit, the hospital extended her FMLA leave past her statutory 12 weeks of leave. However, the hospital said that it could not accommodate her temporary lifting restriction (no lifting more than five pounds in left hand) and need to wear a splint. Esler was expected to return on February 15, 2009. She spoke to her supervisor on January 28th and reported that she was making good progress. Although there was no equipment that required lifting more than five pounds, Esler’s supervisor canceled an occupational health assessment that was part of the return to work process and put Esler on inactive status. The hospital stated that her job could not be accommodated with the restrictions. However, the hospital hired a replacement with less training, who could not have fully performed the job until at least April 6th, a date that was after the date that Esler would have had no medical restrictions.

Esler sued for retaliation, which is prohibited under the FMLA (and most other employment statutes). A jury returned a verdict in her favor of back wages consisting of $567,500 and front pay of $672,686. The judge overturned the front pay award, and this decision was upheld on appeal. The trial judge also overturned the backpay award, but this was reinstated on appeal (subject to further proceedings at the trial court). Because the case was filed in 2010, if the backpay award sticks, interest will add a staggering 75% and counting (12% per annum in Massachusetts), which I calculate to be $425,625. Liquidated damages equal to the back pay could also be awarded. With an award of attorneys’ fees and costs surely on the horizon, the total verdict could approach or exceed two million dollars, even with the front pay being overturned. Not to mention the Defendants’ own legal fees, which are surely sizable.

Takeaways

There are a few lessons for employers. First, if an employee takes FMLA leave, don’t assume that her FMLA rights end after 12 weeks. In fact, the FMLA provides “proscriptive provisions” to protect employees from retaliation after exercising substantive rights.

Second, an employer should take a realistic look at accommodations an employee needs. Although it appears that Esler did not file a disability discrimination claim, she could have. Employers should always consider whether continued leave or other accommodations are reasonable for an employee who has been out on FMLA leave. You should also be careful to not use the FMLA leave in any future employment decision, as that could be deemed retaliation.

Third, train your supervisors to not make comments that are hostile to protected FMLA leave.

Fourth, for God’s sake call your employment lawyer before firing an employee who went out on FMLA leave! A short phone call might save you from a $2 million mistake. If the facts were as Esler alleged, the decision to not accommodate her for a short time was foolhardy and reckless.

As always, the above is not legal advice, just general information.

By Adam P. Whitney, Esq. 617.338.7000

You’re Damned if You Don’t Prepare for the New Massachusetts Parental Leave Law

Posted: January 14, 2015 in Discrimination, Personnel Policy Fun
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If you are a Massachusetts employer with six or more employees, effective April 2015 you must provide up to eight weeks of unpaid leave to a full time man or woman for the birth or adoption or court ordered placement of a child (previously, the law applied only to women).  So sharpen your pencils and get ready for yet another change to your employee handbook. There are also new procedures that an employer must follow if the employer wishes to limit the leave to eight weeks and retain the right to terminate the employee who does not return in a timely fashion. Larger employers will need to coordinate with the FMLA.  As an aside, you’ll also have to consider if pregnant employee has a pregnancy-related disability that may require an accommodation.

Governor Patrick signed amendments to the Massachusetts Maternity Leave Act on his way out the door on January 7, 2015, which made these changes to the law.  In addition to including men, the amended law has provisions that provide broad protections for employees, and potential headaches for employers.  Employees will also be protected under the employment discrimination statute, Chapter 151B, which gives the parental leave statute teeth.

Employers will need to change their policies and post notices about the new law. Failure to follow its provision could result in significant liability.  As always, this information is general and not legal advice.

By Adam P. Whitney, Esq.

You’re Damned if You Automatically Fire an Employee Who Has Cancer

Posted: September 12, 2014 in Disability Liability, Discrimination, Hiring and Firing
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I greatly admire employees who are able to work while battling a life threatening disease like cancer. Employers also face difficulties when they learn that one of their employees has cancer, albeit not as great as the employee’s struggles. If you are an employer of any size, sooner or later you will face these issues. The private employers whom I have counseled are, of course, very sympathetic. Most will bend over backwards to help their employee, often to the detriment of everyday operations.

Employers often wonder what they can and what they should do in these situations. Is the employee qualified to work? Do we have to give the employee time off? How much? Does it have to be paid? What do we do if the employee’s performance is slipping? Do we have to allow work from home? Do we have a right to obtain medical information? Can we replace the employee temporarily? Permanently? What if the employee does not want to come back to work? Do we have to provide severance? Do we have to pay the employee’s medical insurance?

The answers to all of these questions is beyond the scope of this article, and will vary according to the law of your jurisdiction and, as to federal law, the number of employees you have. What you should not do is make any negative assumptions about a person with cancer. That’s what this employer appeared to do: http://www.huffingtonpost.com/2014/09/11/woman-laid-off-cancer_n_5806194.html. It now appears that the employer is facing a public relations backlash, and potentially serious legal ramifications.

Under Massachusetts law, if you have six or more employees, you are subject to the provisions of state law comparable to the Americans with Disabilities Act (which currently applies when you have 15 or more employees). Generally speaking, under both laws, you cannot simply terminate someone because they are disabled or facing a disabling disease, or because you think that they are disabled. There may be protections under other laws as well.

If these laws apply, you have an obligation to consider reasonable accommodations, including a leave of absence. That does not necessarily mean that you have to provide a leave of absence, especially a lengthy or open-ended one. Each situation is different, and must be separately evaluated. What you also should not do is to automatically terminate an employee after 12 weeks of FMLA leave, which some employers have learned the hard way. You may also have to consider work at home, and intermittent time off for treatment, as well as other accommodations.

The above being said, you still have the right to operate your business. You owe it to your business and your other employees to set clear standards of conduct and performance and to hold employees accountable. Cancer does not discriminate. It strikes the best employees, and it strikes employees who are not the best. Some employees will want to come to work everyday, if possible. Others will, understandably, want to focus their energies on their treatment and their family. As an employer, you will have to carefully consider how to strike a balance between accommodating the employee, and not harming your business. I wish I could tell you that this was easy, but it’s not. But if you face it head on like other business challenges and seek sound advice, you can get through it.

By Adam P. Whitney

You’re Damned if You Don’t Settle Meritorious Discrimination Cases

Posted: January 3, 2014 in Discrimination, Lawsuits
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You defend a discrimination claim aggressively all the way to trial. The plaintiff wins a technical victory and gets only a small award of damages. So small, that it seems like a win for you. You can live with that, right? But now here comes the employee’s attorney’s petition for fees and costs. If you think that the small award of damages would be a significant factor to determine the award for the attorney’s fees and costs, you would be wrong, at least in Massachusetts. A Massachusetts employer found that out recently, when an appeals court upheld an award of attorney’s fees and costs to the employee of over $100,000, even though the jury awarded the employee only $7,650 in damages. The case is reported as Diaz v. Jiten Hotel Management, Inc., No. 13-1444 (1st Cir. 2013) (this was the third trip to the appeals court for the case).

 

In fact, the attorneys’ fees and costs could have been much higher. The trial court reduced the amount considerably because the employee had pursued other claims that had no merit and were not successful. The trial court originally reduced the attorney’s fees award because the employee rejected a $75,000 settlement, which would have resulted in the employee’s attorney obtaining a $25,000 contingency fee. However, the appeals court reversed that ruling and stated that it was error to consider the employee’s refusal to settle.

 

On the most recent trip the appeals court, the court rejected the employer’s contention that the award of fees and costs of over $100,000 was so disproportional to the $7,650 damages award as to be an abuse of discretion. The appeals court rejected this contention and reasoned that, under Massachusetts law, fee shifting statutes are “designed to encourage attorneys to take these types of cases and are based on full compensation for the work performed.” It went on to note that these statutes are designed to encourage suits that will not result in a big fee award because the vindicate important rights.

 

Thus, the message in Massachusetts is clear. If an employee wins a discrimination suit against you, you could be on the hook for a large award of attorney’s fees and costs, even if the employee wins a very modest award, and even if the employee was unreasonable in rejecting your settlement demand.

 

What to do? There is no magic bullet. Consider an early settlement of a claim that may have some merit. Keep in mind that even if it is a claim that you may not subjectively believe in, that does not mean the case does not have settlement value. Cases that turn heavily on questions of fact can be decided against you, regardless of what the true facts may be. As Denzel Washington’s rogue cop character said in the movie Training Day, “it’s not what you know, it’s what you can prove.”

 

In this case, the employer did try to settle, and actually made a very generous (considering the jury award) offer of $75,000. Who knows why the employee rejected the offer. Ironically, the employee would have been much better of with the settlement (assuming a typical contingency fee agreement), but the employee’s attorney presumably ended up better off with the award. Mediation should be strongly considered in these situations. There is no shame in putting a wedge between the employee and her attorney at mediation if it results in a fair settlement to the employee. There may be other options to consider, including an Offer of Judgment. But full-fledged defense of the claim can backfire, because you spend more fees on your own counsel, but also run up the fees and costs of the employee’s attorney. Have a candid discussion with your attorney about how to defend any claim against your company, including the risks of an adverse judgment and an award of attorney’s fees and costs.

 

By Adam P. Whitney, 617.338.7000

 

 

You’re Damned If You Are Sexually Obsessed With an Employee

Posted: August 15, 2013 in Discrimination, Hiring and Firing, Lawsuits, Sexual Harassment, Uncategorized
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I written before about how an employer can be damned when supervisors have sex with employees: https://damnedif.com/category/sexual-harassment/.

 

But being obsessed and pursuing a relationship can be just as damning. Take the recently-reported case at the Massachusetts Commission Against Discrimination (“MCAD”) MCAD v. Illumina Media. The employer is on the hook (subject to potential appeals) for a sizable award because, the MCAD found, one of the company’s owners made repeated sexual advances to a female employee, even though she repeatedly rejected them. This was the case even though, the MCAD found, the female employee actively participated in a sexually charged workplace atmosphere, where sexual innuendo and horseplay were commonplace and people looked at pornographic images on the internet.

 

The case reads like a made-for-TV movie of the week. The female employee started at Illumina as a 24 year old. According the case report, the company owner was at first friendly, but soon started to make comments about his sexual prowess with much younger women, and then suggested that he and the victim were “on a date.” The employee thought that these comments were strange and inappropriate, and would often reply that “it’s not happening” or “it will never happen.” Undaunted, the owner continued his pursuit, according to the report, and escalated the behaviors by explicitly asking for sex on a number of occasions, which the employee refused. The actions went downhill from there, according to the report. You can find a link to the decision here: http://www.mass.gov/mcad/documents/MCAD%20&%20Brooke%20Anido%20vs%20Illumina%20Media%20LLC%20dba%20Illumina%20Records%20&%20Ronald%20Bellanti.pdf

 

It does not appear that Illumina strongly or effectively contested that the owner aggressively pursued a sexual relationship with the employee. The MCAD Hearing Officer found Illumina and the owner liable for quid quo pro sexual harassment (generally thought of as conditioning a job or employee benefits on succumbing to sexual advances) as well as for constructive discharge. The MCAD reasoned that by treating the employee differently after she rejected the owner’s sexual harassment, Illumina could be held liable for quid quo pro sexual harassment. The decision was upheld after an appeal to the Full Commission of the MCAD.

 

Illumina and the owner were ordered to pay $75,000 in emotional distress damages and nearly $10,000 in lost wages. These two figures are subject to 12% interest from the date of filing the Complaint, which was a staggering six years prior to the decision of the Full Commission. Thus, interest will run at about 71%, adding $60,000 to this figure. The defendants are also liable for the employee’s legal fees and costs of over $62,000. Assuming that Illumina spent a similar amount on legal fees, the total out of pocket for the company appears to be at least $270,000, barring any further appeal.

 

While the facts here appear to be fairly egregious, the case should serve as a warning to all employers. Owners and managers, as human beings, will inevitably be attracted to subordinate employees. If you are a company of any significant size, there is no doubt that there are such attractions occurring right now at your business. You need to train all of your managers on how to deal with these issues (a subject for another post), or you could be on the hook for $270,000 or much, much more. Mangers and owners can easily fall into the trap of thinking that a loose environment means that anything goes in the workplace. But this case proves that such thinking can lead to big trouble.

 

By Adam P. Whitney

 

Off topic – Enforcing a Subpoena at the MCAD

Posted: March 22, 2013 in Discrimination, Lawsuits
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Enforcing a Subpoena at the Massachusetts Commission Against Discrimination (MCAD)

1. If a duly served witness fails to appear, ask the Hearing Officer for an Order appointing you (the attorney) as an agent of the Commission for the limited purpose of enforcing the subpoena. The order should state that the witness failed to appear and is in contempt of the Commission.

2. Draft a Petition to the Superior Court (Suffolk Superior works for the Boston office of the Commission). The Petition should attach the following documents:

a. The original Order from the Hearing Officer.
b. The Subpoena with the Return of Service.
c. A proposed order for the Judge to sign to compel the witness to appear at a certain date or time, and/or to call the counsel to arrange a time to appear and testify.

3. The Petition should include the following legal citations:

a. GL. C. 151B, §3(7) (the Commission’s subpoena power. See Generally, MCAD v. Liberty Mutual Ins. Co., 371 Mass. 186 (1972); Univ. Hosp., Inc. v. MCAD, 396 Mass. 533 (1986).
b. G.L. c. 233, §10 (the Superior Court’s power to enforce an agency subpoena.

4. The Petition should be captioned the same as the Commission’s caption, but excluding the docket number. The Superior Court will use its own docket no. The top of the document and the proposed order should have the following: “Commonwealth of Massachusetts, Suffolk Superior Court.”

5. File the Petition with the docket clerk. You may have to explain that this is not a normal civil action, and that you are only seeking to enforce an agency subpoena. Explain that as an agent of the Commission, there is no filing fee. You will have to fill out a simple cover civil cover sheet. Ask to be heard immediately, as there is an ongoing public hearing at the Commission.

6. After the docket clerks enter the matter in the computer system, they will give you the original petition and send you to a specific courtroom. If the judge grants your application, she will either sign your proposed order or draft the Court’s own order. Return to the docket clerk’s office to make a copy of the order and to return the original Petition for filing and docketing.

7. Serve a copy of the Order and Petition on the recalcitrant witness along with a copy of the Petition. You may want to serve a cover letter explaining what has occurred.

8. If the witness still fails to appear, you can request that the Court declare the witness be placed in contempt of court.

By Adam P. Whitney, Esq.

You’re Damned if You or Your Managers Have Sex with Your Employees.

Posted: February 22, 2013 in Discrimination, Lawsuits, Sexual Harassment
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At some point in time, every employer of a certain size will have to deal with employees who begin a romantic relationship.  In a perfect world, that would be none of an employer’s business, and would not be a basis for a lawsuit.  In the real world, a host of bad things can happen, especially when the relationship is between a supervisor and a subordinate.

The most obvious problem is that a subordinate may feel pressured to go on a date or enter a relationship.  He or she may feel that their job is on the line if they don’t.  That’s called quid quo pro (Latin for “this for that) sexual harassment.  It also translates to “big ass lawsuit.”  Especially in Massachusetts, which makes your company strictly liable for the actions of a supervisor.

Even if the relationship is completely consensual, you are still not in the clear.  First, the relationship may end badly, and the subordinate may engage in revisionist history and claim that he or she was pressured into the relationship.  They may even file suit to get back at the supervisor, especially if he’s an owner of the company.  Believe me, this happens.

Second, the other subordinates in the office will resent what they see is favoritism for sleeping with the boss.  They get the subtle message that to get ahead, you have to put out.  This can translate into a form of sexual harassment, for which your company will also be liable. 

What can you do?, you ask.  You can’t stop human nature.  I agree that you are never going to completely stop workplace relationships.  Nor should you try.  I’ve known plenty of people who met their spouses at work.  But you can and should protect yourselves.  You should have certain polices in place, especially for your supervisors.  You should also consider a Consensual Relationship Agreement (a/k/a a “Love Contract”). 

If your company wants to proactively address these issues, or if you are already faced with an employment relationship in your office, give me a call.  As always, this blog is information and not legal advice.

By Adam P. Whitney, 617-338-7000.

You’re Damned if You Turn a Blind Eye to a Disabled Employee’s Ability to Perform the Essential Functions of the Job.

Posted: January 9, 2013 in Disability Liability, Discrimination, Hiring and Firing, Lawsuits
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The case of Kogut v. The Coca-Cola Company, Massachusetts Commission Against Discrimination, No. 08-SEM-01239 (2012) demonstrates that even the biggest of companies, with professional H.R. (and the best lawyers defending them at trial) can make costly mistakes with respect to disability discrimination in Massachusetts.  This is undoubtedly the most complex area of law and it is easy to make a mistake.  For one thing, you will be held to a reasonableness standard, which means that you can act completely in good faith, but someone else gets to determine if you acted reasonably.

In this case, the complainant worked in the Coca-Cola plant in Northampton, Massachusetts through a temp. agency.  The employee was blind in one eye, but that did not prevent him from performing his job duties.  When a permanent position came up, Coca-Cola gave the employee a conditional offer of employment, subject to a medical examination.

When Coca-Cola learned of his visual disability, it revoked the conditional offer of employment.  It’s reasoning was that driving a forklift was part of the permanent position, and it had a legitimate safety concern with a visually disabled person driving a forklift.

Not so fast, said the MCAD.  It noted that for the particular job at issue, a Level 3 Operator, there was no reference to forklift use or operation in the “Physical Demands Analysis” or Job Descriptions, although the Level 1 Operator position did list “operate lift trick” among the essential job functions.  There appeared to be some confusion from some Coca-Cola managers as to which job position the Complainant applied for, but the MCAD clearly found that he applied for a Level 3 position, which did not require forklift operation.

The MCAD further found that, “even if forklift driving would have been required of the Complainant on occasion, . . . Respondent could have determined that, given the number of other available and certified drivers on Complainant’s shift, he could be excused from driving a forklift altogether as a reasonable accommodation.”

It appears that Coca-Cola’s mistake was that, according to the MCAD ruling, “its HR and medical safety consultants never met with Complainant or his direct supervisors at the plant to identify and evaluate the actual position for which he was being hired or to discuss possible accommodations, if required.”  Coca-Cola probably could have saved itself with the “interactive process” that it was required to do.  Had it done so, it would surely have discovered its errors, or alternatively it would have a record that the complainant could not have performed the essential job duties.  But simply relying on job descriptions did not go far enough to either meet its obligations or to protect itself from liability.

If you have a job candidate with a disability, carefully consider your legal obligations.  If you need help figuring this out, call me at 617.338-7000

By Adam P. Whitney

You’re Damned if You Fall Into the Retaliation Trap

Posted: December 5, 2012 in Discrimination, Hiring and Firing, Lawsuits
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Jujitsu (actually spelled “jujutsu”) is a martial art where one uses the opponent’s force against himself rather than confronting it with one’s own force.  This is what employment lawyers are doing when they set you up for the Retaliation Trap.

The Retaliation Trap is simple in concept, but usually takes considerable skill and knowledge to set effectively.  It works best on arrogant, unwary employers with an intemperate owner or supervisor, especially if not represented by competent legal counsel.  It works like this.  An employee is having some trouble at work.  The employee senses that his or her days are numbered.  The employer is papering the file and gearing up for termination.  The employee visits a lawyer to see what can be done.

There is almost no direct force to stop a termination.  Employers always have the power to fire an employee, even where they don’t have a right.  That power, however, can be reversed to cause a self-inflicted wound.  The clever employee’s lawyer in the above situation will look for some colorable legal claim that the employee may have, and have the employee file some sort of complaint or charge.  The Retaliation Trap is set.  If the employer springs the trap by firing the employee, the employee may have a good claim for retaliation.  Believe it or not, this is true even if the original complaint was without merit. At least in Massachusetts, as long as the employee had a good faith belief in the complaint or charge, you are liable for full damages if you retaliate against the employee who filed the complaint or charge.

A recent appeals court decision, with a huge verdict (even after an 80% remittitur for the emotional distress damages), shows a significant self-inflicted wound when springing the Retaliation Trap. The case is reported as Trainor v. HEI Hospitality, LLC, 669 F.3d 19 (1st Cir. 2012).  According to the reported facts, the plaintiff and his lawyer were negotiating ongoing employment terms with the defendant, including whether the plaintiff would be relocated to an inconvenient location.  When the negotiations began to deteriorate, which could have resulted in either the end of the plaintiff’s employment or other unfavorable terms, the plaintiff’s lawyer filed a Charge of Discrimination based on age with the Massachusetts Commission Against Discrimination (“MCAD”).  He promptly forwarded a copy to the apparently hotheaded executive of the defendant (good move, he put them on notice).  The trap was set.

The executive fired the plaintiff three hours after receiving the Charge of Discrimination.  Not surprisingly, the jury found for the plaintiff on the retaliation claim, even though it rejected the age discrimination claim.  Other than cutting down some of the damages (the jury awarded $1,000,000 in emotional distress damages, the Court cut it down to $200,000, or a re-trial), the Appeals Court affirmed the verdict.  The jury and the Court also awarded $500,000 in back pay, $750,000 in front pay, and $550,000 in attorneys’ fees and costs.  The first three figures were doubled upon a finding of an intentional violation of the statute.  The rash firing appears to have cost the employer about $4 million, not to mention its own attorneys’ fees and costs.

In my estimation, jurors will punish you if they think you abused your power and retaliated against someone who made a complaint, even where the underlying claim cannot be proven.  The $1,000,000 emotional distress damages award could be seen as de facto punitive damages.  The Trainor makes it clear that where there are different versions of the facts, it is wholly the jury’s prerogative to decide for one side or the other.  This unfortunately means that every time you fire someone who has complained of discrimination, or some other claim (there are many different types of statutes that punish retaliation), you run the risk that a jury will think you retaliated.  Even if you didn’t and you planned to fire the employee anyway.

If you need help avoiding the Retaliation Trap, call me at 617.338.7000.

By Adam P. Whitney

 

You’re Damned if You Aid and Abet Discrimination or Interfere with an Employees’ Rights to Be Free of Illegal Discrimination

Posted: November 20, 2012 in Discrimination, Hiring and Firing, Lawsuits
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Massachusetts has broad statutory protection against discrimination in employment, much of which can be found in G.L. Chapter 151B.  The Massachusetts Supreme Judicial Court recently ruled on two little known provisions of the statute, the “aiding and abetting” provision, found in Section 4(5) and the interference provision, found in section 4(4A).  The most important thing about these provisions is that a person or a business can be liable for discrimination under Chapter 151B even if they are not the employer of the claimant.  The case is reported as Lopez v. Commonwealth, 463 Mass. 696 (2012).  Although the Lopez case concerns the Human Resources Division’s testing for public jobs, the reasoning of the case will apply equally in the private sector.

Discrimination for Interference With Employment Rights:

Under the words of the statute, it is unlawful for “any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted [by the statute].”  The SJC ruled in Lopez that under Section 4(4A), a person “need not be an employer to be subject to an interference claim.  Id. at 706.  Pursuant to this paragraph, in pertinent part, it is unlawful for any person to “interfere with another person in the exercise or enjoyment of any right granted or protected by [G.L. c. 151B].”  Id. 

Although its precise application is hard to define, the message is clear: if you act in a discriminatory fashion you and your company may be liable for the full amount of damages under the statute.  For example, if a salesperson called on your company from ABC Sales, you could be found liable if the complained to ABC Sales that you did not care for this salesperson because of his (race, religion, sexual orientation, etc.) if ABC Sales then took negative action against the salesperson.

In fact, you could be liable even if you did not have a discriminatory motive, so long as your actions were intentional.  Take another example, let’s say that your company hires temporary employees from BCD Temps.  If you required BCD Temps to provide you only with new college graduates, that would likely have a disparate impact on older workers.  Under the reasoning of the SJC in Lopez, you could be held liable to older workers who were not given the job with BCD Temps because of your requirements.

There can also be liability for creating a hostile work environment, even to your non-employees.  You cannot turn a blind eye to egregious discrimination or sexual harassment that is happening in your premises or a worksite you control.

Liability for Aiding and Abetting.

Chapter 151B, Section 4(5) provides in pertinent part that it is unlawful “for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any [forbidding discriminatory act.”.  In order to prevail on an aiding and abetting claim under Section 4(5), the SJC ruled that a claimant “must show that the defendant (1) committed ‘a wholly individual and distinct wrong … separate and distinct from the claim in main’; (2) ‘that the aider or abetter shared an intent to discriminate not unlike that of the alleged principal offender’; and (3) that ‘the aider or abetter knew of his or her supporting role in an enterprise designed to deprive [the claimant] of a right guaranteed him or her under [G.L. c. 151B].’”  Lopez, at 713, quoting Harmon v. Malden Hosp., 19 Mass. Discrimination L. Rep. 157, 158 (1997).

The biggest difference in aiding and abetting liability is the requirement of specific intent.  It is hard to imagine a case where a claimant could show aiding and abetting, if the claimant could not also show interference with its lower standard.  In the examples set forth above, a claimant would likely be able to prove aiding and abetting if he could show the intent to discriminate.  It remains to be seen whether there are applications of Section 4(5) that do not fit under section 4(4A).

In summary, you have to at least be aware of these types of issues in your business dealings.  While few modern employers intentionally discriminate, you now have to be cautious that your actions will unintentionally discriminate against non-employees.  These are serious matters.  When successful, discrimination awards can and often do range in the hundreds of thousands of dollars, and higher.  If you have any questions on how your business dealings could be putting you at risk, call me at 617.338.7000.

By Adam P. Whitney

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