Archive for the ‘Discrimination’ Category

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

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


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

Massachusetts is, like most other states, an employment “at will” state, which means that you can fire an employee for no reason or any reason, as long as it is not an illegal reason. It follows that you don’t need to tell an employee why you are firing him or, right?

Technically, yes, but this can be risky if the employee is in a protected class or otherwise has a prima facie case of employment discrimination. For example, you would not want to fire, for no reason, an employee who just came back from disability leave, FMLA leave, pregnancy leave, or who just told you that they need reasonable accommodations, etc.

If you have a valid reason, you can perhaps still fire such employees. But tread very carefully and get the advice of counsel before doing so; just because you can legally do something doesn’t mean that you should be reckless in inviting a lawsuit, even one that you might win. You should of course try to avoid lawsuits and MCAD or EEOC claims whenever possible. If you have a very valid reason for firing someone in a danger zone for a legal claim, after consultation with competent counsel, you should tell the employee why you are firing them.

Put it in writing even. Think through what will happen if you don’t tell the employee why you fired them. They then run to a plaintiff’s employment lawyer and say that they were fired right after they told their employer that they (were pregnant/became disabled/needed a religious accommodation). The plaintiff’s lawyer will request the personnel file, which will contain no reason for the termination.

Bingo, the employee has a prima facie case for wrongful discrimination. It’s now your obligation to articulate a legitimate, nondiscriminatory reasons for the termination. You see, even though you had no duty to tell the employee why they were being terminated, you have a legal burden of production in discrimination cases to provide the non-discriminatory reason. And what about the fact that you had a legitimate, non-discriminatory reason in the first place, but failed to mention it. You’re just making that up, the plaintiff’s lawyer will say. If you had a legitimate reason for firing, you would have said so at termination.

Wouldn’t you rather defend the case where you had the reason for the termination in writing? I would. Moreover, if you have a detailed notice to the employee about how he (stole company property/lost a key account/harassed other employees), the plaintiff’s lawyer would find that in the personnel file and may not sue in the first place.

If you are considering firing an employee who has a potential claims (and there are many), don’t go it alone. If you need help call me at 617.338.7000. As always, the above is general information and not legal advice.


By Adam P. Whitney

I must confess that the title to this post is in very poor taste. You see, this is not about an employee who made an obscene gesture; rather, it is about an employee who injured his finger working for his employer, and ultimately had it amputated. The employer rewarded the nine-fingered employee with a pink slip. The employer would not allow the employee back when he was able to return to work a few months later.

The employee sued at the Massachusetts Commission Against Discrimination, and won $50,000 in emotional distress damages, plus substantial interest (I believe that the interest more than doubled the award). The employer, represented by competent counsel, may have paid that much or more in legal fees. Because of procedural and other reasons, the employee did not recover lost wages at the MCAD; he had earlier won $67,500 in lost wages in a related Superior Court case.

Total damages chargeable to the employer are estimated to be around $170,000, plus substantial legal fees. The case is reported as MCAD v. O.K. Baker Supply Co., Lawyers Weekly No. 22-016-12. If you have trouble finding the decision, let me know and I’ll e-mail it to you. The employer was also ordered to cease and desist discriminating from any future discrimination based on disability and to conduct a training session for all of its employees.

There are two important lessons from this case. One, is that an injured worker eligible for worker’s compensation will be considered disabled for purposes of the state anti-discrimination law. This means that you must accommodate such employee, and cannot discriminate against him.

The second point is that a leave of absence can be a reasonable accommodation. How long is reasonable? I don’t know. No one knows, until the MCAD, EEOC, judge or jury tells you if you were acting reasonably or not. That may not sound fair, but that is the law. There are certain parameters that you can consider, such as the impact on your business of not filling the position with someone else. Also, employees generally are not entitled to take unlimited leave for an indefinite period of time. At some point, they must give you a time frame for return.

But each case turns on its own facts and issues, and this is a very difficult area of the law. If you have an injured or otherwise disabled employee (leave could be reasonable for any disabled employee), even one that has exceeded 12 weeks of FMLA leave, do not fire them until you fully vet the issue with competent legal counsel. Call me at 617.338.7000 if you need help with this.

And for the record, an employee who flips you the bird can likely be terminated for the action. That is, unless it’s an involuntary reflex caused by a nerve disorder, an excuse I tried to use in high school to no avail.

By Adam P. Whitney

It’s been widely reported that an employer in Florida fired fourteen otherwise fine employees for wearing the color orange. When I explain to employers that they can technically fire employees at will for any reason, including the color of clothes the employee was wearing that day (yes, I’ve really used that example many times!), I always meant it as an absurd example of the breadth of the employee-at-will standard. Apparently, this firm has a lawyer like me who likes to use absurd examples, and took it way too literally. Bad idea.

Employers really can fire employees for the color of their clothes (except in this situation, which I will get to). But what employer in their right mind would do so? Herein lies the problem. If your company is charged with discrimination, all the terminated employee has to do is articulate a “prima facie” case, which is an easy standard. If the employee is in any protected class, and then the employer replaces the terminated employee with someone not in a protected class, the prima facie case is established. Then, the employer must articulate a legitimate, non-discriminatory reason for the termination. A show of hands for those employers and their lawyers who would like to go in front of a judge and jury and explain why firing someone for wearing orange was legitimate.

In this case, the employer was a law firm. Yes, law firms can do really stupid things with respect to employment issues. It has been reported that the law firm believed that the orange suits were some sort of protest, even though the employees denied this. The employees’ explanation was that they went out together for a drink on payday. One would think that such camaraderie would be encouraged. Moreover, if the employees actually were engaged in a protest, their actions would likely have been protected as concerted activity under the National Labor Relations Act. Some courts have even held that the employer violates the NLRA when the employer fires an employee under the mistaken belief that the employee has engaged in protected concerted action, but actually has not.

There could be other situations where it would be unlawful to fire an employee for the color of their clothes. Aside from the legal implications, callously firing fourteen employees for wearing orange was a shitty thing to do. Dumb, too. Now the firm is dealing with a lot of bad press. Fired Employee Meloney McLeod, has been widely quoted as saying that she is a single mom with four kids, and “I’m out of a job just because I wore orange today.” She’s become the poster-child for how heinous the actions of the firm were.

How would you like to be an employee of that firm now? Would you be proud to work there? Would you give your all for the company, or would you be polishing your résumé and looking for the first opportunity to leave? Worse yet, how would you feel if you were a client of that firm? Would you be proud to say that they were your lawyers? Would you want them representing you in Court, knowing that jurors can and will Google the lawyers on trial? In short, this was a really dumb move that will come back to bite the employer.

If you have any questions about firing employees for wearing mauve, mustard, teal or other non-standard colors, give me a call at 617.338.7000.

By Adam P. Whitney

I promise not all of these will be about sex, but I like to get people’s attention, so I’m sticking with the salacious stories again this week. Most of us in the Boston area have heard about the local school teacher who was discovered to have allegedly been a gay porn actor on the side. This doesn’t make him a bad person or even a bad teacher, but his background did bring negative publicity to his employer. Google “Malden teacher, porn actor” and you’ll get a lot of hits.

The takeaway here is that, in the internet age, anything that employees do can be easily discovered by anyone, including the media (the local news media uncovered this story). Employers have to be mindful of this, and have to remind their employees to be mindful of this. Careful employers search employment candidates on the internet before hiring, and more extensive background checks can also be done. While doing that can, theoretically, create legal exposure, many employers are willing to take that risk. Most employers want to just run their business and avoid controversy. That doesn’t always mean that you can automatically fire or refuse to hire an employee based on some information found in the internet. Take the above example, if the teacher ends up being fired, he could potentially have claims for discrimination, because sexual orientation is a protected class in Massachusetts (I’m not saying he would win, just that he has a potential claim). When you have any question, check with your employment attorney before making a hiring or firing decisions based on an internet or background check, or call me at 617.338.7000.