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EMPLOYMENT LAW |
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June 2006 - MASSACHUSETTS LAW AGAINST SEXUAL HARASSMENT DOES NOT APPLY TO VOLUNTEERS Overruling a prior decision by the intermediate appellate court, the Massachusetts Supreme Judicial Court has determined that a state statute banning sexual harassment does not apply to volunteer workers. The plaintiff in Lowery v. Klemm, 446 Mass. 572 (2006), was a volunteer worker at a "swap shop" located at the waste management facility operated by the town of Falmouth. She claimed that the defendant, a municipal employee, made repeated sexual advances toward her, and she filed suit against him under M.G.L. c. 214, § 1C, which provides that "[a] person shall have the right to be free from sexual harassment." The statute in question incorporates the definition of sexual harassment in two other statutes (M.G.L. c. 151B and c. 151C), and those statute require that the actionable conduct must occur in an employment or academic environment. Because the other statutes apply only to employers with more than six employees, however, c. 214, § 1C was enacted to ensure "that all employees are protected from sexual harassment." The SJC concluded that the statute was intended to fill a gap in the existing law applying to the employment context, and not to expand protection to volunteers, who are "uncompensated and therefore more free to leave an uncomfortable workplace environment." While declining to permit recovery under the statute, however, the Court noted that volunteer workers may still bring actions for civil rights violations and for common-law claims of sexual harassment. EMPLOYER NOT LIABLE FOR TERMINATING MENTALLY ILL EMPLOYEE WHO ENGAGED IN EGREGIOUS MISCONDUCT An employee suffering from a bipolar disorder who engaged "egregious workplace misconduct" as a result of his condition was not a "qualified handicapped person" entitled to protection under Massachusetts law, according to the Supreme Judicial Court. In Mammone v. President and Fellows of Harvard College, 446 Mass. 657 (2006), the SJC ruled that the standards announced in a previous case involving misconduct stemming from an employee's alcoholism were equally applicable to misconduct arising from other disabilities. If an employee engages in conduct which is "egregious and sufficiently inimical to the interests of his employer that it would have resulted in the termination of a non-handicapped employee," then the employee cannot establish that he or she is a "qualified handicapped person" under M.G.L. c. 151B, because the employee is incapable of performing the essential functions of the job, even with reasonable accommodation of his disability. The case arose out of the termination of the plaintiff, a staff assistant who worked at the reception desk at a Harvard University museum. The plaintiff suffered from bipolar disorder, which caused him to experience paranoia, agitation, hyperactivity and irrationality during manic phases. As a result, he engaged in loud, aggressive, and increasingly bizarre behavior during work hours in a public area of the museum. After refusing multiple requests to leave the premises, he was eventually arrested for trespassing. After he returned to the campus and made verbally abusive and threatening statements to his supervisors, he was terminated. He filed suit alleging discrimination, but the SJC rejected his claim. It held that Massachusetts law does not protect any employee - regardless of handicap - who engages in egregious misconduct, and that the plaintiff had no reasonable expectation of establishing that he was a qualified handicapped person. EMPLOYMENT DISCRIMINATION CLAIM SURVIVES DEATH OF EMPLOYEE For the first time, the Massachusetts Supreme Judicial Court has ruled that a claim of employment discrimination survives the death of the employee, and his estate may recover all damages which would otherwise have been recoverable by the employee, including punitive damages. Richard Gasior was a plumber employed by Massachusetts General Hospital. After taking an authorized medical leave of absence as a result of a heart condition, he was not allowed to return to work, and filed suit against his employer for discrimination. While the action was pending, he died as a result of a terminal illness which was unrelated to his claim. The employer moved to dismiss the action, claiming that Gasior's claims were extinguished when he died. The lower court judge reported the issue to the SJC for determination. In its decision, Gasior v. Massachusetts General Hospital, 446 Mass. 645 (2006), the Court analyzed the Massachusetts survival statute, M.G.L. c. 228, § 1, which provides that certain enumerated claims, as well as "actions which survive by the common law," survive the death of a party and may be pursued by the decedent's estate. Because an employment discrimination claim is not among those specifically listed in the statute, the Court considered whether it was one which survived under common law. Claims for breach of contract are among those which survive the death of a party under common law. Holding that an at-will employment relationship is sufficiently akin to an implied contract, whose terms are dictated in part by the antidiscrimination law, the Court concluded that the action survived Gasior's death. It went on to state that, consistent with its "broad remedial purposes ... all of the remedies provided under the antidiscrimation statute" should be available to the estate in pursuing the surviving claim. Thus, the estate was allowed to pursue not only compensatory damages, but also punitive damages. The Court concluded: "It would cause grave injustices to those plaintiffs who have embarked on the often burdensome and expensive journey to vindicate their rights if the full scope of their damages were to evaporate simply because of the fortuity of death." EMPLOYER NOT OBLIGATED TO GRANT RELIGIOUS EXEMPTION FROM GROOMING POLICY A Federal judge has reluctantly ruled that an employer was not obliged to accommodate an employee's religious practices by granting an exemption from its personal grooming policy. In Brown v. F.L. Roberts & Co., Inc., 419 F.Supp.2d 7 (D.Mass. 2006), the plaintiff, a Rastafarian, was employed as a mechanic at a Jiffy Lube facility. His employer instituted a new policy which required that all employees having contact with customers must be clean-shaven, and have neatly trimmed hair. The plaintiff declined to shave or cut his hair in accordance with his religious beliefs, and was therefore restricted to working in the lower bay of the facility, where he could not interact with or be seen by customers. Claiming that working conditions in the lower bay were significantly worse than those in the upper bay, he brought suit alleging religious discrimination. Even assuming that the modification of his job could be deemed an adverse employment action, and that the accommodation offered by the employer (restriction to the lower bay) was not reasonable, the District Court judge ruled that the sole remedy proposed by the plaintiff - i.e., that he be exempted from the grooming policy - would impose an undue hardship upon the employer. Constrained by the First Circuit Court of Appeals' recent decision in Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004) (holding that retailer was not obligated to permit religious exemption to policy prohibiting facial jewelry), the District Court ruled that the employer was entitled to control its public image through the appearance of its employees. Expressing concern that "excessive protection of an employer's 'image' predilection encourages and unfortunately (and unrealistically) homogeneous view of our richly varied nation," and reluctance to force employees to "choose between a job and a deeply held religious belief," the judge nevertheless granted summary judgment to the employer on the Federal discrimination claims. SECRET VIDEOTAPING OF WORKPLACE DID NOT VIOLATE EMPLOYEE'S PRIVACY RIGHTS The Massachusetts Supreme Judicial Court has ruled that an employer which secretly videotaped employees in an open area of the workplace did not violate its employees' privacy rights. In Nelson v. Salem State College, 446 Mass. 525 (2006), a college employee was videotaped by hidden security cameras as she changed her clothes and applied sunburn medication. Her activities took place in a rear area of the office which was partially shielded from view by partitions, and occurred only when she believed that the office was empty, although some of the incidents were during business hours when the office was open to the public. Nevertheless, the Court ruled that she had "no objectively reasonable expectation of privacy," because the office was an "open work area" and she had "no absolute guarantee" that she was alone, even when she locked the office door. Thus, the Court concluded, there was no violation of her constitutional right to privacy, and her employer was not liable. SINGLE CRUDE COMMENT INSUFFICIENT TO SHOW HOSTILE ENVIRONMENT A single incident of inappropriate behavior by a supervisor was not enough to create a hostile work environment for purposes of a sexual harassment claim, according to the First Circuit Court of Appeals. The plaintiff in Pomales v. Celulares Telefonica, Inc., 447 F.3d 79 (1st Cir. 2006), was a sales consultant for a retailer of cellular telephone equipment and services. She complained to a supervisor after another supervisor made a sexual remark, accompanied by a crude gesture. Four months later, she was fired for improperly manipulating the company's credit verification software. She filed suit alleging sexual harassment and retaliation. A Federal judge granted summary judgment to the employer, and the Court of Appeals affirmed the ruling. In rejecting the harassment claim, the Court emphasized that a plaintiff claiming a hostile work environment must demonstrate that the improper conduct was "so severe or pervasive that it altered the terms or conditions of her employment." Without ruling out the possibility that a single egregious incident of purely verbal misconduct might be sufficient to establish a valid claim, the Court noted that "successful single-incident claims typically have involved unwanted physical contact," and that the plaintiff had not demonstrated that the conduct negatively affecter her ability to work. The Court also rejected her retaliation claim, since there was no evidence that the supervisor who discharged her was aware of the plaintiff's previous complaint. Massachusetts SJC Limits Recovery Of Emotional Distress Damages In Discrimination Cases Clarifying a landmark 2004 decision allowing the Massachusetts Commission Against Discrimination to award damages for emotional distress in appropriate cases, the Supreme Judicial Court has ruled that the claimant must carry a heavy burden of proof to warrant such recovery. The plaintiff in DeRoche v. Massachusetts Commission Against Discrimination, 447 Mass. 1 (2006), was employed for over forty years by the municipal electric department in the town of Weymouth. He retired at age 65, believing that he had reached the mandatory retirement age. In fact, the age had been raised to 70, but the town did not notify him of the change. Two years later, he discovered that his retirement had been premature, and demanded reinstatement and reimbursement for lost wages and overtime pay. After he filed a complaint alleging age discrimination with the MCAD, the department offered to reinstate him, but assigned him to a more dangerous and physically demanding position. After one day, he resigned from the new job and amended his complaint to claim retaliation. The MCAD rejected his age discrimination claim based upon the confusion over the mandatory retirement age, but found in his favor on the claim for retaliation. The MCAD awarded him $210,000 in back and front pay, and another $50,000 for emotional distress. However, the Commission did not award interest on the damages, believing that public entities were exempt from paying interest on damages under the Massachusetts antidiscrimination statute, M.G.L. c. 151B. Both parties sought judicial review in the Superior Court, where a judge affirmed the award of damages, but reversed the MCAD's decision on interest. Ruling that the department was not a public entity, the judge awarded interest and attorney's fees. A second judge later concluded that there was no statutory basis for the award of attorney's fees, and entered judgment for compensatory damages and interest only. On appeal, the SJC reiterated its holding in Stonehill College v. Massachusetts Commission Against Discrimination, 441 Mass. 549 (2004), in which it had ruled that the MCAD could award damages for emotional distress, but only where the plaintiff had presented "substantial evidence" to support such an award. In DeRoche, the plaintiff had presented no evidence that he suffered any physical manifestations or sought medical help for his distress. Instead, he presented testimony from himself and his family, claiming that he was "despondent" and "depressed" about his retirement, that he was "devastated" and "angry" about the department's treatment of him thereafter, and that he "couldn't understand" why he was reassigned after his reinstatement. The Court ruled that most of this evidence was causally unrelated to the retaliation which was the basis for recovery, and that the mere fact that he "couldn't understand" his reassignment fell "far below" the standard of "substantial evidence" set by the Stonehill decision. Characterizing it as "a classic example of what the principles set forth in our Stonehill decision were intended to discourage," the Court struck the award for emotional distress damages. The Court also ruled that the lower court had erred in concluding that the department was not a public entity. However, the Court went on to conclude that the Legislature, in enacting the statute authorizing an award of prejudgment interest in discrimination cases, intended to waive the immunity of public employers with respect to such interest, and that the award of interest on the compensatory damages was appropriate. Finally, the Court ruled that the plaintiff was entitled to recover all of the attorney's fees and costs which he incurred in pursuing the claim, including those which he incurred in seeking review by the Superior Court and the subsequent appeal. |
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