Massachusetts Governor Signs Pregnant Workers Fairness Act Into Law

As expected, on July 27, 2017, Massachusetts Governor Charlie Baker signed into law the Pregnant Workers Fairness Act, which expands protections for pregnant employees in Massachusetts. The new protections, which are being inserted into General Laws Chapter 151B––the Massachusetts anti-discrimination statute––prohibit employers from discriminating against employees on the basis of “pregnancy or a condition related to pregnancy, including but not limited to, the need to express breast milk for a nursing child.”

Under the new law, which takes effect April 1, 2018 (coincidentally, nine months from now), Massachusetts employers are prohibited from denying reasonable accommodation to a pregnant employee who requests such an accommodation, unless the employer can demonstrate that such an accommodation would impose an undue hardship on its business. Employers are likewise prohibited from terminating or refusing to hire someone because of their pregnancy.

For purposes of the new law, “reasonable accommodation” may include, but is not limited to: more frequent or longer breaks, time off to recover from childbirth, acquisition or modification of equipment, seating, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, break time and non-bathroom space for expressing breast milk, assistance with manual labor, or a modified work schedule.

The term “undue hardship” means an action requiring significant difficulty or expense. It is the employer’s burden to prove that a requested accommodation constitutes an undue hardship. Factors to be considered include (i) the nature and cost of the requested accommodation, (ii) the employer’s overall financial resources, (iii) the overall size of the business, and (iv) the impact of the requested accommodation on the employer’s business.

As under the federal Americans With Disabilities Act, the employer and employee are required to engage in a timely, good faith interactive dialogue to determine an effective reasonable accommodation that will allow the employee to perform the essential functions her job. Employers are permitted to request documentation from a healthcare provider to support the employee’s request for accommodation; however, employees are not required to provide such documentation for the following accommodations: (i) more frequent restroom, food, or water breaks, (ii) seating, and (iii) limits on lifting more than 20 pounds.

Employers are required to provide written notice to employees of their right to be free from pregnancy discrimination, either in an employee handbook or by some other means. This include providing such information to any employee who notifies the employer of a pregnancy or a condition related to pregnancy within 10 days of such notification. While the new law does not become effective for nine months, employers should prepare to amend their employee handbooks and other policies to incorporate these new protections.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.


Massachusetts Salutes Veterans With New Paid Leave Law

On July 14, 2016, Massachusetts Governor Charlie Baker signed into law An Act Relative to Housing, Operations, Military Service, and Enrichment (“the HOME Act”) which, among other things, requires employers with 50 or more employees to provide paid leave for eligible military veterans to participate in community activities on Veterans Day. With Veterans Day (November 11) right around the corner, Massachusetts employers should ensure that their handbooks, policies, and practices are in compliance with the new leave requirements.

Prior to July 14, 2016, Massachusetts employers of all sizes were required to provide leave, paid or unpaid at the employer’s discretion, to military veterans to participate in Veterans Day or Memorial Day exercises, parades, or services. Now, under the HOME Act, employers with 50 or more employees must provide paid leave to veterans consisting of “sufficient time to participate in” Veterans Day events held in the veteran’s community of residence. Smaller employers (with fewer than 50 employees) must also provide leave for Veterans Day activities, but paying for the leave remains discretionary.

Employers are not required to provide such leave where a veteran provides services that “are essential and critical to the public health or safety and determined to be essential to the safety and security of each such employer or property thereof.”

The HOME Act also amended Mass. Gen Laws ch. 151B(4), the Massachusetts Fair Employment Practices Act, to add veteran status as a protected category, making it unlawful for Massachusetts employers to discriminate against individuals based on veteran status in hiring, firing, or compensation decisions.

Please do not hesitate to contact the employment attorneys at Beck Reed Riden for assistance in complying with the HOME Act.

Massachusetts Governor Signs New Pay Equity Bill Into Law

On August 1, 2016, Massachusetts Governor Charlie Baker signed into law a bill replacing the state’s existing Equal Pay Act (M.G.L. c. 149, § 105A), which was first enacted in 1945. The new Act clarifies the concept of “comparable work” and expressly prohibits employer conduct that – intentionally or unintentionally – has historically contributed to the wage gap between male and female employees.

The new Act prohibits all employers from discriminating “on the basis of gender in the payment of wages, including benefits or other compensation, or pay[ing] a person a salary or wage rate less than the rates paid to employees of a different gender for comparable work.” The new Act clarifies the concept of “comparable work” by defining it as “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.” An employee’s job title or job description, by itself, will not determine comparability. Variations in compensation and benefits are not prohibited if based upon a bona fide seniority or merit system; a system under which earnings are measured by quantity or quality of production or sales; geographic location; education, training, or experience, provided such factors are reasonably related to the job and consistent with business necessity; or travel, if the travel is a regular and necessary condition of the particular job.

The new Act also expressly prohibits employers from engaging in the following:

  • Forbidding employees from inquiring about, discussing, or disclosing information about either their own compensation and benefits or those of other employees (already prohibited under the National Labor Relations Act);
  • Screening applicants based on their compensation and benefits or salary histories, including by requiring that an applicant’s prior compensation and benefits or salary history meet minimum or maximum criteria;
  • Requesting or requiring an applicant to disclose prior wages or salary history;
  • Seeking an applicant’s salary history from a current or former employer before making a job offer and without the applicant’s written authorization; and
  • Retaliating against an employee for opposing any act prohibited under the new law or participating in any action to enforce rights under the law.

The new Act also broadens the remedies available to aggrieved employees. It increases the statute of limitations from one year to three and creates a continuing violation provision under which a new limitations period will be triggered each time an employee is paid in violation of the law (similar to the federal Lilly Ledbetter Fair Pay Act of 2009). Employees may file an action directly in court, without having to first file with the Massachusetts Commission Against Discrimination or the Attorney General’s Office. Employers found to be in violation of the new law are automatically liable for double damages and reasonable attorneys’ fees. The Attorney General may also bring an action on behalf of one or more aggrieved employees.

Finally, the new Act creates an affirmative defense for an employer who, within three years of the commencement of an action, has completed a good faith self-evaluation of its pay practices and can demonstrate that reasonable progress has been made towards eliminating gender-based pay differentials in accordance with such evaluation. An employer may design its own self-evaluation as long as it is reasonable in detail and scope in light of the employer’s size. Employers may also utilize templates and forms to be issued by the Attorney General’s Office.

The new Act does not become effective until July 1, 2018. This gives employers plenty of time to review their current pay practices and make any changes necessary to comply with the new statutory requirements. Beck Reed Riden’s experienced employment lawyers are available to assist employers with this task.

EEOC Charge Filings Remained High in 2012

In a January 28, 2013 press release, the Equal Employment Opportunity Commission (EEOC) announced that it received 99,412 private sector workplace discrimination charges during fiscal year 2012. Filings were down very slightly from a high of 99,947 in 2011.  Retaliation claims continued to lead the pack, with 37,836 (38.1%) charges filed, followed closely by race with 33,512 (33.7%) and sex (including sexual harassment and pregnancy claims) with 30,356 (30.5%).  Disability claims were next, with 26,379 (26.5%) charges filed.  Rounding out the top five were age claims, with 22,857 (23%) charges filed.  You can find a complete chart of the EEOC’s charge statistics here.

The EEOC also reported that, in addition to non-monetary benefits, it secured just over $365 million from private sector and state and local government employers through its administrative enforcement process, including mediation, settlements, conciliations, and withdrawals with benefits.  This was a new high in amounts recovered.

In light of the relatively constant number of charges filed over the past few years and the ever-increasing dollars recovered, employers must remain committed to treating their employees in accordance with state and federal anti-discrimination laws.  As previously reported, even meritless claims cost employers time and money to defend – time and money that instead should be devoted to running their businesses.  Employers with questions about how to handle a particular employee matter should consult with knowledgeable employment counsel before taking action.

New Massachusetts Law Protects Transgender Individuals

On November 23, 2011, Massachusetts Governor Deval Patrick signed into law “An Act Relative to Gender Identity.” The new law prohibits – among other things – workplace discrimination on the basis of one’s “gender identity.” Massachusetts is now one of sixteen states to include transgender individuals as a protected class in anti-discrimination laws. The statute will take effect on July 1, 2012. In addition to employment, it prohibits discrimination in housing, mortgage loans, and credit. It also protects transgender individuals under existing hate crime laws.

Who is protected by the new legislation?

The statute defines “gender identity” as “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.” The statute provides that gender identity “may be shown by providing evidence including, but not limited to, 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 the person’s core identity.”

How does the new law affect employers?

In light of this change in the law, employers should change their employee handbooks, equal employment opportunity statements, and anti-harassment policies to specifically include gender identity as a protected class. Employers should also include gender identity as part of any future anti-harassment training programs so that all workers are informed of the issue.

Managers should be educated to take appropriate action if they become aware of any discriminatory conduct directed against an employee on the basis of his or her gender identity. Failure to take appropriate action may lead to liability on the part of the employer and the individual manager.

Employers should also be sensitive to an employee’s wishes to be referred to by a name that is different from the employee’s legal name. Sensitivity is also warranted in the use of pronouns that are appropriate to the employee’s gender-identity and in dress code requirements. As common sense would dictate, employers should also refrain from inquiring about any medical procedures the employee may have received.

Thanks to Miki Matrician for her help with this post!

Supreme Court Upholds “Cat’s Paw” Discrimination Theory

In Staub v. Proctor Hospital (09-400) (slip opinion here), the United States Supreme Court today unanimously upheld the “cat’s paw” theory of discrimination in a case brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA). As a result, employers may now be more vulnerable to discrimination claims brought under USERRA, Title VII, and other statutes that prohibit workplace discrimination.

The “cat’s paw” theory derives from an Aesop’s fable in which an enterprising monkey persuades a cat to retrieve chestnuts roasting on an open fire. The monkey then makes off with the chestnuts, leaving the cat with nothing but its blackened paws. In the employment context, the theory refers to the situation in which the official who actually takes the adverse action against an employee (for example, the HR manager) acts without any personal discriminatory animus, but is influenced by another manager or supervisor who harbors discriminatory animus against the employee. Under these circumstances, the HR manager is the cat, while the underlying supervisor is the monkey.

In Staub, the employee worked as a technician at Proctor Hospital in Peoria, Illinois. He was also in the Army Reserve, which caused him to miss considerable time from work. His absences did not sit well with his supervisors, who – according to the evidence adduced at trial – disparaged his military service and wanted to get rid of him. After the vice president of HR terminated him, Staub sued the hospital under USERRA, claiming that the VP was influenced by the supervisors’ anti-military animus. A jury found in Staub’s favor, but the Seventh Circuit reversed the verdict on the ground that in a cat’s paw case, the plaintiff cannot succeed unless the nondecision-maker (i.e., Staub’s supervisors) exercised such “singular influence” over the decisionmaker (i.e., the VP of HR) that the decision was the product of “blind reliance.” The Seventh Circuit failed to find such singular influence.

USERRA prohibits discrimination based upon a person’s membership in or obligations to a uniformed service. 38 U.S.C. § 4311(a). An employer violates USERRA “if the person’s membership … is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” § 4311(c). The “central difficulty” facing the Staub Court was construing the phrase “motivating factor in the employer’s action.” The hospital argued that it could not be liable unless the de facto decisionmaker (i.e., the VP of HR) was motivated by discriminatory animus. Because there was no evidence that the VP harbored her own animus against Staub, the hospital contended that it could not be liable under USERRA.

The Court rejected the hospital’s argument, relying instead on long-established principles of tort law, under which “it is axiomatic … that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm.” The Court then held that “if a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Applying this holding to the facts of the case, the Court found that there was sufficient evidence for the jury to have concluded that Staub’s supervisors were motivated by their anti-military animus toward him and that their actions were causal factors underlying the VP of HR’s decision to terminate him.

While this case was decided under USERRA, the Court noted the statute’s similarity to Title VII. Therefore, it is by no means a stretch to assume that the cat’s paw theory will be extended to discrimination claims based upon sex, race, age, and other protected categories. Employers are encouraged to redouble their training efforts to insure that all levels of management are instructed on what constitutes unlawful discrimination.

Supreme Court Upholds Third Party Retaliation Claims Under Title VII

In one of several employment-law decisions expected to be handed down this term, the United States Supreme Court on Monday issued its decision in Thompson v. North American Stainless, LP, 562 U.S. ___ (2011), upholding the right of third parties to bring retaliation claims under Title VII without actually engaging in protected activity. In a unanimous decision authored by Justice Scalia (Justice Kagan did not participate in the case), the Court held that it is unlawful for an employer to harm one employee in an effort to retaliate against another employee who engages in protected activity.

The plaintiff Eric Thompson and his fiancée Miriam Regalado both worked at the defendant, North American Stainless (NAS). Three weeks after NAS learned that Regalado had filed a sex discrimination complaint against it at the EEOC, it fired Thompson (ostensibly because of poor performance). Thompson, in turn, filed an action against NAS for retaliation. The trial court dismissed Thompson’s complaint on the ground that he had not engaged in any protected activity. The Sixth Circuit Court of Appeals eventually upheld the dismissal. Thompson then appealed to the Supreme Court.

The Supreme Court was faced with two questions. First, did Thompson’s firing constitute unlawful retaliation? Second, if it did, did he have a cause of action under Title VII? The Court answered both questions in the affirmative.

In answering the first question, the Court looked at the anti-retaliation provision of Title VII and concluded that it “prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court found “it obvious that a reasonable worker might be dissuaded from engaging in protected activity [e.g., pursuing a sex discrimination charge] if she knew that her fiance would be fired.” The Court acknowledged the company’s argument that allowing third party retaliation claims would lead to difficult “line-drawing problems concerning the types of relationships entitled to protection.” Must there be a spousal (or near-spousal) relationship, or does protection extend to those in a dating relationship, friends, or even coworkers? But the Court declined to “identify a fixed class of relationships for which third-party reprisals are unlawful.” It wrote, “Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII’s anti-retaliation provision is simply not reducible to a comprehensive set of clear rules.” Accordingly, each case must be decided on its own set of facts. Under the facts presented, the Court concluded that Thompson’s firing constituted unlawful retaliation.

In deciding the second question – whether Thompson could sue NAS for retaliation under Title VII – the Court adopted a “zone of interests” standard. Under this standard, “a plaintiff may not sue unless he falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” The Court concluded that Thompson fell with the zone of interests protected by Title VII. He was employed by NAS, and was, therefore, protected under Title VII from the company’s unlawful actions. Hurting him was the unlawful act by which NAS punished his fiancée for filing her sex discrimination charge. The Court, therefore, concluded that Thompson had standing to sue NAS.

In some respects, Thompson represents another arrow in a plaintiff’s quiver to be aimed at his or her employer under the right circumstances, But, as Justice Ginsburg pointed out in her concurring opinion (in which Justice Breyer joined), the EEOC already has long held that Title VII “prohibits retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights.” According to the EEOC Compliance Manual, “such retaliation can be challenged by both the individual who engaged in the protected activity and the relative, where both are employees.”

So, while Thompson will undoubtedly spark discussion within the employment-law bar, it doesn’t really break new ground. Nevertheless, employers must remain vigilant in ensuring that terminations and other disciplinary actions must be carried out for legitimate business reasons and not for some other unlawful purpose.