Pursuant to Massachusetts law, the word retaliation is defined as; an employer taking and adverse action against an employee as a result of the employee conducting some form of protected activity. Retaliation is a separate claim from discrimination, it can be found in Massachusetts General Laws in chapter 151B. The word retaliation is not actually used in the law however the courts commonly use the word as shorthand for the word antidiscrimination statutes. The laws against retaliation allows for liability against individuals and not just employers.
Under Massachusetts Law 151B there are two different subsections that prohibit unlawful retaliation and they are §4(4) and §4(4A). §4(4) states; “for any person, employer labor organization, or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified, assisted in any proceeding under section five of MGL 151B §4(4).” MGL 151B §4(4A) states that; “for any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right.”
Under Mass Practice Section 8.30 it states that in order to establish a case of retaliation, the plaintiff must show that he/she engaged in legally protected conduct and that he/she suffered an adverse employment action, and that a causal connection existed between the legally protected conduct and the adverse employment action. In order for one to succeed in a relation claim they must show the following;
- The plaintiff must prove that he reasonably and in good faith believed that his employer engaged in wrongful discrimination.
- That he acted reasonably in response to this belief
- That the employer’s desire to retaliate against was his determinative factor in taking an adverse employment action.
In order for the plaintiff to prove the first prong of their retaliation case they must show that they engaged in an act protected under chapter 151B section 4(4), and those who have opposed any practice forbidden under MGL c. 151B and those who file complaints or assist in any proceedings before the MCAD (Massachusetts Commission Against Discrimination) these are known as the “opposition” and “participation” clauses.
The application of the opposition clause and can prove to be tricky because the employee must allege that the retaliatory conduct was due to the employee’s opposition to practices forbidden under MGL c. 151B.
The participation clause refers to MCAD proceedings and c.151B doesn’t cover participation in internal investigations of discrimination unless the participation amounts to the protected opposition, such as aiding, or encouraging another employee in the exercise of that employee’s rights.
In October 2007, the Federal court held that in the context of the Family and Medical Leave Act; direct notice from the employee to the employer is not always necessary. In the context of the Family and Medical Leave Act (FMLA), either an employee’s inability to communicate his illness to his employer or clear abnormalities in the employee’s behavior may constitute constructive notice of a serious health condition. It is enough under the FMLA if the employer knows of the employee’s need for leave; the employee need not mention the statute or demand its benefits. Stevenson v. Hyre Elec. Co., 505 F.3d 720 (2007).
The facts of the case were that on February 9, 2004, an employee had an extreme emotional and physical response to a stray dog entering her workspace. She left work soon after and for the most part stayed home for the next several days. The few times she tried to return to work, she felt unable to function and demonstrated erratic and emotional behavior. Approximately one month later, she received a letter informing her that she had been terminated effective February 25. In this case, the court found that it was possible that the employee herself was unaware that she was suffering from a serious medical condition until she went to the emergency room on February 11. Yet the employee did not give the employer any explicit notice of her need for leave within one or two working days of February 11. It was not until February 17 that she left a copy of her Emergency Room discharge orders with an agent at the employer’s office. The court found that her behavior was so bizarre that it amounted to constructive notice of the need for leave.
Once notice is provided to the employer, and such notice may be in the form of an extreme behavior change, it becomes the employer’s obligation to request such additional information from the employee’s doctor as may be necessary to confirm the employee’s entitlement to FMLA leave. To read another employment lawyer’s take on this case click here
It would appear from this new case, that the requirements for FMLA requests and any subsequent termination may lead to increased claims for handicap discrimination, whereby the employee’s conduct puts the employer on notice of a reasonable accomidation request.
If an employee voluntarily quits his or her job and is seeking to gain unemployment compensation from the Division of Unemployment Assistance (DUA), they have a burden of proof to the Division of Unemployment Assistance in order to demonstrate that their voluntary quitting wasn’t without good cause attributable to the employing unit or its agent.The burden of proof is on the employee and not the employer. Pursuant to Massachusetts General Laws c. 25 § (e)(1) the disqualifications for unemployment assistance. A person will not become disqualified from unemployment benefits if they voluntarily quit if they, can establish to the satisfaction of the commissioner that the reason that they left work due to sexual, racial or any other unreasonable harassment where the employer, its supervisory personnel or agents knew of such or should have known of such harassment.
Under Massachusetts General Laws, sexual harassment is defined as; sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when; submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions. Also if such advances or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance, and lastly, such advances, requests or conduct have the purpose of effect of creating intimidating, hostile, humiliating, or sexually offensive work environment.
A person will also not be disqualified for voluntarily quitting if they establish to the satisfaction of the commissioner that the reason for the individual’s leaving work was due to domestic violence including; the individual’s reasonable fear of future domestic violence at or on route to or from the individuals place of employment, the individuals need to relocate to another geographic area in order to avoid future domestic violence, the individuals need to address the physical, psychological and legal effects of domestic violence, the individuals need to leave employment as a condition of receiving services or shelter from an agency which provides support services or shelter to victims of domestic violence and lastly, any other respect in which domestic violence causes the individual to reasonably believe that termination of employment is necessary for the future safety of the individual or their family. M.G.L. c. 151 § 25. If an individual voluntarily quits their job unless they can prove to the commissioner that they quit because of harassment or due to a domestic violence situation, they are going to have a big burden of proof to show the commissioner to even be considered for unemployment benefits.
Employees have rights in the workplace when it comes to employer intrusion into their personal business and their privacy. In Section 652B of the Restatements (second) of Torts it provides information regarding intrusion. It states that “one, who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”Intrusion in a work place setting could include such things as; an inquiry into private facts, physical searches of persons or the premises, drug test and surveillance and monitoring of employee conduct. In all of these cases the balancing test is applied to determine whether or not the intrusion would be highly offensive to a reasonable person.
The courts of Massachusetts are interested in protecting employees from questioning about personal matters that are absolutely no business of the employer. However under some circumstances inquiries concerning non-workplace conduct are permissible if it can be shown that there is a legitimate purpose for the information. When it comes to the degree of intrusion into an employee’s rights, the nature of the employee’s job could potentially be significant. If there is an employee who is high level and is considered to be a confidential employee then the information they disclose should be much broader compared to someone who mows lawns or performs janitorial work.
When it comes to the issue of privacy in the workplace there are very fine lines as to what intrusion is and what should be expected. Normally employees expect to have privacy in regards to their office at work and such things as their desks, files, lockers and brief cases. Some ways employers fix the issue of intrusion into an employee’s office and their belongings in their desks, is to discourage employees from keeping personal material in these locations and also to warn employees in advance that those areas could be subject to search if the employer feels it necessary. An employer can enlarge or diminish employees expectation of privacy in their workplace is by publishing the employer’s policy in handbooks that should be given to all employees in the workplace. However although the employer’s should publish workplace privacy policies in their handbooks, if an employer can show a reasonable expectation of privacy exists, the federal courts have held with the decision that a public employer may conduct a work-related search in an employee’s office, desk and their files if they have “reasonable cause” for work-related non-criminal investigatory reasons.
Lastly, when determining whether an employer’s disclosure of private information of an employee is actionable, the balancing test will be between the employer’s legitimate business interest in telling the information to the recipient and the employee’s privacy expectation. The balancing test will be used to determine whether the interference of privacy was unreasonable, substantial or serious. If the information is something that its public disclosure would offend a reasonable person then the employer’s disclosure is not necessary. If an employer’s disclosure of private information may invade the employee’s privacy rights if the disclosure exceeds reasonable necessity. An example of this is it an employer has an interest in assuring that an employee is psychologically fit to perform their job doesn’t give permission to the employer to publicize its critiques of the employee in a newspaper.
Employees have many privacy rights in the work-place; however it can only be determined whether or not the employer is intruding upon the employee’s privacy rights with the balancing test or if the intrusion is offensive to a reasonable person.
As of right now there is no specific law in Massachusetts that protects an individual if they believe they were discriminated against in the work place as a result of being too fat or short. This type of discrimination can manifest itself in the form of wrongful termination, failure to promote or a failure to be hired.Currently the Massachusetts General Laws regarding discrimination reads; It shall be an unlawful practice for an employer, to refuse to hire, employ, to bar or to discharge an individual from employment based on their race, color, religious creed, national origin, sex, sexual orientation, (which doesn’t include persons whose sexual orientation involves minor as the sexual object), genetic information and lastly their ancestry. It also states that the employer can’t discriminate against the individual for the following; individual compensation, or in terms, condition or privileges of employment, unless based upon a bona fide occupational qualification. Massachusetts General Laws c. 151B § 4.
Massachusetts has proposed an amendment to its civil rights and discrimination laws under Massachusetts General Laws c. 151B. As of now there is a pending bill before the state legislature that would make it unlawful for an employer to discriminate against an employee based on the employee’s weight or height. The law currently requires that a person who was terminated or treated unfairly in the workplace demonstrate that he/she was treated differently from another employees who holds either the same job title or holds a similar position in the workplace. Also under current law a person who is claiming that their weight or height is the basis of their discriminating factors must prove that their weight or height qualifies as a handicap disability, thereby substantially limiting a major life activity. Massachusetts courts have held that limiting ones ability to work qualifies as a major life activity.
If this proposed amendment is approved, Massachusetts would be only the second state in the nation, behind the Michigan to prohibit such discrimination. Although it should be noted that the District of Columbia bans discrimination on appearance and San Francisco and Santa Cruz, California, bar weight and height discrimination. This proposed bill comes as the Federal government released the latest statistics on the percentage of Americans that are obese, claiming that over 32% of Americans are obese as measured by their Body Mass Index (BMI). The forgoing article on employee rights was written by Ashley Grudon for the Law Office of Goldstein and Clegg, LLC
On our cyberlaw blog, Ashley has written a great article discussing the issue of whether an employer can monitor their employee’s emails. In this article she indicates that An employee generally does not have an expectation of privacy. Pursuant to the Electronic Communications Privacy Act (ECPA) it provides for implied authorization to review employee emails, and that a company should state their policy of monitoring e-mails in the company handbook. To read more about whether your employer can read your emails click here.