Boston Employment Lawyer Blog

A lawsuit filed in federal court in Portland, Maine alleges that Kohl’s Department Stores unlawfully discriminated against an employee based on her disability. The Equal Employment Opportunity Commission (EEOC) filed suit against the Wisconsin-based national retail store chain on behalf of Pamela Manning, who suffers from Type 1 diabetes. Manning worked at Kohl’s Westbrook, Maine store location. Because of her condition, she requires regular insulin injections. Beginning in January 2010, her complaint alleges, Kohl’s switched her full-time work schedule from a consistent daily schedule to an irregular one. This interfered with her daily routine of medical care. She presented her employer with a note from her doctor requesting that she have a regular work schedule, but Kohl’s refused to change it. She eventually developed health complications due to her inability to routinely administer her medications, and she had to quit her job with Kohl’s.

The EEOC filed suit in August 2011, alleging violations of the Americans With Disabilities Act of 1990 (ADA). It first attempted to settle the matter between Manning and Kohl’s through a conciliation process, which was unsuccessful. The lawsuit seeks monetary compensation for Manning and a revision of Kohl’s policies relating to disability discrimination. The EEOC’s Boston office is handling the litigation. They argue that it would have cost Kohl’s nothing to maintain a set schedule for Manning, but the cost of failing to do so was potentially catastrophic for Manning.

Kohl’s filed a response on October 24 denying liability and disability discrimination. According to a report in the American Journal, Kohl’s acknowledged changing Manning’s schedule in January 2010 but denied allegations regarding its knowledge of Manning’s diabetes. Kohl’s also admitted to receiving the note from Manning’s doctor but denies refusing to accommodate Manning’s needs. It claims that it makes “good faith efforts” to accommodate its employees’ scheduling needs. The Journal article does not mention how Kohl’s reconciles these seemingly contradictory claims.

The EEOC is a federal agency within the U.S. Department of Labor. Its purpose is to investigate allegations of employment discrimination and enforce federal anti-discrimination laws like the ADA and the Civil Rights Act of 1964. When an employee makes a complaint, the EEOC will investigate and make a finding or recommendation as to whether it believes unlawful discrimination occurred. Occasionally, it will file a lawsuit directly on behalf of an employee. More often, it will issue a “right to sue” letter that gives the employee a window of time to file a court claim with the help of an employment discrimination lawyer.

Continue reading "Disability Discrimination Case Brought Against Kohl's" »

Discrimination by employers because of an employee’s disability or health condition is a serious problem for American workers. The Equal Employment Opportunity Commission (EEOC), a federal agency that investigates discrimination claims, has filed suit against a Nashua, New Hampshire company, alleging that it fired an employee because she has a heart condition in violation of the Americans with Disabilities Act (ADA).

The lawsuit, filed in a federal court in Concord, New Hampshire, alleges that Windmill International, Inc., a defense contractor, terminated employee Nancy Hajjar, shortly after she gave notice that she would need time off for a surgical procedure related to a heart condition and that she may require heart surgery as well. The EEOC claims that the company terminated her because of “an actual or perceived impairment of her circulatory or cardiovascular functions.” Windmill claims that it fired Ms. Hajjar because of job performance problems, but the EEOC alleges that the company did not follow the same progressive discipline procedures afforded to other employees, concluding that the company's explanation is false. The EEOC's Press Release can be viewed here, EEOC Sues Windmill International for Disability Discrimination.

The ADA, which became effective in 1992 and was amended in 2009, protects employees suffering from disabilities from certain types of discrimination in the workplace. Employers with 15 or more employees must provide equal opportunity to disabled employees for all employment opportunities available to other employees. The law prohibits discrimination in hiring, firing, promotions, pay, and terms and conditions of employment. The same holds true under the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B), which also prohibits handicap discrimination in the workplace and which applies to employers with 6 or more employees.

The EEOC is an independent law enforcement agency in the executive branch of the federal government. The agency was created in 1965, after passage of the Civil Rights Act of 1964. It investigates claims of discrimination based on certain protected categories including race, gender, religion, age, and disability. It has authority to bring suit against employers that it suspects violated anti-discrimination statutes. People who believe they are the victims of unlawful discrimination must file a complaint with the EEOC, which will investigate the claim. A prospective plaintiff, before filing a lawsuit, must receive a “right-to-sue” letter from the EEOC when it concludes its review of the case. To learn more about disability discrimination and your rights, the following resources may be helpful:

• Handicap Discrimination Overview, Conforto Law Group, P.C.
• A Guide to Disability Rights Laws, Civil Rights Division, U.S. Department of Justice
• Disability Resources, Americans with Disabilities Act

Continue reading "Americans with Disabilities Act Violations Alleged in EEOC Lawsuit Against New Hampshire Company" »

Claims for unlawful workplace discrimination are typically proven through two types of evidence: direct and circumstantial. Direct evidence is often referred to as "smoking gun" evidence where, for example, a company informs an employee that he or she is being terminated because of his or her age. Circumstantial evidence is much more subtle. As a great trial lawyer once said, "We better know there is a fire whence we see much smoke rising than we could know it by one or two witnesses swearing to it. The witnesses may commit perjury, but the smoke cannot." Abraham Lincoln, Unsent Letter to J.R. Underwood and Henry Grider, October 26, 1864. Thus, in an age discrimination case, circumstantial evidence may take the form of an older employee (who is at least 40 years old) who is terminated without explanation.

This is exactly what occurred in Vélez v. Thermo King de Puerto Rico. There, the employer terminated a 56 year old employee without explanation. The company finally provided a reason for the termination one month later only after the employee filed a claim for age discrimination with the Equal Employment Opportunity Commission. The employer changed its reason thereafter. The First Circuit found the employer's initial silence to constitute circumstantial evidence of discrimination:

Thermo King did not initially provide Vélez with any reason for firing him. One month later, Soto told the ADU and the EEOC that Vélez had been fired for violating the company's policy on receiving gifts from suppliers. It was not until over a year later that Thermo King, responding to this lawsuit, first said that Vélez had been fired for stealing and selling company property. The fact that the employer gave different reasons at different times for its action surely supports a finding that the reason it ultimately settled on was fabricated.

In my interview with Massachusetts Lawyers Weekly, I discussed the significance of the Thermo King decision:

It appears to be the first time the 1st Circuit has held that an employer's failure to articulate the reasons for a termination before litigation equals pretext for discrimination.

Our prediction is that the Thermo King decision will encourage more transparency. Employers are now incentivized to articulate a clear reason as to why an employee is being terminated from the outset or risk an inference of discriminatory motive.

Under the Americans with Disabilities Act (ADA), employees who are "substantially limited" in a "major life activity" are considered disabled and entitled to reasonable accommodations in the workplace. Handicapped employees experienced a welcome change with the ADA Amendments Act (ADAAA), which became effective on January 1, 2009.

The Americans with Disabilities Act (ADA) went into effective in 1992 and, since that time, has faced numerous criticisms. Namely, the strict standards under the ADA created scenarios in which employees were either not sufficiently disabled to state a viable claim or too disabled to be deemed qualified for the position in question.

The ADA Amendments help to minimize these concerns and, in doing so, essentially overturn certain Supreme Court precedents that made it difficult for employees to show that they suffered a substantial limitation in a major life activity. In Sutton v. U.S. Air Lines, 527 U.S. 471 (1999), for instance, the Supreme Court held that "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment ...." The Supreme Court reiterated this principle in Murphy v. UPS, 527 U.S. 516 (1999) and Alberstons, Inc. v. Kirkinburg, 527 U.S. 555 (1999), which were both decided the same day as Sutton. Likewise, in Toyota v. Williams, 534 U.S. 184 (2002), the Supreme Court stated that a substantial limitation in a major life activity must be "interpreted strictly to create a demanding standard for qualifying as disabled ...."

The following is an overview of some of the key changes brought by the ADAAA:

1. Broadened Definition of Disability

Since the ADA was enacted, numerous federal courts found several severe medical conditions – including epilepsy, diabetes, multiple sclerosis, intellectual disabilities, major depression, and bipolar disorder – to not meet the ADA’s definition of “disability.” The purpose of the ADAAA makes explicit that its purpose is “to reinstate a broad scope of protection” by expanding the definition of “disability,” which immediately reverses more than one decade of conservative federal court decisions. The ADAAA also makes clear that a medical condition that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active.

2. Broadened Definition of Major Life Activity

The ADA was silent as to what constituted a "major life activity." The ADAAA now provides a non-exhaustive list of examples of major life activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. The ADAAA also makes clear that major life activities include major bodily functions related to the immune system, cell growth, as well as digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, and reproductive functions. As a result, serious medical conditions such as cancer (which affects normal cell growth) and diabetes (which affects the endocrine system) should clearly be considered disabilities under the ADAAA.

3. The Effect of Mitigating Measures

Contrary to the trilogy in Sutton, Murphy, and Kirkinburg, the ADAAA requires that mitigating measures be ignored in evaluating whether an impairment substantially limits a major life activity. As such, a mitigating measure can longer be used against employees.

4. "Regarded As" Disabled Standard Revised

The ADA has always offered protection for those employees whom an employer wrongly "regarded" as being disabled. Federal courts, however, required ADA plaintiffs to demonstrate that the employer regarded them as being substantially limited in a major life activity in order to prevail. The ADAAA dispenses with the holding in Sutton:

Standing alone, the allegation that respondent has a vision requirement in place does not establish a claim that respondent regards petitioners as substantially limited in the major life activity of working. ... When the major life activity under consideration is that of working, the statutory phrase “substantially limits” requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.

Contrary to Sutton, under the ADAAA, an employee satisfies the "regarded as" prong if she demonstrates discrimination based on "an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

With these changes, federal law is catching up to the Massachusetts Fair Employment Practices Act. In 2001, for instance, the Supreme Judicial Court of Massachusetts decided Dahill v. Police Department of Boston, in which the court refused to follow the Supreme Court's reasoning in Sutton v. U.S. Air Lines and ruled that mitigating measures or corrective devices should not be considered when determining whether an employee is handicapped under M.G.L. c. 151B(1)(17).

Employees who suffer workplace discrimination in violation of the Massachusetts Fair Employment Practices Act are entitled to recover four types of damages: front pay (the amount by which someone's future earnings are reduced by discrimination), back pay (the plaintiff's lost income from the time of the discrimination up to a jury verdict), emotional distress damages, and attorney's fees. These damages are compensatory damages, designed to compensate the victim of discrimination for the actual harm s/he suffered and no more.

Punitive damages are another category of damages provided by the Fair Employment Practices Act for the victims of unlawful discrimination on the basis of race, color, religious creed, national origin, sex, sexual orientation, or handicap. However, not all victims of unlawful workplace discrimination are entitled to punitive damages. Recently, in the case of Haddad v. Walmart Stores, Inc. , the Massachusetts Supreme Judicial Court clarified the standard for the award of punitive damages.

In Haddad, a jury awarded punitive damages to the plaintiff for the gender discrimination that she had suffered. The trial judge, however, took away the punitive damages. The parties then filed cross-appeals, raising numerous questions of law.

On appeal, the plaintiff argued that the trial judge's decision to take away the punitive damages was error. Simplifying a bit here, the plaintiff went on to argue that Massachusetts law permits punitive damages for intentional acts and, since discrimination is the result of intentional acts, any finding of discrimination is sufficient to support an award of punitive damages.

The Supreme Judicial Court ("SJC") agreed with the plaintiff that the trial court's decision to take away the jury's award of punitive damages was a mistake. The SJC found that the the trial court judge may have based his decision on a belief that, in order to recover punitive damages, an employee must show that his/her employer acted with the knowledge that its actions violated applicable civil rights laws. The SJC said that, to the extent the judge's order relied upon that reasoning, it was in error.

The Supreme Judicial Court went on to clarify the circumstances under which a victim of unlawful discrimination may recover punitive damages. The SJC held that punitive damages in a discrimination case may be awarded only where the defendant's conduct is outrageous or egregious. In determining whether the defendant's conduct is outrageous or egregious, a judge or jury should consider several factors, including but not limited to:

(1) whether there was a conscious or purposeful effort to demean or diminish a class of which the plaintiff is a member (or the plaintiff because he or she is a member of a class);
(2) whether the defendant was aware that the discriminatory conduct would likely cause serious harm or recklessly disregarded the likelihood that serious harm would arise;
(3) the actual harm to the plaintiff;
(4) the defendant's conduct after learning that the initial conduct would likely cause harm; and
(5) the duration of the wrongful conduct and any concealment of that conduct by the defendant.

The Supreme Judicial Court suggested these five factors do not exhaust the list of considerations that may be relevant to an award of punitive damages in a discrimination case, but they do help clarify what an employee who is the victim of workplace discrimination should show if she hopes to recover punitive damages against her employer.

You can watch a video of the oral arguments in the Haddad case on Suffolk Law's website.

Gender discrimination just became more expensive. On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. After approximately 19 years as an employee of Goodyear Tire and Rubber Company, Lilly Ledbetter learned that she earned significantly less than her male colleagues. Not surprisingly, a jury found Goodyear liable for gender discrimination. In a controversial decision, the United States Supreme Court reversed, ruling that Ms. Ledbetter should have filed her claim within 180 days of the date that Goodyear first paid her less than her male counterparts. (For more information about the Supreme Court's decision, please visit our blog post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.)

The Ledbetter Fair Pay Act of 2009 has three key features. First, the statute not only applies to gender discrimination, but also to unequal pay based on the following types of discrimination: (a) race, color, religion, and national origin under Title VII; (b) age under the Age Discrimination in Employment Act (ADEA); and (c) handicap discrimination under the Americans with Disabilities Act (ADA). Second, the statute allows employees who have suffered these types of unequal pay discrimination to recover back pay for up to two years preceding the filing of a charge with the Equal Employment Opportunity Commission. Third, the Act takes effect retroactively as if enacted on May 28, 2007.

The Fair Pay Act is a welcome change for employees who suffer pay discrimination. For more information on this issue please visit the New York Times article entitled,Obama Signs Equal Pay Legislation.

Handicap discrimination claims continue to make headlines. Patrick Brady is the latest employee to successfully file suit and prevail against Wal-Mart. Brady, who suffers from cerebral palsy, worked at Wal-Mart as a pharmacy assistant. In joining Wal-Mart, Brady brought with him two years of experience working at a local pharmacy. Despite being qualified, Brady's supervisor assumed that he was incapable of doing the job because of his cerebral palsy. Based on this unfair and unwarranted perception, Brady's supervisor stripped him of his pharmacy assistant functions and transferred him to the personnel department.

No longer a pharmacy assistant, Brady eventually resigned and filed suit against Wal-Mart for failing failing to participate in the interactive process and refusing to accommodate his disability. Amazingly, although plainly evident that Brady's cerebral palsy impaired his motor skills, Wal-Mart argued that it had no obligation to accommodate his disability. As expected, the court disagreed. Indeed, while the burden generally lies with employees to inform the employer of the need for an accommodation, the burden shifts to the employer where the disability is obvious, as in Brady's case:

[A] situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees. We therefore hold that an employer has a duty reasonably to accommodate an employee's disability if the disability is obvious-which is to say, if the employer knew or reasonably should have known that the employee was disabled.

For more information, please visit the Second Circuit's full opinion in Brady v. Wal-Mart

Handicapped employees must often overcome significant hurdles in the workplace -- both those related to their medical conditions and, unfortunately, misconceptions that commonly result. Where feasible, employers must provide reasonable accommodations to handicapped employees. Failing to do so, as Wal-Mart recently learned, violates the Americans with Disabilities Act (ADA). In Massachusetts, such infractions also trigger liability under the Fair Employment Practices statute.

In June 2008, the Equal Employment Opportunity Commission (EEOC) reached a settlement with Wal-Mart on behalf of a long-time pharmacy technician who suffered a disability, which the company failed to accommodate. Glenda D. Allen was a Wal-Mart employee since July 1993. In 1994, she was wounded during the course of a robbery at another employer causing permanent damage to her spinal cord. As a result, Ms. Allen walked with an abnormal gait, which required her to use a cane.

Despite her medical condition, Ms. Allen was able to perform the full scope of her duties and responsibilities as a pharmacy technician. Nevertheless, Wal-Mart wrongfully terminated Ms. Allen after erroneously declaring that she was incapable of functioning in her position. The EEOC settled the suit on behalf of Ms. Allen for $250,000. In discussing the victory, Ms. Allen had this to say:

After beating all the odds -- surviving my injury when not expected to survive, walking again when told that I would never walk again, and returning to work where I received excellent performance evaluations and consistent merit increases -- I was devastated to have the rug pulled out from underneath me simply because Wal-Mart could no longer accommodate my handicap needs. I am hopeful that this settlement will make Wal-Mart take a closer look at its policies and practices with respect to the employment of individuals with disabilities so that what happened to me will not happen to someone else.

To read more about the settlement, please visit the EEOC's Press Release entitled, Wal-Mart to Pay $250,000 for Disability Bias.

Workplace discrimination complaints by employees against private employers to the Equal Employment Opportunity Commission (EEOC) rose by 9% last year, signifying the largest annual increase since the early 1990s. The EEOC reported that complaints increased to 75,768 during the 2006 budget year, up from 75,428 in the previous year. Discrimination complaints based on race, retaliation, and sex were the most common. Below is an overview:

• Race discrimination complaints totaled 27,238; about 35.9% of all EEOC filings

• Sex discrimination complaints totaled 23,247; about 30.7% of all EEOC filings

• Retaliation complaints totaled 22,555; about 29.8% of all EEOC filings

• Handicap discrimination complaints totaled 15,625; about 20.6% of all EEOC filings

• Age discrimination complaints totaled 13,569; about 17.9% of all EEOC filings

• Sexual harassment complaints totaled 12,025; about 15% of all EEOC filings

• National origin discrimination complaints totaled 8,327; about 11% of all EEOC filings

• Religious discrimination complaints totaled 2,541; about 3.4% of all EEOC filings

(It is not uncommon for employees to suffer more than one type of discrimination, which is why the total exceeds 100%)

Age discrimination and handicap discrimination complaints recorded double-digit percentage increases. Complaints about discrimination based on pregnancy also rose by 14% to 5,587. In 2006, the EEOC was successful in recovering $274 million in compensation for employees reporting discrimination. The Washington Post reported on these figures in an article entitled, Job Discrimination Filings Rise in 2006

The Americans with Disabilities Act (ADA) is one of the youngest anti-workplace discrimination statutes on the books. The ADA became effective on July 26, 1992 and prohibits employers from discriminating against qualified employees and job applicants with disabilities. In order to meet the definition of "handicap" under the ADA, the employee or job applicant must: (1) have a physical or mental impairment that substantially limits one or more major life activities; (2) have a record of such an impairment; or (3) be regarded as having such an impairment.

Recently, in Dewitt v. Proctor Hospital, the 7th Circuit Court of Appeals issued an interesting decision, which confirms that employees who prove the they were discriminated against because of the disability of a family member or another associate state a viable claim for handicap discrimination under the ADA. This is known as association discrimination.

In Dewitt v. Proctor Hospital, a nursing supervisor at a hospital alleged she was fired because of, among other things, the expense associated with treating her husband's prostate cancer. In the three years preceding the nurse's termination, her husband's medical expenses totaled more than $300,000. The hospital, which was was self-insured, took issue with cost of medical care, going so far as to suggest a less-expensive hospice option. In discharging the plaintiff-employee, the hospital conceded that performance was not an issue without saying much more. In concluding that the plaintiff-employee states a viable claim for handicap association discrimination, the 7th Circuit reasoned:

That the powers-that-be at Proctor were interested specifically in the high cost of Anthony’s medical treatment is obvious. Davis, Dewitt’s supervisor (and the person who ultimately fired her), pulled Dewitt aside twice in five months to inquire about Anthony’s condition. ... She also asked Dewitt whether Anthony’s doctor had considered hospice placement—a far cheaper “alternative” to the costly chemotherapy and radiation Anthony was receiving. Finally, the timing of Dewitt’s termination suggests that the financial albatross of Anthony’s continued cancer treatment was an important factor in Proctor’s decision. Dewitt was fired in August 2005—five months after her last chat with Davis and three months after Proctor warned employees about impending “creative” cost-cutting measures. ... A reasonable juror could conclude that Proctor, which faced a financial struggle of indeterminate length, was concerned that Anthony—a multi-year cancer veteran—might linger on indefinitely.

This is an important win for employees who must care for family members with serious medical conditions.

The Family and Medical Leave Act (FMLA) may undergo a shake up. The United States Department of Labor (DOL) has proposed regulatory changes to the FMLA. The changes, which are 500 pages long and have a 60 day comment period, make significant modifications to the FMLA. A sampling include:

Serious health condition: The definition of "serious health condition" would be substantially revised to require two or more treatments within a 30 day calendar period. In addition, to qualify as a chronic condition, an employee would be required to see a physician for the particular condition at least two times each a year.

Medical Certification: An employee's burden to provide medical certification would be set higher, which allows an employer to dig deeper into an employee's medical file, raising privacy concerns.

Notification: The notification period that employers are required to provide would be watered down. Under the proposed changes, employers will be given five days, versus the current requirement of two days, to provide employees with notice of FMLA eligibility.

The changes, which were initiated by President George W. Bush, are not employee friendly. Senator Hillary Clinton's campaign issued the following Press Release:

The Bush Administration is seeking to make it more difficult for employees to claim paid leave when it is available to them by requiring the employers leave policies to take precedent over the FMLA; requiring employees with chronic health conditions to obtain an annual certification that they are able to do their job or risk being transferred to a different job; allowing employers to communicate directly with medical providers, which raises privacy concerns; and much more. The proposed regulation is 500 pages long.

We will keep you posted on what the 60 day comment period yields.

An all-to-common employment law issue was raised in today's Boston Globe article entitled, Several Laws Protect Pregnant Workers Injured on the Job. The article sought to answer various questions posed by employees who, for different reasons, find themselves at a crossroad with their employer.

The question to which I refer dealt with pregnancy and medical leave:

I suffered an on the job injury when I was 32 weeks pregnant. I was ordered out of work by three different doctors. It has now been almost eight months and I continue to be out of work from injury. However, I recently found out that when and if I am cleared to return to work, I do not have a position to return to. Is this legal? And do I have any recourse as far as losing my job after maternity leave and while out on work-related injury? Is this considered discrimination?

As the article points out, this particular employee may avail herself of either the Family Medical Leave Act (FMLA) or the Massachusetts Maternity Leave Act (MMLA). Both statutes require that an employee returning from leave be restored to his or her previous or a similar position. Among other things, the position must have the same status, pay, and responsibilities.

Key differences between these two statutes exist. Under FMLA leave, employers must grant an eligible employee up to 12 workweeks of unpaid leave during any 12 month period. FMLA leave can be taken for: (1) the birth and care of the newborn child of the employee; (2) the placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. A few hurdles apply: the employee must have completed at least 12 months of employment, must have worked at least 1,250 hours in the preceding 12 month period, and the company must employ at least 50 workers within 75 miles. Consult the Department of Labor's FMLA Fact Sheet for more information.

In contrast, under MMLA leave, employers must grant an eligible employee only 8 workweeks of unpaid leave. MMLA leave can be taken for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. In general, the threshold to become eligible for MMLA leave is lower. First, the MMLA only requires 3 months of full-time employment or the completion of a probationary period. Second, the company must only employ 6 workers. As the Massachusetts Commission Against Discrimination's (MCAD) Guidelines point out, MMLA leave can be taken more than once in a 12 month period:

Under the MMLA, an employee may take a maternity leave each time she gives birth or adopts a child. Thus, for example, if an employee gives birth in January and adopts a second child in March, she would be entitled to two separate eight-week maternity leaves under the MMLA for a total of 16 weeks. By contrast, under the FMLA, leave is limited to a maximum of 12 weeks in a 12-month period.

Consult the MCAD's MMLA Guidelines for more information.

Continue reading "Medical Leave Eligibility and Handicap Status in the Workplace Explored" »

Last week, I received a Probable Cause finding from the Massachusetts Commission Against Discrimination (MCAD) in a case involving handicap discrimination.

The decision confirms that, where an employer requests medical documentation from an employee to verify a medical condition and make accommodations, the inquiry must be appropriately focused:

The MCAD Guidelines state than an employer may request medical documentation to determine the existence of a disability and identify effective accommodations. However, the guidelines also that the inquiry must be appropriately focused. In the instant case, the Respondent's inquiries were not appropriately focused. The Respondent allowed a line supervisor to determine that an accommodation was to be denied. The Respondent then engaged in a protracted and obtuse series of inquiries by various individuals who lacked the knowledge or authority to determine what if any accommodation was needed.

Click here for the full decision.

The MCAD Process has multiple stages. First, a Charge of Discrimination must be filed within 300 days from the date the discrimination occurred. In response to the charges, the employer submits its Position Statement. The complainant next submits his or her Rebuttal in the final stage of the pleadings. Once all pleadings are submitted, the MCAD conducts its investigation and determines whether Probable Cause for discrimination exists.

The Probable Cause finding means that the MCAD has found sufficient evidence to support a conclusion that unlawful discrimination may have occurred. The case then proceeds to a conciliation conference where efforts at resolution between the Complainant and the Respondent are attempted. If the parties are unable to resolve the dispute, the case goes to Public Hearing.