Massachusetts employers can not refuse to accommodate handicapped employees who are lawfully prescribed medical marijuana to treat or alleviate a medical condition. Stated differently, continued use of medical marijuana as a reasonable accommodation request is not facially unreasonable. In Barbuto v. Advantage Sales, the Massachusetts Supreme Judicial Court (SJC) reversed the Superior Court’s decision granting summary judgment to the employer and reinstated the employee’s handicap discrimination claim under the Fair Employment Practices Act (M.G.L. c. 151B, §4). There, the plaintiff, Cristina Barbuto, receive a valid prescription for medical marijuana to treat the debilitating symptoms caused by Crohn’s disease. According to the decision, due to this medical condition, Ms. Barbuto has little or no appetite, finds it difficult to maintain a healthy weight, and typically uses marijuana for medicinal purposes in small quantities two or three times per week. The record also makes clear that Ms. Barbuto did not use marijuana daily, nor would she consume it before or during work.

Ms. Barbuto’s employer, Advantage Sales & Marketing, required her to submit a urine sample as part of the hiring process. After learning of this requirement, Ms. Barbuto was up front with her future supervisor about her diagnosis of Crohn’s disease and her medical marijuana use. The decision further reports that her future supervisor responded that this “should not be a problem,” which he later confirmed with others at the company. After completing her first day of work, Ms. Barbuto received a call from a human resources representative, who informed her that she was terminated for testing positive for marijuana. In doing so, Ms. Barbuto was allegedly told that the company did not care if she used marijuana to treat her medical condition because “we follow federal law, not state law.”

Sexual harassment claims often involve salacious allegations that can form the basis of a punitive damages award, the purpose of which is not to compensate the victim but to punish the wrongdoer and thus deter similar misconduct in the future. Fox’s payment to Gretchen Carlson of reportedly $20 million to settle sexual harassment allegations against its ousted founder, Roger Ailes, recently brought workplace sexual harassment into the limelight. According to her complaint, among other incidents, Ailes allegedly told Carlson: “I think you and I should have had a sexual relationship a long time ago and then you’d be good and better and I’d be good and better … sometimes problems are easier to solve [that way].” The size of the settlement suggests that Fox may have been concerned about a jury awarding Carlson significant punitive damages.

More recently, the Massachusetts Supreme Judicial Court (SJC) in Gyulakian v. Lexus of Watertown had the opportunity to clarify in what circumstances a jury may award punitive damages in sexual harassment cases under the Fair Employment Practices Act, namely M.G.L. c. 151B, §9. There, the jury returned a verdict in favor of the plaintiff of $40,000 in compensatory damages and $500,000 in punitive damages. In response to the defendants’ Motion for Judgment Notwithstanding the Verdict (JNOV) pursuant to Massachusetts Rule of Civil Procedure 50, the trial judge wiped out the jury’s punitive damages award and upheld the compensatory award. Both parties appealed and the SJC granted direct appellate review.

Unequal pay between men and women is well-documented. From sports to the entertainment industry to medicine, the pay gap spans numerous professions. Studies also reveal that pay in traditionally male-dominated occupations can become depressed when women enter certain professions in large numbers. Overall, research by the American Association of University Women shows that women in the United States are paid about 20% less than their male counterparts. The wage disparity in Massachusetts is only slightly better with female employees receiving approximately 82% of the compensation of their male colleagues.

Massachusetts was the first state in the country to pass legislation, as codified under M.G.L. c. 149, §105A, mandating equal pay among men and women for “work of comparable character or work on comparable operations.” Since then, the Massachusetts Equal Pay Act (MEPA) has undergone several revisions and judicial interpretation. Prior to the most recent revision signed into law on August 1, 2016, and as testimony by Attorney General Maura Healey in support of its passage shows, MEPA has long been criticized as a statute without teeth.

Overview: In Picco v. Town of Reading, the MCAD found in favor of the Complainant and awarded emotional distress damages. This is the MCAD’s second decision in 2016. Although this case began based on causes of action for sexual orientation and perceived sexual orientation, the hearing officer noted that the evidence presented at public hearing did not show that the Complainant is gay or was perceived as such. The MCAD noted that “[s]uch a discrepancy is not fatal, however, because the crux of the charge is that Complainant was subjected to homophobic names and a sexual assault by Lt. Stamatis.” In doing so, the hearing officer concluded that the Complainant stated a claim for sexual harassment based on the homophobic slurs directed at him.

Decision Date: February 26, 2016

Overview: In Cooper v. Raytheon, the MCAD found in favor of the Complainant and awarded emotional distress damages. This is the MCAD’s third decision in 2016. In finding that Raytheon engaged in handicap discrimination, the hearing officer noted that the Complainant’s managers knew that he suffered from a brain injury and that “when it came time to downgrade certain employees to comply with the bell curve requirement, he was an easy target, because of his cognitive impairments.” In doing so, the MCAD pointed to: (1) evidence that Complainant’s supervisor altered his performance review and made it less favorable than the original language provided by his peers; and (2) the scant evidence that “Complainant’s performance problems were disproportionate to others, who were not disabled.”

In weighing credibility, the hearing officer did not credit the testimony of a company witness who contended that she placed Complainant on a performance improvement plan to help him succeed; rather, the hearing officer pointed to evidence suggesting that the “real intent of the PIP was to force Complainant from his position.” Finally, the MCAD noted that an extension or cancellation of the PIP, and alternatively quarterly goals as the Complainant’s sister had requested, “would likely have been an effective reasonable accommodation” in light of the nature of Complainant’s disability.

Pregnancy discrimination cases are rarely built on direct or “smoking gun” evidence. Instead, employment discrimination cases typically hinge on circumstantial evidence. The Supreme Judicial Court’s (“SJC”) ruling in Verdrager v. Mintz Levin, in which it reversed summary judgment thus allowing the case to proceed to trial, is a prime example of the various ways in which pretext for pregnancy and gender discrimination as well as retaliation may be inferred. The case is fact-intensive with a long, procedural history. Below is a summary of certain key facts along with a general overview of its precedential value among employment law attorneys, both in Massachusetts and in other jurisdictions.

Retaliation, Pregnancy & Gender Discrimination Allegations

Disability discrimination claims under both the Massachusetts Fair Employment Practices Act and the Americans with Disabilities Act are among the most sophisticated claims that an employment lawyer can undertake. To maximize the chance of overcoming summary judgment and prevailing at trial, there are several technical points worth emphasizing when bringing claims for handicap discrimination, retaliation, failure to investigate, and failure to accommodate.

General Principles

Race discrimination in the workplace is unlawful under Title VII of the Civil Rights Act of 1964. Race discrimination claims, like other employment law claims, are subject to strict statute of limitations filing deadlines. Subject to certain very limited exceptions, the failure to file within the applicable deadline will forever bar a victim of employment discrimination from recovering damages – which can include financial loss, emotional distress, and punitives.

In Green v. Brennan, the United States Supreme Court decided when the filing period for a constructive discharge begins to run. There, the plaintiff, Marvin Green, worked for the Postal Service for 35 years. In 2008, he applied for a promotion and was passed over. Green alleged that he was denied the promotion because of his race and that he suffered retaliation thereafter. In 2011, two of Green’s supervisors accused him of delaying the mail; a criminal offense which prompted an investigation by the Office of the Inspector General (OIG). During the investigation, the supervisors provided Green with a letter re-assigning him to off-duty status. Although the OIG ultimately concluded that no further investigation was required, the supervisors maintained to Green that “the OIG is all over this” and that the criminal charge “could be a life changer.”

Age discrimination continues to garner public attention as older workers challenge traditional notions of what is deemed a “normal” retirement age. Like other forms of employment discrimination claims, it is rare to find direct or “smoking gun” evidence of age discrimination. Rather, age bias claims are typically proven through circumstantial evidence. Specifically, under the McDonnell Douglas framework, employees who suffer age discrimination must first establish what is known as a prima facie case by showing that they: (1) are at least 40 years old, (2) possess the qualifications to do the job, (3) experienced some type of of adverse employment action (e.g., termination, demotion, failure to promote), and (4) were replaced by someone who is “substantially younger.”

In Knight v. Avon Products, the Massachusetts Supreme Judicial Court defined “substantially younger” as an age disparity of at least five years. In addition, the Supreme Court in O’Connor v. Consolidated Coin Caterers made clear that satisfying the fourth element does not require the replacement to be under 40 years old. As such, a 65 year old employee would still meet his or her burden under the fourth prong if the replacement is 60 years old or younger.

Retaliation against employees who exercise their right to medical leave is prohibited under Massachusetts and federal law.  As with any employment discrimination suit,  plaintiffs who bring retaliation claims must overcome various hurdles before having a jury hear and decide their case.  Under Rule 12(b)(6) of the Massachusetts Rules of Civil Procedure and its federal corollary, for instance, an employer may file a motion near the start of the litigation asking the court to dismiss the case due to the alleged lack of a cognizable legal theory or the absence of sufficient facts to support a particular theory. As an example, a plaintiff who brings suit under the Family and Medical Leave Act against a company that has less than 50 employees would not survive a Rule 12(b)(6) motion because the law only generally applies to employers with at least 50 employees.

In addition, under Rule 56 of the Massachusetts Rules of Civil Procedure and its federal corollary, an employer will likely file a motion after the close of discovery once again asking the court to dismiss the case. Through this mechanism, the employer must show that – even when viewing all the evidence in the most favorable light to the employee – there’s no chance a reasonable jury could rule in his or her favor.