Articles Posted in Disability Discrimination

Massachusetts employers can not refuse to accommodate handicapped employees who are lawfully prescribed medical marijuana to treat or alleviate a medical condition. 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.”

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.

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

Overview: In Lammlin v. Seder Foods, the MCAD found in favor of the Complainant and awarded back pay and emotional distress damages. This is the MCAD’s first decision in 2016. This case included direct evidence of discriminatory bias, where the Respondent testified at public hearing that he sought a “salesperson who not only spoke Spanish, but who was culturally Latino.” As expected, the hearing officer rejected Respondent’s perceived “cultural affinity” defense and applied the mixed-motive analysis. In arriving at emotional distress damages, the hearing officer noted “the meager evidence proffered regarding his emotional distress, including the absence of testimony regarding its nature, severity and duration” and ultimately characterized its award as de minimis.

Decision Date: January 20, 2016