Articles Posted in Sex Discrimination

Overview: In Swenson v. Moini, the MCAD found in favor of the Respondent and dismissed the complaint alleging gender-based discrimination and sexual harassment. The Complainant, the bookkeeper and office manager within a dental practice, claimed that a partner at the practice had created a hostile work environment through sexual harassment. The Complainant ultimately waived her claim against the corporation and pursued the allegations against the individual Respondent only.

In dismissing the complaint, the hearing officer determined that the allegations of hostile work environment sexual harassment were untimely. Furthermore, the conduct was not objectively offensive and therefore did not support a hostile work environment claim. Moreover, the Complainant failed to show that she was particularly distressed or offended by the Respondent’s behavior, as she continued to work for the Respondent for several years and did not complain.

Overview: In Dateo v. Springfield BBQ LLC dba Famous Dave’s BBQ, the MCAD found in favor of the Complainant, awarding back pay and emotional distress damages after finding that the Complainant’s hours as a bartender and waiter were reduced and given to young women. The Complainant had decades of experience as a successful bartender and was hired by the Respondent restaurant when he was 48 years old. In an effort to “put a new face to the bar,” the Respondent altered the staff so that the bartenders and waitstaff consisted of the Complainant and six women who were all under 30 years old.

The Complainant successfully established a prima facie case of discrimination based on age and gender, and the Respondent failed to rebut the case because it declined to participate in the MCAD hearing. The Respondent similarly defaulted on the claim of retaliation. The hearing officer awarded lost wages for a 21-month period and emotional distress damages.

Overview: In Robar v. Int’l Longshoremen’s Association, Local 1413-1465, Fortes, the MCAD found in favor of the Complainant and awarded emotional distress damages for her claims of gender-based discrimination and retaliation. The Complainant, a woman with experience and certification in forklift operation, alleged that the Respondents refused to hire her as a forklift operator due to her gender and non-member status with the union.

The hearing officer found direct evidence of gender discrimination underscoring the fact that the union never hired women to operate the forklifts. The Respondents failed to refute this evidence, providing ostensibly false reasons for their actions. There was also evidence that the Respondents denied union membership to the Complainant because she had not worked enough hours but admitted several men who did not meet that requirement. The Complainant failed to put forth a prima facie case for retaliation, however, because the events in question lacked temporal proximity and the alleged harm was hypothetical. In addition to emotional distress damages, the hearing officer imposed a civil penalty against the Respondent union.

Overview: In Eslinger v. MA Department of Transportation, the MCAD found in favor of the Respondent, dismissing a claim of gender discrimination from MassHighway’s former Deputy Chief Engineer of Bridges and Asset Management. The Complainant had alleged that she was the victim of gender discrimination when she was reassigned to an inferior MassDOT position and was passed over for a Deputy Chief role following a department-wide reorganization.

Though lacking direct evidence, the Complainant successfully set forth a prima facie case of gender-based discrimination under the three-stage burden-shifting framework set forth in McDonnell Douglas Corp. v. Green. The Respondent, however, provided credible evidence that the Complainant was reassigned because of consolidation required by the enactment of the Transportation Reform Act. The Complainant failed to show that the Respondent acted with a discriminatory motive or state of mind when carrying out the required reorganization.

Overview: In Lapete v. Country Bank, the MCAD found in favor of the Complainant and awarded back pay and emotional distress damages. The hearing officer determined that the Respondent bank failed to provide a reasonable accommodation for the Complainant’s disability—post-partum depression following the birth of her son via emergency C-section—and improperly terminated the Complainant instead of granting a reasonable request for a brief extension of medical leave.

Although the Complainant had been on leave for more than the 12 weeks afforded by statute and the FMLA, the Complainant met her obligation to engage in an interactive dialogue and keep the Respondent informed as to her condition. The Respondent, conversely, arbitrarily terminated the Complainant without engaging in any interactive dialogue. At the time of her termination, the Complainant was only seeking a few additional weeks of leave and not an indefinite extension. The hearing officer reasoned that sole reliance on the 12-week leave period required by the FMLA would be misguided because “Massachusetts disability law requires a more flexible approach” in determining what constitutes reasonable accommodation.

Overview: In Tinker v. Securitas Security Services and Hussain, the MCAD found in favor of the Complainant and awarded emotional distress damages for discrimination based on sex/gender, gender identity, and sexual orientation. The Complainant, who previously identified as a woman and a lesbian, notified the Respondent that he was transgender and was transitioning to a man. There was credible testimony that the Complainant’s direct supervisor persisted in making very offensive comments, first about the Complainant’s female gender and sexual orientation and then later about his about his transgender identity.

The hearing officer concluded that Securitas did not take seriously any of the concerns that the Complainant raised with managers. Further, denials about being on notice of the conduct were not credible because the offender was a supervisor, and an employer “is vicariously liable for unlawful harassment committed by as supervisor upon whom it confers authority.” The offending supervisor was also individually liable as the perpetrator of the harassment.

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.

Aside from cases involving direct or “smoking gun” evidence, which is rare, proving an employment discrimination claim is often nuanced and accomplished through the use of circumstantial evidence. As the Supreme Court in Rogers v. Missouri Pacific has long recognized, such evidence can even be the most powerful of the two:

Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.