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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

Disclaimer:  The content presented in this blog is for general information only, is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our blog authors at hrlawupdate@verrilldana.com, the submission of a comment or question does not create an attorney-client relationship between the Firm and you. 

Entries in Discrimination (28)

Tuesday
Jul252017

The Bay State Rules Qualified Medicinal Marijuana User Has Civil Remedy Against Her Employer

Last week, the Supreme Judicial Court of Massachusetts issued an opinion in Cristina Barbutos v. Advantage Sales and Marketing, LLC, SJC-12226 (Ma. July 17, 2017), finding that an employee qualified to use marijuana under the Commonwealth’s medicinal marijuana statute had a cause of action against her former employer through the Commonwealth’s handicap discrimination statute.  The opinion reversed the lower-court’s dismissal of the former employee’s cause of action, but simultaneously found that the medicinal marijuana act itself did not contain an implied statutory private right of action.

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Friday
Feb262016

While There WAS No "I" in Defendant, There Is Now: New Hampshire Supreme Court Finds Individual Liability in State Anti-Discrimination and Anti-Retaliation Statutes

Earlier this week the New Hampshire Supreme Court issued a decision in EEOC v. Fred Fuller Oil Company, Inc., finding that New Hampshire’s anti-discrimination statute imposes individual employee liability for aiding and abetting in discrimination in the workplace and that New Hampshire’s anti-retaliation statute similarly imposes individual employee liability.

The case was before the Supreme Court on two certified questions from the United States District Court for the District of New Hampshire. Specifically, the questions before the court were:

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Thursday
Feb042016

With a Little Help from my Friends: 8th Circuit Assumes Without Deciding that Associational Bias Claims Exist Under Title VII

Update regarding an issue we’ve previously blogged about. The Eighth Circuit assumed without deciding that individuals can sue for retaliation or discrimination under Title VII based on their association with a member of a protected class.

The Second, Fifth, Sixth and Eleventh Circuits have explicitly ruled the statute permits “associational discrimination” claims. Following a ruling from the U.S. District Court for the Eastern District of Arkansas, in Hutton v. Maynard, the Eighth Circuit assumed without deciding that Herman Hutton, the white former police chief of England, Arkansas, engaged in legally protected conduct when he sought to promote a black woman to a supervisory position. As the Court put it, “It is unclear whether Hutton also attempted to assert a claim of associational race discrimination separate and distinct from his claim that he was terminated in retaliation for seeking to promote an African American staff member. Even if he did, our analysis would not change. Hutton’s desire to promote an African American is the only ‘association’ he asserts and is the only purported statutorily protected activity at issue.” (Emphasis supplied.) (Ultimately the Court concluded that Hutton could not connect that conduct to the decision to fire him.)

We’ll continue to monitor this issue, but the trend looks like it’s moving towards recognizing associational discrimination as a viable Title VII claim nationwide.

Wednesday
Jan062016

Refusal of Employee’s Request for “Peaceful Calm Environment” Does Not Constitute Failure to Accommodate Under the ADA

Last week Judge Joseph N. Laplante of the United States District Court for the District of New Hampshire issued a decision in Posteraro v. RBS Citizens, N.A., Civil No. 13-cv-416 (D.N.H. Dec. 29, 2015), on Defendants’ Motion for Summary Judgment. The case involved a former Citizens Bank employee who was terminated from Citizens Bank after failing to return to work after a leave of absence for her medical conditions—post-traumatic stress disorder (“PTSD”), depression, and anxiety. Ms. Posteraro brought claims for disability discrimination (for failure to provide a reasonable accommodation); sexual and disability harassment causing a hostile work environment (including allegations that her tenure at Citizens Bank was “rife with gender and disability-based harassment”); intentional infliction of emotional distress; wrongful discharge; retaliation (after she opposed the alleged sexual harassment and pursued accommodations for her disabilities); and constructive discharge.

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Wednesday
Dec232015

Come All Ye Faithful: Catholic School Receives Coal for Christmas in Recent Massachusetts Ruling

Last week, a Massachusetts state court ruled on a motion for summary judgment finding that an all-girls Catholic School (Fontbonne Academy in Milton, Massachusetts) had violated Matthew Barrett’s civil rights when it withdrew a job offer after Barrett listed his husband as his emergency contact person on the school’s “new hire” employment form. The school rescinded the employment offer noting that it had an expectation that employees would model the school’s values—including the Catholic Church’s opposition to same-sex marriage. Barrett than sued the school alleging violation of state non-discrimination law, claiming that the decision violated state law because the school refused to hire him “because of . . . [his] sexual orientation.”

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Wednesday
Dec092015

Prospero Ano y Felicidad: Feliz Navidad and an "English Only" Policy in the Workplace

As Jose Feliciano wishes us a Merry Christmas from the bottom of his heart, it is important that we as employers recognize that in order to maintain a diverse workforce we are going to be faced with some difficult questions—including whether an “English Only” policy is necessary or appropriate to accomplish our business goals. While Title VII does not specifically protect an employee’s right to speak a language other than English in the workplace, employers must recognize that both the EEOC and the NLRB take the position that these type of “English Only” policies may be both discriminatory and may also violate the NLRA by inhibiting employees’ abilities to discuss the terms and conditions of employment.

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