Employment Law Advisor

Recent Cases Expand Antidiscrimination Laws

December 1, 2013

Three recent Massachusetts cases expand employee rights under the antidiscrimination laws. Each case impacts a diverse aspect of the state’s antidiscrimination laws, including the issue of attorney-client privilege applying to an internal investigation, claims of associational discrimination, and remedies for civil harassment.  This Employment Law Advisor will review these recent decisions and the implications of each for Massachusetts employers. 

Employer Internal Investigation Documentation and Waiver of Attorney-Client Privilege

In Lisa Koss v. Palmer Water Department, et al, Civil Action No. 12-30170-MAP (D. Mass. Oct. 7, 2013), Magistrate Judge Neiman of the United States District Court for the District of Massachusetts addressed issues concerning an employer’s sexual harassment investigation and waiver of the attorney-client privilege and work-product doctrine.

Employed by the town of Palmer, Koss had worked successfully as an administrative assistant for the Water Department.  Koss claimed that starting in 2008 she was exposed to a hostile work environment and subjected to sexual harassment, by the department’s treasurer, William Cole.  Cole purportedly made frequent sexual comments to Koss, and in at least one instance, touched Koss inappropriately.  According to Koss, she first reported Cole’s alleged behavior to a supervisor in September 2011 and then continued to report the matter to the town, as the behavior allegedly continued.  In May 2012, Koss’s work schedule was reduced from forty hours to sixteen hours per week without benefits, and then three months following this reduction Koss was terminated.   

Koss filed a lawsuit against the Town of Palmer in the United States District Court for the District of Massachusetts claiming she was terminated, at least in part, for filing a discrimination complaint with the Massachusetts Commission Against Discrimination and the federal Equal Employment Opportunity Commission.  During this time, the town employed attorney Henry Rigali to conduct an investigation regarding Koss’s complaints.  Following the investigation, Palmer responded to Koss’s complaint arguing the Faragher-Ellerth affirmative defense, based on the Supreme Court of the United States’ decisions  in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998), that the town “exercised reasonable care to prevent and promptly correct any alleged harassing behavior and Plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities to avoid harm.” Koss consequently moved to compel the production of the investigation’s documentation, which Palmer opposed on the basis of the attorney-client privilege and work-product doctrine.  Judge Neiman granted Koss’s motion to compel.  Palmer moved for reconsideration that ruling. Thereafter, Judge Neiman denied in part Palmer’s, granting only the redaction of minor parts of the documents concerning either direct communication between the town’s law firm and the town, as separate from the investigator Rigali, and material unrelated to the investigation.

Citing the case of Angelone v. Xerox Corp., No. 09-CV-6019, 2011 WL 4473534, at *3 (W.D.N.Y. Sept. 26, 2011), Judge Neiman quoted that “when a Title VII defendant affirmatively invokes Faragher-Ellerth defense that is premised…on the results of an internal investigation, the defendant waives the attorney-client privilege and work product protections for not only the report itself, but for all documents, witness interviews, notes and memoranda created as part of and in furtherance of the investigation.”  Judge Neiman went on to distinguish the facts at hand from two cases raised by Palmer, McKenna v. Nestle Purina PetCare Co., No. 2:05-cv-0976, 2007 WL 433291 (S.D. Ohio Feb. 5, 2007) and Waugh v. Pathmark Stores, Inc., 191 F.R.D. 427 (D. N.J. 2000).  In McKenna, counsel provided legal advice to the defendant regarding the internal investigation but “did not conduct interviews, make disciplinary decisions, or otherwise participate in the investigative process itself.” Drawing a distinction, Judge Neiman noted that the law firm for Palmer was not only consulted on the investigation, but were “intimately connected to, if not controlling of, the investigation by Mr. Rigali.”  Turning to Waugh, in which the defendant’s attorney had only two brief interactions concerning the investigation in solely a legal advisor capacity, Judge Neiman observed that Palmer’s attorneys, “although not personally conducting interviews, not only directed and collaborated with Mr. Rigali, but exercised significant control and influence over him throughout the investigation.” The law firm, he wrote, was “part and parcel of the investigation which goes to the heart of Defendant’s affirmative defense.”  This ruling in Koss serves as an important reminder to an employer to consider carefully whom it chooses to conduct internal investigations. The case also raises the probability that an investigation conducted by counsel will not be deemed a privileged communication.   

Associational Discrimination under Mass. Gen. Laws
c.151B §4(16)

In Marc Flagg v. AliMed, Inc., No. SJC-11182 (Mass. July 19, 2013), Judge Botsford of the Supreme Judicial Court of Massachusetts addressed the scope of the Commonwealth’s antidiscrimination statue, M.G.L. c.151B, §4(16), evaluating whether the statue prohibits discrimination against an employee based on the handicap of an individual with whom the employee is associated.  Flagg, who had worked successfully for AliMed for eighteen years, received through his employment benefits including family medical insurance.  In December of 2007, Flagg’s wife had surgery to remove a brain tumor, placing responsibility of caring for their children with Flagg as his wife underwent rehabilitation.  Needing to leave work from 2:55 P.M. to approximately 3:20 P.M. to pick up his daughter from school, Flagg requested permission to do so from his manager at AliMed. Flagg’s manager told him to do what he needed to in order to take care of his family.  From December 27, 2007 to January 15, 2008, Flagg began picking up his daughter.  Flagg did not “punch out” during these times, a practice of which AliMed management was aware of and did not address with Flagg.  On February 4, 2008, AliMed terminated Flagg, citing his failure to punch out during these absences and consequently receiving payment for time in which he did not work. 

Flagg filed suit against AliMed alleging, discrimination under M.G.L. c.151B based on the claim that AliMed fired Flagg because his wife’s continuing, severe and costly medical condition was the responsibility of AliMed under the company’s medical insurance.  AliMed moved to dismiss Flagg’s complaint, which was allowed by the Massachusetts Superior Court.  In allowing the motion, Judge Brady of the Superior Court noted that the concept of such associational discrimination is not recognized under Massachusetts law. 

In appealing the Superior Court’s decision, Flagg argued that associational discrimination is within the scope of c.151B, §4(16), as such discrimination causes both direct injury to and significantly impacts an employee’s ability to participate fully in the workplace, both of which the statute was designed to avert.  AliMed argued in opposition that the language of c.151B, §4(16) pertains solely to handicapped employees, rather than extending to employees associated with a handicapped individual.  Judge Botsford disagreed.  Concluding that AliMed’s interpretation of c.151B, §4(16) was too narrowly construed, she wrote that “interpreting §4(16) to encompass a claim of associational discrimination finds support in the language and purpose of that section and c.151B more generally, in the longstanding and consistent interpretation given to the statute by the Massachusetts Commission Against Discrimination…, and in the analogous provisions of Federal antidiscrimination statutes.” 

Defining the term generally, Judge Botsford noted that associational discrimination is defined as a claim in which the plaintiff is the victim of discriminatory animus directed at and due to the plaintiff’s association with a member of a protected class.  Holding that c.151, §4(16) prohibits such associational discrimination based on handicap, Judge Botsford examined the Massachusetts Legislature’s intent in enacting §4(16), as well as its instructions to the Massachusetts Commission Against Discrimination (MCAD) under M.G.L. c.151B, §9 to construe c.151B “liberally for the accomplishment of its purposes.” Consequently finding that §4(16) should be interpreted broadly in order to achieve its remedial aims, Judge Botsford found that the required discriminatory animus is present when a satisfactory employee is subject to an adverse employment decision based on the employer’s hostility toward the employee’s handicapped spouse, resulting in the employer treating “the spouse’s handicap as a characteristic bearing on the employee’s fitness for his job.”  In reaching the conclusion that the protections of c.151 extend beyond employees directly targeted by discriminatory animus, but to all employees adversely affected, Judge Botsford noted that both Title VII of the Civil Rights Act of 1964, and the Rehabilitation Act of 1973, have been interpreted to cover claims of associational discrimination.  Further, the MCAD decisions for the previous thirty years, have interpreted c.151B, §4, to pertain to associational discrimination including discrimination based on an employee’s association with an individual who is handicapped. Concluding the opinion, Judge Botsford held that associational discrimination based on handicap is prohibited under §4(16), reversing the Superior Court’s dismissal of Flagg’s discrimination claim.  The decision in Flagg represents a notable broadening of Massachusetts antidiscrimination laws, expanding the claims available to employees. 

Under the ADA, an employer is not required to provide an employee with a reasonable accommodation due to an associate’s disability.

Writing a concurrence, Judge Gant, with Judge Cordy joining, addressed this issue of claim expansion by emphasizing the narrow scope of the holding.  While agreeing that, under the particular facts presented, Flagg had presented a cognizable claim of associational discrimination under §4(16), Judge Gant noted, however, that the language of the statute “does not suggest that it was intended to protect an employee from dismissal because of a family member’s handicap, where the employee himself is not handicapped.”  Judge Gant expressed further that the MCAD had handled few cases regarding associational discrimination, none of which provided detail analysis supporting the commission’s findings.  He noted that federal courts have held that under the ADA an employer is not required to provide an employee with a reasonable accommodation due to an associate’s disability.  Urging the Court to “be reluctant to interpret … [§4(16)] beyond the type of case at issue here,” Judge Gant observed that associational discrimination claims under the ADA fall narrowly into either instances such as the one at hand concerning family medical insurance or instances where an employer fears that an employee may become disabled due to their association with a disabled individual, such as through contact with an individual with the human immunodeficiency virus.  While the issue of whether the Court will continue to further interpret M.G.L. c. 151B, §4(16) to include other instances of associational discrimination remains, Flagg does indicate the Court’s willingness to expand Massachusetts antidiscrimination laws.  The decision serves as a reminder to employers to be cognizant of such issues and fully document the actions leading up to termination decisions.

Distinct Remedy Created Under Mass. Gen. Laws c.258E

In Beatrice Shipley v. Nagel Cutrell Wendell & Associates d/b/a The Endodontic Group and Gregg M. Nagel, Civil Action No. 13-647-A (Middlesex Super. Sept. 26, 2013), Judge Wilkins of the Massachusetts Superior Court addressed whether an employee seeking damages from an employer for civil harassment under Mass. Gen. Laws c.258E must show that the harassment was motivated by a specific form of discrimination as set out in Mass. Gen. Laws c.151B.  Mass. Gen. Laws c.151B provides protection for employees from workplace harassment due to discrimination based on a protected class, such as race, sex, religion or disability.  Chapter 258E, which was passed in 2010, permits an employee that has been subjected to workplace harassment to obtain a restraining order and seek damages, costs and attorney’s fees.  Mass. Gen. Laws c.258E defines harassment broadly as “3 or more acts of willful and malicious conduct aimed at a specific person” that is intended to and does cause “fear, intimidation, abuse or damage to property…or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of” a specific Massachusetts law. 

In Shipley, the plaintiff worked as a patient coordinator at Endodontic and was supervised by  dentist Gregg Nagel.  Shipley claimed that Nagel treated her in an offensive and harmful manner, engaging in threatening behavior such as pinching, touching, pushing, and making threatening statements.  In 2012, Shipley claimed she was coerced, due to Nagel’s offensive and intimidating behavior, into resigning from her position.  Shipley filed suit based on both a sexual harassment claim under Mass. Gen. Laws c.151B and harassment under Mass. Gen. Laws c.258E. 

In moving to dismiss Shipley’s complaint, Endodontic argued that Shipley lacked standing to enforce any alleged criminal violations which were the basis of the c.258E claim and that c.151B provided the sole remedy for any employment discrimination claims.  Judge Wilkins disagreed.  While acknowledging that c.151B is the sole remedy for sexual harassment claims, Judge Wilkins found that Shipley’s claims that concerned harassment that was not due to discrimination could proceed under the civil harassment statute of Mass. Gen. Laws c.258E.  Noting that as c.151B, §5 allows a plaintiff to apply to the court for injunctive relief pending a determination from the MCAD, the Judge held that c.151B and c. 258E “may be harmonized completely by allowing anti-harassment complaints to proceed with respect to injunctive relief, regardless of exhaustion of remedies.”  In so finding, he noted that c. 285E provides “a comprehensive remedial scheme designed to provide a quick and effective means of obtaining equitable relief to prevent harassment.” The Shipley case is important because it appears to provide plaintiffs with a distinct remedy under c. 258E, permitting claims of civil harassment that fall outside the set scope of c.151B to be brought.  Notably, and unlike c.151B, claims under c.258E may be brought without exhausting remedies through the MCAD.  While the question of whether the Massachusetts courts will apply this decision broadly remains, the ruling in Shipley does indicate a departure from the traditional approach that a claim of harassment must spring from a particular motivation concerning a protected class.       

Each of these cases represents a noted expansion of Massachusetts antidiscrimination laws.  Most significantly, these cases underscore the Massachusetts courts’ willingness to expand the scope and breadth of protections offered to employees.

If you have questions about this topic, please contact any member of our Employment Law Group.

ELA Banner

Did you know subscribing to our e-newsletters is absolutely free?