The Massachusetts Commission Against Discrimination has ruled that a hysterectomy qualifies as a handicap since it impairs a "major life function." In a 30 page ruling the Commission stated that "the plaintiff suffered from permanent physical, hormonal and psychological effects, along with post-surgical complications resulting from complete removal of her reproductive organs. Moreover, the surgery and its residual effects, including induced menopause, the inability to bear children, and depression would have long term effects on Complainant."

RECOVERY FROM INJURY – NOT HANDICAP

Where an employee had recovered from a knee injury his action for handicap discrimination failed because the employees temporary disability did not constitute a handicap pursuant to chapter 151B.

EMPLOYEE HANDBOOK NOT CONTRACT

Massachusetts long has regarded the relationship between employer and employee as an "at will" relationship. That ideal was furthered recently when the Court ruled that an employee handbook must be able to show a "definite period of time of employment" in order for a contract to be found in the handbook.

Nevertheless, employer’s can be found to be liable when they do not follow the termination procedures set out in their employee handbooks. It is important that employers follow their own termination procedures as set out in their employee handbooks or manual or they will be liable to a fired employee.

When an employee files a claim against an employer with the MCAD, the claim must be procedurally correct or the employee’s eventual Superior Court claim may fail. In a recent action, the Court ruled that since the employee’s claim before MCAD failed to state the particulars which gave rise to the claim, the Superior Court claim must be dismissed for not having been preceded by a proper MCAD filing.

SAME SEX HARASSMENT

One of the new twist on the harassment issue has become "same sex" harassment. Although female vs female is not uncommon, more and more complaints are arising from male vs male claims. The real question may come down to "locker-room humor" or "sexual harassment."

Early next year, the Supreme Court will take on the issue and the struggling presently encountered by the Courts may come to an end. This struggle arises from the Court’s old view that when men or women complain of sexual advances by supervisors who are gay or lesbian, the protections afforded the complainant by anti-discrimination laws apply. However, the couts have rejected harassment claims when everyone involved is of the same sex and no one is a homosexual. This approach may quickly come to an end.

In Volume 1 Issue 2 we wrote about Arbitration Clauses and their possible effect on claims of discrimination. Recently the Massachusetts Commission Against Discrimination has ruled that claims arising under chapter 151B s.5 are "public wrongs" as opposed to private wrongs and are not bared by "Arbitration Clauses." The Commission discussed the purpose of Chapter 151B as "creating a category of actions defined as ‘unlawful practices’¼ The term ‘unlawful’ makes it clear that these practices are not merely private wrongs but are contrary to the law and policy of the Commonwealth.

OBESITY AS A HANDICAP

An employee recently filed a discrimination claim against his employer alleging discrimination because of his obesity. The MCAD rejected his claim because it appeared he had voluntarily "quit" his job, however, the Commission awarded him damages for the emotional harm he suffered from continual harassment by other employees because of his size.

In a recent MCAD case, an employee was able to show, by the evidence, that there had been a dating relationship between the employee and a supervisor, that after the relationship ended, the employee was sexually harassed by the supervisor, and then, eventually fired for alleged wrongdoing. The Commission determined that the "alleged wrongdoing" was pretextual and therefore the employee was entitled to back pay, benefits, and an award for emotional distress damages.

REASONABLE ACCOMODATION

Where reasonable accomodation is a concern, the real issue may lie in the "suitability" of the employee for the position. The MCAD recently ruled that where an employee was "ill-suited" for a position, the issue of "reasonable accomodation" did not arise.

SEX HARASSMENT REQUIRES NOTICE TO EMPLOYER

US Court of Appeals has ruled that in cases where employees are sexually harassed by their supervisors, but they do not report it to their supervisor's manager a city was found not liable for a "hostile environment."

CONTINGENCY FEE AGREEMENT DOES NOT BAR AWARD OF ATTORNEY FEES

The Massachusetts Appeals Court recently ruled that even thought an attorney and his client had a contingency fee agreement, a judge did not act properly in denying the plaintiff attorney's fees after the plaintiff had won a jury verdict.

PROPOSED BILL WOULD EXPAND TIME FILING FOR DISCRIMINATION CLAIMS

Bill S.744 would allow discrimination plaintiff's up to three years to file a claim with MCAD. The period currently is 6 months. Many feel that victims of sexual harassment feel ashamed and responsible for the harassment.

READ THOSE "APPLICATION' CLAUSES CAREFULLY

The Massachusetts Court of Appeals recently ruled that when an employee "signs" an application form, and the form contains clauses binding the applicant to arbitration if hired, claims for sexual harassment and/or discrimination may be covered by the clause and require the applicant, after hiring, to arbitrate any complaint of harassment or discrimination.

NOTICE REQUIREMENT OF FMLA STRUCK DOWN

Under the Family and Medical Leave Act, a company must inform an employee that he/she is not covered by the Act within two days, if leave is requested, otherwise, the employee is considered covered by the Act. A US District Court has struck down this regulation of the Labor Department within the past 60 days.

PORTABILITY LAW BEGINS

The Health Insurance Portability and Accountability Act begins to take effect June 1. Under the Act, individuals who joins companies that offer health coverage can avoid a period in which they are not covered by health insurance for a pre-existing condition. The maximum exclusion period is 12 months, but it may be reduced by one month for every one month an individual was covered by health coverage in a previous job.

Companies must provide departing/terminated employees with a form that clearly informs them how long they have been covered under the company's health plan.

There are 3 catches: (1) if there is a break in coverage exceeding 62 days, the 12 month exclusion period comes back; (2) the new employer can still make the new employee wait one to six months to enroll in its health plan; (3) your pre-existing condition may not be covered by the new employer's health plan.

Most importantly, the Act only applies to GROUP PLANS.

OUTSOURCING DYING?

A recent US Supreme Court ruling may help to stem the tide of outsourcing - the use of outside contractors to perform work usually done by employees of a business. Outsourcing allows companies

The Supreme Court stated that the Employee Retirement Income Security Act of 1974 not only protects vested retirement benefits but other benefits as well. Although companies can cut benefits as a business decision, they can't fire workers, then contract those same jobs out for the primary purpose of cutting costs. The case involved the Santa Fe Railway.

PERCEIVED AS FUTURE POSSIBLE HANDICAPPED

A Massachusetts employee recently won a jury verdict on the basis of "Potential Handicap." He claimed he was fired because the company feared that he would eventually become handicapped and force them to greater expense. He had had a previous injury and recovered. Thereafter, he returned to work and all was well for approximately three months. He was involved in a minor accident, was uninjured and minor damage to his truck. No other vehicles were involved. He was terminated the next day for gross negligence. The company violated its three-accident discipline policy by terminating him. The employee alleged that the company terminated him because he was damaged goods and they feared the possibility of future compensation payments. The award was for $400,000+