Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on race or color, sex, national origin and religion. It does not specifically prohibit discrimination based on sexual orientation, however. In fact, in Zarda v. Altitude Express, Inc., the Second Circuit dismissed the plaintiff’s claims of sexual orientation-based discrimination since this type of discrimination is not covered by Title VII. On Monday, however, the Second Circuit reversed that decision, finding that discrimination based on sexual orientation is included under Title VII.

Due to the wording of Title VII, which did not explicitly list sexual orientation as a protected category with regard to workplace discrimination, employees have long been vulnerable to sexuality-based discrimination. To be clear, no federal law actually prohibited discriminatory employment practices against LGBT people. State laws were, and are, a different story. Even though the Equal Employment Opportunity Commission (EEOC) announced that it viewed sexual orientation-based discrimination as a Title VII violation, its interpretations have no authority with regard to federal law.

For years, sexuality or sexual orientation-based discrimination cases have been regularly dismissed. But as times change, workers have increasingly begun filing lawsuits for this type of discrimination. Last year, the Seventh Circuit Court of Appeals made a landmark decision in Hively v. Ivy Tech Community College, finding that sexual orientation discrimination is covered by the sex discrimination provision in Title VII. In the Hively case, the plaintiff “described a situation in which, holding all other things constant and changing only her sex,” the discrimination would not have occurred.

Trump Weighs In

A 2010 discrimination case involving Donald Zarda, a sky-diving instructor from Long Island, was found in favor of Altitude Express, his employer. According to the lawsuit, Mr. Zarda told his female sky-dive partner that he was “100 percent gay.” Her boyfriend complained to Altitude Express, and Zarda was terminated as a result. Zarda then filed his own lawsuit, but the Second Circuit affirmed the original decision. After Zarda’s death in a 2014 sky-diving accident, his appeal was continued by his estate. The Trump Administration even got involved, arguing that the protections of Title VII do not apply to sexual orientation. A MA employment law attorney can help you protect your rights if you’ve been discriminated against at work.

But the Second Circuit overturned its previous ruling in February, finding that sexual orientation discrimination is encompassed by the sex discrimination provision. Although the court admitted that this was likely not the provision’s original intent, deciding to include sexual orientation discrimination follows in line with the decision to expand other aspects of Title VII, such as including sexual harassment.

The Second Circuit’s decision holds that: “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor.” As such, employment discrimination based on sexual orientation qualifies as sex discrimination “because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”

This decision is welcome news for millions of LGBT workers, but also for anyone who wishes to see an increase in workplace justice and equality. If you are being discriminated against because of your sexual orientation, you don’t need to suffer in silence anymore. A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of workplace discrimination. Continue reading

A whistleblower is someone who exposes information about an illegal or unethical activity against the government or a private entity. When the activity is being committed against the U.S. government, the whistleblower may bring what is known as a qui tam lawsuit under the False Claims Act, which rewards whistleblowers when funds lost to fraud are recovered as a result of the information provided.

If you are aware of fraudulent activity against the government, you may be able to help stop the fraud and reap immense financial benefits. Fraud against the government doesn’t only hurt the government. For example, Medicare and Medicaid fraud has negative consequences for recipients of these programs, as well as taxpayers in general. A Boston whistleblower attorney can help you determine how to proceed if you are aware of fraudulent activities being committed against the U.S. government.

Personal and Professional Protections

In addition to being rewarded for their unique information, whistleblowers also receive protections under the False Claims Act. Not surprisingly, blowing the whistle on a large corporate entity can have personal and professional consequences, especially if that entity happens to be the whistleblower’s employer. Even so, it is a courageous, important act to expose fraud that could put the lives of patients, soldiers and the general public in grave danger. As such, whistleblowers are protected from retaliation, among other consequences.

Once you report the fraudulent or illegal activity, the government will begin an investigation of the allegations, from which point it will decide whether to intervene. If the government decides not to get involved with the case, you can continue with your qui tam case. However, such cases have a much better chance of success with the government’s involvement.

Whistleblower Awards May be in the Millions

If the individual or entity is found liable, they may have to pay up to three times the amount of funds lost to the fraudulent activity. The whistleblower is typically awarded between 15 and 25 percent of the recovered funds. Considering that recoveries are often in the tens-of-millions of dollars, 15 to 25 percent can be an extremely large sum of money.

In 2017, whistleblowers filed 669 qui tam suits, according to the Justice Department. Whistleblowers in the U.S. earned more than $392 million in 2017 by helping the government recover $3.4 billion in misappropriated or stolen funds. Below are some of the top whistleblower awards of 2017.

  • Mylan Inc. – $465M settlement
  • Shire Pharmaceuticals LLC – $350M settlement
  • Allied Home Mortgage – $268M verdict
  • eClinicalWorks – $155M settlement
  • Life Care Centers of America Inc. – $145M settlement
  • Bechtel Corp. / URS Energy and Construction Inc. – $125M settlement
  • Agility Public Warehousing Co. – $95M settlement
  • PHH Mortgage – $65M settlement
  • CA Inc. $45M – settlement
  • ADS Inc. $16M – settlement

A MA whistleblower lawyer can help you protect your rights if you are aware of fraudulent, illegal or unethical activity. Continue reading

If you are being treated differently at work based on your religious beliefs or practices, you may be a victim of religious discrimination. In the United States, individuals are protected – by federal law – against this type of discrimination in the workplace.

It is common for victims of religious discrimination to also be discriminated against for other unlawful reasons, such as race or country of origin. A Muslim immigrant from Iraq, for example, may be discriminated against for his religion, but also due to his dark skin (race) and his Middle Eastern origins (culture).

Which Religions are Protected?

Religion encompasses religious beliefs, practice, and all aspects of observance. For the purpose of workplace discrimination, the religion in question doesn’t need to be traditional, such as Christianity or Judaism. In fact, the individual’s religion can be comprised of entirely unique beliefs, as long as they are meaningful and sincere. A MA employment law attorney can help you protect your rights if you’ve been discriminated against at work due to your religious beliefs.

In most cases, workplace discrimination based on religion falls into one or more of the following categories:

  • Religious preference-based employment decisions
  • Religious preference-based harassment
  • Failure to provide reasonable accommodations for religious practices

Examples of Workplace Religious Discrimination

As with any type of discrimination, religious discrimination can take many forms. Common examples include:

  • Hiring, firing or promoting an individual based on religious faith, or lack thereof. An example of this type of discrimination would be firing an employee because she is an Orthodox Jew and can’t work on Saturdays.
  • Harassing an individual based on their religion. This can take the form of mocking an employee, or asking them to remove religious clothing because it violates the company dress code.
  • Failure to provide necessary accommodations. This the most common type of religious discrimination in the workplace. An example of failure to accommodate occurs when an employee is refused his request to display a religious icon on his desk.

Cases of discrimination based on religion have skyrocketed in recent years. According to the United States Equal Employment Opportunity Commission (EEOC), religion-based claims increased by 41 percent between 1997 and 2015. A Boston workplace discrimination attorney can help you determine how to proceed if you’ve been discriminated against at based on your religion. Continue reading

Sexual harassment in the workplace is a form of gender discrimination. As such, it is illegal. Discrimination, including sexual harassment, can create an environment that is hostile, intimidating, or offensive. The situation can be even worse when the person doing the harassing is your boss. In the workplace, a supervisor is inherently in a position of power over his or her subordinates. If your boss is making sexual advances toward you, or engaging in any type of sexually-harassing behavior, what should you do?

Although overt sexual advances can be particularly awkward and intimidating, even less obvious conduct can fall under the category of sexual harassment. Some examples of sexual harassment in the workplace include:

  • inappropriate or offensive comments about gender,
  • repeated comments about an individual’s appearance, and
  • inappropriate comments made through email.

For example, if your boss routinely makes comments about the incompetence of women in the workplace, in front of a female co-worker, this may be considered sexual harassment.

When sexual harassment comes in the form of flirtation, repeated requests for dates, or outright sexual advances, the work environment can become quite terrifying for the targeted employee. A Boston employment law attorney can help you recover damages if you’ve been the victim of sexual harassment in the workplace.

Title VII

Fortunately, sexual harassment is prohibited at the federal, state, and local level in MA. Under Title VII of the Civil Rights Act of 1964, employees can sue their employers if they suffer from this type of discrimination. Prior to filing a lawsuit, the employee must file a complaint with the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with investigating such claims. Once the EEOC completes its investigation, the employee may bring a lawsuit if no alternative resolution is reached.

According to the EEOC, “although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”

Tips for Handling the Situation

If your boss is making sexual advances toward you, you don’t need to suffer in silence. Take the steps below to protect yourself from further discrimination.

  • Save any offensive emails, texts, or voicemails from your supervisor. These could be helpful if you decide to file a claim with the EEOC, or bring a lawsuit.
  • If you are comfortable doing so, ask your boss to stop the offensive conduct. In some cases, he or she may be unaware that the conduct is bothering you.If, however, you feel too uncomfortable – or unsafe – do not address your supervisor directly.
  • Speak to your human resources department if the situation persists. HR should be supportive, and may be able to give you some direction as to how to resolve the problem. Depending on the size of the company, the HR department may open its own investigation. In some cases, however, they are of little to no help.
  • Contact an employment law attorney. Whether you end up filing a claim with the EEOC, bringing a lawsuit, or resolving the situation without such measures, an experienced MA employment law attorney can answer your toughest questions and help you determine how to proceed during this difficult time.

Continue reading

Employers are required – by federal law – to provide a safe workplace. If you are concerned that your workplace is unsafe or unhealthy, you have rights. In most cases, the first course of action is to report the hazard to your employer. If the employer is unable, or unwilling, to address the issue, you can contact the Occupational Safety and Health Administration (OSHA), the agency responsible for establishing and enforcing workplace safety guidelines, as well as investigating reports of violations.

OSHA protects workers from injuries, illnesses, and generally unsafe or hazardous working conditions. According to OSHA, employers must:

  • provide a safe, healthy workplace,
  • post the OSHA job safety notice somewhere in the workplace,
  • record all injuries, hazardous material exposures, and deaths, and
  • provide any necessary safety training.

Can I Refuse to Work?

Workers have the right to refuse to work if:

  • they reasonably believe that a workplace hazard presents an immediate risk of serious injury or death,
  • their employer fails to fix the condition,
  • there is not enough time to report the condition to OSHA, and
  • no reasonable alternative exists.

In all other cases, workers should first inform their employer of the concern in writing. Keep in mind that employers aren’t usually making the situation unsafe on purpose. In most cases, the negligence is unintentional. Speaking up may be the only thing you need to do to resolve the problem. If that doesn’t work, you may need to talk to an attorney. A Boston work injury lawyer can help you determine how to proceed if you’ve been injured in a workplace accident.

Employer Retaliation

Both OSHA and state laws protect workers who report violations from employer retaliation. Essentially, this means that a worker cannot be demoted or fired, or have their pay reduced, due to having filed a complaint about workplace safety violations. If employer retaliation occurs, the worker may have his or her former position reinstated, and he or she may receive back pay. A MA work injury lawyer can help you recover damages if you’ve been injured in a work-related accident. Continue reading

According to a lawsuit filed earlier this week, female workers at Boston’s McCormick & Schmick’s seafood restaurant have been routinely subjected to sexual harassment from male co-workers and supervisors. The five women involved in the lawsuit allege that their complaints about ongoing groping and lewd comments were consistently ignored by the company.

The McCormick & Schmick lawsuit is just another example of the routine abuse and harassment faced by low-income workers, especially in the hospitality industry. Many of these women are undocumented immigrants and speak little to no English, which prevents them from coming forward about their abuse. Even if they have legal status and speak English, low-income workers may be hesitant to report harassment for fear of losing their job, and income. For many of these women, the loss of a pay check – however small – would have devastating consequences. As such, they suffer in silence.

Low-Income Workers have Legal Rights

Fabiana Santos, a prep cook at the restaurant, said she endured unwanted touching and lewd comments from a dishwasher.

“The disgusting things that happened to me made me feel dirty,” said Santos, through an interpreter. “And when I got home, I didn’t even want my kids to touch me.” A MA employment law attorney can help you protect your rights if you’ve been discriminated against in the workplace.

Another woman, Marta Romero, says that she felt powerless to stop the groping and harassment she suffered at the hands of a sous chef, who also happened to be her supervisor.

“I want other women to know that whatever type of work they do or who they are, they’re not powerless,” said Romero, through an interpreter. “They are powerful and have legal rights.” A Boston workplace sexual harassment attorney can help you determine how to proceed if you’ve been the victim of lewd or abusive behavior.

McCormick & Schmick’s Denied that Conduct Constituted Sexual Harassment

Despite repeatedly reporting the sexual harassment to the Houston-based restaurant chain, all five women involved in the lawsuit said they were ignored. According to the lawsuit, the company’s human resources department did impose some disciplinary actions against certain employees, but the company denied that the conduct reached the level of sexual harassment.

The five women eventually went to the U.S. Equal Employment Opportunity Commission (EEOC), which ruled in their favor. According to the lawsuit, the EEOC ruled in 2015 that there was cause to believe that McCormick & Schmick’s workers had engaged in sexual harassment. As such, the women were able to proceed with their lawsuit, which was filed on Tuesday in Boston’s Suffolk County Superior Court.

Domestic Workers are Especially Vulnerable

Female workers in the agricultural, hospitality, hotel, and domestic industries have the highest risk of workplace sexual harassment. Domestic workers have the greatest challenge due to the nature of their jobs.

“There is no human resources department,” said Marisa Senteno, the National Domestic Workers Alliance’s enforcement program manager. “You don’t have co-workers, so how are you going to prove that these things are happening?” Continue reading

Sexual harassment has been a major topic of discussion in recent months. This should be no surprise, considering how widespread the problem has been for decades, centuries, probably since the beginning of time. The modern concept of sexual harassment is relatively new, however, dating from the 1970s onwards. And women’s voices are finally being heard.

Workplace sexual harassment is a violation of human rights and a shockingly common form of sex-based discrimination. Sexual harassment in the workplace often goes unreported as it starts at the top. Regardless, in light of the recent Hollywood scandals, including Harvey Weinstein, Kevin Spacey and Louis C.K., women having started coming forward in greater numbers to report workplace sexual misconduct. Further, the #MeToo campaign has encouraged women to speak out, and new allegations seem to be turning up every day. One of the most recent involves Hall of Fame quarterback, Warren Moon.

The Washington Post’s Craig Whitlock recently reported that a California woman filed a lawsuit against Warren Moon, accusing the ex-football player of sexual harassment. According to Whitlock, Moon “committed sexual battery by grabbing the woman’s crotch” during a trip to Seattle earlier this year.

Moon Drugged His Victim’s Drink

The lawsuit also alleges that Moon drugged 32-year-old Wendy Haskell’s drink and pulled off her bathing suit during an October trip to Mexico. Haskell was hired in July as Moon’s executive assistant. A Boston workplace discrimination attorney can help you determine how to proceed if you’ve been sexually harassed at work.

Unfortunately, women often suffer further from the process of reporting sexual harassment.  In addition to the shame and adherence to cultural norms that frequently prevents women from speaking out, they commonly fear an onslaught of other consequences, such as work degradations, humiliation, and retaliation. Haskell was not “only” a victim of sexual harassment, she was also a victim of those consequences.

According to Haskell’s lawsuit, Sports 1 Marketing – the company she worked for, which was owned by Moon – demoted her when she made superiors aware of Moon’s actions. She alleges that Moon “required her to wear thong underwear and share his bed” when they were together on business trips. This is an egregious form of sexual abuse, and reports of such violations should never result in further punishment of the victim. A MA employment law attorney can help you recover damages if you’ve been the victim of workplace sexual harassment. Continue reading

Long and short-term disability insurance policies in Massachusetts can offer income protection when a medical problem renders you unable to work, but these policies don’t protect against job loss. Receiving disability benefits does not automatically prevent you from being terminated. However, certain situations do.

Family and Medical Leave Act (FMLA)

FMLA is a federal law that provides employees with up to 12 weeks of unpaid leave annually for personal medical issues, or to take care of an immediate family member who is ill. FMLA is often used as a type of maternity leave. Not all businesses are subject to FMLA, however. In order for FMLA to be applicable, the company must have at least 50 employees. Many people use FMLA in conjunction with short-term disability insurance, which covers at least a portion of their lost income. Some people with chronic disabilities utilize FMLA every year.

If you are on FMLA leave, you cannot be terminated unless you are absent from work beyond the 12-week period. Upon your return from FMLA leave, you must be given your former position, or one that is similar. But keep in mind, even exceeding the 12-week period by one day puts you at risk of termination. This has no bearing on short-term disability insurance benefits, however. A MA employment law attorney can help you recover damages if you’ve been been the victim of disability discrimination in the workplace.

Americans with Disabilities Act (ADA)

Under the ADA, it is illegal to terminate an employee due to a covered disability. This applies to employees who are currently on disability leave. The ADA defines a disability as a “physical or mental impairment that substantially limits a major life activity.” Businesses with 15 or more employees are subject to the ADA and are required by law to make, or offer to make, reasonable accommodations for an employee’s disability. The only exception occurs when doing so would cause “undue hardship” for the employer. The employee must inform the employer of the disability, however, and allow reasonable time to make the requested accommodation.

What’s a Reasonable Accommodation?

A reasonable accommodation can be the installation of a wheelchair ramp or Braille signage, desk modification, or the restructuring of the employee’s schedule or job duties. These are just a few examples. If it is shown that the necessary accommodations will cause the employer undue hardship, or that none exist to support the employee in that particular job, the employee can be legally terminated. However, the way in which the termination is handled is equally important. Before firing an employee due to disability, the employer must work with the employee to try multiple options. A Boston employment law attorney can help you determine how to proceed if you’ve been unlawfully terminated due to a disability.

To recap, employees can be fired while on disability if they exceed their 12 annual weeks of FMLA leave, or if they are unable to perform the essential functions of their job after reasonable accommodations have been made. If you feel that you are being discriminated against due to your disability, it is in your best interest to save any correspondence you have with your employer. This could be highly useful if you decide to file a lawsuit. Continue reading

When Rick Pitino was fired for “just cause” as University of Louisville’s head basketball coach in September, the former Boston Celtics coach lost a contract worth about $38.7 million. Last week, Pitino filed a lawsuit against the university’s athletic association, claiming his employer is in breach of contract for firing him when it lacked “just cause” to do so. The lawsuit also claims that his employer failed to properly notify Pitino that he had been placed on administrative leave.

What Was the “Just Cause” for Pitino’s Firing?

According to Louisville, Pitino engaged in misconduct on three grounds:

 

  • He knew of, or was involved in, efforts to illegally incentivize basketball recruits to attend Louisville. This includes payments to Brian Bowen’s family. Ironically, although Bowen was a top recruit at the time, he’s now a non-eligible freshman.

 

  • He failed to to notify the athletic department’s compliance officers of the presence of Richard Dawkins, an alleged briber, on campus. According to Louisville, in doing so, he violated his contract. Dawkins faces decades in prison for his alleged role in multiple college basketball-related crimes.

 

  • When allegations arose about escorts being directed to have sex with certain recruits, he failed to take actions necessary to stop the behavior.

 

But Pitino denies all of the above. According to his lawsuit, Pitino “never has had any part —active, passive, or through willful ignorance —in any effort, successful or unsuccessful, completed or abandoned, to pay any recruit, or any family member of a recruit, or anyone else on a recruit’s behalf, as an inducement to attend the University of Louisville.” To support his argument, Pitino’s complaint points out that despite a government wiretap, no recorded statements of any wrongdoing on Pitino’s part are cited.

Pitino also claims that he did not  have an obligation to report Dawkins’ activities. According to his complaint, “Coach Pitino never understood that Dawkins was an agent, and Bowen’s mother stated that Dawkins was not an agent in any regard for Bowen.”

And with regards to the escorts, Pitino insists that he had zero awareness of these activities.

In addition to his complaints above, Pitino believes that the process by which his termination occurred is another issue. According to his complaint, Louisville failed to conduct a proper investigation or provide sufficient notice prior to his termination. A MA employment law attorney can help you determine how to proceed if you’ve been wrongfully terminated. Continue reading

According to advocates who help undocumented immigrant workers and low-wage women, the more vulnerable the woman, the worse the sexual harassment tends to be. One recent case in Massachusetts involved a Honduran woman who would be beckoned to a supervisor’s office via the PA system, signaling to her that it was time to perform oral sex on him. Sexual misconduct in the workplace is shockingly common, but it’s often only revealed as a secondary issue when women report other problems, such as theft of wages. “A lot of women are trained that economic issues are real problems and this sexual harassment thing is just extra added discomfort,” said interim co-director for Jobs With Justice, Gillian Mason.

Another issue faced by low-income workers is that they are often working through temp agencies. Refusing advances from their supervisors may prevent their ability to obtain permanent employment, so many suffer through it. During a sexual harassment study conducted by the Massachusetts Coalition for Occupational Safety and Health (MassCOSH), one temp worker said, “The female co-workers that wanted the permanent job through the company, they let him touch them.” A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of workplace sexual harassment.

Don’t Bother Reporting it, “This Company Always Wins.”

Over a one-year period, MassCOSH interviewed a total of 58 low-wage Latina workers in the restaurant, janitorial, factory, and hotel industries. One woman reported feeling like she was in a “prison,” fearing that she wouldn’t be able to support her child if she lost her job. Another woman, who worked at a Somerville manufacturing company, claimed that after refusing her supervisor’s advances, he made her work on a more dangerous machine. She went to a lawyer after burning her hands on the machine, but the lawyer told her to give up because “this company always wins.” So she did. Shortly thereafter, she was laid off.

According to Adrian Ventura, director of the Centro Comunitario de Trabajadores in New Bedford, sexual harassment often occurs in the vans used to transport workers to different job sites. In many cases, the van drivers double as supervisors for temp agencies. Some drivers will drop off attractive, young workers last so they can be alone in the vehicle together. If the woman refuses the driver’s advances, she risks losing her job. A MA employment law attorney can help you protect your rights if you’ve been the victim of workplace sexual harassment.

For many of these women, not speaking English presents another obstacle. Even if the company has established harassment policies and procedures for reporting this type of behavior, without a Spanish translator, many workers don’t know what to do. In the case of Judith Lucas, from Guatemala, a language barrier prevented her from reporting long-standing harassment at a scallop processing facility in New Bedford. She couldn’t quit because she needed the money, and she couldn’t ask for help because her translator was the man who was assaulting her. Continue reading

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