Judicial Precedents

Boston Employment Law Attorneys ǀ Exclusively Representing Employees

From vicarious liability in sexual harassment cases to arbitrating employment discrimination claims to third-party retaliation claims, below is a collection of significant legal issues decided by the United States Supreme Court and Massachusetts Supreme Judicial Court.

United States Supreme Court
Green v. Brennan, Postmaster General
Decided May 23, 2016
“Starting the limitations clock ticking before a plaintiff can actually sue for constructive discharge serves little purpose in furthering the goals of a limitations period – and it actively negates Title VII’s remedial structure. … If the limitations period begins to run following the employer’s precipitating discriminatory conduct, but before the employee’s resignation, the employee will be forced to file a discrimination complaint after the employer’s conduct and later amend the complaint to allege constructive discharge after he resigns. Nothing in the regulation suggests it intended to require a layperson, while making this difficult decision, to follow such a two-step process in order to preserve any remedy if he is constructively discharged.”
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Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores
Decided June 1, 2015
“[A]n employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed … An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
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Young v. United Parcel Service
Decided March 25, 2015
“[A]n individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework.”
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Vance v. Ball State University
Decided June 24, 2013
“[A]n employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.”
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Univ. of Texas Southwestern Med. Center v. Nassar
Decided June 24, 2013
“The text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under §2000e–3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.”
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Staub v. Proctor Hosp
Decided Mar. 1, 2011
“Since a supervisor is an agent of the employer, when he causes an adverse employment action the employer causes it; and when discrimination is a motivating factor in his doing so, it is a ‘motivating factor in the employer’s action,’ precisely as the text requires.”
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Thompson v. North American Stainless
Decided January 24, 2011
“Title VII’s antiretaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.”
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Lewis v. City of Chicago
Decided May 24, 2010
“By enacting §2000e–2(k)(1)(A)(i), Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer’s motives and whether or not he has employed the same practice in the past.”
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Crawford v. Metropolitan Government of Nashville and Davidson County
Decided January 26, 2009
“There is … no reason to doubt that a person can oppose by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”
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Gross v. FBL Financial Services
Decided June 18, 2009
“We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”
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Massachusetts Supreme Judicial Court
Gannon v. City of Boston
Decided April 18, 2017
“The judge erred in analyzing the evidence in this case as if it were a pretext case when it should have been analyzed as a qualified handicapped person case. ... This analytical flaw transformed the plaintiff's burden on summary judgment in this case. By mischaracterizing this as a pretext case, the judge determined that Gannon could not prevail on his claim of handicap discrimination because he had failed to rebut the department's contention that the real reason for its refusal to return him to full duty was that it 'honestly' had concerns about Gannon's reaction time and his decision-making during crisis. ... In a qualified handicapped person case, however, the employer does not prevail simply because it indisputably acted in good faith; it can prevail only if the handicapped employee fails to prove by a preponderance of the evidence that he or she was able to perform the essential duties of the position with reasonable accommodation.”
Opinion ǀ Briefs ǀ Oral Argument Video
Gyulakian v. Lexus of Watertown
Decided August 24, 2016
“Whether a plaintiff is entitled to punitive damages from his or her employer on the basis of being exposed to a sexually hostile or offensive work environment created by one of its employees is therefore a two-step inquiry. We consider first whether the employer was on notice of the harassment and failed to take steps to investigate and remedy the situation; and, second, whether that failure was outrageous or egregious. … There is no bright line rule delineating who must be notified before an employer has been put on notice of harassment in the workplace. Suffice it to say, if an employee complains to the officials identified in the employer’s sexual harassment policy, the employer would be put on sufficient notice to trigger an obligation to investigate and take remedial action if the complaint proves to be well founded. The failure to do so opens the door to the potential imposition of punitive damages if the jury conclude that the employer’s failure was sufficiently outrageous and egregious. Of course, an employer can become aware of sexually harassing conduct engaged in by its employees by means other than a complaint made in accord with the employer’s sexual harassment policy.”
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Verdrager v. Mintz Levin
Decided May 31, 2016
“[W]e conclude that such conduct [self-help discovery] may in certain circumstances constitute protected activity under that statute, but only if the employee’s actions are reasonable in the totality of the circumstances.”
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Esler v. Sylvia-Reardon
Decided March 9, 2016
“Applying the standard that considers whether, ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the ‘nonmovant,’ we conclude that the evidence at trial was sufficient to support the jury’s verdict that the defendants retaliated against Esler because she exercised her right to twelve weeks of FMLA leave. We further conclude that the issue of front pay in an FMLA retaliation case should be reserved for the judge, and that the judge did not abuse her discretion or otherwise err in determining that the evidence at trial was insufficient to support an award of front pay.”
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Bulwer v. Mt Auburn
Decided February 29, 2016
“To survive a motion for summary judgment, the plaintiff need only present evidence from which a reasonable jury could infer that ‘the respondent’s facially proper reasons given for its action against him were not the real reasons for that action.’ While the plaintiff does bear ‘the burden of producing evidence’ that the employer’s reasons are pretextual, the burden of persuasion at summary judgment remains with the defendants, who, ‘as the moving parties, have the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, even if they would not have the burden on an issue if the case were to go to trial.'”
Opinion ǀ Briefs ǀ Oral Argument Video
EventMonitor v. Leness
Decided February 4, 2016
“In the rare opportunities that this court and the Appeals Court have had to consider the issue of after-acquired evidence in the context of a termination from employment, neither of the courts has adopted, or declined to adopt, this doctrine. We need not reach the question here, because we agree with the trial judge that Leness did not commit a material breach of the employment contract, and did not engage in defalcation of company assets. Therefore, Leness committed no act giving rise to a termination for cause, and the after-acquired evidence doctrine would have had no impact on the result we reach.”
Opinion ǀ Briefs ǀ Oral Argument Video
Flagg v. AliMed
Decided July 19, 2013
“We hold that associational discrimination based on handicap is prohibited under §4(16). In the present case, the plaintiff’s complaint alleges that he was a qualified, adequately performing employee who was terminated by AliMed because his wife’s total disability resulted in substantial medical expenses that AliMed was obliged to cover as part of the family health benefits provided as a term of the plaintiff’s employment — that is, he was fired because of his association with his handicapped wife. The plaintiff has alleged a plausible set of facts for relief, and the dismissal of this claim must be reversed.”
Opinion ǀ Briefs ǀ Oral Argument Video
Psy-Ed Corporation v. Klein
Decided May 12, 2011
“Perhaps because of the term ‘adverse employment action,’ confusion has arisen as to whether conduct challenged as retaliatory must target a current employee in order to fall afoul of §4(4) and (4A). We conclude that under the plain meaning of these sections, it need not. Section 4(4) addresses action taken by ‘any person’ against ‘any person,’ while §4(4A) concerns actions taken by ‘any person’ against ‘another person.’ In neither case does the statute expressly require that an employer-employee relationship exist at the time of the wrongful conduct, or at any other time. In light of the c. 151B’s broad remedial purposes, it would be an error to imply such a limitation where the statutory language does not require it.”
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Joule v. Simmons
Decided March 10, 2011
“If an employer and employee enter into a valid and sufficiently clear agreement to arbitrate any and all disputes relating to discrimination, then the party seeking arbitration of such a dispute is entitled to have the agreement enforced. … [I]f, as in this case, the MCAD were then pursuing an investigation of the discrimination claim, the agency could proceed notwithstanding the arbitration provision in the parties’ agreement, and there is no legal bar to having an arbitration and the MCAD proceeding continue concurrently, on parallel tracks.”
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Pelletier v. Town of Somerset
Decided December 10, 2010
“The continuing violation doctrine may complement but cannot replace the scope of evidence rule. That is, both the scope of the investigation and the statute of limitations potentially limit a plaintiff’s discrimination claim, but the two operate independently of each other. The scope of the investigation must be determined, therefore, whether or not the continuing violation doctrine might also apply to expand the statute of limitations in G.L. c. 151B.”
Opinion ǀ Briefs ǀ Oral Argument Video
Global NAPS, Inc. v. Awiszus
Decided August 9, 2010
“A female employee is only entitled to MMLA rights when she is absent from employment for no more than eight weeks. To the extent that the MCAD Guidelines suggest that a female employee may be entitled to MMLA rights beyond the eight-week period, the MCAD Guidelines are inconsistent with G.L. c. 149, §105D.”
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Dahms v. Cognex Corporation
Decided October 15, 2009
“The evidence of Dahms’s language, apparel, and conduct … was probative of whether she was subjectively offended by her work environment or by Rogers’s conduct. It concerned behavior in the workplace and at company events, or interactions with the defendants by whose conduct she claims to have been harassed. It was not admitted (nor admissible) as character evidence or to paint Dahms as a ‘loose’ woman, predisposed to welcome any advances.”
Opinion ǀ Briefs ǀ Oral Argument Video
Haddad v. Wal-Mart Stores
Decided October 5, 2009
“To sustain an award of punitive damages under G. L. c. 151B, §4, a finding of intentional discrimination alone is not sufficient. An award of punitive damages requires a heightened finding beyond mere liability and also beyond a knowing violation of the statute. Punitive damages may be awarded only where the defendant’s conduct is outrageous or egregious. Punitive damages are warranted where the conduct is so offensive that it justifies punishment and not merely compensation.”
Opinion ǀ Briefs ǀ Oral Argument Video
Warfield v. Beth Israel Deaconess Medical Center
Decided July 27, 2009
“[T]here is nothing in the arbitration clause or elsewhere in the agreement stating that any claims of employment discrimination by Warfield are subject to arbitration. We thus conclude that the terms of the agreement are insufficiently clear to constitute an enforceable agreement by Warfield to arbitrate her claims that the defendants violated her rights under G.L. c. 151B.”
Opinion ǀ Briefs ǀ Oral Argument Video
Everett v. The 357 Corporation
Decided April 13, 2009
“In sum, because the 1999 claims were unmoored from the 1996-1997 claims, both factually and as a matter of law, Everett’s 1999 claims were not properly before the court; it lacked subject matter jurisdiction to hear them. The company’s motion for judgment notwithstanding the verdict should have been allowed on this ground.”
Opinion ǀ Briefs ǀ Oral Argument Video
Thurdin v. SEI Boston
Decided October 24, 2008
“[W]e conclude that a party aggrieved by employment discrimination based on pregnancy who is precluded from using G.L. c. 151B may assert a claim under MERA. In sum, our conclusion is amply supported, most importantly by the plain language of the two civil rights statutes, including the express language of G.L. c. 151B, §9, which states that ‘nothing’ in G.L. c. 151B is to be read to repeal any other antidiscrimination statute.”
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Brown v. F.L. Roberts
Decided December 2, 2008
“In any event, G.L. c. 151B, § 4(1A), requires an employer to provide a reasonable accommodation unless there is an undue hardship. We conclude that the plaintiff’s initial request for an exemption did not relieve the defendant of this obligation. … We also conclude that an exemption from a grooming policy cannot constitute an undue hardship as a matter of law. Our cases have interpreted the statute to mean that an employer has the burden to prove undue hardship.”
Opinion ǀ Briefs ǀ Oral Argument Video
MBTA v. MCAD & David Marquez
Decided January 4, 2008
“If merely looking into an accommodation, or consulting with an employee about his requested accommodation, were to be considered too great an interference with an employer’s business conduct, then employers would effectively be relieved of all obligation under G.L. c. 151B, §4(1A). … To read the statute as the MBTA urges would eviscerate this statutory objective. We do not agree with the MCAD, however, that an employer’s failure to engage in the interactive process is, in and of itself, a violation of G.L. c. 151B, §4(1A), irrespective of whether a reasonable accommodation is possible.”
Opinion ǀ Briefs ǀ Oral Argument Video

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