As I have discussed in other blog posts, communications with in-house counsel that are not for the purpose of obtaining legal advice are not privileged. But what happens when outside counsel is hired to investigate a claim of harassment in the workplace and a second outside counsel is hired to provide legal advice? Anyone who thinks that the subsequent communications involving those outside counsel will automatically be privileged had better read the recent decision by Magistrate Judge Kenneth P. Neiman (District of Massachusetts) in Koss v. Palmer Water Department.… Keep reading
Because ’tis the season to give, The In-House Advisor would like to give in-house counsel the following reminders so as to limit their companies’ holiday exposure:
Tip 1: Religious discrimination and accommodations
As we all know, while the “holiday” season in December often refers to Christmas, there are many other religious holidays celebrated by workers, both now and throughout the year. In-house counsel may wish to take the opportunity now to advise their companies’ managers to allow, and not interfere with, an employee’s observance of religious obligations. For purposes of employment discrimination laws, the definition of “religion” is much broader than one might think and is not limited to major, organized religions. Rather, “religious beliefs” protected by discrimination laws is defined as:
Moral or ethical beliefs about right and wrong that are sincerely held with the strength of traditional religious views.
It would behoove employers to carefully consider scheduling of work on holidays and planning and scheduling of holiday celebrations with an eye towards religious considerations. Likewise, being mindful of the religions practiced by company employees may avoid issues with respect to holiday parties. For instance, depending upon the make-up of your workforce, scheduling a party for Friday night … Keep reading
A recent decision by a full panel of the Massachusetts Commission Against Discrimination (MCAD) emphasizes the need for supervisors to understand their duty to act to ensure that unlawful harassment allegations are addressed and that any such conduct ceases.
Since 1998, two cases decided by the U.S. Supreme Court, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, enable employers to avoid liability for employee claims of sexual harassment based on a hostile work environment brought under Title VII of the Civil Rights of 1964 if: (1) the employer took reasonable care to prevent and promptly correct the harassing or discriminatory behavior, and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided. Employer policies, training for its supervisors and investigative processes are taken into consideration in determining whether there were sufficient preventive or corrective opportunities provided to employees. If the conduct, however, results in a tangible employment action such as a demotion or termination, then the Faragher/Ellerth affirmative defense is unavailable to the employer.
Although many states have not adopted this defense, a few states have advanced the law at the state level, at least in theory, to permit employers … Keep reading
With the new year, Massachusetts employers must add “gender identity” to the list of classes entitled to protection from employment discrimination and retaliation. What was touted as the “transgender rights” law in Massachusetts is, in fact, a “gender identity” law.
The Massachusetts transgender rights law defines “gender identity” as:
[A] person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.
This law allows employees to establish a workplace gender identity by providing their employer with evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or “any other evidence that the gender-related identity is sincerely held, as part of a person’s core identity.”
Notwithstanding this new law, the Massachusetts Commission Against Discrimination has already found that transgender employees are protected under the Commonwealth’s existing sex and disability discrimination laws. Thus, we have long counseled Massachusetts employers to treat transgendered employees as a protected class, and we do not anticipate that this legislation will change that fundamental advice. … Keep reading