Labor and Employment Bulletin

Labor and Employment Bulletin



The Developing Need for E-mail, Voice Mail and Internet Policies
While new technologies such as E-mail, voice mail and the Internet provide companies with enormous benefits in terms of increased efficiency, they also present a challenge to employers concerned with controlling the unauthorized use of company systems by employees.


One area currently being litigated in Massachusetts concerns the issue of whether an employee has a legitimate expectation of privacy in his or her voice mail or E-mail messages under the Massachusetts Privacy Statute, M.G.L. c.214, §1, et seq . In a decision entitled Restuccia v. Burke Technology, Inc., (Middlesex Super.), C.A. No. 95-2125, a Superior Court judge denied an employer's motion for summary judgment on privacy act claims brought by two former employees who were fired after the employer reviewed derogatory E-mail messages authored by the employees in files on the company's computer system. The Court held that there were genuine issuesof fact as to whether the employees hada reasonable expectation of privacy in their E-mail communications and whether the company's review constituted "an unreasonable, substantial or serious interference" with their privacy.


The Restuccia decision should be of concern to Massachusetts employers who provide their employees with E-mail, voice mail or Internet access. In order to protect themselves from potential liability regarding use and review of these communications technologies, employers should develop and enforce comprehensive written policies governing employee access to and use of E-mail, voice mail and the Internet. Such policies should clearly inform employees that the E-mail, voice mail and Internet systems are the property of the employer and are to be used for business purposes. The policy should state that both inter and intra-office E-mail and voice mail messages are not considered to be private and that this policy applies regardless of whether employee communications take place during or after working hours. The policies should also explicitly state that the company reserves the right to save, monitor and review E-mail and voice mail messages, and to monitor all Internet activity. Finally, the policy should state that employees are prohibited from sending, displaying, storing, downloading or printing sexually explicit or otherwise potentially offensive materials through the company computer systems at any time. Employers should also inform employees of the penalties for violation of the policies, and institute regular procedures to monitor employee use of company computer systems.



Supreme Judicial Court Rules Same-sex Harassment Actionable


Earlier this year, the Massachusetts Supreme Judicial Court held that an employer is subject to an employee's claim of sexual harassment even when the harasser and victim are both heterosexuals of the same gender. The case, Melnychenko et al. v. 84 Lumber Co., 425 Mass. 285 (1997), is noteworthy because it stands for the proposition that unwelcome conduct of a sexual nature which creates a hostile work environment is actionable under the Commonwealth's anti-discrimination law regardless of whether the harasser is motivated by gender bias.


In Melnychenko, a male supervisor and a male employee engaged in a pattern of verbal and physical behavior of a sexual nature directed at three male employees, including grabbing the employees` genitals, squeezing their chests, and telling other employees that they were engaging in sexual acts with the victims. Although the court found that none of these actions was motivated by "true" romantic or sexual desire, it nonetheless found that a humiliating and sexually offensive work environment had been created. The court went on to rule that, under Massachusetts law, any conduct of a sexual nature falls within the statutory definition of sexual harassment and is a form of sexual discrimination, and that discrimination because of an individual's sex is not an essential element of a sexual harassment claim.


In the wake of this decision, employers would be wise to discourage "horseplay" of a sexual nature in the workplace, whether or not such conduct is limited to individuals of the same gender.


Massachusetts Legislature Responds To Supreme Judicial Court Ruling On Religious Holidays


The Massachusetts Legislature recently amended the definition of "creed or religion" which appears in the Fair Employment Practices Law, M.G.L. c. 151B, to provide greater protection for employees who seek accommodations related to their religious beliefs. The Legislature's amendments to the statute arose in response to a decision by the Massachusetts Supreme Judicial Court entitled Pielech v. Massasoit Greyhound Inc., 423 Mass. 534 (1997), in which the Court held that the statute's then-current definition of "creed or religion" was unconstitutional because the definition required judges to delve into theology and doctrines of particular faiths in order to determine whether an employee had a right to refuse certain work assignments because of the employee's religious beliefs. The Pielech case received a great deal of media attention late last year when the Supreme Judicial Court ruled portions of the Fair Employment Practices Act unconstitutional after a lower court ruled that Pielech's former employer, the Raynham/Taunton Greyhound Track, violated the Fair Employment Practices Act when it fired Pielech and another employee for refusing to work on Christmas day.


The Senate's amendments directly address the Supreme Judicial Court's concerns and provided that "the words creed or religion (as used in the Statute) mean any sincerely held religious beliefs without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religious institutional organization." The amendment to the Fair Employment Practices law means that in those rare events where an employee cites his or her religion as a reason for not following a job directive, an employer may need to make modifications to the job in order to allow the employee to perform his or her work without violating his or her religious beliefs. Such modifications might include modifying an employee's schedule to allow that person to observe religious holidays and days of worship or allowing an employee to wear certain types of religious garb in the workplace.


Recent Federal Court Ruling Precludes Individual Liability Under Title VII


In a case of first impression in the District of Massachusetts, a federal district court judge recently ruled that individuals cannot be held personally liable under Title VII of the Civil Rights Act of 1964, the federal equal employment opportunity statute. This ruling, which is in accordance with the overwhelming majority of jurisdictions that have reached this issue, states that only employers may be liable for discrimination in violation of Title VII. The plaintiff in Danio v. Emerson College, No. CIV-A.97-10132-WGY, 1997 WL 240755 (D. Mass.), unsuccessfully argued that the statute permitted individual supervisors and employees to be liable for sex discrimination.


Danio alleged that Emerson College and four individual employees of the college discriminated against her on the basis of her sex by paying her less than male employees in the same position. The complaint alleged violations of the Massachusetts Fair Employment Practices Act (Mass. Gen. Laws ch. 151B), Title VII (42 U.S.C. §2000-e et. al. ), the Massachusetts Equal Pay Act (Mass. Gen. Laws ch. 149 §105A) and the Federal Equal Pay Act (28 U.S.C. §206(d)). The individual defendants included two departmental supervisors, the College's human resources director and the president of the College.


The four individual defendants were successful in dismissing only the Title VII charges. Based on an analysis of the language and legislative history of the statute, the court found that Title VII did not create personal liability. Likening the individual defendants to small employers who are explicitly exempted from Title VII, the court quoted earlier cases discussing this issue and stated, "It is inconceivable that Congress intended to allow civil liability to run against individual employees when it limited [Title VII] coverage to employers with fifteen or more employees [in order] to protect from liability small employers with limited resources."


It is important to note that individual employees are not completely immune from discrimination charges. The Danio defendants still face charges under the Massachusetts Fair Employment Practices Act, ch. 151B, and the state and federal equal pay laws. The Massachusetts Fair Employment Practices Act explicitly provides for individual employee liability and prohibits any person, whether an employer or employee or not, from aiding, inciting, compelling or coercing the doing of any of the acts forbidden under the Act. In addition, individuals who are considered "employers" for purposes of the Massachusetts and federal equal pay laws can be liable under both these statutes. In this context, the First Circuit defines "employer" to include individuals who demonstrate significant involvement in decisions affecting the terms and conditions of the plaintiff's employment. Because each individual defendant was a supervisor of Danio, the court refused to dismiss the equal pay claims.


Recent Decision Upholds Mandatory Arbitration Provision And Bars Subsequent Employment Discrimination Claim


In March of this year, in a case entitled Mugnano-Bornstein v. Crowell, 42 Mass. App. Ct. 347 (1997), the Massachusetts Appeals Court ruled for the first time that an employee may waive the remedies afforded under Title VII and analogous State anti-discrimination statutes pursuant to a mandatory arbitration agreement. Prior to the Court's decision, it was unclear whether such agreements would be enforced by Massachusetts courts, especially in light of the Massachusetts Commission Against Discrimination's (the "MCAD") refusal to recognize pre-dispute mandatory arbitration agreements as binding.


The plaintiff in Mugnano-Bornstein completed and signed an employment application with Shearson Lehman Hutton in November 1989 containing an agreement to arbitrate any controversy arising out of or in connection with her compensation, employment or termination of employment with the Company. Shearson subsequently hired the plaintiff as a wire operator but terminated her employment approximately one year later for insubordination. Plaintiff filed an action in Superior Court asserting, among other claims, sexual harassment and gender discrimination under the Fair Employment Practices Act, Chapter 151B, against Shearson and her supervisor. In response, the defendants filed a motion to compel arbitration under the terms of the employment application signed by the plaintiff and to stay judicial proceedings pending arbitration. The Superior Court allowed this motion. Subsequently, a three-member arbitration panel unanimously denied the plaintiff's claims and dismissed the case. Following the panel's decision, the plaintiff filed a motion in Superior Court to vacate the previously imposed stay and to restore the case for trial. The Superior Court granted the plaintiff's motion, holding that the plaintiff could not have known that she agreed to arbitrate her specific employment discrimination claims when she signed the agreement and, therefore, she could not have waived her right to try Chapter 151B claims in state court.


On appeal, the Massachusetts Appeals Court reversed the Superior Court's ruling and held that the arbitration agreement was enforceable and barred the plaintiff from bringing her Chapter 151B claims in Superior Court. Relying on general principles of contract law, the Court concluded that the arbitration agreement clearly encompassed the plaintiff's claims since she agreed to arbitrate any controversy arising from her employment. The Court further noted that an arbitration agreement as broad as the agreement signed by the plaintiff creates a strong presumption of arbitrability. The Court concluded that the plaintiff was on clear notice that she was agreeing to submit any Chapter 151B claim to arbitration since the clause referred specifically to employment disputes. The Court also noted that Massachusetts employees may waive their right to a jury trial under Chapter 151B and other statutes. The Court remanded the case to Superior Court to confirm the arbitration award in the defendants' favor and dismiss the complaint.


The Mugnano-Bornstein case is important because it signals Massachusetts courts' willingness to enforce pre-dispute arbitration agreements in the employment setting. Employers may be able to prevent employee discrimination lawsuits through the use of mandatory arbitration agreements in employment applications or employment contracts. An appeal of this decision to the Supreme Judicial Court is expected this summer.


Post-Employment References May Constitute Retaliation Under Title VII


In a decision that highlights the risks associated with post-termination references, the Supreme Court recently ruled that an employer's post-employment actions may serve as the basis for a Title VII retaliation claim by a terminated employee. In Robinson v. Shell Oil Co., ___ U.S. ___, 117 S. Ct. 843 (1997), the Court held that the Title VII section that prohibits employers from retaliating against employees who file Title VII discrimination charges covers both current and former employees .


In reaching its decision, the Court determined that Title VII's definition of the term "employee" was ambiguous. After argument by the Equal Employment Opportunities Commission ("EEOC") and Shell Oil, the Court determined that excluding ex-employees from the anti-retaliation provision would undermine the effectiveness of Title VII. The EEOC claimed that employees might be deterred from filing discrimination charges by the threat of post-termination retaliation if they were not covered by the anti-retaliation provision.


In Robinson, the plaintiff alleged that the retaliation consisted of false information and an undeservedly poor reference provided by Shell to a prospective employer. The Robinson decision adds to the already substantial legal risks related to post-employment references. Ex-employees have sued their former employers over unfavorable references under a variety of theories, including defamation and intentional interference with business relations.


Employers may minimize their exposure to post-employment reference claims by limiting information released on former employees to position held, salary and dates of service. Employers who agree to provide detailed references must take care to base their comments on documented facts. Regardless of the reference policy adopted by an employer, all references must be based on factual information and should be supported with as much documentation as possible.


EEOC Issues Guidance Memorandum On Psychiatric Disabilities And The Americans With Disabilities Act


The Equal Employment Opportunity Commission ("EEOC") recently issued a guidance memorandum ("Guidance Memorandum") on psychiatric disabilities and the Americans With Disabilities Act ("ADA"). Because claims involving psychiatric disabilities and the ADA are increasing, the EEOC took the opportunity to address common questions posed by both individuals with psychiatric disabilities and employers.


The ADA defines mental impairment as "[a]ny mental or psychological disorder, such as...emotional or mental illness." Included within this broad definition are: major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders. Specifically excluded are individuals who currently are engaging in the illegal use of drugs or who are diagnosed as suffering from kleptomania, pyromania or compulsive gambling. To date, traits like irritability, chronic lateness and poor judgment are not, in themselves, mental impairments covered by the ADA. The EEOC is quick to note, however, that these traits may be "linked" to covered mental impairments or may be symptoms of them.


A psychological impairment only rises to the level of a disability under the ADA if it limits a major life activity. Whether a condition substantially limits a major life activity will depend upon the severity of the limitation and the length of time it restricts a major life activity. An impairment does not significantly restrict major life activities if it results in only mild limitations. Chronic episodic conditions may constitute a disability if they are substantially limiting when active or have a high likelihood of recurring in substantially limiting forms. When determining if a psychological impairment limits performance of a major life activity, an employer cannot consider mitigating measures, including the use of medications. Thus, an individual who is taking medication for a mental impairment has an ADA disability if there is evidence that the mental impairment if left untreated substantially limits a major life activity.


The Guidance Memorandum reaffirms the EEOC's position as to when an employer can request information on an employee's or applicant's mental disability. Employers are strictly prohibited from asking any disability-related questions before making an employment offer. An exception, however, is if an applicant asks for a reasonable accommodation for or during the hiring process. If the applicant's need for the accommodation is not obvious, the employer may then require the applicant to provide reasonable documentation about his/her disability. After extending an employment offer, the employer may require a medical examination (including a psychiatric examination or ask questions related to disability) if the employer subjects all entering employees in the same job category to the same inquiries or examinations regardless of disability.


Employers are cautioned by the EEOC on their duty to keep information about an employee's medical condition, including information about psychiatric disabilities and information obtained from the employee, confidential. Employers must collect and maintain such information on separate forms and in separate medical files, which are maintained apart from the usual personnel files. Also, employers may not tell coworkers of a protected individual that it is providing the employee a reasonable accommodation. When responding to coworker questions about a particular individual, the employer should only state that it is acting for legitimate business reasons or in compliance with federal law. Employers should not state that they are providing a reasonable accommodation because the EEOC believes those words would disclose that the individual in question has a disability because only individuals with disabilities are entitled to reasonable accommodations under the ADA.


To request a reasonable accommodation, an individual may use "plain English" and need not mention the ADA. Also, an individual may request an accommodation by using the key phrase "reasonable accommodation." Requests for an accommodation can be made at any time during employment. According to the EEOC, an employee who states that he is "depressed and stressed" and needs time off has requested a reasonable accommodation. Employers may be asking, how is this possible? It is possible because, using "plain language," the employee has just communicated a request for a change at work (time off), for a reason related to a medical condition (being "depressed and stressed"). The employer is now "put on notice" that the employee is requesting a reasonable accommodation. If the employee's need for leave is not obvious, the employer may request reasonable documentation concerning the employee's disability and functional limitations.


When considering potential reasonable accommodations, the EEOC identifies the following possibilities:
  • modifying a workplace policy;


  • adjusting supervisory methods;


  • providing a job coach; or


  • reassigning the employee to a different available position.


Medication monitoring, i.e., making sure the employee takes his/her medications, is not a reasonable accommodation. Likewise, creating a new position for an employee is not required.


Employers still may discipline and discharge an individual with a disability for violating a workplace conduct standard even if the misconduct resulted from the disability. Nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property.


Employers also may lawfully exclude an individual from employment for safety reasons but only if they can show that employment of that particular individual would pose a direct threat to themselves or others. To meet this standard, the employer must show that its decision is based on an individualized assessment of the individual's present ability to safely perform the functions of the job, in light of the most current medical knowledge and/or the best available objective evidence. Before making such a determination, employers should consult counsel.

By issuing the Guidance Memorandum on mental disabilities, the EEOC has signalled a willingness to focus on mental disability issues in future litigation of employment discrimination claims. Accordingly, employers must recognize that psychiatric and mental conditions are covered disabilities and be prepared to make an individualized assessment of an employee's condition and work performance.