The Massachusetts Appeals Court has ruled that the City of Boston Police Department may have violated state anti-discrimination law by unilaterally eliminating rank-specific locker rooms in response to complaints by female ranking officers about inadequate accommodations. Sandulli Grace Attorney Patrick N. Bryant filed a friend-of-the-court brief on behalf of the Boston Police Patrolmen’s Association, Inc., which supported the Boston Police Superior Officers Federation’s challenge to elimination of longstanding locker room arrangements.

In the case of King & BPSOF vs. Boston, 06-P-1013 (March 28, 2008) (http://socialaw.org/slip.htm?cid=18022&sid=119), female superior officers for the Boston Police Department requested that they be provided access to rank-specific, female locker rooms, as enjoyed by male ranking officers. Many BPD district stations offer rank-specific locker rooms for male officers and not female officers. After several superior officers complained about the disparate accommodations (the BPD offered a locked closet space as one alternative), the BPD sought to eliminate all rank-specific locker rooms at all district stations. This move was jointly opposed by the BPPA and BPSOF. The day after the superiors union filed a complaint with the Massachusetts Commission Against Discrimination, the BPD ordered the closure of all rank-specific locker rooms, including male and female. The superiors union amended its complaint to include charges of retaliation. After the superiors union moved for an injunction, the BPD agreed to halt locker room changes for the time being.

The Appeals Court ruled that the BPSOF produced enough evidence to go to trial against the City. The Appeals Court agreed with Plaintiffs that rank-specific, gender-specific locker rooms may be an important condition of employment. As the court ruled:

Separate locker rooms alleviate potential tensions between superior officers and the patrol officers whom they are required to supervise and discipline. They provide also a psychological buffer zone for patrol officers who use their locker rooms as a place to decompress, without official scrutiny, after performing a shift that can be stressful and intense. Locker rooms may be a significant location for union organizing and collective action, a particularly relevant factor in this instance given that patrol officers and superior officers are members of different unions.

The Court ruled that the Plaintiffs also produced enough evidence that the BPD illegally retaliated against female officers and the BPSOF when it made changes to locker rooms. Significantly, the Court agreed that the filing of a grievance about discriminatory treatment is “protected activity” under anti-discrimination law. Further, the BPD’s decision to eliminate rank-specific locker rooms after a newspaper article about the lawsuit created an inference that the decision was intended to retaliate against BPSOF.

Technically, the Appeals Court decision occurred at the Summary Judgment stage of litigation, meaning that the Court did not necessary agree that the locker rooms were a material condition of employment or that the BPD’s actions were illegally motivated. By denying Summary Judgment to the BPD, the Court essentially ruled that Plaintiffs produced enough evidence for a jury to decide the legality of BPD’s actions.

In an extraordinary rebuke of the Republican-dominated National Labor Relations Board, a panel of the U.S. Court of Appeals for the Second Circuit has struck down a vague “no harassment” policy implemented by an employer during an acrimonious union organizing campaign.

In UAW v. NLRB, (March 20, 2008), a Connecticut automobile plant responded to a UAW organizing campaign by threatening to fire employees that even talked about the union during work time, and by implementing a vague “no harassment” policy intended to thwart union organizing. On review, the NLRB agreed that employer policies that prohibit discussions or solicitations regarding unionization during working hours are illegal.

While federal courts typically defer to the decisions of administrative agencies such as the NLRB, the Second Circuit reversed the NLRB’s conclusion that the announcement of a “no harassment” policy was not illegal. The employer defended the “no harassment policy” as addressing reported intimidation and vandalism at the plant. However, the Second Circuit reminded the NLRB that the employer’s intentions behind the policy are irrelevant, as it is necessary to consider how a reasonable employee would interpret a “no harassment” policy. Here, the Second Circuit ruled, a reasonable person would interpret such a policy as prohibiting union organizing, given that the employer already implemented a policy expressly prohibiting union organizing.

Unfortunately, as an example of federal law’s bias toward employers, the Second Circuit upheld the NLRB’s ruling that the employer’s fearmongering – regularly characterizing the Union as violent, strike-happy, pervaded by “violence, threats, intimidation and [ ] death” – was not illegal.

Read the decision