In Massachusetts Bay Transportation Authority v. Massachusetts Commission Against Discrimination, http://socialaw.org/slip.htm?cid=17757&sid=120, SJC-09893 (Jan. 8, 2008), the Supreme Judicial Court ruled that the transit agency violated state anti-discrimination law when it refused to hire a Seventh-Day Adventist for his inability to work on the Sabbath (Friday sundown until Saturday at sundown).

The Massachusetts anti-discrimination law, known as General Laws Chapter 151B, §4, protects employees and applicants from discrimination by employers on the basis of religion. Once an employee notifies an employer that an employer’s practice requires him or her to violate a religious practice compelled by sincerely held belief, the employer must either a) accommodate the complainant or b) prove that accommodation of the employee’s religious obligations imposes “an undue hardship” on the employer. In analyzing the employer’s defense of undue hardship, the MCAD “must focus on the particular nature and operations of the employer’s business” and “whether the employer could have exercised its managerial discretion in such a way that the employee’s religious obligations could have been reasonably accommodated.”

In this case, the MBTA failed to explore any reasonable accommodation of the applicant’s religious inability to work on the Sabbath, namely allowing the prospective employee to swap Sabbath shifts with other bus drivers. The SJC agreed that the MBTA faces an undue hardship if accommodation of religion forces it to leave a shift uncovered or to pay overtime to a relief driver. But the SJC chided the MBTA for failing to conduct even a cursory investigation into whether shift-swapping is feasible. The anti-discrimination law, the court noted, expressly contemplates observance of the Sabbath as a protected religious activity that may entitle an employee to a reasonable accommodation. Swaps therefore may be the simplest cost-free method of accommodating this religious practice.

The SJC left the door open for an employer in future circumstances to show, following an investigation, that shift-swapping was unlikely to adequately enable the employee to not work on the Sabbath. The MBTA conducted no such investigation here. The SJC, however, declined to that an employer automatically violates Chapter 151B by failing to explore options for accommodating the employee’s asserted religious practice.

Finally, the Court appeared to indicate that a collective bargaining agreement may be a defense to an employer’s claim of undue hardship, if for instance, the CBA denied or restricted the practice of voluntary swaps.

In Nguyen v. William Joiner Center For The Study Of War And Social Consequences, SJC-09848 (December 21, 2007) [http://socialaw.org/slip.htm?cid=17718&sid=120], the Massachusetts Supreme Judicial Court dismissed a claim that the University of Massachusetts illegally refused to appoint a person to a fellowship because the plaintiff never actually applied for the fellowship. ?
In this case, the plaintiff, who claimed to be of South Vietnamese origin, claimed that the University’s hiring practices were motivated by discrimination. The plaintiff did not, however, ever apply for the positions during a three-year period. He justified his inaction by pointing to the University’s alleged failure to advertise widely for the positions and by pointing to the futility of applying for the fellowships once he filed a claim of discrimination with the Massachusetts Commission Against Discrimination.

The SJC found that the positions were adequately advertised and, moreover, insufficient advertising does not necessarily mean that the employer’s hiring was motivated by discriminatory beliefs. In addressing the significance of the plaintiff’s failure to apply for the positions, the SJC refused to rule that non-applicants are barred from asserting claims of discrimination. It wrote, “In the context of proving a discrimination claim under G. L. c. 151B, a per se prohibition of relief to a non-applicant on the basis of futility would contravene the remedial purpose of the statute.”

The SJC then elaborated on this concept of “futility,” which is how a discrimination claim by a non-applicant is analyzed. This concept is similar to “constructive discharge,” which permits persons who “voluntarily” quit a job to claim that they were effectively forced out of their position. While normally a person denied a position cannot file a claim of discrimination if they did not apply for said position, the SJC recognized that such an omission is excusable when the employer has a notorious discriminatory hiring practice or policy. However, the plaintiff here failed to provide any evidence that the University would have refused to hire him subsequent to his filing of an MCAD claim. “The plaintiff’s subjective belief that, in light of the backdrop of legal proceedings, he would have been rejected had he applied for a fellowship cannot excuse his failure to apply, because the fact that he filed a charge with the commission alleging discrimination does not by itself establish that discrimination existed.”

The Massachusetts Commission Against Discrimination is re-opening its Central Massachusetts office in January 2008. MCAD, the state agency that enforces state law prohibiting many forms of discrimination in employment, housing, lending, education, and public places, returns to Worcester City Hall, located at 455 Main Street, Worcester, MA 01608 for the first time in 16 years. [The MCAD web site lists (508) 799-1871 as the office’s contact number].

This news is significant because MCAD requires all relevant claims of discrimination – including on the basis of age, race, gender, sexual orientation, religion, national origin, disability, and criminal record – to be filed in person. Currently, persons in Central Massachusetts must trek to Springfield or Boston to seek a vindication of rights protected by MCAD. If nothing else, this revived office provides one more option for claimants. For more information about your rights to be protected against discrimination and retaliation for engaging in protected activity and MCAD’s involvement in these investigating and enforcing the law, go to www.mass.gov/mcad.

The State Appeals Court ruled that a county laboratory director is exempt from the protections of state wage and hour law embodied in General Laws chapters 149 and 151. Like its federal counterpart (the Federal Labor Standards Act), the state overtime law requires that employees receive time-and-a-half of their regular wages for hours worked beyond 40 in one week. The state and federal wage and hour laws exempt bona fide “executive, or administrative or professional” employees from this guarantee of overtime.

In Ahadul Quazi v. Barnstable County, #06-P-486 (Dec. 3, 2007) [http://socialaw.org/slip.htm?cid=17661&sid=119], the Court ruled that the phrase bona fide executive, or administrative or professional person under the state law is interpreted consistently with federal law. Applying federal precedent to the case, the Court ruled that the plaintiff, a laboratory director, was exempt. His job qualified as professional because the water analysis job required that plaintiff possess advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. Further, the responsibilities of the plaintiff’s job, which involved problemsolving, policymaking and directing the work of other employees, also qualified under the “executive” (a.k.a. managerial) exemption. Because of these facts, the Court ruled that the plaintiff was not entitled to any overtime under state law.

The Appeals Court also ruled that the plaintiff could maintain a claim against his employer under the state whistleblower act, G.L. c. 149, §185. The Act generally protects public employees against retaliation for reporting of misdeeds or illegal behavior by their employer. To obtain protections under the Act, employees must notify superiors of the misconduct allegations in order to provide employers with an opportunity to correct behavior. The Appeals Court ruled that the notice requirement does not apply when, as here, the employee claims that the retaliation arose as a result of the employee’s refusal to participate in misconduct, as opposed to the employee’s threat to publicize said misconduct.

We’re not sure what to make of the Supreme Judicial Court’s decision to re-examine two decisions upholding labor arbitration awards, but there is no question that the SJC continues to show a strong interest in these matters, not always to the advantage of unions and their members. On October 31, 2007, the SJC granted further appellate review in the case of City of Somerville v. Somerville Municipal Employees Association, which was decided by the Appeals Court in July. (The citation is 69 Mass.App.Ct. 583.) The case involves a collective bargaining agreement that prescribes the method for assigning someone to a particular position in case of a vacancy. With skills and qualifications being equal, the contract says, the City must choose the internal candidate over an external one. When the City ignored this provision, the union grieved. An arbitrator agreed with the union and ordered the City to follow the procedure it had agreed to use and assign the internal candidate. Instead the City appealed, first to the Superior Court, where it lost, then to the Appeals Court, where it lost again. It could have ended there, but Massachusetts law provides for ‘further appellate review’ for litigants dissatisfied with the decision of the Appeals Court. Upon request, the SJC may (but doesn’t have to) choose to re-examine decisions of the Appeals Court. The City sought further appellate review and the SJC granted it.

An unscientific survey of further appellate review (FAR) requests shows that the SJC only grants a small percentage (maybe 10%). Of those cases taken on further appellate review, fewer than half are civil cases, most are criminal. So when the SJC grants FAR on a case involving labor arbitration, it is not an everyday occurrence.

While it was unusual for the SJC to grant FAR to City of Somerville, it is even more remarkable when we know that, on March 29, 2007, the SJC granted FAR in the case of Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County. (The Appeals Court citation is 68 Mass.App.Ct. 903 (2007).) This case involves a disciplinary matter, in which an arbitrator ordered the employer to reinstate an employee who had been discharged for misconduct. The employer argued that the reinstatement would violate public policy. This argument has been a popular one for employers ever since the SJC’s decision in City of Boston v. Boston Police Patrolmen’s Association, 443 Mass. 813 (2005). In that case, the SJC decided that the reinstatement of a police officer who was found to have misused his police powers to take away the rights of citizens and repeatedly lied about it violated public policy and vacated the arbitrator’s award. The SJC described the case as a ‘rare instance’ in which the public policy exception applied, but employers seem to find rarities whenever an arbitrator rules against them.

Sheriff of Suffolk County involves an application of the public policy doctrine. City of Somerville is another one in a long line of cases in which public employers have invoked their inherent management rights to ignore any provision of the contract they don’t like. And these are not the only labor arbitration decisions decided over the past year – see Todino v. Town of Wellfleet, 448 Mass. 234 (2007), upholding a pro-union arbitration award. The SJC recently heard oral arguments in Local 2071, IAFF v. Town of Bellingham, 67 Mass.App.Ct. 502 (2006), which involves the power of an interest arbitrator under the auspices of the Joint Labor Management Committee for Police and Fire to award a 24-hour shift.

The Appeals Court, which, unlike the SJC, cannot pick the appeals it wishes to hear, has heard numerous labor arbitration cases in the past year, almost always upholding the award against an employer appeal. (Notice how the employer is always the one appealing? That’s because unions understand what ‘final and binding arbitration’ means.) In addition to the Somerville, Suffolk County, and Bellingham cases mentioned above, Appeals Court decisions included: Town of Duxbury v. Rossi, 69 Mass.App.Ct. 59 (2007), School Committee of Hull v. Hull Teachers Association, MTA/NEA, 69 Mass.App.Ct. 860 (2007), Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 68 Mass.App.Ct. 222 (2007), Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 67 Mass.App.Ct. 706 (2006). The Appeals Court upheld the arbitrator’s award in all but the last case. Two other arbitration awards were upheld by the Appeals Court (both public policy cases), but the decisions were not officially published and cannot be used as precedent.

The question is, why the SJC is so interested in these aspects of Massachusetts labor law? Do the justices feel that arbitrators are out of control and need to be reined in? Do they believe the Appeals Court decisions are inconsistent and they need to provide guidance? Do they feel that they have a special responsibility to look out for the interest of the citizens served by public employers and employees? We don’t know. No decision has been issued by the SJC in either the Suffolk County, Somerville or Bellingham case. Plus, the fact that the SJC granted FAR does not necessarily mean it will ultimately disagree with the Appeals Court decision. In another unscientific study, I reviewed decided civil cases in which the SJC had granted FAR. Of 17 cases decided in 2007, the SJC agreed with the Appeals Court in eight cases, slightly less than half. In six cases, the SJC agreed with parts of the Appeals Court decision, and disagreed with other aspects. In only three of 17 cases reviewed did the SJC completely reverse the decision of the Appeals Court. So there is hope yet.