Employment Discrimination

Forms of Discrimination Prohibited.

• Discrimination in any form on the basis of race, color, religion, national origin, citizenship status, sex, age (over forty) or mental or physical handicap/disability is prohibited by both state and federal laws. Retaliation against employees who oppose in good faith perceived employment discrimination is also prohibited. Other types of discrimination are also prohibited under specifically directed statutes. The basic relevant statutes are:

• Title VII of the Civil Rights Act of 1964 (42 U.S.C. s. 2000e).


• Title VII prohibits discrimination on the basis of race, color, religion, national origin and sex (which covers sexual harassment). It applies to employers with 15 or more employees.


• Title VII's antiretaliation provision is worded broadly and covers third-party reprisals. Thompson v. North American Stainless, LP, 562 U.S. 170 (2011)


• In Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. __ , 140 S.Ct. 2049 (2020), the U.S. Supreme Court ruled that the First Amendment's Religion Clauses precluded certain employment discrimination claims from being brought against religious organizations. The Court interpreted this "ministerial exception" broadly to include teachers who performed vital religious duties. The inquiry must focus on what the employee in question actually does and whether the functions are in furtherance of conveying the Church's message and carrying out its mission. State and local laws are likewise constrained by the protections of the First Amendment and therefore must provide similar exceptions.


• In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania , et al., 591 U.S. __ , 140 S.Ct. 2367 (2020), the U.S. Supreme Court upheld Trump administration rules providing that employers who have sincerely held beliefs against providing insurance coverage or payments for contraceptive measures to covered females are exempt from legal requirements to provide such coverage.


• In Bostock v. Clayton County, 590 U.S. 644, 140 S.Ct. 1731 (2020), the U.S. Supreme Court held that the "sex discrimination" prohibitions in Title VII also prohibits employment discrimination against gay and transgender employees. As a result the EEOC recently issued some guidelines on this topic.


• In Theidon v. Harvard University, 948 F.3d 477 (1st Cir. 2020), the First Circuit Court of Appeals affirmed a lower court's dismissal of a sex discrimination and retaliation case brought by a female former professor at Harvard who was denied tenure. The Court held that the plaintiff had failed to meet Title VII's "pretext-plus" standard that required sufficient evidence both of pretext and of Harvard's discriminatory animus.


• In Muldrow v. City of St. Louis, 601 U.S. __ , 144 S.Ct. 967 (2024), the Supreme Court ruled that an employee challenging under Title VII a forced job transfer must show that the transfer brought about some harm or disadvantageous change with regard to an indentifiable term or condition of employment, but need not show that the harm incurred was significant.


• When the workplace is permeated with discriminatory intimidation, ridicule, and insult, sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)


• Title VII also prohibits retaliation because someone has opposed any practice made an unlawful employment practice by Title VII or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing. (42 U.S.C. s. 2000e-3(a)) A report of conduct that allegedly violates Title VII is protected if the employee who reported the conduct had a good faith, reasonable belief that the underlying challenged actions of the employer violated Title VII. Hernandez v. Wilkinson, 986 F.3d 98, 103 (1st Cir. 2021) A person who engages in particpation activity need not hold a reasonable belief that the employer's actions actually violated Title VII. Ray v. Ropes & Gray LLP, 799 F.3d 99, 110 (1st Cir. 2015)


• Under the Pregnant Workers Fairness Act (42 U.S.C. Chapter 21G), which amended Title VII and went into effect on June 27, 2023, an employer must make reasonable accommodations to the known limitations related to the pregnancy, childbirth or related medical conditions of a qualified employee unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. (EEOC Guidance) (Proposed EEOC Regulations)


• For employment within Massachusetts a charge must be filed with the EEOC within 300 days after the alleged unlawful employment practice occurred. (42 U.S.C. s. 2000e-5(e)(1))


• If and when the EEOC issues a right to sue letter, the person aggrieved has 90 days to file a civil lawsuit in Federal court. (42 U.S.C. s. 2000e-5(f)(1))

• Age Discrimination in Employment Act of 1967 (29 U.S.C. s. 621).


• The ADEA prohibits discrimination on the basis of age (over the age of 40). It also prohibits retaliation against employees who oppose such discrimination. It applies to employers with 20 or more employees. The U.S. Supreme Court held that federal-sector plaintiffs in age discrimination cases brought under the ADEA need not show that negative considerations of age was a "but for" cause of an adverse employment action, but only that age was a motivating factor. Babb v. Wilkie , 589 U.S. 399, 140 S.Ct. 1168 (2020).
  
  
• The ADEA does not prohibit the compulsory retirement of an employee who has attained 65 years of age and who for the 2-year period immediately before retirement is employed in a bona fide executive or a high policymaking position if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, in the aggregate of at least $44,000. (29 U.S.C. s. 631(c)(1)
  
  
• Similarly the ADEA does not prohibit the compulsory retirement of an employee who has attained a certain age where the employer can prove that age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business. (29 U.S.C. s. 623(f)(1)
  
  
• Under the Older Workers Benefit Protection Act of 1990, the ADEA was amended (29 U.S.C. s. 626(f)) to provide that for waivers of any ADEA rights or claims to be valid (1) the waiver between the individual and the employer must be written in a manner to be understood by an average individual, (2) the waiver must refer to rights or claims under the ADEA, (3) the waiver does not apply to rights or claims arising after the waiver is executed, (4) the waiver is in exchange for consideration in addition to anything to which the individual is already entitled, (5) the individual is advised to consult with an attorney, (6) the individual is given at least 21 days to consider the agreement or 45 days if the waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, (7) the agreement provides that for a period of at least 7 days following its execution, the individual may revoke the agreement and the agreement does not become effective until the revocation period has expired, and (8) if the waiver is requested in connection with an exit incentive or other employment termination program, the employer informs the individual in writing of (a) any class, unit or group of individuals covered by such program, any eligibility factors for such program, and any applicable time limits for such program, and (b) the job titles and ages of all individuals eligible or selected for the program and the ages of all individuals in the same job classification or organizational unit who are are not eligible or selected for the program.
  
  
• For employment within Massachusetts a charge must be filed with the EEOC within 300 days after the alleged unlawful employment practice occurred. A civil action may be commenced 60 days after a charge has been filed with the EEOC. (29 U.S.C. s. 626(d)(1))
  
  
• Americans with Disabilities Act of 1990 (42 U.S.C. s. 12101).


• The ADA prohibits discrimination on the basis of mental or physical disability or perceived mental or physical disability. A "disability" means with respect to an individual (A) a physical or mental impairment that substantially limits one or more major life activities, (B) a record of such impairment, or (C) being regarded as having such an impairment. It also prohibits retaliation against employees who oppose such discrimination. It applies to employers with 15 or more employees, including state and local governments.


• In Lopez-Lopez v. The Robinson School, 958 F.3d 39 (1st Cir. 2020), the First Circuit Court of Appeals held that an employer's driving an employee to a psychiatric facility and obtaining a court order to have her involuntarily evaluated was not discrimination or retaliation under the ADA. Employers may take steps to ensure that employees are mentally fit to perform work so long as there is a legitimate business necessity for doing so.


• In Burnett v. Ocean Properties, Ltd., et al., 987 F.3d 57 (1st Cir. 2021), the First Circuit Court of Appeals applied the integrated-enterprise test: (i) 'centralized control over labor relations'; (ii) 'interrelation between operations'; (iii) 'common management'; and (iv) 'common ownership)'" to determine that the two defendant companies were a single employer. The Court noted that under the ADA a reasonable accommodation "may include . . . making existing facilities used by employees readily accessible to and usable by individuals with disabilities." Finally, the Court upheld the jury's award of punitive damages, finding that there was sufficient evidence that the defendants had acted with reckless indifference to plaintiff's rights because they had failed to follow up with him regarding his accommodation request on three occasions


• In O'Rourke v. Tiffany and Co., 988 F.3d 23 (1st Cir. 2021), the plaintiff claimed that her former employer retaliated against her for exercising her rights under the Family and Medical Leave Act (FMLA) and discriminated against her on the basis of a disability in violation of the Americans with Disabilities Act (ADA), when it eliminated her position. The First Circuit concluded that the employee failed to present any evidence that her employer's decision to eliminate her position was motivated by the requisite discriminatory or retaliatory intent necessary to pursue such claims. The Court reasoned that discriminatory or retaliatory intent on the part of the plaintiff's employer could not be derived from mere fact that it consulted with counsel before eliminating her position.


• To establish a claim for failure to reasonably accommodate a disability, a plaintiff must produce sufficient evidence that (1) he was disabled within the meaning of the ADA, (2) he was a qualified individual, and (3) the employer, despite knowing of the plaintiff's disability, did not reasonably accommodate it. Flaherty v. Entergy Nuclear Operations, Inc., 946 F.3d 41, 55 (1st Cir. 2019).
  
  
• In order to be a "qualified individual", the burden is on the employee to show that he possesses the requisite skill, experience, education and other job-related requirements for the position and that he is able to perform the essential functions of the position with or without reasonable accommodation. Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir. 2000).
  
  
• To determine whether an employer has failed to provide a reasonable accommodation, the plaintiff must first show not only that the proposed accommodation would enable him to perform the essential functions of his job, but also that it is feasible for the employer under the circumstances. Next the plaintiff must prove that he sufficiently requested the accommodation in question. Reed v. LePage Bakeries, Inc. , 244 F.3d 254, 259-260 (1st Cir. 2001). The plaintiff's request must be sufficiently direct and specific and must explain how the accommodation requested is linked to some disability. Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 102 (1st Cir. 2007) The defendant then may attempt to prove that in fact the proposed accommodation was not feasible and would constitute an undue hardship. Calero-Cerezo v. Dep't of Justice, 355 F.3d 6, 23 (1st Cir. 2004)
  
  
• An employee's request for accommodation sometimes creates a duty on the part of the employer to engage in an interactive process. Both the employer and the employee have an obligation to engage in this process in good faith. E.E.O.C. v. Kohl's Dep't Stores, Inc. , 774 F.3d 127, 132 (1st Cir. 2014)
  
  
• A refusal to give a requested accommodation does not by itself amount to bad faith so long as the employer makes an earnest attempt to discuss other potential reasonable accommodations. Together Employees. v. Mass Gen. Brigham Inc., 573 F.Supp.3d 412 (D. Mass. 2021)
  
  
• A hostile work environment tolerated by the employer is cognizable as an adverse employment action, Quiles-Quiles v. Henderson, 439 F. 3d 1, 8 (1st Cir. 2006); Noviello v. City of Boston, 398 F.3d 76, 89 (1st Cir. 2005), because it amounts to a change in the terms and conditions of employment proscribed by the ADA. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Murray v. Warren Pumps, LLC, 821 F.3d 77, 86 & n.1 (1st Cir. 2016)
  
  
• In order to prove disability-based harassment by means of a hostile work environment, a plaintiff must show that he was (1) disabled, (2) that he was subjected to a hostile environment, and (3) that the hostility was directed at him because of his disability. Quiles-Quiles v. Henderson, 439 F.3d 1, 5 (1st Cir. 2006). A hostile work environment claim in violation of the ADA requires the plaintiff to show, inter alia, that the allegedly discriminatory conduct was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive work environment. Murray v. Warren Pumps, LLC , 821 F.3d 77, 86 (1st Cir. 2016) The challenged conduct must be both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the plaintiff in fact did perceive it to be so. Brader v. Biogen Inc,, 983 F.3d 39, 59 (1st Cir. 2020)
  
  
• To establish his prima facie case for wrongful termination based on disability discrimination, a plaintiff must present credible evidence that, at the time of his termination: (1) he was handicapped within the meaning of the statute, (2) he was qualified to perform the essential functions of the job with or without reasonable accommodation, (3) he was terminated or otherwise subject to an adverse action by his employer, and (4) the position he occupied remained open and the employer sought to fill it. Jacques v. Clean-up Grp., Inc. , 96 F.3d 506, 511 (1st Cir. 1996); Dartt v. Browing-Ferris Indus., Inc., 427 Mass. 1, 7 (1998). A claim for constructive discharge typically refers to harassment so severe and oppressive that staying on the job while seeking redress - the rule save in exceptional cases - is intolerable. Gerald v. Univ. of P.R. , 707 F.3d 7, 25 (1st Cir. 2013) Work conditions must have been so intolerable that plaintiff's decision to resign was void of choice or free will - that his only option was to quit. E.E.O.C. v. Kohl's Dep't Stores, Inc. , 774 F.3d 127, 134 (1st Cir. 2014)
  
  
• Information regarding the medical condition or history of any employee must be maintained on separate forms and in separate medical files, except that supervisors and managers may be informed of necessary restrictions and accommodations of the employee, first aid and safety personnel may be informed if the disability might require emergency treatment, and government officials investigating compliance with this statute can be provided relevant information. (42 U.S.C. s. 12112(d))
  
  
• For employment within Massachusetts a charge must be filed with the EEOC within 300 days after the alleged unlawful employment practice occurred. (42 U.S.C. s. 12117(a))
  

• Rehabilitation Act of 1973 (29 U.S.C. s. 794).
  
  
  • This Act prohibits discrimination on the basis of mental or physical disability or perceived mental or physical disability by federal agencies, federal contractors and receipients of federal funding. It also prohibits retaliation against employees who oppose such discrimination.
  
  
  • Emotional distress damages are not recoverable under the Rehabilitation Act as well as three other Federal statutes. Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. __ , 142 S.Ct. 1562 (2022)
  
  
  • For employment within Massachusetts a charge must be filed with the EEOC within 300 days after the alleged unlawful employment practice occurred. (29 U.S.C. s. 794a(a))
  
  
• Equal Pay Act (29 U.S.C. s. 206(d)).
  
  
  • The Equal Pay Act prohibits wage discrimination on the basis of sex between equal jobs. It also prohibits retaliation against employees who oppose such discrimination. If a violation is found to be willful, a Court may order the doubling of the lost wages as additional damages. Such claims are subject to a 2 year statute of limitations, which is extended to 3 years in the case of a willful violation. (29 U.S.C. s. 255(a))
    
    
  • The Equal Pay Act does not require a showing of intent. Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974)
  
  
• Respect for Marriage Act (H.R. 8404).
  
  
  • Under the recently enacted Respect for Marriage Act, signed into law on December 13, 2022, states must recognize marriages between two individuals so long as the marriage was legal in the state where it was performed. The Act, however, does not recognize polygamous marriages. The Act also recognizes that there are "[d]iverse beliefs about the role of gender in marriage, held by reasonable and sincere people based on decent and honorable religious or philosophical premises." As such, churches and religious institutions will "not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage" under the law.
  
  
• Pregnant Worker Fairness Act (42 U.S.C. Chapter 21G) (EEOC Guidance) (Final EEOC Regulations) (29 CFR Part 1636)
  
  
  • On December 30, 2022, President Biden signed into law the Pregnant Workers Fairness Act. Under this statute employers with 15 or more employees are required to make reasonable accommodations to any known limitations relating to pregnancy, childbirth or related medical conditions, so long as the requested accommodation does not impose an undue hardship on the employer. Such requests for accommodation are protected activity, and the statute prohibits discrimination or retaliation against an employee for requesting such accommodations. Employers cannot force workers to take paid or unpaid leave in lieu of being provided a reasonable accommodation. This law took effect on June 27, 2023. The regulations went into effect on June 18, 2024.
  
  
• Civil Rights Act of 1866 (42 U.S.C. s. 1981)
  
  
  • This statute provides that all persons have the same rights enjoyed by white male citizens to make and enforce contracts (including at-will employment contracts). This has been interpreted to prohibit race discrimination (i.e., protects non-whites) and discrimination based on alienage. Under a recent U.S. Supreme Court case, Comcast Corp. v. National Association of African American-Owned Media, 589 U.S. __ , 140 S.Ct. 1009 (2020), a plaintaiff asserting race discrimination claims in the making of a contract bears the burden of proving that racial bias was the "but for" cause of the plaintiff's injury.
  
  
  • Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under 42 U.S.C. s. 1981, the controlling period would ordinarily be the most appropriate one provided by state law. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462 (1975)

• Civil Rights Acts of 1871 (42 U.S.C. s. 1983)


• This statute prohibits any person or entity under color of law from causing the deprivation of any rights secured by the U.S. Constitution or federal laws.
  
  
• To prevail on a claim of discrimination in violation of the Equal Protection Clause, in the absence of direct proof of illegal animus, a plaintiff must establish (1) that he was selected for adverse treatment compared with others similarly situated, and (2) that the selection for adverse treatement was based on an impermissible consideration. Alston v. Town of Brookline, 997 F.3d 23, 41 (1st Cir. 2021). To prove discrimination, a plaintiff can "identify and relate specific instances where persons situated similarly 'in all relevant aspects' were treated differently." The Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989) These relevant aspects include job "performance, qualifications and conduct, 'without such differentiating or mitigating circumstances that would distinguish' their situations." Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994)
  
  
• The right to speak on matters of public concern is guaranteed by the First Amendment. However, government employers may impose speech restrictions that are necessay for the employer to operate efficiently and effectively. MacRae v. Mattos, 106 F.4th 122 (1st Cir. 2024)
  
  
• Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under 42 U.S.C. s. 1983, the controlling period would ordinarily be the most appropriate one provided by state law. controlling period would ordinarily be the most appropriate one provided by state law. Wilson v. Garcia, 471 U.S. 261, 266-267 (1985); O'Sullivan v. Felix, 233 U.S. 318 (1914)

• Civil Rights Act of 1871 (42 U.S.C. s. 1985(3))
  
  
  • This statute prohibits two or more persons or entities from conspiring to depriving any person of the equal protection of the federal laws.
    
    
  • Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under 42 U.S.C. s. 1985, the controlling period would ordinarily be the most appropriate one provided by state law. controlling period would ordinarily be the most appropriate one provided by state law. Burnett v. Grattan, 468 U.S. 42, 48-49 (1984)
  
  
• Immigration and Nationality Act (8 U.S.C. s. 1324b)
  
  
  • This statute prohibits discrimination based on citizenship or immigration status, or national origin.
    
    
  • A person adversely affected by an unfair immigration-related employment practice may file a charge witht the Special Counsel within 180 days.
    
    
  • This statute does not apply to a person or entity that employs three or fewer employees.
    
    
  • No charge may be filed with the Special Counsel if a charge with respect to that practice based upon the same set of facts has been filed with the EEOC.
    
    
• Employee Retirement Income Security Act (29 U.S.C. s. 1001)
  
  
  • ERISA prohibits any person from discriminating against a participant or beneficiary for exercising any right under the provisions of an employee benefit plan or employee retirement plan or terminating anyone in order to deny them benefits under such plans. (29 U.S.C. s. 1140)
    
    
  • Such civil actions must be brought in the U.S. District Court where the plan is administered, where the breach took place, or where the defendant resides or may be found. (29 U.S.C. s. 1132(e))
    
    
  • No such civil action may be commenced after the earlier of (1) six years after the last action which constituted a breach or violation or (2) three years after the earliers date on which the plaintiff had actual knowledge of the breach or violation, except that in the case of fraoud or concealment, such action may be commenced not later than six years after the date of discovery or such breach or violation. (29 U.S.C. s. 1113)
    
    
• National Labor Relations Act (29 U.S.C. s. 151)
  
  
  • It is an unfair labor practice to discriminate against any employee or applicant because of his/her union activity, union affiliation or concerted activity.
    
    
  • To be timely unfair labor practices charges must be filed with the National Labor Relations Board within 6 months of the last act of discrimination or retaliation. (29 U.S.C. s. 160(b))
  
  
• OSHA (29 U.S.C. s. 660(c))
  
  
  • OSHA prohibits employers from discriminating against employees for filing an OSHA complaint or reporting a workplace hazard.
    
  
  
  • Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary of Labor alleging such discrimination. (29 CFR s. 1977.3)
    
  
  
• Uniform Services Employment and Reemployment Rights Act (USEERA) (38 U.S.C. s. 4311)
  
  
  • This statute prohibits discrimination in employment on the basis of military service. It also prohibits retaliation against someone who takes steps to oppose such discrimination.
    
    
  • A person who believes that his/her employer has violated this Statute can file a complaint with the U.S. Department of Labor at this website.
  
  
  • A person may instead commence an action for relief with respect to a complaint against a State (as an employer) or a private employer in a U.S. District Court (38 U.S.C. s. 4323) or with the Merit Systems Protection Board with respect to a Federal employer (38 U.S.C. s. 4324).

Different Theories of Liability

• Disparate Impact

• An employment policy or practice, even though it is neutral on its face and does not have a discriminatory purpose, can still violate the law if the implementation of that policy or practice has a discriminatory effect.

• A policy or practice which has a discriminatory effect may still be legal if the employer can demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.

• However, if the employee can prove that a less discriminatory policy or practice is available which still achieves the business objective, then the policy or practice used by the employer remains illegal. Griggs v. Duke Power Company , 401 U.S. 424, 431-432 (1971); (42 U.S.C. s. 2000e-2(k))

• Disparate Treatment
  
  
  • An employer cannot intentionally treat an applicant or an employee differently because of his/her protected status.
  
  
  • An employee presents a prima facie case of illegal disparate treatment if the employee produces evidence to show that other employees who are similarly situated in all relevant aspects except for their protected status were treated differently. Matthews v. Ocean Spray Cranberries, Inc. , 426 Mass. 122, 129 (1997). The employees need not be identical, but they must be comparable. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)

Specific Topics

• Executive Order 11246

• All Federal contractors and subcontractors with contracts of over $10,000 must take affirmative action in hiring and promoting qualified handicapped individuals.


• All Federal non-construction contractors or subcontractors with 50 or more employees and a contract or subcontract of $50,000 or more must have an affirmative action plan. (Standards are slightly different for construction contractors.)

• The Rehabilitation Act of 1973 (29 U.S.C. s. 794)

• All Federal contractors and subcontractors with contracts of over $10,000 must take affirmative action in hiring and promoting qualified handicapped individuals.
  
  
• Employers with a federal contract or subcontract of more than $50,000 must have a written affirmative action program prepared within 120 days following receipt of a contract.

• Vietnam-Era Veterans' Readjustment Assistance Act of 1974 (38 U.S.C. s. 4212)

• Federal contractors or subcontractors with a contract of $10,000 or more must take affirmative action to employ qualified disabled and Vietnam-era veterans.

• Persons over forty years of age are protected from age discrimination.
  
  

• In an action brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. s. 2000e) or under the Americans with Disabilities Act of 1990 (42 U.S.C. s. 12101) by a complaining party against an employer who engaged in unlawful intentional discrimination (as opposed to disparate impact discrimination), the complaining party may recover compensatory and punitive damages . (42 U.S.C. s. 1981a(a)(1) & (2))

• In cases where a discriminatory practice involves the provision of a reasonable accommodation under the Americans with Disabilities Act of 1990 (42 U.S.C. s. 12101) compensatory or punitive damages may not be awarded where the employer demonstrates good faith efforts, in consulation with the disabled person who has informed the employer that an accommodation is needed, to identify and make a reasonable accommodation that would provide the individual with an equally effective opportunity and would not cause an undue hardship on the employer. (42 U.S.C. s. 1981a(a)(3))

• A complaining party may recover punitive damages if the complaining party demonstrates that the employer engaged in a discriminatory practice with malice or reckless indifference to the federally protected rights of the aggrieved individual. (42 U.S.C. s. 1981a(b)(1))
  

• The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this statute, shall not exceed, for each complaining party:
  
  
  • (A) in the case of an employer who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
    
    
  • (B) in the case of an employer who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000;
    
    
  • (C) in the case of an employer who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and
    
    
  • (D) in the case of an employer who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000. (42 U.S.C. s. 1981a(b)(3))
  
  

• Excluding only fertile women from certain jobs cannot be justified on fears of potential liability. Rather an employer must rely on fully informing women of the risks and not acting negligently.
  
  

• An employer cannot discriminate against a qualified handicapped individual or an individual who is handicapped or whom the employer considers to be handicapped.

• An employer is required to accommodate an individual's handicap by making a "reasonable accommodation."

• An employer is not required to make any accommodation that would place an "undue hardship" on the its business.
  
  

• Religious organizations and educational institutions operated by religious organizations may limit their employment to individuals of a particular religion.
  
  
• The Supreme Court recently held that when a high school terminated a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks when other school employees and students were free to do other things, it violated both the Free Exercise and Free Speech Clauses of the First Amendment. Kennedy v. Bremerton School District, 597 U.S. 507, 142 S.Ct. 2407 (2022)

• An employer may not retaliate against any employee who in good faith has opposed an employment practice he/she believes to be discriminatory or who has filed charges or complaints.
  
  
• To make out a prima facie case of retaliation. the plaintiff must prove that (1) he or she engaged in protected activity under Title VII, (2) he or she suffered an adverse employment action, and (3) the adverse employment action was causally connected to the protected activity. Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for its employment decision. If the defendant meets its burden of production, the burden shifts back to the plaintiff to show that the proffered legitimate reason is in fact a pretext and that the job action was the result of the defendant's retaliatory animus. Kinzer v. Whole Foods Market, Inc., 99 F.4th 105 (1st Cir. 2024); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010)
  
  
• A hostile work environment, tolerated by the employer, is cognizable as a retaliatory adverse employment action if the harassment is sufficiently severe or pervasive. Rae v. Woburn Public Schools, 113 F.4th 86 (1st Cir. 2024)
  
  
• On February 8, 2024, in Murray v. UBS Securities, LLC, 601 U.S. __ , 144 S.Ct. 445 (2024), the U.S. Supreme Court in a case under the Sarbanes-Oxley Act of 2002 held that a plaintiff alleging discrimination has the burden of proving that his protected activity was a contributing factor in the unfavorable personnel action, but the plaintiff is not required to make a further showing that his employer acted with "retaliatory intent."

• Settlement agreements of Federal age discrimination claims under the ADEA must provide certain required provisions in order to be effective, including specific references to the ADEA, the individual must be advised to consult with an attorney, the individual must be given at least 21 days to consider the agreement or 45 days if the waiver is requested in connection with a termination program offered to a group of employees, the agreement must provide that for a period of at least 7 days following its execution the individual make revoke the agreement and the agreement does not become effective until the revocation period has expired, and if the waiver is requested in connection with a termination program, the individual must be informed in writing of (a) any class, unit or group of individuals covered by such program and all eligibility factors and (b) the job titles and ages of all individuals eligible or selected for the program and the ages of all individuals in the same job classification or organizational unit who are are not eligible or selected for the program. (29 U.S.C. s. 626(f)).

• such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986)

• EEOC guidelines provide that an employer must "take all steps necessary to prevent sexual harassment from occurring."
  
  
• The recently passed Speak Out Act, (42 U.S.C. s. 19401), signed into law on December 7, 2022, provides that with respect to disputes involving sexual harassment or sexual assault, nondisclosure and nondisparagement clauses that were agreed to before the dispute arose are not legally enforceable. These restrictions apply to agreements between employers and current, former and prospective employees, and independent contractors, and between providers of goods and services and consumers.


• Under a new Federal law entitled Ending Forced Arbitration Act (EFAA) amending the Federal Arbitration Act, as of March 3, 2022, any person alleging sexual harassment or sexual abuse can invalidate any predispute arbitration agreement or class/collective action waiver that otherwise would require the claim to be arbitrated. Agreements to arbitrate sexual harassment or sexual abuse claims made after such claims have arisen remain enforceable and cannot be invalidated. (9 U.S.C. s. 401)


• Courts, not arbitrators, decide if this Act is applicable.