© 2015 Messing, Rudavsky & Weliky, P.C.

Transgender Rights - True or False? An employer is entitled to ask for medical proof of gender assignment before providing an employee access to a gender-specific restroom. © 2015 Messing, Rudavsky & Weliky, P.C.

Transgender Rights - True or False? False. Requesting such proof may be evidence of gender-identity discrimination prohibited under G.L. c. 151B and the public accommodations law, G.L. c. 272. Employers are required to respect employees’ sincerely held internal sense of their own gender identity. See Gender Identity Guidance, Massachusetts Commission Against Discrimination, Rev. December 5, 2016, §§III(A) & (D). © 2015 Messing, Rudavsky & Weliky, P.C.

Transgender Rights -Best Practices (1) Revise all non-discrimination and other employer policies to include a statement that gender identity discrimination and harassment is prohibited (2) Update personnel records to reflect employee’s stated name and gender identity, keep pre-transition information confidential (3) Prohibit derogatory comments or jokes about transgender persons in the workplace; discipline persons who engage in discriminatory conduct (4) Use names, pronouns, and gender-related terms appropriate to employee’s stated gender identity © 2015 Messing, Rudavsky & Weliky, P.C.

Transgender Rights -Best Practices (5) Avoid gender-specific dress codes; permit employees to dress consistently with their gender identity (6) Provide access to any sex-segregated facility based on employee’s stated gender identity (7) Incorporate information about transgender employees and rights in all employee anti- discrimination/diversity trainings whether or not company employs transgender employees (8) Investigate and take appropriate remedial action when on notice of harassing or discriminatory conduct in the workplace © 2015 Messing, Rudavsky & Weliky, P.C.

Disability Rights - True or False? If a struggling employee with a known disability fails to use the company’s established process for requesting accommodation, an employer is within its rights to impose a performance improvement plan on the employee without engaging in the interactive accommodation process. © 2015 Messing, Rudavsky & Weliky, P.C.

Disability Rights - True or False? False. If the company had constructive notice of the employee’s disability and need for accommodation, the time to engage in the interactive process is before imposition of a PIP. Cooper v. Raytheon, 2016 Mass. Comm. Discrim. LEXIS 4 (February 26, 2016); 38 MDLR 28 © 2015 Messing, Rudavsky & Weliky, P.C.

Disability Rights - True or False? An employer has an obligation to engage in the interactive accommodation process even where the employee can’t describe her or his disability’s impact on the job or articulate an appropriate accommodation. © 2015 Messing, Rudavsky & Weliky, P.C.

Disability Rights - True or False? True. Savage v. Massachusetts Rehabilitation Commission, 2016 Mass. Comm. Discrim. LEXIS 15 (May 25, 2016); 38 MDLR 105 On the other hand . . . where an employee’s disability is not apparent, different accommodations are needed at different times, and an employee doesn’t make clear to the employer that particular work assignments violate particular accommodations, then the employee is not protected. Murray v. Warren Pumps, LLC, 821 F.3d 771 (1st Cir. 2016) © 2015 Messing, Rudavsky & Weliky, P.C.

Verdrager - True or False? An employer always has the right to terminate an employee engaged in a discrimination dispute who takes its confidential documents without authorization. © 2015 Messing, Rudavsky & Weliky, P.C.

Verdrager - True or False? False. Terminating an employee for taking copies of company documents may be illegal retaliation if the employee’s engaging in “self help discovery” was reasonable under the totality of the circumstances. Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 474 Mass. 382 (2016) © 2015 Messing, Rudavsky & Weliky, P.C.

Verdrager – “Reasonableness Factors” (1) How did the employee gain access to the documents? (2) Are the documents relevant to the employee’s dispute with her employer? Does accessing them disrupt the company’s business? (3) Why did the employee copy the documents rather than simply identifying their existence? (4) What did the employee do with them after copying them? © 2015 Messing, Rudavsky & Weliky, P.C.

Verdrager – “Reasonableness Factors” (5) How strong is the employer’s interest in keeping the document confidential? (6) Did the employee’s copying of the documents violate a clearly identified company policy on privacy or confidentiality? (7) How do the broad remedial purposes of Massachusetts’ laws against discrimination affect the balance between the employer’s and employee’s legitimate rights? © 2015 Messing, Rudavsky & Weliky, P.C.

Proving Discrimination - True or False? In order for a discrimination case to survive summary judgment and get to trial, a plaintiff just needs to show that the reasons the employer gave for the challenged decision were not the real reasons. © 2015 Messing, Rudavsky & Weliky, P.C.

Proving Discrimination - True or False? True! Verdrager; Bulwer v. Mount Auburn Hosp., 473 Mass. 672 (2016) © 2015 Messing, Rudavsky & Weliky, P.C.

Proving Discrimination Top Indicators of Discrimination: An Annotated List (1) Inconsistent application of practices or policies. Verdrager; Bulwer (2) Sudden, negative attention where no prior negatives. Verdrager (3) Failure to follow own procedures. Bulwer (4) Lack of thorough investigation of discrimination or harassment. See Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290 (2016) (5) Punishing the victim in harassment cases – enforced leave or transfer. See Kelley v. Dep’t of Conservation and Recreation, 90 Mass. App. Ct. 1111 (2016)(R 1:28) affirming Kelley v. Dep’t of Conservation and Recreation, 2014 Mass. Super. LEXIS 50 (Mar. 17, 2014) © 2015 Messing, Rudavsky & Weliky, P.C.

Equal Pay - True or False? An employer may always ask for an applicant’s salary history during the hiring process. © 2015 Messing, Rudavsky & Weliky, P.C.

Equal Pay - True or False? True. But not for long! Effective July 1, 2018, a prospective employer may not ask for an applicant’s prior compensation history before making a job offer. © 2015 Messing, Rudavsky & Weliky, P.C.

Thank you! © 2015 Messing, Rudavsky & Weliky, P.C.