Massachusetts High Court Extends Retaliation Protection to Former Employees
Massachusetts High Court Extends Retaliation Protection to Former Employees
Psy-Ed Corp., et al. v. Klein, et al. This was the first instance in which the SJC ruled that post-employment actions taken by an employer against a former employee may violate the anti-retaliation provisions of the Commonwealth’s Fair Employment Practices Act.
Background The Psy-Ed Corporation was a company that publishes a magazine for families of children with disabilities and special health care needs (it has since dissolved).
https://www.pageqq.com/en/content/page/listing.html https://www.youtube.com/channel/UCfDXGdzdCaeHX1897XYJeaw/videos
Following financial problems in the 1990s, the company reorganized and defendant Joseph Valenzano became the company’s president, CEO, a member of the board of directors,
and publisher. Plaintiff Kimberly Schive worked for Psy-Ed as an editor. Because she is deaf, Schive required certain accommodations, including that Psy-Ed provide her with an interpreter at meetings. On a number of occasions,
the company did not provide an interpreter, and Schive perceived Valenzano as being impatient and angry when she asked questions during meetings in order to follow the group discussion.
During a further restructuring in 1996, Psy-Ed’s management team moved some company functions to New Jersey. Schive was not offered a full time position with the company post-restructure, and shortly thereafter,
she filed a complaint with the Massachusetts Commission Against Discrimination (MCAD). In 1999, more than two years after Schive ceased working at Psy-Ed, the MCAD issued a probable cause determination in response to Schive’s discrimination complaint.
Two weeks after the MCAD decision, Psy-Ed and Valenzano filed a lawsuit alleging that Schive had defamed them, committed a civil conspiracy, and that she had tortuously interfered with their contractual and business relations.
In response to the lawsuit filed against her, Schive filed a second complaint with the MCAD, asserting that Psy-Ed filed a lawsuit against her solely to retaliate because she engaged in protected activity (that is, because she asserted a discrimination claim with the MCAD).
The Legal Analysis The question presented is in this case is whether a former employee can bring a retaliation claim against a former employer for actions that the employer took following the termination of the employer-employee relationship.
To understand why the SJC ruled in the employee’s favor, it is necessary to understand the Commonwealth’s anti-discrimination and anti-retaliation laws, and their intersection.
The same law that makes discrimination illegal, General Law Chapter 151B, makes retaliation illegal. Chapter 151B, §4(1) prohibits substantive discrimination; Chapter 151B, §§4(4) and 4(4A) prohibit retaliation against those who,
generally speaking, oppose discrimination. Notably, you will not find the word “retaliation” in the text of Chapter 151B. Rather,
you’ll find a description of actions that could be deemed retaliatory: discharge, expel, discriminate, coerce, intimidate, threaten, and interfere.
The table, below, summarizes the applicable prohibitions. 151B Comparison Table G.L. 151B Relates to Substantive Prohibition § 4(1) Discrimination Illegal for “an employer…
because of the race, color, religious creed, national origin, sex, sexual orientation…genetic information, or ancestry of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms,
conditions or privileges of employment… § 4(4) Retaliation Illegal for “any person… to discharge, expel or otherwise discriminate against any person because he has…filed a complaint, testified or assisted in any proceeding under [G. L. c. 151B, § 5]“ § 4(4A) Retaliation Illegal for “any person to coerce, intimidate,
threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter.”
I find two things interesting about the discrimination and retaliation sections of Chapter 151B that help explain why the SJC expanded the ant-retaliation rights to former employees. First, while the word “discriminate” is used in both sections 4(1) and 4(4) of Chapter 151B,
the meaning of “discriminate” is much broader in the retaliation section. Section 4(1) makes it illegal for an employer to discriminate against a protected individual “in compensation or in terms, conditions or privileges of employment.”
This is commonly referred to as an “adverse employment action.” Section 4(4) uses the word “discriminate” in an exceptionally broader sense.
It makes it illegal for “any person . . . to discriminate against any person because he has . . . filed a complaint, testified or assisted . . .”. Section 4(4), unlike section 4(1),
does not limit the prohibition on discrimination to an employment action: any discrimination that is reasonably likely to deter a person from engaging in protected activity is prohibited.
Second, Section 4(1) prohibits “an employer” from discriminating, i.e. taking an adverse employment action, against a member of a protected group. Section 4(4),
in a much broader sense, prohibits “any person” from retaliating against “any person.” The prohibition is not limited to the employer/employee relationship.
Back to Schive and Psy-Ed In the Schive case, the SJC first concluded that a former employee has the right to assert a retaliation claim against her former employer for retaliation that occurred outside of the employment relationship.
In so ruling, the SJC stated that Section 4(4) addresses action taken by “any person” against “any person,” while § 4(4A) concerns actions taken by “any person” against “another person.” In neither case does the statute expressly require that an employer-employee relationship exist at the time of the wrongful conduct, or at any other time.
Next, the SJC upheld the trial judge’s findings that (1) Schive engaged in legally protected conduct by filing a charge with the MCAD, and; (2) Schive’s former employers retaliated against her by filing a baseless lawsuit.
The SJC credited the trial-court conclusion that the lawsuit against Schive was baseless because: (a) it was dismissed; (b) there was no evidence of damages; (c) it was filed 10 days after the MCAD issued a favorable ruling on Schive’s behalf,
but 2 years after she ceased working at Psy-Ed, and; (d) Valenzano’s testimony that he filed the lawsuit against Schive to “retry” the MCAD claims.
Employer Take-Aways Ensure that your company includes an anti-retaliation statement in the Employee Hanok,
and that managers and employees understand its substantive requirements. Remember that an employer’s obligations under the anti-retaliation provisions of Chapter 151B do not cease with the employment relationship.
Post-employment retaliation could arise in the following situations: - Attempting to influence a former employee’s future prospects for employment;
- Giving an unjustified negative job reference; - Refusing to provide a job reference; - Making unsubstantiated disparaging remarks to others in the industry about the former employee;
- Informing a former employee’s prospective employer about the former employee’s protected activity.
You may give a negative reference about a former employee who engaged in protected activity as long as you are not motivated by retaliatory animus.
This means that you should have a paper trail from the employee’s personnel file to justify your reference.
Even if an employee or former employee files an unsuccessful discrimination charge, you must not take any retaliatory action as long as the report was made in “good faith.”
The MCAD often awards damages to an employee on a retaliation claim, even where the underlying discrimination claim was unsuccessful. Be mindful of timing.
In the Schive case, the court was particularly concerned that the former employer waited two years post-employment to file a lawsuit against Schive, and then, did so two weeks after the MCAD found in her favor.
The strongest evidence of retaliation is a close temporal connection between protected activity and an adverse action.
Whenever you conduct an internal investigation, remind all witnesses (the complainant, the subject of the complaint,
and third-party witnesses) that the company will not condone retaliation of any type. Provide information about your internal procedure to report discrimination and retaliation. ABOUT THE AUTHOR:
Allyson Kurker Allyson Kurker has worked with a variety of clients, from Fortune 500 companies to family-owned businesses, and many in between.
While Allyson’s clients are varied, her approach is consistent: understand the client’s business objectives; counsel clients so they can prevent employment disputes; find early resolutions when possible; litigate tenaciously when necessary.
Allyson Kurker has been selected as an “Up and Coming Lawyer” by Massachusetts Lawyers Weekly, in conjunction with the Massachusetts Bar Association.
This award is presented annually to 20 “lawyers who have been members of the bar for ten years or less, but who have already distinguished themselves in some way and appear poised for even greater accomplishments.”
In November 2011, Allyson was honored as a “Rising Star” in employment law by Super Lawyers, a service that rates outstanding lawyers from more than 70 practice areas.
No more than 2.5 percent of the lawyers in the state are named to this annual list.
https://www.pageqq.com/en/content/page/listing.html https://www.youtube.com/channel/UCfDXGdzdCaeHX1897XYJeaw/videos
Psy-Ed Corp., et al. v. Klein, et al. This was the first instance in which the SJC ruled that post-employment actions taken by an employer against a former employee may violate the anti-retaliation provisions of the Commonwealth’s Fair Employment Practices Act.
Background The Psy-Ed Corporation was a company that publishes a magazine for families of children with disabilities and special health care needs (it has since dissolved).
https://www.pageqq.com/en/content/page/listing.html https://www.youtube.com/channel/UCfDXGdzdCaeHX1897XYJeaw/videos
Following financial problems in the 1990s, the company reorganized and defendant Joseph Valenzano became the company’s president, CEO, a member of the board of directors,
and publisher. Plaintiff Kimberly Schive worked for Psy-Ed as an editor. Because she is deaf, Schive required certain accommodations, including that Psy-Ed provide her with an interpreter at meetings. On a number of occasions,
the company did not provide an interpreter, and Schive perceived Valenzano as being impatient and angry when she asked questions during meetings in order to follow the group discussion.
During a further restructuring in 1996, Psy-Ed’s management team moved some company functions to New Jersey. Schive was not offered a full time position with the company post-restructure, and shortly thereafter,
she filed a complaint with the Massachusetts Commission Against Discrimination (MCAD). In 1999, more than two years after Schive ceased working at Psy-Ed, the MCAD issued a probable cause determination in response to Schive’s discrimination complaint.
Two weeks after the MCAD decision, Psy-Ed and Valenzano filed a lawsuit alleging that Schive had defamed them, committed a civil conspiracy, and that she had tortuously interfered with their contractual and business relations.
In response to the lawsuit filed against her, Schive filed a second complaint with the MCAD, asserting that Psy-Ed filed a lawsuit against her solely to retaliate because she engaged in protected activity (that is, because she asserted a discrimination claim with the MCAD).
The Legal Analysis The question presented is in this case is whether a former employee can bring a retaliation claim against a former employer for actions that the employer took following the termination of the employer-employee relationship.
To understand why the SJC ruled in the employee’s favor, it is necessary to understand the Commonwealth’s anti-discrimination and anti-retaliation laws, and their intersection.
The same law that makes discrimination illegal, General Law Chapter 151B, makes retaliation illegal. Chapter 151B, §4(1) prohibits substantive discrimination; Chapter 151B, §§4(4) and 4(4A) prohibit retaliation against those who,
generally speaking, oppose discrimination. Notably, you will not find the word “retaliation” in the text of Chapter 151B. Rather,
you’ll find a description of actions that could be deemed retaliatory: discharge, expel, discriminate, coerce, intimidate, threaten, and interfere.
The table, below, summarizes the applicable prohibitions. 151B Comparison Table G.L. 151B Relates to Substantive Prohibition § 4(1) Discrimination Illegal for “an employer…
because of the race, color, religious creed, national origin, sex, sexual orientation…genetic information, or ancestry of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms,
conditions or privileges of employment… § 4(4) Retaliation Illegal for “any person… to discharge, expel or otherwise discriminate against any person because he has…filed a complaint, testified or assisted in any proceeding under [G. L. c. 151B, § 5]“ § 4(4A) Retaliation Illegal for “any person to coerce, intimidate,
threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter.”
I find two things interesting about the discrimination and retaliation sections of Chapter 151B that help explain why the SJC expanded the ant-retaliation rights to former employees. First, while the word “discriminate” is used in both sections 4(1) and 4(4) of Chapter 151B,
the meaning of “discriminate” is much broader in the retaliation section. Section 4(1) makes it illegal for an employer to discriminate against a protected individual “in compensation or in terms, conditions or privileges of employment.”
This is commonly referred to as an “adverse employment action.” Section 4(4) uses the word “discriminate” in an exceptionally broader sense.
It makes it illegal for “any person . . . to discriminate against any person because he has . . . filed a complaint, testified or assisted . . .”. Section 4(4), unlike section 4(1),
does not limit the prohibition on discrimination to an employment action: any discrimination that is reasonably likely to deter a person from engaging in protected activity is prohibited.
Second, Section 4(1) prohibits “an employer” from discriminating, i.e. taking an adverse employment action, against a member of a protected group. Section 4(4),
in a much broader sense, prohibits “any person” from retaliating against “any person.” The prohibition is not limited to the employer/employee relationship.
Back to Schive and Psy-Ed In the Schive case, the SJC first concluded that a former employee has the right to assert a retaliation claim against her former employer for retaliation that occurred outside of the employment relationship.
In so ruling, the SJC stated that Section 4(4) addresses action taken by “any person” against “any person,” while § 4(4A) concerns actions taken by “any person” against “another person.” In neither case does the statute expressly require that an employer-employee relationship exist at the time of the wrongful conduct, or at any other time.
Next, the SJC upheld the trial judge’s findings that (1) Schive engaged in legally protected conduct by filing a charge with the MCAD, and; (2) Schive’s former employers retaliated against her by filing a baseless lawsuit.
The SJC credited the trial-court conclusion that the lawsuit against Schive was baseless because: (a) it was dismissed; (b) there was no evidence of damages; (c) it was filed 10 days after the MCAD issued a favorable ruling on Schive’s behalf,
but 2 years after she ceased working at Psy-Ed, and; (d) Valenzano’s testimony that he filed the lawsuit against Schive to “retry” the MCAD claims.
Employer Take-Aways Ensure that your company includes an anti-retaliation statement in the Employee Hanok,
and that managers and employees understand its substantive requirements. Remember that an employer’s obligations under the anti-retaliation provisions of Chapter 151B do not cease with the employment relationship.
Post-employment retaliation could arise in the following situations: - Attempting to influence a former employee’s future prospects for employment;
- Giving an unjustified negative job reference; - Refusing to provide a job reference; - Making unsubstantiated disparaging remarks to others in the industry about the former employee;
- Informing a former employee’s prospective employer about the former employee’s protected activity.
You may give a negative reference about a former employee who engaged in protected activity as long as you are not motivated by retaliatory animus.
This means that you should have a paper trail from the employee’s personnel file to justify your reference.
Even if an employee or former employee files an unsuccessful discrimination charge, you must not take any retaliatory action as long as the report was made in “good faith.”
The MCAD often awards damages to an employee on a retaliation claim, even where the underlying discrimination claim was unsuccessful. Be mindful of timing.
In the Schive case, the court was particularly concerned that the former employer waited two years post-employment to file a lawsuit against Schive, and then, did so two weeks after the MCAD found in her favor.
The strongest evidence of retaliation is a close temporal connection between protected activity and an adverse action.
Whenever you conduct an internal investigation, remind all witnesses (the complainant, the subject of the complaint,
and third-party witnesses) that the company will not condone retaliation of any type. Provide information about your internal procedure to report discrimination and retaliation. ABOUT THE AUTHOR:
Allyson Kurker Allyson Kurker has worked with a variety of clients, from Fortune 500 companies to family-owned businesses, and many in between.
While Allyson’s clients are varied, her approach is consistent: understand the client’s business objectives; counsel clients so they can prevent employment disputes; find early resolutions when possible; litigate tenaciously when necessary.
Allyson Kurker has been selected as an “Up and Coming Lawyer” by Massachusetts Lawyers Weekly, in conjunction with the Massachusetts Bar Association.
This award is presented annually to 20 “lawyers who have been members of the bar for ten years or less, but who have already distinguished themselves in some way and appear poised for even greater accomplishments.”
In November 2011, Allyson was honored as a “Rising Star” in employment law by Super Lawyers, a service that rates outstanding lawyers from more than 70 practice areas.
No more than 2.5 percent of the lawyers in the state are named to this annual list.
https://www.pageqq.com/en/content/page/listing.html https://www.youtube.com/channel/UCfDXGdzdCaeHX1897XYJeaw/videos
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