Glossary of MA Conlaw distinctions
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- Will MA SJC do advisory opinions?
- Advisory opinions - MA courts will not issue advisory opinions b/w private litigants, but will answer certified questions from a federal court in unsettled questions of MA law + requests from legislature, Governor or executive counsel on important questions of law
- Can a city control the sale of liquor within its borders? How does it do that?
- Interstate Regulations - MA grants cities and towns broad control over the sale of liquor. A town may request that the legislature pass a "home-rule" petition forbidding the sale of alcohol w/in it borders
- What are the suspect classifications in MA?
- RESH - Religion, Ethnicity, Sex, Handicap
Suspect Classifications - In addition to race, alienage, national origin, MA views religious, ethnic, handicap- and sex-based discrimination as warranting strict-scrutiny. Applicable to state/local laws but not federal laws. Age not a suspect classification
- Can the SJC invalidate a federal law based on religious, ethnic, handicap, and sex based discrimination?
- No, the Massachusetts classifications other than race, alienage, and national origin come from the MA Constitution and apply only to state and local laws.
- Can you discriminate against someone based on their disability under the MA Constitution?
- No - Article 114 forbids discrimination against any "otherwise qualified" handicapped person in any program in any "program or activity" within the Commonwealth. Although SJC not explicitly so stated, article 114 probably reaches private as well as state acts of discrimination.
- Where does Massachusetts equal protection come from?
- Article 1 of the Massachusetts constitution provides that equality of the law may not be abridged or denied based on sex, race, color, creed or national origin
- What is the Massachusetts rational basis test?
- The Rational basis test applied in non-suspect class equal protection analysis - MA rational basis test has somewhat more bite than its federal counterpart. The courts explicitly balance the harm to the disadvantaged class against the public purpose of the classification survives if any state of facts reasonably may be conceived to justify it.
- Can two people of the same sex marry?
- Same Sex Marriage - SJC has ruled that denying marriage and its protections to same-sex couples is unconstitutional under equality and liberty provisions of MA constitution.
- What special protection does Mass have for its elections?
- Free Elections - Article 9 forbids state or private interference w/ electoral process
- What special protection does Mass have for the freedom of religion?
If there's a neutral law, what are the burdens of each party in a suit over that law?
- Freedom of Religion - Article 46 provides any law burdening free exercise of religion must:
1. Advance compelling gov't interests
2. Be narrowly tailored to achieve these interests
If law is neutral, claimant must show:
1. Sincerely held religious belief which
2. Conflicts with and is burdened by the state requirement
Gov't must then show
1. Requirement serves an unusually important gov't goal
2. Exemption for the claimant would substantially hinder the fulfillment of that goal
- Is there any remedy if you’re discriminated against by a private actor in Massachusetts?
- There might be. MA statutory law often protects individuals against discriminatory conduct by private as well as state actors. Apply constitutional standards for gov't conduct to private actors otherwise outside sphere of constitutional protection.
- What is the main Massachusetts statute forbidding discrimination by private actors?
- Chapter 151 B
- What does Chapter 151B require in employment?
When is discrimination permitted in employment under 151B?
Who does it apply to?
- Chapter 151 B: Employment - Employers, labor orgs, and employment agencies may not discriminate against any protected class in the hiring, firing, promoting, or in the terms, conditions or privileges of employment, including salary and promotions.
Discrimination is permissible only based on a "bona fide occupational qualification," that is, one based strictly on the legitimate requirements of the job.
151B also forbids anyone from aiding or abetting (or attempting to aid or abet) any discriminatory employment practice.
151B does not apply to employers w/ six employees or less.
- Does 151B apply to employers with 1 to 6 employees?
- No, 151B does not apply to employers with six employees or less.
- What does 151B require for housing?
- Chapter 151B Housing: 151B forbids discrimination against any protected class in the sale or lease of housing, and applies to those in the business of granting loans or engaging in real estate transactions. Also prohibits economic discrimination
- What does 151B require for credit and services?
- Chapter 151B Credit and services: Companies that issue credit services cannot discriminate against any protected class - nor may they practice economic discrimination (redlining - refusing to lend money in certain neighborhoods.)
- Can a lender refuse to lend money in a certain neighborhood?
- No, this is called redlining and is forbidden by Chapter 151B.
- What are the classes protected under 151B?
- Race, Color, National Origin, Ancestry, Sex, Sexual orientation.
(some provisions bar discrimination based on handicap and over 40)
Mnemonic: RCN Requires ASS
- Can I discriminate against an employee over age 40? What about discriminating against a 22 year old?
Do the provisions apply to credit offerors?
Can I have a mandatory retirement program?
- Age: Employers cannot discriminate based on age where claimant is over 40, but can discriminate based on youth.
Age discrimination provisions do not apply to those extending credit.
Mandatory retirement programs are generally forbidden. A policy exception exists for, e.g., a person in an executive or high policy-making position if the retirement equals at least $44k. A policy exception also for tenured professors.
- What about handicapped people? Do they get anything special under the MA 151B?
- Handicap: Employers, owners/managing agents of certain housing accommodations, must make "reasonable accommodations" for otherwise qualified handicapped employees.
- I don’t like pregnant ladies. Can I discriminate against them?
- Sex: MA forbids discrimination based on pregnancy or other sex-related med conditions. Employers must permit pregnant women to use accumulated sick leave during or after pregnancy and must provide unpaid leave during birth. A woman returning to work after giving birth must be offered a reasonably equivalent position in terms of pay, job responsibilities, and opportunities for advancement.
- Can I create a hostile work environment? I really like calling women names.
I also like making fun of straight men. I call them breeders. I'm straight. Is this okay?
- Sexual harassment: 151B forbids discrimination in terms or conditions of employment through the creation of a hostile work environment and by sexually harassing behavior of supervisors or fellow employees. 151B also prohibits same-sex sexual harassment, regardless of sexual orientation of the parties.
- You’re killing me here! Can I at least discriminate against homosexuals under 151B and get away with it?
What does this do to adoption and divorce?
Gay marriage? Partner benefits?
- Sexual Orientation: 151B provides some protection against discrimination based on sexual orientation. These provisions protect Gay, Bisexual, and Straights, but not pedophiles.
MA forbids discrimination in awarding child custody in divorce or in placement of foster children.
Specifically precludes protection for gay marriage. So, employers don't need to provide benefits to gay partners.
- Can I force a Seventh Day Adventist to work on Saturday? What about a person who sincerely believes that they can’t work on the Sabbath, but whose religion doesn’t require it?
- Unlawful for employer to impose any condition of employment that would require an individual to violate a sincerely held religious belief.
Note: Analysis must focus on the sincerity of individual's belief, as court may not consider whether a particular belief is required by a religion. (That would violate establishment clause)
- How do I file a discrimination claim under 151B?
- 1. File w/ MCAD
2. w/in 6 months of violation (or continuing violation)
3. MCAD investigates and determines whether to proceed w/ full administrative hearing.
4. After 90 days or w/ permission of administrator, remove to Superior Court
5. Claimants who remove their cases have the right to jury trial
- What is the statute of limitations to file with MCAD for a discrimination action?
- The action must be filed within six months of the incident. OR Employee can file under "continuing violation" as long as one act falls w/in limitations period.
- What happens if I don’t file my 151B claim with MCAD?
- The MCAD filing is jurisdictional in nature, so failure to file bars the claim entirely.
- Can I file my 151B claim in Superior Court? What happens then? Can I get a jury trial?
- After a complaint has been with the MCAD for 90 days or w/ consent of the commissioner a claimant may file in superior court terminating the administrative proceedings.
Claimants who remove their cases have the right to jury trial
- I know I lose my 151B claim if I don’t file within 90 days, but do I lose all other claims?
- 151B: Preemption: Failure to file timely complaint w/ MCAD bars all remedies under 151B but does not bar other statutory claims or claims under common law, unless statute involved is remedial rather than substantive or the litigant seeks to expand a common law cause of action based on the public policy articulated in 151B
- Can you give me an example of a discrimination claim that might survive a failure to bring it w/in the 6 month limitations period of 151B?
- Common law claim for wrongful discharge based on interference w/ advantageous relations is not barred by 151B, even if the requisite animus for the tort is provided by an age-discriminatory motive.
- Okay, can you give me another example of a 151B claim that might survive if you failed to bring it within 6 months?
- An employment K or collective bargaining agreement containing an anti-discrimination provision provides an independent cause of action for breach of contract and is not preempted by 151B.
- Now, can you give me an example of a claim that might be pre-empted if I fail to file my MCAD claim?
- An attempt to bring a direct action under the MA Constitution or to bring a claim under the MA Civil Rights Act (MCRA) may be barred if 151B provides the exclusive remedy for the alleged discrimination, such as a claim of handicap discrimination.
- You said 151B does not apply to employers with 6 or fewer employees, what happens to my claims then?
- When 151B does not apply, common law claims, claims under the MCRA, and claims under the MA Equal Rights Act are not precluded -- i.e. 151B does not apply to employers with fewer than six employees, so those employees may raise common law or other statutory rights to address injuries resulting from sexual harassment.
- Who has the burden of proof in a 151B action?
- 1. P proves prima facie case of discrimination
2. D proves legitimate, nondiscriminatory reason for action.
3. P proves pretext (actions actually done for discriminatory reason)
- What remedies are available for a 151B violation?
- 1. Injunctive relief
2. compensatory damages
3. emotional distress
4. attorneys’ fees and costs,
5. punitive damages.
IMA PE teacher (Injunctive, monetary, attorney, punitive, emotional)
- What sort of injunctive relief is available for a 151B violation?
- Injunctive Relief: The MCAD and the superior court may award injunctive relief, including cease-and-desist orders and orders directing the hiring, reinstatement, or upgrading of employees.
CD, How R U? (Cease/Desist, Hire, Reinstate, Upgrade)
- What sorts of compensatory damages are available for a 151B violation?
- Compensatory Damages: Claimants may be awarded lost wages, anticipated lost wages, and emotional distress damages.
LAD - (Lost, anticipated, Distress)
Lost wages may include the value of benefits lost, including pensions that would have accrued.
- Does the plaintiff have to present expert testimony to prove the existence of emotional distress in a 151B action?
- Emotional distress is deemed a natural and probable consequence of discrimination so expert testimony is not needed to establish its existence.
- What about attorneys’ fees and costs in a 151B discrimination claim? The cost of litigation is pretty steep.
- Attorneys' fees and reasonable costs may be awarded to prevailing claimants.
- I really want to punish these bastards for violating 151B! Is there some way to get punitive damages?
- Punitive damages may only be awarded by the superior court, not by MCAD, for egregious or willful violations of 151B (see exception for housing cases below).
- Does the charitable immunity cap apply to actions under 151B?
- No, the charitable immunity cap does not apply to actions under 151B.
- Anything else I can get, say for a housing case under 151B?
- In a housing case, damages can include the expenses used for alternative housing and moving costs incurred as a result of the unlawful practice.
- Are there civil damages for violating 151B?
- Violation Number:
2. $25k if w/in 5 years
3. $50k if w/in 7 years
- Are there other Massachusetts statutes of note? Perhaps one that is judged in relation to the rights and privileges of white guys?
- MA Equal Rights Act (MERA) - MERA provides that all persons, regardless of "sex, race, color, creed or national origin" shall have same rights as white males to (i) make and enforce contracts, (ii) purchase, lease, and sell real and personal property, and (iii) have the equal benefit of the laws. Section 103 provides the same rights to persons, "regardless of handicap or age."
Corporation for Public Broadcasting (Contract, Property, Benefit of law)
- What is the procedure for filing an action under the Massachusetts Equal Rights Act?
- Procedure: 6-mo statute of limitations applies, and claimant must 1st file w/ MCAD or bring suit directly in superior court.
- What remedies are available under the Massachusetts Equal Rights Act?
- Remedies: prevailing claimants are entitled to equitable, including injunctive relief, compensatory and exemplary damages, including emotional distress, and a mandatory award of attorneys' fees and costs.
IMA PE teacher
- How about a law that covers general civil rights?
- MA Civil Rights Act (MCRA)
1. Anyone (private or state actor)
2. Interfering w/ any right
3. Secured by MA or US constitutions or laws
4. through threats, intimidation or coercion
- What are the limits on the Massachusetts Civil Rights Act?
- Requires that D threaten, intimidate or coerce the P into doing something.
Direct violation of rights are not subject to liability unless in addition to attempt to force P to do something.
- What are the remedies available under the Massachusetts Civil Rights Act?
- 1. Injunctive relief
2. Monetary Damages
3. Attorney fees
4. SJC upheld injunction prohibiting D from harassing/harming any member of protected class + P's
IMA Class clown (Injunction, Monetary, Attorney, protection for class)
- Can employers pay women and men different wages for the same work?
- Equal Pay Act: no wage discrimination based on sex - employers cannot pay men and women different wages for "work of like or comparable character or work of like or comparable operations." Court must determine (i) whether the substantive content of the job is comparable -- i.e. whether the duties of the job have important common characteristics and (ii) whether the two positions involve comparable skill, effort, responsibility, and working conditions. Act also requires reasonable maternity leave.
- Can an amusement park discriminate based on sexual orientation?
- MA Public Accommodation Law: MA forbids discrimination "in any place of public resort, accommodation or amusement" based on race, religion, national origin, sex, physical or mental disability, or sexual orientation. "Place of public accommodation" defined expansively, includes inns, taverns, hotels, retail establishments, hospitals, transportation facilities. Also includes insurance/credit agencies w/ a place of business in MA and parades on a public street to which public invited. Public accommodation law reaches discrimination in private organizations if such org own a "place" or leases space for meetings. To be protected from law, org has to show that it is highly selective in its membership (beyond merely excluding members of protected groups).
- Are there any constitutional defenses to anti-discrimination statutes?
- Constitutional defenses to anti-discrimination statutes: MA statutory ant-discrimination laws are subject to constitutional review in their application. In some instances, federal constitutional rights may trump state statutory provisions.
- John wants to picket at Planned Parenthood. Is there anything he should consider?
- Injunction regulating conduct: GL c. 266 § 120 E requires protestors at abortion clinics to be 18 feet from entrance. Also, a particular clinic had third party standing to seek an injunction requiring a particular protestor to remain 50 feet from clinic b/c the protestor's behavior constituted a public nuisance that interfered w/ patients' right to seek an abortion.
- Can a judge issue an injunction against a litigant speaking to the media during a trial?
- Injunction regulating speech: an injunction which restrains a litigant from discussing case in media is a prior restraint on speech which must be based on a compelling interest with no reasonable, less restrictive alternative to the order available. A general interest in maintaining the anonymity of children's identity in a care and protection case is not sufficiently compelling to sustain an injunction absent specific findings as to the harmful effect of disclosure on children.
- Judge John Jakes is a family court judge. Before him is a child involved in a care and protection case. What does he need to find before he can issue an injunction against anyone involved talking with the media.
- A general interest in maintaining the anonymity of children's identity in a care and protection case is not sufficiently compelling to sustain an injunction absent specific findings as to the harmful effect of disclosure on children.
So, he’d need to make specific findings about the harmful effect that disclosure would have on this child.
- Can a public housing development prohibit all door-to-door campaigning and soliciting?
- No - Regulations in residential areas: Public Housing - A public housing authority's policy prohibiting all door-to-door campaigning and soliciting violates tenants' right to receive communications and non-tenants rights to distribute information in a public forum such as a public housing development.
- What about in schools, do students lose their right to speak when they enter the school house?
- Freedom of expression in Public Schools: By statute, MA provides protection to the expression of students unless such expression causes disruption or disorder w/in school - even speech considered lewd or vulgar is protected unless it causes disruption.
- Johnny wears a t-shirt that says, “Fuck the Draft” to school. Can he be ordered to remove the shirt if it isn’t causing a disruption?
- No. By statute, MA provides protection to the expression of students unless such expression causes disruption or disorder w/in school - even language considered lewd or vulgar is protected unless it causes disruption.
- Can a city criminalize begging?
- No. - A statute imposing criminal liability for soliciting contributions and peaceful begging in public is unconstitutional as overbroad and unreasonable content-based restriction on expressive activity
- Is there a right to bear arms in the Massachusetts Constitution?
- Right to bear arms - No right to bear arms under art. 17 of the MA Declaration of Rights for a private citizen to keep and bear arms and thus to require that a citizen have a right to do so is not unconstitutional; nor is there any question of a property right or deprivation of liberty involved in the statutory procedures for obtaining a license for obtaining a license to carry firearms.
- For the Equal Pay Act, what two things does the court look at?
- Court must determine
(i) whether the substantive content of the job is comparable -- i.e. whether the duties of the job have important common characteristics and
(ii) whether the two positions involve comparable skill, effort, responsibility, and working conditions.
1. Comparable Content
2. Comparable REWS (Responsibility, Effort, Working condition, skill)
- What does one have to show to avoid being required to let in (women/men/blacks/gays) into your private club under the public accomodation law?
- To be protected from law, org has to show that it is highly selective in its membership (beyond merely excluding members of protected groups).
- You're the head of the Kiwannis and you exclude women, does the Public Accomodation law apply to you?
- It might - Public accommodation law reaches discrimination in private organizations if such org own a "place" or leases space for meetings.
- What does reasonable mean when we're talking about "reasonable accomodations" for handicapped persons?
- 1. No undue financial hardship on employer
2. Not require employer to waive or disregard essential functions of the job
3. Likelihood of success
- What impairments don't get reasonable accomodations under 151B?
- Non-chronic impairments, such as broken limbs, sprained joints, concussions, appendicitis, etc. are not considered handicaps for purposes of 151B.
- Does the 20K charitable immunity cap apply to actions under 151B?
- No - 20k charitable immunity cap does not apply to actions under 151B.
- What two statutes allow for punitive and emotional distress damages for violations of civil rights?
Which one does not?
- MERA & 151B allow for punitive and emotional damages (IMA PE)
MCRA does not
- Who may bring an action under the MCRA?
- AG or Private Citizen
1. AG gets injunction (or other equitable relief)
2. Private party gets injunction or equitable relief including economic damages
Either if prevails gets attorney's fees and costs.
- When is discrimination permissible under 151B?
- Discrimination is permissible only based on a "bona fide occupational qualification," that is, one based strictly on the legitimate requirements of the job.
BFOQ - Bona Fide Occupational Qualification
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