Rise in Retaliation Claims

For over a decade, the Equal Employment Opportunity Commission (“EEOC”) has seen a significant increase in retaliation claims.  Since 2000, the number of such claims filed annually has increased by more than 100 percent.  In 2014 alone, retaliation accounted for 42.8% of all claims processed by the EEOC.  It is by far the most common type of discrimination the EEOC addresses.

What is a Retaliation Claim?

“Retaliation” means any adverse action(s) taken by an employer in response to a “protected activity” in which an employee engages.  A “protected activity” means a formal or informal complaint about harassment or discrimination at work, whether the harassment or discrimination is directed against you or against someone else, as long as your complaint was based on a reasonable, good-faith belief that illegal harassment or discrimination occurred.  For example, if you complain about your employer and your employer reprimands you, that is considered retaliation.  What the employer did was illegal.  An appropriate response might be to file a claim against your employer with a state or federal agency such as the Equal Employment Opportunity Commission (federal) or the Massachusetts Commission Against Discrimination (state of Massachusetts).  The specific type of claim you need to file would be a Retaliation Claim.

Why the Increase?

There are two major reasons why retaliation claims have increased.  The first has to do with recent Supreme Court rulings that have broadened the categories of people who qualify for anti-retaliation protection under Title VII of the Civil Rights Act.  The second is the greater success employees have had in proving retaliation compared to other types of discrimination charges.

Supreme Court Rulings

In recent years, the Supreme Court has issued rulings that expand the criteria that qualify someone for protection from the anti-retaliation laws.  For starters, rulings have allowed the definition of “employee” in Title VII to include former employees in order to prevent retaliation in such areas as references and rehiring.

Rulings have also been pivotal in broadening “zones of interests” when properly identifying victims of retaliation.  For example, if you file a claim against your employer and your employer takes action against your spouse, and your spouse is also an employee, under the right circumstances this action can be considered illegal retaliation.

The Supreme Court has also ruled in favor of plaintiffs who claim their employers retaliated after they made oral as well as written complaints. The Supreme Court views retaliation in the same way, whether the original complaint was presented formally or informally.

Rulings have also broadened the spectrum of retaliation to include acts that affect an individual outside the workplace.  In fact, the Supreme Court has made clear that any action that would discourage a reasonable employee from making a discrimination complaint violates Title VII’s anti-retaliation clause.

Judges and Juries “Get It”

It’s easier for a complainant to prove retaliation to the satisfaction of a jury than to prove other types of discrimination.  It is easy for people to believe that a person in power reacted negatively to a complaint made by a subordinate through the use of some retaliatory measure.  It is actually harder for people to believe that a subordinate’s treatment would be exactly the same after he/she took part in an action his/her manager didn’t like.  Jurors and judges recognize that a complaint against an employer creates resentment in the employer, and since that employer is in a position of power, many understand that often, people in this employer’s situation would retaliate.  Some may even argue that this is human nature.  Regardless, the action is illegal under Title VII.  Title VII protects the rights of employees by making sure those in positions of power cannot abuse their power if they do not agree with complaints of discrimination by their subordinates.

How to Identify You are a Victim of Retaliation

You can identify that you’re a victim if all of the below apply to you.

  1. You engaged in any protected activity;
  2. Your employer took some adverse action(s) against you; and
  3. There is a causal link between your protected activity and the adverse action.

What to do next?

Whether you are not sure if you qualify or you are certain that you do, your next step is to seek counsel from an employment lawyer who defends employee rights as soon as possible.  An experienced attorney will be able to identify the actions you need to take and advise you on how to take them.



New Massachusetts Legislation Enforces Gender Neutral Parental Leave

Massachusetts has made another step towards enforcing equality in the workplace!  Gov. Deval Patrick signed a new bill into law on January 7, 2015 requiring employers to grant equal parental leave to male and female employees.

Massachusetts’s previous legislation on the topic, the Maternity Leave Act, applied only to women in workplaces with more than 6 employees.  Men were covered only under federal law, only if they worked for employers with at least 50 employees, and only if they had worked for that employer for at least 12 months and 1250 hours.  However, the new legislation no longer differentiates between male and female employees.  The Massachusetts Parental Leave Act, replacing the Maternity Leave Act, requires all employers who employ 6 or more employees to grant every employee 8 weeks of unpaid leave after the birth or adoption of a new child.

This legislation helps to challenge archaic gender roles in our culture.  It avoids stereotypical assumptions that women should be primarily responsible for child-rearing roles and men primarily responsible for the role of sole breadwinner.  It also makes a giant leap in ensuring that equal opportunities are available to same-sex couples who choose to bring a child into their lives.  Families are now able to make their own choices, unencumbered by outdated legislation, about their roles in raising their children and maintaining their families.

Though MRW is happy to report on this accomplishment, there are still some pivotal changes that Massachusetts and the United States need to make on this issue.  Amongst the top democratic economies in the world, the United States is the only one that does not offer paid parental leave.  Political change may come slowly in this country, but we hope there will come a day where our country will catch up to the rest on this issue.

Interpreting the Pregnancy Discrimination Act

Last month, the U.S. Supreme Court heard oral argument in the case of Young v. United Parcel Service, 134 S.Ct.2898 (U.S. 2014). The issue before the Supreme Court concerns whether an employer is obligated under the federal Pregnancy Discrimination Act (http://www.eeoc.gov/laws/statutes/pregnancy.cfm) to provide a pregnant employee the same types of accommodations (such as light duty) that it provides to non-pregnant employees who are able to work. In the Young case, the plaintiff’s employer, UPS, had traditionally provided light duty as an accommodation for employees who had suffered non-work related injuries or who were disabled. The plaintiff is arguing that she is entitled to the same benefit on account of her pregnancy. We agree, and hope that the Supreme Court properly finds that the Pregnancy Discrimination Act forbids an employer from defining pregnancy as a special category of limitation that is treated differently and worse than all other types of limitations that UPS’s light duty policy protects.

On a broader scale, this case reflects the lack of legal support women face when attempting to balance a career and start a family. The United States remains the only major developed nation without paid maternity leave — lagging far behind economic powers like Germany, which offers 14 weeks of paid leave to either parent. It is well established that one of the greatest difficulties women face in the workplace is the qualitative and quantitative career setbacks they suffer as a result of the consuming realities of starting a family. Without more progressive policies, workplace gender inequality will continue to persist.

A Step Toward A Living Wage

Governor Deval Patrick has signed into law an increase in the state’s mandatory minimum wage, which will be implemented over three years. Starting on January 1, 2015, the Massachusetts minimum wage will rise from $8.00 to $9.00/ hour for non-agricultural, non-service, employees. On January 1, 2016, the minimum will increase again to $10.00/ hour and then to $11.00/ hour on January 1, 2017. In conjunction with these increases, cash minimum wages for service (tipped) workers will see a bump from $2.63/ hour to $3.00/ hour on the first day of 2015, followed by another hike to $3.75/ hour starting in 2017. But even with this progress, many Massachusetts residents will still find themselves below the poverty line.

Although these increases are certainly welcome, and are the highest in the nation, they are only a first step in providing low-wage workers with a true “living wage.” An MIT professor has developed a tool to calculate the living wage in various locations across the country: http://livingwage.mit.edu/states/25/locations. By analyzing expenses associated with typical cost of living, the real impact of a minimum wage increase can be determined. In Boston and the surrounding towns, a living wage is now about $12.50/hour, well above the new minimum. Economists can debate the impact of a minimum wage increase on small businesses and corporations (and how that affects the job market), but the raw numbers for individuals and families attempting to get by are a hard reality. While we celebrate this victory for employees, we should recall that also it is only one step in the long journey toward fairness for workers and a living wage for all.

MRW Recognized by U.S. News & World Report

We’re pleased to announce that once again Messing, Rudavsky & Weliky P.C. has been recognized by U.S. News & World Report Best Lawyers in its 2015 listings for the best law firms in the United States.  The firm has been listed under Tier 1 Boston, Employment Law – Individuals and under Tier 1 Boston, Litigation – Labor and Employment.  In Boston, only three law firms, including Messing, Rudavsky & Weliky P.C., have been rated as Tier 1 under both Litigation – Labor and Employment and Employment Law – Individuals for the 2015 publication.

To be eligible for these rankings a law firm must have at least one lawyer listed in the 20th Edition of The Best Lawyers in America.  The eligible firms then go through an in-depth analysis of rigorous evaluations from clients, lawyers, and peers to determine their ranking.  U.S. News & World Report explains that “the 2015 rankings are based on the highest number of participating firms and highest number of client ballots on record.  Over 17,000 attorneys provided almost 600,000 law firm assessments, and almost 7,500 clients provided more than 40,000 evaluations.”  According to CEO and co-founder of U.S. News & World Report Steven Naifeh, “For five years, we have combined massive amounts of hard data with peer reviews and client assessments to develop our law firm rankings, Increasingly, clients tell us that ours are the most thorough, accurate, and helpful rankings of law firms available anywhere.”

Recognition as Tier 1 for a law firm distinguishes its attorneys as the leading professionals in their practice.  The two categories in which Messing, Rudavsky & Weliky P.C., has been recognized signify that our attorneys are viewed as first-rate both within and outside the courtroom.  The recognition includes the full range of other litigation services advice, negotiation, mediation – that we provide to individual employees.

We’re proud to receive such an honor, and gratified that our track record built over 25 years of advocating for the fair treatment of all workers across Massachusetts is respected by the legal community at large.

Good News for Pregnant Women in the Workplace

The Equal Employment Opportunity (EEOC) issued a new enforcement guidance for the Pregnancy Discrimination Act (PDA) this year.  The new guidance incorporates the protections of the Americans with Disabilities Act (ADA) and the Affordable Care Act (ACA), broadens the definition of protected pregnancy-related conditions, and adds light duty obligations within the PDA.  This is a victory for all working women across the United States!

In 1978 Title VII of the Civil Rights Act was amended “to prohibit sex discrimination on the basis of pregnancy.”  This amendment is known as the Pregnancy Discrimination Act.  It defines discrimination against pregnant women as illegal sex discrimination.

Since the PDA’s inclusion in Title VII of the Civil Rights Act, the EEOC has seen a substantial rise in pregnancy discrimination claims.  According to the EEOC’s website, in 1997 there were 3,900 pregnancy discrimination charges; by 2013 that number had grown to 5,342.

The increase in pregnancy discrimination charges led the EEOC to issue a new enforcement guidance this year, which updates the interpretation of the PDA laws.  The last enforcement guidance was issued almost thirty years ago.

Under the new enforcement guidance, the EEOC states the fundamental PDA requirements as follows:

  1. An employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions;
  2. Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

The overall definition of pregnancy and pregnancy-related conditions has broadened since the last enforcement guidance for the PDA set forth in 1983. Topics included in this definition are conception, pregnancy, termination, childbirth, and post-birth.  The EEOC has tried to encompass all of the circumstances that relate to pregnancy.

This new enforcement guidance also incorporates the Americans with Disabilities Act (ADA).  The old enforcement guidance predated enactment of the ADA by 7 years.  The incorporation of the ADA in the new enforcement guidance provides that conditions caused by pregnancy are to be considered temporary disabilities, and therefore covered under the ADA.  This ensures that pregnant employees are recognized and protected by this law.

Light Duty requirements have also been added to the new enforcement guidance.  Prior to this year, the EEOC had not clarified whether employers were required to give light duty tasks, typically issued to injured workers, to their pregnant employees under work restrictions.  The new guidance spells out that if light duty is made available to a worker injured on the job, then the same light duty work needs to be available to women under work restrictions due from their pregnancy.  Employers may not make biased decisions on whether pregnant women deserve treatment equal to their injured peers.

The EEOC incorporates the Affordable Care Act (ACA) within the new enforcement guidance.  Under the ACA, employers are generally required to supply coverage for FDA-approved contraceptive devices, so long as they do not qualify for an exemption available to a few employers based on their religious convictions.  Under the new enforcement guidance, if an employer fails to cover these contraceptive devices, they are not only violating the ACA but they are also violating the PDA as well.  Therefore, employers are potentially answerable to both the U.S. Department of Health and Human Services and the EEOC if they violate this portion of the law.

This is very good news for working women across the country.  It is another step towards ensuring gender equality in the workplace.  It is one small step for equality, and one giant leap for all womankind!  To read the entire enforcement guidance click here.

Honored by Best Lawyers Again!

The prestigious Best Lawyers organization has once again honored the partners of Messing, Rudavsky & Weliky, P.C.  The Best Lawyers in America, 21st ed., has just been released on August 18, 2014. Partner James Weliky has been listed under the “Employment Law – Individuals” category for his continued efforts fighting for the rights of employees across Massachusetts.  Attorney Weliky has not only been included in this edition, but in every edition of this publication since 2012!

MRW Partner Attorney Ellen Messing has also been listed in the 21st edition of The Best Lawyers in America. You can find her under “Litigation – Labor and Employment” for her decades of experience litigating on the side of employees against the corporations and institutions that undervalue employee civil rights.  Attorney Messing has carried this accolade in every edition of this publication since 2012!

Finally, firm partner Dahlia Rudavsky has been listed in three sections of this publication: “Employment Law – Individuals,” “Labor Law – Unions,” and “Litigation – Labor and Employment.”  Her vast experience in representing workers of all types, and her years of making her clients’ cases successful have contributed her name to these notable selections.  Attorney Rudavsky has also been listed in this publication since 2012.


Victory for Market Basket Workers and Customers!

Our heartfelt congratulations to the employees of Market Basket!  After several weeks of collective action, these employees, with customer support, have successfully pushed the company board to sell the supermarket chain back to ousted CEO Arthur T. Demoulas.  We applaud their efforts and success.

This is a great example of how workers who stand together can achieve their goals.  Workers at all levels risked being fired to support the boss who had respected them and who had treated them with dignity and respect.  It is especially noteworthy and unusual that Market Basket managers stood in solidarity with the other protesting employees, refusing orders to return to work, even though managers have fewer labor law protections than rank-and-file employees.

For further background about this dispute and the labor laws involved, see articles quoting Messing, Rudavsky & Weliky senior partner Ellen J. Messing:

Some Market Basket workers told to report to work or be fired (Boston Globe 8/12/14)

Ousted Market Basket CEO Demoulas: Re-hire fired workers  (Boston Herald 7/22/14)

Market Basket Deadline Day: What Are The Legal Options? (WGBH & New Hampshire Public Radio 8/4/14)

Can Market Basket fire its employees? (Nashua Telegraph 8/5/14)

Market Basket Employee Files Complaint With National Labor Relations Board (WGBH 8/26/14)

Federal Court Allows Employees to Proceed on Discrimination Claim Against Former Employer

A recent Federal district court decision, Porter v. Five Star Quality Care-MI, LLC , was a big victory for employees.

The Court enabled a group of former nursing home employees to move forward in their Family and Medical Leave Act (“FMLA”) retaliation claim against the current and former owners of the nursing home from which the employees were terminated. This is significant because not only did the court allow the case to proceed beyond summary judgment, but allowed the employees to maintain their suit against their former employer, even though the new employer actually fired them.

The seven plaintiffs were employed by a nursing home in Farmington, MI, owned by Five Star Quality Care-MI, LLC (“Five Star”). Only a day or two after the home was sold to White Pine Rehabilitation & Healthcare of Farmington (“White Pine”), White Pine, the new owner, terminated six of the plaintiffs. Plaintiffs argued that White Pine acted in concert with Five Star in terminating them in retaliation for taking medical leave in the past. Such retaliation is unlawful under the FMLA.

The key issue in this case was whether the plaintiffs would be allowed to proceed in their claim against Five Star, because Five Star was no longer their employer at the time of their termination. The Court said yes and explained that the plaintiffs had two possible theories under which their FMLA retaliation claim against their former employer could be viable.

The first is a “joint employment” theory. The Court found it is possible that even though Five Star had sold the nursing home and no longer employed the plaintiffs, “Five Star continued to exercise some degree of control over these employees by participating in or somehow influencing White Pine’s decisions as to which of these employees to rehire and how long to retain those who were rehired.” If this were true, plaintiffs could succeed in a claim against Five Star (in addition to White Pine).

The second potentially viable theory is based on how the term “employee” is defined in the FMLA. Because courts have found that individuals may bring FMLA claims against their former employers, the plaintiffs in this case could be successful in their claim against Five Star if “they allege and produce evidence that Five Star retaliated against Plaintiffs’ exercise of rights protected under the FMLA by somehow discouraging White Pine from rehiring and retaining Plaintiffs as employees[.]”

This was an excellent outcome for the employees because it allows them to proceed to further discovery. Because the case was in its early stages when defendants sought to have it dismissed, plaintiffs had not yet had the opportunity to take depositions and get access to documents that could provide them with valuable evidence regarding how the employment decisions at issue were made. This case gives them the opportunity to do so.

National Employment Lawyers Association 2014 Convention: A Resounding Success

On June 25-28, 2014, over 600 members of the National Employment Lawyers Association (“NELA”) gathered in Boston from all over the country for the organization’s 2014 Annual Convention. The days were full, the programs fascinating and informative, and the company smart and fun. Special guests included Sheila White Parrish (plaintiff in the landmark retaliation case Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)) and Percy Green, II (plaintiff in foundational Title VII case McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Mr. Green and Ms. White spoke on a panel early in the program, and remained for the rest of the week, attending sessions and participating in events. It was an inspiration to hear their stories and share this event with them.


For a budding plaintiffs’ employment lawyer, the Convention was inspiring and energizing. It was exciting to be surrounded by hundreds of other lawyers fighting the same fights and working for the same causes across the country. It showed that our work is part of a broad movement for workers’ rights that includes lawyers representing individual and class action clients, as well as legal workers and community organizers.  After the Convention, I feel a renewed energy to continue fighting on behalf of my clients who have been discriminated against or otherwise mistreated by their employers.