Town of Hanover v. New England Regional Council of Carpenters

GLAD joined the American Civil Liberties Union of Massachusetts (ACLUM), the Conservation Law Foundation (CLF) and the Massachusetts Fair Wage Campaign (MFWC) on an amicus brief submitted to the Massachusetts Supreme Judicial Court in this case concerning the Massachusetts anti-SLAPP statute.

The anti-SLAPP statute provides special protective procedures when someone feels that they have been sued for the exercise of their right to petition the government.

In the case in question, the Town of Hanover sued a labor union, New England Council of Carpenters (NERC) for its prior petitioning activities, alleging that NERC had previously organized its members to bring an action against the Town over the potentially illegal award of a $40 million high school construction contract. When the Union then invoked the anti-SLAPP statute to protect its prior petitioning activities and to dismiss the Town’s case against it, the Superior Court said that it did not get the protection of the statute because the Union was not one of the named parties in the prior high school construction case.

This decision raised alarm bells among advocacy groups – such as ACLUM, CLF, MFWC and GLAD – which frequently organize litigation without being the actual litigant. The joint amicus brief focused on the way that such groups petition the government and why those activities fall within the protection of the statute.

On appeal, the Supreme Judicial Court on March 25 adopted the result advocated by GLAD and the other amici, holding that one does not have to be the named party in prior litigation to get the protection of the statute and also holding that groups like GLAD, ACLUM, MFWC and CLF were intended to be protected in their petitioning activities.

GLAD board member, Attorney Rich Yurko, an expert in the area of anti-SLAPP litigation, drafted the amicus brief submitted on behalf of the advocacy organizations.

M.L. v. S.N.

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GLAD submitted an amicus letter to the Commonwealth of Massachusetts Appeals Court addressing the admissibility of explicit sexual photographs in a suit brought by a man against his former romantic partner for intentional infliction of emotional distress and battery.

The judge at trial had allowed the defendant to admit into evidence a series of nude and explicitly sexual photographs of the plaintiff from a photo spread in a gay male magazine.

GLAD argued in our letter that “sexual images are generally understood to inherently qualify as inflammatory.” Further, we asserted that such prejudicial effect is compounded here by continuing societal prejudice against gay male sexuality.

The Court of Appeals – in a ruling that is a public document but not an official published opinion citable in other cases – agreed with our position that the photographs should not have been admitted:

We have little doubt that the failure to allow the plaintiff’s motion to exclude these photographs was error. Although the Massachusetts rape shield statute, G. L. c. 233, § 21B, by its terms does not apply in this civil context, the principles that it articulates are also embodied in our rule that evidence may be excluded where its potential for unfair prejudice outweighs its probative value.

and further agreed that societal prejudice against gay male sexuality likely swayed the jury against the plaintiff at trial:

As amicus explains, sexually explicit images such as the ones at issue here “inherently have a prejudicial effect and . . . the risk was great that the photographs unduly swayed the jury. . . . Such inherently prejudicial effect is only compounded in this case by society’s deep, psychological prejudice and disgust regarding gay male sexuality.”

We think all would agree that evidence of a nude or partially nude photographic spread showing a young woman, for example in Playboy magazine, would not be admissible as evidence in a trial in which she alleged that her boyfriend years later degraded her and intentionally inflicted emotional distress by forcibly removing her clothing in public and exposing her breasts or genitals. A failure to recognize that the photographs at issue here are the same as those in the hypothetical case may be attributable to prejudice concerning the difference between same sex and opposite sex couples that has no place in the law of our Commonwealth.

A technical issue concerning the proper court procedures regarding objections to the admission of evidence resulted in the Appeals Court deeming the objection in this case waived on appeal.

Nevertheless the Court has made an important statement here in asserting that explicit photographs are equally (if not more so) inflammatory and prejudicial (and therefore inadmissible) in a case involving a gay man as they would be in a case involving heterosexual individuals – and in further recognizing that implicit bias present in societal attitudes toward gay male sexuality may unduly sway a jury, particularly when sexual imagery is introduced in the courtroom.

GLAD got involved in this case to “uncover” the implicit double standard that seemed clear to us (but not to an otherwise careful and conscientious judge) and to call out our legal system when it fails to see prejudicial stereotypes in play. We are very pleased at how the Appeals Court recognized and addressed the issue.

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Gay & Lesbian Advocates & Defenders submitted a brief today to the First Circuit Court of Appeals in the case Kosilek v. Spencer, supporting the right of an incarcerated transgender woman to receive medically necessary care to treat her severe gender identity disorder (GID).

On January 17, 2014, the First Circuit Court of Appeals ruled that the Commonwealth of Massachusetts’ Department of Corrections (DOC) cannot deny gender reassignment surgery to Michelle Kosilek. That decision upheld an earlier Massachusetts US District Court ruling that Kosilek should receive the surgery. The DOC requested and was granted en banc review, vacating the earlier decision and putting the matter before the entire 5-judge panel for rehearing.

Jennifer Levi, Director of GLAD’s Transgender Rights Project, said “The Department of Corrections has agreed that GID is serious medical condition requiring treatment; that Kosilek suffers from GID; that a majority of the experts who have been consulted support surgery as treatment for Kosilek; and that the Eighth Amendment requires the provision of adequate medical care for prisoners. So their continued opposition to providing this care is at best a mystery and at worst out-and-out discrimination.”

“The Eighth Amendment prohibits state officials from interfering with medical treatment for prisoners. Yet this is exactly what the Department of Corrections has done ever since its own doctors recommended sex reassignment surgery for Michelle Kosilek nine years ago. The law is clear that this violates Ms. Kosilek’s Eighth Amendment right to adequate medical care. We expect that Ms. Kosilek’s right to adequate medical care will be affirmed by the full court,” said attorney Joseph Sulman of the Law Office of Joseph Sulman, who is also representing Kosilek, along with his colleague David Brody.

Levi, together with Joseph Sulman and David Brody of the Law Office of Joseph Sulman, is representing Kosilek.

The earlier, district court decision, written by District Court Judge Mark L. Wolf found that the Department of Corrections engaged in a pattern of “pretense, pretext, and prevarication” in denying Kosilek treatment.

The hearing date for en banc review is May 8, 2014.

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Updated March 24

Read in the Boston Globe: Patients, advocates hope to ease a visible burden

GLAD testified March 5 in support of a Massachusetts bill requiring insurance coverage for the treatment of lipodystrophy, a debilitating and disfiguring side effect of HIV medications. The disfiguring effects of lipodystrophy are so severe that many people with the condition do not leave their homes.

“A Bill to Require Insurance Coverage for Treatment of a Debilitating and Disfiguring Side Effect of HIV Medications,” sponsored by Rep. Carl Sciortino, was heard before the Joint Committee on Financial Services.

Lipodystrophy is the abnormal redistribution of fat throughout the body, causing a range of bodily changes including “buffalo hump” (an abnormal fat growth on the neck) and “horse collar” (abnormal fat growth on the front and side of the neck and under the chin), and facial wasting.

People with lipodystrophy can become socially isolated, depressed, and suicidal. Some stop taking their medications, which can lead to the development of treatment-resistant strains of HIV. Many experience pain as well as spinal, postural, and mobility issues. The common treatment is liposuction, but most insurers deny coverage, deeming the treatment “cosmetic.”

“It is unacceptable in 2014 that insurers and our state Medicaid program deny medically necessary health care to people with HIV,” says Bennett Klein, GLAD’s AIDS Law Project Director. “Insurers’ refusal to treat a health condition that disproportionately affects gay men, IV drug users, and people of color is discrimination plain and simple.”

“I am proud to be the lead sponsor of this bill that ensures that a small population of HIV-positive individuals who suffer from the debilitating condition of lipodystrophy receive appropriate insurance coverage for necessary treatment costs,” says Representative Carl Sciortino. “Treatment for lipodystrophy is not cosmetic and failing to address this issue now will cause greater costs for Massachusetts in the long run.”

Also testifying in support of the bill were a number of people living with lipodystrophy, doctors who treat people with HIV, and AIDS service providers.

GLAD has convened the Treat Lipodystrophy Coalition (TLC), a group of service providers, public health officials, and people living with HIV, to support passage of the bill. The TLC has produced a storybook featuring the struggles of individuals living with lipodystrophy, which can be downloaded or read online.

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GLAD has filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) against Fontbonne Academy, a religiously affiliated college preparatory school in Milton, after the school terminated a man they had just hired as Food Services Director upon learning he was gay and married to another man.

Matt Barrett, a longtime food industry professional, was offered the position on July 9, 2013, after three interviews. Mr. Barrett accepted the offer the same day and gave notice at his previous job. After accepting the position, Mr. Barrett filled out the school’s required employment paperwork, including a form that required him to list an emergency contact and state that person’s relationship to him. Mr. Barrett gave a truthful answer and listed his husband, Ed Suplee.

The next day, Mr. Barrett was contacted by email and asked to come in for another meeting on July 12, 2013. At that meeting, he learned that the school would no longer employ him because he was gay and married to a man.

“If I’m planning and making meals for students, I’m not sure what my being gay has to do with the job,” said Mr. Barrett. “I’ve always done well in my work, and was excited about working at Fontbonne. All I did was fill out the form honestly.”

“Religiously affiliated entities do not have a free pass to do as they please in how they treat employees, particularly when it comes to our important laws against discrimination,” said Bennett Klein, GLAD Senior Attorney. “Our laws carefully balance the important values of religious liberty and non-discrimination. When Fontbonne Academy fired Matt from a job that has nothing to do with religion, they came down on the wrong side of the law.”

The complaint, which can be read here alleges that with its termination of Matt Barrett’s employment, Fontbonne Academy discriminated against him based on his sex and sexual orientation, and thus violated the Commonwealth’s non-discrimination law.

Mr. Barrett, who was born and raised in a Catholic family, and who lives in Dorchester with his husband, has worked in the food services industry for 20 years in positions of increasing responsibility, at restaurants, with corporate catering services, and in public schools.

Mr. Barrett is represented by GLAD attorneys Bennett Klein, Gary Buseck, and Janson Wu.

Boston Globe: Gay married man says Catholic school rescinded job offer

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Gay & Lesbian Advocates & Defenders (GLAD) today filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) against Fontbonne Academy, a religiously affiliated college preparatory school in Milton, after the school terminated a man they had just hired as Food Services Director upon learning he was gay and married to another man.

Mr. Barrett is represented by GLAD attorneys Bennett Klein, Gary Buseck, and Janson Wu.

Barrett v. Fontbonne Academy

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Victory! In a first-of-its-kind decision, the Massachusetts Superior Court judge ruled that Fontbonne Academy, a Catholic girls’ high school, discriminated against Matthew Barrett on the basis of sexual orientation and sex when it rescinded its offer of the job of food services manager to him because he is married to another man. The court ruled that Fontbonne had clearly and directly violated the Massachusetts nondiscrimination law; was not exempt from the law; and had no constitutional defenses against its discriminatory conduct. Read more

Fontbonne elected not to appeal this ruling, and a final resolution was reached with a settlement for Matt.

Case Background

GLAD has filed a complaint against Fontbonne Academy, a religiously affiliated college preparatory school in Milton, MA, after the school terminated a man they had just hired as Food Services Director upon learning he was gay and married to another man.

The complaint was originally filed with the Massachusetts Commission Against Discrimination (MCAD) on January 30, 2014, and was subsequently moved on May 28 to Massachusetts Superior Court, where the case is now proceeding. Read the complaint filed in Superior Court here.

The complaint charges that in terminating Matt Barrett’s employment, Fontbonne Academy discriminated against him based on his sex and sexual orientation.

Barrett, a longtime food industry professional, was offered the Food Services Director position on July 9, 2013. After accepting the position, he filled out the school’s employment paperwork, including a form that required him to list an emergency contact and state that person’s relationship to him. Barrett gave a truthful answer and listed his husband, Ed Suplee.

The next day, Barrett was contacted by the school and asked to come in for another meeting. At that meeting he learned that the school would no longer employ him because he was gay and married to a man.

GLAD asserts that in firing Barrett from a job having nothing to do with religion, Fontbonne Academy is in violation of the Commonwealth’s non-discrimination law.

Mr. Barrett is represented by GLAD attorneys Bennett Klein and Gary Buseck, with attorney John Ward.

Boston Globe: Gay married man says Catholic school rescinded job offer

Matt Barrett was born and raised in a Catholic family, and lives in Dorchester with his husband, Ed Suplee. He has worked in the food services industry for 20 years in positions of increasing responsibility, at restaurants, with corporate catering services, and in public schools.

“If I’m planning and making meals for students, I’m not sure what my being gay has to do with the job,” Matt says “I’ve always done well in my work, and was excited about working at Fontbonne. All I did was fill out the form honestly.”

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Gay & Lesbian Advocates & Defenders (GLAD) has filed a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC) against Brookdale Senior Living on behalf of Kerry Considine, an employee who was denied the right to put her wife, Renee Considine, onto her employer-provided health plan. That refusal, GLAD alleges, violates both state and federal law prohibiting sex discrimination in employment.

“Even after the demise of the Defense of Marriage Act, employers like Kerry’s are still discriminating against their gay employees by not providing them with the same spousal benefits their straight co-workers get,” said Janson Wu, GLAD staff attorney. “That’s not only unfair but illegal.”

Kerry Considine is a licensed physical therapist who has worked with seniors at Brookdale since October 2012. She and Renee, a graduate student studying to be a school guidance counselor, married on November 1, 2013 in Massachusetts. Shortly after their wedding, Kerry asked Brookdale’s human resources department to add Renee to her health plan.

“Our wedding day was the most perfect day. I take our vow that day to care for each other very seriously,” said Kerry. “So I was shocked and upset when the HR person informed me that Brookdale does not offer health insurance coverage to same-sex spouses, especially since Brookdale is a company that promotes health and wellness and care for others.”

Brookdale, a publicly-owned company, is the nation’s largest owner and operator of senior living communities, operating more than 550 senior living and retirement communities across the United States. It is headquartered in Tennessee.

The denial significantly affects Kerry and Renee’s lives. Renee currently has inadequate coverage through her student health plan and has had to pay for medical expenses out-of-pocket. She anticipates that after graduation, she may have to take a part-time guidance counseling job, without health insurance benefits, in order to get a foot in the door of the profession. The couple is also considering having a baby and worry about coverage for prenatal care for Renee.

The charge of discrimination filed by GLAD with EEOC argues that Brookdale’s action discriminates against Kerry on the basis of her sex, in violation of both the Connecticut Fair Employment Practices Act and Title VII of the federal Civil Rights Act of 1964.

Kerry is represented by GLAD attorney Janson Wu. Further information about Considine v. Brookdale Senior Living, including the charge and photos, is available here.

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Gay & Lesbian Advocates & Defenders (GLAD) welcomed the First Circuit Court of Appeals ruling that the Commonwealth cannot deny Michelle Kosilek, an incarcerated transgender woman, gender reassignment surgery to treat her severe gender dysphoria.

The 2-1 decision in Kosilek v. Spencer read in part, “In sum, where at least three eminently qualified doctors testify without objection, in accord with widely accepted, published standards, that Kosilek suffers from a life-threatening disorder that renders surgery medically necessary, and the factfinder is convinced by that testimony, we are at a loss to see how this court can properly overrule that finding of fact.“

“Like the district court before it, the First Circuit has affirmed that constitutional rights belong to everyone,” said Jenifer Levi, director of GLAD’s Transgender Rights Project. “The Appeals Court affirmed that the District Court properly found that Michelle Kosilek needed this lifesaving medical care. If she needed treatment for cancer or heart disease, this case would never have wound up in court. If we are to call ourselves a civilized society, there is a baseline of care that has to be provided to all prisoners, including prisoners who are transgender. We hope that Michelle will now get the treatment that she desperately needs.”

Kosilek was denied reassignment surgery by the Department of Corrections (DOC) against the recommendations of multiple doctors including those hired by the DOC. In ruling that DOC violated Kosilek’s 8^th amendment right to freedom from cruel and unusual punishment, District Court Judge Mark L. Wolf found that DOC engaged in a pattern of “pretense, pretext and prevarication” to deny her treatment. The First Circuit affirmed Judge Wolf’s decision.

Levi added, “Not appropriately treating a patient with gender dysphoria can lead to self-harm, and Michelle has in fact mutilated herself and attempted suicide twice while being denied care. This decision is important not just for Michelle, but for all transgender people who have been denied the health care they need.”

The case was argued before the Court of Appeals for the First Circuit on April 2, 2013, after the Commonwealth appealed Wolf’s ruling.

Joseph L. Sulman and David Brody of the Law Office of Joseph L. Sulman are representing Kosilek.