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Court: Worker sometimes has the right to search employer's databases for proof of discrimination

The Supreme Judicial Court ruled today that a lawyer fired from a downtown firm will get to make her case to a jury that she was terminated because of her gender. A lower-court judge had dismissed Kamee Verdrager's lawsuit against Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, but the state's highest court today reinstated the gender-discrimination parts of the case.

In its ruling, the court broke new ground for Massachusetts, saying that in certain proscribed circumstances,a worker cannot be fired for accessing company records - as was done to Verdrager - because that is "protected activity" under the state's anti-discrimination laws.

Verdrager searched Mintz, Levin's document system after she had filed a gender-discrimination case with the state and after the firm had demoted her. She turned over some of the documents she found to the outside lawyer she had hired to press her case.

The court said that since she had already filed a gender-discrimination complaint with the state, what she did was "protected activity" rather than the violation of her "ethical duties" the firm said she was guilty of in a complaint to the state Board of Bar Overseers.

The justices noted that after her "self-help discovery," she only turned the documents over to her own lawyer, not to other firm employees. And it dismissed the lawfirm's client/attorney privilege argument, ruling that even lawyers have the same rights at employees at other sorts of companies and that strict enforcement of client/attorney privilege in such cases would strip them of their rights under state law.

The ruling also documented some of the issues at the law firm - which came around the same time a female attorney in the firm's Virginia office was winning an anti-discrimination lawsuit against it:

For instance, defendant Schroeder's May, 2006, evaluations criticized the plaintiff for not being available for certain emergency assignments, and his March, 2006, electronic mail message noted that "[t]his is not a job where you can come and go as you please." Yet, the plaintiff maintains in an affidavit there were "many occasions when [she] would be looking for Mr. Schroeder during business hours and would learn that he and [a particular junior male associate] were at the gym." Similarly, when the plaintiff was nursing her first child, Schroeder evaluated her negatively for "leaving [the office] no later than 5[:]30," even as Schroeder "was sending [the aforementioned male associate] home" earlier than the plaintiff because he had "a wife and kid at home."

Second, there is evidence that Cohen attempted to undermine the plaintiff after she complained about his behavior, which may allow an inference that the plaintiff's perceived performance deficiencies resulted in part from Cohen's animus rather than from innate inadequacy. While Cohen initially complimented the plaintiff's work, this changed following her August, 2004, complaints, when she was told by various individuals that Cohen was "bad-mouthing" her. In October, 2004, Cohen asked a client to submit a written complaint against the plaintiff, which he then forwarded to Gault, the ELB section manager, and Starr, the human resources director. Cohen stated in his deposition that he had never previously solicited a written complaint against an associate. In January, 2005, Cohen gave the plaintiff a lengthy assignment that did not count toward her quota of billable hours, which the plaintiff maintained in her deposition was more extensive than parallel assignments given to other associates. In the wake of these incidents, a number of firm members, including Gault, told human resources staff during a meeting in February, 2005, that the plaintiff and Cohen could not work together and that Starr should seek to hire an attorney with qualifications similar to the plaintiff's.

downtown law firm discriminated against a female lawyer - and that she did nothing wrong by scanning its document database for proof.

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Comments

So grifters get to snoop around whenever/wherever they feel like it and courts eat it right up, yet cops have no right to search criminals for guns unless they literally saw the said criminal murdering someone with the said gun? Interesting...

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Give it another try. The ruling does not say workers can just willy-nilly go through a company's online records.

As for the completely unrelated issues related to criminal activity, try Googling "Terry stop."

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...

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Maybe I'm just imagining this, but it seems like there has been an influx of anonymous trolls since boston.com shut down its comments section.

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There's far more stuff I won't let through. Every so often, I think about posting a list of the sort of stuff I'm just not going to approve for posting, but then I realize that a) It won't stop anybody, angry spitters gonna spit angrily and b) If I post a specific list, you know people will try to post stuff I didn't mention specifically and then go "aha, Gaffin, you librul!" So better to keep them guessing. But here's a hint: If your comment would fit right in in the comments section of the Herald, there's a good chance I'm going to use the delete checkbox as God intended.

Note: I realize this very comment will get some people pounding their keyboards with their tiny fists of fury. As I've mentioned before, the delete checkbox is my friend and, just as important, I DON'T CARE.

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All the tracking that dotcoms do nowadays is really creepy, and some city officials are scary, so I really appreciate not having to create an account.

But I'm sure that moderating anon comments throughout the day is not a fun job.

I'm sure I'm guilty of some of the unpleasant anon comments, and I'll try to be more dignified.

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You're one of the saner anons in the UHub wild, and believe me, even as a semi-regular poster, I've been tempted to rip into an anon - but restraint and "let the other regulars school them instead" has been my MO.

It's all in how you conduct yourself. If you're in the comments board to lend helpful advice, correct but not be a total wonk, and be considerate, you're golden. It's when you go into heavy-insult, 950 comment flame war, link puke (when you have a few words to say and then the rest are links) and/or redirect spam territory where Adam lets loose the ban hammer.

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I wonder if you should post counts of the number of crazy messages you have to filter. That would give us all a sense of how much work you do keeping things sane here.

On the other hand, that would probably inspire the "tiny fists of fury"
(there's a bad baby/kung fu movie hiding behind that phrase...)

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Tiny Fists of Fury

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That sure explains a lot

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Well where else are we supposed to go? They're building skate parks under our troll bridges, and we are terrified of teenagers.

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She was a lawyer.

She had a legal case.

She had access to records regarding that legal case.

Ergo, she had a right to search those records in her pursuit of a legal case.

An equivalent might be a doctor suing a hospital where he worked, then searching his own medical records for evidence.

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Police are representatives of the government, and enforce the law that it promulgates. Our laws, and bill of rights protect us from undue government intrusion. as such there are limits on the government and their representatives, the police.

However, there are no such protections between individuals or individuals and corporations.

One might thing that our laws are equally applied but they are not. There is nothing to prevent intrusion into free speech by an employer to an employee.

So I can see where in some instances individual research into the potential for wrong-doings may be acceptable.

Let's remember, corporations often surf the online medium for dirt to use against employees. Seems like in kind is fair play?

It's a thought.

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Is that most of the named defendants practice labor and employment law...

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Something sort of similar happened at the last place I worked - although this time, literally everyone involved was dumb and in the wrong: one employee, let's call him Gus, had a particularly bad working relationship with our boss, whom we'll call Janet. One day, Janet was IMing away, as she often did with others in the company, and then she left her desk for a couple of hours (as, again, she often did). Gus decided he was going to look at what she was IMing about, because he suspected it was about him. Sure enough, it was: Janet was mocking him for being fat and dumb. Not a good look. Gus quit in a blaze of fury and then filed a discrimination lawsuit against Janet and Janet's boss, the owner of the company. Because Janet and her boss were also inept, they ended up settling with Gus, who was oafishly representing himself, rather than hire a decent lawyer who probably could have fucked Gus over for looking at his boss's computer (even though what he found was completely unprofessional and worthy of punishment).

Anyway, the epilogue is that Janet is still working there, Gus has moved on elsewhere, and the company is somehow still afloat.

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Thank goodness I'm not part of it, but a situation like yours is simmering at my workplace, and the rest of us are ready to duck and cover under our desks when this explodes. Sadly, I like the people on both sides, and both have made mistakes. One party has seriously overstepped some boundaries, though, and doesn't seem to get that if we worked any other place, this party would have been fired months, maybe years, ago.

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