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Archive for the ‘discrimination’ Category

National Business Institute (NBI) Human Resource Law Seminar

Posted on: August 11th, 2017 by admin

 

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On July 12, 2017, Bennett & Belfort partner Eric R. LeBlanc spoke at the National Business Institute (NBI) Human Resource Law Seminar alongside Debra Dyleski‑Najjar, Julie A. Moore, Sarah E. Worley, Laurel M. Gilbert, Richard S. Loftus and Jeffrey S. Siegel.  Attorney LeBlanc and the other speakers shared their knowledge and perspectives on various aspects of human resource law, addressing such topics as “Updates in Employment Law;” “Discipline & Discharge- Necessary Documentation;” “Employee Handbooks & Policies;” “Wage & Benefits Issues;” “Investigating Complaints of Harassment & Other Misconduct;” and “Alternative Dispute Resolution in the Employment.”

Eric spoke about proper procedures to follow and pitfalls to avoid during all phases of the employer-employee relationship:  the hiring process, the period of employment, and the employee’s exit from employment, whether voluntary or involuntary.

Eric’s lecture touched on the following fundamentals:

A. Hiring:  How to craft a clear job description; what to look for, what to say and do, and what not to say and do how during selection and         vetting of candidates.

B. Policies and procedures:  Establishing unequivocal, written policies in the following areas and following them closely:

  1. Employment at Will
  2. Equal Opportunity
  3. Anti- Discrimination/Anti-Harassment/Reporting(including the process for investigating employee complaints of discrimination and harassment)
  4. Payment of Wages
  5. Conduct/Discipline

C. Performance:  Careful, contemporaneous documentation of employees’ job performance.

D. Termination:  Again, careful and contemporaneous documentation of the process as well as the presence of at least one witness to the employer-employee interactions.

Eric emphasized to seminar attendees that no matter how egregious an employee’s performance might be, compassion and respect are crucial elements of an employer’s stance at every point on the employment time line.

We are proud that Eric’s expertise in employment law was recognized by the National Business Institute, and pleased that he was able to contribute to employers’ understanding of practices beneficial to both sides of the employer-employee relationship.

BENNETT & BELFORT WELCOMES ATTORNEY CRAIG LEVEY TO FIRM

Posted on: June 13th, 2016 by admin

 

 

Levey Craig (2)

Bennett & Belfort, P.C. is pleased to announce that Attorney Craig Levey has joined the firm.  Mr. Levey focuses his practice on employment and business matters, representing both individuals and companies.  He litigates claims of discrimination, sexual harassment, retaliation, and wage & hour disputes, as well as partnership and fiduciary duty issues.  Mr. Levey also drafts, reviews, and negotiates non-competition, non-solicitation, and severance agreements, and routinely counsels companies on all facets of the employer-employee relationship, including the drafting and implementation of company policies, procedures, and employee handbooks.

Mr. Levey has experience in a wide variety of cases in Federal, Superior, and District courts, and before administrative tribunals, including the Massachusetts Commission Against Discrimination, Department of Unemployment Assistance, and the Division of Administrative Law Appeals.

Commenting on the move, Mr. Levey said, “Bennett & Belfort offers a creative and collaborative environment to work, which is the perfect platform for me to grow my practice.  I am excited to join such a strong and determined team of attorneys, and I look forward to continuing the firm’s tradition of delivering top-notch service to its clients.”

Mr. Levey is a former associate attorney at Looney & Grossman, LLP and Davis, Malm & D’Agostine, P.C. in Boston.

Attorney Belfort Presents at Two MCLE Employment Law Seminars

Posted on: February 29th, 2016 by admin

 

 

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On February 11, 2016, Bennett & Belfort P.C. partner David E. Belfort again chaired and presented at a seminar entitled “Proving & Valuing Damages in Employment Cases” at Massachusetts Continuing Legal Education’s (MCLE) Boston conference center. Joining Attorney Belfort on the panel were his respected colleagues Attorneys Robert S. Mantell, Esq. of Rodgers, Powers & Schwartz LLP, Mary E. O’Neal, Esq. of Conn Kavanaugh Rosenthal Peisch & Ford LLP and Honorable Kenneth W. Salinger of the Superior Court, Business Litigation Session.  Mr. Belfort moderated the panel and presented on how to effectively introduce damages evidence in a failure to pay wages case, proving emotional distress damages in discrimination cases and the efficacy of spousal testimony in proving emotional injury.

MCLE BLOG

On February 25, 2016 Mr. Belfort served as an invited panelist for an MCLE seminar entitled “Top 25 Critical Cases Every Employment Litigator & Counselor Must Know.”  Mr. Belfort’s colleague Nina J. Kimball, Esquire of Kimball Brousseau LLP chaired the seminar and Jaclyn L. Kugell, Esquire of Morgan, Brown & Joy served as a fellow panelist.

The panelists reviewed 25 key cases in Massachusetts employment law and highlighted issues central to effective employment litigation in the Commonwealth, including a detailed discussion of foundational and developing case law in the field.  Attorney Belfort was charged with discussing cases relating to discrimination damages, associational discrimination and wage and hour disputes in addition the fiduciary duty issues and developments in the rights of shareholder – employees in closely held corporations.  There was a rigorous discussion as to a number of other relevant topics, including: proving liability in discrimination cases; retaliation and whistleblower protections; the continuing violation doctrine and Cat’s Paw Theory; and disability and reasonable accommodation law.

Here is a list, by general topic, of the top 25 (really 27) Massachusetts cases that were discussed at the Seminar:

Basic Protected-Class Discrimination Law

1.         Lipchitz v. Raytheon Co., 434 Mass. 493 (2001)

2.         College-Town Div. of Interco v. MCAD, 400 Mass. 156 (1987)

3.         Thomas O’Connor Constructors, Inc. v. MCAD, 72 Mass. App. Ct. 549 (2008)

4.         Mole v. Univ. of Massachusetts, 442 Mass. 582 (2004)

5.         Psy-Ed Corp. v. Klein, 459 Mass. 697 (2011)

6.         GTE Products Corp. v. Stewart, 421 Mass. 22 (1995)

7.         Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611 (1983)

8.         Haddad v. Wal-Mart, 455 Mass. 91 (2009)

9.         Stonehill Coll. v. MCAD, 441 Mass. 549 (2004)

10.        Massachusetts Elec. Co. v. MCAD, 375 Mass. 160 (1978)

11.        Flagg v. AliMed, Inc., 466 Mass. 23 (2013)

 

Disability Accommodation, Interactive Dialogue, and Leaves of Absence

12.        Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443

(2002)

 

Harassment

[2.]          College-Town Div. of Interco v. MCAD, 400 Mass. 156 (1987)

13.        Muzzy v. Cahillane Motors, Inc., 434 Mass. 409 (2001)

14.        Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001)

 

Defenses

15.           Dziamba v. Warner & Stackpole LLP, 56 Mass.App.Ct. 397 (2002)

16.           Warfield v. Beth Israel Deaconess Med. Ctr, 454 Mass. 390 (2009)

17.           City of Boston v. MCAD, 39 Mass. App. Ct. 234 (1995)

 

Wage & Hour Law

18.        Okerman v. VA Software, 69 Mass. App. Ct. 771 (2007)

19.        Boston Police Patrolmen’s Ass’n, Inc. v. City of Boston, 435

Mass. 718 (2002)

20.        Camara v. Attorney General, 458 Mass. 756 (2011)

21.        Smith v. Winter Place LLP, 447 Mass. 363 (2006)

22.        Crocker v. Townsend Oil Co., 464 Mass. 1 (2012)

23.        Lipsitt v. Plaud, 466 Mass. 240 (2013)

 

Common Law Claims

24.        Awuah v. Coverall, 460 Mass. 484 (2011)

25.        Hobson v. McLean Hosp. Corp., 402 Mass. 413 (1988)

26.        Fortune v. National Cash Register Co., 373 Mass. 96 (1977)

27.        Selmark Assoc. v. Ehrlich, 467 Mass. 525 (2014)

B&B Attorneys Secure Win in Federal Court Jury Trial Involving Pizza Delivery Tips

Posted on: November 20th, 2015 by admin

On October 23, 2015, B&B partners, Eric LeBlanc and Todd Bennett, obtained a favorable jury verdict for their client in the United States Federal District Court in Boston.  Mr. Bennett and Mr. LeBlanc represented PMLRA Pizza, Inc. (“PMLRA”), a franchisee of Domino’s Pizza, and Henry Askew (individually), the President of PMLRA Pizza, Inc.

At issue in the case, was:

a)      Whether or not delivery charges are “Service Charges” under the Massachusetts Tips Act,

and

b)   Whether a reasonable customer would be aware that a delivery charge was not a gratuity.

The case was brought by a former PMLRA food delivery driver, seeking compensation under the Massachusetts Tips Act and the Massachusetts minimum wage statute.

As to the issue of whether delivery charges were “service charges” under the Tips Act, PMLRA argued that the evidence showed that that these charges were not service charges under the law but, instead were used to address rising operational costs, versus payment for the actual service of delivery.

The case was tried over the course of one week before Hon. Judge William G. Young, and the jury returned its verdict in favor of PMLRA.

Congratulations to Mr. LeBlanc and Mr. Bennett for a hard fought federal court trial victory.

 

Pizza

Supreme Court Clarifies Rules for Accommodating Pregnant Employees

Posted on: June 10th, 2015 by admin

BellyUPS driver Peggy Young became pregnant in the fall of 2006 and was advised by her doctor to restrict lifting to 20 pounds.  Young’s job typically required her to lift up to 70 pounds, and she sought accommodations from UPS to comply with her doctor’s advice.  UPS denied her request and told her to return to work after the pregnancy.  UPS took the position that it could only accommodate lifting restrictions for employees in three specific groups: employees who were considered disabled under the Americans with Disability Act, employees who were injured on the job, and employees who lost their Department of Transportation Driving Certification.  In the past, UPS accommodated workers who were unable to lift heavy objects due to job related injuries only, not physical reasons.  In justifying its denial of Young’s request, UPS asserted that it was exercising neutrality and fairness. 

As a result, Young lost out on several months of pay without medical coverage.  She sued UPS in July 2007 under the Pregnancy Discrimination Act (“PDA”).  The PDA states that pregnant employees “shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”  According to Young, the refusal of UPS to temporarily reassign her job duties or allow co-workers to assist with heavy lifting tasks constituted discrimination in violation of the PDA.  She argued that the PDA required employers to accommodate pregnancy in the same manner they accommodate any temporary disability.  UPS countered that since it only accommodated lifting restrictions for workers who were injured on the job, its refusal to accommodate Young was in keeping with its policy and was not discriminatory.   Both a federal court judge and an appeals court ruled in favor of UPS, stating that the company’s policy was neutral, and the employees whom UPS had accommodated were not comparable to Young because their restrictions were related to distinguishable, job-related factors.  Not satisfied with the interpretation of the PDA, Young took the matter to the Supreme Court which ruled 6-3 in her favor.

Justice Breyer, who authored the decision for the Court, found both the arguments of Young and UPS wanting.  While he didn’t agree with Young that the PDA grants pregnant women a blanket right to accommodations, he also didn’t agree that UPS’ neutrality argument was viable.  Rather, Justice Breyer’s opinion clarified that if an employer chooses to accommodate restrictions caused by some temporary disabilities, the employer must also accommodate the same restriction if caused by pregnancy.

Following the Court’s ruling, Young must now return to Virginia courts and prosecute her discrimination claim under this clarification of the law.  Meanwhile, employers who are subject to the PDA are now on notice that they must accommodate pregnancy-related restrictions to the same extent that they accommodate other disabling conditions when they arise.

Attorney Belfort Invited Panelist in MCLE’s Top 25 Employment Cases Seminar

Posted on: March 17th, 2015 by admin

2013 David B photo On February 25, 2015, Bennett & Belfort P.C. partner David E. Belfort served as a panelist for an MCLE seminar entitled “Top 25 Keys Cases Every Employment Litigator & Counselor Must Know.” Joining Attorney Belfort on the panel were his esteemed colleagues Attorneys Andrea C. Kramer (Chair) of Hirsch Roberts Weinstein LLP and Nina J. Kimball of Kimball Brousseau LLP.

The panelists reviewed 25 key cases in Massachusetts employment law and highlighted issues central to effective employment litigation in the Commonwealth, including a detailed discussion of foundational and developing case law in the field.  Attorney Belfort was charged with discussing cases relating to discrimination damages and wage and hour disputes.  There was a rigorous discussion as to a number of other relevant topics, including:  proving liability in discrimination cases; retaliation and whistleblower protections; the continuing violation doctrine and Cat’s Paw Theory; and disability and reasonable accommodation law. 

There was a lively dialogue regarding associational discrimination: an evolving and active area of employment law in which the individual experiencing discrimination is not a member of a protected class, but is related to (or associated with) someone who is.  The panelists also discussed the interesting procedural history and standards of appellate review of these central cases – often involving the interplay between various tribunals such as the Supreme Judicial Court’s review of lower Courts’ decisions or the Trial Court’s review of MCAD (Massachusetts Commission Against Discrimination) decisions.  One theme was the fight among litigants as to what standard of review governed each circumstance.  While in some cases the Courts conduct a “de novo” review (completely new trial on the merits) in others there is only a limited 30A administrative review available.  This 30A process is conducted without a jury, is a far more deferential standard to the underlying Agency decision, and considers only facts already in the record.

Here is a list, by general topic, of the top 25 Massachusetts cases that were covered in the Seminar:

 

Discrimination Law – General

1.         Abramian v. President & Fellows of Harvard College, 432 Mass. 107 (2000)

2.         Lipchitz v. Raytheon Co., 434 Mass. 493 (2001)

3.         College-Town Div. of Interco v. MCAD, 400 Mass. 156 (1987)

4.         Thomas O’Connor Constructors, Inc. v. MCAD, 72 Mass. App. Ct. 549 (2008)

5.         Mole v. Univ. of Massachusetts, 442 Mass. 582 (2004)

6.         King v. City of Boston, 71 Mass. App. Ct. 460 (2008)

7.         GTE Products Corp. v. Stewart, 421 Mass. 22 (1995)

8.         Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611 (1983)

9.         Haddad v. Wal-Mart, 455 Mass. 91 (2009)

10.       Stonehill Coll. v. MCAD, 441 Mass. 549 (2004)

11.       City of Boston v. MCAD, 39 Mass. App. Ct. 234 (1995)

12.       Massachusetts Elec. Co. v. MCAD, 375 Mass. 160 (1978)

13.       Flagg v. AliMed, Inc., 466 Mass. 23 (2013)

 

Disability Accommodation, Interactive Dialogue, and Leaves of Absence

14.       Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443 (2002)

 

Harassment

15.       Muzzy v. Cahillane Motors, Inc., 434 Mass. 409 (2001)

16.       Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001)

 

Wage & Hour Law

17.       Okerman v. VA Software, 69 Mass. App. Ct. 771 (2007)

18.       Boston Police Patrolmen’s Ass’n, Inc. v. City of Boston, 435 Mass. 718 (2002)

19.       Camara v. Attorney General, 458 Mass. 756 (2011)

20.       Smith v. Winter Place LLP, 447 Mass. 363 (2006)

21.       Crocker v. Townsend Oil Co., 464 Mass. 1 (2012)

22.       Depianti v. Jan–Pro Franchising Int’l, Inc., 465 Mass. 607 (2013)

23.       Lipsitt v. Plaud, 466 Mass. 240 (2013)

 

Common Law Claims

24.       Hobson v. McLean Hosp. Corp., 402 Mass. 413 (1988)

25.       Fortune v. National Cash Register Co., 373 Mass. 96 (1977)

 

The webcast of this program can be accessed through the MCLE website (http://www.mcle.org/product/catalog/code/2150165WBA).

MCLE Top 25

MASSACHUSETTS PARENTAL LEAVE LAW ESTABLISHES IMPORTANT RIGHTS FOR PARENTS OF BOTH GENDERS

Posted on: February 24th, 2015 by admin

On January 7, 2015, Governor Deval Patrick signed into law An Act Relative to Parental Leave (Parental Leave Act).  Effective April 7, 2015, the new law essentially makes the existing Massachusetts Maternity Leave Act (MMLA) gender neutral, so that the protections under the MMLA apply equally to both men and women.  The Massachusetts Parental Leave Act also extends benefits to the placement of a child pursuant to a court order, in addition to coverage for birth and adoption, both of which protections are covered for women under the MMLA.

man-holding-newbornThe Massachusetts Parental Leave Act requires employers with six or more employees to provide eligible employees with 8 weeks of unpaid leave after the birth or adoption of a child. Full-time employees become eligible for leave after the completion of an initial probationary period set by the employer, but no longer than three months.  If no period is set, employees become eligible after three consecutive months of work. Part-time employees are not eligible for leave under the law. Employees must provide employers with notice at least two weeks prior to the date he or she plans to begin leave, or as soon as possible if the delay is outside the employee’s control.

The law generally requires that employees be returned to the same or similar position with the same salary and benefits after leave ends, though exceptions apply where layoffs occur.  If two employees of the same employer are parents of the same child, the employees will only receive a total of 8 weeks between them, rather than 8 weeks each (for a total of 16 weeks).  Where applicable, parental leave may be taken more than once annually under the Parental Leave Act.

Parental leave may be paid or unpaid, or may exceed 8 weeks at the discretion of the employer.  If an employer provides more than 8 weeks of leave, but does not extend status and benefit protections beyond the required 8 weeks, the employer must inform the employee in writing before leave begins that loss of reinstatement or benefits will result from taking longer than 8 weeks.

Employers must post notice of employees’ rights under the Parental Leave Act and the employer’s related polices in an area where employees can see them.  Similar to the Maternity  Leave Act, the Massachusetts Commission Against Discrimination is responsible for enforcing provisions of the Parental Leave Act, and employees who believe their rights have been violated under the law must file a complaint with the MCAD within 300 days of the alleged violation in order to protect their rights.

MCAD Guidelines Are Not Laws, Rules Supreme Judicial Court

Posted on: February 21st, 2011 by admin No Comments

In a decision issued late last year, the Supreme Judicial Court (SJC) ruled that guidelines issued by the Massachusetts Commission Against Discrimination (MCAD) do not have the force of law.  Global NAPs, Inc. v. Awiszus, 457 Mass. 489 (2010). The Guidelines have widely been used by attorneys, workers, and employers to understand the scope and meaning of laws enforced by the MCAD, including the anti-discrimination law (M.G.L. c. 151B) and the Massachusetts Maternity Leave Act (MMLA, M.G.L. c. 149 § 105D).

Under the MMLA, female employees are entitled to maternity leave for “a period not exceeding eight weeks,” following which they are to be restored to their pre-leave positions.  The Global NAPs case concerned whether an MCAD guideline could add a notice provision to the MMLA.  The employer in Global NAPs had approved a maternity leave greater than eight weeks, but subsequently terminated the employee prior to her return to work.  The Guideline required employers to inform employees if MMLA protection did not apply to maternity leave over 8 weeks.  The SJC ruled that the MMLA statute did not support the Guideline’s notice provision because the language of the statue expressly limited the maternity leave period to eight weeks.  The Court also held that an MCAD Guideline cannot alone form the basis for a notice provision that is not otherwise supported in the law.  Following what other court decisions have observed, the SJC held that MCAD Guidelines are entitled only to “substantial deference.”  Dahill v. Police Dept. of Boston, 434 Mass. 233 (2001).  As a result, the Court found that the employer did not violate the MMLA by failing to give notice that it would not extend the job restoration provision of the MMLA beyond the mandatory eight week period.

Interestingly, this determination did not come in the underlying employment discrimination action but rather from an appeal in a professional liability (legal malpractice) action filed by the losing employer against their former counsel for their lawyer’s failure to timely appeal the underlying jury verdict against Global NAPs.  In sum, the SJC found that had Global NAPs lawyers filed a timely appeal, they would have prevailed in overturning the jury verdict because the jury instructions impermissibly relied on the notice provisions set forth in the MCAD Guidelines.

Chapter 151B § 3(5) grants the MCAD the authority to create antidiscrimination regulations.  The MCAD has used this authority not only to create regulations, but also to create guidelines, such as the one at issue in Global NAPs.  A key  difference between the two lies in the process used to create them; Guidelines are written and published by MCAD, while regulations are subject to the requirements of the Administrative Procedure Act (M.G.L. c. 30A), which mandates public hearings, notice, impact studies, advisory rulings, and other formal proceedings prior to the adoption and publication of a binding regulation.

As a result of this case, the MCAD is in the process of rewriting its Guidelines into legally-enforceable regulations.  Employers and workers are cautioned that MCAD Guidelines do not necessarily reflect enforceable law, and will no doubt change during their conversion to regulations.  For current MCAD Regulations and MCAD Guidelines, please visit http://www.mass.gov/mcad/forms.html.

* Bennett & Belfort, P.C., wishes to thank our intern, David J. Mattern, for his work on this entry.

The Critical Role of Dialogue Between Mentally Disabled Tenants and their Landlords in the Interactive Process

Posted on: November 20th, 2010 by admin No Comments

There is an interesting tension in the law between the rights of disabled tenants to receive additional process when they disturb their neighbors and the rights of neighbors and landlords to maintain an orderly living environment free of interference.  Under federal and state law, landlords are prohibited from discriminating against qualified handicapped tenants because of their mental disability.  Landlords may not evict a disabled tenant if there is a reasonable accommodation – an adjustment or modification in the landlord’s rules, policies, practices, or services – that will enable the tenant to conform to the rules of his or her tenancy.  Landlords also have an obligation to provide a safe dwelling for the residents of their buildings.  These obligations may come into conflict when one tenant’s mental disability threatens other residents’ safety or quiet enjoyment of their rental units.  In this type of situation, where the simplest response seems to be evicting the ‘problem tenant,’ the landlord must strike a careful balance between the rights of the disabled tenant and the rights of the other residents. 

In situations where landlords make a good faith effort to accommodate a mental disability but no reasonable accommodation is possible, the courts typically allow evictions to proceed.  In Andover Hous. Authy. v. Shkolnik, 443 Mass. 300 (2005), one of the tenants had senile dementia, shingles, and depression, and repeatedly engaged in behavior that substantially disturbed neighbors, including loud arguing, yelling, and excessive television or radio volume, often in the middle of the night. Through a grievance process established by the landlord, the landlord and the tenants explored some possible physical modifications to the unit such as sound proofing, but no adjustments seemed to be effective.  The landlord then commenced eviction proceedings against the disabled tenant for excessive noise in violation of the terms of the lease.  The tenants claimed that the landlord had discriminated against them by failing to withdraw or delay the eviction proceedings as a reasonable accommodation for the tenant’s disabilities.  On appeal, the Supreme Judicial Court affirmed the judgment of the housing court allowing the eviction, concluding that the landlord was not required to withdraw the eviction proceedings as a reasonable accommodation because, even if eviction proceedings were withdrawn or delayed, the tenants were not able to comply with the terms of their lease by not disturbing their neighbors.       

On the other hand, the courts have held landlords liable for discrimination in situations where the landlord is aware of a tenant’s mental disability and fails to engage in the interactive process to determine if an accommodation is available which would allow the tenant to comply with the terms of the tenancy prior to commencing eviction proceedings.  For example, like the tenants in Shkolnik, one of the tenants in Boston Housing Landlord v. Bridgewaters, Slip. Op. SJC-10107 (January 7, 2009), 2009 WL 26765 had a mental disability which disturbed other tenants in the building.  While the disabled tenant was transitioning between doctors, the tenant suspended use of his medication for manic depression and assaulted his brother, who was his co-tenant in his rental unit.  During the eviction proceedings brought by the housing landlord, the tenant requested a stay as an accommodation for his mental disability, but the housing court allowed the eviction to proceed.  On appeal, the Supreme Judicial Court held that the landlord discriminated against the tenant on the basis of disability by refusing to withdraw eviction proceedings.   The Court reasoned that the eviction was discriminatory because the landlord was on notice prior to the eviction trial that the tenant was disabled, the tenant had requested a reasonable accommodation, and the landlord failed to make an individualized assessment as to whether an accommodation would allow the tenant to comply with the terms of his lease before concluding that the tenant posed a direct threat to others.

Shkolnik and Bridgewaters are similar in that they both involve tenants with mental disabilities who were subject to eviction proceedings brought by a public housing landlord.  One of those eviction proceedings was found to be lawful while the other was not.  The landlord who engaged in the interactive process in good faith was allowed to proceed with the eviction, while the landlord who failed to consider less drastic alternatives to eviction was not permitted to evict the disabled tenant.   

Unlike physical handicaps, mental disabilities are typically hidden and often undiagnosed.  The landlord’s task of ascertaining a reasonable accommodation for a mental disability only begins when the landlord knows, or should know, that a tenant has a disability.  This is clear when a tenant explains how an accommodation will assist them but is far more complex when a landlord observes behavior that might suggest mental illness.  Prior to pursuing an eviction against a disabled tenant, landlords have an obligation to engage in the interactive process to determine whether an appropriate accommodation will enable the disabled tenant to comply with the lease.  Otherwise, the landlord may be inviting allegations that it wrongfully discriminated against the tenant.