The article reads as follows: “According to management-side employment attorney Kathleen R. O’Toole, the decision serves as a reminder of the challenge facing employers seeking summary judgment in discrimination cases in Massachusetts.”
“As a pretext-only jurisdiction, the employee can survive summary judgment by showing that the employer’s reasons given for its action against the employee were not the real reasons for that action, even if that evidence does not show directly that the true reasons were, in fact, discriminatory,” O’Toole said. “This is a high bar in employment cases, which are very fact intensive and often will require credibility determinations.” Employers that undergo a restructuring that involves existing employees re-applying for positions should not only establish procedures that emphasize consistency but should consider conducting an adverse impact analysis of the plan with counsel, O’Toole advised.”
“Employers may lay out a plan, criteria and procedures to make sure there is no bias, but the nature of a disparate-impact claim involves unintentional bias — that there may be a policy that is neutral on its face that is disparately impacting employees or applicants,” she said.
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