3 Discrimination Takeaways From The Latest High Court Term

Gavriela M. Bogin-Farber, senior associate in the firm’s Employment Department and president of Massachusetts Employment Lawyers Association (MELA), was quoted in Law360 on July 1, 2021. The article, “3 Discrimination Takeaways From The Latest High Court Term,” covered lessons for workplace bias law practitioners to glean from the latest Supreme Court Term, which ended last Thursday.

Read the full article in Law360 (subscriber content).

Gavi’s quotes from the article:

“’There were a couple of cases this term that, while they weren’t specifically employment discrimination cases, I do think they have implications for the work that my colleagues and I do,’ said Gavriela Bogin-Farber, an attorney at Sherin and Lodgen LLP’s Boston office.

… Sherin and Lodgen’s Bogin-Farber said she’s keeping some takeaways from the court’s ruling in favor of a former high school cheerleader who posted herself cursing on social media after she failed to make the varsity squad and was suspended from the team, even though the decision didn’t stem from an employment case.

While the ruling in Mahanoy Area School District v. B.L. applied to a student and school district, not an employee and employer, Bogin-Farber — who represents employees — said that First Amendment concepts can have “broad applicability” and that she could splice them into an employment context.

In its June 23 decision, the Supreme Court found that the cheerleader was allowed to exercise her First Amendment right to free speech outside of school property. Schools have ‘diminished’ authority to hold sway over what students do off campus, the justices said, but the majority fell short of holding that schools lack authority to regulate all off-campus speech.

Some courts cite a range of cases dealing with First Amendment issues, which Bogin-Farber said helps her cause since the cheerleader wasn’t an employee, though the attorney admitted employers would likely argue that a case about a student doesn’t apply in an employment context.

‘We can at least use the court’s arguments to argue that an employee’s interest is greater if the speech is occurring out of the work environment. Because otherwise, employees, students, et cetera, are under regulation 24/7, 365 days a year,’ Bogin-Farber said.

She also said her interest was piqued by the court saying the school had an interest in protecting free speech because it actually teaches students about free speech itself — ‘America’s public schools are the nurseries of democracy,’ as Justice Stephen Breyer wrote in the majority opinion. That’s an argument Bogin-Farber said she took note of for cases in which she represents teachers.

‘Schools are supposed to be teaching by example,’ she said.”