Sankey Law Offices | Boston Attorney | Special Education

Asperger Syndrome Dropped as Separate Psychiatric Diagnosis

On December 1, 2012, the American Psychiatric Association voted to eliminate Asperger Syndrome as a separate diagnosis in the upcoming revision of its Diagnostic and Statistical Manual. 

Asperger Syndrome is a neurobiological disorder characterized by social impairment, communication difficulties, and restrictive/repetitive stereotyped behavior patterns.  Since 1994, Asperger’s has been defined as a separate disorder from autism in the psychiatric manual. As a result of this change, the Asperger’s diagnosis will be placed within a new “autism spectrum disorder” category, which will also include autistic disorder, childhood disintegrative disorder and pervasive development disorder not otherwise specified. These are collectively known as spectrum disorders because the symptoms of each can appear in different combinations and in varying degrees of severity. For example, two children with the same diagnosis may share certain patterns of behavior but often exhibit a wide range of skills and abilities.

The question for many parents of children previously diagnosed with Asperger’s is whether this change in diagnostic terminology will impact their child’s eligibility to receive special education services. According to experts, the revision will not affect eligibility. Catherine Lord, an autism expert at Weill Cornell Medical College in New York who was on the psychiatric group's autism task force, said that any child who met the criteria for Asperger's in the old manual would be included in the new diagnosis.  It will bear watching to see how evaluators and school address this diagnostic revision once it takes effect in May 2013, but it does not appear that the labeling of the disorder will affect special education eligibility.

Written by Jeffrey Sankey

Making False Statements about a Business may be Costly

These days, it takes just seconds on a Facebook or Twitter site to send messages expressing dissatisfaction with a business that may reach thousands of followers and instantaneously affect the reputation and profitability of the business. What happens when those statements are not true? An ongoing case in Superior Court in Massachusetts illustrates the conflict between the individual’s First Amendment right of free speech and a business’s right to be protected from defamatory statements published through social media sites. The message of this case can be summarized as, “You can say what you want, but be prepared to pay if it’s not true.”

In this case, family members of a woman who was fired by her employer, a car dealership, launched an aggressive social media campaign against the dealership, claiming that it terminated the woman’s employment because she suffered from brain cancer. When the social media efforts generated 50,000 followers – many of whom pledged not to do business with the dealership - the dealership sued in Superior Court, alleging that the allegations were false and claiming that the impact of the bad publicity caused it to suffer financial harm. After a preliminary hearing, the judge found that the dealership had a substantial likelihood of prevailing on the merits of the case when it eventually proceeds to trial.  Citing the First Amendment, the judge declined to issue an injunction requiring the family to remove the negative postings. However she did attach $1.5 Million of the family members’ real estate holdings and bank accounts as security for any damages that may ultimately be awarded to the dealership after a trial. As of December 2012, the case remains in litigation with trial likely more than a year away, and the family members have no access to the attached assets during this time.

While the methods of communication have been vastly transformed since our Constitution was enacted, this case shows that the underlying objective to protect free speech has not changed. However, while a person has a protected right to express his views in a public forum, he may still be liable to pay money damages to the target of his complaints if it is proven that the statements are untrue and defamatory.

In my employment practice, I am occasionally asked by a client whether he can make statements intended to expose unfair or discriminatory practices committed by his former employer.  Understandably, the client’s primary motivation is usually to exact some revenge against the employer who has just fired him. My advice: hold your tongue before trial and try the case in the courtroom. If you win, then there won’t be any doubt that what you say is true, and you won’t be exposing yourself to pay financially crippling damages.

Written by Jeff Sankey

Gender Discrimination - Woman receives $300K for Emotional Distress from MCAD

The Massachusetts Commission Against Discrimination recently awarded $300,000 in damages for emotional distress to a woman whose job was eliminated after she complained about receiving unequal pay and disparate treatment as a female. This is one of the largest awards for emotional distress in the history of the Commission.

The employee had worked in the office supply industry for 15 years and was the only female direct sales manager in her employer’s Boston office. In 2006, she complained that her salary was less than her two male counterparts working in the same office, even though they were less experienced and had lesser qualifications. She also complained that she was excluded from male-only networking opportunities such as golf outings and luncheons. The employee alleged that her employer reacted to her complaints in a hostile manner and ultimately restructured its sales organization to eliminate her position in retaliation for her complaints.

After hearing the evidence, the MCAD hearing officer decided that the employer’s decision to eliminate her position was motivated by a desire “to punish her for complaining about gender disparities and for not quietly accepting less remuneration than her male colleagues.” In a stinging rebuke to the employer’s defenses, the hearing officer concluded that the employee “was a strong and persistent female who did not conform to the standards expected of a woman in the workplace.” The hearing officer rejected the company’s defenses, characterizing them as “an unflattering stereotype of females who seek to advance their professional interests as overly aggressive and selfish, whereas male professionals who exhibit similar behavior are viewed as confident, hard-charging and successful.”

Under Massachusetts law, an employee may recover damages for the emotional distress resulting from discrimination and retaliation in the workplace. The ways that an employee may suffer emotional distress are many and varied.  An employee’s reactions to mistreatment or a loss of job with its accompanying financial impact and loss of reputation may include anxiety, embarrassment, depression, loss of self-esteem, sleeplessness, loss of appetite or headaches.  While an employee is not required to seek therapy or counseling for her emotional distress, it is certainly helpful at a hearing or trial to have an expert describe the nature of the employee’s distress. This case demonstrates that significant damages are available to an employee who suffers discrimination and retaliation because of her gender.

Written by Jeffrey Sankey.

Parents can be Jailed for Serving Alcohol to Minors

On May 11, 2012, a Beverly mother of two was sentenced to six months in the House of Correction, followed by six months of house arrest, for providing her teenage daughter and her friends with alcohol and then allowing them to drink in her home. According to reports, one of the teenagers was treated at a hospital for alcohol poisoning following the party.

While it is unusual for a jail sentence to be imposed upon a parent in such a case, it bears noting that the problem of underage drinking is receiving greater scrutiny from law enforcement officials than ever before. Following several highly publicized deaths of Massachusetts teenagers which were directly related to underage alcohol consumption, police in many communities have stepped up their enforcement activities in an effort to control drinking by minors. Nonetheless, some parents have decided that it is inevitable that youths will experiment with alcohol and have taken it upon themselves to provide a place for them to drink in their homes, presumably outside of police view. This most commonly occurs around the times of prom, high school graduations and the holidays. However well-intentioned these parents may be, they are failing to recognize that the legal age for drinking in Massachusetts is 21, and that they place themselves in jeopardy of being criminally charged if the police learn of the party.

It is not difficult for police to become aware of an underage drinking party. Officers are trained to be alert for large numbers of cars parked in suburban neighborhoods, and it is a simple process for them to identify vehicles registered to minors. Often, parents agree to their child’s request for a party with a “few friends,” only to find dozens of uninvited teenagers arriving at their home after word is spread that there is a party. Further, despite parental efforts to control noise, it is quite common for parties to become loud and boisterous, resulting in calls to the police from neighbors. More recently, we have heard about anonymous reports to the police of underage drinking parties from other teenagers who were not invited to the party.

The bottom line is that the drinking age in Massachusetts is 21 for a reason – to prevent minors from being injured or increasing the chance that they will injure others due to alcohol consumption. Parents take great risk in providing alcohol to minors or allowing them to drink in their homes. If a teenager leaves the house after drinking and is involved in a car accident, or if he or she requires medical treatment due to drinking, it is an easy step for the police to identify the source of the alcohol. As the recent case illustrates, courts are viewing these incidents with heightened seriousness and significant criminal consequences. Parents who allow minors to drink in their homes may also be sued for civil damages if someone is injured or dies.      

Written by Jeffrey Sankey    

What is a school's responsibility when students sexually harass other students?

What obligation does a school district have when confronted with allegations that students have been sexually harassed by other students? In a recent case, a federal appeals court has upheld a jury award of $200,000 against a Tennessee school district which a jury found to have mishandled a disturbing series of student-on-student acts of sexual harassment committed by members of a middle school basketball team.

Under a federal statute, Title IX, a school district may be liable for student-on-student sexual harassment under certain circumstances. Specifically, when administrators or other school employees have knowledge of sexual harassment which is so severe, pervasive and offensive that it deprives the victim student of the ability to access educational opportunities, they must take affirmative action to protect the victim. When school officials fail to properly exercise these responsibilities, they may be said to be “deliberately indifferent.” “Deliberate indifference” is a legal term which means that the response of the school officials “is clearly unreasonable in light of the known circumstances.”

In this case, a jury heard evidence that some 8^th grade members of a boys’ basketball team were harassing their 7^th grade teammates. These acts included turning off all lights in the locker room and then “humping” and “gyrating” on the younger players. The older students also required the 7^th graders to perform blindfolded sit-ups during which the face of the “sitting up” student would contact the bare buttocks of one of the harassers. In the most serious of the incidents, a group of 8^th graders forced one of the younger players to the ground, pulled his pants down and anally penetrated him with a marker.

Not surprisingly, the younger students did not initially report this abuse because they felt threatened. When their coach eventually heard rumors of the “marker incident,” he did not immediately report it to school officials or to the victim’s parents. Instead, he spent several days trying to determine the accuracy of the rumors. When school administrators finally learned of the allegations, they suspended the perpetrators involved in the marker incident from school for ten days and removed them from the basketball team. According to reports, the school principal characterized the “lights out” and “blindfolded sit-up” incidents as “bad pranks” and did not punish the students involved in these acts. As these events transpired, the victims were verbally harassed by other students until two of the 7^th grade students were withdrawn from school by their parents. Incredibly, the 8^th graders who were initially suspended from the team were eventually reinstated by a disciplinary committee of high ranking school officials.

At trial, a jury awarded $100,000 to each of the two 7^th graders who had filed suit and the school district appealed. On August 23, 2012, a federal appeals court upheld the award. The court noted that it was reasonable for the jury to find the school district deliberately indifferent for several reasons, not the least of which was the district’s failure to recognize the “marker incident” as a serious act of sexual assault deserving more than a 10-day suspension. The court also criticized the district’s decision to return the players to the basketball team where the victims would be forced to interact with them on a daily basis. Finally, the court condemned the district’s failure to conduct any substantive investigation into the “lights out” and “blindfolded sit-up” incidents or to take any immediate action to protect the students from continued harassment.

The lesson from this case: when school officials are confronted with allegations of sexual harassment by students, they have a legal obligation to conduct a meaningful investigation. If the harassment is substantiated, the district must initiate prompt remedial action to protect the victims and to provide them with a safe learning environment. Although this case occurred in Tennessee, it was decided under federal law which provides the same protections to students in Massachusetts.

SHAWNEE MATHIS, et al. v. WAYNE COUNTY BOARD OF EDUCATION, et al.