The trial court granted summary judgment for the employer, holding that the employee had not established her prima facie case for discrimination because her employer did not regard her as disabled, and because she had not shown that her employer took adverse action against her because of the disability. The Appeals court reversed the summary judgment. It was not necessary for the employee to prove that she had been disabled, but merely that the employer regarded her as being disabled. The employee had produced sufficient evidence that she was otherwise qualified for her existing job, her medical condition notwithstanding.

The Court also held that, even if she had not been constructively discharged, a claim for discrimination would stand on the basis of other adverse employment actions such as scheduling her for light work and failing to arrange the medical examination which would confirm whether she could return to her position. On this basis, the Court held that summary judgment was inappropriate and that a jury could have found that the employee suffered discrimination under Massachusetts state law.

. . .

Consistent with the public policy against workplace discrimination reflected in G. L. c. 151B, we conclude that an employment contract containing an agreement by the employee to limit or waive any of the rights or remedies conferred by c. 151B is enforceable only if such an agreement is stated in clear and unmistakable terms.(13) See Garfinkel v. Morristown Obstetrics & Gynecology Assocs.,P.A., 168 N.J. 124, 130-132 (2001) (plaintiff physician’s gender-based discrimination claims against defendant employer not subject to arbitration under arbitration clause in employment contract where terms of contract not sufficiently clear to constitute waiver of plaintiff’s remedies under New Jersey antidiscrimination law).

. . .

The interpretive rule we state here is not inconsistent with the presumption of arbitrability embedded in the FAA.

. . .

Our interpretive rule states only that as a matter of the Commonwealth’s general law of contract, a private agreement that purports to waive or limit – whether in an arbitration clause or on some other contract provision – the employee’s otherwise available right to seek redress for employment discrimination through the remedial paths set out in c. 151B, must reflect that intent in unambiguous terms.(14) In relation to an arbitration clause, the rule continues to uphold the language and generous spirit of the FAA and the Commonwealth’s own public policy in favor of arbitration agreements: parties to an employment contract are free to agree on arbitration of statutory discrimination claims, and the presumption of arbitrability is in effect. However, parties seeking to provide for arbitration of statutory discrimination claims must, at a minimum, state clearly and specifically that such claims are covered by the contract’s arbitration clause.(15),(16)

. . .

See Warfield v. Beth Israel Deaconess Hospital, SJC 10375 (July 27, 2009).

Bottom line, these argeements will be enforced, but they need to be well drafted. More importantly, whether these agreements are even helpful for the employer, enforceable or not, remains to be seen and should be teh subject of individual analysis before you include them in your employment agreements. More to come as these issues continue to arise.