HARVEY A. SCHWARTZ

(of counsel to Rodgers, Powers & Schwartz, LLP)

E-mail:Harvey@theemploymentlawyers.com Harvey

Harvey A. Schwartz is one of the state's top civil rights and employment attorneys. Mr. Schwartz has litigated and argued several of the leading employment discrimination and civil rights cases of the past two decades, from the Massachusetts trial courts to the United States Supreme Court. He is a frequent speaker and author on employment law issues.

Mr. Schwartz received the Wilbur Knight McNair Award in 2002 from the American Civil Liberties Union of Massachusetts in recognition for his life-long contribution to civil rights and civil liberties. In 2007 he received the President's Award from the Boston Bar Association in recognition for his representation of two Saudi detainees at Guantanamo Bay. In November 2004, Mr. Schwartz was selected by his peers for inclusion among "Massachusetts Superlawyers" as one of the top 5 percent of Massachusetts lawyers. The magazine Massachusetts Superlawyers had a lead article profiling Mr. Schwartz. (Click to see the article). He has been selected as a Massachusetts Superlawyer every year since 2004. The legal reference Chamber’s “America’s Leading Business Lawyers" selected Mr. Schwartz as among Massachusetts’ leading plaintiff’s employment lawyers and described him, according to his peers, as ”aggressive, strategic and bright.” Massachusetts Lawyers Weekly selected Mr. Schwartz as one of the "Ten Best Lawyers of the Year" in 1995. His cases in the Supreme Judicial Court are frequently selected as among that legal journal's Most Important Decisions of the Year. In June 2007, the judges of the United States District Court for the District of Massachusetts invited Mr. Schwartz to address their Judicial Conference on the topic of First Amendment litigation. Mr. Schwartz holds an AV rating from Martindale-Hubbell, the highest rating given. Martindale-Hubbell is the facilitator of a peer review rating process. Ratings reflect the confidential opinions of members of the Bar and the Judiciary. Martindale-Hubbell Ratings fall into two categories - legal ability and general ethical standards.

Mr. Schwartz is also available to serve as a mediator of employment and civil rights matters. These services include mediation, case analysis and evaluation.

Some of the highlights of Mr. Schwartz' legal career include the following:

Mr. Schwartz won a significant First Amendment victory for Change the Climate, an organization that advocates for the reform of marijuana laws, when the First Circuit Court of Appeals ordered the MBTA to post the organization's advertisements, after four years of refusing to do so. This victory for freedom of expression was reported in newspapers and on television and radio across the country and Mr. Schwartz appeared on television to discuss the case.

Mr. Schwartz represents an employee of The Scotts Company who was fired because he smoked cigarettes at home, away from work. This precedent-setting case, Scott Rodrigues v. The Scotts Company, has received nation-wide attention in the media, including a cover story in Businessweek magazine. Mr. Schwartz argued in this case that employers do not have the right to control legal conduct of their employees outside the workplace. Among other media coverage, Mr. Schwartz was interviewed for National Public Radio's Weekend Edition about the implications of the case. (Click to hear the interview).

He represented five Massachusetts teenagers - including his son Sam and daughter Nicole - in Samuel Schwartz, et. al. v. Alfred Rascon, Director of the United States Selective Service System, a civil rights suit challenging the Selective Service law requirement that 18-year-old men, but not young women, must register with the Selective Service System. This case generated nationwide attention, including articles and coverage in virtually every major newspaper in the country and interviews on talk radio around the nation and by network news and National Public Radio. Ellen Goodman, whose column is syndicated in 440 newspapers around the world, wrote about the case (click to read her article). Mr. Schwartz was interviewed by National Public radio (click to hear the interview) about the law suit. He and his children appeared on "Greater Boston" with Emily Rooney on WGBH-TV and on the Jerry Nachman show on MSNBC.

Mr. Schwartz represented the plaintiff in the precedent setting case of Donald Blare v. Husky Molding Systems, Inc., 419 Mass. 437, in which he successfully argued that the Massachusetts Supreme Judicial Court should decline to follow the lead of the United States Supreme Court in employment discrimination cases. This decision created a standard of proof in Massachusetts employment discrimination cases more favorable to employees than anywhere else in the nation.

Mr. Schwartz represented Christy Mihos, a Massachusetts Turnpike Authority Board member, in a First Amendment action against Acting Governor Jane Swift in Christy Mihos v. Jane Swift, 358 F.3d 91, in the federal court for Massachusetts. The United States First Circuit Court of Appeals held that Gov. Swift could be found to have violated Mr. Mihos' First Amendment rights when she removed him from his position on the Massachusetts Turnpike Authority Board.

Mr. Schwartz argued Daniel Bogan and Marilyn Roderick v. Janet Scott-Harris, 523 U.S. 44, before the United States Supreme Court in December 1997. In this First Amendment case the Supreme Court, for the first time, discussed standards for personal liability for members of local governing boards in civil rights cases.

In Stephan Lanphear v. Thomas Reily, Attorney General, Mr. Schwartz successfully represented a tattoo artist who challenged the Massachusetts law that made it a crime to tattoo in the state. Arguing that tattooing is a form of art, protected by the First Amendment, Mr. Schwartz obtained a declaratory judgment declaring the state prohibition against tattooing was in violation of the First Amendment and tattooing became legal in Massachusetts. This case was the subject of a feature article in "The New Yorker" magazine by Susan Orlean (click to read the article). Ms. Orlean included a chapter about the case in her book "The Bullfighter Wore Lipstick."

In Kevin Bujold v. EMC, a 2007 case, Mr. Schwartz successfully applied a 1913 Day of Rest statute to protect high tech workers against being compelled to work more than six consecutive days.

In Blixt v. Blixt, Mr. Schwartz represented a single mother in her constitutional challenge to the Massachusetts grandparent visitation statute. That law allows grandparents to obtain visitation order s with their grandchildren, over the parents' objections, only if the grandchild lives with one parent, but not if the grandchild lives with both parents. Mr. Schwartz represents the mother in a petition to the United States Supreme Court seeking to have this law declared unconstitutional as discriminating against single parents. A copy of that Supreme Court petition is available.

In Paul Lopes v. Town of Mattapoisett, a federal court jury found that a town's selectmen violated the free speech rights of Mr. Schwartz' client, a former deputy fire chief, when they removed him from his position for distributing leaflets concerning the town's emergency services programs. The jury verdict, attorneys fee award and interest came to $250,000.

Mr. Schwartz represented two Catholic women fired because they refused to work on Christmas in Kathleen Pielech, et, al. v. Massasoit Greyhound, Inc., 423 Mass. 534. In this precedent-setting case the Massachusetts Supreme Judicial Court accepted Mr. Schwartz' argument that the state's employment discrimination statute violated the United States Constitution in failing to give sufficient protection to individuals' religious beliefs. This decision, and the resulting state and federal legislation, expanded the religious rights of employees across the nation. 

After the Polaroid Corporation fired scores of employees while they were on longterm disability leave, mr. Schwartz filed a class action lawsuit for the employees. The case was the lead story in that day's Wall Street Journal.

In Joanna Upton v. JWP/Businessland, 425 Mass. 756, Mr. Schwartz brought nationwide attention to the plight of a single mother who refused to neglect her child by working eighty hours a week, as her employer demanded. Among other effects of this case, the Harvard Business School created a case model based on these facts to teach future managers how to accommodate employees' family needs.

In Commonwealth v. Harry Leno Mr. Schwartz defended a man charged with illegal distribution of hypodermic syringes, trading tainted hypodermics for clean ones as part of a needle exchange program to prevent spread of AIDS. This case helped prod the Legislature into enacting pilot needle exchange programs throughout the state.

Rosalie Glanz, executrix of the Estate of Raymond Vadnais v. Dr. David M. Vernick was the first trial in the nation against a physician who refused to treat a patient with AIDS. Mr. Schwartz, representing the patient, helped lay the groundwork for AIDS discrimination law.

In Whalen v. Mass. Trial Court, 397 F.3d 19, Mr. Schwartz sued the Chief Justice of the Massachusetts Trial Court on behalf of a court clerk wrongfully laid off.

In Wilson v. Pendergast, Mr. Schwartz successfully represented an African-American fight promoter in a race discrimination trial in federal court against the members of the Massachusetts Boxing Commission.

The jury in Janice Daigle v. University of Massachusetts Medical Center and Michael Rudiman, 41 Mass. App. Ct. 1110, awarded Mr. Schwartz' client $1 million, including $750,000 in punitive damages, believed to be Massachusetts' largest sexual harassment jury verdict.

In The Nationalist Movement v. City of Boston, Mr. Schwartz, representing a neo-Nazi organization at the request of the American Civil Liberties Union, prevailed at a federal court trial against the city of Boston in which he called Mayor Menino as a witness. The trial judge ruled that Boston's municipal parade ordinance violated the First Amendment. An editorial in the North Shore Jewish Journal applauded Schwartz' defense of free speech in that case (click to read the article).

Salvatore Derose v. Putnam Management Co., 398 Mass. 205, was the first Massachusetts appellate decision to recognize a cause of action for wrongful termination of employment in violation of public policy.

Mr. Schwartz has an active First Amendment rights practice. He has successfully tried free speech cases in state and federal courts for a broad diversity of clients, ranging from a neo-Nazi organization denied a parade permit to a political science professor arrested for displaying a campaign sign too close to a polling place. Mr. Schwartz has been an active member of the Board of Directors of the Civil Liberties Union of Massachusetts and serves on that organization's case screening committee.

Mr. Schwartz was an Assistant Attorney General in the Criminal Bureau of the Massachusetts Department of the Attorney General, where he directed the Arson Unit, prosecuting arson-for-profit cases. Before joining the Attorney General's office, Mr. Schwartz was an associate of William P. Homans, Jr.

Mr. Schwartz is a 1978 graduate of Boston University School of Law and a 1970 graduate of the Newhouse School of Communications at Syracuse University. Between college and law school Mr. Schwartz worked for the Gannett Corporation as an investigative reporter at newspapers in Rochester and Utica, New York. Mr. Schwartz is admitted to practice in Massachusetts and before the United States Supreme Court, the First Circuit Court of Appeals, and the United States District Court for the District of Massachusetts. He has ben active in the Massachusetts Affiliate of the National Employment Lawyers Association and spoke at that organization's national convention.

He lives in Ipswich, Massachusetts with his wife and three children. Mr. Schwartz is U.S. Guard licensed Merchant Marine Officer, licensed to captain uninspected vessels carrying up to six paying passengers up to one hundred miles offshore. He is a sea kayaker and boatbuilder, having built five small boats at home and at the WoodenBoat School in Brooklin, Maine. He sails a 42-foot catamaran sailboat and used to own a 37-foot wooden boat built in France in 1963. During the summer of 1998 Mr. Schwartz took a break from his practice and served as guest editor of "Hope" magazine in Brooklin, Maine. In 1995, Mr. Schwartz used his courtroom skills as he portrayed the role of one of the villagers (the pivotal role of "Peasant No. 4") in the movie of Arthur Miller's "The Crucible", starring Daniel Day-Lewis and Winona Rider.
He is also participant in the Boston 24-hour Science Fiction Movie Marathon, an event he has attended every year since its founding in 1975 (click for information). In addition, Mr. Schwartz is an FAA-licensed glider pilot.

Mr. Schwartz is a frequent writer for "WoodenBoat" magazine. Articles include a profile of a man who built a 48-foot racing boat at his Marblehead home, a book review on "Building Greenland Kayaks," a feature article on "Crockers Boat Yard" and a book review on "Building Skin-on-Frame Boats."

SELECTED SPEAKING ENGAGEMENTS

Employment Rights of Public Employees
Massachusetts Continuing Legal Education
September 2007
Chairman

Harvard Law School
Panel member
“Handling Progressive Cases in the Supreme Court”
February 27, 2006

Massachusetts Employment Lawyers Association
Deposing the Top Dog
November 15, 2005

Employment Law Annual Update Conference
Massachusetts Continuing Legal Education
November 2004, Employment Law Conference
Speaker on persuading juries in employment cases

Employment Law Litigation Workshop
American Bar Association
November 5, 2003
Co-Chairman

Affirmative Action Conference
Boston Bar Association - Suffolk Law School
October 3, 2003
Speaker on Supreme Court cases

Supreme Judicial Court Update on Employment Law
Massachusetts Continuing Legal Education
September 30, 2003

 

Evidence Issues in Employment Cases        

Annual Employment Law Update 

Massachusetts Continuing Legal Education

December 6, 2002

 

Changes in Age Discrimination Law

Employment Discrimination Law Update ?02  Massachusetts Continuing Legal Education

July 10, 2002                                              

 

Free Speech Rights of Municipal Employees

Massachusetts Municipal Association  

Annual Conference

Sturbridge, MA   

May 1, 2002

Winning at Summary Judgment
Annual Employment Law Update
Massachusetts Continuing Legal Education
December 7, 2001
Speaker

Employment Law in the U.S. District Court
Federal Bar Association – Judicial Breakfast Series
November 29, 2001

Employee Privacy Issues After Sept. 11
Massachusetts Bar Association
November 5, 2001
Speaker

Title 42 USC Section 1983 Law and Practice
Massachusetts Continuing Legal Education
January 17, 2001
Speaker

Privacy Issues in the e-Workplace
Employment Law Conference 2000
Massachusetts Continuing Legal Education
December 8, 2000
Speaker

Employee Speech Rights in the Public and Private Sectors
Massachusetts Bar Association
November 15, 2000
Speaker

Annual Conference on Domestic Violence and the Workplace
Employers Against Domestic Violence
October 4, 2000
Speaker

Hot Spots in the Employment Relationship
Suffolk University Law School, Advanced Legal Studies Program
November 17, 1999

Federal Court Judicial Forum
Massachusetts Continuing Legal Education
November 9, 1999
Attorney panelist

Getting out from Overwork: Legal, Cultural and Gender Implications
Alliance of Work/Life Professionals, New England Work and Family Association
Boston College
October 28, 1999

Civil Rights of Municipal Employees
Massachusetts Town Counsel Association Annual Meeting
Sturbridge, Massachusetts
October 23, 1999

Employment Actions Against Cities and Towns
Massachusetts Bar Association
June 2, 1999

Trying Race Discrimination Cases
1998 New England Regional Conference
National Employment Lawyers Association
November 20, 1998

Trying employment cases with no smoking gun
Employment Law Conference 1998, Massachusetts Continuing Legal Education, November 13, 1998

Punitive Damages in Employment Cases

National Employment Lawyers Association, Annual National Conference, Monterey, CA, June 26, 1998

David Brudnoy Show

June 10, 1998, Guest on radio show concerning First Amendment and personal privacy issues

Sexual Harassment Update
Massachusetts Continuing Legal Education, June 10, 1998

Employment Actions Against Cities and Towns
Massachusetts Bar Association, Brown Bag Lunch, April 8, 1998

Discovery Issues in Employment Cases

Fifth Annual Employment Law Conference, Massachusetts School of Law, November 7, 1997

How a Plaintiff's Attorney Evaluates an Employment Lawsuit

Jackson, Lewis, Schnitzler & Krupman/CCH, Inc., Keeping Pace with the Changing Law of the Workplace, Key speaker at conference for employers, October 21, 1997

Employee Handbook Cases After the O'Brien Decision
National Employment Lawyers Association, Massachusetts Chapter, March 11, 1997

Employment Law Trial Advocacy Workshop

Massachusetts Continuing Legal Education, Speaker on direct and cross-examinations, February 26-28, 1997

Bay State College
Training program on sexual harassment for faculty members, January 7, 1997

Employment Discrimination Law Update
Massachusetts Continuing Legal Education, Speaker on religious discrimination, November 20, 1996

Skoler, Abbott & Presser Firm Retreat

Guest speaker on civility in the practice of law, October 4, 1996

Massachusetts Bar Association - Brown Bag Lunch
Speaker on employee handbooks as an employment contract, October 1996

Emerging Employment Issues Under The Americans With Disabilities Act
Massachusetts Bar Association - Lawyers Cooperative Publishing Company, Speaker on Reasonable Accommodation, June 24, 1996

National LawCast
Speaker on summary judgment in employment discrimination cases on nationwide tape recorded law update service, June 14, 1996

Defeating Summary Judgment
National Employment Lawyers Association, Northeast Regional Annual Meeting, May 10, 1996

Employment Law Trial Advocacy Workshop

Massachusetts Continuing Legal Education, Speaker on Opening Arguments, February 14, 1996

Employment Discrimination Law Update
Massachusetts Continuing Legal Education, Speaker on Discovery in Employment Cases, October 16, 1995

Third Annual Employment Law Conference

Massachusetts School of Law.
Speaker, April 28, 1995

Representing Plaintiffs in AIDS Discrimination Law Suits -- Conference on AIDS and the Law
American Bar Association - American Medical Association, Boston and San Francisco, CA, June 1994

New England Council of Occupational Medicine, Annual Meeting
Speaker on Corporate Responsibility Doctrine, Confidentiality of Independent Medical Examiner, Patient Records, AIDS and the Americans with Disability Act, September 12, 1991

Health Law Up date
Massachusetts Continuing Legal Education, Speaker on AIDS Litigation, March 8, 1991

American Medical Association 17th Annual State Health Legislation Meeting
Speaker on Medicaid Fraud and Abuse Investigations, San Diego, CA, January 3-6, 1991

Harvard Medical School
McLean Hospital, Massachusetts General Hospital, Guest lecturer to medical psychiatric residents on Confidentiality of Psychiatric Records,1985-1988

SELECTED PROFESSIONAL PUBLICATIONS

"Massachusetts Employment Law Manual"
Contributing author - Chapter on Religious Discrimination. Massachusetts Continuing Legal Education, Inc.

"Hope" Magazine
Visiting guest editor, August 1 - 31, 1998, Brooklin, Maine

"Why Lawyers Get No Respect"
"Hope" Magazine, September/October 1997

"What Gun Slinging Lawyers Need is Counseling"
Massachusetts Lawyers Weekly, June 2, 1997

"Cancer and the Practice of Law"
Massachusetts Lawyers Weekly, July 29, 1996

"Sexual Abuse of Patients by Health Care Professionals"
The Medical Staff Counselor, Summer 1991, Matthew Bender & Company

"AIDS and the Law"
Harvey A. Schwartz and Alec Gray, Massachusetts Medicine, Massachusetts Medical Society, September/October 1987

"Prescription Data Bank: Computer to Monitor Schedule II Drugs"
Massachusetts Medicine, Massachusetts Medical Society, July/August 1987

"Physicians' Dossiers"
Massachusetts Medicine, Massachusetts Medical Society, March/April 1987

"Keeping Patients Records Confidential: What are the physician's obligations"
Massachusetts Medicine, Massachusetts Medical Society, November/December 1986

"Billing Medicare, Medicaid: What you should know if you are investigated"
Massachusetts Medicine, Massachusetts Medical Society, July/August 1986

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