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Massachusetts High Court Holds That Small Employers Can Be Sued For Employment Discrimination
The Massachusetts Supreme Judicial Court(“SJC”) recently held that a business that does not employ enough persons to fall within the scope of the Massachusetts employment discrimination statute, Chapter 151B, can nonetheless be sued for alleged discrimination under a different Massachusetts statute. In this decision, Thurdin v. SEI Boston, LLC, the SJC opened the door for discrimination claims to proceed against such small employers under the Massachusetts Equal Rights Act (“MERA”).
Case Background
The plaintiff in the case, Tracy Thurdin, was hired in March 2005 as an information technology consultant by the defendant, SEI Boston, LLC. Several weeks after beginning her employment, Thurdin mentioned to SEI’s managing principal that she was pregnant and was due to give birth in late June 2005. Although Thurdin indicated that she would be able to carry out all of the essential functions of her job during her pregnancy, SEI allegedly responded by informing Thurdin that she had acted unethically by failing to disclose her pregnancy during the interview process. In addition, according to Thurdin, SEI stated that Thurdin would not be able to be placed on-site with clients due to her pregnancy and complained that it would be very costly for SEI to provide her with maternity leave.
Shortly thereafter, SEI allegedly placed Thurdin on an involuntary, unpaid leave of absence due to her pregnancy. Thurdin never returned to work for SEI.
In response to these alleged events, Thurdin filed a charge of sex and pregnancy discrimination against SEI with the Massachusetts Commission Against Discrimination (“MCAD”) and the Equal Employment Opportunity Commission. Thurdin’s charge was dismissed on the basis that SEI had only three employees and thus was not covered by either Chapter 151B or its federal counterpart, Title VII.
Thurdin then filed suit in the Massachusetts Superior Court, alleging that SEI’s actions constituted a violation of MERA, which provides that Massachusetts residents are entitled to equal rights without regard to sex, race, color, age, handicap, creed or national origin. The Superior Court dismissed Thurdin’s lawsuit, holding that Chapter 151B is the exclusive remedy under Massachusetts law for employment discrimination and that Thurdin accordingly could not assert such a claim under MERA. Thurdin appealed this ruling to the Massachusetts Appeals Court, and the SJC subsequently decided to transfer the appeal to its own docket.
The SJC’s Decision
Reversing the Superior Court’s decision, the SJC held that Thurdin could assert a claim for sex discrimination against SEI under MERA. According to the SJC, although prior court decisions have referred to Chapter 151B as the exclusive remedy under state law for employment discrimination, the Massachusetts Legislature in fact intended to require that a plaintiff alleging employment discrimination proceed under Chapter 151B only where the statute permits the plaintiff to do so. By contrast, the SJC held, where a plaintiff is unable to assert such a claim because the employer falls outside the scope of Chapter 151B, the plaintiff is free to pursue any other avenue of relief that may be available, including a claim under MERA.
In addition, although MERA refers to an individual’s right “to make and enforce contracts,” the SJC held that the Legislature did not intend to restrict potential employment discrimination claims under MERA to cases in which the alleged discrimination took place during the hiring process. Rather, citing the legislative history underlying MERA, the SJC concluded that the Legislature intended for the phrase “enforce contracts” to encompass all actions occurring during the course of employment.
Implications of Decision
As a result of the Thurdin decision, employers in Massachusetts that are not subject to Chapter 151B because they employ fewer than six people can instead anticipate facing potential claims of employment discrimination under MERA. Moreover, because MERA (unlike Chapter 151B) is not limited by its terms to the employment context, it is possible that this holding eventually might be extended to permit non-employees – such as independent contractors or shareholders of professional-services firms – to assert claims under MERA based on alleged discrimination occurring in the course of work relationships. As a result, all Massachusetts employers, irrespective of size, need to ensure that their employment and other service-related decisions are made without regard to any of the protected characteristics specified in MERA.
The Thurdin decision has the somewhat odd effect of establishing two parallel structures for employment discrimination claims under Massachusetts law, depending on how many employees a business has. An individual asserting a claim against an employer with at least six employees must still proceed under Chapter 151B, which requires that a complainant initially file a charge of discrimination with the MCAD. By contrast, under Thurdin, an individual alleging discrimination on the part of a business that employs fewer than six persons can immediately file a court action under MERA. This immediate access to the courts may be seen as an advantage by some plaintiffs whose discrimination claims arise under MERA rather than Chapter 151B. On the other hand, complainants proceeding under Chapter 151B will continue to have the option of having their claims fully adjudicated by the MCAD (which is often seen as a more employee-friendly forum) or of withdrawing their agency charges after a specified time period and filing suit in court. This choice will not be available to discrimination complainants proceeding under MERA.
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Please feel free to contact us if you have questions about the Thurdin decision or its potential effects upon your business. We routinely advise employers regarding their obligations under the discrimination laws and would be happy to be of service.
