Employment Law News, Sapirstein & Sapirstein, P.C.

Employment Law News

Respondents to discrimination complaints at the MCAD
are entitled to a Jury Trial
SJC decision may increase the chances for Employers to stop Discrimination Claims in the early stage of Litigation
The Supreme Court rules on Employer Liability for supervisors who create or maintain a hostile work environment

Under Massachusetts’ antidiscrimination laws, employees of companies with six or more employees must bring a complaint before the Massachusetts Commission Against Discrimination ("MCAD") before resorting to the court system. Cases at the MCAD are heard by an impartial hearing officer; juries are not part of the process at the MCAD. A complainant has the right, under Chapter 151B, to remove his or her case from the MCAD and file a complaint in state or federal court. However, a complainant must assert his or her right to remove the complaint to court before the case is tried before a hearing officer at the MCAD. Complainants are not able to lose a case at the MCAD and then try again in a full trial in court. In 1994, the Supreme Judicial Court of Massachusetts (the "SJC") held that discrimination plaintiffs who remove their cases to state court are entitled to a trial by jury when they seek legal damages, such as compensation for emotional distress or loss of likely future earnings. Chapter 151B grants no corresponding right to respondents to remove a case from the MCAD for trial in court. Under Chapter 151B, respondents are entitled only to have a court review the record of the proceedings held at the MCAD.

In Lavelle v. Massachusetts Commission Against Discrimination, the SJC held that since complainants have a constitutional right to a jury trial, MCAD respondents also have a right to have their case heard by a jury. There is a distinct difference, however, in when the parties may assert this right. Under the Lavelle decision, a complainant is still entitled to fully prosecute his or her case at the MCAD without resorting to a court trial at all. Many complainants prefer to remain at the MCAD because it is less expensive and less formal. After the Lavelle decision, if a complainant wins his or her case at the MCAD, and the full Commission upholds the decision on appeal, the respondent is entitled to have the case heard anew in court by a jury. Respondents must wait until a final determination of the case is made at the MCAD before an action may be filed in court. In effect, many respondents get two chances to prevail. A complainant may spend years awaiting a hearing at the MCAD, prevail at the MCAD, and then have to wait years to see how the case turns out after a trial before a jury.

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In Matthews v. Ocean Spray Cranberries, Inc., the SJC issued a ruling on the issue of what type of evidence a plaintiff alleging discrimination must present in order to show that he or she is entitled to a trial on his claim. When a plaintiff claiming discriminatory treatment on the job does not have clear, direct evidence of discrimination, the plaintiff alleges certain facts supporting an inference of discrimination. The defendant employer must state what it maintains is the real, nondiscriminatory reason for the treatment of which the plaintiff is complaining. The plaintiff must then be able to show that he or she will be able at trial to present evidence from which a jury may find that the reason stated by the defendant is not the real reason but is merely a pretext for its discriminatory motivation. In Matthews, the court noted that the strongest evidence of pretext a plaintiff can show is that similarly situated employees who are not in the same protected category of the plaintiff (such as race or sex) were treated differently. The Court provided a fairly strict standard under which plaintiffs must establish that employees they wish to compare themselves to were "similarly situated."

Plaintiffs must be able to "identify and relate specific instances where persons similarly situated in all relevant aspects were treated differently." (Emphasis added.) The Matthews decision teaches that plaintiffs must be able to show that the other alleged differently treated employee(s) were similar in job performance, qualifications, and conduct. The plaintiff in Matthews was terminated for violating a policy against removing damaged product from the employer’s facility. The plaintiff alleged that employees of a different race had "stolen" time from the employer by falsifying time sheets, but were not terminated for the offense. The SJC ruled that the lower court was correct in deciding that different circumstances in the cases showed the employer was warranted in treating the employees differently.

One rule gleaned from Matthews is offenses need not be identical, but they must be of comparable seriousness. The decision may provide incentive for employers to examine their disciplinary policies to see if adjustments could be made, since to be considered "similarly situated," employees must be disciplined under the same policy. On the other hand, this decision may result in employers having to fend off requests by employee-plaintiff’s for disclosure of personnel records of other employees in the plaintiff’s effort to establish sufficient facts to proceed to trial. Sensitive personnel records disclosing disciplinary history and achievements of persons not parties to the underlying litigation have gained a higher degree of relevance in the wake of the Matthews decision.

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In June, the United States Supreme Court issued two opinions in which the Court provided some clarification on the questions of whether and when employers may be held liable when their supervisory employees engage in discrimination by creating or maintaining a hostile work environment. While the Court appears to have broadened the scope of employer liability under the federal Civil Rights Act (Title VII) for the actions of their supervisors, it also provided employers an affirmative defense in suits alleging a claim based upon a hostile work environment. The defendant bears the burden of proof in establishing an affirmative defense. Every employer should be familiar with the parameters established by the Court regarding actions employers should take to allow them to establish an affirmative defense to hostile work environment harassment suits.

Justice Kennedy delivered the opinion of the Court in Burlington Industries, Inc. v. Ellerth, and Justice Souter delivered the opinion in Faragher v. City of Boca Raton. Both cases concern former female employees who alleged that their male supervisor or supervisors subjected them to conduct that constituted a hostile work environment. Neither Ms. Ellerth nor Ms. Faragher ever utilized her employers written procedure for complaining of harassment in the workplace. Furthermore, neither woman ever suffered a tangible detriment to her employment, such as discharge, demotion, or an undesirable work reassignment. Where a victim of harassment suffers such a tangible detriment, no affirmative defense is available to the employer through which it may avoid liability for the actions of its supervisors.

In Faragher v. City of Boca Raton, the Court states that in implementing Title VII it makes sense to hold an employer vicariously liable for some tortuous conduct of a supervisor made possible by abuse of his supervisory authority . . . In Burlington Industries, Inc. v. Ellerth, the Court notes that limiting employer liability for discriminatory conduct of employees can serve as a deterrent to unlawful discrimination to the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive. Thus, these two opinions may limit the liability of some employers while broadening the potential exposure to liability for other employers, depending upon the extent to which employers implement effective anti-harassment policies and procedures.

The employer's affirmative defense requires the employer to establish two elements. First, the employer must prove that it exercised reasonable care to prevent and correct promptly any harassing behavior. Second, the employer must prove that the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Thus, it is imperative for employers to have an anti-harassment policy that includes specific factors emphasized by the Court.

Employers should consider whether their company would be able to successfully assert an affirmative defense.

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