Chapter 151B, the Massachusetts anti-discrimination statute, does not apply to small employers, meaning those with fewer than six employees. However, last Friday, the Massachusetts Supreme Judicial Court ("SJC") held that an employee may nonetheless sue a small employer for discrimination under the Massachusetts Equal Rights Act. The decision has potential ramifications for all employers -- large or small -- because it suggests that a plaintiff has a claim for discrimination under the Massachusetts Equal Rights Act whenever Chapter 151B does not apply, such as discrimination claims brought by non-employees.
In Thurdin v. SEI Boston, LLC, the plaintiff alleged that she was placed on unpaid administrative leave because she became pregnant. She filed a charge with the Massachusetts Commission Against Discrimination, alleging gender and pregnancy discrimination in violation of Chapter 151B and Title VII, the federal anti-discrimination law. The MCAD dismissed the charge because her employer had fewer than six employees and thus was exempt from Chapter 151B, as well as Title VII (which has a fifteen or more employee threshold).
The plaintiff then sued in state court alleging a violation of the Massachusetts Equal Rights Act ("MERA"). MERA extends to all persons in the Commonwealth "the same rights enjoyed by white male citizens," including the right "to make and enforce contracts," regardless of sex, race, color, creed, national origin, age or disability. The Superior Court dismissed her complaint because Chapter 151 has long been the exclusive remedy for employment discrimination claims. It rejected the plaintiff's argument that she should be permitted to sue under MERA since her employer was not covered by Chapter 151B.
On appeal, a majority of the SJC reversed the dismissal of the complaint, holding that an employee who is unable to bring a claim of employment discrimination under Chapter 151B may still bring a claim under MERA. Although Chapter 151B excludes small employers from its coverage, the Court concluded that the Legislature intended to create an alternative avenue for relief under MERA. The SJC also held that the statutory right under MERA "to make and enforce contracts" extended to the employment relationship.
The majority's decision is baffling. In an earlier decision, the SJC had held that Chapter 151B was the exclusive remedy for employment discrimination claims and that plaintiffs could not rely upon MERA. After Thurdin, that rule apparently still holds for larger employers subject to Chapter 151B but not for smaller employers with fewer than six employees. Thus, employees of small employers may sue under MERA, but those of larger employers may not and must sue under Chapter 151B. Although the SJC in Thurdin purportedly relied on the language of the statutes, nothing in either statute compels the creation of two different tracks for discrimination claims depending on the size of the employer.
That anomaly is magnified by the fact that it is easier to sue under MERA than under Chapter 151B. A plaintiff pursuing a claim under MERA can proceed directly to court and has three years to do so. In contrast, a plaintiff suing under Chapter 151B must first file a charge of discrimination with the MCAD within 300 days of the challenged employment action. Plus, the plaintiff's burden of proof under MERA is arguably lower than under Chapter 151B. Thus, although the Legislature exempted small employers from the coverage of Chapter 151B, specifically because of their size, the decision in Thurdin makes it easier to sue those small employers for discrimination.
Because MERA applies to "all persons in the Commonwealth," the plaintiffs' bar may argue that Thurdin is not limited to claims against small employers but instead means that a plaintiff may sue for discrimination under MERA whenever Chapter 151B does not apply. If correct, non-employees might be able to sue for discrimination under MERA. For example, individuals who are classified as independent contractors rather than employees might be able to pursue discrimination claims under this statute. Thurdin does not address these types of claims by non-employees but we anticipate that the decision will encourage such claims in the future.
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