Until recently it was believed that Chapter 151B of Massachusetts General Laws was the exclusive remedy for workplace discrimination lawsuits. However, Chapter 151B does not cover small employers; those with fewer than 6 employees. In Thurdin v. SEI Boston, LLC., 452 Mass. 436 (2008), the SJC has ruled that businesses that do not employ enough individuals to fall under the Massachusetts Employment Discrimination act may bring discrimination claims under the Massachusetts Equal Rights Act (“MERA”).
Tracy Thurdin was hired as an onsite information technology consultant in February 2005. A few weeks after being hired Ms. Thurdin informed her employer that she was pregnant and due in June 2005. Her employer was incredulous at Ms. Thurdin’s failure to report her pregnancy during hiring saying her lack of notice was unethical. Immediately the company began to suggest that Ms. Thurdin take an unpaid leave of absence due to the costs she would inflict on the company. SEI Boston took it upon themselves to bench Ms. Thurdin and not send her to clients, even though, Ms. Thurdin informed them of her ability to continue her normal work duties. In addition, SEI Boston was concerned about the cost maternity leave would cause the new and upcoming company. On April 22, 2008 SEI Boston placed Ms. Thurdin on unpaid administrative leave because of her pregnancy. Ms. Thurdin never returned to her employment with SEI Boston.
Ms. Thurdin attempted to pursue administrative remedies with the Equal Opportunity Employment Commission (“EEOC”) and Massachusetts Commission Against Discrimination (“MCAD”) only to be turned away because SEI Boston claimed to only have 3 employees; fewer than the 6 required by c. 151B. Ms. Thurdin then filed a claim with the Superior Court in March 2006 where it was found that c. 151B was the sole remedy for employment discrimination cases. Also, in the alternative the phrase “make and enforce contracts” in MERA indicating that the legislative intent was for it to apply only to discrimination in the hiring process leaving Ms. Thurdin no remedy. Although, it appears that SEI Boston indicated that if Ms. Thurdin did reveal her pregnancy she would not have been hired and thus discriminated against during the hiring process.
Ms. Thurdin appeals and the SJC transferred the appeal to their own docket. The SJC found that the legislature intended c. 151B to be the exclusive remedy, as prior case law has determined, only where the statute permits the plaintiff to assert a remedy. Where a plaintiff falls outside the scope setforth in c. 151B they are free to pursue any other available remedy.
The Thurdin decision has the ability to have a large impact on both small and large employers. First, employers who were outside the purview of c. 151B can now expect discrimination claims to be brought under MERA now that a new avenue has been opened. In addition, MERA does not have the limitations of c. 151 to employers. MERA is open to “all persons within the commonwealth,” therefore, an avenue has been opened for non-employees who have been discriminated against by a company’s business practices to assert claims as well.