Attorney John Davis has won a case of first impression in the Commonwealth of Massachusetts. Davis convinced the MCAD that his client, a Caucasian employee, was subjected to unlawful race discrimination, by his Caucasian boss, based upon racial slurs directed at the client’s fiancée, who is Jamaican. Davis accused the company’s boss of engaging in unlawful associational race discrimination and the MCAD accepted the theory and awarded Davis’ client $50,000.00 in emotional distress damages. The MCAD also issued a $10,000.00 civil penalty against the Respondents.
While employment-based associational discrimination claims have not gained significant traction in Massachusetts, Davis points out that the theory has been adopted by the MCAD relative to housing and religious discrimination, as well as a number of other jurisdictions. As expected, the decision, which was reported on the front page of Lawyer’s Weekly, fetched a number of disagreeable comments from numerous defense attorneys.

A Florida-based medial spa focusing on laser hair removal with numerous locations throughout Massachusetts was found liable for creating a hostile work environment for one of its only male employees. The MCAD recently issued a decision in which the agency awarded a male supervisor-in-training almost $200,000.00 in lost wages and emotional distress damages.
The MCAD found credible that the female aestheticians made explicit, sexual “jokes” about customers’ private parts that the male supervisor-in-training found offensive. On another occasion, the female manager, who was training the complainant, ‘flashed’ her breasts at her boss vis-à-vis a video camera after securing a profitable sale. The complainant decided that he would not be able to work in an atmosphere that was “way too sexual”. Soon after the complainant complained about the sexual harassment, and in the middle of his training regimen, he was fired, purportedly for not making enough sales. The MCAD ruled that the complainant was not yet responsible for sales, and as such, the medical spa’s reason was not a truthful reason.
This case is noteworthy for many reasons: First, the MCAD awarded $150,000.00 in emotional distress damages to a male employee who was not the subject of the sexual harassment by his female colleagues, and because the complainant was not subjected to the harassment for long and one of the factors for a hostile work environment is that the sexual harassment must be severe and pervasive.

When a jury found that Wal-Mart terminated Cynthia Haddad from her job as a pharmacist for discriminatory purposes a jury awarded her two types of damages, front pay and punitive damages, both of which were affirmed by the Supreme Judicial Court (“SJC”). Haddad v. Wal-Mart Stores, Inc. The trial judge threw out the awarded punitive damages utterly confusing the SJC. The SJC granted direct review to both Haddad’s appeal of removing the award of punitive damages and Wal-Mart’s appeal of the front pay damages. The SJC has re-instated the punitive damages awarded by the jury and affirmed the front-pay awarded.

Front Pay Damages

Wal-Mart challenged the jury’s award of 19 years of front pay calling it excessive. When an individual is unlawfully terminated from a position for discriminatory purposes the defendant company may be liable for front pay damages. Front pay is intended to compensate a plaintiff for their future financial injury caused by the defendant employer’s intentional discriminatory actions. While a plaintiff retains a duty to mitigate front pay damages, for instance finding another job, an employer can be held liable for lost earnings and benefits that are no longer available to the plaintiff due to the employer’s unlawful discrimination in the form of front pay. The Haddad court discussed five established factors for the judge or jury to consider when determining the appropriate amount of front pay without overcompensating the injured employee: “(1) the amount of earnings, including salary and benefits, that the plaintiff would have received between the time of trial and the plaintiff’s projected retirement date; (2) the plaintiff’s probable retirement date; (3) the amount of earnings that the plaintiff would probably have received from another employer until her retirement, which would reduce any front pay award; (4) the availability of other employment opportunities; and (5) the possibility of future wage increases and inflation.” Id. While the court has seemingly laid out a simplistic step by step analysis for a jury to consider, a concrete formula has not been established to be presented to juries. While the court clearly states that actions taken by the plaintiff to mitigate their damages must be considered subsequent to determining front pay using the five factors they do not explain how the jury’s calculation of front pay should be discounted. Without providing a clearly defined formula for neither the five factor analysis nor the discount the court leaves open the possibility of inaccurate and miscalculated front pay calculations made by juries.

Punitive Damages

After punitive damages were awarded at trial Wal-Mart filed a motion, which was granted, to have the award vacated on two grounds: the award was excessive and their actions were neither egregious nor outrageous as required by statute for punitive damages to be awarded. While a long line of case law establishes that behavior must be egregious or outrageous for punitive damages to be warranted the SJC had not yet clearly defined egregious or outrageous. Especially, not when being awarded for a violation of Massachusetts employment discrimination statute, M. G. L. c. 151B. In Haddad, the SJC set clear parameters for how a judge shall instruct a jury when presented with an employment discrimination case where punitive damages may be awarded. First and foremost the employer must have engaged in behavior beyond intentional discrimination. If based upon the evidence a jury could reasonably find that the employer’s behavior went beyond intentional discrimination judge shall tailor the jury instructions to one or more of the following factors: (1) whether a conscious effort was made to diminish the plaintiff because of their class or the class the plaintiff belongs to, (2) whether the defendant disregarded possible harm cause by their behavior, (3) the actual harm to the plaintiff, (4) the defendant’s actions subsequent to learning about possible harm, and (5) the duration of and/or concealment of the defendant’s behavior. By setting forth these factors the SJC has filled a void in the law by establishing a new standard which defines outrageous or egregious behavior in employment discrimination cases. This allows parties to properly assess when it is appropriate for punitive damages to be both considered and awarded in discrimination cases.

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.