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.

Summary judgment may be appropriate, though rare, in cases of employment discrimination where the plaintiff fails to show a genuine factual issue with regard to the employer’s discriminatory motive or intent with regards to an employment action. Plaintiff has the initial burden of presenting their prima facie case by showing to a preponderance of the evidence that without further explanation by the employer, the adverse employment action against them was due to their protected class. The employer is then afforded the opportunity to present another reason for their employment action. This reason need not be wise nor practical, just nondiscriminatory. The plaintiff may defeat a motion for summary judgment either by discrediting the employer’s proffered reasons as being pretextual or by presenting evidence that the motivating reason for the employment action was more likely than not discriminatory. If the evidence is in balance, however, there is no genuine issue of material fact and the employer may prevail on summary judgment.
The following recent opinions reflect an inclination to uphold summary judgments for the defendant in discrimination cases. The court recognized recently in Brooks v. Peabody & Arnold, LLP, that while summary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment, such does not preclude the remedy from ever being appropriate. The court rejected the plaintiff’s argument that she was fired due to her status as a disabled person. The plaintiff contended that her disability, rather than the warnings she had recently received at work or the company’s suspicions of fraud, was the reason for her termination. The court held that the plaintiff failed to present sufficient evidence of the defendant’s discriminatory intent to rebut the defendant’s showing that, through their use of a private investigator, they believed the plaintiff to be misrepresenting herself as disabled. The defendant was held to have discharged the plaintiff for lying about her disability, rather than for her disability, therefore withstanding the motion for summary judgment.
Generally, evidence of direct touching in a sexual harassment claim is enough to at least survive summary judgment, if not sufficient to allow the plaintiff to prevail on their claim. “[A] single act of harassment may, if egregious enough, [may] suffice to evince a hostile work environment.” Noviello v. City of Boston, 398 F.3d 76, 84 (Mass. 2005). In Rivera-Martinez v. Comm. Of Puerto Rico, et al., however, the court awarded summary judgment to the employer where the plaintiff complained that her employer sexually touched her forearm and a little over a year later, touched her back, torso and brassiere area. The court held that there was no indication that the employer’s touching, while inappropriate, was sexual in nature. Further, the court held that the plaintiff failed to show that the harassment was severe and pervasive or that it was reserved just for women.

On January 18, 2007 the U.S. Supreme Court added two new employment law cases to its docket. The Supreme Court only hears about 70 cases a year, and currently five of those cases will be cases involving the ADEA; a high percentage of cases to focus on one statute. The ADEA (Age Discrimination in Employment Act) was created in 1967 to afford workers over 40, protection from employment discrimination. Since its enactment, over 33 years ago, many unanswered questions still remain about the breadth of protection the statute affords older workers. Recently, however, the Supreme Court seems to be granting certiorari to an increased number of ADEA cases, due to the upsurge in related litigation. A few factors may explain the increased amount of ADEA claims; (1) baby boomers are now well into retirement age increasing the size of the protected class; (2) technological and medical advances have increased the average life span; and (3) with the economy possibly inching towards recession, many employers are reducing their workforce to cut costs, starting with older workers who tend to earn higher salaries.
Meacham v. Knolls Atomic Power Laboratory is one of the recently added employment law cases that the Supreme Court will decide this year. The case involves a federal research laboratory that dismissed 31 employees, 30 of whom were over 40. The defendants allege that they used factors like “flexibility” and “criticality” to assess employee skills when deciding whether the employee should be terminated. The ADEA provides that employers have the discretion to implement employment actions that adversely affect older workers, if the reason for doing so is reasonable. The gravamen of the Meacham case is whether the plaintiff or the defendant bears the burden of proving that the evaluation criteria used to terminate employees was, or was not, reasonable. The opinion from this case has the potential to greatly affect older worker’s rights. If the Supreme Court holds that the employee bears the burden of proving the unreasonableness of the employer’s actions, it will increase the difficulty of prevailing on an ADEA claim.
The other four ADEA cases on the Supreme Court docket are; Mendelsohn v. Spring/United Management, Fed. Express Corp. v. Holowecki Co., Kentucky Retirement Sys. V. EEOC and Gomez-Perez v. Potter. The question in Mendelsohn is whether the court may allow evidence from other employees who feel the defendant has discriminated against them because of their age, the exclusion of which could severely weaken the plaintiff’s claim. Holowecki is based on the more procedural question of whether an intake questionnaire may be used as a charge of discrimination. As employers are not allowed to use race, color, religion, sex, and origin even as factors when deciding employment actions pursuant to Title VII, the Supreme Court will decide if the same is true in regards to age in Kentucky Retirement Sys. Finally, Gomez-Perez deals with another question that forces the comparison of the ADEA with Title VII, of whether the ADEA also allows for claims of retaliation based on the employee’s involvement in an ADEA claim or complaint.
The decision of all five of these cases will create more concrete guidelines of which cases may be pursued under the ADEA and exactly which side bears the burden of proof in litigating those claims. In 2005, the Supreme Court announced in Smith v. City of Jackson that the ADEA was intended to be interpreted similarly to Title VII in allowing disparate impact claims, expanding the protection the ADEA offers. These are claims where the specific intent to discriminate need not be proven, just that a particular employment practice adversely affects those over 40. This issue was controversial due to the inclusion of the “reason other than age” defense provided for in the ADEA. The current Supreme Court has the power to cut back on the protection Smith offered older workers, though their doing so seems unlikely. Since Smith was decided, Justice O’Connor and Chief Justice Rehnquist have left the court and been replaced by Chief Justice Roberts and Justice Alito. Neither Justice O’Connor nor Justice Rehnquist joined the opinion in Smith. Therefore, even if the new judges vote in accordance with their conservative record, as long as the remaining judges adhere to their former interpretation of the ADEA, older workers may end this term with greater assurance in their protection under the ADEA.