Thurdin v. SEI Boston, LLC

(Massachusetts Supreme Judicial Court)

• Supporting Small Business

The claims in Thurdin v. SEI Boston, LLC pit two important public policies squarely against each other and in the process present two legal issues of first impression for the Massachusetts Supreme Judicial that are of considerable significance to small businesses in Massachusetts.  The plaintiff alleges that she was discriminated against in conditions of employment based on pregnancy/gender by SEI, a business with only three employees.  SEI denies the allegations and appears to have viable defenses.  The issues to be decided are: (1) whether the Massachusetts Equal Rights Act, G. L. c. 93, § 102 (“MERA”) can be used to sue employers of fewer than six employees for discrimination even though such small employers are expressly excluded from the purview of employment discrimination claims in an earlier, comprehensive, and more specific state employment discrimination statute, G. L. c. 151B; and (2) whether MERA (assuming it applies to employment discrimination at all) applies to on-the-job discrimination or just to discrimination in original hiring decisions.  NELF’s amicus brief, filed in support of the employer jointly with AIM and the National Federation of Independent Business Small Business Legal Center, answered both questions in the negative based on established principles of statutory construction.  As NELF’s brief further explained, the cost of defending even one discrimination lawsuit can run well into six figures, and the combination of this expense and the diversion of attention and resources to defense of the claim can do serious harm to the financial viability of small enterprises.  Moreover, statistics reported in NELF’s brief establish that most employment discrimination claims lack merit.  Thus, a decision to allow employment discrimination litigation against employers of fewer than six employees would cause significant financial harm to those businesses least able to afford it, and often for the sake of meritless claims.  Especially in difficult economic times, this impact could be sufficient to put such small firms out of business entirely.  NELF argues that these results simply cannot be reconciled with the Legislature’s clear policy determination, embodied in Chapter 151B, that very small enterprises should be exempt from these claims.