The Massachusetts antidiscrimination law, Chapter 151B, allows an individual claiming discrimination to commence either an administrative proceeding before the Massachusetts Commission Against Discrimination (“MCAD”) or a lawsuit. In 1994 the Supreme Judicial Court held in Dalis v. Buyer Advertising, Inc that a complainant’s judicial determination includes a right to a jury trial under the Massachusetts Constitution. By contrast, a respondent has no statutory right to elect an immediate judicial determination of the claim, but may seek a judicial review of the MCAD decision under the Administrative Procedures Act if the claimant elected to go to the MCAD. In 1997, to preserve the constitutionality of the statute, the SJC extended a jury trial right to respondents as well (Lavelle v. MCAD). Because the SJC wanted to preserve a role for the MCAD, Lavelle permitted respondents to claim jury trials only after final MCAD action, which can take up to eight years. Lavelle left a host of issues unresolved, and, with four cases pending before it that raise such issues, the SJC requested amicus briefs on themand on the question of whether its decision in Dalis was correct.
In a brief submitted jointly with Associated Industries of Massachusetts and the Boston Area Management Attorneys Group, NELF argued that Dalis correctly granted jury trial rights to complainants but that Lavelle violated respondents’ guarantee of equal protection by delaying their right to a jury for years pending final MCAD action. NELF argued that with a fundamental constitutional right at stake, the SJC failed to examine whether a compelling state interest justified such a disparity and, if so, whether its limitation of respondents’ jury trial right was narrowly tailored. In their supplemental brief, NELF and the amici took issue with the MCAD/employee argument that jury trial rights attach only to § 9 proceedings, where the complainant elects to go to court, and not to appeals from administrative proceedings originally brought before the MCAD under § 5. NELF also argued that if the Court were persuaded that there is no jury trial right after § 5 proceedings, then the Court must overrule its decisions allowing the MCAD to award emotional distress damages, since those are quintessential legal damages of the sort customarily awarded by juries.
The Court, over a strong dissent by Justice Cowin and a concurrence by Justice Sosman that reads more like a dissent, held that Dalis was correct in recognizing a constitutional jury trial right under § 9, but that Lavelle erred when it extended that right to § 5 proceedings. The Court characterized § 9 and § 5 proceedings as fundamentally different, the former a private action between two parties and the latter an administrative enforcement action vindicating the interest of the general public in the eradication of discrimination. The Court went on, in reasoning Justice Sosman characterized as “inconsistent,” to permit the MCAD to continue to award emotional distress damages. In the only bright spot in the decision the Court explicitly announced that “a finding of discrimination, or retaliation, by itself, is no longer sufficient to permit an inference of, or a presumption of, emotional distress.” In what might be read as a rebuke to the MCAD for its ready issuance of five- and six-figure emotional distress damage awards, the Court laid out criteria for such awards and admonished judges hearing c. 30A appeals from MCAD rulings to set aside or reduce emotional distress awards for which there is insufficient evidence.