Whether a Massachusetts Employer Sued For Discrimination Can Seek Contribution from the Employee Committing the Discriminatory Acts
Jennifer Thomas sued her employer EDI Specialists, Inc. under Mass. Gen. L. c. 151B for gender discrimination. In her complaint she identified a fellow employee, Steven Mills, as the primary offender. EDI filed a third-party complaint against Mills, seeking contribution in the event it were found liable. Mills moved to dismiss the complaint, claiming that c. 151B does not contain a right of contribution against an employee. EDI argued that Mass. Gen. L. c. 231B, providing for contribution among joint tortfeasors, gave it a right to seek contribution from Mills because discrimination claims under c. 151B were in essence tort claims.
NELF filed an amicus brief in support of EDI, arguing that c. 231B is designed to remedy the unfairness of allowing a disproportionate share of a plaintiff’s recovery to be borne by one of several joint tortfeasors. The SJC ruled that there is no right of contribution under c. 151B. Even if c. 151B can be considered “tort-like” for some purposes, the Court said, allowing an action for contribution would undermine its statutory scheme, including the legislature’s preference for resolving disputes at the MCAD. The Court also noted the conflict between the six month statute of limitations under c. 151B and the one year limitation of c. 231. Finally, the Court noted that c. 151B evinces an intent to reduce discrimination in the workplace by holding employers responsible for the discriminatory actions of their employees, regardless of whether these actions were authorized or supported by the employer or its policies. “Although our conclusion may burden the employer who bears sole liability for the unauthorized conduct of an employee,” the Court said, “that appears to be precisely what the Legislature intended.”
Jennifer Thomas sued her employer EDI Specialists, Inc. under Mass. Gen. L. c. 151B for gender discrimination. In her complaint she identified a fellow employee, Steven Mills, as the primary offender. EDI filed a third-party complaint against Mills, seeking contribution in the event it were found liable. Mills moved to dismiss the complaint, claiming that c. 151B does not contain a right of contribution against an employee. EDI argued that Mass. Gen. L. c. 231B, providing for contribution among joint tortfeasors, gave it a right to seek contribution from Mills because discrimination claims under c. 151B were in essence tort claims.
NELF filed an amicus brief in support of EDI, arguing that c. 231B is designed to remedy the unfairness of allowing a disproportionate share of a plaintiff’s recovery to be borne by one of several joint tortfeasors. The SJC ruled that there is no right of contribution under c. 151B. Even if c. 151B can be considered “tort-like” for some purposes, the Court said, allowing an action for contribution would undermine its statutory scheme, including the legislature’s preference for resolving disputes at the MCAD. The Court also noted the conflict between the six month statute of limitations under c. 151B and the one year limitation of c. 231. Finally, the Court noted that c. 151B evinces an intent to reduce discrimination in the workplace by holding employers responsible for the discriminatory actions of their employees, regardless of whether these actions were authorized or supported by the employer or its policies. “Although our conclusion may burden the employer who bears sole liability for the unauthorized conduct of an employee,” the Court said, “that appears to be precisely what the Legislature intended.”
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