Supporting Small Business
The claims in Thurdin v. SEI Boston, LLC presented two legal issues of first impression for the Massachusetts Supreme Judicial Court of considerable significance to small businesses in Massachusetts. The plaintiff alleged that she was discriminated against in conditions of employment based on pregnancy/gender by SEI, a business with only three employees. The issues before the Court were: (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 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 the Associated Industries of Massachusetts and the National Federation of Independent Business Small Business Legal Center, answered both questions in the negative based on established principles of statutory construction. In its decision, the Massachusetts Supreme Judicial Court effectively nullified the express provision in G. L. c. 151B, § 1(5) exempting employers with fewer than six employees from employment discrimination claims. While two dissenting Justices (Cordy and Cowin, JJ.) agreed with NELF’s arguments to the contrary, the Court held that employees of such small businesses can bring discrimination claims under MERA. The majority opinion treats MERA, which neither mentions employment discrimination nor defines “employer” for such purposes, and which is not available for recourse against larger employers subject to G. L. c. 151B, as having silently repealed c. 151B’s exemption of small employers from discrimination claims.
Because of differences between c. 151B and MERA, the Court’s decision leads to the anomalous result that it is now easier for plaintiffs to pursue claims against very small employers than against larger employers. The decision may also encourage settlement of meritless claims and seems inconsistent with the Legislature’s clear determination, embodied in c. 151B, that very small enterprises should be exempt from these claims. As NELF’s brief further explained, the cost of defending even one discrimination lawsuit can run well into six figures. Moreover, statistics reported in NELF’s brief suggest that most employment discrimination claims lack merit. Thus, the Court’s decision to allow employment discrimination litigation against employers of fewer than six employees can be expected to cause significant financial harm to those businesses least able to afford it, and often for the sake of meritless claims. On the second issue in the case -- admittedly a closer call -- the Court held that MERA applies to on-the-job discrimination as well as discrimination in hiring.
The claims in Thurdin v. SEI Boston, LLC presented two legal issues of first impression for the Massachusetts Supreme Judicial Court of considerable significance to small businesses in Massachusetts. The plaintiff alleged that she was discriminated against in conditions of employment based on pregnancy/gender by SEI, a business with only three employees. The issues before the Court were: (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 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 the Associated Industries of Massachusetts and the National Federation of Independent Business Small Business Legal Center, answered both questions in the negative based on established principles of statutory construction. In its decision, the Massachusetts Supreme Judicial Court effectively nullified the express provision in G. L. c. 151B, § 1(5) exempting employers with fewer than six employees from employment discrimination claims. While two dissenting Justices (Cordy and Cowin, JJ.) agreed with NELF’s arguments to the contrary, the Court held that employees of such small businesses can bring discrimination claims under MERA. The majority opinion treats MERA, which neither mentions employment discrimination nor defines “employer” for such purposes, and which is not available for recourse against larger employers subject to G. L. c. 151B, as having silently repealed c. 151B’s exemption of small employers from discrimination claims.
Because of differences between c. 151B and MERA, the Court’s decision leads to the anomalous result that it is now easier for plaintiffs to pursue claims against very small employers than against larger employers. The decision may also encourage settlement of meritless claims and seems inconsistent with the Legislature’s clear determination, embodied in c. 151B, that very small enterprises should be exempt from these claims. As NELF’s brief further explained, the cost of defending even one discrimination lawsuit can run well into six figures. Moreover, statistics reported in NELF’s brief suggest that most employment discrimination claims lack merit. Thus, the Court’s decision to allow employment discrimination litigation against employers of fewer than six employees can be expected to cause significant financial harm to those businesses least able to afford it, and often for the sake of meritless claims. On the second issue in the case -- admittedly a closer call -- the Court held that MERA applies to on-the-job discrimination as well as discrimination in hiring.
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