The Massachusetts Appeals Court issued a decision this week rejecting the novel legal argument that the Commonwealth and its agencies cannot be sued for disparate impact discrimination. In Porio v. Department of Revnue, the plaintiff, Richard Porio, alleged that the Department of Revenue discriminated against him on the basis of his age during a round of layoffs. Porio did not claim that the DOR singled him out because of his age, but that the DOR's lay-off disproportionately affected older workers without any business justification. This "disparate impact" theory is common in discrimination cases, particularly class actions, but no appellate court had ever expressly held that the state's employment discrimination statute, Chapter 151B, allows disparate impact claims against Massachusetts or its agencies.
The precise legal issue concerns sovereign immunity. In general, a state is immune to civil actions brought by citizens unless it has expressly waived its sovereign immunity for the particular claim or action. There is no doubt that the Commonwealth had waived its immunity to suit under Chapter 151B, as the state is expressly defined as an "employer" under the statute. However, Porio argued that the Commonwealth did not expressly waive its sovereign immunity for the particular claim of "disparate impact" discrimination. This was an unexpected argument, and while the Appeals Court did not find the argument without some logic, it soundly rejected the proposition. The Court ruled that disparate impact and disparate treatment are not two distinct claims or causes of action, but two distinct methods of proving discrimination. Considering that the "Legislature had plainly waived the Commonwealth's sovereign immunity to age discrimination claims" together with the "general reach" of Chapter 151B, the Court held that the Commonwealth has waived its sovereign immunity to age discrimination claims based on disparate impact.