Woman wins gender discrimination suit against Chief Justice of Trial Court

The Massachusetts Commission Against Discrimination has awarded over $200,000 in damages to a female employee of the Trial Court of Massachusetts after she was denied a promotion due to her gender.  According to the Boston Globe, the MCAD found that Robert Mulligan, the Chief Justice of Administration and Justice for the Trial Court, refused to follow the recommendation of a three-member panel to promote Mary Jane McSweeney to the position of Operations and Maintenance Supervisor for the Plymouth District Court, instead appointing a male candidate who was the panel's third choice.  The MCAD found that Mulligan's decision resulted from an unconscious bias about a woman's ability to perform in a managerial position traditionally held by men, the Globe Reported.  McSweeney had worked for the Trial Court for over two decades, serving 14 years as a regional facilities manager for seven courthouses in Greater Boston, according to the Globe.

As of the date of this post, the decision is not yet available on the MCAD's website. 

State court affirms discrimination ruling against Cambridge

A Massachusetts Appeals Court this week affirmed a $4.5 million jury verdict for a City of Cambridge employee who alleged that her bosses retaliated against her after she filed a complaint with the Massachusetts Commission of Discrimination.  The employee, a native Cape Verdean, originally filed the complaint with the Commission in 1998, and she allegedly received systematic harassment over the next five years, and eventual termination from her position as Executive Secretary of the Police Review and Advisory Board. 

The jury verdict was strictly based on the claim of retaliation -- that is, that the City terminated her in response to her complaint of discrimination.  This is another reminder that under the state employment discrimination statute, Chapter 151B, employers may be liable for taking adverse action against their employees in response to a claim of discrimination even if the underlying claim proves unfounded (as long as the claim is not frivolous), and for the same amount of damages.  Also significant, the termination occurred five years after the employee brought her original discrimination claim. The temporal distance between the two events apparently did not persuade the jury to disbelieve the retaliation claim.  The jury awarded the employee $962,400 in lost back pay and front pay damages, $100,000 in emotional distress damages, and $3.5 million in punitive damages.  After appeal, this total ballooned to over $10 million.  

Massachusetts Appeals Court rules that state is not immune to disparate impact discirmination claims

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.