Federal employment 
discrimination law

Issue December 2011 By Alan Crede

For many years, lawyers representing Massachusetts workers have chosen to prosecute their clients' workplace discrimination and harassment cases under G.L. c. 151B, rather than federal law. Their reasons for doing so were normally twofold.

First, the inclusion of a claim brought under a federal statute, such as Title VII, the Americans with Disabilities Act (ADA), or the Age Discrimination in Employment Act (ADEA), would of course enable defendants to remove the case to the supposedly less friendly confines of federal court. Second, and more importantly, G.L. c. 151B offered much greater protections for the victims of discrimination than cognate federal laws. At best, federal law offered substantive protections that were duplicative of G.L. c. 151B and, at worst, federal law presented additional hurdles for discrimination victims.

Today, while this view of things largely holds sway within the employment bar, G.L. c. 151B has, in many areas, been eclipsed by federal anti-discrimination law. Yes, federal law still poses many obstacles to employees that they need not overcome under G.L. c. 151B.

For instance, under Title VII's so-called Farragher-Ellerth defense, an employer can avoid liability for hostile work environment harassment by showing that (1) it acted quickly to correct the harassment; and (2) the employee unreasonably failed to take advantage of a sexual harassment policy. And, under Title VII's after-acquired evidence doctrine, even employees who prove they were discriminated against forfeit their right to economic damages if they engaged in misconduct that their employer uncovers after their (discriminatory) termination. Neither doctrine is recognized under G.L. c. 151B.

Nevertheless, over the past five years or so, in many different areas, federal employment law has become more congenial for plaintiffs than G.L. c. 151B. For instance, in order to state a claim for retaliation under G.L. c. 151B, an employee must show that the retaliation she suffered was "substantial enough to have materially disadvantaged" her in the terms and conditions of her employment.

However, in the five years since the 2006 Supreme Court case of Burlington Northern & Santa Fe. Rwy. v. White, employees claiming retaliation under Title VII have faced a lesser burden: they have needed only to show that the retaliatory conduct was the kind that might have "dissuaded a reasonable worker from making or supporting a charge of discrimination." In its May decision in Psy-Ed Corp. v. Klein, the Supreme Judicial Court declined to adopt the Burlington Northern standard for 151B cases.

Sometimes, the discrimination that an employee faces is so awful that she resigns. In order to recover economic damages, an employee who resigns must show that she was "constructively discharged" - in effect that her resignation was involuntary. Under G.L. c. 151B, this requires a showing that a reasonable person in the plaintiff's position would have found the working conditions "so difficult as to be intolerable."

In the 2004 Supreme Court case of Pennsylvania State Police v. Suders, the Supreme Court adopted a friendlier standard for constructive discharge under Title VII, one that considers whether an employee's decision to resign constituted a "fitting response" to her employer's conduct. To date, no Massachusetts court has so much as cited Suders.

Federal law is also threatening to leapfrog G.L. c. 151B in the area of disability discrimination law (or, as G.L. c. 151B terms it, "handicap discrimination" law). The Americans with Disabilities Act Amendments Act of 2008 (ADA-AA) amended the Americans with Disabilities Act of 1990 in a number of important ways, including by clarifying that the availability of "mitigating measures" (such as eyeglasses and hearing aids) should not be considered in determining whether an individual is disabled. Given this change in law, the determination of disability is now 
essentially identical under G.L. c. 151B and the ADA.

Furthermore, the ADA explicitly forbids "associational discrimination" -- discrimination against a non-disabled person "because of the known disability of an individual with whom the qualified individual is known to have to have a relationship or association." Thus, a non-disabled spouse can seek the protections of the ADA if she is discriminated against for caring for a person with whom she is "associated," such as a disabled spouse. G.L. c. 151B's disability discrimination provision, drafted in 1983, contains no such explicit recognition of a theory of associational discrimination.

Whether a plaintiff can state a claim for associational handicap discrimination under G.L. c. 151B is currently being argued in the closely-watched federal court case of Ayanna v. Dechert, LLP. The plaintiff, a former associate at the law firm Dechert LLP, is not disabled. His wife is disabled due to mental health issues. The plaintiff contends that his former law firm discriminated against him on the basis of his wife's disability. If true, such conduct is forbidden under the federal law, but it may be the case that such discrimination would be legal under state law.

Over the past several decades, G.L. c. 151B and a handful of other state employment discrimination statutes, such as the New Jersey Law Against Discrimination, have been in the vanguard of doctrinal developments that have advanced the rights of employees of different races, genders and ethnicities. Whether G.L. c. 151B will continue to occupy such a position of prominence, and whether G.L. c. 151B will continue to remain the favored weapon for plaintiffs' attorneys, remains to be seen.

Alan Crede is principal of The Law Office of Alan H. Crede PC. He is a member of the MBA's Labor & Employment Law Section.