- Online Edition
- Print Edition
- Donahue Lecture Series
- Archived Mastheads
In Lopez v. Commonwealth,1 police officers sued the Commonwealth of Massachusetts and the Division of Human Resources (HRD), alleging HRD engaged in racial discrimination by creating and administering a multiple-choice examination for candidates seeking promotion to police sergeant that resulted in a disparate impact on minority candidates.2 The plaintiff class included all African-American and Hispanic police officers employed by civil service municipalities throughout Massachusetts who took the police sergeant promotional examination in the years 2005-2008 and were not “reached for promotion.”3 Consistent with the requirements of civil service law, civil service municipalities selected candidates for the police sergeant position based on a certification list created by HRD, which ranks candidates in order of scores on the promotional examination.4 The plaintiffs alleged that they were denied promotional opportunities because municipal employers relied on HRD’s certification list, despite the examination’s discriminatory impact, which caused African-American and Hispanic candidates to rank lower on the list than non-minority candidates, irrespective of equal qualifications.5
Originally, the plaintiffs brought a claim against HRD and their municipal employers, in the United States District Court for the District of Massachusetts, alleging disparate impact race discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).6 The United States Court of Appeals for the First Circuit, however, dismissed the claim against HRD because the division never functioned as the plaintiffs’ “employer,” as required by Title VII, and the court remanded the case to trial against only the municipal employers.7 Not deterred, the plaintiffs proceeded to commence an action in superior court against HRD.8 Originally, the court granted HRD’s motion to dismiss after it found that the Commonwealth did not waive its sovereign immunity, and alternatively, because the plaintiffs failed to state a claim upon which relief could be granted.9 The Massachusetts Supreme Judicial Court disagreed and permitted HRD to be named as a defendant after identifying the legislature’s waiver of the Commonwealth’s sovereign immunity.10 The court further recognized that while three of the claims were properly dismissed, the plaintiffs’ allegation that HRD interfered with the right to be free from discrimination adequately stated an “interference” claim, which protects employees from racial discrimination when considered for promotion, and remanded that claim to superior court.11
I. Discrimination Liability in Massachusetts
Employers are prohibited from making employment decisions based on an employee’s race, color, religion, sex, national origin, age, or non-job-qualification-related disability.12 Title VII is the primary federal statute that prohibits discrimination on the basis of race, color, religion, sex, and national origin.13 Nevertheless, Title VII only applies to “employers,” meaning individuals or entities that fall outside this definition are not liable under the statute for discriminatory actions.14 Massachusetts enacted its own discrimination law, chapter 151B, section 4 of the Massachusetts General Laws, which similarly prohibits employers from hiring, discharging, or otherwise discriminating against employees of a protected class in compensation or terms and conditions of employment, unless justified by a legitimate reason, referred to as a “bona fide occupational qualification.”15
Chapter 151B reaches beyond its federal counterpart and holds more “employers” responsible for discrimination by specifically including “the commonwealth and all political subdivisions” in its definition of “employer.” Therefore, while the Commonwealth or its subdivisions could not be held accountable for discrimination under Title VII, it could be subject to liability under chapter 151B. In addition, some claims under chapter 151B do not require any employer-employee relationship as a prerequisite to liability.
Under both federal and state law, plaintiffs may bring two types of discrimination claims: disparate treatment and disparate impact. Disparate treatment liability arises when an employer intentionally discriminates against an employee or group of employees by treating him or them unequally based on a statutorily forbidden characteristic, such as race, sex, national origin, or age.16 Absent proof of intent, employers may still be liable under a disparate impact theory, which applies when a facially neutral employment practice has a disproportionally negative effect on a statutorily protected group.17 Disparate impact theory recognizes the possibility that some employment practices, including standardized testing, “may in operation be functionally equivalent to intentional discrimination,” although not designed to achieve a discriminatory result.18 Under Title VII, courts impose disparate impact liability to eradicate standardized employment tests that produce discriminatory results and adversely impact hiring and promotion of minority candidates.19 Nevertheless, not all discrimination statutes permit liability under both disparate treatment and disparate impact analysis, and whether both theories are available depends upon the statutory language creating the cause of action.20
Many cities, towns, and municipalities in Massachusetts hire and promote public employees under the civil service merit system.21 Civil service laws protect applicants and employees from unfair treatment and nepotism, and encourage employment decisions based on the qualifications of the job candidate, considering his ability, skills, and experience.22 The merit system requires each candidate to take a competitive examination—either for original appointment or for promotion—which is used by HRD to create a list, in order of exam performance, for the appointing authority to consider.23 While the appointing authority may elect to prepare and administer its own competitive examination, the majority use the examination prepared by HRD.24 When an appointing authority anticipates a promotion or hiring need, it must estimate the number of positions to be filled and request a certification list from HRD reflecting a candidate pool following the “2n+1 formula,” with “n” being the number of positions the appointing authority seeks to fill.25
The appointing authority may only consider candidates who appear on the certification list prepared by HRD, and if the appointing authority elects to “bypass” a higher-ranked candidate in favor of a candidate who appears lower on the list, the authority must send the aggrieved candidate a letter explaining the reasons for the bypass.26
II. Lopez’s Interpretation of Massachusetts Discrimination Law
Lopez v. Commonwealth first acknowledged the Commonwealth’s amenability to suit by recognizing that the legislature waived sovereign immunity under chapter 151B by including the Commonwealth and its instrumentalities in the statutory definition of “person” and “employer.”27 Next, the Massachusetts Supreme Judicial Court analyzed the viability of the chapter 151B claims, and dismissed the claims under sections 4(5) and 4(1), before concluding the plaintiffs could proceed with their interference claim under section 4(4A).28 The plaintiffs failed to sustain a claim under section 4(5), which makes it unlawful for “any person, whether an employer or an employee or not, to aid [or] abet . . . the doing of any of the acts forbidden under [chapter 151B] or to attempt to do so.”29 This claim was fatally flawed because the plaintiffs neglected to assert the primary act of employment discrimination committed by their direct employers, as the principal offenders, that HRD purportedly aided or abetted.30 The claim under section 4(1), which makes it unlawful for an employer to discriminate against individuals in the scope of their employment, did not proceed because the plaintiffs were not directly employed by HRD and the court refused to graft Title VII’s indirect employment theory onto Massachusetts employment discrimination law, which does not recognize such liability.31 The court permitted the interference claim to proceed against HRD after determining that section 4(4A) makes it unlawful for any person, not just the direct employer, “to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected” by chapter 151B.32 While HRD argued that the actions proscribed by section 4(4A), including interference, contemplate intentional conduct, and the plaintiffs merely alleged HRD knowingly administered a discriminatory examination, the court disagreed and held interference claims may be established by evidence of disparate impact, which is satisfied by proof that the defendant “knowingly interfered with the plaintiffs’ right to be free from discrimination,” and does not require proof of discriminatory intent.33
III. The Hyper-Extension of Disparate Impact Liability
The Supreme Judicial Court ignored statutory intent by entertaining an interference claim against a third party without first requiring proof of discriminatory motive. In order to properly determine the availability of disparate impact liability, the court should have first examined the statutory language of chapter 151A, section 4, as not all discrimination statutes permit a cause of action without proof of discriminatory intent.34 Though alone, the verb “interfere” is arguably ambiguous, when qualified by the preceding verbs—coerce, intimidate and threaten—it is clear that section 4(4A) is aimed at thwarting intentional, purposeful, discriminatory conduct.35 Further, it is difficult to ignore that in other areas of the law, the Commonwealth requires proof of intent before holding unrelated third parties liable for interfering with the rights of others.36
As the dissent reasoned, it is no secret that “statutory language should be given effect consistent with its plain meaning and in light of the aim of the legislature,” and the court’s role is to effectuate the legislature’s purpose.37 Instead, the Supreme Judicial Court exploited the ambiguity in the word “interfere” to achieve a desired result, contrary to legislative intent, and thus far outside the scope of its duty.
By failing to require intent, the Supreme Judicial Court also undercut the authority of the Massachusetts Commission Against Discrimination (MCAD), the administrative agency charged with interpreting and enforcing 151B.38 In 2003, the full commission refused to grant relief under section 4(4A) because an aggrieved party neglected to establish “intent to discriminate,” and announced that “for an individual to be held liable for a violation of M.G.L. c. 151B he must have, at the very least, ‘interfered’ with another’s rights in a manner that was in deliberate disregard of those rights.”39
Rather than delivering this unprecedented opinion, the Supreme Judicial Court should have deferred to the MCAD’s expertise in interpreting and enforcing section 4(4A), one of the antidiscrimination statutes the agency is entrusted to administer. The issue of deference is not novel to the court, as it has previously recognized that it is “particularly appropriate to defer to the MCAD’s interpretation [of chapter 151B] where . . . the legislative policy is ‘only broadly set out in the governing statute.’”40 Even the federal district court, in applying Massachusetts law, heeded the MCAD’s interpretation of “interference” and required intent for a third-party interference claim under section 4(4A).41 It is unclear why the Supreme Judicial Court refused to defer, or even acknowledge the MCAD’s interpretation, as discussed by the dissent. Until the legislature is afforded the opportunity to correct the Supreme Judicial Court’s interpretive error, third-party non-employers are vulnerable to liability for interference discrimination under chapter 151B, section 4(4A), even if they did not intend to discriminate.42
Stephanie Merabet, Case Note, Supreme Judicial Court in Lopez Permits Interference Discrimination Claim Against Third Party Without Proof of Discriminatory Intent, 1 Suffolk U. L. Rev. Online 17 (Feb. 25, 2013), http://www.suffolklawreview.org/merabet-discrimination.
Mass. Gen. Laws Ann. ch. 151B, § 4 (West 2012). According to the law in Massachusetts:
It shall be an unlawful practice . . . [f]or an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, gender identity, sexual orientation, . . . genetic information, or ancestry of any individual to refuse to hire . . . or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.
When names have been certified to an appointing authority . . . and the number of appointments or promotional appointments actually to be made is n, the appointing authority may appoint only from among the first 2n + 1 persons named in the certification willing to accept appointment . . . .
Id. at 16. For example, if only one appointment will be made, the appointing authority may only select one of the first three persons named. See id. ↩
See Shafir v. Steele, 727 N.E.2d 1140, 1144 (Mass. 2000) (recognizing intentional tort of interference). The court noted:
the only difference between the torts described in § 766 [of the Restatement] . . . and § 766A is that, under § 766, the tortious conduct causes the third person not to perform, whereas § 766A involves interference preventing the plaintiff from performing his own part of the contract.
Id.; see also Restatement (Second) of Torts § 766A (1979) (defining intentional tortfeasor as one who “interferes with the performance of a contract . . . between another and a third person, by preventing the other from performing the contract”). See generally Leigh-Ann M. Patterson, Shafir v. Steele Recognizes New Tort of Intentional Interference with Plaintiff’s Own Contractual Performance, Bos. B.J., Jan./Feb. 2001, at 14, available at http://nixonpeabody.com/116427 (discussing evolution of MA law and “case of first impression” recognizing intentional tort in MA). ↩
See Woodason v. Norton Sch. Comm., 25 MDLR 62 (2003), aff’d sub nom. Sch. Comm. of Norton v. Mass. Comm’n Against Discrimination, 830 N.E.2d 1090 (Mass. App. Ct. 2005) (setting forth required elements and permissible circumstances of section 4(4A) claim). The MCAD addressed the statutory language in some depth:
While we agree that the word “interfere” does not necessarily require coercion, intimidation or threats, the concept of interference with one’s rights must be construed with some regard for the context of the statutory language within which it appears. In construing the word “interfere,” to give no import to the strong language surrounding it would be misguided.
Id. (emphasis added). ↩