The Massachusetts Civil Rights Act and Private Employment Litigation    
  
By Maria R. Durant
Send Email to: mdurant@dwyercollora.com

 
  "The Massachusetts Civil Rights Act and Private Employment Litigation" is reprinted with permission from Maria R. Durant, Applying the Massachusetts Civil Rights Law (1996), © MCLE, Inc. All Rights Reserved.
 
I. The MCRA: A Remedial Statute

The Massachusetts Civil Rights Act ("MCRA") was intended to and does provide a remedy for private activities, in addition to state activities, which interfere or attempt to interfere with an individual’s secured rights by threats, intimidation or coercion. G.L. c. 12, §§ 11H, 11I.

The MCRA is a remedial statute entitled to liberal construction of its terms. Batchelder v. Allied Stores Corp., 393 Mass. 819, 822 (1985) ("Batchelder II"). "The rule for the construction of remedial statutes is that cases within the reason, though not within the letter, of a statute shall be embraced by its provisions." Id. (citations omitted).  Top

II. Secured Rights

In Bell v. Mazza, 394 Mass. 176, 182 (1985), the SJC adopted the definition of "secured rights" as set forth in Justice Brennan’s concurring opinion in United States v. Guest, 383 U.S. 745, 778-79 (1966):

"[A] right can be deemed secured. . . by the Constitution or laws. . . even though only governmental interferences with the exercise of the right are prohibited by the Constitution itself (or another . . . law). The term ‘secured’ means ‘created by, arising under or dependent upon,’ rather than ‘fully protected.’ A right is ‘secured. . . by the Constitution’ . . . if it emanates from the Constitution, if it finds its source in the Constitution."

Bell v. Mazza, 394 Mass. at 182.

The SJC looks to analogous precedent under the federal civil rights act in interpreting the MCRA. See Batchelder II, 393 Mass. at 822-23 ("We conclude that the Legislature intended to provide a remedy under G.L. c. 12, § 11I, coextensive with 42 U.S.C. § 1983, except that the Federal statute requires State action whereas its State counterpart does not."). Thus, all rights secured to public employees under 42 U.S.C. § 1983 are secured to employees of private employers in Massachusetts. See, e.g., Hosford v. School Comm. of Sandwi

ch, 421 Mass. 708 (1996) (First Amendment freedom of speech valid basis for §1983 claim); Nuzzo v. Northwest Airlines, Inc., 887 F. Supp. 28 (D. Mass. 1995) (Fifth Amendment rights, if validly invoked, serve as basis for civil rights claim).

The state and federal constitutions are not the only sources of rights secured by the MCRA. Statutes and administrative regulations may also be laws which provide rights protected against interference within the meaning of the Act. See, e.g., Longval v. Commissioner of Correction, 404 Mass. 325 (1989) (alleged violation of statutory provision and prison regulations requiring approval of Commission of Correction before inmate is transferred to segregated unit); Appling v. City of Brockton, 649 F. Supp. 258, 261 (D. Mass. 1986) (alleged violation of rights secured by Title VII and age discrimination in Employment Act).

The termination of an at-will employee does not violate any secured right. See, e.g., Gladstone v. Community Newsdealers, Inc., 3 Mass. L. Rptr., No. 22, 231 (Mar. 13, 1995) (Middlesex Superior Court, Jan. 12, 1995); Webster v. Motorola, Inc., 418 Mass. 425, 430 (1994); Flesner v. Technical Communications Corp., 410 Mass. 805, 818-19 (1991); Korb v. Raytheon Corp., 410 Mass. 581, 585 (1991). Similarly, at-will employees have no secured rights in renewal of their employment contracts. See Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 210 (1991).  Top

III. Threats, Intimidation or Coercion

The SJC has not yet adopted a comprehensive definition of "threats, intimidation or coercion" and the Court’s decisions on this issue to date have been difficult, if not impossible, to reconcile.

In Bell v. Mazza, 394 Mass. 176, 183-84 (1985), the SJC found that the defendant’s statements that he would "do anything at any cost to prevent the plaintiff’s construction of a tennis court" constituted a "threat." In Batchelder II, 393 Mass. at 823, a uniformed security officer’s order that the plaintiff stop soliciting and distributing political handbills at a shopping mall was "sufficient intimidation or coercion to satisfy the statute." And in O’Connell v. Chasdi, 400 Mass. 686, 687-88 (1987), the defendant’s offensive sexual harassment, which included explicit physical contact, was sufficiently threatening and intimidating to the plaintiff. These cases, and many others like them, stand clearly for the proposition that physical confrontation accompanied by a threat of harm is sufficient to make out a claim under the MCRA.

Notwithstanding that these cases included the presence of actual or potential physical confrontation, "in none of them did the Court suggest that the physical nature of the threat was a decisive consideration in its finding that the MCRA had been violated." Broderick v. Roache, 803 F. Supp. 480, 486 (D. Mass. 1992). Indeed, in Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 95 (1987), the SJC found that the Boston Symphony Orchestra’s cancellation of a performance contract with Vanessa Redgrave had the effect, intended or otherwise, of coercing the actress not to exercise her First Amendment rights in violation of the MCRA. As the SJC recognized just two years later in Bally v. Northeastern University, 403 Mass. 713, 720 (1989), Redgrave did not involve physical confrontation.

Plaintiffs are therefore encouraged to argue that actual or potential physical confrontation accompanied by a threat of harm is not necessary to satisfy the "threats, intimidation or coercion" language of the Act. See Redgrave v. Boston Symphony Orchestra, 399 Mass. at 95. However, in light of the SJC’s dicta in Planned Parenthood League of Massachusetts, Inc. v. Blake, 417 Mass. 473-474 n.8, cert. denied, 115 S. Ct. 188 (1994), defendants now have some ammunition against this argument. In Planned Parenthood, the SJC noted for the first time that it considered Redgrave to involve potential threats to the physical safety of the audience and symphony members. The implication that such threat, satisfied the MCRA cannot be reconciled with the Court’s previous acknowledgment in Bally that "Redgrave did not involve physical confrontation." Bally, 403 Mass. at 720. The SJC’s newfound view of the conduct in Redgrave may forecast that physical duress will soon become the sine qua non of an MCRA violation.

A direct violation of secured rights, by itself, will not usually constitute threats, intimidation or coercion sufficient to implicate the Act. See Longval v. Commissioner of Correction, 404 Mass. 325, 333 (1989); Pheasant Ridge Assocs. Ltd. Partnership v. Town of Burlington, 399 Mass. 771, 781 (1987). However, a direct deprivation of secured rights may be actionable if it is accomplished for some further or ulterior purpose other than to deprive a person of the rights directly deprived.

In order to implicate the MCRA, the defendant’s conduct must be individualized such that it is directed against a particular person or class of persons and involves a serious harm. See Bally v. Northeastern University, 403 Mass. 713, 718-19 (1989). In Bally, the plaintiff, a student athlete, was prevented from participating in a varsity sports program because he refused to consent to drug testing by the university. He challenged the drug testing program under the MCRA as a violation of his right against unreasonable search and seizure. The SJC held that there was no "threat, intimidation or coercion" because the drug testing program was indiscriminate and impartially administered. Accord Webster v. Motorola, Inc., 418 Mass. 425, 430 (1994) (defendant-employer’s "universal" drug testing program did not amount to "threats, intimidation or coercion").  Top

IV. The Interrelationship Between the MCRA and Other State Laws

A. Mass. Gen. L. c. 151B

In Mouradian v. General Elec. Co., 23 Mass. App. Ct. 538, 543 (1987), the Appeals Court held that the MCRA does "not create an independent right to vindicate an alleged wrong which might have been the subject of investigation and possible vindication under G.L. c. 151B, were it not for" plaintiff’s failure to timely comply with that law’s procedures. In 1994, the SJC agreed with the Appeals Court and held that "where applicable, G.L. c. 151B provides the exclusive remedy for employment discrimination not based on preexisting tort law or constitutional protections." Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 (1994); see also, Green v. Wyman-Gordon Co., No. SJC-06891, slip op. at 6 (May 3, 1996) ("where c. 151B applies, a person may not evade its procedural requirements by recasting a discrimination claim as a violation of …the civil rights act.") (citations omitted).

B. Mass. Gen. L. c. 214, § 1C

In O’Connell v Chasdi, 400 Mass. 686, 693-94 (1987), the SJC allowed the plaintiff to pursue a sexual harassment claim against her employer under the MCRA where the employer was not covered by the provisions of G.L. c. 151B. At the time the underlying action had been filed in Chasdi, the legislature had not yet enacted G.L. c. 214, § 1C providing a specific statutory right to be free from sexual harassment. In 1996, the SJC rejected a nearly identical MCRA claim based on sexual harassment by the defendant -- an employer with fewer than six employees and therefore not subject to the provisions of G.L. c. 151B -- holding that "G.L. c. 214, § 1C provides the exclusive remedy for [sexual harassment] claims against employers of fewer than six employees." Guzman v. Lowinger, No. SJC-06851, slip op. at 3 (May 3, 1996). In reconciling its decision with Chasdi, the Guzman Court noted the "crucial difference" was the enactment of G.L. c. 214, § 1C.  Top

V. The Burden of Proof in MCRA Claims

In Spiegel v. Tufts College, C.A. No. 86-3330-S, (D. Mass. 1987) (unpublished), the federal district court adopted for use in an MCRA case the burden of proof applied in cases brought under 42 U.S.C. § 1983 and enunciated in Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287 (1977). Under Mt. Healthy, the plaintiff bears the burden of proving that her protected conduct (in Mt. Healthy, the First Amendment Freedom of Speech) was the motivating factor for her discharge. The defendant may then defend by showing, by a preponderance of the evidence, that the plaintiff would have been discharged even in the absence of the protected conduct.  Top

VI. Statute of Limitations

G.L. c. 250, § 5B provides a three year statute of limitations for "any law intended for the protection of civil rights."  Top

VII. The Intent Requirement of the MCRA

The SJC has held that a defendant need not have a personal desire to interfere with plaintiff’s secured rights in order to make out a valid MCRA claim; it is sufficient that the defendant may only be acquiescing to third-party pressure. See Redgrave v. Boston Symphony Orchestra, 399 Mass. 93, 99 (1987). The Act does not require "a showing of hostile, discriminatory intent." O’Connell v. Chasdi, 400 Mass. 686, 694 (1987).

"The Act operates almost entirely within the realm of ‘intentional’ behavior" in the tort sense: it is only necessary to show that the defendant "desires to cause the consequences of his acts or that he believes that the consequences are substantially certain to result from it." Breault v. Chairman of the Board of Fire Commissioners of Springfield, 401 Mass. 26, 36 n.12 (1987), cert. denied, 485 U.S. 906 (1988).

In Deas v. Dempsey, 403 Mass. 468, 471 (1988), the SJC held that a negligent violation of another’s civil rights does not give rise to a valid MCRA claim. The SJC did not rule out completely, however, whether "coercion" may in certain circumstances arise of out negligence. Id.; see also Andujar v. City of Boston, 760 F. Supp. 238, 243 n.4 (D. Mass. 1991).  Top

VIII. Availability of a Jury Trial

The SJC has held that there is no right to trial by jury of a claim brought by the Attorney General for equitable relief under G.L. c. 12, § 11H. See Commonwealth v. Guilfoyle, 402 Mass. 130, 135-36 (1988). To date, however, the SJC has withheld judgment whether there is a right to trial by jury on a private MCRA claim.

A plaintiff seeking a trial by jury on an MCRA claim is encouraged to apply the SJC’s reasoning in Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994). In Dalis, the SJC held that a plaintiff who was discharged from her employment allegedly because she was pregnant was entitled to a jury trial under, among other statutes, G.L. c. 151B. In so holding, the Court relied upon Article 15 of the Declaration of Rights which establishes that a jury trial shall be available for all controversies concerning property between two or more persons unless the case is one over which a court of equity has historically exercised jurisdiction. Dalis, 418 Mass. at 222.

Under the MCRA -- like the anti-discrimination law -- a plaintiff may seek both legal and equitable remedies. See G.L. c. 12, § 11I. Thus, as the plaintiff in Dalis argued, plaintiffs seeking redress under the MCRA on the basis of a wrongful employment action should assert that their claim is analogous to common law actions sounding in both tort and contract. See Gallagher v. Wilton Enterprises, Inc., 962 F.2d 120, 122-23 (1st Cir. 1992) ("Courts have routinely held that discrimination suits in general, and employment discrimination suits in particular, are analogous to either of two common law causes of action [tort and contract]"). One note of caution: in Dalis, the SJC cited Guilfoyle for the proposition that "there was no constitutional right to a jury trial for claims brought under the Massachusetts Civil Rights Act." Dalis v. Buyer Advertising, Inc., 418 Mass. at 228. The Court’s failure to note that Guilfoyle applied specifically to a claim for equitable relief under G.L. c. 12, § 11H could arguably suggest a blanket application of Guilfoyle to MCRA actions brought under either section 11H or section 11I.  Top

IX. Attorney’s Fees and Damages

The obvious advantage to bringing a claim under the MCRA is the mandatory availability of attorney’s fees for a party who prevails under the Act. See G.L. c. 12, § 11I. In Batchelder II, the SJC held that the Legislature intended the term "prevail" to have the same meaning as its federal counterpart in 42 U.S.C. § 1988. Thus, "a party prevails under [the MCRA] when he or she achieves success on a substantial question of law arising out of a common nucleus of facts that gives rise to a cause of action under the statute." Batchelder II, 393 Mass. at 822.

The MCRA also provides for compensatory damages as well as injunctive or other equitable relief. Compensatory damages may well include emotional distress damages which are recoverable despite the exclusivity provision of the Workers Compensation Act. See Foley v. Polaroid Corp., 400 Mass. 82, 93 (1987). Reinstatement may also be available as an equitable remedy (employee not precluded from recovering emotional distress damages suffered as a result of employer’s false imprisonment of employee).