Section Review

The Liberal Interpretation of Chapter 151B

Chapter 151B, the Massachusetts anti-discrimination statute, directs that it "shall be construed liberally for the accomplishment of the purposes thereof . . ." G.L. c. 151B, § 9, ¶ 1. The provision appears to have a profound effect on how c. 151B is interpreted. Of the 22 opinions I have found citing the liberal provision, all of the cases have broadly interpreted Chapter 151B in some significant manner, to increase the scope of non-discrimination provisions; expand the range of respondent liability; limit the burden of proving mens rea; expand the range of parties responsible for preventing and remediating discrimination; expand exceptions to administrative requirements; establish c. 151B's non-interference with other laws benefiting the protected classes; support broad remedies for discrimination victims; and increase the powers of the Massachusetts Commission Against Discrimination to investigate and remedy discrimination. Infra, nn. 8-14. There is an astonishing correlation between a court's citation to the provision and its propensity to accord c. 151B with a broad, pro-remedial interpretation The Supreme Judicial Court has explicitly recognized the "liberal" provision as a reason why c. 151B is frequently interpreted in a different manner than analogous federal laws. Cuddyer v. The Stop & Shop Supermarket Co., 434 Mass. 521, 536 (2001). On the other hand, of all the decisions choosing a narrow, non-remedial interpretation of c. 151B, every single decision, except one, fails to cite to the liberal provision.1 One would assume that the legislature's directive for interpreting c. 151B would be given a central role in decisions involving that statute. However, most c. 151B decisions do not mention the provision. I have been able to find only three published federal court decisions that cite to it. Given the apparently tangible effect of the provision, the widespread failure to reference it raises the likelihood that the legislature's intent may be ignored. In this article, I will argue for the adoption of a mandatory and structured analysis, built on the foundation of liberal interpretation. The Legislature Intended Liberal Construction The language of c. 151B can sometimes be less than clear. LaPierre v. MCAD, 354 Mass. 165, 174 (1968). Perhaps in recognition that there was much meaning to tease out of the statute, the legislature embraced the requirement for liberal construction: that the law "shall" be construed liberally to serve the purposes thereof. G.L. c. 151B, § 9. The liberal provision has been present since 1946, when the initial non-discrimination provisions were promulgated. St. 1946, c. 368, § 9. The provision has remained undisturbed through decades and many modifications to the chapter. Every word of c. 151B, and every amendment, was enacted with the legislature's desire that it be interpreted liberally to accomplish the purposes of the statute. Liberality dominates other rules of interpretation The preference for liberality is not merely just another rule of statutory construction that a court may consider; it represents the principal tenet for c. 151B interpretation. Consider the context for the legislature's directive. There are rules of statutory construction, which exist in abundance, to assist courts in discerning legislative intent.2 See, e.g., G.L. c. 4, § 6. It is fair to summarize that the maze of rules are "complex, contradictory and not readily reconcilable." Shubow, Statutory Construction in Massachusetts, 79 Mass. L. Rev. No. 3, 114, 116 (September 1994). The legislature did not wish to leave the courts free to apply the vague and shifting principles that had been developed. The legislature chose to enshrine a single guidepost for statutory construction; a requirement that the chapter be liberally construed. G.L. c. 151B, § 9, ¶ 1. The provision states that c. 151B "shall" be construed liberally. G.L. c. 151B, § 9, ¶ 1. The mandatory language requires that a liberal interpretation will not be rejected, in favor of other interpretations. This "shall" is a one-way ratchet, with no give. No other guiding principles were included. In addition, c. 151B states that inconsistent laws will not limit its scope. Section 9 states: "The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof, and any law inconsistent with any provision hereof shall not apply . . ." (underlining added). Chapter 151B is thereby given a pre-eminent position among other laws. Likewise, the "liberal" provision is given pre-eminence over all other rules of interpretation.3 Further analysis establishes the liberal provision's primary status over other rules of construction.4 A common law rule of statutory construction provides that civil rights statutes are subject to liberal construction to accomplish their remedial purposes. Redgrave v. Symphony Orchestra, Inc., 399 Mass. 93, 99 (1987); Batchelder v. Allied Stores Corp., 393 Mass. 819 (1985); see also Welch v. Mayor of Taunton, 343 Mass. 485, 487 (1962); Legarry v. Finn Motor Sales, Inc., 304 Mass. 446 (1939); Traudt v. Hagerman, 27 Ind. App. 150 (1901). Thus, even if the "liberal" provision of c. 151B had never existed, courts would still have the presumption of liberality available in their arsenal of interpretive aids. In order for the liberal provision to have any effect beyond this common law presumption, the provision must raise the presumption of liberality above that provided by the common law rule. It should not be a surprise that the "liberal" provision trumps other rules of statutory interpretation. For example, the first rule of statutory interpretation is that, generally, the clear and unambiguous language of a statute should control. General Electric Co. v. Department of Environmental Protection, 429 Mass. 798, 802 (1999). However, the common law has established that civil rights statutes are to be construed liberally, even beyond the dry statutory language, such that "cases within the reason, although not within the letter, of a remedial statute are embraced by its provisions." Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 99 (1987).5 Therefore, the primacy of the "liberal" provision over other rules of construction is not only well founded in the statutory language, it is consistent with the common law, and does not yield outrageous results that common law would reject. And if the "liberal" provision is to be accorded any effect beyond what is already provided by the common law presumption for civil rights laws, it must be accorded weight beyond the presumption already available in common law: it must be the mandatory, central foundation of c. 151B analysis. Reasonable interpretations are considered There is one important limitation on the preference for liberal construction: the liberal interpretation must be reasonable. See Cuddyer, 434 Mass., at 534. Certainly, the "liberal" provision cannot be interpreted to favor unreasonable interpretations of c. 151B. Thus, if there exists a reasonable and liberal interpretation that accomplishes the purposes of c. 151B, that interpretation must prevail. A reasonable interpretation that liberally supports c. 151B purposes shall prevail, even when another reasonable interpretation exists. The issue is not whether one side presents the most reasonable argument. This is not a balancing approach. Rather, once a reasonable, liberal interpretation is proffered, it "shall" prevail. G.L. c. 151B, § 9, ¶ 1. ERISA law provides an analogy to this type of inquiry: a plan administrator's reasonable interpretation of a benefit plan will be upheld, even if the beneficiary proffers an equally reasonable or more reasonable interpretation. See Terry v. Bayer Corp., 145 F.3d 28, 40 (1st Cir. 1998). This rule of construction also may be analogized to the "disfavored drafter" presumption in contract law, where an ambiguous contract will be accorded a reasonable construction favoring the non-drafter, even if the drafter suggests other very plausible interpretations. See Merrimack Valley Nat'l Bank v. Baird, 372 Mass. 721, 724 (1977). Similarly, the liberal provision compels a specific choice among competing, reasonable interpretations. How does the court determine whether a liberal interpretation is reasonable? It uses the ordinary rules of statutory construction. See, e.g., Worcester Housing Authority v. MCAD, 406 Mass. 244, 247 (1989).6 However, this inquiry involving other rules of construction must be carefully performed. The proper inquiry is whether the liberal interpretation is reasonable. If so, it controls, and the inquiry is at an end. The inquiry involving other rules of construction does not focus on which is the "most reasonable" interpretation. Such an inquiry would be at odds with the legislative intent that the law "shall be liberally construed." The purposes of Chapter 151B Having established the primacy of liberal construction, the stage is set to elaborate the necessary steps for analyzing c. 151B. First, it is necessary to discern "the purposes" of c. 151B. G.L. c. 151B, § 9, ¶ 1. The general purpose of the statute is to minimize, penalize and eliminate discrimination. G.L. c. 151B, § 3(9); Beaupre v. Cliff Smith & Associates, 50 Mass. App. 480, 492 (2000); MCAD v. Liberty Mutual Ins. Co., 371 Mass. 186, 191 (1976). Even more broadly, the purpose of c. 151B is to remove "artificial, arbitrary and unnecessary barriers to full participation in the workplace." Harvard Law School Coalition for Civil Rights v. President & Fellows of Harvard College, 413 Mass. 66, 68 (1992). More specific purposes also may be gleaned from careful review of specific provisions. For example, the c. 151B provision relating to handicap discrimination was enacted to "encourage impaired persons to overcome or mitigate their disabilities." Dahill v. Police Department of Boston, 434 Mass. 233, 238 (2001). As shown above, the true battle is not over which side has the more reasonable interpretation c. 151B. The real battle is over which side advances a reasonable interpretation that accomplishes "the purposes" of the statute, with a preference for liberal interpretations. G.L. c. 151B, § 9, ¶ 1. Thus, an inquiry into the purposes of c. 151B assumes a greater importance than in the interpretation of other statutes. Selection among competing purposes Chapter 151B represents a compromise of competing interests, and likewise, competing purposes may be discerned in its provisions. See Charland v. Muzi Motors, Inc., 417 Mass. 580, 582 (1994). Therefore, an identification of c. 151B's purposes does not end the matter. Somehow, a court will have to select between competing purposes before deciding which interpretation to favor. An example will illustrate this point of competing purposes. Chapter 151B does not apply to employers with five or fewer employees. G.L. c. 151B, 1(5). A plaintiff, arguing that an owner of a company should be counted as an "employee" for the purposes of this provision, would argue that doing so would further c. 151B purposes in preventing discrimination, and allow the non-discrimination provisions to apply to a greater number of Massachusetts workers. A defendant, urging a restrictive approach, would argue that one of c. 151B's goals is to provide small employers the utmost freedom in their hiring practices, and that counting people who are not ordinarily thought of as employees would violate this purpose. Both interpretations arguably further the purposes of c. 151B, as expressed in its language, and the proper answer is not clear merely from looking at the purposes. Each interpretation supports a different purpose. How is a court to choose between interpretations furthering competing purposes reflected in the statutory language? The answer is that the "liberal" interpretation is given a preference. G.L. c. 151B, § 9, ¶ 1. "Liberal" means expansive What is a liberal construction? For example, using the above example, should liberal construction favor the c. 151B goal of eradicating discrimination by considering the owner as an employee, or should the statute be construed liberally to preserve the area of freedom carved out for small employers? The liberal approach represents an interpretation that broadens the range of anti-discrimination provisions and remedies. The overarching presumption is that c. 151B should apply to all claims and situations that can be reasonably interpreted to fall within its scope. The many cases citing the provision demonstrate that liberal interpretations favor the extension of coverage. Those cases have: • broadly interpreted c. 151B to increase the scope of non-discrimination provisions;7 • expanded respondent liability and limited the burden of proving mens rea;8 • expanded the range of parties responsible for preventing and remediating discrimination;9 • expanded exceptions to administrative requirements;10 • established c. 151B's non-interference with other laws benefiting the protected classes;11 • supported broad remedies for discrimination victims;12 • increased the powers of the Massachusetts Commission Against Discrimination to investigate and remedy discrimination.13 Thus, a liberal interpretation favors a widening area of coverage and remedy. If the holdings of the cases listed in footnotes 8-14 appear lopsidedly pro-plaintiff, there is a reason for this. Anti-discrimination statutes "are expressly directed against employers; [the Legislature] intended in these statutes to regulate [employers'] conduct for the benefit of employees." Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 101 S. Ct. 1571 (1981). Given this purpose, a liberal approach will often favor a plaintiff-friendly interpretation. Looking again to the example above, the interpretation favoring expansion of c. 151B's scope is the one defining the owner as an employee. Therefore, it is the liberal interpretation. As the liberal interpretation, the court must test this interpretation before considering other interpretations. The court considers the statutory language and the ordinary rules of statutory construction to determine if this interpretation is reasonable. If so, the interpretation controls, and there is no further inquiry. If that interpretation is not reasonable, then other interpretations are considered in the order most favoring liberality. Summary of the proper analysis The liberal provision requires the following mandatory and exclusive method of choosing between competing interpretations of c. 151B: [1] The purposes of c. 151B are examined, generally (e.g. elimination of discrimination) and specifically (considering the particular provision at issue); [2] proposed interpretations of c. 151B are entertained to the extent they reflect a c. 151B purpose; [3] the most liberal interpretation (one that provides for the broadest prohibitions against discrimination and greatest remedy) is examined first; [4] the most liberal interpretation is examined in light of the statutory language and other rules of construction to determine whether it is reasonable; [5] if the most liberal interpretation is reasonable, it must be adopted; and [6] if the most liberal interpretation is not reasonable, the court shall adopt the next most liberal interpretation that is reasonable. Hopefully, recognition of this analysis will lead to more uniform and correct interpretations of Massachusetts' primary anti-discrimination statute. With the adoption of a mandatory analysis, attention will shift away from preferences for a particular forum, and will more appropriately focus on the proper framing of c. 151B arguments. End notes 1. See, e.g., Charland v. Muzi Motors, Inc., 417 Mass. 580, 582 (1994) (where an employee is within the c. 151B protected class, the employee may not pursue a c. 93, § 102 remedy, where the employee failed to comply with c. 151B administrative requirements); Pacella v. Tufts University School of Dental Medicine, 66 F. Supp. 2d 234, 242 (D. Mass. 1999) (holding that c. 151B definition of handicap requires consideration of mitigating measures, based on presumption that c. 151B is interpreted similarly to federal law); Keeler v. Putnam Fiduciary Trust Co., 238 F.3d 5, 11 (1st Cir. 2001) (rejecting liberal continuing violation theory for c. 151B, in favor of doctrine based on Federal interpretations of Title VII); Mullin v. Raytheon Co., 164 F.3d 696 (1st Cir. 1999), rehearing denied, 171 F.3d 710 (1st Cir. 1999) (refusing to recognize applicability of the disparate impact theory to c. 151B age discrimination claims, based on the presumption that c. 151B is interpreted similarly to federal law); Lolos v. Solutia, Inc., Memorandum and Order With Regard to Defendant's Motion for Summary Judgment, C.A. No. 99-30222, Neiman, U.S.M.J., (D. Mass. March 26, 2002) (reassignment will not be required as a reasonable accommodation under c. 151B, based on presumption that c. 151B is interpreted similarly to federal law in effect at the time of promulgation); but see Comey v. Hill, 387 Mass. 11, 15 (1982).[back] 2. Belonni v. Reservoir Nursing Center, 1 Mass. L. Rptr. No. 22, 448 (February 21, 1994), ("in choosing between two plausible readings of a statute, a court will adopt that which more faithfully effectuates legislative intent").[back] 3. While other Massachusetts statutes require liberal construction (see G.L. c. 40J, § 10; c. 65, § 24F; c. 121C, § 18; c. 231A, § 9), c. 151B is apparently unique in that its "liberal" provision is paired with a requirement that other, inconsistent laws do not apply.[back] 4. For example, c. 151B has been liberally interpreted in a manner that appears to accord certain words no meaning. See LaPierre v. MCAD, 354 Mass. 165, 174-5 (1968) ("national origin" assumed to include concept of national ancestry, even though "national ancestry" is used as a separate concept elsewhere in the statute). [back] 5. There are other exceptions to the bedrock "plain meaning" principle. For example, the plain language of a statute will be rejected if the consequences of such construction are unreasonable. Pysz v. Contributory Retirement Appeal Board, 403 Mass. 514, 517 (1988). Clear statutory rules of construction should be overlooked if their observance would lead to a construction either inconsistent with the intent of the legislature, or repugnant to the context of the statute. G.L. c. 4, § 6, ¶ 1. Even when the plain language of a statute militates a certain interpretation, courts have gone further and have analyzed legislative history. Bynes v. School Committee of Boston, 411 Mass. 264, 267-268 (1991)[back] 6. A court should give effect to all words in a statute but should not overemphasize any. MCAD v. Liberty Mutual Ins. Co., 371 Mass. 186, 193-194 (1976). The prevailing interpretation of analogous Federal statutes at the time a similarly worded portion of a Massachusetts statute was enacted may assist the Court's interpretation, even if those interpretations are later abandoned. E.g., Dahill v. Police Department of Boston, 434 Mass. 233, 238 (2001). Massachusetts courts may look to constructions of similar Federal statutes for guidance, even if the Federal statute was enacted after the Massachusetts statute. Dartt v. BFI, Inc., 427 Mass. 1, 9 (1998). Legislative history may be considered. Bynes v. School Committee of Boston, 411 Mass. 264, 268 (1991). Courts should enforce c. 151B according to its plain meaning. Bynes v. School Committee of Boston, 411 Mass. 264, 267 (1991). There is a presumption that a statute is intended to be interpreted in harmony with prior enactments to give rise to a consistent body of law. Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994). Words should not be rendered superfluous. Worcester Housing Authority v. MCAD, 406 Mass. 244, 247 (1989). The inaction of a subsequent legislature has no persuasive significance with regard to the intent of an earlier legislature. MCAD v. Liberty Mutual Ins. Co., 371 Mass. 186, 193-194 (1976). Deference is accorded to the pronouncements of the MCAD.[back] 7. LaPierre v. MCAD, 354 Mass. 165, 174-5 (1968) (protected class of "national origin" broadly interpreted to include ancestry; thus, discrimination against Puerto Rican, who is an American by national origin, is nevertheless illegal); Dahill v. Police Department of Boston, 434 Mass. 233, 238 (2001) (protected class of handicapped is determined without regard to consideration of mitigating measures); Worcester Housing Authority v. MCAD, 406 Mass. 244, 247 (1989) (discrimination prohibition based on "marital status" protects unmarried individuals); but see Comey v. Hill, 387 Mass. 11, 15 (1982) (independent contractors are not within protected class, despite section 9 guidance).[back] 8. College-Town, Division of Interco, Inc. v. MCAD, 400 Mass. 156, 165 (1987) (sexual harassment constitutes actionable discrimination, and rejecting Federal approaches by holding that an employer is strictly liable for the acts of those upon whom it confers authority); Gnerre v. MCAD, 402 Mass. 502, 506-507 (1988) (sexual harassment violates prohibition against discrimination in housing); see also Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 99 (1987) (citing common law presumption of liberal interpretation, and holding that specific discriminatory intent is not required for liability under Massachusetts Civil Rights Act).[back] 9. Beaupre v. Cliff Smith & Associates, 50 Mass. App. 480, 492 (2000) (sexual harasser is individually liable); Weston v. Town of Middleborough, 14 Mass. L. Rptr. No. 14, 323 (April 8, 2002) (municipal utility may be responsible for sexual harassment of elected member of the Board); Winsmann v. Choate Health Management, 8 Mass. L. Rptr. No. 21, 480, 482 (July 27, 1998) (entities that share control over employment are jointly and severally liable); Chapin v. University of Massachusetts, 977 F. Supp. 72, 80 (D. Mass. 1997) (supervisor may be individually liable where supervisor knew of sexual harassment and failed to take action).[back] 10. Cuddyer v. The Stop & Shop Supermarket Co., 434 Mass. 521, 534-537 (2001) (adopting broad continuing violations doctrine, which is more permissive than First Circuit doctrine); Rock v. MCAD, 384 Mass. 198, 206 (1981) (upholding MCAD regulation on continuing violations); Francisque v. Massachusetts Financial Services Co., 2000 Mass. Super. LEXIS 305, 12-13 (c. 151B civil action is not limited to exact allegations contained in MCAD charge, but may include claims that come within MCAD's potential investigation that could grow out of the charge of discrimination); Smith v. Mitre Corp., 949 F. Supp. 943, 948 (D. Mass. 1997) (complainant need not submit a separate administrative filing to pursue retaliation civil action); Chatman v. Gentle Dental Ctr., 973 F. Supp. 228, 235 (D. Mass. 1997) (failing to name a party as a respondent in an MCAD charge does not necessarily preclude later naming the party as a defendant in a civil action).[back] 11. Jancey v. School Committee of Everett, 421 Mass. 482, 495 (1995) (Massachusetts Equal Pay Act claim not barred by c. 151B); Local Finance Co. v. MCAD, 355 Mass. 10, 14-15 (1968) (c. 151B does not repeal public accommodation provisions); Comey v. Hill, 387 Mass. 11, 19-20 (1982) (c. 151B is not meant to be an exclusive remedy, and does not preempt an intentional interference with contractual relations claim, where the improper motive alleged was age discrimination).[back] 12. Conway v. Electro Switch Corp., 402 Mass. 385, 388 (1988) (front pay awards permitted); Bournewood Hosp., Inc. v. MCAD, 371 Mass. 303, 315-317 (1976) (emotional distress damages in retaliation claim); Nardone v. Patrick Motor Sales, Inc., 46 Mass. App. 452 (1999) (post-judgment interest accrue on award of attorneys fees).[back] 13. MCAD v. Liberty Mutual Ins. Co., 371 Mass. 186, 193-194 (1976) (relying on liberal construction provision to hold that MCAD had authority to issue a subpoena duces tecum); Bournewood Hosp., Inc. v. MCAD, 371 Mass. 303, 315-317 (1976) (MCAD permitted to award emotional distress damages in retaliation claim); Katz v. MCAD, 365 Mass. 357, 366 (1974) (MCAD entitled to issue prospective order, requiring respondent to designate future real estate advertisements as an "equal opportunity listing").[back]
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