Section Review

Comments from the Chairman of the Labor and Employment Section

James WelikyJames Weliky is a partner with the law firm of Messing, Rudavsky & Weliky, P.C. in Boston, where he practices plaintiff's employment law.

In the late 1980s, as the decades-old confrontation between the United States and Soviet Union drew to a close, one historian proclaimed that we were witnessing the "end of history," since with the Cold War ending, there were no more worldwide conflicts that gave overall shape to international affairs.

Today, some have wondered whether members of the Massachusetts bar who, like me, practice primarily in the area of employment law (i.e., outside of the collective bargaining context) are likewise facing a kind of "end of history," as the Supreme Judicial Court definitively resolves some of the central controversies about the proper interpretation of the commonwealth's anti-discrimination laws.

It would be difficult for any employment attorney to argue in good faith after Abramian and Lipshitz for example, that Massachusetts is a "pretext-plus" rather than a "pretext-only" jurisdiction. Thanks to the Dahill decision, we know that an employee is determined to be disabled by considering her or his impairment in its unmitigated state. We also know that the vast majority of organizational employees are not clients of the organization's attorneys, thanks to the Messing, Rudavsky & Weliky and Patriarca decisions, and may be freely contacted by investigating attorneys.

While not all employment law practitioners agree with the manner in which the SJC has resolved these issues, I believe their resolution benefits the practice of employment law regardless of whether the focus of one's practice is representing employees or representing management. Like most types of litigation, employment litigation consists of two general conceptual categories of activity - the first being the inquiry into what actually transpired in the events in controversy, and the second being disputes over doctrinal questions about how to structure the process of litigation itself, including what types of evidence of what has taken place may be sought, used, or whether the litigation can proceed at all. By resolving so many of the disputed issues in the latter category as definitively as it has, employment attorneys have been provided an opportunity to devote less of their time and their clients' resources to battles over doctrine and procedure, and a concomitant opportunity to devote more time and resources to the inquiry into what actually transpired during the events that gave rise to the controversy.

This is as it should be. If you believe, as the Massachusetts Fair Employment Practices Act itself proclaims, that the project of discrimination laws are to effectively and thoroughly root out and eliminate discrimination in the workplace, then any change to the laws that facilitates the fact-finding process will be welcome. Certainly those of us, like myself, who primarily represent plaintiffs are pleased to see such a change. This is because we typically represent clients with far fewer resources than our opponents and our opponents control most of the relevant evidence. To the extent that we can spend our resources uncovering that evidence and presenting it to the fact finder rather than on endless doctrinal battles, the better off our clients will be. Endless and time-consuming battles over, for example, the meaning and proper incantation of the McDonnell-Douglas burden-shifting scheme or whether a job applicant who wears a prosthetic device ought to be denied the protection of the disability laws because she is not impaired in various major life activities when she is wearing her prosthesis, benefits no one. Call me naive, but I believe that this applies to management representatives as well. It can only benefit their clients in the long run if the ability to uncover evidence of bad acts, or the ability to obtain vindication by proving the non-existence of alleged bad acts to a fact finder, is facilitated.

I also believe that this focus on discovering the truth about discrimination in the workplace is as necessary today as it has ever been. As recent events surrounding the Senate leadership contest in Congress suggest, long-held discriminatory attitudes, including, for example, a nostalgia for racial segregation, remain deeply embedded in our society and can reach the highest levels of leadership. It would be foolish in the extreme to suppose that such attitudes are isolated to one or two actors in the political arena, and are not shared by many others, including decision makers in the workplace. To the extent that the search for the truth about such decision makers is not distracted by the types of disputes the SJC has now resolved, all the better. Clearly, "history" has not "ended" for us employment practitioners any more than history has ended elsewhere in the world, but certainly an era of disputes about a few of the core concepts in employment law has blessedly come to a close, and we are invited to spend our time more productively for our clients and for society as a whole. This is an invitation we should accept.

On a different but related note, I think most of us in the employment and labor bar acknowledge that without the many state agencies devoted to enforcement of the commonwealth's labor and employment laws or to the resolution of labor and employment disputes - i.e. the Massachusetts Commission Against Discrimination, the Massachusetts Labor Relations Commission, the Civil Service Commission, the Board of Conciliation and Arbitration and the Joint Labor Management Committee - our practice would be much more difficult than it already is. Each of these agencies provides a welcome alternative to adjudication in the courts, and some, such as the MCAD, are specifically designed to ensure that those unrepresented by attorneys nevertheless are provided access to the protections of the law. Yet each of these agencies has suffered repeated cuts in funding and concomitant reductions in personnel in recent years despite the fact that demand for their services has never been higher. As of this writing, the governor and the state legislature are considering a number of approaches to Massachusetts budget deficit that directly impact these agencies. All options are under consideration, including consolidating each of the agencies' legal functions in a single solicitor's office; consolidating entire agencies; reducing agency staffing; or eliminating agencies altogether.

As practitioners directly affected by whatever actions the state undertakes, we owe it to our clients and to ourselves to make ourselves heard during this decision-making process, and in particular, to oppose any changes that further dilute or weaken the capacity of our state agencies or their successors to enforce employment and labor laws and provide access to relief. Accordingly, I urge each of you to contact those political representatives with whom you have relationships and communicate this message in the strongest possible terms.

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