Employment discrimination claims under Massachusetts law, pursuant to the Fair Employment Practices Act, have a better chance of making it to trial thanks to the clarification issued in Bulwer v. Mt Auburn. There, the Massachusetts Supreme Judicial Court evaluated the summary judgment standard under Rule 56 and reiterated, as it first made clear in Blare v. Husky, that Massachusetts is a pretext-only jurisdiction when it comes to proving employment discrimination. In particular, the SJC reversed the trial court’s dismissal of the case at summary judgment, thus allowing the employee’s claims for race and national origin discrimination to proceed to trial and be heard by a jury.
In doing so, the SJC refused to adopt the employer’s articulation of the plaintiff’s burden at summary judgment standard; namely, that an employee must present evidence that the employer’s reason for termination constituted a pretext for discrimination. Rather, consistent with long-standing precedent, the Court reminded litigants that a plaintiff bringing an employment discrimination claim “need only present evidence from which a reasonable jury could infer that ‘the respondent’s facially proper reasons given for its action against him were not the real reasons for that action'” to survive summary judgment and advance to trial.
Although seemingly nuanced, the distinction is significant. From a practical standpoint, the burden of proof advocated by the employer in Bulwer would essentially dispense with the opportunity to show discriminatory intent using circumstantial evidence, as first established by the U.S. Supreme Court in McDonnell Douglas v. Green more than four decades ago. Direct evidence falls into two general categories: (1) an actual admission by the employer that it engaged in employment discrimination, and (2) a “smoking gun” document or eyewitness account that incontrovertibly reveals the same. As many courts have recognized, including the Eighth Circuit in Rothmeier v. Investment Advisers, direct evidence of employment discrimination is rare:
In employment-discrimination cases, there will seldom be ‘eyewitness’ testimony as to the employer’s mental processes because a shrewd employer will not leave a trail of direct inculpatory evidence for the plaintiff to bring into court.
As a result, employment discrimination cases in Massachusetts and beyond typically hinge on circumstantial evidence which can be equally as powerful and persuasive. In Bulwer, for instance, the Massachusetts Supreme Judicial Court detailed five categories of evidence from which a jury may infer discriminatory animus and rule in favor of the plaintiff at trial — including disparate treatment, implicit bias, a general atmosphere of discrimination, and the employer’s failure to follow it’s own written policies.
Employers often rely on summary judgment as a final effort to prevent a jury from hearing and deciding employment discrimination cases. As discussed here, researchers have observed that bias against employees alleging discrimination has led to a high rate of dismissal at the summary judgment stage. The overuse of summary judgment to dispose of civil rights cases not only deprives citizens of their Seventh Amendment right to a trial by jury, it consolidates substantial influence into a single adjudicator who (from a statistical standpoint alone) may not necessarily be representative of the community in which such cases are brought. In sharp contrast, a jury is handpicked by each party and typically comprised of at least six individuals of varying age, gender, race, religion, and life experience.
Unlike a judge considering a summary judgment brief, jurors hear live testimony subject to intense scrutiny through cross-examination. In deliberations, jurors challenge each other’s opinions, vet evidence, and make credibility determinations to arrive at their decision. The words of the late Chief Justice Rehnquist in Parklane Hosiery v. Shore could not be more clear in describing the importance of a jury trial in American society:
The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary. … Trial by a jury of laymen rather than by the sovereign’s judges was important to the founders because juries represent the layman’s common sense, the “passional elements in our nature,” and thus keep the administration of law in accord with the wishes and feelings of the community. Those who favored juries believed that a jury would reach a result that a judge either could not or would not reach.
Given the bias against employment discrimination claims, successfully opposing summary judgment has become a game of inches. An employee’s chance of receiving a trial is vastly better where the summary judgment standard is properly articulated, the burdens of persuasion and production correctly assigned, and the ways in which pretext for unlawful discrimination may be inferred put under the limelight.
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