Advancing an employment discrimination case to trial often involves a hurdle known as summary judgment, which is governed by Rule 56 of the Massachusetts Rule of Civil Procedure and it’s federal corollary. Employers often rely on Rule 56, typically after the close of discovery, as a final attempt to dismiss an employment discrimination case and avoid the risk of trial. This is a watershed moment in the litigation.

As the U.S. Supreme Court made clear in Anderson v. Liberty Lobby, in considering an employer’s Motion for Summary Judgment, the employee’s evidence of discrimination “is to be believed, and all justifiable inferences are to be drawn in his favor.” In Reeves v. Sanderson Plumbing Products, the Supreme Court also cautioned that a judge “may not make credibility determinations or weigh the evidence” because these are jury functions. Rather, as articulated by the Massachusetts Supreme Judicial Court in Flesner v. Technical Communications, a “judge’s mere belief that the movant is more likely to prevail at trial is not a sufficient basis for granting summary judgment” in the employer’s favor and dismissing the case.

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.

Whether it’s a disability discrimination or sexual harassment claim, employment discrimination cases in general tend to be very fact-intensive, making the discovery process and depositions in particular all the more critical. As the moving party, it is the employee’s ultimate burden to prove discriminatory bias which, as discussed here, can be inferred in several ways. Generally, the greater the opportunity to gather information through the discovery process, the better an employee’s chance of prevailing at trial.

The opportunity to gather sufficient evidence, however, can be severely hindered where an employer engages in obstructionist tactics. Namely, in depositions, such tactics take the form of speaking objections, witness coaching, and improperly instructing a deponent not to answer a particular question. In addition, even after a deposition, a deponent may attempt to distance his or herself from unfavorable testimony by making substantive changes to an errata sheet.

Overview: In Lammlin v. Seder Foods, the MCAD found in favor of the Complainant and awarded back pay and emotional distress damages. This is the MCAD’s first decision in 2016. This case included direct evidence of discriminatory bias, where the Respondent testified at public hearing that he sought a “salesperson who not only spoke Spanish, but who was culturally Latino.” As expected, the hearing officer rejected Respondent’s perceived “cultural affinity” defense and applied the mixed-motive analysis. In arriving at emotional distress damages, the hearing officer noted “the meager evidence proffered regarding his emotional distress, including the absence of testimony regarding its nature, severity and duration” and ultimately characterized its award as de minimis.

Decision Date: January 20, 2016

Non-competition agreements in Massachusetts have been the center of debate for several years. As bills to ban non-competes before the House of Representatives and Senate continue to swirl, many employees in Massachusetts are forced to agree to restrictive covenants on a take-it-or-leave-it basis as a condition of employment. While Massachusetts is certainly not the only state where non-competes are enforceable, it’s status as a technology hub draws a sharp contrast to its leading rival: California. Unlike Boston or Cambridge, employees in Silicon Valley need not be concerned about such contracts since the California legislature has largely banned such restrictions except in very limited circumstances.

From this perspective, it’s no wonder that Silicon Valley leads the world and eclipses Boston as home to the largest and most prominent global technology companies. The absence of non-competes creates a more friendly business environment for employees and companies alike, with Facebook being a prime example. Founded in a Harvard dormitory, Facebook eventually made it’s home in California. Smart choice. The ability to hire top talent unencumbered by non-competes agreements meant more resources could be dedicated to building the company and less towards defending the inevitable litigation that flows from restrictive covenants.

Proving employment discrimination without direct evidence – regardless of whether its based on age, handicap, or some other protected category – ultimately boils down to whether the employee can show that the employer’s stated reason for the adverse employment action (e.g., termination, demotion, failure to promote) is a pretext for unlawful discrimination. As discussed in Proving Employment Discrimination Through Circumstantial Evidence, employment discrimination cases are typically proven through circumstantial (as opposed to direct) evidence under a three-part, burden-shifting framework.

It is in the final stage of this framework that an employee must carry the burden of showing pretext. As the non-exhaustive, baker’s dozen list below illustrates, there are numerous ways in which pretext for unlawful employment discrimination can be inferred:

Before proceeding to trial, an employment discrimination case in court must survive a hurdle in the procedural process known as summary judgment, which is governed by Federal Rule of Civil Procedure (FRCP) 56 and Massachusetts Rule of Civil Procedure (MRCP) 56. As discussed here, the process is different when an employment discrimination case remains under the jurisdiction of the Massachusetts Commission Against Discrimination.

Under federal law, three Supreme Court decisions handed down in 1986, referred to as The Trilogy, examined the summary judgment standard. In Anderson v. Liberty Lobby, the Supreme Court characterized the summary judgment inquiry as “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” In doing so, the Supreme Court delineated the province of the jury:

Aside from cases involving direct or “smoking gun” evidence, which is rare, proving an employment discrimination claim is often nuanced and accomplished through the use of circumstantial evidence. As the Supreme Court in Rogers v. Missouri Pacific has long recognized, such evidence can even be the most powerful of the two:

Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.

Employment discrimination claims often hinge on the admissibility of evidence. A plaintiff bringing an employment discrimination claim may, for example, offer into evidence testimony from other employees who also believe they were victims of discrimination. Such evidence is referred to as “me too” or propensity evidence and has been a subject of debate among litigants. Be it discrimination based on age, gender, or another protected class, propensity evidence can be powerful if admissible.

As background, Federal Rule of Evidence 404(b)(2), which is virtually identical to the Massachusetts corollary, provides that evidence of a crime, wrong, or other act “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Because motive, intent, and state of mind are directly at issue in employment discrimination claims, “me too” or propensity evidence may be properly admitted under these rules under certain circumstances. Other relevant portions of the Rules of Evidence with respect to “me too” or propensity evidence include FRE 401 (Test for Relevant Evidence) and FRE 403 (Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons).

Is proving employment discrimination more difficult under the federal rules of evidence? An article by the New York Times entitled Chief Justice’s Report Praises Limits on Litigants’ Access to Information suggests so. Let’s take a closer look. In doing so, it’s important to note that employees who bring whistleblower claims, unpaid wages actions (including overtime and commission claims), and who are retaliated against for using medical leave likely face the hurdles.

As discussed in the 2015 Year-End Report on the Federal Judiciary by Justice Roberts, the amended Federal Rule of Civil Procedure (FRCP) 26(b)(1) now requires discovery requests to be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” In contrast, Massachusetts Rule of Civil Procedure (MRCP) 26(b)(1) currently imposes no such requirement.