(dissenting). Our decision in Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994) (Dalis), stated that, pursuant to art. 15 of the Massachusetts Declaration of Rights, plaintiffs in G. L. c. 15 IB actions could demand a jury trial. In Lavelle v. Massachusetts Comm’n Against Discrimination, 426 Mass. 332 (1997) (Lavelle), we conferred a reciprocal right on respondents. I am not persuaded by the logic underlying Dalis, particularly in view of the fact that antidiscrimination suits were totally unknown at common law. However, I could accept the conclusion in Dalis in tandem with the holding in Lavelle to prevent a denial of equal protection. But overruling Lavelle while preserving Dalis creates an unconstitutional asymmetry that empowers plaintiffs unilaterally to extinguish respondents’ access to a jury trial merely by choosing under which section of the statute to proceed. Therefore, I respectfully dissent.
The right to a jury trial is fundamental. Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937). Spence v. Reeder, 382 Mass. 398, 411 (1981). Article 15 preserves that right “[i]n all controversies concerning property, and in all suits between two or more persons,” but makes an exception for those types of cases that would have been resolved in equity courts, as opposed to common-law courts, before 1780. See Parker v. Simpson, 180 Mass. 334, 355 (1902). In Dalis, supra at 223, this court concluded that the art. 15 right to a jury trial attaches to sex discrimination claims under G. L. c. 151B, § 9, because those claims are purportedly “analogous to common-law actions sounding in both tort and contract.”
However, Dalis was inconsistent with our earlier decision in Nei v. Burley, 388 Mass. 307 (1983), in which we concluded that an action for “unfair or deceptive acts or practices” under *591the consumer protection act, G. L. c. 93A, did not give rise to a jury trial right. The Nei decision was predicated in part on the fact that G. L. c. 93A, while it often involves actions analogous to common-law tort and contract claims, is not limited by those traditional legal theories and sometimes “embrace[s] causes of action for which there are no common-law analogues.” Id. at 313. Similarly, G. L. c. 151B encompasses many claims that are not analogous to common-law contract or tort actions.1 As a practical matter, neither consumer protection nor sex discrimination causes of action would have been familiar to a court in 1780; both may be analogous to traditional claims, but both also exceed the scope of that tradition.2 The court’s references to early cases involving wrongful discharge and breach of employment contract claims prove nothing in this regard. The existence of such cases does not speak to whether employment discrimination was actionable at common law.
Assuming Dalis was correctly decided, however, and a jury trial right attaches to § 9 claims, that right must be equally available to plaintiffs and respondents.3 See Lavelle, supra at 338. See also FUD’s, Inc. v. State, 727 A.2d 692, 697 (R.I. 1999). However, Dalis left respondents without this right. In a G. L. c. 151B action, it is the plaintiff who decides whether to pursue an administrative remedy under § 5, or to proceed under § 9 in the civil courts, thereby taking advantage of the jury trial right granted in Dalis. Under this regime, plaintiffs had the unilateral power, by choosing § 5, to deprive the respondent of a jury trial.
*592Lavelle, supra at 338, remedied this inequity by concluding that when a plaintiff elects to proceed under G. L. c. 151B, § 5, the respondent must be entitled to demand a jury trial at some point in the proceeding.4 This conclusion was based on two overarching concepts. First, pursuant to the reasoning in Dalis, we concluded that, because the Massachusetts Commission Against Discrimination (MCAD), in a § 5 proceeding, may award damages that go beyond traditional areas of equity, such as pain and suffering, emotional distress, and economic loss, the “sacred” and fundamental art. 15 right to a jury trial was necessarily invoked. Id. at 337. Second, because Dalis concluded that art. 15 granted the right to a jury trial to plaintiffs, equal protection demanded that “[i]f one side to a dispute has a constitutional right to a jury trial . . . the other side must have a similar right.” Id. If the first proposition was a proper statement of constitutional law, the second was necessary to avoid a different constitutional violation. A fundamental right, even if erroneously available, must be available to both parties.
The court characterizes the advantage it confers on plaintiffs as a product of a mere choice of fomm or avenue for redress, citing Panama R.R. v. Johnson, 264 U.S. 375, 392-393 (1924); New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, 401 Mass. 566, 550-581 (1988); and Paro v. Longwood Hosp., 373 Mass. 645, 648-652 (1977). Ante at 564-566. None of these cases allowed one side of a legal dispute unilaterally to deprive the opponent of a fundamental right. In New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, supra at 579-580, the respondent claimed that the statutory scheme of G. L. c. 15 IB violated equal protection because it allowed plaintiffs, by electing an administrative remedy under § 5, to force respondents *593into a proceeding that did not adhere to the strict rules of evidence, required proof by “substantial evidence” instead of a “fair preponderance,” and permitted respondents only judicial review under the standard of G. L. c. 30A. In that case, we found no merit to the respondent’s claim, but we went out of our way to point out that we were not addressing a fundamental right. Id. at 580-581. See Lavelle, supra at 336. Similarly, the Johnson Court, supra at 392-393, addressed the right of injured seamen to elect alternative measures of redress, but not the substance of the “measure of redress or either form of action.” In Paro v. Longwood Hosp., supra at 648-651, the plaintiffs challenged a statute which required medical malpractice claimants who cannot convince a tribunal that their claims “raise a legitimate question of liability,” G. L. c. 231, § 60B, to post a bond before pursuing their claims in the courts. Once again, we explicitly stated that “[n]o claim is made in this case that a fundamental interest ... is involved . . . .” Id. 650. Unlike those cases, here we are dealing with one party’s ability to deprive another party of a constitutionally guaranteed, fundamental right.
The court also goes to great lengths to distinguish § 9 “private actions” from § 5 “civil administrative proceedings,” the “primary purpose of [which] is to vindicate the public’s interest.” Ante at 563, 567. This distinction is artificial. Nowhere in G. L. c. 151B, or in our prior cases, is it established that the vindication of the public’s interest in prosecuting discrimination claims in general is the “primary purpose” to be promoted over the vindication of the private interests of those adversely affected by that discrimination. The cases cited by the court for this proposition, Thomas v. EDI Specialists, Inc., 437 Mass. 536, 541-542 (2002), and College Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 170 (1987), state only that the MCAD has broad authority to remedy and reduce discrimination in the workplace. Ante at 563.
Irrespective of debates over the abstract purpose of antidiscrimination laws, in reality, proceedings under G. L. c. 151B, § 5, are just as much cases between two parties as are civil actions proceeding under G. L. c. 151B, § 9. The court cites Zora v. State Ethics Comm’n, 415 Mass. 640, 652-653 (1993), *594for the proposition that administrative proceedings before the MCAD “do not involve a suit between two or more persons.” Ante at 567. But Zora addressed G. L. c. 268A, a statutory scheme that authorizes actions only by the State Ethics Commission, and makes no provision for private actions. By contrast, when a plaintiff elects to proceed under G. L. c. 151B, § 5, the matter is for all intents and purposes a private suit in which a private plaintiff seeks private remedies. The MCAD does not initiate the suit; it merely puts its resources behind the plaintiffs claims in those cases where it finds that there is “probable cause” to credit those claims. The plaintiff advances the identical substantive claims under § 5 as he or she would under § 9; the plaintiff is able to request the same remedies as under § 9 (with the exception of punitive damages); and prevailing plaintiffs are often (in fact, almost always, according to the MCAD’s supplemental brief) awarded remedies that exceed the scope of equitable relief. Further, the plaintiff retains control over important aspects of the case. If the MCAD wishes to settle but the plaintiff does not, the plaintiff is entitled to remove the case to the civil courts. 804 Code Mass. Regs. § 1.18(4) (1998). The plaintiff also may unilaterally remove the complaint from the commission after ninety days, regardless of the public’s interest in the case. G. L. c. 151B, § 9.
Despite these indicia of a private action at law, the court insists on labeling proceedings under § 5 as somehow more administrative and equitable in nature than private actions. But this denomination is belied by the court’s simultaneous concern about the amount of emotional distress damages routinely awarded by the commission to plaintiffs. Ante at 575. The court’s attempt to rein in those amounts by suggesting guiding principles and factors is tellingly reminiscent of the type of instructions that would be given to a jury at a trial. But even assuming arguendo that, in cases proceeding under § 5, the MCAD is not participating in a private action but primarily acting to vindicate public rights, there is still no permissible basis for granting the right to a jury trial only to one side of a dispute simply by declaring that the process is “administrative,” at least while the proceeding may result in an order that compels a respondent to pay, sometimes substantially, for the plaintiff’s alleged losses.
*595Today the court, in the name of vindicating the State’s antidiscrimination policy, visits discrimination on an entire class of citizens, those who find themselves respondents at the MCAD. If we are to have Dalis, simple fairness dictates that we have Lavelle. Our continued tinkering with this statute is, respectfully, making bad matters worse, and therefore I dissent.
For example, G. L. c. 15 IB, § 4, prohibits employers from refusing to hire members of protected classes, owners of land from refusing to sell or lease to protected classes, and retailers from refusing to extend credit because of a person’s age.
The Legislature can authorize a jury trial to one aggrieved by the violation of a statute even where art. 15 does not demand it. Whalen v. Nynex Info. Resources Co., 419 Mass. 792, 794 (1995); Nei v. Burley, 388 Mass. 307, 312 (1983). However, aside from explicitly authorizing jury trials for claims of age discrimination in employment in G. L. c. 151B, § 9, the Legislature did not exercise this power with regard to other parts of the statute. See Nei v. Burley, supra at 314 (refusing “to imply a right to a jury trial” under G. L. c. 93A in absence of explicit legislative recognition of such right).
For the sake of clarity, I use the term “plaintiffs” to refer both to “complainants” proceeding under G. L. c. 151B, § 5, and to aggrieved persons seeking a civil remedy in court under G. L. c. 151B, § 9.
The court notes that Lavelle itself recognized that certain respondents might secure “two chances to prevail,” one before the MCAD and again before a jury. Lavelle v. Massachusetts Comm’n Against Discrimination, 426 Mass. 332, 338 (1997). The Lavelle court reasoned that this potential inequity (one that did not implicate constitutional concerns) was a temporary expedient to prevent an immediate constitutional violation, until such time as- the Legislature acted to provide another solution. Id. at 338-339. That immediate constitutional violation, it bears repeating, was securing for the plaintiff both the fundamental right to a jury trial, and the ability unilaterally to deprive the respondent of that same right.