Thurdin v. SEI Boston, LLC

Cordy, J.

(dissenting, with whom Cowin, J., joins). The court in this case holds that the Massachusetts Equal Rights Act (MERA), G. L. c. 93, § 102, silently and implicitly repealed the *463express exemption in G. L. c. 151B, § 1 (5), of employers with fewer than six employees, from employment discrimination claims. Because I conclude that the statutory text, legislative history, and our cases do not support the court’s conclusion, I respectfully dissent.

General Laws c. 151B. An act making it unlawful to discriminate in employment practices on the basis of race, color, religious creed, national origin, or ancestry was passed by the Legislature in 1946, and was enacted into law as c. 15 IB of the General Laws (c. 151B). Its enactment was the culmination of years of hearings and investigations undertaken by the legislative and executive branches,1 during the course of which hundreds of persons representing a broad array of religious societies, civic organizations, labor unions, employer groups, and societies for the advancement of minority races and nationalities testified in favor of legislation to eliminate discrimination in the workplace. Chapter 15 IB established the Massachusetts Fair Employment Practice Commission (the predecessor to the Massachusetts Commission Against Discrimination), made it unlawful for employers to engage in discriminatory practices, and created a comprehensive statutory scheme under which employees could vindicate their rights and obtain remedies against employers who engaged in such practices. “[A]fter careful consideration,” the Governor and the Legislature determined to “exempt” from the law those employers “who employ less than six persons for reasons of practical administration and to exempt more or less personal relationship^], small business [es] and family farms.”2 1946 House Doc. No. 400, at 12 n.l.

Since 1946, the Legislature has amended c. 151B, § 1, on dozens of occasions.3 Many of those amendments have either extended the reach of the law by, for example, barring discrimina-*464tian on the basis of sex or sexual orientation, or have broadened the range of practices defined as unlawful. Some have narrowed the categories of organizations exempted from the law.4 The Legislature, however, has never altered the fine balance it struck in 1946, between the goal of eliminating discrimination in employment and the recognition of the burden that such a goal would place on the smallest of our businesses, often family businesses, that depend on the personal working relationships of their five or fewer employees.

The Massachusetts Equal Rights Act. MERA was enacted in 1989. It provides, in pertinent part:

“All persons within the commonwealth, regardless of sex, race, color, creed or national origin, shall have, except as is otherwise provided or permitted by law, the same rights enjoyed by white male citizens, to make and enforce contracts, to inherit, purchase, to lease, sell, hold and convey real and personal property, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property . . . .” G. L. c. 93, § 102(a).

Its genesis is undisputed. It is modeled after 42 U.S.C. § 1981 (§ 1981), an act passed by Congress in the aftermath of the Civil War to ensure that Americans of all races were afforded the same rights as white Americans in a wide array of activities thought necessary to their full participation in civil society.

MERA was drafted and proposed in reaction to fears that the United States Supreme Court, in the then pending case of Patterson v. McLean Credit Union, 491 U.S. 164 (1989), abrogated by the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071, might overrule a prior Court decision, Runyon v. McCrary, 427 U.S. 160 (1976), which had established that § 1981 applied to discriminatory actions in the private sector. The *465intention of MERA’s drafters and legislative sponsors was to pass a State statute that ensured that antidiscrimination laws would continue to apply both to private and government actors.5

MERA makes no specific mention of employment or employment discrimination, nor does it reference c. 151B.6 There is no evidence in the history of MERA’s enactment that it was intended to extend the reach of the State’s employment discrimination laws, set out with great specificity in c. 151B, to small businesses by repealing or nullifying the exemption that had been carved out in 1946, or that there was a problem of discrimination in that sector of our employer community that required a rebalanc-ing of the burdens and benefits that had been so carefully considered at that time.7 The question before us is simply whether the Legislature intended such a result. I conclude that they did not.

First, the wording of MERA cautions against inferring such intent. In failing to mention employment or even reference the statutory scheme of the employment discrimination laws, the *466effect of the statute with regard to the 1946 exemptions is, at a minimum, ambiguous.8 Indeed, this case is before us because the Superior Court judge concluded that MERA did not alter these exemptions. When faced with such an ambiguity, we interpret a statute “according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished.” Hanlon v. Rollins, 286 Mass. 444, 447 (1934). Legislative history and the language and construction of related statutes may assist us in ascertaining and effectuating the Legislature’s intent. Commonwealth v. Welch, 444 Mass. 80, 85 (2005), and cases cited. We construe the words of one statute “in association with other statutory language and the general statutory plan.” Polaroid Corp. v. Commissioner of Revenue, 393 Mass. 490, 497 (1984). See Cote-Whitacre v. Department of Pub. Health, 446 Mass. 350, 358-359 (2006) (Spina, J., concurring). “[Wjhere two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose.” FMR Corp. v. Commissioner of Revenue, 441 Mass. 810, 819 (2004), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514 (1975).

Beginning with the words themselves, MERA directly grants to all persons “the same rights enjoyed by white male citizens” with respect to making and enforcing, in this case, employment contracts. G. L. c. 93, § 102 (a). We should first ask, What “rights” do “white male citizens” have in this respect?9 The *467answer seems apparent. Chapter 15IB, the Massachusetts employment discrimination act, has been in place since 1946.10 It gives white males (and all others) the right not to be discriminated against by employers of six or more persons based on their race, gender, religious creed, national origin, or sexual orientation. To the extent that the rights of “white male citizens” are defined in and limited in the employment context by c. 15IB, the plain language of the statute suggests that the rights guaranteed to “[a]ll persons” under MERA are similarly defined and constrained.

Alternatively, this interpretation is consistent with the built-in limitation on the reach of MERA, that is, that all persons shall have such rights “except as is otherwise provided or permitted by law.” This phrase, while not definitive, plainly suggests that it was not the intention of the Legislature to upset other specific provisions of law already governing the rights of persons in the various contexts in which MERA might apply, such as the exemptions of small employers, and other social, fraternal, and religious organizations set forth in c. 15IB.11 Chapter 15IB, which also prohibits discrimination in the leasing of residential properties, contains a similar exemption for the owner occupants of two-family dwellings. G. L. c. 151B, § 4 (7) and (11) (3). While there is no suggestion that the Legislature intended MERA to upset this exemption either, the court’s analysis would compel that result as well.

This court’s well-settled principles of statutory construction lead to the same conclusion. When we construe a statute, we “assume . . . that the Legislature was aware of [any] existing stat*468utes,” Charland v. Muzi Motors, Inc., 417 Mass. 580, 582 (1994), quoting Mathewson v. Contributory Retirement Appeal Bd., 335 Mass. 610, 614 (1957), and “if possible a statute is to be interpreted in harmony with prior enactments to give rise to a consistent body of law.” Charland v. Muzi Motors, Inc., supra at 583. Moreover, this court “will find an implied repeal of one statute by another only when ‘the prior statute is so repugnant to, and inconsistent with, the later enactment that both cannot stand.’ ” Boston v. Board of Educ., 392 Mass. 788, 792 (1984), quoting Commonwealth v. Graham, 388 Mass. 115, 125 (1983). In other words, a “statute is not to be deemed to repeal or supersede a prior statute in whole or in part in the absence of express words to that effect or of clear implication.” Commonwealth v. Hayes, 372 Mass. 505, 512 (1977), quoting Colt v. Fradkin, 361 Mass. 447, 449-450 (1972). Therefore, “[w]here the repealing effect of a statute is doubtful, the statute is strictly construed to effectuate its consistent operation with previous legislation” (emphasis in original), Commonwealth v. Hayes, supra, quoting 1A C. Sands, Sutherland Statutory Construction § 23.10 (4th ed. 1972), because “[i]t is not to be lightly supposed that radical changes in the law were intended where not plainly expressed.” Commonwealth v. Burke, 390 Mass. 480, 486 (1983), quoting Ferullo’s Case, 331 Mass. 635, 637 (1954). See School Comm. of Newton v. Newton Sch. Custodians Ass’n, Local 454, 438 Mass. 739, 751 (2003) (“In the absence of explicit legislative commands to the contrary, we construe statutes to harmonize and not to undercut each other”). Finally, “general statutory language must yield to that which is more specific.” TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 18 (2000), quoting Risk Mgt. Found, of Harvard Med. Insts., Inc. v. Commissioner of Ins., 407 Mass. 498, 505 (1990).

These established canons of statutory construction teach that to the extent MERA and c. 15 IB both address employment discrimination, they must be read together harmoniously. These two statutes are not so inconsistent that one must fail. Indeed, they are easily harmonized in the employment discrimination context by reading MERA as applying only to employers with six or more employees. To do otherwise is to read MERA as a silent *469and implied repeal of c. 15IB’s carefully crafted exemption of small employers.12

Additionally, MERA’s general language should be interpreted to yield to that of the far more specific c. 15IB. MERA is a general statute aimed at providing a remedy for equal rights violations of many varieties. See G. L. c. 93, §§ 102, 103. As noted, nowhere does the statute mention employment discrimination or use the word “employer.” See id. Chapter 151B, on the other hand, is a comprehensive antidiscrimination statute that specifically addresses employment discrimination of all types, see G. L. c. 151B, § 4 (1), (1A), (IB), (1C), (ID), (3), (4), (5), (9), (9A), (11A), (16), (16A), (17), (18), and (19), and specifically defines the term “employer” to exclude, among other things, “any employer with fewer than six persons in his employ.” G. L. c. 151B, § 1 (5). Consistent with this court’s interpretation of other statutes, the “general statutory language [of MERA] must yield to that which is more specific” in c. 15IB. TBI, Inc. v. Board of Health of N. Andover, supra. Accordingly, the appropriate way to harmonize MERA with c. 15 IB is to read MERA to apply only to employers with six or more employees.

Finally, the court’s reliance on c. 151B, § 9, first par., which provides that “nothing contained in this chapter shall be deemed to repeal any provision of any other law of this commonwealth relating to discrimination,” is not persuasive (emphasis added). The court suggests that interpreting MERA so as to exempt small employers from its purview is to “repeal” MERA, at least in part. Ante at 445,447-448. This understanding of § 9 misconstrues *470what it is to “repeal” a statute. Black’s Law Dictionary defines “repeal” as the “abrogation of an existing law by legislative act.” Black’s Law Dictionary 1325 (8th ed. 2004). Accord Webster’s Third New Int’l Dictionary 1924 (1993) (“repeal” means “to rescind or revoke [as a sentence or law] from operation or effect”). To read MERA as exempting small employers is not to repeal it, but to construe or interpret it in light of c. 151B. On the other hand, under the court’s view, MERA does effectively repeal c. 15IB’s small employer exemption by allowing a complete “end ran” around it.

More importantly, § 9 provides that “any law inconsistent with any provision of this chapter shall not apply.” The court maintains that “there is nothing ‘inconsistent’ between” MERA and c. 151B “because they do not cover the same employers and provide different remedies.” Ante at 445. While it is true that the statutes provide different remedies, it is also true that both statutes cover the same employers — namely, employers with six or more employees. To the extent that the court reads MERA to cover employers with fewer than six employees, MERA is plainly inconsistent with c. 151B’s express exemption of small employers from employment discrimination claims. Accordingly, § 9 mandates that MERA “shall not apply” to small employers.

The enforcement of contracts. The second issue in this case is whether the “enforce contracts” phrase of MERA includes the right to be free from discriminatory acts committed after there is an employment contract in place. Just prior to the final enactment of MERA (which takes this language directly from § 1981), the United States Supreme Court interpreted “enforce contracts” to mean only the right to bring an action for breach of the employment contract, not a separate right to be free from on-the-job discrimination. Patterson v. McLean Credit Union, 491 U.S. 164, 171 (1989). Notwithstanding the Supreme Court’s interpretation of this identical language, the Legislature enacted and the Governor signed MERA.

“In construing Massachusetts statutes we are ordinarily guided by the construction given the parallel Federal statute by the Federal courts.” Howard v. Burlington, 399 Mass. 585, 589 (1987), and cases cited. However, ultimately the question remains *471one of statutory intent — that is, did the Legislature intend (when it enacted MERA) those words to mean what the United States Supreme Court said they did. Cf. Massachusetts Elec. Co. v. Massachusetts Comm’n Against Discrimination, 375 Mass. 160, 167 (1978) (Federal interpretations of Federal statute not binding on State court interpreting analogous State statute). The Superior Court judge here concluded that it did. That conclusion is supported by the fact that the Congress amended § 1981 two years after the Patterson decision to define the phrase “make and enforce contracts” to ensure that § 1981 would apply to postformation conduct such as on-the-job employment discrimination. See 42 U.S.C. § 1981(b). Yet, the Massachusetts Legislature failed to follow suit, and the “enforce contracts” language has remained unchanged and undefined.

I agree that the question is a close one, and that both sides have made a credible claim regarding the Legislature’s intent given the sequence of events at the time of the statute’s enactment. Based on my view that MERA does not create rights against employers already exempted by Massachusetts law, we need not decide this question. However, in proceeding to decide that the phrase “enforce contracts” covers discrimination in the course of employment, the court rejects (without a mention) more than fifteen years of thoughtful decisions made by judges in the Superior Court who have regularly dealt with the question and concluded otherwise. While a comprehensive search for and review of such decisions would be difficult to undertake, the only decisions I have discovered that are consistent with this court’s view were authored in 1993 and 1996 by the judge in this case, who has since conformed his view with what appears to be the prevailing if not a uniform view to the contrary. If the Legislature intended the words of the statute to mean what the court now claims, I would have expected that at some point during this long history of decisions it would have amended the statute to say so.

I respectfully dissent.

A special commission had reported its findings regarding the existence of discrimination in employment to the Legislature on December 21, 1944, as directed by Res. 1943, c. 39. 1946 House Doc. No. 400, at 3. Thereafter, the Governor appointed a committee to recommend remedial legislation. Id. at 2.

General Laws c. 151B, as enacted in 1946, also exempted “a club exclusively social, or a fraternal, charitable, educational or religious association or corporation, if such club, association or corporation is not organized for private profit.” St. 1946, c. 368, § 4.

The definition section (§ 1) of c. 151B, which includes the definition of *464“employer,” has been amended nineteen times since 1946; § 4, which sets out the practices made “unlawful” by c. 151B, has been amended fifty-six times since 1946.

For example, in 1969, the Legislature amended c. 151B to eliminate the exemption for charitable and educational associations or corporations that are not “operated, supervised or controlled by ... a religious organization.” See G. L. c. 151B, § 1 (5), as amended through St. 1969, c. 216.

The Massachusetts Equal Rights Act (MERA) also extended the protections of § 1981 by expressly covering discrimination based on “sex, race, color, creed, [and] national origin,” and by permitting a plaintiff to establish a violation of MERA “based on the totality of circumstances.” G. L. c. 93, § 102 (a) and (c).

General Laws c. 93, § 103, enacted one year after § 102, does refer to c. 151B’s definitions of “handicap” and “age.” Neither section, however, states that it applies in spite of c. 151B’s small employer exemption. See G. L. c. 93, §§ 102, 103.

The court in its opinion cites statistics from the United States Department of Labor Bureau of Labor Statistics and the United States Census Bureau, which show that over fifty-eight per cent of the businesses in the Commonwealth employed less than five (i.e., four or fewer) employees in 2005 and 2007. Ante at 448. The court states that “we cannot conclude that the Legislature meant to exempt a potential majority of the employers in the Commonwealth from its antidiscrimination laws.” Id. What is not referenced in the opinion is that the percentage of the Massachusetts workforce employed by those small businesses was quite low: 7.22%, 6.96%, and 6.75% in January, February, and March, 2007, respectively. See United States Department of Labor, Bureau of Labor Statistics, 2007 Quarterly Census of Employment and Wages (preliminary data). See also United States Census Bureau, 2005 Statistics of United States Businesses (employees of businesses with fewer than five employees comprise 4.7% of the total private workforce in Massachusetts); United States Department of Labor, Bureau of Labor Statistics, 2005 Quarterly Census of Employment and Wages (employees of businesses with fewer than five employees comprise 6.74% of the total private workforce in Massachusetts).

In contrast, the effect of the maternity leave statute, G. L. c. 149, § 105D, on c. 151B is clear because § 105D expressly indicates that the term “employer” as used in that section “shall be defined as in” c. 151B, § 1 (5). Similarly, the effect of the sexual harassment statute, G. L. c. 214, § 1C, on c. 151B is clear because the Legislature amended c. 151B when it enacted c. 214, § 1C. St. 1986, c. 588. See Green v. Wyman-Gordon Co., 422 Mass. 551, 557 (1996) (holding employers with fewer than six employees subject to suit under c. 214, § 1C). See also Guzman v. Lowinger, 422 Mass. 570, 572 (1996) (same). The critical difference here is that the Legislature made no change or reference to c. 151B when it initially enacted MERA. Thus, unlike c. 214, § 1C, MERA should not be so readily construed as having created a cause of action for employees of small employers.

MERA does not create new rights for white male citizens.

In contrast to Massachusetts, when 42 U.S.C. § 1981 was enacted by Congress in the Nineteenth Century, there was no comprehensive Federal employment discrimination law enumerating the rights of employees to be free from certain discriminatory employment practices.

Stephen P. Johnson, legislative counsel for the Boston Bar Association in 1989 and one of MERA’s drafters, has indicated that MERA can be read to incorporate c. 151B’s exemptions through its “except as is otherwise provided or permitted by law” provision. See Johnson, The 1989 Massachusetts “Equal Rights Law”: A Short History, 34 B.BJ. 17, 19 (1990) (MERA’s exception could “be found, e.g., to exclude religious institutions from the definition of ‘employer’ ” in G. L. c. 151B, § 1 [5]). See also Heins, Massachusetts Civil Rights Law, 76 Mass. L. Rev. 77, 86 (1991) (“the ambiguous language of G.L.M. c. 93, § 102 \a\ [‘except as is otherwise provided or permitted by law’] . . . could be interpreted to extend the 151B exemptions for small employers and landlords to [MERA]”).

Not only would such an implied repeal subject small employers to employment discrimination suits filed directly in the Superior Court (without the benefit of Massachusetts Commission Against Discrimination’s administrative procedures), it would also subject them to a longer statute of limitations and would lower the burden of proof for claimants. Compare G. L. c. 93, §§ 102 (b) and 103 (b) (permitting suit directly in the Superior Court), G. L. c. 260, § 5B (three-year statute of limitations for civil rights actions), and G. L. c. 93, §§ 102 (c) and 103 (c) (“totality of circumstances” test), with G. L. c. 151B, § 5, first par. (claimant alleging employment discrimination must file complaint with MCAD), id. at § 5, second par. (300-day statute of limitations), and Lipchitz v. Raytheon Co., 434 Mass. 493, 505-507 (2001) (to prevail under c. 151B, § 4, claimant must prove that discrimination caused adverse employment decision). This result is anomalous.