Thursday, February 9, 2012

Mixed Motive Analysis Applies to Massachusetts State Age Discrimination Claims

In yet another case that underscores the admonition that federal anti-discrimination jurisprudence will not necessarily be transported to the state courts, the First Circuit, on February 7, 2012, in Diaz v. Jiten Hotel Mgmt., Inc., Nos. 11-1505, 11-1575, 2012 U.S. App. LEXIS 2386 (1st Cir. Feb. 7, 2012) held that, even after the Supreme Court’s decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S. Ct. 2343 (2009), rejecting mixed-motive analysis in federal age discrimination cases in favor of a “but-for” analysis, Massachusetts, under its state anti-discrimination law, was held to continue to adhere to mixed-motive analysis.  Interestingly, the court noted that the Supreme Judicial Court of Massachusetts “frequently do[es] not follow the reasoning of Federal Appellate Decisions applying Title VII”, citing Cuddyer v. Stop & Shop Supermarket Co., 750 N.E.2d 928, 939 (Mass. 2001).  Further, the court noted that, in Wynn & Wynn, P.C. v. Mass. Comm’n Against Discrimination, 729 N.E.2d 1068 (Mass. 2002), a gender discrimination case, the Court had adopted the Price Waterhouse burden-shifting analysis, stating that “the plaintiff, armed with some strong (direct) evidence of discriminatory bias, demonstrates that at least one factor motivating the employer’s decision is illegitimate.”  729 N.E.2d at 1078.  And, after the Supreme Court’s Gross decision, the Massachusetts Supreme Judicial Court revisited the mixed-motive issue in Haddad v. Wal-Mart Stores, Inc., 914 N.E.2d 59 (Mass. 2009), once again, a gender discrimination case, and affirmed the lower court’s use of a mixed-motive instruction.  Finally, the First Circuit noted that, unlike in the federal scheme, where the Gross decision emanated from an analysis of the ADEA and mixed-motive analysis emanates from Title VII, Massachusetts has but one anti-discrimination law, Chapter 151B, which prohibits both age and gender discrimination.  Thus, the Court was comfortable in predicting that the holdings in Wynn & Wynn, and Haddad, gender discrimination cases, would apply with equal force in a Chapter 151B age discrimination case like the claim asserted in Diaz.  

Of further interest is the First Circuit’s recognition that Massachusetts, unlike the federal courts, continues to embrace the continuing violation doctrine, where a plaintiff alleges a pattern of discriminatory conduct.  See Pelletier v. Town of Somerset, 939 N.E.2d 717, 731 (Mass. 2010).  

Again, the Diaz decision underscores the fact that plaintiffs will continue to argue for different interpretations of state anti-discrimination statutes, where the federal jurisprudence is not favorable to plaintiffs. 
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