Massachusetts has broad statutory protection against discrimination in employment, much of which can be found in G.L. Chapter 151B. The Massachusetts Supreme Judicial Court recently ruled on two little known provisions of the statute, the “aiding and abetting” provision, found in Section 4(5) and the interference provision, found in section 4(4A). The most important thing about these provisions is that a person or a business can be liable for discrimination under Chapter 151B even if they are not the employer of the claimant. The case is reported as Lopez v. Commonwealth, 463 Mass. 696 (2012). Although the Lopez case concerns the Human Resources Division’s testing for public jobs, the reasoning of the case will apply equally in the private sector.
Discrimination for Interference With Employment Rights:
Under the words of the statute, it is unlawful for “any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted [by the statute].” The SJC ruled in Lopez that under Section 4(4A), a person “need not be an employer to be subject to an interference claim. Id. at 706. Pursuant to this paragraph, in pertinent part, it is unlawful for any person to “interfere with another person in the exercise or enjoyment of any right granted or protected by [G.L. c. 151B].” Id.
Although its precise application is hard to define, the message is clear: if you act in a discriminatory fashion you and your company may be liable for the full amount of damages under the statute. For example, if a salesperson called on your company from ABC Sales, you could be found liable if the complained to ABC Sales that you did not care for this salesperson because of his (race, religion, sexual orientation, etc.) if ABC Sales then took negative action against the salesperson.
In fact, you could be liable even if you did not have a discriminatory motive, so long as your actions were intentional. Take another example, let’s say that your company hires temporary employees from BCD Temps. If you required BCD Temps to provide you only with new college graduates, that would likely have a disparate impact on older workers. Under the reasoning of the SJC in Lopez, you could be held liable to older workers who were not given the job with BCD Temps because of your requirements.
There can also be liability for creating a hostile work environment, even to your non-employees. You cannot turn a blind eye to egregious discrimination or sexual harassment that is happening in your premises or a worksite you control.
Liability for Aiding and Abetting.
Chapter 151B, Section 4(5) provides in pertinent part that it is unlawful “for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any [forbidding discriminatory act.”. In order to prevail on an aiding and abetting claim under Section 4(5), the SJC ruled that a claimant “must show that the defendant (1) committed ‘a wholly individual and distinct wrong … separate and distinct from the claim in main’; (2) ‘that the aider or abetter shared an intent to discriminate not unlike that of the alleged principal offender’; and (3) that ‘the aider or abetter knew of his or her supporting role in an enterprise designed to deprive [the claimant] of a right guaranteed him or her under [G.L. c. 151B].’” Lopez, at 713, quoting Harmon v. Malden Hosp., 19 Mass. Discrimination L. Rep. 157, 158 (1997).
The biggest difference in aiding and abetting liability is the requirement of specific intent. It is hard to imagine a case where a claimant could show aiding and abetting, if the claimant could not also show interference with its lower standard. In the examples set forth above, a claimant would likely be able to prove aiding and abetting if he could show the intent to discriminate. It remains to be seen whether there are applications of Section 4(5) that do not fit under section 4(4A).
In summary, you have to at least be aware of these types of issues in your business dealings. While few modern employers intentionally discriminate, you now have to be cautious that your actions will unintentionally discriminate against non-employees. These are serious matters. When successful, discrimination awards can and often do range in the hundreds of thousands of dollars, and higher. If you have any questions on how your business dealings could be putting you at risk, call me at 617.338.7000.
By Adam P. Whitney