Robert S. Mantell
Rodgers, Powers & Schwartz LLP
THE LIBERAL INTERPRETATION OF CHAPTER 151B
Chapter 151B, the
Of the twenty-three opinions I have found citing the liberal provision, all of the cases have broadly interpreted c. 151B in some significant manner, such as increasing the scope of non-discrimination provisions and supporting broad remedies for discrimination victims. Infra, nn. 8-14. There is an astonishing correlation between a Court's citation to the provision and its propensity to accord c. 151B with a broad, pro-remedial interpretation
On the other hand, of all the decisions choosing a narrow, non-remedial interpretation of c. 151B, every single decision, except two, fails to cite to the liberal provision.
Given the apparently tangible effect of the provision, the widespread failure to reference it raises the likelihood that the legislature's intent may be ignored. In this article, I will argue for the adoption of a mandatory and structured analysis, built on the foundation of liberal interpretation.
THE LEGISLATURE INTENDED LIBERAL CONSTRUCTION
language of c. 151B can sometimes be less than clear. LaPierre v. MCAD,
provision has been present since 1946, when the initial non-discrimination
provisions were promulgated.
LIBERALITY DOMINATES OTHER RULES OF INTERPRETATION
The preference for
liberality is not merely just another rule of statutory construction that a
court may consider; it represents the principal tenet for c. 151B
interpretation. Consider the context for
the legislature's directive. There are
rules of statutory construction, which exist in abundance, to assist courts in
discerning legislative intent. See, e.g.,
G.L. c. 4, § 6. It is fair to
summarize that the maze of rules are "complex, contradictory and not
readily reconcilable." Shubow,
Statutory Construction in
The provision states that c. 151B "shall" be construed liberally. G.L. c. 151B, § 9, ¶ 1. The mandatory language requires that a liberal interpretation will not be rejected, in favor of other interpretations. This "shall" is a one-way ratchet, with no give. No other guiding principles were included.
In addition, c. 151B states that inconsistent laws will not limit its scope. Section 9 states: "The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof, and any law inconsistent with any provision hereof shall not apply . . ." (underlining added). Chapter 151B is thereby given a pre-eminent position among other laws. Likewise, the "liberal" provision is given pre-eminence over all other rules of interpretation.
establishes the liberal provision's primary status over other rules of
construction. A common law rule of statutory construction
provides that civil rights statutes are subject to liberal construction to
accomplish their remedial purposes. Redgrave
v. Symphony Orchestra, Inc., 399
It should not be a
surprise that the "liberal" provision trumps other rules of statutory
interpretation. For example, the first
rule of statutory interpretation is that, generally, the clear and unambiguous
language of a statute should control. General Electric Co. v. Department of Environmental Protection,
Therefore, the primacy of the "liberal" provision over other rules of construction is not only well founded in the statutory language, it is consistent with the common law, and does not yield outrageous results that common law would reject. And if the "liberal" provision is to be accorded any effect beyond what is already provided by the common law presumption for civil rights laws, it must be accorded weight beyond the presumption already available in common law: it must be the mandatory, central foundation of c. 151B analysis.
REASONABLE INTERPRETATIONS ARE CONSIDERED
is one important limitation on the preference for liberal construction: the liberal interpretation must be
A reasonable interpretation that liberally supports c. 151B purposes shall prevail, even when another reasonable interpretation exists. The issue is not whether one side presents the most reasonable argument. This is not a balancing approach. Rather, once a reasonable, liberal interpretation is proffered, it "shall" prevail. G.L. c. 151B, § 9, ¶ 1.
law provides an analogy to this type of inquiry: a plan administrator's reasonable
interpretation of a benefit plan will be upheld, even if the beneficiary
proffers an equally reasonable or more reasonable interpretation. See Terry v. Bayer Corp., 145 F.3d 28, 40 (1st Cir. 1998). This rule of construction may also be
analogized to the "disfavored drafter" presumption in contract law,
where an ambiguous contract will be accorded a reasonable construction favoring
the non-drafter, even if the drafter suggests other very plausible
Similarly, the liberal provision compels a specific choice among competing, reasonable interpretations.
does the court determine whether a liberal interpretation is reasonable? It uses the ordinary rules of statutory
e.g., Worcester Housing Authority v. MCAD, 406
THE PURPOSES OF CHAPTER 151B
Having established the primacy of liberal construction, the stage is set to elaborate the necessary steps for analyzing c. 151B. First, it is necessary to discern "the purposes" of c. 151B. G.L. c. 151B, § 9, ¶ 1.
purpose of the statute is to minimize, penalize and eliminate
c. 151B, § 3(9); Beaupre v. Cliff Smith & Associates, 50
purposes may also be gleaned from careful review of specific provisions. For example, the c. 151B provision relating
to handicap discrimination was enacted to "encourage impaired persons to
overcome or mitigate their disabilities."
Dahill v. Police Department of
As shown above, the true battle is not over which side has the more reasonable interpretation c. 151B. The real battle is over which side advances a reasonable interpretation that accomplishes "the purposes" of the statute, with a preference for liberal interpretations. G.L. c. 151B, § 9, ¶ 1. Thus, an inquiry into the purposes of c. 151B assumes a greater importance than in the interpretation of other statutes.
SELECTION AMONG COMPETING PURPOSES
151B represents a compromise of competing interests, and likewise, competing
purposes may be discerned in its provisions.
See Charland v. Muzi Motors, Inc., 417
An example will illustrate this point of competing purposes. Chapter 151B does not apply to employers with five or fewer employees. G.L. c. 151B, 1(5). A plaintiff, arguing that an owner of a company should be counted as an "employee" for the purposes of this provision, would argue that doing so would further c. 151B purposes in preventing discrimination, and allow the non-discrimination provisions to apply to a greater number of Massachusetts workers. A defendant, urging a restrictive approach, would argue that one of c. 151B's goals is to provide small employers the utmost freedom in their hiring practices, and that counting people who are not ordinarily thought of as employees would violate this purpose. Both interpretations arguably further the purposes of c. 151B, as expressed in its language, and the proper answer is not clear merely from looking at the purposes. Each interpretation supports a different purpose.
How is a court to choose between interpretations furthering competing purposes reflected in the statutory language? The answer is that the "liberal" interpretation is given a preference. G.L. c. 151B, § 9, ¶ 1.
"LIBERAL" MEANS EXPANSIVE
What is a "liberal" construction? For example, using the above example, should liberal construction favor the c. 151B goal of eradicating discrimination by considering the owner as an employee, or should the statute be construed liberally to preserve the area of freedom carved out for small employers?
The "liberal" approach represents an interpretation that broadens the range of anti-discrimination provisions and remedies. The overarching presumption is that c. 151B should apply to all claims and situations that can be reasonably interpreted to fall within its scope. The many cases citing the provision demonstrate that "liberal" interpretations favor the extension of coverage. Those cases have:
· broadly interpreted c. 151B to increase the scope of non-discrimination provisions;
· expanded respondent liability and limited the burden of proving mens rea;
· expanded the range of parties responsible for preventing and remediating discrimination;
· expanded exceptions to administrative requirements;
· established c. 151B's non-interference with other laws benefiting the protected classes;
· supported broad remedies for discrimination victims;
· increased the powers of the Massachusetts Commission Against Discrimination to investigate and remedy discrimination.
a liberal interpretation favors a widening area of coverage and remedy. If the holdings of the cases listed in
footnotes 8-14 appear lopsidedly pro-plaintiff, there is a reason for
this. Anti-discrimination statutes
"are expressly directed against employers; [the Legislature] intended in
these statutes to regulate [employers'] conduct for the benefit of
Airlines, Inc. v. Transport Workers
Looking again to the example above, the interpretation favoring expansion of c. 151B's scope is the one defining the owner as an employee. Therefore, it is the liberal interpretation. As the liberal interpretation, the Court must test this interpretation before considering other interpretations. The Court considers the statutory language and the ordinary rules of statutory construction to determine if this interpretation is reasonable. If so, the interpretation controls, and there is no further inquiry. If that interpretation is not reasonable, then other interpretations are considered, in the order most favoring liberality.
SUMMARY OF THE PROPER ANALYSIS
The "liberal" provision requires the following mandatory and exclusive method of choosing between competing interpretations of c. 151B:  The purposes of c. 151B are examined, generally (e.g. elimination of discrimination) and specifically (considering the particular provision at issue);  proposed interpretations of c. 151B are entertained to the extent they reflect a c. 151B purpose;  the most liberal interpretation (one that provides for the broadest prohibitions against discrimination and greatest remedy) is examined first;  the most liberal interpretation is examined in light of the statutory language and other rules of construction to determine whether it is reasonable;  if the most liberal interpretation is reasonable, it must be adopted; and  if the most liberal interpretation is not reasonable, the court shall adopt the next most liberal interpretation that is reasonable.
recognition of this analysis will lead to more uniform and correct
 See, e.g., Charland v. Muzi Motors, Inc., 417 Mass. 580, 582 (1994) (where an employee is within the c. 151B protected class, the employee may not pursue a c. 93, § 102 remedy, where the employee failed to comply with c. 151B administrative requirements); Pacella v. Tufts University School of Dental Medicine, 66 F. Supp. 2d 234, 242 (D. Mass. 1999) (holding that c. 151B definition of handicap requires consideration of mitigating measures, based on presumption that c. 151B is interpreted similarly to federal law); Keeler v. Putnam Fiduciary Trust Co., 238 F.3d 5, 11 (1st Cir. 2001) (rejecting liberal continuing violation theory for c. 151B, in favor of doctrine based on Federal interpretations of Title VII); Mullin v. Raytheon Co., 164 F.3d 696 (1st Cir. 1999), rehearing denied, 171 F.3d 710 (1st Cir. 1999) (refusing to recognize applicability of the disparate impact theory to c. 151B age discrimination claims, based on the presumption that c. 151B is interpreted similarly to federal law); Lolos v. Solutia, Inc., Memorandum and Order With Regard to Defendant's Motion for Summary Judgment, C.A. No. 99-30222, Neiman, U.S.M.J., (D. Mass. March 26, 2002) (reassignment will not be required as a reasonable accommodation under c. 151B, based on presumption that c. 151B is interpreted similarly to federal law in effect at the time of promulgation); but see Comey v. Hill, 387 Mass. 11, 15 (1982) (independent contractors not within scope of c. 151B; Cormier v. Pezrow New England, Inc., 437 Mass. 302 (2002) (experienced executive with human resources staff not shown to have knowledge of c. 151B as to support multiplied damages).
 Belonni v. Reservoir Nursing Center, 1
 While other
 For example, c. 151B has been liberally
interpreted in a manner that appears to accord certain words no meaning. See LaPierre v. MCAD, 354
 There are other exceptions to the bedrock
"plain meaning" principle. For
example, the plain language of a statute will be rejected if the consequences
of such construction are unreasonable. Pysz v. Contributory Retirement Appeal Board, 403
 A court should
give effect to all words in a statute but should not overemphasize any. MCAD v. Liberty Mutual Ins. Co., 371
 LaPierre v. MCAD, 354 Mass. 165, 174-5 (1968) (protected class of "national origin" broadly interpreted to include ancestry; thus, discrimination against Puerto Rican, who is an American by national origin, is nevertheless illegal); Dahill v. Police Department of Boston, 434 Mass. 233, 238 (2001) (protected class of handicapped is determined without regard to consideration of mitigating measures); Worcester Housing Authority v. MCAD, 406 Mass. 244, 247 (1989) (discrimination prohibition based on "marital status" protects unmarried individuals); but see Comey v. Hill, 387 Mass. 11, 15 (1982) (independent contractors are not within protected class, despite section 9 guidance).
 College-Town, Division of Interco, Inc. v. MCAD, 400 Mass. 156, 165 (1987) (sexual harassment constitutes actionable discrimination, and rejecting Federal approaches by holding that an employer is strictly liable for the acts of those upon whom it confers authority); Gnerre v. MCAD, 402 Mass. 502, 506-507 (1988) (sexual harassment violates prohibition against discrimination in housing); see also Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 99 (1987) (citing common law presumption of liberal interpretation, and holding that specific discriminatory intent is not required for liability under Massachusetts Civil Rights Act).
 Beaupre v. Cliff Smith & Associates, 50 Mass. App. 480, 492 (2000) (sexual harasser is individually liable); Weston v. Town of Middleborough, 14 Mass. L. Rptr. No. 14, 323 (April 8, 2002) (municipal utility may be responsible for sexual harassment of elected member of the Board); Winsmann v. Choate Health Management, 8 Mass. L. Rptr. No. 21, 480, 482 (July 27, 1998) (entities that share control over employment are jointly and severally liable); Chapin v. University of Massachusetts, 977 F. Supp. 72, 80 (D. Mass. 1997) (supervisor may be individually liable where supervisor knew of sexual harassment and failed to take action).
 Cormier v. Pezrow New England, Inc.,
 Jancey v. School Committee of Everett, 421 Mass. 482, 495 (1995) (Massachusetts Equal Pay Act claim not barred by c. 151B); Local Finance Co. v. MCAD, 355 Mass. 10, 14-15 (1968) (c. 151B does not repeal public accommodation provisions); Comey v. Hill, 387 Mass. 11, 19-20 (1982) (c. 151B is not meant to be an exclusive remedy, and does not preempt an intentional interference with contractual relations claim, where the improper motive alleged was age discrimination).
 Conway v. Electro Switch Corp., 402
 [MCAD v. Liberty Mutual Ins. Co., 371 Mass. 186, 193-194 (1976) (relying on liberal construction provision to hold that MCAD had authority to issue a subpoena duces tecum); Bournewood Hosp., Inc. v. MCAD, 371 Mass. 303, 315-317 (1976) (MCAD permitted to award emotional distress damages in retaliation claim); Katz v. MCAD, 365 Mass. 357, 366 (1974) (MCAD entitled to issue prospective order, requiring respondent to designate future real estate advertisements as an "equal opportunity listing").