Employment Sections

Decisions, Decisions

Three Recent Rulings Issued by the MCAD Are Ones to Remember

By PETER VICKERY

Is a worker who had a heart attack ‘handicapped’ in the legal sense of the word? Is a manager handicapped even if he can work nine hours a day, five days a week? Can a professor win $200,000 in emotional-distress damages without presenting any medical records as evidence? According to the Massachusetts Commission Against Discrimination (MCAD), the answer to all three questions is ‘yes.’

Our Commonwealth’s fair-employment-practices law, Chapter 151B, prohibits employers from discriminating on the basis of race, color, religious creed, national origin, sex, sexual orientation, age, ancestry, or handicap. The agency that has the job of adjudicating complaints under that law is the MCAD. If the MCAD finds probable course, the case goes to a public hearing. If the losing side appeals, it goes to the full commission. Either side can seek judicial review of the full commission’s decision.

Although the MCAD is not a court, its opinions influence the way judges interpret the statute. The judiciary tends to defer to the MCAD’s view of the scope and meaning of Chapter 151B — not always, but often enough. So when the full commission issues a decision, it matters.

Three of the decisions that the full commission issued over the past 12 months provide employers with some useful pointers about the legal presumptions and interpretations MCAD’s hearing officers use, and the potential cost of not knowing what they are. In all three cases, the hearing officer awarded the employee damages for emotional distress, the full commission affirmed the award, and it took at least five years from filing the complaint to the commission’s final decision — in one case, nine years. In addition to those commonalities, each of the three decisions is noteworthy in its own right.

Glynn v. Massasoit Industrial Corp.

One of the key questions in this case was whether the employee had a handicap. Chapter 151B defines a handicap primarily as “a physical or mental impairment which substantially limits one or more major life activities of a person.” In the context of the statute’s ban against discrimination on the basis of immutable characteristics such as gender, race, ethnicity, and national origin, a reasonable reader could infer that the Legislature meant to prohibit discrimination against people with lifelong (or at least lengthy) disabilities.

But the way the MCAD interprets the word, an ‘impairment’ does not have to be permanent to qualify as a handicap. Even a temporary impairment may qualify, as in the case of 74-year old Mr. Glynn, who suffered pneumonia and a heart attack leading to a one-month hospital stay. Glynn’s employer terminated him, allegedly for his failure to show up at work or to call in.

A supervisor testified that the company had not known the reason for Glynn’s absence. But the testimony the hearing officer found more credible was that of Glynn’s daughter-in-law, who said that she had visited the workplace twice to explain about the pneumonia, heart attack, and hospitalization.

The hearing officer took into account Glynn’s 22 years of service with the company, his age, plus the difficulty of finding another job at age 74, and decided that he deserved compensatory damages of $54,600. Based on Glynn’s testimony about how he felt after losing his job (lost, lonely, and disappointed) she awarded him $35,000 for emotional distress. As well as affirming the damages, the full commission ordered the employer to pay almost $52,000 in legal fees and costs. In total, the company had to pay just under $142,000. This six-figure price tag should help serve as a reminder that even temporary ailments can constitute a handicap.

The MCAD has a duty to construe Chapter 151B liberally, which as a practical matter tends to help employees and hurt employers. The Legislature wrote this liberal-construction rule into the text of the law, but there are some equally important rules that do not appear in the statute itself. They have emerged through the common-law process of judges applying the law to individual cases.

Anderson v. UPS

One such rule, which employers may think of as a thumb on the scales in favor of employees, made its presence felt in Anderson v. UPS, namely the broad presumption in favor of finding individuals disabled.

A manager asked his employer to reassign him to the day shift because working 12-hour shifts at night exacerbated his bipolar depression and anxiety disorder. Noting that Mr. Anderson said that, despite his condition, he could work nine hours a day, five days a week, the company determined that he was not legally handicapped and refused to engage in a discussion with him. Instead, it terminated him. This was a mistake, and quite an expensive one.

In combination, the statutory liberal-construction rule and the judge-made presumption in favor of finding individuals disabled tilted the scales heavily against UPS. Applying those two principles, the MCAD hearing officer found that Anderson was handicapped, and that UPS should have realized as much on the basis of the medical records describing his symptoms in detail, plus his lengthy hospital stays.

Because Anderson was handicapped in the Chapter 151B sense of the word, the MCAD held that UPS should have engaged in an interactive dialogue about providing reasonable accommodations. The failure to do so led to an award of approximately $575,000 in damages (including $125,000 for emotional distress), $8,000 in costs, and legal fees of $90,000, for a grand total of $673,000.

Anderson v. UPS shows that, even if an employee can put in a full working week, the employer should not conclude, on that basis alone, that the employee is outside the definition of ‘handicapped.’ That employee may still be entitled to Chapter 151B protection as a ‘qualified handicapped person,’ triggering the employer’s duty to engage in a good-faith, two-way discussion about reasonable accommodations.

Lulu Sun v. UMass Dartmouth

Liberal construction and the presumption in favor of deeming employees disabled are legal principles that affect the cost of day-to-day decisions in the workplace. The third case, Lulu Sun v. UMass Dartmouth, highlights the impact of another rule: the deference that the full commission accords to the hearing officer’s decisions about witness credibility.

In this case, a professor filed two complaints against her employer, UMass Dartmouth. One alleged that the university had denied her promotion on the basis of her gender, race/ancestry, and national origin, and the second alleged retaliation. The professor prevailed at the hearing, and, in addition to awarding damages, the hearing officer ordered UMass to promote her to full professor, pay a civil penalty of $10,000, and undergo training.

UMass appealed only the civil penalty, the training, and the emotional-distress award, which amounted to $200,000. At the root of the emotional-distress award was the hearing officer’s assessment of the credibility of the professor and her witnesses (the professor’s father and two faculty members) regarding her sleeplessness, timidity, a rash on her hands and legs, and her loss of both weight and verve. The hearing officer stated, “the vivacity, confidence, and vigor the complainant exhibited prior to the events at issue are hard to square with the fragile and wan woman who presented herself for public hearing.”

Pointing to the dearth of medical evidence, UMass challenged the emotional-distress damages. But the full commission upheld the $200,000 figure and awarded attorneys’ fees of almost $425,000.

It is important to note that the commissioners do not rehear the case, so they are not in a position to see the witnesses in the flesh. Instead, in a rule that works somewhat like a presumption, they defer to the hearing officer. As it noted in Lulu Sun, the commission shows “great deference” to the hearing officer’s decisions about the credibility of witnesses, the weighing of disputed issues of fact, and the assessment of damages. So unless it concludes that the officer’s decision was arbitrary, capricious, an abuse of discretion, or otherwise unlawful, the commission will affirm that decision.

The main lesson of this case is simple: live testimony matters. The physical appearance and demeanor of a complainant-employee and the way witnesses comport themselves under questioning are factors that the hearing officer will take into account, both in deciding liability and calculating damages. Because the full commission will defer to the officer on these matters, employers would be wise — particularly when sums in the half-million-dollar range are at stake — to treat MCAD hearings as make-or-break events.

Bottom Line

In summary, these three cases help remind employers that: (1) hearings matter, and persuading the full commission to overturn the decision of the hearing officer is an uphill battle; (2) the MCAD can — and does — award damages for emotional distress, sometimes six-figure sums; and (3) even before judicial review, the amount of time likely to elapse between the employee filing the complaint and the full Commission rendering a decision may be upward of five years.

Sometimes, of course, this last point redounds to the employer’s advantage, so long as management and counsel alike prepare themselves for a marathon, not a sprint.


Peter Vickery, Esq., practices law in Amherst; www.petervickery.com

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