As of Friday, November 3, 2008, the legal landscape has changed for small employers. The "...over fifty-eight percent of businesses in the Commonwealth [that employ] fewer than five employees" are covered by the Massachusetts Equal Rights Act which the Supreme Judicial Court has held prohibits discrimination in employment. Thurdin v. SEI Boston, LLC, 452 Mass. 436, 448 (Nov. 3, 2008). As a result, if you are a small employer, you have new human resources issues to consider before making decisions regarding your employees.

Since 1984, Massachusetts’ anti-discrimination law, Chapter 151B, was routinely believed to be the exclusive remedy, or only avenue for relief, for employees claiming to have been illegally discriminated against by an employer. As Chapter 151B only applies to employers with six or more employees, small employers (those with fewer than six employees) were free from the burden of complying with it. Now, however, the Supreme Judicial Court has ruled that Chapter 151B is not the exclusive remedy for employees claiming to have been illegally discriminated against by an employer. The Massachusetts Equal Rights Act (MERA), M.G.L. c. 93, § 102, which applies to employers with fewer than six employees, also prohibits discrimination in employment.

The result of this change is that employees of small companies can now also bring a complaint for employment discrimination. As a reminder, the categories which are protected under Massachusetts law, and therefore cannot be used in making employment decisions, are the following: race, color, religious creed, national origin, ancestry, sex, age (40 years of age and over), criminal record (applicants only), handicap, retaliation, sexual harassment, sexual orientation, genetics, and military personnel. When making hiring, firing, promotion, disciplinary, termination or any other employment decision, you and your management should not be considering any of these protected categories.

Procedure: MERA covers employers with less than six employees. It allows an employee to bring a claim of employment discrimination directly to the Superior Court within three years of the discriminatory event. Chapter 151B (which applies to employers with six or more employees) requires employees to bring claims of employment discrimination to the Massachusetts Commission Against Discrimination within 300 days of the discriminatory event, and then, if the employee chooses to go to Court within three years of the discriminatory event. MERA-covered employees, therefore, have a much longer period of time before they lose their right to pursue a claim against their employer than under Chapter 151B. It also means MERA-covered employers have a much longer period of time to wait before knowing whether or not an employee is going to challenge an employment decision.

In addition to giving employees a longer period of time in which to bring a claim, MERA also allows an employee to go to Court and obtain injunctive relief prohibiting an employer’s action, where Chapter 151B does not.

Damages and Penalties: MERA and Chapter 151B allow juries to award lost pay, and consequential, emotional distress and punitive damages to prevailing plaintiffs. Both also contain a fee shifting provision that requires the defendant employer to pay the plaintiff employee’s attorneys’ fees and costs if the plaintiff employee succeeds in proving that the employer illegally discriminated against the employee. This is a very costly proposition for any business, but is especially burdensome on small business owners.

So, if you are a small employer, the time is now to review your human resource policies and procedures, to consider the manner in which you hire, manage, discipline and terminate employees, and whether or not you or your supervisors need some training to refresh and hone your management skills.