In Thurdin v. SEI Boston, LLC, the Massachusetts Supreme Judicial Court clarified the scope of small employers’ liability for workplace discrimination. The SJC held that although employees are precluded from bringing a claim for discrimination pursuant to Chapter 151B against an employer with fewer than six employees, they may pursue a claim under the Massachusetts Equal Rights Act (MERA).  

Tracy Thurdin worked as a consultant for SEI Boston, LLC. Shortly after she began work, Thurdin informed the managing principal, Vicki Hudson, of her pregnancy and approaching due date. The next day Hudson asked Thurdin to take an unpaid leave of absence, which Thurdin refused. Hudson accused Thurdin of acting unethically during the interview process, claimed SEI Boston could not place Thurdin onsite with clients due to her pregnancy, and stated that Thurdin had unfairly burdened the company. Following that conversation, Thurdin telephoned several people and revealed that she believed SEI Boston discriminated against her due to her pregnancy. A co-worker reported the calls to Hudson, who then ordered Thurdin to leave the office. SEI Boston placed Thurdin on unpaid administrative leave, and Thurdin never returned to work.  

Thurdin filed a charge of discrimination against SEI Boston with the Equal Employment Opportunity Commission (EEOC) and the Massachusetts Commission Against Discrimination (MCAD), asserting claims under Title VII and Chapter 151B. The EEOC dismissed Thurdin’s complaint for lack of jurisdiction because SEI Boston had fewer than six employees. Thurdin sued SEI Boston in Massachusetts Superior Court, asserting gender and pregnancy discrimination claims under MERA. The Superior Court granted SEI Boston’s motion to dismiss, finding Chapter 151B was the exclusive remedy in employment discrimination cases and did not apply to SEI Boston because it had only three employees. The Court also concluded that MERA could not provide an alternative remedy because the Equal Rights Act’s reference to “making” and “enforcing” contracts applies only to claims of discrimination during the hiring process. Thurdin appealed.  

The SJC took up the appeal and reversed the Superior Court, holding that when Chapter 151B is inapplicable employees may pursue alternative remedies for employment discrimination. The Court explained that nothing in the language of Chapter 151B precludes individuals from using other antidiscrimination statutes to vindicate their rights when Chapter 151B does not apply. Rather, the plain language of the statute expressly provides that nothing in Chapter 151B should be read to repeal any other antidiscrimination statute unless it is inconsistent with Chapter 151B. The Court determined that MERA and Chapter 151B were not “inconsistent” because they govern different employers and provide different remedies. The SJC rejected the argument that the Legislature deliberately exempted small employers from pregnancy discrimination claims, explaining that nothing in MERA’s language excludes small employers from its coverage. In addition, the SJC concluded that MERA’s focus on “enforcing” contracts covered discrimination throughout the course of employment.  

The SJC’s decision in Thurdin makes clear that employees who may not pursue discrimination claims under Chapter 151B, because they work for employers with fewer than six employees that are exempt from MCAD’s administrative process, may nevertheless pursue such claims under MERA in court. As a result, employers of all sizes must ensure that their policies and practices prevent workplace discrimination.