On February 29, 2016, the Massachusetts Supreme Judicial Court (“SJC”) issued its decision in Bulwer v. Mount Auburn Hospital, which established that Massachusetts law sets a lower bar than federal law for plaintiffs in employment discrimination cases at the summary judgment stage. The decision will make it easier for plaintiffs to proceed to trial on their claims under M.G.L. c. 151B.
Under the McDonnell Douglas burden-shifting paradigm, plaintiffs claiming employment discrimination bear the initial burden of establishing their prima facie case of discrimination. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. The burden then shifts back to the plaintiff to establish that the employer’s proffered legitimate, non-discriminatory reason is false and a pretext for unlawful discrimination.
Under federal law, a plaintiff can defeat an employer’s motion for summary judgment only if they can show that not only is the employer’s proffered legitimate, non-discriminatory reason for its action false, but that the real reason for the employer’s action was unlawful discrimination. This is often a difficult burden for plaintiffs to meet, resulting in federal courts granting employer motions for summary judgment and, thereby, enabling employers to avoid the costs and risks associated with proceeding to trial.
By contrast, in Bulwer, the SJC stated that “Massachusetts is a pretext only jurisdiction” and, therefore, plaintiffs can defeat summary judgment by simply presenting evidence from which a jury could infer that the employer’s given reason for its action was not the real reason for the action. For example, if a plaintiff-employee was told that they were being terminated due to budgetary constraints, but, in fact, the real reason is performance issues – the plaintiff will survive summary judgment.
The end result of the decision is that in Massachusetts plaintiffs will now have an easier time staving off an employer’s motion for summary judgment and reaching trial, even if they cannot ultimately prove that the employer’s real reason for its action was unlawful discrimination. In the wake of Bulwer, it is critically important for employers to resist the urge to sugarcoat its reasons for an employee’s termination or to offer a reason intended to spare the employee’s feelings. Instead, employers must tell employees the real reason(s) for the adverse employment action, no matter how difficult that conversation may be.