Lopez v. Commonwealth
463 Mass. 696
Mass.2012Background
- African-American and Hispanic police officers allege the division’s promotional exam for sergeant violates civil rights law and State law due to disparate impact.
- Examinations are 100 multiple-choice questions drawn from law enforcement texts; passing requires 70/100.
- Municipalities rely on the division’s ranked promotion list or conduct their own exams; most use the division’s exam.
- Plaintiffs claim the division knew the exam is not job-related yet persisted, causing minority underpromotion.
- Plaintiffs asserted claims under G. L. c. 151B §§ 4(1), 4(4A), 4(5) and c. 93, § 102; prior U.S. District Court proceedings involved immunity and Title VII.
- Court grants direct appellate review; holds § 4(4A) claim may proceed, others are dismissed; remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sovereign immunity waiver under c151B §4(4A) | Division consent suffices under §1, §9 | Immunity not waived for each §4(1),(4A),(4)(5) claim | Waiver exists; Commonwealth subject to §4(4A) claims |
| §4(1) indirect employer liability | Division as indirect employer can be liable | No direct control; no indirect-employer theory applicable | No §4(1) claim stated |
| §4(4A) interference claim viability | Disparate impact can violate §4(4A) without intent to discriminate | Interference requires intent or coercion | §4(4A) claim viable with disparate-impact theory; not limited to retaliation |
| §4(5) aiding and abetting | Municipalities’ discrimination aided by division | No underlying distinct discrimination by a named principal offender | Dismissed §4(5) claim for lack of underlying principal-offender act |
| MERA claim preemption | MERA independent remedy remains | 151B remedies exclusive when available | MERA claim preempted by available 151B remedies |
Key Cases Cited
- Griggs v. Duke Power Co., 401 U.S. 424 (U.S. 1971) (disparate impact requires job-related, valid tests)
- Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (U.S. 1988) (disparate impact theory applicable to discrimination claims)
- Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) (indirect employment interference theory under Title VII)
- AMAE v. State, 231 F.3d 572 (9th Cir. 2000) (employer interference theory may apply without direct employer-employee relation)
- Lopez v. State, 588 F.3d 69 (1st Cir. 2009) (Title VII immunity and employer scope considerations)