Employees who believe that they have been discriminated against by their employer may pursue claims under a variety of federal and state laws. Most federal discrimination claims fall under Title VII of the Civil Rights Act of 1961 (“Title VII”), which requires timely administrative exhaustion with the Equal Employment Opportunity Commission (“EEOC”) or an affiliated state commission. In Massachusetts, discrimination claims under Title VII or Mass. Gen. Laws Ch. 151B (“Chapter 151B”) must be filed with the EEOC or with the Massachusetts Commission Against Discrimination (“MCAD”) within 300 days of the alleged adverse employment action. But, a recent decision from the United States Court of Appeals for the First Circuit serves as a good reminder that a claim for race-based discrimination may still be viable many years after the 300-day window has closed.
Sneaky Section 1981 claims
Plaintiff Jeannette Buntin, acting as adminstratrix of her father Oswald Hixon’s estate, filed a Section 1981 claim in Massachusetts Superior Court on February 6, 2015, alleging that her father’s employer, the City of Boston, had violated 42 U.S.C. § 1981 (“Section 1981”). Section 1981 guarantees, in relevant part, the rights of all persons in the United States “to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings . . . as is enjoyed by white citizens . . .” 42 U.S.C. § 1981(a). Section 1981 has been interpreted to prohibit “disparate treatment” discrimination, treating two groups differently because of their race, and retaliation against employees who pursue their rights under the statute.
Hixon, who was black, worked for the City of Boston for nine years before he was issued a warning for bringing his personal vehicle into City facilities to be repaired. Hixon was issued a written warning on February 4, 2011. Hixon protested to his two white supervisors that his suspension was discriminatory, as many other white employees had also brought their cars for repairs without being written up. Despite his protests, Hixon was suspended on February 7, 2011, and terminated on February 10, 2011, for a purported violation of the City’s drug and alcohol policy. On December 13, 2013, Hixon filed a discrimination and retaliation claim with the MCAD, but it was dismissed as untimely because it was outside the 300-day window allowed by Chapter 151B.
Hixon passed away in 2014, and his daughter subsequently filed claims under Section 1981 and 42 U.S.C. § 1983 (“Section 1983”) in the Superior Court on February 6, 2015. The City removed the case to federal court, and the United States District Court for the District of Massachusetts dismissed the case because Hixon had not filed an administrative charge with the MCAD within the statutory time limit.
Buntin appealed the trial court’s decision to the First Circuit Court of Appeals. The Appeals Court upheld the trial court’s decision regarding Hixon’s Section 1983 claim, but it overturned the dismissal of the Section 1981 claim, because the MCAD’s 300-day time limit does not apply to claims under Section 1981. The City also argued that the claim should be dismissed because the lawsuit was filed outside of Section 1981’s four-year statute of limitations. However, the Appeals Court held that the claim was timely, but just barely, noting that, discrimination and retaliation claims do not accrue until the alleged unlawful act has a “tangible effect on the employee and the employee has notice of both the act and its [harm and basis].” Shervin v. Partners Healthcare Sys., Inc., 804 F.3d 23, 33 (1st Cir. 2015). Thus, the Appeals Court found that the cause of action did not accrue until February 7, 2011, when Hixon learned of his suspension, or February 10, 2011, when Hixon learned he had been terminated. The case, Buntin v. City of Boston (1st Cir. 2015), was remanded back to the District Court for further proceedings, so any potential liability remains unresolved.
Takeaways . . .
Although Massachusetts employers may be familiar with the administrative exhaustion requirements and the 300-day deadline for claims filed with the MCAD or the EEOC, employers need to remember that they are also subject to federal laws such as Section 1981. Section 1981 extends the time frame within which an employee can bring a claim of race-based discrimination, because it does not require that the employee file any charge with a state or federal agency. Section 1981’s four-year statute of limitations begins to run at the time when the employee has been informed of an alleged adverse employment event. Thus, Massachusetts employers may face the risk of liability for claims of race-based discrimination and subsequent retaliation many years after an employee is terminated or suspended. Employers must be vigilant when terminating or suspending employees and should take care to preserve relevant documentation, including emails, in case a Section 1981 claim comes forward.