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SJC ruling clears path for claims on discrimination

The Massachusetts Supreme Judicial Court issued a ruling Monday that will make it easier for workers to take their employers to court over discrimination claims, legal observers said.

The ruling found that a Mount Auburn Hospital resident who said his termination was racially motivated did not need to provide evidence that the hospital had specific “discriminatory intent” when it fired him, only that the reason the hospital gave for firing him was false. This clarifies the standards employees must meet to get their cases in front of a jury, legal observers said.

Before this decision, courts have differed on what workers suing their employers for discrimination had to show to go to trial. Some required workers to meet a two-pronged test: First, they had to provide enough evidence to show that a jury could conclude that the reason the employer gave for firing a worker was false; and they had to provide sufficient evidence of intent to discriminate.

The SJC ruling makes it clear that a worker does not necessarily have to show that the employer intentionally discriminated in order to proceed to trial.


Few discrimination cases have a “smoking gun,” such as a supervisor who uses a racial epithet, which makes it difficult for an employee to be granted a trial, said James A.W. Shaw of the Massachusetts Employment Lawyers Association, which submitted a brief in support of the plaintiff’s position.

“It’s a big deal,” Shaw said of the ruling. “It’s like the road map I think going forward for all employment lawyers on both sides of the aisle in future discrimination cases.”

The court’s decision means that the plaintiff, Bernard Bulwer, a black man originally from Belize, has produced enough evidence to allow a jury to hear his case.

“The jury should be the fact-finder that determines where the truth lies,” said Denzil McKenzie, the lawyer representing Bulwer. The attorney for the hospital did not return messages seeking comment.


The ruling is concerning for employers because it will lower the bar for workers seeking to challenge their bosses in court, said Greg Manousos, a lawyer at the Boston firm Morgan, Brown & Joy. Even “subconscious bias” could be enough, said Manousos, who represents employers in labor cases. “It’s going to allow a lot more cases to get to trial that probably shouldn’t get to trial because the evidence of discrimination is very thin.”

Bulwer, who had practiced medicine in Trinidad, Belize, and the United Kingdom since 1989 before coming to the United States in 2002, entered a residency program at Mount Auburn in 2005 to get his license to practice here. During his first year, Bulwer received widely differing reviews from supervisors in different departments, according to the SJC decision.

Some praised him as “outstanding” and “universally held in high regard,” while others criticized him as being “too confident for his own good,” “less-than-fully-honest,” and “not well suited for a career in internal medicine in this country.”

He was subsequently fired. The hospital’s lawyer asserted the dismissal was based on poor performance evaluations that raised doubts about his abilities and that expressed concerns over patient safety, according to court documents.

Bulwer filed a complaint in state Superior Court in 2008, but the judge threw out the case because Bulwer “had not produced sufficient evidence of the defendants’ discriminatory intent.” The state Appeals Court reversed the judgment on a 3-2 decision.


The SJC upheld the Appeals Court, ruling there was enough evidence for a jury to infer that the reasons the hospital gave for firing Bulwer were not the actual reasons he was terminated. That evidence includes numerous positive evaluations and potentially biased statements from supervisors that reflect the sense that Bulwer did not “know his place,” according to the ruling.

Several doctors also testified about instances in which Bulwer was treated differently than other employees, according to SJC opinion. One said that two other foreign interns – one white and one “apparently” Asian – experienced similar performance issues to Bulwer but were given opportunities to make up for them.

The hospital’s lawyer argued that Bulwer’s deficiencies were serious and criticisms of him were professional judgments, not determined by racial bias, according to court documents.

Katie Johnston can be reached at katie.johnston@globe.com.